Mattina & Falconi
[2024] FedCFamC2F 931
•18 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mattina & Falconi [2024] FedCFamC2F 931
File number(s): SYC 2409 of 2023 Judgment of: JUDGE W J NEVILLE Date of judgment: 18 July 2024 Catchwords: FAMILY LAW – PARENTING – two children the eldest, aged 12 years, is completely estranged from her Mother and has lived exclusively with her Father and with limited contact with her 9 year old brother who lives primarily with the Mother in the former marital residence – both experts agree that forcing the 12 year old daughter even to attend “therapy” with the Mother is fraught and not recommended – the 9 year old in the Mother’s household effectively “drives the parenting bus” with the Mother arrogating significant parental responsibility and decision-making to her son – complete breakdown in trust between the parents – 9 year old son regularly absent from school even though the Father pays for a private driver to pick up the child and deliver him to school at a weekly cost of $600 per week – significant lack of insight on the Mother’s part regarding needs and best interests of the children – Orders proposed by the Independent Children’s Lawyer, supported by the Father, are in the children’s best interests – both children to live primarily with the Father, with son spending regular time with the Mother, and daughter in accordance with her wishes.
FAMILY LAW – PROPERTY - all financial support for the relationship and the family has come from the Husband – the Mother newly but provisionally qualified as a healthcare professional – Husband’s financial contributions far exceed those of the Wife accepting that the Wife was the primary care of the children when they were younger – certain levels of extravagance in the Wife’s spending during the relationship and her appropriation of $210,000 from a mortgage off-set account was in appropriate – various levels of financial distress for both parties – future needs of the parties, with the Father having primary care of both children, significant at the same time that while the Wife will be in full-time employment, the Husband’s income as a healthcare professional significantly exceeds that of the Wife – just and equitable Orders made as sought by the Husband.
Legislation: Evidence Act 1995 (Cth), s.79
Family Law Act 1975 (Cth), ss.60CA, 60CC(2), 61D, 75(2)
Cases cited: AMS v AIF (1999) 199 CLR 160
Bevan v Bevan (2013) 279 FLR 1; (2013) 49 Fam LR 387
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Chapman v Chapman (2015) 51 Fam LR 176
Collu & Rinaldo [2010] FamCAFC 53
Dasreef v Hawchar (2011) 243 CLR 588
Dickons v Dickons (2014) 50 Fam LR 244
Fields v Smith (2015) FLC 93-638; (2016) 53 Fam LR 1
Fox v Percy (2003) 214 CLR 118
Godfrey v Sanders (2007) 208 FLR 287
Grundt v Great Boulder Proprietary Gold Mines Ltd (1938) 59 CLR 641
Hall v Hall (2016) 257 CLR 490
HG v The Queen (1999) 197 CLR 414
Honeysett v The Queens (2014) 253 CLR 122; HG v The Queen (1999) 197 CLR 414
In the Marriage of Kress (1976) 13 ALR 309
McCall & Clark (2009) 41 Fam LR 483
Mazorski v Albright (2007) 37 Fam LR 518
Moose & Moose (2008) FLC 93-375
M v S (2008) 37 Fam LR 32
AJO & GRO (2005) 33 Fam LR 134
Partington v Cade (No.2) (2009) 42 Fam LR 401
In the Marriage of R (2002) 169 FLR 243; 29 Fam LR 230
Sigley v Evor (2011) 44 Fam LR 439
Stanford v Stanford (2012) 247 CLR 108
Velevski v The Queen (2002) 76 ALJR 402
Vontek v Vontek [2017] FamCAFC 28
P. Keane, [Handley’s] Estoppel by Conduct and Election (Third Edition) (London: Sweet & Maxwell and Thomson Reuters, 2023)
Division: Division 2 Family Law Number of paragraphs: 213 Date of last submission/s: 24 June 2024 Date of hearing: 20 – 23 & 31 May 2024 Counsel for the Applicant Mr S Gardiner Solicitor for the Applicant Mullane & Lindsay Counsel for the Respondent Ms R Winfield Solicitor for the Respondent Attia Lawyers & Consultants Counsel for the Independent Children’s Lawyer Ms M Yu of Counsel Independent Children’s Lawyer Russell Kennedy Lawyers NSW ORDERS
SYC 2409 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MATTINA
Applicant
AND: MS FALCONI
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
18 JULY 2024
ON A FINAL BASIS, THE COURT ORDERS THAT:
Parenting Orders
Parental Responsibility
1.The Father have sole decision-making responsibility for the children X (born in 2011) and Y (born in 2014) (the children).
2.In exercising sole decision-making responsibility as referred to above, the Father is to:
(a)Notify the Mother in writing at least 14 days before any proposed long-term decision is made about the children;
(b)Consider any response provided by the Mother and endeavour to reach agreement on the proposed decision to be made;
(c)In the absence of an agreement between the parents as to the proposed decision to be made, the Father is to make the final decision.
Living Arrangements – School Term
3.The children live with the Father.
4.X spend time with the Mother in accordance with X’s wishes.
5.For a period of three (3) consecutive months from the date of these Orders, Y spend no time with the Mother.
6.Following the conclusion of a period of three (3) months from the date of these Orders, unless otherwise agreed in writing between the parties, Y is to spend time with the Mother during the school term as follows:
(a)In Week 1, from the conclusion of school (or 3:00 pm) on Friday until the commencement of school (or 9:00 am) on Monday; and
(b)In Week 2, from the conclusion of school (or 3:00 pm) on Wednesday until the commencement of school (or 9:00 am) on Thursday.
Living Arrangements – School Holidays
7.Following the conclusion of a period of three months from the date of these Orders, unless otherwise agreed in writing between the parties, Y will spend time with the parties for half of each of the school holidays at the end of terms 1, 2 and 3, as follows:
(a)With the Mother:
(i)in odd numbered years, from the conclusion of the school term (being the last day that Y is required to or would regularly attend school) until 10:00 am on the midpoint of the school holidays;
(ii)in even numbered years, from 10.00 am on the midpoint of the school holiday period until the commencement of school on the first day of the following term (being the first day that Y is required to or would regularly attend school).
(b)With the Father:
(i)in even numbered years, from the conclusion of the school term (being the last day that Y is required to or would regularly attend school) until 10:00 am on the midpoint of the school holidays;
(ii)in odd numbered years, from 10:00 am on the midpoint of the school holiday period until the commencement of school on the first day of the following term (being the first day that Y is required to or would regularly attend school).
8.Following the conclusion of a period of three months from the date of these Orders, unless otherwise agreed in writing between the parties, Y will spend time with the parties over the Christmas school holiday period as follows:
(a)With the Mother
(i)In odd numbered years, from the conclusion of school on the last day of the school term (being the last day that Y is required to attend school) until Monday;
(ii)In odd numbered years, thereafter, for the first week in a two week cycle commencing on the first Monday of the school holiday period, and each alternate week thereafter, continuing until the commencement of school on the first day of Term 1 in the following year;
(iii)In even numbered years, from 10:00 am on Monday on the second week in a two week cycle until 10:00 am the following Monday and each alternate week thereafter, continuing until the commencement of school on the first day of Term 1 in the following year.
(b)With the Father:
(i)In even numbered years, from the conclusion of school on the last day of the school term (being the last day that Y is required to attend school) until Monday;
(ii)In even numbered years, thereafter, for the first week in a two week cycle commencing on the first Monday of the school holiday period, and each alternate week thereafter, continuing until the commencement of school on the first day of Term 1 in the following year;
(iii)In odd numbered years, from 10:00 am on Monday on the second week in a two week cycle until 10:00 am the following Monday and each alternate week thereafter, continuing until the commencement of school on the first day of Term 1 in the following year.
9.For the purposes of the above Order, if there is an uneven number of school holiday nights (which means that the midpoint is not clear), if it is an odd numbered year then Y will stay in the care of the Mother for the extra evening and if it is an even numbered year then Y will stay in the care of the Father for the extra evening.
Special Occasions
10.Following the conclusion of a period of three months from the date of these Orders, unless otherwise agreed in writing between the parties, Y will spend time with each parent as follows:
(a)In odd numbered years with the Mother from 11:00 am on 24 December until 11:00 am on 25 December and with the Father from 11:00 am on 25 December until 11:00 am on 26 December; and
(b)In even numbered years with the Father from 11:00 am on 24 December until 11:00 am on 25 December and with the Mother from 11:00 am on 25 December until 11:00 am on 26 December.
(c)With the Mother on her birthday, from after school to 7:00 pm if the Mother’s birthday falls on a school day or from 9:00 am to 5:00 pm if the Mother’s birthday falls on a weekend; and
(d)With the Father on his birthday, from after school to 7:00 pm if the Father’s birthday falls on a school day or from 9:00 am to 5:00 pm if the Father’s birthday falls on a weekend.
(e)With the parent with whom he is not residing on his birthday, from after school to 7:00 pm if the birthday falls on a school day or from 3:00 pm to 7:00 pm if the birthday falls on a weekend.
(f)With the Father on Father’s Day from 9:00 am to 5:00 pm;
(g)With the Mother on Mother’s Day from 9:00 am to 5:00 pm;
(h)In odd numbered years:
(i)With the Father from after school or 3:00 pm on Good Friday to 9:00 am on Easter Sunday; and
(ii)With the Mother from 9:00 am on Easter Sunday to before school or 9:00 am on the Tuesday following Easter Monday;
(i)In even numbered years:
(i)With the Mother from after school or 3:00 pm on Good Friday to 9:00 am on Easter Sunday; and
(ii)With the Father from 9:00 am on Easter Sunday to before school or 9:00 am on the Tuesday following Easter Monday.
11.For the purpose of these orders, changeovers are to occur at Y’s school, should changeover occur on a school day. On non-school days, unless otherwise agreed between the parties in writing, changeovers are to occur as follows:
(a)The Mother is to collect Y from the Father’s residence at the beginning of her time with Y; and
(b)The Father is to collect Y from the Mother’s residence at the end of the Mother’s time with Y.
Communication
12.The Father is to do all acts and things necessary to facilitate telephone and/or video call contact between X and the Mother as requested by X.
13.During the three month period following the date of these Orders when Y spends no time with the Mother, Y will have telephone and/or video call contact with the Mother as agreed, and in the absence of agreement each Tuesday and Saturday, and for the purposes of this Order:
(a)the call shall take place at a time to be agreed between the parties but failing agreement at 7:00 pm for a minimum period of 15 minutes and a maximum period of 30 minutes;
(b)the Mother will make the call;
(c)the Father will do all acts and things necessary to ensure Y takes the call in a quiet environment;
(d)in the event Y misses the Mother’s call the Father will cause Y to return the call immediately.
14.Following the conclusion of a period of three months from the date of these Orders, when Y is living with the Father, Y will have telephone and/or video call contact with the Mother as agreed, and in the absence of agreement on Tuesday, and for the purposes of this Order:
(a)the call shall take place at a time to be agreed between the parties but failing agreement at 7:00 pm for a minimum period of 15 minutes;
(b)the Mother will make the call;
(c)the Father will do all acts and things necessary to ensure Y takes the call in a quiet environment;
(d)in the event Y misses the Mother’s call the Father will cause Y to return the call immediately.
15.When Y is with the Mother, Y will have telephone and/or video call contact with the Father as agreed, and in the absence of agreement on Saturday, and for the purposes of this Order:
(a)the call shall take place at a time to be agreed between the parties but failing agreement at 7:00 pm for a minimum period of 15 minutes;
(b)the Father will make the call;
(c)the Mother will do all acts and things necessary to ensure Y takes the call in a quiet environment;
(d)in the event Y misses the Father’s call the Mother will cause Y to return the call immediately.
16.Following the conclusion of a period of three months from the date of these Orders, both parents are to do all acts and things necessary to facilitate telephone and/or video call contact with the other parent as requested by Y. In the event Y misses a parent’s call the other parent will cause Y to return the call immediately.
17.For the purposes of communicating with the other parent, both parents do all things necessary to:
(a)communicate by telephone matters of an urgent nature, and otherwise;
(b)communicate via SMS or another agreed platform about day-to-day matters including arrangements for each party to spend time with the children;
(c)keep all communication between them respectful, civil and child-focused;
(d)respond to any messages within 24 hours in the form of either an answer, request for more information or a timeframe which a response will be forthcoming noting that in the event a parent disagrees to a parenting proposal that they do all things necessary to suggest an alternative arrangement.
18.Each parent is to advise the other parent of their current residential address, email address, and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other parent of any changes to these details within 48 hours of such change occurring.
Medical
19.The parties will ensure that the other is kept informed of:
(a)any medical problems or illnesses suffered by either child requiring immediate medical attention, while in their care; and
(b)any medication that has been prescribed for the children.
20.Both parents are entitled to communicate with Y’s treating medical, therapeutic or allied healthcare professionals for the purpose of obtaining information as to matters relevant to Y’s health and welfare, including information regarding any treatment recommended or undertaken, and these Orders be sufficient as authority for this purpose.
21.In the event that either child suffers a serious injury or illness or medical emergency that requires immediate medical attention, hospitalisation or ambulance services while in either parent’s care, that parent will within one hour or otherwise as soon as practicable:
(a)Inform the other parent of the nature of the child’s condition including any diagnosis, prognosis, or treatment;
(b)Advise the other parent of the full name and contact details for any health care practitioner or facility the child may attend upon for assessment or treatment; and
(c)Authorise the health care practitioner or facility to contact the other parent in relation to the child’s diagnosis, prognosis or treatment and provide the practitioner or treatment facility with the other parent’s contact number and email address to facilitate the same.
School
22.Unless otherwise agreed between the parties in writing, the parties will do all acts and things and sign all documents necessary to ensure the children remain enrolled in schools in New South Wales.
23.Within 14 days of either child’s subsequent enrolment at any school the Father is to do all acts and things necessary and give all irrevocable authorities necessary to ensure that whichever school each child may attend from time to time may forward directly to the Mother copies of all of the children’s reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities.
24.These Orders act as an authority for all schools at which the children may attend from time to time to:
(a)provide each parent, at the expense of that parent, copies of all school reports, school notices and newsletters, school photographs and examples of schoolwork in relation to the children;
(b)communicate with each parent, either by telephone, in writing or by personal attendance, in respect to each child’s progress at school, and inform them of any emergency, remedial or correctional treatment required by either of the children as soon as is practicable; and
(c)permit each parent to attend all school functions to which parents are normally invited, subject to any school policy in relation thereto.
Extracurricular activities
25.In the event either parent wishes to enrol Y in any extra-curricular activities that fall during the other parent’s time with Y, such activities must be agreed between the parents in writing.
26.Each parent is at liberty to attend any extracurricular activity events in which Y is involved notwithstanding that Y may not be living with that parent on that particular day.
Travel
27.Pursuant to section 65Y(2) of the Family Law Act 1975 (Cth), both parties are permitted to remove the children or one of them from the Commonwealth of Australia during their time with the child or children in any school holiday period as specified in these Orders, provided that forty-two (42) days’ notice being provided to the other parent of their intention to travel overseas, and such notice includes:
(a)Details of the proposed date of departure from Australia and return to Australia;
(b)The proposed destination(s) of the travel;
(c)A full itinerary for the trip including flight details;
(d)Details of the accommodation where the travelling parent and the child or children will be staying;
(e)Contact telephone numbers or videocall details by which the child or children may be contacted while they are outside Australia;
(f)Proof of a policy of a valid travel insurance policy being held in the name of each travelling child for the duration of the proposed travel; and
(g)If the travelling parent is not an Australian citizen – evidence that they hold a valid Resident Return visa to re-enter Australia on the proposed return date.
28.Subject to the above notice being provided, the parties are to do all acts and sign all documents necessary to facilitate the travelling parent travelling overseas with the children.
29.Unless otherwise agreed between the parties in writing, while the children are traveling outside of Australia with one of the parents:
(a)The travelling parent is to supervise the children at all times;
(b)The travelling parent will arrange for the children to communicate with the other parent using voice or video call in accordance with the Orders in relation to communication above.
30.Each of the children be permitted to depart from the Commonwealth of Australia for the purpose of attending authorised international trips, competitions, exchanges or events organised by that child’s school or extracurricular programs.
31.Both parties are to do all things and sign all documents necessary to ensure both of the children have a current valid Australian passport and are to pay the cost of the passport equally.
32.Under section 11(1)(b) of the Australian Passports Act 2005, the Father has authority to apply for an Australian passport on behalf of each of the children without the consent of the Mother.
33.The children’s passports are to be held by the Father. The Father is to provide the children’s passports to the Mother seven (7) days prior to her leaving the country with the children and the Mother is to return the passports to the Father within seven (7) days of her return. In the event the passport is required for booking for the overseas travel then the Father will provide the passport and the Mother will return it within two (2) days.
Restraints
34.Pursuant to s.68B of the Family Law Act 1975 (Cth) each parent is restrained from:
(a)Consuming any illicit substances within 24 hours of coming into contact with the children or while either of the children are in their care;
(b)Consuming alcohol so as to exceed a blood alcohol limit of 0.05 within 24 hours of coming into contact with the children or while either of the children are in their care;
(c)Making critical or derogatory remarks in relation to the other parent or their family members in the presence or hearing of either child, or allowing any third party to do so;
(d)Discussing these proceeding in the hearing or presence of either child or allowing any third party to do so; and
(e)Physically disciplining either child.
Independent Children’s Lawyer
35.Within three months of the date of these Orders, each party pay to Legal Aid NSW half of the costs of the Independent Children’s Lawyer, unless otherwise exempt or waived.
36.The Independent Children’s Lawyer otherwise be discharged from these proceedings.
Property Orders
37.Within 42 days of the date of these Orders, being by 29 August 2024, the husband pay to the wife $395,000.
38.Contemporaneous with the payment in Order 37:
(a)The wife must transfer to the husband the whole of her interest in the property at B Street, Suburb C in the State of New South Wales, more particularly described in Folio Identifier … (“the Suburb C property); and
(b)The wife must provide vacant possession of the Suburb C property to the husband.
39.Contemporaneous with the payment in Order 37 and compliance by the wife with Order 38, the husband must discharge and refinance the mortgages held by D Bank, being mortgage … secured over the property in his sole name, and thereafter indemnify the wife with respect to the Suburb C property.
40.In the event that husband fails to comply with Orders 37 or 39, the parties shall do all acts and sign all documents necessary to cause the sale of the Suburb C to be sold in the following manner for the best reasonably obtainable price:
(a)List the Suburb C property for sale by private treaty with a real estate agent mutually agreed upon by the parties or in the absence of agreement reached within 7 days, the real estate agent appointed by the President of the Real Estate Institute of NSW or his or her nominee (“the agent”), the costs of and incidental to the appointment of the agent to be borne equally by the parties as and when they fall due
(b)The sale price of the Suburb C property shall be such sale price as is mutually agreed upon by the parties or in the absence of agreement reached within 7 days of these orders, the price nominated as market value by a licensed valuer appointed by the Chair of the NSW Office of the Australian Property Institute or his or her nominee (“the valuer”), the costs of and incidental to such appointment and valuation to be borne equally by the parties as and when they fall due.
(c)The solicitor with conduct of the sale of the Suburb C property shall be the solicitor agreed upon by the parties or in the absence of agreement reached within 7 days of these orders, the solicitor appointed by the President of the NSW Law Society or his or her nominee (“the solicitor”), the costs of and incidental to the appointment of the solicitor to be borne equally by the parties as and when they fall due.
(d)The party occupying the Suburb C property shall co-operate in every way with the agent including but not limited to:
(i)making house keys available to the agent;
(ii)allowing the inspection of the Suburb C property at all reasonable times requested by the agent;
(iii)doing or saying nothing to hinder or prevent a sale being effected;
(iv)ensuring that the Suburb C property, including its grounds and dwellings, are maintained in a neat and presentable condition at the time of inspection by the agent and prospective purchasers.
(e)The wife shall execute a contract or agreement for sale in the form approved by the parties’ solicitors and sign all documents requested to be signed by the agent in relation to the listing of the sale of the Suburb C property except a contract or agreement for sale which has not been authorised by the parties' solicitors.
(f)Each party is restrained from conferring upon any real estate agent any right to sole or exclusive agency in respect of the Suburb C property or to any commission without the consent of the other party.
(g)In the event that binding unconditional contracts for the sale of the Suburb C property have not been exchanged within 3 months following the date of these orders, or such further date as shall be agreed by the parties in writing, the parties shall thereafter immediately list the Suburb C property for sale by public auction with the agent, on a date nominated by the agent no later than 2 months from the date of listing the Suburb C property for sale by public auction.
(h)The reserve price for the purpose of a sale of the Suburb C property by auction shall be such a reserve price as is mutually agreed upon by the parties or in the absence of agreement reached within 7 days of the requirement that the Suburb C property be listed for auction arising, the reserve price nominated as market value thereof by the valuer, the costs of and incidental to such valuation to be borne equally by the parties as and when they fall due.
(i)In the event the Suburb C property remains unsold after an auction for its sale, the parties shall immediately re-list the Suburb C property for sale at a second public auction, again on a date nominated by the agent no later than 2 months from the date of the preceding auction, and at such auction there shall be no reserve price unless otherwise agreed upon by the parties in writing.
(j)Each party shall have the right to bid at the auctions provided for in this order.
41.That the parties shall do all acts and sign all documents necessary to disburse the proceeds of any sale of the Suburb C property pursuant to Order 37 above in the following manner and priority:
(a)first, in payment of all agent's commissions, expenses and legal costs of the sale, including in relation to any public auction/s;
(b)second, in payment of all outstanding land tax, council and water rates relating to the Suburb C property;
(c)third, to discharge the mortgage/s in favour of the D Bank (registered number …) secured over the Suburb C property; and
(d)fourth, the remaining balance proceeds of sale to be paid as follows:
(i)$395,000 to the Wife; and
(ii)Balance remaining thereafter to the Husband.
(e)Notwithstanding subparagraph 41(d) above, in the event that either party has refused or neglected to pay half of the costs of and incidental to appointments, valuations or marketing costs for auctions as required by Order 40 above then the amount outstanding shall first be deducted from the amount due to the refusing or neglecting party herein and paid to the relevant creditor or in reimbursement of any person who has already paid the relevant creditor on behalf of the refusing or neglecting party.
42.Contemporaneous with the appointment of the selling agent in Order 40(a) and solicitor in Order 40(b) the wife must provide consent in writing to each that they must provide all correspondence and information in relation to the sale of the Suburb C property to the Husband and seeks instructions from both the Husband and Wife in relation to the sale.
43.In the event the Wife does not comply with Order 38 within 7 days of a request in writing by the solicitor for the Husband for compliance by the Wife with that Order, the Husband is appointed as Trustee to act on behalf of both parties in relation to the sale of the Suburb C property.
44.Within 42 days of the date of these Orders, being by 29 August 2024, the Wife must deliver to the Husband in such manner as he directs in writing, Motor Vehicle 1 held by Mattina Services Pty Ltd as trustee for the Mattina Services Trust.
45.The Wife will declare in her tax return for the financial years ending 30 June 2022, and 30 June 2023 as distribution from Mattina Services Trust the sum nominated by the husband on the condition that:
(a)the Husband must pay the Wife's tax referrable to any distribution from the Mattina Services Trust referred to herein as and when the same fall due;
(b)the Wife must submit her tax returns for each financial year by no later than 31 May 2024;
(c)the Wife will provide the husband with the tax assessment for each financial year in a timely manner and no later than 7 days from her receipt of the notice of assessment to enable the husband to comply with Order 45(a);
(d)the Husband must indemnify the Wife and keep her indemnified in relation to the tax liabilities referrable to the distributions referred to herein.
46.Within 28 days of a request in writing by the Husband, the Wife must do all acts and sign all documents necessary to:
(a)cause the closure of CBA joint account #...07, with the balance held at the date of closure to be paid to the Wife in such manner as she directs.
(b)cause the Wife to transfer to the Husband the whole of her interest in Mattina Services Pty Ltd;
(c)resign as a director of Mattina Services Pty Ltd;
(d)cause the Wife to relinquish the whole of her interest Mattina Services Trust as to income and/or capital beneficiary; and
(e)cause the closure, deregistration and/or winding up of the following dormant/non trading entities;
(i)Mattina Pty Ltd ATF Mattina Trust and Mattina Family Trust;
(ii)Mattina Trust;
(iii)Mattina Family Trust;
(iv)Mattina Holdings Pty Ltd ATF for the Mattina Property Trust
(v)Mattina Property Trust
47.Contemporaneous with Order 46, the husband personally, in his capacity as director of Mattina Services Pty Ltd ATF the Mattina Services Trust indemnify the wife in relation to any and all liabilities referrable to the Mattina Services Trust.
48.Contemporaneous with compliance with Order 46 the Wife must do all acts and things and transfer to the husband any debit or credit loan or beneficiary account in her name in the Mattina Services Trust.
49.Subject to any other order herein to the contrary, the husband and the wife be solely, legally and beneficially entitled to the exclusion of the other party, to all other real and personal property of whatsoever nature and kind as is in their respective ownership, possession and/or control as at the date of these Orders, or to which he or she may become entitled after the making of these Orders including but not limited to, money on deposit, shareholdings, insurance policies, motor vehicles, superannuation and personal effects.
50.Except as otherwise provided for herein, from the date of these Orders, the husband shall do all acts and things necessary to indemnify, and keep indemnified, the wife from and against all liabilities of the husband including, but not limited to;
(a)Any liability in the name of the husband or any entity in which the husband has an interest;
(b)All liabilities including claims, actions, suits or demands of whatsoever nature arising out of, or in connection with, the husband or any entity in which the husband has an interest;
(c)Taxation; and
(d)Duties (including stamp duty), whether past, present or future.
51.Except as otherwise provided for herein, from the date of these Orders, the wife shall do all acts and things necessary to indemnify, and keep indemnified, the husband from and against all liabilities of the wife including, but not limited to:
(a)Any liability in the name of the wife;
(b)All liabilities including claims, actions, suits or demands of whatsoever nature arising out of, or in connection with the wife;
(c)Taxation; and
(d)Duties (including stamp duty), whether past, present or future.
52.In the event that either party refuses or neglects to execute any deed or instrument required to be executed by these orders within 14 days of a written request to do so, the Registrar of the Federal Circuit and Family Court of Australia (Division 2) is hereby appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument on behalf of such refusing or neglecting party and to do all acts necessary to give validity to the operation to the deed or instrument upon the Registrar being provided with verification of such refusal or neglect by way of affidavit.
Costs
53.Absent any Application within 7 days, pursuant to s.117 of the Family Law Act 1975 (Cth), each party is to pay their own costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
A. Introduction
This matter concerns the Court making Orders that are (a) in the best interests of 12-year-old X and 9-year-old Y, and (b) just and equitable between the 56-year-old Husband of Country H descent and his 43-year-old Wife of Country J descent after a marital relationship of approximately 10 years. Currently the children live separately from each other, with daughter X living with her Father and spending no time with her Mother, while son Y lives with his Mother in the former marital residence and spends reasonably regular but still limited time with his Father.
The Husband is a healthcare professional who enjoys a significant income. The Wife is a healthcare professional who earns a significantly lower income compared to the Husband. She expects to become fully qualified as a healthcare professional by the end of 2024. The Husband seeks to retain the former marital residence and to pay out the Wife. Neither party contends that there is any relevant “health issue” for the purposes of the property dimension of the proceeding. The relationship was approximately 12 years in duration.
In general terms and subject to what is discussed later in these reasons, the parenting aspect has the following specific and concerning issues:
(a)X is completely estranged from her Mother, a situation that has continued since approximately late 2022;
(b)Notwithstanding this estrangement, in my view almost bordering on the absurd and dangerous, the Mother continued to seek at trial that X be ordered to return to live with the Mother. She also sought that she have sole parental responsibility for both children. Seeking such Orders in the circumstances here showed a significant lack of insight;
(c)The separation of the children, in my firm view, cannot and will not be permitted to continue. It is patently not in their best interests. Both experts, in large measure, agreed with such a view; and
(d)The Court’s significant degree of concern not only about the Mother’s insight but, on the evidence, there are also issues regarding the Mother’s capacity more generally not least evidenced by (i) the very large number of days that Y has missed school while in the Mother’s primary care (even with the Father paying for a private car and driver to take the child to school to the tune of $600 per week, which has occurred for more than 12 months), and (ii) her inability to comply with Orders (discussed further below).
Regarding property matters, among other things, the following were issues of special interest or concern:
(a)Given the immense disparity between the income of the parties, according to par.48 of her Case Outline, the Wife nonetheless proposed that she “contributed” 85% to the acquisition of the marital residence at Suburb C in suburban Sydney, which had a mortgage of $1,500,000. Non-financial contribution, certainly; financial contribution, absent specific evidence of it, completely unlikely (the broad-brush if not often sweeping approach of the Mother’s submissions did not assist);
(b)The options regarding the former marital residence are either that it be sold, and the net funds distributed in accordance with the Court’s determination, or the Husband buy out the Wife according to the Court’s decision. The Wife provided little or next to no evidence about her plans regarding her living situation in either eventuality (noting that she has no capacity to pay out the Husband), except to say in cross examination that she would likely move to a rental property that was closer to the children’s schools in the suburbs of Sydney, but still without any details; and
(c)The Wife was circumspect in every respect regarding her new relationship, including any financial impact of, or benefit from, it.
For the reasons that follow, regarding parenting, the Orders proposed by the Independent Children’s Lawyer (“the ICL”), which the Father supports and endorses, are in the best interests of the children. Regarding property, subject to the amount payable to the Wife, the Father’s Orders should also be made as those which, in the Court’s view, are just and equitable between the parties.
In addition to these reasons, I accept and adopt the submissions of the Father in relation to both aspects – parenting and property. Without detracting from the Father’s parenting submissions, the ICL’s submissions were thorough and impressive. They could have been, on their own, more than sufficient to warrant the Court adopting them as the basis for the orders now made for the children.
On the evidence before the Court, in my view, each party should pay their own costs absent any Application within 7 days.
B. Applicant’s Orders sought
The Applicant’s Orders sought were set out in an Annexure to his Case Outline filed on 13th May 2024. They were as follows (emphasis in original):
Parenting
1.The father have sole parental responsibility for the child [X] born [in] 2011.
2.The child [X] live with the father.
3.The child [X] spend time with the mother at such times and in such circumstances as agreed between the parties, having regard to the wishes of the child [X].
4.The mother and the father must do all acts and things to secure the continuation of family therapy for [X] with an agreed family therapist with the aim of achieving the re-establishment of time between [X] and the mother, with family therapy to continue for such period as determined by the family therapist.
5.The mother and father have equal shared parental responsibility for the child [Y] born [in] 2014.
6.The child [Y] live with the father.
7.The child [Y] spend time with the mother during school terms as follows:
7.1In week 1, from the conclusion of school (or 3 PM on a non-school day) on Friday until the commencement of school (or 9 AM on a non‑school day) on Monday and during the same period each alternate week thereafter for the remainder of the school term; and
7.2In week 2, from the conclusion of school (or 3 PM on a non-school day) on Wednesday until the commencement of school (or 9 AM on a non-school day) on Friday, and during the same period during each alternate week thereafter for the remainder of the school term.
8.During school holidays, [Y] spend time with the mother for half of each holiday period, as agreed and failing agreement, unless otherwise ordered by the Court:
8.1From the end of school on the last day of term until the mid-point of the holidays at 12 noon in each even numbered year; and
8.2From the mid-point of the holidays at 12 noon until the commencement of the next school term in even odd numbered year.
9.Changeover for the purposes of orders 7 and 8 be implemented by the mother collecting the child [Y] from, and delivering the child [Y] to, school on a school day, and on a non-school day by the mother collecting the child from the home of the father at the commencement of her time and the father collecting the child from the home of the mother at the conclusion of the mother’s time, unless otherwise agreed in writing.
10.Each parent must make the child [Y] available for communication with the other parent each third day that the child is in the care of that parent, between 6.30 p.m. and 7.30 p.m.
11.Each parent shall, as soon as practicable, advise and keep the other parent informed of the following their contact details (or change of), including email addresses, residential address and mobile numbers.
12.Both parties inform each other as soon as practicable of any illness or injury sustained by the children whilst in their respective care and further provide any particulars of treatment or medication received by the children or either of them together with the name and address of the treatment provider and/or location at which the children or either of them is a patient.
13.Both parties are permitted to liaise with the children’s school to obtain information about the children’s progress and obtain copies of reports, photographs, newsletters and all other documents usually provided to parents at their own expense.
14.Both parties are at liberty to attend any significant school or extra-curricular activity to which parents are ordinarily invited, including but not limited to special school concerts, special sporting events and parent teacher interviews.
15.Both parties are permitted to liaise with and attend upon the children's medical practitioners to obtain information about the children medical care and to obtain copies of any relevant documents at their own expense.
16.On a without admissions basis, the parties be restrained from drinking excessive alcohol or using illicit substances 24 hours before and during any time spent with the children, or bringing the children into contact with anyone who is, or is suspected to be, affected by alcohol or illicit substances, save and except for any legal medication prescribed by a registered independent medical practitioner and taken or used strictly in accordance with such prescription.
17.Without admitting the necessity of such order, the parties, their servants and agents be and are hereby restrained by injunction from:
17.1denigrating each other and their families to or in the presence or hearing of the children or any of them and permitting any other person to so;
17.2passing messages through the children to the other parent;
17.3discussing parenting disputes and/ or issues with or in the presence of the children or any of them and permitting any other person to do so;
17.4exposing the children to any conflict between the parties and their families and permitting any other person to do so; and
17.5from discussing the court proceedings including any ancillary proceedings with or in
the presence or hearing of the children or any of them and permitting any other person to do so.
18.Within 7 days of the date of these orders the mother must deliver to the father the original Australian Passports for each of the children, with the children’s passports to thereafter remain in the possession of the father, subject to order 21.
19.Within 14 days of a request in writing made by one parent to the other, each parent must do all acts and sign all documents necessary to cause an Australian Passport to be issued and/or renewed for each of the children [X] born [in] 2011 and/or [Y] born [in] 2014.
20.In the event of a failure by the mother to comply with order 18 and/or 19, for the purpose of section 11(1)(b) of the Australian Passports Act 2005;
20.1the father is permitted to apply for an Australian Passport for each of the children; and
20.2the children are permitted to travel internationally with the father.
21.In the event that either parent proposes to take the children or either of them, on a holiday overseas, during a period that either or both of the children are in the care of that parent:
21.1The parent proposing to take the child or children overseas (“the travelling parent”) must give the other parent 42 days written notice of their intention to do so;
21.2No less than 14 days prior to the proposed date for leaving the Commonwealth of Australia, the travelling parent must provide to the other parent:
21.2.1details of the date of departure and the date of arrival, including details of the flights;
21.2.2details of the purpose of the journey; and
21.2.3an itinerary for the journey, including telephone contact numbers and addresses whilst the travelling parent and the child or children are overseas;
21.3The parties shall do all acts and sign all documents necessary to facilitate the travelling parent travelling overseas and returning with the child or children;
21.4The travelling parent shall consent to the registration of these orders in an appropriate Court in the destination country/ies if so requested by the other party.
21.5If the mother is the travelling parent
21.5.1the father must deliver the travelling child or children’s Passport to the mother no less than 7 days prior to the proposed date of departure; and
21.5.2the mother must return the child or children’s Passports to the father within 7 days of her return to the Commonwealth of Australia.
Property
22.Within 42 days of the date of these Orders, the husband pay to the wife $350,000.
23.Contemporaneous with the payment in order 22:
23.1The wife must transfer to the husband the whole of her interest in the property at [B Street, Suburb C] in the State of New South Wales, more particularly described in Folio Identifier […] (“the [Suburb C] property); and
23.2The wife must provide vacant possession of the [Suburb C] property to the husband.
24.Contemporaneous with the payment in order 22 and compliance by the wife with order 23, the husband must discharge and refinance the mortgages held by [D Bank], being mortgage […] secured over the property in his sole name, and thereafter indemnify the wife with respect to the [Suburb C] property.
25.In the event that husband fails to comply with orders 22 or 24, the parties shall do all acts and sign all documents necessary to cause the sale of [Suburb C] to be sold in the following manner for the best reasonably obtainable price:
25.1List the [Suburb C] property for sale by private treaty with a real estate agent mutually agreed upon by the parties or in the absence of agreement reached within 7 days, the real estate agent appointed by the President of the Real Estate Institute of NSW or his or her nominee (“the agent”), the costs of and incidental to the appointment of the agent to be borne equally by the parties as and when they fall due
25.2The sale price of the [Suburb C] property shall be such sale price as is mutually agreed upon by the parties or in the absence of agreement reached within 7 days of these orders, the price nominated as market value by a licensed valuer appointed by the Chair of the NSW Office of the Australian Property Institute or his or her nominee (“the valuer”), the costs of and incidental to such appointment and valuation to be borne equally by the parties as and when they fall due.
25.3The solicitor with conduct of the sale of the [Suburb C] property shall be the solicitor agreed upon by the parties or in the absence of agreement reached within 7 days of these orders, the solicitor appointed by the President of the NSW Law Society or his or her nominee (“the solicitor”), the costs of and incidental to the appointment of the solicitor to be borne equally by the parties as and when they fall due.
25.4The party occupying the [Suburb C] property shall co-operate in every way with the agent including but not limited to:
25.4.1making house keys available to the agent;
25.4.2allowing the inspection of the [Suburb C] property at all reasonable times requested by the agent;
25.4.3doing or saying nothing to hinder or prevent a sale being effected;
25.4.4ensuring that the [Suburb C] property, including its grounds and dwellings, are maintained in a neat and presentable condition at the time of inspection by the agent and prospective purchasers.
25.5The wife shall execute a contract or agreement for sale in the form approved by the parties’ solicitors and sign all documents requested to be signed by the agent in relation to the listing of the sale of the [Suburb C] property except a contract or agreement for sale which has not been authorised by the parties' solicitors.
25.6Each party is restrained from conferring upon any real estate agent any right to sole or exclusive agency in respect of the [Suburb C] property or to any commission without the consent of the other party.
25.7In the event that binding unconditional contracts for the sale of the [Suburb C] property have not been exchanged within 3 months following the date of these orders, or such further date as shall be agreed by the parties in writing, the parties shall thereafter immediately list the [Suburb C] property for sale by public auction with the agent, on a date nominated by the agent no later than 2 months from the date of listing the [Suburb C] property for sale by public auction.
25.8The reserve price for the purpose of a sale of the [Suburb C] property by auction shall be such a reserve price as is mutually agreed upon by the parties or in the absence of agreement reached within 7 days of the requirement that the [Suburb C] property be listed for auction arising, the reserve price nominated as market value thereof by the valuer, the costs of and incidental to such valuation to be borne equally by the parties as and when they fall due.
25.9In the event the [Suburb C] property remains unsold after an auction for its sale, the parties shall immediately re-list the [Suburb C] property for sale at a second public auction, again on a date nominated by the agent no later than 2 months from the date of the preceding auction, and at such auction there shall be no reserve price unless otherwise agreed upon by the parties in writing.
25.10Each party shall have the right to bid at the auctions provided for in this order.
26.That the parties shall do all acts and sign all documents necessary to disburse the proceeds of any sale of the [Suburb C] property pursuant to order 22 above in the following manner and priority:
26.1first, in payment of all agent's commissions, expenses and legal costs of the sale, including in relation to any public auction/s;
26.2second, in payment of all outstanding land tax, council and water rates relating to the [Suburb C] property;
26.3third, to discharge the mortgage/s in favour of the [D Bank] (registered number […]) secured over the [Suburb C] property; and
26.4 fourth, the remaining balance proceeds of sale to be paid as follows:
26.4.1 $350,000 to the Wife; and
26.4.2 Balance remaining thereafter to the Husband.
26.5Notwithstanding subparagraph 26.4 above, in the event that either party has refused or neglected to pay half of the costs of and incidental to appointments, valuations or marketing costs for auctions as required by order 25 above then the amount outstanding shall first be deducted from the amount due to the refusing or neglecting party herein and paid to the relevant creditor or in reimbursement of any person who has already paid the relevant creditor on behalf of the refusing or neglecting party.
27.Contemporaneous with the appointment of the selling agent in Order 25.1 and solicitor in Order 25.2 the wife must provide consent in writing to each that they must provide all correspondence and information in relation to the sale of the [Suburb C] property to the Husband and seeks instructions from both the Husband and Wife in relation to the sale.
28.In the event the Wife does not comply with Order 23 within 7 days of a request in writing by the solicitor for the Husband for compliance by the Wife with that Order, the Husband is appointed as Trustee to act on behalf of both parties in relation to the sale of the [Suburb C] property.
29.Within 42 days of the date of these Orders the wife must deliver to the husband in such manner as he directs in writing, [Motor Vehicle 1] held by [Mattina Services Pty Ltd] as trustee for the [Mattina Services Trust].
30.The wife will declare in her tax return for the financial years ending 30 June 2022, and 30 June 2023 as distribution from [Mattina Services Pty Ltd] the sum nominated by the husband on the condition that:
30.1the husband must pay the wife's tax referrable to any distribution from the [Mattina Services Trust] referred to herein as and when the same fall due;
30.2the wife must submit her tax returns for each financial year by no later than 31 May 2024;
30.3the wife will provide the husband with the tax assessment for each financial year in a timely manner and no later than 7 days from her receipt of the notice of assessment to enable the husband to comply with Order 30.1;
30.4the husband must indemnify the wife and keep her indemnified in relation to the tax liabilities referrable to the distributions referred to herein.
31.Within 28 days of a request in writing by the Husband, the Wife must do all acts and sign all documents necessary to:
31.1cause the closure of CBA joint account # […] 07, with the balance held at the date of
closure to be paid to the Wife in such manner as she directs.
31.2cause the Wife to transfer to the Husband the whole of her interest in [Mattina Services Pty Ltd];
31.3resign as a director of [Mattina Services Pty Ltd];
31.4cause the Wife to relinquish the whole of her interest [Mattina Services Trust] as to income and/or capital beneficiary; and
31.5cause the closure, deregistration and/or winding up of the following dormant/non trading entities;
31.5.1[Mattina Pty Ltd] ATF [Mattina Trust] and [Mattina Family Trust];
31.5.2[Mattina Trust];
31.5.3[Mattina Family Trust];
31.5.4[Mattina Holdings Pty Ltd] ATF for the [Mattina Property Trust]
31.5.5[Mattina Property Trust]
32.Contemporaneous with Order 31, the husband personally, in his capacity as director of [Mattina Services Pty Ltd] ATF the [Mattina Services Trust] indemnify the wife in relation to any and all liabilities referrable to the [Mattina Services Trust].
33.Contemporaneous with compliance with Order 31 the Wife must do all acts and things and transfer to the husband any debit or credit loan or beneficiary account in her name in the [Mattina Services Trust].
34.Subject to any other order herein to the contrary, the husband and the wife be solely, legally and beneficially entitled to the exclusion of the other party, to all other real and personal property of whatsoever nature and kind as is in their respective ownership, possession and/or control as at the date of these Orders, or to which he or she may become entitled after the making of these Orders including but not limited to, money on deposit, shareholdings, insurance policies, motor vehicles, superannuation and personal effects.
35.Except as otherwise provided for herein, from the date of these Orders, the husband shall do all acts and things necessary to indemnify, and keep indemnified, the wife from and against all liabilities of the husband including, but not limited to;
35.1Any liability in the name of the husband or any entity in which the husband has an interest;
35.2All liabilities including claims, actions, suits or demands of whatsoever nature arising out of, or in connection with, the husband or any entity in which the husband has an interest;
35.3 Taxation; and
35.4 Duties (including stamp duty),
whether past, present or future.
36.Except as otherwise provided for herein, from the date of these Orders, the wife shall do all acts and things necessary to indemnify, and keep indemnified, the husband from and against all liabilities of the wife including, but not limited to:
36.1Any liability in the name of the wife;
36.2All liabilities including claims, actions, suits or demands of whatsoever nature arising out of, or in connection with the wife;
36.3Taxation; and
36.4Duties (including stamp duty),
whether past, present or future.
37.In the event that either party refuses or neglects to execute any deed or instrument required to be executed by these orders within 14 days of a written request to do so, the Registrar of the Federal Circuit and Family Court of Australia (Division 2) is hereby appointed pursuant to Section 106A of the Family Law Act to execute such deed or instrument on behalf of such refusing or neglecting party and to do all acts necessary to give validity to the operation to the deed or instrument upon the Registrar being provided with verification of such refusal or neglect by way of affidavit.
C. Respondent’s Orders sought
The Respondent’s Orders sought were set out in her Amended Response to Final Orders filed on 1st February 2024, and as supplemented by the Orders set out in her Case Outline, filed 19th May 2024. Combined, they were as follows (emphasis in original):
Parenting
1.Mother have sole decision-making in relation to all major long-term issues in respect of both children:
a.[X] born [in] 2011, now 12 years old
b.[Y] born [in] 2014, now 9 years old
2.That the children live with the mother.
3.The children spend time with the father during school terms as follows:
a.In week 1, from the conclusion of school (or 3 PM on a non-school day) on Friday until the commencement of school (or 9 AM on a non-school day) on Monday and during the same period each alternate week thereafter for the remainder of the school term; and
b.In week 2, from the conclusion of school (or 3 PM on a non-school day) on Wednesday until the commencement of school (or 9 AM on a non-school day) on Friday, and during the same period during each alternate week thereafter for the remainder of the school term.
4.During school holidays, the children spend time with the father for half of each holiday period from the end of school on the last day of term to the mid-point of the holidays at 12 noon.
5.Changeover be implemented by the father collecting the children from, and delivering the children to, school on a school day, and on a non-school day by the father collecting the children from the home of the mother at the commencement of his time and the mother collecting the children from the home of the father at the conclusion of the father's time, unless otherwise agreed in writing.
6.Each parent must make the children available for communication with the other parent each second day that the children are in the care of that parent, between 6.30 p.m. and 7.30 p.m.
7.That each parent whose care the children are in shall take all reasonable steps to ensure that the children communicate with the other parent at all times as reasonably requested by the children.
8.That the Australian Federal Police place the name of the children on the Ports Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watch List until further Order of the Court.
Property
9.That within 28 days of the date of these Orders the parties shall do all acts and things and sign all Deeds, documents, instruments and writings to cause the property situated at [B Street, Suburb C] NSW ("the [Suburb C] Property"), more particularly described in Folio Identifier […], to be sold.
10.That to give effect to Order 9, the Real Estate Agent to act in respect of the sale shall be as agreed by the parties and, failing agreement within seven (7) days of the date of these Orders, shall be a Real Estate Agent appointed by Chair of the Real Estate Institute of New South Wales or his/her nominee.
11.That, for the purposes of Order 9, the Solicitor to act in respect of the sale shall be as agreed by the parties and, failing agreement within seven (7) days of the date of these Orders, shall be a Solicitor appointed by the President of the Law Society of New South Wales or his/her nominee.
12.That, for the purposes of Order 9, the sale price for the property shall be as agreed between the parties and, failing agreement within seven (7) days of the date of these Orders, determined by the Chair of the NSW Office of the Australian Property Institute or his/her nominee, with the parties equally sharing the cost of such a determination.
13.Pending the sale of the [Suburb C] Property the wife shall have the right of sole occupation of the property and shall:
a.Keep the property in good order and repair; and
b.Co-operate in all reasonable respects with requests by real estate agents and/or prospective purchasers including but not limited to:
i.Providing keys to obtain access;
ii.Doing all things necessary to facilitate access to the property at all reasonable times and facilitating access for inspection without interference
c.Maintain the property in a presentable condition so as to facilitate the sale including but not limited to presenting the property in a neat and tidy condition at all times when the property is subject to inspection.
d.Do all things necessary to facilitate a sale at the earliest possible time and shall refrain from doing or saying anything which might have the effect of hindering or preventing an inspection or a sale of the property being effected.
14.Pending sale of the [Suburb C] Property provided for in Order 9, the husband shall be responsible for all mortgage payments, statutory rates and charges, other utilities, insurances, outgoings and expenses in relation to the property incurred prior to the date of the sale, shall make all such payments as and when they fall due.
15.That upon sale of the [Suburb C] Property, the proceeds of sale be disbursed as follows and in the following priority:
a.Discharge of all mortgages secured on title including mortgages held by [D Bank], being mortgage […].
b.In payment of agents commission and advertising expenses and legal expenses of the sale.
c.In payment of costs incurred in relation to the nomination of a real estate agent (if any), in payment of costs incurred in relation to the nomination of a solicitor (if any) and in payment of costs in relation to determination of listing price, reserve price, value and/or selling price by the Chair of the NSW Office of the Australian Property Institute or his/her nominee (if any).
d.Balance of the net proceeds then to be paid to the wife.
16.Taking into account the net proceeds of the [Suburb C] Property, the husband pay a sum of money to the wife which results in the wife receiving 95% of the total matrimonial pool of assets.
17.In the event there is not an exchanged sale still in process for the [Suburb C] Property by private treaty pursuant to the above Order 9 within 6 months of these Orders, then the parties shall forthwith do all things necessary to cause the property to be sold by public auction at the earliest possible date at a reserve price agreed upon between the parties and failing agreement to be determined by the Chair of the NSW Property Institute or his/her nominee and on completion of sale the proceeds of sale shall be disbursed as provided for in Order 15.
18.In the event the bidding at the auction does not reach the reserve price as determined in accordance with Order 17, the parties, or such of them as attends the auction, may negotiate with the highest bidders or any other interested person and effect a sale of the property at a price which is not more than 5% below the reserve price, or at such other price as the parties agree upon in writing.
19.If the property remains unsold after the auction referred to in Orders 17 and 18 then the parties will sign all such documents and do all acts and things to cause the property to remain listed by private treaty.
20.If the property remains unsold for a period of 12 months from the date of these Orders, the parties shall do all acts and things and sign all documents necessary to immediately relist the property for sale by public auction again, on a date nominated by the agent and with the reserve price to be agreed by the parties.
Motor Vehicle
21.That within 42 days of the wife receiving the proceeds of sale of the property of the [Suburb C] Property, the wife deliver to the husband [Motor Vehicle 1] registered in the name of the [Mattina Services Trust].
Personal property and spousal maintenance
22.That unless otherwise referred to in these orders and as between the parties, each party shall be solely, legally and beneficially entitled to the exclusion of the other to all other real and personal property of whatsoever nature and kind as is in their respective ownership, possession and/or control as at the date of these Orders, or to which he or she may become entitled after the making of these Orders including but not limited to, money on deposit, shareholdings, insurance policies, motor vehicles, superannuation and personal effects.
23.That unless otherwise referred to in these orders and as between the parties, the husband shall do all acts and things necessary to indemnify, and keep indemnified, the wife from and against all liabilities of the husband including, but not limited to;
a.Any liability in the name of the husband or any entity in which the husband has an interest;
b.All liabilities including claims, actions, suits or demands of whatsoever nature arising out of, or in connection with, the husband or any entity in which the husband has an interest;
c.Taxation; and
d.Duties (including stamp duty),
whether past, present or future.
24.That unless otherwise referred to in these orders and as between the parties, the wife shall do all acts and things necessary to indemnify, and keep indemnified, the husband from and against all liabilities of the wife including, but not limited to:
a.Any liability in the name of the wife;
b.All liabilities including claims, actions, suits or demands of whatsoever nature arising out of, or in connection with the wife;
c.Taxation; and
d.Duties (including stamp duty),
whether past, present or future.
25.That the husband pay the wife spousal maintenance of $1,500 per week.
Miscellaneous
26.The wife will declare in her tax return for the financial years ending 30 June 2022, and 30 June 2023 as distribution from [Mattina Services Trust] the sum nominated by the husband on the condition that:
a.the husband must pay the wife's tax referrable to any distribution from the [Mattina Services Trust] referred to herein as and when the same fall due;
b.the wife must submit her tax returns for each financial year by no later than 31 May 2024;
c.the wife will provide the husband with the tax assessment for each financial year in a timely manner and no later than 7 days from her receipt of the notice of assessment to enable the husband to comply with Order 26(a);
d.the husband must indemnify the wife and keep her indemnified in relation to the tax liabilities referrable to the distributions referred to herein.
27.Within 28 days of a request in writing by the Husband, the Wife must do all acts and sign all documents necessary to:
a.cause the closure of CBA joint account # […] 07, with the balance held at the date of closure to be paid to the Wife in such manner as she directs.
b.cause the Wife to transfer to the Husband the whole of her interest in [Mattina Services Pty Ltd];
c.resign as a director of [Mattina Services Pty Ltd];
d.cause the Wife to relinquish the whole of her interest [Mattina Services Trust] as to income and/or capital beneficiary; and
e.cause the closure, deregistration and/or winding up of the following trading entities;
i.[Mattina Pty Ltd] ATF [Mattina Trust] and [Mattina Family Trust];
ii.[Mattina Trust];
iii.[Mattina Family Trust];
iv.[Mattina Holdings Pty Ltd] ATF for the [Mattina Property Trust]; and
v.[Mattina Property Trust].
28.Contemporaneous with Order 27, the husband personally, in his capacity as director of [Mattina Services Pty Ltd] ATF the [Mattina Services Trust] indemnify the wife in relation to any and all liabilities referrable to the [Mattina Services Trust].
29.Contemporaneous with compliance with Order 27, the wife do all acts and things and transfer to the husband any debit or credit loan or beneficiary account in her name in the [Mattina Services Trust].
30.Pursuant to section 117 of the Child Support (Assessment) Act 1989 (Cth) and by way of Departure from the Administrative Assessment of Child Support the husband pay the following:
a.A weekly payment to the wife of $400 per week per child.
b.The children's school fees and associated expenses, including but not limited to uniforms, books and extra-curricular activities.
31.In the event that either party refuses or neglects to execute any deed or instrument required to be executed by these orders within 14 days of a written request to do so, the Registrar of the Federal Circuit and Family Court of Australia (Division 2) is hereby appointed pursuant to Section 106A of the Family Law Act to execute such deed or instrument on behalf of such refusing or neglecting party and to do all acts necessary to give validity to the operation to the deed or instrument upon the Registrar being provided with verification of such refusal or neglect by way of affidavit.
32.The husband shall pay the wife's costs and disbursements of, and incidental to these proceedings, inclusive of counsel's fees.
D. Independent Children’s Lawyer’s Orders sought
The Independent Children’s Lawyer’s (“ICL”) Orders sought (slightly revised) were contained in her Written Submissions, filed 6th June 2024, and were as follows (emphasis in original):[1]
[1] The ICL’s Orders differed only slightly from those originally sought in her Case Outline, filed 17th May 2024.
Parental Responsibility
1.The Father have sole decision-making responsibility for the children [X] born [in] 2011 and [Y] born [in] 2014 (the children).
2.In exercising sole decision-making responsibility as referred to above, the Father is to:
2.1Notify the Mother in writing at least 14 days before any proposed long-term decision is made about the children;
2.2Consider any response provided by the Mother and endeavour to reach agreement on the proposed decision to be made;
2.3In the absence of an agreement between the parents as to the proposed decision to be made, the Father is to make the final decision.
Living Arrangements – School Term
3.The children live with the Father.
4.[X] spend time with the Mother in accordance with [X]’s wishes.
5.For a period of three consecutive months from the date of these Orders, [Y] spend no time with the Mother.
6.Following the conclusion of a period of three months from the date of these Orders, unless otherwise agreed in writing between the parties, [Y] is to spend time with the Mother during the school term as follows:
6.1In Week 1, from the conclusion of school (or 3:00 pm) on Friday until the commencement of school (or 9:00 am) on Monday; and
6.2In Week 2, from the conclusion of school (or 3:00 pm) on Wednesday until the commencement of school (or 9:00 am) on Thursday.
Living Arrangements – School Holidays
7.Following the conclusion of a period of three months from the date of these Orders, unless otherwise agreed in writing between the parties, [Y] will spend time with the parties for half of each of the school holidays at the end of terms 1, 2 and 3, as follows:
7.1 With the mother:
(a)in odd numbered years, from the conclusion of the school term (being the last day that [Y] is required to or would regularly attend school) until 10:00 am on the midpoint of the school holidays;
(b)in even numbered years, from 10.00 am on the midpoint of the school holiday period until the commencement of school on the first day of the following term (being the first day that [Y] is required to or would regularly attend school).
7.2 With the father:
(a)in even numbered years, from the conclusion of the school term (being the last day that [Y] is required to or would regularly attend school) until 10:00 am on the midpoint of the school holidays;
(b)in odd numbered years, from 10:00 am on the midpoint of the school holiday period until the commencement of school on the first day of the following term (being the first day that [Y] is required to or would regularly attend school).
8.Following the conclusion of a period of three months from the date of these Orders, unless otherwise agreed in writing between the parties, [Y] will spend time with the parties over the Christmas school holiday period as follows:
8.1 With the Mother
(a)In odd numbered years, from the conclusion of school on the last day of the school term (being the last day that [Y] is required to attend school) until Monday;
(b)In odd numbered years, thereafter, for the first week in a two week cycle commencing on the first Monday of the school holiday period, and each alternate week thereafter, continuing until the commencement of school on the first day of Term 1 in the following year;
(c)In even numbered years, from 10:00 am on Monday on the second week in a two week cycle until 10:00 am the following Monday and each alternate week thereafter, continuing until the commencement of school on the first day of Term 1 in the following year.
8.2 With the Father:
(a)In even numbered years, from the conclusion of school on the last day of the school term (being the last day that [Y] is required to attend school) until Monday;
(b)In even numbered years, thereafter, for the first week in a two week cycle commencing on the first Monday of the school holiday period, and each alternate week thereafter, continuing until the commencement of school on the first day of Term 1 in the following year;
(c)In odd numbered years, from 10:00 am on Monday on the second week in a two week cycle until 10:00 am the following Monday and each alternate week thereafter, continuing until the commencement of school on the first day of Term 1 in the following year.
9.For the purposes of the above Order, if there is an uneven number of school holiday nights (which means that the midpoint is not clear), if it is an odd numbered year then [Y] will stay in the care of the Mother for the extra evening and if it is an even numbered year then [Y] will stay in the care of the Father for the extra evening.
Special Occasions
10.Following the conclusion of a period of three months from the date of these Orders, unless otherwise agreed in writing between the parties, [Y] will spend time with each parent as follows:
10.1In odd numbered years with the Mother from 11:00 am on 24 December until 11:00 am on 25 December and with the Father from 11:00 am on 25 December until 11:00 am on 26 December; and
10.2In even numbered years with the Father from 11:00 am on 24 December until 11:00 am on 25 December and with the Mother from 11:00 am on 25 December until 11:00 am on 26 December.
10.3With the Mother on her birthday, from after school to 7:00 pm if the Mother’s birthday falls on a school day or from 9:00 am to 5:00 pm if the Mother’s birthday falls on a weekend; and
10.4With the Father on his birthday, from after school to 7:00 pm if the Father’s birthday falls on a school day or from 9:00 am to 5:00 pm if the Father’s birthday falls on a weekend.
10.5With the parent with whom he is not residing on his birthday, from after school to 7:00 pm if the birthday falls on a school day or from 3:00 pm to 7:00 pm if the birthday falls on a weekend.
10.6With the Father on Father’s Day from 9:00 am to 5:00 pm;
10.7With the Mother on Mother’s Day from 9:00 am to 5:00 pm;
10.8In odd numbered years:
(a)With the Father from after school or 3:00 pm on Good Friday to 9:00 am on Easter Sunday; and
(b)With the Mother from 9:00 am on Easter Sunday to before school or 9:00 am on the Tuesday following Easter Monday;
10.9 In even numbered years:
(a)With the Mother from after school or 3:00 pm on Good Friday to 9:00 am on Easter Sunday; and
(b)With the Father from 9:00 am on Easter Sunday to before school or 9:00 am on the Tuesday following Easter Monday.
11.For the purpose of these orders, changeovers are to occur at [Y]’s school, should changeover occur on a school day. On non-school days, unless otherwise agreed between the parties in writing, changeovers are to occur as follows:
11.1The Mother is to collect [Y] from the Father’s residence at the beginning of her time with [Y]; and
11.2The Father is to collect [Y] from the Mother’s residence at the end of the Mother’s time with [Y].
Communication
12.The Father is to do all acts and things necessary to facilitate telephone and/or video call contact between [X] and the Mother as requested by [X].
13.During the three month period following the date of these Orders when [Y] spends no time with the Mother, [Y] will have telephone and/or video call contact with the Mother as agreed, and in the absence of agreement each Tuesday and Saturday, and for the purposes of this Order:
13.1the call shall take place at a time to be agreed between the parties but failing agreement at 7:00 pm for a minimum period of 15 minutes and a maximum period of 30 minutes;
13.2the Mother will make the call;
13.3the Father will do all acts and things necessary to ensure [Y] takes the call in a quiet environment;
13.4in the event [Y] misses the Mother’s call the Father will cause [Y] to return the call immediately.
14.Following the conclusion of a period of three months from the date of these Orders, when [Y] is living with the Father, [Y] will have telephone and/or video call contact with the Mother as agreed, and in the absence of agreement on Tuesday, and for the purposes of this Order:
14.1the call shall take place at a time to be agreed between the parties but failing agreement at 7:00 pm for a minimum period of 15 minutes;
14.2the Mother will make the call;
14.3the Father will do all acts and things necessary to ensure [Y] takes the call in a quiet environment;
14.4in the event [Y] misses the Mother’s call the Father will cause [Y] to return the call immediately.
15.When [Y] is with the Mother, [Y] will have telephone and/or video call contact with the Father as agreed, and in the absence of agreement on Saturday, and for the purposes of this Order:
15.1the call shall take place at a time to be agreed between the parties but failing agreement at 7:00 pm for a minimum period of 15 minutes;
15.2the Father will make the call;
15.3the Mother will do all acts and things necessary to ensure [Y] takes the call in a quiet environment;
15.4in the event [Y] misses the Father’s call the Mother will cause [Y] to return the call immediately.
16.Following the conclusion of a period of three months from the date of these Orders, both parents are to do all acts and things necessary to facilitate telephone and/or video call contact with the other parent as requested by [Y]. In the event [Y] misses a parent’s call the other parent will cause [Y] to return the call immediately.
17.For the purposes of communicating with the other parent, both parents do all things necessary to:
17.1communicate by telephone matters of an urgent nature, and otherwise;
17.2communicate via SMS or another agreed platform about day-to-day matters including arrangements for each party to spend time with the children;
17.3keep all communication between them respectful, civil and child‑focused;
17.4respond to any messages within 24 hours in the form of either an answer, request for more information or a timeframe which a response will be forthcoming noting that in the event a parent disagrees to a parenting proposal that they do all things necessary to suggest an alternative arrangement.
18.Each parent is to advise the other parent of their current residential address, email address, and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other parent of any changes to these details within 48 hours of such change occurring.
Medical
19.The parties will ensure that the other is kept informed of:
19.1any medical problems or illnesses suffered by either child requiring immediate medical attention, while in their care; and
19.2any medication that has been prescribed for the children.
20.Both parents are entitled to communicate with [Y]’s treating medical, therapeutic or allied healthcare professionals for the purpose of obtaining information as to matters relevant to [Y]’s health and welfare, including information regarding any treatment recommended or undertaken, and these Orders be sufficient as authority for this purpose.
21.In the event that either child suffers a serious injury or illness or medical emergency that requires immediate medical attention, hospitalisation or ambulance services while in either parent’s care, that parent will within one hour or otherwise as soon as practicable:
21.1Inform the other parent of the nature of the child’s condition including any diagnosis, prognosis, or treatment;
21.2Advise the other parent of the full name and contact details for any health care practitioner or facility the child may attend upon for assessment or treatment; and
21.3Authorise the health care practitioner or facility to contact the other parent in relation to the child’s diagnosis, prognosis or treatment and provide the practitioner or treatment facility with the other parent’s contact number and email address to facilitate the same.
School
22.Unless otherwise agreed between the parties in writing, the parties will do all acts and things and sign all documents necessary to ensure the children remain enrolled in schools in New South Wales.
23.Within 14 days of either child’s subsequent enrolment at any school the Father is to do all acts and things necessary and give all irrevocable authorities necessary to ensure that whichever school each child may attend from time to time may forward directly to the Mother copies of all of the children’s reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities.
24.These Orders act as an authority for all schools at which the children may attend from time to time to:
24.1provide each parent, at the expense of that parent, copies of all school reports, school notices and newsletters, school photographs and examples of schoolwork in relation to the children;
24.2communicate with each parent, either by telephone, in writing or by personal attendance, in respect to each child’s progress at school, and inform them of any emergency, remedial or correctional treatment required by either of the children as soon as is practicable; and
24.3permit each parent to attend all school functions to which parents are normally invited, subject to any school policy in relation thereto.
Extracurricular activities
25.In the event either parent wishes to enrol [Y] in any extra-curricular activities that fall during the other parent’s time with [Y], such activities must be agreed between the parents in writing.
26.Each parent is at liberty to attend any extracurricular activity events in which [Y] is involved notwithstanding that [Y] may not be living with that parent on that particular day.
Travel
27.Pursuant to section 65Y(2) of the Family Law Act 1975 (Cth), both parties are permitted to remove the children or one of them from the Commonwealth of Australia during their time with the child or children in any school holiday period as specified in these Orders, provided that forty-two (42) days’ notice being provided to the other parent of their intention to travel overseas, and such notice includes:
27.1Details of the proposed date of departure from Australia and return to Australia;
27.2The proposed destination(s) of the travel;
27.3A full itinerary for the trip including flight details;
27.4Details of the accommodation where the travelling parent and the child or children will be staying;
27.5Contact telephone numbers or videocall details by which the child or children may be contacted while they are outside Australia;
27.6Proof of a policy of a valid travel insurance policy being held in the name of each travelling child for the duration of the proposed travel; and
27.7If the travelling parent is not an Australian citizen – evidence that they hold a valid Resident Return visa to re-enter Australia on the proposed return date.
28.Subject to the above notice being provided, the parties are to do all acts and sign all documents necessary to facilitate the travelling parent travelling overseas with the children.
29.Unless otherwise agreed between the parties in writing, while the children are traveling outside of Australia with one of the parents:
27.1The travelling parent is to supervise the children at all times;
27.2The travelling parent will arrange for the children to communicate with the other parent using voice or video call in accordance with the Orders in relation to communication above.
30.Each of the children be permitted to depart from the Commonwealth of Australia for the purpose of attending authorised international trips, competitions, exchanges or events organised by that child’s school or extracurricular programs.
31.Both parties are to do all things and sign all documents necessary to ensure both of the children have a current valid Australian passport and are to pay the cost of the passport equally.
32.Under section 11(1)(b) of the Australian Passports Act 2005, the Father has authority to apply for an Australian passport on behalf of each of the children without the consent of the Mother.
33.The children’s passports are to be held by the Father. The Father is to provide the children’s passports to the Mother seven (7) days prior to her leaving the country with the children and the Mother is to return the passports to the Father within seven (7) days of her return. In the event the passport is required for booking for the overseas travel then the Father will provide the passport and the Mother will return it within two (2) days.
Restraints
34.Pursuant to s.68B of the Family Law Act 1975 (Cth) each parent is restrained from:
34.1Consuming any illicit substances within 24 hours of coming into contact with the children or while either of the children are in their care;
34.2Consuming alcohol so as to exceed a blood alcohol limit of 0.05 within 24 hours of coming into contact with the children or while either of the children are in their care;
34.3Making critical or derogatory remarks in relation to the other parent or their family members in the presence or hearing of either child, or allowing any third party to do so;
34.4Discussing these proceeding in the hearing or presence of either child or allowing any third party to do so; and
34.5Physically disciplining either child.
Independent Children’s Lawyer
35.Within three months of the date of these Orders, each party pay to Legal Aid NSW half of the costs of the Independent Children’s Lawyer, unless otherwise exempt or waived.
36.The Independent Children’s Lawyer otherwise be discharged from these proceedings.
E. Preliminary matters: experts & reports
Ms K’s Report
On the first day of the Final Hearing the Respondent’s Counsel raised concerns regarding the Report provided to the Court by Ms K, indicating a preference for the Court to rely only on the Report of Ms L. Summarily, concerns were raised in relation to Ms K’s qualifications, and specifically the recommendation made by her that Y live primarily with the Father.[2] During her cross examination of Ms K, Counsel for the Mother repeatedly submitted that Ms K was not qualified to make a “diagnosis”. The point, however, was not on the making (or not making) of a “diagnosis” but on the basis and relevance of any recommendation, which is what both experts did according to their interviews of the parties and the children, as noted later in these reasons.
[2] T 6 – 7
On the second day of the Final Hearing both the Applicant and ICL disputed these objections and sought that the Report be included as evidence before the Court.[3] Ultimately, the parties (and the ICL) each filed short submissions on the admissibility of Ms K’s Report after the conclusion of the final hearing. Those brief submissions were as follows, with those of the Mother listed first, followed by the Father and the ICL. The Father’s submissions were part of his overall final submissions – hence the curious commencement of the numbering. They were as follows (emphasis in original; footnotes omitted):
[3] T 23 – 24
Mother’s Submissions on Expert Evidence of 10 June 2024
1.The issue before the Court is whether [Ms K] is an expert within the meaning of Part 7.1.5 of the Federal Circuit and Family Court of Australia (Family Law) Rules:
(a)whether [Ms K] can be characterised as the single expert contemplated by Orders 3 to 16 made 28 June 2023, as the Mother says she is not;
(b)whether [Ms K] is an expert as contemplated by the Rules or by Orders 3 to 16 made 28 June 2023;
(c)whether [Ms K]'s report complies with the Rules Orders 3 to 16 made 28 June 2023; and
(d)whether [Ms K]'s opinion is to be preferred over that of [Ms L], whose expertise is not challenged.
2.There is no evidence [Ms L] and [Ms K] conducted a conference in accordance with Rule 7.31. Certainly, no report has been produced in accordance with that Rule. The Mother submits this is because [Ms K] is a therapist and does not hold a qualification which entitles her to act as a forensic psychologist.
3.Hall and Hall [1979] FamCA 73, (1979) FLC 90-713; (1979) 5 FamLR 609; (1979) 298 ALR 545 supports the view that a counsellor's views should be examined (paragraph 24(g)) and therefore supports the view that the qualifications of the maker of a family report may be examined. Critically, Hall and Hall refers to counsellors and experts, not drawing a clear distinction between therapists, counsellors and forensic psychologists. [Ms L] holds qualifications [in mental health studies and in legal studies]. The Mother says there is no contest on the basis of qualifications as [Ms L]'s must be preferred.
4.First, [Ms K] is not qualified to make a recommendation as to where either child should live. As a therapist, her role is to support the parties who consult her. She is qualified to say what history she took and to support the participants to reach a resolution between themselves, that is suitable to them. She is not qualified to make a recommendation. Clark v Ryan (1960) 103 CLR 486. Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157
5.Secondly, [Ms K]'s report does not comply with the requirements of Rule 7.21:
Rule 7.21 Form of expert’s report
(1) An expert's report must:
(a)be addressed to the court and the party or parties instructing the expert witness; and
(b)have attached to it a summary of the instructions given to the expert witness and a list of any documents relied on in preparing the report; and
(c)be verified by an affidavit of the expert witness .
(2) The affidavit verifying the expert's report must state the following :
I have made all the inquiries I believe are necessary and appropriate and to my knowledge there have not been any relevant matters omitted from this report, except as otherwise specifically stated in this report.
I believe that the facts within my knowledge that have been stated in this report are true.
The opinions I have expressed in this report are independent and impartial.
I have read and understand Divisions 7.1.4, 7.1.5 and 7.1 .6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and have used my best endeavours to comply with them .
I have complied with the requirements of the following professional codes of conduct or protocol , being [state the name of the code or protocol].
I understand my duty to the court and I have complied with it and will continue to do so.
6.Thirdly, [Ms K]'s report does not comply with the requirements of Rule 7.22:
Rule 7 .22 Contents of expert's report
(1) An expert’s report must:
(a)state the reasons for the expert witness's conclusions; and
(b)include a statement about the methodology used in the production of the report; and
(c)include the material referred to in subrule (2) in support of the expert witness's conclusions.
(2) For the purposes of paragraph (1 )(c), an expert's report must include the following in support of the expert witness's conclusions:
(a) the expert witness's qualifications;
(b) the literature or other material used in making the report;
(c)the relevant facts, matters and assumptions on which the opinions in the report are based ;
(d)a statement about the facts in the report that are within the expert witness's knowledge;
(e)details about any tests, experiments, examinations or investigations relied on by the expert witness and, if they were carried out by another person, details of that person's qualifications and experience;
(f)if there is a range of opinion on the matters dealt with in the report--a summary of the range of opinion and the basis for the expert witness's opinion;
(g) a summary of the conclusions reached;
(h) if necessary, a disclosure that:
(i)a particular question or issue falls outside the expert witness's expertise ; or
(ii)the report may be incomplete or inaccurate without some qualification and the details of any qualification; or
(iii)the expert witness's opinion is not a concluded opinion because further research or data is required or because of any other reason.
7.Fourthly, the recommendation made by [Ms K] fails the test set out in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 revised - 17/ 09/2001 which is recognised in Rule 7.22.
8.Critically, [Ms K] insisted that [Ms Falconi] must apologise to [X] but when asked in cross examination why she made that insistence, could not provide an answer. Clearly, [Ms K] had accepted [X]’s desire, but could not provide a psychological basis, nor even a therapeutic basis, for the apology.
9.None of this objections is to challenge [Ms K]'s qualifications as a therapist alone, but [Ms K] has not been qualified as an expert for the purpose of these proceedings and it is submitted she does not able to make the recommendation she does.
10.Faced with the thoroughness and compliance with the Rules of [Ms L]'s report, the Court and the parties must prefer [Ms L]'s report.
Independent Children’s Lawyer’s Submissions on Ms K’s Report of 13 June 2024
Role of the Court
1.In determining whether to make a particular parenting order, the Court has a statutory duty to regard the best interests of the children as the paramount consideration: s.60CA Family Law Act 1975 (Cth). Subject to obligations to accord procedural fairness to all interested parties, this would include considering the best parenting arrangement for the children, irrespective of how the proposed arrangement arises: U v U (2002) 211 CLR 238 at 260.
2.Against this statutory background, the Mother’s submissions of 10 June 2024 do not assist her in impugning either [Ms K]'s report as a whole, or the recommendations therein. It is common ground that [Ms K] was not appointed as a single expert report writer for the proceedings. That role fell to [Ms L]. The contents of [Ms L]'s are to be considered and weighed like any other piece of evidence adduced in the proceedings, including [Ms K]'s report: In the Marriage of Hall (1979) 5 Fam LR 609 at 615. Neither [Ms L] nor [Ms K] are adjudicators and their functions as witnesses do not usurp the Court’s role or judge’s functions at trial: Klein & Klein [2010] FamCAFC 150 at [241]; In the Marriage of Hall (1979) 5 Fam LR 609. In any event, all parties had the opportunity to challenge the evidence of both [Ms K] and [Ms L] under cross-examination at the hearing: Robards & Miller [2013] FamCA 852 at [142]. To the extent that one or both have expressed opinions as to what living and spend time arrangements are in the best interests of the children, those are relevant considerations to be taken into account by the Court in determining what final parenting orders to make in this case.
Trial Directions made on 18 March 2024 by Her Honour Judge M Neville
3.All parties appeared legally represented at the above court event following which Her Honour made orders including trial directions to ready the matter for final hearing commencing 20 May 2024. Notations C(g) and E(d) to the Orders made on 18 March 2024 relevantly state that “Family therapist [Ms K] has prepared a report” and critically, “The parties agree that no issue arises with the family therapist giving evidence in the proceedings.” There is no evidence to suggest that any of the parties’ legal representatives acted otherwise than in accordance with their instructions in causing these notations to be made as part of these orders. The Mother’s conduct in agreeing to [Ms K]'s preparation of a report and being called to give evidence is such that she ought to be estopped from challenging the admissibility of [Ms K]'s report under the FCFCOA (Family Law) Rules: Grundt v Great Boulder Proprietary Gold Mines Ltd (1938) 59 CLR 641 at 674-676. In any event, the Mother’s complaint while couched in terms of its admissibility and/or weight, appears to in fact be a disagreement with [Ms K]'s opinion that both children should live with the Father, and for [Y] to spend no face-to-face time with the Mother for a period of time. For the reasons stated above, the question of live with and spend time arrangements are an issue to be determined by the Court.
[Ms K] is qualified to give the opinions set out in her report: Exhibit NA-1
4.[Ms K]'s qualifications and experience have been set out in her CV which was annexed to her affidavit of 2 May 2024. Given the qualifications held by [Ms K], the type of tasks undertaken by her in her professional capacity, and her areas of expertise, it is evident that [Ms K] is qualified to provide expert opinions as to the ideal parenting arrangements for the subject children. None of the questions posed by the Mother to [Ms K] under cross-examination or in her submissions constitute a sufficient attack on her skills, experience or qualifications such that the Court would accord her opinions little or no weight: cf. Dasreef v Hawchar (2011) 243 CLR 588 at [35].
5.While no issue was taken with [Ms L]'s qualifications, several difficulties with the factual bases for her recommendations emerged because of the evidence given at the hearing, such that her recommendation for [Y] to remain living with the Mother cannot be given much, if any, weight. These were the subject of the ICL’s written submissions in chief dated 6 June 2024 at [11]-[17].
Written Submissions on behalf of the Applicant Husband/Father of 21st June 2024
…
[Ms K]'s Report
31.The Mother takes objection to [Ms K]'s views in her report being accepted by the Court.
32.Both parties agreed to [Ms K] being a witness in the proceedings pursuant to the attached orders dated 18 March 2024, which note that the Family Therapist was an agreed witness in the matter and at Notation E(d) that the parties agree that no issues arise with the family therapist giving evidence in the proceedings.
33.The report by the Family Therapist was provided to the ICL after the Family Therapist approached the ICL offering to provide a report. Order 2 of the Orders dated 5 October 2023 gave the ICL leave pursuant to Section 10D(4)(f) to assist the ICL with their role. Our client paid for the report after the mother consented in writing to the report being prepared.
34.The Father never held [Ms K] out to be a single expert, but she is the family therapist appointed by consent in the proceedings, who prepared a report and was a witness at trial with the consent of both parties.
Consideration & Disposition: Ms K’s Report
Issues and assessment of “risk” (not necessarily relating to any physical or sexual abuse) may be relevant to a parent’s general parenting capacity.[138] In this regard, it is useful to record comments, now of a little time ago, from the decision in Kress, where Goldstein J said, at 319:[139]
Given the overriding consideration of the welfare of the child, the court must consider the conduct of the parents, not with a view to rewarding one or punishing the other, but to ascertain from such conduct whether the welfare of the child will be better served in the custody of one or the other.
[138] Among other places, see the Full Court decision in Partington v Cade (No.2) (2009) 42 Fam LR 401 at [48] and [[56].
[139] In the Marriage of Kress (1976) 13 ALR 309.
Q. Consideration & disposition – Parenting
I have already commented on the thoroughness and insight of the ICL’s submissions, and that I accept and adopt them. Doing so does not, of course, absolve the Court from setting out its own reasons that are considered to be in the best interests of the children. The detail of the submissions by the ICL and by the Father clearly assist in making it possible for the Court’s reasons to be more succinct than is perhaps usually the case.
First, regarding parental responsibility and relevant decision-making, for three reasons, that responsibility must reside with the Father, subject only to him consulting briefly with the Mother, in advance of any major long-term issue regarding the children. The decision-making responsibility must be with the Father because, in my view, (a) he has the greater insight into the needs of the children; (b) the Mother’s relationship with X is completely fractured and, at this stage, borders on being irrecoverable. X cannot, and will not, return to live with the Mother. Such would be an impossible and useless Order, which would not be obeyed or fulfilled by X, whereas the Father has a good (and intact) relationship with both children; and (c) the co-parenting relationship between the parties is also completely fractured. In such circumstances, the only logical and practical course, and in the best interests of the children, is for the Father to have sole parental decision-making responsibility, qualified only (as noted earlier in these reasons) by him consulting with the Mother no less than 14 days beforehand, except in cases of emergency.
It also follows from the evidence and my observations on it, particularly in the light of the evidence from both Ms K and Ms L, that there is no evidence at all that (as the Mother suggested) there is any alienation of X’s relationship from the Mother as a result of the Father’s actions. The evidence of Ms K, and from X herself, make plain the reasons for the estrangement between Mother and daughter. It follows from this, and all the evidence before the Court, that I do not consider there to be any risk in the future of any possible alienation of Y from the Mother in the event that he lives predominantly with the Father. As the Father’s Orders make plain, it is proposed that Y will spend regular time with his Mother.
This summary of factors regarding parental responsibility and decision-making are also relevant to the considerations of the Court set out in s.60CC(2).
Secondly, regarding the considerations in s.60CC(2), very summarily I note the following:
(a)In the light of all of the evidence before the Court, including having regard to the concerns about Y’s significant absences at school, and the school records reporting on his lack of preparedness for school together with him being hungry, the safety and general well-being of both children is best supported and promoted by both of them (i) living together – which is supported by both experts – and (ii) living with the Father. Likewise, the complete estrangement between X and her Mother precludes the Mother and daughter living together. The only genuinely “viable” option for the children to live together is with the Father. The Court accepts the Father’s evidence, supported by both experts and the other evidence recorded above, that he is able, and readily capable of caring for the children and providing for their needs. He has the practical “support” of a live-in au pair who is well-known to both children. In my view, he will also promote the children’s relationship with the Mother. In noting these matters, I am conscious of an earlier Apprehended Domestic Violence Order against the Father, which was taken out when the parties were together. There has been no such Order (or similar, general allegations) since the parties separated;[140]
(b)To repeat: X has made it plain that she does not have, and does not wish to have, any relationship with her Mother. Hopefully, in time, and with some agreed ongoing therapy, this might change. Y expressed a view to spend equal time with both parents. The Orders proposed by the ICL, which are supported by the Father, relevantly provide appropriate “spend time with” arrangements for the children and the Mother. This is also in circumstances where the “transition” arrangements proposed by Ms K (discussed above) and supported by the ICL, in my view, are in Y’s best interests. These transition arrangements will generally provide for Y’s move to live primarily with the Father, and for a short period of time he will not spend any time with the Mother but will speak with her as provided for in the ICL’s Orders until the spend time with arrangements actually “kick in”;
(c)The matters already canvassed in these reasons, the evidence from both experts, together with the submissions of the ICL and the Father, relevantly address the developmental, psychological, emotional and cultural needs of both children;
(d)The reasons set out above, as well as the summary in this section, relevantly address issues of “capacity” of the Father, and the difficulties the Court has found regarding the Mother’s capacities on various and multiple fronts;
(e)I have noted already that the Father will, in my view, properly promote the children’s relationship with the Mother.
[140] The Mother’s detailed description of “difficulties” during the relationship, including alleged anger issues and domestic violence, are set out at pars.69 – 117 of her trial Affidavit, which includes reference to the “AVO” at pars.104-109.
To be terribly repetitious, in addition to the reasons of the Court, I accept and adopt the submissions of the Father and the ICL. Accordingly, I make parenting Orders as proposed by the ICL (supported by the Father) as being in the best interests of the children.
R. Outline of Principle – Property
Regarding “property”, I note the following general principles.
In Chapman v Chapman, the Full Court said, firstly at [19] – [21] (Strickland and Murphy JJ; Bryant CJ agreeing, at [1] – [9]):[141]
[19] Section 79 demands a consideration, separately, of all of its requirements without conflation. Provided a trial judge has done so, and the reasons demonstrate that this has been done, no error is demonstrated by a failure to follow a particular order in doing so. Further, the breadth and depth of the consideration of the s.79(2) issue, and the extent of an adequate exposition of it in the reasons, will vary from case to case. In that respect, the plurality in Bevan said, at [82], that the separate s.79(2) issue will, “...in many cases ... [be] ... effectively answered in the affirmative by the way the parties present their cases.”
[20] Each of those conclusions conforms entirely with what was said about those issues by the High Court in Stanford v Stanford (2012) 247 CLR 108.
[21] First, it is “...not possible to chart [the] metes and bounds” of the relevant discretion. Just as importantly, it was recognised specifically that the characteristics of individual marriage unions, in so far as they acquire, hold and deal with property, differ. In “many cases”, the union is underpinned by “...stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of the husband and wife during the continuance of their marriage” (Stanford, at [41]). And, in “many cases”, (but, not all) the “...just and equitable requirement is readily satisfied...” by the fact of separation: “[i]t will be just and equitable to make a property settlement order ... because there is not and will not thereafter be the common use of property by the husband and wife” (Stanford at [42]).
[141] Stanford v Stanford (2012) 247 CLR 108; Chapman v Chapman (2015) 51 Fam LR 176
Regarding matters of “weight”, also in Chapman, the Full Court said, at [64]:
“...what is ‘plainly wrong’ will vary in the eyes of different beholders” and also the fact that the “...functions and purposes of the Court ... [involve] ... difficult and evaluative decisions...” such that “...any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions”. (CDJ at [186(2)], per Kirby J).
In AJO & GRO, at [46], subject to the matters outlined from Stanford and Bevan above from Chapman, the regular “four-step” process will be undertaken here.[142] That process begins with (i) the identification and value of the net property of the parties, (ii) assessment of the contributions of the parties under s.79(4), (iii) consideration of the factors under s.75(2), and finally (iv) consideration and determination of what Orders are just and equitable between the parties in all of the circumstances, having regard to all the evidence and in the light of the principles outlined.
[142] AJO & GRO (2005) 33 Fam LR 439.
“Contributions” were a vexed issue in this matter, albeit in a limited number of respects. It is important therefore to note the following from Fields v Smith, where the Full Court said (Bryant CJ and Ainslie-Wallace J; May J agreeing), at [75] and [168] (emphasis added):[143]
[75] … As we have already said, there is no requirement to attribute different percentages to different periods in the relationship. Indeed the Full Court has cautioned against it: see Dickons & Dickons(2012) 50 Fam LR 244, Lovine & Connor and Anor (2012) FLC 93-515 and Bolger & Headon [2014] FamCAFC 27 where the Full Court said at [28], “[d]oing so ... is not consistent with a holistic assessment of the parties’ contributions which is what s.79(4) requires.” It is only if error can be demonstrated in the overall result that the appeal would succeed.
[168] … the task is to consider the contributions holistically over the whole period from the commencement of cohabitation to trial and the analysis requires the court to weight all of the contributions of all types prescribed by s.79(4) made by both parties across the entirety of the relationship until the time of hearing, including the post-separation period.
[143] Fields v Smith (2015) FLC 93-638; (2016) 53 Fam LR 1.
Because of the vagaries outlined in the troubled and often opaque evidence in this matter, I should note the further comments by the Full Court in Dickons v Dickons regarding the evaluation of “contributions.”[144] First, at [18] – [22], the Full Court said (emphasis added):
[18] Any and all such contributions, whether or not they sound in, or are directly linked to, the property available for distribution, should be considered and assessed together with the nature, form and extent of all other contributions of all types contemplated otherwise by s 79(4).
[19] That is true of assets or income generated within the relationship and it is equally true of assets or income coming from outside of the relationship (for example, as here, in the form of inheritances). In the same way, s 79(4) specifically requires the Court to take into account contributions made to the welfare of the family (and substantively and “...not in any merely token way...”; see, Mallett v Mallett (1984) 156 CLR 605 at 636 per Wilson J) notwithstanding that those contributions may not be, or cannot be seen to be, directly linked to the available property at trial, or any increase or decrease in the value of the property.
[20] Put another way, consistent with authority, the s 79 discretion involves as a necessary requirement that “... trial Judges weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such an assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.” (In the Marriage of Aleksovski (1996) 20 Fam LR 894 at 903). In Aleksovski, Kay J outlined the well-known “gold bar” analogy and said “[w]hat is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship” (at 83,443).
[21] Those same principles can be expressed as saying that the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applies, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79. That task is also undertaken by reference to the nature and form of the particular marriage partnership manifested by the particular circumstances of this particular marriage. Is it, for example, a relationship, as Deane J put it in Mallett at 640-641 “...where the parties have adopted the attitude that their marriage constituted a practical union of both lives and property...” or is it, for example, a union where parties lived very separate domestic and financial lives?
[22] The analysis just referred to might, obviously enough, also involve an examination of when contributions were made and the use made of contributions. But that is quite different to attributing to, or searching for, a necessary causal connection between contributions and the available property as a requirement for a particular contribution having significance in the overall assessment of what is just and equitable.
[144] Dickons v Dickons (2014) 50 Fam LR 244.
Regarding the dangers of attributing “percentages” to specific contributions, the Full Court forcefully noted, at [23] – [26] (emphasis added):
[23] We wish also to refer to the approach of the Federal Magistrate in attributing percentages to differing periods within the relationship, or types of contribution made. There is in our view little to be gained, and much to be said against, approaching the task of assessing contributions by attaching percentages to components of it. (The same, it might be said, applies to attributing a percentage to each of the relevant s 75(2) factors).
[24] There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
[25] Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “...giving over-zealous attention to the ascertainment of the parties’ contributions...” (Norbis v Norbis (1986) 161 CLR 513 at 524) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
[26] The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
As the Full Court noted in Dickons, the issue is less a matter of the “erosion” of initial and perhaps large contributions, and more about questions of “weight”. Likewise, regarding those early contributions being considered as a “springboard” for later financial matters, as set out in the extracts above, again the Full Court in Dickons said that the appropriate course is to look at all contributions in a “holistic” manner for the purposes of determining what Orders are ultimately “just and equitable.”
In accordance with multiple other, earlier authorities, in Chapman, at [39], the Full Court said (emphasis added):
The consideration of the relevant matters referred to in s.75(2) of the Act, pursuant to s.79(4), like the assessment of contributions, is holistic. Also, like the assessment of contributions, it is not an accounting exercise.
In Hall v Hall, at [57], the High Court said:[145]
Section 75(2)(o) plainly extends to any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account as showing that a party to the marriage is or is not able to pay spousal maintenance or is or is not able to support himself or herself. The paragraph has accordingly long been correctly interpreted by the Family Court as permitting consideration by a court of "all of the financial matters which are relevant to [a] particular case". Nothing in the language or structure of s.75 prevents a fact or circumstance which falls within s.75(2)(o) being also a fact or circumstance which gives rise to a matter under another paragraph of s.75(2), including s.75(2)(b).
[145] Hall v Hall (2016) 257 CLR 490.
Although the facts of the matter in Hall related to a contest regarding spousal maintenance, the comments regarding s.75(2) are not confined exclusively to Applications of that kind.
S. Consideration & disposition – Property
The property pool as proposed by the Husband (filed as ‘Balance Sheet’ 13th May 2024) was not challenged by the Wife. Accordingly, I accept it as properly representing the asset pool. The former marital residence is the largest single asset in the pool. The Balance Sheet is set out in Annexure B.
It follows from that outline and description of the property pool (and for the reasons set out above) that, to an overwhelming degree, the financial contributions to the relationship came from the labour of the Husband as a healthcare professional. None of this is to diminish the non-financial contribution by the Wife as the primary care of the children in their early years. As they got older, on the evidence which I have accepted, there was a growing non-financial contribution by the Husband to the care of the children, to the degree that his long labours at work allowed.
There can be no doubt that it was by virtue of the Husband’s labour and financial contribution that the former marital residence was acquired and has remained as part of the asset pool, notwithstanding a range of financial stresses in recent times as noted above and in the evidence of the Husband and in submissions.
I do not, and cannot accept, the Wife’s submission that her contributions were equivalent to those of the Husband. Indeed, in her Case Outline, at par.48, it was asserted that the [Wife] “contributed 85% to acquisition of [the] property.” There is no evidence to support such an astonishing submission, and much evidence to refute it. To speak generally, I accept the Husband’s submissions that contributions favoured him to a significant degree.
I accept that, again based on the Husband being the sole or primary income-provider during the relationship that he paid for household expenses as well as for all holidays, which were regular and usually overseas (e.g. Country U, Europe) and expenses relating to them. I also accept, because it is supported by the evidence, that the Husband has made payments regarding the four mortgages secured by the former marital residence. I do not accept the Wife’s submission that she contributed financially to the relationship because the funds she drew from the Husband’s business derived from his labour, not hers.
I accept, on the unchallenged evidence, that the Husband has significant unpaid tax liabilities that have arisen, in part, because of his attempts to keep up the payments on the outstanding mortgages and also his business expenses. I do not accept the submission that the Husband has a somewhat limited “work life” ahead of him. In my view, the Husband, aged in his early to mid-50s, is clearly a dedicated and talented healthcare professional who has earned, and remains capable of earning for many years, a very significant income. His evidence was that, before he scaled back his business because of the pressures of the litigation and of looking after X, he was earning approximately $1.3 million annually. Strictly speaking, accepting that he is quite a few years younger than the Wife, the likelihood is that he will continue working as a healthcare professional for at least the next 15 years or so.
The Wife’s evidence is that as a healthcare professional, she is qualified and will likely be employed on a full-time basis, earning a modest but reasonable income. However, this is in circumstances where she is currently employed only on a casual basis.[146] She is aged in her early 40s, and therefore can be expected to work for a significant period of time, perhaps at least for 20 or so years. Like the Husband, who is older aged 56 years, neither party has any health issues to speak of. The relationship was for approximately 10 – 12 years.
[146] The details of the Wife’s income and her work schedule are set out in par.232-233 of her Affidavit, filed 17th May 2024. Some other details are, of course, set out in her Financial Statement, filed 30th January 2024.
In her Amended Response, the Wife originally sought Orders for adjustment of child support and an Order for spousal maintenance. In the course of the trial, the Wife seemed to accept that the Court did not have jurisdiction to make Orders in relation to child support, absent the usual process of determination by the Child Support Agency, then any appeal to the Administrative Appeals Tribunal, after which only on questions of law could there be any Orders ultimately made by this Court.
The only submissions made regarding spousal maintenance were (pars.37-38) stated:
36. The Mother has a need for a reasonable standard of living.
37. Mother seeks spousal maintenance from Father of $1500 pw.
38. Mother has a need for maintenance while she establishes her career.
These submissions were plainly little more than declaratory statements and did not assist the Court at all.
At the paragraphs of her trial Affidavit already mentioned (232-233), summarised, the Mother said that she expected to complete her internship by the end of the year and then to become a registered healthcare professional. She also deposed to previously having full-time employment, still as an intern, as an educator, where she was earning the equivalent of $73,000 per year. The submissions made on the Wife’s behalf set out in the previous paragraph are unsupported by evidence or authority.
Further, the Mother’s submissions regarding spousal maintenance did not address, for example in the alternative or to challenge the Father’s Orders sought, parenting in so far as they related to the care of children as a matter for consideration in the property side of the matter under s.75(2) or equivalent provision. To be fair, little was also said in the Husband’s submissions in this regard also. In this regard I simply note the parenting Orders to be made where both children will live primarily with the Father, and Y will spend regular time with the Mother. X will spend time with the Mother according to her wishes. Thus, the much greater parenting responsibilities will fall to the Father.
Subject to only a modest adjustment in the amount payable to the Wife so that she will receive a payment from the Husband of $395,000 (as opposed to the $350,000 proposed by the Husband), the property Orders sought by him are, in my view, just and equitable. The increased “pay-out” figure to the Wife, in my view, more accurately reflects the contributions by her to the relationship especially regarding the care of the children in their younger years. I note that, according to the Balance Sheet provided by the Husband, which I have accepted, the payment to the Wife of $395,000 also needs to be seen in context where the net asset pool totals $1,178,713.
In short, and in addition to the increased pay-out figure to the Wife, the property Orders provide for the Husband to retain the former marital residence and, of course, to be solely responsible for the multiple mortgages, as he has been in any event. In default of this course, the property is to be sold (as set out in the Husband’s Orders) and the net proceeds of sale divided so that the Wife receives the sum indicated and the balance paid to the Husband.
In all of the circumstances, absent any Application being made within 7 days, each party should pay their own costs.
I certify that the preceding two hundred and thirteen (213) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 18 July 2024
ANNEXURE A
List of Tendered Documents
Documents Tendered in Court
·Exhibit ML1, 22nd May 2024 - Report of Ms L 28/06/2023
·Exhibit MK1, 22nd May 2024 - Report of Ms K 03/05/2024
·Exhibit MF1, 23rd May 2024 – Medical certificate of Y 23/05/2024
·Exhibit ICL1, 23rd May 2024 – Email from ICL to Associate Inbox at 10.20AM on 23/05/2024
Index to the Joint Tender Bundle of 5 June 2024
Joint Schedule of Items to be Tendered
No
Doc Name
Date
Pages
1
DCJ Helpline Assessment
07-01-2023
6 - 15
2
DCJ Helpline Assessment
03-04-2023
16 - 22
3
DCJ Helpline Assessment
04-04-2023
23 - 27
4
Files Notes from M School - 1 August 2022, 13 February 2023 and 27 February 2022
01-08-2022 to 27-02-2023
28 – 28
5
Counselling Notes from M School - Meeting with School and Mother
05-04-2023
29 - 29
6
School Absentee Record for Y
01-08-2023 to 08-03-2024
30 - 31
7
Session Notes with Ms NN of YY Psychology and Father
31-05-2023
32 - 33
8
Clinical Notes from Dr BB - Meeting with X and Father
11-05-2023
34 - 36
9
Progress Notes from VV Hospital for the Mother
Early 2023
37 - 38
10
Mental Health Care Plan for the Mother
Early 2024
39 - 41
11
Emails between Mother and Ms K on 21 October 2023 and 31 October 2023
10-10-2023 to 31-10-2023
42 - 43
12
X’s letter “Reasons I hate my mom and stories as well” early 2023
early 2023
44 - 45
13
Letter from Dr ZZ about Y’s allergies
24-01-2024
46 - 46
14
Purchase of units
2020
47 - 72
15
Dr AB Report
18-05-2023
73 - 73
16
Texts with AC Business – early 2023
early 2023 to
74 - 76
17
Texts between mother and father between 9 and 11 March 2023
09-03-2023 to 11-03-2023
77 - 82
18
Letter from M School with individual plan attached
14-03-2023
83 - 85
19
Letter from M&L to FGD to […] re Mother's substance abuse & care of children
22-03-2023
86 - 89
20
Letter from M&L to Mother re property
05-05-2023
90 - 91
21
Dr BB Joint Assessment Report - May 2023
05-2023
92 - 98
22
Text message from X to father re mum turning up at sports & father's reply - 8 & 9 May 2023
08-05-2023 to
09-05-2023
99 - 99
23
Letter from M&L to […] re mortgage payments
06-06-2023
100 - 102
24
Letter from M&L to […] - including text sent by Mother to mutual friend
20-06-2023
103 - 105
25
Letter from M&L to […] & ICL re urgent parenting
28-08-2023
106 - 108
26
Letter from ICL to M&L & […] re urgent issues raised about mother and care of Y
08-09-2023
109 - 110
27
Letter from M&L to […] re property – Disclosure
15-08-2023
111 - 114
28
Letter from M&L to […] encl Disclosure re Mortgages
07-09-2023
115 - 116
29
Letter from LR to M&L & ICL re medication - enclosing Letter from psychiatrist
06-12-2023
117 - 118
30
X's letter
03-12-2023
119 - 119
31
Statutory Body Assessment Outcome (Mr Mattina)
18-05-2023
120 - 121
32
Letter from Dr AD to Father re Y
13-12-2023
122 - 124
33
Wife's CBA Account #...04 Statements
01-02-2023 to
29-01-2024
125 - 165
34
CBA summary wife's account
01-02-2023 to
28-01-2024
166 - 177
35
Wife's Westpac Account #...27 Statements
22-06-2023 to
30-11-2023
178 - 191
36
Summary of Wife's Expenditure Westpac Account #...27
22-06-2023 to
30-11-2023
192 - 197
37
ATO Statements - Husband's tax liabilities
2024
198 - 199
38
Email from Husband's Accountant re tax payable in next 12 months
08-04-2024
200 - 202
39
Market Appraisal for B Street Suburb C - March 2024
03-2024
203 - 226
40
2022 Financial Statement & Tax Return & Depreciation Schedule
2022
227 - 267
41
Share Transfer - December 2023
12-2023
268 - 270
42
Dr KK, Psychiatrist, clinical notes re mother, recommending reducing dosage and that noting mother not prepared to accept current treating doctor’s advice
11-04-2023
271 - 271
43
Mother’s Medicare Patient History report and Pharmaceutical Benefits Scheme records
12-09-2019 to
08-03-2023
272 - 280
44
Mother’s Medicare Patient History report and Pharmaceutical Benefits Scheme records
17-08-2023 to
25-03-2024
281 - 285
45
Dr AE, Psychiatrist, Clinical notes re mother – List of Appointments and prescriptions issued
2023 to 2024
286 - 287
46
DD School– Teacher feedback re X
08-04-2024
288 - 288
47
YY Psychology - Intake forms for X - April 2023
04-2023
289 - 306
48
X's session notes with Ms NN, YY Psychology
19-04-2023 to
22-06-2023
307 - 323
49
Letter from Dr KK
11-04-2023
324 - 325
50
Emails between Dr UU and Respondent Mother
04-04-2023 to
11-04-2023
326 - 327
51
Letter from Dr AE
11-10-2023
328 - 329
52
Letter from Dr AE
23-11-2023
330 - 330
53
School Counselling Notes for Y
28-03-2023 to
03-04-2023
331 - 331
54
Medicare PBS Patient Summary for Ms Falconi
01-07-2019 to
29-08-2023
332 - 334
55
Correspondence between DD School and the Respondent Father
19-03-2023 to
29-03-2023
335 - 342
56
DD School - Record of communication
24-03-2023 to
22-05-2023
343 - 356
57
Documentation regarding Y’s medical incident at school mid-2024
24-05-2024
357 - 366
58
Centrelink Request for Information
10-04-2024
367 - 368
59
Centrelink Rejection Letter
22-04-2024
369 - 369
60
Centrelink Rejection Letter (Parenting Payment)
24-04-2024
370 - 371
61
Letters from Ms AA, X’s psychologist
12-12-2017
372 - 373
62
Letters from Ms AA, X’s psychologist
18-04-2019
374 - 381
63
Letters from Ms AE, X’s psychologist
25-10-2023
382 - 383
64
Photo of Mother's Day card from X
2022
384 - 385
65
Emails with accountants re Mattina Services Pty Ltd deregistration
09-04-2024 to
12-04-2024
386 - 387
66
Notice of Assessment for Mr Mattina
30-06-2020
388 - 388
67
ATO Print instalment for Ms Falconi
10-2023 to
12-2023
389 - 389
68
ATO Statement of Account for Ms Falconi
01-11-2023 to
01-12-2023
390 - 391
69
ATO Statement of Account for Ms Falconi
01-12-2023 to
01-03-2024
392 - 395
70
ATO Letter of Demand to Ms Falconi
17-11-2023
396 - 398
71
Q Company payslips October 2023 – April 2024
10-2023 to
04-2023
399 - 404
72
Email from Regulatory Agency re outstanding progress reports
17-05-2024
405 - 407
73
Support letter from Ms E
28-04-2023
408 - 408
74
Support letter from Ms F
05-05-2023
409 - 409
75
Support letter from Ms G
15-02-2024
410 - 410
76
Support letter from Q Company
30-10-2023
411 - 411
ANNEXURE B
Balance Sheet filed 13 May 2024 by the Applicant
Ownership
Description
Applicant
Respondent
Assets
W
B Street, Suburb C NSW
$2,225,000
H
Motor Vehicle 2
$53,000
H
Motor Vehicle 3
$42,000
J
Motor Vehicle 1
$90,000
J
CBA account #...05
0
H
CBA account #...56
$23,141
H
CBA account #...09
0
H
CBA account #...29
$7,005
H
CBA account #...07
$980
J
D Bank offset #...34
$0
W
CBA account #...07
$0
W
CBA accounts #...04 & #...4 as at
29.1.24
$0
W
Westpac accounts #...34 & #...27 as at 29.1.24
$0
W
Household contents in wife’s possession
0
H
120,000 units in R Centre Unit Trust
$200,000
H
Monies owned by husband’s brother
80,000
W
Funds from D Bank Offset #...34
$210,000
Total
$2,931,126.00
$ -
Liabilities
Ownership
Description
Applicant's Value
Respondent's
Value
J
D Bank mortgage #...82 as at 2.05.24
$1,039,497.40
J
D Bank mortgage #...90 as at 2.05.24
$81,969.11
J
D Bank mortgage #...09 as at 2.05.24
$66,007.10
J
D Bank mortgage #...16 as at 2.05.24
$184,34.01
H
CBA MasterCard #...93 as at 3.05.24
$5,724.00
J
Car Finance company as at 24.4.23
$70,000
H
Loan Motor Vehicle 2
$30,000
H
D Bank – R Centre loan #...00 as at 2.05.24
$206,603.58
J
Unpaid tax – ATO as at 20.12.23
$5,066
H
Anticipated tax - FY 2023
$74,629
H
Unpaid tax Mr M – ATO as at 2.05.24
$110,567
W
Unpaid tax Ms F – FY2022 and 2023
50,000
Total
$1,924,412.20
$ -
TOTAL EXCLUDING SUPER
$1,006,713.80
$ -
Superannuation
Member
Fund & Interest
Applicant's Value
Respondent's Estimated value
H
Super Fund 1 as at 7.11.2023
$70,915
W
3 Super Funds
$100,896
Total
$171,811.00
TOTAL INCLUDING SUPER
$1,178,524.80
0
16
2