Herouz & Herouz - [2021] FamCA 112

FAMILY COURT OF AUSTRALIA
Herouz & Herouz [2021] FamCA 112

File number(s): SYC 4915 of 2017

Judgment of: MCCLELLAND DCJ

Date of judgment: 15 March 2021

Catchwords:
FAMILY LAW – CHILDREN – Best interests of the children – Where the mother seeks orders for sole parental responsibility and for the children to live with her and spend alternate weekends with the father – Where the father and the Independent Children’s Lawyer seek orders for shared parental responsibility and for the children to spend equal time with the parents – Where the mother asserts risk to the children’s emotional and psychological wellbeing in the extended care of the father – Where the Court finds the main risk to the children is continued exposure to the parental conflict – Orders made for shared parental responsibility and for the children to live with the mother and spend substantial and significant time with the father.

FAMILY LAW – PROPERTY – Final property orders – Where the parties seek orders for an adjustment of the matrimonial property pool – Where the Court finds that the contributions that the parties made during the course of their relationship is equal – Where The Court determines the husband is entitled to a 2.5% adjustment in his favour as a result of a greater initial contribution – Where the Court finds that the wife is entitled to a 10% adjustment on the basis of s 75(2) factors in respect to the career sacrifices she has made and to take on homemaker and parenting responsibilities which has enabled the husband to advance in his career – Orders made for a 57.5 per cent distribution of the matrimonial asset pool in favour of the wife.

FAMILY LAW – CHILD SUPPORT – Child support departure orders – Where the mother seeks child support departure orders for non-periodic payments of the children’s school and medical expenses – Where the parties acknowledge that the father currently pays those expenses – Consideration of the ss 116 and 117 Child Support (Assessment) Act 1989 (Cth) – Where the Court concludes that s 116(1)(b) is a jurisdictional precondition for making child support departure orders – Application dismissed.

Legislation:
Family Law Act 1975 (Cth) ss 4AB, 43, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 75(2), 79

Evidence Act 1995 (Cth) s 140

Child Support (Assessment) Act 1989 (Cth) ss 116, 117

Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth)

Tribunals Amalgamation Act 2015 (Cth)

Cases cited:
A v A (1998) FLC 92-800

Adamson & Adamson (2014) FLC 93-622

B and B (1993) FLC 92-357

Blinko & Blinko [2015] FamCAFC 146

Calder & Calder (2016) FLC 93-691

Carmel-Fevia & Fevia (No. 3) [2012] FamCA 631

Coghlan and Coghlan (2005) FLC 93-220

Deiter & Deiter [2011] FamCAFC 82

Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5

DJM and JLM (1998) FLC 92-816

Drewett & Drewett [2012] FamCA 320

Dundas & Blake (2013) FLC 93-552

Fields & Smith (2015) FLC 93-638

Grier v Malphas (2016) 55 Fam LR 107

Gyselman and Gyselman (1992) FLC 92-279

Harris & Ellis [2011] FamCAFC 90

Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143

Jabour & Jabour (2019) FLC 93-898

Johns & Jasapas [2016] FamCA 471

Johnson & Page (2007) FLC 93-344

Kane & Kane (2013) FLC 93-569

Kildea v Kildea (2007) 38 Fam LR 347

Kowaliw and Kowaliw (1981) FLC 91-092

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

M v M (1988) 166 CLR 69

Manolis v Manolis (No 2) [2011] FamCAFC 105

Marvel v Marvel (2010) 43 Fam LR 348

Mayne & Mayne (2011) FLC 93-479

Mazorski & Albright (2007) 37 Fam LR 51

N & S (1996) FLC 92-655

Napier & Hepburn (2006) FLC 93-303

Nikolakis & Nikolakis [2010] FamCAFC 52

Omacini and Omacini (2005) FLC 93-218

Petruski v Balewa (2013) 49 Fam LR 116

Pierce & Pierce (1999) FLC 92-844

Quaresmini & Quaresmini [1999] FamCA 1314

Russell & Close [1993] FamCA 62.

Saberton & Saberton [2013] FamCAFC 89

Seymour & Seymour [2011] FamCAFC 97

Sigley v Evor (2011) 44 Fam LR 439

Stanford & Stanford (2012) 247 CLR 108

Stott & Holgar [2017] FamCAFC 152

Townsend and Townsend (1995) FLC 92-569

Trevi & Trevi [2018] FamCAFC 173

Turner & Turner and Anor (2016) FLC 93-719

VR & RR (2002) FLC 93-099

Wallis & Manning (2017) FLC 93-759

Yewen & Child Support Registrar & Anor [2014] FCCA 2399

Hon John Fogarty, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249

Hon Richard Chisholm ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, (Conference Paper, Children’s Court Conference, Parramatta, 1 September 2010)

Number of paragraphs: 502

Date of hearing: 22-24 June 2020; 23 October 2020

Place: Sydney by web conference

Counsel for the Applicant: Mr Cummings SC

Solicitor for the Applicant: Mills Oakley Lawyers

Counsel for the Respondent: Mr Lloyd SC and Mr Moutasallem

Solicitor for the Respondent: Millennium Lawyers

Counsel for the Independent Children's Lawyer: Mr Lawrence

Solicitor for the Independent Children's Lawyer: Marsdens Law Group
ORDERS

SYC4915 of 2017

BETWEEN:
MS HEROUZ

Applicant

AND:
MR HEROUZ

Respondent

MARSDENS LAW GROUP

Independent Children’s Lawyer

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

15 MARCH 2021

THE COURT ORDERS THAT:
Parenting
1.Subject to Order 2, Ms Herouz (“the Applicant”) and Mr Herouz (“the Respondent”) shall have shared parental responsibility for the children, D born in 2007, E born in 2009 and F born in 2012 (collectively “the children”).
2.Despite Order 1, the Applicant shall have sole parental responsibility in determining whether the children require psychiatric and/or psychological counselling and/or therapy, including determining the identity of the therapist and the times at which the children should attend such therapy.
3.In exercising parental responsibility pursuant to Order 2, the Applicant shall:
(a)Notify the Respondent of any decisions she is called upon to make in relation to the children attending proposed therapy at least seven (7) days prior to making such decision, or as soon as practicable, whichever is the earlier;
(b)Consider any input the Respondent provides the Applicant in relation to the decision;
(c)Otherwise be solely entitled to make the said decision.

4.The children shall live with the Applicant.
5.Unless otherwise agreed by the parties in writing, the children shall spend time with the Respondent each alternative week from the conclusion of school or 3.00 pm on non-school days on each alternate Thursday until the commencement of school or 9.00 am on non-school days on the following Tuesday.
6.Unless otherwise agreed by the parties in writing, the children shall spend time with the parties during school holidays as follows:
(a)In the short NSW Gazetted School holidays, the children are to spend equal time at the end of terms 1, 2 and 3, on a week about basis.
(b)The Christmas school holidays as follows:
(i)For the Christmas school holidays as follows in even numbered years:
A.for weeks 1 and 2 of the holidays with Applicant;
B.for weeks 3 and 4 of the holidays with the Respondent;
C.for week 5 of the holidays with the Applicant; and
D.for week 6 of the holidays with the Respondent.

(ii)For the Christmas school holidays as follows in odd numbered years:
A.for weeks 1 and 2 of the holidays with Respondent;
B.for weeks 3 and 4 of the holidays with the Applicant;
C.for week 5 of the holidays with the Respondent; and
D.for week 6 of the holidays with the Applicant.

(c)For the purposes of Orders 7(a) and (b), changeover shall occur at 9.00am on Monday.
(d)For the purposes of Orders 7(a) and (b), the Monday following the last day of school will be considered the first day of each school holiday period.

7.Despite any other order, unless otherwise agreed by the parties in writing, the children shall spend time with the parties during the Christmas period as follows:
(a)In odd numbered years:
(i)From 12 noon on Christmas Eve until 12 noon on Christmas Day with the Respondent; and
(ii)From noon on Christmas Day to noon on Boxing Day with the Applicant;

(b)In even numbered years:
(i)From 12 noon on Christmas Eve until 12 noon on Christmas Day with the Applicant; and
(ii)From 12 noon on Christmas Day to 12 noon on Boxing Day with the Respondent.

8.Despite any other order, unless otherwise agreed between the parties in writing, the children shall spend time with the Applicant from 9.00 am on Mother’s Day until the next day at the commencement of school or, if not a school day, 9.00 am.
9.Despite any other order, unless otherwise agreed between the parties in writing, the children shall spend time with the Respondent from 9.00 am on Father’s Day until the next day at the commencement of school or, if not a school day, 9.00 am.
10.Despite any other order, unless otherwise agreed between the parties in writing, the children shall spend time with the parties during the Easter period as follows:
(a)In even numbered years:
(i)From 12 noon on Good Friday to 12 noon on Easter Saturday with the Applicant; and
(ii)From 12 noon on Easter Saturday to 12 noon on Easter Sunday with the Respondent;

(b)In odd numbered years:
(i)From 12 noon on Good Friday to 12 noon on Easter Saturday with the Respondent; and
(ii)From 12 noon on Easter Saturday to 12 noon on Easter Sunday with the Applicant.

11.The parties shall each facilitate telephone or video calls between the children and the other party on any day when the children are living with them on which falls a birthday for any of the children or the other party.
12.The children are permitted to attend any other special occasion or family event that may arise and neither party shall unreasonably withhold their consent in allowing the children to participate and attend special occasions and/or family events.

Changeover
13.Unless the parties are delivering or collecting the children from school, the parties shall collect the children from the residence of the other party at the commencement of the children’s time with that party.
14.The parties shall use their best endeavours to ensure changeover of the children at their respective homes occurs swiftly and promptly.

Communication
15.Each party shall give written notice of any change to their residential address, email address, or telephone number, within 24 hours of such change, to the other party.
16.The parties shall, when the children are in their care, facilitate the children telephoning the other party in accordance with the children’s wishes.

Injunctions
17.The parties are each restrained by injunction from denigrating the other party or a member of that party’s family or household within the presence or hearing of the children or permitting any other person to do so.
18.Unless otherwise agreed to between the parties in writing, the parties are restrained by injunction from attending the children’s events on days that the children are not in their care, except for the following:
(a)End of year school speech day;
(b)Parent teacher meetings;
(c)School awards ceremonies;
(d)School sports carnivals; and
(e)School assemblies.

19.The parties are each restrained from discussing parenting arrangements, matters relating to the children or issues that one party has with the other party in the presence of the children.

Property
20.Within 60 days, the Applicant pay to the Respondent the sum of $188,711.80 (“the settlement sum”). Simultaneously with the payment of the settlement sum, the Respondent shall do all acts and sign all necessary documents required to transfer his interest in the property known as B Street, Suburb C to the Applicant.
21.In the event of the Applicant being unable or unwilling to comply with Order 20, then the following shall apply;
(a)Within 90 days of the date of these orders, the Respondent pay to the Applicant the sum of $836,288.20 (“the default settlement sum”); and
(b)Simultaneously with the payment of the default settlement sum, the Applicant shall do all acts and sign all necessary documents required to transfer her interest in the property known as B Street, Suburb C to the Respondent.

22.In the event of the Respondent being unable or unwilling to comply with Order 21, then the parties shall do all acts and things and sign all documents necessary to sell the property known as B Street, Suburb C and divide the net proceeds of the sale according to the following percentages:
(a)57.5 per cent to the Applicant; and
(b)42.5 per cent to the Respondent.

23.Should it be necessary, the parties are granted liberty to apply to the Court, in the event that they are unable to agree in respect to the implementation of Order 22.
24.That the Applicant shall retain all her right, title and interest in the following:
(a)Bank accounts in her sole name;
(b)Her interest and entitlement to all superannuation funds standing in her sole name; and
(c)Motor vehicle 1.

25.That the Respondent shall retain all his right, title and interest in the following:
(a)Bank accounts in his sole name;
(b)Company R Shares registered in his sole name and any other shareholding in his sole name;
(c)His interest and entitlement to all superannuation funds standing in his sole name;
(d)The parties’ wine collection;
(e)His designer watch;
(f)Motor vehicle 2; and
(g)Motor vehicle 3.

