Malcher & Malcher

[2016] FamCA 1063

FAMILY COURT OF AUSTRALIA

MALCHER & MALCHER [2016] FamCA 1063

FAMILY LAW – CHILDREN – Where the three children of the marriage live with the wife – Where the husband currently resides overseas with his partner and child – Consideration of s 60CC factors – Where the wife’s allegations of family violence are accepted by the court – Where there is a lack of cooperation between the parties – Where orders are made for the wife to have sole parental responsibility – Where orders are made for the children to spend a significant amount of time with the husband during the school terms, school holidays and special occasions – Where different spend time with orders are made for each child – Where orders are made for the children to continue attending therapy.

FAMILY LAW – PROPERTY SETTLEMENT – Application by parties for an adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the wife has the care of the children and earns a considerable income – Where the husband is unemployed but is found to have considerable earning potential – Where the husband engaged in extensive dealings with his father during and after the marriage and operated business through various companies and trusts – Where the husband was assessed to have made greater contributions than the wife to the asset pool excluding superannuation – Where the consideration of s 75(2) factors led to an adjustment being made to the wife, resulting in a 70/30 split of the assets in the wife’s favour – Where the wife will keep the former matrimonial home – Where the wife is ordered to pay to the husband a sum representing his entitlements under the orders less his child support arrears and other specific liabilities as found by the Court.

FAMILY LAW – SUPERANNUATION – Where the husband made an application for a superannuation splitting order – Where the parties’ contributions to their combined superannuation is found to be 80/20 in favour of the wife – Where this represents a figure close to the parties’ respective superannuation entitlements so as to negate the making of a superannuation splitting order – Where the husband’s application is dismissed.

FAMILY LAW – CHILD SUPPORT – Applications by both the husband and the wife for a child support departure order under the Child Support (Assessment) Act 1989 – Where the wife seeks an order for a lump sum payment – Where the husband is in arrears of his child support payments – Where there exists special circumstances to justify the making of a lump sum order – Where such lump sum order will be held in a controlled monies account as security for the payment of future child support payments as assessed by the Child Support Agency.

FAMILY LAW – PRACTICE AND PROCEDURE – Application to re-open the hearing prior to the delivery of judgment –Where the matter was re-opened for the purpose of admitting up-to-date evidence of the parties’ assets and liabilities and for an up-to-date valuation of the former matrimonial home.

FAMILY LAW – COSTS – Where the parties are each ordered to pay half of the costs incurred by the Independent Children's Lawyer for a portion of the hearing.

Child Support (Assessment) Act 1989 (Cth) ss 116, 117, 118, 124, 141
Family Law (Fees) Regulation 2012 (Cth) reg 2.03
Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA, 65DAC , 72, 74, 75(2), 79, 79(4) 90MT, 98AB(2), 93A(2)
Family Law Rules 2004 (Cth) rr 11.07, 12.02, 12.05, 13.01, 13.14, 15.59

AF Petersens v AF Petersens (1981) FLC 91-095
Bevan & Bevan(2013) 49 Fam LR 387
Camden & Chalk [2009] FamCAFC 10
Carroll & Carroll [2014] FamCAFC 118
CDJ v VAJ (1998) 197 CLR 172
Chapman & Chapman (2014) FLC 93-592
EB v CT(No 2) (2008) QSC 306
Ferraro and Ferraro (1993) FLC 92-335;
Firth & Hale-Forbes [2014] FamCAFC 187
Gyselman & Gyselman (1992) FLC 92-279
Hickey and Hickey (2003) FLC 93-143
Hunt v Zuryn (2005) 34 Fam LR 169
In the Marriage of Ferguson (1978) 4 Fam LR 312
In the Marriage of Kowaliw (1981) FLC 91-092
In the Marriage of Ross and McDermott (1998) 23 Fam LR 613
In the Marriage of Soblusky (1976) FLC 90-124
Ivanovic & Ivanovic  (1996) FLC 92-689
Jacks & Parker (2011) 45 Fam LR 52
Linder & Linder [2016] FamCAFC 139
Marvel & Marvel (No 2) (2010) 43 Fam LR 348
McGuinessv Cowie (2002) 29 Fam LR 441
McLay and McLay (1996) FLC 92-667;
Mee & Ferguson (1986) FLC 91-716
Mercer and Mercer (1976) FLC 90-033
Murphy & Murphy [1999] FamCA 1364
Paradine and Paradine (1981) FLC 91-056
Prpic and Prpic (1995) FLC 92-574
Rosati & Rosati (1998) FLC 92-804
Smith v NSW Bar Association (1992) 176 CLR 256
Stanford v Stanford (2012) 247 CLR 108
Summit & Summit and Ors (Re-opening) [2009] FamCA 365
T and T (1984) FLC 91-588
Vardy & Vardy [2015] FamCA 430
Woolley v Carney (2005) 33 Fam LR 294

APPLICANT: Ms Malcher

RESPONDENT: Mr Malcher

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 3808 of 2012

DATE DELIVERED: 9 December 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 20 July -7 August 2015; 17 -21 August 2015; 25-28 August 2015; 17-18 September 2015; 6-12 October 2015; 22 September 2016; 28 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lawson

SOLICITOR FOR THE APPLICANT: Barkus Doolan

ADVOCATE FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr Berry

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: Legal Aid NSW

these orders are published in discrete sections in order to cater to the publication of parts of the orders to different persons/bodies.

Part One:

Parenting Orders

(1)All prior parenting Orders be discharged.

Parental responsibility

(2)The wife is to have sole parental responsibility for each of the children B Malcher born … 2002 (“B”), C Malcher born … 2003 (“C”) and D Malcher born … 2006 (“D”).

(3)In relation to any decision the wife is required to make in relation to education, religious and cultural upbringing, health and any other decision impacting upon the long-term welfare of any of the children, the wife is to undertake the following actions before making such decision:

(a)The wife is to provide the husband with no less than 14 days’ notice in writing of any such proposed decision; and

(b)The wife is to consult with the husband (by email or text communication  unless she elects to communicate by phone or in person) with regard to any such proposed decision and make a genuine effort to give consideration to his expressed view and, should the relationship between the parents permit, make a genuine effort to reach agreement with the husband about any such proposed decision; and

(c)In the event that no agreement is reached between the husband and wife, the wife shall make the final decision and within 14 days of so doing, provide the husband with written confirmation of the decision (by email or text is sufficient).

(4)The Court notes the wife’s proposal in relation to the child D’s schooling is as follows, however, that proposal is not to restrict the scope of the sole parental responsibility order made herein should circumstances arise which requires the wife to make a different provision for D’s schooling:

The wife proposes she will not change D’s schooling from W School unless D has been awarded a scholarship from X School or any other private school for payment of not less than 25% of the tuition fees and for the avoidance of doubt, this provision does not restrict the wife from enrolling D at a public school.

School term time

(5)The child B is to live with the husband during school term time as follows:

(a)During school terms:

(i)In week 1 from after school Friday or 3.00 p.m., if it is a non-school day, to before school the following Wednesday or 9.00 a.m., if it is a non-school day, and each alternate week thereafter.

(ii)In week 2 from after school Monday or 3.00 p.m., if it is a non-school day, to before school the following Wednesday or 9.00 a.m., if it is a non-school day, and each alternate week thereafter.

(6)The child C shall live with the husband as agreed in writing between the parties and failing any agreement as follows:

(a)During 2016 school terms:

(i)In week 1 from after school Friday or 3.00 p.m., if it is a non-school day, to the following Sunday 5.00 p.m. and each alternate week thereafter.

(ii)In week 2 from after school Monday or 3.00 p.m., if it is a non-school day, to before school the following Wednesday or 9.00 a.m., if it is a non-school day, and each alternate week thereafter.

(b)Commencing the 2017 school terms:

(i)In week 1 from after school Friday or 3.00 p.m., if it is a non-school day, to before school the following Tuesday or 9.00 a.m., if it is a non-school day, and each alternate week thereafter.

(ii)In week 2 from after school Monday or 3.00 p.m., if it is a non-school day, to before school the following Wednesday or 9.00 a.m., if it is a non-school day, and each alternate week thereafter.

(7)The child D shall live with the husband as agreed in writing between the parties and failing any agreement as follows:

(a)During school terms:

(i)In week 1 from after school Friday or 3.00 p.m., if it is a non-school day, to before school the following Tuesday or 9.00 a.m., if it is a non-school day, and each alternate week thereafter.

(ii)In week 2 from after school Monday or 3.00 p.m., if it is a non-school day, to before school the following Wednesday or 9.00 a.m., if it is a non-school day, and each alternate week thereafter.

(8)For the purpose of these Orders:

(a)the children shall live with the husband in accordance with the above orders following each school holiday period on the Friday immediately following the resumption of school in the event that the children have lived with the wife in the last block period of the immediately preceding school holiday period and on the second Friday following the resumption of school in the event that they have spent the last block period of the immediately preceding school holiday period with the husband;

(b)in the event that the children (or any one of them) is not in attendance at school when the children are to commence living with the husband pursuant to these orders, time shall commence by collection of that child or who was not in attendance at school on that day, from the wife’s residence at 3.30 p.m. on that day; and,

(c)in the event that the children (or any one of them) is not to be in attendance at school when the children are to conclude living with the husband, time shall conclude by collection from the husband’s residence at 8.00 a.m. on that day.

School holidays

(9)The children B and D live with the husband during school holidays at the end of each of Terms 1, 2, and 3 for one half of each school holiday as agreed and failing agreement for the second half in each such period.

