Lokare & Baum - [2019] FamCA 196

FAMILY COURT OF AUSTRALIA

LOKARE & BAUM

[2019] FamCA 196

FAMILY LAW – CHILDREN – Application for final parenting orders – Where the father seeks orders that the parties have shared parental responsibility – Where the father seeks orders that the child spend equal time between the mother and himself – Where the mother seeks orders that she have sole parental responsibility for the child – Where the mother seeks orders that the child live with her and spend graduating time with the father – Where the Independent Children’s Lawyer seeks orders that the mother have sole parental responsibility for the child, except with regard to her Aboriginal culture and development – Where the Independent Children’s Lawyer seeks orders that the child live with the mother and spend graduating time with the father – Where the mother has been the child’s primary carer since her birth – Where the degree to which the father has sought to maintain a relationship with the child is disputed – Where the father asserts that the mother has failed to encourage the child’s relationship with him – Where the child is Aboriginal, as through the father’s L bloodline – Where the father asserts that the mother has failed to encourage the child’s Aboriginal cultural development and identity – Court finds that the mother has supported the child’s relationship with the father – Court finds that the mother has encouraged the child’s Aboriginal cultural development and identity – Court orders that the mother have sole parental responsibility for the child, except in relation to her Aboriginal culture and development, the responsibility for which the parties shall share – Court orders that the child live with the mother and spend graduating time with the father.

FAMILY LAW – PROPERTY – De facto relationship –Where the parties seek property settlement orders pursuant to s 90SM of the Act – Where the husband seeks an order that his superannuation be allocated to him – Where the wife seeks orders that real estate be sold – Where the wife seeks orders that she receive 80 per cent of the proceeds of that sale, as well as certain lump sums in respect of, what the wife contends is joint property, that has been expended by the husband to date and costs orders that have been made against the husband to date – Where the wife seeks an order for lump sum child support – Where the Court finds that the wife made significant financial and non-financial contributions throughout the parties’ relationship and following separation – Where the mother continues to be the child’s primary carer – Orders made for the sale of real property – Orders made for the wife to receive 72.5 per cent of the sale proceeds, after payment of the mortgage and a debt of the parties to her parents – Orders made for the husband to pay sums referable to cost orders previously made in favour of the wife – Orders for a sum to be added back in circumstances where the husband expended that joint property on legal fees.

Child Support (Assessment) Act 1989 (Cth) ss. 116, 123(3), 123A
Evidence Act 1995 (Cth) ss. 76, 79
Family Law Act 1975 (Cth) ss. 43(1)(c), 60B, 60CA, 60CB, 60CC, 61DA, 61F, 65DAA, 65DAC, 90SF(3), 90SM

Family Law Rules 2004 rr. 13.01(1), 13.04(1)(a)

Bevan & Bevan (2013) FLC 93-545
Briese and Briese (1986) FLC 91-713
Child Support Registrar & Nixon (2007) 36 Fam LR 571
Chorn & Hopkins (2004) FLC 93-204
DJM & JLM (1998) FLC 92-816
Dundas & Blake (2013) FLC 93-552
Farnell & Farnell (1996) FLC 92-681
Harris & Ellis [2011] FamCAFC 90
Hartnett & Baker (1995) FLC 92-620
In the marriage of Little (1990) FLC 92 147
Mayne & Mayne (2011) FLC 93-479
Mazorski & Albright (2007) 37 Fam LR 518
Omacini & Omacini [2005] FLC 93-218
Petruski & Balewa [2013] FamCAFC 15
Phillips & Phillips (2002) FLC 93-104
Seymour & Seymour [2011] FamCAFC 97
Sigley v Evor (2011) 44 Fam LR 439
Stanford & Stanford (2012) 247 CLR 108
Stoddard & Glover [2016] FamCA 674
Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)
Trevi & Trevi [2018] FamCAFC 173
VR & RR (2002) FLC 93-099
Yewen & Child Support Registrar & Anor [2014] FCCA 2399
Zdravkovic & Zdravkovic (1982) FLC 91-220

APPLICANT:

Mr Lokare

RESPONDENT:

Ms Baum

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

DNC

2013

DATE DELIVERED:

12 March 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

3 - 7 December 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self-represented

COUNSEL FOR THE RESPONDENT:

Mr Fowler

SOLICITOR FOR THE RESPONDENT:

Corbett Jessop Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Shea

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

Parenting orders

By consent, all previous parenting orders in relation to the child, Z, born … 2011 (“the child”), be discharged.
The mother have sole parental responsibility in relation to all major long-term issues concerning the child, except her Aboriginal culture and development.
By consent, the parties have shared parental responsibility relating to decisions regarding the child’s Aboriginal culture and development, NOTING that both parents acknowledge that as the child’s Aboriginal parent it is the father’s cultural responsibility to provide for her upbringing and education as an L child.
By consent, in exercising sole parental responsibility pursuant to order 2 herein:
(a)The mother shall notify the father, in a timely manner, in writing prior to making any major long-term decision in relation to the child;
(b)The mother shall take into account any views expressed by the father in relation to that decision, provided such views are communicated to the mother in a timely manner;
(c)The mother shall make a genuine effort to reach agreement with the father; and
(d)The mother shall notify the father in writing as soon as practicable after making the final decision.
The child live with the mother.
By consent, while the father resides in Sydney, the child shall spend time with the father as follows (unless otherwise agreed between the parties):
(a)During school terms:
(i)From the conclusion of school until 6.00 pm each Tuesday and Thursday; and
(ii)On each alternate weekend from 10.00 am to 6.00 pm on Saturday and from 10.00 am to 6.00 pm on Sunday, with such time to extend from 10.00 am on Saturday until 6.00 pm on Sunday when both parents agree that the child is ready to spend overnight time with the father;
(b)During the Term 1, 2 and 3 school holiday periods, on seven (7) consecutive days from 10.00 am until 6.00 pm each day, commencing on the second Saturday of the school holiday period and concluding on the following Friday, with such time to include overnight periods when both parents, acting reasonably, agree that the child is ready to spend overnight time with the father;
(c)During the Term 4 school holiday period, as agreed between the parents in writing, and failing agreement, three (3) blocks of four (4) consecutive days, being Monday, Tuesday, Wednesday and Thursday in each of the last three (3) weeks of the school holiday period, from 10.00 am to 6.00 pm on each of those days, with such time to include overnight periods when both parents, acting reasonably, agree that the child is ready to spend overnight time with the father;
(d)At other times as agreed between the parents, with the mother to accommodate all requests for the father to spend time with the child in Sydney for the purpose of participating in cultural activities and events and spending time with visiting family members, provided that the father gives the mother reasonable notice of such requests, and that the events do not fall during school hours; and
(e)School holiday time between the child and the father shall not occur in accordance with orders 6(b) and 6(c), unless the father confirms in writing to the mother that he intends to exercise that time, and the dates on which he intends to exercise time, at least 28 days prior to the commencement of the relevant school holiday period.
From 1 August 2019, during one of the seven (7) day periods referred to in order 6(b) herein, each year:
(a)By consent, the father may elect to spend the time with the child in the Northern Territory;
(b)By consent, the father shall give the mother at least four (4) months’ notice in writing of such election, including the precise dates during the seven (7) day period on which he proposes to spend time with the child in the Northern Territory and the town or city in which he proposes to spend such time;
(c)By consent, provided the mother receives notice of the father’s election in accordance with order 7(b) herein, the mother shall travel to the Northern Territory with the child for the purposes of the child spending time with the father in the Northern Territory on the dates nominated by the father;
(d)By consent, the father shall book and pay for the child’s and the mother's return airfares between Sydney and the Northern Territory, and shall provide the mother with the booking confirmation at least two (2) months prior to departure from Sydney and within seven (7) days of the mother receiving the booking confirmation the mother shall reimburse the father for the cost of her airfare;
(e)The father shall book and pay for accommodation of a reasonable standard in the Northern Territory for the child and the mother, and shall provide the mother with a copy of the booking confirmation at least two (2) months prior to the mother and the child’s arrival in the Northern Territory. For the purposes of this order, "reasonable standard" is a standard not less than the standard of a three-star hotel;
(f)By consent, if both parents agree that the child is ready to spend overnight time with the father for the duration of the period referred to in order 7(b) herein, then the child will travel to the Northern Territory with the father and orders 7(c), 7(d) as to booking the mother's airfare, and 7(e) herein will cease to apply; and
(g)By consent, the time that the child spends with the father in the Northern Territory in accordance with this order may extend beyond seven (7) days if such extension is agreed between the parents.
By consent, in the event the father resides outside of the Sydney metropolitan area, the child shall spend time with the father as agreed in writing between the parents.
By consent, during any period of time that the child spends with the father in accordance with these orders, the father is at liberty to arrange for the child to spend time and communicate with members of her extended L family; to participate in cultural events and activities, and to explore and develop her cultural understanding and identity in any manner the father considers appropriate.
For the purpose of changeover that does not otherwise coincide with the conclusion or commencement of the child’s school day, the father shall collect the child from the mother’s place of residence at the commencement of the child’s time with the father and shall return the child to the mother’s place of residence at the conclusion of time.
THE COURT NOTES the following matters in relation to the child’s participation in a smoking ceremony with her L family:
(a)Both parties agree that the smoking ceremony is an important part of the child’s cultural development;
(b)Both parents agree that the smoking ceremony should take place at a time agreed between the parties, but not before 1 August 2019, and not during the months of December, January or February;
(c)The mother agrees that, subject to herself and the maternal grandmother being invited to attend the smoking ceremony, she will facilitate the child’s attendance at the smoking ceremony by taking the child to Darwin, Alice Springs or another location in the Northern Territory nominated by the father in consultation with his L family;
(d)Both parents agree that that it is the father’s responsibility to liaise with his L family in relation to the child’s smoking ceremony, to make the necessary arrangements for the ceremony to take place, and to provide reasonable notice to the mother of the proposed arrangements (reasonable notice being at least three (3) months prior to the event);
(e)Subject to the child’s L family’s approval, the mother and the maternal grandmother are permitted to attend; and
(f)The mother agrees to arrange and pay for transportation for herself, the child and the maternal grandmother to and from the location of the smoking ceremony, subject to the father paying for return airfares for the child and the mother between Sydney and Darwin or Alice Springs, and the father paying for accommodation of a reasonable standard for the child and the mother in Darwin or Alice Springs and (if necessary) at another city or town near the location of the smoking ceremony (if the ceremony is not to take place in Darwin or Alice Springs).
By consent, in the event that the child travels to the Northern Territory for the purposes of the smoking ceremony, that period of time spent with the father and his extended family will replace the one optional period of time in in the Northern Territory provided for in order 7 herein in that particular year.
The mother be permitted to sign passport applications and renewal of passport applications for the child, without the consent of the father, at any time and that passport shall be retained by the mother, once issued.
Pursuant to s 65Y(2)(b) of the Act and subject to order 15 herein, the mother is permitted to remove the child from Australia for the purpose of taking her on holidays.
If the mother proposes to travel overseas for a holiday with the child, the mother shall provide to the father, not less than 14 days prior to the proposed date of departure from Australia, the following:
(a)A copy of the child’s return airline or shipping tickets;
(b)An itinerary for the period of time the child will be out of Australia; and
(c)Telephone or Skype numbers on which the mother and the child can be contacted while out of Australia.
By consent, each party keep the other informed at all times of their current residential address, contact telephone number and email address and any changes to these details.
By consent, each party notify the other as soon as practicable in the event that the child suffers a serious illness or injury, or is hospitalised, whilst in that party’s care.
By consent, each party be, and hereby is, restrained from:
(a)Denigrating the other party or any member of the other party’s family to or in the presence or hearing of the child, or allowing any third party to do so; and
(b)Discussing these proceedings with the child or with anyone else in her presence or hearing.
By consent, each parent is at liberty to liaise directly with the child’s school from time to time, to discuss the child’s educational progress and to receive information regarding the child’s education, including copies of her school reports, general school newsletters and school photograph order forms.
By consent, each party is at liberty to attend events and functions at the child’s school, being events and functions to which parents are generally invited.