26.Within 28 days of the date of these orders, the parties shall do all such acts and things, and sign all documents necessary, to close the joint ANZ Bank account (BSB: …, Account: …55), and the Respondent shall retain the balance.
27.Except as otherwise provided for by these orders, the parties each be declared solely entitled to all other property in their respective possession or control.
28.Except as otherwise provided for by these orders, each of the parties shall be solely liable for all debts and liabilities held in their respective names.
29.In the event that either party neglects to or fails to sign any document relevant to these orders within seven (7) days of such document being presented to him/her then, pursuant to section 106A of the Family Law Act 1975 (Cth), a Registrar of the Sydney Registry of the Family Court of Australia shall be appointed to do all acts and things necessary to execute the deed or instrument necessary to give validity and operation to the sale of the matrimonial home.

Child Support Application
30.The Applicant’s child support departure application be dismissed.

Independent Children’s Lawyer’s Costs
31.In the event that either party opposes the making of orders requiring them to pay the costs of the Independent Children’s Lawyer, they are to, within 14 days of the date of these orders, provide written submissions of no more than two (2) pages to my associate.
32.In the event that neither party provides written submissions in accordance with Order 31:
(a)Within six (6) months of the date of these orders, the Applicant and Respondent each pay one half of the costs of the Independent Children’s Lawyer to Legal Aid NSW the sum of $6,679.06 each.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Herouz & Herouz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McClelland DCJ:
INTRODUCTION

This matter concerns the respective Applications for final orders of the parties, Ms Herouz (“the mother”) and Mr Herouz (“the father”), for an adjustment of the their property interests as well as for parenting orders in respect to their children, F born in 2012, E born in 2009 and D born in 2007 (collectively “the children”).
Both parties are eminently capable parents and it is not suggested that the children are at risk of physical harm in the care of either parent. Regrettably, however, the children have been adversely emotionally affected by the parental disputation and the manner in which the parties have conducted themselves during the course of the conflict.
Both of the two elder children wish to spend week about time with both parties. I have determined, however that those views have been influenced by inappropriate communication and conduct on the part of the father and accordingly I have factored in that influence in considering their expressed wishes. For reasons which I set out in this decision, I have determined that it is in the best interests of the children to live with the mother and spend five (5) nights per fortnight with the father. I have determined that current arrangements where the children spend half of each school holiday with each parent should continue.
In respect to the property aspect of the parties’ dispute, I have determined that the parties’ contributions during the course of their marriage were approximately equal. I have determined, however, that the father is entitled to an adjustment of 2.5 per cent in his favour as a result of a greater initial financial contribution. That adjustment is however offset by considerations set out in s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) which I have assessed to be 10 per cent. This results in an overall distribution in favour of the mother of 7.5 per cent.
BACKGROUND
The parties helpfully agreed to the joint chronology that sets out agreed facts and, where not agreed, the parties’ respective contentions in respect to relevant events. I will subsequently set out my findings in respect to contentious factual issues where it has been necessary for a factual finding to be made in arriving at my conclusion as to the orders that I make in these proceedings.
In 1975, the father was born. He is currently aged 45 years.
In 1980, the mother was born. She is currently aged 40 years.
In 2005, the parties married.
In June 2005, the parties purchased the former matrimonial property at B Street, Suburb C (“the Suburb C property”), for the purchase price of $530,000 including stamp duty. The purchase was financed by a mortgage from Australia and New Zealand Banking Group (“ANZ bank”) in the sum of $465,000. The father contends that the remaining balance, being $53,000, consisting of 10 per cent deposit and $13,816.20 stamp duty, was financed from his personal savings and the mother did not contribute to these funds. The father contends those payments were made on or about 7 August 2005. Comparatively, the mother contends that the remaining balance of the purchase price was financed from the parties’ joint savings. I have accepted the father’s contentions in respect to those payments.
The parties’ deposited their incomes, during periods of paid employment, into a jointly held ANZ bank offset account (“the joint offset account”) which was used to pay the mortgage secured over the Suburb C property.
On 17 June 2005, the parties’ commenced cohabitation in the Suburb C property.

