JARROTT & JARROTT

[2011] FamCA 819

FAMILY COURT OF AUSTRALIA

JARROTT & JARROTT [2011] FamCA 819

FAMILY LAW – CHILDREN – With whom children shall live – Relocation

FAMILY LAW – CHILDREN – With whom children shall live – high conflict in the parental relationship – the father has remarried – conflict between the mother and the children’s stepmother – lack of communication – children aware of adult conflict – mother has been the primary carer of the children since birth – children shall live with the mother

FAMILY LAW – CHILDREN – With whom children shall spend time – children have meaningful relationships with both parents – children are developing a relationship with their stepmother – each parent values the relationships of the children with the other parent – the mother – children expecting birth of half-sibling – children’s need to be included in the father’s new family – children shall spend substantial and significant time with the father

FAMILY LAW – PROPERTY SETTLEMENT – Contributions

FAMILY LAW – SPOUSAL MAINTENANCE – Factors considered

Family Law Act 1975 (Cth) ss 60CC, 75(2), 79(4)

APPLICANT: Mr Jarrott

RESPONDENT: Ms Jarrott

FILE NUMBER: (P)SYC 1134 of 2009

DATE DELIVERED: 12 August 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Sydney

JUDGMENT OF: Cleary J

HEARING DATES: 4, 5, 6 & 7 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Lloyd SC

SOLICITOR FOR THE APPLICANT: McDonnell Milne Toltz

COUNSEL FOR THE RESPONDENT: Mr G Gersbach

SOLICITOR FOR THE RESPONDENT: Tonkin Drysdale Partners

Orders

Children

1. That the parties have equal shared parental responsibility for S JARROTT born … March 2004 and U JARROTT born … February 2007 (the children).

2. That the children live with the mother.

3. That until the conclusion of the 2011 school year both parties are restrained from enrolling S and U at any other school or pre-school than the one each child respectively presently attends.

4. Until the commencement of the 2012 school year, the children shall spend time with the father as follows:

   4.1      During school terms in a two-week cycle as follows:

   4.1.1in week one, from the conclusion of school on Friday to 4.30 pm the following Sunday;  and

   4.1.2in week two, from the conclusion of school on Wednesday to the commencement of school on Friday, with the father to collect the children at the commencement of each period either from the mother or school as the case may be and return them to the mother or the school at the conclusion of each period.    

   4.2From 4:30 pm on the eve of Father’s Day until 4:30 pm on Father’s Day.

   4.3For one-half of each of the NSW terms 1, 2 and 3 school holiday periods as agreed between the parties and failing agreement, the first half.

   4.4From 12.00 noon on 25 December 2011 to 3.00 pm on 30 December 2011 with the mother to deliver the children to the home of the father at the commencement of the period and the father to deliver the children to the home of the mother at the conclusion of the period.

   4.5For one-half of the period from 31 December 2011 to the end of the Christmas school holiday period, with such time to be spent in blocks of no more than 10 days at a time.

   4.6Unless otherwise stated in any particular order, the father shall collect the children at the commencement of each period, either from the mother or school as the case may be and return them to her, or the school, at the conclusion of each period.

5. At any time commencing January 2012 the mother may establish a residence for the children in the … region of Newcastle (“Southern Newcastle area”).

6. In the event that the mother moves with the children to Southern Newcastle area, she may enrol the children in a school local to her residence.

7. From the commencement of the 2012 school year, the children shall spend time with the father as follows:

   7.1Whilst ever both parties remain living in the Central Coast area, during school term in a two-week cycle as follows:

   7.1.1in week one, from the conclusion of school on Friday to 4.30 pm the following Sunday;  and

   7.1.2in week two, from the conclusion of school on Wednesday to the commencement of school on Friday, with the father to collect the children at the commencement of each period either from the mother or school as the case may be and return them to the mother or the school at the conclusion of each period.    

   7.2In the event the children are living in Southern Newcastle during school term in a two-week cycle as follows:

   7.2.1In week one, from the conclusion of school on Friday until the commencement of school the following Monday (extending to Tuesday if Monday is a public holiday) with the father or his nominee to collect the children from and deliver the children back to school;

   7.2.2In week two, from the conclusion of school on Thursday to the commencement of school on Friday, with the mother or her nominee to collect the children from school on Thursday and deliver them to the home of the father and to collect the children from the home of the father on Friday morning and deliver them to school.

   7.3On the weekend of Father’s Day from 4.30 pm on the eve of Father’s Day until 6.00 pm on Father’s Day, with the mother to deliver the children to the home of the father at the commencement of the period and the father to deliver the children to the home of the mother at the conclusion.

   7.4For one-half of each school holiday term period as agreed between the parties and failing agreement, the first half in odd numbered years and the second half in even numbered years.

   7.5For one-half of the Christmas school holiday period as agreed between the parties and failing agreement, the first half of each holiday commencing in an odd numbered year (“the first half”) and the second half in each holiday period commencing in an even numbered year (“the second half”).

   7.6When the children are with the father in the second half, from 9.00 am on 23 December to 12.00 noon on 25 December.

   7.7When the children are with the father in the first half, time with him shall be suspended from 9.00 am on 23 December to 12.00 noon on 25 December, during which time the children shall live with their mother.

   7.8Time with the father shall be suspended on the weekend of Mother’s Day from 4.30 pm on Mother’s Day eve for the balance of that period.

8. That each parent keep the other informed as to all sporting, religious, cultural and educational events in which the children are involved or which relate to the activities of the children, although they might not be involved (such as parent/teacher interviews) and each party shall be at liberty to attend such function or event.

9. That each parent makes every effort to ensure that the children or either of them attend all sporting and/or other extra-curricular activities in which they are enrolled with the consent of both parents.

10. Other than in the event of an emergency, each parent will make every effort to ensure that the children receive medical, dental and other health related treatment from the same treating professional and each parent may contact any such treating professional for information and advice about the health and progress of the children.

11. Each party shall keep the other advised as to their present address and contact telephone numbers.

12. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Property

1. The parties shall do all things necessary and execute all documents to cause the property at U (“the former family home”) to be sold at a price agreed between the parties, and failing agreement as determined by the President of the Real Estate Institute of New South Wales or his nominee, and the proceeds of sale shall be disbursed in the following manner and priority:

   (a)       payment of agent’s commission and legal expenses of the sale;

   (b)       discharge of any mortgage secured over the former family home;

   (c)       balance to the mother.

2. The mother shall have the exclusive occupation of the property at U (“the former family home”) until the settlement of the sale.

3. That the husband shall pay to the mother the sum of $765,000 within 42 days of the date of settlement of sale.

4. Until the settlement of sale of the former family home the husband shall be responsible for mortgage payments and outgoings on the property.

5. Until the husband has complied with Order 15 hereof, the husband shall continue to pay $200 each week to the mother by way of spousal maintenance and for this purpose the mother shall provide to the husband details of a bank account into which such payments shall be made.

6. The application of the husband for departure order filed 1 September 2010 is dismissed.

7. Unless otherwise provided in these orders, each party is entitled to sole legal and beneficial ownership of all property, including but not limited to bank accounts and superannuation interests, in their respective name, control or possession as at the date of these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: (P)SYC 1134 of 2009

Mr Jarrott

Applicant

And

Ms Jarrott

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting and property orders.  The parties are aged in their early forties.  They lived together for between nine and 10 years and married about three years before separation.  There are two children of the relationship, S, born in March 2004 and U born in February 2007 (“the children”).  The parties have been separated since September 2008.  The husband has remarried and his current wife is expecting their first child in September 2011.

2. The children have remained living with their mother in the former matrimonial home.  The cost to the husband of maintaining the mother and children in the home has had an enormous impact on him financially and emotionally.  The struggle that the mother has had, living alone in a small isolated community, caring for young children has had an equivalent impact on her. 

The applications

1. Each of the parties set out the orders they seek in their respective case outlines.

Father’s Minute of Proposed Orders

1. The father’s Minute of Proposed Orders is set out as follows:

   1.      That within twenty eight days of the date hereof the husband pay or cause to be paid to the mother by way of property settlement the sum of $500,000.00 (“the sum”).

   2.      That upon payment of the sum to the wife, the wife vacate the premises located at [U] (“the former family home”).

   3.      That the wife be declared the beneficial and legal owner of all assets standing to her name or credit with the exception of:

   (a)the Chesterfield lounge;

   (b)the husband’s personal boxes in the garage located at the home, including his weight set;

   (c)the piano in the property at [U] being the asset of the husband’s sister; and

   (d)the dining setting being the property of the husband’s brother.

   The wife is to leave the above items in the [U] property when she leaves.

   4.     That the husband be otherwise declared the beneficial and legal owner of all other assets standing to his name, credit, or in his possession.

   5.      That the wife pay the husband’s costs of and incidental to these proceedings.

   6.      That the child support payable by the husband to the wife, pursuant to assessment dated 16 July, 2010 be reduced to a total of $250.00 per week or a total of $1,083.33 per calendar month, as and from the date of this application.

   7.      That the Court order the amount of $1,100.00 paid to Energy Australia on 12 July, 2010 be categorised and treated as payment of spousal maintenance, pursuant to the orders made in these proceedings dated 17 March, 2010.