Property orders

Within 30 days, the parties do all acts and things and execute all documents as may be required to list for sale and sell the property located as Town B Road, Town B, Northern Territory being the land described in Certificate of Title Volume … Folio … (“the first Town B property”) on the following basis:
(a)The first Town B property shall be listed with such real estate agent as may be agreed upon by the parties (“real estate agent”);
(b)For the purposes of sub-paragraph (a), if the parties have not agreed on the real estate agent within seven (7) days of the date of orders, the Applicant husband (“the husband”) shall, within a further seven (7) days, provide to the Respondent wife (“the wife”)
(c)the names of three (3) real estate agents with whom the husband has no personal connection and who have experience in marketing and selling properties within the general vicinity of the first Town B property, and the wife shall within a further seven (7) days nominate one of those agents whereupon the parties shall appoint the nominated agent as the real estate agent. If the husband fails to comply with his obligations under this order, the wife may select a real estate agent whereupon the parties shall appoint the wife’s selected agent as the real estate agent;
(d)The parties shall do all acts and things and sign all documents as may be required to procure a sale of the first Town B property by either private treaty or public auction as agreed by the parties or failing agreement as recommended by the real estate agent;
(e)In the event that the parties are unable to agree on any issue in relation to the marketing and advertising of the first Town B property, the parties shall accept the recommendations of the real estate agent in that regard;
(f)For the purposes of selling the first Town B property by private treaty, the listing price of the first Town B property shall be that amount agreed upon by the parties. If there is no agreement, in that regard, within 14 days of the date of determination of the real estate agent, the parties shall list the first Town B property for sale at a price as may be recommended by the real estate agent;
(g)If an offer is made to purchase the first Town B property by private treaty and the parties do not agree on whether or not to accept that offer, the parties shall engage a registered real estate valuer to determine the fair market value of the first Town B property. In default of agreement by the parties as to which valuer shall be appointed, within two (2) days of the offer being made, the parties shall engage such valuer as is recommended by the real estate agent on the request of either party (“the valuer”). If the offer made to purchase the first Town B property is not less than the fair market value of the first Town B property, as determined by the valuer, the parties shall accept the offer; and
(h)The reserve price of the first Town B property for any auction sale shall be that amount agreed upon by the parties, and in the absence of agreement by the date which is seven (7) days before the auction date, shall be as recommended by the real estate agent.
The parties do all acts and things and sign all documents as may be required to cause the proceeds of sale of the first Town B property to be applied in the following manner and priority:
(a)Firstly, to pay all reasonable costs, commissions and expenses of the sale;
(b)Secondly, to discharge the mortgage to the Commonwealth Bank of Australia secured over the first Town B property;
(c)Thirdly, to pay $3,000.00 to Mr JJ and Ms KK Baum in repayment of the loan made to the parties by Mr JJ and Ms KK Baum;
(d)Fourthly to pay to the wife the sum of $30,941.68 in adjustment of the parties’ other net assets;
(e)Fifthly, to pay 72.5 per cent of the then remaining balance to the wife;
(f)Sixthly, to pay any outstanding council rates and sewerage service charges, water consumption charges and all other charges, costs and expenses which are payable to the Public Utility or any other authority for water or power services with respect to the first Town B property;
(g)Seventhly, to pay to the wife the sum of $33,705.66 payable by the husband to the wife pursuant to the costs orders made by the Court on 31 January 2017, 3 May 2017 and 22 February 2019, plus interest in respect to those amounts, calculated at the rate prescribed under rule 17.03 of the Family Law Rules 2004 (Cth);
(h)Eighthly, to pay $10,817 to the wife on account of arrears of child support payable by the husband; and
(i)Lastly, to pay the then remaining balance to the husband.

Pending completion of the sale of the first Town B property:
(a)The husband shall pay all instalments pursuant to the mortgage and all insurances, rates, taxes and outgoings of the first Town B property as they fall due;
(b)The husband shall keep the first Town B property in a clean, tidy and well maintained state of repair and cooperate with the real estate agent on the sale, including making the first Town B property available for inspection by potential purchasers at all reasonable times;
(c)The parties hold their respective interests in the first Town B property upon trust pursuant to these orders; and
(d)Neither party shall encumber the first Town B property, nor do any act or thing to cause the balance of the loan currently secured by the mortgage over the first Town B property to be increased, without the consent in writing of the other party.
Within 30 days, the husband shall cause the first Town B property to be presented in a clean, tidy and well maintained state of repair and free of rubbish, debris and other items not included in the sale, save for normal household items, and thereafter keep it in a clean, tidy and well maintained state of repair.
The wife sign such documents as may be required to transfer to the husband, at the expenses of the husband, her title and interest in the motor vehicle.
In the event that either party refuses or neglects to sign any document required to be signed to comply with these orders, the Registrar of the Family Court of Australia is hereby appointed to execute all Deeds and documents in the name of such party and do all acts and things necessary to give validity and operation to this order pursuant to s 106A Family Law Act 1975 (Cth).
That the husband indemnify and keep indemnified the wife from and against all claims, actions, law suits and demands made by the Public Utility or any other relevant authority in relation to water and/or power services provided to the first Town B Property, including out of the proceedings instituted by Public Utility in the Local Court at Darwin in Claim Number … and for any money paid or payable by the wife on account thereof.
The matter be otherwise removed from the active pending cases list.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: DNC 17 of 2013

Mr Lokare

Applicant

And

Ms Baum

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern both parenting and de facto property matters between Mr Mr Lokare and Ms Baum (“the parties”). The parenting proceedings are in relation to the child, Z (“the child”), born in 2011 and currently aged eight years.
The child, by paternal descent, is identified by others and herself as Aboriginal and a member of the L Nation of central Australia. An important issue in these proceedings is the child’s right to enjoy her Aboriginal culture, including with other Aboriginal and L people.
As will be discussed, as a result of having regard to the contributions of the parties and their future needs, I have determined that a 22.5 per cent adjustment of the parties’ property in favour of Ms Baum is appropriate. This is primarily as a result of her contributions made as a homemaker and as a caregiver for the child to date, as well as her future responsibilities, in that respect.
For the purposes of this decision, hereafter and until the commencement of the “Property matters” section, Mr Lokare will be referred to as “the father” and Ms Baum as “the mother. From “Property matters” until the conclusion of the decision, Mr Lokare will be referred to as “the husband” and Ms Baum as “the wife”.