In 2007, the parties’ child, D, was born. He is currently aged 13 years.
In 2009, the parties’ child, E, was born. He is currently aged 11 years.
In 2012, the parties’ child, F, was born. She is currently aged eight (8) years.
From May 2007, there were periods of time whereby the mother was not in paid employment and cared for the children.
The father contends that, in November 2015, an incident occurred whereby the mother shouted at him and pushed his glasses in his face.
The mother contends that, on 11 December 2015, an incident occurred whereby the father became aggressive, intimidated the mother and shouted at her. The mother further contends that she was required to leave the Suburb C property to avoid further conflict.
The father contends that, in 2016, he made a lump sum payment of $10,000 towards the mortgage secured over the Suburb C property.
In January 2016, an incident occurred whereby the father held a knife during an argument between the parties.
From March 2016 until 23 September 2016, the parties attended upon Ms K, psychologist, for joint sessions.
Each of the parties contend that, throughout 2016, there were multiple incidents that occurred involving the parties shouting at each other.
In late 2016, the maternal grandmother unfortunately passed away.
On 31 December 2016, an incident occurred involving D and the father. The father contends that, following a dispute between D and his brother E, D was sent to his room and, when the father went to check on him, D “lashed out” and punched the father. In response, the father contends that he “held his face from his chin so [he] could get his attention” and spoke to him about physical conflict being “never ok”. The father denies that he touched the child in a forceful way. Comparatively, the mother contends that D reported to her that the father “grabbed and squeezed [his] jaw and pushed [him] back against the door really hard”.
On 23 December 2016, the father sold the shares he held with Company S for approximatively $120,000 and deposited the proceeds from this sale into his personal Commonwealth Bank of Australia account.
In early 2017, the mother attended upon Ms T, psychologist, for treatment. The mother further contends that in early 2017 she was approached by E’s teacher and F’s preschool teacher in respect to a concerning change in the children’s behaviour.
On 16 June 2017, the parties separated on a final basis, however, they continued to both live at the Suburb C property.
Following separation, the father continued to attend upon Ms K for treatment.
On 16 June 2017, the mother withdrew $100,000 from the parties’ joint offset account and deposited the funds in her personal ANZ Bank savings account ending #...43 (the “ANZ Bank personal savings account”). The mother withdrew the funds without the knowledge or consent of the father.
The father contends that, on 19 June 2017, he transferred the remaining funds in the joint offset account to the mortgage over the Suburb C property. Contrary, the mother contends that, on 22 June 2017, the father withdrew and transferred the sum of $74,000 from the joint offset account to the mortgage over the Suburb C property and retained the balance of the joint offset account for his own benefit.
On 18 July 2017, D and E commenced attending on Ms G, psychologist.
From July 2018 until February 2019, the father was employed at N Company and is currently self employed as a consultant contractor with V Company.
The mother has been in full-time employment as an educator since 2019.
Summary of the children’s current circumstances
Each of the children live with the mother and spend three (3) nights per fortnight with the father from after school Friday until commencement of school on Monday. They also spend Friday afternoon with their father on each alternative week from after school until 7.30 pm.
D currently attends W School. Last summer he participated in soccer and League Tag. He also participated in winter soccer. D has soccer training during the week which, at the time of the hearing, the Court was advised occurs on a Thursday night.
E was, at the date of the hearing, in the process of enrolment to also attend W School. In winter, E plays AFL and in summer also plays Rugby League Tag. E’s AFL training also occurs during the week and, at the time of the hearing, occurs on a Tuesday night but is expected to move back to Thursday night.
F currently attends H School. F participated in dance in 2019, however, during the course of 2020 she asked to begin playing soccer. It is anticipated that she will commence playing soccer both in winter and summer seasons.
D and F’s soccer games occur on a Saturday but E’s AFL games are usually played on a Sunday.
APPLICATIONS
Orders sought by the mother
The mother seeks that orders be made in accordance with her Further Amended Minute of Order, provided to the Court on 23 October 2020, set out as follows:
Property
1.That within 28 days of the date of these Orders, the Respondent shall do all acts and things and sign all documents necessary to transfer to the Applicant all of his right, title and interest in B Street, Suburb C in the State of New South Wales being the whole of the land contained in folio identifier … (hereafter known as the “Suburb C Property”).
2.That simultaneously with the preceding order, the Respondent shall do all acts and things and sign all documents necessary to discharge the mortgage to ANZ Bank secured over the Suburb C Property, being registered mortgage number ….
3.That there be a superannuation splitting Order affecting the interest of the Applicant (in the records of Superannuation Fund 1, shown as Ms Herouz) in Superannuation Fund 1 (“the Fund”) in the following terms:
a.   That a base amount of $53,010 is allocated, as required by Section 90XT(4) of the Family Law Act 1975 (Cth) to the Respondent Husband out of the Applicant Wife’s interest in the Fund.
b.   That in accordance with paragraph 90XT(1)(a) of the Family Law Act 1975 (Cth):
i.the Respondent is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount allocated in the immediately preceding Order; and
ii.the Applicant’s entitlement in the Fund is correspondingly reduced.
c.   That the Trustee of the Fund (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
i.calculate in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth), the entitlement created for the Respondent by sub-clause (b) of this Order; and
ii.pay the entitlement whenever the Trustee makes a splittable payment out of the Applicant’s interest in the Fund.
d.   That this Order have effect from the operative time and the operative time is four (4) business days after the service of a sealed copy of these Order on the Trustee.
4.That the Respondent shall retain all his right, title and interest in the following;
a.   Company R Shares registered in his sole name and any other shareholding in his sole name.
b.   His interest and entitlement to all superannuation funds standing in his sole name.
c.   The parties’ wine collection.
d.   His designer watch.
e.   Motor vehicle 2, registration number ….
f.    Motor vehicle 3.
5.That the Respondent transfer to the Applicant 100,000 Qantas frequent flyer points per quarter in accordance with the Qantas Frequent Flyer rules, and there be eight (8) transfers over a period of 2 years.
6.That within 28 days of the date of these Orders, the parties shall do all such acts and things, and sign all documents necessary to close the joint ANZ Bank account BSB: …, Account: …55, and the Respondent shall retain the balance.
7.That except as otherwise provided for by these Orders, the parties each be declared solely entitled to all other property in their respective possession or control.
8.That except as otherwise provided for by these Orders, each of the parties shall be solely liable for all debts and liabilities held in their respective names.
Parenting
9.That the Applicant have sole parental responsibility for the children, D born … 2007, E born … 2009 and F born … 2012 (“F”) (collectively “the children”).
10.That the Applicant shall:
a.   Notify the Respondent of any decisions she is called upon to make in relation to the children’s health and / or education and / religion at least seven (7) days prior to making such decision, or as soon as practicable, whichever is the earlier;
b.   Consider any input the Respondent provides the Applicant in relation to the decision;
c.   Otherwise be solely entitled to make the said decision.
11.That the children shall live with the Applicant.
12.That the children spend time with the Respondent as follows:
a.   Each alternative weekend from the conclusion of school on Thursday until the commencement of school on Monday.
b.   For Easter long weekend that commences Thursday morning before Good Friday and concludes on Easter Monday evening in each year from 2021, for the first two (2) nights of the Easter long weekend commencing at 12:00pm in odd numbered years and the second two (2) nights of the Easter long weekend commencing at 12:00pm in even numbered years.
c.   For Christmas from 12:00pm on Christmas Eve until 12:00pm on Christmas Day each odd numbered year and from 12:00pm on Christmas Day until 12:00pm on Boxing Day each even numbered year.
d.   On Father’s Day from 9:00am until the commencement of school on Monday and in the event the children are in the Father’s care on Mother’s Day then he will ensure the children are delivered to the Applicant on 9:00am on Mother’s Day and they will remain with the Applicant until the commencement of school on Monday.
13.The mid-point changeover of the children, during school holiday periods, shall occur at 12:00pm at a changeover location as the parties agree on the day following the final night with the parent with whom the children are spending the first school holiday period.
14.That the Respondent be restrained from attending the Applicant’s place of residence without the Applicant’s written consent. In the event that the parties agree that changeover is to occur at the Applicant’s place of residence, the Respondent shall remain in his motor vehicle and shall not approach or enter the Applicant’s place of residence at any time.
15.That each of the Respondent and the Applicant be restrained from attending the children’s events on days that the children are not in their care, except for the following:-
a.   End of year school speech day.
b.   Parent and Teacher meetings.
c.   School award ceremonies.
d.   School sports carnivals.
16.That each of the Respondent and the Applicant be and is hereby restrained from denigrating the other or permitting any other person to denigrate the other in the presence of or in the hearing of the children.
Child Support
17.That pursuant to Section 117 of the Child Support (Assessment) Act 1989 (Cth) there be a non-periodic departure from the administration assessment of child support payable by the Respondent for the children to the Applicant such that the Respondent shall pay, as and when they fall due:
a.   Child support to the Applicant for the benefit of the children as assessed from time to time by the Child Support Agency;
b.   All school fees and charges that appear on the standard invoice from time to time by the current Catholic schools the children attend or any other comparable school the children attend as the parties agree, including but not limited to enrolment, tuition, composite fees and school development fess associate with the children’s education until completion of the children’s secondary education, and for the purpose of this Order the Respondent shall within seven (7) days of the date of this Order sign any documents required of him by the current Catholic school the children attend or any other comparable school the children attend as the parties agree, to reflect his responsibility for payment of the said fee and charges;
c.   The reasonable costs of obtaining and maintaining (including updating) all technology equipment (including all software, hardware, insurance and necessary licences and tutorials) as required from time to time by the current Catholic schools the children attend or any other comparable school the children attend as the parties agree, until completion of the children’s secondary education; and
d.   All instalments for the premiums for the children’s private health insurance policy at the present level of cover, and any gap payments for the children’s medical, dental, hospital, optical and orthodontic expenses not covered by Medicare or private health.
Costs
18.That the Respondent pay the Applicant’s costs of and incidental to the Application.
Orders sought by the father
The father seeks orders be made in accordance with the proposed orders, as set out in his Amended Response of 19 June 2020, as follows:
Parenting Orders
1.That the parties have equal shared parental responsibility for the children, D born … 2007, E born … 2009 and F born … 2012.
2.That the children spend equal time with the parties as follows:
a) During the NSW Gazetted School Term and the school holidays for terms 1, 2 and 3, on a week about basis with changeover to occur at the commencement of school on Mondays or 9.00am if it is not a school day.
b) For the Christmas school holidays as follows in even numbered years:
i.for weeks 1 and 2 of the holidays with Applicant;
ii.for weeks 3 and 4 of the holidays with the Respondent;
iii.for week 5 of the holidays with the Applicant; and
iv.for week 6 of the holidays with the with the Respondent.
c) For the Christmas school holidays as follows in odd numbered years:
i.for weeks 1 and 2 of the holidays with Respondent;
ii.for weeks 3 and 4 of the holidays with the Applicant;
iii.for week 5 of the holidays with the Respondent; and
iv.for week 6 of the holidays with the with the Applicant.
d) For the purposes of orders 2 b) and c) changeover shall occur at 9.00am on Monday.
e) For the purposes of orders 2 b) and c) the Monday following the last day of school will be considered the first day of the Christmas School holidays.
3.That notwithstanding any other order, the children shall spend Christmas time with each parent as follows:
a) Commencing in 2020 and each alternate year thereafter:
(i)With the Applicant from 12 noon on Christmas Eve until 12 noon on Christmas Day; and
(ii)With the Respondent from 12 noon on Christmas Day until 12 noon on Boxing Day.
b) Commencing in 2021 and each alternate year thereafter:
(i)With the Respondent from 12 noon on Christmas Eve until 12 noon on Christmas Day; and
(ii)With the Applicant from 12 noon on Christmas Day to 12 noon on Boxing Day.
Property Orders
4.That the Respondent pay the Applicant a settlement sum “the settlement sum” to be determined by the Court which would recognise an equal division of the party’s net assets as determined.
5.Simultaneously with the payment of the settlement sum, the Applicant shall do all acts and sign all necessary documents required to transfer her interest in B Street, Suburb C to the Respondent.
6.The parties do all acts and sign all necessary documents to close any joint bank accounts with the Applicant to retain any balance.
7.In the event that either party neglects to or fails to sign any document relevant to these orders within 7 days of such document being presented to him/her then pursuant to section 106A of the Family Law Act 1975 the Registrar of the Sydney Registry of the Family Court of Australia shall be appointed to do all acts and things necessary to execute the deed or instrument necessary to give validity and operation to the sale of the matrimonial home.
8.Each party be declared the sole owner in law and in equity of all other property in their name and control including superannuation and bank accounts.
Child Support Application
8.The Applicant’s child support application be dismissed.
Costs
9.The Applicant pay the Respondent’s Costs.
Orders sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer seeks that orders be made in accordance with those set out in their Minute of Order provided to the Court on 22 July 2020, set out as follows:
Parental Responsibility
1.That the parents shall have equal shared parental responsibility for the children, D (dob: …2007), E (dob: …2009) and F (dob: …2012).
Live with and spend time with until commencement of school 2021
2.That until term 1 commencing in 2021 the children live with the Applicant Mother.
3.That until term 1 commencing in 2021 the children spend time with the Respondent Father during the school term each week on an alternating basis as follows:
3.1      Week 1: from Friday after school until Tuesday before school.
3.2      Week 2: from Thursday after school until Friday before school.
4. That the children spend time with the Respondent Father during the 2020 term 4 holidays as follows:
4.1      From 12 noon on Christmas Day until 7.30pm on 31 December.
4.2      From 9.00am on 7 January until 7.30pm on 13 January.
4.3      From 9.00am on 21 January until 7.30pm on 27 January.
5. That the children spend time with the Applicant Mother during the 2020 term 4 holidays as follows:
5.1      From 12 noon on Christmas Eve until 12 noon on Christmas Day.
5.2      From 7.30pm on 31 December to 9.00am on 7 January.
5.3      From 7.30pm on 13 January to 9.00am on 21 January.
Live with arrangements commencing 2021
6. That commencing at the start of term 1 in 2021 and during each school year thereafter (including through the term 1, 2 and 3 school holidays), the children shall live with the parties on a week-about basis as follows:
6.1With the Applicant Mother from the conclusion of school or, if not a school day, then 3pm on the Monday of the week that the children start term 1 of school, and each alternate Monday thereafter, until the following Monday at the commencement of school or, if not a school day, then at 9am;
6.2With the Respondent Father from the conclusion of school or, if not a school day, then 3pm on the Monday of the second week of term 1, and each alternate Monday thereafter, until the following Monday at the commencement of school or, if not a school day, then at 9am.
7. That commencing at the start of the term 4 school holidays 2021 and each term 4 school holidays thereafter, the children shall live with the parties as follows:
7.1      In even numbered years:
7.1.1From the conclusion of school the last day of term 4 for until 9am the day after the 14th night, with the Applicant Mother.
7.1.2From the conclusion of the children’s time with their Mother pursuant to Order 7.1.1 until 9am the day after the 14th night, the Respondent Father.
7.1.3Thereafter, until the Monday of the first week of term 1, on a week-about basis with the children to live first with the Applicant Mother until 9am after the 7th night and then with the Respondent Father until 9am after the 7th night.
7.2      In odd numbered years:
7.2.1From the conclusion of school the last day of term 4 for until 9am the day after the 14th night, with the Respondent Father.
7.2.2From the conclusion of the children’s time with their Father pursuant to Order 7.1.1 until 9am the day after the 14th night, the Applicant Mother.
7.2.3Thereafter, until the Monday of the first week of term 1, on a week-about basis with the children to live first with the Respondent Father until 9am after the 7th night and then with the Applicant Mother until 9am after the 7th night.
Christmas and other special occasions
8. That despite any other Order, over the Christmas period falling in each odd numbered year the children shall live with the parties as follows:
8.1.1From 12 noon on Christmas Eve until 12 noon on Christmas Day with the Respondent Father.
8.1.2From 12 noon on Christmas Day to 12 noon on Boxing Day with the Applicant Mother.
9. That despite any other Order, over the Christmas period in 2022 and each Christmas period falling in each even numbered year therea Despite any other Order, over the Christmas period falling in each odd numbered year thereafter the children shall live with the parties as follows:
9.1.1 From 12 noon on Christmas Eve until 12 noon on Christmas Day with the Applicant Mother.
9.1.2From 12 noon on Christmas Day to 12 noon on Boxing Day with the Respondent Father.
10.That despite any other Order, the children shall live with the Applicant Mother from 9.00am on Mother’s Day until the next day at the commencement of school or, if not a school day, 9am.
11.That despite any other Order, the children shall live with the Respondent Father from 9.00am on Father’s Day until the next day at the commencement of school or, if not a school day, 9am.
12.That despite any other Order, the children shall live with the parties during the Easter period as agreed to between parties and failing agreement as follows:
12.1     In even numbered years:
12.1.1From 12 noon on Good Friday to 12 noon on Easter Saturday with the Applicant Mother.
12.1.2From 12 noon on Easter Saturday to 12 noon on Easter Sunday with the Respondent Father.
12.2     In odd numbered years:
12.2.1From 12 noon on Good Friday to 12 noon on Easter Saturday with the Respondent Father.
12.2.2From 12 noon on Easter Saturday to 12 noon on Easter Sunday with the Applicant Mother.
13.The parties shall each facilitate telephone or video calls between the children and the other party on any day when the children are living with them on which falls a birthday for any of the children or the other party.
14.That the children are permitted to attend any other special occasion or family event that may arise and neither party shall unreasonably withhold their consent in allowing the children to participate and attend special occasions and/or family events.
Change over
15.That unless the parties are delivering or collecting the children from school, the parties shall collect the children from the residence of the other party at the commencement of the children’s time with that party.
16.That the parties use their best endeavours to ensure changeover of the children at their respective homes occurs swiftly and promptly.
Communication
17.That each party shall give written notice of any change to their residential address, email address, or telephone number, within 24 hours of such change, to the other party.
18.The parties shall when the children are in their care facilitate the children telephoning the other parent in accordance with the children’s wishes.
Injunctions
19.The parties are each restrained by injunction from denigrating the other parent or a member or that parent’s family or household within the presence or hearing of the children or permitting any other person to do so.
20.That unless otherwise agreed to between the parties in writing, the Applicant and Respondent be restrained by injunction from attending children’s events on days that the children are not in their care, except for the following:
20.1     End of year school speech day.
20.2     Parent teacher meetings.
20.3     School awards ceremonies.
20.4     School sports carnivals.
20.5     School assemblies.
21.That the parties be restrained from discussing parenting arrangements, matters relating to the children or issue that one parent has with the other in the presence of the children.
22.The parties are each restrained from discussing parenting arrangements, matters relating to the children or issues that one parent has with the other parent in the presence of the children.
Costs
23.That the Applicant Mother pay 50% of the costs of the Independent Children’s Lawyer fixed in the sum of $6,670.06.
24.That the Respondent Father pay 50% of the costs of the Independent Children’s Lawyer fixed in the sum of $6,670.06.
EVIDENCE

