Henschel & Sartre (No 5) - [2024] FedCFamC1F 339

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Henschel & Sartre (No 5) [2024] FedCFamC1F 339

File number(s): SYC 6123 of 2020

Judgment of: BERMAN J

Date of judgment: 23 May 2024

Catchwords:
FAMILY LAW – CHILDREN – With who the child lives with and spends time with – Where the parties are unable to agree parenting arrangements for a 15-year-old child – Where the parties’ have a deep mistrust for each other and have been engaged in protracted litigation for over 4 years – Where the child currently lives with the applicant and spends each alternate weekend with the respondent – Where the respondent seeks equal shared care – Consideration of the child’s wishes – Where each party proposes that the child’s time spending be subject to his wishes – Where the evidence suggests significant weight should be attributed to the child’s wishes – Where there is insufficient evidence to make parenting arrangements beyond 30 June 2025 – Orders made for time spending until the child is 16 years – Orders to be subject to the child’s wishes following turning 16.

FAMILY LAW – CHILD SUPPORT – Application for departure – Where the applicant seeks a departure order for periodic payments and the payment of private school fees – Where the respondent seeks a departure solely for payment of private school fees – Where the applicant does not support the child attending at the private school – Where the respondent presses for the child to attend the private school – Consideration of whether the respondent should make periodic payments – Consideration of whether the payment of private school fees makes otiose the requirement for periodic payments – Order for periodic payments and private school fees.

Legislation:
Child Support (Assessment) Act 1989 (Cth) Part VII, ss 116, 117, 124.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA.

Cases cited:
Baglio & Baglio [2013] FamCA 105

Gilmour & Gilmour (1995) FLC 92-591

Gyselman & Gyselman (1992) FLC 92-279

Division: Division 1 First Instance

Number of paragraphs: 274

Date of hearing: 4 – 6 December 2023 & 26 – 29 February 2024

Place: Heard in Sydney, delivered in Adelaide (via MS Teams)

Counsel for the Applicant: Mr Kearney SC

Solicitor for the Applicant: Karras Partners Lawyers

Counsel for the Respondent: Ms Gillies SC

Solicitor for the Respondent: ATW Family Law
ORDERS

SYC 6123 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS HENSCHEL

Applicant

AND:
MR SARTRE

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

23 MAY 2024

THE COURT ORDERS THAT:
1.The parties shall have equal shared parental responsibility for X born 2009 (“X”).
2.Subject to order 5, X shall live with Ms Henschel (“the applicant”).
3.Subject to order 5, X shall spend time with Mr Sartre (“the respondent”) as follows:-
(a)Each alternate Tuesday from after school (or 3.30 pm if not a school day) until the commencement of school on Wednesday (or 8.30 am if not a school day) commencing 28 May 2024;
(b)On each alternate weekend from immediately after school on Friday (or 3.30 pm if not a school day) until the commencement of school on the following Monday (or if a public holiday until 8.00 pm) commencing 31 May 2024;
(c)During the school holidays each year for one half of the school holiday period as may be agreed between the parties and failing agreement as follows:
(i)With the applicant in the first half and the respondent in the second half of the Christmas school holidays that commence in 2025 and every other year ending with an odd number;
(ii)With the respondent in the first half and the respondent in the second half of the Christmas school holidays that commence in 2024 and every other year ending with an even number;
(iii)For the purpose of these orders the “school holidays” shall be defined as commencing on the last day of school term that X is required to attend, and as concluding at the commencement of the school on the first day that X is required to attend school for the following term as determined by the calendar published by the school at which X is attending; and
(iv)Unless otherwise specified, any handover during school holiday periods shall occur at midday on the day being the midpoint of the school holiday period.

4.Subject to order 5, X shall spend time with the parties on special occasions as agreed and failing agreement, the following shall apply:
(a)On X’s birthday each year, X shall spend time with the party who’s care he is not otherwise in on the day from 3.00 pm to 8.00 pm;
(b)On each of the party’s birthday, if X is otherwise not in the care of that parent, if the birthday falls on a school day, from 3.00 pm to 8.00 pm but if the birthday falls on a non-school day from 1.00 pm to 5.00 pm;
(c)X shall be in the applicant’s care on Mother’s Day from 6.00 pm on the day preceding Mother’s Day until 5.00 pm on Mother’s Day;
(d)X shall be in the respondent’s care on Father’s Day from 6.00 pm on the day preceding Father’s Day until 5.00 pm on Father’s Day;
(e)X shall be in the care of the applicant from midday Christmas Eve to midday Christmas day and in the care of the respondent from midday Christmas day to midday Boxing Day in 2025 and every other year ending with an odd number;
(f)X shall be in the care of the respondent from midday Christmas Eve to midday Christmas Day and in the care of the applicant from midday Christmas Day to midday Boxing Day in 2024 and every other year ending with an even number.

5.Paragraphs 2, 3 and 4 are subject to X’s wishes as and from 30 June 2025.
6.Each of the parties shall be at liberty to attend X’s extra-curricular activities regardless with whom X spends time or resides with.
7.Each of the parties shall inform and keep the other informed in writing at all times of X’s health and/or health related issues.
8.In the event X is involved in a medical emergency, the party with whom X is at the time shall in writing notify the other immediately and provide details of the health care professional or medical facility that X attends.
9.Without admissions, each party be restrained by way of injunction from:
(a)Making any critical, disparaging, denigrating, and/or derogatory remarks about the other party or any member of the other party’s family including any partner of the other party, to X or in the presence or hearing of X, with such order to include verbal, written or electronic means including email and text message;
(b)Allowing any other person or persons to make any critical, disparaging or derogatory remarks about the other parent or any member of the other party’s family including any partner of the other party to X or in the presence of hearing of X, such order to include verbal, written or electronic means including email or text messages; and
(c)Making any threat to X or from otherwise saying or doing anything in the hearing or in the presence of X which may be considered intimidating or threatening.

10.Unless otherwise agreed between the parties in writing, and pursuant to s 65Y(2) of the Family Law Act 1975 (Cth), the parties are permitted to remove X from the Commonwealth of Australia to travel overseas during the period in which X is living with them, or is mutually agreed in writing, providing that the travelling party has first provided the other party with twenty-one (21) days prior written notice (or other such notice period as agreed) of the intended trip, specifying proposed dates, destination, travel insurance and contact details whilst X is absent from the Commonwealth.
11.Each of the parties shall do all things necessary, including signing all documents within fourteen (14) days of any request to do so to ensure that X has a current passport at all times.
12.Pursuant to s 117 of the Child Support (Assessment) Act 1989 (Cth), there be a departure from the Administrative Assessment of Child Support payable by the respondent for X as follows:
(a)For the period from 15 March 2024 to 30 June 2025 the annual rate of child support be set at ELEVEN THOUSAND THREE HUNDRED AND THIRTY-SIX DOLLARS ($11,336) or TWO HUNDRED AND EIGHTEEN DOLLARS ($218) per week.

13.Pursuant to s 124 and s 126 of the Child Support (Assessment) Act 1989 (Cth) by consent the respondent shall pay all school fees, costs and related charges for X while he attends at RR School provided that the annual rate of child support payable by the respondent either pursuant to these orders or any subsequent administrative assessment is not to be reduced by reason of the payments as required by order 12(a) herein.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Berman J
INTRODUCTION

