NEWPORT & NEWPORT

FAMILY COURT OF AUSTRALIA

NEWPORT & NEWPORT

[2018] FamCA 472

FAMILY LAW – CHILDREN – Where the husband seeks and order for sole parental responsibility and an order for the children’s time with the wife to be supervised – Where the wife seeks an order for sole parental responsibility and no order as to the time the children spend with the husband – Where the husband has withdrawn from spending time with the children since February 2017 – Where the husband alleges that the wife has alienated the children – Court finds there is no evidence of the wife alienating the children from the husband – Court finds the children should recommence spending time with the husband with the assistance of therapeutic counselling – Orders made for the wife to have sole parental responsibility – Orders made for the children to live with the wife.

FAMILY LAW – FAMILY VIOLENCE – Where one of the children was witness to an incident of family violence – Where the children have been damaged as a result of witnessing confrontation between their parents – Where an incident occurred between one of the children and a member of the paternal family – Orders made restraining the husband from bringing the children into contact with a member of the paternal family for 12 months – Orders made for the husband to attend family therapy before spending time with the children – Orders made for the children’s initial time with the husband to be supervised.

FAMILY LAW – PROPERTY – Adjustment of property pursuant to s 79 – Where the wife seeks sole ownership of the matrimonial home – Where the husband seeks sale of former matrimonial home – Orders made for a 16 per cent adjustment to the wife – Orders made for the husband to transfer his share of the former matrimonial home to the wife and the wife to pay a sum to the husband – Orders made that in the event that the wife is unable to pay the husband the former matrimonial property be sold.

FAMILY LAW – CHILD SUPPORT – Where the wife seeks an order for a lump sum child support payment – Where the wife seeks payment of child support arrears or security for payment – Where the husband seeks an order by way of departure from the administrative assessment from the Department of Human Services – Where the husband has been unreliable with his child support payments – Where the Court has not been addressed on the relevant issues – Where the Court cannot make a security order in isolation – Court not satisfied legislative preconditions for the order of a lump sum payment are met – Application of the wife for lump sum payment dismissed – Orders made for the wife to receive payment of the arrears – Application of the husband dismissed.

Child Support (Assessment) Act 1989 (Cth) ss. 116, 117, 141
Evidence Act 1995 (NSW) ss. 140
Family Law Act 1975 (Cth) ss. 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 69ZV
Family Law Rules 2004, r. 13.01
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

Atuk and Anor & Atuk [2017] FamCAFC 215
B and B (1993) FLC 92-357
Beck and Sliwka (1992) FLC 92-296
Bevan & Bevan (2013) FLC 93-545
Briese and Briese (1986) FLC 91-713
Campbell v Kuskey (1998) FLC 92-795
Chorn & Hopkins (2004) FLC 93-204
Cotton & Cotton (1983) FLC 91-330
DP v Commonwealth Central Authority (2001) 206 CLR 401
Dundas & Blake (2013) FLC 93-552
Finton and Kimble [2017] FCWA 106
G & C [2006] FamCA 994
Godfrey & Sanders [2007] FamCA 102
Graf-Salzmann and Graf [2015] FCWA 68
Grefeld & Grefeld & Anor[2010] FamCA 504
In the marriage ofShaw and Shaw (1989) FLC 92-030
Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage (2013) ALR 532
Livesey and Jenkins (1985) 1 All ER 106
Luckie and Luckie (1989) FLC 92-036
Mayne & Mayne (2011) FLC 93-479
Marchant & Marchant [2012] FamCAFC 181
McCall & Clark (2009) FLC 93-405
Mazorski v Albright (2007) 37 Fam LR 518
Moose & Moose (2008) FLC 93-375
Newport & Newport & Ors [2017] FamCA 853
Omacini & Omacini (2005) FLC 93-218
Petruski & Balewa [2013] FamCAFC 15
Raine & Creed [2013] FamCA 362
Rodgers & Rodgers (No 2) (2016) FLC 93-712
Salib v Gakas; Newport Pacific Pty Ltd v Salib [2010] NSWSC 505
Stanford v Stanford (2012) 247 CLR 108
Stoddard & Glover [2016] FamCA 674
VR & RR (2002) FLC 93-099

APPLICANT:

Ms Newport

RESPONDENT:

Mr Newport

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

FILE NUMBER:

SYC 2571 of 2015

DATE DELIVERED:

22 June 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

16-24 October 2017, 12-14 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton SC

SOLICITOR FOR THE APPLICANT:

Pearson Emerson Meyer Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT:

Mills Oakley Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Longworth

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

THE COURT ORDERS THAT:

Parenting orders:

All previous parenting orders are discharged.
The wife has sole responsibility for the care, welfare and development of C, born … 2005 and D born … 2005 (“the children”), provided that the wife:
(a)Notify the husband of any proposed decision relating to the long term care and welfare of the children about:
(i)Proposed decisions about which school the children shall attend; and
(ii)Proposed decisions about the long term medical issues affecting the children;
(b)Ensure such notification is given to the husband in writing and is given not less than 28 days before a final decision is made; and
(c)Take into consideration any views expressed by the husband in respect of such proposed decisions and advise the husband of her decision.
The children live with the wife.
The children shall spend time with the husband as follows:
(a)During school terms:
(i)For a period of two months from the date of compliance by the husband with order 13, from 10.00 am to 4.00 pm each alternate Sunday, supervised by E Group or other such private supervision agency as agreed between the parties;
(ii)Following compliance with order 4(a)(i) for a further period of two months, from 10.00 am to 4.00 pm each alternate Sunday, with the time from 10.00 am to 1.00 pm to be supervised by E Group or other such private supervision agency as agreed between the parties;
(iii)Following compliance with order 4(a)(ii), for a further period of two months, from after school Friday until 5.00 pm Saturday each alternate weekend; and
(iv)Following compliance with order 4(a)(iii), from after school Friday until 5.00 pm Sunday each alternate weekend;
(b)During school holidays:
(i)For the period before order 4(a)(iv) comes into effect, in accordance with order 4(a); and
(ii)For the period after 4(a)(iv) comes into effect:
A.During holidays at the end of school terms 1, 2, and 3, from after school on the last day of term for four consecutive nights until 5.00 pm on the 5th day; and
B.During the Christmas school holidays, for two periods of four consecutive nights as agreed between the parties, and failing agreement from 10.00 am on the 1st and 5th Saturdays of the school holiday period until 5.00 pm on the 5th day of each block.
The husband be responsible for and pay any costs of supervision of the children’s time with him.
For time events which occur between the children and the husband pursuant to Orders 4(a)(i) and 4(a)(ii), the husband shall not involve any member of his extended family with the exception of his brother, Mr V Newport.
Notwithstanding any other order, the children shall spend time with the wife from 10.00 am until 5.00 pm on Mother’s Day and any ‘time’ arrangements which would have occurred between the children and the husband pursuant to these Orders are suspended from 10.00 am on that day.
Commencing from 1 September 2018, the children shall spend the following special occasion time with the parents as follows:
(a)With the husband from 9.00 am on Christmas Eve until 2.00 pm on Christmas Day in odd numbered years and from 2.00 pm on Christmas Day until 5.00 pm on Boxing Day in even numbered years;
(b)With the wife 9.00 am on Christmas Eve until 2.00 pm on Christmas Day in even numbered years and from 2.00 pm on Christmas Day until 5.00 pm Boxing Day in odd numbered years;
(c)Notwithstanding any other order, the children shall spend time with the husband from 10.00 am until 6.00 pm on Father’s Day; and
(d)The parent who does not otherwise have care of the children on their birthday will spend time with the children from after school until 7.00 pm if it is a school day or from 1.00 pm to 5.00 pm if it not a school day.
In relation to changeovers:
(a)the husband shall collect the children from school or if not a school day, the front verge of the wife’s residence at the commencement of the husband’s time with the children;
(b)the husband shall return the children to the front verge of the wife’s residence at the conclusion of his time with the children; and
(c)For changeovers at the wife’s residence, the husband shall remain in his car and text the wife when he arrives.

Family therapy

The parties shall attend and participate in family therapy with a family therapist (“the family therapist”), and the wife shall facilitate the attendance of the children, as described in the following Orders 11 to 16.
The family therapy shall:
(a)address ‘Protective behaviours’ work for the children on family violence;
(b)have a focus upon the restoration of the relationships between the children and the husband;
(c)occur as recommended by the family therapist, including who participates in any particular session; and
(d)not be confidential.
Family therapist shall be Ms U of the H Group, or if Ms U is unwilling or unable to provide family therapy (or any aspect of it), with such family therapist as recommended by Ms U.
Prior to any time events occurring pursuant to Order 4:
(a)the husband shall participate in at least 2 sessions of family therapy which include the children; and
(b)provide to the wife written notice once those sessions had been completed.
The wife and the husband shall ensure that they and the children attend on the family therapist as and when directed by the family therapist and follow any reasonable request, direction or requirement of the family therapist, including but not limited to the frequency of appointments any recommendation that either parent participate in any parenting or other course or program recommended by the family therapist.
The parties shall be responsible for the costs of the appointments with the family therapist as follows:
(a)they shall each solely pay the cost associated with any session they attend individually or with the children (or either of them); and
(b)They shall each pay 50 per cent of any session attended by either or both children where no parent is present.
The Independent Children’s Lawyer have leave of the court to provide the family therapist with the Single Expert reports prepared by Dr F dated 20 June 2016 and 9 May 2017 as well as a copy of the judgment of Justice McClelland and these orders.

Additional Orders

The wife shall authorise any school attended by the children provide the husband with copies of all school reports, newsletters, information about school photographs and other information normally provided to parents of children attending that school.
The Independent Children’s Lawyer have leave to provide a copy of these orders to the children’s school.
When the husband has commenced spending time with the children in accordance with order 4(a)(iii) (but not before), the husband shall be entitled to attend the following events involving the children:
(a)Sporting fixtures in which either child is participating; and
(b)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
Each party shall notify the other as soon as possible and in any event within four hours of any serious injury or illness suffered by the children whilst in that party’s care.
The parties shall keep each other informed of their respective addresses and telephone numbers and any change to the same is to be advised to the other party within 7 days of any such change.
The parties are restrained from making critical or derogatory remarks about the other parent or their family in the presence or hearing of the children and shall use their best endeavours to ensure that no member of their family makes critical or derogatory remarks about the other parent or their family.
For a period of 12 months the husband be restrained from bringing or causing the children to come into contact with Mr J when the children are spending time with the husband.
The wife within 90 days of the date of this order pay the sum of $11,948.40 to Legal Aid NSW as her contribution to the Independent Children’s Lawyer’s professional costs.
The husband within 90 days of the date of this order pay the sum of $11,948.40 to Legal Aid NSW as his contribution to the Independent Children’s Lawyer’s professional costs.