The mother relied upon the following documents:
(a)Further Amended Initiating Application filed 12 May 2020;
(b)Further Amended Minute of Order provided to the Court by email on 23 October 2020;
(c)Affidavit of the mother filed 12 May 2020 together with annexures;
(d)Affidavit of the mother filed 9 June 2020 together with annexures;
(e)Financial Statement filed 12 May 2020;
(f)Affidavit of Ms X filed 12 May 2020;
(g)Affidavit of Ms Y filed 12 May 2020; and
(h)Child Responsive Program Memorandum dated 25 January 2018.
The father relied upon the following documents:
(a)Amended Response to Initiating Application filed 19 June 2020;
(b)Affidavit of the father filed 12 May 2020;
(c)Financial Statement filed 12 May 2020;
(d)Child Responsive Program Memorandum dated 25 January 2018; and
(e)Schedule of the effect of the orders sought by the mother dated 19 June 2020.
The Independent Children’s Lawyer relied upon the following document:
(a)Single Expert Report of Dr J dated 29 January 2019.
The parties jointly relied upon the following documents:
(a)Joint Balance Sheet filed 17 June 2020; and
(b)Amended Joint Chronology dated 23 June 2020.
The following exhibits were relied upon:
(a)Chain of emails between the mother and Ms G dated 4-7 May 2020 (‘Exhibit 1’);
(b)Single Expert Report of Dr J dated 29 January 2019 (‘Exhibit 2’);
(c)Email dated 26 May 2020 from the father’s solicitor to the mother’s solicitor, correspondence in response dated 28 May 2020, and correspondence in response from both parties’ solicitors dated 5 June 2020 (‘Exhibit 3’);
(d)The parties’ respective cost notices (‘Exhibit 4’);
(e)The Independent Children’s Lawyer’s cost notice (‘Exhibit 5’);
(f)Interview Notes dated 10 August 2017 from the Department of Family & Community Services, as they were then known, (“FACS”), being pages 41, 42, 48, 49, 51, 52, 79, 80 and 81, from the material produced on subpoena (‘Exhibit 6’);
(g)Notes of Ms K being pages 146, 147 and 148, from the material produced on subpoena (‘Exhibit 7’);
(h)Text messages from the mother to the father dated 13 June 2018 (‘Exhibit 8’);
(i)Excerpt from the father’s Notice of Risk filed in these proceedings (‘Exhibit 9’);
(j)Text messages between the parties dated 4 June 2018 (‘Exhibit 10’); and
(k)Email dated 12 December 2019 from the mother to the father (‘Exhibit 11’).
CREDIT OF THE WITNESSES
The parties’ written and oral evidence were at odds in a number of significant respects. This was most significantly the case in respect to the parties’ respective contentions regarding the conduct of the other constituting acts of family violence. The Court is reluctant to make adverse findings in respect to a party’s credit in parenting proceedings: see Adamson & Adamson (2014) FLC 93-622 at 79,703. While neither party alleges that the children will be at risk of physical violence in the care of the other, the mother contends that the history of volatility in the parties’ relationship, including what she contends is the father’s history of engaging in aggressive, controlling and coercive conduct, is such that orders providing for the parties to share parental responsibility are not viable. I am unable to determine that issue without making a finding regarding each of the parties competing contentions regarding the manner in which they have interacted with each other. To do so it is necessary to make a finding regarding the credibility of each parties’ evidence.
In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, the plurality said at [62]:
… Witnesses are supposed to answer questions put by counsel responsively: they are supposed to give a full answer, but no more. It is one thing to say that a witness was not asked the right questions. It is another thing to say that a witness did not answer the questions that were asked. And it is an even more serious thing to say that a witness was “reluctant” to answer. The duty of a witness is to tell the truth, the whole truth, and nothing but the truth so far as the questions asked seek it. The duty of a witness to answer questions responsively involves not only a negative duty (not to volunteer material for which the question does not call), but also a positive duty (to proffer all material within the witness’s knowledge for which the question does call). …
Other than in respect to questions relating to whether the father had engaged in coercive and controlling conduct during the parties’ relationship, in this case, both parties generally appeared to make their best endeavours to answer questions in a direct and forthright manner. The father, was more animated in giving evidence than was the case in respect to the mother. That does not, of course, indicate lack of veracity. However, the father had a propensity to provide answers which gave more than the question required and this detracted from the credibility of some of his responses including, most relevantly, in respect to the extent to which he had engaged in dysregulated behaviour during the course of the parties’ marriage and in the period subsequent to their separation. In that respect, there were several instances where the father added to answers to include unnecessarily derogatory comments in respect to the mother. Examples include the following:
[SENIOR COUNSEL FOR THE MOTHER]: There were a lot of adults accumulated or gathered at the home later in the day [20 August 2017]?
[THE FATHER]: [The mother] was kind enough to welcome my sister “to the circus”, in her words.
[SENIOR COUNSEL FOR THE MOTHER]: Is there any reason why every time I ask you a question, you have to say something derogatory about [the mother]?
[THE FATHER]: I don’t believe that was derogatory. I thought she gave my sister a welcome.
(Transcript 23 June 2020, p.159 lines 12–17)
The manner and tone in which the father provided that answer clearly indicated that he was being disparaging of the mother and it was, with respect, disingenuous of him to suggest that he intended to say merely that the mother had welcomed his sister.
The father’s evidence that he has not previously alleged that the mother has suffered mental health issues was inconsistent with notes made both by the interviewing officer from FACS, who interviewed him on 10 August 2017, and by Dr J as referred to at paragraphs 88 and 207 of her Report.
The father denied that he had a propensity to lose his temper with the children however, during the course of those interviews with an officer from FACS, which will be set out in greater detail below, the children each stated that the father had lost his temper with them and shouted at them. The evidence of the children’s statements to that effect corroborates the mother’s evidence and I am satisfied the father sought to downplay or understate the extent to which he has had a propensity to lose his temper. While it is unreasonable to expect in highly emotional litigation that the parties will approach their evidence with dispassionate objective detachment, there was an element of adversarial zeal to the manner in which the father gave his evidence. In that respect, there was, in my view, no basis for the father to accuse the mother of having coached the children prior to their interview with representatives of FACS.
A further example of the father unnecessarily expanding upon the answers he provided in order to make a critical comment of the mother was in response to a question asked of him by the Independent Children’s Lawyer in respect to his response to the children in circumstances where they have expressed unhappiness about being in the mother’s care. The father appropriately indicated that he emphasises to the children that it is important that they have a “polite and courteous” relationship with their mother. However he added to that answer stating, at the time he gave that advice to E, “Unbeknownst to me, [the mother] was walking right behind me and heard all of that conversation, sadly not in her – not in her affidavit”.
A less significant but nonetheless indicative example of the father’s propensity to criticise the mother was the father expanding upon his response to a question as to the respective routines in each other’s households, where he added to his answer by gratuitously stating that part of the routine in the mother’s household was her going to bed before the children. The father subsequently qualified his response to the question from counsel for the Independent Children’s Lawyer that the children reported to him that the mother permitted them to stay up to watch a sporting match on TV and that she went to bed before it was concluded (see Transcript 24 June 2020, p.218–219 lines 45– 3). The circumstances in which that evidence was provided does not enable the Court to make an assessment as to whether it was the two older children who were staying up, or whether it was all three children, or whether, for instance, the mother was reading in bed with her door open. The evidence, therefore, is not such that I infer that the mother has been in any way neglectful of the children in respect to their bedtime. The significance of the response is that the criticism of the mother was unnecessary in the context of the Court receiving, through questions posed by the counsel for the Independent Children’s Lawyer, what the respective routines were in each of the parties’ households.
The mother, on the other hand, gave answers that were, in the main, unembellished and were directly responsive to questions asked of her. The mother gave generally thoughtful answers including, most relevantly, in the responses she gave to questions from counsel for the Independent Children’s Lawyer which focussed upon what she perceived to be in the best interests of the children (see Transcript 22 June 2020, p.73–74 lines 45–11). At the same time, her presentation was far more measured than that of the father. Clearly, the mother did not think highly of the father however, she did not take the same license from questions to unreasonably criticise the father. To the contrary, there were several occasions where the mother indicated, in quite some detail, the benefit she saw of the children continuing to have a meaningful relationship with the father (see Transcript 22 June 2020, p.22 lines 12–13; p.57 lines 25–40).
For those reasons, in circumstances where there is a conflict in the evidence between the parties regarding the manner in which they engaged in conduct including the parties’ evidence relaying information that they have received from the children, I generally prefer the evidence provided by the mother. I will, however, during the course of this judgment, indicate where I have preferred the evidence of one party over the other.
PARENTING MATTERS
The law – concepts and principles
The relevant statutory provisions applicable to proceedings in relation to children are set out in Pt VII of the Act. Section 60B(1) sets out the objects of Pt VII, which are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
More generally, the Act makes it clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare”, and to protect them from family violence: see ss 43(1)(c) and (ca) of the Act.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
…
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
…
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In Dundas & Blake (2013) FLC 93-552 at 87,409, the Full Court held that s 61DA of the Act is mandatory in the sense that the presumption must be applied until the Court is satisfied that it would not be in the interests of the child for the presumption to apply. In that context, the Full Court said:
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted. …
In VR & RR (2002) FLC 93-099 at 88,940, the Full Court said:
… [I]n our view it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner the parent deems appropriate, should be made only where the Court is of the view that the welfare of the child will be clearly advanced by that order being made.
Those authorities must, however, be read in the context of s 65DAC(2) and (3) of the Act, which provide that, in the event of an order being made for parents to have shared parental responsibility, then, in circumstances where that responsibility involves making a decision about a major long-term issue in relation to the child:
(2) The order is taken to require the decision to be made jointly by those persons.
…
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
As referred to by the solicitor for the mother, the Full Court, in Marvel v Marvel (2010) 43 Fam LR 348 at [103], acknowledged the circumstances in which it might be inappropriate to make an order for equal shared parental responsibility, stating that:
It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.
If an order for equal shared parental responsibility is made, the pathway set out in s 65DAA of the Act applies to the task before the Court in respect to making parenting orders that it considers to be in the best interests of the child. That is, the Court is required to apply a presumption that, in those circumstances, the child should spend equal or substantial and significant time with each of the parties. However, even if the presumption does not apply the Court may nonetheless order that the children spend equal or substantial and significant time with the non-resident parent and that is the course of action which I take in these proceedings.
Equal or substantial and significant time
Section 65DAA(5) of the Act provides that, in considering whether it would be in the child’s best interests for him to spend, firstly, equal time with each of the parties or, secondly, substantial and significant time with each of the parties the Court is required to consider whether it is reasonably practical for the child to spend equal or substantial and significant time with each of the parties, having regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out a list of matters that the Court must consider in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all of the s 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: see s 60CC(2)(b) of the Act.
Meaningful relationship
Section 60CC(2)(a) of the Act requires me to consider the importance of the child having a meaningful relationship with each of the parties. On the other hand, I must consider the issue of the risk associated with the child possibly being subject to physical or psychological harm, neglect or abuse in the care of either of the parties.
In Sigley v Evor (2011) 44 Fam LR 439 at [132], the Full Court, quoting Brown J in Mazorski & Albright (2007) 37 Fam LR 518, confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child”.
Protection from Harm
The second primary consideration, as set out in s 60CC(2)(b) of the Act, is the question as to whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent. The decision of Stott & Holgar [2017] FamCAFC 152 confirms at [38] that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case to decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm.
The task of determining whether an unacceptable risk, in terms of s 60CC(2)(b) of the Act, exists is assisted by having regard to the following principles:
·In devising tests to determine whether unacceptable risk exists, the Courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from abuse and the possibility of benefit to the child from parental access: see M v M (1988) 166 CLR 69 (“M v M”) at 78; B and B (1993) FLC 92-357 at 79,778.
·It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse. The “test” of “unacceptable risk” also requires assessments of risk of future physical and emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M at 77.
·Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5 at [146]–[148].
·Determining the issue of risk essentially involves applying a risk matrix whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence: see Deiter & Deiter [2011] FamCAFC 82 at [61]. That is, there is an obligation on a trial judge to evaluate, not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N & S (1996) FLC 92-655 at 82,713 (per Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303 and in Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96].
·The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or some only of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at 81,890-81,891 endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249.
·While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact, “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”: see the Hon Richard Chisholm ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, (Conference Paper, Children’s Court Conference, Parramatta, 1 September 2010).
·Having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 at [83] referring to Russell & Close [1993] FamCA 62.
Additional considerations

