Levandi & Levandi (No 2)
[2023] FedCFamC1F 117
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Levandi & Levandi (No 2) [2023] FedCFamC1F 117
File number SYC 1109 of 2020 Judgment of WILSON J Date of judgment 10 March 2023 Catchwords FAMILY LAW – PARENTING – PROPERTY – fact specific case – there is no precedent value in this decision. Legislation Child Support Assessment Act 1989 (Cth)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 10(1)(a)
Family Law Act 1975 (Cth) ss 4(1), 4AB(1), 60B(1)(a)-(d), 60B(2)(a), 60CA, 60CC(1), (2)(b), (2A) and (3)(a)-(l), 61B, 61C(1), 61DA(1), (2)(a)-(b) and (4), 69ZT, 75(2), 79, 81, 90XT(1)(a) and (4) and 106A
Family Law (Superannuation) Regulations 2001 (Cth) Part 6
Cases cited Alston & Alston [2021] FedCFamC1A 96
Bosanac v Commissioner of Taxation [2022] HCA 34
Cao & Trong [2022] FedCFamC1F 754
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Honeysett v R (2014) 253 CLR 122
AJO & GRO (2005) 33 Fam LR 134
Jabour v Jabour (2019) 59 Fam LR 475
Johnson v Johnson (1999) 26 Fam LR 475
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Pettitt v Pettitt [1970] AC 777
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Trevi v Trevi [2018] FamCAFC 173
Trustee of the Property of Lemnos v Lemnos (2009) 41 Fam LR 120
Division Division 1 First Instance Number of paragraphs 206 Date of last submissions 24 November 2022 Date of hearing 7, 8, 9, 10 and 24 November 2023 Place Sydney Counsel for the Applicant: Mr S. Gardiner Solicitor for the Applicant: Nicole Evans Lawyers Counsel for the Respondent: Mr D. Dura Solicitor for the Respondent: Barkus Doolan Winning Counsel for the Independent Children's Lawyer: Ms T. Messner Solicitor for the Independent Children's Lawyer: Legal Aid NSW
SYC 1109 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS LEVANDI
Applicant
AND MR LEVANDI
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by
WILSON J
DATE OF ORDER
10 March 2023
THE COURT ORDERS THAT –
PARENTING
1.All extant interim parenting orders in relation to the children X born 2007 (“X”) and Y born 2009 (“Y”) (and collectively hereunder referred to as “the children”) are hereby discharged.
Parental responsibility
2.The mother and father have equal shared parental responsibility for, and must make joint decisions about, major long term issues affecting the children including but not limited to decisions about –
(a)each child’s education (both current and future);
(b)each child’s religious and cultural upbringing;
(c)each child’s health;
(d)each child’s extra-curricular and sporting activities;
(e)each child’s name; and
(f)changes to each child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Live with
3.The children shall live with the mother.
Spending time
X
4.X will spend time with the father in accordance with X’s express wishes and to that end, if X expresses to the mother that he wishes to spend time with the father, the mother must inform the father as soon as practicable and the parents are to do all acts and things reasonably necessary to facilitate such time occurring in accordance with the X’s wishes.
5.The father is at liberty to write to X and send cards and presents to X to the mother’s home address.
6.The mother will ensure that the father has X’s current mobile phone number and in the event that this number changes then the mother must provide the father with X’s updated number within 48 hours of its changing.
Y
7.During all school terms referable to the school which Y attends, Y shall live with the father in accordance with the following two week alternating cycle of time –
In week one
(a)from the conclusion of school/3:25pm on Friday until the commencement of school/8:00am the following Monday; and
In week two
(b)from the conclusion of school/3:25pm on Tuesday until the commencement of school/8:00am on Wednesday; and
In weeks one and two
(c)at other times and occasions as may be agreed between the parties, including one on one time with Y to assist with the transportation and care arrangements for Y surrounding her extracurricular activities and events.
8.In addition to the days and times referred to at paragraph 7 above, Y shall live with the father as follows –
(a)for one half of each school holiday period referable to school at which the parties’ youngest child who is still attending school attends, between dates to be agreed between the parties but failing agreement with the father for the first half of all such school holiday periods which commence in even numbered years, and the second half of all school holiday periods which commence in odd numbered years;
(b)from 9:00am on Father’s Day until the commencement of school/8:00am on the Monday immediately following Father’s Day each year (if Y is not already in the care of the other on such days pursuant to paragraph 7);
(c)from 9:00am until 8:00pm on each of the Australia Day, ANZAC Day, Queen’s Birthday, and Labour Day (NSW) public holidays in each odd numbered year (if Y is not already in the father’s care pursuant to paragraph 7);
(d)on the father’s birthday and on Y’s birthday each year, if she is not already in the care of the father for any time on such days, as follows –
(i)where the relevant birthday falls on a school day, then from the conclusion of school until 8:00pm; and
(ii)where the relevant birthday falls on a non school day, then for a period of five hours between times to be nominated in writing by the father.
9.Notwithstanding any other order, and for the purposes of Christmas celebrations, the following must apply unless otherwise agreed between the parties in writing –
(a)Y shall live from 3:00pm on 24 December (Christmas Eve) until 4:30pm on 25 December (Christmas Day) in each even numbered year with the mother and in each odd numbered year with the father; and
(b)Y shall live from 4:30pm on 25 December (Christmas Day) until 6:00pm on 26 December (Boxing Day) in each even numbered year with the father and in each odd numbered year with the mother.
10.Notwithstanding any other order, for the purposes of Easter celebrations and unless otherwise agreed in writing between the parties, Y shall live from 9:00am on Good Friday until 8:00pm on Easter Monday in each even numbered year with the father and in each odd numbered year with the mother.
11.Notwithstanding any other order, and unless agreed between the parties, Y shall remain living with the mother on the following days and at the following times –
(a)from 9:00am on Mother’s Day until the commencement of school/8:00am on the Monday immediately following Mother’s Day each year;
(b)from 9:00am until 8:00pm on each of the Australia Day, ANZAC Day, Queen’s Birthday, and Labour Day (NSW) public holidays in each even numbered year;
(c)on the mother’s birthday each year, if Y is not already in the care of the mother for any time that day, as follows –
(i)where the mother’s birthday falls on a school day, then from the conclusion of school until 8:00pm; and
(ii)where the mother’s birthday falls on a non school day, then for a period of five hours between times to be nominated in writing by the mother.
12.Each parent is to be at liberty to communicate with Y by telephone, email, and all other forms of electronic communication (including SKYPE and Facetime) at all reasonable times on all days when Y is in the care of the other parent, and each parent must not restrict or interfere with and must positively encourage and facilitate Y receiving and initiating telephone and electronic communication to and from the other parent.
13.The mother and father must communicate about the children by email and text message and, in the case of emergency, by telephone.
14.For the purposes of implementing changeover, the following will apply –
(a)week one living arrangements, for the purposes of paragraph 7, are to commence on the first Friday of each new school term;
(b)for the purposes of paragraph 7, changeover shall occur at the conclusion/commencement of school for Y who is attending school at Y’s school or (where applicable) Y’s after school activity;
(c)if Y is not attending school when changeover occurs for the purposes of paragraph 7, changeover shall occur no later than 10:00am and 4:45pm at the home of the parent with whom Y not attending school is living on such day;
(d)where changeover occurs at the commencement or conclusion of school pursuant to any other order, changeover must occur at Y’s school; and
(e)for the purposes of all other orders, the parent (and/or his/her nominee) with whom Y is not already living when changeover is to occur (ie, the collecting parent), must collect Y from the front driveway or front entrance area of the usual place of residence of the other parent at the commencement of the period of time Y is to spend with that parent. For abundant clarity, neither party are to enter the home of the other party unless invited to do so by the other party.
15.Both parents are at liberty to attend all official school functions and events to which parents are invited or are expected to attend along with all special event days in which the children, or any of them, may be involved or is participating.
16.Both parents are at liberty to attend all parent teacher meetings and interviews for each child as he/she may arrange.
17.Both parents are at liberty at all times to attend all sporting and other extracurricular events and activities in which the children, or any of them, are involved or is participating (including those events and activities which may occur on days when the children are living with the other parent).
18.Both parents are at liberty to attend all functions and events to which parents are invited or are expected to attend relating to each child’s participation in his/her extracurricular activities.
19.Each parent must notify the other, within two days of their receipt of the same, about his/her receipt of copies of all documents issued by the schools at which each child attends if such documents contain information about the children or events in which the children are involved and/or to which parents are invited to attend. If so requested by the other parent, then within two days of receipt of a request, the first parent must provide to the other parent copies of documents requested.
20.Without the written consent of the other parent first obtained in writing, each parent is restrained from enrolling the children, or any of them, in any sporting, music, or other extracurricular activity that requires or, may in the future require, the attendance of a child at times and on days when that child is in the care of the other parent.
21.Without the written consent of the other party first obtained, neither party are to arrange for, or encourage, the attendance of either child at any social event which occurs when the children are in the care of the other parent.
22.Forthwith upon the making of these orders and continuously thereafter, the mother and father must provide all authorities and give all necessary consents to ensure that all treating medical and health care practitioners for each child (including but not limited to general practitioner, paediatrician, specialists, counsellors and therapists) are authorised and directed to communicate with, and provide information and copies of documents directly to, the mother and the father upon either party’s respective request and at the requesting party’s own cost (including, but not limited to, each child’s treatment, diagnosis, prognosis, medications and test results).
23.Each party must notify the other in writing of all serious injury and/or hospitalisation and/or medical treatment obtained for and/or involving the children or either of them as soon as reasonably practicable.
24.Forthwith upon the making of these orders and continuously thereafter, the mother and father must provide all authorities and give all necessary consents to ensure that the principal and all staff at each child’s school are authorised and directed to communicate with and provide information and copies of documents directly to, the mother and the father upon either party’s respective request and at the requesting party’s own cost.
25.Each parent must notify the other as soon as practicable and within 24 hours of all changes to his/her residential address and/or landline telephone number and/or mobile telephone number and/or email address and each parent must provide to the other the particulars of each new residential address, landline telephone number, mobile telephone number and email address.
26.Each parent must notify the other as soon as practicable and within 24 hours of all changes to the mobile telephone number and email address of each child.
27.Within seven days of a request from the other parent to do so, each parent must do all acts and things and sign all documents so as to renew the current passports for each child, and costs of renewal must be paid by the parties in equal shares as and when the same fall due and payable.
28.The mother must hold the children’s passports and must provide the children’s passports to the father within seven days of a request for same by the father in order to facilitate overseas travel permitted in compliance with these orders or the planning of such travel (including the booking of travel tickets and/or the obtaining of visas).
29.The father must return the children’s passports to the mother at the next changeover following his return to Australia.
30.Within seven days of a request from the other parent to do so, each parent must do all acts and things and sign all documents so as to apply for travel and entry visas as may be required for a child whom a parent intends to take or send outside the Commonwealth of Australia in accordance with the provisions of these orders.
Other
31.The mother and the father are both to be entitled to attend all events involving both children including –
(a)sporting fixtures;
(b)extracurricular activities that allow for parental attendance; and
(c)school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions;
and the parent who has Y in their care on the day of such activity is to be responsible for her day to day care at such event and her transportation to and from that event.
32.That the single expert report of Ms B dated the 28 April 2022 and her updated report dated 1 November 2022 be released to the school counsellor Ms D of E School.
33.The mother must use her best endeavours to encourage and support X to maintain his counselling relationship with Ms D.
34.That the parents are restrained from denigrating the other parent to or in the presence or hearing of the children
35.The mother and the father are restrained from discussing with or questioning the children about any of the following –
(a)the current family law proceedings including, but not limited to, the following;
(b)any material filed by any party in these proceedings;
(c)any material produced on subpoena in these proceedings; and
(d)any reports that may be prepared for the purpose of these proceedings.
36.Without admissions, neither party is to physically discipline (including smacking) the children or either of them.
37.Unless otherwise agreed in writing between the mother and father, that the mother be permitted to take the child X to all State, national and club sporting tournaments that he will participate in from the date of these orders.
38.While the father is permitted to attend any such sporting tournament that X is competing in for the purpose of paragraph 37, unless otherwise agreed in writing, both children are to reside and stay with the mother at all times, for the duration of the tournament.
39.Both parents are to be at liberty to attend all official school functions and events to which parents are invited or are expected to attend along with all special event days in which the children, or any of them, may be involved or is participating.
40.Both parents are to be at liberty at all times to attend all sporting and other extracurricular events and activities in which the children, or any of them, are involved or is participating (including those events and activities which may occur on days when the children are living with the other parent).
41.On or before 4:00pm on 24 March 2023 each parent must pay to Legal Aid NSW the sum of $6,314, being each parent’s equal share of the costs of the Independent Children’s Lawyer less any costs already paid.