Overseas Travel

The children's names be removed from the Airport Watch List.
The wife shall be permitted to take or send the children out of Australia for holidays and other short trips and to attend school excursions, provided that not later than 14 days prior to the children's departure overseas, the wife shall provide to the husband the dates and destinations for the children's travel, and if urgent travel is required, the wife will provide as much advance notice as reasonably possible to the husband of the children's proposed travel.
The wife is authorised to apply for and receive an Australian passport for the children without first obtaining the written consent of the husband.
If the passport agency is unable to issue a passport to D and/or C in accordance with Order 28 above, then the Wife will notify the Husband, and the Husband will do all things necessary to obtain D and C’s passports within seven days of a request by the wife and in the event he does not do so within 14 days of the wife’s request, the wife shall be at liberty to obtain a passport for D and/or C without the husband’s signature by way of the Registrar of the Court being appointed pursuant to Section 106A of the Family Law Act 1975 to execute the passport application in the name of the husband, upon the Registrar being provided with evidence of the husband’s failure or neglect to comply with this order.

Property orders:

Within 7 days, the Second Respondents do all acts and things necessary to remove caveat …3, at their sole cost.
Pending compliance with Order 3 below, the husband be restrained by injunction from doing any act or thing to further encumber the property situate at and known as Q Street, Suburb R NSW, Folio Identifier …08 (“the Suburb R Property”).
Within 3 months of the date of these Orders (“the due date”) and simultaneously:
(a)the husband do all acts and things and sign all documents necessary to transfer to the wife the whole of his right, title and interest in and to the Suburb R Property;
(b)the wife pay to the husband the sum of $441,469.25; and
(c)the husband and wife shall do all acts and things and sign all documents necessary and the wife shall pay all monies necessary, to obtain a discharge of:
(i)the Westpac Equity Access Loan Account (BSB …, account number …1);
(ii)the Westpac Rocket Account (BSB …, account number …8); and
(iii)the Westpac Rocket Account (BSB …, account number …71);
(d)the wife do all acts and things and sign all documents necessary to transfer to the husband the whole of her right, title and interest in and to;
(i)the parties’ loan to Company M, in the sum of $300,000.00; and
(ii)the parties’ loan to Company N, in the sum of $334,000.00.
In the event that the wife is unable to comply with orders 32(b), (c) and/or (d) above, then the Suburb R property shall thereafter be sold at public auction for the best price reasonably obtainable, provided that:
(a)the wife shall have the sole conduct of the sale, including choice of estate agent and conveyancing solicitor;
(b)the reserve price shall be $3,500,000.00 or as otherwise agreed by the parties;
(c)the husband shall comply with any requests made by the wife to effect the sale in accordance with these orders;
(d)upon settlement of the sale, the sale proceeds shall be distributed in the following order and priority:
(i)to pay all sale costs and expenses, including agents fees and commission, advertising, auction expenses, legal fees and conveyancing adjustments for council rates and water etc. (including reimbursement of such expenses paid up front);
(ii)to repay all monies owed in respect of:
A.the Westpac Equity Access Loan Account (BSB …, account number …1);
B.the Westpac Rocket Account (BSB …, account number …8); and
C.the Westpac Rocket Account (BSB …, account number …71);
(iii)to pay $634,000.00 to the wife in respect to the parties’ loans to the business that are assigned to the husband;
(iv)to pay 66 per cent of the remaining balance to the wife; and
(v)to pay an additional amount to the wife of $58,076.17, over and above the 66 per cent of the remaining balance in respect to arears of child support.
(vi)to pay the balance to the husband.
(e)Upon receipt of her portion of the proceeds of the sale of the property the wife shall do all acts and things and sign all documents necessary to transfer to the husband the whole of her right, title and interest in and to:
(i)the parties’ loan to Company M, in the sum of $300,000.00; and
(ii)the parties’ loan to Company N, in the sum of $334,000.00.
Forthwith, upon the making of these Orders, any Charge granted by the husband in favour of his lawyers, Mills Oakley, for legal fees, be amended to the extent that such Charge is no longer secured against the Suburb R property.
Forthwith, upon the making of these Orders, the husband and his lawyers do all acts and things necessary to remove, at their sole cost, any caveat lodged by them over the Suburb R property, by way of security of any Charge for payment of legal fees and further, that as and from the date of these Orders, each of the husband and his lawyers be restrained from lodging a caveat secured against the Suburb R property.
In default of the husband doing all acts and things and executing all such documents as are necessary to give effect to these Orders, the Registrar of the Family Court of Australia at Sydney be appointed to execute all such documents in the name of the husband and to do all such acts and things necessary to give validity and operation to such documents upon being satisfied, by virtue of an Affidavit, of the husband's failure to give effect to these Orders.
Other than as set out above, the parties shall be solely entitled, to the exclusion of the other, to all other real and personal property of whatever nature and kind in the possession, control or name of such party (including superannuation).
The husband indemnify the wife and keep the wife indemnified, in relation to all actions, claims, suits, and demands as may be made against the wife by the Second Respondents, Ms L and Mr K Newport, either collectively or separately, in respect of any alleged loans.
Within 7 days of the date of these Orders, the Respondent husband be permitted to attend upon the Suburb R property to collect his belongings and personal effects located at the Suburb R property, with the husband to provide no less than 24 hours’ notice of his intention to attend the Suburb R property and the Applicant wife shall ensure that the husband is able to gain access to the Suburb R property at the time specified by the husband, provided that the wife shall be entitled to have such person or persons present as she sees fit, at the time of the husband’s attendance at the Suburb R property.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2571 of 2015

Ms Newport

Applicant

And

Mr Newport

Respondent

And

INDEPENDENT CHILDREN’S LAWYER
Legal Aid New South Wales

REASONS FOR JUDGMENT

Introduction

This matter involves parenting and property proceedings between the wife, Ms Newport and the husband, Mr Newport. There are two children of the relationship, C born in 2005 and D, also born in 2005 (collectively, “the children”).
The husband’s parents were parties to the proceedings as the Second Respondents in relation to both the parenting and property matters until 23 October 2017. On that day their application was withdrawn and dismissed. The husband did not seek to rely on Affidavits filed in his parents’ case. As a result I have not had regard to any of the Second Respondents’ material.
The final hearing proceeded over a period of ten days, being 16 to 24 October 2017 and then 12 to 14 December 2017.
I have accepted the opinion of the single expert appointed in these proceedings to advise in respect of parenting matters, Dr F, that the children have been damaged as a result of witnessing confrontations between their parents. I have found that C witnessed a significant event of family violence perpetrated by her father upon her mother on 30 March 2015 and that D has subsequently been made aware of the incident as a result of being informed by his sister. This has impacted upon the children’s willingness to spend time with their father. Nevertheless, having regard to the totality of evidence I am satisfied that the children retain affection for their father and wish to spend time with him.
I find that it is in the children’s best interest to recommence spending time with their father, but that it should occur with the assistance of therapeutic counselling and should initially be supervised.
In respect to matrimonial property, I have determined that there should be an adjustment of 16 per cent in the wife’s favour and she should be given the opportunity to acquire the family home. In the event that is not possible, default orders provide for the property to be sold.

