KELLY & LOMAX

[2016] FamCA 846

FAMILY COURT OF AUSTRALIA

KELLY & LOMAX [2016] FamCA 846

FAMILY LAW – PARENTING - with whom the child lives – where each of the mother and father seek to have their 13 year old son live with them – whether each parent is capable of facilitating a meaningful relationship between a child in their care and the other parent

FAMILY LAW – PROPERTY – justice and equity – post-separation contributions – where the parties separated in 2004 – where the husband has re-married

FAMILY LAW – CHILD SUPPORT DEPARTURE – Application dismissed

Family Law Act 1975 (Cth)

Banks & Banks (2015) FLC 93-637

APPLICANT: Ms Kelly

RESPONDENT: Mr Lomax

INDEPENDENT CHILDREN’S LAWYER: Couper Geysen Family and Animal Law

FILE NUMBER: BRC 6009 of 2010

DATE DELIVERED: 30 September 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 20-22 June 2016;
20-22 July 2016;
24-26 August 2016;
16 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Baston by way of direct access brief

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Oakley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Couper Geysen Family and Animal Law

Orders

IT IS ORDERED BY WAY OF FINAL ORDER

1. All previous orders other than those by which any party was ordered to pay costs are discharged.

IT IS ORDERED BY CONSENT BY WAY OF FINAL PARENTING ORDER

1. The child, X, born … 2000, live with the mother.

2. The child X spend time with her father at such times as may be agreed between the child and the father.

IT IS ORDERED BY WAY OF FINAL PARENTING ORDER THAT

1. The child W, born … 2003, live with the mother.

2. The mother have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the children X and W save that she shall, prior to making a decision about any such issue:

   (a)inform the father in writing by email of the issue about which a decision needs to be made; the decision she would like to make in respect of such issue and the reasons for that proposed decision; and

   (b)allow the father 14 days after the provision of the information referred to above to respond to the same in writing by email; and

   (c)consider the father’s response, if any, when coming to a decision about any such issue; and

   (d)inform the father in writing by email of the final decision made with respect to that issue as soon as practicable thereafter.

3. Each party have responsibility for daily decisions about the day to day care, welfare and development of the children when they or he or she is in that party’s care.

4. W shall spend time and communicate with the father at all times as may be agreed between the parents in writing but failing agreement as follows:

   (a)commencing on the first weekend after the making of orders on which W would have been spending time with his father pursuant to the existing parenting orders and each alternate weekend thereafter: from 3.00 pm, or the conclusion of school (whichever is the later) Friday until the commencement of school on Monday; and

   (b)for the first, third and fifth week of the school holidays at the conclusion of Term 4, 2016; and thereafter,

   (c)       for half of all school holiday periods being:

   (i)the first half in even numbered years; and

   (ii)the second half in odd numbered years.

5. The operation of Clause (7)(a) shall be suspended during any school holiday period and shall recommence with weekend time commencing:

   (a)on the first weekend of school Term if W has spent time with the mother in the first half of the holiday period; or

   (b)on the second weekend of school Term if W has spent time with the father in the second half of the holiday period.

6. For the purpose of W’s time with his father during school holidays pursuant to Clause (7)(b) and (c) herein, school holidays shall be taken to commence at 9.00 am on the Saturday immediately following the conclusion of the school term.

7. In any school holiday period during which W is spending holiday time with the father, the mother shall have telephone communication with him each Wednesday between the hours of 6:30 pm and 7.00 pm or at such times as may be agreed in writing between the parents with:

   (a)the mother to initiate the telephone call to a telephone number to be provided to the mother by the father; and

   (b)       the father to ensure W is available to receive the telephone call.

8. W shall communicate with the parent with whom he is not the living at all reasonable times he shall request.

9. Neither parent shall enrol W in any activity which occurs during time he is with the other parent without first obtaining the written agreement of that parent.

10. The mother and father shall:

    (a)keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within forty-eight (48) hours of such change; and

    (b)notify the other at least seven (7) days prior to relocating their residence; and

    (c)keep the other informed of the names, addresses and contact details of any medical or other health professionals who treat the children; and

    (d)inform the other as soon as is reasonably practicable of any serious medical condition suffered by the children;  and

    (e)keep the other informed of any school, educational facility or extra- curricular activity provider attended by the children.

11. Each party shall inform the other, as soon as reasonably practicable, of any significant medical condition, illness or significant health issue suffered by the children.

12. By this Order, the mother and father authorise any school or educational facility attended by the children to provide to each parent, at that parent’s request and cost, all information about the children’s educational progress and school related activities.

13. Subject to the conditions imposed by the children’s schools, this Order authorises both parents to attend school functions to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interview.

14. By this Order, the mother and father authorise any medical or other health professionals who treat the children to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about the children’s attendance and treatment.

15. Neither parent denigrate the other, any partner or their family to, or in front of, or within the hearing of the children and each shall direct third parties to refrain from denigrating either party, any partner or their family to, or in front of, or within the hearing of the children and, failing the third parties’ compliance with such a direction, shall remove the children from that environment immediately.

16. Each party is at liberty to provide any school attended by the children with a copy of the parenting orders made today.

IT IS ORDERED BY WAY OF FINAL ORDER PURSUANT TO S 79 OF THE FAMILY LAW ACT THAT

1. By this Order, the solicitors of Clarke Kann Lawyers are hereby authorised to apportion the funds currently held by them in their Trust Account on behalf of Mr Lomax and Ms Kelly in the following proportions:

   (a)       50 per cent in favour of Mr Lomax; and

   (b)       50  per cent in favour of Ms Kelly.

2. That, except as otherwise provided for, Mr Lomax is entitled to be the sole legal and beneficial owner of all other property currently in his possession or control.

3. That, except as otherwise provided for, Ms Kelly is entitled to be the sole legal and beneficial owner of all other property currently in her possession or control.

4. In the event that either party refuses or neglects to do any act or sign any document required to be done or executed in compliance with the provisions of these Orders, then, pursuant to s106A of the Family Law Act 1975 (Cth), a Registrar of the Family Court of Australia at Brisbane is hereby appointed to execute all deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to the said Order and the affidavit of the solicitor for the non-defaulting party shall be sufficient evidence of such non-compliance.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Other than is provided for in this Order, Ms Kelly and Mr Lomax are each restrained and an injunction issue restraining each of them from directing Clarke Kann Lawyers to pay out those funds held in trust by Clarke Kann Lawyers on their behalf.

2. By this order, Clarke Kann Lawyers are hereby directed to pay the sum of $70,000.00 directly to Company V from Ms Kelly’s portion of the funds held by them in trust on her behalf.

3. Mr Lomax and Ms Kelly shall each sign all documents necessary to give effect to the terms of Clause (25) within 24 hours of a request to sign the same.

4. Save for the payment referred to in Clause (25), the balance of the funds currently held in trust by Clarke Kann Lawyers shall remain held in trust on behalf of Mr Lomax and Ms Kelly pending further Order of the Court.

