MAKAM and RAIKAR

[2015] FCWA 104

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: MAKAM and RAIKAR [2015] FCWA 104

CORAM: CRISFORD J

HEARD: 14, 15, 16, 17, 18, 21, 22 & 24 SEPTEMBER 2015, 18 NOVEMBER 2015, 8 DECEMBER 2015 AND 6 JANUARY 2016

DELIVERED : 29 JANUARY 2016

FILE NO/S: PTW 2551 of 2012

BETWEEN: MR RAIKAR

Applicant

AND

MS MAKAM
Respondent

Catchwords:

CHILDREN – RELOCATION – Where at the commencement of their relationship the parties agreed that the mother and her daughter from a previous relationship would relocate from the United States of America (“the USA”) to live with the father as a family in Western Australia – where there is one child of the marriage aged nine – where the mother seeks sole parental responsibility for the child and the ability to relocate, with the child and her daughter, to the USA – where the father opposes relocation and seeks that the parties share parental responsibility for the child – where the Court found that the presumption that it is in the child’s best interest for parents to have equal shared parental responsibility had not been rebutted – where the Court considers that the child should spend, at the very least, substantial and significant time with each parent – where the Court considers that the proposals put forward by the father are more in line with the best interests of the child – where relocation is not permitted.

PROPERTY SETTLEMENT – Where it is just and equitable to make orders in relation to the parties’ property – where the husband maintains he made a greater contribution amounting to 70 per cent – where the wife accepts the husband made a greater initial contribution but disputes the magnitude – where the husband says the wife is entitled to an adjustment of 25 per cent pursuant to s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) – where the wife says her future needs warrant a substantial adjustment – where the husband says that an appropriate final result is for the parties to share equally in their property – where the Court found that the husband made a greater contribution overall amounting to 65 per cent – where the Court found that the wife was entitled to an adjustment of 27.5 per cent pursuant to s 75 (2) of the Act.

SPOUSAL MAINTENANCE – Where the wife seeks that the husband pay her periodic spousal maintenance in an amount determined by the Court – where orders were made earlier in the proceedings for the husband to pay the wife periodic spousal maintenance of $1,390 a week and additional payments to include the mortgage repayments; gym fees; car registration; and utility expenses – where the husband has made a concession in the orders he proposes in relation to the payment of spousal maintenance in the amount of $1,000 a week to the wife – where the Court found that the wife has overcome any threshold requirement – where it is difficult to ascertain the husband’s true financial position – where the Court found that the husband had not fully exercised his income earning capacity – where the Court found the husband should pay the wife $1,250 each week for her own living expenses for a period of three years and her rent until the cash component of the property settlement is paid.

CHILD SUPPORT – Where both parties agree that there be a departure order pursuant to s 124 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) for the husband to pay child support in a form other than periodic payments – where the child support includes school tuition fees and all related educational expenses; medical expenses; private health insurance; and attendance at Kumon – where the parties agree that those payments are not to be credited against the husband’s liability under the administrative assessment of child support in force or to be issued – where the wife seeks that pursuant to s 117 of the Assessment Act there be a departure from an administrative assessment and that the husband pay support at the rate of $400 per week – where the Court considers it appropriate that the husband pay child support at the rate of $350 a week.

STEP-CHILD MAINTENANCE – Where at the commencement of their relationship the parties entered into a care arrangement with the step-child’s father which provided that the husband would be responsible for financially providing for the step-child – where the parties agree that the husband will pay, pursuant to s 66M of the Act, school tuition fees and all related educational expenses; medical expenses; and private health insurance for the step-child – where the wife seeks the husband pay a periodic amount of $420 a week – where the husband is prepared to pay an amount of $100 a week – where the Court considers it appropriate that the husband pay $400 a week.

Legislation:

Family Law Act 1975 (Cth), s 4(1), s 60CA, s 60CC, s 61B, 61DA, s 66M, s 72, s 74, s 75, s 79, s 117(2A).
Child Support (Assessment) Act 1989 (Cth), s 117, s 124, s 125.
Income Tax Assessment Act 1936 (Cth).

Category: Reportable

Representation:

Counsel:

Applicant: Mr J Hedges

Respondent: Mr S Jones

Solicitors:

Applicant: Carr & Co

Respondent: O'Sullivan Davies

Case(s) referred to in judgment(s):

Beklar & Beklar [2013] FamCA 327

Bevan and Bevan (1995) FLC 92-600

Bevan v Bevan (2013) FLC 93-545

Brown and Brown (2007) FLC 93-316

Chorn and Hopkins (2004) FLC 93-204

Cook and Cook (No 6) [2010] FamCA 810

Murray v Figge (1974) 4 ALR 612

Sawant & Karanth [2014] FamCAFC 235

Stanford v Stanford (2012) 247 CLR 108

Summitt (Re-opening) [2009] FamCA 365

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Parenting matters

1[Ms Makam] (“the mother/wife”) and [Mr Raikar] (“the father/husband”) were married [in] March 2006 after meeting on an online dating site in the middle of 2005. At that time the mother lived in the United States of America (“the USA”) with her daughter of a previous marriage, [Child B], now aged 16 years. The parties agreed the mother would relocate to Western Australia, with [Child B], to live together as a family. Their son, [Child A], was born [in] December 2006. He is now nine.

2By all accounts the parties experienced difficulties in their relationship from early 2009. They separated on a final basis in January 2012.

3The mother commenced proceedings on 8 May 2012 seeking a financial settlement and periodic support for herself and each of the children. On 8 August 2014 she also asked the court to assist in determining children’s issues, including the ability to return to the USA with Child B and Child A. The father opposes this move and wants Child A to remain living in Perth.

4Where a court is called upon to decide orders in what have become known as “relocation cases” a sensitive melding of concepts arise. Not only must the court apply the principle that the best interests of the child is the paramount consideration, but it must also have regard to the right to freedom of movement of a parent. Often there is simply no satisfactory outcome, especially as in the circumstances here, Child A has two perfectly capable, loving and dedicated parents.

The parties’ proposals

5The Full Court of the Family Court of Australia in Sawant & Karanth [2014] FamCAFC 235 recently commented, in the context of a relocation case, that:

8. Orders that contemplate one parent and the child living in a place geographically remote from the other parent immediately bring the Objects and Principles of Part VII of Family Law Act 1975 … into sharp focus. The Objects of the Part “are to ensure that the best interests of children are met by” them having, among other things, “the benefit of both of their parents having a meaningful involvement in their lives …”. (s 60B(1)). The Principles underlying those Objects include the child’s right to “… spend time on a regular basis with … both their parents …” (s 60B(2)).

9.Yet, neither that right vested in the child, nor those consequential roles of the child’s parents, is absolute; when parents are unable to agree upon co-parenting arrangements, that right and those roles is each qualified by the Court’s determination as to what orders best meet the particular child’s best interests. That is neither more nor less so when a proposed significant geographical separation renders acute those Objects and Principles and the Considerations which mandatorily dictate the manner in which the child’s best interests are determined. While “relocation case” is a convenient descriptor for cases of this type, no specific statutory principles govern cases which meet that description. (See, for example, M v S (2007) FLC 93-313 per Dessau J; Taylor v Barker (2007) 37 FamLR 461).

10.The parties’ proposals are important because they mark each parent’s own assessment of the nature and extent of their role; that is, what each sees as their “meaningful involvement” in the life of their child consistent with the child’s best interests. For that reason alone those proposals must be carefully considered albeit that, because the court is charged independently with arriving at a decision as to the child’s best interests, it is not bound by those proposals (see U v U (2002) 211 CLR 238 at [70], [72] per Gummow, Callinan JJ; Gleeson CJ and McHugh J agreeing).

6A convenient starting point is what each party seeks by way of final orders.

Orders sought by the father

7The father seeks that the parties share parental responsibility for Child A. He opposes the mother moving to the USA and seeks to have Child A live with each of his parents in Perth on a week about basis. He seeks a raft of specific issues orders and further definition of the time Child A is to spend with the other parent, over holiday periods and on special occasions.

8If the mother is permitted to relocate to the USA with Child A he accepts there should be orders that Child A live with her and that he spends approximately ten weeks each year with him, mostly in Australia, but with some provision for time in the USA.

Orders sought by the mother

9The mother seeks that she have sole parental responsibility for Child A. Initially she sought that parental responsibility be shared equally but her position changed at the end of the trial.

10The mother wants Child A to live with her in the USA. She proposes that Child A spend at least eight weeks each year with the father either in Australia or the USA. She also provides for specific issues and other child related matters.

11In the event Child A is to reside in Australia the mother will remain here as well. She seeks orders that Child A live with her and spends time with the father, each alternate weekend from Friday afternoon until the commencement of school on Monday and for a relatively short period of time after school on a Wednesday. She also makes provision for special days and holiday periods. Overall, the mother seeks to reduce the time Child A currently has with the father.

12To their credit, each party was able to contemplate various proposals depending on where Child A may live.

Applying the facts to the law

13The competing positions of the parties will now be discussed in the context of s 60CC of the Family Law Act 1975 (Cth) (“the Act”) in order to arrive at what is in Child A’s best interests.

14Section 60CC(2A) provides that, when applying the primary considerations the court is to give greater weight to the second noted primary consideration contained in s 60CC(2A).

•the benefit to the child of having a meaningful relationship with both of the child’s parents

15It is common ground that Child A presently reaps the benefit of having a meaningful relationship with both of his parents.