Background

The wife, Ms Newport was born in 1976 and is currently 41 years of age. The husband was born in 1976 and is currently 42 years of age.
The parties were married in 1999 but there is a factual dispute as to when the parties commenced cohabitation. The wife contends that the parties commenced living together in January 1997. The husband contends that the parties commenced living together in 1998. That difference has not however, impacted upon the orders I make in these proceedings.
In 1996 the husband began purchasing second hand drum equipment and refurbished the equipment before reselling it. The wife contends that she was engaged in that activity with the husband. The husband contends that he was engaged in that activity with his father, the paternal grandfather.
On 17 January 1997 the business name “Company M” was registered. During 1997 the husband commenced working full-time within the business. The husband contends that he did so in partnership with his father. The extent and nature of the paternal grandfather’s involvement in the husband’s business is an issue of significant controversy in the property proceedings.
In October 1997 the husband entered into a lease for commercial premises at Q Street, Suburb R. That property was subsequently purchased by his father.
In July 1998 the parties purchased a property at NN Street, Suburb QQ for $353,000. The parties subsequently undertook significant renovations to the property.
While the husband contends he commenced operating the business Company M with his father in 1996, the wife acknowledges that on 1 July 1999 the paternal grandfather was added as a partner to Company M. The difference in dates is not material to this decision. The main issue arises from the wife disputing that the business is a partnership.
The wife alleges that, on 30 of June 2002, the husband twisted the fingers on her left hand causing injury requiring treatment at the LL Hospital. The husband acknowledges that the wife was treated in respect to a hand injury at that time but that he was not responsible for the injury.
On 15 March 2002 the Commonwealth Bank mortgage on the Suburb QQ property was discharged.
In July 2003 the parties sold the Suburb QQ property for $635,000 and received net proceeds of approximately $620,000.
In May 2003, the parties purchased a property at Suburb WW for $891,500. Funds for the purchase were initially provided by the Westpac Banking Corporation (“Westpac”). The mortgage with Westpac was subsequently reduced when the net proceeds of the sale of the Suburb QQ property were received in July 2003.
In the period from August 2003 the husband drew down on the Westpac mortgage such that the mortgage increased between 8 August 2003 from the amount of negative $273,439 to being negative $691,061 as at 24 October 2005.
In 2005 the Suburb WW property was renovated. The husband contends during the renovation period of approximately four months, the parties lived with the paternal grandparents. The wife does not agree they stayed with the paternal grandparents for that amount of time. As the parties agree that contributions to the point of separation are equal, this difference is not material.
In October 2004 the business name “Company N” was registered. The husband contends he engaged in that business in an “equitable partnership” with his father. This is disputed by the wife.
The wife contends that on 29 June 2003, in the course of an argument, the husband threw a steel vase at her, striking the back of her head and causing a wound that required stitches. The husband acknowledges that the wife was injured on that day and required stitches at the LL Hospital but he contends that the injury occurred as result of a vase falling from the top shelf of a bedroom wardrobe onto the wife’s head.
On 30 March 2005 the parties’ two children were born. The children are currently aged 13. The wife took paid maternity leave after the birth of the children.
In late 2005 the parties contracted to sell the Suburb WW property for $1,005,000. The parties received net sale proceeds of approximately $245,000.
On 24 October 2005, the parties purchased the former matrimonial home at 13 day Street Suburb R for the sum of $1,380,000 plus stamp duty and legal fees. The purchase price was funded by a Westpac combination loan. That combination loan was with $710,000 being pursuant to a Rocket Repay Home Loan and $334,000 being pursuant to a flexible facility known as an Equity Access Loan Plan 2.
The husband contends that, in respect to the period January 2006 to 2010, he and his father agreed to advance additional profits from Company M and Company N, to assist the parties meet their financial commitments. The husband contends that the funds were provided by way of a loan from the businesses to the parties. The wife disputes this and contends that monies obtained from the business occurred in circumstances where they were operated by the husband and represented drawings to which he was entitled.
In January 2006 the wife commenced working part-time.
In the period from June 2010 the parties drew down a further amount from the Westpac loan facilities on the Suburb R property. There is a dispute as to how those funds were applied. In June 2010 the parties borrowed a further $300,000 from the Westpac Rocket Investment Loan Account.
In or around late 2010 or early 2011 the parties undertook renovations of the Suburb R property.
On 7 February 2011, $150,000 was withdrawn from Company M and paid to the husband’s father.
In May 2012 the parties refinanced with Westpac and entered into a new investment loan agreement in the sum of $966,000.
Between 8 May 2012 and 31 December 2012, the husband asserts that he periodically transferred borrowed funds between Company M and Company N and the new Rocket Investment Loan Account. The purpose, the husband contends, was to minimise interest payable on the loans while having the ability to access funds if required in the business.
On 7 December 2012 the husband transferred $39,000 from Company M Westpac Cheque Account to Westpac Rocket Statement Account 2. Further, on 20 December 2012, the husband transferred $50,000 from the Company M Westpac Cheque Account to the parties’ combination housing loan.
On 31 December 2012 the wife forwarded a letter to Westpac to cancel the flexible redraw facility on the home loan account. At or about this time the husband transferred two separate amounts of $100,000 from the redraw facility to the accounts of Company M and Company N. The husband contends the purpose of the transfer was to pay suppliers. The wife does not accept that explanation.
On 29 January 2013 the wife returned to working full-time.
In January 2014 the wife broke her left elbow while rollerblading with the children and was taken to the OO Hospital and later the TT Hospital for treatment that included surgery.
On 31 October 2014, $230,000 was withdrawn from a bank account operated by the business Company M and paid to the husband’s parents.
On 30 March 2015 a confrontation occurred between the parties at the former matrimonial home. I have found that, in the course of that confrontation, the wife was kicked by the husband in her left hand while attempting to protect her groin region. This is a significant event that resulted in the final breakdown of the parties’ relationship. It will be examined in greater detail below.
The wife attests to a further incident occurring on 4 April 2015, when she alleges that the husband verbally abused and threatened her causing the wife to contact the Suburb UU Police Station and make a statement to police.
At approximately 3:30 AM on 5 April 2015, police attended the former matrimonial home and arrested the husband. The husband was taken to the Suburb UU Police Station and served with a Provisional Apprehended Domestic Violence Order (“ADVO”).
The husband left the matrimonial home after 5 April 2015 and contends that, he lived with his parents for approximately one year, during which time he paid them board of $300 per week. The husband has subsequently been living in rental accommodation.
On 7 April 2015, the wife withdrew the sum of approximately $3700 from the parties Westpac offset account and closed the account. Also on 7 April 2015 the wife and the children left the matrimonial home and moved to the maternal grandparents home at Suburb AB. The wife and children have subsequently returned to line in the former matrimonial home.
On 8 April 2015 the wife attended the OO Medical Centre in respect to painful fingers on her left hand.
On 9 April 2015 an Interim Apprehended Violence Order was issued with the wife named as a protected person.
On 24 April 2015 the wife commenced family law proceedings in the Federal Circuit Court.
In the period subsequent to 29 April 2015 until 30 June 2015 the husband’s parents transferred $300,000 to Company M, with $190,000 being lent to Company N.
On 6 May 2015 the husband was charged with assault occasioning bodily harm in respect to the incident that occurred on the evening of 30 March 2015.
On 12 May 2015 the husband commenced paying child support of $1304.13 per month.
On 15 May 2015 orders were made by Sexton J in respect to parenting matters.
On 16 May 2015, the children commenced spending supervised time with the husband. In the period from 16 May 2015 until 24 February 2017 the children spent supervised time with the husband on approximately 120 occasions.
On 2 and 3 November 2015 the proceedings in relation to the assault charge against the husband were heard. The magistrate delivered a not guilty verdict. On a without admissions basis, the husband consented to a Final Apprehended Violence Order being made for a period of six months, expiring on 3 May 2016. That order included an order that he could not attend the former matrimonial home during that period.
In the period from 18 May 2016 until the date of hearing, the husband has lived in rental accommodation in Suburb XX. The husband contends that, as a result of his inability to pay, the $750 per week rental is advanced to him by other members of his family.
On 26 August 2016 the wife received notice that the husband’s parents lodged a caveat against the Suburb R property.
On 31 August 2016 orders were made for the parties and the children to attend family therapy and for the wife and husband to attend individual therapy.
The children currently attend X High School at Suburb UU, and they are now in year eight.
The husband continues working in the businesses Company M and Company N. The husband contends that the proprietors of those businesses are himself and his father. The wife disputes the nature of the business relationship between the husband and the paternal grandfather and the level of the paternal grandfather’s involvement in those businesses.
The wife continues to be employed in a full-time position.
The husband was assessed to pay the wife $3302.17 per month in child support as at the date of hearing. The husband attended the payment of child support for a period of approximately 18 months.
The wife and the children continue to reside in the former matrimonial home.

Competing Applications

The wife’s application

The wife sought the following orders in her Minute of Order provided to the Court on 12 October 2017 (Exhibit “W1”):
1. That within 7 days the 2nd Respondents do all acts and things necessary to remove caveat …93 at their sole cost.
2. That pending compliance with Order 3 below the husband be restrained by injunction from doing any act or thing to further encumber the property situate at and known as [Q Street, Suburb R], Folio Identifier … ([Suburb R Property]).
3. That within 3 months of the date of Orders (the due date) and simultaneously:
3.1 the husband do all acts and things and sign all documents necessary to Transfer to the wife the whole of his right, title and interest in and to the [Suburb R] Property; and
3.2 the husband and wife shall do all acts and things and sign all documents necessary, and the wife shall pay all monies necessary, to obtain a discharge of mortgage no. …01 in favour of the Westpac Bank Limited secured on the title of the [Suburb R] property.
4. That in the event the wife is unable to comply with order 3.2 to pay all monies necessary to obtain a discharge of mortgage no. …01 then the [Suburb R] property shall thereafter be sold at public auction for the best price reasonably obtainable provided that:
4.1 the wife shall have the sole conduct of the sale including choice of estate agent and conveyancing solicitor;
4.2 the reserve price shall be $3,500,000 or as otherwise agreed by the parties;
4.3 the husband shall comply with any requests made by the wife to effect the sale in accordance with these orders;
4.4 upon settlement of the sale the sale proceeds shall be distributed in the following order and priority:
4.4.1 to pay all sale costs and expenses including agents fees and commission, advertising, auction expenses, legal fees and conveyancing adjustments for council rates and water etc (including reimbursement of such expenses paid up front);
4.4.2 to repay all monies owed to Westpac Bank Limited secured by mortgage no. …01;
4.4.3 to pay the remaining balance to the Wife.
5. Forthwith upon the making of these orders any Charge granted by the husband in favour of his lawyers, Mills Oakley for legal fees be amended to the extent that such Charge is no longer secured against the [Suburb R] property.
6. Forthwith upon the making of these orders that the husband and his lawyers do all acts and things necessary to remove at their sole cost any caveat lodged by them over the [Suburb R] property by way of security of any Charge for payment of legal fees, and further that as and from the date of these orders each of the husband and his lawyers be restrained from lodging a caveat secured against the [Suburb R] property.
7. In default of the husband doing all acts and things and executing all such documents as are necessary to give effect to these orders the Registrar of the Family Court of Australia at Sydney be appointed to execute all such documents in the name of the husband and to do all such acts and things necessary to give validity and operation to such documents upon being satisfied, by virtue of an Affidavit, of the husband's failure to give effect to these orders.
8. That other than as set out above the parties shall be solely entitled to the exclusion of the other to all other real and personal property of whatever nature and kind in the possession, control or name of such party (including superannuation).
9. That the husband indemnify the wife and keep the wife indemnified in relation to all actions, claims, suits, and demands as may be made against the wife by the second Respondents [Ms L Newport] and/or [Mr K Newport] in respect of any alleged loans.
10. The Husband's Response, and the Second Respondent's Response, be dismissed.
Child Support
11. Pursuant to sections 116 and 124 of the Child Support (Assessment) Act 1989, there be an Order by way of departure from the assessment from the Department of Human Services (reference number …32) for the period 1 January 2017 to 31 December 2018 ("the assessment") and all future assessments so that the husband pay within 28 days pursuant to s.123A of the Child Support (Assessment) Act 1989 lump sum child support totalling $ 204,440 representing:
11.1 For the child support period from 1 October 2017 to 30 June 2018 the sum of $30,400 at $380 per child per week;
11.2 For the child support year 1 July 2018 to 30 June 2019, the sum of $39,520 being 52 weeks at $380 per child per week;
11.3 For the child support year 1 July 2019 to 30 June 2020, the sum of $39,520 being 52 weeks at $380 per child per week;
11.4 For the child support year 1 July 2020 to 30 June 2021, the sum of $39,520 being 52 weeks at $380 per child per week;
11.5 For the child support year 1 July 2021 to 30 June 2022, the sum of $39,520 being 52 weeks at $380 per child per week;
11.6 For the child support year 1 July 2023 to 1 December 2023 (when the children conclude secondary schooling), the sum of $15,960 being 21 weeks at $380 per child per week.
12. That any property received by the husband pursuant to s.79 Orders be subject to a charge in the sum of:
12.1 The arrears of child support as at the date of judgment; and
12.2 The departed lump sum child support as provided for in these Orders;
and the husband otherwise be restrained from doing any act or thing so as to transfer, encumber, dispose of or adversely deal with any such property pending payment of arrears and the departed lump sum child support as provided in these Orders.
13. In the alternative to Orders 11 and 12 above, the first $275,000 of any cash sum received by the husband pursuant to s.79 Orders is to be deposited into a bank account held to be opened and held in the joint names of the husband and the wife which neither party can access without dual signatures except in the following circumstances:
13.1 the wife shall be authorised to draw on that bank account and pay herself any arrears of child support owing as at the date of judgment provided that such sums go to reduce the husband's liability under any child support assessment;
13.2 the wife shall be authorised to draw on that account a sum equivalent to the child support the husband is assessed to pay by the Department of Human Services (including any departure from administrative assessment) from time to time upon the husband falling behind in his payments of child support by more than 14 days, provided that such sums go to reduce the husband's liability under any administrative assessment;
13.3 On 1 December 2023 when the children conclude secondary school any remaining monies in the account (if any) shall be distributed:
13.3.1 To the wife to pay any arrears of child support outstanding at that time; and
13.3.2 The balance to the husband.
14. That the wife have liberty to apply for further Orders by way of security for payment of child support arrears and/or lump sum child support.
Parenting
15. That [D] born in 2005 and [C] born in 2005 ("the children") live with the wife.
16. That the wife have sole parental responsibility for the children.
17. No Order as to the time the children spend with the husband and the 2nd Respondents.
18. Each of the husband and the children of the marriage attend upon [Ms U] to undertake therapeutic counselling with an aim to:
18.1 try and reconcile the differences between the husband and the children;
18.2 endeavour to resume contact between the husband and the children if same is deemed by the therapeutic counsellor to be in the children's best interests;
18.3 to assist the children with their current emotional difficulties; and
18.4 to assist the husband in gaining insight into the needs of the children.
19. The costs of the therapeutic counselling are to be borne by the husband as and when same fall due.
20. That the husband and 2^nd Respondents be restrained from causing the children to come into contact with [Mr J].
Overseas Travel
21. That the children's names be removed from the Airport Watch List.
22. That the wife shall be permitted to take/send the children out of Australia for holidays and other short trips and to attend school excursions, provided that not later than 14 days prior to the children's departure overseas, the wife shall provide to the husband the dates and destinations for the children's travel, and if urgent travel is required, the wife will provide as much advance notice as reasonably possible to the husband of the children's proposed travel.
23. The wife is authorised to apply for and receive an Australian passport for the children without first obtaining the written consent of the husband.
24. If the passport agency is unable to issue a passport to [D] and/or [C] in accordance with Order 23 above, then the Wife will notify the Husband, and the Husband will do all things necessary to obtain [D] and [C’s] passports within 7 days of a request by the wife and in the event he does not do so within 14 days of the Wife’s request, the Wife shall be at liberty to obtain a passport for [D] and/or [C] without the Husband’s signature by way of the Registrar of the Court being appointed pursuant to Section 106A of the Family Law Act 1975 to execute the passport application in the name of the Husband, upon the Registrar being provided with evidence of the husband’s failure or neglect to comply with this order.
Costs
25. The husband and the second respondents shall jointly and severally be liable to pay the wife's costs of and incidental to these proceedings.