(10)That the child C live with the husband during school holidays at the end of each of Terms 1, 2, and 3 for the first 2 consecutive nights B and D spend with the husband (unless C elects to stay longer and notifies his mother of same by text message from his or B’s mobile phone), commencing at  9.00 a.m.  on the day of collection (husband to collect him) and concluding at 4.00 p.m.  on the day when his time concludes (the wife to collect him).

(11)For the purpose of school holiday “live with” orders:

(a)each school holiday period shall commence at the conclusion of school on the day that the last of the children concludes attendance at school for the term and shall conclude at 8.30 a.m. on the day that the first of the children commences attendance at school for the following term. However, should the children return to school on different days then if more than one day differences the parties are to divide the extra time equally.

(b)the midpoint shall be that day falling at the middle of the period defined above and, in the event of an odd number of nights in such period, the midpoint shall be determined by the first half being one day longer than the second half of such period;

(c)the changeover on the midpoint shall occur at 4.00 p.m. on that day.

(12)The children B and D live with the husband for the Christmas school holidays in each odd-numbered year:

(a)from 4.00 p.m. on 25 December until 4.00 p.m. on 4 January;

(b)from 4.00 p.m. on 12 January until the day the first of the children commences school for the following term.

(13)The children B and D live with the husband for the Christmas school holidays in each even-numbered year:

(a)from the conclusion of school on the day the last of the children concludes attendance at school for the term until 4.00 p.m. on 25 December;

(b)from 4.00 p.m. on 4 January to 4.00 p.m. on 12 January.

(14)The child C live with the husband during the Christmas school holidays for the first 2 consecutive nights and the last 2 consecutive nights of each block period B and D spend with the husband (unless he elects to stay longer and notifies the wife of that decision by text message).

(15)Each parent is to ensure that the children attend school based activities, which may involve out of school tuition time participation, such as school sporting activities.

Live with orders

(16)The children live with the wife when not living with the husband in accordance with these Orders.

Special occasions

(17)Notwithstanding any other Orders herein:

(a)In the event that Easter does not fall during the children’s school holiday period, the children shall live with the husband from the conclusion of school on Easter Thursday until 4.00 p.m. on Easter Saturday and with the wife from 4.00 p.m. on Easter Saturday  until the commencement of school the following Tuesday (or 9.00 a.m. if the children are not at school) in each odd-numbered year;

(b)the children shall live with the wife from the conclusion of school on Easter Thursday (or 4.00 p.m. if the children are not at school) until 4.00 p.m. on Easter Saturday and with the husband from 4.00 p.m. on Easter Saturday  until the commencement of school the following Tuesday (or 9.00 a.m. if the children are not at school) in each even-numbered year;

(c)all of the children shall spend time with the parent with whom they would otherwise not spend time from the conclusion of school or 2.00 p.m. until 8.00 p.m. on each of the children’s birthdays;

(d)the children shall live with the wife from 4.00 p.m. on the day immediately prior to Mothers’ Day until the commencement of school on the day immediately following Mothers’ Day;

(e)the children shall live with the husband from 4.00 p.m. on the day immediately prior to Fathers’ Day until the commencement of school on the day immediately following Fathers’ Day;

(f)the children shall live with the wife from 4.00 p.m. on the day immediately prior to the wife’s birthday until the commencement of school the next day or 9.00 a.m.; and,

(g)the children shall live with the husband from 4.00 p.m. on the day immediately prior to the husband’s birthday until the commencement of school the next day or 9.00 a.m.

(18)That for the purpose of these Orders, in the event that time is not to commence and/or conclude at school, the husband shall collect the children from the wife’s principal place of residence at the commencement of time with him and the wife shall collect the children from the husband’s principal place of residence at the conclusion of time with the husband.

Extra-curricular activities for the children

(19)As a departure from the sole parental responsibility order which operates in favour of the wife, the parties are to agree upon any extra-curricular activities they wish the children to participate in whether the children are living in one household or the other when participation is required. Any such agreement is to be evidenced by exchange of emails and each is to contribute equally to any cost of the child’s participation in such activity. Any such payments are not to be credited against any Child Support Assessment liability but may be taken into account when the assessment of child support is made should the Child Support Registrar deem same is appropriate.

(20)Otherwise each party may enrol any of the children in extra-curricular activities which are to be participated in by the child while in the care of that parent.

Overseas travel

(21)Each of the parties is restrained from removing any of the children from the Commonwealth of Australia, without the written consent of the other, until the child has attained the age of 11 years. This order does not operate so as to prevent any of the children travelling outside of Australia unless all of the children have attained the age of 11 years.

(22)The consent of each party to overseas travel with the other for the purpose of a holiday is not to be unreasonably withheld. Each party who withholds consent does so at their own risk as to costs.

(23)On or after a child named herein has attained the age of 11 years, either party is permitted to take the child out of the Commonwealth of Australia for the purpose of a holiday only, and in relation thereto:

(a)the occasions on which the travelling parent takes the child overseas be, unless otherwise agreed in writing, during that parties' school holidays time with the child, pursuant to these Orders;

(b)the party taking the child out of the Commonwealth of Australia must give the other party as much notification as possible of the intention to take the child out of Commonwealth of Australia and in any event will give the other party not less than 28 days’ written notice of such intention;

(c)the party taking the child out of the Commonwealth of Australia will furnish to the other party an accurate itinerary (including copies of all e-tickets to be used for the travel and the e-ticket for any accompanying persons) to include the departure date and return date, the country or countries the child will be travelling to, the appropriate dates on which the child will arrive and depart each country and a telephone contact number and address at which the child can be contacted in each country;

(d)the travelling parent will facilitate the other parent having reasonable telephone/skype/email communication with the child whilst they are away;

(e)the country or countries the child will be travelling to shall be restricted to countries which are signatories to the Hague Convention on the Civil Aspects of International Child Abduction.

(24)Provided that the travelling party complies with the above preconditions for overseas travel for a child, the other party shall do all things and sign all documents necessary, including signing any consent letter which is required for travel outside of the Commonwealth of Australia, within 7 days of the travelling party requesting that consent letter or document be signed by the non-travelling party.

(25)Save for periods when each of the parties are travelling overseas with the children, the wife will retain the children's passports and the husband will ensure that the children's passports are returned to the wife within 3 days of the husband returning to the Commonwealth of Australia and the wife shall ensure that she complies with any request of the husband to make the children's passports available prior to the travel for the purpose of any prior visa application.

(26)The parties shall do all things and sign all documents necessary to ensure that children have an up-to-date Australian passport (with the costs to be shared equally between the parties).

(27)The court notes that both the wife and the Independent Children's Lawyer oppose the husband’s request that the children B and D be permitted to travel to Europe for part of the end of school holidays in 2016. As a consequence the husband’s application for the children to travel on such holiday is dismissed. The husband is permitted after receiving a copy of these Orders and considering how they impact upon decisions he must make about when he will return to live in Australia, to apply to the court for a further order to be able to have any of the children accompany him on an overseas holiday. The hearing of that application is not to occur before the parties and the Independent Children's Lawyer have attended upon a mediation or counsellor for the purpose of seeking to resolve any dispute arising therefrom. The wishes of the children are to be considered when any such mediation, counselling or settlement discussions take place.

(28)The appointment of the Independent Children's Lawyer is to continue for a period of six months from the date of these orders to enable the aspect of overseas travel to be resolved should that be necessary.

Other orders

(29)The parties are to do all they can to cause the children to continue therapy with Dr U in accordance with her recommendations to the parties and the parties shall meet Dr U’s fees in equal shares as and when due.

(30)Unless as otherwise agreed between the parties, the wife shall facilitate the children’s attendance upon Dr U at such times and at such places as directed and arranged by Dr U from time to time and for the purpose of this Order the wife shall arrange all appointments for the children with Dr U and notify the husband within 24 hours of making the appointments or of any change to the appointments of the appointment dates and times and the wife shall use her best endeavours to ensure that any appointments made for the children shall occur during periods when the children would be in her care, save and except for matters of urgency as determined by Dr U.

(31)The husband is hereby restrained from:

(a)engaging in any conduct to intimidate the wife;

(b)approaching the wife at her residence otherwise than is absolutely necessary to comply with the other orders made herein.

(c)Approaching the wife at her place of work or any other place he becomes aware the wife is present other than for the purpose of collecting or spending time with the children as per these Orders or returning the children, following time with him, without first obtaining the wife’s consent in writing.

(32)Each of the parties is restrained from addressing the other in rude and/or derogatory terms or from speaking disparagingly of the other in the presence or hearing of the children or from allowing any other person to speak in such terms in the presence or hearing of the children.

(33)Each of the parties is restrained from sending messages to the other via the children or any of them.

(34)The parties are to ensure that each child may communicate with each parent at such times as the child so wishes (within reasonable parameters) and the other party shall facilitate and encourage such communication by telephone, in writing, or by other electronic means including but not limited to email and if the facility exists in each of the parties residences, webcam or video conference, including but not limited to during the school holidays.

(35)Each party is to notify the other, as soon as possible and in any event within 1 hour, of any serious injury or illness suffered by the children whilst with that party including, but not limited to, any attendance at any hospital emergency department.

(36)Notwithstanding any other order made herein each of the parties shall seek and obtain the other party’s written consent prior to providing consent for any of the children to undergo elective invasive procedure requiring a general or local anaesthetic or invasive procedure including but not limited to body piercing.

(37)Unless otherwise agreed upon, by both parties, in writing and other than in the event of an emergency, each of the parties shall ensure that the children attend upon:

(a)Dr Z as their general practitioner;

(b)Dr BB as their dentist; and

(c)Dr CC as their orthodontist, or another medical practitioner in the same practice.