CHILD SUPPORT DEPARTURE

1. Ms Kelly’s application for a departure from the administrative assessment of child support is dismissed.

COSTS

1. The outstanding applications for costs which were reserved on 16 September 2016 remain reserved. 

2. In the event that any party or other interested person seeks an order that a party pay its costs:

   (a)any such party or other interested person shall file and serve brief written submissions in support of such application for costs within fourteen (14) days of today; and

   (b)the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve any brief written submissions in answer to the submissions filed and served by the party or other interested person seeking costs; and

   (c)the party or other interested person seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,

   and any such application for costs shall be considered in Chambers.

3. In the event that the Objectors seek an order that Ms Kelly pay the costs of and incidental the subpoena filed on 23 June 2016 and set aside on 24 August 2016:

   (a)they shall file and serve brief written submissions in support of such application for costs within fourteen (14) days of today; and

   (b)Ms Kelly shall file and serve, within a further fourteen (14) days thereafter, any brief written submissions in answer to the submissions filed and served by the Objectors; and

   (c)the Objectors shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by Ms Kelly,

   and any such application for costs shall be considered in Chambers.

IT IS FURTHER ORDERED THAT

1. The Independent Children’s Lawyer is discharged.

2. A Registrar of the Court cause matters relating to the parenting aspect of these proceedings to be redacted from the Reasons for Judgment, the documents relied upon by each party at the final hearing and the exhibits and, upon such redaction, forward a copy of the same to the proper officer of the Australian Taxation Office or the Commissioner of Taxation.

3. All outstanding applications, other than those relating to costs and which have not already been determined, are dismissed.

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

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 Kelly & Lomax 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 BRISBANE

FILE NUMBER: BRC 6009 of 2010

Ms Kelly

Applicant

And

Mr Lomax

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Ms Kelly, a professional, was born in 1964. She is currently 52 years of age. She has not re-partnered. She is currently unemployed and lives with X and W in rented accommodation.

2. Mr Lomax, also a professional, was born in 1964. He, too, is currently 52 years of age. Despite being the Chief Executive Officer of a number of companies, including those owned by his now wife, Ms Lomax, his current taxable income is $30,000.00 per year. Mr Lomax married Ms Lomax in 2006. They have two children together: NN, now 10 years of age and OO, now 7 years of age.

3. Ms Kelly and Mr Lomax started to live together in about 1984. They married in 1989. They separated in about November 2004 and divorced on 22 March 2006. 

4. They have four children together: Ms Y, born in 1994 (now 22 years); Mr PP, born in 1996 (now 20 years); X, born in 2000 (now 16 years) and W, born in 2003 (now 13 years). 

5. The current proceedings are for parenting orders in relation to both X and W and for property settlement orders pursuant to s 79 of the Family Law Act1975 (Cth) (“the Act”).

6. The disputes between Ms Kelly and Mr Lomax arose not long after their separation. These disputes have been wide-ranging and all encompassing. Central to their property dispute is Ms Kelly’s contention that Mr Lomax has acted (in concert with Ms Lomax) to minimise the property amenable to these proceedings and has deliberately failed to disclose information about financial matters. Central to their parenting dispute about the youngest of their children is each parent’s contention that the other has failed to support their relationships with the children during those periods when each child was living with the other parent.

Parenting arrangements between separation (November 2004) and trial

1. When their parents separated in November 2004, Ms Y was ten years of age, Mr PP eight years of age, X four years of age and W about nineteen months of age. All of the children initially remained living with Ms Kelly in the former matrimonial home. 

2. It would appear, speaking broadly, the following parenting arrangements for the children were implemented after separation:

   a)from shortly after separation in November 2004 until the end of January 2006: the children other than W lived for eight nights per fortnight with their mother and for six nights per fortnight with their father (W spent two nights per fortnight with his father); and then

   b)between about the end of January 2006 and about mid 2008: Ms Y and Mr PP spent increasing periods of time living with Mr Lomax, whilst X likely spent less time in his care (and obviously more time in her mother’s care) and W spent up to equal time with each parent at varying times; and then

   c)between about mid-2008 and 15 March 2010: Ms Y and Mr PP lived almost exclusively with Mr Lomax and X and W lived almost exclusively with their mother - the siblings saw very little of each other in 2009; and then

   d)from about 15 March 2010 until the present: Ms Y has lived with Ms Kelly, X and W whilst Mr PP remained living primarily with Mr Lomax until he moved away to engage in tertiary studies.

3. An Order made by consent by Bell J on 13 September 2010 provided that, subject to their wishes, Mr PP live with Mr Lomax and Ms Y, X and W live with Ms Kelly. The Orders also provided that Mr PP and Ms Y spend time with the parent with whom they were not living as agreed between each child and that parent, and that X and W spend time with their father as agreed between their parents. Additionally, the parties agreed that they would do everything necessary to ensure that each child had a passport with Mr Lomax to hold Mr PP’s passport and Ms Kelly to hold the passports for Ms Y, X and W.

4. The reality for the children has been that, during the time each of them lived with whichever parent, their opportunity to spend time with their other parent was minimal. I accept that a consequence of this shared approach to parenting is that it is likely the children’s own relationships vis-a-vis each other have been significantly curtailed – they simply did not see or spend any significant time with any sibling who was not then living with them.

5. Further appreciation of the parents’ shared approach to parenting their children can be gleaned by reference to the Notations to the September 2010 Order, which included the following:

   a)Ms Kelly would not enrol W at QQ School where Mr PP attended at that time; and

   b)Ms Kelly would not provide any of Mr Lomax’s details to the schools at which Ms Y, X or W attended; and

   c)Ms Kelly would not attend Mr PP’s sporting or other events unless specifically asked by Mr PP to do so.

6. That is, both parents agreed that it was appropriate for their sons not to have any chance of incidental interaction by attending at the same school and both also agreed that it was appropriate for the father to absent himself entirely from any involvement with the schools attended by those children who were to live with their mother.

7. This ‘all or nothing’ approach to parental involvement is a recurring theme in this matter.

Current parenting and living arrangements

1. On 14 October 2014, Orders were made for W and X to spend time with their father from 9.00am to 4.00pm every second Sunday. In March 2015, an Order was made by consent so as to enable X to determine whether she spent time with her father.

2. In December 2015, a further Order discharged the provision for W’s Sunday time with his father and provided that, in lieu of the same, W spend time with his father from 9.00am until 8.00pm on Wednesdays (with some exceptions) during the school holidays and from after school each Tuesday until 8.00pm. This has been the manner in which W and his father have spent time since then.

3. When the matter was reserved on 16 September 2016, I made interim orders for W to spend time with his father during the recent school holidays.

Competing proposals

1. Both Mr Lomax and Ms Kelly accept that X is of an age where she should properly be afforded the opportunity to spend such time with each of them as she chooses. I accept that this is in her best interests. Consequently, orders will be made in such terms.