The husband’s application

The husband sought the following orders in the Minute of Order provided to the Court on 13 October 2017 (Exhibit “H1”):
Property Settlement
1. That within 28 days of the date of these Orders, the parties shall do all acts and things and sign all documents necessary to cause the property situate at [Q Street, Suburb R] in the State of New South Wales, being folio identifier … (the “[Suburb R] property”) to be sold for the best price reasonably obtainable and unless otherwise agreed between the parties in writing, in the following manner:
1.4 Within 14 days of the date of these Orders, the parties shall jointly instruct such real estate agent as is agreed between the parties in writing to have the conduct of the sale of the [Suburb R] property on behalf of the parties and in the absence of such agreement, such real estate agent appointed by the President for the time being of the New South Wales Division of the Australian Property Institute (the “agent”);
1.5 jointly list the [Suburb R] property for sale by public auction (or such other method for sale as is agreed upon between the parties in writing and in the absence of such agreement as is advised by the agent) on a date and time as agreed between the parties and in the absence of such agreement, on a date and time nominated by the agent, being a date no more than 6 weeks from the date of appointment of the agent or such other time prior to or thereafter that the agent advises that the property is ready to proceed to auction (the “auction date”);
1.6 the reserve price for the purpose of such auction shall be such price the parties agree upon in writing or, in the absence of agreement reached within 14 days of the auction date, shall be the price nominated by the single expert [Mr PP] (the “single expert valuer”) in his Report filed in these proceedings and dated 16 August 2017, being $3,500,000 (the “reserve price”);
1.7 The parties shall cooperate in every way with the agents and the valuer including (without limiting the generality of the foregoing):
1.7.1 making the key available to the agents and the valuer;
1.7.2 allowing inspection of the [Suburb AC] property at all reasonable times requested by the agents and the valuer;
1.7.3 doing or saying nothing to hinder or prevent a sale being effected;
1.7.4 ensuring the [Suburb R] property including the grounds are in a neat and clean condition at the time of inspection by the agents and prospective purchasers; and
1.7.5 signing all documents requested by the agent in relation to the listing for sale of the [Suburb AC] property.
2. That in the event the bidding at the public auction referred to at Order 1 herein does not reach the reserve price, the parties may negotiate with the highest bidders or any other interested person and effect a sale of the [Suburb R] property at a price which is not more than 10% below the reserve price;
3. That in the event the [Suburb R] property is not sold by public auction within 6 weeks from the date of appointment of the agent, the parties shall do all acts and things and sign all documents necessary so as to effect a sale of the Suburb R property for the best price reasonably obtainable and unless otherwise agreed between the parties, in the following manner:
3.4.1 jointly list the [Suburb R] property for sale by private treaty (or by such other method of sale as may be advised by the agent) with such agent or agents as the parties may agree to appoint in writing and in default of agreement the agent shall be retained as the selling agents;
3.4.2 the sale price at which the [Suburb R] property shall be listed for sale by private treaty, pursuant to Order 3 herein shall be such price as may be mutually agreed upon by the parties or, in the absence of agreement reached within 14 days of appointment of the new agent shall be the price nominated by the single expert valuer;
4. That in the event the [Suburb R] property is not sold in accordance with Order 3, the parties shall do all acts and things and sign all documents necessary to cause the [Suburb R] property to be sold in accordance with the mechanism provided for at order 3, however the listing price shall be decreased by 5% on three monthly intervals until the property is sold.
5. The parties shall co-operate in every way with the agent including (without limiting the generality of the foregoing)
5.4 making the key available to the agent;
5.5 allowing inspection of the [Suburb R] property at all reasonable times requested by the agent;
5.6 doing or saying nothing to hinder or prevent a sale being effected;
5.7 ensuring the [Suburb R] property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and
5.8 signing all documents requested by the agent in relation to the listing for sale of the [Suburb R] property except a contract or agreement for sale which has not been authorised by the wife and the husband’s respective solicitors;
6. The wife and the husband shall execute a contract for sale in the form prepared by the solicitors having the conduct of the sale at a price agreed upon the parties or at a sale price provided for in these orders;
7. The wife and the husband shall instruct an agreed solicitor to have the conduct of the sale on behalf of both parties and, failing agreement, the Respondent Husband's solicitor;
8. Unless otherwise agreed between the parties, the Contract for sale shall be a standard contract for sale with 42 days settlement period from date of exchange;
9. The party not in possession shall be entitled upon no less than 48 hours' notice once per fortnight to enter and view the state of repair of the [Suburb R] property and is entitled to attend at the auction;
10. That upon the settlement of the sale of the [Suburb R] property, the second respondents shall do all acts and things and sign all documents necessary to remove Caveat …93, at their cost.
11. That upon the settlement of the sale of the [Suburb R] property the husband and his lawyers shall do all acts and things necessary to remove at their sole cost any caveat lodged by them over the [Suburb R] property by way of security of any Charge for payment of legal fees.
12. That upon settlement of the sale of the [Suburb R] property, the parties shall do all acts and things and sign all documents necessary to cause the proceeds of sale of the [Suburb R] property to be distributed in the following manner and priority:
12.4 in payment of all sale costs and expenses including legal costs and disbursements, agent’s commission and auction expenses;
12.5 in payment of;
12.5.1 Westpac Equity Access Loan Account, BSB … account number …1;
12.5.2 Westpac Rocket Statement Account, BSB …, account number …8 the National Australia Bank loan secured by way of Registered Mortgage …61; and
12.5.3 Westpac Rocket Statement Account, BSB …, account number …71.
12.6 In payment of the amount of $942,383 to the second respondents, by way of bank cheque or as may otherwise may be advised by the second respondents in writing;
12.7 The balance then remaining:
12.7.1 an amount sufficient to effect an overall property settlement to the Applicant Wife of the parties’ net assets, superannuation and financial resources in the amount of 30%; and
12.7.2 an amount sufficient to effect an overall property settlement to the Respondent Husband of the parties’ net assets, superannuation and financial resources in the amount of 70%;
13. That within 7 days of the date of these Orders, the respondent husband be permitted to attend upon the [Suburb R] property to collect his belongings and personal effects located at the [Suburb R] property, with the respondent husband to provide no less than 24 hours’ notice of his intention to attend the [Suburb R] property and the applicant wife shall ensure the respondent husband is able to gain access to the [Suburb R] property at the time specified by the respondent husband.
14. In default of the wife doing all acts and things and executing all such documents as are necessary to give effect to these orders the Registrar of the Family Court of Australia at Sydney be appointed to execute all such documents in the name of the husband and to do all such acts and things necessary to give validity and operation to such documents upon being satisfied, by virtue of an Affidavit, of the wife’s failure to give effect to these orders.
15. That other than as set out above the parties shall be solely entitled to the exclusion of the other to all other real and personal property of whatever nature and kind in the possession, control or name of such party (including superannuation).
16. That the wife indemnify the husband and keep the husband indemnified with respect to any debt, liability or claim that exists in her separate name or any liability that may arise in relation to any items of property that vest in her in accordance with these Orders
17. That the husband indemnify the wife and keep the wife indemnified with respect to any debt, liability or claim that exists in his separate name or any liability that may arise in relation to any items of property that vest in him in accordance with these Orders.
18. That the husband indemnify the wife and keep the wife indemnified in relation to all actions, claims, suits, and demands as may be made against the wife by the second Respondents [Ms L Newport] and/or [Mr K Newport] in respect of any alleged loans.
19. The wife’s Application be dismissed.
Child Support
20. Pursuant to section 116 of the Child Support (Assessment) Act 1989, there be an Order by way of departure from the administrative assessment from the Department of Human Services (reference number …32) of child support payable by the husband for the children as follows:
20.4 For the year ended 30 June 2015 the annual rate is to be set at a rate which leaves no arrears owing;
20.5 For the year ended 30 June 2016 the annual rate is to be set at a rate which leaves no arrears owing; and
20.6 For the year ended 30 June 2017 the annual rate is to be set at a rate which leaves no arrears owing.
21. That in the event the children are living with the husband in accordance with the Orders sought herein, the wife pay child support in accordance with an Administrative Assessment, as may be issued from time to time by the Department of Human Services, Child Support.
22. Pursuant to section 116 of the Child Support (Assessment) Act 1989, there be an Order by way of departure from the administrative assessment from the Department of Human Services (reference number …32) of child support payable by the husband from the date of these orders until the children turn 18 years of age or complete year 12 (whichever occurs last) as follows:
22.4 That if the children spend 1 night per fortnight with the husband, the annual rate of child support be set at $901 per month. This amount is to be apportioned equally between the children.
22.5 That if the children spend 2 nights per fortnight with the husband, the annual rate of child support be set at $363 per month. This amount is to be apportioned equally between the children;
22.6 That if the children spend 3 nights per fortnight with the husband, the annual rate of child support be set at $363 per month. This amount is to be apportioned equally between the children;
22.7 That if the children spend 4 nights per fortnight with the [husband], the annual rate of child support be set at $363 per month. This amount is to be apportioned equally between the children;
22.8 That if the children spend 5 nights per fortnight with the [husband], the annual rate of child support be set at $341 per month. This amount is to be apportioned equally between the children;
22.9 That if the children spend 6 nights per fortnight with the [husband], the annual rate of child support be set at $27 per month. This amount is to be apportioned equally between the children;
Parenting
23. That [D] and [C], both born in 2005 (collectively known as the “the children”) live with the husband.
24. That the [husband] have sole parental responsibility for the children.
25. That the children spend time with the [wife] as follows:
25.4 each Saturday from 1.00pm to 5.00pm;
25.5 at such other times as is agreed between the parties;
25.6 The time that the [wife] spend with the children be supervised by [E Group] or such other agreed supervisor and [E Group] or such other agreed supervisor shall facilitate changeover on behalf of the parties by collecting the children from the [husband’s] residence and delivering the children to the [wife’s] residence at the commencement of the [wife’s] time and delivering the children back to the husband’s residence at the conclusion of the [husband’s] time; and
25.7 The [wife] shall be solely responsible for the costs of the supervision, changeover and any associated reports as to the [wife’s] time with the children.
23. That the parties be restrained by way of injunction from discussing these proceedings in the presence of the children.
24. That the parties be restrained from using language which would or could be construed as criticising or denigrating the other party of the other party’s family in the presence of or within hearing of the children.
25. That the parties do all acts and things to encourage each children’s’ relationship with the other party.
Airport Watch List
26. That the [wife] [Ms Newport] and her servants or agent be and are hereby restrained from removing or causing the removal of the children [D] and [C] beyond a radius of 20 kilometres from Sydney CBD, including from the Commonwealth of Australia AND THAT IT IS REQUETED that the Australian Federal Police give effect to tis order by placing the names of the said children on the Watch List in force at all point of arrival and departure by air or sea in the Commonwealth of Australia and maintain the children’s names on the Watch List until the Court orders its removal.
Costs
27. The [wife] shall be liable to pay the husband’s costs of and incidental to these proceedings.
[As per the original].