Further each parent is to authorise all and any of those practitioners to provide   information, upon request from the other parent, about any service provided in respect of any of the children.

(38)Each party is to provide to the other the names, addresses and telephone numbers of all medical professionals (other than those specifically named above) who treat the children or any of them and:

(a)authorise each of them in writing to provide copies of any test results, letters of referrals, reports and letters received from other medical professionals to the other party;

(b)authorise them to discuss any aspect of the child's or children's health with the other party; and

(c)notify the other parent of any medication prescribed for the child or the children and shall do all acts and things to facilitate the other parent to administer the medication to the child or children.

(39)In relation to the children’s health, should the children require any non-urgent medical or dental procedure, the wife is to inform the husband, by email, of her proposal in relation to same. If the husband responds the wife is to give consideration to the content of the response and accommodate same to the extent she considers it is in the children’s best interests. In the absence of any response the wife is to proceed on the basis that the husband does not oppose the wife’s proposal. The husband is not to have the children or any of them undergo any such non-urgent medical or dental procedure without first obtaining the written consent of the wife.

(40)Each party is to ensure the other has current contact telephone numbers for the other and each is to notify the other, not more than 24 hours after any change to their residential address and/or landline and/or mobile telephone numbers and/or their email address. 

(41)Each parent is to notify the other, no later than 48 hours prior to the commencement of any of the school holidays or other period of time (being greater than two consecutive nights) when the children will not be accommodated overnight at the usual residential abode, of the address and telephone number/numbers of the place/places where the children will be staying during that holiday or particular period.

(42)Each party is to use their best endeavours to ensure the other is permitted to attend any event organised by any of the children’s schools.

(43)Where any one or more of the children is unable to live with the husband, as provided in these Orders, because of the child’s illness, that lost time is to be made up during a 4 week period following the conclusion of the illness.

(44)If any child, the subject of this order, is attending school and is required to leave school because of illness, the parent with whom the child would normally be spending time immediately following that school day, shall be the parent responsible for the collection and caring for the child from school.

(45)Each of the parties is to:

(a)sign all documents and do all things necessary to:

(i)authorise the school at which each of the children may from time to time attend:

A.to furnish each party with copies of all school reports, notices and advices concerning:

a.the children; and

b.any activity involving the children;

B.to make available to each copies of any school photographs and/or the required forms to order such photographs.

(46)Each party has, whilst the children are in their care pursuant to these Orders, the authority to make any day to day decision in the best interests of the children without consulting the other party first.

(47)Unless otherwise agreed between the parties, all communication between the parties shall be in writing by way of email and/or text message, save and except for any emergency.

Publication of these orders

(48)Otherwise than as provided for in these orders neither party is to provide, show or publish a copy of these orders or any part thereof to any other person, institution or entity.

(49)The husband is permitted to publish a copy of these orders to his partner Ms G.

(50)Each of the parties may publish a copy of these orders to Dr U.

(51)Each party is permitted to publish a copy of the parenting orders to each of the children’s school authorities should the parent consider it necessary to do so.

(52)The application of the husband for the children B and D to travel to Germany to spend time with him for Christmas 2016 is refused.

Payment of Costs of Independent Children's Lawyer

(53)The wife is to pay the sum of $19,599.45 together with one half of any further costs incurred by the Independent Children's Lawyer in relation to work performed on the case or fees incurred including attendance at court after 26 August 2015 (the date of Exhibit ICL6).

(54)The wife is to pay to the Independent Children's Lawyer, upon written request one half of the costs invoiced by Dr A the single expert in the parenting case. The Independent Children's Lawyer is to ensure the wife is credited against such required contribution, payments she has made at an earlier time.

Part two:

PROPERTY ORDERS

(55)On or before 1 April 2017 the wife is to pay the husband a sum of money calculated by deducting from the sum of $350,622 the following amounts:

(a)The amount outstanding by the husband to the Child Support Agency (following the Child Support Registrar making the necessary adjustment to that figure having calculated the husband’s child support pursuant to the departure Order made herein), including amounts charged as penalty, interest or any other item;

(b)The sum of $30,000 to be applied, as required by these Orders, for the purpose of providing security for the requirement of the husband to pay child support until 1 July 2018;

(c)One half of the sum paid, or owing by the wife, as hearing fees paid/payable to the court, for all of the hearing days which the trial occupied including the first day of the final hearing on 20 July 2015;

(d)The amount of any unpaid costs order made against the husband and in favour of the wife where the amount of the costs has been set by the court order or assessed where the order required that to happen;

(e)The sum of $19,599.45 (or so much thereof which remains unpaid by the husband) together with any further invoice provided to the wife in relation to the husband’s share of one half of the costs incurred by the Independent Children's Lawyer in this matter together with one half of the fees invoiced to the Independent Children's Lawyer for the single expert Dr A. The Independent Children's Lawyer is to ensure the husband is provided with a credit against the required contribution by him for payment of Dr A’s fees, for any earlier payment made by him;

(f)The amount of any unpaid invoice issued by Dr U to the husband to meet his share of the cost of therapy sessions provided by Dr U for any of the children. Should there be any such funds withheld by the wife from the funds to be paid by her to the husband, the wife is to ensure payment from the sum withheld as soon as practicable after the compliance with this Order;

(g)The sum of $5,000 should the wife opt to accept option (i) as set out in Order (69) hereof.

(56)In order to determine, for the purpose of these Orders, the amount owing by the husband for child support, the wife is to obtain a document generated from the Child Support Agency or Registrar which details the amount of child support arrears the husband is required to pay as calculated by the Child Support Registrar following his or her applying the determination of the child support departure Order made herein.

(57)The wife is to provide to the husband, by email, a copy of the document received from the Child Support Registrar setting out the arrears of the child support (if any) owed by the husband following the Child Support Registrar applying the departure Order made herein. The wife is also to provide the husband, by email, with the evidence of her providing the Child Support Registrar with the credit information arising from the sum retained by the wife (on account of arrears of child support) from the amount to be paid to the husband pursuant to these Orders.

(58)Should the information provided to the wife by the Child Support Registrar in relation to the arrears of child support (calculated after taking into account the departure Order made herein) include amounts charged as penalty, interest or any other item, the wife is to deduct same from the sum to be paid to the husband pursuant to these Orders and forthwith pay that sum to the Child Support Registrar with a covering explanatory correspondence.

(59)In exchange for the payment made by the wife pursuant to order (55) the husband is to transfer to the wife all his right, title, and interest in the property at O Street, Suburb N in the State of NSW (“the former matrimonial home”) subject to the existing registered mortgages.

(60)The wife is to indemnify the husband as and from the date of the transfer of his interest in the former matrimonial home to her in relation to the requirement to make any payment in respect of the existing registered mortgages, rates, taxes and services.

(61)Within three (3) months of the date of transfer of the husband’s right, title, and interest in the former matrimonial home to the wife, she is to cause the mortgages registered against the title to the former matrimonial home and which bind the husband, to be discharged.

(62)In the event of the wife failing to pay the husband the sum required by order (55) hereof, then in the absence of written consent received from the husband agreeing to an extension of the time in which the wife is to pay the money required by order (55), the parties are to forthwith cause the former matrimonial home to be sold by public auction at an agreed reserve price by an agreed auctioneer and or real estate agent.

(63)The parties are to engage an agreed solicitor or conveyancer to act for them on the sale of the former matrimonial home.

(64)Upon a sale of the former matrimonial home being concluded, the parties are to cause the proceeds of sale to be paid as follows:

(i)Payment of agents commission and auctioneers fees and expenses incurred pursuant to the contract of engagement of the agent/auctioneer;

(ii)Payment of legal costs or conveyancing costs for acting on the sale, together with any rate adjustments;

(iii)Discharge all existing registered mortgages held against the title of the former matrimonial home;

(iv)Payment to the Wife of 74.8% of the balance;

(v)In payment to the husband of the balance of the sale proceeds having first deducted and applied the following amounts:

(a)The amount outstanding by the husband to the Child Support Agency (following the Child Support Registrar making the necessary adjustment to that figure having calculated the husband’s child support pursuant to the departure order made herein) including amounts charged as penalty, interest or any other item;

(b)The sum of $30,000 to be applied, as required by these orders, for the purpose of providing security for the requirement of the husband to pay child support until 1 July 2018;

(c)One half of the sum paid, or owing by the wife, as hearing fees for all of the hearing days which the trial occupied including the first day of the final hearing on 20 July 2015;

(d)The amount of any unpaid cost order made against the husband and in favour of the wife where the amount of the costs has been set by the court order or assessed where the order required that to happen.

(e)The sum of $19,599.45 together with any further invoice provided to the wife in relation to the husband’s share of one-half of the costs incurred by the Independent Children's Lawyer in this matter together with one-half of the fees invoiced to the Independent Children's Lawyer for the single expert Dr A. The Independent Children's Lawyer is to ensure the husband is provided with a credit against the required contribution by him for payment of Dr A’s fees, for any earlier payment made by him.

(f)The amount of any unpaid invoice issued by Dr U to the husband to meet his share of the cost of therapy sessions provided by Dr U for any of the children. Should there be any such funds owing the wife is to ensure payment from the sum withheld as soon as practicable after the compliance with this order.

(g)The sum of $5,000 should the wife opt to accept option (i) as set out in order (69) hereof.

(65)In the event of the parties being unable to agree on any necessary matter to facilitate any of the property orders made herein, each has liberty to apply to seek further machinery orders necessary to determine any such matter.

(66)The obligations imposed on the wife by orders (56), (57) and (58) hereof are to apply also to the orders made under order (64) hereof should it be necessary to sell the former matrimonial home.