42.Upon payment being made by both parties of the amount each of $6,314 to Legal Aid NSW then the appointment of the Independent Children’s Lawyer is discharged.
43.In the event the parties are in dispute about the implementation of these parenting orders or, notwithstanding proper consultation and discussion with each other, the parties remain in dispute about a substantive issue or issues involved in the parenting of the children, or any of them, then the parties must first submit to mediation or Family Dispute Resolution to be conducted by a professional third party to be agreed between them (and failing agreement to be nominated by the father) before commencing further litigation in relation to parenting issues. The costs of the third party engaged by the parties must be paid by the parties, as and when the same fall due and payable, in equal shares.
44.In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders, then a Registrar of the Federal Circuit and Family Court of Australia (Division 1) is appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument.
PROPERTY ORDERS
45.On or before 4:00pm on 7 April 2023, the parties must do all acts and things, sign all documents, and provide all necessary consents to cause for the property situated at and known as F Street, Suburb G in the state of New South Wales (“the Suburb G property”) to be listed for sale and to thereafter sell the Suburb G property for the highest attainable price by private treaty or, if agreed between the parties, by public auction.
46.For the purposes of effecting a sale of the Suburb G property, the following must occur –
(a)on or before 4:00pm on 7 April 2023, the parties must retain a real estate agent as agreed between them to market and sell the Suburb G property. In the event that the parties do not reach agreement as to the identity of a listing agent on or before 4:00pm on 24 March 2023, the following shall apply –
(i)the husband must serve upon the wife’s solicitors the names and contact details of three listing agents he proposes are to be retained by the parties;
(ii)within seven days of service upon the wife, through her solicitors, of the written notice referred to at paragraph 47(a)(i) above, the wife must select from the husband’s list the name of one listing agent and she must notify the husband of her selection, in writing, via the husband’s solicitors;
(iii)within a further 14 days the parties must do all acts and things, and must sign all documents so as to enter into an exclusive agency agreement with the listing agent chosen by the wife from the husband’s list; and
(iv)if the wife fails to comply with paragraph 47(a)(ii) above then the husband and/or his nominee shall be at liberty to select the listing agent to list, market and sell the Suburb G property and within a further seven days of being notified of his selection, the husband and wife must enter into an exclusive agency agreement with the listing agent chosen by the husband;
(b)on or before 4:00pm on 7 April 2023, the parties must retain a solicitor in New South Wales who must be instructed by them to prepare a contract of sale for the Suburb G property and to act on their behalf as vendors of the Suburb G property. In the event that the parties do not reach agreement as to a solicitor on or before 4:00pm on 17 March 2023, the following must apply –
(i)the husband must serve upon the wife’s solicitors the names and contact details of three solicitors he proposes be retained by the parties;
(ii)within seven days of service upon the wife, through her solicitors, of the written notice referred to at paragraph 47(b)(i) above, the wife must select from the husband’s list the name of one solicitor and she must notify the husband of her selection, in writing, via the husband’s solicitors;
(iii)within a further seven days the parties must do all acts and things, and sign all documents so as to enter into a retainer with the solicitor chosen by the wife from the husband’s list; and
(iv)if the wife fails to comply with paragraph 47(b)(ii) above then the husband and/or his nominee is to be at liberty to select the solicitor and within a further seven days of being notified of his selection, the husband and wife must enter into retainer with the solicitor chosen by the husband;
(c)neither party shall confer on any agent without the consent of the other party first obtained in writing, or as otherwise required by these orders, any right to any sole or exclusive agency in respect of the Suburb G property or as to any commission payable;
(d)in the event that the listing agent acting on the sale of the Suburb G property recommends to the husband and wife that there ought to be maintenance or minor improvements undertaken to the Suburb G property to best present it for sale and/or the listing agent acting on the sale of the Suburb G property recommends to the husband and wife that the Suburb G property be staged/ styled with display furniture, furnishings and contents items to best present it for sale and the husband and wife each agree in writing to the undertaking of such maintenance or minor improvement works and/or the staging/styling of the Suburb G property with display furniture, furnishings and contents items, then the following is to apply –
(i)the husband and wife are each to be authorised to undertake or cause to be undertaken such maintenance or minor improvement works by third party tradespeople agreed between them in writing at a cost agreed in writing;
(ii)the husband and wife are each to be authorised to enter into a contract for the staging and/or styling of the Suburb G property by a professional property stager/stylist (including furniture and soft furnishing hire) with a third-party stager/stylist agreed between them in writing at a cost agreed in writing;
(iii)the wife must do all acts and things and make arrangements as may be required for any items of furniture, furnishings and effects and belongings at the Suburb G property that the professional stager/stylist does not desire remain in the home during the sales and marketing campaign to be removed from the Suburb G property or placed into a storage area of the Suburb G property; and
(iv)in the first instance, each party must pay one half of all agreed maintenance, minor improvement works and all agreed staging/stylist’s costs and expenses with the cost of the same to be reimbursed to each party from the proceeds of sale of the Suburb G property as provided for by these orders if and only if the incurring of such costs was agreed, in writing, by both the husband and wife prior to the costs being incurred;
(e)the husband and wife must cooperate in every way with the listing agent in order to present and market the Suburb G property for sale including, but not limited to, the following and without limiting the generality of the following –
(i)making keys available to the listing agent to access all areas of the Suburb G property;
(ii)allowing and permitting access to all areas of the Suburb G property by all photographers and personnel involved in marketing the Suburb G property for sale, at all reasonable times (including weekends) as may be requested by such persons;
(iii)allowing and permitting access to all areas of the Suburb G property by prospective purchasers in the company of the listing agent, and the listing agent, at all reasonable times (including weekends) as requested by the listing agent;
(iv)doing or saying nothing to hinder or prevent a sale of the Suburb G property being completed;
(v)the wife must keep the Suburb G property and its gardens and yard in a neat and tidy condition at all times when prospective purchasers are inspecting the Suburb G property; and
(vi)the husband is entitled to attend the Suburb G property (on any date or dates to be nominated by him) in the company of the listing agent for the purposes of providing instructions to the listing agent to market and sell the Suburb G property, upon giving to the wife not less than 48 hours’ notice in advance.
(f)the husband and wife are each at liberty to request the listing agent acting on the sale of the Suburb G property defer payment of all advertising, marketing and auction expenses to be paid upon completion of the sale of the Suburb G property from the sale proceeds. If, however, there are any upfront costs and expenses payable by the parties in relation to marketing, advertising, legal fees and/or auction expenses, the husband and wife must each pay one half of all such costs and expenses as and when the same falls due and payable (and each party must be reimbursed all such amounts paid by him/her from the proceeds of sale of the Suburb G property as provided for by these orders);
(g)the sale price and listing price from time to time for the Suburb G property (together with the reserve price if the Suburb G property is being auctioned) is to be as mutually agreed between the parties in writing;
(h)in the event the parties are ever in dispute for more than seven days as to listing price, sale price and/or reserve price for the Suburb G property, the listing price, sale price and (where applicable) the reserve price must be determined by a single expert registered real property valuer in New South Wales whose decision shall be final and binding upon the parties. The parties must agree upon the identity of the single expert registered real property valuer to be engaged and if there is no agreement, the single expert registered real property valuer is to be engaged as follows –
(i)the husband must serve upon the wife’s solicitors the names and contact details of three proposed single expert real property valuers he proposes be retained by the parties;
(ii)within seven days of service upon the wife, through her solicitors, of the written notice referred to at paragraph 46(h)(i) above, the wife must select from the husband’s list the name of one single expert real property valuer and she must notify the husband of her selection, in writing, via the husband’s solicitors;
(iii)within a further seven days the parties must do all acts and things, and sign all documents so as to instruct the single expert real property valuer chosen by the wife from the husband’s list to provide a written report as to reserve price, listing price and sale price for the Suburb G property;
(iv)if the wife fails to comply with paragraph 46(h)(ii) above then the husband and/or his nominee are to be at liberty to select the single expert valuer and within a further seven days of being notified of his selection, the husband and wife must instruct the single expert real property valuer chosen by the husband; and
(v)the parties must each pay, as and when the same falls due and payable, one half of the single expert’s reasonable costs and expenses;
(i)the parties must each execute a contract for sale of the Suburb G property in the form prepared by the solicitor having conduct of the sale at a price agreed between the parties, or in the absence of agreement, at such price determined by the single expert real property valuer appointed pursuant to these orders.
47.In the event that the Suburb G property is not sold either by auction or by private treaty within three months from the date it is first listed for sale on the open market (which is deemed to be the date upon which the Suburb G property is first advertised for sale on the internet not later than 1 April 2023), then –
(a)the parties must list the Suburb G property for sale by public auction with the listing agent;
(b)the reserve price for the purpose of the auction must be such as the parties agree upon in writing not later than seven days prior to the scheduled auction and, in the event the parties cannot agree on the reserve price, the reserve price must be determined by the single expert real property valuer appointed pursuant to these orders whose decision is to be final and binding on the parties;
(c)in the event that bidding at the auction does not reach the reserve price, the parties or such of them as attends the auction may negotiate with the highest bidders or any other interested person and effect a sale of the Suburb G property at a price which is not more than 2.5% below the reserve price or such other price as the parties agree in writing; and
(d)if the Suburb G property remains unsold at the conclusion of the public auction, the parties must forthwith do all acts and things and must sign all documents necessary to relist the Suburb G property for sale by private treaty for the highest attainable price and for the purposes of such sale on the terms prescribed by these orders.
48.Upon completion of the sale of the Suburb G property, the proceeds of sale must be applied and disbursed in the following manner and priority –
(a)in payment of real estate agent’s commission, advertising expenses and legal costs and expenses of the sale (including by way of reimbursement to the husband and/or the wife for any and all such expenses he/she may have paid prior to completion of the sale);
(b)in payment sufficient to discharge in full all mortgages and encumbrances registered on title to the Suburb G property, including the outstanding mortgage in favour of National Australia Bank Ltd;
(c)in payment to the husband and wife for all costs and expenses incurred by him and/or her for which reimbursement is permitted pursuant to paragraphs 46(d)(iv) and 46(f);
(d)in payment to the husband of 50% of the balance then remaining from which the husband must simultaneously pay to the wife the sum of $14,000;
(e)in payment to discharge, in full, all amounts owed to National Australia Bank Ltd in relation to the parties’ joint National Australia Bank Ltd credit card account …40; and
(f)in payment of the balance then remaining to the wife.
49.Pending completion of the sale of the Suburb G property, and as between the parties, the following is to apply –
(a)the husband and wife must each do all acts and things to cause for all periodic mortgage repayments and instalments in relation to the National Australia Bank Ltd Home Loan account BSB … Account No. …84 (“the NAB Home Loan Account”) secured by way of mortgage on title to the Suburb G property to be paid using funds to be redrawn from the NAB Home Loan Account from time to time;
(b)the husband and wife must each do all acts and things to cause for all council rates, home building and contents insurances in respect of the Suburb G property to be paid using funds to be redrawn from the NAB Home Loan Account;
(c)the wife must pay, as and when the same falls due and payable, all water rates, electricity, gas, and all other utilities in respect of the Suburb G property and her occupation of the same. Should any amount not be paid by the wife, and become payable by way of deduction from the sale proceedings of the Suburb G property, such deduction must be as against the wife’s share only of the Suburb G property sale proceeds without impact to the husband’s 50% share of the same; and
(d)unless agreed between the parties in writing, neither party is to redraw funds from the NAB Home Loan Account unless provided for by these orders.
50.As between the parties, the wife must be solely entitled to any and all funds standing to the credit of the parties in the following bank accounts held in the joint names of the parties, and by no later than 4:00pm on the day completion of the sale of the Suburb G property occurs, the parties must do all acts and things, and must sign all documents to close each of the following bank accounts –
(a)Westpac Banking Corporation Classic Plus account …11
(b)National Australia Bank Ltd account …39; and
(c)National Australia Bank Ltd joint credit card account …40.
51.As soon as is practicable following the making of these orders, and in accordance with all third party shareholder agreements that may apply, the parties in their respective capacities as directors of H Pty Ltd must forthwith cause for H Pty Ltd as trustee for the K Family Trust to liquidate all remaining investments of the K Family Trust for the highest attainable price (such investments comprising shares held in J Pty Ltd and L Pty Ltd). Upon liquidation, the parties must do all acts and things, pass all required resolutions and sign all documents so as to cause for the K Family Trust to distribute to each party, in their personal capacity as a primary beneficiary of the K Family Trust, all assets of the K Family Trust as to 50% to the Husband and 50% to the Wife.