2. Each of Ms Kelly and Mr Lomax advances that it is in W’s best interests to live primarily with them in their respective households.

3. Mr Lomax advanced that W should spend time with his mother:

   a)each alternate weekend: from after school on Friday until before school on Monday; and

   b)for one overnight in the other week; and

   c)for half of each school holiday period.

4. The mother ultimately adopted the positon advanced by the Independent Children’s Lawyer which was that W remain living with her and spend time with his father each alternate weekend and for block periods during school holidays.

5. The consequence for W of making orders in terms sought by each of his parents must, of course, be evaluated taking into account the reality of his past care arrangements.

6. Save for the periods which ended no later than about 2008, (during which he had spent about equal time with each parent), W has always lived primarily with his mother. Since no later than 2008, he has always primarily shared a home with X.

Principles

1. In these proceedings, being proceedings for a parenting order[1] in relation to W, I may, subject to s 61DA[2] and s 65DAB[3] and Division 6 of Part VII of the Act, make such parenting order as I think proper.[4] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[5] In deciding whether to make a parenting order, I must regard W’s best interests as the paramount consideration.[6]

   [1] s 64B of the Family Law Act 1975 (Cth).

   [2]           presumption of equal shared parental responsibility.

   [3]          Parenting Plans.

   [4] s 65D of the Act.

   [5] s 60B of the Act.

   [6]          Family Law Act 1975 (Cth) ss60CA, 65AA.

2. The matters to be considered in determining those parenting orders which are in any child’s best interests are as prescribed by s 60CC of the Act. As it is unnecessary for each of these considerations to be the subject of any particular discussion - particularly where the evidence relevant to it leads inexorably to a particular conclusion[7] - any failure to specifically mention a consideration does not mean it has been overlooked in the course of the determination of those orders which are in a child’s best interests.

   [7]          Banks & Banks (2015) FLC 93-637.

The benefit to W of a meaningful relationship with both parents

1. It is implicit from each parent’s proposal that each acknowledges that W would benefit from the opportunity to have meaningful relationships with each of them and the members of their respective households.

W, his views about the parenting arrangements and what weight should be accorded to these

1. I do not accept Mr Lomax’s criticisms of Ms LL’s reports. The contents of her reports persuade me that she has approached her assessment of each of the parties in a professional manner: neither has been observed through rose-coloured glasses; each has been the subject of what I consider to be appropriate, justified and insightful criticism in respect of certain aspects of their behaviours during their parenting of their children.

2. Unless otherwise indicated, I accept generally the opinions proffered by Ms LL and the bases upon which those opinions have been proffered. I also accept, in general terms, the strident criticisms made of both parents by the Independent Children’s Lawyer through the submissions made by counsel on her behalf.

3. That two educated people have parented their children in the manner that these two parents have is a matter of discredit to each of them.

The September 2014 Family Report Interviews

1. When W (then 11 years of age) spoke with Ms LL he thought the purpose of the interview was “about how I don’t want to go to the place… My dad and step-mum”.

2. He described his mother positively and did not want to change anything about her. He said Mr Lomax could be a little nice sometimes. He also said his mother told him Mr Lomax told the Court he did not have a lot of money but, when he overheard his father and Ms Lomax talking, he gave her $1,000.00 for the week. He said he did not really know his step-mother but she always asked if he wanted food or suggested they go somewhere. He had not spent much time with his father. Whilst W told Ms LL that he felt his father did not really care much, when this topic was explored further, it was apparent he based this – in part at least – on his understanding of the interactions between Ms Y and Mr Lomax, and his understanding that his father had made her move out.

3. W clearly knew that Ms Kelly did not want him to spend overnight time with his father because Mr Lomax had not signed anything to say that Ms Lomax’s father would not be there: he described that man as a “paedophile”. He explained to Ms LL that his mother was really worried about him staying overnight and had called the police.

4. W told Ms LL that his father had said to him that if he wanted him to pay for a school excursion, he had to visit for two days. He said his mother had told him his father had some anger management issues, was angry when he talked to her, was trying to get them to go there more and trying to get them out of the house.

The April 2016 Family Report interviews

1. W, now 13 years of age, most recently spoke with Ms LL on 6 April 2016. He told Ms LL he wanted to live with his mother: “(she is) more caring … more staying at home”.[8] He described her positively; he said she helps him a lot with his homework, is “always there for you.” He told Ms LL he loved living with his mother.

   [8]          Family Report dated 27 April 2016, at [57]

2. W also told Ms LL his father had: “kicked us out of the old house. He wants the money (from the former matrimonial home) to use on himself. He doesn’t want mum to have any money.” He said his mother told him this information before Court orders stopped her from doing so - while she did not speak to him about his father now, he overheard her talking with Ms Y.

3. He thought the father only wanted his mother not to have him. He said he had reached this conclusion because his father told him.[9] W described his father in mixed terms: he was always working and could “sometimes be good … a little bit nice to talk to (and was) nice (when he was) by himself”. He forgot what he disliked about his father. He said he was “a little upset” that his father did not attend his Grade six graduation; he remarked that “he [his father] doesn’t bother with school stuff”.

   [9]          Family Report dated 27 April 2016, at [57]

4. W said that visiting his father after school during the week was “ok”. He said he went to soccer and then had dinner with Ms Lomax, OO and OO before being returned home. He reported that he had only spent two Wednesday afternoons with his father. W reported enjoying the Sunday time he spent with his father more than the weekday time because, sometimes, he had homework but had no time to do it on Tuesday and he liked his mother to help him with this.

5. He told Ms LL that he and his mother were “nervous” about him spending time with his father because his father “might change his mind and keep me for a whole week”.[10] He said his father had recently “convinced” him to stay overnight and then lied to his mother saying that he [W] wanted to. He also said his father and Ms Lomax took his phone from him during that visit so he could not ring his mother. W said his father encouraged him to visit whenever he wanted and sought to bribe him to achieve this - for example: “if you sleep over you get to get this Lego”. W said this made him feel like his father is trying to “get out of the Court orders.”

   [10]         Family Report dated 27 April 2016, at [70]

6. W reiterated that he would be upset if he lived more with his father. He said he was “really nervous” about staying overnight with his father. He did not want to spend a lot of time at RR Town because he thought he would get homesick. He was also worried his father would keep him at RR Town and not return him to his mother’s care.

7. W told Ms LL that he did not like anything about Ms Lomax. He said he believed he started living with his mother because “[Ms Lomax] did not want [him] there (as) [NN] kept scratch and bite me”. He also said Ms Lomax mostly started the conversations with his father about Court and said mean things about his mother, including referring to her as “the cow” on an occasion when the mother attended to collect W.[11] He said that this made him feel “a little angry and upset”. W also detailed an occasion on which Ms Lomax yelled at him: “if you don’t like living at this place you shouldn’t … (if you) say ‘I hate [NN] and [OO]’ why live here?”[12]

   [11]         Family Report dated 27 April 2016, at [62]

   [12]         Family Report dated 27 April 2016, at [62]

8. W’s reference to having heard Ms Lomax refer to his mother as ‘that cow’ should not be discounted given it is clear that, in an email intended for Mr Lomax but sent inadvertently to Ms Kelly on 3 July 2013 Ms Lomax referred to W’s mother as “ a fucking cow.”