(67)Each of the husband and wife are otherwise to retain as their own property any asset standing in their sole name and/or possession and indemnify the other in relation to any liability they each retain in their own name.

(68)In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to this Order then the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument.

The wife’s jewellery

(69)The wife, at her option, is to choose and implement, one of the following:

(i)Deliver to the husband, at the time payment is made to him under orders (55) or (64) hereof, all of the jewellery acquired by the parties for the wife during, or in contemplation of the cohabitation (the jewellery), upon payment from the husband’s entitlement under these orders of $5,000, the value attributed to the jewellery by the wife in this proceeding. Such payment to be made by deducting from the sum to be paid to the husband pursuant or orders (55) or (64) hereof and advising the husband of her choice of this option; or

(ii)Forthwith cause all of her jewellery acquired during the cohabitation to be sold by auction and from the net proceeds after payment of sale expenses, including auction costs, cause the proceeds to be paid as to 30% to the husband and the balance to the wife; or

(iii)Forthwith and at her own initial cost, cause her jewellery, acquired during, or in contemplation of, the cohabitation, to be valued by a qualified jewellery valuer, and pay to the husband 30% of the value after having deducted one half of the cost of the valuation. The payment to the husband to be made at the same time as the payment required by order (55) or the distribution to him of the sale proceeds of the former matrimonial home should such a sale be required.

(70)In relation to the option chosen by the wife in relation to her jewellery, she is to provide the husband as soon as practicable, with written advice of the option she has chosen and where necessary with, the sales advice listing each item of jewellery sold and its sale price, together with details of the costs of the sale, OR a copy of the valuation and cost of valuation, should that be undertaken at the wife’s instruction. 

(71)The order made 15 April 2014 restraining Mr T Malcher and his wife from pursuing an action against the husband in the Supreme Court of NSW (number 2013/…), is hereby discharged.

(72)The husband is to provide the trustee of his father’s estate and his mother with a copy of the previous Order.

Part Three:

CHILD SUPPORT

(73)There is to be a departure from the Child Support Assessment dated 16 June 2015 in respect of the period 1 June 2015 to 30 June 2018. The Child Support Registrar is to assess the child support payable under the application of the Child Support (Assessment) Act 1989 (Cth) for the children of the parties, for that period to be calculated, so far as the husband is concerned, on a taxable income for the husband during each of the financial years specified in this order of $200,000, unless the husband reports a taxable income greater than $200,000 in any of those financial years, in which case the higher figure is to be applied to calculate the child support payment required by either parent.

(74)In the event of there being a Child Support Assessment in relation to any of the children of the marriage, where that assessment requires the wife to make a payment of child support, then the Child Support Registrar is to provide a credit against the wife’s liability to pay child support, where she provides evidence of payments made, by or on her behalf, for private school fees and/or necessary school associated expenses, for any of the children of the marriage, during the period of the assessment.

(75)In the event of a Child Support Assessment in relation to any of the children of the marriage, where that assessment requires the husband to make a payment of child support, then the Child Support Registrar is to provide a credit against the husband’s liability to pay child support, where he provides evidence of payments made, by or on his behalf, for private school fees and/or necessary school associated expenses, for any of the children of the marriage, during the period of the assessment.

(76)By way of security for the payment of child support by the husband, the sum of $30,000 deducted from the funds payable by the wife to the husband, pursuant to the property Orders made herein, is to be paid into an interest bearing account in a financial institution of the wife’s choosing, in the name of the husband and the wife (“the account”) with the husband and the wife to be joint signatories of such account and both are to authorise any withdrawals from the account except as provided for in the following Order.

(77)In the event the husband is in arrears of his obligation to pay child support pursuant to a current Child Support Assessment in excess of one calendar month, the wife is at liberty to withdraw from the account referred to in the previous order the amount of the arrears then outstanding. Upon the wife withdrawing any sum pursuant to this order she is to forthwith notify the Child Support Registrar of that withdrawal and provide a credit to the husband to be noted against the records of the Child Support Agency.

(78)At 1 July 2018 or upon the happening of a child support terminating event for the last of the children, the balance of funds held in the account, including any interest earned on the account, is to be paid to the husband.

(79)The wife is to publish to the bank with which the account is established, a copy of the child support orders appearing herein. To that end the court shall provide a separate order which contains a copy of the child support orders only for the purpose of this publication order.

(80)The child support, assessed as payable by the husband pursuant to the provisions of these Orders, is to be credited against the husband's liability under any administrative assessment payable by the husband to the wife for the subject period or until the happening of a child support terminating event in respect of each of the children, whichever be the earlier.

(81)The wife is to cause a copy of all the orders made herein to be served upon the Child Support Registrar as soon as practicable.

(82)The husband’s application for spousal maintenance is dismissed.

Part Four:

Other Orders

(83)The husband’s Application in a Case provided to the court on 20 September 2016 (filed in Court 22 September 2016) is dismissed otherwise than as provided for in the reasons published herewith.

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3808/2012

Ms Malcher

Applicant

And

Mr Malcher

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

Introduction

1.Ms Malcher (“the wife”) and Mr Malcher (“the husband”) commenced their cohabitation in about mid-2000. They have been blessed with three children, B born in 2002 (“the oldest child”), C born in 2003 (“the middle child”) and D born in 2006 (“the youngest child”).

2.The parties separated on a final basis in about February or March 2011. They each seek parenting orders and financial orders. Although the husband had been represented for much of the time the case had been before the Court (commencing in 2012) he was unrepresented at the trial. The wife was represented by a solicitor and counsel.

3.The trial in this matter spanned 33 days, including reopening. Most of the hearing days were consecutive. A hearing of that length is onerous on all concerned for many reasons.

4.I record here my conclusion that although the husband presented as a highly intelligent person, he was, in my view, significantly disadvantaged in the property and financial case because he was not represented by a lawyer. In relation to the parenting case I conclude that the husband was not, in the circumstances of this case, significantly disadvantaged by being self-represented. I further record that although the husband was given the assistance which is permitted to an unrepresented litigant, the constraints on the level of assistance are far greater in a property and financial case than is appropriate/available in a parenting case. That constraint, in the property and financial case heard between the parties to this litigation, may have proved very costly for the husband because he was, in crucial areas, unable to prove the case he sought to establish.  Whether he could have done so with the assistance of a skilled legal representative will never be known, however, my instinct tells me he may well have been able to improve the position the Court has been moved to take in relation to the dealings he entered into in and from 2010 with his father. Further, the conclusions which the Court could have reached in relation to the liability of the husband to the his parents arising out of the loans totalling $2.6 million may well have been different had the husband been able to establish his case on those issues.

5.The parenting evidence was heard first in the final hearing which commenced on 20 July 2015. The principal reason for hearing that evidence first was to accommodate the lack of readiness for the financial case. There was also a consideration for the cost to be incurred by the Independent Children's Lawyer having to sit through a lengthy property and financial case with nothing really to add on his part.

6.Each of the parties’ principal trial affidavits were filed very shortly before the hearing commenced on 20 July 2015. At the time of filing the parenting affidavit (there was a direction made which required the evidence to support the parenting orders be contained in a separate affidavit) each party must have had a reasonable understanding of the parenting orders which would be sought by the other. The husband relied upon his Amended Response to the Initiating Application which had been filed 10 June 2014. The wife tendered a minute of the parenting order sought by her (Exhibit W1). The husband did not oppose the wife being able to pursue the orders sought in that document. In fairness to him, had he opposed her being able to pursue the orders specified in Exhibit W1, I would have permitted her to do so as no prejudice which might have flowed to the husband (or the Independent Children's Lawyer) from granting the application was suggested to the Court by either the husband or the Independent Children's Lawyer.

7.The standout difference in the orders sought by the wife, as parenting orders, from those sought at the commencement of the hearing, was that she sought an order for sole parental responsibility for the children. In her Amended Initiating Application the wife had sought an order for equal shared parental responsibility.

8.The husband’s parenting affidavit consisted of 68 paragraphs spanning 11 pages. The wife’s parenting affidavit consisted of 714 paragraphs spanning 100 pages. In addition, her affidavit contained 62 pages of annexure. It was sworn on 15 July 2015, the Wednesday before the commencement of the final hearing on Monday 20 July 2015.

9.I had made directions for the filing of the parties’ parenting trial affidavit. The direction was made on 4 March 2015. The relevant part of the order was as follows:

Parenting

1.    I direct each of the parties to file and serve an affidavit, sworn/affirmed by themselves, which addresses only the following matters:

a.    What are your proposal with regard to:

i.Housing:

·   where will the children live with you?

·   who else will reside in the accommodation with you and the children?

·   who else do you anticipate might also spend overnight time in the accommodation with you and the children as a visitor?

·   What facilities will be provided in the house for the children? (e.g. will the children share a bedroom with any other person? What play equipment will they have? Are there any pets in the accommodation? What educational facilities will be available at the accommodation? What communication facilities will be available at the accommodation for the children to use to communicate with the other parent? Etc.;)

ii.Schooling:

·   which school do you propose the children will attend?

·   where is the school located?

·   how will the children travel to and from the school?

·   What role do you propose the other parent will have in the children’s schooling;

iii.Supervision of the children:

·   who will care for the children if you are unavailable at a time when the Court Orders provide for the children to be in your care?

·   Are you proposing the children will attend any before or after school care facility? If so give details.

·   If you are proposing any of the children’s time with a parent or other person should be supervised who do you propose will be the supervisor?

·   What is the cost of the supervision and who will pay for it?

iv.Health:

·   which GP or medical facility do you propose the children will attend should they require non urgent medical treatment?

·   does either child have any particular illnesses or conditions which require frequent medical supervision? If so, set out details of the condition and any medications prescribed to treat the condition.