52.Following the distribution of surplus assets of the K Family Trust as contemplated by paragraph 51 above, the husband must sign all documents presented to him by or on behalf of the wife to cause for the following to occur –
(a)the husband must resign as a director of H Pty Ltd;
(b)the husband must assign to the wife all credit and debit loan accounts in his name in H Pty Ltd;
(c)the husband must transfer to the wife or her nominee his share in H Pty Ltd;
(d)the husband must disclaim all beneficial entitlement in K Family Trust and must resign as an appointor of the K Family Trust; and
(e)the wife must indemnify and must keep indemnified the husband in relation to all liabilities of H Pty Ltd and the K Family Trust however and whenever arising.
53.As between the parties, the wife is to retain sole legal and beneficial ownership of the following to the exclusion of the husband –
(a)the wife’s Motor Vehicle 1;
(b)all savings standing to the credit of the wife in bank accounts in her sole name;
(c)the wife’s jewellery items;
(d)all shares held by the wife in the private company known as M Pty Ltd;
(e)all of the wife’s superannuation member benefit entitlements held with Superannuation Fund 1; and
(f)all items of furniture, contents and personal effects in the wife’s possession, custody or control as at the date of the making of these orders (including the items at the Suburb G property).
54.As between the parties, the husband is to retain sole legal and beneficial ownership of the following to the exclusion of the wife –
(a)the husband’s Motor Vehicle 2;
(b)all savings standing to the credit of the husband in bank accounts in his sole name;
(c)all shares and equities held by the husband in his Westpac Equities Portfolio, account number …63;
(d)all shares and equities held by the husband in his N Pty Ltd share portfolio;
(e)all shares and equities held by the husband in the husband’s P Trade account;
(f)the husband’s interest in the N Pty Ltd Managed Fund Investment – Westpac Fund;
(g)the husband’s interest in the O Pty Ltd Managed Fund;
(h)the husband’s interest in the N Pty Ltd Managed Fund investment – Westpac Fund;
(i)all of the husband’s remaining deferred Q Bank and Q Bank Incentive Scheme;
(j)the remaining balance of the superannuation member benefit entitlements owned by the Superannuation Fund 2 subsequent to implementation of the superannuation splitting provisions of these orders;
(k)all of the husband’s member benefit entitlements held within the Superannuation Fund 3 and Superannuation Fund 4; and
(l)all items of furniture, contents and personal effects in the husband’s possession, custody or control as at the date of the making of these orders.
55.In accordance with Section 90XT(4) of the Family Law Act 1975 (Cth), a base amount of $168,706 is allocated to the wife, Ms Levandi, out of the interest of the husband, Mr Levandi, in the Superannuation Fund 2 Member No. ….
56.In accordance with Section 90XT(1)(a) of the Family Law Act 1975 (Cth) –
(a)the wife is entitled to be paid, using the base amount calculated in paragraph 55 above, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(b)the entitlement of the husband, and the entitlement of such other person to whom a splittable payment may be made, to payments out of the husband’s interest in Superannuation Fund 2 Member No. … is correspondingly reduced by the force of this order.
57.The trustee of Superannuation Fund 2 (“the Trustee”) must do all such acts and things and sign all such documents as may be necessary to –
(a)calculate, in accordance with the requirements of the Family Law Act 1975 (Cth), and the Family Law (Superannuation) Regulations 2001 (Cth) the entitlement created for the wife by paragraph 55 above; and
(b)pay the entitlement whenever the Trustee makes a splittable payment out of the husband’s interest in Superannuation Fund 2.
58.This order has effect from the operative time and the operative time is the fourth business day after service of a copy of these sealed orders on the Trustee.
59.This order binds the Trustee of Superannuation Fund 2.
60.Except as any other provision of these orders provides to the contrary –
(a)the wife hereby indemnifies the husband from and in respect of all actions, claims, suits, and demands as may be made against the husband in relation to all liabilities in the name of the wife including, but not limited to, any debt and all credit card liabilities in the sole name of the wife; and
(b)the husband hereby indemnifies the wife from and in respect of all actions, claims, suits, and demands as may be made against the wife in relation to all liabilities in the name of the husband including, but not limited to, any debt and all credit card liabilities in the sole name of the husband.
61.Except as otherwise is provided for by any paragraph comprising these orders, each of the husband and the wife releases the other from all debts owing from one to the other.
62.The parties must do all acts and things and execute all documents, deeds and instruments as are required of them to give effect to these orders in the time periods prescribed by these orders.
63.That pursuant to the Child Support Assessment Act 1989 (Cth) the husband must pay in full the following costs and expenses for the benefit of X and Y for as long as X and Y attend E School and R School respectively –
(a)X’s and Y’s school fees and compulsory school levies as listed on Tax Invoices issued to the parties by E School and R School in relation to the enrolment and attendance of each respective child at such schools;
(b)compulsory student school excursion costs for compulsory school excursions attended by X and Y; and
(c)compulsory school text books required by X and Y as students at E School and R School respectively.
64.Pursuant to s 81 of the Family Law Act 1975 (Cth), these orders are intended to bring an end to all financial relationships between the parties and to avoid further proceedings between them.
65.Any application for costs must be filed and served by 4:00pm on 7 April 2023 supported by affidavit and written submissions.
66.Any affidavit in opposition to an application for costs must be filed and served by 4:00pm on 7 May 2023 together with written submissions.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Levandi & Levandi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
These reasons address –
(a)the parties’ competing applications for parenting orders;
(b)the parties’ contested applications for property orders; and
(c)the mother’s contested application for a child support departure order.
The mother’s application for spousal maintenance orders was abandoned on the first day of the trial of this proceeding.[1]
[1] Transcript 8 November 2022 T 9 L 36.
The majority of the trial was consumed with parenting issues. So far as property issues were concerned, the mother[2] sought orders adjusting property interests in her favour as to 60% with 40% to the father[3] whereas the father sought orders in his favour dividing property interests as to 60% to him and 40% to the mother.
[2] In these reasons I refer to the applicant interchangeably as “the mother” in the context of parenting orders and as “the wife” in the context of property orders.
[3] In these reasons I refer to the respondent interchangeably as “the father” in the context of parenting orders and as “the husband” in the context of property orders.
The major issues between the parties (in which the ICL joined issue) were –
(a)whether the mother was entitled to an order for sole parental responsibility for the children or whether parental responsibility should be equally shared;
(b)whether the father’s time with the eldest child (now 15) should be in accordance with that child’s wishes or in accordance with a regime proposed by the father; and
(c)whether the father’s time with the youngest child (now 13) should be in accordance with the father’s proposal or the mother’s proposal.
Two major issues in the parties’ dispute about property alteration orders were first, the significance and effect of an inheritance the husband received and second, the disparity in the parties’ earning capacity.
A BRIEF FACTUAL NARRATION
What follows is a précis narration of certain formal particulars about the parents and the children, expressed as neutrally as circumstances permit. Contentious matters such as disputed evidence in relation to family violence, attitudes to parenting and such like have been set out below, usually in the context of the legislative provision to which that particular item of evidence was relevant.
At the date of the trial of this proceeding, the father was 48 years of age and the mother was 46 years of age. The husband and wife began living together when they resided in the United States of America in 2004. They married in 2005. In 2006 they moved back to Australia, settling in Sydney, New South Wales, upon the husband taking up work as a finance professional and the wife taking up work also as a finance professional.
The parties’ eldest child was born in 2007. He is now 15. The parties’ youngest child was born in 2009. She is now 13. The husband and wife separated under one roof in early 2020, although the precise date of separation differed. Family Court litigation was commenced in February 2020. Both children reside primarily with the mother. The eldest child has spent no time with his father since May 2020. The youngest child spends alternate weekends with her father.
Three episodes of family violence were alleged.[4] In the passages below I have addressed them, especially their application in any consideration of s 60CC(2)(b) of the Family Law Act.
[4] Transcript 8 November 2022 T 20 – T21.
It is appropriate to first deal with the applications for parenting orders.
EQUAL SHARED PARENTAL RESPONSIBILITY
The mother sought orders for equal shared parental responsibility but she also sought orders to the effect that she would have the final say if any disagreement emerged in their decision making. The precise terms of the orders sought by the mother were as follows –
Parental Responsibility
1.That the Mother and Father have equal shared parental responsibility for the children [X] born […] 2007 (“[X]”) and [Y] born […] 2009 (“[Y]”) (hereafter referred to as “the children”).
2.That the Mother and Father have equal shared parental responsibility for major long term issues relating to the children’s health, religion, education, but when making a decision about major longterm issues, the Mother shall:
a.advise the Father in writing at least 30 days before any decision is made and shall consider any written response made by the Father which is to be provided within 7 days of the Mother’s advice and the Mother act in good faith in considering his input into the issue/s; and
b.should there be no agreement, then the Mother shall make the decision/s and advise the Father, in writing, of the decision/s within 5 days of her decision being made.
3.The Mother have responsibility for making decisions for the day to day care of the children when they are in her care and the Father have responsibility for making decisions for the day to day care of the children when they are in her care.
Live With
4.The children shall live with the Mother.
Spend Time Arrangements with the Father
5.That [X] shall spend time with the Father in accordance with his wishes.
6.That [Y] shall spend time with the Father by agreement with the Mother, and failing agreement, as follows:
TERM TIME
6.1. During all school terms referable to the school at which [Y] attends each alternate weekend from the conclusion of school / 3.25pm on Friday until the commencement of school / 8.00am on the following Monday.
TERM 1, 2 & 3 SCHOOL HOLIDAYS
6.2. During the Term 1, Term 2 and Term 3 school holidays of the NSW gazetted school holiday period, [Y] shall spend time with the Father, as agreed between the parties in writing, and failing agreement, for any 5-day (four night) period.
6.3.That for the purpose of Order 6.2, the school holiday period shall commence on the last day of the School Term for the respective child who commences their school holidays first.
TERM 4 – CHRISTMAS SCHOOL HOLIDAYS
6.4.During the Term 4 Christmas school holidays, [Y] shall spend time with the Father, as agreed between the parties in writing, and failing agreement, for 3 x block periods of 4 nights (1 x block in December and 2 x blocks in January) with such nights to be nominated by the Mother at least 21 days prior to the commencement of that school holiday period.
Orders for Special Occasions
7. Christmas Holidays:
7.1. That during the Christmas school holiday period, [Y] spend time with the Father from 5.00pm on 25 December until 5.00pm on 26 December each year.
8. Easter Holidays:
8.1. Notwithstanding any other Order, and for the purposes of Easter celebrations, [Y] shall spend time with the Mother from 9.00am on Good Friday until 8.00pm on Easter Monday in odd numbered year, and in each even numbered year with the Father.
9. Mother’s Day and Father’s Day
9.1. That [Y] spend time with each parent as follows:-
(a)With the Father, from 9am on Father’s Day until 4pm on Father’s Day; and
(b)With the Mother, from 9am on Mother’s Day until 4pm on Mother’s Day.
10. Birthdays
10.1. Mother’s and Father’s birthdays:
(a)That [Y] spend time with the Mother or Father, on each parent’s respective birthdays, as follows:
(i)In the event that either parent’s respective birthday falls on a school night, and [Y] is not otherwise spending time with that parent in accordance with the ordinary spend time arrangements, then after school (or after any respective extra-curricular activity that occurs on that said day) to approximately 8.30pm that evening; and
(ii)In the event that either of the parent’s birthdays fall on a weekend that [Y] is not otherwise spending time with that parent, (in accordance with the ordinary spend time arrangements), from 5pm to approximately 8.30pm that evening, with that parent.
10.1. [Y’s] birthday:
(a)That in addition to the time referred to above, [Y] shall spend time with the Mother or Father, on her respective birthday, as follows:
(i)In the event that [Y’s] birthday falls on a school day and [Y] is not otherwise spending time with that parent (in accordance with the ordinary spend time arrangements), then from 7am that day until 8.45am with that parent, or until school otherwise commences that day;
(ii)In the event that [Y’s] birthday falls on a weekend that [Y] is not otherwise spending time with that parent, (in accordance with the ordinary spend time arrangements), [Y] is to spend time with that parent, from 7am until 9.30am.
Communication
11. That each parent be at liberty to communicate with the children by telephone, email and all other forms of electronic communication (including Skype and Facetime) at all reasonable times on all days when the children are in the care of the other parent, and each parent must not restrict or interfere with and must positively encourage and facilitate each child receiving and initiating telephone and electronic communication to and from the other parent.
Changeovers
12. That less otherwise agreed in writing between the Father and the Mother, the Father is to collect [Y] from school (if physically attending school) or [Suburb G] McDonald’s car park (if home schooling or a non-school day), or at the midpoint of an agreed public location of where both parties reside in the event a parent moves residence
13.That unless otherwise agreed in writing between the Father and the Mother, the Mother is to collect [Y] from [Suburb G] McDonald’s car park, or at the midpoint of an agreed public location of where both parties reside in the event a parent moves residence, at such times when she is not delivered by him to school at the conclusion of the Father’s time with [Y].