Section 60CC(3) of the Act sets out additional considerations in determining what is in the children’s best interests. I will set out each additional consideration below.
Consideration
I will set out those matters relevant to the s 60CC(3) additional considerations before discussing the primary considerations of ‘meaningful relationship’ and ‘issue of risk’ and the issue of equal or substantial and significant time and parental responsibility.
Section 60CC(3) additional considerations
Sub-sections (3)(a) and (b) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views, and the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
Dr J, in her Report, records that both D and E’s expressed view that they would both prefer an equal time arrangement with each parent. The mother also acknowledged that E had advised her that he wished to spend more time with his father. The mother expressed the view that both D and E crave their father’s attention but she believes that they would have expressed that view to Dr J in the expectation that it would make their father happy (Transcript 22 June 2020, p.58–59 lines 46 –29).
The father attests to the children often expressing their distress at leaving his care. He did not attribute that to the children being concerned about moving into the care of the mother but rather that he accepts that the children may find the transition to be difficult (see Transcript 24 June 2020, p.207 lines 13–27).
The mother acknowledges that the children love their father and they expressed to her, at times, that they want to be with him (Transcript 22 June 2020, p.20 line 3). In that context, the mother agreed to the proposition put to her by senior counsel for the father that the children would not be happy if they spent only four (4) nights per fortnight with the father during school holidays rather than spending half of those holidays with him (Transcript 22 June 2020, p.20 lines 13–16).
The mother acknowledges that the children enjoy spending time with their father however, she contended that she and the father have “very different parenting styles” and she observes the children to be unsettled “the longer they spend going between the two houses” (Transcript 22 June 2020, p.32 lines 19–20).
The mother believes that the children’s attitude towards her is influenced by the presence of the father and, in that respect, contends that when they are in the father’s care they are reluctant to speak to her including by way of telephone calls. The mother stated that:
E actually refuses to speak to me when he’s in his father’s care, which is complete contrast to the relationship I have with him when the father is not around and involved day-to-day on the activities when we’re at home or round – just doing family things.
(Transcript 22 June 2020, p.72 lines 15–18)
At paragraph 127 of her Affidavit filed 12 May 2020, the mother states that after F returned home, on 6 April 2020, she became angry and shouted at the mother. Upon the mother subsequently enquiring as to why she had become so upset, the mother states that F said to her words to the effect:
Daddy got angry at me. He was shouting. I wanted to talk to you. Daddy wouldn’t let me talk to you. I couldn’t ask D to call you as Daddy would be suspicious. He always makes me talk to you where he can hear. He’s always listening when I talk to you.
In her Affidavit filed 12 May 2020, the mother describes a number of incidents where the children have misbehaved in her care, including instances where they have used abusive and insulting language to her. During the course of the proceedings, the father acknowledged that this can “sometimes” occur but denied that it was a feature of the children’s conduct when they were spending time with him (Transcript 23 June 2020, p.172 lines 8–38).
In considering the unequivocal views expressed by D that he wishes to spend more time with his father, I have taken into consideration that D has been influenced in those views by comments that have been made by the father to him regarding the parental conflict in these proceedings. The father’s conduct in that respect is further detailed in this judgment where I set out relevant considerations pursuant to s 60 CC(3)(f) and (i) of the Act. In that respect, at paragraph 197 of her Report dated 29 January 2019, Dr J outlines that D has “the impression that his mother has been the instigator of the parental separation which has caused him so much distress”. I accept the validity of Dr J’s reasoning for arriving at that conclusion. I further accept the validity of Dr J’s conclusion that she attributes that impression on the part of D from the conduct of the father and not the mother: (see Transcript 24 June 2020, p.244 lines 25–40).
Similarly, in considering the views expressed by E that he wishes to spend more time with his father, I also take into consideration the fact that those views have been influenced by statements and the conduct of his father. In that respect at paragraphs 198 to 200 of her Report, Dr J opines:
198.E also expressed a very strong view that he wished to spend more time with his father. In fact, he told me, without question and quite spontaneously that he wished to have “two weeks with dad and then one week with mum”. The rationale he gave me was that his mother was requiring him to do chores which he found excessive and unfair, such as bringing in and folding washing and limiting his screen time. He also said that he felt that the current arrangements were “one-sided” and thought that it was important that they should be fair. E also said that he misses his father more than his mother.
199.I was very concerned that E expressed such specific views without prompting. It is quite developmentally abnormal for a nine-year-old child to have become so consumed with parenting arrangements, that they devise particular time schemes, unless the child has been exposed to prompting or emotional reinforcement for expressing such views. It is my strong impression that E is presenting in this manner in a way which he considers reinforcing the views his father wishes him to have. Like his brother, E perceives the father as the victim in the parents’ separation and is the parent who has been “left”
200.E’s view has also been strongly influenced by his desire to have his parents reconcile and have a resolution to the conflict. He spoke, very sadly, about his parents’ separation. He said he could recall his father “on his knees begging”. I think that E has strongly formed the view that his father wishes to reconcile with his mother but that his mother does not wish to do so. He said, “dad wishes that they were back together” and “my dad still loves my mum”.
Once again, Dr J, justifiably in my view, for reasons set out in her Report, agreed with the proposition presented to her by senior counsel for the mother that those perceptions and views which are held by E are “entirely attributable to the father” (see Transcript 24 June 2020, p.246 lines 16–26).
Dr J observed that the children have strong relationships with their extended families on both sides and, in that context, considered the mother’s proposal for the children to spend only periods of four (4) nights per week with their father, including during school holidays, would adversely impact upon the children’s ability to spend time with their broader paternal family including visiting them in Melbourne (see Transcript 24 June 2020, p.235–236 lines 8–19). I accept the validity of that opinion.
Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; to spend time with the child; and to communicate with the child
The evidence satisfies me that, as a result of his work commitments, the father was not, during the period of the parties’ marriage, able to spend as much time with the children as he would have liked to. However, the father has since managed to obtain more flexible working arrangements and I am satisfied that each of the parties have taken every reasonable opportunity available to them to spend time with the children and communicate with the children in the period subsequent to separation.
The parties have also each endeavoured to participate in making decisions about major long-term issues in respect to the children. Indeed, unfortunately, the desire of both parties to participate in making those decision has, on occasions, been the source of further disputation between them.
Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
While expressing some concerns regarding the conduct of the father at a time that he was made redundant from his employment, the father, in my view, is to be commended in respect to the manner in which he has provided for the physical needs of the children. This includes paying $28,821 per annum by way of child support in accordance with the assessment of the Child Support Agency.
In addition, as noted by senior counsel for the father, the father voluntarily pays the children’s private school fees of $12,237. He also voluntarily pays the children’s private health insurance premium of $2,679 per annum. The father also voluntarily pays the children’s music lessons which amount to $1,600 per annum and he has also purchased computers for the two older children to the value of $2,700.
Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child) with whom they have been living
The children have, to date, been living with the mother and spending four (4) nights per fortnight with the father with one of those nights being for a few hours rather than an overnight stay. Accordingly, orders providing for the children to spend additional time with the father would represent a change for them. Orders, as proposed by the father and the Independent Children’s Lawyer, which would provide for the children to spend an equivalent amount of time with each of the parties, would be a significant change.
At paragraphs 229 to 232 of her Report, Dr J states, in respect to this consideration:
229.In this matter, it is quite difficult to accurately predict the likely effect of any change in the children circumstances, most particularly any change in their living arrangements.
230. With respect to D and E, on the one hand, I think that they would initially present as quite pleased if they were to spend more time with the father as this would be in accordance with their expressed views. However, I think that over time, that both children may experience some difficulty with the adjustment. The reality is that they have not experienced more lengthy periods of ordinary weekly time with the father. They currently both report a preference for their father’s more lenient parenting style as opposed to their mother’s stricter regime. I think that they have both also enjoyed spending more time with the father during weekends and school holiday time than they perhaps previously did. I think it is likely that, over time, D and E may experience transition difficulties in such a scenario, particularly if the father’s parenting regime becomes more regimented. Further, I think that both boys are looking to an arrangement that is largely “fair” and possibly which serves as a resolution to the conflict between their parents.
231.In the case of F, I think she would experience attachment distress if she were to be significantly separated from her mother. F has been in her mother’s primary care until relatively recently, when she has spent more extended periods of time with the father.
232.I think that F is old enough to manage more extended separation from the mother, but given the history of recent conflict in the family, may experience more attachment distress with extended separation from her mother
In accordance with interim orders made on 11 July 2018 that are currently in force pending the delivery of this decision, the time that the children have spent with their father is, as noted by Dr J, primarily on weekends and on holidays. I respectfully agree with Dr J’s assessment that the evidence indicates that, in that context, the father has been the more lenient parent who, as described by Dr J, has been “the one getting them Netflix and allowing them time on their devices” (Transcript 24 June 2020, p.235 lines 33–35).
Providing for a parenting regime where the children spend a greater amount of mid-week time with the father would, accordingly, be a change for them. Dr J expressed the view that such a change would actually be of benefit to the children and that the children should spend mid-week time with their father because:
… it will be good for the children to see and experience their father putting them to bed on time, doing the homework… putting limits on screen time – and all the things that parents have to do – if they then have the consequence in the next day and the next day in the school or every-day kind of week.
(Transcript 24 June 2020, p.235 lines 35–39)
The orders proposed by the mother would have the effect of the amount of time that the children spend with the father during school holidays being reduced. For reasons which I have elsewhere set out, I do not consider that such an order would be in the best interests of the children because it would be strongly opposed by the two older children, in particular, and it would deprive the children of the opportunity of going on holidays with the father and spending time with their broader paternal family, some of whom live in Melbourne.
Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
In terms of practical considerations, the mother is an educator and shares school holidays with the children. Her daily working hours are also similar to those of the children.
Since the parties’ separation, the father has made an effort to obtain employment with greater flexibility. He states that his current regime is that he typically leaves work about 2.00pm or 3.00 pm during those days that the children are in his care and he will tend to work later on those days when the children are with the mother. In response to a question from counsel for the Independent Children’s Lawyer, the father confirmed that he would usually be in a position to collect the children from school each day (Transcript 24 June 2020, p.222 lines 28–30).
Accordingly, there are no major practical difficulties in the children spending time in either household. This is in circumstances where both homes are within reasonable proximity to each other.
Sub-sections (3)(f) and (i) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and the attitude to the child and parental responsibilities by each of the child’s parents
At paragraph 58 of his Affidavit filed 12 May 2020, the father stated:
Over the years I have observed [the mother] physically discipline the children. I have observed her smack, pin down and hold them with force. I have also observed marks on the children after she has smacked them. For instance when D was approximately 4 or 5, he was reluctant to get out of the bath. [The mother] smacked him on the back of the legs with her hand to get him out of the bath. I observed red marks on the back of his legs
This was denied by the mother who, comparatively, contends in her Affidavit in reply filed 9 June 2020 that it was the father who engaged in excessive discipline of the children. The mother’s evidence in that respect is corroborated by the children giving an account to FACS of instances where the father lost his temper. There is no report of the children making a similar statement in respect to the mother.
Neither party contends that the children are at physical risk of harm in the care of either of the other party. Further, the father stated that he did not consider the mother to be a psychological risk to the children (Transcript 23 June 2020, p.135 lines 32–33).
In response to questions from senior counsel for the father, the mother agreed that the father loves the children and that he looks after them when they are in his care (Transcript 22 June 2020, p.32 lines 32–38). The mother, however, expresses concern for the psychological well-being of the children particularly if they are in the care of the father for extended periods of time. She contends that such a period would be a period of time exceeding four (4) days. The risk to the children, according to the mother, is as result of the father having a propensity to lose his temper, a tendency to lack objectivity in respect to his approach to parenting and, as a related matter, failure to be attuned to the children’s emotional well-being.
The mother’s concerns about the father lacking objectivity is supported in respect to the evidence provided by the father wherein he described an incident in January 2016 when, while not threatening the mother, he produced a knife during an emotional exchange between the parties. While acknowledging that his actions were inappropriate, the father stated that he did not accept responsibility for the incident but rather that his conduct resulted from a pattern of conduct on the part of the mother which constituted “significant emotional abuse” which the father attributed to the mothers state of anxiety (Transcript 23 June 2020, p.127–129 lines 1–39). That incident is discussed in greater detail in respect to the issue of family violence. While that incident did not involve the children, the father’s perception of the incident demonstrates, in my view, a propensity, on the part of the father, to have an egocentric view of events. This included, in respect to the January 2016 incident, perceiving himself as the victim of events rather than a responsible adult who had clearly engaged in unacceptable and concerning dysregulated behaviour.
The mother’s concern regarding the father’s propensity to lose his temper is corroborated by interview notes taken by the interviewing officer of FACS. Relevant extracts from those interview notes, which were taken on 10 August 2017, include the FACS interviewer’s notes of her interview with F which record F as saying the following in respect to a question as to what caused her to have worries:
When my daddy shouts at me it hurts my ears & gives you a headache.
When he is angry
…
Daddy smacks me – on arm with a wooden shoe
(See ‘Exhibit 6’ marked in the proceedings)
The FACS interviewer’s notes recording her interview with E record the following in respect to aspects of the father which he did not like: “he shouts, when angry he squeezes our arms, he holds me tight even though I have small arms”. In response to a question as to when the father last hurt him, E is recorded as having replied “July sometime”.
In the interviewing officer’s notes on her interview with D, record that she enquired regarding D’s relationship with his father. D stated that the father is “good dad, we love going on road trips together, we ok in car, we still do it quite often”. However, regarding matters that he didn’t like in respect to his relationship with the father, D stated:
he gets a bit upset
he is a bit annoying – not friendly when in that mood – fine with me.
unless someone purposely tempers him.
(See ‘Exhibit 6’ marked in the proceedings)