·   Is there any medication which needs to be administered to any of the children at a time when you propose the children will be in the care of the other parent? If so provide detail.

·   Is there any ongoing medical treatment or therapy which the children will be required to attend upon whilst they are in the care of the other parent? If so provide details.

v.Extra-curricular activities:

·   What extra-curricular activities do you propose the children will participate in?

·   Do you propose the children participate in those activities or training for those activities whilst in the care of the other parent?

·   What is the cost of each extra-curricular activity you propose for the children?

·   Who do you propose will pay the costs of any extra-curricular activity you have outlined?

·    How do you propose the children will be transported to and from each activity?

·   What role do you propose the other parent will have in each of the nominated extra-curricular activities.

vi.Overseas travel:

·   Do you propose the children should be permitted to travel overseas with you?

·   If overseas travel is proposed when do you propose such travel would take place (e.g. in school holidays only) and what destinations do you propose the travel should include?

·   Do you propose the children should be permitted to travel over-seas with the other parent?

·   If overseas travel is proposed for the children with the other parent, when do you propose such travel would take place (e.g. in school holidays only) and what destinations do you propose the travel should exclude?

·   How do you propose the children’s necessary passports and visa requirements should be obtained?

·   Who do you propose would meet the costs of obtaining same?

·   Who will hold the passports between travel events?

b.Specify any concerns you have regarding the parenting ability of the other parent. In relation to each concern described, set out specific evidence, which illustrates how that concern arises.

c.Specify any concerns you have about the impact upon the children, yourself or any other significant person arising from the current parenting orders/arrangements.

d.Set out any other heading necessary to address a matter relevant to a finding necessary to be made under section 60CC(3).

e.Set out any other headings necessary to address issues of fact between the parents or other parties.

10.In addition I made the following further direction on 4 March 2015:

I note the husband is self-represented before the court today. I place on the record that the court having been informed there will be serious allegations of family violence, each party should anticipate that the provisions of the Evidence Act 1995 (Cth) which are otherwise not applicable to the hearing of parenting applications as specified in s 69ZT of the Family Law Act may be ordered to in fact apply to the parenting proceedings in relation to the allegations of family violence.

11.Having made that direction I had assumed the wife’s lawyer would be very careful about the form of the parenting affidavit which addressed items of family violence. Given the time which had been taken in dealing with the parties’ affidavits as preliminary matters (i.e. both the property affidavit and the parenting affidavit), I did not specifically then deal with any objection which might be taken to the form of the wife’s allegations of family violence. Rather, I proceeded with the trial and have measured the wife’s affidavit allegations of family violence on the yard stick of reliability (the weight which might be given), specificity, and competing aspects of the parties’ credit. My findings in relation to the allegations of family violence are set out hereafter.

12.At the time of the filing of the wife’s affidavit, she and her lawyers knew that the orders to be sought at the trial included an order for the children to spend time with the husband which fulfilled the definition of “substantial and significant time” (see s 65DAA(3) of the Family Law Act 1975 (Cth) (“the Act”)). In the circumstance I considered there were large portions of the affidavit which tested the relevance rule which is applied to evidence in parenting cases. I invited the wife’s legal representatives to consider the length of the affidavit and address me after they had done so. I told them that I might consider taking a variety of courses (which I stated) depending on their response. Upon consideration, the wife’s legal representatives advised the Court that certain paragraphs of the affidavit would not be pressed. In all, they said about one third of the affidavit was excised from the evidence to be relied upon by the wife. In the circumstances, I permitted the matter to rest there and we proceeded with the hearing.

13.By the commencement of the trial on 20 July 2015, in my view, the parenting issues were well defined. The issues were:

·   Sole parental responsibility (wife’s case) or equal shared parental responsibility (husband’s case);

·   Equal time with each parent (husband’s case) or substantial and significant time for the children with the husband (wife’s case).

14.The wife’s case was based upon the following:

·   The inability of the wife to be able to communicate with the husband (due to his failures to respond at all or appropriately to her attempts to communicate with him) at a level sufficient to make an order for equal shared parental responsibility workable;

·   The proven incapacity of the husband to comply with the orders of the Court;

·   The nature of the relationship between the husband and the children;

·   The conflict between the middle child and the husband which led to a breakdown in the orders for the time the middle child spends with the husband;

·   The practical and emotional consequences to the children and the wife of an equal time regime based upon week-about school term living (I note the husband said he was flexible in relation to the configuration of the equal time arrangement.)

15.The husband’s case was based upon:

·   The stated wishes of the oldest child and youngest child to be able to spend more time with him;

·   Equal shared parental responsibility, as recommended by Dr A, the Single Expert;

·   The nature of his relationship with the children;

·   The assertion that the wife has allowed the middle child to manipulate the circumstances of conflict between the parents and thus allowed him to become separated from his siblings when they spend time with the husband.

16.In relation to the property case the wife relied on evidence which was mainly sourced on documents which became evidence. The wife candidly informed the Court, through her evidence, that she had little to do with arranging the family finances during the cohabitation. She signed documents when requested to do so by the husband. The documents she executed were mortgage documents and guarantee documents to support advances from financial institutions. The monies advanced by those commitments were mainly used in conjunction with the husband’s business ventures including share and option trading.

17.As a consequence of those circumstances, much of the hearing time was taken up with an exercise which was principally a “source and application” inquiry into how the funds received from the banks and also $2.6 million advanced by the husband’s parents, were applied (There is an issue as to whether these funds were gifted or lent to the husband).

18.On the last day of the trial (day 31 being 12 October 2015) and before the parties had provided their written submissions, I was asked by the wife to make some interim parenting orders to deal with the time prior to the court delivering final parenting orders. The wife sought the following orders:

WIFE’S MINUTE OF INTERIM PARENTING ORDER

THE COURT NOTES:

A.  The following definitions for the purpose of these Orders:

A.1   “children” means [B], [C] and [D];

A.2   “[C]” means [the middle child] born … 2003;

A.3   “[B]” means [the oldest child] born … 2002;

A.4   “[D]” means [the youngest child] born … 2006.

2015 Christmas school holidays

(84)    That [the oldest child] and [the youngest child] live with the father for the 2015 Christmas school holidays:

(a)from 4.00pm on 25 December 2015 until 4.00pm on 4 January 2016;

(b)from 4.00pm on 12 January 2016 until the day the first of the children commences school for the following term.

(85)         That [the middle child] live with the father during the 2015 Christmas school holidays for the first 2 consecutive nights and the last 2 consecutive nights of each block period [the oldest child] and [the youngest child] spend with the father (and for the avoidance of doubt, it is intended that [the middle child] will spend 4 block periods, each of 2 consecutive nights, with the father during the Christmas school holidays).

Passport applications

(86)    That the father shall within 7 days:

(a)complete and return to the mother the applications for the issue of an Australian passport in respect of each of the children;

(b)provide to the mother a money order payable to Australian Passport Office in the sum of $187.50.

Dr [U]

(87)    That the father shall within 7 days pay all tax invoices issued to him by Dr [U].

(88)    That in respect of any further tax invoices issued to the father by Dr [U], the mother shall pay such tax invoices as and when issued and the total amount paid by the mother on the father’s behalf shall be deducted from any sum the wife shall be obliged to pay to the father by way of property settlement.

Orthodontic treatment

(89)    That the parties shall forthwith do acts and things and sign all documents as are necessary to authorise Dr [CC] to proceed with the treatment as per his recommendation (ie. placing braces on [the oldest child’s] teeth) with each of the parties being equally responsible for such costs.

(90)    In respect of the costs of the orthodontic treatment as per Order 6:

(a)The mother shall meet the initial cost of $2,700;

(b)The father shall then meet the instalments, due and payable every 2 months, until the father has paid the total sum of $2,700;

(c)Thereafter, the mother and the father shall each be responsible for the payment of alternate instalments, with the mother meeting the cost of the first of such instalments and each alternate instalment thereafter and the father meeting the cost of the second of such instalments and each instalment thereafter.

19.Submissions were made by the wife specifying why the orders sought were necessary. Initially the husband made some submissions in relation to the order sought for the issue of new passports for the children. However, when it came to the point of addressing the issue of school holiday time for the children, the husband withdrew from any further involvement in the proceeding on that day and ultimately left the Court before the hearing of that application was concluded. The husband informed the Court that he was planning to travel to Europe with his partner and their child and he would be absent from Australia indefinitely. He pressed the Court to make an interim spousal maintenance order in his favour. When he was informed by the Court that could not happen in this case until the Court had an opportunity to consider the large body of financial evidence (more than 120 exhibits in the financial case many of which were in themselves voluminous) he informed the Court that in the absence of an interim spousal maintenance order or an order for the immediate sale of the former matrimonial home he would become a bankrupt and would not be able to afford to pay the rental on his accommodation.

20.The interim parenting orders I made on 13 October 2015 are as follows:

Pending Further Order:

1.That [the oldest child] and [the youngest child] live with the husband for the 2015 Christmas school holidays:

a.from 4.00pm on 25 December 2015 until 4.00pm on 4 January 2016;

b.from 4.00pm on 12 January 2016 until the day the first of the children commences school for the following term.

2.That [the middle child] live with the husband during the 2015 Christmas school holidays for the first 2 consecutive nights and the last 2 consecutive nights of each block period [the oldest child] and [the youngest child] spend with the husband (and for the avoidance of doubt, it is intended that [the middle child] will spend 4 block periods, each of 2 consecutive nights, with the husband during the Christmas school holidays).

3.Should [the middle child] chose to spend longer with his siblings during the time they are in their father’s care during the aforesaid school holidays he is to be permitted by the parents to do so.