Injunctive relief
14. That pursuant to section 68B of the Family Law Act 1975, the Father be restrained from entering or remaining within 100 metres of the Mother’s primary residential address, without the prior written consent of the Mother. The Mother’s current primary address is [F Street, Suburb G] NSW.
Child Support Departure Order
15. That pursuant to Section 124 of the Child Support (Assessment)Act 1989, [Mr Levandi] provide non-periodic child support to [Ms Levandi] for the children, [X] (“[X]”) and [Y] (“[Y]”), by way of payment of all school fees for [X] and [Y], while the children continue to attend their respective schools (being [E School] and [R School]).
16. That such payment is to commence from Term 3 of the 2022 school year.
17.The annual rate of child support is not to be reduced by the child support provided.
Travel
18. That unless otherwise agreed in writing, both parties are permitted to travel overseas with the children during the time the children are living with that party, provided that each party notify the other party not less than fourteen (14) days’ notice of the proposed travel arrangements, including dates and times of arrival, itinerary and contact telephone number and address of where the children will be accommodated.
19.That the Mother is at liberty to nominate in writing to the Father with at least 30 days’ written notice that she intends to spend a two-week holiday period with the children on two occasions per year.
Passports
20. Within 7 days of a request from the other parent to do so, each parent shall do all acts and things and sign all documents so as to renew the current passports for each child, and costs of renewal shall be paid by the parties in equal shares as and when the same fall due and payable.
21.The Mother shall hold the children’s passports and shall provide the children’s passports to the Father within 7 days of a request for same by the Father in order to facilitate overseas travel permitted in compliance with these Orders or the planning of such travel (including the booking of travel tickets and/ or the obtaining of visas.
22.The Father shall return the children’s passports to the Mother at the next changeover following his return to Australia.
23.Within 7 days of a request from the other parent to do so, each parent shall do all acts and things and sign all documents so as to apply for travel and entry visas as may be required for a child whom a parent intends to take or send outside the Commonwealth of Australia in accordance with the provisions of these Orders.
Other
24. With out admissions, neither party shall physically discipline (including smacking) the children or either of them.
25.That unless otherwise agreed in writing between the Mother and Father, that the Mother be permitted to take the child [X] to all State, National and Club sporting tournaments that he will participate in from the date of these Orders.
26.That while the Father be permitted to attend any such sporting tournament that [X] is competing in for the purpose of Order 25, unless otherwise agreed in writing, both children are to
reside and stay with theremain in the care of the Mother at all times, for the duration of the tournament.27.That both parents shall be at liberty to attend all official school functions and events to which parents are invited or are expected to attend along with all special event days in which the children, or any of them, may be involved or is participating.
28.Both parents shall be at liberty at all times to attend all sporting and other extracurricular events and activities in which the children, or any of them, are involved or is participating (including those events and activities which may occur on days when the children are living with the other parent.
29.Both parents shall provide all authorities and give all necessary consents to ensure that all treating medical and health care practitioners for each child (including but not limited to general practitioner, paediatrician, specialists, counsellors and therapists) are authorised and directed to communicate with, and provide information and copies of documents directly to, the Mother and the Father upon either party’s respective request and at the requesting party’s own cost.
30.Forthwith upon the making of these Orders and continuously thereafter, the Mother and Father shall provide all authorities and give all necessary consents to ensure that the principal and all staff at each child’s school are authorised and directed to communicate with and provide information and copies of documents directly to, the Mother and Father upon either party’s respective request and at the requesting party’s own cost.
31.Each parent must notify the other parent as soon as reasonably practicable and within 24 hours of all changes to their residential address and/ or landline telephone number and/ or mobile telephone number and/ or email address and each parent shall provide to the other particulars of each new residential address, landline telephone number, mobile telephone number and email address.
32.Each parent must notify the other as soon as practicable and within 24 hours of all changes to the mobile telephone number and email address of each child.
The father’s proposal in relation to parental responsibility was of a different nature. It was as follows –
1.That all prior interim parenting Orders in relation to the children [X] born […] 2007 (“[X]”) and [Y] born […] 2009 (“[Y]”) (and collectively hereunder referred to as “the children”) be and hereby are discharged.
2.That the Mother and Father shall have equal shared parental responsibility for, and shall make joint decisions about, major long terms issues affecting the children including but not limited to decisions about:
2.1. each child’s education (both current and future);
2.2. each child’s religious and cultural upbringing;
2.3. each child’s health;
2.4. each child’s extra-curricular and sporting activities;
2.5. each child’s name; and
2.6.changes to each child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
3.The Mother and Father shall individually have sole responsibility for making decisions concerning other aspects of the care, welfare and development and parental responsibility of the children on a day-to-day basis when each child is in the care of each respective party.
4.During all school terms referable to the school at which the parties’ eldest child who is still attending school attends, [X] and [Y] shall live with the Father in accordance with the following two week alternating cycle of time:
In Week 1
4.1. from the conclusion of school / 3:25pm on Friday until the commencement of school / 8:00am the following Tuesday; and
In Week 2
4.2. from the conclusion of school / 3:25pm on Tuesday until the commencement of school / 8:00am on Wednesday; and
In Weeks 1 and 2
4.3. at other times and occasions as may be agreed between the parties, including one on one time with each respective child to assist with the transportation and care arrangements for each child surrounding their extracurricular activities and events.
5.At all other times during school terms, [X] and [Y] shall live with the Mother.
6.In addition to the days and times referred to at Order 4 above, X and Y shall live with the Father as follows:
6.1. For one half of each school holiday period referable to school at which the parties’ eldest child who is still attending school attends, between dates to be agreed between the parties but failing agreement with the Father for the first half of all such school holiday periods which commence in even numbered years, and the second half of all school holiday periods which commence in odd numbered years.
6.2. From 9:00am on Father’s Day until the commencement of school / 8:00am on the Monday immediately following Father’s Day each year (if the children are not already in the care of the Father on such days pursuant to Order 4);
6.3. From 9:00am until 8:00pm on each of the Australia Day, ANZAC Day, Queen’s Birthday, and Labour Day (NSW) public holidays in each odd numbered year (if the children are not already in the Father’s care pursuant to Order 4);
6.4. On the Father’s birthday and on each of [X’s] and [Y’s] birthdays each year, if the children are not already in the care of the Father for any time on such days, as follows:
6.4.1. where the relevant birthday falls on a school day, then from the conclusion of school until 8:00pm; and
6.4.2. where the relevant birthday falls on a non school day, then for a period of five (5) hours between times to be nominated in writing by the Father.
7.Notwithstanding any other Order, and for the purposes of Christmas celebrations, the following will apply unless otherwise agreed between the parties in writing:
7.1. [X] and [Y] shall live from 3:00pm on 24 December (Christmas Eve) until 4:30pm on 25 December (Christmas Day) in each even numbered year with the Mother and in each odd numbered year with the Father; and
7.2. [X] and [Y] shall live from 4:30pm on 25 December (Christmas Day) until 6:00pm on 26 December (Boxing Day) in each even numbered year with the Father and in each odd numbered year with the Mother.
8.Notwithstanding any other Order, for the purposes of Easter celebrations and unless otherwise agreed in writing between the parties, the children shall live from 9:00am on Good Friday until 8:00pm on Easter Monday in each even numbered year with the Father and in each odd numbered year with the Mother.
9.Notwithstanding any other Order, and unless agreed between the parties, the children shall remain living with the Mother on the following days and at the following times:
9.1. From 9:00am on Mother’s Day until the commencement of school /8:00am on the Monday immediately following Mother’s Day each year;
9.2. From 9:00am until 8:00pm on each of the Australia Day, ANZAC Day, Queen’s Birthday, and Labour Day (NSW) public holidays in each even numbered year;
9.3. On the Mother’s birthday each year, if the children are not already in the care of the Mother for any time that day, as follows:
9.3.1. where the Mother’s birthday falls on a school day, then from the conclusion of school until 8:00pm; and
9.3.2. where the Mother’s birthday falls on a non school day, then for a period of five (5) hours between times to be nominated in writing by the Mother.
10. Each parent shall be at liberty to communicate with [X] and [Y] by telephone, email, and all other forms of electronic communication (including SKYPE and Facetime) at all reasonable times on all days when the children are in the care of the other parent, and each parent must not restrict or interfere with and must positively encourage and facilitate each child receiving and initiating telephone and electronic communication to and from the other parent.
11. The Mother shall direct and, in all circumstances use her best endeavours to, encourage [X] to initiate a telephone call and/or Facetime call to the Father at 8:00pm each Tuesday and Sunday when [X] is not in the Father’s care pursuant to these Orders.
12. The Mother and Father shall communicate about the children by email and text message and, in the case of emergency, by telephone.
13. For the purposes of implementing changeover, the following will apply:
13.1. Week 1 living arrangements, for the purposes of Order 4, shall commence on the first Friday of each new school term;
13.2. For the purposes of Order 4, changeover shall occur at the conclusion / commencement of school for each child who is attending school at each child’s school or (where applicable) each child’s after school activity;
13.3. For any child who is not attending school when changeover occurs for the purposes of Order 4, changeover shall occur no later than 10:00am and 4:45pm at the home of the parent with whom the child or children not attending school is living on such day;
13.4. Where changeover occurs at the commencement or conclusion of school pursuant to any other Order, changeover shall occur at each child’s school;
13.5. For the purposes of all other Orders, the parent (and/or his/her nominee) with whom the children are not already living when changeover is to occur (ie, the collecting parent), shall collect the children from the front driveway or front entrance area of the usual place of residence of the other parent at the commencement of the period of time the children, or any of them, are to spend with that parent. For abundant clarity, neither party shall enter the home of the other party unless invited to do so by the other party;
13.6. For abundant clarity, and for the purposes of school holiday periods, the following shall apply:
13.6.1. the first day of a school holiday period shall be defined to commence from the conclusion of school / 3:25pm on the last school day of each term that the parties’ eldest child who is still attending school is required to attend school (“the First Day”); and
13.6.2. the last day of each school holiday period shall be defined to be at 6:00pm on that day immediately preceding the first school day of each new school term that the parties’ eldest child who is still attending school is required to attend school (“the Last Day”); and
13.6.3. school holiday periods shall include pupil free days which might fall in between the First and Last Day;
13.6.4. changeover that occurs half way through a school holiday period shall occur at 12:00 noon on that day which is midway between the First Day and the Last Day; and
13.6.5. where there are two middle days in a school holiday period, changeover shall occur at 12:00 noon on the first of the two middle days.
14. If [X] does not come into the Father’s care at any changeover event that is to occur pursuant to these Orders AND/OR if [X] comes into the care of the Mother at any time he is to be living with the Father pursuant to these Orders, the following shall occur:
14.1. the Father shall notify the Mother, in writing via text message, that [X] has not transitioned into his care and/or is not in his care (as may be applicable);
14.2. the Mother must forthwith use her best endeavours to locate [X] and temporarily take [X] into her care;
14.3. upon [X] temporarily coming into the Mother’s care, the Mother must take steps to immediately deliver [X] to the Father’s usual place of residence at a time nominated by the Father when the Father will be at his usual place of residence ready to receive [X] for time; and
14.4. the Mother shall direct and instruct [X] to remain in the Father’s care between the dates and times prescribed by these Orders, and each parent shall positively encourage, allow, permit and facilitate [X] to do so.
15. Both parents shall be at liberty to attend all official school functions and events to which parents are invited or are expected to attend along with all special event days in which the children, or any of them, may be involved or is participating.
16. Both parents shall be at liberty to attend all parent teacher meetings and interviews for each child as he / she may arrange.
17. Both parents shall be at liberty at all times to attend all sporting and other extracurricular events and activities in which the children, or any of them, are involved or is participating (including those events and activities which may occur on days when the children are living with the other parent).
18. Both parents shall be at liberty to attend all functions and events to which parents are invited or are expected to attend relating to each child’s participation in his / her extracurricular activities.
19. Each parent shall notify the other, within two days of their receipt of the same, about his/her receipt of copies of all documents issued by the schools at which each child attends if such documents contain information about the children or events in which the children are involved and/or to which parents are invited to attend. If so requested by the other parent, then within two days of receipt of a request,the first parent shall provide to the other parent copies of documents requested.
20. Without the written consent of the other parent first obtained in writing, each parent is restrained from enrolling the children, or any of them, in any sporting, music, or other extracurricular activity that requires or, may in the future require, the attendance of a child at times and on days when that child is in the care of the other parent.
21. Without the written consent of the other party first obtained, neither party shall arrange for, or encourage, the attendance of either child at any social event which occurs when the children are in the care of the other parent.