Other than during periods of unemployment, the father has continued to make regular periodic payments of child support as earlier referred to in this decision. Further, and as noted earlier in this decision, the father has been paying the children’s private school fees at systemic Catholic schools and has also been attending to payment of additional education expenses in respect to the children, as well as music tuition fees and purchasing computer equipment for the two older children.
Sub-section (2)(o) – any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
The mother acknowledged that when she returned to live in the Suburb C property following orders made by Rees J on 6 September 2017 and that she obtained the use of what had previously been the comprehensively furnished and equipped former family home. The mother states, however, that the father took and was free to take items that he required to establish his new home (Transcript 22 June 2020, p.32 lines 2–5). Nonetheless, a relevant matter that I have taken into consideration is the fact that, when the father left the Suburb C property pursuant to the orders of Rees J, it was necessary for him to incur expenditure in re-furnishing and equipping his new residence.
Sub-sections (2)(p) and (q) – the terms of any financial agreement and any Part VIIIAB financial agreement that is binding on the parties to the marriage
This is not a relevant consideration in these proceedings
Evaluation of s 75(2) factors
The mother contends that, on consideration of the s 75(2) factors, she should be entitled to an adjustment of between 10 to 15 per cent. Comparatively, senior counsel for the father conceded that the Court may consider that an adjustment to the mother of approximately five (5) per cent might be appropriate.
The father has both a commerce and engineering degree. He currently earns over $200,000 per year. It is expected he will continue to earn that income into the future. Senior counsel for the mother contended that the Court should have regard to the father’s evidence to the effect that he is currently not fully engaged in respect to the consultancy work which he performs.
I accept that, having regard to his qualifications and his career progression to date, the father has substantial earning capacity. However, in circumstances where he wishes to spend time with the children, he is, in my opinion, reasonably exploiting that earning capacity. I further accept that it is likely the father will continue to earn an income similar to his current earnings.
Comparatively, the mother earns approximately half the amount that the father earns, being approximately $100,000 per year. As acknowledged by senior counsel for the mother, there is no suggestion that she will be unable to continue to earn that income in the course of her career as an educator.
I am satisfied that the mother, through her contributions as a homemaker and the parent primarily responsible for the care of the children, has contributed to the father’s ability to achieve the success he has had in his career, which has provided him with the opportunity of earning the comfortable income that he now enjoys.
I am further satisfied that the mother has made career sacrifices as a result of the fact that she has taken time off work to care for the children, and of the fact that she returned to work on a casual and part-time basis immediately after periods off work following the birth of the younger two children. This remained the case until she returned to full-time employment in 2017. As a result, the mother’s career progression has been adversely impacted, although she is now at a point in her career where she is working full-time and there is no suggestion that her child caring responsibilities are impeding her career in that respect. Nevertheless, the mother’s assistance to the father’s career progression as against the sacrifice she has made in respect to her own career progression has been a factor in the significant income earning differential between the parties.
Further, in circumstances where I have made orders for the children to live with the mother nine (9) nights per fortnight, she will incur additional expenses over and above the amount she receives by way of child support from the father. These additional expenses are referred to in her Financial Statement filed 12 May 2020.
Having regard to those factors, I am satisfied that there should be an adjustment of 10 per cent in favour of the mother as result of the factors set out ins 75(2) of the Act.
Treatment of the respective superannuation entitlements of the parties
Senior counsel for the mother described her application in respect of the property proceedings as being effectively for orders that enable her to retain the Suburb C property. This, the mother contends, is important for the stability of the parties’ children who currently reside in that home. Senior counsel for the mother further acknowledged that she sought such orders even if this Court determines a division of the matrimonial asset pool that would require her to pay some amount to the father if she were to retain the property. In that respect, it was submitted that the orders should provide for some time to enable the mother to explore the possibility of raising those funds so that she can retain the home for herself and the children. Whilst the father did not oppose the mother having the opportunity to purchase the home, senior counsel for the father made no submission as to any length of time that should be permitted for the mother to raise sufficient funds to enable that to occur, nor as to the quantum of those funds.
In order to facilitate the mother being in a position where she is more likely to be able to afford to make a cash adjustment to the father such that she can retain the former matrimonial home, it was submitted by senior counsel for the mother that the Court should allocate the totality of the mother’s superannuation to the father, being the sum of approximately $53,000, and that the father would retain his current superannuation of approximately $337,000. In other words, the property adjustment, according to the mother’s proposal, is that the father would have a combined superannuation entitlement of approximately $400,000 which would be deducted from his side of the balance sheet before determining what additional cash adjustment, if any, should be made to him.
Comparatively, senior counsel for the father submitted, appropriately in my view, that, in considering a just and equitable adjustment of the parties’ property, the Court should also have regard to the fact that, as a result of the fact that he is discharging his financial obligations to the children, the father will himself, have difficulty in acquiring a property in which to live by himself and with the children when they spend time with him.
Essentially, the question becomes whether, in structuring the property orders, I make an order requiring the mother to transfer her superannuation entitlement to the father with a consequent result that she will not have to raise that amount, by way of additional funds, in order to pay the father an amount that would achieve an outcome whereby she could retain the Suburb C property unencumbered.
However, as noted by senior counsel for the father, it will be some years before the parties are able to access that superannuation and the pressing need for both parties at the present time is to obtain funds that give them the greatest prospect of being in a position to acquire a property in which they can live and in which the children can live when they spend time with that party. While the father does have a superior income to the mother, it is also the case that he is making a substantial contribution by way of child support and also by way of additional payments which he is making. In those circumstances, making orders that have an outcome whereby the value of the father’s superannuation entitlement is increased would not result in an outcome that is just and equitable.
Further, I note that the father’s superannuation entitlement has increased from approximately $50,000 at the commencement of cohabitation to the present value, as at the filing of the father’s Financial Statement on 12 May 2020, of $337,338 which now represents approximately 20 per cent of the parties’ total property and superannuation pool.
In determining whether to include the parties’ respective superannuation entitlements in the one pool together with their non-superannuation property, I have had regard to the decision of the Full Court in Coghlan, where the majority of the Full Court (per Bryant CJ, Coleman and Finn JJ) said at [52]:
… superannuation interests [which have not vested in possession] are but another species of asset (in addition to property as defined in s 4(1)) in relation to which orders can be made in proceedings between parties to a marriage.
In Drewett & Drewett [2012] FamCA 320, Cronin J at [184] referred to the statement of the majority of the Full Court in Coghlan at [63] as providing the preferred approach to the treatment of superannuation. That passage in Coghlan states as follows:
… we consider the preferred approach to the determination of property settlement cases must be to prepare in addition to the list of items of property (which would clearly fall within the definition of that term in s 4(1)), a separate list containing any superannuation, interest or interests (valued according to the regulations if a splitting order is sought in any application before the Court or if no such order is sought, valued either according to the Regulations or otherwise). …
In further discussing the decision in Coghlan, Cronin J said at [185]–[187]:
185.Their Honours said that whether or not a splitting order was sought on either party’s application, their contributions to both the property as defined in s 4(1) and also the superannuation interests should be assessed. The other factors in s 79(4)(d), (e), (f) and (g) would then need to be considered. The s 75(2) factors would then be considered.
186.Similarly, the parties’ future superannuation prospects, be they in capital or income form, would also need to be considered. The overall justice and equity of the ultimate award, including any proposed splitting order or the need for such an order, would then be considered. The Full Court then went on to set out how that pathway was to be followed. Their Honours then said:
In the context of the consideration of the matters referred to in subparagraphs (b) and (c) of a preceding paragraph in which they referred to the pathway the following matters may be relevant: the relationship between years of fund membership and cohabitation; actual contributions made by the fund member at the commencement of the cohabitation (if applicable) at separation and at the date of hearing; preserved and non-preserved resignation entitlements at those times; and any factors peculiar to the fund or to the spouse’s present and/or future entitlements under the fund.
187. Their Honours then said:
If this approach is adopted whereby superannuation interests are dealt with separately from properties defined in s 4, but are subject to the considerations in s 79(4) then not only will any contributions both direct and indirect by either party to such superannuation interests be more likely to be given proper recognition, but the real nature of the superannuation interests in question can also be taken into account both in consideration of the s 75(2) matters and in the final assessment of whether the ultimate order is just and equitable.
However, in this case, I was not addressed by the parties in respect to those matters referred to by the Full Court in Coghlan. That is, no evidence was presented and no submissions were made in respect to:
·the relationship between years of fund membership and cohabitation, save to the extent that it was agreed that the parties cohabited for a period of approximately 12 years;
·actual contributions made by the fund member at the commencement of the cohabitation, at separation and at the date of hearing; and
·any factors peculiar to the fund or to the parties’ present and/or future entitlements under the fund.
In those circumstances, I do not propose to treat the parties’ superannuation entitlements separately from the parties’ non-superannuation assets. As the parties’ property can be adjusted in accordance with the percentage split which I propose to make in this matter, without disturbing their existing superannuation entitlements, I do not propose to make a superannuation splitting order. I will, however, take into consideration their existing superannuation entitlements as an existing asset that they each have on their respective sides of the balance sheet.
Summary and conclusion in respect to the property aspect of the proceedings
In this matter I have found that the net asset and superannuation pool of the parties is as follows:

Item Ownership Description Value

ASSETS

1 Joint B Street, Suburb C
[the Suburb C property] $1,025,000

2 Joint ANZ Bank Account (ending #...55)
[the joint offset account] $20

3 The mother ANZ Bank Account (ending #...38) $86

4 The mother ANZ Bank Account (ending #...43)
[the ANZ Bank personal savings account] $20,890

5 The father CBA Bank Account (ending #...98) $56,065

6 The father Company R Shares $6,357

7 The mother Motor Vehicle 1 $11,300

8 The father Motor Vehicle 2 $4,000

9 The father Motor Vehicle 3 $43,150

10 The father Qantas Frequent Flyer Points Not included

11 The father Wine Fridge and Collection $35,000

12 The father Designer Watch $5,000

13 The mother Household Contents $2,000

14 The father House Contents $10,000

Total $1,218,868

ADDBACKS

15 The mother $100,000.00 taken by mother from joint offset account Not included

16

Total NIL

LIABILITIES

17 The father ANZ Platinum Credit Card $3,000

18

Total $3,000

SUPERANNUATION

Member Name of Fund Value

19 The mother Superannuation Fund 1 $53,010

20 The father Superannuation Fund 2 $337,338

Total $390,348

…

TOTAL OF ASSETS AND SUPERANNUATION $1,609,216

TOTAL LIABILITIES $3,000

TOTAL NET ASSET POOL $1,606,216

Having determined that the net asset pool, including superannuation, is $1,606,216, in circumstances where I have determined that the mother should have an adjustment in her favour of 7.5 per cent, the mother is entitled to a distribution that results in an outcome whereby she receives 57.5 per cent of the amount of $1,606,216 which is equivalent to $923,574.20.
The mother currently has the following assets and superannuation:

Item Description Value

3 ANZ Bank Account (ending #...38) $86

4 ANZ Bank Account (ending #...43)
[the ANZ personal savings account] $20,890

7 Motor Vehicle 1 $11,300

13 Household Contents $2,000

19 Superannuation Fund 1 $53,010

Total $87,286

In circumstances where the mother currently has total assets including superannuation to the value of $87,286 it is necessary for the mother to obtain from the father additional funds of $836,288.20. Alternatively, in the event that she wishes to acquire the Suburb C property, it will be necessary for the mother to pay the father the amount of $188,711.80, being the difference between the sum of her total assets and the agreed value of the property at $1,025,000, less the amount of $923,574.20, being the adjustment that I have determined is required to achieve the percentage split of the net asset pool of 57.5 per cent to the mother and 42.5 per cent to the father.
During the course of the proceedings the mother expressed a strong desire to acquire the Suburb C property and for title to be transferred to her name. In circumstances where the orders I have made will result in the children spending their time primarily with the mother, I propose to make orders providing the mother with the opportunity of raising funds for that purpose. I will specify a period of 60 days for that purpose.
In the event that outcome cannot be achieved, the orders will provide for the father to have that opportunity on the payment of the additional funds of $836,288.20, which I have referred to above. If that cannot be achieved, as a final default position, the orders will provide for the property to be sold and the proceeds divided according to the percentages that I have determined in this decision.
There is a small amount remaining in the joint offset account. Both parties agree that it should be closed. I have made an order to that effect with the small amount being credited to the father.
Accordingly, in respect to property matters, I make the orders set out at the commencement of these reasons for judgment.
CHILD SUPPORT DEPARTURE
In oral submissions, senior counsel for the mother clarified that her Application for child support departure orders is pursuant to s 117 of the Child Support (Assessment) Act 1989 (Cth) (“the Child Support Act”) (Transcript 23 October 2020, p.290 lines 23–29).
The mother acknowledged that the father continues to pay child support in respect to the children which she recalls is currently, as at the time she gave her evidence on 22 June 2020, in the sum of approximately $2,400 per month. The mother further acknowledged that the father is currently paying the children’s private school fees (Transcript 22 June 2020, p.42 lines 4–8; 25).
The mother stated that, despite the fact that the father is continuing to pay private school fees, it is her concern that after the conclusion of this litigation he will cease to make those payments. She therefore seeks an order confirming an ongoing obligation on the part of the father to make those payments, together with an obligation to pay tuition, composite fees and school development fees which the mother contends form part of the regular fee structure of the children’s private schools. The mother also seeks an order requiring the father to meet the cost of the children’s educational equipment including obtaining and maintaining a computer as required by the children secondary schools (Transcript 22 June 2020, p.44 line 23 to p.45 line 36).
On the same basis, the mother seeks orders requiring the father to pay the children’s private health insurance even though she acknowledges that he currently covers that expense. The mother further seeks orders requiring the father to meet any gap in fees actually charged by medical providers and the amount recovered from Medicare and private health insurance. The mother stated that the current arrangement is that whichever party takes the child to the medical service has tended to pay whatever the gap is (Transcript 22 June 2020, p.44 line 23 to p.45 line 4).
The mother explained her concerns regarding the possibility of the father ceasing to pay the amounts he is currently paying towards the children’s education and medical expenses on the following basis:
There has been a number of instances where [the father] has, following stating that he’s paying for their fees, attempted to take them out of my child support. The first instance was in 2017 when I was working one day a week, and he applied to have F’s preschool fees taken out of child support. In March 2018 he then applied to write to my legal team requesting that I – insisting that I pay my share of the school fees. The response was, given my part-time capacity, that I would not be able to afford to pay their school fees. He threatened to seek an injunction at court if I were to – if I would not – going to pay my share and enrol the children in a local public school which was what was suggested if he was unwilling to continue to pay their school fees. Again, in 2018 in August he again attempted to remove the school fees from my child support, again.
(Transcript 22 June 2020, p.45 lines 26–36)

The mother acknowledged, however, that some of those disputes regarding the father challenging his child support obligations and paying for those additional expenses, occurred during a period when the father was unemployed (Transcript 22 June 2020, p.45 lines 38–39).
In responding to questions from senior counsel in re-examination, the mother clarified her recollection that the father was made redundant in March 2018, as a result of which he received the equivalent of approximately eight (8) weeks’ pay by way of redundancy entitlement. The mother stated that, as a result of being unemployed, the father successfully applied for his child support to be reduced to zero. The mother initially successfully challenged that decision on the basis that the father had received redundancy pay. That decision was, in turn, challenged by the father on the basis that his redundancy pay when assessed on a weekly basis did not extend for the length of time calculated by the child support agency. This resulted in the period of deemed income from the redundancy being shortened.
The father confirmed during the course of responding to questions from senior counsel for the mother that he was currently meeting the school expenses referred to in paragraph 16 of the mother’s Amended Minute of Order provided to the Court by email on 19 June 2020 (Transcript 23 June 2020, p.120 lines 1-15). The terms of that paragraph 16 is identical to order 17 sought by the mother in her Further Amended Minute of Order to which I have earlier referred.
The father stated that, “for the near term”, he would have no difficulty in continuing to meet the children’s school fees and education expenses (Transcript 23 June 2020, p.121 lines 27–31). The father clarified his reference to the “near term” as follows:
It is my intention to pay them where so far as I am able. But I may not always find work that allows me to do that. And she makes no contribution to their school fees. Given the respective disposable incomes at the end of the month, presently I am able. I might not always be able…
(Transcript 23 June 2020, p.121 lines 35)
The father further clarified that, in the expectation that he will be in a position to continue to obtain an adequate remuneration, he would be in a position to continue to meet those expenses as set out in order 17(b) proposed by the mother. The father stated those items relate to matters that are included on the invoices from time to time presented by the children’s schools but that an exception to his ability to meet those expenses might be in respect to “interstate and overseas” excursions (Transcript 23 June 2020, p.121 line 41 to p.122 line 4).
The father also stated that he is currently meeting the expenses referred to in proposed order 17(c) sought by the mother, which relate to obtaining and maintaining and updating technology equipment and related matters for the children. The father stated, however, that he believed those expenses should be shared between himself and the mother. The father agreed with the proposition advanced by senior counsel for the mother that, in the event of the mother being unable or refusing to meet those payments, he would meet those expenses rather than “see the kids go without those things” (Transcript 23 June 2020, p.122 lines 4–14).
The father further confirmed that he is currently meeting the children’s private health insurance and that he will continue to do so, but that he desires that the parties share any gap payments for the children’s medical treatments (Transcript 23 June 2020, p.122 lines 16).
The difficulty for the mother is that she has not established the pre-requisite to the Court exercising its jurisdiction in respect to her application for child support departure orders. In that context, the Child Support Act sets out several threshold issues which are to be determined prior to the Court considering and subsequently making such departure orders.
In Saberton & Saberton [2013] FamCAFC 89, the Full Court confirmed at [12] that, before considering an application under s 117, the Court must be satisfied of the matters set out in s 116(1) of the Child Support Act.
Section 116(1) relevantly provides:
(1)A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
(b) 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 this Act;
(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; or
(c)in the case of a liable parent—the administrative assessment of child support payable by the liable parent for the child is made under subsection 66(1).
(Emphasis added)
If the requirements of s 116(1) of the Child Support Act is satisfied, the Court is then required to consider and be satisfied of the matters set out in s 117 before making a departure order.
Section 117 sets out a three step approach which has been described by the Full Court in Gyselman and Gyselman (1992) FLC 92-279 at 79,064 (“Gyselman”) in the following terms:
The structure of that section is that s 117(1)(b) identifies concisely the matters about which the Court must be satisfied and those components are then expanded in sub-sections (2) to (9). Section 117(1)(b) identifies a clear three step process:
1. Whether one or more grounds of departure in s 117(2) is established.
If so:
2.Whether it is “just and equitable” within the meaning of s 117(4) to make a particular order.
3.Whether it is “otherwise proper” within the meaning of s 117(5) to make a particular order.
It is clear from the careful way in which s 117 has been structured that the Court must address each of those three separate issues.
The Full Court in Gyselman further noted at 79,065:
Section 117(2) sets out the grounds for departure from administrative assessment. Each of those grounds is prefaced by the words, “in the special circumstances of the case”. Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasize that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases. In Savery’s case (p. 77,897), Kay J, adopting the view in Philippe and Philippe (1978) FLC 90-433 at p. 77,202 in a different context, said that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”. The approach to the interpretation and application of the particular grounds in s 117(2) must be guided by that qualification.
In Turner & Turner and Anor (2016) FLC 93-719, the Full Court confirmed at [108] that “[w]hilst the provisions of the legislation have been altered since 1993, those principles [set out in Gyselman] still hold good”.
In terms of the legislative requirements set out in s 116 of the Child Support Act, it is clear that the liable parent (in this case the father) and also the carer (in this case the mother) are parties to an application in a court having jurisdiction under the Child Support Act and accordingly, the requirements of ss 116(1)(b)(i) are satisfied.
It is, however, also necessary for the mother to satisfy the Court of the matters set out in ss 116(1)(b)(ii) of the Child Support Act. That is, the Court must be satisfied that it is in the interests of both the liable parent (the father) and the carer entitled to child support (the mother) for the Court to consider whether a departure order should be made in the special circumstances of the case.
In that respect, in Seymour & Seymour [2011] FamCAFC 97 (“Seymour”), Strickland J said at [84]:
...there is a second prerequisite in s 116(1)(b), and that is the requirement in sub-paragraph (ii) that “the court is satisfied that it would be in the interests 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.” The difficulty in this case is that it is not apparent that the Federal Magistrate turned his mind to this requirement let alone found that he was so satisfied. Accordingly, it cannot be said that s 116(1)(b) has been satisfied in its entirety, and thus the Federal Magistrate did not have jurisdiction to hear and determine the application for that reason.
In summary, a jurisdictional precondition to the Court considering the mother’s Application for a child support departure order pursuant to s 117 of the Child Support Act is the Court being satisfied that it is in the interests of both parties for such an order to be made.
In this matter, the father strongly opposed the making of such an order and no evidence was presented by the mother as to why the making of such an order would be in his interest. Senior counsel for the mother contended that, to give the legislation a construction which required the Court to be satisfied that a departure order was in the interests of the paying parent, would severely limit the prospects of a successful child support departure application in circumstances where it is opposed. My role, is, of course, to decide the case currently before the Court and not to speculate as to the potential application of the section to other factual contexts. However, I note the relevant legislative context, as remarked in Gyselman, where the Parliament has provided that issues of child support should ordinarily be determined administratively and not by an expensive litigious process.
In that respect, Thackray J stated in Harris & Ellis [2011] FamCAFC 90:
23. There have always been limitations on the circumstances in which a party can apply to a court for a departure order. Those limitations were significantly amended by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth) (“the Reform Act”).
24. The major difference following the commencement of the amendments made by the Reform Act was the requirement for a party aggrieved by a decision of the Agency to seek a review from the Social Security Appeals Tribunal (“the SSAT”), rather than applying to a court for a departure order. A party aggrieved by a decision of the SSAT may appeal to a court, but the right of appeal is restricted to questions of law: Child Support (Registration and Collection) Act 1988 (Cth) s 89 and s 110B.
In considering the purpose and intent of the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth), it is instructive to have regard to the following extract from the Explanatory Memorandum:
This Schedule [3 of the Reform Act] expands the role of the Social Security Appeals Tribunal to include independent review of child support decisions, providing a review mechanism that is inexpensive, fair, informal and quick.
Background
Presently, if a carer or liable parent does not agree with a decision of the Child Support Registrar, he or she may object through the internal objection procedure. If the carer or liable parent is still dissatisfied with the decision, he or she must generally appeal to a court with Family Law jurisdiction. A parent who appeals to a court must bring their action against the other parent in an adversarial process. The child support legislation makes the carer and the liable parent, rather than the Child Support Registrar, parties to the appeal. This is perceived to be an unfair aspect of the child support system. The court process can be expensive and time consuming, as well as amplifying animosity between separated parents. Consequently, external review of the Registrar’s decisions is not often sought.
Schedule 3 introduces review by an independent external body, the Social Security Appeals Tribunal (SSAT), of child support decisions which have been reviewed under the Child Support Agency’s internal review procedure. The purpose of introducing this is to provide external review mechanism which is faster, less formal and less expensive than court action, while still providing just and fair outcomes. The Registrar is the primary respondent to an application for appeal, although the other parent is also a party (with the exception of limited circumstances in which the outcome cannot affect the other parent). It is an inquisitorial, rather than an adversarial, process, which may assist in reducing tensions between separated parents when resolving child support issues. Most of the current limited AAT appeals, relating to decisions primarily affecting only one parent, will now be performed by the SSAT.
Parents, and certain other people affected by a child support decision, may appeal a decision of the SSAT to a court on a question of law. …
In Yewen & Child Support Registrar & Anor [2014] FCCA 2399, Judge Brown considered this legislative history and said:
76. The rationale for the exclusion of the court, from the process of review, is readily explicable in light of the objects as outlined in section 4 of the Assessment Act. Court proceedings, regarding child support assessments, should be the exception rather than the rule. This is particularly so, since the inauguration of the external level of appeal, in child support matters, provided by the SSAT.
77. The instigation of appeals to SSAT, in child support matters, was part of a wide ranging reform of the child support system inaugurated by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (the “Reform Act”). The SSAT is intended to be a specialist tribunal, dealing with child support matters, in preference to a court such as this one.
….
79. The important matter to note, in my view, is that departure applications are to be heard by the court in what are categorised as being limited circumstances, given the desirability of such issues being determined in a manner characterised as being less adversarial, whilst, at the same time, remaining fair.
I respectfully agree with the analysis of the legislative history by Judge Brown and, in particular, his Honour’s conclusion that court proceedings regarding administrative child support assessments should be the exception rather than the rule.
Accordingly, there is no reasonable basis for this Court to read down the provisions of s 116 of the Child Support Act and it would not be proper to do so. As noted by Strickland J in Seymour, s 116 establishes a jurisdictional precondition to the making of a child support departure order and the mother has failed to satisfy the Court of the existence of that jurisdictional precondition.
For completeness, I would add that even if I had been satisfied of the existence of the jurisdictional precondition set out in s 116 of the Child Support Act, the mother has not presented evidence that satisfies me that the “special circumstances” requirements of s 117 of the Child Support Act have been satisfied. The fact that there was a dispute between the parties as to the appropriate amount of child support to be paid by the father in circumstances where he had been retrenched from his employment and in circumstances where he did not, at the time of retrenchment, know how long he would be out of the workforce is insufficient, in my view, to satisfy the “special circumstances” criteria.
Accordingly, for these reasons, I dismiss the mother’s Application for a child support departure order.
CONCLUSION
For the reasons which I have earlier set out, in respect to the property dispute between the parties, I propose to make orders providing for the mother, within 60 days of the date of these orders, to pay the father the sum of $188,711.80 and, simultaneously with that payment, for the father to transfer his interest in the Suburb C property to the mother.
In the event that the mother is unable to raise those funds within that time, the orders will provide the father with the opportunity of the property transferred to him by paying, within a further 30 days, the sum of $836,288.20
The orders will provide a final default mechanism for sale of the property in the event that neither party is able to raise sufficient funds in accordance with those orders to which I have referred.
The property orders will provide for the parties to otherwise retain all other property and superannuation in their own name and be responsible for debts in their own name.
In terms of parenting orders, I propose to make an order for the parties to have shared parental responsibility, other than in respect to any decision as to whether the children should attend psychological therapy which shall be made by the mother after appropriately consulting with the father.
I will make orders for the children to live with the mother and spend five (5) nights per fortnight with the father, from after school on Thursday until before school on Tuesday morning.
In respect to spend time arrangements during school holiday periods, I will make orders as proposed by the Independent Children Lawyer which were not opposed by the father.
There was not a significant difference between the parties in respect to the orders sought by the Independent Children’s Lawyer, which I have set out under the subheading dealing with the consideration set out in s 60 CC(3)(l) of the Act, and I will make orders in those terms proposed by the Independent Children’s Lawyer.
During the course of the proceedings, I was not addressed by the parties in respect to the costs order sought by the Independent Children’s Lawyer. I will therefore make an additional order requiring the parties, in the event that they oppose the costs order sought by the Independent Children’s Lawyer, to provide brief written submissions regarding that matter. Those brief written submissions should be no more than two (2) pages in length and provided within 14 days of the date of these orders. In the event that no such submissions are made, a default order will apply for each party to share those costs.
Accordingly, for all these reasons, I make the orders as set out at the commencement of my reasons for judgment.