Background

The relevant background facts to this matter and, where disputed, the parties contentions, are as follows.
In 1968, the father was born. He is currently aged 51 years.
In 1977, the mother was born. She is currently aged 41 years.
On 30 August 2003, the parties commenced cohabitation. In his Affidavit material, the father had originally contended that the parties commenced cohabitation in 2005, however, during the course of cross-examination, he conceded that they commenced cohabitation on 30 August 2003.
In February 2004, the father relocated to live at 1 Town B Road, Town B NT (“the first Town B property”), where he lived with Mr F. In March 2004, the mother relocated to live at the first Town B property with the father and Mr F.
On 2 February 2005, Mr F transferred the first Town B property so that it was owned by himself and the parties as joint tenants.
In 2005, the parties and Mr F purchased the property at 2 Town B Road, Town B NT (“the second Town B property”) for approximately $90,000.
In 2006, the parties and Mr F sold the second Town B property for approximately $180,000.
In September 2006, the parties purchased the property at M Street in NT (“the M Street property”) for approximately $335,000. In order to purchase that property, the parties took out a loan from the Commonwealth Bank (“the M Street mortgage”) of $370,400. The parties commenced to live at the M Street property shortly thereafter. The repayments for the M Street mortgage were debited from the father’s account, while the mother was responsible for meeting the other living expenses of the parties.
In July 2007, the parties relocated to Melbourne so that the father could undertake a course and become a professional. During that period, the parties leased out the M Street property. The mother was employed full time as a Manager at E Company.
In 2008, the parties sold the M Street property. The proceeds of that sale were insufficient to discharge the M Street mortgage. The balance of the M Street mortgage is now secured over the first Town B property.
Between 2009 and 2010, the father received a scholarship of $30,000 and commenced to undertake study towards a PhD.
In December 2010, the mother commenced maternity leave.
In 2011, the child was born. The child is currently aged eight years.
In June 2011, the parties relocated with the child to live at the first Town B property.
In June 2011, the mother's parents loaned the parties $3,000 to purchase a trailer.
In August 2011, the mother's parents visited the parties at the first Town B property and helped them to clean that property.
On 28 September 2011, the mother travelled from Darwin to Sydney with the child. At that time, the mother and the child commenced living with the maternal grandparents at Suburb U.
On 29 September 2011, the mother asserts that the parties separated on a final basis.
Between 10 and 14 December 2011, the father travelled to Sydney. The child spent time with the father, in the mother's presence.
Between 1 and 8 January 2012, the mother travelled to Darwin with the child. The child spent time with the father, in the mother's presence.
Between 8 and 17 March 2012, the mother travelled to Darwin with the child. The child spent time with the father, in the mother's presence.
On 29 March 2012, the mother communicated to the father that she considered their relationship to have ended.
In either late-April or early-May 2012, the father travelled to Sydney. The child spent time with the father, in the mother's presence.
Between 11 and 20 June 2012, the mother travelled to Darwin with the child. The child spent time with the father, in the mother's presence.
In July 2012, Mr F died. The first Town B property was, as a result, transferred to the parties as joint tenants.
Between 12 and 27 July 2012, the mother travelled to Darwin with the child. The child spent time with the father, in the mother's presence.
In September 2012, the father asserts that the parties separated on a final basis.
Between 14 and 19 October 2012, the mother travelled to Darwin with the child, in order to collect her belongings from the first Town B property. During that period, the child spent time with the father for one hour, in the mother's presence. The mother asserts that she had offered to arrange for the child to spend a longer period of time with the father, but that he did not take up that opportunity.
On 16 January 2013, the father commenced these proceedings by way of an Initiating Application filed in the Darwin Registry of the Federal Magistrates Court of Australia.
Between 6 and 11 February 2013, the mother travelled to Darwin with the child. The child spent time with the father, in the mother's presence.
Between 3 May 2013 and 21 February 2014, the mother paid a total of $2,586 towards the M Street mortgage from payments she received from Centrelink.
On 20 May 2013, the father drew down $500 on the M Street mortgage.
On 28 May 2013, these proceedings were transferred to the Sydney Registry of the Federal Circuit Court of Australia.
On 17 June 2013, the father received $30,000 from the estate of Mr F.
Between 16 and 23 August 2013, the father travelled to Sydney. The child spent time with the father, at times in the presence of the mother.
On 8 September 2013, the mother commenced a relationship with Mr G.
Between 21 and 28 November 2013, the mother travelled to Darwin with the child. The child spent time with the father, at times in the presence of the mother.
On 27 November 2013, the father received $127,253.68 from the estate of Mr F.
On 5 December 2013, the father withdrew $70,000 from his Commonwealth Bank Smart Access Account (no. …23).
Between 17 and 23 December 2013, the father travelled to Sydney. The child spent time with the father, at times in the presence of the mother.
Between 16 January and 24 August 2014, the father lived at Suburb U and spent time with the child for between one to four hours, on three days each week.
On 15 April 2014, orders were made by Judge Walker for the preparation of a Single Expert Report by Mr AA, Forensic Psychologist, with the father to meet the costs of that report in the first instance.
On 24 April 2014, the child commenced attending upon Ms BB, Child Psychologist.
On 25 June 2014, orders were made for the appointment of an Independent Children’s Lawyer (“ICL”).
On 24 August 2014, the father returned to the first Town B property. The father asserts that he was required to relocate back to the Darwin area to be close to his physician, after experiencing complications from a surgery (albeit he refers to this as occurring in 2015).
On 12 September 2014, orders were made by Judge Walker, requiring the father to pay $4,500 towards the cost of Mr AA’s report.
On 16 October 2014, the proceedings were transferred to the Family Court of Australia.
Between 12 and 19 November 2014, the mother travelled to Darwin with the child. The child spent time with the father, at times in the presence of the mother.
On 20 March 2015, interim parenting orders were made by Principal Registrar Filippello, including that:
a)The child live with the mother;
b)In 2015, the child to spend time with the father, as follows:
i)In the Northern Territory, over a seven day period, from 9:00 am to 5:00 pm each day, in April, June/July (with one overnight stay) and September/October (with two overnight stays), with one of those periods being for 10 days, for the purpose of the child participating in a smoking ceremony (with the father to book and pay for the child’s transport and accommodation); and
ii)In Sydney, over a seven day period, from 9:00 am to 3:00 pm each day, in May (with one overnight stay), August (with two overnight stays) and November (with two overnight stays);
c)In 2016, the child spend time with the father, as follows:
i)In the Northern Territory, over a seven day period, from 9:00 am to 5:00 pm each day, in April, July and September/October, including two overnight stays in each period; and
ii)In Sydney, over a seven day period, from 9:00 am to 3:00 pm each day, in February/March, May, August and November, including two overnight stays in each period;
d)The child have Skype communication with the father three times each week;
e)For the purposes of the child spending time with the father in the Northern Territory, the mother will accompany the child to the Northern Territory and the father is to book and pay for the child’s and the mother’s return flights from Sydney and accommodation in Darwin; and
f)The father is at liberty to make arrangements for the child to spend time with members of his L family and to participate in cultural events during any time that the child is spending time with him.
On 29 March 2015, the mother received a Notice of Exercise of Power of Sale document from the Commonwealth Bank, following defaults of repayments of the mortgage secured over the first Town B property.
On 14 May 2015, the father filed an Application for Review of the orders made on 20 March 2015.
Between 2 and 11 June 2015, the father travelled to Sydney and spent time with the child.
On 2 June 2015, Rees J heard the father’s Application for Review. On 5 June 2015, her Honour made orders mirroring those made by Principal Registrar Filippello on 20 March 2015, with the addition of an order for Skype communication between the child and her extended L family once each month.
On 2 July 2015, the father filed a Notice of Appeal in relation to the orders made by Rees J on 5 June 2015.
Between 5 and 12 October 2015, the father travelled to Sydney and spent time with the child.
Between 23 and 29 January 2016, the father travelled to Sydney and spent time with the child.
Between 26 April and 3 May 2016, the father travelled to Sydney and spent time with the child.
On 27 April 2016, the father’s appeal was heard by the Full Court. That appeal was dismissed and the father was ordered to pay the mother’s costs.
Between 8 and 14 September 2016, the father travelled to Sydney and spent time with the child.
In January 2017, the child commenced Kindergarten at Suburb U Public School.
On 3 February 2017, orders were made for the preparation of a Family Report by a Family Consultant nominated by the Court and for Mr AA to prepare a report in relation to Aboriginal cultural issues for the child.
Between 20 March and 1 April 2017, the father travelled to Sydney and spent time with the child.
On 1 April 2017, the mother commenced working full time as a Policy Officer at an organisation in Sydney.
Between 5 and 16 June 2017, the father travelled to Sydney and spent time with the child.
In July 2017, the father relocated to Sydney.
On 6 October 2017, the mother and the child relocated from Suburb U to live with Mr G in Suburb X. At that time, the child commenced spending time with the father on two afternoons each week and from 9:00 am to 6:00 pm on alternate Saturdays.
In Term 4 2017, the child commenced attending Suburb X School.
In January 2018, the child spent time with the father each day during the last two weeks of the school holidays.
On 9 January 2018, the Family Report of Ms BB was released.
On 4 June 2018, Mr AA’s Single Expert Report was released.
On 22 June 2018, the matter was listed for final hearing over five days, commencing on 3 December 2018.
On 25 August 2018, the child commenced spending additional time with the father on alternate Sundays during the weeks that she was not otherwise spending Saturday time with him.
On 19 October 2018, the child commenced attending upon a Psychologist at the Aboriginal Medical Service.
On 7 December 2018, being the final day of the hearing, the following orders were made by consent:
1. That within 3 months of the date of these Orders, both parents are to commence therapy with [Dr P] (or another child and family psychologist agreed between the parents) with the purpose of such therapy to be as follows:
a. For both parents to receive education and guidance in relation to their parenting of [the child], and in particular, strategies for managing [the child’s] anxiety and supporting her to spend increased periods of time with the Father, with the goal of introducing overnight time within 12 months of the date of these Orders.
b. To assist the parents to achieve a cooperative parenting relationship so as to allow them to best meet [the child’s] developmental needs, including her need to fully know and experience her Aboriginal culture.
2. For the purposes of the therapy referred to in Order 1:
a. Both parents shall contact [Dr P] within 14 days of the date of these Orders to make an initial appointment (noting that [Dr P] has indicated she is available to commence therapy with the parties from February 2019).
b. The Mother shall provide [Dr P] with:
i. A sealed copy of these Orders;
ii. A copy of the Family Report by [Ms BB] dated 8 January 2018;
iii. A copy of the Expert’s report by [Mr AA] dated 21 May 2018, and
iv. Details of [the child’s] current treating psychologist.
c. Dr P is hereby authorised to communicate and consult with [the child’s] current treating psychologist so as to ensure that there is a consistent approach in working with [the child] and her parents.
d. Both parents are to attend therapy sessions individually as requested by [Dr P], for so long as [Dr P] deems appropriate.
e. Both parents are to ensure that [the child] attends on [Dr P] if requested by [Dr P] and agreed to by [the child’s] treating psychologist.
f. Each parent shall bear the cost of any individual session with [Dr P] (noting that [Dr P’s] current fee is $130 per hour, subject to any Medicare rebate).
g. In the event that the parents agree on a psychologist other than [Dr P], then Orders 13(a)-(f) and 14 shall apply in relation to that psychologist in lieu of [Dr P].
h. The court notes that [Dr P’s] role is to provide therapy to the parents and not to [the child], but she may, subject to order 2(e), arrange to meet with [the child] in order to assist in her therapy with the parents.
3. The Mother shall forthwith provide [the child’s] current treating psychologist with:
a. A sealed copy of these Orders;
b. A copy of the Family Report by [Ms BB] dated 8 January 2018;
c. A copy of the Expert’s report by [Mr AA] dated 21 May 2018, and
d. [Dr P’s] contact details.
4. That both parents are at liberty to communicate with [the child’s] treating psychologist from time to time in order to discuss [the child’s] treatment and progress.
At the time of the hearing, the mother and Mr G were expecting a child together. The mother was due to commence maternity leave on 13 December 2018.
Currently, there are no orders providing for the child to spend time with the father. The most recent interim orders (made by Rees J on 5 June 2015) expired at the conclusion of 2016. However, the parties have arranged for the child to spend time with the father each weekend, from 9:00 am to 6:00 pm on Saturday in the first week and from 9:00 am to 6:00 pm on Sunday in the second week, and on two afternoons each week from the conclusion of school until 6:00 pm. The child has yet to spend any overnight time with the father.