22. Forthwith upon the making of these Orders and continuously thereafter, the Mother and Father shall provide all authorities and give all necessary consents to ensure that all treating medical and health care practitioners for each child (including but not limited to general practitioner, paediatrician, specialists, counsellors and therapists) are authorised and directed to communicate with, and provide information and copies of documents directly to, the Mother and the Father upon either party’s respective request and at the requesting party’s own cost (including, but not limited to, each child’s treatment, diagnosis, prognosis, medications and test results).
23. Each party shall notify the other in writing of all serious injury and/or hospitalisation and/or medical treatment obtained for and/or involving the children or either of them as soon as reasonably practicable.
24. Forthwith upon the making of these Orders and continuously thereafter, the Mother and Father shall provide all authorities and give all necessary consents to ensure that the principal and all staff at each child’s school are authorised and directed to communicate with and provide information and copies of documents directly to, the Mother and the Father upon either party’s respective request and at the requesting party’s own cost.
25. Each parent must notify the other as soon as practicable and within 24 hours of all changes to his/ her residential address and/or landline telephone number and/or mobile telephone number and/or email address and each parent shall provide to the other the particulars of each new residential address, landline telephone number, mobile telephone number and email address.
26. Each parent must notify the other as soon as practicable and within 24 hours of all changes to the mobile telephone number and email address of each child.
27. Both parties are permitted to temporarily take and send the children, and each of them individually, from the Commonwealth of Australia for the purposes of overseas travel and holidays provided that:
27.1. the party proposing overseas travel gives to the other party, at least 4 weeks in advance of the proposed travel, written details of the names and places outside of the Commonwealth of Australia where it is proposed the children, and each of them, will be travelling (being countries, cities and towns); and
27.2. the party proposing overseas travel gives to the other party, at least 4 weeks in advance of the proposed travel, written details of the proposed departure and arrival dates to and from each country to which it is intended travel will occur; and
27.3. not less than 2 weeks in advance of the proposed travel, the party taking or sending the children, or any of them, outside of the Commonwealth of Australia must provide to the other party a photocopy of all return airline and/or shipping tickets for each child evidencing each child’s return to the Commonwealth of Australia together with copies of all written itineraries;
27.4. not less than 1 week in advance of the proposed travel, the party taking or sending the children, or any of them, outside of the Commonwealth of Australia must provide to the other party written notice of the contact telephone numbers and addresses of all places where the children will be staying overnight when outside of the Commonwealth of Australia; and
27.5. the party proposing overseas travel must ensure each travelling child is covered by a valid personal/illness/ injury and hospitalisation travel insurance policy for the duration of travel outside of Australia, and a copy of such policy shall be provided to the other party not less than 1 week prior to the proposed travel.
28. Within 7 days of a request from the other parent to do so, each parent shall do all acts and things and sign all documents so as to renew the current passports for each child, and the costs of renewal shall be paid by the parties in equal shares as and when the same fall due and payable.
29. Each child’s passport shall be held by that parent with whom the children last travelled outside of the Commonwealth of Australia but must be provided to the other parent:
29.1. within 7 days of a written request for same by the other parent in order to facilitate overseas travel permitted in compliance with these Orders or the planning of such travel (including the booking of travel tickets and/or the obtaining of visas or other travel documents); or
29.2. 3 weeks from the date of departure of a child or both children from the Commonwealth of Australia for overseas travel permitted in compliance with these Orders;
whichever may first in time occur.
30. Within 7 days of a request from the other parent to do so, each parent shall do all acts and things and sign all documents so as to apply for travel and entry visas as may be required for a child whom a parent intends to take or send outside of the Commonwealth of Australia in accordance with the provisions of these Orders.
31. Without admissions, neither party shall physically discipline (including smack) the children or either of them.
32. Each party is restrained from:
32.1. denigrating and/or speaking negatively about the other party and/or members of the other party’s household in the presence or hearing of the children;
32.2. engaging in discussions with the children, or either of them, about these proceedings save and except as is necessary to inform the children about the living arrangements resolved through the making of these Orders, arrangements for communication in accordance with these Orders, holiday and special event time arrangements, and matters related to the implementation of these Orders;
32.3. unreasonably questioning the children, or either of them, about the other parent or events that may have occurred while the children were in the care of the other parent; and 32.4. showing or providing to the children, or either of them, originals or copies of any documents prepared for and/or used in connection with these proceedings.
33. Each party shall do all acts and things to facilitate [X’s] attendance upon a psychologist to be nominated by the single expert, Ms B, for the purposes of assisting [X] and supporting [X] in his relationship with the Father. For this purpose, the following shall apply:
33.1. each respective party shall take [X] to all appointments with his psychologist on days and at times nominated by [X’s] psychologist;
33.2. if [X] is attending school on any future date or dates when [X’s] psychologist requires [X] to attend for consultation during school hours, the Mother and/or the Father (as directed by [X’s] psychologist) shall collect and remove [X] from his school in sufficient time to thereafter transport and deliver [X] to his appointment with his psychologist;
33.3. The Father must notify [X’s] school, being E School, in writing by email in advance of all occasions when [X’s] psychologist requires [X’s] attendance. A copy of such email notification shall be simultaneously provided to the Mother and it shall inform [E School] of the date and time [X] is to be collected and removed from school and the parent who is attending to collect [X];
33.4. Each party shall do all acts and things, sign all documents and obtain all necessary permissions from the principal and/or staff at [E School] for [X] to be approved to leave [E School] during school hours so as to attend upon his psychologist at all times nominated by his psychologist; and
33.5. The principal and staff at [E School] are requested, upon receipt of a copy of these Orders, to assist in the implementation of these Orders including but not limited to directing, allowing and facilitating [X] to be collected by his Mother and/or Father from school (as directed by [X’s] psychologist), and to be removed from school premises to attend consultations with his psychologist.
34. In the event the parties are in dispute about the implementation of these parenting Orders or, notwithstanding proper consultation and discussion with each other, the parties remain in dispute about a substantive issue or issues involved in the parenting of the children, or any of them, then the parties shall first submit to mediation or Family Dispute Resolution to be conducted by a professional third party to be agreed between them (and failing agreement to be nominated by the Father) before commencing further litigation in relation to parenting issues. The costs of the third party engaged by the parties shall be paid by the parties, as and when the same fall due and payable, in equal shares.
35. In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these Orders, then a Registrar of the Federal Circuit and Family Court of Australia (Division 1) is appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument.
Paragraph 3 of the father’s application introduced the notion of individual sole parental responsibility for decision making concerning what he called “other aspects of the care, welfare and development and parental responsibility of the children on a day-to-day basis when each child is in the care of each respective party.” Reference to “other aspects” seemed to be a reference to matters other than those in paragraph 2.1 to 2.5 of his proposal. One wonders why such a provision was needed in view of the concept delineating parental responsibility, whether sole or shared, namely decision making about major long-term issues rather than day-to-day matters when a child is in the care of one particular parent.[5]
[5] Day-to-day issues may fall into the category of being more mundane in nature such as attending at an after-school activity or the contents of a midday meal, for example.
The ICL submitted that an order for the mother to have sole parental responsibility for the children was appropriate in all the circumstances, especially having regard to what the ICL said was “real potential risk of continued harmful exposure to the children of continued parental conflict”.[6]
[6] Part C paragraph 11 of the ICL’s case outline filed 4 November 2022.
The allegations about parental conflict were contested by the father.
So far as the arrangements concerning the parent with whom the children would live were concerned, no dispute existed that the children were to live with the mother.
The proposals of the parties changed throughout the trial, although not in relation to parental responsibility.
Before examining the evidence with respect to the mother’s, the father’s and the ICL’s contentions concerning parental responsibility, it is utile to examine the evidence from the family consultant, Ms B, whose reports dated 28 April 2022 and 1 November 2022 went into evidence as agreed exhibits.
The family consultant’s 28 April 2022 report recorded that court orders had asked her to prepare a report that addressed 11 issues. Those 11 issues were, essentially, the elements of each sub-section of s 60CC(3) of the Family Law Act.[7] After she trawled through those issues, she stated, correctly, that the ultimate issue was the time the children should spend between each household. She said she did not see the children to be at risk with either parent because each parent has much to offer (her words). So far as time was concerned, she said the following –
The children currently spend three nights a fortnight with their father. I accept that this amount of time (effectively just an alternative weekend) is difficult for [Mr Levandi] to establish a continuity of his relationship them and involve himself with their day-to-day lives and position himself in their eyes as a competent and equal parenting figure. Based on this I think that it would be beneficial for his time to increase to four or five nights a fortnight, though this may be best in a “block” fashion as the children are older and reduction of handovers between households would be in their best interest.
[7] Although I note that there are 14 subsections to s 60CC(3).
Ms B embedded into her recommendation a recognition that the mother may not fully support her (Ms B’s) views. However, Ms B stated that she did not believe that any such resistance was good reason not to increase the father’s time.
In her 1 November 2022 report, Ms B expressed the opinion that her view remained, namely, that it is in the children’s best interest for each to have a meaningful relationship with both parents. She qualified that by adding that the eldest child was most likely to spend time with his father if he was left to choose the time he spends with the father.
The father wanted me to make orders that prescribed a regime for the eldest child to spend a certain amount of time with the father so as to demonstrate that the eldest child is important to the father, even if the father would thereafter take no step to compel the eldest child to spend such time with the father. Counsel for the mother and counsel for the ICL opposed such a course.
The mother put in issue for my determination episodes characterised by her as being events of family violence. Most of those contentions were disputed by the father. As has already been recorded, the ICL proposed orders for the mother to have sole parental responsibility for the children. The ICL relied heavily on the wishes of the eldest child to the effect that the eldest child wishes his time with the father to be of his choosing.
While addressing contested evidence on discrete issues I have done so in the context of the main statutory provisions applicable in a parenting application of which this is one.
Part VII of the Family Law Act, entitled “Children” is underpinned by a collection of statutory imperatives. Several are reposed in s 60B which sets out in several subsections the objects of Part VII and the legal principles that underlie those objects. Relevantly paraphrased –
(a)s 60B(1)(a) provides that Part VII of the Family Law Act ensures that children have the benefit of both parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;
(b)s 60B(1)(b) provides that Part VII is concerned with protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;
(c)s 60B(1)(c) provides that Part VII is concerned with ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)s 60B(1)(d) provides that Part VII is concerned with ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying the objects recorded in the subsections of s 60B(1). Relevantly paraphrased, the principles reposed in s 60B(2) are as follows –
(a)children have the right to know and be cared for by both parents (s 60B(2)(a));
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development;
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
(d)parents should agree about future parenting of their children; and
(e)children have a right to enjoy their culture.
The parenting orders sought by both the mother and the father invoked the application of s 60CA requiring me to regard the best interests of each child as the paramount consideration. In ascertaining the best interests of each child, s 60CC required me to address the issues described by the Family Law Act as “primary considerations” as well as “additional considerations.” Section 60CC(1) requires in mandatory terms a judge in my shoes to consider both aspects of the primary considerations of s 60CC(2), applying greater weight to the considerations in s 60CC(2)(b).[8] That subsection requires me to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The other primary consideration reposed in s 60CC(2)(a) is the benefit to the child of having a meaningful relationship with both of the child’s parents. The primary consideration in s 60CC(2)(a) must be subordinated when the primary consideration in s 60CC(2)(b) is engaged.
[8] That is the effect of the operation of s 60CC(2A).
Allegations of family violence assumed very considerable importance in this case. While not determinative of the grant of sole parental responsibility in favour of the wife, nor of the orders urged by the mother and the ICL in relation to the father’s time with the eldest child, the details of the episodes alleged were contested rendering it necessary for me to address those in some little detail.
The parties’ case outlines provided next to no useful contentions about the allegations of three episodes of family violence. In his opening, Mr Dura of counsel for the father identified the relevant episodes as follows –
(a)the mother alleged that in late 2019 the father struck the mother in the face and grabbed her by the arm or wrist causing injury to her arm;
(b)the mother alleged as a second incident that the father caused the youngest child an injury when he attempted to take a stick out of her hand because the children were fighting and the youngest child threatened to strike her brother with the stick which the mother asserted involved overly aggressive conduct by the father; and
(c)as the third episode, the mother alleged that in mid-2022 the father and the eldest child engaged in a physical altercation.
Mr Dura opened on the basis that the mother was not present when the second and third episodes allegedly occurred and that her narration of those episodes was based exclusively on the information imparted to her by one or other or both of the children.
Mr Dura submitted that the mother relied on those three episodes in support of her contention that each child was at risk while in the father’s care. Mr Dura opened on the basis that it was inconsistent for the mother to assert the existence of family violence on the one hand while concurrently agreeing to the father having three nights per week with the youngest child but no more.
Even accepting that the strict rules of evidence are to some extent relaxed in parenting cases by operation of s 69ZT of the Family Law Act, no counsel in this case debated whether the provisions of s 69ZT apply only in relation to questions asked to a witness who gives evidence from the witness box as opposed to statements appearing in affidavits the contents of which might otherwise be inadmissible by reason, say of hearsay, opinion and such like. For that matter, no counsel raised objection to evidence other than direct evidence about any of the three episodes on which the mother relied when asserting the existence of family violence.
In her affidavit affirmed 13 October 2022, the mother addressed several incidents she said amounted to family violence commencing from the time the eldest child was five years of age, that is to say, over 10 years ago. Most of the information she imparted was general in nature and was injected with her subjective emotions, incapable of being objectively measured, such as “he made me feel”[9] (“he” being a reference to the father) or her assertion that she believed an event took place even though she was not present and therefore could not positively verify the truth of her assertion.[10]
[9] Paragraph 27 of that affidavit.
[10] Paragraph 28 of that affidavit.
The mother deposed to an episode in early 2013 during an argument she said the father and she were having when the father “picked me up off the floor and threw me against the bedroom wall at our then home” (her words).[11] She deposed to approaching police the following day in relation to the incident which culminated in the making of a provisional apprehended domestic violence order (“ADVO”) in early 2013 under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The mother and the children were named in that order as protected persons and the father was named as the defendant. The version of events given by the mother attached to the ADVO replicated in large measure the information of the same event as given by the mother in her affidavit affirmed 13 October 2022.
[11] Paragraph 33 of that affidavit.
The mother deposed to subsequently withdrawing that ADVO.[12]
[12] Paragraph 35 of that affidavit. It seemed that that incident was not included in Mr Dura’s computation of the three relevant incidents.
The mother gave evidence about an incident that occurred in late 2019. She said the father hit her on the side of the face and that he grabbed and twisted her arm. She said the youngest child was present during that incident. She said the eldest child was upstairs and did not witness the incident.
The mother deposed[13] to attending police in relation to the late 2019 episode. She said she attended police in early 2020 (that is to say, almost two months later) following which a provisional ADVO was made in application.
[13] Paragraph 53 of her 13 October 2022 affidavit.
The mother stated[14] that the father was eventually charged arising out of the incident in late 2019. That charge was heard in late 2020,[15] but adjourned part-heard to a date in early 2021. She stated[16] that the criminal matter was brought to conclusion in early 2021 upon the father being found guilty. She said a final ADVO was made that day.
[14] Paragraph 59 of her 13 October 2022 affidavit.
[15] Paragraph 60 of her 13 October 2022 affidavit.
[16] Paragraph 97 of her 13 October 2022 affidavit.
The mother also stated that the father appealed against that conviction. On appeal his Honour Judge Pickering of the New South Wales District Court made various comments on a single page (an entirely incomplete version of his Honour’s reasons) which was put in evidence by the mother. Such an important document as his Honour’s reasons for judgment should have been included by the mother in its totality rather than a much sanitised version of the document being put before me. Solicitors preparing trial affidavits of the sort prepared for the mother were duty bound to put before the court a proper and full version of a document as important as the reasons for judgment of his Honour Judge Pickering, not a sanitised version that contained extracts only that the mother considered were favourable to her. Exhibit ML22 to the mother’s affidavit was a single page numbered 22. It may be that 21 pages preceded it, although that was conjecture on my part. The single page 22 used language of a legal nature and appeared at first blush to relate to this case. However, the pages that were not put before me are likely to have incorporated other aspects of the case that illuminated other aspects of his Honour’s process of reasoning. Without having the complete set of his Honour’s reasons, on the mother’s evidence I was left guessing at the issues his Honour regarded as being dispositive of the father’s appeal.
So far as the actual orders made by his Honour Judge Pickering were concerned, the father exhibited the orders made mid-2021 to his affidavit made 12 October 2022 together with a copy of his police statement and the ex tempore version of his Honour’s reasons for judgment in full. I was assisted by that. Relevantly paraphrased, his Honour made the following observations –
(a)the father conducted the appeal on the basis that the Crown failed to prove the case beyond reasonable doubt;
(b)the argument that gave rise to the charge concerned the family dog and what was to happen to it by way of ongoing care;
(c)both the mother and the father “started to really push each other’s buttons”[17] deliberately using offensive language;
[17] Page 5 of his Honour’s reasons.
(d)the father’s deliberate use of language that the mother was stupid and had a little brain probably upset the mother as did the mother’s use of language that the father was a bad father, a bad husband and an arsehole (his Honour’s words);
(e)the youngest child heard the parents arguing and the eldest child was upstairs “relieving his burden in other ways” (his Honour’s words);[18]
[18] Page 4 of his Honour’s reasons.
(f)the father’s counsel argued that by reason of the mother’s dubious recollection about the events of her father’s fall in late December, her recollection of events was wrong or a deliberate untruth;
(g)on medical examination, Dr S reported bruising to the mother’s left cheek and bruising on the mother’s right forearm;
(h)the mother made much more of her actual injuries than Dr S’s examination revealed;
(i)the degree of pain and the limitations the mother reported were exaggerated;
(j)the father’s senior counsel demonstrated that the mother changed her evidence and exaggerated her evidence;
(k)the mother did not give a complete account of her evidence;
(l)his Honour did not accept the daughter’s evidence that the father was “whacking” the mother;
(m)the inconsistency in the daughter’s evidence with that given by the mother did not necessarily undermine the credibility of the mother because the daughter’s evidence, taken holistically, represented her view that the father behaved aggressively towards the mother;
(n)the father’s email to the mother dated late December represented evidence of particular difficulty;
(o)the father was a highly intelligent individual, of good character and a highly successful individual;[19]
(p)the mother’s actions were inexcusable and were potentially an assault;
(q)taken as a whole, evidence existed that was properly characterised as being reasonable doubt that an assault took place;
(r)his Honour was not prepared to find beyond reasonable doubt that the father struck the mother in the face;
(s)his Honour was prepared to find beyond reasonable doubt that the mother was grabbed on the arm and it was twisted creating a bruise and which amounted to the charge;
(t)his Honour dismissed the appeal against conviction;
(u)his Honour did not accept that the mother suffered the pain she said she did;
(v)the father is nearly 50, he has been no problem to the community and he lost his temper in a short aspect of provocation, there being otherwise no sign that the father is not a good man;
(w)his apology was genuine; and
(x)his Honour found the offence proven against the father but his Honour declined to impose a conviction.
[19] Page 7 of his Honour’s reasons.
His Honour made an ADVO but limited its operation to three months.
So far as the formal orders his Honour made were concerned, they were recorded in the court order notice exhibited to the father’s affidavit. Relevantly paraphrased, they were as follows –
(a)the father’s conviction appeal was dismissed;
(b)the severity appeal was upheld;
(c)on the offence as charged the father was found guilty but without conviction and the matter was dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and that pursuant to the same section of the same Act a guilty plea was entered but the charge was dismissed without proceeding to conviction;
(d)a three month ADVO was made for the protection of the mother; and
(e)the ADVO made in early 2021 was quashed.
To my way of thinking, in order to have a proper understanding of the first episode of family violence on which the mother relied, it was essential to know how his Honour Judge Pickering dealt with the father’s appeal from the magistrate’s conviction. The mother’s perfunctory treatment of the issue in her trial affidavit revealed to me that she was unwilling to put before the court (me) the totality of the evidence on point and instead, that she wished to narrate her construction of the evidence in the most favourable manner for her and in the most detrimental manner for the father. That caused me to pause to consider whether the mother’s version of events in relation to family violence allegedly perpetrated by the father was objectively maintainable or whether it was exaggerated. I take the view that the mother’s version of events in relation to the father’s commission of family violence in this case was exaggerated and that her version needed to be scrutinised very carefully before being accepted by me. I was not at all persuaded that the mother was a witness of truth on all aspects of her evidence about family violence in this case and that I needed to search for more reliable objective evidence before accepting the mother’s versions of those events.
Section 60CC(3)(c) invited consideration of the extent to which each parent has taken or failed to take the opportunity –
(i)to participate in making decisions about major long-term issues in relation to the children;
(ii)to spend time with the children; and
(iii)to communicate with the children.
It is fair to say that the mother has performed admirably on each element of this subsection. The eldest child is very involved in sports in respect of which the mother provides very significant support. She is equally involved with the daughter. The same cannot be said of the father, although the father has had, and presently enjoys, a very favourable relationship with the youngest child.
Issues about maintenance were not raised in the evidence in relation to s 60CC(3)(ca).
Section 60CC(3)(d) invited a consideration of the likely effect of any changes in the children’s circumstances including the likely effect on the child of any separation from either parent or any other person. The orders proposed relate mainly to time the father will have with the children. There will be very little change that the orders orchestrate compared to arrangements that currently exist.
Section 60CC(3)(e) invited consideration of the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis. The family consultant observed that both parents live in the same capital city so no issue arose. Instead the family consultant reported that the relevant issues related to the need for duplicate sets of school uniforms at each parent’s house. The family consultant urged the parents to work collaboratively to find a solution. No counsel addressed me on this issue and no party has proposed an order that addressed the issue raised by the family consultant. One would hope it goes without saying that the parents will do as the family consultant recommended.
Section 60CC(3)(f) invited consideration of the capacity of each parent to provide for the needs of the children including their emotional and intellectual needs. The family consultant recommended that the mother detach emotionally from the children. The father is not providing for the emotional needs of his son. The family consultant stated that both parents have much to offer the children.[88] Ms B also stated that both parents have shown insight and progress following their completion of parenting courses.
[88] Paragraph 146 of her first report.
Section 60CC(3)(g) invited consideration of the maturity, sex, lifestyle and background of the children and of the parents. The children were as previously described in age. They seem appropriately mature, although the event of mid-2022 revealed the eldest to be capable of violent outbursts. No evidence existed that the daughter was of a violent propensity.
Section 60CC(3)(h) was not relevant.
Section 60CC(3)(i) invited consideration of each parent’s attitude to the children and to the responsibilities of parenthood. The mother revealed a developed understanding of the responsibilities of parenthood. Equally, aside from the clash in mid-2022, so did the father. The family consultant was of the view that both parents demonstrated a committed serious attitude towards parenthood.[89] That accorded with my assessment.
[89] Paragraph 156 of the family consultant’s first report.
Sections 60CC(3)(j) and (k) relate to family violence, the relevant details about which have been narrated at length above.
Section 60CC(3)(l) invited consideration of 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 children.
It is of the first and highest priority to bring the war between the parents in this case to an end. Only then might the children have some chance of achieving an end to the trauma they have endured. The family consultant expressed a similar view. Whether the eldest child will reconnect with his father is a question only time can answer.
It is possible to now express certain conclusions that must necessarily be reached to determine the parenting aspect of this litigation.
CONCLUSIONS ON PARENTING
In my judgment it is in the best interests of the children for both parents to have equal shared parental responsibility for the children. The order proposed by the mother will in all practical respects become an order for sole parental responsibility because it is highly likely – dare I say the probability is higher than reasonably foreseeable – that the parents will argue then disagree over something thus invoking the mother’s proposal such that the mother acquires sole parental responsibility. I take the view that both parents are good parents with deep care and concern for their children. It would be wrong and contrary to the best interests of the children to shut out the father from being involved in matters of parental responsibility. The mere fact that the presumption in s 61DA has been rebutted does not mean I am divested of power to make an order for equal shared parental responsibility if persuaded that the making of such an order is in the best interests of the children. I take the view that an order for equal shared parental responsibility is in the best interests of the children.
So far as time for the father is concerned, the evidence points in one direction in my view, namely –
(a)in relation to the eldest child, to have time with the father in accordance with the wishes of the eldest child; and
(b)in relation to the youngest child, for the father’s time with her to be increased from three nights to four.
Any thinking that the daughter cannot cope with more than three nights is devoid of logic. The family consultant in her first report recommended five nights, then retreated to three for the most unsatisfactory reason that the mother might not be satisfied with an order for five nights. Whether the mother is unhappy with four or five nights is wholly irrelevant. The issue is whether four or five nights is in the best interests of the youngest child. I am persuaded that four is.
The father invited me to make an order for the father to have a prescribed amount of time with the eldest child so that, by such an order being made, the eldest child knows he is part of his family. I decline to do that. Any such order if made is likely to provoke enforcement. Further, the evidence of the family consultant was not in favour of such an order.
In those circumstances, I make orders for equal shared parental responsibility for the children in favour of both parents. I order the father’s time with the eldest to be in accordance with the eldest child’s wishes. I order the father’s time with the youngest to increase from three to four nights. Otherwise, I make orders in relation to parenting orders as recited in the first few pages of these reasons.
SECTION 79 APPLICATION IN RESPECT OF PROPERTY
The parties’ statement of assets and liabilities (colloquially but incorrectly called their “balance sheet”) identified the parties’ known assets to be around $4m. The details were as follows[90] –
[90] These were taken from agreed exhibit 1.