I certify that the preceding five hundred and two (502) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.
Associate:
Dated: 15 March 2021

File number(s):	SYC 4915 of 2017
Judgment of:	MCCLELLAND DCJ
Date of judgment:	15 March 2021
Catchwords:	FAMILY LAW – CHILDREN – Best interests of the children – Where the mother seeks orders for sole parental responsibility and for the children to live with her and spend alternate weekends with the father – Where the father and the Independent Children’s Lawyer seek orders for shared parental responsibility and for the children to spend equal time with the parents – Where the mother asserts risk to the children’s emotional and psychological wellbeing in the extended care of the father – Where the Court finds the main risk to the children is continued exposure to the parental conflict – Orders made for shared parental responsibility and for the children to live with the mother and spend substantial and significant time with the father. FAMILY LAW – PROPERTY – Final property orders – Where the parties seek orders for an adjustment of the matrimonial property pool – Where the Court finds that the contributions that the parties made during the course of their relationship is equal – Where The Court determines the husband is entitled to a 2.5% adjustment in his favour as a result of a greater initial contribution – Where the Court finds that the wife is entitled to a 10% adjustment on the basis of s 75(2) factors in respect to the career sacrifices she has made and to take on homemaker and parenting responsibilities which has enabled the husband to advance in his career – Orders made for a 57.5 per cent distribution of the matrimonial asset pool in favour of the wife. FAMILY LAW – CHILD SUPPORT – Child support departure orders – Where the mother seeks child support departure orders for non-periodic payments of the children’s school and medical expenses – Where the parties acknowledge that the father currently pays those expenses – Consideration of the ss 116 and 117 Child Support (Assessment) Act 1989 (Cth) – Where the Court concludes that s 116(1)(b) is a jurisdictional precondition for making child support departure orders – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 43, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 75(2), 79 Evidence Act 1995 (Cth) s 140 Child Support (Assessment) Act 1989 (Cth) ss 116, 117 Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth) Tribunals Amalgamation Act 2015 (Cth)
Cases cited:	A v A (1998) FLC 92-800 Adamson & Adamson (2014) FLC 93-622 B and B (1993) FLC 92-357 Blinko & Blinko [2015] FamCAFC 146 Calder & Calder (2016) FLC 93-691 Carmel-Fevia & Fevia (No. 3) [2012] FamCA 631 Coghlan and Coghlan (2005) FLC 93-220 Deiter & Deiter [2011] FamCAFC 82 Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5 DJM and JLM (1998) FLC 92-816 Drewett & Drewett [2012] FamCA 320 Dundas & Blake (2013) FLC 93-552 Fields & Smith (2015) FLC 93-638 Grier v Malphas (2016) 55 Fam LR 107 Gyselman and Gyselman (1992) FLC 92-279 Harris & Ellis [2011] FamCAFC 90 Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143 Jabour & Jabour (2019) FLC 93-898 Johns & Jasapas [2016] FamCA 471 Johnson & Page (2007) FLC 93-344 Kane & Kane (2013) FLC 93-569 Kildea v Kildea (2007) 38 Fam LR 347 Kowaliw and Kowaliw (1981) FLC 91-092 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 M v M (1988) 166 CLR 69 Manolis v Manolis (No 2) [2011] FamCAFC 105 Marvel v Marvel (2010) 43 Fam LR 348 Mayne & Mayne (2011) FLC 93-479 Mazorski & Albright (2007) 37 Fam LR 51 N & S (1996) FLC 92-655 Napier & Hepburn (2006) FLC 93-303 Nikolakis & Nikolakis [2010] FamCAFC 52 Omacini and Omacini (2005) FLC 93-218 Petruski v Balewa (2013) 49 Fam LR 116 Pierce & Pierce (1999) FLC 92-844 Quaresmini & Quaresmini [1999] FamCA 1314 Russell & Close [1993] FamCA 62. Saberton & Saberton [2013] FamCAFC 89 Seymour & Seymour [2011] FamCAFC 97 Sigley v Evor (2011) 44 Fam LR 439 Stanford & Stanford (2012) 247 CLR 108 Stott & Holgar [2017] FamCAFC 152 Townsend and Townsend (1995) FLC 92-569 Trevi & Trevi [2018] FamCAFC 173 Turner & Turner and Anor (2016) FLC 93-719 VR & RR (2002) FLC 93-099 Wallis & Manning (2017) FLC 93-759 Yewen & Child Support Registrar & Anor [2014] FCCA 2399 Hon John Fogarty, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249 Hon Richard Chisholm ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, (Conference Paper, Children’s Court Conference, Parramatta, 1 September 2010)
Number of paragraphs:	502
Date of hearing:	22-24 June 2020; 23 October 2020
Place:	Sydney by web conference
Counsel for the Applicant:	Mr Cummings SC
Solicitor for the Applicant:	Mills Oakley Lawyers
Counsel for the Respondent:	Mr Lloyd SC and Mr Moutasallem
Solicitor for the Respondent:	Millennium Lawyers
Counsel for the Independent Children's Lawyer:	Mr Lawrence
Solicitor for the Independent Children's Lawyer:	Marsdens Law Group

SYC4915 of 2017
BETWEEN:	MS HEROUZ Applicant
AND:	MR HEROUZ Respondent
MARSDENS LAW GROUP Independent Children’s Lawyer

ORDER MADE BY:	MCCLELLAND DCJ
DATE OF ORDER:	15 MARCH 2021

Item	Ownership	Description	Value
ASSETS
1	Joint	B Street, Suburb C [the Suburb C property]	$1,025,000
2	Joint	ANZ Bank Account (ending #...55) [the joint offset account]	$20
3	The mother	ANZ Bank Account (ending #...38)	$86
4	The mother	ANZ Bank Account (ending #...43) [the ANZ Bank personal savings account]	$20,890
5	The father	CBA Bank Account (ending #...98)	$56,065
6	The father	Company R Shares	$6,357
7	The mother	Motor Vehicle 1	$11,300
8	The father	Motor Vehicle 2	$4,000
9	The father	Motor Vehicle 3	$43,150
10	The father	Qantas Frequent Flyer Points	Not included
11	The father	Wine Fridge and Collection	$35,000
12	The father	Designer Watch	$5,000
13	The mother	Household Contents	$2,000
14	The father	House Contents	$10,000
Total		$1,218,868
ADDBACKS
15	The mother	$100,000.00 taken by mother from joint offset account	Not included
16
Total		NIL
LIABILITIES
17	The father	ANZ Platinum Credit Card	$3,000
18
Total		$3,000
SUPERANNUATION
Member		Name of Fund	Value
19	The mother	Superannuation Fund 1	$53,010
20	The father	Superannuation Fund 2	$337,338
Total	$390,348
…
TOTAL OF ASSETS AND SUPERANNUATION				$1,609,216
TOTAL LIABILITIES				$3,000
TOTAL NET ASSET POOL				$1,606,216