Applications

The ICL’s application

The ICL’s application was in accordance with her proposed minute of order (Exhibit “EE”), as supplemented by Exhibits “FF” and “GG”, as follows:
1. That all previous parenting orders in relation to the child, [Z], born in 2011, be discharged.
2. That the Mother have sole parental responsibility in relation to all major long-term issues concerning [Z] except her Aboriginal culture and development.
3. That the parents have shared parental responsibility relating to decisions regarding [Z’s] Aboriginal culture and development, NOTING that both parents acknowledge that as [Z’s] Aboriginal parent it is the Father’s cultural responsibility to provide for her upbringing and education as an [L] child.
4. That in exercising sole parental responsibility pursuant to Order 2:
(a) The Mother shall notify the Father in writing prior to making any major long-term decision in relation to [Z];
(b) The Mother shall take into account any views expressed by the Father in relation to that decision, provided such views are communicated to the Mother in a timely manner;
(c) The Mother shall make a genuine effort to reach agreement with the Father, and
(d) The Mother shall notify the Father in writing as soon as practicable after making the final decision.
5. That [Z] live with the Mother.
6. That, while the Father resides in Sydney, [Z] shall spend time with the Father as follows (unless otherwise agreed between the parents):
(a) During school terms:
(i) From the conclusion of school until 6.00pm each Tuesday and Thursday, and
(ii) On each alternate weekend from 10.00am to 6.00pm on Saturday and from 10.00am to 6.00pm on Sunday, with such time to extend from 10.00am on Saturday until 6.00pm on Sunday when both parents agree that [Z] is ready to spend overnight time with the Father.
(b) During the Term 1, 2 and 3 school holiday periods, on 7 consecutive days from 10.00am until 6.00pm each day, commencing on the second Saturday of the school holiday period and concluding on the following Friday, with such time to include overnight periods when both parents agree that [Z] is ready to spend overnight time with the Father.
(c) During the Term 4 school holiday period, as agreed between the parents in writing, and failing agreement 3 blocks of 4 consecutive days, being Monday, Tuesday, Wednesday and Thursday in each of the last 3 weeks of the school holiday period, from 10.00am to 6.00pm on each of those days, with such time to include overnight periods when both parents agree that [Z] is ready to spend overnight time with the Father.
(d) At other times as agreed between the parents, with the Mother to accommodate all requests for the Father to spend time with [Z] in Sydney for the purpose of participating in cultural activities and events and spending time with visiting family members, provided that the Father gives the Mother reasonable notice of such requests, and that the events do not fall during school hours.
(e) That school holiday time between [Z] and the father shall not occur in accordance with Orders 6(b) and 6(c) unless the father confirms in writing to the mother that he intends to exercise the time, and the dates on which he intends to exercise time, at least 28 days prior to the commencement of the relevant school holiday period.
7. That, from 1 August 2019, during one of the 7 day periods referred to in Order 6(b) each year:
(a) The Father may elect to spend the time with [Z] in the Northern Territory.
(b) The Father shall give the Mother at least 4 months’ notice in writing of such election, including the precise dates on which he proposes to spend time with [Z] in the Northern Territory and the town or city in which he proposes to spend such time.
(c) Provided the Mother receives notice of the Father’s election in accordance with Order 7(b), the Mother shall travel to the Northern Territory with [Z] for the purposes of [Z] spending time with the Father in the Northern Territory on the dates nominated by the Father.
(d) The Father shall book and pay for [Z’s] return airfares between Sydney and the Northern Territory, and shall provide the Mother with the booking confirmation at least 2 months prior to departure from Sydney.
(e) The Father shall book and pay for accommodation of a reasonable standard in the Northern Territory for [Z] and the Mother, and shall provide the Mother with a copy of the booking confirmation at least 2 months prior to the Mother and [Z’s] arrival in the Northern Territory.
(f) If both parents agree that [Z] is ready to spend overnight time with the Father for the duration of the period referred to in Order 7(b), then [Z] will travel to the Northern Territory with the Father and Orders 7(c) and 7(e) will cease to apply.
(g) The time that [Z] spends with the father in the Northern Territory in accordance with this Order may extend beyond 7 days if such extension is agreed between the parents.
8. That in the event the Father resides outside of the Sydney metropolitan area, [Z] shall spend time with the Father as agreed in writing between the parents.
9. That during any period of time [Z] spends with her Father in accordance with these Orders, the Father is at liberty to arrange for [Z] to spend time and communicate with members of her extended [L] family; to participate in cultural events and activities, and to explore and develop her cultural understanding and identity in any manner the Father considers appropriate.
10. The Court NOTES the following matters in relation to [Z’s] participation in a smoking ceremony with her L family:
(a) Both parents agree that the smoking ceremony is an important part of [Z’s] cultural development.
(b) Both parents agree that the smoking ceremony should take place as soon as practicable, but not before 1 August 2019, and not during the months of December, January or February.
(c) The Mother agrees that she will facilitate [Z’s] attendance at the smoking ceremony by taking [Z] to Darwin, Alice Springs or another location in the Northern Territory nominated by the Father in consultation with his [L] family.
(d) Both parents agree that that it is the Father’s responsibility to liaise with his [L] family in relation to [Z’s] smoking ceremony, to make the necessary arrangements for the ceremony to take place, and to provide reasonable notice to the Mother of the proposed arrangements (reasonable notice being at least 3 months prior to the event).
(e) The Father acknowledges that the Mother and Maternal Grandmother should be invited to attend the smoking ceremony together with [Z] and the Father shall communicate with his extended family to ensure that the Mother and Maternal Grandmother are permitted to attend.
(f) The Mother agrees to arrange and pay for transportation for herself, [Z] and the Maternal Grandmother to and from the location of the smoking ceremony, subject to the Father paying for return airfares for [Z] and the Mother between Sydney and Darwin or Alice Springs, and the Father paying for accommodation of a reasonable standard for [Z] and the Mother in Darwin or Alice Springs and (if necessary) at another city or town near the location of the smoking ceremony (if the ceremony is not to take place in Darwin or Alice Springs).
11. In the event that [Z] travels to Darwin, Alice Springs or another location in the Northern Territory for the purposes of the smoking ceremony, that period of time spent with the Father and his extended family will replace the one optional period of time in in the Northern Territory provided for in Order 7 in that particular year.
[12.] That each parent keep the other informed at all times of their current residential address and contact telephone number and email address and any changes in these details.
[13.] That each parent notify the other as soon as practicable in the event [Z] suffers a serious illness or injury, or is hospitalised, whilst in that parent’s care.
[14.] That each parent be, and hereby is, restrained from:
(a) Denigrating the other parent or any member of the other parent’s family to or in the presence or hearing of [Z], or allowing any third party to do so.
(b) Discussing these proceedings with [Z] or with anyone else in her presence or hearing.
[15.] That each parent is at liberty to liaise directly with [Z’s] school from time to time; to discuss [Z’s] educational progress and to receive information regarding [Z’s] education including copies of her school reports, general school newsletters and school photograph order forms.
[16.] That each parent is at liberty to attend events and functions at [Z’s] school, being events and functions to which parents are generally invited.