4.Each of the parents is restrained from exerting excessive influence upon [the middle child] in relation to his prospective decision to spend more time with his father during the subject school holiday period than is required by order (2) hereof.

5.The wife is permitted to apply for renewal of current Australian passports held by each of the children [B] born … 2002, [C] born … 2003, and [D] born … 2006.

6.All officers of the Australian Passport Office and any other Regulatory body responsible for the issue of Australian passports are authorised and directed to issue the new passports for the named children upon the application by the children’s mother [Ms Malcher], without the necessity for the children’s father [Mr Malcher] to provide his written consent to the issue of such passports.

7.Pending Further Order, the abovenamed children are not to be removed from the Commonwealth of Australia.

8.The husband having informed the court he has informed Dr [CC], orthodontist, that he consents to orthodontic procedure being provided to the child [B], the wife may proceed forthwith to arrange for such procedure by that practitioner without the necessity of any further written or verbal consent being provided by the husband.

9.The balance of the wife’s application filed in court on 12 October 2015 is refused.

21.I have set out later in these reasons my reasons for making the interim orders above set out.

22.As stated earlier, the trial proceeded for 31 days in Court. The parties had originally told the Court nine days would be required. As it transpired, that was a significant understatement. As the hearing unfolded it was apparent that the wife was carrying out a form of financial inquiry which questioned the application of funds by the husband during the marriage and since. In the final stages of the property cross-examination of the husband by the wife it was put that the husband had engaged in a course of conduct with his father in order to alienate from the husband, and entities within his control, funds and/or property which would otherwise be available for distribution between the parties. The husband and his father denied any such behaviour.

23.Pursuing the exercise of financial investigation, the wife tendered 83 documents or groups of documents. The husband tendered 37 documents or groups of documents. A number of significant exhibits were accompanied by useful aide memoires.

Background Facts

24.Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact. Under this heading I have sought to accumulate relevant facts which are largely uncontentious. To the extent there is a significant issue I will state that to be the case.

25.The wife was born in 1968 (now 48) and the husband was born in 1971 (now 45). They were married in 2000, having commenced residing together about the middle of 2000. Separation occurred in about February or March of 2011 when the husband vacated the former matrimonial home.

26.Between January 2000 and July 2000 the wife was working in Canberra.

27.The parties have three children. B born in 2002 (“the oldest child”), C born in 2003 (“the middle child”), and D born in 2006 (“the youngest child”).

28.The husband has re-partnered with Ms G and they have one child EE born in 2015.

29.At the end of 1999 and into 2000 the parties acquired a property in their joint names at Suburb AA. In about mid-2000 the parties commenced residing in the AA property.

30.In about May 2000 the wife sold her unit at Suburb OO. It sold for $405,000. On settlement the net proceeds received was $396,574.65. Of that sum $396,574 was paid to loan account …140. That sum almost cleared the liability owing on that loan.

31.In February 2002 the husband sold his Suburb OO unit for $455,000.

32.In June 2002 the parties and the oldest child moved to the United States where the wife took up full-time employment. They returned to Australia in July 2003.

33.During the period the parties lived in the United States the husband was absent from the parties’ residence in the United States for about 12 weeks while travelling.

34.The wife’s employment during the period of cohabitation and since is as follows:

·   From January 2000 until January 2002 SS Health Service;

·   July 2002 to Mid-2003 MM Hospital (USA);

·   In February 2004 the wife commenced employment at R Hospital. She also started private practice one day per week. She worked three days per week;

·   In January 2006 the wife returned to work two months after the youngest child was born. She worked three days per week.

·   In 2007 and 2008 the wife increased her work times to four days per week;

·   When all the children were at school the wife increased her work to five days per week.

35.In May 2003 the jointly owned property at Suburb AA was sold for $1,730,000.

36.Throughout the cohabitation the husband earned an income. The documents tendered to the Court show his taxable income and tax paid for the period of cohabitation and since is as follows. The symbol “*” denotes that the tax return has not yet been lodged and only a draft proposed to be lodged has been provided.

·   30/6/2010 Taxable income $414,711. Tax paid $174,714. Net after tax including tax refund of $7,023 was $247,020.

·     2002	$       Nil
·     2003	$    6,443
·     2004	$  22,343
·     2005	$   6,100
·     2006	$   5,754
·     2007	$ 10,481
·     2008	$       Nil
·     2009	$108,441
·     2010	$414,711
·     2011*	$    4,211

37.I am satisfied that in the years 1999 until September 2001 the husband earned an income of about $120,000 before tax.

38.The wife’s net income after tax during the cohabitation and since separation is as follows. This evidence was unchallenged by the husband.

·   2000 - $69,341

·   2001- $62,338

·   2002- $44,398

·   2003- $41,198 (US$)

·   2004- $34,090

·   2005- $50,243

·   2006- $83,287

·   2007-$134,414

·   2008- $126,464

·   2009- $168,602

·   2010- $156,434

·   2011- $154,527

(sub-total $1,125,336).

·   2012- $201,630

·   2013- $261,220

·   2014- $268,439

39.On 21 May 2004, the parties completed the purchase of the former matrimonial home at O Street, Suburb N. The purchase price was $2 million. On settlement the parties provided bank cheques for Sydney Water $103.76, TW & Associates $1,680 and Bendigo Bank Ltd $1,804,303.48 (see Exhibit W25.) Clearly, a deposit would have been paid on exchange of contract.

40.On 18 May 2004 the parties secured a loan from the ANZ Bank titled Equity Manager Loan. The wife said the amount available to the parties was $900,000. On 25 May 2004 the first draw against that loan was made with a withdrawal of $750,000. On 11 June 2004 a further draw of $100,000 was made. On 12 July 2004 a further $20,000 was drawn. That last mentioned sum was transferred to an Ord Minnett Limited account (see Exhibit W26).

41.On about 3 September 2008 the parties were offered a facility by the ANZ Bank being a guarantee/indemnity for ABC Pty Ltd to a total limit of $350,000. The term was for two years to assist with options trading. The security for the loan was individual guarantees by the husband and wife together with a registered mortgage of the former matrimonial home. An individual guarantee and indemnity from the husband’s father Mr T Malcher was also required (see Exhibit H7).

42.In May 2009 the parties applied for and obtained approval for two loans from Westpac Bank. One loan was a Housing Loan for $1.25 million. The other loan was a guarantee to the sum of $350,000. This was a loan to enable the husband via ABC Pty Ltd to trade on the stock exchange in derivatives. The evidence of the guarantee was to be lodged with the ASX as part of the margin requirements (Exhibit W34). The exhibit also referred to a third loan of $560,000. As it transpired this loan did not proceed. The parties were considering/planning to acquire premises from which the wife could conduct her private practice. That did not proceed. All of the advances were to be secured against the former matrimonial home.

43.Exhibit H8 is a copy of an Individual Guarantee and Indemnity. The agreement is between the ANZ Bank and the husband and wife as guarantors. The “Customer” is ABC Pty Ltd. The guarantee extends to $350,000 as the amount of the guarantee. The document is otherwise unsigned and undated, however, stamped on the front is a notice “Copy to Keep”. The husband said this is a copy of the document entered into by the parties in May 2009 and I accept that is probably correct. A second document, in all but identical form is part of Exhibit H8. This document is a guarantee and indemnity executed by the husband’s father for the same sum of $350,000.

44.Annexure “L” to the wife’s affidavit is part of a document provided by Westpac Bank and shows the parties increased the amount of the guarantee (referred to in the document as “Banker’s undertaking-Individual Limit”). The purpose of the loan is said in the document to be “To assist with Derivative trading”. The amount is $700,000. The parties agree this was an increase of the earlier facility of $350,000. The Banker’s Undertaking was secured by “$700,000 Limited Guarantee by [the husband] and [the wife]” together with a mortgage over the former matrimonial home. Further security was a fixed and floating charge over ABC Pty Ltd as trustee of PP Unit Trust.

45.The fact that the extension of the amount of the guarantee with Westpac to $700,000 names the PP Unit Trust as the customer supports the husband’s evidence that the $350,000 guarantee was also for that entity.

46.In July 2009 the husband took out a six month lease on an apartment in Sydney. He was away from the former matrimonial home for about three weeks and then returned. During this six month period the rental paid was $109,563. There is issue about the purpose of the expenditure and who obtained the benefit of same.

47.On 10 August 2010 the husband caused to be deposited to the parties’ joint account with Westpac the sum of $150,000. The record (Exhibit H11) shows the source of the funds as PP Unit Trust. The husband’s evidence is that this was a payment of funds which came from his father as a loan. This is corroborated in paragraph 9 of the affidavit of the husband’s father. Mr T Malcher deposed that the purpose of the loan was to enable the purchase of a Motor Vehicle 2. Exhibit H11 shows that on 24 August 2010 a transfer of funds occurred from the joint account to “[Motor Vehicle 2] [Suburb Q]” in the sum of $145,000. The husband’s evidence, which I accept on this aspect, is that a deposit had been paid at an earlier time, probably by credit card.

48.On 3 September 2010 there was an incident at the former matrimonial home which has been referred to in the evidence supporting the parenting case as the “XXX” incident. The wife left the former matrimonial home on that occasion. The police attended at the home. The husband changed the locks on the house. There was, after a short time, an attempted reconciliation until the separation in February 2011.

49.On about 3 September 2010 the husband caused the parties’ joint banking and credit card facilities to come to an end. After that time the husband did not deposit his income to the parties’ joint account and the credit card facilities of the husband, to which the wife had previously had access, were terminated.

50.On 25 January 2011 the parties entered into a Binding Financial Agreement. That agreement was set aside, by consent, on 22 April 2014.