Ms Henschel (“the applicant”) and Mr Sartre (“the respondent”) are the parents of X born 2009 (“X”).
The parties are unable to reach agreement in respect of parenting orders for X, who is now 15 years of age, alteration of interests in the property of the parties and the extent of the assessment of child support by way of departure orders pursuant to Part VII of the Child Support (Assessment) Act 1989 (Cth) (the “Assessment Act”).
The proceedings can be described as high conflict litigation that commenced in 2020 and were listed for final hearing to commence on 4 December 2023. After two days of interim hearings, a joint application to adjourn the trial was made on the basis that further valuation evidence needed to be updated and obtained. The nature of the further enquiries supported the proceedings being adjourned part-heard to 26 February 2024.
When the matter came back in March 2024, given the further interim applications relating to issues as to single expert valuations, I determined that the substantive aspect of the proceedings namely, settlement of property, was not able to be heard without there being a risk of the proceedings yet again being adjourned. However, I also determined that the future conduct of the proceedings would be assisted by the parties being able to focus on property settlement rather than the narrow compass of the dispute as to the future parenting arrangements for X and the application for departure from the Administrative Assessment of Child Support.
It is an unfortunate reflection on the level of mistrust and animosity between the parties that they were not able to reach agreement as to parenting orders for X given that he is 15 years of age.
The applicant’s fees as at 25 February 2024, up to and including the first day of trial, was in the sum of $1,222,405. Further costs have been incurred given the bifurcated hearing was of 4 days duration and there were subsequent interim proceedings up to and including 22 March 2024 when an order was made that the proceedings for property settlement be listed for a first day hearing before the case management judge in the Sydney Registry.
For his part, the respondent has incurred total fees and disbursements of $1,117,040 (not inclusive of outstanding counsel fees) with an estimate of future costs totalling an additional $229,000.
By reference to a Balance Sheet filed 25 February 2024, it is likely that the net property of the parties will exceed $20,000,000 with total superannuation of about $2,600,000.
Without attempting to overly simplify the property proceedings, the principal focus has been to ascertain the value of the property located at V Street, Suburb W (“the V Street property”) and the value of the husband’s shares in the B Group made up of the following entities:
·B Pty Ltd;
·B5 Pty Ltd;
·B3 Pty Ltd owned by Sartre Family Trust;
·B4 Pty Ltd;
·B7 Pty Ltd;
·B2 Pty Ltd (which owns H Street, Suburb J);
·B6 Pty Ltd as trustee of the Mr Sartre and Ms Henschel Family Trust which holds 2/3 of the shares in B2 Pty Ltd and the property at N Property, Town O; and
·The value of the commercial premises at H Street, Suburb J (“the Suburb J property”) and the value of the Town O property.
As matters currently stand, the applicant would seek to retain the Town O property whereas the respondent seeks to retain the Suburb W property and his interest in the B Group including the Suburb J property.
ORDERS SOUGHT
The parenting orders sought by the applicant are summarised as follows:
(1)That the parties have equal shared parental responsibility for X.
(2)That X live with the applicant.
(3)That subject to X’s wishes, he spends time with the respondent as follows:
(a)Every Tuesday from after school (or 3.30 pm if not a school day) until 8.00 pm; and
(b)On every alternate weekend from immediately after school (or 3.30 pm if not a school day) until 8.00 pm on Sunday.
(4)That the time spending arrangements be suspended during school holidays each year and in lieu thereof, and subject to X’s wishes, the child shall spend one half of school holiday period with each of the parents as agreed and failing agreement, as follows:
(a)With the applicant in the first half and the respondent in the second half of the Christmas school holidays that commence in every year ending with an odd number;
(b)With the respondent in the first half and the applicant in the second half of the Christmas school holidays that commence in 2024 and every other year ending with an even number;
(c)That school holidays shall be defined as commencing on the last day of school term and concluding at the commencement of school on the first day of the new school term; and
(d)That any handover during school holidays shall occur at midday on the day being the midpoint of the school holiday period.
The applicant also seeks orders for X to spend time with each of the parties on his birthday, on each of the party’s birthdays and with the applicant on Mother’s Day and the respondent on Father’s Day. The applicant seeks orders that enable the child to spend time with each of the parties for the period commencing on midday Christmas Eve to midday on Boxing Day alternating such that the child spends time on Christmas Day with each party.
The respondent seeks parenting orders summarised as follows:
(1)That the applicant be restrained from relocating the residence of X from outside of the Sydney metropolitan area.
(2)That X shall attend RR School and as and from the academic year commencing 2024, X shall attend as a weekly boarder.
(3)That provided both parents reside in the Sydney metropolitan area:
(a)X shall live in a week about shared care arrangement with handover to occur from the conclusion of school on Friday each week; and
(b)That the week about arrangement be suspended during the Christmas school holidays each year and in lieu thereof, X will spend one half of the Christmas holiday period with each of the parents as agreed, but failing agreement, with the respondent in the first half and the applicant in the second half of the Christmas school holidays that commence in 2024 and with the applicant in the first half and the respondent in the second half of the Christmas school holidays that commence in 2025 and alternating years thereafter.
(4)That school holidays shall be defined as commencing on the last day of school term that X is required to attend and concluding at the commencement of school on the first day of the new school term.
(5)That in the event the applicant resides outside the Sydney metropolitan area then X shall live with the respondent and spend time with the applicant as agreed but failing agreement as follows:
(a)During each school term as follows:
(i)In the event the applicant is able to accommodate X in Sydney overnight then each alternate week;
(ii)In the event the applicant is unable to accommodate X in Sydney overnight then each alternate weekend from the conclusion of X’s compulsory sport on Saturday to 5.00 pm on Sunday, and in the event there is no compulsory sport for X on Saturday, then the time commence from after school on the immediately preceding Friday.
Similar to the orders sought by the applicant, the respondent proposes that the child spend time with each of the parties on his birthday, on the birthday of each of the parties, with the applicant on Mother’s Day and with the respondent on Father’s Day.
The respondent also proposes that X spend time with each of the parties for the period commencing midday on Christmas Eve to midday on Boxing Day alternating such that the child spends time with each of the parties on Christmas Day.
At the commencement of the hearing the parties were able to reach modest agreement as set out in exhibit “8” comprising a signed Minute of Order.
The parties have agreed equal shared parental responsibility, that they each be at liberty to attend X’s extra-curricular activities and to keep each other informed as to any health or health related issues in particular, any medical emergency.
The parties also agree to various orders of restraint with a focus on as far as is possible, to keep X quarantined from the conflict between the parties.
Agreement was also reached that each party be permitted to remove X from the Commonwealth of Australia and to require the parties to sign all documents as may be necessary for X to have a current Australian passport.
Parenting
Accordingly, the parties are not agreed as to the following:
(1)That the child should live with the applicant.
(2)That the child should spend equal time with the parties.
(3)That irrespective of any orders made for the child to spend time with each of the parties, it should in any event be subject to the child’s wishes.
The parties are also not able to agree the handover arrangements that do not take place at the child’s school. The respondent seeks that the party who is to assume the care of X should collect him from the residence of the other parent at the commencement of their time.
Again, the particular residential arrangements of the parties and the juxtaposition of X’s school creates unnecessary uncertainty and complexity.
The applicant seeks to maintain two residential premises namely, the parties’ property at Town O and a rental property at FF Street, Suburb Z (“Suburb Z”). The applicant contends that X lives primarily with her in both the Suburb Z and Town O properties.
It is uncontroversial that if X primarily resided at the Town O property it would be unworkable for X to continue at his present school, RR School, or even for that matter any other school within the Sydney metropolitan area. The respondent’s position is that the Suburb W property is geographically close both in terms of time and distance to RR School.
It was not a significant argument of the applicant that for the purposes of X’s school and handover arrangements other than to and from RR School that the Suburb Z property, and not the Town O property, should be considered as the applicant’s primary residence.