   8.      That in the event that the wife relocates to an area where she would as a consequence of such relocation, cause the children to be removed from their current schools ([U] Public School), then the children reside with the father with the wife spend time with the children as follows:

   (a)for the second half of all school holidays;

   (b)each alternate weekend from the conclusion of school on Friday to commencement of school on Monday, and in the event of Monday being a public holiday, the commencement of school Tuesday;

   (c)Mother’s Day from 5pm on the Saturday prior thereto to before school on the Monday following Mother’s Day;

   (d)during each alternate Christmas school holidays from noon on 24 December to noon on 26 December, the first of such occasions to be in the 2011 year; and

   (e)such other times as may be agreed upon between the parties.

   9.      In the event that the wife resides within an area where the children continue to attend their current schools, namely [U] Public School, the children shall:

   (a)reside equally between the father and wife from the conclusion of school on Friday to the commencement of school the following Friday morning;

   (b)spend time with the mother for the second half of all school holidays; and

   (c)Mother’s Day from 5pm Saturday to before school Monday following Mother’s Day.

   10.    That each of the parties have joint parental responsibility for the two children of the marriage, [S] born … March 2004 and [U] born … February 2007.

2. In support of his proposed orders, the husband relies upon:

   a)      His affidavits filed 7 February 2011 and 23 December 2009;

   b)     His Financial Statements filed 7 March 2011 and 23 December 2009;

   c)      Affidavit of Ms D Jarrott (current wife), filed 7 February 2011;

   d)     Affidavit of Mr C (accountant and business partner) filed 11 February 2011; and

   e)      Affidavit John Duncan McDonell (his solicitor), filed 10 March 2011.

Mother’s Minute of Proposed Orders

1. The mother’s Minute of Proposed Orders are set out as follows:

   Children’s Orders:

   1.      That the parties have equal shared parental responsibilities for the children of the marriage, [S] born … March 2004 and [U] born … February 2007 (hereinafter referred to as “the children”).

   2.      That the children live with their Mother.

   3.      In the event that the parties live within a twenty (20) kilometre radius of each other the Father spend time and communicate with the children as follows:

   3.1Each alternate weekend from the conclusion of school on Friday until 4.30pm on Sunday;

   3.2In each other week from the conclusion of school on Wednesday until the commencement of school on Friday; and

   3.3For one half of all school holidays (except the Christmas School Holidays) as agreed between the parties and failing agreement in the second half of the school holidays.

   4.      In the Christmas school holidays as follows:

   4.1In the 2011/2012 Christmas school holidays:

   4.1.1from 11.30am Sunday 25 December 2011 until 9am on 1 January 2012;

   4.1.2from 3.00pm on Friday 13 January 2012 until 9.00am Friday 20 January 2012;

   4.2In the 2012/2013 Christmas school holidays:

   4.2.1from 11.30am Tuesday 25 December 2012 until 9.00am Tuesday 1 January 2012;

   4.2.2from 3.00pm Friday 11 January 2013 until 9.00am Friday 18 January 2013.

   4.3In the 2013/2014 Christmas school holidays:

   4.3.1from 11.30am Wednesday 25 December 2013 until 9.00am Wednesday 1 January 2014;

   4.3.2from 3.00pm Friday 10 January 2014 until 9.00am Friday 17 January 2014.

   4.4Thereafter in each subsequent Christmas school holiday period for one half of the school holidays as agreed and failing agreement being the first half in each even numbered year and the second half in each odd numbered year with the relevant changeover times being the conclusion of school at the start of the holidays, 9.00am on the day which represents the midpoint and 9.00am on the day that school resumes.

   5.      In the event the parties live outside of a twenty (20) kilometre radius then the Father spend time and communicate with the children as follows:

   5.1Each alternate weekend from the conclusion of school on Friday until 5.00pm on Sunday; and

   5.2For one half of all school holidays (except the Christmas school holidays) as agreed between the parties and failing agreement being the second half of the school holidays;

   6.      To facilitate the Orders herein the Father will collect the children from the Mother’s residence at the commencement of his time and will deliver the children to the Mother’s residence at the conclusion of his time if he is not otherwise collecting and delivering the children to their respective schools.

   7.      Notwithstanding any of the Orders herein contained the parties will ensure that the children:   

   7.1are with their Father on Father’s Day from 4:30pm on Father’s Day Eve until 4:30pm on Father’s Day;

   7.2are with their Mother from 4:30pm on Mother’s Day Eve until the end of that weekend;

   7.3are with their Father from 11:30am on Christmas Day until 4:30pm on 27 December; and

   7.4are with their Mother from 9:00am on Christmas Eve until 11:30am on Christmas Day.

   8.      That each parent keep the other informed as to all sporting, religious, cultural and educational events in which the children are involved or which relate to the activities of the children although they might not be involved (for example parent teacher interviews) and each party be at liberty to attend such function or event.

   9.      That each parent ensures that the children attend all sporting and other extra curricular activities in which they are enrolled by consent and which attendance is required during the period of time in which each parent has the children in his or her control.

   10.    That each parent at all times keep the other informed as to all serious medical, dental and other health related treatment being undertaken by the children and the identity of the treating professional and that each party keep the other informed as to their present address and contact telephone numbers.

   Property Orders:

   11.    That the Husband within 60 days transfer to the Wife without encumbrance the property at [U] and being the whole of the land in Folio Identifier … (“The Property”).

   12.    That, in the event that the effect of Order 11 results in the Wife receiving less than 70 per cent of the asset pool determined at hearing, in the alternative the parties do all things necessary and execute all documents to sell The Property at a price agreed between the parties, and failing agreement as determined by the President of the Real Estate Institute of New South Wales or his nominee,  and disburse the net proceeds of sale as follows:

   12.1in payment of agent’s commission and legal expenses of the sale;

   12.2to discharge any mortgage secured over the property; and

   12.3the balance to the Wife. 

   13.    That the Husband pay (in addition to the funds received by the Wife as a result of the sale of the home) a sum such that she receives the equivalent of seventy (70) percent of the determined asset pool.

   14.    That in the event that The Property is to be sold the Wife be permitted to relocate with the children to the Newcastle area.

   15.    That otherwise each party be entitled to the exclusion of the other to all property in their possession or control.

Comments on Orders sought

1. During the course of the proceedings the mother indicated that she would be content for the current interim orders to continue to apply in the event that she was granted leave to move to the southern areas of Newcastle.  Those orders have been in place on an interim basis since 30 June 2009.  The orders provide for the children to spend each alternate weekend from Friday after school until Sunday afternoon, and each intervening week from Wednesday after school until Friday before school with their father.

1. At the time of hearing the mother was living in the former family home on the Central Coast of New South Wales and the father was living in rented accommodation at O.  The distance between the two homes is approximately 15 to 20 minutes by car.  In the event the mother moves to the southern Newcastle area, the journey by car to the father’s residence would be about 55 minutes.  The evidence of the father is that he intends to remain living permanently on the Central Coast. 

History of the matter

1. The parties differ as to when they began living together.  The applicant father says it was in early 1999[1] the mother says it was in December 1999[2].  Nothing particularly turns on this difference.  Cohabitation began in a property in the Sydney Northern Beaches area, which was owned by the father and had previously been jointly owned by him together with his former partner, Ms H.  In March 1999 a market appraisal of the Sydney property was given to the father and Ms H as being “in the vicinity of $550,000 to $580,000”.  The father took out a loan in June 1999 to pay out Ms H’s interest in the order of $110,000 and to refinance the existing mortgage.  Thus in mid 1999 the father had approximately $200 000 in equity in the Northern Beaches property.  In addition the father says he had:

   ·   a near new motor vehicle purchased for $23,000;

   ·   public company shares of $18,000;

   ·   a hire car plate ($130,000 - $148,000 approx);

   ·   an eight-year-old Harley Davidson motor cycle; 

   ·   interest in a family trust, Jarrot Discretionary Trust (“the Trust”), the trustee of which was a company called N Pty Ltd in which the father was the major director and share holder; and

   ·   superannuation in a private fund established in March 1999 with an interest of approximately $30,000. 

   [1] Father’s affidavit filed 7 February 2011, par 3.

   [2] Mother’s affidavit, par 3.

2. The father makes no reference to the nature of his employment in 1999 when the parties began living together.  However it seems that N Pty Ltd was operating a company known as SB, at least from June 1999.

3. For her part the mother says at the beginning of cohabitation she had:

   ·some superannuation of approximately $33,000; and

   ·a student loan of about $5,000.  In 1996 the mother had enrolled in a three-year Interior Design course with …..  She graduated from that course in December 1999. 

4. The mother asserts that the father had a half-share in an entity known as D Pty Ltd, which she asserts had a value of $48,000 at the commencement of their relationship[3].  She otherwise generally confirmed the other assets held by the father.

   [3] Mother’s affidavit, par 101.

5. The mother asserts[4] that the value of the Northern Beaches property at the commencement of the parties’ relationship was $320,000.  However, there is nothing to substantiate that asserted value.  Accordingly, the best evidence is the market appraisals prepared at the time on behalf of the father and his former partner and I accept the father’s asserted value of $550,000[5].  It is unchallenged that the hire car plate was sold for $148,500 in 2002[6].  On balance, it seems likely that the hire care plate had a value of between $130,000 (the value asserted by the mother) and $148,500 (the sale price). 

   [4] Mother’s affidavit, par 101.