The Independent Children’s Lawyer’s proposed orders

The Independent Children’s Lawyer (“ICL”) sought the following orders in the Minute of Order handed to the Court on 13 December 2017 (as Exhibit “ICL 7”):
1. That all previous parenting orders are discharged.
2. That the [wife] has sole responsibility for the care, welfare and development of [C], born in 2005 and [D] born in 2005 (“the children”) provided that the [wife]:
2.1 Notify the [husband] of any proposed decision relating to the long term care and welfare of the children about:
2.1.1 Proposed decisions about which school the children shall attend; and
2.1.2 Proposed decisions about the long term medical issues affecting the children
2.2 Ensure such notification is given to the [husband] in writing and is given not less than 28 days before a final decision is made; and
2.3 Take into consideration any views expressed by the [husband] in respect of such proposed decisions and advise the [husband] of her decision.
3. That the children live with the [wife].
4. That the children shall spend time with the [husband] as follows:
4.1 During school terms:
4.1.1 For a period of 2 months from the date of compliance by the husband with order 13, from 10am to 4pm each alternate Sunday, supervised by [E Group] or other such private supervision agency as agreed between the parties.
4.1.2 Following compliance with order 4.1.1, for a further period of 2 months, from 10am to 4pm each alternate Sunday, with the time from 10am to 1pm to be supervised by [E Group] or other such private supervision agency as agreed between the parties.
4.1.3 Following compliance with order 4.1.2, for a further period of 2 months, from after school Friday until 5pm Saturday each alternate weekend.
4.1.4 Following compliance with order 4.1.3, from after school Friday until 5pm Sunday each alternate weekend.
4.2 During school holidays:
4.2.1 For the period before order 4.1.4 comes into effect, in accordance with order 4.1
4.2.2 For the period after 4.1.4 comes into effect:
4.2.2.1 During holidays at the end of school terms 1, 2, and 3, from after school on the last day of term for 4 consecutive nights until 5pm on the 5th day.
4.2.2.2 During the Christmas school holidays, for 2 periods of 4 consecutive nights as agreed between the parties, and failing agreement from 10am on the 1st and 5th Saturdays of the school holiday period until 5pm on the 5th day of each block.
4.2.2.3 For the avoidance of confusion, ‘time’ arrangements pursuant to Order 4.1 are suspended during school holidays under this Order 4.2.2.
5. That the [husband] be responsible for and pay any costs of supervision of the children’s time with him.
6. That for time events which occur between the children and the [husband] pursuant to Orders 4.1.1 and 4.1.2, the husband shall not involve any member of his extended family with the exception of his brother, [Mr V Newport].
7. Notwithstanding any other order, the children shall spend time with the [wife] from 10am until 5pm on Mother’s Day and any ‘time’ arrangements which would have occurred between the children and the [husband] pursuant to these Orders are suspended from 10AM on that day.
8. That commencing from 1 September 2018, the children shall spend the following special occasion time with the parents as follows:
8.1 With the [husband] from 9am on Christmas Eve until 2pm on Christmas Day in odd numbered years and from 2pm on Christmas Day until 5pm on Boxing Day in even numbered years.
8.2 With the [wife] 9am on Christmas Eve until 2pm on Christmas Day in even numbered years and from 2pm on Christmas Day until 5pm Boxing Day in odd numbered years
8.3 Notwithstanding any other order, the children shall spend time with the [husband] from 10 am until 6 pm on Father’s Day.
8.4 The parent who does not otherwise have care of the children on their birthday will spend time with the children from after school until 7pm if it is a school day or from 1pm to 5pm if it not a school day.
9. That in relation to changeovers:
9.1 the [husband] shall collect the children from school or if not a school day, the front verge of the [wife’s] residence at the commencement of the [husband’s] time with the children;
9.2 the [husband] shall return the children to the front verge of the [wife’s] residence at the conclusion of his time with the children;
9.3 for changeovers at the wife’s residence, the [husband] shall remain in his car and text the [wife] when he arrives.
Family Therapy
10. That the parties shall attend and participate in family therapy with a family therapist (“the family therapist”), and the [wife] shall facilitate the attendance of the children, as described in the following Orders 11 to 16.
11. That the family therapy shall:
11.1 address ‘Protective behaviours’ work for the children on family violence.
11.2 have a focus upon the restoration of the relationships between the children and the [husband].
11.3 occur as recommended by the family therapist, including who participates in any particular session.
11.4 not be confidential.
12. That family therapist shall be [Ms U] of the [H Group], or if [Ms U] is unwilling or unable to provide family therapy (or any aspect of it), with such family therapist as recommended by [Ms U].
13. That prior to any time events occurring pursuant to Order 4:
13.1 the [husband] shall participate in at least 2 sessions of family therapy which include the children;
13.2 provide to the [wife] written notice once those sessions had been completed.
14. That the [wife] and the [husband] shall ensure that they and the children attend on the family therapist as and when directed by the family therapist and follow any reasonable request, direction or requirement of the family therapist, including but not limited to the frequency of appointments any recommendation that either parent participate in any parenting or other course or program recommended by the family therapist
15. That the parties shall be responsible for the costs of the appointments with the family therapist as follows:
15.1 they shall each solely pay the cost associated with any session they attend individually or with the children (or either of them)
15.2 They shall each pay 50% of any session attended by either or both children where no parent is present.
16. That the Independent Children’s Lawyer have leave of the court to provide the family therapist with the Single Expert reports prepared by [Dr F] and released on 20 June 2016 and 26 July 2017 and a copy of the judgment of Justice McClelland and these orders.
Additional Orders
17. That the [wife] shall authorise any school attended by the children provide the [husband] with copies of all school reports, newsletters, information about school photographs and other information normally provided to parents of children attending that school.
18. That the Independent Children’s Lawyer have leave to provide a copy of these orders to the children’s school.
19. That when the [husband] has commenced spending time with the children in accordance with order 4.1.3 (but not before), the [husband] shall be entitled to attend the following events involving the children:
19.1 Sporting fixtures in which either child is participating;
19.2 School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions
20. Each party shall notify the other as soon as possible and in any event within (4) hours of any serious injury or illness suffered by the children whilst in the party’s care.
21. The parties shall keep each other informed of their respective addresses and telephone numbers and any change to the same is to be advised to the other party within 7 days of any such change.
22. That the parties are restrained from making critical or derogatory remarks about the other parent or their family in the presence or hearing of the children and shall use their best endeavours to ensure that no member of their family makes critical or derogatory remarks about the other parent or their family.
23. That the children's names be removed from the Airport Watch List.
24. That the [husband] be restrained from bringing or causing the children to come into contact with [Mr J] when the children are spending time with the [husband].
25. That the [wife] within 30 days of the date of this order pay the sum of $11,948.40 to Legal Aid NSW as her contribution to the Independent Children’s Lawyer’s professional costs.
26. That the [husband] within 30 days of the date of this order pay the sum of $11,948.40 to Legal Aid NSW as his contribution to the Independent Children’s Lawyer’s professional costs.