There was some evidence that from time to time the parties were able to agree a handover of X from Town O but in the ordinary course and, now underpinned by considerable history, X transitions between the parties from Suburb Z and Suburb W and RR School.
Child Support
The current Child Support Administrative Assessment for the period 15 December 2023 to 31 March 2024 (exhibit “7”) is set at the monthly rate of $516.08 based upon a child support income for the applicant of $158,076 and for the respondent $122,094. The child support percentage brings into account the applicant’s care percentage at 75 per cent and the respondent’s care percentage at 25 per cent.
Given that X is over the age of 13 years, the cost of the child is brought to account at $31,359.
The departure order sought by the respondent is as follows:
(1)That the respondent pay no periodic or other child support to the applicant and any child support assessment rendered by the Child Support Agency to be reduced to nil from the date of these orders until X completes his HSC and any arrears of periodic child support be reduced to nil.
The orders sought by the respondent are to be seen as against a concession that he will continue to pay X’s school fees and educational costs arising from his attendance at RR School until the conclusion of the 2027 school year.
The applicant seeks that there be a departure from the Administrative Assessment such that the respondent would pay:
(1)A periodic amount of $500 per week; and
(2)Non-periodic amounts by way of payment of school fees and all other expenses associated with X’s attendance at RR School.
It is acknowledged that the respondent has paid the current Child Support Assessment of $118.69 per week or $516.08 per month.
Whilst it had previously been part of the orders sought by the applicant that X go to a State school rather than RR School, at trial there was a concession that provided the appliant was not required to contribute to X’s tuition fees and other school based expenses, X was likely to remain attending RR School.
It is not controversial that the respondent considers it important for X to continue at RR School and he acknowledges that for as long as X shall remain enrolled, he will be responsible for the school fees and charges.
A separate issue also arose as to whether X would attend RR School as a boarder notwithstanding that RR School is close in distance and time to the respondent’s residence at Suburb W and the applicant’s rental property at Suburb Z.
The issue was of some contention in 2023 however it was resolved in circumstances where X did not wish to board. There is some suggestion that X may have changed his mind however, given that the parties were not able to reach agreement, there is now no longer any opportunity for X to take a boarding placement in the 2024 academic year.
If X were to board at RR School, it would be difficult to reconcile the orders for shared care and equal time as sought by the respondent.
The issue of X’s school fees and charges is a relevant consideration in determining whether, and if so to what extent, there should be a departure from the Administrative Assessment of Child Support. It is a significant foundation of the respondent’s application that he be given credit for the payment of school fees and given the amount involved, it would be unjust and inequitable for him to be required to pay periodic child support either as assessed or as sought by the applicant.
Present indication is that the annual tuition fees for X are in the sum of $41,880 and if he were to board then a further $34,000 would be incurred.
DOCUMENTS RELIED UPON
The applicant relies upon the following documents:-
(1)Further Amended Initiating Application sealed 12 January 2022.
(2)Applicant’s trial affidavit sealed 7 August 2023.
(3)Applicant’s affidavit in reply sealed 2 November 2023.
(4)Applicant’s further updating affidavit sealed 3 December 2023.
(5)Financial Statement sealed 7 August 2023.
(6)Outline of Case document sealed 1 December 2023.
(7)Outline of Case document sealed 25 February 2024.
(8)Draft Balance Sheet sealed 25 February 2024.
The respondent relies upon the following documents:-
(1)Amended Response sealed 20 January 2022.
(2)Respondent’s trial affidavit sealed 13 October 2023.
(3)Financial Statement sealed 13 October 2023.
(4)Affidavit of Ms SS sealed 13 October 2023.
(5)Outline of Case document sealed 1 December 2023.
Both parties sought to rely upon the expert report of Dr TT dated 21 December 2021.
BACKGROUND
The applicant was born in 1972 and is 51 years of age. The respondent was born in 1964 and is 59 years of age.
The parties commenced cohabitation in 2003 being the date of their marriage. After a period of about 17 years of cohabitation, the parties separated on 20 April 2020. Proceedings were commenced by the applicant on 2 September 2020.
There is one child of the relationship, X, who was born in 2009 and is currently 15 years of age.
Whilst there has been some ability by the parties to agree parenting arrangements for X, the current arrangements have been largely determined pursuant to the interim orders made on 3 February 2022 summarised as follows:
(1)That the applicant be restrained from relocating the residence of X to the Town O property or outside of the Sydney metropolitan area.
(2)That X attend RR School for the academic year commencing 2022 noting the respondent’s filed undertaking dated 2 February 2022 to pay the school tuition fees and all other expenses of X attending RR School.
(3)That X lives with the applicant and spends time with the respondent as follows:
(a)Commencing 8 February 2022, each Tuesday from after school (or 3.30 pm) until 8.00 pm; and
(b)Commencing 11 February 2022 and each alternate week thereafter, from after school (or 3.30 pm) on Friday until 8.00 pm on a Sunday.
(4)That X spends one half of the school holiday period with each of the parties as may be agreed but failing agreement with the respondent in the first half and the applicant in the second half of the Christmas school holidays commencing in 2022 and with the applicant in the first half and the respondent in the second half of the school holidays commencing in 2023 and alternating in each year thereafter.
The orders also provided for the parenting arrangements to deal with the birthdays of each of the parties, Mother’s Day, Father’s Day and Christmas.
X lives primarily with the applicant at her rental accommodation in Suburb Z and when with the respondent, at the parties’ Suburb W property, being the former matrimonial home.
As discussed, X currently attends RR School as a day student. There has been some contention between the parties as to whether X would transition to a boarding student in 2024. The respondent considered that the parties had reached agreement that X would board at RR School whereas the applicant considered that it was a possibility but by no means a certainty.
As matters have transpired, the parties did not reach agreement that X would board and there is some credible assertion that irrespective of the separate or joint intentions of the parties, X may not have wanted to board.
Taking into account that X will be 16 years of age when he enters year 10 at RR School in 2025, whether he is enrolled as a boarding student will be a matter subject to his wishes although the parties suggested that if he were to board, there would no longer be an available day student place.
A further aspect of X’s attendance at RR School, whether as a day or boarding student is the significant costs incurred.
The interim orders of 3 February 2022 note the respondent’s undertaking to pay the school tuition fees and other related charges and if not then his mother, Ms SS will pay. It is on that basis that the applicant does not strenuously oppose X’s continued enrolment at RR School. A consequence of the respondent’s undertaking to pay all of the costs of X’s attendance at RR School is his contention that there should be a departure from the Administrative Assessment and that he should not be required to pay any periodic assessment for the balance of X’s minority years.
The respondent relies upon the evidence of his mother, Ms SS, that she and her husband had a significant role in assisting the parties to care for X. Ms SS would make herself available to supervise X when the parties were not able to do so, would take X to medical and other appointments and on occasion, to X’s extra-curricular activities.
It appears uncontroversial that X has a good relationship with his paternal grandparents together with the respondent’s extended family. Between 2017 and 2020, a practice developed whereby the respondent’s parents take their children and their families including the parties and X on an annual holiday.
On 2 February 2022, Ms SS filed an undertaking that if requested by the respondent she would pay school fees, incidental expenses, uniforms and other costs to enable X to attend RR School. The undertaking extended to boarding fees if X chose to do so. The extent of the paternal grandparent’s commitments to X’s attendance at RR School is underpinned by a codicil to Ms SS’s will that includes a provision for X’s educational expenses.
It is apparent that Ms SS considers X’s attendance at RR School to be important and a continuation of a long history of the male members of the Sartre family attending RR School. Ms SS’s current position is that she does not resile from the undertaking given to the Court on 2 February 2022. It is likely that the paternal grandparents have sufficient financial resources to fulfill their undertaking.
The contention of the respondent is that his parents either directly or via their corporate entity, BB Pty Ltd, have provided substantial loan funds to assist the respondent both personally but also the conduct of the B Group of companies.
