Karllsson & Karllsson - [2018] FamCA 305

FAMILY COURT OF AUSTRALIA

KARLLSSON & KARLLSSON

[2018] FamCA 305

FAMILY LAW – CHILDREN – Final Orders - Where the parties have two children – Where the mother’s leave to amend her application for parenting orders was dismissed – Where the mothers leave to amend her application in in relation to parental responsibility dismissed – Where leave for the wife to rely upon the expert report of Dr MM is refused – Where Mr D is the single expert in relation to the parenting issues prepared four reports – Where children found to benefit from an ongoing continuing meaningful relationship with both parents – Where there is no need to protect the children from abuse, neglect or family violence from the parents – Where B’s wish to spend more time with her mother not be taken at face value – Where Mr D raised the suggestion of a creative solution – Where children currently spend substantial and significant time with both parties – Where both parties found to offer high quality but different parenting styles – Where there exists ongoing conflict between the mother and farther – Where the father found unlikely to desist form litigation in relation to parenting matters until he achieves his desired outcome of equal time arrangement– Where equal shared parental responsibility ordered for the children – Where a week about arrangement ordered after 12 months with the precursor of the creative solution as recommended by Mr D – Where an order is not made for the mother to be at liberty to obtain assessment of B for a condition.

FAMILY LAW – PROPERTY – Final Orders – Where the husband and the husband’s mother are owners of a commercial enterprise – Where Mr M was the single expert in relation to the issue of valuation of the husband’s interests – Where it is just and equitable to make orders for the alteration of property interest – Where husband and wife disputed over the total net value of the asset pool – Where it was accepted that the husband’s loan from his mother is a liability as the mother has a legal right to call for repayment – Where accordingly the loan is included in the list of liabilities – Where the husband’s shares in NIPL were found to have nil value given the husbands mothers legal rights and powers vested in her by the Life Governors shares – Where the husbands asset distributions were not added back to the list of assets – Where the wife’s submission as to the inclusion of the discount applied by Mr M for illiquidity and lack of control are rejected – Where the whole sum of $1,670,000 the wife received as partial property settlements be regarded as her asset – Where the husband’s paid legal fees are not included as an asset – Where the net pool of property is found to have a value of $49,750,689 – Where the contributions of the wife assessed at 15 per cent – Where an adjustment of 8 per cent of the net pool awarded in favour of the wife on account of s75(2) factors – Where the net pool of assets should be divided 23 per cent to the wife and 77 per cent to the husband – Where the wife found to fail in her application for a final order of spouse maintenance – Where the husband continues to make payments and provisions for the financial suppose for the children on a voluntary basis.

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Income Tax Assessment Act 1936 (Cth)

Bonnici and Bonnici (1992) FLC 92-272
Rodgers and Rodgers (2016) FLC 93-703
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Ms Karllsson

RESPONDENT:

Mr Karllsson

FILE NUMBER:

ADC

2013

DATE DELIVERED:

9 May 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Adelaide

JUDGMENT OF:

Stevenson J

HEARING DATE:

14-17 and 20-23 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Martin Bartfeld QC with Ms Taanya Lewis

SOLICITOR FOR THE APPLICANT:

Norman Waterhouse Lawyers

COUNSEL FOR THE RESPONDENT:

Andrew Strum QC with Mr Nehmy

SOLICITOR FOR THE RESPONDENT:

Mills Oakley

Orders

Parenting

All existing parenting orders in relation to the children:
(a)B born on … 2007 (“B”) and
(b)C born on … 2010 (“C”)
are discharged.
The parties have equal shared parental responsibility for the children.
For a period of twelve months from the date of these Orders, the children live with the father during school term time as follows:
(a)in Week 1 of a two-week cycle, commencing in the first week of the school term, from the conclusion of school on Thursday until the conclusion of school, or 3.30 pm if a non-school day, on the following Monday and
(b)in Week 2 of a two-week cycle, from the conclusion of school on Thursday, or 3.30 pm on a non-school day, until the conclusion of school, or 3.30 pm on a non-school day, on the following Friday
(c)B will spend the period from the conclusion of school, or 3.30 pm on a non-school day, on Friday until 9.00 am on the following Saturday with the father in Week 1 of the two-week cycle with the father and
(d)C will spend the period from the conclusion of school, or 3.30 pm on a non-school day, on Friday until 9.00 am on the following Saturday in Week 2 of the two-week cycle with the father
(e)the children otherwise live with the mother during school term time.
At the expiration of such period of twelve months:
(a)
the children live with the father during school term time from the conclusion of school on Monday, or 3.30 pm if a non-school day, until the conclusion of school on the following Monday or 3.30 pm if a

non-school day
(b)otherwise the children live with the mother during school term time.
(a) For one half of the terms 1, 2 and 3 school holidays (commencing at the conclusion of school on the last day of term and concluding at the commencement of school on the first day of term):
(i)if the children are living with the father on the last weekend of term, for the second half of the holidays and
(ii)if the children are living with the mother on the last weekend of the school term, for the first half
(b)otherwise the children live with the mother during the terms 1, 2 and 3 holidays.
For one-half of the Christmas school holidays (commencing on the last day of term and concluding at the commencement of school on the first day of term) subject to Orders 7 and 10.
(a)if the children are living with the father on the last weekend of term, for the second half of the holidays and
(b)if the children are living with the mother on the last weekend of term, for the first half of the holidays
(c)otherwise the children live with the mother during the Christmas school holidays.
(a) The children live with the mother from 10.00 am on 24 December until 10.00 am on 25 December in each year.
(b)The children live with the father from 10.00 am on 25 December until 4.00 pm on 26 December in each year.
(a)      The children live with the father at Orthodox Easter, subject to Order 7(b), from the conclusion of school on Friday or 3.30 pm on a non-school day until the commencement of school on Monday or 3.30 pm on a non-school day and
(b)for non-Orthodox Easter (including when Orthodox Easter and non-Orthodox Easter fall on the same weekend being a long weekend, commencing at the conclusion of school on Thursday and concluding at the commencement of school on Tuesday):
(i)       from 5.00 pm on Friday until 5.00 pm on Saturday and
(ii)      from 5.00 pm on Sunday until 5.00 pm on Monday.
(a) The children live with the father from 4.00 pm on the Saturday preceding Father’s Day until the commencement of school on the following Monday.
(b)The children live with the mother from 4.00 pm on the Saturday preceding Mother’s Day until the commencement of school on the following Monday.
(a) The parent who has care of B on her birthday is not required to retain the child in Adelaide on that day so as to enable the other parent to spend time with her.
(b)When B’s birthday falls on a day when she is in the care of the father, she will spend time with the mother from 2.00 pm until 8.00 pm.
(c)When B’s birthday falls on a day when she is in the care of the mother, she will spend time with the father from 2.00 pm until 8.00 pm.
(a) When C’s birthday falls on a school day when he is in the care of the father, he will spend time with the mother from the conclusion of school until 7.00 pm and if a non-school day, he will spend time with the mother from 2.00 pm until 7.00 pm.
(b)When C’s birthday falls on a school day when he is in the care of the mother, he will spend time with the father from the conclusion of school until 7.00 pm and if a non-school day, he will spend time with the father from 2.00 pm until 7.00 pm.
(a) Each parent is at liberty to communicate with the children by telephone, Skype and/or facetime between 5.00 pm and 6.00 pm when they are in the care of the other parent during school term time.
(b)The parent who has the care of the children will facilitate communication with the other parent as may be requested by a child from time to time.
(a) The Mother is at liberty to continue to take B to mathematics tutoring with Ms Y.
(b)Both parties will facilitate the continuation of the children’s study of European languages.
(a) Neither party will enrol the children in any extracurricular activity which will impact upon their time with the other party without the written consent of the other parent.
(b)Each of the parties will keep the other informed at all times of activities in which he or she has enrolled the children.
The parties will effect handovers at the children’s school wherever possible and, otherwise by the father collecting the children from the home of the mother at the commencement of time with him and the mother collecting the children from the home of the mother at the commencement of time with her pursuant to these Orders, unless otherwise agreed in writing.
Other than in the event of an emergency, the parties are restrained from taking the children or either of them to a practitioner other than:
(a)       Dr R, the treating General Practitioner
(b)       Dr L, the treating Urologist
(c)       Dr A, the treating paediatrician
(d)       Dr S, the children’s treating dentist
(e)       Ms T, Psychologist
(f)       Mr U, Psychologist
(g)       Mr J, Occupational Therapist
(h)       Ms V, Occupational Therapist
(i)        General Medical Practitioners at W Medical Centre
(j)        Dr X, Ear, Nose and Throat Specialist
(k)       Ms Y, Tutor
(l)        Professional Staff from “Z Program”.
The parties are at liberty to vary the provisions of these Orders by agreement in writing from time to time.

Alteration of property interests, spouse maintenance and child support departure

The husband will pay to the wife a sum of $9,694,100 within three calendar months of the date of these Orders.
Otherwise each of the parties is declared to be solely entitled to all items of real and/or personal property and superannuation which are currently registered in his or her name or alternatively are currently in the possession or control of that party.
The Orders for spouse maintenance made on 8 March 2013 will stand discharged on the date upon which payment is made in full by the husband to the wife in accordance with Order 18 hereof.
The application of the wife for spouse maintenance is dismissed.
The application of the wife for child support departure orders is dismissed.
Otherwise all outstanding applications and responses are dismissed.

