Masoud & Masoud - [2013] FamCA 763

FAMILY COURT OF AUSTRALIA

MASOUD & MASOUD

[2013] FamCA 763

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Where the parties have three children – Where the Court considered the presumption of equal shared parental responsibility – Where there were allegations of family violence but the presumption was found not to be rebutted – Where the Court determined that it was in the best interests of the children for the parties to have equal shared parental responsibility.
FAMILY LAW – CHILDREN – WITH WHOM CHILDREN LIVE – Where the parties agreed that the two younger children should live with the wife and the oldest child should live with the husband – Where the Court considered whether an equal time arrangement would be in the children’s best interests – Where the Court ordered that the two younger children should spend substantial and significant time with the husband but not equal time with him – Where the Court ordered that the oldest child should spend time with the wife as agreed between the child and the wife.
FAMILY LAW – PROPERTY – SETTLEMENT IN RELATION TO MARRIAGE – Where the parties were married for 16 years and seek an alteration of their property interests under section 79 of the Family Law Act 1975 (Cth) (“the Act”) – Where the Court considered whether notional property should be “added back” into the parties’ asset pool or considered elsewhere – Consideration of the Full Court decision in Bevan & Bevan [2013] FamCAFC 116 – Where overall the wife was found to have made greater section 79(4) contributions than the husband – Where the husband has a considerably higher earning capacity than the wife – Where the wife contributed to the development of the husband’s earning capacity – Where the Court found that it was appropriate to make an adjustment in favour of the wife under section 75(2).
FAMILY LAW – SPOUSE MAINTENANCE – Where the wife sought an order for spouse maintenance – Where the threshold findings under section 72 of the Act were satisfied – Where the Court considered what order would be “proper” – Where it was determined that an order for the husband to pay maintenance to the wife for two years would be proper.
FAMILY LAW – CHILD SUPPORT DEPARTURE – Application for departure from an existing child support departure order – Where both parties sought an order for child support departure –Where the difference in quantum in the parties’ proposed orders varied substantially – Where the Court undertook the three-step process of analysis – Consideration of whether there was a ground for departure under section 117(2) of the Child Support Assessment Act 1989 (Cth) – Consideration of whether it would be “just and equitable” to make an order – Consideration of whether it would be “otherwise proper” to make an order – Where the Court made an order for departure.

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)
Limitation Act 1969 (NSW)

Bevan & Bevan [2013] FamCAFC 116
Chorn and Hopkins (2004) FLC 93-204
Gray v O’Donnell [2009] NSWSC 259
Gyselman & Gyselman (1992) FLC 92-279
In the Marriage of Bevan (1995) FLC 92-600
Mitchell v Mitchell (1995) FLC 92-601
Ogilvie v Adams [1981] VR 1041; [1981] VicRp 92
Saberton & Saberton [2013] FamCAFC 89
Sathra & Sathra [2013] FamCA 142
Stanford v Stanford (2012) 293 ALR 70
Wilson & Wilson (1989) FLC 92-033
Young v Queensland Trustees (1956) 99 CLR 560

APPLICANT:

Ms Masoud

RESPONDENT:

Mr Masoud

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

2198

2012

DATE DELIVERED:

4 October 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Fowler J

HEARING DATE:

1–5 and 8–9 July 2013 and written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kirk QC

SOLICITOR FOR THE APPLICANT:

Watts McCray

COUNSEL FOR THE RESPONDENT:

Mr North SC with
Mr Levy

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Wong

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

Parenting

The parties Ms Masoud (“the wife”) and Mr Masoud

(“the husband”) shall have equal shared parental responsibility for making decisions about the long-term care, welfare and development of the children J Masoud born … 1997 (“J”); D Masoud born … 2000 (“D”); and G Masoud born on … 2002 (“G”) (together, “the children”).
J shall live with the husband.
D and G shall live with the wife.
J shall spend time with the wife as agreed between J and the wife, noting that both parties agree that it is in J’s best interests to spend time with the wife.
D and G shall spend time with the father as follows:
(a) from the date of these Orders for a period of six weeks:
(i)in each alternate week during school term – from the conclusion of school on Friday (or from 3.30 pm on a non-school day) until Saturday at 8.30 pm and
(ii)in each other week – from the conclusion of school on Thursday (or from 3.30 pm on a non-school day) to 7.00 pm
(b)following the expiration of the period of six weeks referred to in Order 5(a) above, for a further period of six weeks:
(i)in each alternate week during school term – from the conclusion of school on Friday (or from 3.30 pm on a non-school day) until the commencement of school on the following Monday (or until 8.00 am on a non-school day)
(c)following the expiration of the period of six weeks referred to in Order 5(b) above:
(i)in each alternate week during school term – from the conclusion of school on Thursday (or from 3.30 pm on a non-school day) to the commencement of school on the following Monday (or until 8.00 am on a non-school day)
(d)during the Christmas school holidays commencing in 2013:
(i)for two periods each of seven days as agreed between the parties or
(ii)in the absence of agreement by the parties, during the second and fourth week of the Christmas school holidays commencing on Sunday at 9.00 am
(e)during school holidays commencing in 2014:
(i)for one half of each school holiday period as agreed between the parties not less than six weeks prior to the commencement of the holiday period or
(ii)in the absence of agreement by the parties, for the second half of each school holiday period commencing in 2014 and each alternate year thereafter, and for the first half of each school holiday period commencing in 2015 and each alternate year thereafter
(f)
from Christmas Eve at 6.00 pm to Boxing Day at 6.00 pm in

odd-numbered years (noting that the husband’s time with the children will be suspended from Christmas Eve at 6.00 pm until Boxing Day at 6.00 pm and in even-numbered years)
(g)at other times as agreed between the parties in writing which includes agreement by email.
Notwithstanding anything otherwise contained in these Orders, the children shall spend time with the husband from the conclusion of school (or from

3.30 pm on non-school days) on the Friday before Father’s Day until the commencement of school on the following Monday (or 8.00 am on a

non-school day).
Notwithstanding anything otherwise contained in these Orders, the children shall spend time with the wife from the conclusion of school (or from 3.30 pm on non-school days) on the Friday before Mother’s Day until the commencement of school on the following Monday (or 8.00 am on a

non-school day).
Unless otherwise stated in these Orders or by agreement made between the husband and wife in writing, if changeover of the children does not occur at school, the husband or his nominee shall collect the children from the wife’s home at the commencement of his time with the children and the wife or her nominee shall collect the children from the husband’s home at the conclusion of his time with the children.
If either the husband’s or the wife’s time with the children commences or concludes at school, they or their nominee shall deliver the children to or pick up the children from the school.
Unless otherwise agreed between the husband and wife, the parent who is not scheduled to collect D or G from school pursuant to these Orders on any given day shall be restrained from attending the school that D and G attend one hour prior to and one hour following the conclusion of school.
The operation of Order 10 shall be suspended in the event of a parent-teacher interview event, an emergency or any school functions which the parents are invited to attend.
For the purpose of calculating any school holiday period, school holidays shall be deemed to commence from the conclusion of school on the last day of school term for the school D and G attend; this shall be known as the “first day”. The school holiday periods shall conclude at 3.00 pm on the day prior to the first school day that D and G attend school in each new school term; this shall be titled the “last day”.
Unless otherwise agreed between the husband and the wife, changeovers which occur half way through the school holiday periods shall occur at 2.00 pm on the day in the middle of the first day and the last day and if there be two such days then at 12 noon on the first of such days.
The wife and the husband shall immediately notify the other of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the children or any of them when the child or any of them are in their care. Together with any such notice the parent is to provide the name of the hospital, the treating medical practitioner and/or medical facility that provided medical treatment.
Each parent shall keep the other advised at all times of their residential address, landline telephone number, mobile telephone number suitable for accepting SMS, and an emergency contact number and provide the other party with any new information within 24 hours of any change to residential address, landline telephone number and emergency contact number.
Neither parent shall denigrate or permit any other person to denigrate the other parent or any member of the other parent’s household in the presence or hearing of the children or any of them.
Each of the parents will do all things within their power to actively promote and encourage the relationship between the children and the other parent and members of the other parent’s family.
Each parent is restrained from physically disciplining the children and shall not permit any third party to do so.
The children’s names shall be immediately removed from any Airport Watch List and/or PACE Alert system in Australia and the parties are ordered to do all such acts and things as may be required to give effect to this Order
AND THE COURT REQUESTS that the Australian Federal Police remove the names of the children J Masoud born … 1997 (male); D Masoud born … 2000 (female) and G Masoud born … 2002 (female) from the Airport Watch List at all points of international arrivals and departures in Australia.
Except for the Christmas school holidays commencing in 2013, each party shall be at liberty to take the children overseas for up to two consecutive weeks during their part of the school holidays on the following terms:
(a)the parent proposing the overseas trip gives the other parent at least six weeks’ prior written notice of the intended overseas travel and, not less than 21 days prior to the departure, a detailed itinerary and contact details for the children during the trip and
(b)on any such trip, the travelling parent will arrange for the children to telephone the other parent once each fourth day.
The husband and wife shall do all such acts and things as may be necessary to ensure that the children each have current passports (with not less than six months’ currency) including but not limited to signing applications for renewal, and each parent shall pay one half of the costs associated with such renewals.
The husband and wife shall do all such acts and things to ensure that:
(a)D and G continue to attend therapeutic counselling with psychologist Ms B unless they otherwise agree, or until Ms B determines that it is no longer necessary and
(b)J attends upon psychologist Mr N for the purpose of counselling until the parties agree, or until Mr N determines that it is no longer necessary.
The husband shall make contact with Mr N within seven days of these Orders and cause J to attend on Mr N at the earliest opportunity to do so.
The parties shall do all acts and things to comply with any reasonable request of the psychologists consulted by any of the children.
The parties are at liberty to attend upon the psychologists consulted by any of the children if requested to do so by the psychologists.
The parties are granted leave to provide to the psychologists consulted by any of the children a copy of these Orders, together with a copy of the Family Report prepared by Dr T in these proceedings.
The parties are to procure the children’s attendance at any appointment with the psychologists consulted by any of the children in accordance with any reasonable request of the psychologists.
The parties are to cooperate and comply with any reasonable request of the psychologists consulted by any of the children, including any request for the parties to attend upon the psychologists with or without the children.
The parties are to share equally the costs of the children attending upon the psychologists consulted by them pursuant to these Orders but they are to solely bear the costs of any individual session they might have with the psychologists.
In the event that the parties are unable to agree on a matter with respect to the care, welfare or development of the children, the parties are to participate in a mediation of the disagreement with Ms J with a view to resolving the disagreement. If for any reason Ms J is unavailable or unwilling to engage in that mediation, the parties are to participate in a mediation of the disagreement with such mediator as is recommended by the Director of Child Dispute Services at the Family Court of Australia, Sydney.
Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975 (Cth), the particulars of the obligations that these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties to adjust to and comply with an Order are set out in the Fact Sheet attached to the sealed Orders and those particulars are included in these Orders.

Property

The parties shall within 14 days of the date of these Orders do all acts and things as may be necessary to pay the funds in the Commonwealth Bank of Australia (“CBA”) private bank account presently held in their joint names in the ratio of 68 per cent to the wife and 32 per cent to the husband. Thereafter the parties are to do all acts and things as may be necessary to close that bank account.
The parties shall within 28 days of the date of these Orders do all acts and things as may be necessary to discharge the line of credit liability with the CBA currently held in their joint names. At the time that the liability is discharged, the wife is to pay 68 per cent of the total amount outstanding and the husband is to pay 32 per cent of the total amount outstanding.
The wife is declared as against the husband the legal and beneficial owner of all of her right, title and interest in and to the partnership with her sister,
Mrs Z (“the Partnership”). In particular and without limiting the generality of the forgoing, this Order applies to the wife’s right, title and interest in and to the following real estate held by the Partnership:
(a)Property O, Queensland
(b)Property D, Queensland (Lot 67)
(c)Property D, Queensland (Lot 68)
(d)Property D, Queensland (Lot 69).
The wife is declared as against the husband the legal and beneficial owner of all of her right, title and interest in and to the properties situate at and known as:
(a)Property W, Queensland
(b)Property H, Queensland
(c)Property C, Queensland (Lot 2)
(d)Property C, Queensland (Lot 4)
(e)Property C, Queensland (Lot 6)
(f)Property C, Queensland (Lot 8)
(g)Property C, Queensland (Lot 10).
The wife is declared as against the husband the legal and beneficial owner of all of her interest in XX Pty Limited.
The husband shall within 28 days of the date of these Orders do all acts and things as may be necessary to assign to the wife, at the expense of the wife, all of his right, title and interest in and to the following trusts:
(a)Ms Masoud Trust (Bare Trust)
(b)KK Trust.
The husband shall within 28 days of the date of these Orders do all acts and things as may be necessary to assign to the wife, at the expense of the wife, all of his right, title and interest in and to the Volkswagen … motor vehicle.
The husband shall within 28 days of the date of these Orders do all acts and things as may be necessary to assign to the wife, at the expense of the wife, all of his right, title and interest in and to the parties’ jointly held shares in the following companies:
(a)Echo Entertainment Group Limited
(b)Tabcorp Holdings Limited.
The husband shall do all acts and things as may be necessary to digitally copy all digital photographs and videos in his possession or control at his cost and provide such copies to the wife within 28 days from the date of these Orders.
The wife shall within 28 days of the date of these Orders do all acts and things as may be necessary to assign to the husband, at the expense of the husband, all of her right, title and interest in and to the property situate at and known as Sydney Suburb 1.
The wife shall within 28 days of the date of these Orders do all acts and things as may be necessary to assign to the husband, at the expense of the husband, all of her right, title and interest in and to the following entities:
(a)EJ Settlement Trust
(b)Masoud Pty Limited
(c)M Holdings Pty Limited.
For the purpose of giving effect to Order 42(a) above, the wife shall do all acts and things as may be necessary to resign from her position as Trustee and Appointer of the EJ Settlement Trust and, simultaneously, the wife shall appoint the husband as Trustee and Appointer of the EJ Settlement Trust.
Following appointment of the husband as Trustee and Appointer of the EJ Settlement Trust, the wife shall be restrained by injunction from exercising her power of appointment to remove the husband as Appointer and Trustee of the Trust.
Following compliance by the wife with Orders 42 and 43 above, the husband shall pay to the wife the sum of $798,370, with such sum to be paid in instalments and pursuant to the following timeframe:
(a)$266,124 is to be paid exactly 12 months from the date of the later of the two transfers referred to in Orders 42 and 43 above
(b)$266,123 is to be paid exactly 12 months from the date of the payment made pursuant to Order 45(a) above and
(c)$266,123 is to be paid exactly 12 months from the date of the payment made pursuant to Order 45(b) above.
The wife and the husband are declared as against each other legally and beneficially entitled to all their interests and entitlements in the
L Superannuation Fund presently held in their respective sole names.
The parties shall within 14 days
of the date of these Orders do all acts and things as may be necessary to sell the property at Sydney CBD1

(“the first CBD property”) for the best price reasonably obtainable and they shall effect such sale in the following manner:
(a)the parties shall forthwith list the first CBD property for sale by public auction with such agent as the parties agree to appoint and, absent agreement, with such agent as the President of the Real Estate Institute of New South Wales shall appoint (“the selling agent”)
(b)the reserve price shall be such price as may be mutually agreed by the parties or, in the absence of agreement within 14 days prior to the date of the auction, at such reserve price as is nominated by a valuer appointed by the President of the New South Wales Division of the Australian Property Institute (“the valuer”)
(c)the parties shall each cooperate in every way with the selling agent including by doing the following:
(i)making all keys (and other devices required to access the property available to the selling agent
(ii)allowing inspection of property at all reasonable times requested by the selling agent
(iii)doing or saying nothing to hinder or prevent a sale being effected
(iv)ensuring the property is in a neat and clean condition at the time of inspections by the selling agent and prospective purchasers and
(v)signing all documents requested by the selling agent in relation to the listing for sale the property, except a contract or agreement for sale which has not been authorised by the parties' solicitors
(d)in the event that bidding at the auction does not reach the reserve price, the parties may negotiate with the highest bidders or any other interested person and effect a sale of the property at a price which is not more than 5 per cent below the reserve price, or at such other price as the parties agree upon in writing
(e)if the property remains unsold for a period of 14 days after the first auction, the parties shall do all acts and things and sign all documents necessary to continue to relist the property for sale by public auction again at three-monthly intervals and Order 47(a)-(d) above shall apply successively until the property has been sold, save that at each successive auction the reserve price shall be 5 per cent less than the reserve price at the preceding auction, unless otherwise agreed by the parties in writing
(f)the parties shall instruct such solicitor as they agree upon to have conduct of the sale of the property on behalf of both parties or, in the absence of agreement within seven days of the date of these Orders, shall instruct such solicitor as may be appointed by the President of the Law Society of New South Wales (“the solicitor”)
(g)the parties shall each execute a contract for sale in the form prepared by the solicitor having the conduct of the sale of the property at the sale price
(h)the costs of and incidental to all matters relating to the sale of the property are to be borne equally by the parties as and when same fall due
(i)upon settlement of the sale of the property, the proceeds of sale shall be paid in the following manner and priority:
(i)all costs and expenses of the sale including legal costs and disbursements, agents’ commissions, advertising expenses, valuers’ fees and auction expenses (including repayment of any such expenses that have been paid by either or both of the parties) for the purpose of preparing the property for sale
(ii)in payment of all rates and levies outstanding with respect to the property
(iii)the usual conveyancing adjustments and
(iv)the balance remaining shall then be paid in the proportion of 61.8 per cent to the L Superannuation Fund and 38.2 per cent to the EJ Settlement Trust.

Following distribution of the sale proceeds of the first CBD property in the manner specified in Order 47 above, the husband and the wife shall do all acts and things as may be necessary to enable the wife to roll out her interest and entitlement in the L Superannuation Fund to a superannuation fund of her choosing.
Should the parties have a liability to BL property agents in respect of the sale the former matrimonial home (as the wife asserts), the liability shall be borne by the husband and the wife in equal shares.
Otherwise than as provided for in these Orders, the wife and the husband shall each retain all of their respective right, title and interest in and to the following:
(a)personal property in their respective possession or control
(b)shares, debentures, units in unit trusts, and funds in bank or credit union accounts in their respective sole names and
(c)interests in life insurance policies and superannuation funds standing in their respective sole names.
Otherwise than as provided for in these Orders, the husband shall indemnify and keep indemnified the wife against all liabilities or claims arising in respect of any item of property that he is to receive or any debt or loan standing in his name as a result of the operation of these Orders, except to the extent that any liability or claim arises from an act or omission by the wife in breach of her obligations under these Orders.
Otherwise than as provided for in these Orders, the wife shall indemnify and keep indemnified the husband against all liabilities or claims arising in respect of any item of property that she is to receive or any debt or loan standing in her name as a result of the operation of these Orders, except to the extent that any liability or claim arises from an act or omission by the husband in breach of his obligations under these Orders.

Spouse maintenance

The husband shall pay to the wife by way of spouse maintenance the sum of $4,333 per month paid monthly in advance, with the first payment to be made within seven days from the date of these Orders. Each payment thereafter is to be made on the same calendar day in each month for a period of 24 months following the first payment.

Child support

By way of child support departure and pursuant to section 117 of the

Child Support (Assessment) Act 1989
(Cth) (“the Assessment Act”), the husband shall pay to the wife periodic child support for the children D and G in the sum of $1,300 per week in total until the happening of a terminating event in accordance with section 12 of the Assessment Act or until further order of the Court.
The periodic child support payable by the husband to the wife in accordance with Order 54 above is to be paid monthly in advance (the monthly sum being $5,633), with the first monthly payment to be made within seven days of the date of these Orders and each monthly payment thereafter to be made on the same calendar day in each month.
Commencing on 1 July 2014, the periodic child support payable by the husband to the wife is to be varied on and from 1 July in each year in accordance with the variation in the Consumer Price Index for Sydney as it stands on the day immediately preceding the date of variation (being 30 June in any year), as compared with the same index at the same date twelve months earlier.
The periodic child support payable by the husband to the wife pursuant to these Orders is to be credited against the husband’s liability under any administrative assessment for child support payable to the wife and is to count for 100 per cent of the annual rate of child support payable by the husband to the wife under any such assessment until the happening of a terminating event.
The Court notes the undertaking of the husband to pay to the wife, in addition to periodic child support with respect to D and G, the following expenses with respect to D, G and J:
(a)as and when they fall due, the tuition fees associated with the children’s schooling (with respect to D and G, such schooling is presently at School A and with respect to J, such schooling is at School Y), including all school fees and associated costs (excluding any optional excursion overseas or costing more than $100, unless agreed by the husband in writing)
(b)all instalments necessary to maintain private health insurance for the children at the current level of cover
(c)the costs of all agreed orthodontic treatment, agreed hospital, agreed optical, agreed physiotherapy, agreed podiatry or agreed other medical specialist fees or expenses in respect of the children not able to be recovered from private health insurance and
(d)the costs of the children's extra-curricular activities where the children's participation is agreed by the husband in writing prior to the children commencing the activity.

General

Each party shall do all things necessary including providing all consents to give effect to these Orders in the time periods prescribed in these Orders.
In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders then the Registrar of the Court shall be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
All exhibits may be returned upon the usual undertakings.
All material produced in response to subpoenas is to be returned to the party who produced it.
The matter is removed for the list of Active Pending Cases.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: SYC 2198 of 2012

Ms Masoud

Applicant

And

Mr Masoud

Respondent

And

Independent Children’s Lawyer

Legal Aid Commission

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court are proceedings between Ms Masoud (“the wife”) and Mr Masoud (“the husband”) who seek final orders with respect to parenting, property settlement, spouse maintenance and child support departure.
The husband and the wife were married for approximately 16 years. There are three children of the relationship with whom the parenting matters and child support departure orders are concerned.
Marriage breakdown and defended litigation rarely, it is said, brings out the best in people. This case is not a rare exception.
The proceedings are ones in which some of the disclosed conduct of each of the parents at the time of and subsequent to their separation brings little in the way of credit to either of them and, at times, demonstrates parenting skills and general empathy and sensitivity which at best were infantile and at worst of a level that one would ordinarily expect of a house brick.
Having said that, the Court must determine if the angst and hubris of the past has sufficiently diminished between these parties to be able to provide a framework within which they can properly fulfil their obligations to their children; to support the children encouraging them in their successes and consoling them in their failures and otherwise contribute to their lives and development so that they may be able to achieve their maximum potential.
The Court is faced with seeking an answer to the question: “Can these parents, who are by common accord intelligent, develop that maturity and self-control not so far seen in their behaviour in great measure to enable them to place the interests of their children above their pursuit of their disputes?” If so, the Court is then faced with the task of finding a modus vivendi for the parents which will serve the best interests of the children.

Background facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The husband was born in 1967 and is presently 46 years of age. He is a healthcare professional who practices full-time in his specialist field. Within that field the husband has two sub-specialties.
The wife was born in 1969 and is presently 44 years of age. She is a qualified health science professional but has not worked in that field for some time. The wife is in the process of retraining to enable her to resume work as a health science professional.
The husband and wife married and commenced cohabitation in 1995. There are three children of their relationship:
a)J Masoud (“J”) born in 1997 and presently 16 years old
b)D Masoud (“D”) born in 2000 and presently 13 years old and
c)G Masoud (“G”) born in 2002 and presently 11 years old.
Between 1998 and 2000 the parties lived in the United Kingdom (“UK”). During that time, the husband undertook his specialist professional training and the wife worked as a locum health science professional.
In 2000, a property at Sydney Suburb 2 (“the former matrimonial home”) was purchased for $1,050,000 in the wife’s sole name. The wife’s parents provided $800,000 to the wife for the purchase of the property; the wife asserts the sum was a loan and the husband asserts it was a gift. This issue is discussed and determined later in these reasons.
Between 2000 and 2011, a number of trusts and other entities were established either by the parties or for their benefit. Of relevance to these proceedings are the following entities:
a)EJ Settlement Trust (“the EJ Trust”), established in 2000 with the wife as Trustee and Appointer, the wife’s brother as Settlor and the wife and the children as beneficiaries. The EJ Trust operated as a service trust vehicle for the husband’s professional practice for many years.
b)XX Pty Ltd, established in 2000. The wife is a Director and shareholder of XX Pty Ltd, together with her parents and her sister.
c)Ms Malouf & Ms Z Partnership (“the Partnership”), a partnership established between the wife and her sister. The wife and her sister each have a 50 per cent interest in the Partnership, which owns investment properties in Queensland.
d)L Superannuation Fund (“the [L] Superfund”), established in 2001 as a self-managed superannuation fund. Both the husband and wife are members.
e)Masoud Holdings Pty Ltd, established in 2002.
f)Masoud Pty Ltd, established in 2006 with the husband as Director, Secretary and sole shareholder. The husband’s professional practice is conducted through Masoud Pty Ltd.
g)Ms Masoud Trust (“the Bare Trust”), established in 2000 with Masoud Holdings as Trustee. The trust holds an interest in properties comprising the husband’s professional suites for the benefit of the L Superfund.
h)Masoud Settlement Trust (“the Settlement Trust”), established in 2010 with Masoud Holdings as Trustee and the husband’s brother as Appointer. The Settlement Trust provides office, administration, staff and other services to Masoud Pty Ltd.
A single expert valuation of the above entities (together with some additional entities in which the parties have interests of nominal value) was prepared by Ms P (“the single expert valuer”) of LE Associates. A report prepared by the single expert valuer and dated 8 July 2013 was tendered into evidence (“the [Expert] report”).
In December 2010, the parties separated for a period of around two months. The husband left the former matrimonial home and the wife maintained her role as primary carer for the three children.
The parties reconciled in February 2011 for around 14 months. Towards the end of the reconciliation period, the former matrimonial home was sold for $2,550,000. The proceeds of sale were deposited into a jointly held account, requiring both parties’ signatures for the purpose of authorising withdrawal. The parties moved to a property in Suburb K.
The parties separated for a second and final time on 13 April 2012. This was some eight days after the sale of the former matrimonial home. The circumstances surrounding the parties’ final separation were as follows.

The husband moved himself, the three children and all of their belongings from the parties’ home in Suburb K to a rental property in Suburb U without the consent or knowledge of the wife. The wife only became aware that the parties had separated when she returned home from a visit to a day spa (which had been a gift from the husband) to find the home bereft of the children and items of personalty. The husband asserts that his intentionally duplicitous dealings with the wife leading up to their final separation stemmed from his perception of what would be her likely adverse reaction to the separation. He believed that an adverse reaction was likely because the wife had a habit of using the drug Duromine which, he asserts, affected her personality and made it dangerous for the children to be with her. He asserts that he wished to spare his children of the wife’s reaction; however, it appears that he gave little, if any, weight to the impact that his conduct had on the wife. It is hoped that he now understands in full measure that his behaviour was not without consequences.
The children resided with the husband for a time following the separation.
The circumstances surrounding the separation and the adverse effect of those circumstances on the children and the parties received considerable ventilation at the hearing and were the subject of comment by the single expert,

Dr T (referred to variously as “the single expert” and the “expert psychiatrist”) in the evidence he gave in the proceedings.
On 17 April 2012, the wife filed an Initiating Application seeking urgent parenting orders and the matter was heard shortly thereafter before Sexton FM (as her Honour then was) in the then Federal Magistrates Court of Australia. Interim orders were made, which were influenced in large part by the husband’s allegations that the wife had a dependency on Duromine. While unable to make conclusive findings on the untested allegations, her Honour took a cautious approach and ordered that the children live with the husband until such time as the allegations were adequately tested. Her Honour also ordered that the wife discontinue her use of Duromine and submit to regular urinalysis.
In June 2012, there was an altercation at the wife’s home involving J and his maternal uncle, which led to an interim AVO protecting J against his maternal uncle. Since that time J has not spent time with the wife.
On 3 August 2012, the matter came before Rees J (after having been transferred to this Court). In relation to the interim parenting orders, it was noted that there had been a “substantial change” in circumstances with respect to evidence of the children’s wishes. Further, regular drug testing had shown that the wife had ceased using Duromine. Rees J made further interim parenting orders to the following effect:
a)D and G were to live with the wife and spend time with the husband from Thursday until Monday in week one, from Thursday until Friday in week two and for half of the school holiday periods
b)J was to live with the husband and spend time with the wife in accordance with arrangements agreed between him and the wife.
An order was also made in August 2012 for the children to attend upon psychologist Ms B for therapeutic counselling.
In or around September 2012, D and G ceased spending overnight time with the husband.
On 19 October 2012, the parties came to agreement with respect to appointing a Single Expert under Division 15.5.2 of the Family Law Rules 2004 to prepare a report upon matters relating to the children.
In November 2012, the parties appeared before the Court seeking interim orders with respect to partial property settlement, spouse maintenance and child support departure. Orders were made to the following effect:
a)by way of partial property settlement, each party received $350,000 from joint funds held in a trust account for the purpose of paying their legal fees
b)the wife received a further sum of $200,000, which sum was left to be characterised by the trial Judge following the final hearing
c)the wife’s application for spouse maintenance was dismissed
d)by way of child support departure, the husband was ordered to pay to the wife $600 per child per week (with respect to D and G) until further order.
In December 2012, a child and family psychiatrist, Dr T interviewed the parties and the children in order to prepare a single expert report (“the family report”), which was released on 15 February 2013 and ultimately tendered into evidence.
The matter was finally heard over seven days from 1 July to 9 July 2013. Written submissions were filed following the conclusion of the hearing.

The Evidence

The parties each gave evidence orally and by affidavit.
In addition to the oral evidence given by the parties, the following witnesses (who supplied affidavits or single expert reports) were called and

cross-examined:
a)the single expert
b)Mr MM, the husband’s brother and
c)the single expert valuer.
Some 43 exhibits were tendered at the final hearing and marked as Exhibits 17 through to 59. The Court notes that Exhibits 1 through to 16 were tendered at the interim hearing in November 2012 and did not form part of the evidence in the final proceedings.

Credit

Counsel for each of the parties sought to impugn the credit of the other party.
It was submitted by the husband that, in assessing the wife’s credit, the Court should have regard to the following:
a)the wife’s demeanour throughout the hearing. Specifically, her avoidance of direct answers to questions; her failure to make concessions when confronted with evidence which made it logical to make such concessions; and her tendency to at best hedge her answers by use of terms such as “possibly”. The Court agrees with the submission.
b)the wife’s evidence concerning the family dog, “…”. Specifically, the wife had reported the dog as “missing” when in fact she had arranged to place it in the care of her sister; she was not honest when she told the Court that she informed the children of the true whereabouts of the dog the following day. In addition, when confronted by photographic evidence (captured on a CCTV camera) of her daughter leaving home with posters proclaiming that the dog was “missing”, the best the wife could aver was that she wanted the child to maintain the lie that the dog “was lost”. She also blamed the “loss of the dog” (which had not occurred) on the husband in order to denigrate him in the eyes of the children. Not only did she inveigle her children into the lie, she lied in her material about that event. The Court agrees with the submission and the wife properly conceded in her submissions that she gave false evidence in her affidavit as to the dog.
c)the wife consulted the children’s psychologist, Ms B, as her own therapist. It is put by the husband that this was a deliberate attempt by the wife to compromise the independence of Ms B and to obtain her as an ally in her war against the husband. The Court is not certain that this is so and, in any event, the evidence of Dr T is that it is not professionally inappropriate for a therapist who consults with children to do this. Indeed, Dr T’s suggestion was to the contrary. In effect he said that many children’s problems involve treatment of their parents; such therapy can be professionally managed and might well be appropriate in this situation. The Court does not see the wife’s attendance upon Ms B as being relevant to the mother’s credit.
d)the wife’s account of an incident on 7 December 2010 was, the husband submits, unreliable. The wife asserted at one point in her evidence that she was hit in the face inside the home, yet at another point she said it occurred outside the home. Her inability to acknowledge the inconsistency in her evidence was difficult to understand, as was her response: “evidently he did or I wouldn’t have said it.” The CCTV footage which was viewed at the hearing shows the wife in active pursuit of the husband, who is running away from her outside in the street. The wife did not display any evident fear of the husband; indeed, she appeared the aggressor. When asked why she followed the husband, her answer was that she “wanted the camera”. When it was suggested to her that she could have stopped the husband from filming her by going inside, she repeated: “yes but I wanted the camera.” The Court agrees with the husband’s submission as to credit but repeats its observation at trial that the events of that evening do not accrue to the credit of either party, each of whom displayed for apparently intelligent people incredible childishness and immaturity.
e)the wife was disingenuous in annexing a part of a text stream between her and J, in which J had invited the wife to consider the contents of Timothy 2:11. It seemed to the Court clear that she wanted the Court to come to the conclusion that the husband was a misogynist, and that he had influenced J to take the same position with respect to women. That was not the context in which the quotation was made and the Court accepts that the debate emanating from J was rather that that attitude was something which took authority away from the Bible in modern context. Indeed, the mother seemed to acknowledge that when informing the child that it was related to the times and not the modern day.

Taking into account the above submissions and, where appropriate, the Court’s findings on those submissions, the Court takes the view that the wife was an unsatisfactory witness. The Court cannot make a general statement that the husband’s evidence is to be preferred to that of the wife; however, the Court accepts that there are occasions where that preference should be given.
The wife submits that the factual conflicts in this case, which are many, require a finding on the question of credit. The following matters are among those which the wife identifies as being illustrative of the husband’s lack of credibility:
a)a number of lies were told by the husband to the wife in the lead up to the separation, designed to afford to the husband an advantageous position at separation. They include, the wife submits, a conceded series of lies in relation to the day spa gift given by the husband to the wife, which was designed to keep her out of the way whilst he removed the children and items of property from the former matrimonial home. It is asserted that the husband maliciously suppressed the truth of what he had done by leaving no note to the distress of the wife. The Court accepts the suggestion that the conduct of the husband was duplicitous and that it suggests he would lie to gain advantage.
b)much but not all of the husband’s evidence as to the conduct of the wife was contradicted, says the wife, by the evidence of the housekeeper/nanny, Ms Q, who was not cross-examined. The wife submits that the unchallenged evidence of Ms Q does not support the husband’s evidence as to the wife being verbally and physically abusive towards the children, at least in Ms Q’s observation. The Court accepts that the wife’s version of events has the support of Ms Q’s evidence, which was not successfully undermined by the husband.
c)
the evidence of the husband with respect to the extent to which the children were cared for by Ms Q was, in the wife’s submission, different at different times. In one affidavit the husband said that for the past twelve years the children have been largely cared for by

Ms Q. In his trail affidavit, however, he said that from about 2000 the children were cared for by “[the mother] with the assistance of

Ms [Q]”.
d)the wife attacks the husband’s assertion that he took money from the superannuation fund, which was the entitlement of the wife’s mother, because he was “short of funds”. The wife submits that this was not borne out by an examination of the husband’s financial position at the time and that his assertion lacked verisimilitude.
e)the wife also attacks the husband’s explanation as to the eradication of a sum of nearly $800,000 due by the trust to the wife on loan account. The wife submits that the husband’s evidence was unusual and difficult to follow. His evidence that the funds were used to provide tax deductibility for interest payments on money borrowed for the purchase of a home did not seem to be fully explained and reconciled by way of any taxation or accounting principle. The wife’s suggestion is, therefore, that the explanation lacked credibility. The Court agrees that the wife’s conclusion is a reasonable one on the evidence given. It would be true to say that the removal of credit from the loan account, if it were properly done, would cause problems to the wife in her recovering the amount, thereby perhaps frustrating the operation of the trust. It seems likely that the purchase of the rooms adjoining the husband’s former rooms in the name of a company rather than the superannuation fund was a similar protective ploy. In any event, the wife claims that she was misled by the husband in that regard. The Court finds that is probably correct.
f)finally, the wife submits and the Court accepts that the husband’s evidence with respect to the following topics call into question his reliability overall:
i)his evidence on correspondence concerning missing profession documents
ii)his statement that the wife purchased designer clothes but rarely wore them
iii)his conflicting statements as to the amount of time the wife spent in his practice in employment, which ranged from sporadic to full-time and
iv)his failure to disclose overseas accounts.
Overall, it is the Court’s view that the evidence of both of the parties to this litigation was unreliable; there can be no general preference shown. The Court finds that each of the parties has been at least careless of the truth and at worst deliberately misleading. The nature of the past war between these two persons may give context to their falsehoods, but it neither excuses them nor provides a basis on which they can be ignored.
Where there is conflict between the evidence of the husband and wife, the Court will conduct a search for independent evidence in support of that evidence and make an assessment on the appearance and conduct of the parties in the witness box when examined on some of those subjects.

Parenting: the issues

There are issues as to the nature of parental responsibility and, in particular, the wife seeks orders for sole parental responsibility for D and G and equal shared parental responsibility for J. The husband seeks equal shared parental responsibility with respect to all of the children.
There is no issue as to where the children should live. It is the parties’ shared view that D and G should continue to live with the wife. In addition, it seems that there was no issue as to where J should live, namely that he should continue living with his father.
There are issues as to the time the children should spend with the parent with whom they do not live.
There was an issue initially as to whether G should sit the NSW selective high school entrance exam, with the wife asserting that she should not be made to sit the exam, given that D was not selected for a nominated school (to the evident disappointment of the husband) and there was consequent distress occasioned to her by a feeling of having failed her father. G, in the wife’s view, may have no better chance of being selected. The wife submitted that G should not be visited with the twin vicissitudes of not being successful in the exam and disappointing her father.
At the hearing, the husband modified his position on the topic and said that he would not force G to sit the exam if she did not wish to do so. The Court does not propose to make any order mandating that G sit the exam, however, it recommends that the option of so doing should be left open to a time closer to the date of the exam, so that the child may determine her position at a more relevant time.

Parenting: relevant law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (Cth) (“the Act”).
In deciding whether to make a particular parenting order the Court must regard the best interests of the children as the paramount consideration (see section 60CA). In determining what is in the children’s best interests, the Court must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
The Court is required to ensure that any order it makes is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the children’s best interests being treated as paramount (see section 60CG).
The Court will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
The Court is required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are the Court will in these reasons deal with those matters.
Section 61DA(1) requires that:
… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent, where the Court is proposing to make an order that the children’s parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

(a)The benefit to the child of having a meaningful relationship with both of the child’s parents

It is undoubtedly true that children will benefit from having a meaningful and positive relationship with each of their parents, and from having each parent contribute severally to the development of their maximum potential, providing of course that no harm comes to them. That is a result to which the parents in this case should and possibly do aspire, although it is clear that the hubris and angst attendant upon the breakdown of their marriage, their dramatic separation and this litigation poses real challenges for these children and their parents.
The Court in this case wonders, and suggests the parties might care to ponder, what these children might have done (and the Court suspects nothing) to deserve the climate of conflict by which they have been enshrouded and which has been created for them by parents who nevertheless seek to proclaim their love for them.
What the Court finds surprising in this case (and something which emerged from the evidence of the single expert psychiatrist) is that the children, notwithstanding all that has gone on between the parties, do have and want to have a continuing relationship with each of their parents. That relationship will always be one which the parents have the ability to encourage or destroy.
The Court trusts that the mirror held up to these parties during the course of this litigation points their future thinking and conduct towards the best interests of their children, including their right to love and be loved by each of their parents, and their need to see a real and substantial change in the nature of their parents’ relationship and dealings with each other.
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There have been allegations of family violence in this matter, which suggest that each of the parties behaved badly to the other.
In July 2010, there was an incident in which the husband alleges the wife belted him on the arm. The wife alleges that the husband hit her with his fist, forcing her to the floor and bruising her arm. The parties went on an overseas holiday together shortly after this incident. The husband produced photographs taken on that holiday, a few days following the alleged violence, which he asserted showed no bruising to the wife. He said that the doctor who had certified as to the wife’s bruising was a very good friend of the wife and, in effect, that the doctor should not be accepted as a witness of truth. The Court finds on balance that the wife had bruising, however, it cannot determine at this time who or what caused it.
In December 2010, the husband sought to secretly film what became a heated exchange between the parties at the former matrimonial home. The camera and the scenes recorded on it were discovered in the proceedings, as were recordings of what had been captured on CCTV cameras installed at the property. These scenes were viewed by the Court at the hearing.
In the Court’s view, what the recordings showed reflected poorly on the parents, brought shame upon them and demonstrated a surprising capacity in each of them for extremely infantile behaviour. The Court was put in mind of two children arguing over a broken rattle, as they each struggled for the possession of the camera. The sight of them chasing each other up and down the street, with strident requests for the camera by the wife and complaints of the husband that she had broken the camera, cast absolutely no credit on either of them.
The Court put to the husband that the recordings represented a totally infantile display and was gratified that the husband, albeit after some thought, somewhat ruefully acknowledged that both he and the wife were being childish. This presented the glimmer of a possibility that, at the end of the day, the husband had at least some capacity for productive and mature reflection and

self-examination.
The wife was questioned about attempts she had made to disable the operation of the exterior CCTV cameras attached to the former matrimonial home. The picture of the wife selectively trying to do so by placing bags over the cameras was unedifying and again did not demonstrate a capacity at that time to act in an adult way.
Notwithstanding the observations above, the Court does not consider that there is a risk that the children will be subjected or exposed to abuse, neglect or family violence in the care of either parent. The Court finds that the incidents described above are attributable to the circumstances surrounding the parties’ separation and that such destructive displays of behaviour are unlikely to be repeated now that the parties have separated, and this litigation is at an end.

Additional considerations

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

The children were each interviewed by the expert psychiatrist.
During his consultation with J, the expert psychiatrist asked how he found living under the current circumstances (ie. J living with the husband and his sisters living with the wife). J’s response was reported (at page 28) of the family report as follows:
He said that living away from the girls is taking a bit of getting used to. He described it as quieter. He also said there is a bit of stuff going on with his mother, which he explained was due to their relationship now being totally different. He added that his sisters’ attitude has also become totally different.
J was asked about his relationship with his mother prior to the separation; his response was reported (at page 28) as follows:
He said it had been fine, standard (for a relationship with a mother). He said that his father was the one who always took him to sport. He told me that as he got older he used to go to his room a lot and he could hear his mother screaming a lot at the girls.
As to the wife’s involvement with his schooling over the years, J told the expert psychiatrist as follows (reported at page 28):
He indicated that she agreed to help out at the uniform shop when he started high school … she also turns up at assemblies and talks with his teachers, including about his family situation. He said that he wants school and family issues to be separate and he does not want his mother to do this with the teachers, which he fears might cause them to feel sorry for him.
On the subject of his mother’s role in his early life, it was reported (at page 28) that J said the following:
He said that his mother had helped him out until he was about three or four then after that he said that his father mostly helped him. He said that as a result he did a lot more with his father than with his mother.
J told the expert psychiatrist that he has a close involvement with his father in activities such as fly fishing and travelling for that purpose. In particular, he is said to have described with “great pleasure” a fishing trip to Queensland with his father. J also told the expert psychiatrist that he and his father had started riding motorbikes together.
J was then asked to tell the expert psychiatrist about his mother. The following was observed (at page 29):
He said that she can be really nice and then the screaming comes in. He said that she is always nice around adults. I asked him about the screaming. He said that she would scream if anything happened, such as dropped food or things like that.
In relation to his father, the following was observed (at page 29):
He told me that his father is not a screamer and that he goes quiet when he gets annoyed.
At page 29 of the family report, the expert psychiatrist reported on J’s experience of Sunday visits with his mother, which J said “had been difficult.” Based on J’s comments, the expert psychiatrist gained the impression that a typical visit would involve J arriving, asking or saying something to which his mother objected and, within a few minutes, being kicked out. J would then phone his father, who would come and collect him. J also told the expert psychiatrist that his mother had accused him of hitting her and perpetrating “verbal assaults”, although he was unable to explain what his mother meant by the latter.
Asked about the outcome of the Court case, J is reported to have said that he is quite worried about what might happen if the girls come to live with him and his father. On that topic, the following observations were made (at pages 29-30):
…He said that when [the girls] have lived with [him and his father] before, there were constant arguments and screaming when they got back from visiting their mother. He worries that the same thing would start up again if the girls come to live with them and he expressed concern that this would be very disruptive to his study and in other ways. However he said that he would like to see them regularly. I understood from what he said that his preference would be for them to live with their mother. He told me that he also wants things just to calm down.
With respect to spending time with his mother, J told the expert psychiatrist that he would like to spend longer periods of time with her “without worrying over anything that is said” and “without worrying that he would get kicked out” (reported at page 30). He described this as “going back to a normal relationship again”, before qualifying that description by saying that even in the past his mother would start screaming if he said something that she did not want to hear. In relation to telephone calls with his mother, J is reported to have said that these occur most nights and generally go okay.
In summary, the expert psychiatrist said that J expressed a strong wish to continue living with his father. He expressed affection for his mother but it seemed to the expert psychiatrist that some lack of trust was evident.
The child D was asked by the expert psychiatrist about how life had been prior to her parents’ separation. Her response was reported to be as follows

(at page 33):
She said it was fine, okay, but her Dad would scream and he seemed to prefer her. She said that he was always around her. She said that her father would describe her mother as juvenile and he would say things about her behind her back… She said that he would offer to take them to sport and then he would criticise their mother behind her back, such as accusing her of being lazy.
The expert psychiatrist reported that D’s account was speedily delivered, disjointed and indignant. It was difficult, he said, to get much perspective on what she was trying to say.
D is reported to have described an incident in which the father threw a glass of ginger beer over J for getting a homework question wrong. She described another incident when the father is said to have hit her on the arm for a similar reason. D told the expert psychiatrist that her mother helped her a lot with her homework and was more patient than her father. D also gave an account of her life with the father, which indicated that she was not happy there, certainly at the time of separation. Once again, the expert psychiatrist commented that her account was disorganised.
D told the single expert that she preferred the school which she presently attends (School A) to the school which she previously attended (School M). At page 34 of the family report, the expert psychiatrist commented on an interview that had taken place following the parties’ separation between D and the school counsellor at School A. It that interview, D is reported to have said that she would like to spend equal time with each of her parents. That comment was made in the initial stages of separation at a time when D had not seen much of her mother. In a subsequent interview, D is reported to have said that she loved her mother and wished to spend more time with her.

The Court finds that the making of an order for child support is, therefore, otherwise proper in the circumstances of this case.

Determination

The Court has considered the needs of the children as expressed in Part N of the wife’s Financial Statement and considers that a departure order should be made in the sum of $650 per child per week. This result was arrived at having regard to all of the matters discussed above but in particular:
a)the claimed needs of the children, some of which seem to be excessive
b)the agreement of the husband to meet other expenses in relation to the children and
c)the wife’s capacity in some measure to contribute to their support.
The above figure has been assessed on the basis that the husband has undertaken to continue paying the additional expenses that he currently pays for the children. These expenses are those associated with all three of the children’s schooling, health insurance, other health and medical needs and extracurricular activities. A notation to this effect will be made in the orders.

Non-periodic child support

Each of the parties seeks an order that the husband, in addition to periodic child support, pays other expenses with respect to the children. The additional expenses covered by the proposed orders are ones which are already being met by the husband. They relate to school fees and tuition costs, private health insurance, other health and medical costs and extracurricular activities.
No formal application was made by either party invoking Part 7 Division 5 of the Assessment Act, which deals with orders for child support paid to a carer otherwise than in the form of periodic amounts. Ordinarily, an application for non-periodic child support would be governed by the provisions of sections 122, 123 and 124 of the Assessment Act.
In this case, however, the Court was not addressed on those provisions and neither party seeks that an order be made under those provisions. The husband however by his proposed order provides a clear undertaking to make the payments.
Notwithstanding the parties’ agreement as to the range of expenses that the husband should pay in addition to periodic child support, the wife submits that the husband has “littered his order” with a requirement that his agreement be sought in writing before he is required to pay for certain expenses. She submits that in this case “such an order would be unworkable”. The Court does not agree with that submission.
The Court intends to include a notation in the orders that the husband has made an undertaking to continue to meet the additional expenses referred to above. Should he fail to do so, the wife will have liberty to bring an application before the Court seeking compliance with his undertaking or sanctions for its breach.

I certify that the preceding three-hundred and forty-nine (349) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 4 October 2013.

Associate:

Date: 4 October 2013