Ms SS attaches various loan agreements and heads of agreement documents to her affidavit of 13 October 2023. Whilst the status of any money provided by the paternal grandparents to the respondent remains a matter of contention, no mention is made of money provided by the paternal grandparents to support X’s continued enrolment at RR School as a loan. It is not suggested either by Ms SS or the respondent that any money provided is to be repaid.
Even though the respondent considers that once settlement of property has been concluded the applicant would be in a financial position to contribute to X’s school fees and related expenses (even the further impost of boarding expenses), if the applicant refuses to do so then he is prepared to meet the expenses as and when they fall due. At present, and for the foreseeable future, the respondent has called upon his parents pursuant to Ms SS’s undertaking to pay X’s school fees.
Both parties consider that it is in X’s best interests for him to maintain a strong, positive and meaningful relationship with each of them.
The applicant considers that X may well be suffering from depression, anxiety and stress. The respondent does not agree with the applicant’s assessment of X’s presentation and considers that he is progressing well at school, achieving appropriate milestones and has strong curricular and extra-curricular activities. Other than their own separate assessment of X, the parties rely upon the evidence of Dr TT as contained in his report dated 21 December 2021 (“Exhibit 11”).
The applicant does not consider that the parties would be able to co-parent X by reason of her allegations that the respondent was the perpetrator of family violence including intimidation, threatening behaviour, coercive control and assault but also by reason of the contention of the respondent that the applicant also perpetrated family violence.
The applicant also alleges that she was the subject of sexual assault by the respondent, which are allegations that are denied. In addition, the respondent considers that the applicant was engaged in questionable financial transactions which were subsequently the subject of police involvement.
The respondent also acknowledges that he made a “Whistle Blowers” complaint to the ATO in respect of purported concerns in respect of the taxation affairs of B6 Pty Ltd.
Moreover, as is apparent from the length and cost of the current litigation, there remains unbridled dislike and mistrust for and of each other.
Following separation, the applicant applied for an Administrative Assessment of Child Support on 27 October 2020. The respondent was assessed to pay child support at the rate of $363.44 per week based upon a provisional income amount of $1,020,561.
On 8 December 2020, a revised assessment reduced the periodic sum to $342.90 per week.
Thereafter, there have been applications made by the respondent to reassess child support based upon a significantly reduced income amount.
As discussed, the assessment for the period 15 December 2023 to 31 December 2024 is in the weekly rate of $118.69 calculated monthly in the sum of $516.08.
THE EVIDENCE
The applicant
Consistent with the Financial Statement sealed 7 August 2023, the applicant provides consulting and advice via S Pty Ltd to P Company. She receives $154,830 per annum by way of director and chair fees (“exhibit 12”). In addition, the applicant sits on the board of an institution on a pro bono basis but also holds a board position for which she receives a modest honorarium of $4,000 per annum.
It is not likely that the applicant’s income will significantly increase in the foreseeable future save and except as to any change in her financial circumstances that may arise following a resolution of the property settlement proceedings.
It is likely that until the proceedings have resolved, the applicant will continue to reside in the rented accommodation in Suburb Z even though the rental is in the sum of $1,800 per week, an amount that exceeds the totality of the applicant’s income.
At present, X travels to RR School by bus leaving home at 7.10 am. X returns by bus to the Suburb Z property.
When with the respondent, X travels back to the Suburb Z property on Sunday evening by Uber.
The applicant concedes that X can see the respondent as much or as little as he wants. The applicant acknowledges that significant weight should be given to X’s wishes although, it is notable that neither of the parties have given any indication of their understanding of X’s wishes. It is unfortunate that neither party sought a process that would better ascertain the future parenting arrangements that X considered would best suit his needs.
The current arrangement is that rather than X going to school on Monday morning following his weekend with his father, the applicant still seeks that X return to Suburb Z at the conclusion of his time with the respondent. It is agreed that the travel time from the Suburb W property to RR School is about ten minutes.
The applicant’s opposition to X spending Sunday night with the respondent was potentially inconsistent with her acknowledgement that X had reached a stage where he could make his own decisions.
The opposition by the applicant appears to be founded in a contention that X was troubled about his father’s conduct in 2020 consequent upon the assertion that the respondent consumed alcohol to excess, was always angry and at times X was scared of the respondent consequent upon his aggressive conduct.
The applicant was adamant that X was still making comments about the respondent in 2022 which were similar to his expressed concerns in 2020.
Of recent date, X had obtained some casual part-time employment on Friday evenings. To some degree, X’s part-time employment clashed with the current orders that would see X come into the respondent’s care each alternate Friday after school.
The acceptance by X of part-time employment created a difficulty in that the applicant only advised the respondent after X had accepted the job. X finishes work at 10.30 pm and it would be difficult for X then to go to the respondent’s home. The applicant agreed that she could have been more communicative with the respondent but thought that her conduct was consistent with the best way forward in order to protect X from what she considered would be another area of inevitable conflict.
The applicant’s concern and to a lesser extent that of the respondent resulted in X obtaining therapeutic support in 2020. In 2022 X saw the RR School counsellor, Ms UU. It appears that Ms UU saw X in May 2022 and forwarded a short report to the parties (“exhibit 9”). Ms UU holds the qualification of a psychologist. In that capacity, she administered a Depression Anxiety Stress Scale (“DASS”) survey and X’s results scored in the severe range for depression, anxiety and stress.
A support plan was put in place and X’s presentation was monitored with the assistance of feedback from the parties.
Upon further investigation, Ms UU considered that X’s anxiety was centred upon his schoolwork and his assignments in particular, in the period leading up to school exams. The tenor of Ms UU’s communication to the parties centred upon a three-step process to address X’s anxiety by:
(1)Improving X’s organisation skills and help seeking at school;
(2)Reframing how X thinks about his school work; and
(3)Learning skills to calm down/relax when anxious.
Ms UU maintained an active engagement with X until at least April 2023.
By June 2022 Ms UU reported positive improvement in X being able to better manage his school related anxiety and worry.
The applicant completed an enrolment for X to attend Suburb W School on 30 June 2021. The enrolment is consistent with the applicant’s hesitation in committing to X’s continued attendance at RR School.
The more relevant consideration arises from the applicant’s concession that she did not put the respondent’s name down as an emergency contact for X on the school enrolment application. Whilst there was some prevarication in her answers, she ultimately agreed that she did not identify the respondent as X’s father because she wanted to avoid an argument.
The applicant was challenged as to her income and whether she had made full and frank disclosure of income from all sources, but in particular, arising from her consultancy with P Company.
The applicant gave considered evidence as to her observations of X’s current development and behaviour. She agreed that X appeared settled at RR School and enjoyed good friendship with his peers together with a high level of pastoral care in particular by reference to the involvement of Ms UU.
In summary, the applicant considered that X’s current circumstances were to his advantage.
The applicant expressed her concern as to the effect of the conflict between the parties upon X. X was aware that the applicant had been arrested arising from allegations by the respondent that she assaulted him. The applicant had spent a period of time on remand.
Relevant to the current issues likely to impact upon X, the applicant confirmed that she had spoken to X in preparation for the proceedings. As a result, the applicant’s proposal was that if X wanted more or less time with each of the parties then she will facilitate that however if he expresses no view then there is a current underlying order.
The applicant was asked to consider whether it would be difficult for X to tell each of the parties what he wanted to do. Given the current circumstances, the applicant gave examples of X complaining that he was not being listened to and the extent to which she would facilitate X’s wishes if he wanted to see the respondent at times not provided for by the interim orders.
It is not controversial that X communicates with each of the parties directly without interference.
Considerable evidence was adduced from the applicant as to her allegation that the respondent had perpetrated family violence and sexual assault.