Evidence and Witnesses

The wife relied upon the following documents:
a)Amended Initiating Application filed 7 July 2015;
b)Affidavit of the wife sworn and filed 15 September 2017;
c)Financial Statement of the wife filed 15 September 2017;
d)Affidavit of Ms MM sworn and filed 15 September 2017;
e)Affidavit of Ms VV sworn and filed 15 September 2017;
f)Affidavit of Ms I psychologist sworn 12 September 2017 and filed 15 September 2017;
g)Affidavit of Dr GG sworn 8 September 2017 and filed 15 September 2017; and
h)Case Outline Document provided to the Court on 12 October 2017 (Exhibit “W1”).
The husband relied upon the following documents:
a)Amended Response filed 10 October 2017;
b)Affidavit of the husband filed 5 October 2017;
c)Notice of Child Abuse filed 16 October 2017;
d)Financial Statement of the husband filed 5 October 2017;
e)Affidavit of Mr YY filed 29 September 2017;
f)Affidavit of Mr W filed 29 September 2017;
g)Affidavit of Mr HH Newport filed 16 May 2016; and
h)Affidavit of Ms EE filed 19 May 2016.
The Independent Children’s Lawyer relied upon the following documents:
a)Child Inclusive Conference Memorandum of Family Consultant Ms KK dated 15 July 2015;
b)Expert Report of Dr F dated 20 June 2016;
c)Updated Expert Report of Dr F dated 26 July 2017;
d)Case Outline document provided to the Court on 15 October 2017;
e)Minute of Order provided to the Court on 13 December 2017;
f)Paragraph 33B and Annexure B of the Wife’s Affidavit sworn 24 April 2017;
g)Paragraphs 1415 and 16 of the Affidavit of Ms MM of 24 April 2015;
h)The Affidavit of Ms MM dated 15 September 2017;
i)Wife’s Notice of Risk filed 24 April 2015; and
j)Two-volume document described as “ICL Tender Bundle”, which was marked Exhibit “ICL 3” in the proceedings.
In relation to the property matter, the parties also relied upon the valuation report of Mr PP dated 16 August 2017, and the valuation report of Mr JJ dated 13 October 2017.

Parenting Matters

Parenting arrangements prior to final hearing

The interim orders in place, prior to final hearing, were made on 17 August 2015 by Judge Baumann as he then was, and provided for the children to live with the wife and spend time with the husband from 1.00pm to 5.00pm each Saturday, with such time to be supervised by E Group.
However, with the exception of attending an interview with the single expert, as at the date of the hearing the husband had not spent any time with the children since February 2017.

The Law - Concepts and Principles

The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60B sets out the objects and principles of Part VII. These are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
More generally, the Act makes clear that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare”.[1]
[1] Section 43(1)(c) of the Act.

The presumption of equal shared parental responsibility

In this matter each party is seeking an order for sole parental responsibility.
Section 61DA(1) provides that the Court must apply a presumption that “it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”. Section 61DA(4) provides that the presumption “may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”.
Section 61DA(2) provides that the presumption will not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence.
In Dundas & Blake (2013) FLC 93-552, the Full Court held that section 61DA is mandatory in the sense that the presumption must be applied until a level of satisfaction is reached that he would not be in the interests of the children for the presumption to apply. In that context the Full Court said:
In our view, the mandatory requirement to apply the presumption unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.
In VR & RR (2002) FLC 93-099 the Full Court said at [29]:
In our view, it is clear from the legislative scheme that any intervention by the court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner the parent deems appropriate, should be made only where the court is of the view the welfare of the child will be clearly advanced by that order being made.
At the same time it needs to be appreciated that sub-sections 65DAC(2) and (3) provide that, in the event of an order being made for the parents to have shared parental responsibility, then, in circumstances where that responsibility involves making a decision about a major long-term issue in relation to the child:
(2)The order is taken to require the decision to be made jointly by those persons.
…
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
As will be discussed, in this matter I am satisfied that the husband has perpetrated an act of serious physical violence against the wife on 30 March 2015. The extent and manner in which, on instructions, the wife was cross examined, together with the duration of the cross examination, in circumstances where the wife was clearly highly distressed in reliving the event satisfies me that the husband has little remorse in respect to his conduct on 30 March 2015.
In those circumstances it would be inappropriate for the presumption to be applied.
Nonetheless, I accept the submission of the ICL that the orders should require the wife to seek the husband’s input in relation to decisions about schooling and long-term medical issues impacting upon the children. In a similar context I agree that it is also appropriate for orders to be made in terms of those proposed by the ICL to ensure that the husband receives all relevant information about the children.

Paramount Consideration in Making Parenting Orders

Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in section 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the child’s best interests. Section 60CC(2) sets out the primary considerations as being:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, section 60CC(2A) requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[2]
[2] section 60CC(2)(b) of the Act

Additional considerations

Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. At this point it is sufficient to note that, broadly, those considerations deal with the following matters:
a)Issues relating to the children – their views, level of maturity, culture and relationships;
b)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility;
c)Issues of family violence;
d)Effect of change;
e)Practical difficulty of implementation of orders;
f)Avoiding further proceedings; and
g)Other relevant matters.

Applying Section 60CC Considerations

In this matter, the wife agreed that it would be in the interests of the children to have “an ongoing relationship and a meaningful relationship with their husband” if they wanted that outcome.
As will be discussed, the children have expressed the view to the family consultant and Dr F, the single expert in these proceedings, that they do not wish to have such a relationship with their father.
While it is not the exclusive reason for the children’s views, a primary reason for the children expressing that view is, in the case of C, because she witnessed the husband perpetrating an act of violence against the wife on 30 March 2015. D is of a similar view as result of being informed by his sister of what she observed on that evening.
Accordingly, central issues in these proceedings are whether an act of violence was perpetrated by the husband on the wife on the evening of 30 March 2015 and secondly, whether C witnessed that event.
I therefore propose to consider whether an act or acts of violence were perpetrated by the husband against the wife before considering the children’s views in the context of examining the issue as to whether or not C did witness an assault that occurred on 30 March 2015.
I will then address the remaining section 60CC(3) considerations before concluding with an assessment of the primary considerations as set out in section 60CC(2).

Any family violence involving a child or a member of the child’s family

Section 60CC(3)(j) requires the Court to consider any family violence involving a child or a member of the child’s family.
In these proceedings a considerable amount of time was spent by all parties in exploring events that occurred on the evening of 30 March 2015. It is acknowledged that, on that evening, there was an argument between the parties concerning the husband’s desire to drive his car to his gym where he had arranged for a personal training instruction.
The wife contends that the argument became physical and she was kicked in the hand by the husband while trying to protect her groin. The wife also contends that she sustained an injury to her lip while the husband was grappling her to the ground when she was attempting to make a 000 emergency phone call.
The wife’s evidence in respect to the incident is set out in paragraphs 277 through to 284 of her trial Affidavit dated 15 September 2017 (“the wife’s trial Affidavit”). In essence, the wife alleges that she objected to the husband going to the gym rather than spending time with the children on their birthday. In order to prevent the husband from leaving the home the wife took hold of his keys. The wife alleges that, as a result of concerns for her safety she initially went outside of the house, however, she states that she was followed by the husband and decided to return inside. The wife’s account of what followed is:
I ran back inside the home and [the husband] followed me. I put the keys down on the white bench in my kitchen. I thought [the husband] would calm down because he had gotten the keys back and he could now go to the gym like he wanted. [The husband] started walking towards me saying; “I can't believe you fucking did that. Don't you ever do that again you fucking bitch".
Without warning [the husband] proceeded to kick me hard in the groin. I was fast enough to try to shield my groin area with my hands. [The husband's] foot connected with my groin and also the ring and pinky finger of my left hand. The force of [the husband's] kick made me double over onto the floor and I curled into the foetal position on the floor. I felt so much pain in both my 2 fingers and groin that I thought I was going to vomit.
I started to crawl towards my phone which was on the buffet. I picked up my phone and made an emergency call to 000 at about 7.54pm. I was terrified.
As I made the call, [the husband] grabbed my hair and pulled it and then pushed my face into the floorboards. The right side of my top and bottom lip connected to the floor. I felt pain to my lips and I tasted blood.
I told the operator: “yeah hi ... my husband just kicked me in the groin and broke my two fingers”.
Whilst I was on the phone, [the husband] said "Why are you lying? She's laughing." I think [the husband] wanted the 000 operator to think I was only joking and making it up.
I gave the 000 operator my address. I confirmed I didn't need an Ambulance.
[The husband] whispered in my ear "I'm gonna fuck you up". At this point, I told the operator that I had changed my mind and when the operator asked my name I said I didn't want to give. The operator said the Police would still come. [The husband] reached over me and terminated the phone call by pressing the hang up button on my mobile phone.
In circumstances where Senior Counsel for the wife complained about the extensive cross examination of the wife in respect to the events which occurred on 30 March 2015, during the course of the hearing, I requested Senior Counsel for the husband to confirm his instructions as to the following:
a)That the wife has falsely stated that on 30 March 2015 she sustained injuries to:
i)her fourth and fifth fingers of her left hand; and
ii)her lip;
b)That she has falsely asserted that those injuries resulted from the actions of her husband;
c)That she has falsely asserted that her daughter was in the vicinity of those actions at least at the time when they occurred; and
d)That she has falsely asserted that she has been told by her daughter that the daughter was in the vicinity when at least some of those actions occurred.
Senior Counsel for the husband confirmed those were his instructions.[3]
[3] Transcript 18 October 2017, p.216
In closing submissions, Senior Counsel for the husband conceded that: “Objectively, there is evidence of an injury to her hand. We don’t deny that”. That concession in final submissions was made after the wife had been extensively cross examined as to whether she sustained an injury to her right hand on the evening of 30 March 2015.
For reasons that I explain, while the confrontation on that night did not occur in precisely the same way as described by the wife I am nonetheless satisfied that she was kicked in the hand by the husband as she placed her hand over her genital area in order to protect that area of her body from being struck by the husband’s foot.
Specifically, I am satisfied that, on the evening of 30 March 2015, the wife sustained an injury to two of her fingers on her left hand. Subsequent diagnosis confirmed a small bone fracture that I am also satisfied occurred as a result of the husband’s assault of the wife. I am also satisfied that the wife sustained an injury to her lips in the confrontation. The wife’s evidence in that respect to sustaining those injuries on the evening of 30 March 2015 is set out in her trial Affidavit. The fact of the wife sustaining those injuries is corroborated by the evidence of her co-worker Ms RR who saw the wife on the following morning at her workplace at approximately 8.30 am. In accepting the evidence of Ms RR I note the diary entry made by Ms RR is recorded as having been made on 1 April 2015, however, having regard to the wife’s evidence and the fact that the diary entry recorded Ms RR providing advice to the wife that the wife should receive medical attention, which the wife obtained on 31 March 2015, I am satisfied that Ms RR observed the wife’s injuries on 31 March 2015.
In a written statement, Ms RR recorded that the wife advised her that “My husband grabbed me and [sic] because I had something in my hand.” Under cross examination Ms RR stated that it was her recollection that the wife may have told her that she had a set of keys in her hands. That evidence is consistent with the wife’s evidence that the argument that evening involved a set of keys.
The fact that the wife sustained injuries to her left hand and lip was confirmed in relevant medical records of the LL Hospital in respect to treatment provided to the wife on 31 March 2015. The Emergency Discharge Report notes swelling to the wife’s right lower lip and swelling over the fourth and fifth finger of the left hand.
It is to be noted that the medical records report that an x-ray was undertaken but that “no fracture seen”. However, the records also record “there is a possible small bone fragment at the volar base of the ring finger middle phalanx.”
The ambiguity in the x-ray results were, however, clarified by an x-ray taken on 3 June 2015, on referral from the wife’s treating doctor, Dr GG. That x-ray confirmed the bone damage at the base of the wife’s ring finger middle phalanx.
In his Affidavit dated 5 October 2017 (“the husband’s trial Affidavit”) the husband referred to the wife sustaining an injury to her left arm in a roller blading accident that occurred on 7 January 2014. As noted, the injury was to the wife’s left elbow and occurred some 14 months prior to the events of 30 March 2015.
At paragraph 65 of his trial Affidavit the husband stated that following six-months of rehabilitation, he had a conversation with his wife in respect to her injury. He attests to the wife saying words to the following effect:
I can hardly use two of my fingers, my pinkie and ring finger. They often swell up and bruise. Lucky it was my left arm, as I wouldn't be able to us [sic] it, work or write on the board.
The cross examination of the wife in respect to the injury to her left hand included the following question from Senior Counsel for the husband:
If the medical reports indicated that it was pain emanating down to your fourth and fifth finger, would you disagree with that?
The wife responded by denying that she had suffered from pain in her fingers and confirmed that the injury she sustained in the roller blading incident was to her left elbow.
Senior Counsel for the husband tendered clinical notes from the TT Private Hospital which indicate that, in the course of physiotherapy treatment on 9 January 2014, the wife complained of “numbness in 4th and 5th fingers.” The clinical notes also report the wife complaining of intermittently having a “tingling sensation on 2 last digits.”
The clinical notes record the wife attending physiotherapy on 11 January 2014 and record a request by the Visiting Medical Officer to “loosen POP right elbow due to pin/numb.” The physiotherapy notes record the wife complaining of “pin numb” in “fingers generally.” The clinical notes further record “split POP bilat + release // patient happy, instant relief.”
A further entry in the clinical notes made on the afternoon of 11 January 2014 records “patient happy with POP as it’s not as tight as it felt this morning.”
There are five points to note in respect to the proposition put to the wife by Senior Counsel for the husband that her injuries, as observed on 31 March 2015 were due to the injuries she sustained in the roller blading incident:
a)First, there is no evidence that, as result of the injuries she sustained on 7 January 2014 the wife complained of “pain emanating down to her fourth and fifth finger”.
b)Second, the wife’s complaint of pins/numbness in her fingers immediately following surgery to her left elbow and the application of a cast and whatever other device was put on her arm was relieved by the physiotherapy treatment she received on 11 January 2014.
c)Third, there is no report of the patient complaining of pins/numbness in the fingers of her left hand after 11 January 2014 including to the point of being discharged from the TT private hospital on 14 January 2014.
d)Fourth there is no report of the wife’s third and fourth fingers being swollen as result of the injuries she sustained on 7 January 2014 or consequent medical treatment.
e)Fifth, even if the husband’s evidence as to the conversation that he had with the wife approximately six months after the injury she sustained in January 2014 is to be accepted, the conversation occurred seven months prior to the events of 30 March 2015. There is no evidence of the wife having any swelling to fingers of her left hand after that time.