16Historically, the mother has been Child A’s primary caregiver. She did not work during the parties’ relationship and was the principal homemaker for Child A and Child B. She has been a dedicated mother. Dr Philip Watts was appointed single expert witness by the court on 12 August 2014. He described the mother as home-based, loving, warm and supportive.

17Prior to the parties’ final separation in early 2012, I accept that the father was heavily involved in building up his medical practice. The father is a [doctor] and presently works one day each week, and is on call one week in four, at [Hospital A] (“[Hospital A]”). At trial he worked four days in various private practices in which he then had an interest.

18During the latter years of the parties’ marriage the father also conducted an extra marital affair which consumed some more of his time.

19Since separation, and gradually up until trial, the father has spent an increasing amount of time with Child A. Since court orders were made on 13 October 2014, Child A has lived with him for six nights each fortnight. The father has involved himself, in particular, in Child A’s sporting and academic pursuits. He has an established and regular relationship with Child A. Dr Watts described him as a very energetic, outgoing and dynamic father.

20Dr Watts commented that Child A now has a strong and equal attachment to his parents. This was supported by the evidence at trial.

21Dr Watts accepted that the father’s present meaningful relationship with Child A made spending time with him, if he lived overseas, easier to manage. Child A is not particularly young and already has an established familiarity with the father. This overcomes a number of issues in terms of communicating by electronic means and the practical issues of visiting another country. He would be going to someone with whom he has an existing strong attachment.

22However, Dr Watts also observed that the very nature of the relationship Child A has with the father may well make it more difficult for Child A to settle successfully in another country. I find the strength of Child A’s relationship with the father has its foundation in regular daily activities such as school and sports.

23Although there is nothing to suggest that either party would deliberately plan to reduce the current benefits Child A has from his meaningful relationship with them both, it is unlikely that these benefits will be the same if there is a geographical divide in living arrangements. This is to be weighed with all other matters.

•the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

24This is not a consideration that features in this case in any material way. If any aspects of it arise these matters are dealt with elsewhere in my judgment.

25I now turn to the additional considerations I must address. These are not secondary considerations, but are matters to be read in conjunction with the primary considerations. There is overlap between some of the categories.

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

26Dr Watts prepared two reports. The first was published on 14 December 2014 and an update was provided on 5 September 2015. The parties were first seen in October and November 2014.

27Dr Watts was asked to consider, as far as was possible and appropriate, the views of Child A in relation to residence. He noted Child A’s age and considered any views in that context. He commented that Child A did not present as an influenced child. Child A was able to express his thoughts clearly and appropriately. Dr Watts did not get a sense that Child A had any clear preference as to where he would live. Child A was not then aware of the proposed relocation to the USA.

28I note Dr Watts, himself, raised with Child A, in a theoretical sense, the issue of the mother deciding to go back to the USA to live with her family. Child A said “I wouldn’t like to do that at all, they don’t play Australian footy, they don’t play soccer, they don’t do cricket in America”. Although he spoke positively about being able to see a cousin, there was no indication of any desire to live anywhere else but in Australia.

29By the time of the updated report, almost a year later, Child A was aware of the mother’s wish to relocate. The circumstance in which this was revealed to Child A is in dispute. The parties blame each other for trying to influence Child A either for, or against, going to the USA. Both parties deny they had discussed it with him. As Dr Watts noted in his first report; although Child A presented as one of the least influenced children he had seen in the context of such intense underlying feelings, it did not mean that his parents’ views would not sometimes come to his awareness. A further explanation for Child A’s knowledge could have come from Child B who by all accounts has a close relationship with him. She wants to live in the USA and probably has some desire for Child A to be with her there. I simply do not have enough independent evidence to make adverse findings against either party in this respect. There are many possibilities as to the source of Child A’s knowledge.

30However, on a trip to the USA in early December 2014, primarily to visit the mother’s ailing father, the mother took Child A to visit a school she had hoped he would attend if permission to relocate was granted. Child A was taken on, what the mother describes as, a tour of academic assessments at [School X], an independent school in [the USA], a school the mother considers suitable for Child A and Child B. Child A also visited the school at which his cousin attends.

31Child A told Dr Watts that he did not like the schools that he was taken to visit very much. He confirmed his previous high regard of his present school [School C] (“[School C]”). In this interview he reiterated that he did not want to leave School C or his friends. Although he said he would like to get to see his cousin in the USA, he said he would not like being without the father. He said he would definitely rather stay in Australia.

32At this second interview, although Child A did not present as an overly influenced child, it was clear to Dr Watts that each party had at least spoken to Child A about some aspects of a potential relocation.

33When Child A was asked about his view on the different possible proposals and arrangements his clear preference was for both parents to stay in Australia and for him to spend equal time with them. His least preferred option was going to the USA. This ranked below him remaining in Australia without his mother and his sister.

34Dr Watts found Child A to be a high-functioning child both academically and socially. However, Child A is still only nine years old. His views will be taken into account along with all the other evidence but are not likely to be the overarching reason for my decision.

•the nature of the relationship of the child with:

(i)each of the child’s parents; and

(ii)other persons (including any grandparent or other relative of the child)

35Child A has an excellent relationship with both of his parents. They each have a different relationship with him, but he has very positive experiences with them both. To over analyse the actions of each party vis à vis Child A would descend to the pernickety.

36The mother was the primary homemaker and carer up to separation. Since that time the father has played an increasingly greater role.

37Child A has a special relationship with his sister Child B. She is 16 years old. Despite the difference in age and maturity, Dr Watts accepted that this was an important and exceptional relationship for Child A.

38The mother’s parents reside in the USA. Her brother and sister-in-law also reside there. The mother’s brother attended the trial to support her. They have a close relationship. There is nothing to suggest that Child A has anything but a good relationship with all these maternal relatives. However, Child A’s own particular identification of closeness is with one of his cousins in the USA.

39In Australia, Child A has a close relationship with his father’s parents, his paternal grandmother in particular. He sees them weekly. His paternal aunt also lives with Child A’s grandparents. Child A has a close and loving relationship with her.

40It is of some note that the mother and Child B continue to have a very cordial relationship with the father’s parents and sister. The mother takes both Child A and Child B to visit them and they participate in social activities together.

•the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long-term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child

41Although the father was less involved with Child A than the mother prior to separation, due to both work and other activities, since then he has availed himself of every opportunity to participate in his life. The mother has been constant throughout.

•the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

42I find that both parties have fulfilled their obligation to maintain Child A in accordance with their individual capacities.

•the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

43Given Dr Watts’ assessment, with which I agree, Child A has a strong and equal attachment to both his parents and any separation from either of them would cause stress no matter where he lives.

44Dr Watts opined that there would be dilemmas for the mother if Child A did not want to be in the USA but was taken there. Any separation from the father brings with it not only a physical separation, but also a cessation of the father’s active involvement in Child A’s sporting and educational activities.

45Child A’s strong positive attitude to his present school, teachers and friends predated any knowledge of a possibility of going to the USA. He is very settled and integrated into his present social and academic environment.

46If he was living in the USA, Child A would experience a loss of contact with the paternal family who reside in Australia. In return he would see more of the maternal family. There is no evidence to suggest that Child B would not remain in Australia with her mother, at least in the short term, if Child A was to remain. Although Child B wants to go to the USA, she is also settled and content here. She attends [School D] and is doing well socially and academically.

47It is convenient here to consider the mother’s wish to relocate to the USA, where she has lived most of her life. She went to the USA from India at six months of age.

48The mother first advised the father of her intention to seek orders to relocate with Child A to the USA on 4 August 2014, over two years after she initiated proceedings. She deposed to having always lived in the USA save for the period of the marriage when the parties mutually agreed to live in Perth.

49The mother says she is unhappy here for a variety of reasons but importantly because she has no immediate family members and very few friends. She says that she has a strong circle of friends in the USA who can provide support to her. She wants to be close to her family of origin and to the Indian community there. She also says the cost of living is cheaper in [the USA] than in Perth and that it would be better for her mental health to live there. That in turn would flow on to the children.

50In deposing about her reasons for wanting to relocate the mother said:

My consulting psychiatrist agrees that a return to the United States would be in my best interest and therefore in the children’s best interests.

51This does not appear to take into account the fact that Child A presently has an equal attachment to his parents.

52Despite this I accept that most of these reasons, if correct, are appropriate reasons. I have no doubt that the mother sought to underplay the strength and extent of her friendships and support group in Perth. I find she does have support here, but has not necessarily cultivated it to any great extent given her wish to relocate.

53There was no evidence to support that the costs of living would be cheaper in [the USA] than in Perth. The properties about which the mother had shown an interest to purchase were at least as expensive as those in Perth. However, it became apparent in cross-examination that it would be possible to purchase cheaper accommodation. The mother has pitched her interest at a very high level, including the price. The cost of schooling, or perhaps the school the mother has identified as being appropriate for Child A, may well be more expensive than Child A’s current school in Perth.

54An issue of importance is that of the mother’s mental health and her ability to find support for this condition. What is plain is that the mother has been able to quarantine Child A, and to a lesser extent Child B, from her mental health difficulties. She has been able to continue her parenting duties to a very high standard. She has not allowed personal difficulties to intrude on the children’s lives to any great extent.