The applicant agreed that before her trial affidavit, earlier affidavits together with Notices of Risk were filed and did not raise any allegation of sexual assault or violence. When asked to consider the report of Dr TT, the applicant conceded that no allegations of sexual assault or violence were made.
In early 2021, mid-2021 and mid-2022 the applicant made statements to New South Wales Police in relation to historical allegations of sexual violence and abuse. Ultimately, no Apprehended Domestic Violence Order was issued.
To a significant degree, the applicant’s allegations of family violence and sexual assault were now not considered to be the dominant issue. There is no suggestion that within the scope of the current proceedings the Court was asked to consider on the balance of probabilities that the respondent had perpetrated family violence and had sexually assaulted the applicant. Irrespective of the recognition that X’s age is such that his wishes are likely to be given significant weight, the presentation by the applicant of the serious allegations directed against the respondent underpins a finding that the parties are not able to easily reconcile their differences and would have a manifest inability to co-parent.
At the conclusion of the applicant’s evidence there remained some uncertainty as to the extent of her total income from all sources. The applicant’s Financial Statement of 3 August 2023 did not match her base salary of $154,830 from her employment with P Company. It was accepted by the applicant that the hours engaged in her capacity as a member of the P Company board did not prevent her from engaging in other remunerative employment. The extent of the applicant’s income capacity remains uncertain.
I find that the applicant was a reliable witness particularly in respect of the limited compass of the dispute namely, the extent to which X’s wishes should be given weight and her evidence that her support for X to attend RR School was reluctantly given and only on the condition that either the respondent, or his parents, would pay the substantial school fees, costs and charges.
It is likely that the parties have incurred legal fees that significantly overwhelm the difference between them as to whether there should be an assessment of periodic child support and if so, in what amount.
The respondent
The respondent was asked to consider his Financial Statement of 13 October 2023 and in particular, his inclusion of average weekly income in the sum of $5,299. The respondent acknowledged his income received at the time in his capacity as Managing Director of the B Group but stated that since 19 November 2023 he had not taken a salary at all.
The respondent maintained an obligation to ANZ Bank in the sum of $4,504 per week for the mortgage loan over the Suburb W property. He also conceded that whilst his child support liability had been assessed in the sum of $381 per week (as at October 2023), he had not paid any child support. The respondent also confirmed that the total of his loans to his parents was now in excess of $3,500,000 and his Director’s Loans had now increased from $393,000 to $519,000 consequent upon further Division 7A Director’s Loans.
By reference to Part N Expenses in his Financial Statement, the respondent’s evidence was that the education expenses for X had increased from $730 per week to between $960-$970 with consideration that all material times the respondent’s parents have paid the school expenses for X to attend RR School.
The respondent conceded that his employee payment history and the general ledger report comprising exhibit “23” had not been previously disclosed but rather had been provided in the period leading up to trial.
The respondent did not agree with the proposition that his up-to-date information in respect of mortgage and loan commitments together with the cessation of his income was deliberate.
The respondent was directed to consider the general ledger which sets out his debit loan account with B Pty Ltd. It was conceded that the various drawdowns by the respondent were not just limited to his legal fees but also for other personal expenses other than for the payment of his child support obligations.
The respondent conceded that he had funds in credit in his personal bank account and would have been able to draw down on his loan account to pay the Child Support Assessment as and when it fell due. The respondent’s denial of his financial ability to do so had a hollow ring about it given his belief that the applicant was using the proceedings to in some way punish him. The proposition is readily summarised by the following evidence:[1]
[1] Transcript 28 February 2024, p.7 line l4 to .
[Counsel]: Such that she seeks to punish you?
[Respondent]: I believe so.
[Counsel]:Right. And, by that, you, as I understand it – and, again, please correct me if I’m wrong – suggest to his Honour that by her very application in this court in relation to [X], she’s seeking to punish you?
[Respondent]: I believe so.
[Counsel]:By her very application in this court in relation to child support, she’s seeking to punish you?
[Respondent]: I believe so.
[Counsel]:That is, what, by seeking a contribution to the payment of [X’s] expenses she’s trying to punish you?
[Respondent]: I believe so.
[Counsel]:Right. And by her property application, she’s seeking in some way to punish you?
[Respondent]: I wouldn’t say punish me, no.
[Counsel]:Okay. So, parenting and child support, she is, but not the property application?
[Respondent]: I will withdraw what I’ve said. Actually, yes, with the property application, yes.
To further entrench his position, the respondent considered that the applicant’s opposition to equal time was an indicator of the extent of her malice towards him rather than a consideration of what would be in X’s interest.
The respondent was prepared to concede that the applicant provided high level parenting care for X. The respondent did not consider that he was attempting to take X away from the applicant, but rather that he would like to spend more time with him. Given the extent of hostility, he did not consider that X would be able to independently decide as to the extent of time that he would spend with each of the parties.
It was put to the respondent that he had not considered whether there is any risk to X and his current stability in changing the arrangements. The respondent considered that there was no risk but acknowledged that there was no evidence before the Court as to what X might want nor as to whether there would be any impact of a significantly changed arrangement on X’s current progress and functioning.
The respondent also acknowledged that at one point he sought for the Application for Departure from the Administrative Assessment of Child Support to be dismissed which would leave in place the period child support as determined by the Child Support Agency.
The respondent’s position has now changed and is summarised by the following evidence:[2]
[2] Transcript 28 February 2024, p.28 line 24 to 34.
[Counsel]:Okay. And then, in paragraph 8, you seek essentially an order that says no more periodic child support?
[Respondent]: That is correct.
[Counsel]: From when it stopped being paid by you last year?
[Respondent]: That is correct.
[Counsel]: And that’s the first time you’ve sought that order?
[Respondent]: That’s correct.
[Counsel]:When did you decide you were going to seek that order, sir, or something to that effect?
[Respondent]: Well, in the last hearing we were going to ask whether or not his Honour would consider the amount of money I’m paying in the school fees, for him to consider that and – and take off the periodic payment of child support.
The contention of the respondent is that the tuition fees and other charges arising from X’s enrolment at RR School would render otiose a further obligation to pay periodic child support whether as assessed by the Child Support Agency or by reason of a successful departure application.
The issue of whether X should board at RR School loomed large in the respondent’s evidence.
It is apparent that at one point, the respondent was keen for X to be enrolled as a boarder. Whilst not pursued, the respondent sought orders consistent with X being a weekly boarder. The respondent either changed his position or was prepared to acknowledge that the decision to board was very much a matter for X.
Whilst the respondent disagreed with the applicant’s version of events, it was his position that X expressed a wish not to board in 2024 and importantly, the respondent was prepared to accept X’s decision.
There is a relevance to the proceedings arising out of the respondent’s evidence which goes beyond the narrow issue of X’s potential enrolment as a weekly boarder namely, that the respondent and likely the applicant were prepared to abide X’s wishes. The following extract of evidence goes directly to the weight that the respondent considers should be given to X’s wishes:[3]
[3] Transcript 28 February 2024, p.33 line 17 to 44.
[Counsel]:Okay. Can I ask you about this part of what was put on your behalf as well:
As a […] 15 year old […] it’s likely that notwithstanding whatever orders might be made, that [X] will require that they be altered in a practical sense to meet his wishes from time to time.
[Respondent]: That’s correct.
[Counsel]:       Okay. And that was your position on 1 December?
[Respondent]: That is correct.
[Counsel]:       That hasn’t changed, has it?
[Respondent]: I would actually disagree with that because ‑ ‑ ‑
[Counsel]:       Well, no?‑‑‑
[Respondent]: it’s not [X’s] wishes because there’s a lot of things that have actually – there’s water under the bridge now since 1 December.
[Counsel]:All right. All right. And you went on, or it went on, on your behalf, to say this – this is pages 2 and 3 of that outline, your Honour:
Given his age, there is a further expectation that the parents would need to have some fluidity in his care arrangements. Do you agree still with that proposition?
[Respondent]: Sorry, could you repeat that?
[Counsel]:Yes. “Given [X’s] age, his parents” – you and [Ms Henschel] – “will need to have some fluidity in relation to his care arrangements”?
[Respondent]: I would agree with that.
The respondent was referred to the view expressed by Dr TT in his 2021 report that “[X] impressed as a child who knew his own mind”. At 13 years old, the respondent agreed that X’s wishes should be given substantial weight. Whilst conceding that X’s wishes were an important consideration, the respondent still considered that at 15 years old, he was a minor and that his life needed to be managed rather than left to his own choice.
The respondent qualified his response by acknowledging that certainly by 17 years of age X should be in a position to make his own decisions. The reason for some caution arises from the respondent’s concern that X had commenced vaping, had displayed some behavioural difficulties at school and was considered by the respondent to be “a bit out of control”.
The respondent summarised his view of X’s current functioning as a child who is “just starting to march by the beat of his own drum”. To some extent the respondent’s concern also recognised that if the parties could adopt a cooperative approach, then a more uniform level of parenting could occur.
The evidence of the respondent highlighted the obvious difficulty for the Court given that whilst Dr TT expressed a high level of caution in December 2021 to the orders then sought by the respondent that X live in shared care arrangement with the parties, there is no current evidence other than what might be considered as the wishes and perceptions of each of the parties that would assist in X’s current presentation.
It is not a matter for me to opine why some further evidence that might better illuminate X’s wishes was not obtained. I assume that the parties held some hope that they would be able to reach agreement given X’s age and the clear advantage that inures to him by his continued relationship with each of the parties.
The respondent denied the broad thrust of the applicant’s allegations that he had perpetrated family violence but in particular, aggressive sexual conduct and sexual assault.
The respondent was asked to consider a number of email and text messages passing between the parties. A text message sent by the respondent to the applicant on 7 July 2020 included the following remark:
Our lawyers are going to dig out enough shit on each other, which you and I have already probably fed them, that you will end up with no career […].
The respondent conceded that it might be considered as threatening correspondence and further conceded that on 30 July 2020, he sent an email to the respondent whereby he apologised for some of his behaviour as complained of by the applicant.
As an indication of the relentless nature and toxicity of the litigation, the respondent conceded that in an email of 4 February 2024 the following was said:[4]
As a matter of interest, you’re required to update “[Mr Y]” (board member of [P Company]) with continued updates pursuant to any progression of the “tax evasion” that you have engaged in, has this been adhered to and have you informed APRA of the […] finding?
(As per original)
[4] Exhibit 29.
The respondent denied that it was a threat but did not resile from the nature of the content, the intention to be conveyed and that he made a “Whistle Blowers” complaint to the respondent’s employer.
The respondent conceded that for a period of about four and a half weeks during May and June 2023, X did not spend time with him notwithstanding that during this period, X was supposed to be spending time with the respondent. What occurred was that whilst the respondent was not present, X spent time with the paternal family. The issue is relevant to the proceedings in circumstances where the respondent acknowledged that he did not inform the applicant of his intention not to spend time with X. It is not suggested that there was difficulty with the arrangements made by the respondent for X’s care but rather it highlighted a serious lack of communication as to X’s arrangements.
The explanation provided by the respondent was that if he had informed the applicant that he would be away then she might enter the Suburb W property. It is an unfortunate reflection on the level of hostility between the parties that there is a direct detrimental impact on X’s parenting arrangements.
The respondent acknowledged that he had not paid child support as assessed since 19 October 2023. The respondent’s evidence enables a finding that over an extended period of time and at least as and from August 2021, child support has been paid albeit at times on an irregular basis and with a level of reluctance to pay on the part of the respondent.
The respondent considered that given he does not take an income it is not unreasonable for there to be a nil assessment of child support. In April 2022, the respondent confirmed that he had made an application to the Child Support Agency to change the Child Support Assessment on the basis that he was paying X’s school fees together with various mortgages.
The respondent was asked to consider the effect of his agreement to pay X’s school fees if there was no opposition to his attendance at RR School. The respondent accepted the proposition that the question of school fees should have been considered separately from the question of any child support liability.
In 2022, the respondent advised the Child Support Agency that his income from wages was estimated to be approximately $150,000 per year. In addition, there was some further interest and dividends of minimal amount. What appears not to have been disclosed is the respondent’s acceptance that in the financial year ending 30 June 2022 he had a taxable income of $290,000. The respondent’s explanation was that he assumed the Child Support Agency would eventually pick up the extra income when he lodged the 2022 taxation return.
The respondent agreed that in the 2023 financial year his income was not $180,000 as stated but rather $220,000. That figure was arrived at following the application of a series of losses.
On 17 February 2023, a further application was made by the respondent seeking that the child support assessment be changed because of the respondent’s payment of school fees. The respondent admitted that in effect he wanted a further review even though an earlier review was not successful. Exhibit “36” represents the respondent’s application to change the Child Support Assessment dated 17 February 2023.
The focus of the respondent’s evidence turned to a consideration of an entity known as B7 Pty Ltd in which the respondent is the sole beneficial owner of the shares. In the 2023 year a dividend was declared by B7 Pty Ltd in the sum of $350,000. $50,000 was paid to the respondent and his co-director received $300,000. The respondent acknowledged that given he controlled the entity it was a matter for him as to how the dividend was to be distributed. It is conceded that the receipt of a dividend of $50,000 was not raised in his documents.
B7 Pty Ltd is part of the B Group. I accept that in circumstances where the company was entirely controlled by the respondent, there is no circumstance where he could assert a lack of knowledge. A previous assertion by the respondent that he had not received any dividend for some time due to the financial position of the company was not able to be sustained. The respondent admitted that the assertion was false and not properly representative of his receipt of a dividend, although he maintained that he did not knowingly misrepresent his financial position.
A consideration of the B Group financials for the 2023 financial year revealed that at the close of 2022, the respondent owed the company $341,000, at the close of 2023 financial year he owed $289,315.20 and a further amount of $224,330.14 making a total indebtedness to the company of $513,645 being a $171,882 increase over the debit loan account amount for the 2022 financial year.
The respondent accepted that his loan account did not appear or form part of his taxable income.
The proposition put to the respondent was that the end result of the 2023 financial year was that the respondent had admitted income of $150,000 and an additional amount of $171,000 being the increase in the loan account. The respondent also received $220,000 from the sale of shares which despite the gross capital gain was entirely offset against a series of capital losses.
The respondent accepted that in the financial year ending 2023 he was in a position where he had funds available to him of $431,000.
The respondent was challenged as to his assertion that he was in a parlous financial position in February 2023. The respondent accepted that he had made voluntary superannuation contributions.
Given the level of control that the respondent concedes he has, it is a matter for him as to how he deals with funds that may be available in terms of payment by way of a wage, a loan account or a dividend.
The cost involved of the respondent choosing to retain and remain in the Suburb W property equates to about $9,500 a month. There was some uncertainty as to whether the respondent was paying the mortgage or whether his parents were assisting. A more detailed consideration from the respondent was to the effect that whilst his parents were not directly paying the mortgage instalments, they were generous in helping him out financially with legal fees and other expenses.
The respondent filed a Financial Statement on 13 October 2023. His total average weekly income of $5,299 is comprised of a salary of $4,807 with employment benefits including superannuation contributions, internet and phone, motor vehicle expenses, petrol and maintenance of a further $492. His total weekly personal expenditure is listed at $11,055 which is principally comprised of income tax of $1,730, mortgage repayments for the Suburb W property of $4,504 and a further mortgage payment of $1,026 secured over the Suburb W property but used to assist in the purchase of Town O.