Notation

It is noted that the husband will continue to make the following payments on a voluntary basis:
(a) $275 per week per child to the wife
(b)All school fees, levies and prescribed school expenses including camps, excursions, books, stationery, computer costs and school run extracurricular activities
(c)Private health insurance premiums for the children, including hospital, ancillary and extras, with the husband to provide a secondary card to the wife to enable her to make claims thereon
(d)Out-of-pocket medical expenses for the children, including but not limited to medical specialist, dental, orthodontic, physiotherapy and like expenses provided that such expenses are agreed in writing by the parties before they are incurred except in the case of an emergency.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: ADC 43 of 2013

Ms Karllsson

Applicant

And

Mr Karllsson

Respondent

REASONS FOR JUDGMENT

The proceedings

The applicant wife and mother, Ms Karllsson, and the respondent husband and father, Mr Karllsson, are parties to proceedings in relation to parenting orders, alteration of property interests, spousal maintenance and child support departure. The parties have two children:
● B born in 2007 (11) and
● C born in 2010 (seven).
Initially, the mother sought parenting orders to the effect that the children spend time with the father for four nights per fortnight; for half of all school holidays and on special occasions. On the mother’s proposal, each of the parties would be permitted to travel overseas with the children. In final written submissions, counsel for the mother stated that she abandoned her application to reduce the children’s time with the father from five to four nights per fortnight. She sought orders which would continue the current arrangement of five nights per fortnight for the children with the father.
The father’s parenting proposal may be summarised as an equal time regime in a week about arrangement. His proposal also contemplated that the children spend time with each parent on special occasions and accompany both on overseas holidays. The father proposed that the children spend half of all school holidays with each parent.
In respect of property settlement the wife contended that the net pool of the parties’ assets and superannuation was valued at $77,112,846. She sought orders to the effect that she receive an amount equal to 35 per cent thereof, being 15 per cent on account of contribution and 20 per cent for factors relevant pursuant to s75(2) of the Family Law Act 1975 (Cth) (‘Family Law Act’).
The husband contended that the net pool of assets and superannuation has a value of $49,873,000. He sought orders that the wife receive an amount equal to 12.5 per cent thereof, being a sum of $6,234,000. On behalf of the husband it was submitted that the wife should receive a fixed sum of $6,234,000, regardless of the court’s findings as to the value of the net pool of assets and superannuation.
On behalf of the husband it was submitted such an award to the wife of $6,234,000 would be a just and equitable outcome, taking into account her contributions and factors relevant pursuant to s75(2) of the Family Law Act. The husband contended that this figure of $6,234,000 should include the wife’s property and superannuation, to the value of $1,690,515, which in part was comprised of interim property settlements in a total amount of $1,670,000. Accordingly, the husband would pay to the wife an amount of $4,543,485.
The wife sought an order that the husband pay to her a sum of $20,000 per month by way of spouse maintenance for an unspecified period. Ultimately, counsel for the wife conceded that she could not maintain her application for spouse maintenance if she obtained the orders which she sought by way of alteration of property interests. Effectively counsel for the wife properly conceded further that she may not be able to press her application for spouse maintenance if she received a lesser, but still substantial, sum by way of alteration of property interests.
The husband opposed the making of any order for spouse maintenance in favour of the wife. On his behalf counsel contended that his proposed orders for alteration of property interests would see the wife in receipt of a sum of approximately $4,600,000 in addition to the amounts already paid to her by way of partial property settlement and, further, that she has the capacity to earn income as a professional. Accordingly, the husband submitted that the wife could not establish that she is unable to support herself adequately for the purposes of s72 of the Family Law Act.
The wife sought orders, by way of child support departure, that the husband pay a sum of $700 per week for each child and that he meet the full costs of their attendance at BB School. The husband opposed the making of any orders for child support departure but indicated that he would continue to pay voluntarily a sum of $275 per child per week; all school fees and levies; health insurance premiums and out-of-pocket medical expenses for the children.
At the commencement of the trial, the mother sought to amend her application for parenting orders. For the first time in the lengthy history of this litigation, she sought a final order that she be granted sole parental responsibility for “the children’s health and medical issues, including all matters resulting from the child B’s condition as recommended by the said child’s specialists or other allied health and education professionals.” After extensive argument by counsel, I refused the mother leave to amend her application in this manner. I now summarise my reasons for refusing the mother leave to amend her application as set out above.
During the directions hearing on 1 September 2016, which was intended to ensure that the matter was ready for trial in March 2017, the mother raised no issue in relation to final orders for parental responsibility. On 2 December 2016 she filed a Further Amended Initiating Application, wherein she sought an order that the parties have equal shared parental responsibility. The mother purported to seek sole parental responsibility in relation to the children’s health issues only in a Further Amended Initiating Application dated 13 February 2017, which was not filed but served upon the father.
On 6 February 2014 the mother filed a Response to an Application in a Case in which she sought sole parental responsibility, on an interim basis, in relation to a number of issues including medical matters. She filed an Amended Response to an Application in a Case on 4 July 2014 and again sought an interim order that she have sole parental responsibility in relation to a number of issues including medical matters. The mother sought the same interim order in relation to parental responsibility in a Further Amended Response to Application in a Case filed on 26 November 2014.
When the father swore his trial affidavit on 13 February 2017, he and his lawyers acted on the belief that the mother sought a final order for equal shared parental responsibility. As correctly submitted by counsel for the father, no attempt was made on behalf of the mother to list the proceedings prior to the commencement of the trial to seek leave to amend her application. As correctly submitted further by counsel for the father, the mother offered no explanation for this change in her position between 2 December 2016 and 14 February 2017.
I found these two propositions of counsel for the father to be persuasive and refused the mother leave to amend her application in relation to parental responsibility. It is true that I remarked during this debate that the court is at large in terms of parenting orders and ultimately, the test is the best interests of the children. If I had been minded to depart from the parties’ apparent agreement that they have equal shared parental responsibility, of course I would have invited submissions on that matter before making any such order. Ultimately, it seemed to me that the mother sought to amend her application at a very late stage in proceedings, in circumstances where she had allowed the father and his lawyers to prepare his case for trial on the basis that each of the parties sought an order for equal shared parental responsibility.

Background

The husband and his mother, Ms Karllsson Snr, are the owners of a commercial enterprise known as the Karllsson Group. The Karllsson Group operates through various corporate entities and trusts and undertakes joint ventures with third parties from time to time.
Karllsson Group evolved from activities undertaken by Ms Karllsson Snr during the 1950s, after the breakdown of her first marriage.
Ms Karllsson Snr married the husband’s father, Mr C Karllsson, after he migrated to Australia from Europe in 1961. They began to undertake projects through various corporate entities. The uncontradicted evidence of Ms Karllsson Snr was that she insisted that she and her husband carried out their business activities via separate and independent corporate entities. She deposed that she and her husband distributed the profits of their activities equally between them at the end of each financial year.
The husband was born in 1963 and is currently aged 54 years. The wife was born in 1967 and is presently 51 years of age. The parties commenced cohabitation in 2000 and married in Europe in 2006. They separated on either 7 or 11 September 2010, according to the wife and the husband respectively.
The parties’ children both were conceived by an IVF process, with B and C being born in 2007 and 2010 respectively. B was three years and C five or six weeks of age at the time of their parents’ separation.
At the commencement of cohabitation the wife was an undischarged bankrupt with minimal assets. She was employed as a manager and deposed that her gross annual income was approximately $75,000.
At the commencement of cohabitation the husband was employed within the Karllsson Group and earned approximately $700 per week. He owned the following assets:

1.        10 per cent interest in a commercial property at BB Street, Adelaide which was gifted to him by his parents some years earlier;

2.        Residential property at DD Street, Suburb VP;

3.        An apartment and a house in Europe, which were gifted to him by his father;

4.        One half share in the property at EE Street, Adelaide, which was owned by the company FF Pty Ltd as trustee for the Mr Karllsson Family Trust;

5.        German and Japanese motor vehicles;

6.        Superannuation in the sum of $54,766; and

7.        Loan accounts with entities in the Karllsson Group in an amount of $70,141.

Between 2002 and 2005 the wife studied on a full-time basis. For two years during that period she worked for ten hours per week for her previous employer. After graduation, the wife worked as professional and an academic until she commenced maternity leave in December 2006.
The wife resumed part-time employment in October 2007, which continued until she again took maternity leave at the time of C’s birth in 2010. Thereafter the wife did not engage in paid employment until October 2014, when she commenced a position as a part-time consultant. This arrangement ended in November 2016 and the wife commenced her business in December 2016. She operates a company known as GG Pty Ltd.
On 4 December 2008 the husband’s father died unexpectedly, leaving him as the sole beneficiary of his estate. The husband’s mother received only an interest in two parcels of real estate as surviving joint tenant. In a report dated 10 March 2017 a single expert, Mr M, valued the husband’s inheritance from his father at $34,684 as at 30 June 2010.
It was common ground that the death of his father triggered an obsessive compulsive disorder in the husband. He deposed that this condition impacted upon his ability to function on a day-to-day basis but gradually abated over a period of approximately 12 to 18 months.
The husband inherited from his father ownership of a company known as Karllsson Pty Ltd and control of the Karllsson Family Trust.

Ms Karllsson Snr is the sole owner of a company known as N Investments Pty Ltd (“NIPL”) and she has control of the P Trust. As appears below, the wife contended that the husband exercises effective control over his mother’s corporate entities. That proposition was disputed strongly by the husband and his mother.
The Karllsson Group holds a 50 per cent interest in an entity known as the QQ Group. The remaining 50 per cent interest is owned or controlled by corporate entities operated by Mr CC.
Following the death of his father, the husband and his mother continued to divide equally the profits generated by entities under their respective control at the end of each financial year. The husband maintained that this arrangement accorded with the wishes of his late father.
The parties separated in September 2010 and were divorced by order made on 27 December 2013. The wife and the children continued to occupy the former matrimonial home and the husband moved to nearby rented accommodation.
In May 2012 the husband purchased his present home at HH Street, Suburb LL for $3,750,000. He obtained a sum of $1,029,130 from his mother and applied funds from his loan account with the Mr Karllsson Trust to complete this purchase. The husband and his mother signed a document headed “Loan Agreement” in approximately March 2013, that being several months after the purchase of the Suburb LL property.
According to the husband, his mother has advanced additional sums to him pursuant to this agreement from time to time. He maintained that these funds were applied to renovations to the Suburb LL property, legal fees, taxation liabilities and payments to the wife in accordance with interim court orders. The husband asserted that his debt to his mother, inclusive of interest, was $7,497,956 as at 30 June 2016. That figure was updated to $8,641,185 in a report by a single expert chartered accountant, Mr M, dated 9 March 2017.
The legitimacy and/or likelihood of enforcement of this alleged loan were live issues in the proceedings. In summary, it was alleged on behalf of the wife that the purported loan was a contrivance between the husband and his mother with the object of reducing the value of the net pool of property available for distribution in the proceedings. It was alleged further on behalf of the wife that the husband’s mother is unlikely ever to call upon him for repayment of any principal and/or interest.
The husband expended approximately $4,620,000 on renovations to the Suburb LL property, which was included in the Balance Sheet at a value of $4,625,000. As noted, the purchase price was $3,750,000. The husband’s alleged overcapitalisation of this asset was a matter which the wife contended to be a consideration in her favour.
The wife commenced these proceedings on 4 January 2013. On 8 March 2013 interim orders were made which provided that the husband pay to the wife, by way of spouse maintenance, a sum of $8,000 per month together with various recurring expenses.
The wife has received from the husband a total sum of $1,670,000 by way of partial property settlement. The Orders of 8 March 2013 provided for such a payment in the sum of $120,000. Further interim Orders made on 6 May 2013, 15 July 2014 and 23 August 2016 provided respectively for payments to the wife by the husband by way of partial property settlement of $250,000, $650,000 and $650,000.
At the date of separation B and C were aged three years and five or six weeks respectively. Initially the father spent time with the children at the former matrimonial home on five days per week and, occasionally, he took B on outings or to his nearby home for short periods. The father began to take B to school when she commenced attending BB School in February 2012. From that point he spent time with the children before and after school and on weekends.
In May 2012 B began to spend one night per week in the care of the father. In July 2012 C first spent an overnight period in his care. Each of the children spent one night per week with the father until interim parenting Orders were made on 21 June 2013.
These Orders provided that the children spend time with the father each alternate weekend from Friday afternoon until Sunday evening; each alternate Wednesday night and for half of all school holidays. On 15 July 2014 interim Orders were made by consent which varied the Orders of 21 June 2013. These varied orders provided that the children spend time with the father for four nights per fortnight until Term 1 in 2016. Thereafter, the children’s time with the father would increase to five nights per fortnight.
On 2 December 2014 interim orders were made following a contested hearing. All previous parenting Orders were discharged and provision was made for the children to spend four nights per fortnight with the father until the commencement of Term 2 in 2015. Thereafter, the children would spend time with the father for five nights per fortnight. These orders also dealt with a number of specific issues and imposed a limit on the health professionals to whom the parties could take the children.
On 23 August 2016 further interim parenting Orders provided for a continuation of the Orders of December 2014. The Orders of 23 August 2016 made provision for the parties to consult with Mr D, a psychologist, in relation to arrangements for the children to spend time with the father during school holidays and on special occasions.
In June/July 2015 each of the parties spent approximately three weeks in Europe with the children. They effected a changeover on 8 July 2015.
The parties engaged in extensive consultations with Mr D in relation to the December 2015/January 2016 school holidays and incurred significant legal costs for correspondence between their solicitors. A final agreement was reached only six days before the commencement of these holidays.
The parties engaged in a dispute in relation to the Easter period in 2016, which again involved Mr D and solicitors’ correspondence. Similarly, there were disputes and solicitors’ correspondence in relation to the June/July 2016 holidays and the September 2016 and Christmas 2016/2017 school vacations.