55Nedialka Lazarov, clinical psychologist, has been treating the mother since July 2011. The mother first attended Ms Lazarov for depression in the context of her marital conflict. There were other stresses present that related to her family of origin and also adjustment issues as a new migrant. Ms Lazarov cited marital conflict as the main stressor.

56On 21 November 2013 Ms Lazarov reported that the mother was still quite vulnerable to becoming depressed and anxious, however she had grown in confidence. She had mastered a degree of success in utilising strategies to deal with her symptoms. In a further report of 4 August 2014 Ms Lazarov reported that the mother had continued to experience fluctuating symptoms of depression and anxiety relative to the ongoing marital stress. It was reported that the mother had become less reactive to the marital stresses and had become more resilient in coping. However, she remained vulnerable while the stressors were present. The mother’s communication with the father has demonstrated an increasing ability to be assertive and proactive.

57At trial Ms Lazarov said that the mother, at the present time, does not have the same tendency to collapse emotionally. When she is under stress she makes a much quicker recovery. Ms Lazarov felt that the father bullying the mother was an issue.

58Dr De Felice, the mother’s treating psychiatrist, first saw the mother [in] September 2011. He had seen her following her admission to the Perth Clinic on that date. He concluded that she had suffered from major depression in the context of a situational crisis. This had led to her very substantial distress and admission to hospital. He said the origins of the major depression had been present at least since 2007. Whilst there were other stressors in her life that weighed upon her, it was the ongoing matters with the father that had been particularly problematic for her. He, like Ms Lazarov, identified not just her separation issues, but also difficulties with her family of origin that had led to marked anxiety at times.

59[In] July 2014 Dr De Felice was still of the opinion that the mother had suffered from a major depressive disorder and was continuing to suffer residual symptoms of this. When specifically asked to provide his “professional opinion as to whether you think that this would be in the best interests of the children and [the mother]” in relation to a relocation to the USA, he opined that it would be helpful for the mother’s mental health. He identified the mother being closer to her parents and family and being away from the conflict in her relationship with the father as being important in this regard.

60Dr De Felice said that the conclusion of court proceedings would improve the mother’s position. It would mean that an important stressor was relieved. This would not necessarily end the acrimony as such, as the mother was still highly sensitive to the father’s behaviour. Dr De Felice said the mother would always have a major depressive disorder although with reduced symptoms, most of the time. It is beyond doubt that the mother is highly sensitive to the father’s behaviour. However, it is not the only trigger for her depression and anxiety which could resurface elsewhere, in particular in the USA, where her family of origin lives.

61There is no shying away from this issue, but the mother has continued to parent at a very high level. She has coped much better in recent times and with assistance of her counsellor.

•the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

62If Child A remains in Australia I do not consider there will be any such difficulty. If Child A is to live in the USA there will be substantial expense in both communicating, and spending time, with the father.

63Although the mother’s orders anticipate her contributing to some of the costs in her accompanying Child A to and from Australia, I find it highly unlikely she will be in a position to make any substantial contribution either in the short or medium term. The mother deposed to wanting to study a full-fee paying university course in the USA of three years duration. Her mental health presently precludes paid employment.

64The financial impost of travel will fall fairly and squarely on the father. Whilst an accompanying person is required, this will be considerable.

65The father has the potential to earn a substantial income and, no doubt, will do so in the future. The costs of travel may reduce money available to the parties for other expenses.

•the capacity of:

(i)each of the child’s parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

66I am satisfied both parties are capable of providing for Child A’s needs. The mother says the father has particularly fostered Child A’s academic and sporting pursuits. She says he is a good financial provider. The father accepts Child A and the mother have a close and loving relationship. He says Child A loves the mother very much. She is very nurturing.

67Dr Watts commented that the mother is highly capable of meeting Child A’s emotional needs. He also noted the father is very competent and child focussed in his involvement with Child A. Dr Watts felt the father may push Child A a little beyond his boundaries. This related to the transportation of Child A in the front seat of a sports car before he was seven years of age.

68Dr Watts also commented that the father can be impatient and tends to use a more critical approach if Child A does not meet a particular standard. He recommended the father do some counselling with a child psychologist around appropriate strategies to assist his parenting skills. The father said he relatively recently attended three sessions with a child psychologist, Carol Smith, to address this specific issue. I will return to this later.

69Both parties are interested in Child A’s academic pursuits and both assist and support him. The father fosters Child A’s love of sport. There is nothing to suggest the mother is against this. She has had less opportunity to do so.

70Dr Watts commented that the parties have a dysfunctional relationship. This was an impediment to them dealing with many parenting issues appropriately. The parties have very different personalities.

71The mother presented as an intelligent and articulate person. She has a Bachelor of Arts in Sociology and a Master of Public Health. She is very warm and sensitive by nature and gives the impression of being an able and loving mother. She has been described as over-protective. In the period leading up to the final separation, she had a depressive breakdown. This occurred [in] September 2011 and she was hospitalised. It appears that, over time, her medications have been reduced and she has become far more stable. I gained the impression, and this is supported by Dr Watts’ observations, that the mother is very anxious by nature. Dr De Felice said the mother had an overdeveloped sense of responsibility. When her depression was present the mother had an exaggerated sense of guilt.

72The mother is highly distrustful of the father. This is understandable given his infidelity, but the distrust seems to permeate all her dealings with him. Although the mother is highly critical of the manner in which the father deals with conflict, the evidence supports that her own ability to deal with interpersonal confrontation is less than ideal.

73The father has very strong views. He has a tendency to share these views. There is no doubt that he could be perceived as impatient, demanding and very self‑confident. Although he was able to express, what I consider to be, genuine regret at some of his actions he also presented with a rigidity that would make negotiation and compromise very difficult. He is intelligent and articulate.

74I accept Dr Watts’ comment that although the father’s more obvious and visible faults are unattractive, the mother’s own less obvious faults such as her communication style has very much played a part in their parenting difficulties.

75Counsel for each party sought to tender extracts of text messages and chains of email communication in order to demonstrate to the Court how some communication was calm and reasonable and other communication was inflammatory and bullying. On occasions the same document was used in an attempt to establish the two disparate positions. In the main, the tone of the parties’ communication was morally indignant, self-serving and of little use to the Court in understanding the real dynamics between the parties. Each has the capacity to be petty, childish and largely disrespectful. They also have the ability to agree and be sensible.

76There are some specific examples which make plain their problems in dealing with their children’s needs.

77The mother’s previous husband, and Child B’s father, [Mr Mane], gave permission for the parties to take Child B to live in Australia. There was an agreed care plan between the mother; the father; and Mr Mane, dated February 2006. The parties would bear all the financial responsibility for Child B while she resided in Australia and Mr Mane was relieved of his obligation to pay any child support. Arrangements were made for Mr Mane to spend time with Child B in Australia.

78There were problems, almost immediately, relating to Mr Mane and his relationship with the mother. The father said there were regular telephone exchanges, between the mother and Mr Mane, often a daily basis. The father said that he had no difficulty with Mr Mane communicating regularly with Child B but he did not feel comfortable with the mother and Mr Mane speaking almost daily on the telephone.

79Whilst there was provision for Mr Mane to visit Child B in Australia, the father’s position was that he did not want Mr Mane residing in what was now the parties’ matrimonial home. He felt it was more appropriate that Mr Mane reside in a hotel and visit the parties’ home to partake of meals. He had no difficulty with Mr Mane spending time with Child B and encouraged the relationship, but wanted some boundaries around his home. The mother had a different expectation. She wanted Mr Mane to spend time with her and Child B at the matrimonial home. The father said this was often during the day when he was at work and he felt uncomfortable about it.

80There was considerable tension between the parties about their different expectations of how Mr Mane fitted in with the parties’ family unit in Australia.

81The matter was further complicated when Mr Mane was later charged with attempted murder. The father said that Mr Mane had “stabbed his ex-partner in a drunken rage”. In any event, the offence attracted a term of life imprisonment with eligibility for parole after 13 years. It is common ground that alcohol and drugs were involved in the commission of the offence.

82During Mr Mane’s legal proceedings, generally, and the sentencing procedure in particular, the mother was called upon to provide support for Mr Mane, by providing a letter describing him as a non-violent person. This had been her experience during their relationship. The mother was concerned that if she did not make this gesture Child B would feel unsupported by her. On the other hand the father felt that it was inappropriate to become involved in such a process given the mother’s commitment to a new life and family in Australia. He said it was taking up a considerable amount of the mother’s time and energy. It impacted on their relationship adversely.

83There were two points of view. The mother displayed an over-responsible attitude towards her former husband both on his visit to Australia and throughout the sentencing process. I accept she took on board Mr Mane’s problems to a greater extent than was necessary, even taking into account his position as Child B’s father. All these are in line with the evidence of her personality as expressed by Dr De Felice.

84On the other hand, the father appeared to have adopted a highly controlling and inflexible approach to what was a difficult time for the mother and Child B. I accept the father had no wish to hamper the relationship between Child B and her father but he did not want the mother as involved as she felt she needed to be.

85It was put to the father that the mother had been very encouraging of Mr Mane’s relationship with Child B and this would translate to a like attitude if she was permitted, by him, to relocate to the USA. The father disputed this. He said there was a clear difference in both the personalities involved; the circumstances of separation; and the acrimonious legal proceedings. He did not feel at all confident the mother would foster his relationship with Child A if she was granted leave to return to the USA.