Ownership Description Husband’s value Wife’s value ASSETS 1 J F Street, Suburb G NSW 4,500,000 4,500,000 2 J WBC Classic Plus bank account …11 586 586 3 J NAB bank account …39 Nil Nil 4 H WBC, Westpac Choice …90 28,151 28,151 5 H WBC, Westpac Choice … Nil Nil 6 H T Bank account …93 (USD $4,503 @ 1.5473 = AUD $6,967 6,967 6,967 7 H WBC, Westpac Choice bank account …75 2,986 2,986 8 W WBC, Westpac Choice bank account …43 41,146 41,146 9 H Westpac Equities share portfolio account …63 32,339 32,339 10 H N Pty Ltd share portfolio 379 379 11 H P Trade Account share account, comprising remaining Q Bank shares 117,930 117,930 12 H O Pty Ltd Managed Fund 27,425 27,425 13 H N Pty Ltd investment – Westpac Balance Growth Fund 21,933 21,933 14 H Motor Vehicle 2 E14,500 E14,500 15 H & W Shares held by parties in private corporate trustee company, H Pty Ltd (5 of 10 Ordinary Shares held by each of the Husband and Wife – nil value as corporate trustee only) 0 N/K 16 H Husband’s remaining Q Bank and Q Bank Incentive Scheme 4,708 4,708 17 W Motor Vehicle 1 (registration number …) E52,850 E52,850 18 W Wife’s jewellery 0 0 19 J Furniture & contents at Suburb G property 5000 5000 20 H Furniture & contents in Husband’s possession 5000 5000 21 W Shares held in M Pty Ltd Awaiting disclosure from wife 22 W Funds held in Nicole Evans Lawyers Trust Account 159,738 23 H Funds held in Barkus Doolan Winning Trust Account 99,885 24 Total $5,121,523 $4,982,646 K FAMILY TRUST (H PTY LTD AS CORPORATE TRUSTEE) 25 J Cash at NAB account ending …88 Nil Nil 26 J … ordinary shares held in J Pty Ltd Nil N/K 27 J … ordinary shares held in L Pty Ltd N/K (to be sold) N/K 28 Total $N/K $N/K Asset Total $N/K $N/K ADDBACKS 29 H Marital funds expended by Husband (including those paid to U Lawyers in relation to the Husband’s Criminal Defence - $115,982) Addback not conceded $447,528 30 W Marital funds expended by Wife post separation, including for paid legal fees N/K Total $N/K $N/K LIABILTIES 31 J NAB Ltd Home Loan account BSB … Account No. …84; 888,159 888,159 32 H V Bank credit card …94 (US $0) 12 12 33 H W Financial Services MasterCard …96 Nil Nil 34 H Z Pty Ltd credit card 6,198 6,198 35 H NAB CC Pty Ltd Rewards …14 1,192 1,192 36 W WBC Low Fee Mastercard …83 1,843 1,843 37 H WBC MasterCard 4,297 4,297 38 J NAB credit card …40 2,384
(as at 23/09/22)3,535 Total $ 904, 084 $ 905, 235 SUPERANNUATION Member Name of Fund Type of Interest Husband’s value Wife’s value 39 H Superannuation Fund 2 Accumulation 374,945 374,945 40 H Superannuation Fund 3 Accumulation 17,492 17,492 41 H Superannuation Fund 4 Accumulation 34,271 34,271 42 W Superannuation Fund 1 Accumulation 89,295 89,295 Total $ 516,003 $ 516,003 FINANCIAL RESOURCES Ownership Description Husband’s value Wife’s value 43 H BB Pty (deferred entitlement not yet vested with vesting dates over next 7 years) E62,139 NK 44 J Anticipated capital losses carried forward as a result of J Pty Ltd investment NK 290,341 Total $ E62,139 $ 290,341 NETT TOTAL ASSETS (including superannuation) $ 4,733,442
Before addressing those items in detail, it is utile to record that certain amounts were disputed, certain statutory elements calling for consideration were disputed and in the overall, the percentage by which each party urged me to divide the net assets was also disputed.
The wife is vocationally qualified as a finance professional. The husband is vocationally qualified in aspects of financial services.
Counsel for the wife argued that while the parties were together and post separation, the parties’ contributions were equal.[91] However, he said that by reason of s 75(2) factors a further 10% was appropriately added in her favour rendering, so the wife said, a just and equitable adjustment of property interests in her favour at 60% with 40% being allocated to the husband.
[91] Transcript 8 November 2022 T 4 L 2.
Conversely, the husband contended that a just and equitable adjustment of property interests in his favour was 60% to him and 40% to the wife. Mr Dura for the husband submitted that the husband’s receipt of almost $1m by way of inheritance in the period approximately five years prior to separation represented nearly 25% of the value of the pool and therefore the percentage division for which he contended was a just and equitable resolution of the s 79 application was 60% in favour of the husband.
In issue was the wife’s earning capacity and in particular, whether her modest income needed to be carefully scrutinised in view of her qualifications that might have enabled her to derive a vastly more substantial income. The husband disputed that he reached an agreement with the wife that she would not work to a standard commensurate with the earning capacity of a finance professional.
An issue also existed about the ongoing payment of private school fees for the children, anticipated (for two) to be in the vicinity of $100,000 per annum.[92]
[92] Transcript 8 November 2022 T 13.
Counsel for both the wife and the husband did not contend that contributions generally should be otherwise than equal.
In cross-examination of the wife Mr Dura established that the wife’s average weekly income over a period of 12 months preceding the trial was $997.[93] She said she was being “helped out” (her words) with her legal fees of approximately $160,000.[94] She said a weekly sum of $718 also comes into her household.[95] She admitted she did not reveal her taxable earnings for the 2021 financial year.
[93] Transcript 8 November 2022 T 34.
[94] Transcript 8 November 2022 T 35.
[95] Transcript 8 November 2022 T 36.
Despite her status as a finance professional, the wife said in cross-examination she had one client in 2021 and two clients between early and mid-2022 financial year.[96] The clients were DD Organisation (“DD Organisation”) and EE Company (“EE Company”). After stating that she anticipated devoting 40 hours over two months in late 2022 to DD Organisation,[97] she refused to provide Mr Dura with the average of her total hours worked with DD Organisation and EE Company on a consistent basis.[98] She rejected out of hand Mr Dura’s suggestion that she had capacity to work as many or as few hours as she chose.[99] She then volunteered a response that she only had “capacity within my children’s activities” (her words). She was asked whether she could give a range of times when the children return to her care. She said there was no range.
[96] Transcript 8 November 2022 T 40.
[97] Ibid.
[98] Transcript 8 November 2022 T 43.
[99] Transcript 8 November 2022 T 42 L 19.
Her responses to questions put by Mr Dura about her capacity to do more paid work than she presently does revealed that she was at the children’s disposal prior to school most school term days as well as after school most term days. That was her choosing. Prior to the parties separating in 2020, there seemed to be no evidence of any dissatisfaction in the wife undertaking so many of the children’s activities before and after school. In opening for the husband, Mr Dura admitted[100] that the husband acquiesced in that arrangement but, so Mr Dura said, once the wife indicated an intention to not maintain a particular level of employment, there was little the husband could do. That may be correct. However, Mr Dura did not take me to any authority binding on me to the effect that the wife was required to attend to paid employment ahead of attending to her assisting in the children’s activities before and after school.
[100] Transcript 8 November 2022 T 21 L 38.
I accept that the wife has devoted herself to the care of the children throughout their lives. I also accept that she works concurrently earning a modest amount of $73 per hour for DD Organisation and $70 per hour for EE Company. I also accept her evidence that very little scope presented itself for her to work beyond the hours she has done and currently works. When she said “so I am flat chat the whole time”,[101] no evidence to the contrary suggested otherwise.
[101] Transcript 8 November 2022 T 46 L 3.
Mr Dura opened on the basis that the husband denied the existence of any agreement pursuant to which the wife would not pursue her career. In cross-examination of the wife Mr Dura extracted the wife’s admission[102] that she gave no evidence about discussions involving the husband concerning her career. She said –
“It was always decided that I would be – [Mr Levandi] would be the main earner. He was the one who was doing astronomical hours. He was [a finance professional]. He was never home.”[103]
[102] Transcript 8 November 2022 T 49 L10.
[103] Transcript 8 November 2022 T 48 L 46 – T 49 L1-2.
Mr Dura did not confront the wife with a direct challenge to that statement. He did not say that on a given date the husband and the wife discussed the issue of her working hours and that she would return to work by a particular date generating a particular level of income. It was not surprising that there was no cross-examination of the mother along those lines. One reason for the absence of questioning involving puttage to that effect is that no such conversation occurred. Another reason might be that in happier times, the husband was perfectly willing for the mother to attend to so many extra-curricular activities for the children because her activities assisted in the beneficial upbringing of the children and it enabled him to generate the income he generated.
It was not explained to me how, in arithmetical terms, any return by the wife to the workforce performing the role of a finance professional would have altered the financial position of the parties. For example, counsel for the father did not rely on evidence to the effect that the wife could have generated income of, say, $200,000 per annum over 15 years had she remained gainfully employed in a firm. Nor was evidence adduced of the cost the parties would have incurred in meeting all expenses associated with the children’s attendances at extra-curricular activities, especially the eldest child’s sports if those tasks had been done by a person other than the mother. Further, even if I concluded, contrary to the wife’s evidence, that she did in fact have capacity for extra paid work, it would have been dangerous for me to have attributed a dollar amount to that activity or to conclude that a particular dollar amount had been foregone by the wife’s undertaking pre and post school activities for the children. It must be remembered that principles of damages well known to the common law in cases of tort have no application to family law litigation under s 79 of the Family Law Act. Hence, it would be thoroughly erroneous if I were to make some calculation about income lost by reason of the wife performing activities for the children as if I were applying a tortious measure of damages in respect of a plaintiff’s income lost by reason of the commission of the tort.
In my view, no useful purpose is served by attempting to ascribe a figure for income not earned by the wife on account of her attending to the children’s pre and post school activities.
The payment of school fees was an issue of considerable significance. Those fees were $93,703 per annum, according to the wife.[104] That equated to $1800 per week. The wife said that she would find it “really tough” (her words)[105] to meet $50,000 per annum in school fees. She said that in the five years prior to their separation the parties paid the children’s school fees by drawing from their offset account.[106] She said she paid for incidentals of which she gave as examples costs associated with school camps and school uniforms.
[104] Paragraph 260 of her affidavit made 13 October 2022 and T 50.
[105] Transcript 8 November 2022 T 54 L 19.
[106] Transcript 8 November 2022 T 54 L 24.
Counsel for the ICL elicited evidence from the wife that the wife had investigated significantly less expensive private schools for the children, possibly up to half the cost of the children’s current schools.[107]
[107] Transcript 9 November 2022 T 151 – t 152.
The capacity of the parties to afford the children’s existing school fees was very much in issue. Both said the fees were substantial. On behalf of the wife Mr Gardiner cross-examined the husband about his receipt of a bonus in this financial year in the sum of $76,212.[108] The husband also said in late 2022 he received a bonus of $128,515 before tax.[109]
[108] Transcript 9 November 2022 T 184 L 21 and exhibit A5.
[109] Transcript 9 November 2022 T 194 L 41.
The husband gave evidence that the children would find it difficult to change schools. Embedded in Mr Gardiner’s questioning about the husband’s receipt of bonuses coupled with the difficulty the children will encounter upon moving schools and the mother’s evidence that generating $50,000 for school fees would be difficult was the contention that the father should be solely responsible for ongoing school fees. In happier times, the parents chose to send their children to expensive private schools. It seems that their choice in so doing orchestrated at least some financial hardship because funds to meet the school fees came from borrowings or accumulated capital reserves. But, as already mentioned, in happier times the parents were willing to do that. In the process the children became accustomed to their school lives at their respective schools. Each seems to be progressing well. Then the parents’ marriage collapsed. Why should the children’s education be compromised? Both parents seem to want the best for their children. Moving them from an established environment at the children’s respective schools is not consistent with that. Of course, the privilege of extremely high quality private school education in Australia is predicated on the parents’ financial ability to meet the fees commanded by those schools. The son is likely to be associated with no more than three more years of those fees and the daughter five.
Can the parents jointly afford the fees? Once final property orders are made the former matrimonial home must be sold. That will generate a particular sum once a nett figure is produced. From that the parents must acquire alternative housing. Depending on where they each buy, there may be little left from the nett sum each receives. Thereafter, the wife will continue to earn her modest income and the husband will continue to earn the income he generates, plus whatever bonus amounts to which he becomes entitled. Even recognising that the husband already pays a significant amount by way of expenses for the benefit of the children, it is readily apparent that the wife is likely to encounter considerable if not insuperable financial difficulty in meeting an annual payment in respect of school fees of $50,000 or thereabouts. Conversely, there is at least a twinge of credibility in Mr Gardiner’s submission that in bonuses alone, the husband could afford to meet those fees.
