NORMAN & JONES

FAMILY COURT OF AUSTRALIA

NORMAN & JONES

[2010] FamCA 379

FAMILY LAW – CHILDREN - With whom a child spends time
FAMILY LAW – PROPERTY
FAMILY LAW – CHILD MAINTENANCE

Family Law Act 1975 (Cth)

Collins & Collins (1993) FLC 92-343

APPLICANT:

Mr Norman

RESPONDENT:

Ms Jones

FILE NUMBER:

MLC

7487

2008

DATE DELIVERED:

13 May 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

DESSAU J

HEARING DATE:

23, 24, 25 February 2010, 12 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cantwell

SOLICITOR FOR THE APPLICANT:

Tolhurst Druce & Emmerson

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

Parenting Orders

That all previous parenting orders in relation to the children G born … October 1994 and F born … August 2004 (“the children”) shall be and are hereby discharged.
That the husband and wife shall share equal parental responsibility for the long-term decisions affecting the children.
That the children shall live with the wife.
That the children shall spend time with the husband:
In Indonesia:
(a)In the June/July 2010 school holidays, between Thursday 24 June 2010 and Friday 9 July 2010 with the wife to deliver the children to the husband at the Jakarta airport on 24 June 2010 upon arrival of flight number … and the husband to return the children to the wife at the wife’s mother’s home in Jakarta at 4.30pm on 9 July 2010;
(b)Commencing 2011, for two weeks in the June/July school holidays, including at least two week-ends, with the wife (or another adult with the prior written agreement between the parties) to accompany the children to and from Indonesia; and
(c)Commencing 2010, for two weeks in the long summer school holidays, to coincide with the period from Christmas Eve to New Years Day, and including at least two weekends, with the husband (or another adult with the prior written agreement between the parties) to collect the children from and return them to Australia;
In Australia:
(d)For up to seven consecutive nights in each of the first and third term school holidays PROVIDED THAT the husband shall give the wife not less than 7 days' notice in writing prior to the commencement of such period; and
(e)For up to five consecutive nights during each school term at intervals of 4 to 5 weeks, PROVIDED THAT the husband shall give the wife not less than 7 days' notice in writing prior to the commencement of such period, and that the time spent shall be within Victoria.
That for the purposes of spending time with the children the husband shall be solely responsible for all costs of the return air tickets for the children and whichever parent or adult is accompanying them, as well as for any passports and visas required for the children’s travel.
That while the children are spending time with the husband in Indonesia:
(a)In the June/July 2010 school holidays:
(i)The wife shall spend Wednesday and Thursday of each week between 9.00am and 5.00pm with the children, with her to collect the children from and return the children to the husband’s apartment; and
(ii)Otherwise when the father is unable to care for the children he shall arrange for them to be cared for by his family members;
(b)Commencing in the 2010/2011 long summer school holidays:
(i)The husband is permitted to use his family and/or an adult nanny to assist in the care of the children provided that he shall first inform the wife of any new carer so that she may first have the opportunity to speak to them as to the children’s special needs;
(ii)If the wife is also in Indonesia she shall be permitted to spend two days in each week with the children from 9.00am until 5.00pm with the wife to collect the children from and return them to the husband’s apartment as agreed between the parties, but not being on a public holiday or week-end; and
(iii)The husband shall be permitted to travel with the children outside of Indonesia PROVIDED THAT he gives the wife not less than 7 days' prior written notice including an itinerary and contact details and also PROVIDED THAT the husband shall not work during such time spent outside Indonesia.
That the husband shall otherwise communicate with the children as follows:
(a)By Skype each Sunday or public holiday for a reasonable time up to half an hour:
(i)at 8.30am Australian Eastern Standard Time when Victorian Daylight Saving time does not apply; and
(ii)at 9.00am Australian Eastern Standard Time when Victorian Daylight Saving time does apply;
(b)By telephone three times each week by agreement or failing agreement on each Monday, Wednesday and Friday between 8pm and 9pm Australian Eastern Standard Time on either of the home telephone or G’s mobile phone, such communication to be for a reasonable time up to half an hour;
(c)At such other times as may be agreed between the parties.
That for the purposes of paragraph 7 of these orders:
(a)The wife shall ensure the children have email, telephone and Skype facilities available with which the children may communicate with the husband and the wife shall support and encourage that communication; and
(b)If either of the children or the husband is unavailable for telephone or Skype communication, the husband, or in the case of the children the wife, shall forthwith notify the other party via email and shall suggest an alternative time.
That the husband shall arrange with the children’s schools to forward to him at his expense, copies of all school reports and any other relevant information or notices.
That each party is and shall be restrained from denigrating the other in front of the children or within earshot of the children or any of them.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Property Orders

That the parties shall forthwith sign all documents and do all acts necessary so that:
(a)From the monies held on trust for the parties by the solicitors for the wife, the wife shall receive the sum of $442,467 and the husband shall receive the sum of $278,548, save that the sum of $10,025 shall be deducted from the husband’s share and paid to the wife to meet costs orders in her favour made on 12 June 2009 and 22 July 2009.
(b)Any balance of monies held on trust for the parties by the solicitors for the wife shall be divided as to 65% to the wife and 35% to the husband.
That the wife shall, within 14 days of any written request by the husband, sign all documents and do all acts necessary to ensure that he receives approval to sell the Indonesian apartment registered in his name at Apartment 2, Jakarta and for him to retain all net sale proceeds, and the husband shall be solely liable for all mortgage payments relevant to the property and shall indemnify and keep the wife indemnified in relation to them.
That the wife shall, within 14 days of any request by the husband, sign all documents and do all acts necessary to ensure that he receives approval to sell the Mercedes Benz motor vehicle registered … and for him to retain all the net sale proceeds, and the husband shall be solely liable for all payments and expenses associated with that vehicle and shall indemnify and keep the wife indemnified in relation to them.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)Each party shall be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)Monies standing to the credit of the parties in any joint bank account are to become the property of the wife;
(c)Each party shall forego any claims they may have to any superannuation benefits belonging to or earned by the other; and
(d)Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
That the husband shall pay to the wife:
(a)the sum of $1,084 per month for G born … October 1994 by way of child maintenance; and
(b)The sum of $1,084 per month for F born … August 2004 by way of child maintenance;
(c)The sum of $650 per month for N born … 1992 by way of adult child maintenance until the end of the 2013 university academic year.
That the husband shall also pay G’s school fees at E Special School in the sum of $8,200 for each of 2010 and 2011 and 70% of F’s speech therapy costs within 14 days of his receipt of the invoice scanned to him by the wife.
That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.
That otherwise all existing applications shall be dismissed and the case removed from the list of cases awaiting finalisation.
That all questions of cost shall be reserved for a period of 28 days during which any party who proposes a costs application must notify Registrar Field and the other party in writing.