86The mother’s proposals, whether they involve her living in the USA or remaining in Australia, have the effect of making Child A less available to the father. Whilst this is obvious in the context of a relocation it is difficult to understand her position if she remains in Perth. The mother said that her priority was one of structure and consistency over any extension of time. She felt it was essential that Child A had one home base and should visit his father in a more restricted time sense. She said Child A returns home very tired after periods with his father. She said she believed that periodic holidays and electronic communication, if she was living in the USA, would be enough for Child A to maintain his relationship with his father.

87The mother had some difficulty in agreeing to the father having block periods of time during the week. Originally the father was having some single periods which included overnights. For practical reasons he had wanted some of that time to include a block period. The mother did not agree. This resulted in him making an application to the court for that to take place. Orders were made on 13 October 2014 for Child A to live with the father for a five night block each fortnight. There is an additional single day involved as well.

88The parties have had difficulties in changing any arrangements over the course of the years. Although the mother is ostensibly more willing than the father to accommodate last minute changes, she can make it very difficult at times. The father’s sense of entitlement means that he presents matters to the mother as a fait accompli and without having sought her input.

89I accept at times the father has been tardy in providing a travel itinerary to the mother. He was also slow in telling her of the possibility in obtaining tickets to go to the Australian Football League Grand Final. There are times when he pays scant regard to the mother’s need for certainty in understanding what Child A will be doing when it might involve interstate or overseas travel. The father needs to be more conscious of her feelings in this regard.

90The mother points to the father’s refusal to allow Child A to travel to the USA with her in mid-2015 when her father was undergoing a medical procedure. The visit would have entailed Child A missing three weeks of school. The principal of School C gave his permission for the mother to take Child A out of school for that period. Despite this the father considered it inappropriate. The mother made an application to the court and was allowed to take Child A for that period of time.

91The parties also complain about their ability to communicate with Child A when he is overseas with the other. Overall I find that this is not so much a deliberate obstruction but that each party is less than accommodating in ensuring that Child A maintains contact over those holiday periods. Neither is particularly helpful.

92Despite all this, there are occasions when the parties have commonality. They can work together in a coordinated and responsible fashion. Their communication can be cooperative and without rancour. The mother deposed in her trial material:

During the month of November [2014] the Court ordered time was not strictly followed, by agreement, on account of [Child B’s] cousin visiting from the US and [Child A’s] father/son camp.

93There were email chains produced to the Court which support this ability.

•the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

94The father is an Indian born, but Australian raised, medical practitioner. The father came to live in Australia when he was 12 years of age. The mother was born in India but her parents immigrated to the USA when she was six months old. She lived there until her marriage to the father.

95The parties met on an Indian internet dating site. More traditionally, it would seem, the father’s parents undertook horoscope matchings to see if the parties were suitably paired. Unfortunately, as it transpired, this was not to be.

96The mother deposed:

As we were from the same backgrounds, spoke the same Indian language (Konkani), were both Hindu Brahmins, we had a lot in common and decided to pursue our relationship to marriage. …

97It was apparent over the 11 days of trial, in observing the parties, that, although they are well educated and live in a Western society, there are cultural issues which define their relationship and are a part of their lives.

98Given the similarity in their backgrounds it is likely that each will foster any Indian culture and tradition appropriately.

•the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

99One of the big issues between the parties was the mother taking Child A to visit and undertake assessments at schools in the USA, before any determination had been made about her wish to relocate.

100The mother’s position was that in order to prepare properly for trial, by showing she had made appropriate enquiries and arrangements for Child A’s schooling should she be able to relocate, she organised visits to various schools whilst holidaying in the USA.

101It was agreed the mother would take Child A to the USA in December 2014 so that they could visit her ill father as he was undergoing medical treatment for cancer. The mother decided to take the opportunity to have Child A undertake an educational assessment to ascertain whether he could gain admission to a school she considered suitable for him.

102This matter had arisen earlier in the year when the mother had requested the principal at School C sign a letter of recognition for the School X. The father withheld his consent to the release of the letter on the basis that interaction with School X was premature.

103In December 2014, and after the mother and Child A had left for the USA, the father received correspondence from the mother’s lawyers advising him that the mother had already departed Australia and that arrangements had been put in place for Child A to undertake an assessment at School X on 9 December 2014.

104The father corresponded with the mother on 6 December 2014 expressing his disappointment at her unilateral decision and made it clear that he did not consent to Child A being taken to the school for this purpose.

105On or about 8 December 2014 both parties, independently, corresponded with Dr Watts, expressing their point of view about this issue. Dr Watts had previously counselled the parties against discussing the relocation with Child A as it could become a source of unnecessary worry for him.

106Dr Watts responded to the parties on 8 December 2014. He expressed a view that the less Child A was involved the better it would be for him. He said:

Given it has been raised it should still be put forward as something being considered as an option only. I would have thought it was premature to be taking him to the school given that it is only a possibility. This is now likely to unsettle [Child A] and there is no way of sorting that part until after the trial [judge] makes a decision. It should not be a focus or it will make it worse for him.

107Dr Watts’ view was made known to the mother the day prior to the School X appointment. She chose to go ahead with it.

108At the trial she accepted she was aware of the father’s disapproval of taking Child A to School X but said she did it anyway. She accepted she had given him no real notice of what her intentions were but quickly added that the father had failed to provide her with an itinerary for an upcoming holiday period he had planned.

109Child A was taken on the academic assessment tour at School X. He also visited his cousin’s school. In June 2015, again without the father’s consent, Child A was taken to do a further intake assessment at the School Y. The mother said Child A has been accepted into this school.

110The mother raised another issue she considered relevant. She said she was critical of the father for not providing sufficient home-cooked food for Child A. However, and in another context, she spoke fondly of going with Child B, when they craved American food, to McDonald’s for a meal of french fries and hamburgers.

111The mother has maintained, to her credit, that the father was an appropriate financial provider during the course of the marriage. However, she was critical about the manner in which he restricted funds immediately after separation. The father viewed the mother as careless with some of her spending and unilaterally reduced the money he had previously paid her. She complained of having enough for basic necessities only. The father had cancelled the Foxtel account and some of the children’s extracurricular lessons.

112When his behaviour at, or about, the time of separation was put to the father he accepted he had been unreasonable. He said he had been hurt at the time and accepted that it was inappropriate for him to “wield economic power”, the expression used by the mother’s counsel. The father said that the first few months after separation had been difficult for him. He accepted that he exerted financial control to a certain degree and said it was irrational and unfair. He accepted that he will be the primary provider for the children and, at least for a period of time, the mother.

113On 19 June 2012 the father gave an undertaking that he would pay the mother spousal maintenance of $1,000 per week along with certain other expenses. Court orders were made on 14 August 2012 that he pay periodic amounts for the children and the mother. Specifically, he was to pay the mother $1,390, along with other amounts which included the home mortgage; gym fees; utility expenses; and health insurance. Child A’s expenses of $400 and Child B’s expenses of $420 per week were to be paid. There was also provision for the children’s school fees to be paid.

114The orders were varied on 12 August 2014 to reflect the change that came about when the former matrimonial home was sold and the mother went into rental accommodation. On 2 January 2015 the father wrote to the mother’s solicitors signalling his intention to reduce the maintenance payments on or about 13 February 2015. There was correspondence about this matter and the father did reduce the maintenance by a considerable amount.

115The reasons for the father’s reduction in maintenance came about as a result of what he considered to be a reduced financial capacity. I find that his reduced financial capacity was more a result of overspending on holidays and lifestyle choices rather than any other reason. Even on his own evidence, he had spent an extraordinary amount on his overseas holidays and other discretionary expenses. Despite the father’s acceptance of his behaviour immediately after separation being akin to wielding economic power, it is clear that this continued to the extent of disobeying court orders. I find his own assessment of his financial capacity fell far short of reality.

116The mother filed an application to enforce the orders for maintenance. The father resumed payment just before the application was to be heard. It is appropriate the mother receive her costs of this application as sought by her.

117At the end of 2008, when the parties were having difficulties but were still cohabiting, the mother became pregnant. She suffered a miscarriage in March 2009. She said that the father was completely unsupportive of her over this very difficult time. She felt very dependent on him but he was emotionally absent. She says his treatment of her shows his lack of responsibility and also a fairly brutal attitude.

118The father was away when the mother’s medical difficulties became problematic. He said this was due to a longstanding work arrangement in the Eastern States. He attended a conference. He said he could not be present to support the mother but made arrangements for his mother to attend and be of assistance to her. He said he considered bed rest and his mother’s assistance in the home would ease the problem. The mother said her mother-in-law did attend. The father said he returned a day early from the conference. However, he went out in the evening to a work related engagement.

119The father was uncertain about some of the timing but there does appear to have been a confrontation between the parties late in the evening on his return from the engagement. He had been drinking. The result was a verbal exchange in which Child B was also involved. The mother left the house with the children, against the wishes of the father, and stayed in a hotel.

120I accept the father was upset and took steps to try and reach the mother to have her return home. He was not able to contact her. The mother deposed that the father contacted her at 11:00am the next day and tried to apologise to her. He asked her to come home. She said no. The mother did return home a day or so later and there was an attempt to resume the relationship. She said the father was cross with Child B and that she, the mother, ended up apologising for Child B’s rudeness, rather than being supported by the father for their loss.

121I am critical of the father’s uncaring and almost flippant approach to the mother’s need for support, in relation to their unborn child, when he returned from the work related trip.