The mother’s application

On the final day of the hearing, Counsel for the mother tendered an amended version of the ICL’s proposed minute of order, effectively adopting the ICL’s position in relation to the parenting orders sought, apart from certain changes. That document (Exhibit “DD”) reads as follows:
1. That all previous parenting orders in relation to the child, [Z], born 2011 ("Z"), be discharged.
2. That the Mother have sole parental responsibility in relation to all major long-term issues concerning [Z] except her Aboriginal culture and development.
3. That the parents have shared parental responsibility relating to decisions regarding [Z's] Aboriginal culture and development, NOTING that both parents acknowledge that as [Z's] Aboriginal parent it is the Father's cultural responsibility to provide for her upbringing and education as an L child.
4. That in exercising sole parental responsibility pursuant to Order 2:
(a) The Mother shall notify the Father, in a timely manner, in writing prior to making any major long-term decision in relation to [Z];
(b) The Mother shall take into account any views expressed by the Father in relation to that decision, provided such views are communicated to the Mother in a timely manner;
(c) The Mother shall make a genuine effort to reach agreement with the Father; and
(d) The Mother shall notify the Father in writing as soon as practicable after making the final decision.
5. That Z live with the Mother.
6. That, while the Father resides in Sydney, [Z] shall spend time with the Father as follows (unless otherwise agreed between the parents):
(a) During school terms:
(i) From the conclusion of school until 6.00pm each Tuesday and Thursday; and
(ii) On each alternate weekend from 10.00am to 6.00pm on Saturday and from 10.00am to 6.00pm on Sunday, with such time to extend from 10.00am on Saturday until 6.00pm on Sunday when both parents agree that [Z] is ready to spend overnight time with the Father.
(b) During the Term 1, 2 and 3 school holiday periods, on 7 consecutive days from 9.00am until 5.00pm each day, commencing on the second Saturday of the school holiday period and concluding on the following Friday, with such time to include overnight periods when both parents agree that [Z] is ready to spend overnight time with the Father.
(c) During the Term 4 school holiday period, as agreed between the parents in writing, and failing agreement 3 blocks of 4 consecutive days, being Monday, Tuesday, Wednesday and Thursday in each of the last 3 weeks of the school holiday period, from 9.00am to 5.00pm on each of those days, with such time to include overnight periods when both parents, acting reasonably, agree that [Z] is ready to spend overnight time with the Father.
(d) At other times as agreed between the parents, with the Mother to accommodate all reasonable requests for the Father to spend time with [Z] in Sydney for the purpose of participating in Aboriginal cultural activities and events and spending time with visiting L group family members, provided that the Father gives the Mother reasonable notice of such requests, and that the events do not fall during school hours and that it does not include [Z] spending overnight time with the father unless both parties agree.
(e) That school holiday time between [Z] and the father shall not occur in accordance with orders 6(b) and 6(c) unless the father confirms in writing to the Mother that he intends to exercise the time, and the dates on which he intends to exercise time, at least 28 days prior to the commencement of the relevant school holiday period.
7. That, from 1 August 2019, during one of the 7 day periods referred to in Order 6(b) each year:
(a) The Father may elect to spend the time with [Z] in the Northern Territory.
(b) The Father shall give the Mother at least 4 months' notice in writing of such election, including the precise dates during the 7 day period on which he proposes to spend time with [Z] in the Northern Territory and the town or city in which he proposes to spend such time.
(c) Provided the Mother receives notice of the Father's election in accordance with Order 7(b), the Mother shall travel to the Northern Territory with [Z] for the purposes of [Z] spending time with the Father in the Northern Territory on the dates nominated by the Father.
(d) The Father shall book and pay for [Z's] and the mother's return airfares between Sydney and the Northern Territory, and shall provide the Mother with the booking confirmation at least 2 months prior to departure from Sydney and within 7 days of the mother receiving the booking confirmation the mother shall reimburse the father for the cost of her airfare.
(e) The Father shall book and pay for accommodation of a reasonable standard in the Northern Territory for [Z] and the Mother, and shall provide the Mother with a copy of the booking confirmation at least 2 months prior to the Mother and [Z's] arrival in the Northern Territory. For the purposes of this order "reasonable standard" is a standard not less than the standard of a 3-star hotel.
(f) If both parents agree that [Z] is ready to spend overnight time with the Father for the duration of the period referred to in Order 7(b), then [Z] will travel to the Northern Territory with the Father and Orders 7(c), 7(d) as to booking the mother's airfare, and 7(e) will cease to apply.
(g) The time that [Z] spends with the father in the Northern Territory in accordance with this Order may extend beyond 7 days if such extension is agreed between the parents.
8. That in the event the Father resides outside of the Sydney metropolitan area, [Z] shall spend time with the Father as agreed in writing between the parents.
9. That during any period of time [Z] spends with her Father in accordance with these Orders, the Father is at liberty to arrange for [Z] to spend time and communicate with members of her extended [L] family; to participate in cultural events and activities, and to explore and develop her cultural understanding and identity in any manner the Father considers appropriate.
10. The Court NOTES the following matters in relation to [Z's] participation in a smoking ceremony with her [L] family:
(a) Both parents agree that the smoking ceremony is an important part of [Z's] cultural development.
(b) Both parents agree that the smoking ceremony should take place, at a time agreed between the parties, but not before 1 August 2019, and not during the months of December, January or February.
(c) The Mother agrees that, subject to the mother and the maternal grandmother being invited to attend the smoking ceremony, she will facilitate [Z's] attendance at the smoking ceremony by taking [Z] to Darwin, Alice Springs or another location in the Northern Territory nominated by the Father in consultation with his [L] family.
(d) Both parents agree that that it is the Father's responsibility to liaise with his L family in relation to [Z's] smoking ceremony, to make the necessary arrangements for the ceremony to take place, and to provide reasonable notice to the Mother of the proposed arrangements (reasonable notice being at least 3 months prior to the event).
(e) Subject to the father’s L family’s approval, that the Mother and Maternal Grandmother are permitted to attend.
(f) The Mother agrees to arrange and pay for transportation for herself, [Z] and the Maternal Grandmother to and from the location of the smoking ceremony, subject to the Father paying for return airfares for [Z] and the Mother between Sydney and Darwin or Alice Springs, and the Father paying for accommodation of a reasonable standard for [Z] and the Mother in Darwin or Alice Springs and (if necessary) at another city or town near the location of the smoking ceremony (if the ceremony is not to take place in Darwin or Alice Springs).
11. In the event that [Z] travels to the Northern Territory for the purposes of the smoking ceremony, that period of time spent with the Father and his extended family will replace the one optional period of time in the Northern Territory provided for in Order 7 in that particular year.
[12.] That each parent keep the other informed at all times of their current residential address and contact telephone number and email address and any changes in these details.
[13.] That each parent notify the other as soon as practicable in the event [Z] suffers a serious illness or injury, or is hospitalised, whilst in that parent's care.
[14.] That each parent be, and hereby is, restrained from:
(a) Denigrating the other parent or any member of the other parent's family to or in the presence or hearing of [Z], or allowing any third party to do so.
(b) Discussing these proceedings with [Z] or with anyone else in her presence or hearing.
[15.] That each parent is at liberty to liaise directly with [Z's] school from time to time; to discuss [Z's] educational progress and to receive information regarding [Z's] education including copies of her school reports, general school newsletters and school photograph order forms.
[16.] That each parent is at liberty to attend events and functions at [Z's] school, being events and functions to which parents are generally invited.
[17.] That the Father be restrained from saying anything to [Z], or within the hearing of [Z], which indicates or infers that the Mother has taken [Z] away from the Father or is preventing [Z] from spending time with the Father or is otherwise not supportive of [Z's] relationship with the Father.
[18.] That the Mother is permitted to sign passport applications and renewal of passport applications for [Z] without the consent of the Father at any time, and that the passport shall be retained by the Mother once issued.
[19.] That pursuant to section 65Y(2)(b) of the Family Law Act 1975 (Cth) and subject to Order [20], the Mother is permitted to remove [Z] from Australia for holidays.
[20.] If the Mother proposes to travel overseas for a holiday with [Z] the Mother shall provide to the Father not less than 14 days prior to the proposed date of departure from Australia the following:
(a) The dates of departure from, and return to, Australia;
(b) An itinerary for the period of time [Z] will be out of Australia;
(c) A copy of the [Z's] return airline or shipping tickets;
(d) Telephone or Skype numbers on which the Mother and [Z] can be contacted while out of Australia.
The mother’s proposal for changeover was set out in Exhibit “HH”, as follows:
That for the purpose of changeover that does not otherwise coincide with the conclusion of school, the father shall collect the child from the mother’s place of residence at the commencement of the child’s time with the father and shall return the child to the mother’s place of residence at the conclusion of time.
The mother’s application for property orders was in accordance with her proposed minute of order (Exhibit “Q”), as amended by her Application in a Case filed on 19 February 2019 (to which I refer below), as follows:
PROPERTY ORDERS
20. That within 30 days the parties do all acts and things and execute all documents as may be required to list for sale and sell the property known as 1 Town B Road, Town B, Northern Territory being the land described in Certificate of Title Volume … Folio … ("the Property") on the following basis:
(a) The Property shall be listed with such real estate agent as may be agreed upon by the parties (“real estate agent”).
(b) For the purposes of sub-paragraph (a) if the parties have not agreed on the real estate agent within 7 days of the date of orders then the Applicant shall within a further 7 days provide to the Respondent the names of 3 real estate agents with whom the Applicant has no personal connection and who have experience in marketing and selling properties within the general vicinity of the Property, and the Respondent shall within a further 7 days nominate one of those agents whereupon the parties shall appoint the nominated agent as the real estate agent. If the Applicant fails to comply with his obligations under this order the Respondent may select a real estate agent whereupon the parties shall appoint the Respondent’s selected agent as the real estate agent.
(c) The parties shall do all acts and things and sign all documents as may be required to procure a sale of the Property by either private treaty or public auction as agreed by the parties or failing agreement as recommended by the real estate agent.
(d) In the event that the parties are unable to agree on any issue in relation to the marketing and advertising of the property then the parties shall accept the recommendations of the real estate agent in that regard.
(e) For the purposes of selling the property by private treaty the listing price of the Property shall be that amount agreed upon by the parties but if there is no agreement within 14 days of the date of determination of the real estate agent the parties shall list the Property for sale at a price as may be recommended by the real estate agent.
(f) If an offer is made to purchase the Property by private treaty and the parties do not agree on acceptance of the offer or not, then the parties shall engage a registered real estate valuer (“Valuer”) to determine the fair market value of the Property. In default of agreement by the parties as to the Valuer to be appointed within 2 days of the offer being made then the parties shall engage such Valuer as is recommended by the real estate agent on the request of either party. If the offer made to purchase the Property is not less than the fair market value of the Property as determined by the Valuer the parties shall accept the offer.
(g) The reserve price of the Property for any auction sale shall be that amount agreed upon by the parties and in the absence of agreement by the date which is 7 days before the auction date, shall be as recommended by the real estate agent.
21. That the parties do all acts and things and sign all documents as may be required to cause the proceeds of sale of the Property to be applied in the following manner and priority:
(a) Firstly, to pay all reasonable costs, commissions and expenses of the sale;
(b) Secondly, to discharge the mortgage to the Commonwealth Bank of Australia secured over the Property;
(c) Thirdly, to pay 80% of the then remaining balance to the Respondent;
(d) Fourthly, to pay any outstanding council rates, ~~and~~ water and sewerage service charges, water consumption charges and all other charges, costs and expenses which are payable to the Public Utility or any other authority for water or power services with respect to the Property;
(e) Fifthly, to pay $3,000.00 to Mr JJ and Ms KK Baum in repayment of the loan made to the parties by Mr JJ and Ms KK Baum;
(f) Sixthly, to pay to the Respondent the sum of $32,000 (on account of the legal costs paid by the Applicant to his solicitors from the inheritance money he received in 2013);
(g) Seventhly, to pay to the Respondent the sum of $12,073 payable by the Applicant to the Respondent pursuant to the Costs Assessment Order dated 3 May 2017, plus interest calculated at the rate prescribed under rule 17.03 of the Family Law Rules.
(h) Eighthly, to pay to the Respondent the sum of $17,320 payable by the Applicant to the Respondent pursuant to the Costs Assessment Order dated 31 January 2017, plus interest calculated at the rate prescribed under rule 17.03 of the Family Law Rules.
(i) Lastly, to pay the then remaining balance to the Applicant.
22. That pending completion of the sale of the Property:
(a) The Applicant shall pay all instalments pursuant to the mortgage and all insurances, rates, taxes and outgoings of the Property as they fall due.
(b) The Applicant shall keep the Property in a clean, tidy and well maintained state of repair and cooperate with the real estate agent on the sale including making the Property available for inspection by potential purchasers at all reasonable times.
(c) The parties hold their respective interests in the Property upon trust pursuant to these orders.
(d) Neither party shall encumber the Property, nor do any act or thing to cause the balance of the loan currently secured by the mortgage over the Property to be increased, without the consent in writing of the other party.
23. That within 30 days of the date of these Orders, the Applicant shall cause the Property to be presented in a clean, tidy and well maintained state of repair and free of rubbish, debris and other items not included in the sale save for normal household items, and thereafter keep it in a clean, tidy and well maintained state of repair.
24. (a) That the Applicant pay to the Respondent the sum of $4,800.00, such payment to be made upon completion of the sale of the Property, and for this purpose the Applicant shall do all acts and things and sign all documents as required to authorise and direct the solicitor or conveyancer acting on the sale of the Property to make such payment to the Respondent.
(b) That upon the payment to the Respondent of the amount referred to in subparagraph (a), the Respondent sign such documents as may be required to transfer to the Applicant, at the expenses of the Applicant, her title and interest in the motor vehicle.
25. That in the event that either party refuses or neglects to sign any document required to be signed to comply with these Orders, the Registrar of the Family Court of Australia is hereby appointed to execute all Deeds and documents in the name of such party and do all acts and things necessary to give validity and operation to this Order pursuant to s106A Family Law Act.
26. The parties have liberty to apply in relation to the implementation of these Orders on seven (7) days’ notice to His Honour’s Chambers and to the other parties.
[27.] That the Applicant indemnify and keep indemnified the Respondent from and against all claims, actions, law suits and demands made by the Public Utility or any other relevant authority in relation to water and/or power services provided to the Town B Property including out of the proceedings instituted by Public Utility in the Local Court at Darwin in Claim Number … and for any money paid or payable by the Respondent on account thereof.
CHILD SUPPORT
[28.] That pursuant to section 123A of the Child Support (Assessment) Act 1989 the Applicant provide child support to the Respondent, for the child, Z born (“Z”), by way of lump sum payment of $136,234 on the completion of the sale of the Town B property. This sum is to be credited against the administrative assessment of child support.
[29.] From the date of these orders the lump sum payment specified in Order [28] of these orders is to be credited as 100% of the amount payable under the relevant administrative assessment of child support and pursuant to s.69A Child Support (Registration and Collection Act) 1988, until the lump sum is exhausted.

The father’s application

On the final day of the hearing, the father informed the Court that he consented to a range of the parenting orders proposed by the ICL and amended by the mother (Exhibit “DD”). This considerably altered the nature of the father’s original application for parenting orders, as set out in his case outline document (Exhibit “A”). Those orders agreed to by the father, and set out above as the mother’s application, were:
a)Order 1;
b)Order 3;
c)Order 4, in the event that an order was made for the mother to otherwise have sole parental responsibility for the child (which the father did not agree to);
d)Order 6;
e)Order 7, save that he did not agree to the insertion of the words: “For the purposes of this order ‘reasonable standard’ is a standard not less than the standard of a 3-star hotel” in paragraph 7(e);
f)Orders 8 and 9;
g)The notation set out in “order” 10; and
h)Orders 11 to 16.
For reasons which I will set out below, I consider that those orders agreed to by the parties are in the child’s best interests, and accordingly, will be made by consent.

At the hearing, the father stated that the only orders from his original parenting application (Exhibit “A”) that he sought to press were, as follows:
3. That the Mother and Father have equal shared parental responsibility for the care, welfare and development of [Z] (the “Child”) of the relationship.
…
9. In the event either party is unable to care for the Child during their respective periods pursuant to these orders, then the other parent is to be given first option to care for the Child.
10. That changeover take place at the Mother's home, and at School with the Mother delivering the Child to the Father at the commencement of his time with the Child and the Father delivering the Child to the mother's home at the conclusion of his time with the Child.
11. That each parent encourage and facilitate telephone and skype communication between the Child and the other parent whilst the Child is in their care as requested by the Child but no less frequently than once every three (3) days.
In his case outline document, the father sought only one property order, being:
20. That pursuant to s 90MT (4) of the Family Law Act 1975 (the "Act") that Court allocate the Father's superannuation to the Father.

Evidence

At the hearing, the father relied upon the following documents:
a)His Affidavit filed on 23 November 2018;
b)His Affidavit filed on 28 November 2018;
c)His Affidavit filed on 3 December 2018; and
d)Unsealed Financial Statement (Exhibit “F”).
The mother relied upon the following documents:
a)Her Affidavit filed on 2 November 2018; and
b)Financial Statement filed on 26 November 2018.

Credit

The parties’ written and oral evidence was at odds, in terms of a number of issues.
The father’s evidence consistently lacked credibility, in relation to both the parenting and property aspects of the proceedings. I agree with the submission of Counsel for the mother that:
In a number of instances … the father’s evidence was clearly implausible. The father gave evidence that was plainly untruthful or, at best, demonstrated a significant disregard for the truth.
In considering the issue of credit in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB), Tugendhat J said at [73]:
There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed "The Judge as Juror: The Judicial Determination of Factual Issues" ... Lord Bingham cited Sir Richard Eggleston QC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not:
(1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(2) the internal consistency of the witness's evidence;
(3) consistency with what the witness has said or deposed on other occasions;
(4) the credit of the witness in relation to matters not germane to the litigation;
(5) the demeanour of the witness.
I have had consideration to those tests in determining the father’s evidence to be without credit in a number of aspects, and will now set out my reasons for making that finding.
Following the hearing of the father’s Application for Review before Rees J on 2 June 2015, her Honour delivered Reasons for Judgment on 5 June 2015, in which she refers to the fact that the father had given evidence that he could not afford to meet the cost of the child and the mother travelling to the Northern Territory for the purpose of the child being “smoked”. That evidence is also referred to in the decision of the Full Court dated 28 July 2016. However, during cross-examination, the father refused to concede to Counsel for the ICL that he had ever asserted that he could not afford to meet that cost.
Similarly, the father refused to make concessions in relation to the oral evidence he gave to the Court on 3 February 2017 in respect of his payment of child support, which was as follows (Exhibit “M”):
Question: Have you made any other contributions towards the support of the child, the physical support of the child?
Answer: Yes, I have.
Question: When was that and what was that?
Answer: … I’ve paid fees. I’ve paid travel fees, accommodation fees, but they go back a long time and not within the last 12 months…
Question: Have you made any payment in the last 12 months regarding child support – the physical sustenance of the child?
Answer: Yes, your Honour.
Question: What was that?
Answer: Well, as I say, your Honour, I do not have an actual figure and amounts in front of me.
At the hearing, in respect of that evidence, the father stated that he had purchased certain things, including toys and a swimming costume, for the child. However, the father would not concede that he had either misled the Court, or had failed to be fully forthcoming, in stating that he had made payments of child support in the preceding 12 months.
Further, during the hearing, the father gave oral evidence that, sometime prior to filing a Financial Statement on 15 August 2013, he transferred funds from his account with Superfund 1 to his account with Superfund 2. Prior to doing so, the balance of those accounts totalled $50,000. However, at the time of the hearing, being some five years later, during which period the father had worked, the balance of the Superfund 2 account was $45,858 (Exhibit “G”). The father did not agree that he had withdrawn funds from his superannuation entitlement, but repeated his evidence that it was his understanding that the accounts had been amalgamated. However, the following day, when the father was questioned about his CBA account statements, he conceded that he had withdrawn $10,000 from his superannuation funds.
In terms of the Financial Statement that the father tendered at the hearing (Exhibit “F”), he made a number of errors which I do not accept to be mere oversights. For example, in Part I of that document, the father failed to list a CBA account into which he currently deposits funds. When asked why he had listed two other accounts, but not that CBA account, the father replied: “No, I hadn’t forgotten about it. I just didn’t have time”. I find it implausible that the father did not have time to note the account number and balance of that CBA account on his Financial Statement at any time prior to the hearing.
Similarly, the father’s evidence that he had not been able to produce his employment contract with the Institution, despite having been ordered to do so and having had a meeting at that institution some three days after those orders were made, is implausible.
The father similarly failed to provide tax invoices for legal work carried out by him in the 2017/2018 financial year, as well as emails in which he said the mother had refused to travel with his family to the child’s smoking ceremony, despite having given oral evidence the day before that he would do so.
Further, I find that the father’s demeanour throughout the hearing supports a finding of lack of credit. In that regard, I agree with the submission of Counsel for the mother that:
The father, in cross-examination, was extremely evasive throughout his cross-examination. He rarely gave a direct answer to any question.
It is difficult for an Appeal Court to get a sense of demeanour from the transcript of the hearing alone. In the event of this decision being appealed, I suggest that members of the Full Court listen to the recording of the father’s evidence for the morning of 5 December 2018 until the point in time that I adjourned the Court in order to provide the father with the opportunity to reflect upon the evidence that he was giving.
Comparatively, the mother gave her evidence in a direct and forthright manner. Her evidence was internally consistent and consistent with the objective evidence of the Ms MM, Mr AA and the ICL.
For those reasons, where the parties’ evidence is at odds, I prefer the evidence of the mother.

Parenting matters

The law – concepts and principles

The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60B of the Act sets out the objects and principles of Part VII of the Act, as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Further, s 60B(4) of the Act notes that an additional object of Part VII of the Act is to give effect to the United Nations Convention on the Rights of the Child. Article 30 of the Convention, in that regard, provides:
In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.
In terms of this matter, s 61F of the Act provides:
In:
(a) applying this Part to the circumstances of an Aboriginal or        Torres Strait Islander child; or
(b)      identifying a person or persons who have exercised, or who       may exercise, parental responsibility for such a child;
the court must have regard to any kinship obligations, and child-rearing          practices, of the child's Aboriginal or Torres Strait Islander culture.
More generally, s 43(1)(c) of the Act makes clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare”.

The presumption of equal shared parental responsibility

Section 61DA of the Act relevantly provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
In Dundas & Blake (2013) FLC 93-552 at 87,399, the Full Court held that s 61DA of the Act is mandatory in the sense that the presumption must be applied until a level of satisfaction is reached that it would not be in the interests of the child for the presumption to apply. In that context, the Full Court said:
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.
Relevantly, in VR & RR (2002) FLC 93-099 at 88,937, the Full Court said:
In our view it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner the parent deems appropriate, should be made only where the court is of the view the welfare of the child will be clearly advanced by that order being made.
At the same time, it needs to be appreciated that ss 65DAC(2) and (3) of the Act provide that, in the event of an order being made for parents to have shared parental responsibility, then, in circumstances where that responsibility involves making a decision about a major long-term issue in relation to the child:
(2) The order is taken to require the decision to be made jointly by those persons. …
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
The father seeks an order for equal shared parental responsibility. In that regard, at paragraph 14 of his Affidavit filed on 23 November 2018, he states:
I would also like to share parental responsibility for all future major long-term issues equally with the Child. Before separation the Mother and I always discussed things before decisions were made, to do with the Child's welfare such as appointments with the health clinic, doctor, hospital, dentist, vaccinations, and other activities.
At paragraph 25 of that document, the father further clarifies this issue, as follows:
I agree to an order for equal shared parental responsibility with the issue of the Child's Aboriginal cultural development to be established and delivered by me.
However, at paragraph 27, the father further states:
I have applied for sole parental responsibility as there has been no sign of being willing to co-operate with me regarding arrangements for the Child.
For the purposes of this decision, I accept that, in accordance with his case outline document, the father’s application is for the parties to have equal shared parental responsibility, apart from in relation to issues concerning the child’s Aboriginal cultural development, for which he would have sole parental responsibility. The father states that this is necessary because:
There is no open consultation with the Mother about the Child's Aboriginal cultural needs. Over the many years I had attempted to communicate and discuss the Child's Aboriginal cultural needs but they have been met with either silence or indifference. As such, I do not believe that it is possible to consult with each other about the Child's Aboriginal cultural needs and arrangements. I believe that we have opposite and different opinions about these things.
In her report, Ms BB was pessimistic about the ability of the parties to effectively communicate with one another, stating:
… Both parents spoke at length about their views and difficulties with the other parent, and the complete breakdown in their co-parenting relationship. Both [the father] and [the mother] appear to have lost any respect for each other and both blame the other for lack for the difficulties in [the child's] relationships with [the father], and the difficulties in her cultural development.
… [The father] appeared to be highly critical and contemptuous of [the mother], and exhausted about any further attempts to communicate with her or engage generally in any process with her about the cultural needs for [the child], and the resolution of parenting issues. [The mother] said that she continues to feel quite intimidated by [the father] in his communication, which she claims is hostile and aggressive in nature, and by which she said she feels constantly attacked and ridiculed.
Ms BB further stated:
The parental relationship between [the father] and [the mother] presents as highly acrimonious and their intractable conflict appears to be blocking any progress on the issues identified in this matter, as well as impacting on the emotional wellbeing of both parents.
In that regard, under the heading “Recommendations”, Ms BB states:
That the Court could consider [the mother] having all aspects of parental responsibility for [the child] except for her culture.
Mr AA’s evaluation of the parties’ relationship, which was consistent with Ms BB’s account, is as follows:
To date the relationship [between the parties] has been marked by on-going conflict and acrimony that in my opinion derives to a large extent from the anger and frustration borne by the father and his rigid attitude towards [the child’s] cultural up-bringing and the involvement of the mother. His actions and approach to dealing with these issues has been confrontational and has added stress to an already troubled relationship with the mother causing them both to feel aggrieved, frustrated and angry.
The evidence of the parties in these proceedings is consistent with the observations of Ms Bb and I accept the accuracy of her conclusion regarding the parties’ inability to effectively communicate. In that regard, the mother asserts:
All communications between [the father] and I in relation to arrangements for [the child] take place by way of email or Skype message.
[The father] and I do not speak with each other at changeover. When we first moved to [Suburb X], I use to take [the child] to meet [the father] at the park near out place for changeover. [The father] and I would not speak to each other on these occasion. Now, at the commencement of time on the weekends, [the father] will wait out the front of our place. I will check that he is there before sending [the child] out to see him. At the conclusion of time, [the father] will wait out the front of the house, on the pathway and send [the child] to the door. [The child] rings the door bell and waits for [Mr G] or I to let her in. She then turns to wave to [the father] and he will leave. I have on occasions attempted to say 'Hello' to [the father] however he does not acknowledge me.
Similarly, the father described his relationship with the mother to Mr AA as: “deeply troubled and marked by a lack of communication and cooperation”.
The ICL submitted that, if equal shared parental responsibility were to be afforded to the parties, given their reported inability to effectively communicate and cooperate, there would be a real risk that further litigation would ensue, which would not be in the child’s best interests. I accept that submission and the recommendation of Ms BB that there should not be an order for equal shared parental responsibility.
In circumstances where, for reasons I set out below, the orders that I make will provide for the child to live with the mother and spend time with the father, it is appropriate for the mother to have sole parental responsibility for the child, save insofar that the parties will have equal shared parental responsibility in respect to matters relating to the child’s Aboriginal culture.
In accordance with the ICL’s proposal, I have made orders requiring the mother to notify the father of any major decisions to be made for the child and to take the father’s views into account, in an attempt to reach agreement with him in relation to that decision. Should the parties be unable to agree, the mother will ultimately make the relevant decision for the child. However, it is hoped that, with time, the parties will improve their communication and the father, as someone who is deeply invested in the child’s wellbeing, will be in a position to collaborate with the mother in making such decisions.
I am further satisfied that the father, as the parent from whom the child has inherited the benefit of her Aboriginal culture, should be involved in making decisions regarding matters associated with that culture. It is, however, important that the mother, being the parent with whom the child will be living, is involved in making those cultural decisions for practical reasons. Further, as I will set out below, I am satisfied that the mother has sought to promote the child’s Aboriginal culture to date.

(k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration

The parties commenced cohabitation on 30 August 2003.
The parties separated on 29 September 2011, on the wife’s account and in September 2012, on the husband’s account. That difference is not material to this decision.
The wife has admirably balanced her responsibilities as the child’s primary carer, including during a period when she was a single mother, as against her employment responsibilities. In those circumstances, it does not appear that the duration of the parties’ relationship has adversely impacted upon her earning capacity.
Further, as stated, the wife has recently given birth to a child from her new relationship and it will inevitably be the case that she will be required to take a certain amount of leave from her employment to care for that child. Clearly, the need to take that leave does not arise from her relationship with the husband.

(l) the need to protect a party who wishes to continue that party's role as a parent

The wife has, since the birth of the child, been her primary carer and she will continue in that role. As previously indicated, the wife appears capable of balancing both her work and family commitments. However, it will inevitably be the case that the wife will incur significant expenses in caring for the child. This fact has already been taken into account.

(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation

As stated, the wife and the child cohabit with the wife’s partner, Mr G. In her Financial Statement, the wife states that Mr G’s gross weekly income is $764. She further states that Mr G contributes towards payment of the rent at the property where they live. This somewhat eases a financial burden that otherwise would have been incurred by the wife in providing accommodation for herself and the child.