IT IS NOTED

That all references to school holiday periods are to the children’s Australian school holiday periods

IT IS ORDERED by consent between the husband and the second respondent and unopposed by the wife

That the husband shall forthwith do all acts and things to ensure that from his share of the monies held in trust for the parties by Tolhurst Druce and Emmerson, the sum of $56,189.50 shall be paid directly to Nevile & Co.

IT IS NOTED that publication of this judgment under the pseudonym Norman & Jones is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7487 of 2008

MR NORMAN

Applicant

And

MS JONES

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Ms Jones and Mr Norman cannot agree on the detail of parenting orders in relation to 15½-year-old G and 5½-year-old F. Nor can they agree on a property settlement, or child maintenance.
So far as the children are concerned, there is already an order for equal shared parental responsibility. The parties agree that the boys will continue to live with their mother, and that they will spend time with their father and communicate in between by telephone and Skype. The major area of contention was whether the children would spend time with their father in Jakarta where he lives, or only in Australia where the mother lives. At the end of the case, the mother conceded that they could travel. I shall make orders as to the details, many of which were ultimately agreed, some of which were not.
As to the property settlement, there are four steps.
The first is to determine the assets and liabilities. Much is agreed, although there is disagreement as to the value of contents in the Melbourne home, whether certain relatively small liabilities should be included in the pool, and whether various sums should be added back.
The second step is to consider each party’s contributions. The parties agree that overall their contributions were equal.
The next step is an analysis of the s 75(2) factors. I must consider the husband’s substantially higher income-earning capacity, and the wife’s responsibility for the care of the two young children, who have some serious medical issues, as well as the fact that the parties’ 18-year-old student son, N, is living with her.
The final step is to ensure that any order I make is just and equitable. Each party seeks a different outcome. I shall return to the detail.
The wife also seeks lump-sum maintenance for the adult child, and the two younger children. The husband agrees to pay maintenance, but on a periodic not lump-sum basis.

BACKGROUND

The husband was born in 1965. He is aged 44. He is a banking executive, … of the B Bank in Indonesia. The wife was born in 1965 and is 45 years’ old. She previously trained in medicine in Indonesia, then worked there as a banker. In Australia she has retrained in personal services and is proposing to run a part-time business from home in Melbourne starting after this case.
The parties married in 1990. N was born in 1992, followed by G in October 1994, and F in August 2004.
The parties moved to Australia in 1997 and became Australian citizens in 2003, also retaining their Indonesian citizenship. They separated in June 2008, 18 years’ after their marriage.
While they lived in Australia, the husband was working overseas for substantial periods. At the time of separation he was employed in Jakarta where he continues to live and work.
N has just finished his schooling at a private school and has started a university science degree.
G has a severe learning disability with borderline intelligence compounded by autism. He attends E Special School, a school designed to assist students unable to cope in mainstream education.
F has just started in prep at a local primary school. The wife’s hope is that like his older brother N, he will ultimately attend the private school. As F has been diagnosed with a severe language disorder and mild intellectual disability, it is anticipated that he will require additional support in the classroom, regular on-going speech therapy, and specialist teaching.

MATERIAL RELIED UPON AND ORDERS SOUGHT

The wife relied upon the following material:
·Her Amended Application filed 7 July 2009
·Her affidavit filed 7 July 2009
·Her affidavit filed 31 August 2009
·Her affidavit filed 17 February 2010
·Her financial statement sworn 22 February 2010 (Exhibit W1)
·The affidavit of Ms P filed 13 July 2009
·The affidavit of M filed 28 August 2009
·The affidavit of Ms C filed 12 February 2010
·The affidavit of Mr H filed 15 July 2009
·The affidavit of Mr M filed 4 September 2009
·The affidavit of Mr M filed 18 February 2010.
Mr H and Mr M were required for cross-examination, in addition to the wife.
The husband relied upon the following material:
·His Amended Response filed 27 January 2010
·His affidavit filed 21 July 2009
·His affidavit filed 8 September 2009
·His affidavit filed 16 September 2009
·His affidavit filed 27 January 2009
·His financial statement filed 21 July 2009
·His balance sheet filed 27 January 2009
·The affidavit of Ms W filed 8 September 2009
Ms W was cross-examined, in addition to the husband.
The husband appeared without legal representation. He is an intelligent man who was able to focus upon and address the relevant issues. I ensured that he had copies of the most pertinent sections of the Family Law Act relating to children’s best interests and the relevant considerations in a property case.

CHILDREN’S ISSUES

Relevant Legal Principles

Section 60B(1) of the Family Law Act 1975 sets out the objects of Part VII of the Act, to ensure 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.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
(a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)    parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)    parents should agree about the future parenting of their children; and
(e)    children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the court in determining what is in the child’s best interests. Section 60CC(4) provides that the court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).