I have previously set out, the net property and superannuation that is to be adjusted by orders in these proceedings as totalling $3,341,908.
I have set out my reasons as to why an adjustment in favour of the wife of 16 per cent is appropriate, fair and reasonable.
Accordingly, the distribution of property, notional property and superannuation to the wife should total $2,205,662.58.
The wife currently has the following property in her sole name:
a)bank savings of $975; and
b)first state superannuation $125,238.
The wife, therefore, requires an adjustment from the parties’ actual property of $2,079,449.58.
In circumstances where the wife is the primary carer of the children, I am of the view that it is appropriate for the wife to have the opportunity to acquire the former matrimonial home, where she has continued to live with the children.
I, therefore, propose to make orders providing for the husband to transfer his interest in the family home to the wife. It is noted that the value of the family home is agreed at $3,500,000.
This means that there will need to be an adjustment moving from the wife to the husband. In circumstances where the wife will be the occupant of the former matrimonial home, if the opportunity available to her is utilised, I propose making orders requiring the wife to assume responsibility for the outstanding Westpac loans secured against the former matrimonial home. These are identified as items 25, 26 and 27 in Exhibit “W2” and total $921,005. Therefore, in the event of the wife electing to take the opportunity available to her of acquiring the former matrimonial home, she will be required to pay $499,545.42 to the husband less the amount of outstanding child support which calculates to $441,469.25.
By way of summary, therefore, if the wife avails herself of the opportunity to acquire the former matrimonial home, she will have real property to the value of $3,500,000, a superannuation account in the sum of $125,238 and a relatively small amount of funds in a bank account totalling $975. She will, however, be responsible for raising funds to discharge the totality of the parties’ joint liabilities, in the sum of $921,005.
As previously noted, Senior Counsel for the husband contended that a distribution of property that included an order, as sought by the wife, for the parties’ loan accounts to Company M in the sum of $300,000 and to Company N in the sum of $334,000, to be assigned to the husband, would be unfair. I do not accept that to be the case, for the following reasons:
a)it was contended by Senior Counsel for the husband that, while the businesses are in a downturn, recovery is anticipated;
b)such a recovery is anticipated by the husband, which he states is likely to occur at the conclusion of these proceedings;
c)the businesses turnover approximately $3 million per annum;
d)the businesses continue to employ on average 8 to 10 people; and
e)in the period prior to separation, the husband received from the businesses an average taxable income of approximately $199,000 per annum.
In circumstances where the husband’s accountant has not been called to give evidence to explain the records of the businesses, it is appropriate that I allocate to the husband the benefit of funds identified as being in the parties’ loan accounts. In other words, the husband, not the wife, should carry the risk arising from what is less than adequate disclosure on the part of the husband, regarding the financial circumstances of the businesses. The determination as to whether the husband obtains the benefit of those funds in the future will be entirely up to him.
Accordingly, by way of summary, the husband will receive a lump sum amount of $441,469.25. He will also receive the benefit of the parties’ loan accounts in Company M and Company N of $300,000 and $334,000, respectively. The husband will also retain a van valued at approximately $2,700. The husband will, therefore, receive total property to the value of $1,078,169.25. This represents just over 32 per cent of the parties’ net property pool. The husband will retain his businesses and the opportunity to apply his skills to growing those businesses and, at an appropriate time, drawing funds as he sees fit from the businesses’ loan accounts. The husband will also be relieved of any liabilities that have been secured against the former matrimonial home.
I will make orders that will effectively operate as a “fall back” position in the event of the wife not being in a position to obtain the funds necessary for her to facilitate the former matrimonial home being transferred into her sole name. That position will be for the property to be sold with an appropriate division based on the percentage adjustment that I have referred to in this decision, after the payment of liabilities. That division will occur after payment of expenses and payment of an amount to the wife equivalent to the benefit of the loan accounts of the parties in the businesses, totalling $634,000, as well as the amount of child support in the sum of $58,076.17.
As the occupant of the property, I have made orders as proposed by the wife in respect to the mechanics of effecting the sale, should that be necessary.
It is also appropriate that I make orders, as proposed by the husband, to facilitate the husband collecting personal items from the property.

Child Support

The wife’s application for a lump sum child support order

The wife has sought an order for lump sum child support in the following terms:
Pursuant to sections 116 and 124 of the Child Support (Assessment) Act 1989, there be an Order by way of departure from the assessment from the Department of Human Services (reference number …32) for the period 1 January 2017 to 31 December 2018 (“the assessment”) and all future assessments so that the husband pay within 28 days pursuant to s.123A of the Child Support (Assessment) Act 1989 lump sum child support totalling $ 204,440 representing:
[Thereafter various periods are identified with the calculation of child support being at the proposed rate of $380 per child per week].
That order is sought in the context of the husband not having complied with his child support obligations and in circumstances where the wife, reasonably, in my view, doubts that the husband will comply with his child support obligations in the future.
Section 116 of the Child Support Act relevantly provides:
(1)A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
(b)both of the following apply:
(i) the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii) the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or
(c)in the case of a liable parent—the administrative assessment of child support payable by the liable parent for the child is made under subsection 66(1).
For the purpose of the application, I assume, without deciding, that the threshold requirement set out in section 116(b) of the Child Support Act has been met as result of the fact that both parties are seeking orders pursuant to the Child Support Act.
As noted, the proposed order sought in the wife’s Application includes an application that the husband pay within 28 days pursuant to s.123A of the Child Support Act, the lump sum as identified in the proposed order. An order made pursuant to section 123A of the Child Support Act is conditional upon an application being made pursuant to section 123 of the Child Support Act. No such application has been included in the wife’s Application as set out at the commencement of these reasons for judgment.
Section 124 of the Child Support Act relevantly provides:
Orders for provision of child support otherwise than in form of periodic amounts paid to carer entitled to child support
(1)Where:
(a)a carer entitled to child support or a liable parent makes an application under paragraph 123(1)(a); and
(b)the court is satisfied that it would be:
(i) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(ii) otherwise proper;
to make an order that the liable parent provide child support for the child otherwise than in the form of periodic amounts paid to the carer entitled to child support;
the court may make the order.
(2)In determining the application, the court must have regard to:
(a)the administrative assessment in force in relation to the child, the carer entitled to child support and the liable parent; and
(aa)any determination in force under Part 6A (departure determinations) in relation to the child, the carer entitled to child support and the liable parent; and
(b)any order in force under Division 4 (departure orders) in relation to the child, the carer entitled to child support and the liable parent; and
(c)whether the carer entitled to child support is in receipt of an income tested pension, allowance or benefit or, if the carer entitled to child support is not in receipt of such a pension, allowance or benefit, whether the circumstances of the carer are such that, taking into account the effect of the order proposed to be made by the court, the carer would be unable to support himself or herself without an income tested pension, allowance or benefit.
(3)In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make an order under subsection (1), the court must have regard to the matters mentioned in subsections 117(4), (6), (7), (7A) and (8).
(3A)In having regard to the earning capacity of a parent of the child under paragraph 117(4)(da), the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied as mentioned in subsection 117(7B).
(4)In determining whether it would be otherwise proper to make an order under subsection (1), the court must have regard to the matters mentioned in subsection 117(5).
(5)Subsections (2), (3), (3A) and (4) do not limit the matters to which the court may have regard.
In terms of the wife’s application pursuant to section 124 of the Child Support Act, it is to be noted that the Court has a discretion as to whether to make an order for non-periodic child support. Section 124(1)(b) provides that the Court may make an order for child support otherwise than in the form of a periodic amount, if the Court is satisfied that it would be:
(i)just and equitable as regards the child, the carer entitled to child support in the liable parent; and
(ii)otherwise proper.
Section 124(2) of the Child Support Act sets out those matters to which the Court must have regard in deciding whether to make an order under section 124. Those matters include having regard to:
a)the administrative assessment in force;
b)any departure determinations; and
c)whether the carer entitled to child support is in receipt of an income tested pension, allowance or benefit; or
d)whether the circumstances of the carer are such that taking into account the effect of the order proposed be made by the court, the carer would be unable to support himself or herself without an income tested pension, allowance or benefit.
Further, under section 124(3), in determining whether it would be just and equitable to make an order, the Court must have regard to the matters set out in the following subsections of the Child Support Act.