(n) the terms of any order made or proposed to be made under section 90SM in relation to: (i) the property of the parties; or (ii) vested bankruptcy property in relation to a bankrupt party

I note that, based on the s 90SM factors set out above, I have proposed to make an order be made for a 7.5 per cent adjustment of the parties’ property in favour of the wife. This represents a 15 per cent differential between the parties. I have had regard to that order in considering whether there should be a further adjustment pursuant to the provisions of s 90SF(3). Having regard to the totality of the s 90SF(3) factors to which I refer, I am satisfied that there should be a further adjustment, which I will describe below.

(q) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship

In his written submissions, the husband acknowledges that he has “not maintained child support for the Child [to date]”. He further states:
42. The [husband] having now taken time to relocate to Sydney and obtain further employment, will rectify the back payments of Child Support to the [wife].
43. A new development in the [husband’s] financial situation has led to the possibility of rectifying the outstanding debt the [husband] owes for Child Support.
The wife was not challenged on her evidence that, apart from a sum of $3,140 paid on 15 April 2014, the husband has not paid child support in accordance with assessments made by the Child Support Agency (pages 322 to 339 of Exhibit “TB – 1” to the Affidavit of the wife).
In that regard, the wife’s unchallenged evidence was that the husband’s arrears of child support total approximately $10,817.
For reasons I have set out below, I have no confidence that the husband will otherwise pay those arrears to the wife and I propose to make an order for a distribution of $10,817 to her from the sale proceeds of the first Town B property. For that reason, I have not given weight to the issue of those arrears in calculating the property adjustment that should be made pursuant to s 90SF(3).

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

In his case outline document, the husband states:
The [husband] has lost earning capacity due to illness, and forced relocation to Sydney which has reduced his earning capacity.
Through the conduct of the [wife] the [husband] has been forced to utilise an inheritance which would otherwise have benefited the Child.
The [wife’s] conduct has caused wastage of assets and has been unfair to the [husband] and the Child.
I do not consider that the wife has, at any time, conducted herself in a manner that could be considered to have caused the wastage of the parties’ assets. The husband’s illness cannot be said to have been caused by the wife, nor can he be said to have been “forced” to relocate to Sydney. Moreover, as a qualified professional, I do not consider that the husband’s employment prospects in Sydney would result in him having a reduced earning capacity, as compared to his employment prospects in Darwin.
The wife asserts that the husband “wasted money on alcohol and gambling” throughout their relationship and following separation. In her Affidavit, the wife states:
When he was out, [the husband] would spend a significant amount of money on alcohol and gambling. I would transfer funds out of our joint account so that [the husband] could not access them while he was out. I recall on one occasion when we were living in Melbourne while I was away in Western Australia for work, [the husband] accessed the funds in our joint account and spent a month's worth of rent in one night on alcohol and gambling.
The husband was the primary beneficiary under Mr F’s will and received the following distributions from that estate:
a)On 17 June 2013, $30,000; and
b)On 27 November 2013, $127,253.
In his Affidavit material, the husband states:
Due to the nature of the current proceedings, I have had to utilise the [inheritance] funds for the purpose of dealing with parenting orders and access to [the child] … It has also been very frustrating and disappointing to have to utilise an inheritance on legal fees, travel and relocation, as the property would have benefited from maintenance and made it more liveable.
However, during cross examination, when the husband was taken to various bank statements (Exhibit “W”), he accepted that he had spent considerable sums of money at various RSL clubs, hotels and other establishments on alcohol and gambling, as well as on a holiday to Asia. Documents produced by DD Limited pursuant to subpoena state that, between 30 May 2012 and 31 December 2013, the husband gambled some $43,923, from which he received a net loss of approximately $8,900 (Exhibit “L”).
In addition to those inheritance amounts, the wife asserts that on 20 May 2013, the husband drew down $500 on the M Street mortgage and that on 5 December 2013, the husband withdrew $70,000 from his CBA Smart Access Account (no. …23).
In his Affidavit filed on 29 November 2018, the husband states:
A burst appendix resulted in medical treatment in the form of surgery which rendered me incapacitated for over 9 months. This meant that I was reliant on the inheritance funds until such time as they were exhausted.
However, no evidence was produced as to how the ruptured appendix suffered by the husband had other than a short term impact upon his earning capacity.
In his Financial Statement, the husband states that he has expended $40,000 of those inheritance funds on legal fees and $70,000 on living expenses. The difference between those amounts and the total inheritance funds received is $47,253. That figure has not been accounted for.
In that regard, the wife contended that the husband’s expenditure on alcohol and gambling, as well as his failure to account for the sum of approximately $47,253, amounts to an inappropriate or premature distribution of assets of the type referred to by the Full Court in Mayne and Omacini. I have previously dealt with the issue of the husband utilising $40,000 from the inheritance funds to pay legal fees associated with these proceedings and have notionally added that amount back into the property pool. That expenditure is further considered as relevant to my consideration of s 90SF(3). Further, based on the information available, I am not satisfied that the husband’s expenditure and inability to account for the balance of the remainder of the inheritance constitutes wasteful expenditure in the context of the principles stated in Mayne and Omacini.
I have, however, had regard to the fact that, despite having those funds in his possession, the husband failed to meet his child support obligations. This has satisfied me that it is unlikely that the husband will meet his child support obligations in the future. Accordingly, an adjustment is required to account for that likelihood. For the avoidance of doubt, it should not be perceived that, in taking that matter into consideration in making an adjustment, pursuant to s 90SF(3), I am making an order to relieve the husband of his future child support obligations or justifying his non-payment of child support. The husband’s future child support obligations should be determined according to the appropriate formula by the Child Support Agency and collected, in the normal course, by the Agency.

Evaluation of section 90SF(3) factors

Having regard to the s 90SF(3) factors to which I have referred and, most relevantly, the wife’s ongoing responsibility as the primary carer of the child, I am of the view that she is entitled to an additional adjustment of 15 per cent of the asset pool. This brings the total adjustment figure to 22.5 per cent.

Lump sum child support

As set out above, the wife seeks an order that a lump sum payment of $136,234 be made to her in respect of future child support. Her Counsel explained that this figure had been reached by having consideration to:
a)The child’s weekly living expenses, being $235; and
b)The weekly rental expenses for the wife and the child, being $567, half of which could be attributed to the child alone.
The child’s weekly living expenses, combined with half of the rental expenses for her and the wife, totals $518. If that weekly figure is extrapolated until the child turns 18 years of age, the sum reached is $272,468. Counsel for the wife submitted that, as the parties’ incomes are relatively similar, it is just and equitable for them to share equally in the future costs for the child. In that way, the lump sum child support figure proposed by the wife is $136,234, being half of $272,468, or the total cost attributable to the child’s living expenses in the period between the hearing and when she turns 18 years of age.
Counsel for the wife submitted that, if his client’s proposed property settlement orders were made, there would not be sufficient funds remaining from the sale proceeds of the first Town B property to meet that lump sum. If that situation were to arise, it would be possible for the Court to make an order that the husband pay 50 per cent of the lump sum proposed by the wife, leaving him liable to periodically meet 50 per cent of his assessed child support liability.
The wife submits that it is just and equitable, and otherwise proper, to make such an order, having regard to:
a)The husband’s failure to pay proper child support in the past;
b)The husband’s failures to make a full and frank disclosure of his financial position; and
c)The husband’s capacity to earn a significant income.
I accept that, apart from one instance in 2014, when the husband paid his arrears of child support in circumstances where he was making an interim application before the Court that day, he has failed to meet his obligations to pay child support, pursuant to s 3 of the Child Support (Assessment) Act 1989 (Cth) (“the Child Support Act”). I further accept that, based on the husband’s prior conduct, he is unlikely to either accurately disclose his income to the Child Support Agency or to meet his child support obligations in the future.
Additionally, I am satisfied that the amount of the lump sum payment exceeds the annual rate of child support payable by the husband under the current assessment. In that regard, the wife’s proposed orders seek a departure from the administrative assessment from the date of the orders until 18 January 2029. The most recent assessment (Exhibit “J”) requires the husband to pay an amount of $118 per month, or $1,416 per annum. The departure order sought would see the husband paying a lump sum which is equivalent to a child support rate of approximately $13,468 per annum.
For the purposes of this application, I am prepared to assume that the service of the wife’s application upon the Child Support Registrar on 6 December 2018 constituted sufficient service for the purposes of rule 4.23(1)(c) of the Rules and, accordingly, it would not be procedurally unfair for me to consider the application in terms of Child Support Registrar & Nixon (2007) 36 Fam LR 571 at [47] – [48].
Nevertheless, for reason I will now set out, I am not satisfied of the existence of the legislative preconditions to my exercising jurisdiction to make the lump sum child support orders sought by the wife.
As noted, the wife relies upon s 123A of the Child Support Act in making her application for a lump sum payment of child support. That section provides:
(1) The court may make an order that a liable parent provide child support for a child to a carer entitled to child support in the form of a lump sum payment to be credited against the amount payable under the liability under the relevant administrative assessment if:
(a) the carer entitled to child support or the liable parent makes an application to a court under paragraph 123(1)(b); and
(b) the court is satisfied that it would be:
(i) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(ii) otherwise proper;
to make an order under this section; and
(c) the amount of the lump sum payment equals or exceeds the annual rate of child support payable for the child under the administrative assessment.
Note: If the court makes such an order, the lump sum payment is credited under section 69A of the Registration and Collection Act against the amount payable under the liable parent's liability (rather than reducing the annual rate of child support payable under the administrative assessment).
(2) A lump sum payment may include a payment by way of transfer or settlement of property.
(3) An order under subsection (1):
(a) must specify the amount of the lump sum payment; and
(b) must specify that the lump sum payment is to be credited against 100%, or another specified percentage that is less than 100%, of the amounts payable under the liability.
(4) In determining the application made under paragraph 123(1)(b), the court must have regard to:
(a) the administrative assessment; and
(b) any determination in force under Part 6A (departure determinations) in relation to the child, the carer entitled to child support and the liable parent; and
(c) any order in force under Division 4 of this Part (departure orders) in relation to the child, the carer entitled to child support and the liable parent; and
(d) whether the carer entitled to child support is in receipt of an income tested pension, allowance or benefit; and
(e) if the carer entitled to child support is not in receipt of such a pension, allowance or benefit--whether the circumstances of the carer are such that, taking into account the effect of the order proposed to be made by the court, the carer would be unable to support himself or herself without an income tested pension, allowance or benefit.
(5) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make an order under subsection (1), the court must have regard to the matters mentioned in subsections 117(4), (6), (7), (7A) and (8).
(6) In having regard to the earning capacity of a parent of the child under paragraph 117(4)(da), the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied as mentioned in subsection 117(7B).
(7) In determining whether it would be otherwise proper to make an order under subsection (1), the court must have regard to the matters mentioned in subsection 117(5).
(8) Subsections (4), (5), (6) and (7) do not limit the matters to which the court may have regard.
However, the difficulty for the wife is that s 123(3) of the Child Support Act provides that:
Before hearing the application, the court must hear and determine any pending application made to the court for an order under Division 3 (administrative assessments more than 18 months old) or Division 4 (departure orders) in relation to the child, the carer entitled to child support and the liable parent. [Emphasis added].
The wife is seeking an order for the lump sum payment of child support prospectively, that is, in respect to the husband’s future obligations. However, as noted in order to consider the wife’s application, s 123(3) requires me to firstly consider the wife’s application for a departure order pursuant to s 116 of the Child Support Act. That is, it is first necessary to determine the amount of periodic child support that is payable, before converting that into a lump sum amount pursuant to s 123A.
As was noted in Hartnett & Baker (1995) FLC 92-620 at 82,263:
… presumably, this [the requirement to hear those applications] was considered desirable by the Parliament so that the court would know the extent of any such periodic liability in determining under s 124 what orders should be made …
I am satisfied that the wife’s application for an order pursuant to s 116 of the Child Support Act can be heard and determined in the same proceedings as the wife’s application for orders pursuant to s 123A of the Child Support Act. However, in considering the wife’s application for an order pursuant to s 116, it is to be noted that the Child Support Act imposes limitations on the circumstances in which a party can apply to the Court for a departure order.
In that respect, in Harris & Ellis [2011] FamCAFC 90 at [23] to [24], the Full Court said:
There have always been limitations on the circumstances in which a party can apply to a court for a departure order. Those limitations were significantly amended by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth) (“the Reform Act”).
The major difference following the commencement of the amendments made by the Reform Act was the requirement for a party aggrieved by a decision of the Agency to seek a review from the Social Security Appeals Tribunal (“the SSAT”), rather than applying to a court for a departure order. A party aggrieved by a decision of the SSAT may appeal to a court, but the right of appeal is restricted to questions of law: Child Support (Registration and Collection) Act 1988 (Cth) s 89 and s 110B.
In Yewen & Child Support Registrar & Anor [2014] FCCA 2399 at [76] to [79], Judge B considered the legislative history to the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth) and said:
The rationale for the exclusion of the court, from the process of review, is readily explicable in light of the objects as outlined in section 4 of the Assessment Act. Court proceedings, regarding child support assessments, should be the exception rather than the rule. This is particularly so, since the inauguration of the external level of appeal, in child support matters, provided by the SSAT.
The instigation of appeals to SSAT, in child support matters, was part of a wide ranging reform of the child support system inaugurated by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (the “Reform Act”). The SSAT is intended to be a specialist tribunal, dealing with child support matters, in preference to a court such as this one. ….
The important matter to note, in my view, is that departure applications are to be heard by the court in what are categorised as being limited circumstances, given the desirability of such issues being determined in a manner characterised as being less adversarial, whilst, at the same time, remaining fair.