The Regime for the Children’s Time with the Father

The parenting issues related to the two younger children. It was agreed that the children shall continue to live with their mother. It was also agreed that they will spend time with their father.
In counselling just before the final part of the hearing, the parties agreed a new regime of Skype and telephone contact between the father and children. Although there had been on-going issues in relation to whether interim Skype and telephone orders had been properly complied with by the mother, the husband withdrew a Contravention Application at the start of the case, on the understanding that I could take into account the conduct of the parties in determining the outstanding parenting issues. He said he retained the concern though that the mother would not comply.
The issue did not go away. Even when the case resumed for me to hear the end of the final submissions, the parties addressed me as to new issues surrounding the Skype communications that had arisen in the weeks since they had last been at court.
As the outstanding parenting issues had considerably narrowed by the end of the case, I need to deal only briefly with the relevant considerations under s 60CC of the Act.
There was no suggestion that it was other than in the boys’ best interests to have a meaningful relationship with their father as well as their mother. Similarly, the evidence did not suggest that they had other than a good relationship with their father, and enjoyed being with him. He has certainly shown a strong level of commitment to them, often travelling back and forth to Australia to see them, and overall with financial support (although I shall return to the contentious aspects surrounding that).
The husband’s complaint was as to the mother’s obstructive attitude towards his time and communication with the children. The evidence satisfied me that she had not made the appropriate effort to ensure the children’s telephone and Skype contact with their father, as provided under interim orders. Her excuse that she had not set up Skype (as required under the earlier orders), because she was not technologically competent, was lame. It was apparent that she had made insufficient effort to learn the simple process required so that the father and boys could communicate in that way.
Most significantly, although the wife had argued that the children should not be permitted to travel to Indonesia, apart from saying that it was not a Hague Convention country, she provided no basis for her expressed concern that the father would not return them to Australia.

As a family, the connection with Indonesia was always sufficiently important that wherever the husband was working, the family spent considerable school holiday time in Jakarta. The wife, like the husband, has extended close family in Jakarta. Her mother and five siblings are there. Importantly, her family and the husband’s family are on good terms. The maternal grandmother and paternal grandmother celebrate significant occasions together, and the relationship between the families is an important consideration in terms of a level of comfort that the children are likely to be safe and well cared for in Indonesia, and appropriately returned to Australia. Moreover, the husband was open and supportive of the mother being in Indonesia when the children were there, if she chose, and of the children being able to spend time with her and her family whilst there.
It was only in the course of final submissions, after I had queried the weight of evidence to support an order precluding the husband from taking the children to Indonesia, that the wife later conceded the point. The terms of the regime for the children’s time with their father were then largely arrived at by consensus.
The husband had tried to argue in the course of the case that the two boys could travel unaccompanied to Indonesia. He ultimately made a concession, appropriately and unavoidably on the evidence, that the boys should not travel alone. He agreed he would pay for the boys to travel with their mother, or he would come to Australia to collect and return them. Although his initial position – that the children could travel as unaccompanied minors – was not realistic in the circumstances of G’s disability, I did not form the view that the father’s attitude in any way indicated a lack of care or capacity to meet the children’s needs. It seemed that in an earnest desire to have his children spend time with him “at home”, and with his family, he had initially oversimplified the travel arrangements that would be required.
The ultimate agreement was for the husband to spend time with the boys in Indonesia for two weeks in the July school holidays and for two weeks in the summer school holidays, the latter period to coincide with the period from Christmas Eve to New Year’s Day, to maximise the number of public holidays that the father can take off from work. The mother will take the children to Indonesia for the July period and the father will collect the children from and return them to Australia in the summer school holiday period. The parties can otherwise agree in writing to a variation as to who travels with the children at any given time. The father shall pay all the air fares, including for the wife when she accompanies the boys.
When the case returned before me for the final submissions to be completed, the husband asked for the summer school holiday to be extended to three or four weeks. I propose that it should remain at two weeks, as agreed just a short time before. The children will already spend substantial times with their father, even when he is required to work, and I see no reason to extend the period in those circumstances. However, the husband’s request that the holiday periods in Indonesia include at least two week-ends is a reasonable one, to maximise his free time with the boys.
The wife had proposed an order that the husband be in substantial attendance when the children are with him in Indonesia, at least in part because of a concern that the children require particular supervision.
I am mindful that the husband has only 14 days’ annual leave, and that the orders provide for him to spend time with the children in Australia as well as Indonesia. The upshot is that he will frequently need to work when the children are with him in Indonesia. As I noted in the course of submissions, that reflects the reality of the lives of many children. They see and enjoy their parents in the context of their parents needing to work during the day.
Ultimately, it is most important that the children have the opportunity to spend that time with their father and his family, and for that matter the mother’s family, in Jakarta. It is an important part of their heritage, and a prominent part of their experience before their parents’ separation.
I am satisfied that it is appropriate that the husband be able to use family and a nanny to help look after the children. He spoke of maybe using a nanny who had been with the boys from as early as the days the family spent in Hong Kong, so she is familiar with G’s special needs. I am satisfied that whoever cares for the boys needs to be brought up to speed. The mother should be able to speak with anyone in that position to explain in advance the supervision that is required. The husband had no objection.
There was an agreement that when the mother is in Indonesia, she can see the boys two days’ per week from 9.00am until 5.00pm, collecting them from and returning them to the father’s apartment, so long as it is not on a public holiday or week-end, again when he and the children can enjoy leisure time.
When arrangements were first discussed for the husband to see the boys in Indonesia, there appeared to be a consensus that he could take them to visit Singapore or elsewhere. When the last part of the submissions were made, it seemed the wife objected. The evidence did not support any basis for her objection. Provided adequate notice is given, the husband should be able to travel with the children. However, in the circumstances of being in a foreign place without family support, in light of the boys’ special needs, the husband should not then be working.
There was discussion about the arrangements for the father to spend time with the children in Australia. There was agreement that he could see the children for seven nights in both the April and the September school holidays in accordance with the earlier orders of 13 January 2009. I am satisfied that it is also appropriate for him to be permitted to see the children for up to five nights during school term, with the appropriate notice to the wife, also in accordance with the earlier orders.
The wife wanted the father’s time in Australia with the children limited to week-ends in school term time so as not to disrupt them. I am satisfied that, to the contrary, it is in the children's best interests for their father to spend time with them in school time occasionally, so that he can be part of their school routine and participate with their friends and teachers in the school setting.
The husband had sought make-up time with the children to compensate for the lost communication time he said he had suffered because the wife had not complied with interim orders. He indicated that he was satisfied, if the above arrangements were put in place, not to pursue that further. Similarly he said he would not pursue his application for the mother to leave a financial bond as a guarantee that she would comply with orders.
Otherwise as to the Skype and telephone arrangements, the parties had met with a Family Consultant Ms L and reached an agreement just before the hearing.
They agreed three telephone calls each week and a Skype session every Sunday. They also agreed that the wife will support and encourage such communication, and each party shall notify the other via email if the scheduled communication could not take place on any occasion.
The Family Consultant advised that the husband was encouraged to find creative ways to engage the children during telephone calls and Skype. She advised further that the wife, for her part, needed to take a more active role in encouraging and supporting the children’s communication with their father. As noted, by the end of the case it was clear that these communications had still not proceeded without various hitches. A further degree of detail was discussed in the hope that such detail, which shall be included in the orders, will best support the regular communication between father and sons.
At the end of the hearing, I made orders to cover the 2010 June/July school holidays so that the parties could make travel plans pending these Reasons. I shall discharge those and other parenting orders but include them in these orders so that, for convenience, they are all in one document.