   [5] Father’s affidavit filed 7 February 2011, par 82a and annexure PJJ29.

   [6] Father’s affidavit filed 7 February 2011, par 82e.

6. Doing the best I can on the evidence, it appears that at the commencement of cohabitation the father had assets worth about $450,000; comprising his equity in the Northern Beaches property, the motor vehicle, his shares in a public company, his superannuation interest, the hire car plate and his 50 per cent interest in D Pty Ltd. The mother had superannuation and a student debt at the time of cohabitation.  The initial contributions were almost entirely made by the father.  The only asset of the mother was not realisable. 

7. After they began living together, the father continued to work in and develop his business in food distribution.  The father was also engaged in food promotion work.  For her part the mother says she was accepted into the new enterprise incentive scheme operated by the New South Wales Government and she received a financial support supplement from the Government for a period of 12 months.  She says she also earned an income from her design business X Company and contract work for the D Group (a company in which the father is the majority shareholder[7]).  The mother set up a home office in the Sydney property, fully equipped with a desk top computer, a printer, a variety of software programs, filing equipment, a desk and office chair.  Both parties used the home office for work. 

   [7] Father’s affidavit filed 7 February 2011, par 86.

8. In the fifth year of their relationship, in March 2004 the parties’ first child S was born.  From that time the mother cared for S and worked for D Group.  She worked from home, monitored websites, checked prices, prepared graphic designs for advertisements, rebuilt the corporate website and was involved in personnel management.  She says her work commitments were fitted around the needs of S and so were often attended to late at night.

9. In 2005 D Managements Services Pty Ltd, as trustee of the D Property Trust, acquired a Northern Sydney suburb property for $1.4 million.  An amount of $1.1 million of that was borrowed from the National Australia Bank.

10. In March 2005 the parties married.

11. In February 2007 the parties’ second child U was born.

12. In 2008 the father and his business partner Mr C, established a company D Franchising Pty Ltd.  At about that time the Northern Beaches property was sold for $1.39 million.  The parties and their children then moved to the family home in U (Central Coast NSW) purchased for about $1.5 million. 

13. The parties’ relationship did not survive the move.  They separated approximately two months later.  The children remained living with their mother in the matrimonial home.  The father lived with his mother for a short period and then obtained rental accommodation in inner Sydney. 

14. On 27 February 2009 the father commenced proceedings in the Family Court.  Litigation has been continuous since, both in respect of parenting arrangements and resolution of the property dispute.

15. Interim orders were made in April 2009 and expanded on 30 June 2009 by Johnston JR (as his Honour then was).  The orders provide for the children to spend time with their father each alternate weekend from Friday after school until Sunday afternoon, and each intervening week from Wednesday after school until Friday before school.

16. The father made an application for the sale of the former family home at U.  This application was dismissed on 28 September 2009, after a hearing before Cohen J.  The father has at all times been responsible for repayment of the mortgage at $2,170 per week.  The father has at all times wanted to sell the former family home and until the final hearing, the sale was resisted by the mother.  It is undisputed that the father has made payments totalling between $250,000 and $300,000 over this period. 

17. On 19 November 2009 the parties were divorced.

18. On 26 November 2009 a single expert report was prepared by Ms Y of F Accounting.  This report contained a valuation of the interests held by the father in N Pty Ltd as trustee for the Jarrott Discretionary Trust, D Management Services Pty Ltd, D Property Trust, D Franchising Pty Ltd and E Pty Ltd.  The net value of equity and loans that the single expert came to was $1,466,294.

19. In February 2010 the father married his current wife, Ms D Jarrott (“the father’s wife”).

20. On 1 March 2010 the father reduced the payment he had been making to the mother of $600 per week to $490 per week.

21. On 17 March 2010 an order was made for interim spouse maintenance in the sum of $200 per week.  This was in the context of the father continuing to be responsible for the mortgage over the former family home, maintenance of the former family home and child support.

22. In May 2010 the father filed an Application for Contravention in relation to the mother’s non-compliance with parenting orders, particularly telephone contact.

23. In June 2010 the mother became ill and was hospitalised during a period when the children were spending time with their father.

24. On 10 August 2010 the father filed an Amended Initiating Application seeking final orders for residence and amongst others, an order restraining both parties from moving more than 20 kilometres away from the residence of the other party. 

25. On 1 September 2010 the father filed an Application for Departure from child support.

26. On 30 September 2010 the Court found the mother had contravened orders made on 20 March 2010.  The mother was ordered to enter into a Bond for 12 months to comply with current orders.

27. On 22 November 2010 the father and his wife moved to their current premises in O.

28. By late 2010 the financial statements of both parties reflected that their expenditure exceeded their respective incomes.  The mother’s income was entirely composed of payments made to her by the father for child support and spouse maintenance.

29. In November 2010 the proceedings were expedited.  The mother in her further Amended Response filed 9 December 2010, sought the transfer to her of the family home without encumbrance, the transfer to her of the business in W without encumbrance and any additional sum that would bring the mother’s position to 70 per cent of the total net asset pool.  This proved to be an unrealistic application.

30. An updating valuation report was provided by the single expert on 28 March 2011.  The net value of equity and loans was found to be $1,720,569.  There was an amount of $350,991 being the total of debts owed by the father to the various entities within the D Group.  These debts were accumulated by the father’s mortgage repayments on the former family home, payment of spouse maintenance and legal fees.

Children

Evidence of the father

1. The father relied upon the following documents:

   1.     Father’s Case Outline  filed    30/03/2011

   2.     Father’s Application for Departure      filed    01/09/2010

   3.     Financial Statement  filed    07/03/2011

   4.     Financial Statement  filed    23/12/2009

   5.     Affidavit of father  filed    07/02/2011

   6.     Affidavit of father  filed    23/12/2009

2. The father was cross-examined about the arrangements for the children.  He appeared frustrated by his inability to spend time with the children by arrangement between the parties.  There is no doubt that orders needed to be made to ensure the father’s contact with the children.  The father had been antagonised by the mother’s reluctance to allow the children to spend time with him in his accommodation in inner Sydney shortly after separation because she had concerns about the safety of the accommodation.  A report was commissioned on this issue.  The father gave evidence which I accept that he made his own enquiries by looking at the building code as to whether or not the building complied.  Having satisfied himself, he came to the conclusion that the children’s mother was being difficult in raising the objection, but also concerned.  I formed the impression that the father to some extent was also concerned about the height of the windows in the apartment, but took comfort in the fact that they complied with the building code.  The father moved away from that accommodation and so the safety of the children ceased to be an issue.  However the early antagonism and lack of mutual trust did not.

3. Increasingly communication between the parties broke down.  There was conflict over the fact that the father took the children interstate in February 2010 without letting the mother know in advance that he would be doing so.  Having had that experience, the father then protected himself from further conflict with the mother by failing to inform her that during the time the children were interstate with him, they were also attending his wedding with his now wife.  The wedding occurred three months after the parties divorced.  The father’s failure to inform the mother of the children’s attendance at his wedding put the children, particularly S, in the difficult position of having to explain to her mother that she had attended her father’s wedding.  This left S puzzled and worried over how that news would be received by her mother and how she was to regard her new step-mother. The family consultant, Ms M, described this incident as “tactless”.  The father conceded that he had been insensitive.  This incident no doubt fuelled the mother’s globally mistrustful view of the father. 

4. The children were introduced to the father’s now wife as “mummina” (the Italian word for ‘mummy’).  The mother became fearful that her position was being undermined.  The father was not prepared to concede it, saying “We didn’t anticipate a problem”. 

5. It was put to the father that three weeks after the wedding he arranged for his accountant and business partner, Mr C, to cut off the payments for the mother’s E-tag and her mobile and internet access.  The father said he did not recall this.  Three weeks after the wedding, the father reduced his weekly payments to the mother for her maintenance and that of the children.  It is likely that the reduction in payments was a reaction by the father; since the mother would not cooperate by selling the former family home and remaining in the area, he would not cooperate with her by continuing to be financially generous.  The relationship between the parties fell apart entirely.

6. The father has been living in O since the end of 2010.  The Court accepts that he moved there in order to have time with the children more easily.  The evidence of the father is that he will remain living in the area.  The Court finds that the father was motivated by a concern to maintain a strong and regular relationship with the children.  He has been successful in doing so.  The mother took the view that the father was being tactical or, to use the words of her counsel, “trying to snooker her” into remaining on the Central Coast.  Part of the father’s thinking in this matter may have been tactical, however the Court finds his primary motivation was to maintain his relationship with the children.

7. In turn the father was suspicious of the mother, in particular her proposal to move to Southern Newcastle.  He said:  “There’s no need for her to go away for work.  Plenty of work if you want it.”  The father reluctantly conceded that the mother would need help and support in caring for the children, especially once she returns to work. 

8. The father was dismissive of the mother’s plan to move to the southern Newcastle area. 

   Q:You know there’s a freeway north to [the Central Coast]. 

   A: I don’t go north. 

   Q:If the children lived in [southern Newcastle] would it be an undue imposition on you and/or the children to commute? 

   A:I hadn’t thought about it.

   Q:How far is it from [O] to [southern Newcastle]?

   A:I don’t know where [the southern Newcastle location] is.

9. The Court does not accept that the father had not thought about the possibility of the mother living with the children in the southern Newcastle area.  Rather, it is a reflection of the father focusing on the life that he is hoping to build for himself, which is already underway, to the exclusion of the mother, who represents the past.  The father does not appear to have come to terms with the fact that the mother will be a part of his future indefinitely in her role as the mother of their children.

10. The father refused to acknowledge that the mother was not in a position to make decisions about her future residence and occupation until she knew how much money she would have available to her and where she would be living.

    Q:She can’t make any decision yet.

    A:I don’t know that.

    Q:$200 a week in spouse maintenance and no assets.  How can she do anything else?”

    A:I don’t know anything about that.

    Q:You sent her details of a studio apartment she could rent that was hardly appropriate.

    A:I don’t remember that.

    Q:A pattern of time has developed between you and the children.

    A:Following Court orders.

    Q:The arrangement is working well now.

    A:It’s working.

11. I formed the impression that the father felt he had been in a subordinate position in relation to the children.  He felt provoked by that situation.  The correspondence between the parties through their solicitors amply reflected that. 

12. There was one incident at the school where the mother, who had been released from hospital earlier than she had anticipated, came to the school to collect the children.  There was an over-reaction by all parties.  This incident is discussed later in the evidence of Ms D Jarrott (the father’s wife).

Evidence of Ms D Jarrott – the father’s wife

1. The father’s wife relied on her affidavit filed 7 February 2011

2. The father’s wife met the children once or twice before she was married to the father. 

3. The father’s wife had not met the children’s mother and did not know whether she knew of the impending wedding.  The father was insensitive or indifferent to the impact on the children of participating in his wedding without their mother’s knowledge.  The father’s wife apparently took the father’s lead in the matter.  She did not consider the impact on the children of possibly being exposed to their mother’s distress, nor of their mother’s need to be reassured that the children would be safe and comfortable in the care of their new step-mother. The father’s current wife said, and I accept, that although she probably contemplated the impact on the mother of finding out about the impending wedding, she was mainly “concentrating on him [the father] and the children”.

4. The father’s wife said there had been a discussion between herself and the father about the children calling her ‘mummina’, the Italian word for mummy.  The father told her he wanted there to be no difference between any children they had and his children from his first marriage, and that therefore there should be just one name for the current wife. 

5. An incident took place on 22 June 2010 at the children’s school.  The father and his wife had gone to collect the children from school, believing that the mother would still be in hospital on this day.  As it turned out they had missed the message that she would be released from hospital and able to collect the children in the ordinary way.  The mother and the father’s wife had never formally met and had not previously spoken.  She did not know that there was a protocol in relation to collection of children at school, that only parents or those they authorised could do so.  The father’s wife rejected the proposition that the mother wanted to raise that issue with her on this particular day.

6. The mother knocked on the window of the car in which the father and his wife were sitting.  She did so in quite a confronting and aggressive way.  The father’s wife ignored her, turned her head away and said to the father, “Who is this woman?”  The situation was allowed to escalate.  The father rang his solicitor.  U was in the car at the time.  This was an opportunity for the parties to speak together, for the two women to be introduced to each other and for the beginning of a working relationship in relation to arrangements for the children.  It was entirely missed. 

7. This story does none of the adults any credit. It is a reflection of the fact that communication has been extremely poor between them and that courtesy was absent.  No doubt, on reflection the father would recognise his need to meet in advance any male partner/new father of the mother, before such a man took a role in the lives of the children.

8. Each of the adults in this matter will have to make a huge effort to speak to each other civilly and to treat each other with respect for the benefit of these two children, and also for the child who will be born to the father and his wife in September.  This child will be a brother or sister for S and U.  They will not make distinctions unless taught to do so.  The mother has apparently completed a Parenting After Separation course.  It would probably be of assistance for the father and his wife to participate in such a course, to understand the perspective of the children caught in the conflict between their parents. S in particular would like her mother and step-mother to get on, but most of all she would like her parents to be friends.  It is a matter for the parents whether they take up that invitation.

1. The father’s current wife said that to the extent that she is able to predict, she will return to work three to six months after the birth of her child in September 2011.  “I will never stop working.”  I accept the evidence that it is the intention of the father’s wife to continue in employment.

Evidence of the mother, Ms Jarrott

1. The mother relied upon the following documents:

   1.     Mother’s Case Outline  filed    01/04/2011

   2.     Financial Statement   filed    01/11/2010

   3.     Affidavit of mother  filed    18/02/2011

2. The mother has provided most of the care for the children, both during the relationship and since separation.  The mother was overly protective in limiting time between the children and their father initially.

3. The children were assessed by the Family Consultant as follows[8]:

   [S]…presents as an outgoing, lively and talkative child who played imaginatively and coherently during her session.

   [U’s] presentation was of a thriving nearly four year old little boy who appears to be developing normally. 

   [8] Family Report, pars 24 & 28.

4. The mother conceded that the father was a good father and that the children enjoy their time with him.  I accept the mother has now come to terms with the current arrangement.

5. The mother wishes to move to the southern Newcastle area where she believes she is more likely to find work than in U, which is a small remote community.  She said she was prompted to move by a realisation, when U became ill with pneumonia, that she needed help at such times, which was unavailable to her in U.  Her aunt, who lives in the southern Newcastle area, has offered to look after the children before and after school as needed.  This offer would be of considerable financial assistance to the mother when she returns to work, obviating the need for paid before and after school care.  I accept that the mother will need help from time to time, especially once she re-enters the workforce when U starts school in 2012.  I also accept that post separation the mother made maintaining a home for the children in the former matrimonial home a priority. 

Evidence of the Family Consultant – Ms M

1. The Family Consultant said the current orders, made in June 2009, met the children’s needs well.  When she learned of the pregnancy of the father’s wife, the Family Consultant said this would entail a huge adjustment for the children, particularly U who may feel displaced as the baby of the family.  This was especially so considering the loss experienced with the death of their paternal grandmother.  The children needed to be carefully managed through this next big transition.  The Family Consultant noted that the father was positive about the mother as a parent, but criticised her as obstructive and difficult as a wife.  There is some hope for the future in the father’s ability to stay positive about the mother’s parenting skills despite protracted and hostile litigation.

2. The Family Consultant considered the father had been insensitive in encouraging the children to refer to their step-mother from the beginning as “mummina”.  The Family Consultant considered that it was urgent for the adults to stabilise their relationships and specifically to speak to each other in the interests of the children.  She recommended a Parenting After Separation course for all the adults, but especially the father’s current wife, who has taken on the difficult task of becoming a step-mother.

The general law in parenting cases

1. The Court determines what is in the best interests of a child by considering the matters set out in s 60CC.

Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of their parents

1. The children have a meaningful relationship with both of their parents which will continue.  They also have a developing relationship with their step-mother.  The children have done well in the care of their mother.

Section 60CC(2)(b) - the need to protect the children from physical or psychological harm arising from subjection or exposure to abuse or family violence

1. The children have not been subjected or exposed to abuse, neglect or family violence. 

Section 60CC(3)(a) - any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views

1. S in particular is expressing a very strong view.  She views her mother and step-mother as disliking each other.  S is right about that.  She said she would like her mother and her step-mother to like each other:  “Indeed she would like it if ‘daddy, mummy and mummina could like each other instead of hating each other’ and ‘if they [could] be in [the] same room and like each other’”[9]. S told the Family Consultant that she would “‘like the Judge to help Mummy and Mummina to like each other” and that she would like to have ‘daddy to come visit Mummy and have a little chat [and] coffee or tea. Then [they’d] like each other and visit each other more often” [10].

   [9] Family Report, par 26.

   [10] Family Report, par 27.

2. Despite her young age S has considerable insight into her dilemma and the way the adults in her life could resolve it if they chose to do so.

Section 60CC(3)(b) - the  nature of the relationship of the children with each of their parents and other persons (including any grandparent or other relative of the child)

1. Both of the children have a close loving relationship with each of their parents and a developing relationship with their step-mother.  It was easier for the children, especially S, to be more relaxed with her father when her mother was absent.  She is beginning to hide her feelings in order not to hurt her parents.  This is a burden that a seven-year-old child should not have to carry.

Section 60CC(3)(c) - the willingness and ability of each of the children’s parents to facilitate, and encourage a close and continuing relationship between the children and the other parent

1. The mother has apparently struggled with a combination of the father’s remarriage and his inability or unwillingness to communicate with her.  Unfortunately the father’s current wife has taken her lead from the father and there is no communication between the two women either.  This is a disadvantage to the children.  However, each parent genuinely respects the love and affection that the other parent feels for the children and this has assisted the children to get through the last three years.

Section 60CC(3)(d)  - the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:

1. either of their parents; or

1. any other child, or other person (including any grandparent or other relative of the children), with whom they have been living

1. The children will see a little less of their father in the event that the mother relocates to Southern Newcastle.  Currently the children have mid-week overnight contact with their father every second week.  This time commences from after school on Wednesday to before school on Friday.  If the mother relocates to Southern Newcastle, such time will reduce by one overnight. At least at first, when the mother and the children are still adjusting to their new home and routine, the mid-week time may prove difficult.  However, if the father does remain living in O, the travelling time between his residence and the mother’s proposed residence is approximately one hour’s drive.  It will not be much of an imposition for the children to travel for one hour after school and one hour before school the next morning, once a fortnight, in order to maintain a regime of contact close to the current arrangement. 

2. The Family Consultant emphasised that the birth of a new sibling would be a highly significant event in the lives of the children, which needed to be carefully managed so they did not feel excluded from their father’s life, nor unduly jealous, nor blame the new baby for upheavals such as moving home, moving out of the area and changing schools.

3. The orders restrain the parties from changing the children’s enrolment at school or pre-school until the end of the 2011 academic school year.  This enables the children to be close to their father’s home when their brother or sister is born in September this year ensuring they still feel included in their father’s life.  It also enables the children to stay in the local area and S at her current school until the end of the 2011 academic year, thus ensuring the children are not experiencing too many significant changes, being the arrival of a new sibling, relocation in residence and change to a new school, simultaneously.

Section 60CC(3)(e) - the practical difficulty and expense of the children spending time and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis

1. This has partly been discussed above in s 60CC(3)(d).

2. In the event the mother moves to Southern Newcastle, there will be travel time of approximately an hour between households.  The orders provide for the children to spend alternate weekend time and alternate mid-week overnight time with the father.  There is no practical difficulty in the children undertaking such a journey four times per fortnight.  By 2012 both children will manage that comfortably.

3. Even if it were the case that the father and his current wife were to return to live in Sydney, the children would be able to have regular alternate weekend contact between Sydney and Southern Newcastle, as well as regular holiday time.  Obviously the closer the parents are, the easier it will be for the children. 

4. Telephone and electronic contact will be unaffected.

Section 60CC(3)(f) - the capacity of the children’s parents and any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including emotional and intellectual needs

1. Each of the parents is able to meet the needs of the children, including their emotional and intellectual needs. 

2. The father’s current wife is about to have her first child.  She has been focused on the father and the children as forming a new family unit, no doubt happily anticipating the birth of her own child into that family.  However the children’s needs extend outside that family group.  They have been primarily in the care of their mother since birth and whatever the day-to-day arrangements are, that relationship will continue to be central to their lives, as will the relationship with their father.  That emotional need of the children in respect to their primary relationships with each of their parents is a matter that the father’s current wife will need to accept and manage.

Section 60CC(3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of their parents, and any other characteristics of the children that the court thinks are relevant

1. The children are a seven-year-old girl and a four-year-old boy.  They are healthy and well adjusted. However, S is taking on responsibility for the happiness of her parents.  If this continues there will be an adverse psychological outcome.  U is not affected in this way because of his age and the buffer of his older sister.

Section 60CC(3)(h) - if the children are Aboriginal or Torres Strait Islander

1. Not applicable.

Section 60CC(3)(i) - the attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents

1. Each of the parents in their own way has been strongly committed to meeting the responsibilities of parenthood.  The father has provided financially for the children and their mother, which has enabled them to stay in their home in U.  That continuity has no doubt been very helpful.  The father has also moved to O to be closer to the children.  The current arrangement has meant that relationships between himself and the children and between the father’s wife and the children have developed well.

2. The mother has remained as a single parent with the majority of the care of the children whilst financially dependent on the father in quite hostile circumstances.  It has been a struggle for her to maintain the stability of the family home, but that stability has assisted the children.

3. Each parent properly accepts and values the relationships of the children with the other parent.  This is important to the emotional wellbeing of the children.

Section 60CC(3)(j) – any family violence involving the children or a member of the children’s family

1. Not applicable.

Section 60CC(3)(k) – any family violence order that applies to the children or a member of the children’s family

1. Not applicable.

Section 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the children

1. The orders provide for relocation by the mother to live in Southern Newcastle in 2012.  This will enable her to seek the family support she needs, especially with a return to the workforce, at least part-time if not full-time once both children are at school.

2. The children have done well in the care of their mother and I am satisfied that she will promote the relationship between the children and their father wherever she is living.  The sale of the former matrimonial home may mean a temporary residence in that local area.  It may also result in the children moving twice; once from the former family home into a temporary residence, and secondly from the temporary residence to Southern Newcastle.  However the ability to stay in the local area until their new brother or sister is born and for S to finish the school year without interruption, outweigh the disruption of “moving twice”.

Section 60CC(3)(m) – any other fact or circumstance that the Court thinks is relevant

1. The Family Consultant expressed a view that week-about arrangements would not be appropriate for this family.  The current pattern of alternate weekends and two days in the second week is an arrangement with a proven track record of being successful for the children.  However the benefits to the mother of being able to live in affordable accommodation in a place where she can readily find work and most importantly, have the support and assistance of family members is significant.

2. The children will continue to see their father and step-mother on a regular basis and to spend holiday time.  In the event that the father does move away from the Central Coast and back to the Sydney metropolitan area, regular contact will continue to be possible, for weekends and holidays.

Parenting Orders

1. The parties agree that equal shared parental responsibility should be ordered.  There is no factor which rebuts that presumption.  That being so, consideration of equal time and if not substantial and significant time is triggered, if in the children’s best interests and reasonably practicable.

2. The mother has been the primary carer since birth and since the parties separated.  The children have done well in her care and relationships with both parents have been preserved.  It would not be in their best interests to change their residence.  They are likely to be adversely affected by a significant reduction of time with their mother.  Further it would be impracticable for the children to travel on every school day in each alternate week for an hour in the morning and an hour in the afternoon to attend school.  This would be the outcome under an order for equal shared time as sought by the father because the children will be living in Southern Newcastle with the mother. The orders the Court has made provide for the children to continue to spend regular time with their father in a manner similar to the current regime, that is they will continue to spend alternate weekend time and in the intervening week, mid-week time with their father as well as half of all school holidays.  This regime of time has worked well for the children and is capable of being implemented even if the mother does relocate to Southern Newcastle.  The only difference will be a reduction of one overnight period per fortnight to minimise the impact of travel.  The children will manage one trip of one hour after school and the same before school the following morning.  Two consecutive days of such travelling would be tiring.  There would be a risk that the children would start to resist the midweek contact. 

3. All school holidays will continue to be shared.  For the first Christmas school holiday period the orders have been designed to provide short equal periods leading up to and following Christmas for each of the parents, with a division of the balance of time equally in short periods up to and no longer than 10 days.

Property

1. The joint Balance Sheet of the parties became Exhibit ‘HW2’.  It is set out below:

Owner	Wife’s Value	Husband’s Value
ASSETS:
U Property	H	$  1,100,000.00	$     1,100,000.00
Husband's NAB account	H	$       2,287.00	$           2,287.00
Husband’s interest in D Group	H	$  2,071,560.00	$     1,720,569.00?
#Husband’s alienated interest	H	NK	--?
Wife's car	W	$      28,000.00	$         28,000.00
Wife's Bank accounts	W	$        1,100.00	$          1,100.00
Ride on Mower	W	$         300.00	$             300.00
Wife's household contents	W	$        1,000.00	$           1,000.00
Husband’s household contents	H	$        6,500.00	$          6,500.00
#Husband’s paid legal fees	H	$     189,972.00	$       189,972.00
#Wife’s paid legal fees	W	$      32,501.00	$          32,501.00
Debt for valuation	H	$      16,564.00	$         16,564.00
Husband’s Superannuation	H	$     104,800.00	$        104,800.00
Wife's superannuation	W	$      43,919.00	$         43,919.00
Husband's Mother's Estate	H	$     110,000.00	$        110,000.00
Total	$  3,708,503.00	$     3,357,512.00
LIABILITIES:
Mortgage loan	H	$  1,058,832.00	$     1,058,832.00
Loan from D 30.06.11	H	$     350,991.00	$                  -- ?
Wife's VISA debt	W	$        2,000.00	$           2,000.00
Wife's loans from Father	W	$      49,867.00	$         49,867.00
HECS Debt	W	$        1,679.00	$           1,679.00
Wife's debt to husband	W	$      16,564.00	$           16,564.00
Wife’s Debt to valuer	W	$         4,485.00	$             4,485.00
Total	$  1,484,418.00	$     1,133,427.00
NETT ASSETS	$  2,224,085.00	$     2,224,085.00

# Notional Addbacks                   * Husband has deducted his debt to D

1. The net asset pool of the parties is $2,224 085.

Evidence of the father, Mr Jarrott

1. In cross-examination the father answered in as few words as it was possible to use.  I formed the impression that he was immensely frustrated as a result of bearing the cost of two households over the three year period.  He agreed with the proposition that his liabilities had increased, but so had his assets over the period.  Clearly the father is a hard working and commercially effective person, who has a tendency to look forward and not back.  His desire to develop his company in new ways and to generate wealth has been thwarted by the financial obligations arising from his marriage to the mother.  He has remarried and is expecting another child in September.  His current wife operates a company of a similar nature to his own and clearly there is a prospect of developing the business in a mutually supportive way.

2. The father was highly critical of the mother for having changed her mind more than once over the period since separation about where she wished to live and whether or not she sought to remain in the house.  It was clear on the evidence that it was unrealistic for the mother to contemplate taking over mortgage repayments of the former family home.  The father did not concede that his superior financial knowledge of the parties’ financial position, consequent on his having been responsible for the financial management both of the company and the marriage, was not well communicated to the mother by him.  Trust having broken down in the relationship, the mother was mistrustful of the information that the father provided.  The father found this intolerable. 

1. The father gave evidence that his most recent Financial Statement filed 7 March 2011 had been completed on his behalf by his accountant and partner in business, Mr C.  This reflected a dismissive attitude by the father to his obligations and the proceedings.  Details of the earnings and assets of the father’s wife and the allocation by his company of $75,000 to her in the last financial year should have been included in that Financial Statement.  To have left such gaps in the provision of information regarding his financial circumstances invited suspicion about the father’s evidence.  In the same way the partnership relationship between the father and his partner Mr C, from an objective point of view was hard to clarify.  I will come back to this subject of the partnership arrangement in the context of Mr C’s evidence, but it was again the case that the father had a clear understanding of the arrangement between himself and Mr C, but appeared to find it intolerable that the mother had pursued the matter over the whole of the period and during the course of the proceedings.

History of the business relationship between the father and Mr C

1. In or about 2003[11] the father and Mr C entered into an arrangement under which it was agreed that Mr C would work for the father one day a week without remuneration, for a period of 12 months.  At the conclusion of that time Mr C became entitled as between the two men, to receive 20 per cent of whatever profits the D Group generated.  There were no documents reflecting such an arrangement. 

   [11] Father’s affidavit filed 7 February 2011, par 83.

2. The father stated the reason for not documenting the arrangement was so that the father could preserve his position in case the arrangement between himself and Mr C did not work out and there was the potential for litigious fallout.  The father said this: “I wanted a preference to buy back these shares so we couldn’t [have an arrangement] in writing.  We [he and Mr [C]] had a clear understanding.  That was good enough for me”.  In 2005, Mr C adopted a similar position and informed the mother that the arrangement between himself and the father was a “gentleman agreement” which had not been documented yet as “there are issues relating to problems of buyout if ever necessary”[12].

   [12] Father’s affidavit filed 7 February 2011, par 85 and annexure PJJ31.

3. The difficulty with this evidence is that the father seemed to expect that the clear understanding between himself and Mr C would also be clear to the mother.  It was not.  When asked why the arrangement with Mr C had been documented in 2009 the father’s answer was:  “Everything was under scrutiny, [the arrangement] had to be formalised”.  The father agreed, somewhat impatiently, that Mr C’s position had been formalised for the purpose, at least to some extent, of these proceedings.  The father was offended by the proposition that he had in truth no obligation to transfer anything to Mr C.  He asserted he had “a personal obligation”.

4. The Court accepts the evidence of the father that he did have such an understanding with Mr C, that it was always understood between them that Mr C would receive 20 per cent of the profits and would be a 20 per cent equity partner, but that between themselves it was convenient for a variety of reasons not to document the arrangement.  I also accept that the mother was not privy to this arrangement at the time it was made, or subsequently.  When the father was asked whether he had told the mother about the arrangement, his answer was, “I don’t remember”.

5. Again, the father was quite impatient and dismissive about the fact that there had been no records kept of share transfers to Mr C.  The father asserted that the transfer of shares to Mr C had taken place before the paperwork was completed. The father felt it should have been obvious that the paperwork was completed to protect Mr C’s position. The single expert took a consistent view and reported that the transfers had been effected before the paperwork was completed.

6. The father stoutly rejected the proposition that he had acted either objectively or subjectively to diminish the pool of matrimonial assets.  The Court accepts that is so.  However, given there is no record of the arrangement between the father and Mr C, it is not unreasonable that the mother’s suspicions were aroused in the circumstances.  The first question put to the father in the witness box was:  “Your integrity is not subject to any challenge, that’s your position isn’t it?” to which he replied, “Yes”.

7. There were lines of cross-examination of the father which really went to his commercial decision making.  The father had a business operation at a north eastern suburb of Sydney which was operated at leased premises. The lease agreement contained an option for the lease to be renewed. When the opportunity arose to exercise the option the father declined to exercise it and instead chose to close that particular business down.  He described it as “unprofitable” and claimed difficulties with the landlord.  In a similar vein, the father was asked about his proposed venture to set up another company to import and sell catering equipment outside the D Group.  His answer was similar:  “There were difficulties. We needed to put in a lot of energy for that to happen.  It didn’t happen.  That company was deregistered”. 

D Franchises

1. There was a very strong push by counsel for the mother in cross-examination to establish that the father had fully developed a company setting up D Franchises and that the father had deliberately put that aspect of the business on hold until these proceedings were complete in order to keep the matrimonial asset pool to a minimum.  I am unable to make a positive finding that the father did not do that.  There was certainly a lot of preparation in setting up the franchise by way of documentation, promotional video, setting up of a specialist company, and the creation of a relevant website for that work to be undertaken.  However, the evidence was that franchising had been considered in 2003 but not pursued.  In 2007 and 2008, the franchise was not pursued because of the global financial crisis.  At present the father has no intention to pursue the matter.  Overall my impression was that the father has a genuine and passionate interest in the product itself, but that when aspects of business became boring or unsatisfactory for him, he moves away to something else.

Interest of the Father’s brother in the business

1. The father was cross-examined about his brother having a D store overseas.  The proposition was put that the father’s brother was in truth more than simply a customer of the D product and that it could not be the case that the father had allowed him to use all of the intellectual property of the D business without receiving a present or future commercial advantage.  Again I am unable to make a positive finding about the truth of that assertion.  However, it is possible to conclude that the father has kept tight personal control of the direction of the company and that Mr C is very much subject to that direction.  There was evidence that the most interesting aspect of the development of the business for the father was in new ventures.  However, there is sufficient evidence to confirm that the business is robust and that the father has a well established capacity to develop the business and new aspects of it.  Whether or not franchising is once again considered as it last was in 2009 is a matter for pure speculation.

The mother’s contribution to the father’s business

1. That same evidence also confirms that the design work and website building done by the mother added ongoing value to the D Group of companies.  Some of that design work and certain objects, together with colour schemes and  design specific furniture have also been made available to the company run by the father’s current wife. 

2. The mother was extensively involved in organising the promotional competition.  The competition started in 2001 and was designed to promote the training facility which was established by the father in about 2000 to provide training for hospitality staff. The mother was involved in coordination of the event, which included organising photography, audio-visual display, competitors’ uniforms, producing artwork for advertising and online content. She shot and produced a promotional video for the competition and designed the trophies and the medals. The competition is now also being used by the father’s current wife in running her business.  The father spoke with great enthusiasm of having set up the competition in order to generate interest in the product and of course profits for his business, but states he is less engaged by the competition now that it is fully established.

3. Ultimately it was not established that the sale of the equipment in the north eastern suburb store to a nearby business known as ‘xxxx’, or the generation of material to set up a company to operate franchises, or the potential for selling catering equipment made any significant difference to the value of the company as assessed.  I accept the evidence of the father that he referred his customers to the business ‘xxxx’.  My impression is that the father takes enormous pride in providing a high level of service to his customers.  However his increasingly dismissive attitude to telling the commercial story to the mother or those advising her, has come at a high price.

4. Both parties have paid a terrible penalty for the lack of communication between them about financial matters.  The father made extensive disclosure.  He was cross-examined about his conduct and the truth of his business arrangement with Mr C, which he no doubt found insulting.  Interpreting the costs disclosure letter of the father as best as possible[13], the father appears to have incurred costs and disbursements, including paid costs, of approximately $350,000.  The mother has borne the enormous expense of investigating all of the documents in an attempt to fully understand the truth of the matter.  The mother has unpaid costs to her previous solicitors of $213,764.21.[14]  Her total costs to the conclusion of the trial are $340,000.

   [13]  Exhibit ‘H 1’

   [14]  Exhibit ‘W 1’

Evidence of Ms Y – Joint Single Expert Valuer

1. The single expert relied upon the following documents:

   1.     Affidavit of Ms Y    filed    27/01/2010

   2.     Affidavit of Ms Y   filed      30/03/2011

2. The single expert prepared two reports in these proceedings. In both reports she disclosed all of the information that she had access to and relied upon in preparing the reports, and was transparent about any assumptions and guesswork.  

3. The single expert noted that the Trust held the father’s interests.  The Trust had a loan liability owing to the father’s current wife of $75,000 as at 30 June 2010 resulting from a trust distribution made in her favour[15]. 

   [15] Single expert’s report, 28 March 2011, par 2.6.

4. Ms Y gave some evidence about the implications of the father issuing shares or transferring shares in order to raise funds to pay out the interest of the mother, noting that there would be a capital gains tax implication if the shares were sold.  The capital gains tax discounts apparently available to small business would not be available in this situation, because the purpose of transferring the shares is not for a commercial purpose related to the running of the business. 

5. The father borrowed $350,000 from his company in order to meet part of mortgage repayments, his legal costs and spouse maintenance.  Ms Y’s evidence was that if the $350,000 was repaid before the expiry of 12 months from the lodgement of the income tax return in the year the loan was raised, there would be no financial disadvantage to the father.  Ms Y confirmed that she had not been notified of any objection to the division of equity in the father’s company being 80 per cent to the father and 20 per cent to Mr C.

6. The evidence of Ms Y confirmed that the internal documents of the company were inconsistent with documents which had been provided to ASIC in relation to ownership of shares in the company.  Her evidence also suggested that the company and Mr C in particular, focused on doing the bare minimum in order to comply with income tax return requirements adequately.  When Ms Y had asked Mr C about the existence of balance sheets, Mr C’s response had been, “You don’t need them for tax.”  Unsurprisingly Ms Y said she would have preferred the comfort of balance sheets in understanding the financial position of the company, but she worked with the information available to her and where she encountered problems, she reconciled where she could and made certain logical assumptions about loans and debts in relation to the D Group.  Ms Y said:  “They [the father and Mr C] run the company for themselves in their own way”, a reference to the father and Mr C meeting the legal requirements for the lodging of tax returns, but not otherwise generating documents such as balance sheets, which other comparable businesses might routinely bring into existence.  I accept this evidence.

7. Ms Y agreed with the proposition that Mr C had a conflict of interest in being both an equity partner and the accountant for the father’s business.  However, that is the way the business has been run.  Whether it has been an advantage or disadvantage financially for the company is not an issue to be determined.

8. Many of the questions and doubts which the mother held about the way the father’s business was conducted were raised with Ms Y. These questions related to:

   a)whether or not income had been received from overseas by the father, from Asia;

   b)the way banking was done; daily banking through one bank with transfers from time to time to the bank ultimately used by the company;

   c)the abandoned proposal to run a franchising business. 

9. Ms Y was asked to undertake the exercise of calculating the value of a different percentage equity split between the father and Mr C.  This course was successfully objected to.  There had been no challenge to the equity holding of Mr C in any way prior to the hearing, nor had Ms Y been put on notice of any dispute.  Ultimately I accepted the evidence of the father and Mr C that Mr C has a 20 per cent interest in the business.

Evidence of Ms D Jarrott (property)

1. Ms D Jarrott (“the father’s wife”) was married to the father in February 2010.  As previously stated, in his Financial Statement the father failed to include financial information relating to his current wife[16].  This was a failure to make adequate disclosure.

   [16] Father’s Financial Statement filed 7 March 201, Part E.

2. In her affidavit, the father’s wife says that at the time of her marriage to the father she had money in the bank, being proceeds of the sale of a business, real estate and other assets owned solely by her[17].  She describes her business interests and her relationship with the father’s business interests as follows[18]: 

   1.She works for the D Group three days per week, for which she is paid a salary by the company and superannuation at the statutory rate. Her work consists of attending upon retail outlets where D supplies product on a wholesale basis, promoting the D product, dealing with difficulties the retailers have and assisting with the retailers’ marketing of the Dproduct.

   2.Since September 2010 she has operated a business in relation to the supply and maintenance of catering equipment.  The equipment is supplied from overseas and is delivered to the premises of the father’s business by arrangement.  She says she pays for this facility and it does not represent an extension of any business operated by the father.

   3.She acquired the company BB Pty Ltd of which she is the sole shareholder and director, for the purpose of operating the distribution business. “All the funds used by the company [BB Pty Ltd] were mine before marriage and nothing to do with [the husband]”[19].

   4.She and the father live in rented accommodation, share the living expenses and pay rent in an approximate ratio of two-thirds by the father and one-third by his current wife.

   [17] Affidavit of Ms D Jarrott, par 5.

   [18] Affidavit of Ms D Jarrott, pars 29 to 34.

   [19] Affidavit of Ms D Jarrott, par 33.

3. There is no reference in the affidavit to evidence which emerged during the hearing, that the intellectual property of the father’s businesses, including many of the objects, programs and websites designed by the mother, have also been made available to the father’s current wife.  Given that the father and Ms D Jarrott have similar interests, similar businesses and that the current wife is employed by the father, at this stage three days per week, I find that Ms D Jarrott will represent an ongoing financial advantage to the father beyond support in his own business. 

Evidence of Mr C

1. Mr C is the father’s minority business partner and the accountant for the father’s business.  He said he had known the father since 1993 as a friend.  In 2003 when the father acquired the business, Mr C said an agreement was reached where he would work one day per week for nothing in exchange for 10 per cent equity in the father’s business, increasing to 20 per cent in due course.  He said it was always intended that he would receive 20 per cent of the profits, and he would have received 20 per cent of the sales if there had been any.  The first year that the business entities made a profit was in 2006 and in that year Mr C received 20 per cent of the profits. 

2. As discussed earlier, when the father and Mr C entered into this arrangement, there was no written record to document it. It is consistent with my observation of the father that he would come to such an arrangement without written documentation in order to maintain both control and leverage in the event that the arrangement did not work.  I also accept that the father having come to this agreement with Mr C, would honour it. Prior to the commencement of these proceedings, the father took steps to document the arrangement and protect Mr C’s interest in these proceedings.  I do not accept that the arrangement was contrived for the purposes of these proceedings.  Although there was no formal application before the Court to set aside Mr C’s interest or any part of it, I do not consider that there was a basis for such an application.

3. The proposition was put to Mr C that documents were prepared to reflect his 20 per cent equity interest in the business just prior to the marriage, in order to diminish the matrimonial asset pool.  I have already found that the father and Mr C did indeed have an agreement for Mr C to hold 20 per cent of the equity in the father’s business.  In any event it is hard to see the significance being attributed to this oral agreement between the father and Mr C, when the parties had been living together since 1999 and already had one child at the time when they were married.  In annexure 31 to the father’s second affidavit at page 199, there is a document which includes this note: 

   As can be seen I own 10% of the business in various forms[.]  However there is a gentleman (sic) agreement that my equity increase to 20% in December 2004[.]  However this has not been documented yet as there are issues relating to problems of buyout if every necessary.

4. A document was presented to the National Australia Bank on 30 June 2008 reflecting a different equity holding, being 95 per cent to the father and 5 per cent to Mr C.  Mr C was unable to explain that discrepancy.  I am unable to make a finding about this, but it seems likely that the document for the bank was brought into existence at the direction of the father.  The evidence suggests that Mr C was inclined to do as the father directed.  This may well be a reflection of Mr C’s conflict of interest, referred to by Ms Y.  However I do not consider that it has any bearing on the true agreement between himself and the father as previously stated.  It may well be that it was convenient for the father to reflect the truth of the agreement between himself and Mr C prior to these proceedings.  However I do not consider that detracts from the stated finding.

1. Mr C estimated that the tax liability on the father raising the sum of $500,000 to pay to the mother would be $80,000 to $90,000 which assumes that the father would sell, transfer or issue shares in order to raise the funds.  It may be that the father raises a loan.  His capacity to do so will be restored when his obligation to meet the mortgage repayments on the former family home in U ceases.

2. Mr C agreed that the family home at U had been purchased by …, a business name owned by N Pty Ltd, the trustee of the Trust.  Mr C said that when the property was purchased there was some thought of a business being operated there.  He denied any knowledge of the property being registered as a business for horse agistment.  I think it more likely that the father was responsible for a decision which would be tax effective in respect of the purchase of the property.

3. Mr C was questioned about the business overseas run by the father’s brother.  He was not sure of the extent of that business operation, for instance, whether it operated in more than one country, nor had he seen all of the financial records of that business.  Ms Y’s observation that the business was “run with a mindset” was confirmed by the evidence of Mr C.  His job was to prepare the tax returns and those were done, but I formed the clear impression that he did not know the full extent of the business.  That is consistent with the non-production of balance sheets and other financial documents which would have provided regular snapshots of the finances.

4. Mr C gave the impression that he was uneasy answering questions about the management accounts and about the management of the companies generally.  He is not a full equity partner with the father and that fact was reflected in the extent of his knowledge about the business operations.

5. Mr C was able to explain the anomaly in the double banking system for the business in W and it was in these matters of day-to-day business that the witness was most confident.

The Mother – Ms Jarrott

1. The mother was trenchantly criticised for having pursued aspects of financial inquiry which did not lead to any significant change in the asset pool.  One instance of this related to the father’s business at the north eastern suburb of Sydney.  The mother had seen the site of the shop run by the business emptied and not in operation.  She then saw all of the equipment, tables, chairs and logos transferred to a nearby business known as ‘xxxx’.  She had gone inside ‘xxxx’ and saw that it was painted in the distinctive colour that she herself had chosen to be used for the D business.  There were D loyalty cards and brochures on display.  Not unreasonably the mother took the view that the transfer of all the business equipment suggested the father was divesting himself of his property interests in order to defeat her interests.  The evidence did support that suspicion, but as stated previously, the father, although he had made a full disclosure through his affidavit, had ceased communicating with the mother from the date of separation.  As he withdrew this communication, the mother became more and more uncertain and mistrustful.

Conflict over sale of family home

1. The mother was also criticised for having objected to the sale of the former family home on the basis that she should always have known that it was inevitable.  However I consider that the mother’s objection was motivated by intent to maintain stability for the children, who were aged four years and 18 months at the time of separation.  Further, she probably did not appreciate the extent to which the home was mortgaged.

2. The parties had moved to U two months before they separated.  After separation the father did not agree to the mother moving away to Newcastle or points on the north coast of NSW such as B.  She was not in paid employment; she was committed to caring for the children and managing their needs in the context of the separation.  That she has been able to keep the children in the family home to date has been a benefit to them.  The Family Consultant found them to be well loved and well adjusted children (with a reservation about S taking on responsibility for parental conflict).

3. The criticism of the mother reflects the father’s frustration that the mother simply did not accept the necessity to sell the home as he wished.  The mother’s application is unrealistic in its terms.  However I accept that the inconsistencies in the father’s disclosure of financial information, as highlighted by Ms Y and within his own financial statements, caused the mother to continue to enquire. 

4. In relation to Mr C’s interest in the father’s business, it was put to the mother that she must have known about the business relationship between the two men.  She said the only information she had been given was a disclosure by Mr C, who told her he would be working one day per week and coming on board as a partner.  He had not told her about his percentage interest.  Her answer to the question, “Did you have access to [D] books?” is illuminating, “No, [the husband] and [Mr C] handled that”. 

5. There is no basis for any finding that there are undisclosed assets.  It is however understandable in all of the circumstances that the mother believed that her former husband had hidden assets and had attempted to diminish his interests to her disadvantage.

6. The mother conceded that she had employed an accountant to comment on the first report of Ms Y, but that no questions had been formulated.  The mother was particularly focused on the equity interest of Mr C, the allocation of funds to the father’s current wife by the Trust and the possibility of the father developing a franchise for his business.  In a sense the mother was correct about all of those things.  The documents did not adequately reflect the agreement between the father and Mr C about his equity interest.  The father’s Financial Statement did not reflect at all the income of his current mother or the allocation of trust income to her, probably for reasons of tax effectiveness.  The extent to which franchising had been developed as a possible business venture certainly suggests that it may be a business interest picked up in the future.  But, ultimately, none of those matters affected the size of the net asset pool.

7. The question was put to the mother:  “You have held an unreasonable belief about lack of proper disclosure” she answered, “Absolutely not”.  It is not unusual for one partner to a marriage to run and understand the finances of the marriage, with the other partner content for that to happen.  Unfortunately when trust in the relationship breaks down, suspicion arises and that is what has happened here.

Alteration of Property Interests

1. In considering what order should be made in property settlement proceedings, the court shall into account the factors set out in s 79(4).

Section 79(4)(a) – the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them

Section 79(4)(b) – the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them

Section 79(4)(c) – the contribution made by a party to the marriage to the welfare of the family

Section 79(4)(d) – the effect of any proposed order upon the earning capacity of either party to the marriage

Section 79(4)(e) – the matters referred to in subsection 75(2) so far as they are relevant

Section 79(4)(f) – any other order made under this Act affecting a party to the marriage or a child of the marriage

Section 79(4)(g) – any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future for a child of the marriage

1. At the commencement of cohabitation the father had equity in a property in Sydney’s Northern Beaches, was running a business and had some other assets, including a motor vehicle, public company shares, a hire car plate, a Harley Davidson motor cycle, superannuation and interest in the Trust.

2. The mother had superannuation and some modest student debt.

3. Accordingly, the initial contributions were made almost entirely by the father, certainly 95 per cent or more; significantly, his property in Northern Beaches provided a home for the family and space for a home office.  This type of contribution must be given substantial recognition.[20]

   [20] Pierce v Pierce (1998) FLC 92-844 at [23-30], [40].

4. During the course of the relationship each of the parties worked to their capacity.  The mother also reduced her working hours around the needs of the children, whilst continuing to devote herself to the father’s business.  The father is a resourceful and successful business man and the business expanded over the 9 years of the relationship.  

5. I consider that the contributions had been equal during the course of the marriage causing an adjustment to the contributions to the point of separation of 70/30 in favour of the father.

6. Between separation and hearing the father was entirely responsible for the repayment of the mortgage on the property in the order of $8,500 per month.  He also paid child support and spouse maintenance and was responsible for certain other expenses including home maintenance.  The mother provided the majority of the care of the children who were very young at the date of separation.

7. The father has borrowed money from the company through which he operates his business, in order to meet the mortgage and spouse maintenance expenses.  There are two options available.  The first is to exclude this debt of $350,991 and reflect the post-separation contribution by adjustment of the percentages.  The second option which the Court has taken is to include the debt in the net asset pool and make no allowance for the post-separation contribution it represented.

8. The father inherited money post separation from his late mother.  This was a contribution made on behalf of the father.  The percentage adjustment by five per cent takes the ultimate ratio to 75/25.

Section 75(2) factors

1. The parties are in their early forties and are in good health.  The husband has a wife who is both employed by him and independently self-employed.  They are expecting a child together.

2. The mother does not have a new partner, is not in the paid workforce and has the majority care of the two children.  She will need to refresh her skills to be able to return to her former employment, or to carry out the kind of work she was doing in the family business.  She will probably have to take up lower paid employment initially.

3. The mother expects to earn $20 to $25 per hour.  She would like to return to her original work and to develop a business in that regard, but expects that she is more likely to take up contract administration which will be more remunerative.

4. As has been discussed, the mother indicated that she had put in hours and hours of unremunerated work to the father’s business when the marriage was still in tact.  She designed websites and undertook specific projects.  She created valuable intellectual property which is still in use by the father and now by his wife.  However, it is not unreasonable that the mother will need time to update her skills before she is able to generate anything like the kind of income received by the father from his businesses.  The mother said this: 

   I was very invested in [D].  We act, lived and slept [D].  It was our life.  It was just as much mine as his.  We spent every weekend at cafes looking to see what worked.  Its success has a lot to do with what I did.

5. On balance the mother is likely to develop a business of her own in due course if proper arrangements can be made for the children.

6. The father has the capacity to go on developing his business in a variety of ways, some of which were illuminated during the hearing.  The father will have the benefit of the financial partnership of his new wife, whose business interests are similar to his own and who I have found will be a benefit to him financially in that regard.  The father will have to raise the money to pay out the interest of the mother.  He may sell shares or raise a further debt once he has been relieved of repayment of the mortgage on the family home

7. The Court accepts that there could be a tax debt arising from the sale of shares, although it is indeterminate; approximately $80,000 - $90,000 on the sale of $500,000 worth of shares.  

8. Accordingly, the Court considers there should be an adjustment of 10 per cent in favour of the mother, leaving an overall percentage position of 65/35 in favour of the husband.  The payment to the mother has been rounded to $765,000. 

Revised asset pool
1.	Net proceeds of sale of [former matrimonial home]	Excluded
2.	Husband’s NAB account	$2,287
3.	Husband’s interests in [D] Group	$1,720,569
4.	Wife’s car	$28,000
5.	Wife’s bank accounts	$1,100
6.	Ride on mower	$300
7.	Wife’s household contents	$1,000
8.	Husband’s household contents	$6,500
9.	Husband’s paid legal fees	$189,972
10.	Wife’s paid legal fees	32,501
11.	Wife’s debt for valuation	$16,564
12.	Husband’s superannuation	$104,800
13.	Wife’s superannuation	$43,919
14.	Husband’s (inheritance) mother’s estate	$110,000
$2,257,512
Liabilities:
1.	Wife’s Visa debt	$2,000
2.	Wife’s loans from her father	$49,867
3.	Wife’s HECS debt	$1,679
4.	Wife’s debt to husband	$16,564
5.	Wife’s debt to valuer	$4,485
$74,595
Assets:	$2,257.512
Less Liabilities:	$     74,595
TOTAL	$2,182,917

Outcome

1. The mother will retain her current assets.  The house will be sold.  The net proceeds of sale, after payment out of all costs associated with the sale of the home, will come to the mother as a small contingency fund until she receives payment from the father.  The father will be obliged to pay the mortgage, spouse maintenance and child support until the sale of the home. 

2. The mother will receive the net proceeds of the sale of the home.  Commission for the real estate agent and legal costs on the conveyance and bank fees will be payable.  There will be just sufficient to form a small contingency fund for the mother to live on until she has moved into new accommodation.  She may have to move twice.  For that reason I have excluded the proceeds of the sale of the home from the asset pool in considering the overall outcome.  The net sum of $41,168 which is the difference between the agreed value and the mortgage outstanding is artificial in the circumstances.

MOTHER will retain:

Proceeds of sale of home

       Excluded

Motor vehicle

         $28,000

Bank accounts

           $1,100

Lawn mower

              $300

Household contents

           $1,000

Paid legal fees

         $32,501

Superannuation

         $43,919

Total

       $106,820

Less Liabilities:

Visa debt

           $2,000

Loans from father

         $49,867

HECS debt

           $1,679

Debt to father

         $16,564

Debt to Valuer

           $4,485

        $ 74,595

Assets less liabilities:

        $ 32,225

Plus payment from father

       $765,000

       $797,225

FATHER will retain:

NAB Account

           $2,287

Interest in [D]

    $2,071,560

Household contents

           $6,500

Paid legal fees

       $189,972

Debt repaid for valuation fees

         $16,564

Superannuation

       $104,800           

Mother’s Estate

      $  110,000

Total

    $2,501,683

Less debt incurred to [D]

     $   350,991

    $2,150,692

Less payment to mother

      $ 765,000

    $1,385,692

Spousal Maintenance

1. Spousal maintenance will pursuant to these orders, be paid at the current rate of $200 per week until the mother receives the cash payment from the father which will enable her to buy a property and establish in an area she can afford.  The father will continue to have an earning capacity but will have either reduced the value of his business or raised an equivalent debt.  Spouse maintenance should cease once the cash payment is made.  The mother will at that point no longer require support.

Child Support

1. The circumstances of both parties will change more than once over the next six to 12 months.  Accordingly either or both parties may make an application for a reassessment of child support.  The orders cover the parties’ position until payment out to the mother of a cash sum.  At that point there can be a reassessment of child support.  Accordingly the application for child support has been dismissed.

I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 12 August 2011.

Associate: 

Date:  12 August 2011