122However, the mother’s response to the father’s attempt to have her return home and to apologise to her was an example of her lack of ability and willingness to ameliorate a bad situation for the sake of the children. As Dr Watts remarked, this was illustrative of the parties’ dysfunctional relationship. They each played a role.

•any family violence involving the child or a member of the child’s family

123The Act defines family violence as:

violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

124In her updating affidavit filed immediately prior to the trial, the mother raised events, she said, that “elaborate on [the father’s] dominating behaviours”. Prior to this affidavit her complaints had centred around issues of verbal bullying and control.

125There were times when there was considerable volatility in this relationship. There was verbal abuse and also I accept what the father’s counsel described as minor scuffles. It is really hard to dissect each incident and attribute blame to one or both of the parties.

126The parties’ personalities are such that each of them react poorly to each other and do things that they later regret.

127The mother says there were two incidents which occurred when she was holding Child A in her arms and the father pushed her. These were when Child A was under five months old. She said her recall was somewhat vague. It appears that the incidents happened during the course of a verbal argument between the parties.

128The mother says the last physical incident took place in April 2007. It happened on a Friday night when the father came home late. The mother was angry with him and asked him to explain where he had been and why he was so late. She deposed that

… Things escalated from there and I was crying and he was ignoring me telling me I was over reacting [sic]. We were in the master bedroom closet at the time. I approached him and put my hands up. He grabbed my left ring and little fingers together and twisted them.

129In cross-examination the mother accepted that she was angry at the father and that she put her hands up in frustration. She accepted that she had gone towards him gesticulating with her hands. The father was looking down at his wallet at the time and as she went towards him he twisted her fingers. She accepted that the father did not want to engage with her but that she was insistent on obtaining some form of explanation from him as to why he was late.

130The father was challenged about inconsistent versions he gave of the same incident. He said the mother’s finger was caught in his shirt. Unfortunately the mother sustained a broken finger during the exchange. I accept that the father’s actions were directly responsible for the injury, but that it was in the course of a rather inelegant tussle between the two.

131The following morning the parties and the children went out for breakfast. The father was looking at the mother’s hand and advised that he thought it was broken. The mother contradicted him by saying it was probably just a bad sprain. The father arranged some medical review and treatment was undertaken.

132The behaviour was unhealthy and unhelpful. For all intents and purposes the parties wanted, at the time of any incident, to put it behind them and to move forward.

133I am not satisfied that there was any physical family violence to the extent that it dominated this relationship. It was not the hallmark of it. The parties remained together in some form or other until 2011 or early 2012 and the mother makes no mention of physical interaction after 2007. It is not a present issue.

134Dr Watts commented:

This is a case where the mother raises allegations about the father including him being controlling, bullying, and harmful in what he says to the children. [Child B] confirms that there have been some issues in how he treated her. I am not satisfied that he would be abusive, but the personality and parenting features identified earlier could cause problems on occasion. I am not satisfied that it is harmful but certainly could be less than optimal at time.

135The father is self-opinionated and forceful. I have previously commented on some of his personality features which emphasise his sense of entitlement.

•if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

(i)the nature of the order;

(ii)the circumstances in which the order was made;

(iii)any evidence admitted in proceedings for the order;

(iv)any findings made by the court in, or in proceedings for, the order;

(v)any other relevant matter

136[Ms Lord], the woman with whom the father was conducting an extra‑marital affair, provided a proof of evidence to the Court. She said that she was in a relationship with the father approximately one year before she obtained a violence restraining order (“VRO”) against him in about September 2011.

137The basis upon which the VRO was sought, according to Ms Lord, was that the father was “nagging” her. He wanted to look through her phone and emails. They argued at her home when her three year old daughter was asleep. She said she applied for the VRO to enable her to have some peace. From her proof of evidence it appears that at the final hearing the matter may have settled by way of a mutual undertaking.

138This is a period in the father’s life about which he expressed embarrassment and regret.

•whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

139To date Child A has been relatively unscathed by the disharmony between his parents. Of late I find each of them has involved him to some degree. He now needs to enjoy his life without the spectre of the courts and the attendant stress being a part of his life.

•any other fact or circumstance that the court thinks is relevant

140In the lead up to trial the father acted on a recommendation of Dr Watts, made some six months earlier, to access counselling. Dr Watts had identified that the father needed some assistance with his parenting strategies and at the father’s request provided some names for him to make enquiries. The father had three sessions with Ms Smith. He said he was wanting help dealing with the stress of the mother’s possible relocation and also to help Child A. I am not satisfied he has addressed the specific issues raised by Dr Watts.

141I consider it appropriate, and necessary, that the father has further sessions to address the aspects of his personality that may cause Child A some difficulties. I do not consider the issues raised by Dr Watts are of such a magnitude to reduce the father’s involvement with Child A. Rather, he could use some assistance to modify the less positive aspects of his personality as they impact on his parenting. This includes issues of excluding the mother and not consulting her properly. To that end I will make an order to allow the therapist to see Dr Watts’ two reports so that the difficult issues can be addressed rather than just the issues the father considers relevant.

142I will here describe the relationship between the father and his step-daughter, Child B. The father wholeheartedly and willingly took over the financial responsibility for Child B when she came to Australia. The evidence supports a developing and close relationship between the two at that stage. Child B has always been close to Mr Mane but was also, albeit slowly, accepting of having a step‑father in her life. In turn the father was interested in Child B and participated in her education and other activities.

143The disharmony between the mother and the father impacted on Child B. The father can be very critical and this was, from time to time, Child B’s experience also.

144I accept at times he has been disrespectful to Child B yet demanded respect from her. It appears he often demands what he has not been capable of giving himself. These are also issues about which he may benefit from some counselling.

145Just before the parties separated, Child B saw some intimate, or what have also been called pornographic, pictures of the father and Ms Lord on the father’s computer. Child B had utilised the computer to do her homework with the father’s knowledge and consent. He had not quarantined the photos and Child B was able to access them. Understandably she was highly distressed about the content and very protective of her mother. It caused a rupture between her and the father.

146Although the father expresses regret over his irresponsible storage of these pictures, he had specifically allowed his step-daughter to use the computer. It was a careless act, at best. Despite the acrimonious breakdown of the relationship between the parties, I find the father could have taken more proactive steps to mend his relationship with Child B as a result of this particular incident.

147The mother was keen to downplay the role the father had continued, or at least tried, to play in Child B’s life. The father deposed to many attempts to reconnect with Child B and I accept his evidence in that regard. I suspect that whilst these proceedings are on foot a resumption of their relationship is unlikely.

Conclusion

148These child-related proceedings were conducted pursuant to Div 12A, Pt VII of the Act. The legislation is strongly in favour of both parents being included in their children’s lives.

149Section 60CA makes clear that I must treat the child’s best interests as the paramount consideration. In doing so, I will be guided by the relevant objects of the legislation and the principles underlying them. The stated objects aim 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 care, welfare and development of their children.

150Section 61DA(1) of the Act provides that when making a parenting order the Court must apply a presumption that it is in the best interests of the child for parents to have equal shared parental responsibility. It is a presumption that relates solely to the allocation of parental responsibility as defined in s 61B. It is not a presumption about the amount of time a child spends with each parent. The presumption, however, does not apply in certain circumstances. Section 61DA(2) provides that the presumption does not apply if a parent has engaged in abuse of the child or family violence. Section 61DA(4) provides that the presumption may be rebutted if the court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child.

151Here the father seeks an order for equal shared parental responsibility and the mother seeks an order for sole parental responsibility. The mother originally sought the parties share the responsibility but changed her position during closing submissions. She says their level of communication is “not the best” and she “wants respect”.

152For reasons already set out in my judgment, I do not consider that the presumption has been rebutted here.

153Although there was historic physical interaction between the parties in early 2007, it did not continue. It is not a feature of the parties’ relationship. Their personality styles have lent themselves to a pattern of interaction that emphasises the father’s sense of self-entitlement and the mother’s sense of being bullied. As noted recently the mother has been far more assertive and the tone of some of her email exchanges reflect this. This said, the parties are highly focussed on Child A’s best interests and can join in making decisions that are best for him.

154When I consider the issues over which the parties have had difficulty I am not persuaded they relate, in the main, to long-term issues. The nitty gritty of day-to-day management seems to be the point of contention rather than what the legislation considers are major long-term issues. An example of this is whether Child A was too tired to go to a concert on a week night and whether he should go to a restaurant to eat rather than have a meal at home.

155Although the parties disagreed about the manner in which the mother sought to involve School X, I did not get the impression that the father necessarily considered School X inappropriate. It was simply a decision that could await the outcome of the trial. There has never been any suggestion that School D or School C were inappropriate schools. I am confident the parties can deal with these issues jointly.

156I intend to make an order for the parties to have equal shared parental responsibility. I do so because I consider that they are capable of joining together in relation to major long-term issues for Child A. Both parties want the best for him in terms of education, his health and his religious and cultural upbringing. They appreciate the benefits which will flow to Child A in seeing his parents make those decisions together.

157I consider it of value to set out the obligations that attach to such an order. There are certain consequences which arise when a parenting order is made for equal shared parental responsibility. The first consequence is that the parties must consult and make a genuine effort to come to a joint decision about major long-term issues. Neither can ignore this obligation. It requires co-operation and compromise. Each party will have to give way from time to time. Neither party has “control” and the father needs to understand that.