PROPERTY

It is appropriate to deal with the property orders before turning to the outstanding child maintenance issues.

The Assets & Liabilities

As noted above, many of the assets and liabilities are agreed. The most substantial of those assets is the sum of about $721,015 held in trust for the parties from the proceeds of sale of the former matrimonial home in Melbourne. The outstanding issues relate to:
·The value of the contents of the former matrimonial home
·The amount of the HELP debt to be included as a liability
·The husband’s debt to Ms W
·The parties’ credit card debts
·Monies removed by the wife from the parties’ re-draw facility
·A sum of $24,000 unpaid interest on the mortgage
·A $2,000 bond retained by the wife
·Monies retained by the husband in Indonesia.

The value of the contents of the former matrimonial home

The wife retained the contents of the Melbourne home. She values them at $10,000. The husband valued them at $35,750. They both valued the contents of the Jakarta apartment at $5,258.
Apart from the parties’ estimates, there was no evidence as to the current value of the furniture in Melbourne. It was apparently purchased in different locations according to the husband’s postings. The husband provided some evidence as to its original cost. The purchase price, and photographs, suggest that it is elegant, good-quality furniture. I can take judicial notice that although such furniture is likely to involve some substantial expense by way of purchase, it is likely to reap far less if realised as second-hand furniture. But I cannot guess at a valuation.
In the circumstances of there being no adequate evidence, the safe approach is to leave all furnishings out of the pool of assets, but for s 75(2) purposes, I shall take into account that the home contents retained by the husband in Jakarta are more modest than the contents retained by the wife in Melbourne.

The husband’s HELP debt

The husband claimed as a joint liability a HELP debt currently standing at $39,300, arising from his studies at the University of Melbourne in the course of the marriage.
Although the wife had disputed it, in final submissions she conceded it was a legitimate joint debt. The focus of the dispute shifted to the amount, and the parameters of that dispute were narrow.
It was agreed that in late 2009 the husband made payments of $11,250 to reduce the outstanding amount to $43,635. It was common ground that if the balance is paid in one lot, there will be a discount. The evidence was unclear as to whether the discount will be 10% or 15%. Mr Cantwell submitted that 15% should be allowed and the debt included at $35,403. The husband submitted that 10% should be allowed and the debt then included at about $39,300. I propose adopting the lower discount rate, noting that the husband has already paid some of the debt but is not seeking an add-back in that regard.

The husband’s debt to Ms W

The husband had claimed that he owed Ms W $20,450. Not only is the wife distrustful of him, that distrust is compounded when it comes to Ms W, with whom he had a relationship before the parties separated. The wife disputed that there was a genuine loan and therefore a genuine debt to Ms W.
Ultimately, by the end of the case, the wife conceded it was a genuine debt. The concession had to be made. Ms W was quite straight-forward in her evidence about advancing a loan to the husband in June and July 2009, for him to cover school fees and other outstanding sums at that time. Her account was not undermined, and the fact that she calculated a slightly lower outstanding figure than had the husband, gave me a sense that she was giving honest and straight-forward evidence, rather than simply trying to tailor her evidence to fit an agreed version. She calculated that, having re-paid some of the money, the husband now owes about $16,600. He suggested it was about $19,000 using an exchange rate pertinent to the time the debt was incurred.
In my view it matters little whether the outstanding amount is $16,600 or $19,000. It is not a joint debt of the parties. It is the husband’s personal debt. The monies were borrowed to meet school fees and spousal maintenance outstanding under court orders. I do not propose including the sum as a liability for the purpose of establishing the pool of assets. I could take it into account as part of the s 75(2) factors for consideration, but in any event it is anticipated that the husband will shortly repay Ms W from an upcoming bonus.

The parties’ credit card debts

The husband has personal credit card debts of about $25,000. The wife has personal credit card debts of about $6,000. I am satisfied that these reflect debts built up since separation. They should not be included in the pool. I can bear them in mind for s 75(2) purposes. In doing so, I am conscious that $10,000 of the husband’s credit card debt relates to part of his legal fees.

Whether monies removed by the wife from the parties’ re-draw facility should be added back into the pool of assets