It was readily accepted by the respondent that his income at the time of completing the Financial Statement was insufficient to meet his personal expenditure with the situation being further exacerbated by the respondent’s proposition that he has not been drawing a wage since October 2023.
The respondent’s evidence did not provide any material clarity to the arrangements that existed with his parents. It is likely that the respondent’s parents are contributing to his general expenses. There is no doubt that they have made significant contributions to the respondent’s legal fees and it is not controversial that they continue to honour their commitment to pay X’s school fees. How much extra is being provided to the respondent for his expenses and financial benefit is not known.
A focus of the respondent’s evidence was upon his election to remain in the Suburb W property. The explanation given by the respondent was that the Suburb W property had been purchased in 2018 and he was “entitled” to live in a nice house given that his parents had contributed significantly to the property. He expressed a similar sentiment of entitlement with respect to overseas travel and recreational vehicle ownership. The implication was that the respondent elected to divert his resources to lifestyle matters rather than paying child support.
The respondent was candid in his evidence regarding X. I accept that there is a close bond between them and that he holds a genuine belief that there would be an easy transition from X living in the primary care of the applicant to a shared care outcome. There was, however, a demonstrable lack of insight on the part of the respondent in minimising the hurdle that exists not just by sheer dint of X being 15 years of age, but the damage inflicted upon the child consequent upon the protracted litigation.
The respondent was at times evasive when attempting to explain the context of his financial arrangements with the B Group and his parents.
Dr TT
By joint letter of instruction dated 18 October 2021, Dr TT (“the report writer”) was instructed to prepare an expert report in relation to X’s future parenting arrangements and, as was relevant at the time, his schooling (exhibit “11”).
There is no challenge to the expertise of the report writer. He is a clinical and forensic psychologist and holds graduate and post-graduate qualifications.
In addition to his own private clinical caseload, he has also prepared psychological assessments for children and adults involved in parenting litigation and has given evidence in a number of court proceedings. The report prepared by Dr TT was read into evidence and he was not required for cross examination.
I am satisfied that he was presented with the relevant material and adequately summarised the background to the dispute.
Both parties presented as high functioning adults with little insight, in terms of their presentation that the report writer considered may present as a risk to the child.
It was however evident to the report writer in 2021 that the litigation had the potential to overwhelm the parties with X potentially being detrimentally affected.
At the time, the report writer did not find that either of the parties presented with psychopathology that would meet a diagnostic criteria or that their different parenting styles would impact adversely on X.
At the time of interview X was aged 12 years. He presented as being relaxed and impressed as a child who knew his own mind but was prepared to adapt to the various options that were presented to him. An important consideration was that X considered that his parents each presented with good qualities, and he enjoyed the company of the extended maternal and paternal families. Again, X was very much aware of the litigation and the impact and adverse consequences of the behaviour of each of the parties.
X expressed no concern at staying at the respondent’s home and whilst he preferred to sleep at the applicant’s home, he was broadly open to spending two or three days a fortnight with the respondent.
The report writer considered the weight that should be given to X’s wishes which is adequately reflected in the following extract from the report:
43.… in this case, however, no evidence was provided to cause this clinician to doubt this 12 year subject child’s own expressed view about his relationship with both his parents as being significant, safe, supportive, and in many ways enjoyable. Soon to turn 13 years of age, [X] impressed as a relatively well-adjusted child whose views deserve to be accorded substantial weight, and who might in any case soon make decisions of his own in response to his changing perceptions of his needs. For now, though, he expressed a preference for the adults in his life working out an arrangement in his best interests. The Court should have confidence in his capacity to express his views, and likewise the parents should be mindful that their child is clearly requesting them not make him the decision maker for their conflict.
In 2021, the issues under consideration were not significantly different to the current contest before the Court. The respondent sought a transition to equal time whereas the applicant did not consider it was in X’s best interest. The report writer summarised his position as to equal time as follows:
46.Commonly, in broadly comparable situations, the parties might agree to, or be ordered to follow, an equal time arrangement – and it is not difficult to imagine such an arrangement eventually working here. That said, in this case the Court may consider that certain factors preferentially support an arrangement in which [the applicant] continues to have majority care of the subject child with [the respondent] increasing his share to substantial-but-not-equal time. Perhaps the most reliable indicator that some such arrangement may better serve [X’s] interests in this case can be ascertained from [X’s] explanation of his own stated preference. It is not suggested that [X] prefers his mother’s company per se, but as he said, he prefers to spend school nights in her care: he feels more comfortable in her home, and is more confident in her availability for academic support…
There is some support provided by the report writer for X to spend more weekend time with the respondent particularly given the ease by which he could travel from Suburb W to RR School whereas the journey is longer from Suburb Z and certainly more difficult from the Town O property.
It is apparent that the report writer considered the potential to incrementally increase the time that X spends with the respondent but that would of necessity, be tempered by a consideration of the respondent’s availability and X’s wishes.
An important consideration was that the report writer considered before any decision was made as to whether there should be equal time, a further assessment should be undertaken. The wisdom of such an approach was to take into account the views and perceptions as may be expressed by X consequent upon his ability to more maturely reflect on his relationship with each of the parties.
In short, X was determined to be high functioning and as he grows older it is more likely that he will have a firm view as to his preferred living arrangements.
STATUTORY FRAMEWORK
I consider it necessary that I adopt the approach that considers the practical reality of the separate parenting proposals of the parties.
Section 60CA of the Family Law Act 1975 (Cth) (“the Act”), requires that I have the best interests of the child as the paramount consideration. The best interest test is to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I propose to adopt the following approach:-
(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
(5)Have regard to additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced by each of the parties, in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act, are to be considered and if more weight is to be given to one or more of the matters raised, then it must be the subject of delineation and comment;
(7)Section 61DA of the Act requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having appropriate regard to the matters as set out in s 61DA(2) which would rebut the presumption if a person or persons living with the child has engaged in:-
(a)abuse of the child or another child who, at the time, was a member of the parents’ family, (or the other persons family); or
(b)family violence.
(8)Section 61DA(4) of the Act provides that the presumption may be rebutted by evidence that satisfies the Court it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The parties agree that they should have equal shared parental responsibility for X.
Consistent with the legislative pathway, the respondent seeks an equal time order. The applicant resists an equal time order and considers that the presumption should be rebutted given the overt hostility between the parties arising from the litigation and the reality, as a consequence of X’s age, is that he may very well resist an outcome that is not to his liking.
It is reluctantly accepted by the respondent that at some point in the next two years, the parenting orders that he seeks will have no utility.
PARENTING CONSIDERATIONS
Meaningful relationship
As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111] “a chance of a meaningful relationship…which is beneficial to” the child was likely to be to the child’s advantage and the absence of such a relationship had “the potential to cause [the child] harm in the long term”.
As considered, the Court is required to focus on the practicality of each of the party’s proposal and to consider the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
The parties agree that it is important for X to maintain a relationship with each of them. It is not suggested by either party that X does not have a meaningful relationship with each of them.
There is considerable support for the strength of the underlying relationship between X and each of the parties arising from matters raised by Dr TT albeit concerning his observations made in 2020/2021.
It is also not controversial that the current arrangements in any way limit or determine the existing relationship that X has with the applicant but in particular, with the respondent.
Is the child at risk?
It is not suggested that either of the parties presents as a significant risk to X other than the anxiety and emotional distress experienced by him as a direct consequence of the toxic relationship between the parties and the ongoing and unrelenting litigation.
It was self-evident in the presentation of each of the parties that they hold the other in deep mistrust. A prime example is the reluctance of the respondent to advise the applicant of his overseas travel in case the applicant used the opportunity to re-enter the Suburb W property.
X is well aware of the level of disharmony between the parties and whilst it is only a matter of speculation, to the extent that the respondent considers there are some behavioural concerns evident in X’s behaviour, the extent to which that may be a reaction to the ongoing conflict is a potential factor.
Wishes of the child
It is difficult to assess whether X currently holds a strong view given neither party, and likely for different reasons, sought to undertake an update or addendum assessment consistent with the suggestion of Dr TT.
In 2021 Dr TT was confident that X enjoyed his time with the respondent and whilst wanting to remain in the primary care of the applicant, in particular during the school week, he was happy to spend more time with the respondent over the weekend.
There is also evidence that supports a finding that X enjoys his time with the maternal and paternal extended families.
It is not a matter about which the Court can speculate as to whether X’s wishes in 2021 reflect his current position.
There is some evidence that the parties are respectful of X’s wishes in terms of his decision not to seek to be a boarder at his school.
Each of the parties acknowledge that at some point, as to the applicant that time is now and as to the respondent it is when X turns 17 years of age, that it is proper for X to determine the arrangements most suitable to him.
I place weight on X’s wishes as expressed to Dr TT in 2021 and that a comfortable arrangement has developed with X living primarily with the applicant and spending regular time with the respondent.
Any order that is to be made must derive a level of confidence from the evidence and not some personal view of what may or may not be the correct outcome.
Parenting considerations should always have a level of caution about them particularly when the Court is being asked to speculate on what might be the case today consequent upon expert evidence in 2021 and the views of each of the parties likely coloured by animosity and mistrust.
What is certain is that to the extent there is evidence upon which the Court can rely, significant weight should be given to X’s wishes.
The nature of the relationship with the parties
X has a strong emotional attachment with each of the parties and it is likely to remain that way irrespective of the orders that are made.
The likely effect of any change in the child’s circumstances
The applicant seeks that the current interim orders remain in place but subject to X’s wishes.
A more modest increase in time spent with the respondent would represent little or no change to X’s current circumstances given that in 2021 he was comfortable with spending more time with the respondent providing it was over the weekend.
A change to equal time as sought by the respondent is more problematic in that there is no evidence that would assist the Court in being able to determine whether it would or would not be in X’s best interest.
The advantages and disadvantages of the separate proposals of the parties
The applicant seeks that there be what is in effect a safety net put in place by retaining the current parenting arrangements albeit subject to change and alteration depending upon X’s wishes. It is not known as to the extent to which X will or will not comply with orders but given he transitions happily between the parties there is some confidence that a meaningful relationship will be maintained at least for the next few years whereupon it is likely the orders will have little utility.
An increase in time with the respondent would have a practical benefit in that the Suburb W property is geographically close to RR School and there is little advantage to X in returning to the applicant’s home on a Sunday night and then travelling to school Monday morning.
The overarching consideration is the unrelenting hostility between the parties. There was little evidence demonstrated during the proceedings to suggest that the parties are able to put aside their differences for X’s benefit. It is regrettable that the hostility remains overt and ever present and whilst a matter for the parties, the consequence is that the Court has no evidence nor can be confident that the parties could reach appropriate consensus.
There is significant disadvantage to the equal time order proposed by the respondent in that it is likely to enmesh and entrench X in the dispute. There is disadvantage in the applicant’s proposal that X’s time with the respondent should be the subject of his wishes. Dr TT opined that X wanted some of the decision making to be resolved by the parties namely, that there is to be an underlying framework.
I consider that the evidence supports a finding that X’s time with the respondent should be increased and to that end, I propose to order that X spend each alternate weekend with the respondent from the conclusion of school on Friday to the commencement of school on Monday and an overnight in the intervening Tuesday. The time spent with the respondent is not to be the subject of X’s wishes until he reaches the age of 16 years whereupon the orders that I propose to make will be the subject of the X’s wishes.
Whilst I consider that the parties seem eager to engage in ongoing litigation, by sheer efflux of time, the parenting arrangements in respect of X will leave little or no opportunity for argument.
CHILD SUPPORT
The orders sought by the applicant are set out in the Outline of Case document filed 1 December 2023 as follows:
32.That by way of departure from the Child Support Assessment issued on 28 July 2023 and all subsequent assessments, the [respondent] pay to the [applicant] periodic child support in the of $500.00 per week, such amount to be indexed annually by the Child Support Agency in accordance with the CPI.
33. Pursuant to s 123 of the Assessment Act, and in addition to that to be paid by the [respondent by way of periodic child support], [the respondent] shall pay and be responsible for payment of all costs and fees whatsoever relating to the child’s enrolment at [RR School], including but not limited to annual school fees, tuition and coaching fees, billable expenses, uniforms, devices, books and boarding fees (if applicable) and shall attend to the payment as and when they fall due within fourteen (14) days of the relevant account, invoice, receipt or statement.
34.In the event the [applicant] pays any expense for which the [respondent] is otherwise liable pursuant to [child support] orders, then the [applicant] shall provide to the [respondent] a copy of the relevant account, invoice, receipt or statement evidencing the expenses paid by her and the [respondent] shall reimburse that account into the [applicant]’s nominated bank account within seven (7) days and the [respondent] shall at that time confirm to the [applicant] that payment has been made to the account.
For his part, the respondent seeks the following orders that:
(1)He shall pay the school fees and educational costs of X attending RR School, until the conclusion of the school year 2027.
(2)He shall pay no periodic or other child support for the applicant and any child support assessment rendered by the Child Support Agency to be reduced to nil from the date of these orders until the child X completes his HSC and any arrears of periodic child support be reduced to nil.
The Court does not have unfettered jurisdiction in relation to child support and it should not be considered that in the ordinary course the Court has power to depart from a Child Support Assessment if there has not been a completed application by the Child Support Agency and then the Administrative Appeals Tribunal.
Section 116(1) of the Assessment Act allows a liable parent or carer to apply to a Court having jurisdiction under the Act for an order of child support if in the special circumstances of the case both of the following apply:
(i)the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under the Assessment Act; and
(ii)the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case.