I respectfully agree with that analysis and, in particular, his Honour’s conclusion that court proceedings regarding administrative child support assessments should be the exception, rather than the rule. The fact that, since the enactment of the Tribunals Amalgamation Act 2015 (Cth), this Court no longer has jurisdiction to hear appeals on questions of law in respect to child support, strengthens his Honour’s analysis.
In the context of that legislative history, the Child Support Act sets out several threshold issues that are to be determined prior to the Court considering a child support departure application.
In Saberton & Saberton [2013] FamCAFC 89 at [12], the Full Court confirmed that, before considering an application under s 117 of the Child Support Act, the Court must be satisfied of the matters set out in s 116(1). Section 116 relevantly provides:
Application for order under Division
(1) A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
(b) both of the following apply:
(i) the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii) the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or
(c) in the case of a liable parent--the administrative assessment of child support payable by the liable parent for the child is made under subsection 66(1). [Emphasis added].
In respect of the first of those requirements, it is clear that the liable parent (in this case, the husband) and the carer (in this case, the wife) are parties to an application in a court having jurisdiction under the Child Support Act. Accordingly, the requirement set out in s 116(1)(b)(i) is satisfied.
However, in terms of s 116(1)(b)(ii), it is necessary for the wife to satisfy the Court that it is in the interests of both herself and the husband for the Court to consider whether a departure order should be made in the special circumstances of this case.
In that respect, in Seymour & Seymour [2011] FamCAFC 97 at [84], Strickland J said:
...there is a second prerequisite in s 116(1)(b), and that is the requirement in sub-paragraph (ii) that “the court is satisfied that it would be in the interests of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case.” The difficulty in this case is that it is not apparent that the Federal Magistrate turned his mind to this requirement let alone found that he was so satisfied. Accordingly, it cannot be said that s 116(1)(b) has been satisfied in its entirety, and thus the Federal Magistrate did not have jurisdiction to hear and determine the application for that reason.
In this matter, I am satisfied that it would be in the interests of the wife, being the “carer entitled to child support”, for the Court to consider her application for a departure order. It is apparent that the current child support assessment has been made on the basis of a significant understatement by the husband of the income he has actually received. However, no argument has been presented as to why it would be in the husband’s interests for the Court to exercise its power to make a departure order.
I am not, therefore, satisfied that the precondition set out in s 116(1)(b)(ii) of the Child Support Act has been met.
Moreover, even if I had been satisfied of those threshold requirements and that the wife had established the existence of special circumstances, in terms of s 117, I could not, in terms of s 123A(1)(b), on the facts available, be satisfied that it would be “just and equitable”, as regards the husband, for there to be an order for the payment of lump sum child support. This is because, until the first Town B property is sold, I am not in a position to determine whether the husband will be left with sufficient property from which such a payment (or even 50 per cent of the lump sum amount, as alternatively sought by the wife) could be satisfied. This is particularly so, given that I propose to make orders for specific amounts to be deducted from the sale proceeds of the first Town B property before a distribution is made to the husband.
Accordingly, I dismiss the wife’s application for orders pursuant to ss 116 and 123A of the Child Support Act. In doing so, I note that I do not reject the merits of the wife’s argument that the husband should be paying child support and that the current rate of the same should be increased. In that respect, the husband has not presented any valid explanation as to why he has failed to meet his child support obligation. It does him no credit that his failure to do so has continued, despite the fact that he received a substantial inheritance. Further, I have found that the husband has significantly understated his income in a manner that has impacted upon the child support assessment to his advantage and contrary to the interests of the child.
In the circumstances, while I do not propose to make an order pursuant to s 123A, as noted above, I will make an order for the arrears of child support payable by the husband to be paid from the portion of sale proceeds of the first Town B property that otherwise would have been distributed to him. In that respect, I have earlier referred to Zdravkovic, where it was held that, in appropriate circumstances, the Court is not precluded from ordering the discharge of a debt payable to third parties in the course of achieving a just and equitable distribution of the parties’ property. In this case, the debt is payable to the Child Support Agency. However, in circumstances where such a payment is ultimately to be made for the benefit of the wife and the child, the appropriate course is, in my view, to make an order for the payment to be made directly to the wife. I consider that I have ample power to make such an order, having regard to the broad discretionary powers given to the Court pursuant to ss 90SM and 90SN of the Act, including, as specified in s 90SS(1)(k), the power to make such order as the Court considers necessary “to do justice”. In my view, the wife would suffer a significant injustice if that order were not made because the husband’s past conduct points to the fact that he is unlikely to, otherwise, meet those arrears of child support.
Again, to avoid doubt, while it would be appropriate for the Child Support Agency to have regard to the fact that I will make an order requiring the husband to pay arrears of child support directly to the wife, that order should not be considered to preclude the wife from seeking such retrospective variation in the husband’s child support obligations as she and the Agency consider to be appropriate.

Conclusion – property orders

While the husband did not formally seek any property orders other than to retain his superannuation, throughout the hearing, and in his case outline document, he alluded to the fact that he sought to retain the first Town B property and pay the wife a lump sum settlement in respect of her interest in that property. I agree with the submission of Counsel for the wife that, based on the property currently held by the husband, the Court cannot be satisfied that he is in a financial position to make such a lump sum payment. Further, in the absence of current valuation evidence for the first Town B property, it is not possible to determine what that payment should be.
In those circumstances, as previously explained, it is appropriate to make orders for the sale of the first Town B property, as sought by the wife.
In making orders to that effect, I note that the husband has argued against the appropriateness of the wife’s proposed orders for the sale of the first Town B property. In that regard, he states:
The Child should be able to derive a benefit from the property based on its location and the opportunity to engage with family in Darwin as opposed to the lengthy costs of travel and accommodation if the property is not retained by the [husband].
The husband further states that he has called the first Town B property his home since 1991, and that it “provides the Child with a long term benefit and a cultural appropriate benefit for her long term development, significantly her immersion in her culture”.
There was no evidence before the Court that the Town B property is of cultural significance to the husband. Further, I do not accept that the benefit to the child of the husband retaining that property would outweigh the benefit she will receive from the wife, who has been solely responsible for the child’s financial support, receiving a distribution of the sale proceeds.
In circumstances where he has failed to respond to requests for that property to be appropriately valued, the Court is left without an alternative means of determining its value without an order for the property to be sold, effectively allowing for the current market to determine that value. Insofar as he wishes to retain the property, the husband will, of course, have every right to make an offer for the purchase of the property at the appropriate market value.
As set out above, I have determined that there should be a 22.5 per cent adjustment of the parties’ property in favour of the wife (“the adjustment figure). Following the sale of the first Town B property, it will be necessary to make the following deductions before applying the adjustment figure to the sale proceeds:
a)The costs associated with that sale;
b)The discharge of the M Street mortgage, secured over the first Town B property;
c)The repayment of the parties’ $3,000 debt to the wife’s parents, in terms of the unpaid loan for the trailer; and
d)An adjustment to the wife, given that the husband will retain possession of a greater amount of the property contained in the balance sheet set out above than I have determined to be a just and equitable distribution of the parties’ property.
Based on my conclusions regarding the asset pool, I have found the parties’ net assets, which are capable of valuation, to be valued at $148,143. The wife is entitled to 72.5 per cent of that net property, being $107,403.68. The assets currently in the wife’s possession, including her superannuation, total $76,462. As such, there needs to be an adjustment of those assets so that the wife is in receipt of 72.5 per cent of the property pool. On that basis, I have made an order that $30,941.68 be distributed to the wife from the balance of the sale proceeds of the first Town B property.
After those payments have been made, there should be a distribution of 72.5 per cent of the balance of the sale proceeds of the first Town B property to the wife.
Thereafter, I have made orders for deductions to be made from the balance of the sale proceeds, in terms of the liabilities that I have determined the husband should be personally responsible for. Those liabilities are:
a)Outstanding council rates and sewerage service charges, water consumption charges and all other charges, costs and expenses which are payable to the Public Utility or any other authority for water or power services with respect to the first Town B property;
b)Outstanding legal costs payable to the wife, in the sum of $33,705.66, pursuant to orders of the Court; and
c)Outstanding child support payments in the sum of $10,817.
Finally, the husband will receive the balance of the sale proceeds of the first Town B property, after those liabilities have been paid. He will also retain his Motor vehicle 2, the value of which is unknown, his furniture and household contents, the trailer, his savings and his superannuation. The total value of those items of property is $52,969. He will also retain the motor vehicle.
As the husband failed to respond to correspondence from the wife’s solicitors regarding an updated valuation of the first Town B property, it is not possible to quantify the distribution the he will receive. However, based on the 2013 valuation, which valued the first Town B property at $520,000, and an estimation of the costs of that sale being $5,000, the husband would receive approximately $22,500 from the sale proceeds.
The wife will receive 72.5 per cent of the net proceeds of the sale of the first Town B property, however, she will also retain responsibility for meeting her credit card liability and the substantial loan to her parents in respect to her legal fees.
I am satisfied that this outcome is just and equitable, having regard to the matters to which I have referred in these Reasons for Judgment.

Costs

As foreshadowed, I propose to reserve the question of costs in this matter, including the costs of the ICL, until the parties have had the opportunity to reflect upon my Reasons for Judgment.

I certify that the preceding five hundred and six (506) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 12 March 2019.

Associate:

Date: 12 March 2019