On 21 July 2008, shortly after separation, the wife unilaterally transferred a sum of $200,000 from the parties’ re-draw facility on the mortgage account into an E-Saver account in her own name. She said it was “for safe keeping”. She said it was because she did not trust the husband. He said there was no basis for that distrust and in turn it made him extremely distrustful of her. I am satisfied that it was part of a spiralling distrust between them, and it was an imprudent action on her part. I shall return to that in another context. For present purposes, the decision is as to how much should be added back into the pool of assets.
The husband sought that about $127,000 be added back. He arrived at that figure acknowledging that from the $200,000, amongst other sums:
·$40,000 was deducted by way of court order, shared between the parties for legal costs;
·$12,000 was used for F’s school fees;
·$7,770 was used for N’s school fees; and
·$13,000 was used to pay out the wife’s Mercedes (which is included in the pool elsewhere and should not be double-counted).
In final submissions, Mr Cantwell submitted that nothing should be added-back into the pool taking into account the following:
·The balance of those monies retained by the wife in the E-saver account, now standing at $20,097, is already to be included in the pool and should not be double-counted;
·The $40,000 legal fees used equally by the parties should be brought back into the pool but not double-counted;
·$13,000 does represent payments on the Mercedes also included elsewhere in the pool and not to be double-counted;
·$12,000 represents F’s school fees according to court order;
·$39,000 represents 13 months’ of $3,000 per month drawn from the account by the wife pursuant to court order of 13 January 2009 (to be characterised by the trial Judge, but it should be spousal maintenance); and
·The wife otherwise spent $89,333, according to attachment “G” to her affidavit filed 31 August 2009, in relation to living expenses for herself and the children, school fees, and her own re-training.
Mr Cantwell submitted that as the husband had the higher income throughout the period, and as the wife was unable to work and was caring for three children, two of whom were handicapped, and she was making a modest effort to re-qualify herself for work, nothing should be added back into the pool of assets.
I am satisfied that $53,000 should be added back into the pool. The husband conceded almost $73,000 of the sum, thus claiming only $127,000 by the end of the case. However, that failed to take into account that $20,097 was already in the pool as the balance of monies in the wife’s E-saver account. I am satisfied too that the 13 monthly payments of $3,000 each (a total of $39,000), should be characterised as maintenance, in light of the wife’s needs and the husband’s means at the time. So too should a sum of $15,000 advanced to the wife by order of 1 December 2008. I need not determine whether it was for spousal maintenance or child maintenance. It was a mixture. In any event, in the uncertainty of the early months of separation, the sum of $15,000 used by the wife is insignificant in the scheme of things, particularly in light of the husband’s high income.

Whether $24,000 interest on the mortgage between April and November 2009 should be added back into the pool

In March 2008, the wife and the children moved from the matrimonial home in Melbourne into rental accommodation. They took a 12-month lease, paying $2,000 per month. Meanwhile, tenants moved into the former matrimonial home. The wife said the move was necessitated because the husband told her that they needed to reduce their expenditure. The rental received was paid into the mortgage account.
In March 2009, the lease on the former matrimonial home expired, as did the wife’s lease on the rental home. She then moved herself and the children back into the former matrimonial home. She said that she did so in order to present the property well for the sale that had previously been ordered by Brown J on 13 January 2009. She said that her solicitors informed the husband’s solicitors.
The husband complained that there was no discussion with him. He also complained that although the wife moved into the property, she then made no contributions towards the $3,000 per month mortgage instalments, during the nine months that she lived there. Throughout that period, she received from the husband $3,000 per month, was able to draw down a further $3,000 per month from the E-saver account, and had the children’s school fees paid by the husband. Although previously she had met the rental payments from those monies, she now paid no rent but still failed to meet a sum of $24,000 interest which built up on the mortgage between April and November 2009. The husband sought that sum to be added back into the pool.
The wife did not question the figure but disputed it should be added back into the pool. She argued that the property realised more than it would have otherwise realised had she not been living in the house. However, there was no evidence to support that. There was nothing measurable. As she was no longer required to pay in the vicinity of $550 per week by way of rental, it is not unreasonable to expect that, having moved back into the former matrimonial home, she would have met the interest on the mortgage as claimed by the husband at $24,000. I propose adding it back into the pool of assets.

Whether a $2,000 bond paid by the wife should be added back into the pool

When the wife moved herself and the children back into the former matrimonial home pending the sale, she retained the $2,000 bond returned on the rental property. The husband argued that sum should be added back into the pool as the wife did not have to move back into the former matrimonial home.
The orders made on 13 January 2009 provided that she be responsible for the sale of the former matrimonial home. It is arguable that it gave her leeway to return to live in the property, in the sense that she believed that she could run the sale better from that point of view. In any event, whenever and wherever she moved from the rental premises, and in whatever circumstances, she would have received it. Moreover, it is a very small sum. I do not propose adding it back into the pool.

Monies retained by the husband in Indonesia

This was a major issue before and during the hearing. It was the subject of several expert affidavits from a forensic accountant Mr M, the subject of evidence given by him in court, and the subject of substantial cross-examination of the husband. In his first report Mr M had estimated that the husband had retained more than $150,000 in Indonesia for his personal use over a period prior to and subsequent to separation. In his second report, he claimed it was about $107,000. Ultimately, the add-back claimed by the wife, was quite rightly not pursued. It could not be sustained.
The issue has some relevance to the parties’ conduct, which in turn has a bearing on the issue of capitalisation of child maintenance, and on foreshadowed applications for costs.

Conclusion as to the Pool of Assets

Assets

·     Matrimonial home proceeds  $ 721,015
·     The husband’s Jakarta apartment  $ 128,000
·     The husband’s Mercedes   $    43,000
·     The wife’s Mercedes  $    36,000
·     The husband’s NIB shares  $     1,400
·     The wife’s Westpac E-Saver account balance      $    20,097
·     The wife’s Westpac E account   $     3,518
·     The wife’s NAB account   $     9,533
·     The husband’s B Bank account   $     4,000
·     The wife’s legal fees added-back  $    20,000
·     The husband’s legal fees added-back  $    20,000
·     The interest on the mortgage added-back  $    24,000
·     Monies used by the wife from the parties’ joint
savings added-back  $    53,000

$1,083,563

Superannuation

· The husband’s Westpac superannuation $ 42,000

Liabilities

·     Mortgage on the husband’s Jakarta property  $   108 632
·     Monies owing on the husband’s Mercedes  $     41,300
·     The joint HELP debt   $     39,300

$ 189,232

The net assets including the husband’s superannuation $ 936,331

Contributions

As noted, it was agreed that contributions should be treated as equal.