51.On 9 August 2011 the Banker’s Undertaking was called upon. On that day a demand was made upon ABC Pty Ltd by letter from the Westpac Bank. The bank had paid to TT Stockbrokers the sum of $700,000.(see annexure “M” to the wife’s property affidavit).

52.At the time the banker’s guarantee was called upon the husband was working for, or in affiliation with, TT Stockbrokers.

53.The parties on about 30 September 2011 took up a “Bank Bill Business Loan” with Westpac Bank for $700,000. This loan then repaid the $700,000 which the bank had paid to TT Stockbrokers (see annexure “N” to the wife’s property affidavit).

54.The proceeding commenced by Initiating Application filed by the wife on 29 June 2012. At that time the husband was occupying the former matrimonial home with the wife and the children and had done so since early 2012. The parties remained separated during that time. The wife has continued to occupy the former matrimonial home at O Street, Suburb N.

55.Interim parenting orders were first made in this Court on 16 July 2012. The orders also provided for the husband to vacate the former matrimonial home and for the wife to have exclusive occupation of same thereafter.

56.The orders made 16 July 2012 provided for the parties to have equal shared parental responsibility for the children and that they live with the husband in a two week school term time cycle. Week one to commence after swimming on Friday to 7.00 p.m. Monday, and week two from after school Monday to 7.00 p.m. and from after school Tuesday to before school Wednesday. There were provisions made for the end of third term school holidays.

57.One of the orders made on 16 July 2012 was “That LJ Hooker be forthwith appointed as the Real Estate Agent to sell the home.” Another order was made for the appointment of a solicitor to act for the parties on the sale. The fact that the husband consented to leave the former matrimonial home on the making of the orders on 16 July 2012, at a time when the parties had agreed to sell the home, is a matter referred to on a number of occasions by the husband during the trial. The husband claimed he has been significantly disadvantaged by the wife’s failure to comply with the order requiring the sale of the former matrimonial home. The property has not been sold and the wife now seeks to retain the property.

58.The two boys, B and C, attend S School at Suburb Y, and the youngest child, daughter D, attends W School at Suburb Y.

59.There was an issue between the parties as to the school which the youngest child might attend. An order was made on 18 December 2013 requiring the parties to facilitate the youngest child attending W School commencing in the 2014 school year.

60.The current care of the children sees them living with the wife and spending time with the husband. The most recent order was made 16 May 2015. That order provides that the oldest child and the youngest child spend time with the husband in week two from after school Monday to before school Wednesday. In week one from after school Friday until 8.00 p.m. Monday. The time for the oldest child with his father was extended to school time on Tuesday as from 15 June 2015. That related to the week one regime. Separate orders were to operate for the middle child who was at the time spending limited time with the husband. There are also orders which operate in relation to school holidays and other occasions.

61.The Child Support Agency has issued two recent Child Support Assessment Notices. The first requires a nil payment by the husband for the period 1 June 2015 to 31 October 2015. The second requires a monthly payment of $1,013 per month by the husband to the wife for the period 1 November 2015 to 31 August 2016. The second assessment is made upon a provisional assessment of the husband’s income of $497,930 for the 30 June 2015 tax year (see annexure “R” to the wife’s affidavit).

2208.The valuation report failed to comply with the orders of the court in that it did not have attached to the report a copy of the order of 10 November 2016 (set out above) nor did it contain the statement required by order 5 of those orders. In order to rectify that error I caused my Associate to send a further email to the parties as follows:

Good Morning,

In relation to the valuation report, His Honour has noted that Order 5 of 10 November 2016 does not seem to have been complied with.

Order 5 sets out:

5. At the conclusion of the expert’s report he/she is to sign a written statement stating that the provisions of Rule 15.59 have been complied with in the preparation of the report, the orders of the court set out herein have so far as the orders impact on his/her conduct, been complied with and the conditions and provisions of the letter of instruction have been complied with.

His Honour has requested that the valuer be contacted by email and a statement to the effect of that ordered be obtained from the valuer by email and sent to chambers as soon as possible.

Regards
…
Associate to the Hon. Justice Le Poer Trench
Family Court of Australia

2209.The single expert did provide the email as requested and the order of 10 November 2016 has been complied with. I note the letter of instruction stated it included a copy of the subject order.

2210.The updated valuation has been included in the Balance Sheet, as will be seen earlier in these reasons.

Final Calculation of Distribution of Net Assets

2211.As discussed earlier, I have determined the wife is to receive $752,192 in net assets and the husband $322,368. The wife is to have the opportunity to retain the former matrimonial home.

2212.The wife will retain the following assets and liabilities from the Balance Sheet which stand in her sole name:

·    Wife’s motor vehicle  $4,200

·    Wife’s Household contents  $5,000

·    Wife’s professional practice  $(47,185)

·    Wife’s unpaid trust distribution  $57,649

Total  $19,664

2213.The wife retains the following liabilities in her own name:

·    Wife Westpac Flexi-Loan account number #969           $20,228

·    Wife Westpac Flexi-Loan account number #181           $49,871

·    Wife Loan from Ms FD  $4,000

·    Wife Income tax liability  $149,174

·    Wife Loan from the Ms Malcher Administration

Trust                      $83,646

Total  $306,919

Deficit of assets of wife   ($287,255)

2214.The husband retains the following assets in the Balance Sheet which stand in his sole name.

·    Husband’s motor vehicle  $41,200

·    Husband’s jewellery  $65,000

·    Husband’s household contents  $5,000

·    Husband’s wine collection  $20,546

Total  $131,746

2215.The husband retains the following liabilities:

·    Husband’s income tax liability  $150,000

·    Husband’s loan from Mr VY  $   10,000

Total  $160,000

Deficit of assets retained by husband   ($28,254)

2216.The equity in the former matrimonial home (ignoring sale costs) is

Value of the home   $3,550,000

Less secured mortgages     

($460,000 + $700,000 + $999,931)       $2,159,931

Total equity:  $1,390,069

2217.The determination I have made as to the division of the parties’ property requires the wife to have $752,192 of net assets and the husband to have $322,368 in net assets.

2218.The wife therefore needs to receive $1,039,447 ($752,192 plus $287,255) of the equity in the former matrimonial home in order to achieve that result.

2219.The balance of the equity in the former matrimonial home is for the husband, namely $350,622 ($322,368 plus $28,254). That is the sum the wife will need to pay the husband in order to be able to retain the former matrimonial home. She will also have to discharge the debt on the former matrimonial home so that the husband’s liability is extinguished.

2220.The wife will clearly be required to obtain financial assistance in order to acquire the husband’s interest in the former matrimonial home. It is reasonable to assume that the wife will need to borrow funds. Given the time of the year when the Court Orders made herein will be published I propose to provide her with a reasonable time to seek finance. To that end I will provide her until 1 April 2017 to obtain the funds and make payment to the husband.

2221.As will be seen by the Order providing for the wife to pay the husband the sum above set out, there are specific sums which she is required to deduct from that figure. The net effect will be that she may well have less to pay depending upon the outcome of the Child Support Registrar’s re-calculation of child support pursuant to the departure order which is made, and the effect of same on the outstanding arrears of child support.

2222.Further, the Orders will provide for a specific sum to be deposited from the husband’s entitlement to the funds required to be paid by the wife, to act as security for the husband’s requirement to pay child support until 1 July 2018.

2223.A consequence of the above set out deductions to be made to the sum the wife will actually pay to the husband, is that the sum to be received by the husband will be less than the $350,622 figure specified above.

2224.Should the former matrimonial home have to be sold because the wife has been unable to pay to the husband the amounts required by the Orders, then the net sale proceeds, as defined in a sale order to be made, will need to be distributed in percentage amounts. I now determine what those percentages will be.

2225.The wife needs to obtain $1,039,447 of the equity in the former matrimonial home as calculated above. That calculation does not include sale expenses and adjustments. The amount received as a contract price for the former matrimonial home upon sale may be more or less than the figure which now sits in the Balance Sheet as the value of the former matrimonial home and upon which the calculation has been made. It is therefore important to make an order which distributes the proceeds in percentage terms rather than requiring the proceeds to be paid to the husband and wife as a specified sum. There is ample authority from the Full Court supporting this approach.

2226.The figure of $1,039,447 represents 74.8 per cent of the equity calculated above of $1,390,069.

2227.No submission was made by either party about the process of calculating the entitlement of each party should there be a sale. This may have been on the wife’s side because she sought an order for the whole of the equity in the former matrimonial home.

2228.Given the extent of encumbered debt on the former matrimonial home I consider the fairest approach to determining where the percentage division is to occur, is after the sale expenses and registered mortgage discharges have been paid. I will so order.

I certify that the preceding two thousand two hundred and twenty-eight (2228) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 9 December2016.