158The long-term issues relating to a child’s welfare are specifically defined in s 4(1) of the Act.

major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

(a)the child’s education (both current and future); and

(b)the child’s religious and cultural upbringing; and

(c)the child’s health; and

(d)the child’s name; and

(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the other parent.

…

159The obligation for the parties to consult about these issues arises from an order for equal shared responsibility irrespective of the amount of time either party spends with the children and irrespective of where each lives.

160The Court also has obligations as a result of making such an order. It is obliged to consider all relevant matters. The Act isolates two important matters the Court must deal with. The first matter is:

•whether the child spending equal or substantial and significant time with each parent is in the child’s best interest

161Given the equal and strong attachment Child A has with the parties, I consider it is in his best interests that he spend, at the very least, substantial and significant time with each parent. This is what takes place in Perth at present. I accept what Dr Watts says when he describes Child A as flourishing in the current environment. He noted that Child A is an exceptionally well adjusted child at school; doing well academically; and has a good group of friends. He opines that relocating to the USA will not make that better.

162The mother’s proposals, should Child A remain in Perth, will involve a substantial curtailment of the present time he spends with his father. I am not satisfied there is any good reason for this restriction given the evidence produced at trial. This includes what I consider to be an accurate assessment by Dr Watts of Child A’s emotional interests.

163The second matter to consider is:

•whether the child spending equal or substantial and significant time is reasonably practical

164It will only be reasonable practical for Child A to spend equal or substantial and significant time with the parties if they reside in the same location or at least relatively close together.

165The father addresses the possibility of relocating to the USA. He points out that he has an established career and business interests in Perth. He has significant networks and connections in the medical profession here. To relocate would mean the sale of his business interests and the need to complete examinations in the USA to gain appropriate qualifications for him to start over, afresh, in that country.

166His evidence in this regard was largely unchallenged. If it was to happen there would likely be a hiatus in his ability to provide ongoing maintenance to the mother and the children. I do not consider it reasonably practical for the father to leave Australia and relocate himself to the USA.

167Given this, and what I consider to be Child A’s best interests, I find that Child A should remain living in his present environment in Australia. This may not be in the mother’s best interest, but given Child A’s attachment to each of the parties, I consider it to be in Child A’s best interests.

168I will go on to consider where Child A should live in Australia.

169If Child A is in Australia the father’s proposal, in line with that of Dr Watts, is that the child live equally between the parents. The mother’s proposal is that Child A lives with her and he spends time with the father on an alternate weekend basis. The effect of the mother’s proposal is to reduce the overall time the child currently spends with the father, of six nights each fortnight, to three nights each fortnight.

170In his first report, Dr Watts could not find any valid reason put forward by the mother for a reduction of time between Child A and the father. In considering whether an equal arrangement would be appropriate he said that typically between the ages of 10 and 12 years children reach a point where they find frequent changing frustrating and annoying. That would be the point when he considered a week-about arrangement would be appropriate.

171By the time of his second report, approximately nine months later, he said:

If the parties remain in Australia [Child A] is at the point where a week about arrangement would work easily for him. Whether it is viable in terms of the parent’s schedules is another factor I have not reviewed, however there is certainly no reason why from [Child A’s] point of view it would not be a good option, however it is likely that the current arrangement could be sustained for at least another couple of years.

172I do intend to make orders to implement an equal week-about care regime. Child A is relatively mature and flexible. Whilst at the younger end of the age, Dr Watts felt it was appropriate for such an arrangement, it is what Child A wants. It also has other benefits.

173Some of the issues between the parties in terms of communication and concern about day-to-day activities will be lessened with one block period of time in each household.

174I accept that the father will be in a position to arrange his work so that his weekend time with Child A is not disturbed by his locum obligations. His evidence was that his on-call work could be tailored to the weekend Child A is not with him.

175Any disharmony between the parties is likely to be less obvious with the block periods given the reduction in the need for the parties to interact. There will be less transitions between the households.

176Although the mother says the father can travel easily to the USA, I also accept that she will be in a position, with spousal maintenance, to travel to the USA to visit her family with and without Child A during the course of a year.

177When I consider the competing proposals of each party, I am satisfied that the proposals put forward by the father are more in line with the best interests of Child A. He will have the opportunity to continue his relationship with his exceptional parents who bring different skills and strengths to his life. The mother’s proposals to reduce the father’s involvement in his life is not consistent with the evidence or Child A’s best interests.

178Dr Watts records that:

If he did relocate, as stated in the previous report, his life would not be better. After a period of adjustment the optimal result would be that his life is as good as it is now although it would be with the less influence from his father. I suspect [Child A] would find it difficult to feel as happy without the strong supporting influence which his father brings for him.

179I anticipate the week-about arrangement will commence in line with the 2016 school year, but after the father has commenced to have some input from a psychologist on parenting strategies. I will hear submissions from counsel in that regard.

Financial Matters

180I now turn to the financial matters the parties have asked the Court to address. The parties both seek orders in relation to the division of their matrimonial property. After their relationship of around six years, there are also issues relating to the financial support of the wife, Child A and Child B.

The law to be applied

181The High Court has set out the principles applicable to the determination of property settlements in Stanford v Stanford (2012) 247 CLR 108. From this the Full Court of the Family Court of Australia (per Bryant CJ and Thackray J) has summarised three fundamental propositions which provide useful guidance to trial judges in approaching the task of apportioning property after the breakdown of a marriage (or de facto marriage). These were set out recently in Bevan v Bevan (2013) FLC 93-545 as:

1.Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);

2.The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are, or should be, different from those determined by common law and equity; and

3.A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.

182There is an initial question of whether it is just and equitable for the court to make any orders altering the existing property interests of the parties. If the answer to that question is yes, then the court is to determine the manner in, and the extent to which, this should be done. There is nothing to suggest that in carrying out that exercise the four step approach previously adopted should not apply. These steps are:

•to make findings as to the identify and value of the assets and liabilities of the parties;

•to identify and assess the contributions made by the parties to the assets;

•to identify and assess the range of factors set out in s 79(4)(d)-(g) of the Act; and

•to consider whether the orders proposed are just and equitable.

183Point three set out above in Bevan (supra) demands a dual consideration of issues arising under s 79(2) and s 79(4) of the Act. These are intertwined, but they are different considerations.

The property of the parties

184In determining whether it is just and equitable to make any order altering the parties’ existing interests in the property they acquired during their relationship, the Court must identify the nature of those interests (as determined by common law and equity).

185By the end of the trial most of the items of property were agreed. There were some items in contention and I will deal with those matters now.

Watches

186After separation the husband purchased three watches which cost a total of $22,348. They were purchased in Switzerland in late January and February 2013. The wife seeks their inclusion in the balance sheet at their purchase price. The husband initially estimated their resale value at $5,000. In cross-examination he said that, at best, they would sell for around $7,000.

187I intend to include the watches at a value of $7,000. The husband made it clear they were not special editions and they would not have held their value. I will deal with this matter further when I consider post-separation contributions.

Loan to wife’s father and legal fees

188The wife deposed that at the beginning of cohabitation she had the net proceeds of sale of a town house she owned in [the USA]. This amounted to USD$100,000. In about June 2011 she lent USD$50,000 of these funds to her father. Her father utilised the funds to purchase a condominium for himself after he separated from the wife’s mother. The money was advanced pursuant to a loan agreement. Interest was repayable on the loan at the rate of USD$250 per calendar month. In about April 2015 the wife’s father was in a position to repay her the loan as he had sold the condominium. The amount of AUD$67,684 was placed into the wife’s solicitor’s trust account on 31 August 2015. This amount has been used to fund her legal fees to trial.

189The husband’s position is that this is an asset of the parties and should be included in the balance sheet as such. The wife’s position is that this money was accumulated by her prior to cohabitation and subsequently utilised to fund legal fees. The funds no longer exist. In the main the parties’ legal fees have been funded equally from capital accumulated during the course of the marriage. In addition the husband has been in a position to pay legal fees from post-separation earnings or borrowings. He says such earnings should not be included in the asset pool but that the only part of the total legal fees to be included in the pool should be the wife’s repaid loan.

190In Chorn and Hopkins (2004) FLC 93-204 the Full Court did a thorough examination of commonly accepted principles relating to the treatment of paid legal fees.

191More recently, Ryan J in Beklar & Beklar [2013] FamCA 327 referred to a summary given by Boland J, writing ex judicially, about the principles that emerged from that case. These are as follows:

•The treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial judge.

•In determining how to exercise that discretion, regard should be had to the source of funds.

287I find that the wife has overcome any threshold requirement for reasons set out and it is now a matter of determining the quantum of spousal maintenance to be paid to her and the period over which it should be paid.

288I now turn to the extent to which the husband is able to maintain the wife given his own financial circumstances. Whilst the husband says the sale of the businesses will result in a downturn of his income he did not seek to amend the financial orders proposed by him at trial. That position is he pay the wife of $1,000 a week. He currently pays her $2,390 plus sundry living expenses. These expenses vary each week but he pays a total of approximately $2,600.

289The husband sets out, in his updating trial affidavit, his annual income as follows:

Before Tax ($)	After Tax ($)
30 June 2012	862,907	780,714
30 June 2013	1,038,872	962,475
30 June 2014	1,220,551	1,091,333
30 June 2015	504,659	391,024

290In his financial statement sworn 4 September 2015, the husband says his weekly income, before tax, is $8,339 which translates to $433,628 per annum. This figure is estimated to be $284,128 after tax. It is difficult to ascertain what the husband’s true financial position is.