Section 75(2) Factors

The parties are both in their mid-forties and are in good health. However, the similarity in their life circumstances ends there.
The wife receives $178 per week by way of family benefits, $53 carer’s allowance, and $171 single parent’s allowance. She will earn a modest income from her re-training in personal services, operating a business from home.
The husband on the other hand is a senior banker in Indonesia with a gross weekly income of $3,973 plus a $238 car allowance, and annual bonuses received in March/April and again at the time of Ramadan. By way of indication, the net bonuses received by him in 2008 were just over $45,000, or $865 per week. In 2009, the net bonuses were just over $38,000, or $730 per week.
The wife’s responsibility for the children is substantial. She cares for them on a day-to-day basis alone, with their father living off-shore. The younger two children have substantial disabilities. I am satisfied on the evidence that it is unlikely that G will be able to live independently for a long time, if at all. F is very young, and obviously requires special attention to fulfil his potential. Although N is over 18, he has just embarked upon full-time tertiary studies for four years, and it has always been and remains the parties’ shared intention that he shall complete tertiary studies to the level of his considerable abilities.
Although the wife bears the major responsibility for the children, the husband will be paying child maintenance and substantial sums for the purposes of spending time with them. Pursuant to the orders that I will make, he will be responsible for air fares for the mother and children to fly to Indonesia once every year, for the children to fly to Indonesia another time each year and for a return air fare for himself at the start and the end of that trip to accompany them. He will also be responsible for his own air fares at least for the remaining two school holiday periods in Australia, and on other occasions throughout the year. There is every indication from what has occurred since separation that he will exercise the option to visit the children a number of times each year. He has been unwavering in that commitment.
The husband reckons a combination of air fares and hotel, rental car and meals in Australia at a total of about $45,000 per annum. It is hard to be precise. Mr Cantwell reckoned the cost at substantially less, on the basis of an adult return air fare of $1,200 per trip, and 70% of that fare for a child. However there was no evidence as to the availability of a discounted fare for these children for the purposes of international travel. Mr Cantwell acknowledged an expense of up to $170 per night for a hotel in Melbourne, $70 per day by way of car hire and $100 per day by way of meals.
I am satisfied that the expense to the husband will be at least $23,000 per annum. That is on the basis of eleven air fares, allowing him to fly to Melbourne and collect the children and return them to Melbourne before returning to Indonesia each December, paying for the wife to bring the children to Indonesia and return each June, flying to Melbourne to spend a week with the children in each of the other school holidays, and flying to Melbourne to spend a week with the children on at least two other occasions each year. It takes into account hotels for four weeks in Melbourne and car hire and meals on the same basis. As there will be flexibility in how many times he will see the children during the year it is impossible to be specific, other than to say that he will be involved in substantial expense.
Mr Cantwell sought a 16.6% adjustment in the wife’s favour taking into account the s 75(2) factors. That is an odd amount, probably because he tried to “work backwards”, that is to achieve a settlement for his client of 80% of the existing asset pool once her property claim and capitalised child maintenance were combined. That is a flawed approach. Property orders and child maintenance involve separate considerations.
As it happens, an adjustment of 15% of the overall asset pool is not an unreasonable one in the wife’s favour. The husband did not take issue with that. I arrive at that conclusion taking into account that each party retains some furniture, the wife’s more valuable than the husband’s, and that each has credit card debts.

Conclusion Re Property Orders

If the wife retains 65% of the asset pool, she would retain $608,615, and the husband $327,716.
The wife has used or will retain the following:
·Her Mercedes   $36,000
·The E-saver account   $20,097
·The E account   $ 3,518
·The NAB account   $ 9,533
·Legal fees   $20,000
·The unpaid interest on mortgage  $24,000
·The joint monies   $53,000
$166,148
The husband has used or will retain:
·The Jakarta apartment  $128,000
·His Mercedes  $ 43,000
·The NIB shares  $    1,400
·The B Bank account  $    4,000
·Legal fees  $   20,000
·His superannuation  $   42,000
$238,400
The husband also retains responsibility for the following liabilities:
·The mortgage on the Jakarta apartment  $108,632
·The Mercedes debt  $ 41,300
·The HELP debt  $ 39,300
$189,232
Accordingly he will have $49,168 in net assets.
From the monies in trust, the husband needs to receive $278,548. The wife needs to receive $442,467.
Otherwise, the parties could not tell me the precise sum of interest earned since the start of the case. In any event it continues to build. Any sum above the $721,015 brought into account for this hearing, should be divided on the basis of 65% to the wife and 35% to the husband.
In considering if this division is a just and equitable one, I take into account that the husband’s share includes a sum of $42,000 for a superannuation entitlement that will not be realised for a number of years. In the circumstances of the wife’s immediate needs to house and support herself and three children, one as young as five, I am satisfied it is just and equitable.
I note that the wife has two costs orders in her favour, specified to be paid from the husband’s share of the property settlement. The first, made by consent on 12 June 2009, provided that $2,900 ordered against the husband by FitzGibbon SR on 3 April 2009 was to be paid from the proceeds of sale of the former matrimonial home. The second, on 22 July 2009, provided for the husband to pay costs of $7,125 to the wife. Accordingly, the orders shall reflect that from his share the sum of $10,025 shall be paid to the wife.