9. However, having observed their interactions, Ms LL considered that W’s expressed dislike of Ms Lomax was not necessarily his genuinely held attitude to her.

10. W said he had overhead his father and Ms Lomax talking about Court during the time he spent with them, but he could not remember what they had said. He reported he had: “forgotten a lot of stuff … sometimes I don’t want to remember. Sometimes I just forget.” He also told Ms LL that his father and Ms Lomax said “mean things” about his mother.

11. W reported that his parents’ relationship was “not good at all”.[13] As is overwhelmingly established by the material, their respective actions and their attitudes to each other, that is a significant understatement.

    [13]         Family Report dated 27 April 2016, at [69]

12. W said his mother tried to be nice and stay calm when his father started fighting with her: for example, he described his father arguing with the mother in the car in 2014 (some two years earlier) in relation to his Ritalin medication. He also described seeing a text message from his father to his mother, when he was playing on his mother’s phone. He thought the only way his parents would stop fighting about him was if he lived with his mother and spent every second Sunday with his father.[14]

    [14]         Family Report dated 27 April 2016, at [58]

13. W said his father and Ms Lomax had talked to him four or five times since 2015 about living with them. He said his father and Ms Lomax wanted him to live in RR Town. He said his father told him there was an extra room for him at RR Town but he had to choose “now” and could not choose later. He told his father he did not want a room at the RR Town property. 

14. W also described his relationships with his siblings and half-siblings. Contrary to the father’s assertion he was not close to X, that they had different interests and fought all the time, W told Ms LL X could “be nice, can agree and share”. He said they did not have big fights. W reported that OO was “ok”, possibly because she was young. He said that OO was “sometimes fun to play with (but he could also be annoying).” He reported that OO tried to make him jealous with things he had been given and mostly yelled at him when he did not want to play what OO wanted.

15. I accept Ms LL’s assessment that W’s relationships with his siblings and half-siblings are not inherently dysfunctional or problematic. I also accept that any conflict between them appears to be consistent with “typical” sibling fights and disagreements. I also accept as likely that some of W’s expressed views may well be manifestations of his internalising his mother’s anxieties.

16. Mr Lomax contended that limited weight ought to be placed upon W’s expressed desire to live with his mother because of the mother’s likely impact upon this: that is, he contended that, because of the relationship between W and his mother and her general antipathy toward him (the father) - from which she has failed to appropriately shield W – W’s expressed desire is neither independent of his mother nor a genuine reflection of his desires.

17. I completely accept as more likely than not – as Ms LL postulated – that W’s stated preference to live with his mother is the product of his continuing exposure to the conflict between his parents: their protracted and highly visible acrimonious dispute in relation to him.[15] I also accept as highly likely that, given the ceaseless parental conflict that has been a feature of much of his life, he may “choose sides” or express a strong preference for one parent over the other to try to alleviate any pressure he might experience from continued involvement in the conflict between his parents.

    [15]         Family Report dated 27 April 2016, at [94]

18. While Ms LL did not consider that W demonstrated an extremely aligned relationship with his mother, she opined that the parents’ demonstrated attitudes and behaviours lay the foundation for W to form such an aligned relationship. However, she did not consider that W did, in fact, possess a distorted reality of his father or display a strident rejection of him.

19. Ms LL considered W’s expressed preference to live with his mother may have arisen from a number of matters such as: he might himself feel some moral indignation at his father’s blatant withdrawal of financial support for him (including in a manner likely to have directly affected his life, schooling and living arrangements) and/or he might experience some worry or sympathy for his mother. I accept her postulations in this respect.

20. I accept Ms LL’s evidence[16] that, given his age, W possesses the cognitive functioning to be able to articulate clear and rationally considered views. However, given his involvement in his parent’s dispute and the significant pressure placed upon him (directly or indirectly), I consider his views should not be accorded determinative weight in the determination of those parenting orders which are in his best interests.

The father: his parental capacity, involvement in W’s life, participation in decision-making about major long term issues relating to him, fulfilment of obligations to support him and attitude to him and the responsibilities of parenthood

[16]         As I summarise it broadly.

1. Ms Kelly contends that Mr Lomax’s attitude toward the children at various times since separation is such that the Court will conclude that he has significant parenting deficiencies.

2. She relies on the following communications from him as the basis for such contention. For example,[17] in:

   [17]         page 4, affidavit of Ms Kelly filed 29 June 2010.

   a)August 2006: he told her that W would attend a particular day care when with him (which was different to that at which he attended whilst in her care) and that, thereafter, he was just going to do what, after seeking advice, he believed was best for the children; and

   b)about September 2006: he conveyed he had told Mr PP he would not support him while he played with a particular rugby club team and, therefore, the child would only be able to play if she took him; and

   c)mid-October 2006: he told her that she was ‘insufferable as a mother and are totally screwing W up’; had never done anything to help X’ or Mr PP’s learning ability and was then doing everything in her power to ‘screw up your fourth kid’; was getting worse in her behaviour since their separation and the children were suffering for it; and, she had no control over Mr PP who had no respect for her;  and

   d)early November 2006: he said, amongst other things, ‘I hope you are proud of yourself you dysfunctional fool – you should never have been allowed to have children and certainly would not be allowed to go on destroying them anymore…’;[18] and

   [18]         page 22, affidavit of Ms Kelly filed 29 June 2010.

   e)early November 2006: he commented that ‘you were a fulltime mother and managed not to help the children at all…’ and ‘if you consider bullying is when someone tells you that you are ruining our children’s life then you will just have to get used to what you call bullying. The bullying is about to start from many avenues apart from me as anyone who knows what you are doing to [X] and [Mr PP] is aghast’; and

   f)mid-2007: he threatened to cancel (and subsequently did cancel) the occupational and speech therapy X was then receiving because he did not trust the mother to administer Ritalin and she would not agree to the school doing it and where he said (about X): ‘she is now your problem – I will cancel her extra support as of the end of this week and you will deal with her from there’;[19] and

   g)February 2007 (when W was not yet four years of age): he said that ‘unfortunately W is just about ruined as a human being as well’; and

   h)June 2007: he said ‘you have lost [Ms Y], will lose [Mr PP] at some stage in the next 2 years, you have turned [X] into a total misfit in society – I can’t wait to see how you are going to stuff [W] up’; and

   i)October 2007: he referred to X (then seven years of age) as a ‘total waste of space as a person’; and

   j)September 2008: he told her, in effect, that he had given up on X (then eight years of age) and W (then about five years of age); would have to accept that these two younger children ‘have very little hope in life’; cancelled the holiday plans he had with W and told her that she (the mother) was the most disappointing person he had been unfortunate enough to be involved with and that this email effectively ended any major involvement between them; and

   k)mid-May 2009: he told her to ‘keep’ X because she did not like coming to spend time in his home and was very difficult to deal with; that he believed her mistreatment of X was the primary cause of her behavioural problems and, until she sorted her (X) out, he did not think it appropriate that she (X) stay overnight with him and his family;[20] and

   l)early April 2010: he told her that, until she signed loan documentation with NAB (which would have enabled the refinancing of the loans secured over the former matrimonial home in which she lived with the three youngest children), he would cease to pay any school fees for the children; and

   m)mid-April 2010: he told her that the three children then living with her could all go to State High Schools; and

   n)May 2010 (about two months after he returned Ms Y to live with her mother): he sent her a copy of Ms Y’s school fees which were in the amount of $3,820.00 and subsequently emailed the private school at which she had attended whilst living with him to inform them that, as Ms Y was then living with her mother, Ms Kelly was thereafter responsible for payment of the school fees.

   [19]         page 35, affidavit of Ms Kelly filed 29 June 2010.

   [20]         page 61, affidavit of Ms Kelly filed 29 June 2010.

3. In addition to the above, Ms Kelly outlines numerous occasions between about late 2006 and mid‑2009[21] during which, in email communications, Mr Lomax expressed his view of her as: ‘insufferable as a mother’; ‘a dysfunctional fool’; ‘ a pathetic excuse for a human being’; ‘a nut case’ who did not ‘deserve’ access to his children; ‘a recalcitrant’; ‘ridiculous’; ‘pathetic’ and an embarrassment.

   [21]         page 5, affidavit of Ms Kelly filed 29 June 2010.

4. Mr Lomax made no real challenge to the mother’s assertions about his communications to her. He could not: he had chosen to express himself in this manner in documents of his own creation. Whilst he told Ms LL in September 2014 that he had sent two derogatory emails to Ms Kelly “out of frustration”, it is clear from the above there have been many more occasions on which Mr Lomax has made derogatory and denigrating comments toward Ms Kelly.

5. Despite all of these assertions about the mother’s parenting of the children, the parties entered into final consent parenting orders in September 2010. These orders provided for Ms Y, X and W to live primarily with their mother.

6. In the fortnight after this, Ms Lomax dropped forms to the mother to facilitate those children changing their surname from “Lomax” to “Kelly”. The father’s evidence that he believed it might create confusion for the children to have his last name when they were not living with him is, in my view, incredible. There could be no clearer demonstration of Mr Lomax’s “with me or against me” view and approach to parenting than his actions in this respect: after all, Mr PP (who remained living with him and not spending time with his mother) was to retain the “Lomax” surname whilst his siblings were to change theirs to their mother’s surname. I do not accept he was concerned about the benefits to the children. I do not accept his fanciful suggestion that he had these forms delivered to the mother to “open a dialogue” with her in relation to the issue.

7. It is uncontroversial that, in 2010, the father gave an undertaking to be of good behaviour and not commit domestic violence. It is also accepted that, since this time, he has not sent the mother emails of similar content to those outlined above. His evidence during cross-examination was that, rather than email the mother, he sends such emails to himself. From this, it appears to me to be highly likely that he continues to hold the same attitude toward the mother and – I suspect – the children who have not aligned themselves with him as displayed in the examples of his commentary set out above.

1. Further support for this conclusion can be found in his reporting to Ms LL during interviews for Family Reports. During his September 2014 interview, the father reported that he believed the mother bringing an application for a protection order was “normal course of females in litigation”. I accept that, during his observations with the children, X and W, he sought to explore the children’s perception about the family dispute. He asked them directed questions such as “what do you think of today? Do you wish I could help [the mother] a bit more … in what way? Money wise?” and later commented “but that’s not going to change”. I accept as more likely than not that, however it was conveyed, he asked of X in effect whether she wanted to give up her whole life to look after her mother.

2. Any thoughts that involvement in this litigation and/or exposure to the contents of the Family Report which pre-dated April 2015 and the opinions contained within may have caused the father to reflect in any way upon his approach to co-parenting and/or communicating his views about the mother to their children is immediately dispelled by reference to an email he sent to Ms Y on the day after her 21^st birthday: [22]

   [22]         Exhibit 3

   Private, Confidential and Without Prejudice

   [Ms Y]

   Happy Birthday for yesterday.

   It was very sad and disappointing to have my eldest child turn 21 and not be a part of my family.

   Your decision to align yourself, and even it seems identify yourself, with [Ms Kelly] is one of my biggest disappointments. I am not sure what we could have done differently as both myself and [Ms Lomax] did our best by you for the five years you lived with us.

   Whilst your mother might think she has justification in seeking some kind of revenge against me – in doing so she has only succeeded in ruining her life – I know you blame this on me. However the blame lies totally with your mother. She could have got on with her life after our divorce and had a fulfilling life with the children having shared care. Sadly, your mother was unable to do this and has used the children as a weapon against me (and continues to do so) – she is going to have a very depressing old age if she continues on this path.

   The fact that neither you nor [X] have any desire to see myself or my family is devastating for all involved and is purely your mothers anger reflected in my daughters.

   It is a shame that at such a young age you have chosen a path aligned to her self-destruction that has obviously seriously damaged you.

   I think it is too late and you have hurt me and my family too much to make amends now – however we did buy you a 21^st present and it will stay at our house in the off chance that one day in the future you will realise the folly of your decision and that your mother has manipulated you with incorrect information and her ongoing lies.

   [Ms Lomax] and I welcome you to talk to us now or in the future if you wish to.

   My only hope is that whether you choose to talk to me again or not, is that you see your mother’s self-destruction for what it is and escape that mindset and basis for life and one day move on and start your own, happy fulfilling life, free from your mothers baggage.

   I wish you the best for a happy and healthy life.

3. Ms Kelly also provides examples of occasions on which Mr Lomax has made unilateral decisions about parenting issues relating to at least some of the children: for example:[23]

   [23]         pages 11, 13, affidavit of Ms Kelly filed 29 June 2010.

   a)in late January 2006: he told her that he was changing the then parenting arrangements to week about and that if she did not agree to this arrangement, she could have the children all the time and he would spend time with them for half of the holidays; and

   b)in late February 2006: he made an appointment for Mr PP to attend upon a psychiatrist without consultation with her; and

   c)he made unchangeable holiday arrangements for the children, which impacted on their time with her; and

   d)in mid-2006: he told her he would need to return the children to her care on a specified weekend because he was travelling overseas; and

   e)in about mid-2006: he changed the day care at which W attended at a time when the child was already going to another day care facility; and

   f)he submitted an enrolment application for Mr PP to attend at SS School; and

   g)he made an appointment for W (then about four and a half years of age) to see a plastic surgeon about having his ears pinned back;[24] and

   h)he enrolled Mr PP at QQ School and permitted him to play cricket there without discussing the same with her; and

   i)he failed to inform her in about August 2009 that Ms Y had been diagnosed with diabetes and a few months later with Coeliac Disease, leaving her to learn of these matters from Ms Y herself; and

   j)he made an appointment for Ms Y to attend upon a psychologist without consultation with her.

   [24]         page 40, affidavit of Ms Kelly filed 29 June 2010.

4. Again, there was really no dispute about at least the majority of these.

5. Of course, such solo decision-making was something that Ms Kelly also embarked upon on occasion. She, too, failed to communicate with Mr Lomax about matters relevant to the children’s care: for example, she failed to tell him that W had been diagnosed with an allergy that meant he would suffer an anaphylactic reaction if exposed to certain food and she also left it to the father’s household to ensure that W had an epi-pen whilst in their care.

   The October 2014 Family Report

6. As at the date of his interview with Ms LL in September 2014, Mr Lomax’s formal interim parenting position[25] was for X and W to spend from after school Friday until before school Monday with him each alternate weekend; time each Tuesday night; and for half of each school holiday periods. However, during his interview he told Ms LL he wanted the children to live with him and spend one to two week nights and every second weekend with their mother, although he thought X was old enough to make her own decision.

   [25]         See his Application dated 22 July 2014.

7. Mr Lomax’s view about the mother’s parenting then – as outlined to Ms LL – was that she had negatively influenced X and W’s relationship with him, neglected their medical and educational needs and had used them as a weapon to hurt him because she wanted “vengeance”, could not accept their separation and accused Ms Lomax of destroying their family. While he also expressed concern that Ms Kelly was about to be evicted from the former matrimonial home, it is clear that this was as a consequence of his cessation, for whatever reason, of making the mortgage repayments in respect of the same.

8. Mr Lomax also raised that, because the mother had not re-partnered, the children did not have a positive male role model. He was critical of her management of the children’s health and asserted she had failed to access appropriate medical and learning support for them. He said he thought W would be significantly disadvantaged in the longer term if he continued to live with his mother as a consequence of this and highlighted that Mr PP’s Attention Deficit Hyperactivity Disorder had become well-managed after he received intensive medical and educational support after he moved to live primarily with him. Therefore, Mr Lomax’s view then – as it is now – was that he was in a better position to ensure W received optimal learning and medical support to best manage his issues and improve his future outcomes.

9. Given Mr Lomax’s contention during the trial that X’s very significant mental health episode – namely, her breakdown and subsequent hospitalisation on the day of the most recent Family Report interviews and her subsequent diagnosis with a conversion disorder – was only contributed to the extent of 10 per cent by the parental conflict, it is, I think, relevant to note his comment to Ms LL about X during the September 2014 interview. He said he thought it was “too late” for X given her age and that she would not be significantly disadvantaged in either his home or that of her mother. That the father was prepared to make such a dismissive and hurtful comment about his then 14 year old daughter provides further insight into Mr Lomax’s overall approach to parenting. It certainly also gives credence to the assertion that he has historically approached his interactions with his children in a conditional manner whereby they are rewarded and supported if they live with him and behave in a manner he considers appropriate, but almost immediately denied support and dismissed if they appear to side with, or favour, their mother.

10. When he spoke with Ms LL in September 2014, Mr Lomax thought both X and W would transition easily to live with him because they had close relationships with their half-siblings, a good relationship with Ms Lomax and the few occasions he had spent time with them was positive. Such assessment almost completely dismisses the possibility of any impact upon them of such a move, despite the fact of the significant care they had received from their mother and the relatively limited time they had spent with him.

The April 2016 Family Report interviews

1. During his April 2016 interview with Ms LL, the father told her of his belief that the mother had alienated W from him for vengeance, given her ‘misplaced’ view he had withheld money from her and the family and had attempted to undermine her relationship with Mr PP. He expressed his opinion that he is better equipped to primarily parent W and said he thought the mother had become invested in the parenting dispute between them and was motivated to prolong it, rather than resolve it.

2. I accept completely that the father was entirely unable during this interview to understand why, other than for reasons of familiarity, W might express a preference to live with his mother. I also accept that, during the discussion around this topic, he made the comment: “what kid wouldn’t like a three storey house, jet skis, [RR Town]”. 

3. I also accept he again spoke to Ms LL about his perceived superior parenting capacity vis-a-vis that of the mother: part of this was based on the idea that the “normal nuclear family where there is a mother and a father” is preferable.

4. I also accept that he spoke with Ms LL of what he considered to be the better role-modelling to which W would be exposed if he lived with him rather than with his mother. In so doing, I accept he raised his superior financial position, the mother’s long term unemployment - which he thought may be indicative of a lack of motivation - and their different attitudes. He clearly thought they had different ‘moral compass’. This latter assertion was clearly not intended to be complimentary of the mother.

5. The father’s reference to his “superior financial position” is a little puzzling given his evidence that, basically since separation in 2004, his taxable income has been no more than $30,000.00[26] and that he focused on attempting to reinforce his position (for the property aspect of these proceedings) that his financial situation vis-a-vis the mother is not dissimilar save that– on his case – he has been able to rely upon Ms Lomax’ generosity for his financial support.

   [26]         Husband’s affidavit filed by leave 21 June 2016.

6. Whilst Mr Lomax thought W’s attitude toward him had improved because they had spent some consistent time together (including one week at TT Town in January 2015 and a weekend overnight stay more proximate to the time of the interview), he also told Ms LL he thought their relationship may require further repair. His view is clearly that this is the consequence of W’s direct exposure to the mother’s undisguised negative construct of him and, given the limited time W has spent with him since 2010, his lack of opportunity to redress this.

7. That Mr Lomax has considered the appropriate way to redress these deficiencies in his relationship with W is to seek an order that he be moved from his home with his mother to live primarily with him – rather than, for example, seeking that he spend more extensive time with him – demonstrates, at the very least, a significant deficit in empathetic ability.

8. Further demonstration of Mr Lomax’s approach to parenting can be seen in his recounting to Ms LL about his interactions with W. He said he did not involve W in the dispute. However, he also explained that, in essence, he had made W aware that he was welcome to visit at any time and that, when he chose not to visit, it was because he knew Ms Kelly did not want him to.

9. Mr Lomax was adamant in his discussions with Ms LL that he had encouraged Mr PP to remain in contact with his mother. Given this view, I am sceptical about the prospects of any actual change in his future approach to the promotion and support of W’s relationship with his mother if he lived with him. This is so despite Mr Lomax’s comments to Ms LL that he would address his mistakes and be more proactive in ensuring W spent time with his mother if he lived with him.

10. Given that Mr Lomax admitted to Ms LL that there had been a few occasions on which he had not complied with the Court orders and had dropped W home late or, on one occasion, kept him overnight, I am not persuaded that he is likely to abide Court orders, which would require him to ensure that W spends time with his mother, if it does not suit him.

11. Any thought that Ms Lomax is likely to act to dissuade Mr Lomax from acting in the future as he has in the past needs to be tempered by the reality that, during the period Ms Y was living in her home, she took Ms Y to Ms Kelly’s workplace in order to have the mother sign passport documents.

The mother: her parental capacity, involvement in W’s life, participation in decision-making about major long term issues relating to him, fulfilment of obligations to support him and attitude to him and the responsibilities of parenthood

1. I accept Ms LL’s assessment and opinions of the mother and the manner in which she has approached her parenting of W.

2. I accept that, on occasion, she has exposed W to her negative views of his father and her criticisms of the way in which he has approached the financial issues between them. In saying this, though, it cannot be forgotten that W has lived with her during the events which culminated in the forced possession and sale of the former matrimonial home – the house in which he had lived for all his life.

3. Whilst Mr Lomax told Ms LL that the mother had made unilateral decisions about the children - for example, she enrolled X at UU School without his consent and failed to list him as a contact person with the result he was unable to obtain information from the school about her education – it cannot be overlooked that the September 2010 Consent Order contained a Notation which prohibited the mother from providing the father’s details to any school at which X attended.

4. I accept that Ms Kelly’s capacity to address and obtain support for W’s medical and learning needs over time has been hampered by her lack of funds. I am not persuaded that she is disinterested in addressing the same.

The October 2014 Family Report interviews

1. Ms Kelly told Ms LL, in essence, that Mr Lomax’s interest in the children was financially motivated. She claimed he raised children’s matters with the Court when she was making progress in relation to the financial dispute between them. She thought him controlling, abusive and threatening (via email sent between 2006 and 2010 which denigrated her as a mother and threatened to remove financial support). She thought his tactic was to destroy her financially.

2. Whilst she accepts she did not receive any abusive emails from him after he signed an undertaking in 2010, I consider it clear that the contents of these (some of which are set out earlier) continue to resonate within her.

3. Whilst Ms Kelly outlined that she stopped actively trying to facilitate a relationship between X and W and their father in about 2012 on the basis that he did not respond to her attempts to arrange visits, I am not persuaded that she really made any significant effort to promote the same. Rather, both parents were simply content to permit the child or children living with them at various times to spend very, very limited – if any – time with the other parent and their siblings.

The April 2016 Family Report interviews

1. Having spoken with Ms Kelly, Ms LL reports that her (Ms Kelly’s) perspective of the dispute remained unchanged. Ms Kelly  thought Mr Lomax’s desire for W to live with him was to punish and control her and not about the child: by way of example, she outlined that Mr Lomax was willing to fly W to RR Town for weekends but unwilling to contribute to financial expenses such as a school camp in Canberra.

2. That Ms Kelly believed – as she said to Ms LL – that she had not contributed to the dispute demonstrates to me a significant absence of insight into, and appreciation of, the dynamics involved in her relationship and interactions with Mr Lomax. Reference to the contents of Ms LL’s reports and the parties’ affidavit material compels the conclusion that both of these parents have contributed in their own ways to the toxic relationship which has permeated their lives since their 2004 separation.

3. Whilst Ms Kelly was “adamant” that W remained at risk of sexual harm if he spent overnight time with Mr Lomax (because he may come into contact with Ms Lomax’s father) and apparently could not consider that there may be no basis to the sexual abuse allegations, she also said W had not displayed any concerning behaviour nor reported any concerns to her despite telling her he had seen Ms Lomax’s father a few times (most recently in December 2015).

4. These matters and her outlined belief that W would share any concerns he might have with her, did not seem to assuage her concerns. Rather, she seemed to me to implicitly suggest by such comments that the absence of complaint may not be meaningful because she claimed Ms Lomax could not recall details of the alleged abuse.

5. Ms Kelly told Ms LL that she thought Mr Lomax could contribute positively to W’s parenting: for example teaching him skills such as mechanics, computer skills and model what being a hard worker could achieve. However, she was concerned that the relationship between them was conditional given her experience that Mr Lomax made arrangements with the children which suited him and, when things became too difficult, simply stopped inviting them to visit. She also asserted Mr Lomax had failed to prioritise W’s needs or their relationship: for example she said he cancelled a number of Sunday visits because he was away from Brisbane and had only been available for two of the Wednesday school holiday visits (despite specifically requesting these) because he was away sailing.

6. Ms Kelly told Ms LL she had supported W’s relationship with his father and had, on occasion, been flexible with visit times to accommodate the father but stopped being flexible because, when he retained W overnight without permission and she sought assistance from police, she was told she had no recourse if she did not follow Court orders.

7. She thought the father would not promote W’s relationship with her if W lived with him. She believed he had attempted to undermine the relationship by not following Court orders, attempting to entice W to spend more time with him by giving him presents and asking W directly to spend more time with him. She was concerned, given the absence of time Mr PP spent with her following his living primarily with his father, that Mr Lomax would repeat this with W.

Parental communication and interactions

1. Ms Kelly’s evidence, as at late August 2013,[27] was that she thought that Mr Lomax re-opened parenting matters because he knew she became very anxious and stressed when the children became involved in the legal proceedings and because, when parenting proceedings are on foot, she has to communicate with him more often which, given the manner in which he communicates with her, she finds exhausting and very stressful. Nothing in the evidence about matters which have occurred since then suggests that this situation is significantly different from her point of view.

   [27]paragraphs 11 and 12 and annex "JK – 2", affidavit of Ms Kelly filed 3 September 2013.

1. I am easily persuaded in this case that Ms Lomax is a source of financial support which Mr Lomax can reasonably expect will be available to him to supply a financial need or deficiency. In the circumstances of this case, given the duration over which financial support has been made available to Mr Lomax and the manner in which this has occurred, I am persuaded that it is more than an expectation of benevolence on the part of another. On any assessment, Ms Lomax has clearly been prepared to permit whatever increase in borrowings secured over their shared home were made to ensure that Mr Lomax’s obligation to pay the mortgage repayments over the former matrimonial home were made, when such payments were necessary in order to ensure that neither she nor Mr Lomax nor any of the entities under their respective control were adversely impacted. Through the management of the entities under her control, she clearly has the capacity to obtain increased lending facilities and – when it is needed – to make such payments as required to bring this facility into order to the satisfaction of the commercial lender.

2. An attempt to further quantify the extent of this financial resource is made more difficult by the differences in the evidence about Ms Lomax’s financial position at varying times. Mr Lomax has sworn (in his trial affidavit filed on 1 July 2015) that Ms Lomax earned $150,000. However, in his 2014/2015 Tax Return (annexed to his affidavit filed by leave at the commencement of the trial), he recorded her annual taxable income as $47,548.