291Since the spousal maintenance orders of 14 August 2012, he has taken steps to sell various business interests that generated considerable income for him and the family. He maintains that some of the sales related to the need to ameliorate his debt level. The recent sale of the businesses came at a time when the husband was aware he would need money for the purpose of paying the wife her entitlement pursuant to the financial orders and it was a sale at a price higher than opined by the single expert valuer.

292Although the husband maintains his income earning capacity will be reduced by about $125,000 per annum after the sale of the businesses he gave no specific detail that satisfies me this will necessarily be the case. If it is the case I find it will likely be for a relatively short period of time. I consider that the husband has not fully exercised his income earning capacity due to his desire to channel his energies into an area of medicine that interests him, namely procedural medicine. He concedes there are other areas that can produce a greater income and there is no restraint on him exercising this capacity especially given his apparent talent in the area.

293Having said that, there is a need for both the parties to take stock of their financial management. Despite a drop in income over the years there is no real evidence of either party trimming their living expenses.

294The husband swore a financial statement on 4 September 2015 shortly prior to trial. In this the husband sets out that his personal average weekly expenses total $3,273. The husband has included some business expenses in his personal expenses. He said that he had taken some of the expenses from his tax return. This includes an amount of $681 a week for computer expenses, furniture, bank fees, office materials including stamps and postage. He also claims income protection insurance as both a personal and business expenses. He claims an amount for repayment of retained earnings whilst accepting the amount has not been crystallised and the amount is not yet payable.

295In the husband’s average weekly expenses he includes amounts that the Court considers to be excessive. The husband allocates an amount of $35,000 per annum for holidays. The husband’s evidence is that on one trip alone he spent around $42,000. He accepted that his spending on holidays needed to be reduced.

296Given the husband’s reduced financial circumstances there are many items that can be lowered such as the cost of food which includes eating at restaurants on a regular basis. The amount he spends on entertainment, hobbies and a personal trainer on top of a gym membership could be reduced. He has also included business electricity costs and work related travel.

297Whilst the husband has every right to present in an appropriate fashion in his work place environment this does not need to equate to excess. I consider this expense for clothing can be reduced.

298At least for a time I accept that neither party can expect to live to the same standard they enjoyed pre-separation. Both had a propensity to spend more than was required or sensible in the circumstances.

299Given the orders I have made for property settlement I find that any spousal maintenance to be paid to the wife should contain a rent component until she receives her property entitlement. Her rent at trial was $1,000 per week and I am unsure when this arrangement will end. The husband maintains that if the wife continues to rent that she would be in a position to relocate to more cost effective accommodation. He proposes rent of $850 a week as reasonable. I accept that to be the case. I consider it appropriate that the husband pay the amount of $850 a week for rent once the present arrangement of $1,000 has run its course and until payment of the property settlement amount.

300I do not consider it appropriate that the husband continue to make payments for utility expenses given these amounts can vary considerably and the wife will need to come to her own arrangements and budget accordingly.

301Despite the uncertainties surrounding the husband’s income and the inability to use a precise mathematic calculation, I find the husband is in a position to continue to pay spousal maintenance to the wife. I find this to be at least in the amount proposed by him.

302There was no real individual challenge to the wife’s expenses, although she conceded it was not important to her to continue to live the high standard the parties’ experienced during the relationship. She also accepted that luxury motor vehicles were not important to her.

303Whilst I accept the wife might not presently drive what is considered a luxury vehicle she may need to rethink her transport options given her present cost of petrol and her need to take responsibility for this herself.

304I consider some of the wife’s expenses are excessive including $480 a week for clothing and shoes. Entertainment and hobbies of $200 a week in my view cannot be justified in the circumstances. Whilst I accept the wife does not engage in the work force for legitimate reasons I do not consider this extends to the cleaning of her own home. Hairdressing, toiletries, waxing, nails, massage, IPL etc. at $400 a week is excessive.

305Taking all this into account I consider the husband should also pay the wife $1,250 each week for her living expenses for a period of three years from these orders. This will allow her to settle in her own right in Perth, to recover her health as best she can and to find some form of gainful employment. She will need to fund any form of retraining she may wish to undertake. She may need to update existing skills.

306 Although she will have some funds to invest I consider it appropriate, given my children’s orders, she be able to return regularly to the USA to visit family and friends.

Child Support and step-child maintenance

307Firstly, in relation to Child A and given my decision that he is to remain in Western Australia, both parties agree that there be a departure order pursuant to s 124 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) that the husband provide child support for Child A in a form other than periodic payments. The Court considers it is just and equitable to do so here. The child support in this respect is:

•tuition fees for Child A at School C with all related educational expenses including, but not limited to, all required school books; reasonable stationery expenses; reasonable uniform expenses; reasonable excursion expenses; school camp and school function expenses; and reasonable information and technology fees;

•all reasonable medical expenses including orthodontic; physiotherapy; optometry; dental and podiatry related health care expense;

•all premiums for Child A’s private health insurance which shall be at the rate of cover at the date of the orders; and

•attendance and participation in Kumon.

308It is also agreed that pursuant to s 125(2) of the Assessment Act, the child support payments set out above are not to be credited against the husband’s liability under the administrative assessment of child support in force or to be issued.

309The point of departure between the parties is the periodic rate to be paid. The wife seeks that, pursuant to s 117 of the Assessment Act, there be a departure from the administrative assessment of child support issued on 10 May 2012 and that the husband pay support at the rate of $400 per week. The husband seeks that all payments be in accordance with any administrative assessment that may be issued by the Child Support Agency from time to time.

310The present child support assessment dated 7 September 2015, for the period 1 October to 30 December 2016, is for the husband to pay $104 per week. This is based on his income of $408,023 per annum and an income attributed to the wife of $205,161. The husband accepts that the wife did not earn such or any income and that in any event the amount he is assessed to pay Child A for upkeep on a weekly basis is totally inadequate. He did not identify what he considered an adequate amount to be.

311Given the uncertainty about the husband’s future income and his present capacity which, in the Court’s view, is not being fully exercised, I do not consider it appropriate or just and equitable to leave the matter to an annual assessment. Having said that, the children’s orders now reflect an equal sharing of time with Child A. The order for $400 a week was made at a time Child A lived for less time with the husband. The husband is realistically, at this stage, going to be supporting Child A in both households.

312The husband’s financial statement outlines his costs for Child A, when he has Child A with him three days each week excluding education expenses, as totalling $667. A small amount of this may relate to Child B but, in the main, Child B and the husband have not spent time of note together since separation. The wife nominates her expenses for Child A per week as $754. The total amount in both households is $1,421 per week. This does not include all his education, health and extracurricular expenses paid by the husband.

313I consider that it is appropriate the husband contribute $350 a week to the wife for child support for Child A. This takes into account a period of reduced income and the fact he will be supporting Child A for an extra day per week. There was nothing in Dr Watts’ reports to suggest Child A was a spoilt child or held the same expectations of luxury as his parents.

314The husband had encouraged and wanted Child B to come to Australia and to become a part of the family. Mr Mane did not pay child support and the husband entered into a care plan with the wife and Mr Mane in 2006. The wife deposed:

14.Upon my return to the [USA] on 16 January 2006, I attended to securing my ex husband’s consent to relocate with [Child B] to Australia. My ex husband agreed to do this on the basis that he was relieved of all future financial obligations towards our daughter. The necessary paperwork and Court documents were signed by [the] husband, me, and my ex husband. In particular, [the] husband agreed to take on financial responsibility for [Child B] in the future. I secured a USA Court Order to enable [Child B] to relocate with me to Australia. Exhibit 1 to this affidavit is a copy the Court Order dated 7 July 2006 together with a care plan dated 20 February 2006 entered into between the husband, myself and my ex-husband.

315The parties entered into a care agreement with Mr Mane to the effect that the husband would be responsible for financially providing for Child B while she was living in Australia.

316To this end, it is agreed that the husband will pay (and that the Court should make an order to this effect pursuant to s 66M of the Act) all costs and expenses for Child B in relation to her attendance at School D until the completion of her secondary schooling. He also undertakes to pay all her reasonable medical expenses and private health cover along the lines he is prepared to do for Child A. In addition the husband will pay Child B’s extracurricular activities although he limits these to music (voice) lessons, Bollywood dance lessons and tutoring (capped at the current level of support provided by the husband). I intend to make this current to the date of these orders as it reflects the school year of 2015.

317The point of departure again is the periodic amount to be paid. The wife seeks an amount of $420 a week and the husband is prepared to pay an amount of $100 per week.

318The wife sets out that her weekly costs for Child B are $1,122. This includes amounts I consider to be excessive including holidays of $192 a week; cleaning of $50 a week; hairdressing, toiletries, waxing, nails, massage; and IPL of $77 a week.

319This is Child B’s second last year of secondary school and given payment will be for a limited period of time I intend to order the husband pay $400 per week towards her support. This is predicated on her remaining in Perth at her present school.

Orders

320I intend to give counsel the opportunity to address me on the form of orders that are to be made.

Parenting

1The Applicant, [MS MAKAM], and Respondent, [MR RAIKAR], have equal shared parental responsibility for the child, [CHILD A] born [in] December 2006.