It must not be overlooked that for some time the fees for the children’s schooling were met from the parties’ offset account, that is to say, from joint funds. The wife seeks property orders dividing the parties’ net assets as to 60% in her favour and she additionally seeks orders requiring the father to meet the children’s school fees solely from his own sources. The wife says he can do that if one looks no further than bonuses he received.
In debate I raised with the mother the impossibility of the children remaining in expensive private schools if the parents are unable to afford the fees. Her answer revealed to me that she had given the matter next to no earnest consideration. That view has been reinforced by the mother’s answer to questions put by counsel for the ICL because the mother had not meaningfully investigated alternate schools beyond recognising that some she mentioned were less expensive than are the schools the children presently attend. On the wife’s analysis, she works modest hours thereby generating a very modest income, she wants 60% of the net pool and she wants the husband to pay very expensive school fees into the future plus the majority of the expenses associated with the children’s extra-curricular activities.
As for the mother’s contention that the father somehow procured the failed investment in J Pty Ltd, I do not accept that contention. The parties made a joint decision to invest in each tranche, the majority of which documentation bore the wife’s signature revealing her assent to the investment.[110] The wife did not assert duress or any form of conduct by the husband by which her consent could be said to have been vitiated. The investment was not profitable. Funds for the investment in each tranche emanated from the inheritance derived by the husband from the estate of his late mother. It must not be forgotten that marriage is an economic partnership in which parties share the good as well as the bad, as I surveyed at length in Cao & Trong[111] and the cases there mentioned, especially Johnson v Johnson[112] and Trustee of the Property of Lemnos v Lemnos.[113]
[110] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165.
[111] [2022] FedCFamC1F 754.
[112] (1999) 26 Fam LR 475.
[113] (2009) 41 Fam LR 120.
So far as the s 75(2) adjustment urged by the wife was concerned (representing an additional 10% from an equal division based on contributions) Mr Gardiner submitted that it was premised on the disparity of the parties’ income. Mr Dura strongly resisted that component of the wife’s case because he (Mr Dura) said the disparity was of her own choosing in electing to work on such a truncated basis deriving such a modest income ($70 per hour of EE Company and $73 per hour for DD Organisation).
Mr Gardiner submitted that the husband’s income was between $400,000 and $500,000, being approximately $320,000 plus other bonuses of over $50,000 and a year later $76,212. Mr Gardiner submitted that the wife earns between $5,000 and $10,000 per annum. Mr Gardiner said that I could “comfortably” (his word) find an additional 10% bringing the division to 60% in the wife’s favour.
Pausing there, the selection of a 10% addition based on disparity of income seems to have been without science or arithmetical substantiation, representing something akin to an ambit claim. There is no parallel at all between the wife’s historical earnings and the husband’s as hers was $10,000 per annum whereas his has been in the vicinity of $400,000 to $500,000. Even if the wife had a fundamental change of heart and she chose to work full-time henceforth at, say, a major international a firm, no evidence existed that she could command income even approximating the husband’s income. That said, the parties are relatively young and the husband’s capacity to earn large sums is significantly greater than is the wife’s. There is force in Mr Gardiner’s submission that a 10% adjustment is appropriate.
I accept that the wife personally meets certain of the children’s non-tuition based outgoings, most of which are associated with the children’s sporting pursuits. The wife also said in evidence that if she were forced to meet $50,000 annually for school fees it would be difficult.
Both parties accepted that the former matrimonial home will need to be sold.
Pausing there, certain threads or reasoning may be drawn together. First, the parties began their relationship with no particularly noteworhty contributions by either. They were together for 15 years in circumstances where the father earned large sums and the mother stayed at home attending to family-related matters. The parties chose that arrangement. For most of the parties’ marriage that arrangement worked well. In the process the wife chose to forgo her potential of earning significant sums as a finance professional and the husband chose to devote himself to his work. Fifteen years later their earning capacities were very different. To my way of thinking it would not be just and equitable to ignore that disparity in income.
So, if one proceeds (as one must) on the basis that their financial and non-financial contributions were essentially equal for the life of the marriage, two points of importance emerged after separation. First, the husband derived a substantial inheritance warranting recognition, the percentage of 10% being an appropriate adjustment in his favour. The second was the mother’s inferior earning capacity warranting a 10% adjustment in her favour. In other words, from a position of equality to each (that is to say the recognition of equality in financial and non-financial contributions during the marriage) each was entitled to a further 10% on top thereof. In arithmetical terms that would render the percentage 60% each, a mathematical impossibility. To my mind, that is the same as recognising that their financial and non-financial contributions during the marriage were equal and that a 10% adjustment for the husband on account of the inheritance should be made, but also a 10% adjustment for the wife should be made in respect of s 75(2) considerations. In practical terms the net effect is the same, an equal division of assets.
On behalf of the husband Mr Dura addressed on certain items on the parties’ agreed list of assets and liabilities. In respect of item 21, described as shares held in M Pty Ltd, no amount was identified, which Mr Dura submitted was unsurprising and no dollar amount was suggested that I find. That corresponded to there being no evidence to support a finding of a value of the shareholding in M Pty Ltd.
So far as item 22 was concerned, being $159,738 described as “funds held in Nicole Evans Lawyers Trust Account”, Mr Dura said that was the sum described by the wife as $160,000 obtained from a friend to pay legal fees. Mr Dura said there was no reason why that sum ought not be treated as property.
There was very little in the way of evidence about the source of that amount and whether it took the form of a gift from the donor or whether it took the form of a loan repayable without interest at the end of this trial. Mr Dura urged me to treat it as the property of the parties. I agree.
Item 29 was also an expenditure related to legal fees, although the magnitude was vastly greater. The overall sum was $447,528 of which $115,982 was said to be referrable to the husband’s criminal proceeding. That sum was said by Mr Gardiner to be best treated as an add-back. Mr Dura resisted any such treatment of any component of the amount of $447,528 as an add-back.
So far as item 29 was concerned, those funds were applied post-separation.
Several things must be said of add-backs.
First their treatment as add-back’s has been the subject of recent intermediate appellate authority the substance of which is that add-backs are to be characterised as add-backs in exceptional circumstances.[114]
[114] Alston & Alston [2021] FedCFamC1A 96, Trevi v Trevi [2018] FamCAFC 173 and In the Marriage of Omacini (2005) 33 Fam LR 134.
Second, a party is entitled to spend, post-separation, funds as he or she chooses in meeting living expenses.
Third, it is not logically consistent nor is it rationally maintainable to treat the legal fees in item 22 differently than the legal fees in item 29. Each should be treated in the same manner. If item 22 is properly understood as being property of the parties or one or other of them, so too should the amounts in item 29. Mr Dura submitted that the funds were obtained subsequent to separation and were used, at least in part, to meet living expenses, the balance being presently held in trust being recorded in item 23 ($99,885).
There is merit in that submission and I propose to address the amounts in items 22, 23 and 29 in identical terms, namely as property.
Mr Dura challenged Mr Gardiner’s assertion that the funds invested in J Pty Ltd were lost. Mr Dura said there was no evidence to support that submission. Mr Dura argued that the company is not in liquidation, there was no cross-examination about it and the wife makes no application in the latest iteration of her amended initiating application for all legal and beneficial interests in the company to pass to either party.
Mr Dura agreed that the relationship was of the order of 15 years’ duration in respect of which neither party brought any significant initial contributions. By choice, the parties adopted roles pursuant to which the husband was the primary earner and the wife was the primary homemaker.[115]
[115] Transcript 24 November 2022 T 323 L 21 – L 22.
The inheritance received by the husband upon the passing of his mother (a little over $960,000) was deposited into the parties’ joint account in reduction of their mortgage liability and some was applied in investments, including the investment in J Pty Ltd. That was important, according to Mr Dura, because he said the inheritance contributed by the husband offset any post-separation contributions made by the wife. In his opening Mr Dura stated that the inheritance of about $960,000, when factored into a property pool of $4.7 million or thereabouts was almost 25% (probably nearer 20% – but nevertheless large). The wife’s post-separation contributions did not remotely approximate that amount, even recognising that in Jabour v Jabour[116] it was held that all the myriad of contributions must be taken into account.
[116] (2019) 59 Fam LR 475.
Quantifying the wife’s post-separation contributions is not an especially straightforward task. It was true that the wife gave evidence that she had met certain expenses relating to the children from her own income and resources. But her income has been extremely small, totalling annually somewhere between $5,000 and$10,000, at its highest, that is to say in an amount less than 10% of the school fees which run at more than $90,000 per annum.
But the husband pays $2875 in child support and, on the evidence, he has done so faithfully.
Mr Dura pointed out that when the relevant amounts are taken from financial statements, the wife’s assertions that she meets expenses without the husband’s assistance, total $25,700.[117] Mr Dura submitted that the wife receives in child support alone an annual sum of $34,000, which is more than the $25,700 she said she spends by way of expenses relating to the children.
[117] Transcript 24 November 2022 T 324 L 35.
Accepting that a discrepancy exists in the earnings of both parties, I take the view that the 10% addition sought by the wife grounded in s 75(2) is just and equitable.
The wife no longer pursues a superannuation splitting order, as is evident from her latest iteration of her further amended initiating application.
However, the husband sought orders for the equalisation of superannuation. The total of the parties’ superannuation is $516,000 (in approximate terms) $90,000 being the wife’s and $426,000 being the husband’s.[118] According to Mr Dura, s 90XT was the source of power to engage in the process of equalisation of superannuation. Its effect would be to ensure parity of having distributions of superannuation as well as non-superannuation assets. Procedural fairness to the trustee had already been given.
[118] Transcript 24 November 2022 T 327.
So far as the wife’s application for a child support departure order was concerned, Mr Dura informed me that his client has agreed to be responsible for half of the children’s school fees, not all, because (so Mr Dura said) the husband does not have the capacity to meet 100% of the private school fees. I confess to finding that submission difficult to accept. He could meet the fees from bonuses.
Mr Dura submitted that the former matrimonial home is to be sold, by agreement. From that the wife will acquire a capital sum from which she will need to purchase a new home. Mr Dura submitted I should make no order about compelling the father to pay 100% (or for that matter any percentage) of the private school fees so the parents, if they wish, can each meet half the schooling expenses from their own capital reserves.
It was once said in the English cases that pre-dated Pettitt v Pettitt[119] that equity is equality and on that concept such a submission might be attractive. But that is not the law in Australia. Property orders under s 79 must be just and equitable. I am unable to reach the conclusion that it is just and equitable to compel the wife, whose income at best is $10,000 per annum, to meet even half of the $100,000 required annually to keep the children in the school both parents once selected. To my mind, the departure order sought by the wife in respect of school fees must be ordered.
[119] [1970] AC 777.
It is now necessary to round off my conclusions about the manner in which the s 79 application is to be determined.
I agree that the parties entered their relationship making no particularly significant contributions. Over their relationship they arranged their respective roles by agreement, pursuant to which the father was to be the main earner and the mother was to be the main parent in respect of children-related issues. After 15 years or thereabouts their relationship broke down. Over the life of the relationship, when it was intact, the contributions of each were largely equal. The wife worked earning a modest amount but undertook the overwhelming majority of tasks associated with the children.
About five years prior to separation the husband received about $960,000 by way of inheritance. That sum was applied in reduction of the mortgage and in certain speculative investments.
Pausing there, if one proceeds, as one must, with the parties being on an equal footing at the commencement of the relationship, with equality of contributions thereafter for at least 10 years then a very large inheritance emerging through the husband, there is validity in Mr Dura’s submission that the husband’s contributions in the overall should be recognised as being greater. The sum of nearly $1 million when measured against a pool of over $4 million was in the order of 20% to 25%. That would entitle me, in the exercise of my discretion, to conclude that in the overall, a 10% addition in the husband’s favour to the equality position was warranted. In my view Mr Dura’s contentions are correct. I also accept that the wife is entitled to 10% above the equality position by reason of there being a disparity in income.
The husband’s inheritance represented a significant contribution to the marriage, in the order of between 20% and 25% of the value of the pool of assets. The inheritance was applied to joint purposes, namely the reduction of the mortgage debt then investment in what the parties hoped would be a sound, prudent and remunerative investment. As it transpired the evidence about the success or failure of the investment was equivocal. The target of the investment is still active or at least not in liquidation.
As for the private school fees, it is appropriate to make the child support departure order the wife sought.
I make orders on property issues as set out above.
I certify that the preceding two hundred and six (206) numbered paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson. Associate:
Dated: 10 March 2023
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