Associate:

Date:  9 December 2016

MALCHER & MALCHER [2016] FamCA 1063

INDEX – REASONS FOR JUDGMENT

PART	PARAGRAPH
Introduction	1
Background Facts	24
Associated entities of the parties
Wife	63
Husband	63
Husband’s father, Mr Malcher Snr	63
The Issues
Parenting case	64
Property/financial case	64
Orders sought
Parenting	66
Wife’s Minute of order	66
Husband’s Minute of order	68
Independent Children's Lawyer’s       Minute of Order	69
Property
Wife’s Minute of order	70
Husband’s Minute of order	71
Affidavit evidence in the property case
Husband’s evidence in the property case	72
Financial position of the parties at the   commencement of cohabitation	73
Number plates	106
Mr Malcher Snr affidavit evidence	133
Affidavit evidence of the wife	148
Purchase of the N property	161
Parenting case affidavit evidence
Affidavit of the husband	201
Affidavit of Ms G	217
Affidavit of the wife	243
Affidavit of Ms TX	301
Affidavit of Ms BX	306
Affidavit of Mr I	311
Affidavit of Ms RX	316
Affidavit of Mr DX	319
Affidavit of Mr KX	323
Affidavit of Ms HX	329
Affidavit of Dr BD	333
Affidavit of Ms SX	338
Second affidavit of Mr I	340
Second affidavit of Mr DX	344
Dr A	349
First Report of Dr A	351
The interviews	352
Opinion of Dr A	362
Recommendations	372
Second Report of Dr A
The interviews	373
Opinion	387
Recommendations	393
Dr A’s oral evidence – 30 July 2015	394
Dr A’s views on parental   responsibility	395
Dr A’s views on spend time   arrangements	413
Dr A’s views on continuing   therapy	417
Dr A’s oral evidence – 19 August 2015	419
Oral evidence in the parenting case
Cross-examination of the wife by the            Independent Children's Lawyer	436
Cross-examination by the husband	447
Re-examination of the wife	492
Cross-examination of Mr I	493
Cross-examination of Mr DX	494
Cross-examination of the husband	495
Cross-examination by the wife	511
Re-examination of the husband	546
Cross-examination of Ms G	552
Cross-examination of Ms G by the            wife	569
Re-examination of Ms G	573
Credit
The wife	577
The wife’s presentation and   personality as assessed by me	584
The husband	593
Husband’s presentation in court as a   sworn witness	602
Specific credit finding	612
Oral evidence in the property case
The wife’s evidence in chief	614
Cross-examination of the wife by the            husband	635
The wife re-opens evidence in chief	687
Mr LN	691
Husband’s evidence in chief	697
Cross-examination of the husband	701
Re-examination of the husband	784
Further cross-examination of the husband by            the wife	818
Oral evidence of Mr Malcher Snr	850
Parenting submissions
Independent Children's Lawyer submissions	900
Wife’s submissions	922
Husband’s submissions	989
Submissions of the husband in relation to the            removal of Dr A as single expert	1033
Submissions in reply of the wife	1036
Submissions of the wife in relation to the            husband’s application for the removal of Dr            A as single expert	1054
Issues of fact – Parenting
The parenting capacities of each party	1058
The parental relationship	1076
The incidence of family violence in the            parental relationship and the impact upon the            children should the Court accept any of the            wife’s evidence alleging same	1090
The parenting styles of each parent	1100
The nature of the relationship between the            husband and the middle child	1132
The impact upon and the consequences for            the children and the parties of:
(a)   Making a sole parental responsibility order in favour of the wife	1156
(b)  Ordering that the wife make decisions about which schools the children attend	1173
Conclusion	1182
(c)  Making orders for disparate times for the children to spend with each parent	1190
Reducing the amount of time any of the            children currently spend with the husband	1208
The type of condition, injunction or            restriction which should be placed upon the            parents whether an equal shared parental            responsibility order or a sole parental            responsibility order is made	1209
The exact makeup of the time and            circumstances in which the children spend            with each parent	1226
Any other necessary order	1227
Section 60CC Considerations
Primary considerations	1246
(a)   The benefit of the child of having a meaningful relationship with both the child’s parents	1247
(b)  The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence	1248
Additional considerations
60CC(3)(a)	1249
60CC(3)(b)	1260
60CC(3)(c)	1277
60CC(3)(ca)	1285
60CC(3)(d)	1288
60CC(3)(e)	1290
60CC(3)(f)	1291
60CC(3)(g)	1292
60CC(3)(h)	1293
60CC(3)(i)	1294
60CC(3)(j)	1297
60CC(3)(k)	1326
60CC(3)(l)	1327
60CC(3)(m)	1327
Updated evidence provided in September and            October 2016 when the hearing was re-opened	1340
Balancing of all considerations under section 60CC and the defined issues	1349
Section 61DA	1350
Section 65DAA	1355
Further submissions of the Independent            Children's Lawyer and Parties following 22            September 2016 when evidence re-opened in a            limited degree	1357
Determination of the parenting case	1366
Reasons for interim orders made 13 October 2015	1369
Property: General Principles	1378
Property Submissions
Wife’s submissions	1385
Husband’s submissions	1397
Disclosure	1410
Determination of the identified issues of fact
The wife’s Notice to Admit Facts served 22            January 2014 (Exhibit W21)	1412
Have each of the parties made full disclosure as required by the Family Law Rules?	1424
Were the sums received by the husband      from            his parents on 27 June 2000 and 20 November            2001 (a total of $2.6 million) gifts or loans or            something else? How should the court treat            those payments for the purpose of this            hearing?	1429
If the $2.6 million was a loan from the            husband’s parents, is it still repayable? If so,            how much is owed?	1512
Do the parties owe money to the husband’s            father arising from the transaction which            occurred in August 2010 involving the            purchase of a Motor Vehicle 2?	1526
What is the financial obligation of the husband            arising out of trading in number plates by the            husband and/or his father, and also any            business they may have conducted under the            canopy of ABC Pty Ltd?	1532
Should the children continue to attend private            schools?	1544
Principles referable to the issue of whether the            children should attend private or public            schooling	1549
Matters of credit in relation to the husband and his true income	1560
Balance Sheet	1576
Balance Sheet disputes	1577
Value of the former matrimonial home	1580
The wife’s jewellery	1581
Determination of this issue	1596
Value of the wife’s contents	1603
The husband’s wine collection	1606
Items 9 to 14 and Items 17 to 22       inclusive on exhibit X3	1612
Items described as the “wife’s credit   card debts”	1613
Items 45-50 – The husband’s credit card   liability	1617
Item 36 – the wife’s liability to Ms FD	1622
The husband’s liability to Mr VY	1625
The husband’s liability to his parents   for any loan funds	1627
Liability to Westpac Banking   Corporation Ltd on the mortgages            secured against the former matrimonial                home	1628
Liability of the wife on Westpac       Banking Corporation Ltd Flexi-Loan   #969 and Westpac Banking   Corporation Ltd Flexi-Loan #181	1629
Balance Sheet as found by the Court	1630
Separate Pool for Superannuation	1631
Assessment of the s 79(4) contributions	1635
Initial contributions
When did cohabitation commence?	1636
What assets, liabilities, superannuation and            resources did each party have at the            commencement of cohabitation?
The wife	1683
The husband	1644
Financial Contributions during the cohabitation
The wife	1649
The husband	1655
Contribution to superannuation during            cohabitation	1680
Non-financial contributions during            cohabitation
The wife	1682
The husband	1683
Home maker and parent contributions during            cohabitation	1686
Financial contributions post separation
The husband	1700
The wife	1705
Contributions to superannuation post            separation	1716
Home maker and parent contributions post            separation	1718
Non-financial contributions post separation	1724
Conclusion as to the assessment of contributions to the marriage and all assets other than superannuation	1726
Conclusion as to assessment of contributions to superannuation	1730
Section 75(2) factors	1732
75(2)(a)	1733
75(2)(b)	1736
75(2)(c)	1786
75(2)(d)	1793
75(2)(e)	1806
75(2)(f)	1807
75(2)(g)	1811
75(2)(h)	1818
75(2)(ha)	1819
75(2)(j)	1825
75(2)(k)	1832
75(2)(l)	1836
75(2)(m)	1841
75(2)(n)	1844
75(2)(naa)	1846
75(2)(na)	1847
75(2)(o)	1859
The wife’s claim to retain the former   matrimonial home based upon the “best   interests” of the children	1860
Non-disclosure claims by each party	1877
Has the husband alienated assets?	1906
What funds are owed by the PP Unit   Trust or PP Discretionary Trust to              Mr Malcher Snr?	1942
Other matters
Occupation of the former       matrimonial home post   separation	1947
Payment of court fees and legal   costs	1949
Rental of the City Unit in 2009	1960
The husband’s liability to his   parents for the loan repayment of   the balance of the $2.6 million   together with any interest owing	1963
Credit card debt	1969
The husband’s ownership of a   Motor Vehicle 3	1983
The devaluation of the former   matrimonial home by the wife   post separation	1984
Acquiring new items of furniture   for personal use post separation	1985
75(2)(p)	1986
Conclusion as to adjustment under s 75(2)	1987
Conclusion as to division of assets and superannuation	1992
The husband’s spousal maintenance application	1994
Child Support Departure Application and Lump Sum Child Support	2009
Legal principles to be applied	2018
Departure orders under Division 4, Part 7	2024
Grounds for departure	2025
Lump sum payments	2030
Consideration of the husband’s Child Support            Departure Application	2050
Lump sum child support	2062
Orders to be made	2090
Apportionment of Administration Fees paid            for the hearing	2091
Should the wife retain the former matrimonial            home?	2092
Outstanding costs orders	2099
Superannuation Splitting Order	2101
Further submissions following the listing of the matter on 22 September 2016	2108
The Independent Children's Lawyer’s            submissions	2124
The husband’s submissions	2133
The wife’s submissions	2136
Application to re-open by the husband	2142
The husband’s application to re-open to            provide up-to-date evidence of the value of the            former matrimonial home	2147
Determination of the application to re-                open	2152
Matters of principle applicable to the re-           opening of a hearing	2156
Determination	2162
The husband’s application for urgent spousal            maintenance	2175
The husband’s application for the children            B and D to travel to Europe this Christmas	2180
Dispute arising in relation to engaging the            single expert real estate valuer	2189
Determination of the issues relating to                 engaging the single expert real estate                   valuer	2195
Final calculation of Distribution of Net Assets	2211