The evidence and witnesses

The applicant wife relied upon her trial affidavit of 13 February 2017 and Financial Statement of the same date. She relied also on an affidavit in reply to the husband’s trial affidavit which she swore on 7 March 2017. The wife adduced oral evidence from Ms II, who attended pursuant to a subpoena, in relation to an incident on 2 December 2016.
At the commencement of the trial, the mother sought leave to rely on a report from Dr MM, in relation to B’s condition. Counsel for the father objected to the granting of such leave, which I refused for reasons which I now set out in more detail than was the case on 14 March 2017.
The report of Dr MM was dated 22 February 2017 and served on the solicitors for the father on 27 February 2017. No prior notice was afforded to the father and his lawyers that the mother intended to seek leave to rely on this evidence. This issue was not raised at all during the Directions Hearing on 1 September 2016.
Dr MM is not a treating health practitioner for B and, in fact, she has never seen or assessed the child. Her report dealt with the condition in general terms. Dr MM noted that the condition affects approximately 1 in 1,000 women and is never detected in 90 per cent of cases. As was submitted correctly by counsel for the father, Dr MM could not place B on the spectrum of symptoms exhibited by females who suffer from this condition.
Counsel for the father correctly pointed to the risk that the trial would be adjourned, if the report of Dr MM were admitted into evidence. The father and his lawyers had very little time to deal with the issues potentially raised in the report and to meet this evidence. Justifiably, counsel for the father foreshadowed that considerable expense would be incurred unnecessarily in that event.
Counsel for the father submitted correctly that the mother did not raise the issue of B’s condition with the single expert Mr D. Counsel for the father submitted correctly that Mr D did not share the concerns raised by the mother in relation to B’s academic progress and social development, which she attributed to this condition.
In his report of November 2016 Mr D opined as follows: “both children were comfortable, confident, settled and happy in the care of their parents …” and “once again, my observations of the children in the company of their parents were unequivocally positive, albeit that it was different”.
Further Mr D opined:
18. I drew to [Ms Karllsson’s] attention that other people involved with the children spoke unequivocally positively about them and their general level of functioning and adaptation. Nonetheless, she told me that she felt there was more in there, and that compared to others, she felt that she was deeply attuned and emotionally in touch with her children and their feelings. She for example, told me that she did not believe that [B] was performing very well at school, and that her intellectual capacity was far in excess of her academic output. …
(Emphasis in original)
These “other people involved with the children” included Ms T, a psychologist who has consulted with B and spoken with Mr D.
Counsel for the father pointed to passages in Dr MM’s report which were said to indicate that this evidence would not assist in the determination of parenting issues. Dr MM was asked this question:
What is the likely progression and prognosis of a ten-year old girl with [the condition] if the condition is not assessed and managed properly?
Dr MM responded:
Due to the variability of the condition and a lack of comparative studies about the outcome for affected girls who have been assessed and managed appropriately, as opposed to those who have not, this is a question that can be answered subjectively only.
Dr MM continued:
Ultimately, however, despite all the issues discussed above, it appears that most females with [the condition] can be expected to lead fulfilling lives, attending mainstream schools, gaining employment, pursuing relationships and motherhood, if they desire, with no current evidence to suggest anything less than a normal life expectancy.
It seemed to me that there was substantial force in the submissions of counsel for the husband, on the question of admission into evidence of the report of Dr MM. I refused to grant leave to the wife to rely upon the report of Dr MM.
The respondent husband relied upon his trial affidavit sworn on 13 February 2017 and an affidavit in reply to that of the wife which he swore on 10 March 2017. The respondent husband also relied upon affidavits of his mother Ms Karllsson Snr sworn on 10 February 2017 and Mr NN of 10 February 2017. Mr NN has been the accountant for the Karllsson Group since 1996. The husband relied also on his Financial Statement of 13 February 2017.
As noted, Mr D was the single expert in relation to parenting issues and has been involved with the parties and the children for approximately four years. Mr D prepared four reports which were dated 26 February 2013, 16 July 2014, 19 November 2014 and 30 November 2016.
Mr M, a chartered accountant, was the single expert in relation to the issue of valuation of the husband’s interests in the Karllsson Group, QQ Group, the P Trust, and NIPL. Mr M prepared four reports dated 7 November 2014, 17 April 2015, 4 September 2015 and 9 March 2017. Additionally, in a report dated 10 March 2017 Mr M valued the husband’s inheritance from his father as at 30 June 2010.

Parenting issues

Section 60CC considerations

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

In my view, it is implicit in the proposals of the parties that they each acknowledge that the children will benefit from a continuing meaningful relationship with both parents. I have referred above to certain comments of Mr D in relation to the high quality of the children’s relationships with each of their parents.
The father complained that the mother has excluded him from a proper role in the lives of the children. In his last report Mr D assessed as follows:
There was an unmistakable theme of frustration, irritability and critical anger around the limitations imposed upon him and the time that he spends with the children. He was quite direct when he suggested that in conjunction with the Court, and in collusion with [Ms Karllsson], that [Mr D] along with the process, had contributed to excluding him from the children’s lives … his presentation conveyed a sense of passion, intense emotion and palpable frustration.
The father first sought orders that the children spend equal time with each parent in May 2013, when B and C were aged six and two years respectively. His application was unsuccessful and was not supported at that time by Mr D. Overall, it seemed to me that the father has been focussed strongly on achieving an equal time arrangement throughout these proceedings. In my assessment, he is unlikely to desist from litigation in relation to parenting matters unless and until he achieves that result or that he forms the view that there will be no such outcome.
Until the filing of her final submissions, the mother sought to reduce the children’s time with the father from five to four nights per fortnight. In my view, however, she was not motivated by a desire to marginalise the father from the lives of the children. Rather, it seemed to me that she was driven to some extent by anxieties which she carries from her childhood experiences. In his oral evidence Mr D said:
I don’t think she’s being malicious. I don’t think she’s being difficult. I don’t think she’s being disturbed. I think she genuinely believes it’s better for the kids to have four nights with their dad in a 14- night cycle, on the basis of the information that they present to her.
The evidence left me with no doubt that the children currently enjoy a meaningful relationship with each of their parents. I am comfortably satisfied that an ongoing meaningful relationship with each parent will be to the benefit of the children.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

The written submissions of counsel for each of the parties indicated that this consideration is not a significant factor in the proceedings. There was reference in the evidence to two incidents between the parties in 2012 and 2014, which might be found to constitute “family violence” in accordance with the statutory definition.
The mother alleged the father pushed her and called her a “feral dog” in September 2012. Both parties gave evidence in relation to an incident on 4 April 2014, which involved physical contact between them.
There was no evidence of any similar incident since early 2014. I am inclined to accept the submission on behalf of the mother that these events “are relevant only as examples of the volatile nature of the parties’ conflictual relationship where disputes can escalate quickly.” Accordingly, I find that there is no need to protect the children from abuse, neglect or family violence in the care of either parent.

Section 60CC(3) considerations

I will refer only to those considerations set out in s60CC(3) which are relevant to the present proceedings. Some of these factors clearly are irrelevant, for example, the children are not of aboriginal or Torres Strait Islander descent.

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

At the time of the interviews by Mr D in 2016, C was six years of age. He did not express any clear views in relation to parenting arrangements. In any event, his age would militate against significant weight being attached to his stated views.
On behalf of the mother, it was submitted that B’s views “should carry significant weight”. Counsel for the mother referred to the report of November 2016, where Mr D stated as follows inter alia:
55.At the very outset, I told [B] that what she said to me was not private and confidential, and that both parents would know the contents of our discussions. This was significant because she had been told by her mother that our discussion would be private and that her father would not know the details thereof.
56.When I enquired of [B] the significance of this, she told me that she was worried that her father would be angry when he learned that whilst she loved him, that she preferred to be with her mother; [B] went on to describe her father as more angry and more grumpy than her mother, that he appears not to like it when she speaks with her mother, and that previously, he became angry when he learned that both she and [C] said they wanted more time with her than with him. [B] told me that she does not want to upset her father and that she loves him.
57.It was clear from my discussion with [B] that she harboured beliefs borne from her discussion with others. She for example enquired of me when she would be old enough to be able to make her own decisions about the amount of time spent with her parents, and suggested to me that this would be when she was twelve years of age and that this is what her mother had told her. She also spoke about wanting to be fair, missing her mother, and feeling a special closeness to her.

Mr D continued, however, to opine as follows:
58.It is also significant in my view that [B’s] feelings about the situation between her parents is more complex when unpacked. For example, she certainly spoke about a preference to be with her mother and missing her mother more than her father, yet she also spoke about a preference to spend time with her father without her brother present, and about how much she would enjoy the opportunity to have a night with her parents without her brother each week. Similarly, given the significance of holiday time, I inquired of [B] her thoughts about the amount of time spent away, and she told me that she clearly enjoyed the time with her father, and especially longer holiday times when she is busy and distracted. [B] explained that when she gets bored, it is then that she misses her mother, and not at other times, suggesting that her experience is not pervasive and prevailing, but rather a feeling that she experiences at certain times. Nonetheless [B] confirmed that there are times that she becomes very resistant, that she doesn’t want to change, that it is hard to move between the houses, even though she clearly settles quickly and well. It is probably worth highlighting that as has been described by others, Mr and Ms [Karllsson] have very different parenting styles, and this changing of environmental and emotional backgrounds has an impact on [B].
Mr D opined further:
83.[B] certainly tells her mother that she misses her, that it is hard, and that she has a preference to be more with her mother than with her father. Based on this feedback, it’s not surprising that this is the view that [Ms Karllsson] has formulated and that this is [B’s] continuous emotional experience when it is not. [B] copes significantly better when with her father than what she tells and communicates to her mother might suggest; what she says to her mother about her experience is transitory. It is clear that there are times that [B] misses her mother, but for the vast majority she does not; she manages well, and she does not present with any cluster of symptoms to suggest that the current arrangement is not working well or that she cannot tolerate it. Once again, I draw attention to the observation of others who have commented on how confident, assertive and how well coping [B] is, that she rises to the expectations set for her, and that she is not the vulnerable, anxious child that at times she has been described.
I accept the expert evidence of Mr D, to the effect that B’s stated wish to spend more time with the mother than the father should be treated with some caution. I accept Mr D’s careful “unpacking” of her expressed views and his analysis of their likely evolution.

Section 60CC(3)(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)

It was common ground that the children enjoy a loving and positive relationship with each of their parents. I have referred above to the expert evidence of Mr D, to the effect that the children enjoy high quality but different relationships with each of their parents.
On behalf of the mother it was submitted that B feels a “special closeness” with her, as the child reported to Mr D. He noted that B “spoke about wanting to be fair, missing her mother, and feeling a special closeness with her.” Mr D reported that B “still carries with her a locket of her mother’s hair that she uses as a transitional object.” He opined that “I would certainly expect a person of B’s age to have moved well past the need for a transitional object …”
Mr D offered this analysis of B’s experience in the household of each of her parents:
62.There are certainly contradictions to [B’s] presentation. Whilst at one level she states clearly a preference to be with her mother, when this is unpacked further, it is clear that she enjoys the time with her father, and on condition that she is busy and occupied, doesn’t miss her mother whatsoever. [B] also told me that she really enjoys living in the two houses, but made note that they are very different, that they have different rules, that her father is more abrupt, and her mother more permissive. I would again describe her parents along a parenting continuum as her mother being more democratic and empathic and her father being more benevolently autocratic. Given [B’s] emotional style, it may not be surprising that she feels a greater sense of attunement and connection to her mother; it would equally not be surprising to understand that she copes well and manages within the rules and more structured environment of her father.
For these reasons I do not accept that B’s stated views in fact reflect a real wish that she spend more time with her mother than her father. I accept that her stated views should not be taken at face value.

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long‑term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child

I am satisfied that each parent has taken the opportunity to participate in major decisions in relation to the children and to spend time and communicate with them. In my view, it might reasonably be observed that the father has had a strong focus upon obtaining as much time as possible with the children since the separation. For example, he insists on remaining with them at all times when they are on “play dates” with their friends.
Both parties focussed attention on an incident on 2 December 2016, which involved Ms II. The mother deposed that she arranged play dates for both children after school on that day and that she accepted an invitation from her last client that afternoon for a drink in a wine bar. She deposed that she arranged with Ms II for C to remain at her home with her son RR. She deposed further that she made a similar arrangement with the mother of B’s play date friend.
It seems that the father became aware that the mother was drinking alcohol in the wine bar and rang Ms II. On any view of the evidence, the father was angry and presumed to speak impolitely and inappropriately to Ms II.
I see no utility in my attempting to make findings as to the precise conversation which took place on that day between the father and Ms II. In my view, it was regrettable and unnecessary that she was drawn into the dispute between the parties against her wishes.
It seems to me that two conclusions can be drawn from this incident. Firstly, the mother made appropriate arrangements for the care of the children during a period when they lived with her pursuant to court orders. Secondly, the father’s anger with and criticism of the mother were unwarranted and his intrusion into her parenting lacked justification.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

It was common ground that both parents have fulfilled their obligation to maintain the children. It was well evident that the father has provided generously for their financial support since the separation.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

Mr D addressed the issue of a continuation of the current arrangements against an introduction of an equal time regime. He opined as follows:
86.The clinical reality is that the current arrangement works well. For this reason alone, it could easily be argued that continuation of the status quo is the least uncertain option. However, there is no reason why [Mr Karllsson] should not have an equal care arrangement, and for the children to be in his care for an equal amount of time given the history, their ages, the observations of others, and their vulnerabilities. I fully appreciate that neither parent will be happy with an arrangement other than that which they seek and believe to be in the best interest of the children.
87.A creative solution might in fact reflect [B’s] wish, that is, that she spend a night with her parents separately, and in this regard, a good solution would entail the children continuing to spend five nights with their father in the fourteen night cycle and in addition, one night with him separately, that way providing exclusive time for each child with each parent. In other families with whom I have been involved this has proved to be an extremely satisfying outcome for all concerned; children still get to spend the majority of the time with their siblings and their parents, but they also enjoy the option of individual time with the parents on a regular basis.
88.When all things are considered, and notwithstanding the concerns harboured by [Ms Karllsson], and notwithstanding the history of difficulties of being a core feature of this family’s functioning over time, the children are doing well and could have extra time. It is also true that the less uncertain alternative is the continuation of the status quo.
Mr D expressed one reservation in relation to these recommendations, however, which related to the mother’s allegations of denigration of her by the father. He reported:
My one significant concern is around the allegations pertaining to the active denigration, and punitive attitude that is described of [Mr Karllsson], which I note clearly he denies categorically. On this one important issue alone, recommendations could change.
In my view, Mr D was not moved from these opinions in

cross-examination. He said inter alia:
●The children could easily move to “an equal care arrangement now”;
●Children tend to “do better around the age of seven” where there is an equal time arrangement; and
●“that’s not a view which I share” in relation to the wife’s opinion that “the children would not cope with extra time”.
Notably, C is now aged approximately 7½ and B is 11 years old. I accept the expert evidence of Mr D, to the effect that children of this age “are likely to do better” in an equal time arrangement than is the case with younger children.
It was submitted on behalf of the mother that an equal time arrangement is contra-indicated by the lack of co-operation and hostility between the parties. I am inclined to accept that the father harbours resentment of and hostility toward the mother. In my view, his attempts to initiate a criminal investigation into her driving activities allow for no other conclusion.
The father maintained a record of traffic infringements which involved a German motor vehicle driven by the mother after separation (Exhibit 27). The father provided this information to a police inspector. In cross-examination the father said that he supplied this information to police because he “could not understand how [Ms Karllsson] had maintained her licence.” He suggested that he involved the police inspector because he was concerned for the safety of the children. He said also that he was concerned that the insurance policy would be vitiated, in the event that the motor vehicle was damaged while the mother was driving without a licence.
In cross-examination the father said that police officers informed him that the mother had nominated third parties who claimed to be the driver of the motor vehicle at the time of some of these infringements. He said that the inspector told him that police investigated these claims and, in his words, “all of those persons held fast with respect to their claim that they were the driver at the time.” When asked whether he believed that third parties were involved in the infringement notices, the father said “I don’t necessarily disbelieve it.”
In my view, another example of the father’s hostility toward the mother was the incident which involved Ms II. I have observed above that his anger with and criticism of the mother on this occasion were unwarranted in the circumstances.
On behalf of the father a number of emails between the parties were tendered in evidence, with a view to demonstrating that they are capable of civil communication in relation to issues concerning the children. On the face of these emails it does appear that the parties have communicated in a civilised manner, at least on these occasions. Of course, these emails do not provide a complete picture of the communication and interaction between the parties during the six year period between their separation and the trial.
The reality is, however, that the children have spent substantial and significant time with each parent since December 2014 and, on the mother’s case, the parties have had a poor co-parenting relationship since their separation. As noted, Mr D contemplated a continuation of the current arrangements, a “creative solution” or the introduction of an equal time regime with full knowledge and extensive first-hand experience of the parties’ difficult mode of interaction.
I note again Mr D’s concern in relation to possible denigration of the mother by the father in making this recommendation. The fact is that the children have moved between their parents for some years in an arrangement whereby they spend substantial and significant time with both their mother and their father. Given the personalities of the parties, as described by Mr D, it is unlikely that their pattern of interaction will change in the foreseeable future.

Section 60CC(3)(f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;

and

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

The written and oral evidence of Mr D contained numerous references to his assessment that the parties both offer high quality but different styles of parenting to the children. I have no reason to doubt his expert evidence in this regard and I accept that each of the parents has the capacity to provide for the needs of the children. I have set out above the expert evidence of Mr D as to the children’s different emotional and practical experiences in the household of each parent.
I accept also that each of the parties has an appropriate attitude to the children and the responsibilities and duties of parenthood. It seems that the children experience high quality parenting in the care of each of the parties but they must contend with the ongoing conflict between their mother and their father.

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

As noted above, the father first sought orders for an equal time arrangement when B and C were aged six and two years respectively. I have referred also to the father’s apparent determination to spend as much time as possible with the children, to a point where he insists on being present throughout their “playdates” with friends. It thus seems to me that the children are likely to be subjected to litigation between their parents, with further expert assessments and uncertainty as to their future, for a considerable period if the father fails to achieve his desired outcome.
It seems to me that the father is likely to pursue orders for an equal time arrangement until he obtains that outcome or it becomes evident and he accepts that he will not achieve that result. He has sufficient economic resources to engage in litigation over parenting issues for as long as he chooses to do so.
In my view the following observations of Mr D are apposite to this issue:
90.This is a family that will do well with firm, clear, unequivocal guidelines and limits, and an end to litigation and the uncertainty around the children’s time with each parent. I draw attention to the obvious parallels between what I am advocating, and what is more likely to contribute for a more containing experience for the children and indeed for people experiencing anxiety. My clinical observation and assessment is that each of these family members does in their own way experience high levels of anxiety and that a more structured, containing and predictable outcome for all concerned will be of enormous benefit.

Parental responsibility

As noted above, I declined to grant leave to the mother to amend her application so as to seek sole parental responsibility for medical issues relating to the children. Accordingly, the position of each of the parties at trial was that there should be an order for equal shared parental responsibility.
As also noted above, I am satisfied that family violence is not a significant issue in these proceedings. Accordingly, I find that there is no need to protect the children from harm in the care of either of the parties.
I am not satisfied that the presumption of equal shared parental responsibility was rebutted by evidence that such an arrangement would be contrary to the children’s best interests. The parties in fact have shared parental responsibility for the children since their separation in 2012. The children have spent substantial and significant time with each of their parents since December 2014, despite their interpersonal difficulties.

Conclusion as to parenting issues

I will make an order that the parties have equal shared parental responsibility for the children. Accordingly, I am required to consider whether it is in the best interests of the children, and reasonably, practicable, that they spend equal time with each parent.
I have set out above the expert evidence of Mr D in relation to the high quality of the relationships that the children enjoy with each of their parents. I have referred also to the analysis provided by Mr D of B’s stated wish to spend more time with the mother and his reasons why those expressed views should not be taken at face value.
Further, I have set out the expert evidence of Mr D that the children forthwith could cope with a move into a week-about arrangement. I have indicated above my concern that the father is likely to pursue litigation for equal time orders until he achieves that outcome or it becomes evident and he accepts that he will not obtain that result.
These considerations point to an equal time outcome but I see merit in a period during which the children spend time with each parent in an arrangement which Mr D described as “a creative solution”. The father indicated that he would accept such a regime for a twelve month period, as a precursor to a week-about arrangement. The mother opposed this alternative but it may be that she would more readily adjust to a week-about arrangement with this introductory period. I see merit in an outcome which reflects B’s stated wish to spend individual time with each of her parents. I would note that Mr D expressed none of the caveats about this stated view on the part of B as was the case in relation to her expressed wish to spend more time with the mother. Accordingly, I will make orders which put in place arrangements in accordance with the “creative solution” proposed by Mr D.
The mother’s proposal contained a provision that the children spend time with each parent for two specified periods during the Christmas school holidays. The result would be that there would be multiple changeovers and no opportunity for extended overseas travel during these holidays, in the absence of agreement between the parties.
Mr D gave clear evidence to the effect that he saw no reason the children should do otherwise than spend equal blocks of time with each parent during all of their school holidays. The following exchange occurred between Mr D and counsel for the father:
“Thank you. And insofar as you opined then that it might be difficult for [C] to spend five or seven days away, [C] – that’s no longer a current concern of yours at all?---No.
And, in fact, I think you’ve said that as far as you’re concerned, long school holidays, some six or so weeks duration, can be evenly divided between the parties?---Given the history that the children appear to have done well, yes.
Yes. And that was the case in relation – they – I withdraw that. In mid-2015 - - -?---Yes.
- - - with your assistance, [Mr D], the parties were able to agree upon an overseas trip?---Yes.
Yes. And they were able to agree upon time – a block of about, I think, 19 days being spent by each of them with the children?---Yes, I believe that’s correct, your Honour.
Yes, yes. And from everything that the children have told you, that progressed well?---Yes.
Yes. And your opinion is that moving forward, there is no reason why they can’t spend similar blocks of time with each of the parents during school holidays?---I think generally speaking, we want to try and defragment the time now and consolidate it into blocks so that they can enjoy continuity of care.
Thank you. And that’s an important factor, continuity of - - -?---Yes.”

In my view, the proposal of the mother for school holidays is contra-indicated by the expert evidence. I will make orders as to the effect that the school holiday periods are divided equally between the parties in single blocks of time.
The parties agreed essentially on arrangements for the children during Easter and Orthodox Easter, together with Mother’s Day and Father’s Day. There was a dispute concerning arrangements on the birthdays of the parties and children. The father sought an overnight period on each birthday occasion, which the mother viewed as an unnecessary complication. Further, the mother proposed an arrangement for B’s birthday which would not confine each of the parties to Adelaide at that time in the Christmas school holidays.
I will make orders as proposed by the mother in relation to the birthdays of the children. I see no need for an order that the children spend time with the parties on their birthdays, from the perspective of their best interests.
The mother’s proposal for Christmas Eve and Christmas Day was said to take into account the fact that she celebrates on 24 December, in accordance with her European heritage, and the father on 25 December. In my view, Christmas Eve and Christmas Day are both significant events for children and the children should be permitted an opportunity to spend time with both of their parents on these occasions. I will make orders in the scheme of the father’s proposal for the Christmas period.
The parties appeared to agree that there be a limitation on their enrolling the children in extracurricular activities without the consent of the other parent. It appeared also to be common ground that the children continue language lessons.
The mother sought an order to the effect that she be at liberty to obtain an assessment of B from an expert in the condition. The final written submissions on her behalf indicated that she would accept an arrangement whereby each parent was fully involved in this assessment process.
The father opposed this order but accepted that the condition may have implications for B. Mr D observed that “knowledge is power” but could take this issue no further.
There was no evidence that there is any immediate necessity for such an assessment of B, nor of the most beneficial age for this process. I am loath to leave open an opportunity for these parties to embark on further litigation but I am simply not satisfied that the evidence warrants any order in relation to B’s condition.
The father sought an order that he retain the children’s passports, with a provision for release to the mother no less than two weeks prior to her travelling overseas with the children. The mother opposed such an order, on the basis that the father would be likely to use his possession of the passports as a means of exerting control over her. I see no real reason to determine this issue in favour of either party, other than that I accept that there is some risk that the father may create difficulties for the mother in terms of releasing the children’s passports to her in a timely manner. Accordingly, I will order that the mother hold the passports of the children.
The father sought to impose a requirement that there be notice to the other party of any interstate travel of the children. The father required provision of dates, an itinerary and details of flights and accommodation. I saw nothing in the evidence which would warrant such a requirement, in terms of the best interests of the children. On its face, this proposed order would apply in the case of an interstate trip of a couple of days’ duration. I will not make such an order.
The father sought an order that each parent have first option to care for the children in the event that the other party is unavailable for a period in excess of 24 hours. The mother opposed such an order. Mr D commented that such an order “is one of those concepts that can be nebulous and – a source of great conflict because it’s not specified.” He elaborated as follows:
“---In principle, your Honour, I always think it’s better for the children to be cared for by parents and grandparents before they’re cared for by others, in principle.
And that may be the case in principle, and in this case that is your opinion?---It Is my opinion, but it’s somewhat qualified.
Qualified because of the mother’s resistance to it?---Because I’m the only one who has actually had time with them together, and I see how they go from zero to 1000 very quickly, and how the way they portray their sanitised version of events is very different to the way I perceive their less than sanitised version of events. Neither of them particularly reflects upon the way they contribute to the highly inflammatory nature of their interaction, and even a negotiation around spending extra time inevitably, your Honour, inevitably regresses to a very personal attack, criticism, condemnation. This goes into World War III. They do not negotiate anything well, and, yes, I think they should be in the care of both of their parents in preference to other people, but the negotiation between their parents has, in my experience, directly been pretty poor.”
I have no reason to doubt that the mother would make appropriate, and

child-focussed, arrangements for the care of B and C if she were unavailable for a period in excess of 24 hours. In my view, the father’s conduct at the time of the incident which involved Ms II points to the risks inherent in this proposed order. There was no objectively reasonable basis for his anger with and criticism of the mother on that occasion. I am concerned that this proposed order would provide the father with further opportunities to intrude into the mother’s care of the children. I am conscious of the expert evidence of Mr D on this issue and I will not accede to this proposal of the father.
There was a dispute between the parties in relation to telephone and Skype contact, while the children are in the care of the other parent. The father proposed that this communication occur three times per week, whereas the mother proposed one occasion. It seems to me that three occasions per week is excessive but, on the other hand, the children should be free to telephone the other parent if they wish to do so. I will make orders accordingly.
The father sought an order which prescribes a list of health professionals to whom the parties may take the children. This list was different to that which was prescribed by the orders made in 2014. The father gave no evidence in support of his application to vary the list of prescribed health care practitioners. Accordingly, I will not make this order.

Property issues

Both parties sought orders pursuant to s79(1) of the Family Law Act . Accordingly, they both conceded that it is just and equitable that there be orders for alteration of property interests.
Independently of the mutual concessions of the parties I am satisfied that it is just and equitable that there be orders for alteration of property interests, having regard to the decision of the High Court of Australia in Stanford v Stanford (2012) 247 CLR 108. The majority of the High Court said:
First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of section 79(1)(a) itself, which refers to “altering the interests of the parties to the marriage in the property” (emphasis added). The question posed by section 79(2) is thus whether, having regard to those existing interests the court is satisfied that it is just and equitable to make a property settlement order.
(Emphasis altered)
In these proceedings the husband holds most of the “existing legal and equitable interests of the parties in the property” as was submitted by counsel for the wife. Accordingly, there must be orders for alteration of property interests to enable the wife to receive a portion of these assets.

The assets, superannuation, liabilities and financial resources of the parties

In final written submissions, counsel for the wife contended that the asset pool has a total net value of $77,112,846. The Outline of Case document submitted on behalf of the wife contained a Balance Sheet in the following terms:

ASSETS
Ownership		Description	Wife’s value
Wife’s personal assets
1	W	Westpac Choice account no. …97 [at 8 February 2017]	7,495
2	W	Westpac Reward Saver account no. …56 [at 8 February 2017]	1,186
3	W	Westpac eSaver account no. …17 [at 8 February 2017]	2,789
4	W	Westpac Business Flexi account no. …55	3,093
5	W (GG PL)	Westpac Business One account no. …15	4,650
6	W (GG PL)	Westpac Business Cash Reserve account no. …23	1,225
7	W	Telstra shares [E 471 @ $5.11 – 29.1.17]	E 2,400
8	W	Motor vehicle 1	E 5,800
9	W	GG Pty Ltd	Nil
10	W	Household contents	E 20,000
11	W	Jewellery	E 30,000
12	TOTAL $78,638
Husband’s personal assets
Bank accounts
13	H	CBA Netbank saver account no. …16 [from trial affidavit]	3,880
14	H	CBA Smart Access account no. …51 [from trial affidavit]	54
15	H	CBA Smart Access account no. …92 [from trial affidavit]	196
16	H	SS Bank account no. ending …72 [from trial affidavit]	11,990
17	H	UU Bank account no. ending …40	Nil
18	H	NAB [referred to in 2015 income tax return – details not known]	Not known
19	*SUB-TOTAL $16,120*

Shares
20	H	BHP Billiton (500) [from trial affidavit]	E 12,980
21	H	Oz Minerals (2800) [from trial affidavit]	E 25,894
22	H	Telstra (20,146) [from trial affidavit]	E 71,437
23	H	Westpac (2000) [from trial affidavit]	E 63,940
24	H	Vocus (3000) [from trial affidavit]	E 12,030
25	SUB-TOTAL $186,281
Motor vehicles
26	H	Motor vehicle 2	35,000
27	H	Motor vehicle 3(driven by husband’s mother)	35,000
28	H	German vehicle 1	130,000
29	H	4WD	65,000
30	H	German vehicle 2 (driven by W)	55,000
31	H	Motor vehicle 4 (driven by husband’s mother)	100,000
32	H	Motor vehicle 5 (in Europe)	2,000
33	H	Motor vehicle 6 (driven by husband’s mother)	35,000
SUB-TOTAL $457,000
34	H	Household contents	200,000
TOTAL $938,039
Single expert’s adjusted valuation
35	Husband’s interest in the Karllsson and QQ Groups of companies per single expert Mr M’s updated valuation dated 9 March 2017 (including some personal assets)		$60,826,212
Total		$61,764,251

ADDBACKS
Ownership		Description	Wife’s value
35	H	Distributions from VV Trust to husband’s mother between 2011 and 2015	801,049
36	H	Distributions from WW Trust to P Trust between 2009 and 2015	892,357
37	H	Distributions from Karllsson Family Trust to NIPL Investments Pty Ltd between 2012 to 2015	4,111,213
38	H	Legal fees and associated costs paid	TBA
39	W	Legal fees and associated costs paid	1,383,761
Total		$7,188,380

LIABILITIES
Ownership		Description	Wife’s value
40	W	Legal fees to Norman Waterhouse	91,805
Total		$91,805

SUPERANNUATION
Member		Name of Fund	Type of Interest	Wife’s value
41	W	Statewide Super	Accumulation	E 36,182
42	W	Australian Super	Accumulation	E 12,104
43	H	Karllsson Superannuation Fund	Self managed fund	See Item 35 & notes
Total		$48,286

FINANCIAL RESOURCES
Ownership		Description	Wife’s value
44	H	P Trust (value at June 2014 per Mr M report dated 9 March 2017)	At least 23,718,000
45	H	Interest in XX Joint Venture	Not known
46	H	Interest in property at YY Street, Suburb ZZ	Not known
Total		$23,718,000

NET TOTAL ASSETS (including Superannuation)	$61,720,732
PLUS ADDBACKS	$7,188,380 (plus H’s legal fees)
NET TOTAL ASSETS PLUS ADDBACKS	$68,909,112

Notes
In relation to any disputed items and all disputed values for items a party should state, using the item number as a heading:
1.Why an item should not be on the balance sheet.
2.Whether expert evidence is required to resolve a dispute as to value and what steps have been taken to agree upon and appoint a single expert.
3.Whether documents in the possession of the other party need to be provided before the value of an item can be agreed.
4.Any other comment a party wishes to make in relation to the disputed item.

Item No
8	The wife previously held 2000 shares in David Jones, which were sold pursuant to a shareholder’s agreement on 1 August 2014 for $4 per share. The wife applied this money, in the sum of $8,000, to general living expenses.
35	Mr M’s report dated 9 March 2017 (see executive summary page 8) Value of husband’s interest in the Karllsson and QQ Groups and some of his personal assets Karllsson Group $40,618,365 QQ Group $4,083,152 Mr Karllsson personal assets* $1,654,781 $46,356,297 Adjustments: Loan from Ms Karllsson Snr $8,641,185 Discount $1,896,784 Husband’s shares in NIPL (before discount) $3,326,000 Karllsson Super Fund ($996,572) Karllsson Super Fund at 30 January 2017 $1,602,518 Adjusted value of husband’s interests $60,826,212 *Mr M has included the following personal assets of the husband in his valuation: HH Street, Suburb LL DD Street, Suburb VP Apartment in Europe Holiday home in Europe Karllsson Super Fund
TOTAL HUSBAND’S ASSETS $67,398,427
TOTAL WIFE’S ASSETS (inclusive of paid legal fees) $1,510,685

In final written submissions, counsel for the husband contended for a net asset pool to the value of $49,873,000 “subject to realisation costs”. The Outline of Case document submitted on behalf of the husband contained a Balance Sheet in the following terms:
LEGAL AND EQUITABLE INTERESTS OF THE PARTIES IN PROPERTY
…

PROPERTY	OWNERSHIP	VALUE
Interest in the Karllsson Group per Valuation Report prepared by the single expert Mr M dated 9.3.2017	Husband	$40,618,148
Interest in QQ Group per Mr M’s Valuation Report dated 9.3.2017	Husband	$4,083,152
Husband’s net personal assets as per Mr M’s Valuation Report dated 9.3.2017	Husband	$1,654,781
Husband’s Shares (as at 10.3.2017):-	Husband
BHP Billiton (500) @ 23.67 per share	E$11,883
Oz Minerals (2,874) @ $8.21 per share	E$23,595
Telstra (14,146) @ $4.64 per share	E$65,637
Westpac (2,000) @ 35.13 per share	E$70,260
Vocus (3,000) @ $4.25 per share	E$12,750
TOTAL	E$184,125

Wife’s Shares (as at 10.3.2017):-	Wife
Telstra (471) @ $4.64 per share	$2,185
Husband’s Bank Accounts	Husband
Commonwealth Bank A/c # ending …16	$3,880
Commonwealth Bank A/c # ending …51	$54
Commonwealth Bank A/c # ending …92	$196
SS Bank A/c # ending …72	$11,990
TOTAL	$16,120
UU Bank A/c # ending …40 (funds held on trust for B withdrawn and retained by Ms Karllsson) (per notation to orders dated 6 May 2013)	Husband & Wife (ATF B $9,000	$NR
Wife’s Bank Accounts	Wife	Not known
Westpac Choice A/c # ending …97
Westpac Reward Saver A/c # ending …56
Westpac eSaver A/c # ending …17
NAB Reward Saver A/c # ending …87* (*closed 19.8.14)
Husband’s Motor Vehicles	Husband
Vehicles:-
(a) Inherited from father and driven by Ms Karllsson Snr:-
(i) Motor vehicle 3;	$35,000
(ii) Motor vehicle 4;	$100,000
(iii) Motor vehicle 6;	$35,000
(b) Motor vehicle 2
(c) German car motor vehicle 1	$35,000
(d) 4WD	$130,000
(e) German car motor vehicle 2 (driven by Ms Karllsson)	$65,000
(f) Motor vehicle 5 (in Europe)	$55,000
TOTAL	$2,000
$457,000
Wife Motor Vehicle:-	Wife	$6,000
Motor vehicle 1 (per Ms Karllsson’s sworn Financial Statement)
Household contents
Husband’s household contents at Suburb LL	Husband	E$60,000
Wife’s household contents at DD Street	Husband	Not Known
Jewellery	Wife	Not Known
Part Property	Wife
Settlements:-
Order 8 March 2013	$120,000
Order 6 May 2013	$250,000
Order 15 July 2014	$650,000
Order 23 August 2016	$650,000
Total:	$1,670,000
TOTAL ASSETS (in so far as known)	$48,751,511
LIABILITIES
Westpac Earth Black Mastercard #...25 @ 9.2.17	Husband	$23,594
UU Bank Amplify (previously St George Visa) #,,,09 @ 9.2.17	Husband	$75,273
American Express #71007 @ 9.2.17	Husband	NIL
Westpac Altitude Black Mastercard	Wife	Not Known
David Jones Amex Card	Wife	Not Known
TOTAL LIABILITIES (in so far as known)	$98,867
TOTAL NET ASSETS (non super)	$48,652,644

SUPERANNUATION
Statewide Super	Ms Karllsson	$12,330
Karllsson Super Fund @ 30 January 2017 (per David NN	Mr Karllsson	$1,602,518
TOTAL SUPERANNUATION (in so far as known)	$1,614,848
TOTAL NET ASSETS	$50,267,492

Counsel for the husband submitted that a sum of $394,700 must be subtracted from the figure of $50,267,492 in the Balance Sheet set out in his Outline of Case document. The wife accepted this proposition, which reflected an erroneous belief on the part of the husband as to the extent of his interest in certain assets known as the AB Town properties. In light of this proper concession on behalf of the wife, it is unnecessary that any further consideration be given to this matter.
In terms of the identity and value of the husband’s assets, the wife raised the following issues:
1.The validity of an alleged loan of $8,641,185 from Ms Karllsson Snr to the husband and the likelihood of any call for repayment;
2.The value of the husband’s shares in the company NIPL;
3.The significance of distributions from the Karllsson Family Trust to NIPL;
4.The discount for lack of control and illiquidity applied by Mr M;
5.Treatment of the parties’ superannuation interests as assets; and
6.Treatment of the parties’ paid legal costs.