3. That is, the combined taxable incomes of Mr and Ms Lomax for the financial year from 1 July 2014 until 30 June 2015 amounted to $77,548. Credit card statements (which form part of Exhibit 1) seem to establish that, between October 2015 and 6 June 2016, they applied approximately $67,371.24 to meet the liability incurred on the same. The expenses met by use of credit card facilities also seem to have included school fees of $1,132.95 and utilities amounting to about $4,800.00: expenses which are clearly of a private nature. Further, both of their children attend private schools at a combined cost of no less than about $40,000 each year. Whilst there was some evidence that members of extend family have assisted in meeting these costs, Mr Lomax’s most recent Financial Statement[41] does not disclose any outstanding loans to any person or entity referable to such expenses.

   [41]          Filed in June 2016.

4. In addition, Mr and Ms Lomax and their children seem to travel from Brisbane to RR Town on most weekends. This occurs, it seems, so that Ms Lomax can operate her business which is based in that general area. When they are in RR Town they stay in rental premises rented by one of Ms Lomax’ companies. Mr Lomax has access to and is able to use a prestige motor vehicle which is leased by one of the entities under Ms Lomax’s control. He has participated in recent Sydney-Hobart yacht races on a yacht that is owned, I think, by ACN and leased to DD Pty Ltd (although, for the reasons outlined earlier, this remains a little unclear).

5. Overall, the expenses of the Lomax family are such in my view that they cannot be met by the combined taxable incomes of Mr and Ms Lomax. If their family expenses are met by funds advanced by corporate entities, Mr Lomax at least does not make this clear: and his most recent Financial Statement does not reveal the existence of any loan account with any corporate entity. Even if they use borrowed funds – by drawing down on the credit facility secured over their shared home - to meet household expenses, they have been required on occasion to make repayments to that facility. The extent of their taxable incomes does not suggest that these provide a source for any such repayments referable to non-business use of borrowed funds.

6. Overall, I am easily persuaded that Mr Lomax has significantly greater financial resources available to him than Ms Kelly has to her. I am unable, however, to quantify this financial resource with any further particularity other than to note that it clearly affords him a comfortable lifestyle and one which is significantly superior to that of Ms Kelly : a matter he remarked upon to Ms LL during interview for a Family Report.

7. I consider that an adjustment in Ms Kelly’s favour is required to properly reflect the disparity in the income of the parties, the disparity in the financial resources available to them, the fact that Ms Kelly will likely shoulder the burden of the vast majority of the financial costs of and emotional support for X and W and that, unlike Mr Lomax, she may well continue to struggle to find paid employment. Doing the best that I can in the exercise of the broad discretion entrusted to the Court at first instances and noting the quantum of the property amenable to these orders and the real value in monetary terms of any adjustment, I consider that an adjustment of 25 per cent in Ms Kelly’s favour is appropriate.

8. The consequence of the conclusions outlined above is that, having regard to the parties’ respective contributions to trial and the relevant s 75(2) matters, I am satisfied that an order which apportions the approximately $265,000, currently held in trust, equally between the parties is an order which is just and equitable in all the complex circumstances of this case. Given the time that has passed between separation and trial, it is also just and equitable that each party’s entitlement to superannuation remain completely with that party and that each retain the property currently in their respective possession.

Child Support Departure

1. I am not persuaded that Ms Kelly has established those matters needed to be established for each of the periods for which she seeks a departure from the administrative assessment of child support payable by Mr Lomax and, consequently, I dismiss that aspect of her application.

Independent Children’s Lawyers’ Application for specific costs and other costs applications

1. The Independent Children’s Lawyer seeks that Mr Lomax is ordered to pay specified amounts by way of costs order and also by way of enforcement of a previous order for the children to attend counselling.

2. As it is likely that there will be additional applications for costs in this matter, I intend to defer my consideration of this costs application until I am able to consider all outstanding costs applications and, in that way, finalise the costs aspects of this matter. To give effect to this conclusion, orders will be made to record that those costs applications which were reserved at the end of the trial remain reserved.

3. In order to ensure that funds remain available to satisfy any order for costs which may be made against either Mr Lomax or Ms Kelly, orders will be made to ensure that, save for the funds payable by Ms Kelly to Company V in full and final satisfaction of their claim against her, the funds now apportioned to Mr Lomax and Ms Kelly from the funds held in trust will remain there pending further order.

4. So that there is no doubt, the further orders which will be made in respect of the payment out by the solicitors in whose trust account the approximately $265,000 is currently held – other than that directing the payment to Company V which will be made today – will be orders of a machinery nature, intended finally to give effect to the determinations made about those orders which are just and equitable in the property settlement proceedings aspect of these proceedings and those necessary to finalise any applications for costs associated with these proceedings.

Referral of papers to the Australian Taxation Office

1. There is no issue that this Court has the power to refer a matter to the Australian Taxation Office in appropriate circumstances.[42]

   [42]Malpass & Mayson (2000) FLC 93-061

2. Mr Lomax’s evidence makes plain that, between 2004 and 2011, his taxable income did not exceed about $30,000.[43] Despite this, significant personal expenses (of up to $1.3 million between 2004 and 2011 on his account) have been met on his behalf.

   [43] Affidavit of Mr Lomax filed by leave on 21 June 2016, at [22].

3. This has seemingly occurred in circumstances where:

   a)for the 2009/2010 FY: his taxable income was $30,000 and Ms Lomax’ taxable income was $15,000; and

   b)for the 2010/2011 FY: his taxable income was $30,000 and Ms Lomax’ taxable income was $15,000; and

   c)documents from the Child Support Agency record that, for January 2011 to March 2012, Mr Lomax’s adjusted taxable income was $30,000; and

   d)documents from the Child Support Agency record that, between April 2012 and November 2012, Mr Lomax’s adjusted taxable income was $30,000; and

   e)for the 2014/2015 FY: his taxable income was $30,000 and Ms Lomax’ taxable income was $47,548.

4. In addition, as already noted, Mr Lomax’s most recent Financial Statement, filed in June 2016, does not assert that he has any outstanding personal liabilities to any person or entity.

5. Further, as I understand it at least, part of Mr Lomax’s evidence about the M Street property in which he and Ms Lomax live with their children includes that, between 2012 and 2015, Ms Lomax contributed 100 per cent of the interest payments (said to amount to approximately $400,000 in total) for the borrowings secured over that property, in respect of which the overdraft facility as at June 2015 had a maximum available draw of $3,100,000 with some $59,438.11 then available. It seems that, in the 2013/2014 FY, $37,037.65 interest accrued on the facility and, between July 2014 and June 2015, $131,990.65 interest accrued on the facility.

6. Whilst it may in fact be that entities controlled by Ms Lomax have made those repayments necessary to keep that facility in order in an entirely proper manner and that Mr and Ms Lomax have quite properly accounted for the various private expenditures in an entirely appropriate manner from a taxation point of view,  the disparity between their total household taxable income and their apparent ability to live the lifestyle they appear to do warrants, in my view, an order that a Registrar of the Court be directed to forward the relevant papers to the Australian Taxation Office.

I certify that the preceding one hundred and ninety-six (196) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 30 September 2016.

Associate: 

Date:  30 September 2016