Section 117(1) of the Assessment Act considers that in the special circumstances of the case, the following matters need to be satisfied before a Court may depart from the Administrative Assessment:
(1)Where one or more grounds for the departure under s 117(2) of the Assessment Act exists;
(2)It would be just and equitable as regards to the children, the carer entitled to child support and the liable parent within the meaning of s 117(4); and
(3)It would be otherwise proper within the meaning of s 117(5) to make a particular order.
Thereafter, s 124 of the Assessment Act enables a court to make orders for the payment of child support other than in the form of a periodic amount paid to the carer entitled to child support if it is satisfied of the matters raised in s 117.
Before the Court can entertain a Departure Application the Child Support Registrar needs to be served with Notice of the Proceedings. Exhibit “4” comprises correspondence to the Registrar dated 30 November 2023 setting out the orders sought by the applicant. It is a matter of record that the Registrar did not seek to intervene in the proceedings or be heard.
Jurisdiction is based upon there being a Child Support Assessment as evidenced by the most recent assessment comprising exhibit “7” for the period 15 December 2023 to 31 March 2024.
There are current proceedings before the Court both in respect to the unresolved property settlement and division between the parties but also a final order, having now been made, in respect of the future parenting arrangements for X.
For the purposes of child support, X is the subject child. Certainly, up until X turns 16, the orders are predicated on the basis that X will remain in the primary care of the applicant (the carer) and spend time with the respondent (the liable parent).
The applicant seeks that there be a departure order predicated upon her contention that X will remain in her primary care even though it is acknowledged by her that X may well choose to spend more time with the respondent. Whilst the parties may not have considered that it was necessary to present evidence that would assist the Court to give weight to X’s current wishes and perceptions, the evidentiary lacuna allows the Court to speculate, at best, as to X’s future parenting arrangements.
There is certainty in the future parenting arrangements up to X reaching 16 years of age. During that period X will remain in the primary care of the applicant but spend significant time in the care of the respondent. The best that can be properly considered is the uncontested evidence of Dr TT that as X approached his age of majority it would not be surprising if he spent increasingly more time with the respondent even up to equal time. A reasonable finding on the evidence is that X will likely remain in the primary care of the applicant for the period up to the middle of 2025.
The further area of uncertainty arises if the parties and X consider that there would be a benefit for X to become a day boarder. The consequence of that would be most of his day‑to‑day expenses would be included in the boarding fees and associated charges.
As such, I do not consider that there is sufficient evidence to predict X’s parenting arrangements beyond 30 June 2025.
For reasons that are different, both parties seek that the respondent be responsible for X’s school fees, costs and related charges. It is the applicant’s case that X attends RR School only because the respondent and his family consider that it is important for him to do so and conditional upon the respondent bearing all of the fees and charges. I do not know whether the orders sought by the applicant as to the payment by the respondent of the school fees is relevant only if X continues at RR School or whether there is a mandatory aspect to the order namely, that the applicant now seeks that X remain enrolled in RR School.
To some extent, it is a difference without a distinction. I am satisfied on the evidence that given both parties seek a departure from the Administrative Assessment, I consider that at the very least, a departure order should be made broadly in terms of the orders sought by each of the parties as to the respondent’s obligation to pay school fees and related charges for X’s continued attendance at RR School.
The more contentious issue is whether the respondent should pay a periodic assessment of child support in a fixed sum and if so, for how long, or whether the significant expense is incurred by the respondent in paying for X to attend RR School should make otiose a requirement that the respondent pay a periodic amount.
The Full Court in Gilmour & Gilmour (1995) FLC 92-591 and Gyselman & Gyselman (1992) FLC 92-279 determined that pursuant to s 117 of the Assessment Act the Court may depart from an Administrative Assessment if satisfied of the following matters:
(a)That one or more of the grounds for departure under s 117(2) of the Assessment Act exist or exists; and
(b)That it would be:
(i)Just and equitable in regard the child, the carer entitled to child support and liable parent; and
(ii)Otherwise proper within the meaning of s 117(5) to make a particular order.
Section 124 of the Assessment Act enables the Court to order the payment of child support in a non-periodic form or amount to the carer if it is satisfied of the matters required under the s 117.
Grounds for departure
The applicant relies upon s 117(2)(b)(ii) of the Assessment Act namely: “because the child is being cared for, educated or trained in a manner that was expected by his or her parents”; s 117(2)(c)(ia) “because of the income, property and financial resources of either parent; and s 177(2)(c)(ib) “because of the earning capacity of either parent”.
It is accepted that if a ground for a departure order is made out then s 118(1)(a) of the Assessment Act enables the Court to vary the annual rate of child support payable by a parent, and s 123(1)(a) and s 124 provide for child support to be paid other than in the form of a periodic amount, in this case, the payment by the respondent of X’s school fees and related charges.
There is a significant issue as to the extent of the agreement, or lack thereof, as to the manner in which X is to be educated. An earlier position of the applicant was that X should go to Suburb W School. The respondent has always held a strong position, reinforced by his family, that X should follow the paternal family tradition of an ongoing connection with RR School.
Were it to be the evidence that both parties were supportive of X continuing to attend at RR School this in and of itself would be a relevant ground for departure in circumstances where the respondent would seek a departure from the periodic administrative assessment to nil dollars given his assertion that the school fees at RR School are substantial.
It is not suggested by the applicant that the tuition fees for X are insignificant and would be made more onerous were he to be a day border.
The argument of the applicant is that X attends RR School at the behest of the respondent and initially, over her objection. Simply put, it is a matter for the respondent and if he chooses for X to remain at RR School, at his expense, then that should be ignored for the purposes of determining a Child Support Assessment.
In the circumstances of the case, I do not consider that s 117(2)(b)(ii) of the Assessment Act can be properly considered as a ground for departure. I have given consideration whether the separate position of each of the parties can amount to a consent order pursuant to s 126. There is clear consent that for so long as X shall attend RR School the respondent will pay all fees and expenses without contribution from the applicant. The applicant does not seek an order that the child attend RR School until he completes his secondary school education. The order should be conditional on the child’s school enrolment being at the respondent’s election.
A further focus is that pursuant to s 117(2)(c)(ia) and s 117(2)(c)(ib) of the Assessment Act, the income, property and financial resources of the either party together with their income capacity, represents a ground for departure.
It is acknowledged by the parties that the pool of property will be substantial. That is not to suggest that the parties have reached an agreement as to a concluded balance sheet setting out assets and liabilities, but even on the most pessimistic version of events, the net worth of the parties is substantial.
At a more granular level, despite some challenge, the applicant’s income is straightforward and broadly in keeping her evidence, is about $154,000 with the potential for some further minor benefit to be received by her.
By reference to the applicant’s Financial Statement sealed 3 August 2023, she has total personal weekly expenditure of $5,462 principally comprised of fixed personal expenditure including her rent for the Suburb Z property at $1,800 and $2,879 for average weekly discretionary expenses. By reference to Part N of the Financial Statement, the amount attributable to the applicant’s care of X is in the sum of $1,056.
In the absence of evidence, it is arguable that the following items of expenditure may be considered either excessive or unnecessary:

Item Amount

Children’s activities $150

Child minding $100

Medical, dental and optical $145

Entertainment/hobbies $100

Holidays $100

There is little evidence that assists in determining some or all of the purported costs arising from X’s care, but they are capable of reasonable substantiation.
To some extent, it may be a matter of tinkering around the edges, but I propose to reduce the amount claimed by the applicant of $1056 by $350 such that the total amount is $706.
The same level of certainty as to the applicant’s income and financial resources cannot be said of the respondent.
For reasons that are not established on the evidence, the contention of the respondent is that the B Group is in a parlous state since October 2023 he has not received an income by way of salary or wage and as such, he has not paid the child support sum as assessed.
At first consideration, the respondent presents as having nil income. Even so, by reference to the management account produced to the Court by the respondent, the evidence strongly supports a finding that the respondent had access to a loan account with B Group and from 1 July 2023 to 31 December 2023 he had drawn on that loan account to the extent of $163,353.67.
In addition, for the year ending 2023 the respondent had access to about $431,000 by way of wages, loan account or tax-free capital gain.
A significant financial resource of the respondent appears to be the preparedness of his parents to provide extensive financial support. It is not controversial that the respondent receives ongoing financial assistance from his parents. They have contributed substantially to his legal fees and arising from the undertaking given by the respondent’s mother in 2022, X’s school fees, costs and related charges are paid by them. There is no evidence as to any amount that the respondent has paid for X’s school fees even though he includes an amount for education expenses of $730 per week in his Financial Statement filed 13 October 2023.
In evidence, the respondent agreed that notwithstanding he was financially compromised, he retains an interest in a recreational vehicle, albeit one that he considers is inexpensive.
In 2023, the respondent extended work related travel to include a holiday component. Of greater moment however is the continued expenditure relating to the Suburb W mortgage of nearly $5,000 per week. The respondent considers that he is “entitled” to live in a pleasant home, have an interest in a recreational vehicle given his location and from time to time to enjoy a holiday.
Again, the uncertainty as to the respondent’s financial position arises out of the inherent inaccuracy of his financial circumstances both as to income and expenditure and in particular, the extent to which he receives support from his parents.
A reasonable example is that in his Part N expenses the sum of $730 is listed as the education expenses including fees and levies for X. The evidence is that currently the respondent does not pay those fees.
Just and equitable
Having determined that a ground for departure has been established, the Court’s power is not limited to the topic or scope of the established ground. I am satisfied that ground s 117(2)(b)(ii) of the Assessment Act is made out in the special circumstances of the case.
The Court is then required to consider the relevant matters as set out in s 117(4) of the Assessment Act.
The parties have the primary obligation and duty to maintain the child. That duty has priority over all commitments of each of the parties other than as may be necessary to enable them to support themselves. In this case, the parties do not have a duty to maintain any other children or other dependent adults.
I am obliged to consider the income, earning capacity and financial resources of the parties when determining an appropriate level of child support liability. The parties will need to meet the liability of the child equitably.
Needs of the child
As has been discussed, the respective financial circumstances of the parties provide limited assistance although there is some better level of confidence with respect to the applicant’s Financial Statement.
Taking into account the applicant’s income from her employment with P Company at $154,430 per annum, I also bring to account further income derived from S Pty Ltd of $17,000 and a modest honorarium received from her involvement with a board of $4,000. The total income available to the applicant is $175,430. This equates to a weekly income amount rounded up to $3,370.
The Part G personal expenditure of the applicant involves the following fixed expenses:

Item Amount

Income tax (as at 7 August 2023) $337

Superannuation contribution $134

Rent on Suburb Z property $1,800

Rates and levies $6

Motor vehicle insurance $33

Home contents insurance $10

Health insurance $90

Motor registration $24

Credit card expenses $149

TOTAL $2,583

The significant areas of uncertainty relate to the tax that would be paid on income of $175,430. At present, it will be assessed at the average rate of 30.4 per cent with a marginal tax rate of 39 per cent. In broad terms, the applicant’s net pay would be $122,000 with total tax of $53,317 or $1,025 per week. If the applicant’s income tax of $337 is adjusted to $1,025 the total fixed expenditure on a weekly basis is $3,271.
As discussed, an issue arises in respect of the applicant’s position that she has in effect two places of principal residence. I accept that it would not be possible to commute from Town O to RR School each day as a day student. That alone does not justify the additional expense of the applicant’s Suburb Z rental of $1,800 per week. A similar consideration arises in regard to the respondent continuing to live in the Suburb W property with a mortgage repayment of nearly $5,000 per week. The determination is not intended to be a value judgment of the manner in which each of the parties consider they should be entitled to enjoy a high standard of living but rather the extent to which it would impact on their separate financial capacity to make adequate provisions for X.
I propose to reduce the applicant’s fixed expenditure by the Suburb Z rental of $1,800 to $1,471 per week. A consideration of the Part N expenses is made difficult by a lack of evidence in support of the various items.
Exercising my discretion, I do not consider that the total expenses for X at $1,056 per week is reasonably incurred.
Whilst not an absolute guide, the costs of a child in X’s circumstances, by reference to the income of each of the parties, age, and circumstance i.e. a child over the age of 13 according to the “Cost of Children” table, is $31,359. The current costs as assessed by the applicant are $54,912.
A focus on the amounts claimed for household supplies, children’s activities, childminding, entertainment and holidays total $529. I propose to reduce the overall average weekly expenses attributed to X by $350. The total Part N expenses are therefore $706 per week.
The total annual expenses for X is therefore adjusted to approximately $36,712.
I am not able to ascertain with any confidence the income as expressed by the respondent either in his Financial Statement or in his evidence beyond a finding that he has reliable access to money either by way of dividend from his involvement with B Group, a capacity to draw down extensively on his loan account and an unspecified but broadly open ended commitment of support from his parents.
The Part N expenses for X, as set out in the respondent’s Financial Statement filed 13 October 2023, total $1,057 per week. They are relatively modest save as to the amount of $730 for X’s education expenses including fees and levies. I propose to exclude that item together with the component for holidays in the sum of $57, leaving an amount of $270 per week. Given that X will spend two extra nights with the respondent, the amount attributed to the respondent’s expenditure for X is the best that can be done.
Taking into account the joint expenses for X incurred by each of the parties, the applicant at $706 per week and the respondent at $270 per week, the total is $976. If each of the parties share equally in X’s expenses, then each should be responsible for about $488. Taking into account the respondent has expenses of $270 per week, a reasonable amount to be paid by the respondent is $218 which represents a $100 increase over the amount calculated in the most recent Child Support Assessment.
The earning capacity of each parent who is a party to the proceedings
Without being able to be precise, I consider the evidence supports a finding that the respondent’s income or his financial resources are likely to be in excess of that of the applicant.
It is an unfortunate observation that the legal fees incurred by each of the parties are substantial. Moreover, the likely costs incurred in relation to the narrow issue of Child Support Departure Application will far exceed the benefit achieved. To the extent that any outcome could be described as a victory, it is pyrrhic.
The amount of the periodic assessment of child support should be set at $218 per week.
Otherwise proper
Section 117(5) of the Assessment Act provides that in determining whether it would be otherwise proper to make a particular order under the division the Court must have regard to:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b) the effect that the making of the order would have on:
(i)any entitlement of the child or carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii)the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
Neither of the parties are in receipt of an income tested benefit, pension or allowance.
The parties have substantial assets and as such, I consider that it would be otherwise proper for a departure order to be made.
CONCLUSION
For reasons that are best understood by the parties, evidence was not presented as to X’s current wishes and perceptions. There is no doubt that such evidence could have been obtained and indeed Dr TT in 2021 foreshadowed that it would be a logical and further step as X became older.
The consequence is that it removes the ability to determine where X is likely to reside over the next two years. The best that I can do is to determine that X is likely to remain in the primary care of the applicant until 30 June 2025.

An unfortunate consequence of the trial as to the substantive issues of property settlement and division being adjourned on two occasions will likely mean that the litigation will be heard in the middle of 2025.
The circumstances of each of the parties, and possibly that of X in terms of the extent of time he will spend with each of the parties, may be better known.
The result is that I propose to order that the respondent pay periodic child support fixed in the sum of $218 per week for the period from the date of this order to 30 June 2025. Thereafter, given that there will be over one year before X turns eighteen, the orders will allow either an agreement to be reached between the parties but in the absence of agreement, then an assessment to be determined pursuant to the administrative process.
It must be remembered that a Court should be reluctant to engage in issues of child support in circumstances where there is a legislative process to enable an administrative outcome to be achieved.
I make orders as appear at the commencement of these reasons.

I certify that the preceding two hundred and seventy-four (274) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.
Associate:
Dated: 23 May 2024

File number(s):	SYC 6123 of 2020
Judgment of:	BERMAN J
Date of judgment:	23 May 2024
Catchwords:	FAMILY LAW – CHILDREN – With who the child lives with and spends time with – Where the parties are unable to agree parenting arrangements for a 15-year-old child – Where the parties’ have a deep mistrust for each other and have been engaged in protracted litigation for over 4 years – Where the child currently lives with the applicant and spends each alternate weekend with the respondent – Where the respondent seeks equal shared care – Consideration of the child’s wishes – Where each party proposes that the child’s time spending be subject to his wishes – Where the evidence suggests significant weight should be attributed to the child’s wishes – Where there is insufficient evidence to make parenting arrangements beyond 30 June 2025 – Orders made for time spending until the child is 16 years – Orders to be subject to the child’s wishes following turning 16. FAMILY LAW – CHILD SUPPORT – Application for departure – Where the applicant seeks a departure order for periodic payments and the payment of private school fees – Where the respondent seeks a departure solely for payment of private school fees – Where the applicant does not support the child attending at the private school – Where the respondent presses for the child to attend the private school – Consideration of whether the respondent should make periodic payments – Consideration of whether the payment of private school fees makes otiose the requirement for periodic payments – Order for periodic payments and private school fees.
Legislation:	Child Support (Assessment) Act 1989 (Cth) Part VII, ss 116, 117, 124. Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA.
Cases cited:	Baglio & Baglio [2013] FamCA 105 Gilmour & Gilmour (1995) FLC 92-591 Gyselman & Gyselman (1992) FLC 92-279
Division:	Division 1 First Instance
Number of paragraphs:	274
Date of hearing:	4 – 6 December 2023 & 26 – 29 February 2024
Place:	Heard in Sydney, delivered in Adelaide (via MS Teams)
Counsel for the Applicant:	Mr Kearney SC
Solicitor for the Applicant:	Karras Partners Lawyers
Counsel for the Respondent:	Ms Gillies SC
Solicitor for the Respondent:	ATW Family Law

SYC 6123 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS HENSCHEL Applicant
AND:	MR SARTRE Respondent

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	23 MAY 2024

Item	Amount
Children’s activities	$150
Child minding	$100
Medical, dental and optical	$145
Entertainment/hobbies	$100
Holidays	$100

Item	Amount
Income tax (as at 7 August 2023)	$337
Superannuation contribution	$134
Rent on Suburb Z property	$1,800
Rates and levies	$6
Motor vehicle insurance	$33
Home contents insurance	$10
Health insurance	$90
Motor registration	$24
Credit card expenses	$149
TOTAL	$2,583