Alleged loan from Ms Karllsson Snr to the husband (“the loan”)

On behalf of the wife, it was submitted that this loan should not be deducted from the value of the husband’s assets for the following reasons:
1.The loan was brought to the attention of Mr M only after he prepared his first valuation report;
2.The loan came into existence after the parties’ separation, principally for the purpose of the husband’s acquisition and renovation of the Suburb LL property, which he “overcapitalised by 100 per cent of its current value”;
3.The Suburb LL property is included in the list of assets at a value of $4,625,000, when the purchase price was $3,750,000 and the husband expended a total of $4,620,000 on renovations;
4.The initial advance of $1,029,130 was made in May 2012 without a written loan agreement, which came into existence in approximately March 2013 when the husband allegedly owed his mother a sum of $3,478,177 inclusive of interest;
5.The wife filed her Initiating Application on 4 January 2013 and the loan agreement came into existence in approximately March 2013;
6.According to the evidence of Mr NN, no previous advance within entities comprising the Karllsson Group had been subject to a written loan agreement;
7.According to the evidence of Mr NN, no other loan within the Karllsson Group attracted payment of interest;
8.Ms Karllsson Snr gave evidence that she had complete trust in the husband and could provide no reason why she required a loan agreement other than her need for security at her age;
9.Although the husband gave evidence that he would repay the loan he has paid no interest, which accrues at the rate of approximately $500,000 per annum;
10.Exhibit 40 demonstrated that approximately $2,200,000 in interest would have accrued by 30 June 2017, a circumstance which would have been avoided by an astute businessman such as the husband;
11.The evidence of the husband and Mr NN in relation to the negotiation of the interest rate “has an air of being contrived”, in that they both stated that the rate was for an unsecured loan and neither explained why a more favourable arrangement was not put in place;
12.Ms Karllsson Snr stated that she did not make distributions to Karllsson Pty Ltd so as to ensure that the wife received the smallest amount possible from the husband and the loan agreement reflects her stated intention;
13.Exhibit 40 demonstrated that Ms Karllsson Snr simultaneously borrowed money from the husband’s Family Trust while he allegedly owed her funds pursuant to the loan agreement, a situation which Mr NN explained unconvincingly to be a device to avoid a taxation problem under Division 7A of the Income Tax Assessment Act 1936 (Cth); and
14.There is no statutory presumption in relation to the treatment of liabilities, as pointed out by the Full Court in Rodgers and Rodgers (2016) FLC 93-703 as follows:
40.It is in our view important to reiterate and emphasise what was said in Biltoft above:
There is no statutory prescription which suggests that any treatment of the liabilities is mandatory. Despite the frequency with which the “rule” is applied we have not been taken to any authority, nor are we aware of any authority, which suggests that any such “rule” has the effect of a binding rule of law. What emerges from the authorities is that while there might be a “rule” the application of which is appropriate in the vast majority of cases, the manner in which a particular liability should be treated is, ultimately, dependent upon the nature of the liability, the circumstances surrounding the liability and the dictates of justice and equity shaped by each.
41.The usual practice or “rule” sits comfortably and comformably within that rubric – in many cases, perhaps almost all, liabilities will be deducted from “gross” value of the property because it will be clear (and even if not expressly stated, determined) that the justice and equity of the case demands that the liabilities should be met by the parties in the proportions in which the court determines the property is to be divided. Liabilities that are vague, uncertain, unlikely to be enforced and the like might be treated differently because those circumstances might, in the circumstances of the particular case, render it unjust and inequitable for the liabilities to be deducted in that manner. The so-called “exceptional cases” are but instances of the broader consideration of the justice and equity of the particular case.

The wife asserted that she made a contribution by providing emotional support to the husband following the sudden death of his father in December 2008. The husband disputed that she did so and maintained that the wife was “cold and dismissive” toward him at this time. The husband deposed, however, that the wife told him that she was providing “tough love”. His own evidence thus suggests that the wife did attempt to assist the husband at this difficult time in his life.
The wife relied substantially on her contributions “to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent” (s79(4)(c) Family Law Act). The husband submitted that, because of his and his family’s wealth, “the Wife’s homemaker role was made less onerous due to the availability of significant household and homemaker support”. I am inclined to the view that the wife primarily organised and supervised the running of the parties’ household, while the husband concentrated on his business ventures.
As recorded above, both parties’ children were conceived through an IVF process, which the wife deposed was “taxing, both physically and emotionally” for her. There were 15 or 13 IVF cycles, according to the wife and the husband respectively and both of the children were delivered by caesarean section.
The husband conceded that the IVF process was a difficult and traumatic experience for the wife. When asked about the IVF process in

cross-examination he said:
Question:[Mr Karllsson], the conception of [C] via IVF was a particularly difficult time for [Ms Karllsson]?
Answer:I think all the IVF cycles were difficult, for [Ms Karllsson] first and foremost and me, along way behind but second.
Question:Yes. And getting result, cycle after cycle, that there is no pregnancy would be traumatic for her?
Answer:Very. And for me but more so for [Ms Karllsson].
Question:And nevertheless, she carried on and you have two beautiful children?
Answer: Yes.

After the parties separated in September 2010, the wife continued to make a homemaker and parent contribution for over seven years. In more recent times, the husband’s involvement in the day-to-day care of the children has increased gradually to the current arrangement of five nights per fortnight and school holidays periods.
The husband deposed that he owned the following assets at the commencement of cohabitation in 2000:
a.a 10 per cent interest in the commercial property at [BB Street], Adelaide (unencumbered);
b.the residential property at [DD Street, Suburb VP], (unencumbered) which became the matrimonial home and in which the Wife and children have continued to reside since separation;
c.two properties in [Europe] (unencumbered), being an apartment and a house;
d.a one-half share in the property at [EE Street], Adelaide (unencumbered) (via [FF Pty Ltd] as trustee for the [Mr Karllsson] Family Trust);
e.two motor vehicles, being a [German motor vehicle] and a [Japanese motor vehicle];
f.superannuation entitlements of $54,766 in the self-managed [Karllsson] Superannuation Fund (as at 30 June 2000); and
g.unpaid present entitlements (loan accounts) in entities within the [Karllsson] Group.
The husband continues to own these properties, which remain unencumbered and were valued for the purposes of these proceedings. The written submissions set out the values of these properties as follows:

a.     10 per cent interest in BB Street, Adelaide $226,000

b.     former matrimonial home at DD Street, Suburb VP $1,975,000

c.     Properties in Europe $557,000

d.     one-half share in EE Street, Adelaide $2,250,000

Total:

$5,258,000

As noted, the husband received an inheritance from his father following his death in December 2008. The husband deposed that his inheritance had a value of approximately $39,000,000 and that he received the relevant shareholdings in December 2009. The wife did not dispute this evidence in her affidavit in reply.
On instructions from the husband’s solicitors, Mr M prepared a valuation of his inheritance as at 30 June 2010. Mr M noted that the husband received shares in companies in which his father held an interest in December 2009. He indicated that he relied on financial information for the year ended 30 June 2010 and real property valuations as at that date.
Mr M assigned a value of $34,684,000 to the husband’s inheritance as at 30 June 2010. In his oral evidence Mr M agreed that this figure should be reduced so as to reflect the true ownership of AB Town properties. Accordingly, Mr M valued the husband’s inheritance at $34,313,973 as at 30 June 2010.
It was submitted on behalf of the husband that the assets of the Karllsson Group and QQ projects are “overwhelmingly referrable” to his inheritance. Mr M valued the husband’s interests in these two entities at $40,618,000 and $4,083,000 respectively.
Counsel for the husband pointed to the authority Bonnici and Bonnici (1992) FLC 92-272 where the Full Court said (at page 79-020):
A property does not fall into a protected category merely because it is an inheritance. On the other hand, if there are ample funds from which an appropriate property settlement can be made and a just result arrived at, then the fact of a recently acquired inheritance would normally be treated as an entitlement of the party in question.
The other party cannot be regarded as contributing significantly to an inheritance received very late in the relationship and certainly not after it has terminated, except in very unusual circumstances. Such circumstances might include the care of the testator prior to death by the husband or wife as the case may be or other particular services to protect a property.
It was submitted on behalf of the husband that his inheritance should be treated as “an entitlement of his alone”. Counsel for the husband submitted that he received his inheritance at a late stage in the parties’ relationship and that the wife made little, if any, contribution to those assets. It was submitted further on behalf of the husband that “there are ample funds from which an appropriate settlement can be made and a just result arrived at”.
I do not accept that the husband’s inheritance should be quarantined from the remaining assets for the purpose of these proceedings. As indicated above, the husband’s case was that the wife should receive an amount equal to

12.5 per cent of a net pool of $49,873,000. That figure includes the assets derived from the husband’s inheritance.
I have found that the net pool of property has a value of $49,750,689. Mr M valued the husband’s interest in the Karllsson Group and QQ Group at $40,618,000 and $4,083,000 respectively. If the assets attributable to the husband’s inheritance are quarantined, a pool of approximately $5,049,700 remains in a notional sense. The wife holds or has received assets and superannuation to the value of $1,748,838. I do not consider that justice and equity can be served, in the circumstances of these parties if their respective contributions and relevant s75(2) factors are assessed in this context.
Counsel for the husband made the following submissions, on the basis that the net asset pool has a value of $49,872,792:
83.It is salient to note, at this point, the following. Of the total net asset pool contended by the Husband, namely, $49,872,792:
a.$5.258 million is directly referrable to the Husband’s initial contribution of real estate (unencumbered at all material times) and approximates 10.5 per cent of the pool;
b.$44.701 million is directly referable to the Husband’s interests in the [Karllsson] Group and the [QQ] Group which are overwhelmingly referable to his inheritance shortly prior to separation;
c.$5.171 million is the balance of the remaining assets excluding the Husband’s interests in the [Karllsson] Group and the [QQ] Group;
d.the Husband’s proposal that the Wife receive overall 12.5 per cent of the pool amounts to $6.234 million, of which she has (or has had the benefit of) $1,690,515, as follows:
i.         $2,185 shares;
ii.        $6,000 Motor vehicle 1;
iii.      $1,670,000 partial property settlements (x 4); and
iv.       $12,330 superannuation.
Total $1,690,515
e.Accordingly, the balance proposed to be paid to the Wife is approximately $4.544 million.
Counsel for the wife submitted that there should be a contribution finding of 15 per cent in her favour. Counsel summarised the contributions relied upon by the wife as follows:
a.The wife’s employment income from cohabitation until the birth of [C];
b.The wife’s establishment and maintenance of a comfortable family home;
c.The community and companionship provided to the husband during the marriage and the relationship before that;
d.Her attempts at pregnancy via IVF, particularly with [C], which together involved between 13 and 15 IVF cycles;
e.The difficulty with the caesarean birth and the recovery;
f.The raising of the parties’ children in circumstances where, at least during cohabitation, the parties adopted traditional roles.
g.[C] was raised virtually entirely post separation. The wife bore the greater responsibility for this.
The submission of counsel for the wife for a contribution finding of 15 per cent in her favour was predicated on a net asset pool of $77,112,846. On that basis, the wife would be entitled to approximately $11,566,926 on account of contribution. Counsel for the husband contended for a contribution finding of 7.5 per cent in favour of the wife and for a net pool of $49,873,000. On that basis, the wife would be entitled to $3,740,475 on account of contribution.
I am of the view that contribution should be assessed at a greater percentage than 7.5 per cent in order adequately to recognise and evaluate the contributions made by the wife. I find that a contribution assessment of

15 per cent would properly reflect the contributions made by her as set out above in these reasons. Simultaneously, I find that a contribution assessment of 85 per cent would properly recognise the vast direct financial contributions made by the husband and the late stage in the relationship when he received his inheritance.
I have found that the net pool of assets and superannuation has a value of $49,750,689. 15 per cent and 85 per cent of that pool equate to $7,462,603 and $42,288,085 respectively.