Section 117(4)

(4) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:

(a) the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b) the proper needs of the child; and
(c) the income, earning capacity, property and financial resources of the child; and
(d) the income, property and financial resources of each parent who is a party to the proceeding; and
(da) the earning capacity of each parent who is a party to the proceeding; and
(e) the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i) himself or herself; or
(ii) any other child or another person that the person has a duty to maintain; and

(f) the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g) any hardship that would be caused:
(i) to:
(A) the child; or
(B) the carer entitled to child support;

by the making of, or the refusal to make, the order; and
(ii) to:
(A) the liable parent; or
(B) any other child or another person that the liable parent has a duty to support;

by the making of, or the r efusal to make, the order; and
(iii) to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.

Section 117(6)

Proper needs of the child

(6) In having regard to the proper needs of the child, the court must have regard to:

(a) the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and
(b) any special needs of the child.

Income, earning capacity, property and financial resources

Section 117(7)

(7) In having regard to the income, earning capacity, property and financial resources of the child, the court must:

(a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of, or held for the benefit of, the child that do not produce, but are capable of producing, income; and
(b) disregard:
(i) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii) any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.

Section 117(7A)

(7A) In having regard to the income, property and financial resources of a parent of the child, the court must:

(a) have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the parent that do not produce, but are capable of producing, income; and
(b) disregard:
(i) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii) any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.

Section 117(8)

Direct and indirect costs in providing care

(8) In having regard to the direct and indirect costs incurred by the carer entitled to child support in providing care for the child, the court must have regard to the income and earning capacity foregone by the carer entitled to child support in providing that care.

Subsections not to limit consideration of other matters.

Finding in Respect to Lump sum child support

In the matter of Luckie and Luckie (1989) FLC 92-036 (“Luckie”), the Full Court said at 226:
… save in exceptional circumstances the most appropriate order for child maintenance was a periodic order rather than a lump sum order anticipating the long term future.
Their Honours, in that case, went on to say, at 227:
Section 66K(5) [of the Act] makes it clear that the usual and preferable order for the payment of child maintenance is one for periodic payments and that the court is not to consider other methods of payment unless it has first considered the capacity of a party to make periodic payments.
Having regard to the legislative criteria that I have set out, it is apparent that the mere fact that a parent has been unreliable in the payment of child support does not justify an order for the payment of child support by way of payment of a lump sum. This cannot be said to be an “exceptional” circumstance.
In applying the Full court’s decision in Luckie, I have found that the husband’s non-payment of child support is due to an unwillingness, rather than an incapacity, to do so.
Further, in terms of section 124(1), I do not find that a just and equitable outcome would see the husband making the lump sum payment sought by the wife, given the relative size of the lump sum figure sought by the wife, in comparison to the property to be retained by the husband, pursuant to the above orders.
I also note that I have not been addressed in respect to the statutory criteria applicable to the wife’s application, in terms of the husband’s capacity to pay child support in respect to the period from the date of the orders until the children turn 18 or until they finish their HSC exam.
Indeed, the husband’s evidence was that after the conclusion of the litigation, he anticipates being in a position to pay the children’s private school fees. Those fees form a significant part of the child support sought by the wife.
These proceedings have traversed many of the matters set out in those relevant subsections of section 117, to which I have referred. This includes, for instance, identifying the husband’s current earnings and the determination that I have made in respect to the husband’s earning potential. Insofar as I have determined that the husband has an earning capacity greater than his current income, I have not been addressed in respect to those matters set out in subsection 117(7B) of the Child Support Act.
The wife’s Financial Statement identifies her assessment as to the weekly expenses incurred in respect to the children, however there have been no submissions made as to the proper needs of the children, in terms of section 117(4)(b). I will discuss the methodology to be applied in assessing those needs in considering the husband’s application for a departure order from the current child support assessment.
As noted, by reference to the language of the legislation, the obligation to have regard to those matters is, by use of the word “must”, mandatory.
In circumstances where I am unable to be satisfied of the legislative preconditions to the Court making an order for lump sum child support, I must decline to do so and I dismiss the wife’s application for such an order.
The wife, further, sought an order for the sum of $275,000 to be held by way of security for the child support arrears currently owing, as well as all future payments. The power of the Court to make such an order can be seen to be derived from section 141 of the Child Support Act. However, those general powers are ancillary in nature and as such, the Court does not have the power to make a security order in isolation. Where no other orders referrable to the Child Support Act are to be made, the Court is not in a position to make such an order for security.

The husband’s application for a child support departure order

The husband sought an order for departure from the current child support assessment which would see the amounts of child support payable by him for the financial years ended 30 June 2015, 30 June 2016 and 30 June 2017 be set at a rate which would see no arrears owing. As stated, the husband is currently in arrears of $58,076.17, in terms of those child support payments. The husband, further, sought an order that the amount of future child support payable by him, to be determined by reference to the number of nights the children spend with him per fortnight, be reduced. Per my orders the husband will spend up to two nights per fortnight with the children. In accordance with the orders sought by the husband, this would see his child support payable reduced to $363 per month, for both children.

As stated, the husband’s current child support obligation, as assessed, is $3826.33 per month, for the year ended 31 December 2018. The husband’s proposal would see him accountable for less than 10 per cent of the assessed figure. While a transition from no overnight time, to potentially two nights per fortnight spent with the children would see the assessment of father’s child support obligation reduced, it would not be in the quantum as proposed by him.
In Beck and Sliwka (1992) FLC 92-296, the Full Court stated that, in exercising its jurisdiction in respect to child support matters, the Court is, as one would expect, required to consider the facts of the individual case before the Court. However, the Full Court said that in determining such matters: “it seems not unreasonable to at least pay regard to the formula” applied by the Child Support Agency.
Division 2 of Part 5 of the Child Support Act sets out relevant formulas that potentially apply to the facts of this case.
I have not been addressed on the application of the relevant statutory formula set out in Division 2 and, in those circumstances, I am unable to properly consider whether there should or should not be a departure order and if so for what amount and for what period or periods of time.
Further, with regard to the matters to which I must be satisfied prior to the making of a child support departure order, I am not satisfied that the husband has met any of the grounds for such a departure, in terms of section 117(2) of the Child Support Act, nor do I find that it would be just and equitable or otherwise proper to depart from the assessed figures.
Accordingly, I will also dismiss the husband’s application for a child support departure order.

Costs of the Independent Children’s Lawyer

On the final day of the hearing, the Court made the following orders and notations, in respect to the costs of the Independent Children’s Lawyer:
1. The Court Notes:
a. In the course of these proceedings the parties had deposited to the account of Legal Aid NSW monies for and in relation to the costs of the single expert witness. In this regard:
i. The paternal grandparents had deposited $4,766.67
ii. The [husband] had deposited $4,766.67
iii. The [wife] had deposited $4,766.67
b. In the course of the final hearing evidence was given by contact supervisors from [E Group]. In that context:
i. Pursuant to Order 3 made on 24 October 2017, the parties are obliged to equally pay to Legal Aid NSW, costs associated with the supervisor’s evidence.
ii. Legal Aid NSW has received an invoice from [E Group] in the sum of $759.44 associated with the supervisor’s evidence.
iii. The parties’ respective obligation in relation to the costs of [E Group] is therefore $379.72
c. In the course of the hearing evidence was given by the single expert, [Dr F]. In that context:
i. Pursuant to Order 4 made on 24 October 2017, unless an authority was received by Legal Aid NSW from the paternal grandparents to apply funds held on their behalf towards the costs of [Dr F], then the parties were to each pay the sum of $2,383.33 to Legal Aid NSW.
ii. Legal Aid NSW has received an invoice from [Dr F] in the sum of $11,616.00 associated with his evidence.
2. .On a date subsequent to 24 October 2017, the [wife] deposited to Legal Aid NSW a further sum of $2,383.67 bringing her funds deposited to a total of $7,529.72.
3. The husband has made no further payment to Legal Aid NSW.
4. On 14 December 2017 the paternal grandparents provided to Legal Aid NSW a Direction and Authority to allow funds held in trust on their behalf to be applied towards monies owed by the husband being:
a. $2,383.33 in relation to [Dr F]
b. $379.62 in relation to [E Group].
5. By Order 5 made 24 October 2017, Legal Aid NSW is unable to comply with the Direction and Authority without further Order of the Court.
THE COURT ORDERS THAT:
6. That Legal Aid NSW apply the sum of $2,762.95 held in trust on behalf of the paternal grandparents towards obligations of the husband related to the invoices received from [E Group] and [Dr F].
7. That from the monies held in trust by them, Legal Aid NSW pay the following:
a. To [Dr F] $11,616.00
b. To [E Group] $759.24
8. That pending further order, any further monies held by Legal Aid NSW trust account from the paternal grandparents be retained in the Legal Aid NSW trust account.
The Court was advised that the parties are in agreement that they should each pay the sum of $11,948 towards the costs of the Independent Children’s Lawyer, on the basis that each party would have a period of 90 days from the date of the judgement being released, in order to pay that amount.[68]
[68] Full transcript, page 1006, lines 22 to 25.
I will accordingly make an order to that effect.

Orders

For all these reasons I make the orders as set out at the commencement of these Reasons for Judgment.

I certify that the preceding five hundred and seventy-seven (577) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 22 June 2018.

Associate:

Date:

[2018] FamCA 472

22 June 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Costs

Jurisdiction