CHILD MAINTENANCE

The wife is seeking lump sum maintenance for the adult child N, and for the children G and F. She seeks $150 per week for N, capitalised at 5% for the four years of his university course, a total of $28,019. She seeks $250 per week for G for two years, capitalised at 5%, a total of $24,597, plus his E School fees for the next two years, a total of $16,400. And she seeks $250 per week for F for four years capitalised at 5%, a total of $46,865. In all, she seeks a lump-sum of $115,881.
The husband agrees to pay maintenance for G and F, as well as G’s school fees. The major dispute is not so much about the quantum that he will pay, but as to whether or not it should be capitalised. He wants to retain periodic payments.
As to G, the husband agrees that he will pay $1,000 per month. That amounts to $12,000 per annum, as opposed to the wife’s request of $250 per week which would amount to $13,000 per annum.
So far as F is concerned, he makes a similar offer to pay $1,000 per month, as well as 70% of fees incurred for his speech therapy.
The husband agrees to help support N through his degree. Again he disagrees with a lump-sum payment, and proposes a structure of payments directly to his son. It is fortunate that N has a scholarship of $6,000 per year that largely covers his university fees and books.
The husband’s perspective is that he wants to pay N directly so that his son appreciates that he cares for him. N currently chooses to have no relationship with his father. It was not clear whether it was because of a sense of loyalty to his mother, and/or anger with his father for having formed another relationship, or for other reasons. What was clear was that the husband dearly hopes for a reconciliation in their relationship.
He proposes paying $600 per month directly to N, plus continuing the credit card he currently provides with a limit of $400 per month. He is prepared to meet any university payments over and above the scholarship. He also suggests purchasing N a car and paying all registration and insurance, provided that he could use it to transport the younger children when he visits Australia to spend time with them. He also proposes paying one air fare per year for N to visit Indonesia provided it is used to see relatives and not, for example, cashed in.
I appreciate the husband’s desire to open the channels of communication with his son and that is something he will no doubt continue to do in any reasonable way that he can. However, there is no guarantee that making payments directly to the young man himself will achieve that. In the meantime it may well muddy the waters in terms of the wife’s continuing responsibility when it comes to N’s care. She is the one who should be put in the financial position to be able to run the household and meet his expenses. It is however entirely appropriate that N should be aware that his father is making and has agreed to make generous on-going contributions to his financial needs. That is something that the husband can communicate to him. At N’s age, it is not inappropriate for him to know the details.
I propose a formal order for $150 per week, as requested by the mother, paid monthly at $650 per month. As N’s scholarship covers his university fees I do not propose an order in relation to his father contributing in that respect. If the husband chooses to continue to contribute to a credit card payment, as he has been doing, and/or to purchase an annual return flight to Indonesia as he proposed, he may do so, but there will be no order.
Although the father’s proposal to purchase N a car is a generous and practical one, the offer has apparently fallen on deaf ears. Given what appears to be N’s negative attitude to his father at this point, again I am concerned that I would be adding complications if I adopted the father’s proposal to buy N a car on the proviso that it be used by the father when he is in Australia. The better course in my view is for the husband to negotiate directly with his son in due course if that becomes feasible. In the meantime I shall not make an order that he provide a motor vehicle, and the husband can continue to hire a vehicle when in Australia with the other children.
As to the capitalisation of the boys’ maintenance, the mother wants it capitalised in order to receive a greater lump sum payment from the existing assets. The father does not want it capitalised because he wants to realise some assets from the marriage. The motivations of each of them are understandable.
For the wife, she would be able to re-house herself and the children more comfortably with a higher capital base, or could invest more money for income. For his part, the husband would like to be able to purchase a small property in Melbourne so that he would have somewhere to stay with the children without needing to pay expensive hotel accommodation and without all the restrictions of a hotel room. He wants the normalcy of a home environment when he is with them. He also wants to pay periodic maintenance, in case there is any change in circumstances into the future.
Section 66K of the Family Law Act sets out the relevant matters in determining a party’s financial contribution towards the maintenance of a child. Section 66K(5) makes it clear that the Court must consider the capacity of a party to provide maintenance by way of periodic payments before considering the capacity of the party to provide a lump sum payment. In this case there is no argument that the husband has the capacity to pay the periodic sums sought by the wife.
It was submitted for the wife that the payment should be lump sum because the father resides in Indonesia which is not a reciprocating country for the purposes of enforcing Court orders. She pointed to what was referred to as a “history of non-compliance”, and in that respect referred to an enforcement summons of 26 May 2009 in relation to outstanding school fees which the husband paid only after the summons was issued. His “track record” was described by Mr Cantwell for the wife as “not good”, and Mr Cantwell pointed to a “reticence to provide documentation” in the course of preparing for trial. It was submitted further that there were sufficient funds in Australia in a trust account (from the sale of the former matrimonial home) that could meet the lump sum as sought, and that the husband’s obligations would be freed up (at least over the next several years).
Mr Cantwell referred me to the Full Court’s decision in Collins and Collins (1993) FLC 92-343. In that case, the trial Judge’s discretion to order lump sum child maintenance was upheld. I note however that the order for lump sum maintenance was made after the husband had failed to meet interest payments on the property settlement, and had stopped paying periodic child maintenance and school fees as previously ordered. It is not directly comparable to this case.
This is not a case where I can find that the husband’s track record is such that he has indicated an unwillingness or an unlikeliness to pay periodic sums. To the contrary, his track record overall shows that he has done so. The enforcement summons issued by the wife in May 2009 must be viewed against the backdrop that, without notice to the husband, she had removed $200,000 from joint monies. She had placed it into an account in her own name. It was the parties’ savings and an account from which school fees had usually been paid in the past. In addition, by then she had just moved the family back into the former matrimonial home so that rental was no longer being received on the property. She was not meeting the interest payments on the house. I am not suggesting that things were easy for her, given her responsibilities. However, although it is inexcusable not to meet a court order, the husband’s initial failure is perhaps explained by his frustration within the context that has just been outlined. In any event, the husband then did borrow the monies to make the appropriate payment.
Otherwise, Mr Cantwell could only point to the one outstanding costs order from FitzGibbon SR’s order of 3 April 2009. Although the sum was not fixed, and the evidence is scant as to how and when that occurred, I note that by 12 June 2009, it was agreed to be paid from his share of the sale proceeds.
Otherwise, despite extensive evidence and extensive cross-examination, as already noted, Mr M’s expert evidence could not prove anything against the husband, save that he had a substantial income-earning capacity. That was conceded by Mr Cantwell as the upshot of all the evidence. Although Mr Cantwell referred to a lack of co-operation by the husband in producing documentation, ultimately Mr M was able to make his calculations.
It is true that the husband displayed what I perceive as a lack of co-operation when at one point he claimed he could not produce bank records because they had been “purged”. Although the husband claimed it was the way in Indonesia, it was simply not credible that a senior banker could not have access to such records. I am fortified in that view by the husband’s evidence both in documentary and oral form. He is a meticulous and organised man. He showed himself as able to recall and reconstruct his financial records. I detected what was at that time a degree of petulance, again most likely in response to his irritation with what he perceived as the wife’s high-handed attitude.
Finally, I do not accept that the wife’s concern that the husband will not pay periodic maintenance is a genuine one. Were it so, I would expect that she would have sought a lump sum payment for a period longer than two years for G and four years for F, at least to the extent of the available assets. There is a strong probability that she will require and seek further financial assistance in relation to G even when he turns 18, given the likelihood of his dependence and incapacity for further study or any substantial income. F is only aged five and will clearly require assistance well beyond the next four years. It is apparent that any lump-sum maintenance is likely to be relatively short-lived, rather than bringing about finality and/or certainty.
I am satisfied that there should be orders for periodic sums to be paid. In the circumstances of each parent’s means, I am satisfied that the periodic sums for G and F should be set at $250 per week, and for N at $150 per week, as requested by the wife. The husband can afford that, even taking into account the considerable travel expenses.
As the husband is paid monthly, and he reasonably expressed a preference for orders to be couched in monthly terms, he will need to pay $1,084 per month for each younger child, and $650 per month for N. In addition he shall meet G’s school fees at E School in the sum of $8,200 for 2010 and 2011, as they fall due.

ORDERS

The orders that I propose, subject to submissions as to form, are as follows:
PARENTING ORDERS
1.That all previous parenting orders in relation to the children G born … October 1994 and F born … August 2004 (“the children”) shall be and are hereby discharged.
2.That the husband and wife shall share equal parental responsibility for the long-term decisions affecting the children.
3.That the children shall live with the wife.
4.That the children shall spend time with the husband:
In Indonesia:
(a)    In the June/July 2010 school holidays, between Thursday 24 June 2010 and Friday 9 July 2010 with the wife to deliver the children to the husband at the Jakarta airport on 24 June 2010 upon arrival of flight number … and the husband to return the children to the wife at the wife’s mother’s home in Jakarta at 4.30pm on 9 July 2010;
(b)    Commencing 2011, for two weeks in the June/July school holidays, including at least two week-ends, with the wife (or another adult with the prior written agreement between the parties) to accompany the children to and from Indonesia; and
(c)    Commencing 2010, for two weeks in the long summer school holidays, to coincide with the period from Christmas Eve to New Years Day, and including at least two weekends, with the husband (or another adult with the prior written agreement between the parties) to collect the children from and return them to Australia;
In Australia:
(d)    For up to seven consecutive nights in each of the first and third term school holidays PROVIDED THAT the husband shall give the wife not less than 7 days' notice in writing prior to the commencement of such period; and
(e)    For up to five consecutive nights during each school term at intervals of 4 to 5 weeks, PROVIDED THAT the husband shall give the wife not less than 7 days' notice in writing prior to the commencement of such period, and that the time spent shall be within Victoria.
5.That for the purposes of spending time with the children the husband shall be solely responsible for all costs of the return air tickets for the children and whichever parent or adult is accompanying them, as well as for any passports and visas required for the children’s travel.
6.That while the children are spending time with the husband in Indonesia:
(a)    In the June/July 2010 school holidays:
(i)The wife shall spend Wednesday and Thursday of each week between 9.00am and 5.00pm with the children, with her to collect the children from and return the children to the husband’s apartment; and
(ii)Otherwise when the father is unable to care for the children he shall arrange for them to be cared for by his family members;
(b)    Commencing in the 2010/2011 long summer school holidays:
(i)The husband is permitted to use his family and/or an adult nanny to assist in the care of the children provided that he shall first inform the wife of any new carer so that she may first have the opportunity to speak to them as to the children’s special needs;
(ii)If the wife is also in Indonesia she shall be permitted to spend two days in each week with the children from 9.00am until 5.00pm with the wife to collect the children from and return them to the husband’s apartment as agreed between the parties, but not being on a public holiday or week-end; and
(iii)The husband shall be permitted to travel with the children outside of Indonesia PROVIDED THAT he gives the wife not less than 7 days' prior written notice including an itinerary and contact details and also PROVIDED THAT the husband shall not work during such time spent outside Indonesia.
7.That the husband shall otherwise communicate with the children as follows:
(a)    By Skype each Sunday or public holiday for a reasonable time up to half an hour:
(i)at 8.30am Australian Eastern Standard Time when Victorian Daylight Saving time does not apply; and
(ii)at 9.00am Australian Eastern Standard Time when Victorian Daylight Saving time does apply;
(b)    By telephone three times each week by agreement or failing agreement on each Monday, Wednesday and Friday between 8pm and 9pm Australian Eastern Standard Time on either of the home telephone or G’s mobile phone, such communication to be for a reasonable time up to half an hour;
(c)    At such other times as may be agreed between the parties.
8.That for the purposes of paragraph 7 of these orders:
(a)    The wife shall ensure the children have email, telephone and Skype facilities available with which the children may communicate with the husband and the wife shall support and encourage that communication; and
(b)    If either of the children or the husband is unavailable for telephone or Skype communication, the husband, or in the case of the children the wife, shall forthwith notify the other party via email and shall suggest an alternative time.
9.That the husband shall arrange with the children’s schools to forward to him at his expense, copies of all school reports and any other relevant information or notices.
10.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
PROPERTY ORDERS
11.That the parties shall forthwith sign all documents and do all acts necessary so that:
(a)    From the monies held on trust for the parties by the solicitors for the wife, the wife shall receive the sum of $442,467 and the husband shall receive the sum of $278,548, save that the sum of $10,025 shall be deducted from the husband’s share and paid to the wife to meet costs orders in her favour made on 12 June 2009 and 22 July 2009.
(b)    Any balance of monies held on trust for the parties by the solicitors for the wife shall be divided as to 65% to the wife and 35% to the husband.
12.That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)    Each party shall be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)    Monies standing to the credit of the parties in any joint bank account are to become the property of the wife;
(c)    Each party shall forego any claims they may have to any superannuation benefits belonging to or earned by the other; and
(d)    Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
13.That the husband shall pay to the wife:
(a)    the sum of $1,084 per month for G born … October 1994 by way of child maintenance; and
(b)    The sum of $1,084 per month for F born … August 2004 by way of child maintenance;
(c)    The sum of $650 per month for N born ... 1992 by way of adult child maintenance until the end of the 2013 university academic year.
14.That the husband shall also pay G’s school fees at E Special School in the sum of $8,200 for each of 2010 and 2011 and 70% of F’s speech therapy costs within 14 days of his receipt of the invoice scanned to him by the wife.
15.That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.
16.That otherwise all existing applications shall be dismissed and the case removed from the list of cases awaiting finalisation.

IT IS NOTED

That all references to school holiday periods are to the children’s Australian school holiday periods.

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate:

Date: 13 May 2010

[2010] FamCA 379

13 May 2010

Key Legal Topics

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Family Law

Equity & Trusts

Civil Procedure

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Costs

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Procedural Fairness