Section 75(2) factors

The husband conceded that it is proper that there be an adjustment in favour of the wife pursuant to s75(2) and proposed an award of 5 per cent of his net pool of $49,873,000. On the husband’s case, therefore, the wife would receive the sum of $2,493,650 on account of s75(2) factors.
The wife sought an adjustment of 20 per cent in her favour in relation to a net pool of $77,112,846 as contended on her behalf. On this basis the wife would receive the sum of $15,422,569 on account of s75(2) factors. I have found that the net pool of assets and superannuation is valued at $49,750,689, of which 20 per cent equates to $9,950, 137.
Counsel for the wife summarised their submissions in favour of an aware of 20 per cent of $77,112,846 as follows:
a.The wife has no tangible assets. Apart from her paid legal fees, her main assets are modest superannuation interests which are unavailable to her at her current age of 50 years.
b.She will need to start virtually from scratch to acquire furnish and fit out a home for herself and the children. She will need to buy a car and other necessities.
c.The husband has almost all of the assets.
d.Irrespective of the award of the court, the husband’s financial position both in relation to income and property will continue to improve by reason of his valuable property holdings, his reliable income and his financial relationship with his mother.
e.The wife is unlikely to ever have the income which is comparable to that of the husband.
f.The parties enjoyed a luxurious lifestyle during the marriage and the husband continues to enjoy a lifestyle which allows him to own multiple luxury cars, overcapitalise his home to suit his needs (including building a lift for his cars) and apply his considerable income as he sees fit. The husband identified a $3 million house as appropriate for the wife at or near separation.
g.The children should be able to enjoy the same measure of comfort and a similar lifestyle in each parent’s home.
I will now consider those factors set out in s75(2) which are relevant to these proceedings. Some of these factors clearly are irrelevant to the resolution of this dispute, for example s75(2)(m) which deals with the financial circumstances of cohabitation of a party with another person.

Section 75(2)(a) the age and state of health of each of the parties

The husband and the wife are aged 54 and 51 respectively and they are both in good health.

Section 75(2)(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment

The wife is a professional who established her own business known as GG Pty Ltd in December 2016. According to her Financial Statement of 13 February 2017 she receives “Nil” income from her business. The final written submissions of her counsel described her income from this business as “modest at the present time” but contained a concession that “the wife has a capacity for appropriate gainful employment.”
The husband deposed to a gross weekly income of $4,165 in his Financial Statement of 13 February 2017. By letter dated 23 March 2017, the husband has available to him total funds in an average amount of $3,380,000 (Exhibit 41). This figure represented an average of funds coming into his hands in the 2013, 2014 and 2015 years and excluded “large one-off gains”. Interest on the alleged loan from Ms Karllsson Snr was taken into account in the calculation of this figure, although no such payments have been made by the husband.
Counsel for the wife levelled criticism at the husband in relation to his evidence as to total funds which are available to him. Their written submissions stated inter alia: “it is submitted that he was trying to keep the wife and the court in the dark … [and] ‘the husband’s attempt at an explanation simply muddies the water in an attempt to mislead the court.”
I do not accept that the husband “attempt[ed] to mislead the court.” On the other hand, I consider that he was not disposed to be particularly helpful in providing evidence as to the reality of the financial benefits which flow to him from the Karllsson Group. The written submissions in reply on behalf of the husband stated inter alia: “the Wife’s submissions fails to appreciate (or conveniently overlooks) the difference between taxable income and funds that may be available to the Husband”. In other words it appears that the husband was content to rely upon his taxable income of $4,165, which might be expected to be a minimum figure resulting from his expert accounting advice.
Mr M indicated that “virtually all of this income is derived from rental related income”. As submitted by counsel for the wife, the husband will retain the properties which generate this revenue and thus have access to an ongoing and substantial income stream. As stated in the final written submissions of his counsel, the husband “is a very wealthy man.”

Section 75(2)(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

The children will spend a six nights per fortnight and school holiday periods in the care of the husband and the balance of their time with the wife for a period of twelve months. Thereafter they will live with each parent in an equal time arrangement.

Section 75(2)(d) commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain

Attention was focussed during the trial on the wife’s alleged commitments to support herself and the children. It was suggested on behalf of the husband that some of the wife’s asserted expenses are excessive and even a cursory examination of Part N of her Financial Statement would tend to demonstrate that there is weight to that submission (Exhibit 20). For example, she claimed that she needs to spend $2,097 per week on holidays for herself and the children.

Section 75(2)(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable

During the relationship the parties enjoyed a luxurious lifestyle, which included expensive overseas travel, clothing, motor vehicles and homes. In

re-examination the husband said that he attempted to purchase a house for the wife and the children at a price of $3,000,000 after the separation. In my view, that plan suggests that the husband acknowledges that the wife should continue to enjoy a relatively affluent lifestyle.
In my view, it is reasonable to take into account the fact that the children will soon live with each parent in an equal time arrangement. I consider that it would be contrary to their best interests if there was a significant disparity in the lifestyle available to them in the homes of their mother and father. They are accustomed to a luxurious lifestyle, which was created for them jointly by the parties.

Section 75(2)(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account

As recorded above, I will take into account in favour of the wife the unfavourable terms of the loan agreement between the husband and his mother. As indicated, I accept that the terms of this agreement were designed to maximise the level of the husband’s debt to this mother.

Conclusion as to section 75(2) factors

As noted, the husband conceded that there should be an adjustment in favour of the wife on account of s75(2) factors and proposed a quantum of 5 per cent. The wife sought an adjustment of 20 per cent.
It is my view that 5 per cent is too little and 20 per cent too great an adjustment in favour of the wife. It should be borne in mind that 1 per cent of the net pool is equal to $497,507, in the assessment of a proper quantum.
I find that there should be an adjustment of 8 per cent of the net pool in favour of the wife on account of s75(2) factors. I have regard primarily to the vast discrepancy in the income earning capacities of the parties; the lifestyle enjoyed by the parties and that which is appropriate for the wife and the children in the future and the fact that the terms of the loan agreement increase the husband’s debt to his mother by approximately $500,000 per year.

Conclusion as to alteration of property interests

I thus find that the net pool of assets and superannuation should be divided as to 23 per cent to the wife and 77 per cent to the husband. Those percentages equate to $11,442,658 and $38,308,031 respectively.
The wife holds or has held the following:

($)

1.     Partial property settlements 1,670,000

2.     Shares in public companies 2,400

3.     Bank accounts 20,438

4.     Household contents 20,000

5.     Motor vehicle 1 5,800

6.     Jewellery 30,000

Total:

$1,748,638

Accordingly, she requires a payment from the husband of $9,694,020 to constitute 23 per cent of the net pool. For convenience, I will round up this figure to $9,694,100.

If the wife were to receive 35 per cent of the net pool, she would be entitled to an additional sum of $15,664,103 from the husband. That sum seems to be excessive as an assessment of her contributions and relevant s75(2) factors. On the other hand, the husband’s application would see him pay to the wife an additional sum of $4,470,198. That outcome seems to me to be an insufficient recognition of the wife’s contributions and relevant s75(2) factors. I am satisfied that the orders which I make will achieve a just and equitable result.

Spouse maintenance

As a result of the orders for alteration of property interests, the wife will receive $9,694,100 in addition to the total of $1,670,000 which she has received by way of partial property settlements.
Once she receives these funds, I consider that there can be no finding that the wife is unable to support herself adequately for the purposes of s72 of the Family Law Act. Additionally, counsel conceded that she has a capacity for appropriate gainful employment. In these circumstances, the wife should fail in her application for a final order for spouse maintenance.
I will order that the existing interim arrangements for spouse maintenance continue until the wife receives her full entitlement pursuant to the orders for alteration of property interests. It seems to me to be just and equitable that the wife continue to receive this financial support from the husband until she is in a situation of being able to support herself adequately on payment to her of the sum of $9,694,100.

Child Support Departure

Counsel for the husband submitted that the wife’s failure to tender the Notice of Assessment means that she cannot press her application for a child support departure order. It is correct that the wife failed to tender the Notice of Assessment. It is also true that the husband failed to tender this document, although he also sought child support departure orders.
S116(1) of the Child Support (Assessment) Act 1989 (Cth) enables a liable parent or a carer entitled to child support to apply to the court “in respect of an administrative assessment of child support”. S123 provides that an application may be made for provision of child support “otherwise than in the form of periodic amounts” or “by way of lump sum” “only if an administrative assessment is in force …”. Rule 4.18 of the Family Law Rules 2004 (Cth) (“The Rules”) requires the filing of a Notice of Assessment with “all applications for child support.”
Accordingly, the wife failed properly to invoke the jurisdiction of the court to entertain her application for child support departure orders and she did not comply with r 4.18 of the Rules. It is incumbent upon the wife to satisfy jurisdictional prerequisites and to comply with the Rules. I do not accept that she can overcome these difficulties merely by attaching a copy of the Notice of Assessment to her final written submissions and I will dismiss her application for child support departure orders.
As noted above, however, the husband indicated that he is prepared to continue to make the following payments and provision for the financial support of the children on a voluntary basis:
a.the sum of $275 per child per week;
b.all school fees and levies in relation to the children’s attendance at [BB School], Adelaide, or such other school as may be agreed in writing between the parties, and prescribed school expenses including camps, excursions, books, stationery, computers costs and school run extra-curricular activities;
c.private health insurance premiums for the children at the current rate and extent of cover, including hospital, ancillary and extras, with the Father to maintain a private health insurance policy for the children and to provide to the Wife a secondary card for the purpose of making claims thereupon; and
d.out of pocket-medical expenses for the children, including but not limited to medical specialist, dental, orthodontic, physiotherapy and like expenses, provided that such expenses are agreed in writing between the parties before they are incurred, save in the event of an emergency.
I will accede to the suggestion of the husband that the orders contain a notation to the effect that he will continue to make these payments. I will do so to facilitate a future application, in the event that the husband ceases to make these payments in the future. I make it clear, however, that I consider that the husband wishes to preserve an appropriate lifestyle for the children.

I certify that the preceding two hundred and twenty-one (221) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 9 May 2018.

Associate:

Date: 9 May 2018

a. 10 per cent interest in BB Street, Adelaide	$226,000
b. former matrimonial home at DD Street, Suburb VP	$1,975,000
c. Properties in Europe	$557,000
d. one-half share in EE Street, Adelaide	$2,250,000
Total:	$5,258,000

($)
1. Partial property settlements	1,670,000
2. Shares in public companies	2,400
3. Bank accounts	20,438
4. Household contents	20,000
5. Motor vehicle 1	5,800
6. Jewellery	30,000
Total:	$1,748,638