2Subject to orders 19 and 20, and commencing in the second school term commencing 26 April 2016, the said child live with the parties, in Perth, Western Australia, on a week-about basis, with handovers to be effected by each parent collecting the child from [School C] at the completion of school on Friday at the commencement of the time the child is to live with them (or from the other party’s residence at 3:00pm if a non-school day).

3The live with orders contained in paragraph 2 of these orders be suspended during school holiday periods as gazetted by [School C] and on special occasions and the child shall spend time with each party as follows:

(a)on Father’s Day, if the child is not already scheduled to be spending time with the Respondent from 5:00pm on the Saturday immediately preceding Father’s Day until 9:00am or before school on the Monday following Father’s Day;

(b)on Mother’s Day, if the child is not already scheduled to be spending time with the Applicant from 5:00pm on the Saturday immediately preceding Mother’s Day until 9:00am or before school on the Monday following Mother’s Day;

(c)during all school holiday periods:

(i)with the Respondent for the first half of each school holiday period and with the Applicant for the second half of each school holiday period in 2015 and each odd numbered year thereafter; and

(ii)with the Applicant for the first half of each school holiday period and with the Respondent for the second half of each school holiday period in 2016 and each even numbered year thereafter

(d)on the Respondent’s birthday, if the child is not already scheduled to be spending time with the Respondent, from 5:00pm on the day immediately preceding the Respondent’s birthday until 9:00am or before school on the day immediately following the Respondent’s birthday;

(e)on the Applicant’s birthday, if the child is not already scheduled to be spending time with the Applicant, from 5:00pm on the day immediately preceding the Applicant’s birthday until 9:00am or before school on the day immediately following the Applicant’s birthday;

(f)on [Child B’s] birthday, if the child is not already scheduled to be spending time with the Applicant, from 5:00pm on the day immediately preceding [Child B’s] birthday until 9:00am or before school on the day immediately following [Child B’s] birthday.

4For the purposes of the time referred to in paragraphs 2 and 3 above, handovers occur at school and when not at school, the Respondent will collect and return the child from the Applicant’s residence, unless otherwise agreed in writing.

5For the purposes of these orders, school holidays are those determined by [School C] and any teacher development days off, attached to the holidays.

6Following all school holiday periods, the time referred to in paragraph 2 above shall resume and remain in full force and effect as if the holidays had not occurred.

7Each party shall have reasonable telephone communication with the child during the times the child is in the care of the other party, and each party will ensure that:

(a)they keep each other notified at all times of their current landline and their own and/or the child’s mobile telephone number(s);

(b)the child is available for telephone communication;

(c)if communication is via mobile telephone, the telephone battery is charged and the handset is available for use; and

(d)the child has privacy during telephone conversations with the other party.

8The child be at liberty to contact the party with whom he is not living with at the time, in accordance with his wishes, with both parties to facilitate such contact.

9The Applicant and the Respondent shall:

(a)keep the other party informed at all times of their residential address and email address;

(b)keep the other party informed of the names and addresses of any treating medical or other allied health practitioner who may treat the child and authorise those practitioners to provide the other party with information that they are lawfully able to provide about the child; and

(c)inform the other party as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child and authorise any treating medical practitioner to release the child’s medical information to the other parent.

10The parties do all acts and things and sign all documents necessary to authorise any school or educational institution/s that child may attend to give each party information about the child’s educational progress and other related activities and supply them with copies of reports, progress, certificates and awards obtained by child (the cost of preparation and provision of such information and reports are to be shared equally between the parties).

11If either party wishes to travel with the child outside the Commonwealth of Australia the departing party provide the non-travelling party with not less than 28 days prior notice of the proposed travel, with such notice to include the following details:

(a)the proposed date(s) of departure and return;

(b)a copy of any proposed itinerary, or any other documentation evidencing the proposed destination(s);

(c)a copy or copies of return air ticket(s); and

(d)all addresses, telephone number(s) or other contact details where the non-travelling party can contact the child during the travel period.

12The proposed travel referred to in paragraph 11 above shall not involve any time missed from school and must be scheduled in the parties’ respective time with the child.

13In the event one party proposes to travel and such travel is during school time or the other parties’ respective time, the proposed travel must be agreed in writing by the other party, prior to the travel being booked.

14The parties be permitted to travel within Australia with the child and provide the other party 7 days’ notice of the travel.

15Each party retain one of the child’s passports.

16In the event a party intends on travelling and has complied with paragraphs 11, 12 and 13 above, if requested the other party will provide the child’s passport 7 days prior to the departure date and as may be required to obtain the appropriate travel documents.

17Within 7 days of the party returning from any travel with the child, the requested passport of the child is to be delivered up to the other party.

18The parties do all acts and things, including but not limited to signing all documents necessary to obtain a passport renewal for the child, if necessary.

19The Respondent forthwith undertake further counselling to address parenting issues as identified by Dr Watts in his reports of 14 December 2014 and 5 September 2015 (“the reports”).

20The Respondent is to provide the reports to the counsellor to facilitate such counselling.

21The proceedings, insofar as they relate to children’s issues, otherwise be and are hereby dismissed.

Financial

1Within [days], the husband pay to the wife such sum necessary to effect an overall division of 62.5 per cent of the net assets in her favour and as set out in paragraph 268 hereof.

2The husband do all acts and things including but not limited to signing all documents necessary to transfer and/or assign and/or vest in the wife his right, title, estate and interest in the following:

(a)all chattels, including but not limited to furniture and contents, personal apparel and jewellery in her possession;

(b)all monies held in any accounts in her name in any banking or other financial institution;

(c)the Toyota motor vehicle in her possession; and

(d)her superannuation entitlements.

3The wife do all acts and things including but not limited to signing all documents necessary to transfer and/or assign and/or vest in the husband her right, title, estate and interest in the following:

(a)the real property situate at [Property B] being more particularly described as [Lot xx] on [Strata Plan xxxxxx] and being the whole of the land contained in Certificate of [Title Volume xxxx] [Folio xxx] (“the [B] property”);

(b)all chattels, including but not limited to furniture and contents, personal apparel and jewellery in his possession;

(c)all monies held in any accounts in his name in any banking or other financial institution;

(d)the [Porche] motor vehicle in his possession;

(e)his superannuation entitlements;

(f)his shareholdings in:

(i)[Company C];

(ii)[Business S];

(iii)[Company S];

(iv)[JTAM];

(v)[L (WA) Pty Ltd]; and

(vi)any trust or other entity in which he has an interest or which he controls.

4The husband indemnify the wife and keep her indemnified against the liabilities of:

(a)[Business IA];

(b)[Business IB];

(c)[Company C];

(d)[Business S];

(e)[Company S];

(f)[JTAM];

(g)[L (WA) Pty Ltd]; and

(h)any trust or other entity in which he has an interest or which he controls.

5The husband pay, when assessed by the Australian Taxation Office, any taxation or other liability arising from the retained earnings (and Div 7A loans) referred to in paragraphs 193-203 of this judgment and the wife is to indemnify the husband for one half only of the retained earnings amount (not including penalties, interest or any Div 7A liability).

6The husband pay to the wife periodic spousal maintenance as follows:

(a)until its end date, the rental amount currently payable on the wife’s existing lease; and thereafter

(b)the sum of $850 a week until payment of the cash amount as set out in paragraph 1 hereof; and

(c)the sum of $1,250 per week for a period of three years from the date of these orders.

7The husband pay the wife’s costs of the Form 2 application filed 3 March 2015, fixed in the sum of $1,000.

8Commencing 26 April 2016, when [Child A] lives with the parties on a week about basis, there be a departure from the Administrative Assessment of Child Support, issued on 10 May 2012 for the child, pursuant to s 117 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) and the Respondent pay child support to the Applicant for [Child A] at the rate of $350 per week.

9Pursuant to s 124 of the Assessment Act, the husband pay child support for the child [Child A] otherwise in the form of periodic amounts as follows:

(a)tuition fees for [Child A] at [School C], together with all related educational expenses, including but not limited to all required school books and reasonable stationary expenses, reasonable uniform expenses, reasonable excursion, school camp and school function expenses and reasonable information and technology fees;

(b)all reasonable medical expenses including orthodontic, physiotherapy, optometry, dental and podiatry related health care expenses;

(c)private health insurance cover at the current rate; and

(d)Kumon fees for [Child A].

10Pursuant to s 125(2) of the Assessment Act, the child support payments pursuant to the preceding order are not to be credited against the Respondent’s liability under the Administrative Assessment of Child Support in force or to be issued pursuant to these orders.

11Pursuant to s 66M of the Family Law Act 1975 (Cth), the husband pay step-child maintenance for the child, [Child B] born 22 September 1999, as follows:

(a)the sum of $400 per week;

(b)tuition fees for [Child B] at [School D], together with all related educational expenses, including but not limited to all required school books and reasonable stationary expenses, reasonable uniform expenses, reasonable excursion, school camp and school function expenses and reasonable information and technology fees;

(c)all reasonable medical expenses including orthodontic, physiotherapy, optometry, dental and podiatry related health care expenses;

(d)private health insurance cover at the current rate; and

(e)the fees for extracurricular activities current at the date of these orders, including music (voice) lessons, Bollywood dance lessons and tutoring.

12The husband pay the wife’s costs of and incidental to the application to re-open filed 7 December 2015 to be assessed if not agreed.

13The proceedings, insofar as they relate to financial issues, otherwise be and are hereby dismissed.

I certify that the preceding [320] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate