PEALE & PEALE

[2020] FamCA 558

FAMILY COURT OF AUSTRALIA

PEALE & PEALE [2020] FamCA 558

FAMILY LAW – PARENTING – Where the child is an intelligent 15 ½ year old who suffers from five comorbid disorders – Where the wife seeks an order for sole parental responsibility and for there to be no extension of the time the child spends with his father and the husband seeks an order for equal shared parental responsibility and for the child to spend more time with him – Where the child’s expressed view about time is that there be no change – Where the single expert recommends change – Where it is in the child’s best interests to order equal shared parental responsibility and for there to be an extension of the time the child spends with his father  

FAMILY LAW – PROPERTY – Where the wife wishes to retain her residence – Where the husband is seeking 55 per cent of the property pool – Where the wife is seeking 65 per cent of the pool – Where it is appropriate and just and equitable to divide the assets as determined on the balance sheet as to 62.5 per cent to the wife and 37.5 per cent to the husband with the wife to have the opportunity to retain the home.

FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife’s application for spousal maintenance is dismissed.

Family Law Act 1975 (Cth) Part VII, ss 60CC, 79, 90XT, 106A
Family Law (Superannuation) Regulations 2001

In the marriage of Robb (1994) 18 Fam LR 489

APPLICANT: Mr Peale

RESPONDENT: Ms Peale

INDEPENDENT CHILDREN’S LAWYER: Alexander Naidovski

FILE NUMBER: SYC 6245 of 2014

DATE DELIVERED: 9 July 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 10, 11, 12 June 2020; 15 June 2020; 19 June 2020

COUNSEL FOR THE APPLICANT: Ms Eldershaw

SOLICITOR FOR THE APPLICANT: Croker Edwards

COUNSEL FOR THE RESPONDENT: Mr Ford

SOLICITOR FOR THE RESPONDENT: Owen Hodge Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Alexander

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sydney West Family Lawyers

Orders

PARENTING ORDERS

1. All previous parenting orders are discharged.

2. The parties are restrained from discussing the outcome of the parenting proceedings with X, born … 2004 (“X”), until they have met with Mr B and have made a decision about the best manner to inform X of the outcome.

3. Each party will do all acts and things to facilitate Mr B to assist X to adjust to the orders including but not limited to:

   (a)Providing Mr B with a copy of these orders, the Reasons for Judgment and the expert report of Dr C prepared in these proceedings and dated 23 December 2019;

   (b)Attend upon Mr B as soon as is practicable to discuss with Mr B what strategies should be implemented to inform X of the outcome of the parenting proceedings;

   (c)Implement that strategy in accordance with Mr B’s recommendations, including in the event Mr B believes it is appropriate, meeting with X to inform him of and/or discuss the parenting orders which have been made.

Parental responsibility

1. The parties shall have equal shared parental responsibility for the making of all decisions about issues of a major long term nature for X.

2. X is to remain enrolled at D School Suburb E Campus until the end of Term 4 of 2020.

3. X is to be enrolled at D School Suburb F Campus from Term 1 of 2021.

4. Except as agreed between the parties in writing, X’s treating health professionals shall be:

   (a)Dr G of the H Practice, General Practitioner; and

   (b)Dr J, Paediatrician; and

   (c)Mr B, Psychologist; and

   (d)Mr K, Occupational Therapist.

5. If a treating health professional identified in order 7 recommends that X’s treatment in their field of practice should be transferred to another specified practitioner in the same or a related field, then the name of the practitioner to whom X has been referred shall substituted into order 7 in place of the out-going health professional.

6. Order 7 does not apply in the case of a medical emergency, in which case the parent with the care of X may take him to the nearest appropriate medical centre or hospital Emergency Department but in so doing, will ensure that the discharge summary and any reporting letter is addressed to X’s General Practitioner.

7. The mother shall, within 14 days of these Orders, do all acts and things to provide to the father:

   (a)       X’s NDIS Reference Number; and

   (b)       a copy of X’s current NDIS Plan; and

   (c)access to X’s online NDIS Portal including the current password and log- in details; and

   (d)the name and contact details of the NDIS Agency Representative who oversees or reviews X’s NDIS Plan, and the Local Area Co-ordinator and Support Co-ordinator (if applicable) for X’s NDIS Plan.

Live with the mother

1. X shall live with the mother.

Time with the father during school terms

1. Commencing from the first weekend after Father’s Day 2020 (that is after 7 September 2020), X shall spend time with the father as follows during school terms based on a two-week cycle:

   (a)In Week 1: From 3pm or the conclusion of school on Thursday to 9am on Saturday; and

   (b)In Week 2: From 3pm or the conclusion of school on Thursday to 9am or the commencement of school on Monday.

2. To implement Order 12, “Week 1” of the two-week cycle shall accord with “Week 1” (or “Week A”) of X’s two-week school calendar class cycle.

School holidays

1. That the child spend time with the Father during Terms 1, 2 and 3 school holidays from 3:00pm or the conclusion of school (whichever occurs first) until the second Sunday at 6:00pm.

2. That the child spend time with the mother during Terms 1, 2 and 3 school holidays from 6:00pm on the second Sunday until the re-commencement of school term attendance.

3. In relation to the long term school holiday, the child’s time with the father commences from conclusion of school on the last day of school in December until 6:00 pm 11 January continuing each year thereafter, or as otherwise agreed in writing.

4. In relation to the long term school holiday the child’s time with the mother commences 6:00pm on 11 January until the commencement of school Term 1 attendance, continuing each year thereafter, or as otherwise agreed in writing.

Special occasion time

1. Notwithstanding any other order to the contrary the child shall spend time with the mother on special occasions as follows:

   (a)Mother’s Day from 10.30am to 9.00am the Monday immediately following;

   (b)On the mother’s birthday 30 December from 10.30am to 10.30am the following day;

   (c)If the child is with the father on his birthday 3 November, then from 3pm until 7pm on that day;

   (d)From 3.00pm to 7.00pm on 10 September each year and if this date falls on a non-school day, until 9.00pm;

   (e)From 3.00pm on the Eve of Religious festival 1 to 6.00pm on the Second Day of Religious festival 1;

   (f)From 3.00pm on the First Day of Religious festival 2 to 10.00am on the Second Day of Religious festival 2;

   (g)As agreed in writing between the parties.

2. Notwithstanding any other order to the contrary, the child shall spend time with the father on special occasions as follows:

   (a)After school on the Thursday of the weekend of Father’s Day to 6:00pm on Father’s Day;

   (b)If the Father’s birthday 3 November falls on a day when the Child is in the care of the Mother, from 3:00pm until 7:00pm;

   (c)From 6.00pm Good Friday to 6.00pm Easter Monday;

   (d)From 6:00pm on 24 December to 6:00pm on 26 December;

   (e)As agreed in writing between the parties.

Changeover

1. Unless changeover occurs at the school, all changeovers shall be at L Business carpark located in Suburb M in the State of New South Wales.

Other orders

1. Each party shall ensure that they administer to X any medication which X has been prescribed by a medical practitioner in accordance with the prescribing directions at times X is in their respective care.

2. The parties keep each other informed of their current residential addresses, home and mobile telephone numbers, and email addresses, but no later than 24 hours after any such change.

Interstate travel

1. The child is permitted to travel interstate with either parent during such times as the child is living or spending time with them, provided that the parent who intends to travel gives the other parent 14 days’ notice in writing of this intention, in addition to the following information:

   (a)An itinerary which includes the dates and times of travel, and flight numbers if applicable;

   (b)The name and address of any accommodation the child will be staying in; and

   (c)Contact details for the child while they are travelling.

2. The parent who is travelling with the child is to facilitate the child communicating with the other parent by telephone or text message while they are travelling interstate.

Overseas travel

1. The mother is to retain the child’s passports.

2. The child is permitted to travel overseas with either parent, during such time as the child is living with or spending time with that parent, provided:

   (a)The travelling parent provides the non-travelling parent with not less than one (1) months’ notice in writing of their intention to travel overseas with the child unless an urgent matter arises;

   (b)By not less than one (1) month prior to the overseas travel, the travelling parent shall provide the non-travelling parent with a copy of all itineraries, travel documents, contact numbers, and addresses of where the child will be staying with the travelling parent.

3. By not less than seven (7) days prior to the overseas travel, the travelling parent shall provide the non-travelling parent with evidence of a return ticket for themselves and the child.

4. In the event of overseas travel pursuant to these orders, the travelling parent shall encourage and facilitate the child to communicate with the non-travelling parent by telephone, text message and other electronic methods of communication during any period of overseas travel.

5. The parents are prohibited and restrained from causing the child to travel to any country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

6. The mother and the father shall ensure the child’s passport remains current and must ensure that the child’s passport is renewed at least 6 months prior to expiration, with the parent who intends to travel being responsible for the payment of such renewal.

7. The mother and the father must execute and return forthwith any forms including renewal applications as sent by the parent that holds the passports pursuant to these orders and must subsequently provide any supporting documents as requested or required by the parent that holds any passport pursuant to these orders, within seven (7) days of being requested to do so in writing.

8. The mother is to provide the child’s passport to the father on or before seven (7) days of the date of intended travel as noted on the travel itinerary provided to her.

9. That the father is to return the child’s passport to the mother within seven (7) days from the date of the child’s return to Australia.

Health, education and extra-curricular activities

1. Each party may confer with any teacher, school principal, tutor, coordinator or teacher of any extra-curricular activity of X in relation to X’s progress and development and such teacher or educator may provide such information as the parent reasonably requests without the consent of the other parent.

2. Each party may obtain from X’s school copies of his school reports, school newsletters, and circulars and school photographs at their own expense.

3. Each party shall ensure that the other parent’s name, mobile telephone number and email address is provided to any school or extra-curricular activity at which X is enrolled and that both parents are listed as emergency contacts for X.

4. Each party shall ensure that:

   (a)That the other parent’s name, mobile telephone number and email address is provided to any medical professional and allied health care provider associated with X’s care at the time that such professional/provider is consulted in relation to X;

   (b)That any medical professional and allied health care provider associated with X’s care has, authority to confer with the other parent in relation to X and to provide the other parent with all information in relation to X.

Notifications

1. Each party shall advise the other party of any appointment made for X with a medical professional or allied health practitioner within 24 hours of making such appointment.

2. The parties shall notify each other about any serious issues relating to X’s health as soon as reasonably practicable with such notification to include:

   (a)the nature of the issue, illness or injury experienced by X;

   (b)the name and contact details of any medical or other health practitioner who has attended upon or treated X;

   (c)all reasonable details of the treatment or management regime of the issue including:

   i)any prescription or non-prescription medication to be taken by X

   ii)any diagnostic testing to be undertaken; and

   iii)any follow up consultations that have been recommended and/or scheduled for X.

Restraints

1. Each party be restrained from:

   (a)Criticising or denigrating the other parent or any member of that parent’s household or extended family in the presence or hearing of X or allowing X to remain within the hearing or in the presence of any other person who does so;

   (b)Discussing these proceedings with X or showing him any document produced or created in these proceedings;

   (c)Criticising or denigrating the other parent or any member of that parent’s household or extended family to any medical or allied health professional or any person associated with X’s education or services provided to X.

PROPERTY ORDERS

1. A property settlement is made pursuant to s 79 Family Law Act 1975 (Cth) in the terms of paragraphs 42 to 61 hereof.

2. In these orders the following definitions apply:

   (a)“the Suburb O property” means the former matrimonial home at N Street, Suburb O in the State of New South Wales being the whole of the land in Folio Identifier ….

   (b)“the Suburb Q property” means the property known and situate at P Street Suburb Q in the State of New South Wales being the whole of the land in Folio Identifier ….

   (c)“R Pty Ltd” means R Pty Ltd (ACN …).

General provisions

1. Except as provided by any order to the contrary in these Orders, the wife shall be declared as against the husband the owner and thereby entitled to retain all his right, title and interest in:

   (a)All monies held in any bank account standing in her name or held for her benefit;

   (b)All superannuation interests standing in her name or to her benefit; and

   (c)All furniture, household furnishings, musical instruments, motor vehicles or other chattels currently in her possession or control.

2. Except as provided by any order to the contrary in these Orders, the husband shall be declared as against the wife the owner and thereby entitled to retain all right, title and interest in and to the following property:

   (a)R Pty Ltd;

   (b)All shares in publicly listed companies standing in his name;

   (c)All monies held in any bank account standing in his own name or held for his benefit;

   (d)All superannuation interests standing in his name or to his benefit; and

   (e)All furniture, household furnishings, musical instruments, motor vehicles or other chattels currently in his possession or control.

3. Forthwith the parties do all things and sign all documents necessary to cause any jointly held bank or financial institution accounts to be closed and the proceeds divided equally between the parties excluding CBA Account ending …03 which is to be transferred to the wife.

4. On or before 90 days from the date of these orders the wife pay the husband the sum of $262,601.

5. Contemporaneously with the payment referred to in the preceding paragraph, the parties shall do all acts and things and sign all documents as may be necessary to cause the wife to retain the whole of the Suburb O property to the exclusion of the Husband, and give simultaneous effect to the following:

   (a)The Wife shall refinance and discharge the Suburb O property mortgage, releasing the Husband of all liability; and

   (b)The Husband shall sign all documents necessary to transfer to the Wife all his right, title and interest together with all improvements, in the Suburb O property at his expense.

6. In the event that the wife fails to make the payment referred to in paragraph 46 the parties do all acts and things to sell the Suburb O property.

7. Except as otherwise agreed by the parties, the manner and process for the sale of each property shall be as follows:

   (a)The property is to be placed on the market and advertised on the open market for sale within 42 days of the date of these Orders.

   (b)So that a solicitor may be appointed to conduct the sale, the parties shall, within 14 days of the date of these Orders, appoint such solicitor as they agree upon to act on the sale of the property but failing agreement, the parties or either of them shall approach the President of the NSW Law Society or his nominee and seek a nomination in writing and the parties shall appoint such solicitor to act on the sale (“the Solicitor”).

   (c)So that a real estate agent may be appointed to conduct the sale, the parties shall, within 14 days of the date of these Orders, appoint such residential real estate agent as they agree upon in writing to sell the but failing agreement, the parties or either of them shall approach the President of the NSW Real Estate Institute or his nominee and seek a nomination in writing and the parties shall appoint such agent to act on the sales (the Agent).

   (d)Any costs imposed by the NSW Law Society and/or NSW Real Estate Institute in connection with paragraph 49(b) and 49(c) above shall be paid by the parties in equal shares.

   (e)The completion date of the Contract of Sale for each property shall be 42 days after exchange of contracts, unless otherwise stipulated by the Purchaser.

   (f)The method of sale shall be agreed between the parties, but failing agreement shall in the first instance be by public auction, with such auction to take place within 132 days of the date of these Orders.

   (g)If the property is offered for sale by private treaty, the list price (“the list price”) shall be as agreed by the parties in writing but failing agreement, as recommended by a certified valuer as agreed between the parties but failing agreement as nominated by the President of the Institute of Valuers (“the Valuer”).

   (h)If the property is offered for sale by public auction, the reserve price (“the reserve price”) shall be as agreed by the parties in writing but failing agreement as recommended by the Valuer.

   (i)The cost of the Valuer shall be borne by the parties in equal shares.

   (j)The parties shall co-operate in every way with the Agent including (without limiting the generality of the following):

   (i)making the keys available to the Agent;

   (ii)allowing inspection of the Suburb O property by the relevant Agent at all reasonable times requested by the Agent;

   (iii)ensuring that the Suburb O property is in a neat and clean condition at the time of inspection by the Agent and prospective purchasers;

   (iv)doing or saying nothing to hinder or prevent a sale; and

   (v)signing all documents requested by the Agent in relation to the listing for sale of the Suburb O property, except a contract or agreement for sale which has not been authorised by the solicitor acting on the sale.

8. If a purchaser makes an unconditional offer to buy the Suburb O property at a price that is not less than 95% of the list price (from time to time), and if both parties have not signed a Contract of Sale accepting such an offer within 24 hours of the offer being made in writing, the party wishing to accept the offer may accept it on behalf both parties and execute a Contract of Sale that binds both parties.

1. If there is an auction of the Suburb O property and:

   (a)the bidding does not reach the reserve price, the parties or such of them as attends the auction may negotiate with, and exchange a Contract of Sale that binds both parties, with the highest bidder or any other interested person and effect a sale at a price which is not more than 5% below the reserve price, or at such other price as the parties agree in writing; and

   (b)the said property is not sold on the day of the auction then within five (5) business days of the auction, the parties shall do all acts and things and execute all documents necessary to list the unsold property for sale by private treaty with the Agent.

2. If the Suburb O property remains unsold when listed for sale by private treaty for 6 weeks, the parties shall do all acts and things and sign all documents necessary to continue to relist the said Property for sale by public auction again at three monthly intervals, and the provisions applying to the first auction shall apply successively until it has been sold so that at each successive auction the reserve price shall be 5% less than the reserve price at the immediately preceding auction unless otherwise agreed by the parties in writing.

3. On completion of the sale of the Suburb O property, the proceeds of sale shall be distributed in the following manner and priority:

   (a)all costs and expenses of sale including legal costs and disbursements, agent’s commission and costs of sale;

   (b)discharge of all bank loans secured by the relevant property by way of registered mortgage;

   (c)the amounts required to pay any outstanding municipal and water rates relating to the said Property; and

   (d)the balance to be divided 82.7% to the wife and 17.3% for the husband provided that, in the event that the sale price is greater than $1,800,000 the wife shall receive 62.5% and the husband shall receive 37.5% of the increase and if it is less than $1,800,000 the wife shall bear 62.5% of that decrease and the husband 37.5%.

4. The Court allocates, as required by s 90XT(4) of the Family Law Act 1975 [Cth], the sum of $53,000 (“the Base Amount”) of the husband’s member balance in the Super Fund 1, Member Number …85 (“Super Fund 1”) to the wife in accordance with s 90XT(1)(a) of Act and in so doing, the Court:

   (a)creates an entitlement on the part of the wife to be receive the Base Amount in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

   (b)makes any necessary reduction to the entitlement the husband, or such other person to whom a splittable payment may be made, would have had in the Super Fund 1, but for these Orders.

5. Whenever the Trustee of the Super Fund 1 makes a splittable payment out of the husband's interest in the said Fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the Base Amount created by paragraph 54 in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.

6. The previous two paragraphs have effect from the operative time and the operative time is 4 business days from the date of these orders.

7. Except as otherwise provided in these orders, each party shall be solely liable for any personal loan, credit card liability or other debt, including any taxation liability, which is standing in their name or to their account and shall indemnify and keep indemnified the other party for such liability.

8. From the date of these orders, the each party shall indemnify and keep the other indemnified against all or any manner of action, suits, causes of action, arbitrations, debts, and demands whatsoever both at law and in equity which that party may now have or at any time in the future may have, howsoever arising.

9. From the date of these orders, the husband in his capacity as director of R Pty Ltd shall indemnify and keep the wife indemnified against all or any manner of action, suits, causes of action, arbitrations, debts, and demands whatsoever both at law and in equity which R Pty Ltd may now have or at any time in the future may have, howsoever arising.

10. The wife shall indemnify the husband in respect of any debt accruing to the wife’s mother.

11. The parties shall each do all acts and things and sign all documents, give all approvals and authorities as necessary to give effect to these Orders.

12. If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of s 106A of the Family Law Act to execute such documents on behalf of such party.

Spousal maintenance

1. The wife’s application for spousal maintenance is dismissed.

2. Either party can apply on 14 days’ notice in respect of the implementation of the financial orders.

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 Peale & Peale 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 6245 of 2014

Mr Peale

Applicant

And

Ms Peale

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The child X, who is an intelligent 15 ½ year old, suffers from five comorbid disorders, the principal of which is autism. The husband also suffers from autism but his disorder does not prevent him from being successful in his chosen occupation. X lives primarily with his mother and spends time with his father four nights a fortnight during school term. He expresses the view that he does not want that arrangement to change. The wife supports that view. The husband, the single expert and, in a different way, the Independent Children’s Lawyer (“ICL”), seek that X spend more time with his father. For reasons which follow, I have found it is in X’s best interests to make an order contrary to his views.

2. The wife has found decision making with the husband about X’s issues difficult. Notwithstanding an interim order for equal shared parental responsibility, the wife has sought to exclude the husband from involvement with the National Disability Insurance Scheme (NDIS), X’s therapist and school enrolment. For reasons which follow, I have made orders which attempt to maximise the husband’s involvement in X’s life.

3. The parties were together for over 12 years and have been separated for seven. The wife seeks 65 per cent of the net assets of the parties, including retention of the current home in which X lives by way of a final property settlement order. The husband says she should have 45 per cent of those net assets.

4. The wife also seeks an ongoing order for spousal maintenance.

5. The parties were ultimately able to agree on a significant number of ancillary parenting orders which were made by consent on 19 June 2020. For the sake of convenience, I intend to incorporate those consent orders with the orders I make about contested issues into a single set of final parenting orders. A copy of those consent orders are set out in Schedule 1.

Documents relied upon

1. The documents the parties initially relied upon based on their case outlines are set out in Schedule 2.

APPLICATIONS

1. Interim parenting orders were made by consent on 27 November 2015 although the time arrangements have been in place since mid-2013.

2. The full text of the remaining orders sought by each party (after the consent orders have been made) are set out in Schedule 3.

Parenting

1. The husband sought an order for equal shared parental responsibility. The wife sought an order for sole parental responsibility in relation to major long-term issues about health and education. The ICL supported the husband’s position in relation to an order for equal shared parental responsibility.

2. The current arrangements that have been in place since 1 August 2013 are that X ordinarily lives with his mother and spends time with his father during school term from after school Thursday to 7pm Saturday each week. With the parents having equal time during the school holidays.

3. The wife proposes that that arrangement continue except that the time conclude at 6pm Saturday each week (four nights a fortnight).

4. The husband makes an application that is consistent with the recommendations set out in the single expert, Dr C’s report of 23 December 2019.

5. That recommendation of Dr C was in the following terms:

   91.If X was reluctant to change the arrangements on Thursday and Friday night then perhaps an extra day could be added to his time with his father on every alternate weekend so that instead of returning to his mother's home on Saturday evening he remained at his father's until Monday morning and went to school from there.

6. The husband’s proposal is for the current four night a fortnight arrangement to be varied on the basis that X is with him during week 1 from after school Thursday to 9am Saturday and in week 2 from after school Thursday until the start of school Monday (six nights a fortnight). Whilst that adds an extra day, it also involves two extra nights a fortnight. This would align with “week 1” or “week A” of X’s two week school calendar class cycle.

7. In the case outline prepared by the ICL on 2 June 2020, the ICL expressed a preliminary view that X should have more time with his father consistent with Dr C’s recommendations. At the commencement of the hearing, the ICL indicated that in the period between 2 June and 20 June, the ICL had an interview with X and as a result, had changed their preliminary view to one which would accord with X’s long-time expressed view that he didn’t want anything to change in respect of time arrangements between his parents. By the end of the hearing, the ICL submitted there should be a change, supporting the husband’s proposal in respect of week 2 but limiting week 1 time to conclude at the start of school on Friday (five nights a fortnight).

Property

1. On the basis of the values asserted by the husband in the balance sheet, the husband seeks property interests be altered on the basis that he receive 55 per cent of the net assets of the parties excluding superannuation interests and that a splitting order be made in relation to superannuation so that each party is left with half of the combined superannuation interests of the parties.

2. On the basis of her balance sheet, the wife seeks 65 per cent adjustment of the net assets with the husband taking all of his superannuation interests without any splitting order being made. The wife seeks an opportunity to attempt to retain the Suburb O property.

Spousal maintenance

1. The wife seeks a final spousal maintenance order on an ongoing basis in the sum of $1,123 per week.

Short history

1. The husband was born on … 1970 and is currently 49 years old.

2. The wife was born on … 1970 and is currently 49 years old.

3. In early 1999 the parties commenced a romantic relationship.

4. The parties commenced to live as a couple together on a genuine domestic basis in late 2000 or early 2001.  

5. The parties married on … 2004.

6. The child, X was born … 2004 and is currently 15 years and 8 months old.

7. The parties separated under the one roof in May 2013.

8. The parties divorced on … 2014.

9. The husband did not read the affidavits of Ms S filed 18 September 2019 and Mr T filed 1 October 2019. The wife did not require the paternal grandmother nor Mr U for cross examination. The husband did not require Ms V, Ms W, Ms Z nor Ms Z for cross examination. Apart from the husband and wife, the only other lay witness was the maternal grandmother, Ms AA.

Impressions as to how the parties gave their evidence

Husband

1. The ICL submitted that the husband gave evidence in an honest way, for example, conceding that X did not shower during the weekend of 2 and 3 March 2019, the husband’s frank admission that given X’s currently expressed views, he did not know what orders were now in X’s best interests and his freely given concession that it wasn’t only he but also the wife who offered X their proficiency in music.

2. I accept the husband gave his evidence in a straightforward way, freely conceding matters which did not assist his case. For example, he accepted that in 2014 he sought a second opinion as to whether or not X could cope with mainstream school from Dr BB. He agreed and regretted he had acted in ways described in the wife’s affidavit at paragraphs 160–164.

Wife

1. In contrast there were some parts of the wife’s evidence where I formed the view that she was not being frank, particularly in respect of evidence that went to her compliance with the current order for equal shared parental responsibility.

2. I do not accept the wife’s evidence that her omission of the husband’s name on X’s application form for high school was not deliberate but rather came about because she had filled out the form too quickly. As highlighted in her oral evidence, there were parts of that form that contained considerable detail which the wife did complete. The parts of the form which invited the wife to give details about X’s father were, in contrast, left starkly blank.

3. I do not accept the wife’s evidence that she did not involve the husband in the NDIS funding process, including the development of goals for X, because payments by the NDIS can only be made to one parent. The husband made a request of the wife by email in March 2019 to provide X’s NDIS membership details including his ID and other associated information and the wife failed to respond to that part of the email. The wife had taken the view that it was far simpler for her and produced a better outcome for X if she did not involve the husband in the process. She was not prepared however to concede that that is why she excluded the husband from any knowledge about or being involved in the interaction with NDIS about X.

4. I did not accept the wife’s denial that she had not told Mr B that X was not competent to give his consent for his father to have information about his treatment with Mr B. This arose in circumstances, discussed below, in which Mr B had thought it necessary to contact his professional body to seek advice about a circumstance that had arisen.

5. I do not accept the wife’s evidence about how it was that X became aware of details about these legal proceedings in a way that allowed X to confront his father about them. The wife insisted it was not her who had any discussions with X about the details of the legal proceedings. She initially suggested it might have been the husband. The husband gave clear and cogent evidence about the manner in which he attempted to deflect any question that X raised about the details of these proceedings. The wife then suggested that the only other source for X would be her mother talking to him. The wife’s mother said in her affidavit:

   26.X said to me words to the effect “I told Dad that I want this Court case to be over.” X is a very private person and does not want to be subjected to another interview with the Family Consultant psychologist. X said to me “I am upset that the Court wants my medical records and bank details.” These have been requested and subpoenaed by his Fathers Solicitor’s. X also said to me “I spoke to Dad about this but he’s not listening.”

   (As per original) (Emphasis in original)

6. This paragraph would indicate that X had already spoken to his father at the time of this conversation. The wife’s mother’s evidence during cross-examination was that at least on one occasion (when the husband had issued a subpoena for X’s medical and bank records), that X had overheard a conversation between the wife’s mother and the wife about that topic and had then made an inquiry about what they were talking about. The maternal grandmother’s evidence was that she never went out of her way to say anything to X but if he overheard a conversation and asked questions she was honest with him. I infer that the wife was present during at least some of these conversations.

7. The family consultant observed that the wife was spending a considerable amount of her time and focus on preparation of these proceedings as a then unrepresented litigant. The wife’s mother observed that X and his mother lived in a “small” three bedroom house and that it was difficult for the wife to keep information about the case from X. I conclude that the wife was not being frank when she asserted that she had not discussed the case with X nor that X was not exposed to documents that were being prepared or had been received in relation to this case. X had formed the firm view that it was the husband who was driving this litigation and that he had the capacity to stop it by agreeing to what his mother wanted.

8. It was demonstrated during cross examination that the wife had not disclosed on more than one financial statement details of bank accounts which she held which contained amounts which were not insubstantial. The wife’s explanation again was that this was the oversight of an unrepresented litigant. I have difficulty accepting that explanation given the repetitive nature of the alleged oversight.

9. Unfortunately the proceedings disallow the mother to accept that the father has any ability to help care for X and have caused such a bitterness between the parties so that every point must be argued. There were also a number of examples of statements made by the wife in her written evidence purporting to be based on documents which statements proved not to be accurate when those documents were examined. An example of this was when the mother attempted to establish that X had, by reference to annexed school records, a number of unexplained absences when in the care of his father, but they showed that he was in fact in the care of his mother when those absences occurred.

The maternal grandmother

1. The maternal grandmother, Ms AA, was an impressive witness and I accepted her evidence. It emerged in her oral evidence that there was some limitations on her being able to comment about particular events or issues because of her not being an ordinary member of her daughter’s household.

Dr C’s evidence

1. Dr C was appointed as the single expert to provide an opinion about parenting issues in this case. Dr C saw the parties and X in 2016 and again at the end of 2019. Dr C’s recommendation was adopted in the terms now sought by the husband in relation to time in school term. Dr C’s recommendation in the second report is at paragraph 91 extracted at [13] above.

2. The basis for this recommendation can be primarily found at paragraph 76 of the report which is in the following terms:

   76.[The mother] consistently uses the fact that X has ASD as an argument for the need to maintain stability in his day to day life and, by reference to this, making no changes in the time he spends with his father. Although there is no dispute about the fact that X has ASD and a number of other diagnoses which impact on his day to day functioning, there are a number of problems with her argument. Firstly, all children with ASD are more than capable of dealing with change if it is managed in a way that is appropriate to their needs. X is a bright and articulate young man and he has the capacity to learn skills and to adapt to changes in his life. Secondly, based on his history and the recent information from his school and treating clinical psychologist, one of the main challenges for X is actually to develop some flexibility and to deal with situations that are not quite as he expected them or that do not go the way he wants them to. This will be an essential skill for him to learn as he grows into adulthood. He is making progress with this. Thirdly, the child has regularly been able to manage things that are outside his regular weekly routine, for example the change of arrangements which occurred around the current assessment and having support from different care workers. X recently attended a large family gathering with [the father] and his parents and by all accounts chatted and interacted with a wide group of unfamiliar adults.

1. At paragraphs 89 and 90, the single expert summarises how she balanced the most important considerations in this case:

   89.X is now stating that he does not wish to spend more time with his father and he wants the time he spends with him to remain the same. X is of an age where neurotypical young people would clearly be seen by the court as being able to advocate for themselves. He is an articulate and able young man and there is a need to consider exactly what weight to give to his views

   90.I think X does get concerned about change but this does not mean he does not have the capacity to manage it. In my opinion he would probably not be eager to embrace anything different from his regular routine straight away. Learning to deal with change is increasingly the challenge he has to face and he is already showing progress in terms of his capacity to do so. I think he is emotionally connected to his mother and is aware of her position in these proceedings and probably would not seek to go against her. However, I think spending more time with his father would actually be an appropriate step for him, particularly as Mr Peale has a very positive view of his future capacity and is able to encourage and teach him in some of his areas of interest and skill. A whole weekend with his father would also allow Ms Peale to have some time off and would not mean that X was left in the care of support workers.

2. During her oral evidence, Dr C was tested as to the basis of her recommendations but was not moved from her central contention that there should be an order for equal shared parental responsibility and an order for additional time notwithstanding the strength of X’s expressed views.

Detailed chronology

1. The husband was born on … 1970 and is currently 49.

2. The wife was born on … 1970 and is currently 49.

3. In 1989 the wife completed studies at BC University.

4. In 1991 the wife was gifted $32,000 for her 21st birthday by her grandparents.

5. In 1993 the husband graduated with a Bachelor degree from BD University.

6. From 1993 to 2000, Husband worked in IT for BE Company.

7. Between 1994 and 1997 the husband undertook further education at BD University.

8. The wife’s daughter from a previous relationship, Ms V, was born on … 1996.

9. The wife from around 1996 worked as a tutor after school for around 3-9 hours per week but had to stop teaching shortly after X was born.

10. In 1997 the husband instructed BF Firm to act for him on the purchase of the Suburb Q unit (off the plan). Ms BG has daily carriage of the matter and took instructions only from the Husband. The purchase price of the unit was $220,000 plus stamp duty and legal costs.

11. In early 1999 the parties commenced a romantic relationship and after that time the parties regularly stayed overnight at the residence of the other. The parties inspected the Suburb Q unit together prior to lockup stage.

12. By early 1999 the husband had only paid $1,000 holding deposit under the contract he had exchanged “off the plan” and paid a further $21,000 shortly after the parties had commenced their relationship to complete the 10 per cent deposit.”

13. At the commencement of the parties’ romantic relationship, the husband was working for BE Company. The wife was working part time at BH Company in a general office role, working as a tutor and in hospitality.

14. On … 1999 the Suburb Q unit sale was completed and property transferred to the husband. A purchase price of $220,000 was recorded on the Transfer. The purchase was funded by a loan from CBA of $176,000 and the balance was from the husband’s savings (ie approximately $44,000 plus legals and any stamp duty).

15. The wife asserted the parties commenced a de facto relationship in February 1999 but conceded in cross-examination that they did not start cohabitation until 2000. The husband says the parties commenced cohabitation in 2001. Doing the best I can I find that the parties began to live together as a de facto couple in a domestic relationship in late 2000 or early 2001.

16. In March 2000 the husband began working in IT for BJ Company with a base salary of $75,000 + super. He worked in this role until 2006.

17. At the commencement of the cohabitation, the husband leased the Suburb Q property to a tenant. The parties moved to a rental property at BK Street Suburb O. The parties and Ms V (then aged 4 ½ years) lived at this house until 2002. At this time, the Suburb O unit had increased in value to $300,000 and there had been some small reduction on the mortgage. In addition, the husband had superannuation entitlements of at least $21,925.  The wife had funds in a DB Bank Account of $20,890 (balance of her 21^st birthday gift) and her car.

18. In 2001 the wife undertook and completed a TAFE course in design and then in multimedia. She established a business called “BL Pty Ltd”.

19. The wife was diagnosed with Autonomic Cardiovascular Dysreflexia in 2001.

20. On 14 May 2002 the parties purchased a property at BM Street, Suburb O (“BM Street property”) for $576,000, as joint tenants, and lived in this house from 2002 until mid-2011. On 16 May 2002 the husband’s parents gifted $30,000 to the husband. These monies were later applied to renovations at the BM Street property.

21. In July, settlement of the BM Street property occurred. To fund the purchase the mortgage on P Street, Suburb Q was re-financed and a new loan created for $330,000 from the ANZ Bank. A further $460,000 was borrowed from Westpac and secured by the BM Street property.

22. On 23 December 2003 the husband’s parents gifted the parties $6,000 for their wedding reception. The wife’s parents also gifted about $3,000 for the wedding.

23. On 23 January 2004 the wife commenced a business, BN Pty Ltd (not currently active) which sold cosmetics.

24. The parties married on … 2004.

25. The child, X was born … 2004 and is currently 15 years and 8 months.

26. Following the birth of X the wife stopped teaching.

27. From January 2005 to August 2007 the husband’s parents gifted $12,930 to the parties.

28. In September 2006 the husband began working for BR Bank earning $140,000 + bonuses.

29. In 2007 the husband began suffering from depression and began seeing a psychiatrist, Dr BT who diagnosed Asperger’s Syndrome and ADHD, prescribing Ritalin.

30. On 23 September 2008 the wife commenced a business named BL Pty Ltd.

31. In late 2009 X’s preschool teacher mentioned to the wife that she may need to get X psychologically assessed due to signs of unusual behaviour and aggression.

32. In early 2010 the parties entered an Option Agreement with a developer, BU Company, to sell the BM Street property.

33. In early 2010 X attended an appointment with Dr BV (“Dr BV”), a developmental paediatrician. He diagnosed X with Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiance Disorder (ODD) in 2010. The wife says X has since been diagnosed with the following medical conditions:

    ·Attention Deficit Hyperactivity Disorder (ADHD);

    ·Aspergers – Autism;

    ·Obsessive Compulsive Disorder (OCD);

    ·Oppositional Defiant Disorder (ODD); and

    ·Anxiety.

34. In February 2010 the husband established “R Pty Ltd” which sells games on-line. The wife assisted in starting the business by assisting to register the company, organise EFTPOS facilities, arranging the website, taking phone calls from purchasers, helping at 4 expos (which were her idea), packing some orders. The husband selected the stock to sell.

35. In late 2010 the parties entered a contract to purchase N Street, Suburb O (“N Street”) for $1,185,000 plus stamp duty ($54,000). The purchase was financed by refinancing the BM Street property and borrowing $100,000 from the wife’s mother. The N Street property was leased for about $750 per week. The rental income was applied to the loans and outgoings.

36. On 26 November 2010 Ms AA, the wife’s mother, and the parties entered into a loan agreement for the amount of $100,000.

37. On 3 June 2011 the parties jointly establish the business, BW Business, which is a wholesale company selling games.

38. In August 2011 the husband was made redundant from his position at BR Bank. The husband received a redundancy payment of $52,258 which was applied to the costs of living for the family.

39. Between August 2011 and May 2012, while the husband was not working in administration, he operated pop-up stores for R Pty Ltd at Suburb BX shops.

40. On 13 July 2011 the parties moved from the BM Street house to a rental unit located at BZ Street, Suburb BX (“Suburb BX Unit”) paying around $800 per week so that X could attend BX Public School (“BX Public School”). The parties leased the BM Street property for about $600 pw. The rent was applied to the loan secured by the BM Street property.

41. The husband says he was not employed from August 2011 to May 2012 where he shared looking after X and Ms V.

42. In 2012 the husband was diagnosed with Type 2 diabetes.

43. On 1 March 2012 the parties jointly establish the business, CB Business, which has been deregistered.

44. In March 2012 the wife commenced receiving the Disability Support Pension.

45. In May 2012 the husband commenced working for CC Company earning $95,000 pa plus super and bonuses (about $3,000 pa).

46. On 15 June 2012 the parties moved to a rental unit at CD Street, Suburb CE (“CD Street”) paying $900 per week.

47. In October 2012 BU Company exercised its option over the property at BM Street and the property was sold for $1,899,000. Once the loan on the property was discharged, the parties netted $820,000. Settlement was on … 2012.

48. In … 2013 the parties and X travelled to Country CF for a holiday.

49. In May 2013 the wife had knee surgery.

50. The husband asserts the parties separated under the one roof around 23 May 2013.

51. On 24 May 2013 the husband agreed both verbally and via text message that the wife and the children could live in the N Street house as they had nowhere else to live. The wife emailed the real estate agent (CG Firm) of the N Street house requesting that the tenants vacate on 26 July 2013.

52. Around the start of August the wife, Ms V and X moved to N Street. X starts spending time with his father from Thursday afternoon to Saturday evening each week.

53. Between July 2013 and February 2016 the husband paid the loan repayments on N Street from his income.

54. On 22 July 2013 the wife withdrew $80,000 from CH Bank Account …46 being an account in her sole name (contained accumulated child support payments for Ms V and pension payments).

55. On 31 July 2013 the wife withdrew $6,600 from CBA account …93.

56. There was an exchange of communication between the husband’s solicitor and the wife in relation to these cash withdrawals. The wife did not engage with that communication by the end of September 2013 and the husband withdraw around $100,000 from the joint home loan offset account without the wife’s knowledge or consent. The balance of the mortgage at that time was around $101,500. The husband later redeposited $20,000 into that account and contacted the wife and told her to withdraw $20,000 which she did. During this period the wife paid council rates on a joint credit card which the husband paid.

57. The husband asserts in October 2013 the maternal grandmother registered a caveat on the N Street property.

58. By October 2013 the wife had cashed in the parties airline points valued at around $2,900.

59. In October/November 2013 there were various movements in bank accounts controlled by the wife (both deposits and withdrawals) which the husband asserted that the wife failed to properly explain.

60. On 10 October 2013 the wife registered a caveat on the Suburb Q property.

61. Between October 2013 and December 2014 the husband paid $10,450 from income or money borrowed from his parents to the N St mortgage.

62. On 13 March 2014 her mother loaned her the amount of $1,400 to pay outstanding monies on the purchase of family portraits ordered by the parties on 16 March 2013.

63. On 19 March 2014 the husband’s parents loaned him $7,000 to pay for a stock order for R Pty Ltd.

64. Around May 2014 the husband moved into a cheaper unit in the CD Street building, paying $650 per week.

65. On 26 September 2014 the husband took X to see Dr BB for an independent opinion without the wife’s involvement. Dr BB recommended that the parties follow the treatment of Dr BV.

66. In October 2014 the husband refused to return some of the wife’s belongings. This included her musical instruments which are heirlooms. The wife called the police to assist her.

67. On 12 November 2014 the husband commenced these proceedings in the Federal Circuit Court.

68. The parties were divorced on … 2014.

69. In 2015 X commenced school at the CK School. The wife organised a psychometric test from a registered psychologist at CJ University which she paid for in full at the request of CK School. The husband applied to the court and threatened the wife with an injunction as he did not want X attending CK School as he did not want to pay the fees.

70. On 14 May 2015 X was expelled from a course through the NSW Government Child and Youth Mental Health Service (“CYMHS”) when he repeatedly punched a psychologist on the chest and hit another one with his workbook.

71. On 27 May 2015 interim property orders were made pursuant to which the husband sold the BR Bank shares for $40,764 and applied the money to MISA#2. The share sale was a CGT event for which the husband was assessed to pay $4,505 in CGT. The CGT was paid by him from post separation income. The May 2015 orders also required that the parties pay the N St loan from the MISA #2 account.

72. On 19 June 2015 the parties each received $30,000 from joint funds per the May 2015 Orders. It appears that each party applied these funds to legal fees.

73. On 19 June 2015 the wife’s mother loaned her $52,240 interest free for living expenses.

74. On 27 November 2015 interim parenting orders were made by consent, which provided that the parties have equal shared parental responsibility; X live with his mother and spend equal time with his father on a weekly basis during school terms from after school on Thursday to 7pm on Saturday (Order 3.2.1) and special occasions.

75. On 5 February 2016 the wife changed the N St home loan payments to interest-only without the consent of the husband. The husband arranged for the loan to be changed back to principal and interest.

76. On 14 March 2016 she received a Section 88 demand letter from CL Firm via the Commonwealth Bank advising that the bank had placed the N Street property with their legal department and were threatening to foreclose. The wife emailed the husband’s lawyers on 29 April 2016 to express concern about the mortgage and repayments. Again, on 25 May 2016 the wife asserts she forwarded an email to the husband’s lawyers urgently raising her concern that a foreclosure was imminent.

77. The wife filed an Application in a Case on 5 July 2016 seeking urgent interim property orders in relation to the Commonwealth Bank home loan accounts.

78. In October 2016 the parties repaid $100,000 to the wife’s mother using funds in the MISA#2 account.

79. On 28 October 2016 at court, the husband agreed to change the N Street loan to interest only for 12 months. The parties attended the CBA and set up an “Everyday Offset” account into which they transferred $30,000 to meet future payments. They also transferred $52,900 from MISA #2 to pay the arrears on the home loan accounts.

80. On 22 November 2016 the wife filed an Application in a Case seeking urgent orders relating to the enrolment of X at D School, Suburb E Campus for year 7, 2017.

81. On 23 November 2016 a judge in the Federal Circuit Court ordered X to attend D School at Suburb E and ordered that the matter be transferred from the Federal Circuit Court to the Family Court of Australia.

82. On 1 December 2016 the husband’s parents pay $16,393 to CM Finance to discharge the car loan (Husband had paid $24,915 off this loan from income since separation).

83. X commenced high school in term 1, in 2017.

84. In February 2017 the wife took X to a Behaviour and Developmental Paediatrician, Dr J. Dr J agreed with the diagnosis that X has five co-morbid disabilities.

85. On 19 June 2017 the husband’s parents paid $5,005 to install a new air conditioner at the Suburb Q unit.

86. On 12 October 2017 Mr CM, brother of husband, purchased CO Street, Suburb CE NSW, which the husband moved into. The husband paid his brother $670/week rent from his personal account plus $70/week rent from the R Pty Ltd account.

87. In mid- January 2018 the wife withdrew $601,986.25 from MISA account #2 and deposited those funds into accounts in her sole name even though both signatures were required on this account. The husband contacted the bank and on 2 February the bank reversed the transactions.

88. In February 2018 the husband ceased to be employed with CC Company and received a redundancy/severance payment of $56,574.33 net which he applied to costs of living, child support and a new computer.

89. On 30 May 2018 the parties transferred the balance of MISA account #2 ($597,494) to the N Street home loan accounts and closed MISA #2. These funds are being drawn upon to meet the home loan repayments for the N Street property. They also transferred the balance of the CBA Everyday Offset account to the N Street loan ($3,986).

90. On 30 June 2018 the wife, without notifying the husband, arranged for another woman to attend at changeover at L Business Suburb M carpark to collect X. The husband objected to the wife doing so.

91. In September 2018 the husband began working for CP Company earning $140,000 pa + super.

92. The wife filed an Application in a Case on 25 September 2018 seeking that the final hearing be expedited.

93. On 2 March 2019 the husband did not return X at the court ordered time of 7pm. After numerous phone calls and texts to the husband and his refusals to return X the wife called the police. X was returned on 3 March 2019 at 10am.

94. On 23 May 2019 the wife’s mother lent her $50,000.

95. The parties and X attended interviews for the expert report with Dr C on 8 November 2019.

96. On 13 December 2019 the husband filed an Application in a Case and a Notice of Child Abuse, Family Violence or Risk of Family Violence. He sought that X live with him and alleges the wife is causing psychological harm to X. The husband also alleged the wife manipulates him, (the husband) verbally abuses him, denigrates him and goes out of her way to make his life more difficult.

97. Dr C’s report is dated 23 December 2019 and was released to the parties on that day.

Some discrete issues

The National Disability Insurance Scheme

1. The wife quite deliberately prevented the husband from having any information about or input into X’s NDIS plan, goal setting or NDIS funding arrangements.

2. In March 2019 the husband on two occasions specifically asked for information. The first request was met with a response “STOP pushing your own agenda” and the second request was ignored.

3. The wife has not disclosed that plan to the husband although the husband has a version of it for the period 30 April 2018 to 30 April 2019 which he obtained by way of documents under subpoena. That document indicated the wife has “custody” of X. This plan identified the wife as the only contact person and was sent to her at her home address. The plan makes no reference to the husband. Under the heading “Where I live and the people who support me”, the plan refers to the wife as X’s primary carer but states “There is no other informal support”. There is reference to X’s school teachers but no reference to the husband. In cross examination the wife queried what the word “support” meant. When asked whether or not the husband did support X, she grudgingly agreed that he was X’s parent and paid child support but was unable to otherwise think of any way that the husband supported X. However almost immediately when asked if she supported X, the wife without hesitation answered “yes” without any apparent difficulty in understanding what the word “support” meant. Eventually the wife did agree that the husband provided X with emotional, practicable, academic, moral and financial support.

4. I infer that the wife did not at that time inform Ms CQ that there was in fact an interim order for equal shared parental responsibility and that X was spending substantial and significant time with his father.

1. The wife was asked in cross examination about a document that had been completed by Ms CQ in June 2017. The wife sought to distance herself from the lack of reference to the husband on the plan saying that she wasn’t the person who wrote the plan. She however had to concede that what was written in the plan must have been based on information that she had provided to the NDIS.

2. It appears that about $60,000 of Commonwealth funding has been made available in 2018 and 2019 under the NDIS plan to support the goals that have been established for X.

CZ Service NDIS provider

1. CZ Service is one of the service providers funded by the NDIS. In a record which is dated between 10 May 2018 and 28 August 2018 the wife is recorded as having told the agency:

   (a)  All discussions with her need to remain confidential and should not be passed onto the father.

   (b)  No details should be recorded in writing to avoid information being subpoenaed.

2. The wife was frank in cross examination in saying that she had given those instructions because she didn’t want the husband receiving information that he could then use for his own forensic purposes in these proceedings. The instruction given is in circumstances where an order for equal shared parental responsibility operated.

Mr B

1. The husband emailed Mr B on 15 November 2018 in the following terms:

   I understand that you are seeing my son X. I am wondering if I could please receive a brief report on his progress.

2. Mr B replied saying that he did not have any record of a consent to release information.

3. On 25 July 2019 the husband again made a request to Mr B for information. Mr B sought supervision from a senior colleague after reviewing the ethical guidelines for working with children. He then decided to invite the husband to a scheduled appointment at a time following X’s next appointment.

4. On 28 August 2019 Mr B discussed with X the husband desire to receive information about his treatment. In the absence of the wife X gave his consent and signed a consent form with the writer “if it didn’t make his mother uncomfortable”. Mr B spoke to the wife alone and noted “[the wife] expressed concern that [the husband] may be trying to obtain information from him to use in the upcoming court case against her”. Mr B recorded that the wife had refused her consent and further, that the wife had disputed that X had capacity to give consent. I accept Mr B’s note represents what the wife said and not the wife’s denial that she said it. Mr B on 28 August 2019 sought advice about his ethical and legal position from his professional body. On 30 September 2019 the husband was able to see Mr B with X.

5. Similar to her reason for keeping information about the NDIS from the husband, the wife said that she opposed Mr B giving any information to the husband about X’s treatment for the same reason, namely, that he might use that information against her in these proceedings.

High school enrolment

1. The wife said that she left the husband’s name off the form because she was “in a hurry”. This was in circumstances where she had filled out detailed information about X’s past schooling including pre-schooling, Medicare and medical details and had taken the time to read the part of the signing page of the form which related to permission to publish information about X and accessing online services. I do not accept that she did not read the declaration as to accuracy prior to her signing her name immediately beneath that declaration.

The choice of school

1. So far as I can ascertain it, whilst the wife said that this issue occupied the court on two days, I am unable to see how that is so.

2. The relevant procedural history was that:

   a)On 5 July 2016 the wife filed an Application in a Case seeking property orders

   b)On 26 October 2016 the husband filed a Response which included an application that X’s high school be CR High School

   c)On 22 November 2016 the wife filed a further Application in a Case nominating D School.

3. I accept the husband’s oral evidence that he was served with this application at court on 23 November 2016, (the wife has not adduced any evidence to dispute that). There is some suggestion that between 10 November 2016 and 22 November 2016 the wife may have indicated her preference for D School to the husband. An order was made endorsing the wife’s choice on 23 November 2016. I accept the submission by the husband that it could not be said that there was a protracted dispute in relation to what high school X would attend.

4. In 2014 there was an issue about whether or not X should attend a specialist autism school or attend a main stream school in the satellite support class. In mid-2014 the wife completed an enrolment form for X to attend CK School without the knowledge of the husband. The husband was however aware that the wife wished X to attend CK School. It was in those circumstances that the husband, without telling the wife, sought a one off second opinion from Dr BB to understand the severity of X’s condition (not his diagnosis) and his ability to participate in main stream school. Dr BB opined that with proper support X could attend a main stream school but Dr BB encouraged the husband to follow the advice of X’s treating paediatrician.

5. The wife unilaterally started X at CK School without the husband’s consent with the husband only discovering that that decision had been taken by the wife at the commencement of term 1 2015. The husband’s oral evidence was that he at that point decided not to interfere as to do so would be more disruptive to X.

The husband’s Notice of Risk of Child Abuse, Family Violence or Risk of Family Violence

1. In December 2019 the husband had become so concerned about X’s anxiety arising from the ongoing litigation, being locked out of the NDIS process and what he perceived as the wife’s enmeshment with X that he filed an Application in a Case seeking an order that X live with him. Simultaneously he filed a Notice of Risk.

2. The husband in cross examination was reluctant to concede that many of the assertions that he made in that Notice when viewed in context were inappropriate.

3. The Notice alleged that the wife was causing X to suffer serious psychological harm in the following eight ways:

   ·By causing the child’s disabilities to be more debilitating than they are and by stunting and hindering his development;

   ·By referring to the child as “disabled” and encouraging him to withdraw from activities due to his “disabilities”;

   ·By discussing the court proceedings and the dispute with the wife and husband with the child, and by arranging for others to do so;

   ·By threatening the child in relation to his interactions with the husband;

   ·By withholding the child from the husband in order to advance her case in the proceedings;

   ·By exposing the child to conflict;

   ·By utilising X for financial gain; and

   ·By criticising the child to the husband.

4. During cross-examination the husband retracted “encouraging him to withdraw from activities due to his ‘disabilities’” in allegation two and retracted allegation 4 in its entirety.

5. The Notice of Risk indicates that an application for contravention may have been prepared but none was ever filed.

6. The application that X live with him was the application which the husband was pursuing at the time of the interviews with the single expert. Having read the recommendations of the single expert, the husband adopted those recommendations and abandoned his application that X primarily live with him.

7. I accept that the issuing of the Notice did not do anything other than to exacerbate tensions between the parties and as a consequence, increase X’s anxiety.

X running away from school in 2014

1. The wife gave evidence about X running away from school in 2014 from the grounds of BX Public School. The school records indicate that this happened on four occasions in August and September 2014. On three of the four occasions X reached the school gate before returning. On another occasion, he stopped “outside a neighbouring house”. The wife in her evidence attached a Google map showing that X on one occasion had travelled 1.6 kilometres from the school. That evidence was not consistent with the school records but the wife was not tested in respect of her assertions.

X’s absences from school

1. The wife, in her affidavit, said that X had a series of unexplained absences from school whilst in his father’s care in 2014. In support of her assertion, the wife attached an “absentee note” from the school. In cross examination by the ICL, the wife conceded that all the dates listed by the school on that note were in fact dates when X was in her care. Her explanation was as an unrepresented litigant she had incorrectly attached the wrong document to her affidavit. The only independent evidence I have supports the finding that X missed school on quite a number of days whilst he was in the wife’s care in 2014.

The approach in children’s cases

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) 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

2. The principles underlying those objects (unless contrary to a child’s best interests) are:

   (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).

3. Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

4. Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.

Statutory considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a))

1. It is not controversial that X has a meaningful relationship with both his mother and his father. I find that both X’s parents are able to give him different things. The wife is very nurturing towards X and has been the parent who has driven all his attendances at therapy and the engagement in various services. The wife is acutely aware of X’s vulnerabilities. The husband, on the other hand, has a keen interest in math and is also on the autism spectrum himself. I accept the single expert’s opinion that that provides the husband with an insight into how X thinks and perceives the world. X and his father also share the same sense of humour.

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b), noting s 60CC(2A))

1. The wife gives some evidence as to some historical incidents where the husband behaved in inappropriate ways. The husband freely admits he did so. The husband’s behaviour did not involve physical harm to the wife.

2. X has not been exposed to any family violence and there is no risk of him being abused or neglected either by his mother or his father who both clearly love him.

3. At the end of 2019 the husband filed a Notice of Risk of X being exposed to serious psychological harm due to his mother’s behaviour. That behaviour centred around the husband’s conviction that the wife’s sharing of information about the legal process with X.

The child’s views (s 60CC(3)(a))

1. Counsel for the wife refers to [35] of the High Court’s decision in Bondelmonte:

   The terms of s 60CC(3)(a) itself may be taken to recognise that, whilst a child's views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed. Children may not, for example, appreciate the long term implications of separation from one parent or the child's siblings. Section 60CC requires that attention be given by the court to these matters.

2. When the single expert met X in 2016, X was aged 11. He told the single expert that “he wanted to spend more time with his father” both when interviewed alone and interviewed in the presence of his mother. The single expert records that X was able to explain the reason why he wanted to spend more time with his father and said “I am not very happy because I don’t get much time with my dad”. X suggested that maybe he could spend some additional time with his father on a Sunday and that his father could take him to school on Monday. The views expressed by X alone to the report writer at that time seemed to be his own as he indicated he was unaware as to what views either parent would have about what he wanted.

3. By the time of the interview for the second report at the end of 2019, X’s expressed views had significantly changed. There is no doubt that X has, in recent times, consistently and strongly expressed the view that he does not want anything to change in relation to the time that he spends with his father. He has also expressed the view that he does not believe that his views are being heard by the court.

4. Dr J in the report dated 18 September 2019 records at paragraph 4 that X “[d]oes not like the father changing the time at the different households from a regular weekly routine to an alternating routine that is different on different weeks”.

5. In Mr B’s file notes he records that on 25 September 2019 during an appointment with X:

   X was asked what he would like to discuss with his father, X reported “I want him to leave knowing that this isn’t the best thing to do”. [Mr B] asked for clarification of what he meant, X report (sic) “Court and the not settling thing.”

   Why do you want him to settle?

   X: “Because nothing else has to happen. I don’t want things to change” – X then clarified he meant “what’s happening with my routine, how much I’m seeing my mum and dad, and how I’m seeing them.”

6. Dr C records at paragraph 63:

   I note that X has discussed his views that he did not want anything to change about his living situation both with his paediatrician, Dr J and clinical psychologist, [Mr] B. Dr J wrote a letter summarising the view that X expressed to him in his letter dated 18 September 2019. [Mr] B stated that on the occasion that he recently met with X and his father, X expressed this view to his father and requested that he end the legal process.

7. At paragraph 89, Dr C records:

   X is now stating that he does not wish to spend more time with his father and he wants the time he spends with him to remain the same. X is of an age where neurotypical young people would clearly be seen by the court as being able to advocate for themselves. He is an articulate and able young man and there is a need to consider exactly what weight to give to his views.

8. Dr C struggled with the question as to whether or not X was Gillick competent. I accept that X has the cognitive ability to understand what he is being asked and the meaning of his answer. However, Dr C emphasised that X’s emotional and social development meant that X’s overall ability to appreciate the ramifications of his expressed view was inadequate. Dr C opined that in some instances, X functions at the level of a 5 or 6 year old child and at others at the level of a child in year 7. Her assessment was that generally X was emotionally and socially immature for his chronological age.  

9. Socially X’s attitudes have been moulded by the fact that he has lived in the same house with his mother which has left him to feel anxious:

   ·About being the focus of these court proceedings;

   ·About being the reason why in part his mother is herself clearly stressed and anxious;

   ·About knowing that there was a possibility arising from these proceedings of him no longer being able to live in the Suburb O property; and

   ·Because of his predisposition to avoiding change as a feature of his condition.

10. The protracted continuation of these proceedings over a period of seven years have had an obvious psychological effect upon X to the extent that he confronted his father believing that it was his father alone who had the capacity to end the litigation (for example, X’s joint interview with his father and Mr B). This would involve the husband abandoning the views that he had formed in relation to what was best for X and abandoning any claim for a property settlement order that would risk his mother having to leave the Suburb O property.

11. It was unfortunate that the maternal grandmother honestly responding to questions from X about whether or not his father had subpoenaed medical and bank records, as it was “better than lying to him” (as if there was not a third alternate approach).

12. It is likely the wife on occasions did share information about the proceedings directly with X. It is also likely X was acquiring that information as a result of simply being in the wife’s household at the time that she was preparing the case. This exposure was not helpful for his emotional wellbeing. The wife showed distress in front of the single expert at the time of the interviews for the second report. She also showed distress at times when giving her oral evidence. It is unlikely that they are isolated incidents. I find it is probable that the wife in her own household has from time to time demonstrated in front of X the distress that she feels arising from the continuing litigation. In those circumstances, I find that X himself has been concerned about his mother’s welfare and has formed the view that he needs to support a position in the proceedings. There is possible enmeshment or interdependence between X and his mother.

13. Ordinarily the strongly and consistently expressed views of a 15 ½ year old child will be so weighty in a parenting controversy as to be decisive.

14. However, X’s medical disorders and the family dynamics with which X has to deal, mean that the weight that is to be placed upon X’s expressed views needs to be considered in a nuanced way. 

15. X is an intelligent and articulate young person who has expressed a clear view as to what he wants. It will be difficult for him to understand, if the recommendations of the single expert are implemented, that his voice has been heard. The weight to be given to his clear expressed views however needs to be reduced because of other competing considerations that bear upon what outcome in respect of parenting orders is in his best interests.  

Relationships of the child with the parents and other persons (s 60CC(3)(b))

1. X has a close bond with his mother and father as well as both sets of paternal and maternal grandparents. X has had a close relationship with his grandparents and other extended family members as he has been growing up. X’s grandparents on both sides have always played an active role in his life.

2. There is no doubt that X has some marked behavioural and emotional regulation problems and that the brunt of those difficulties has fallen most heavily upon the wife. I have regard to the fact that the wife was self-represented and faces her own health challenges. Overlaid on all of that is that the intense focus by the wife on attending to X’s needs also carries with it the prospect that as X grows into adulthood and independence, the wife will need to redefine the role that she plays in X’s life.

1. Unless changeover occurs at the school, all changeovers shall be at L Business carpark located in Suburb M in the State of New South Wales.

2. Judgment on the remaining parenting and financial issues is otherwise reserved.

   Exhibit 15

BY CONSENT:

1. In these orders, “the child” means X born … 2004.

2. That the child shall live with the mother.

3. That the child is to remain enrolled at D School Suburb E Campus until the end of Term 4 of 2020.

4. That the child is to be enrolled at D School Suburb F Campus from Term 1 of 2021.

Special Occasion Time

1. Notwithstanding any other order to the contrary the child shall spend time with the Mother on special occasions as follows:

   5.1.Mother’s Day from 10.30am to 9.00am the Monday immediately following.

   5.2.On the Mother’s birthday 30 December from 10.30am to 10.30am the following day.

   5.3.If the child is with the Father on his birthday 3 November, then from 3pm until 7pm on that day.

   5.4.From 3.00pm to 7.00pm on 10 September each year and if this date falls on a non-school day, until 9.00pm.

   5.5.From 3.00pm on the Eve of Religious festival 1 to 6.00pm on the Second Day of Religious festival 1.

   5.6.From 3.00pm on the First Day of Religious festival 2 to 10.00am on the Second Day of Religious festival 2.

   5.7.As agreed in writing between the parties.

2. Notwithstanding any other order to the contrary, the child shall spend time with the Father on special occasions as follows:

   6.1.Deleted intentionally

   6.2.If the Father’s birthday 3 November falls on a day when the Child is in the care of the Mother, from 3:00pm until 7:00pm.

   6.3.From 6.00pm Good Friday to 6.00pm Easter Monday.

   6.4.From 6:00pm on 24 December to 6:00pm on 26 December.

   6.5.As agreed in writing between the parties.

School Holidays (Terms 1, 2 and 3)

1. That the child spend time with the Father during Terms 1, 2 and 3 school holidays from 3:00pm or the conclusion of school (whichever occurs first) until the second Sunday at 6:00pm.

2. That the child spend time with the Mother during Terms 1, 2 and 3 school holidays from 6:00pm on the second Sunday until the re-commencement of school term attendance.

Long Term School Holidays (December / January)

1. In relation to the long term school holiday, the child’s time with the Father commences from conclusion of school on the last day of school in December until 6:00 pm 11 January continuing each year thereafter, or as otherwise agreed in writing.

2. In relation to the long term school holiday the child’s time with the Mother commences 6:00pm on 11 January until the commencement of school Term 1 attendance, continuing each year thereafter, or as otherwise agreed in writing.

Changeover

1. Deleted intentionally

Other Orders

1. Each party shall ensure that they administer to X any medication which X has been prescribed by a medical practitioner in accordance with the prescribing directions at times X is in their respective care.

2. That the parties keep each other informed of their current residential addresses, home and mobile telephone numbers, and email addresses, but no later than 24 hours after any such change.

Interstate Travel

1. The child is permitted to travel interstate with either parent during such times as the child is living or spending time with them, provided that the parent who intends to travel gives the other parent 14 days’ notice in writing of this intention, in addition to the following information:

   14.1.An itinerary which includes the dates and times of travel, and flight numbers if applicable;

   14.2.The name and address of any accommodation the child will be staying in; and

   14.3.Contact details for the child while they are travelling.

2. The parent who is travelling with the child is to facilitate the child communicating with the other parent by telephone or text message while they are travelling interstate.

Overseas Travel

1. That the Mother is to retain the child’s passports.

2. The child is permitted to travel overseas with either parent, during such time as the child is living with or spending time with that parent, provided:

   17.1.The travelling parent provides the non-travelling parent with not less than one (1) months’ notice in writing of their intention to travel overseas with the child unless an urgent matter arises.

   17.2.By not less than one (1) month prior to the overseas travel, the travelling parent shall provide the non-travelling parent with a copy of all itineraries, travel documents, contact numbers, and addresses of where the child will be staying with the travelling parent.

3. By not less than seven (7) days prior to the overseas travel, the travelling parent shall provide the non-travelling parent with evidence of a return ticket for themselves and the child.

4. In the event of overseas travel pursuant to these orders, the travelling parent shall encourage and facilitate the child to communicate with the non-travelling parent by telephone, text message and other electronic methods of communication during any period of overseas travel.

5. The parents are prohibited and restrained from causing the child to travel to any country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

6. The Mother and the Father shall ensure the child’s passport remains current and must ensure that the child’s passport is renewed at least 6 months prior to expiration, with the parent who intends to travel being responsible for the payment of such renewal.

7. The Mother and the Father must execute and return forthwith any forms including renewal applications as sent by the parent that holds the passports pursuant to these orders and must subsequently provide any supporting documents as requested or required by the parent that holds any passport pursuant to these orders, within seven (7) days of being requested to do so in writing.

8. That the Mother is to provide the child’s passport to the Father on or before 7 days of the date of intended travel as noted on the travel itinerary provided to her.

9. That the Father is to return the child’s passport to the Mother within 7 days from the date of the child’s return to Australia.

SCHEDULE 2

Husband

• Affidavit of Mr Peale filed 9 October 2019

• Affidavit of Mr Peale filed 13 December 2019

• Financial statement of husband filed 27 February 2020

• Affidavit of Ms CW filed 1 October 2019

• Affidavit of Mr T filed 1 October 2019 (initially relied upon but ultimately not read)

• Affidavit of Ms BG filed 1 October 2019 (initially relied upon but ultimately not read)

• Affidavit of Mr U sworn 28 January 2020

Wife

• Affidavit of Ms Peale filed 31 July 2019

• Affidavit of Ms Peale filed 23 February 2020

• Affidavit of Ms Peale filed 3 January 2020

• Financial Statement of wife filed 6 May 2020

• Affidavit of Ms AA filed 9 October 2019

• Affidavit of Ms AA filed 12 June 2020

• Affidavit of Ms V filed 9 October 2019

• Affidavit of Ms W filed 9 October 2019

• Affidavit of Ms Z filed 23 December 2019

• Affidavit of Ms Z filed 23 December 2019

Independent Children’s Lawyer

• Report of Dr C 4 October 2016

• Report of Dr C 23 December 2019

SCHEDULE 3

Husband

PARENTING – contested applications remaining after consent orders made 19.6.20 in respect of various parenting issues

1. In these orders, “X” means X born … 2004.

Parental responsibility

1. That the parties shall have equal shared parental responsibility for the making of all decisions about issues of a major long term nature for X.

2. Unless otherwise agreed between the parties in writing, X shall:

   3.1.attend, until the completion of Year 12, D School; and

   3.2.undertake his Higher School Certificate.

3. Except as agreed between the parties in writing, X’s treating health professionals shall be:

   4.1.Dr G of the H Practice, General Practitioner; and

   4.2.Dr J, Paediatrician; and

   4.3.Mr B, Psychologist; and

   4.4.Mr K, Occupational Therapist.

4. If a treating health professional identified in Order 4 recommends that X’s treatment in their field of practice should be transferred to another specified practitioner in the same or a related field, then the name of the practitioner to whom X has been referred shall substituted into Order 4 in place of the out-going health professional.

5. Order 4 does not apply in the case of a medical emergency, in which case the parent with the care of X may take him to the nearest appropriate medical centre or hospital Emergency Department but in so doing, will ensure that the discharge summary and any reporting letter is addressed to X’s General Practitioner.

6. The mother shall, within 14 days of these Orders, do all acts and things to provide to the father:

   7.1.X’s NDIS Reference Number; and

   7.2.a copy of X’s current NDIS Plan; and

   7.3.access to X’s online NDIS Portal including the current password and log- in details; and

   7.4.the name and contact details of the NDIS Agency Representative who oversees or reviews X’s NDIS Plan, and the Local Area Co-ordinator and Support Co-ordinator (if applicable) for X’s NDIS Plan.

7. Each party shall ensure that they administer to X any medication of which X has been prescribed by a medical practitioner in accordance with the prescribing directions.

Live with

1. Deleted intentionally.

Time with father during school terms

1. X shall spend time with the father as follows during school terms based on a two-week cycle:

   10.1.In Week 1: From 3pm or the conclusion of school on Thursday to 9am on Saturday; and

   10.2.In Week 2: From 3pm or the conclusion of school on Thursday to 9am or the commencement of school on Monday.

2. To implement these Order 10, “Week 1” of the two-week cycle shall accord with “Week 1” (or “Week A”) of X’s two-week school calendar class cycle.

School holidays

1. Deleted intentionally

Special occasions

1. Deleted intentionally

2. The mother’s time with X shall be suspended and X shall spend time with the father as follows:

   14.1.From 10.30am on Father’s Day until 9am the next day;

Changeover

1. Deleted intentionally.

Health, education and extra-curricular activities

1. Deleted intentionally.

2. Deleted intentionally.

3. Deleted intentionally.

4. Deleted intentionally.

Communication between the parties and notifications

1. Except as otherwise agreed, the parties communicate all non-urgent issues relating to the care, welfare and development of X via the Our Family Wizard App, except in cases of emergencies when communication shall be via telephone.

2. That each party shall notify the other party of any change to their telephone number, address and email address or home address as soon as reasonably practical and in any event no later than 24 hours following any such change.

3. Each party shall advise the other party of any appointment made for X with a medical professional or allied health practitioner within 12 hours of making such appointment.

4. Deleted intentionally.

Restraints

1. Deleted intentionally.

Travel

1. Deleted intentionally.

2. Deleted intentionally.

3. Deleted intentionally.

4. Deleted intentionally.

Explanation of and adjustment to these orders

1. Each party will do all acts and things to facilitate Mr B to assist X to adjust to the Orders including but not limited to:

   29.1.Providing Mr B with a copy of these Orders, the Reasons for Judgment and the Expert Report of Dr C prepared in these proceedings and dated 23 December 2019 (with leave being granted pursuant to s 121 of the Act to permit the same); and

   29.2.Causing X to attend on Mr B as recommended by Mr B for this purpose; and

   29.3.Themselves attending on Mr B as recommended by Mr B to develop strategies and skills to assist X to adjust to the Orders.

Other

1. That all prior parenting orders be discharged.

PROPERTY (email from Ms CX 18/6/20 1015am)

1. In these orders the following definitions apply:

   1.1.“the Suburb O Property” means the former matrimonial home at N Street, Suburb O in the State of New South Wales being the whole of the land in Folio Identifier ….

   1.2.“the Suburb Q Property” means the property known and situate at P Street Suburb Q in the State of New South Wales being the whole of the land in Folio Identifier ….

   1.3.“R Pty Ltd” means R Pty Ltd (ACN …).

General provisions

1. Except as provided by any order to the contrary in these Orders, the wife shall be declared as against the husband the owner and thereby entitled to retain all his right, title and interest in:

   2.1.All monies held in any bank account standing in her name or held for her benefit;

   2.2.All superannuation interests standing in her name or to her benefit; and

   2.3.All furniture, household furnishings, musical instruments, motor vehicles or other chattels currently in her possession or control.

2. Except as provided by any order to the contrary in these Orders, the husband shall be declared as against the wife the owner and thereby entitled to retain all right, title and interest in and to the following property:

   3.1.R Pty Ltd;

   3.2.All shares in publicly listed companies standing in his name;

   3.3.All monies held in any bank account standing in his own name or held for his benefit;

   3.4.All superannuation interests standing in her name or to his benefit; and

   3.5.All furniture, household furnishings, musical instruments, motor vehicles or other chattels currently in his possession or control.

3. That forthwith the parties do all things and sign all documents necessary to cause any jointly held bank or financial institution accounts to be closed and the proceeds divided equally between the parties including CBA Accounts ending …17 and …03.

Real property

1. Within 14 days of the date of these Orders, the wife do all acts and things necessary to remove the caveat registered on the Title to the Suburb Q property.

2. The parties do all acts and things to sell the Suburb O Property for the best price reasonably obtainable.

3. The parties do all acts and things to sell the Suburb Q Property for the best price reasonably obtainable.

4. For the purpose of giving effect to Orders 6 and 7, except as otherwise agreed by the parties, the manner and process for the sale of each property shall be as follows:

   8.1.The property is to be placed on the market and advertised on the open market for sale within 42 days of the date of these Orders.

   8.2.So that a solicitor may be appointed to conduct the sale, the parties shall, within 14 days of the date of these Orders, appoint such solicitor as they agree upon to act on the sale of the property (it being intended that the same solicitor act on both sales) but failing agreement, the parties or either of them shall approach the President of the NSW Law Society or his nominee and seek a nomination in writing and the parties shall appoint such agent to act on the sale(s) (“the Solicitor”).

   8.3.So that a real estate agent(s) may be appointed to conduct the sale, the parties shall, within 14 days of the date of these Orders, appoint such residential real estate agent(s) as they agree upon in writing to sell the property (such agent need not be the same person) but failing agreement, the parties or either of them shall approach the President of the NSW Real Estate Institute or his nominee and seek a nomination in writing and the parties shall appoint such agent(s) to act on the sales (“the Agent or Agents”).

   8.4.Any costs imposed by the NSW Law Society and/or NSW Real Estate Institute in connection with Order 8.2 and 8.3 above shall be paid by the parties in equal shares.

   8.5.The completion date of the Contract of Sale for each property shall be 42 days after exchange of contracts, unless otherwise stipulated by the Purchaser.

   8.6.The method of sale shall be agreed between the parties, but failing agreement shall in the first instance be by public auction, with such auction to take place within 84 days of the date of these Orders.

   8.7.If the property is offered for sale by private treaty, the list price (“the list price”) shall be as agreed by the parties in writing but failing agreement, as recommended by a certified valuer as agreed between the parties but failing agreement as nominated by the President of the Institute of Valuers (“the Valuer”).

   8.8.If the property is offered for sale by public auction, the reserve price (“the reserve price”) shall be as agreed by the parties in writing but failing agreement as recommended by the Valuer.

   8.9.The cost of the Valuer shall be borne by the parties in equal shares.

   8.10.The parties shall co-operate in every way with the Agent(s) including (without limiting the generality of the following):

   8.10.1.making the keys available to the Agent(s);

   8.10.2.allowing inspection of the properties by the relevant Agent at all reasonable times requested by the Agent;

   8.10.3.ensuring that each property is in a neat and clean condition at the time of inspection by the Agent(s) and prospective purchasers;

   8.10.4.doing or saying nothing to hinder or prevent a sale; and

   8.10.5.signing all documents requested by the Agent(s) in relation to the listing for sale of each Property, except a contract or agreement for sale which has not been authorised by the solicitor acting on the sale.

5. If a purchaser makes an unconditional offer to buy either or both of the Suburb O Property and the Suburb Q Property at a price that is not less than 90% of the list price (from time to time), and if both parties have not signed a Contract of Sale accepting such an offer within 24 hours of the offer being made in writing, the party wishing to accept the offer may accept it on behalf both parties and execute a Contract of Sale that binds both parties.

6. If there is an auction of either or both of the Suburb O Property and the Suburb Q Property s and:

   10.1.the bidding does not reach the reserve price, the parties or such of them as attends the auction may negotiate with, and exchange a Contract of Sale that binds both parties, with the highest bidder or any other interested person and effect a sale at a price which is not more than 5% below the reserve price, or at such other price as the parties agree in writing; and

   10.2.the said property is not sold on the day of the auction then within five (5) business days of the auction, the parties shall do all acts and things and execute all documents necessary to list the unsold property for sale by private treaty with the Agent; and

7. If either or both of the Suburb O Property and the Suburb Q Property remains unsold when listed for sale by private treaty for 6 weeks, the parties shall do all acts and things and sign all documents necessary to continue to relist the said Property for sale by public auction again at three monthly intervals, and the provisions of Order 8.8, Order 9 and Order 10 shall apply successively until it has been sold so that at each successive auction the reserve price shall be 5% less than the reserve price at the immediately preceding auction unless otherwise agreed by the parties in writing.

8. On completion of the sale of the Suburb O Property and the Suburb Q Property, the proceeds of sale shall be distributed in the following manner and priority:

   12.1.all costs and expenses of sale including legal costs and disbursements, agent’s commission and costs of sale;

   12.2.discharge of all bank loans secured by the relevant property by way of registered mortgage;

   12.3.the amounts required to pay any outstanding municipal and water rates relating to the said Property;

   12.4.the balance to be paid into a Controlled Monies Account in the names of the parties pending completion of the sale of both the Suburb O and Suburb Q Properties.

Calculation of capital gains tax on the sale of the Suburb Q property

1. Not less than 14 business days prior to the completion of the sale of the Suburb Q Property, the parties shall do all acts and things to instruct a Chartered Practicing Accountant, who shall be agreed between the parties but failing agreement, DD Firm, to estimate the husband’s Capital Gains Tax liability arising from the realisation of the Suburb Q Property (“the CGT Estimate”).

Distribution of consolidated sale proceeds of the Suburb O and Suburb Q properties

1. Upon the receipt of the net sale proceeds of the Suburb O and Suburb Q Properties into the Controlled Monies Account, such consolidated fund shall be distributed as follows:

   14.1.Such sum to the husband as accords with the CGT Estimate; and

   14.2.Such sum to the husband as to reimburse him for the reasonable costs of preparing the Suburb Q Property for sale to a maximum of $20,000 (or such higher amount as agreed between the parties in writing); and

   14.3.Provided that the parties agreed in advance to spend money or do works to prepare the Suburb O Property for sale, then the party who expended such agreed amount for that purpose shall be reimbursed for it; and

   14.4.Of the balance:

   14.4.1.such portion to the wife as to result in her retaining 45% of the net non- superannuation assets of the parties accounting for assets already in her possession and control; and

   14.4.2.such portion to the husband as to result in him retaining 55% of the net non-superannuation assets of the parties accounting for assets already in her possession and control.

Superannuation splitting orders

1. The Court allocates, as required by Section 90XT(4) of the Family Law Act 1975 (Cth), the sum of $76,000 (“the 1st Base Amount”) of the husband’s member balance in the Super Fund 1, Member Number …85 (“Super Fund 1”) to the wife in accordance with Section 90XT(1)(a) of the Family Law Act, and in so doing, the Court:

   15.1.creates an entitlement on the part of the wife to be receive the 1st Base Amount in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

   15.2.makes any necessary reduction to the entitlement the husband, or such other person to whom a splittable payment may be made, would have had in the Super Fund 1, but for these Orders.

2. Whenever the Trustee of the Super Fund 1 makes a splittable payment out of the husband's interest in the said Fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the Base Amount created by Order 14 in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.

3. Orders 14 and 15 have effect from the operative time and the operative time is 4 business days from the date of these orders.

4. The Court allocates, as required by Section 90XT(4) of the Family Law Act 1975 (Cth), the sum of $58,000 (“the 2nd Base Amount”) of the husband’s member balance in the Super Fund 1, Member Number …18 (“Super Fund 1”) to the wife in accordance with Section 90XT(1)(a) of the Family Law Act, and in so doing, the Court:

   18.1.creates an entitlement on the part of the wife to be receive the 2nd Base Amount in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

   18.2.makes any necessary reduction to the entitlement the husband, or such other person to whom a splittable payment may be made, would have had in the Super Fund 1, but for these Orders.

5. Whenever the Trustee of the Super Fund 1 makes a splittable payment out of the husband's interest in the said Fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the Base Amount created by Order 17 in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.

6. Orders 17 and 18 have effect from the operative time and the operative time is 4 business days from the date of these orders.

Releases and enforcement

1. Except as otherwise provided in these orders, each party shall be solely liable for any personal loan, credit card liability or other debt, including any taxation liability, which is standing in their name or to their account and shall indemnify and keep indemnified the other party for such liability.

2. That from the date of these orders, the each party shall indemnify and keep the other indemnified against all or any manner of action, suits, causes of action, arbitrations, debts, and demands whatsoever both at law and in equity which that party may now have or at any time in the future may have, howsoever arising.

3. That from the date of these orders, the husband in his capacity as director of R Pty Ltd shall indemnify and keep the wife indemnified against all or any manner of action, suits, causes of action, arbitrations, debts, and demands whatsoever both at law and in equity which R Pty Ltd may now have or at any time in the future may have, howsoever arising.

4. The parties shall each do all acts and things and sign all documents, give all approvals and authorities as necessary to give effect to these Orders.

5. That in the event that either party fails to execute any document necessary to give effect to these orders, the Registrar of the Family Court of Australia at Sydney be appointed pursuant to s 106A of the Family Law Act to execute the document on behalf of the party who refuses or neglects to execute it and do all acts and things necessary to give force and effect to these orders AND FURTHER the party refusing or neglecting to execute the document or documents pay the costs of the other party on a solicitor-client basis in relation to obtaining the Registrar’s signature.

6. That the Respondent pay the Applicant’s costs of and incidental to these proceedings.

WIFE – contested applications remaining after consent orders made 19.6.20 in respect of various parenting issues

Spousal maintenance

1. That the Applicant pay periodic maintenance to the Respondent in the sum of $1,123.00 per week, commencing seven days after the date of this order.

2. That maintenance under Order 1 shall be paid by being deposited into the Respondent's bank account BSB: … and Account Number: …36.

Parenting orders

1. All prior parenting orders are discharged.

Parental responsibility

1. The Mother have sole parental responsibility for the child, X (born …2004) in relation to:

   4.1.All medical decisions, procedures and treatments; and

   4.2.Education.

2. Except as provided in Order 4 above, the Mother and the Father shall have equal shared parental responsibility for the child, X (born …2004) in relation to all other major long term decisions otherwise not expressly provided for in these orders, concerning the child’s care, welfare and development including but not limited to:

   5.1.The child’s name; and

   5.2.The child’s religion.

   (herein referred to as “the child”)

3. That the child is to remain enrolled at D School Suburb E Campus until Term 4 of 2020.

4. That the child is to be enrolled at D Suburb F Campus from Term 1 of 2021

Live with / spend time orders

1. Deleted intentionally.

2. That the child spends time with the Father during school terms on a weekly basis from 3:00pm or the conclusion of school (whichever occurs first) commencing on the first Thursday of the school term until 6:00pm on Saturday, continuing thereafter.

Special occasion time

1. Deleted intentionally.

2. The child shall spend time with the Father on special occasions as follows:

   11.1.After school on the Thursday of the weekend of Father’s Day to 6:00pm on Father’s Day, unless the child is already in the Father’s care.

Special holidays (Terms 1, 2 and 3)

1. Deleted intentionally.

2. Deleted intentionally.

Long term school holidays (December / January)

1. Deleted intentionally.

2. Deleted intentionally.

Changeover [the issue is confined to the final words of 16.2 and 16.3]

1. All changeovers shall occur as follows:

   16.1.Deleted intentionally.

   16.2.In the event that the child is not attending school on the day of changeover, the party that the child is to spend time with shall collect the child from the L Business carpark located in Suburb M in the state of New South Wales, at the beginning of that party’s time, if the child is well enough to travel.

   16.3.In the event that the child is not fit to spend time with the other party then the child shall spend make up time in lieu with the other party as agreed in writing.

Other orders

1. Deleted intentionally.

2. That the Father, as directed by the Mother in writing, shall administer all medications for the child when spending time with the child under these orders.

3. Deleted intentionally.

4. That the parties keep each other informed of their current residential addresses, home and mobile telephone numbers, and email addresses, but no later than 24 hours after any such change.

5. Deleted intentionally.

Interstate travel

1. Deleted intentionally.

Overseas travel

1. Deleted intentionally.

2. Deleted intentionally.

3. Deleted intentionally.

4. Deleted intentionally.

5. Deleted intentionally.

6. Deleted intentionally.

7. Deleted intentionally.

8. Deleted intentionally.

9. Deleted intentionally.

10. Deleted intentionally.

Property orders

Suburb O property

1. That within 7 days from the date of these orders, the Husband pay the sum of $5,596.00 to the Wife, being the outstanding interest from the loan executed with Ms AA on 26 November 2010.

2. That on or before 90 days from the date of these orders the parties shall do all acts and things and sign all documents as may be necessary to cause the Wife to retain the whole of the property situated at Lot … of deposited Plan … (Folio Identifier: …) otherwise known as N Street, Suburb O NSW 2066 (‘Suburb O property’), to the exclusion of the Husband, and give simultaneous effect to the following:

   34.1.The Wife shall refinance and discharge the Suburb O property mortgage, releasing the Husband of all liability; and

   34.2.The Husband shall sign all documents necessary to transfer to the Wife all his right, title and interest together with all improvements, in the Suburb O property at his expense; and

   34.3.The wife shall pay the sum of $99,623 to the Husband by way of property adjustment.

3. That the husband retain his right, title and interest in the property located at Lot … in Strata Plan … otherwise known as P Street, Suburb Q NSW, (Folio identifier: …) to the exclusion of the Wife.

4. If the Wife fails to comply with Order 35, then within 90 days from the date of these orders the parties shall do all acts and things necessary to list the Suburb O property for sale and effect the sale of the Suburb O property for the best price reasonably obtainable in a manner agreed between the parties and at the expense of the Husband, and failing agreement in accordance with the following sale orders:

   36.1.The parties must sign all selling authorities as may be necessary to cause the Suburb O property to be sold by way of public auction through a licensed auctioneer (“the auctioneer”) appointed by the parties at the Wife’s expense and failing agreement between the parties, to be appointed by the President of the Real Estate Institute of New South Wales or his or her nominee upon the written request of either party the cost of that appointment to be borne by the husband as and when they fall due.

   36.2.The parties must sell the Suburb O property for an amount more than or equal to the agreed valuation of the property as per the joint valuation of $1,800,000 agreed by the parties and failing agreement, at such price determined by a registered valuer, selected by the parties, to be the estimate market value of the property. If the parties are unable to agree upon the appointment of a valuer then such agent as selected by the President of the Australian Property Institute (Inc.) of New South Wales or his or her nominee upon the written request of either party and the costs of that appointment to be borne by the husband as and when they fall due.

   36.3.The parties must appoint a solicitor/conveyancer to act on the sale of the property on behalf of both parties and failing agreement such solicitor/conveyancer as may be determined by the President of the Law Society of New South wales in which the property is located or his or her nominee upon the written request of either party, sharing the costs equally.

5. The parties must co-operate with respect to the sale of the property including but not limited to:

   37.1.Making the key available to the agent;

   37.2.Allowing access to the property at all reasonable times to prospective purchasers, Valuers and licensed real estate agents as may have been appointed by the parties;

   37.3.Doing or saying nothing to hinder or prevent a sale being effected;

   37.4.Signing all documents in relation to the sale approved by the agent and/or solicitor acting on the sale as the case may be; and

   37.5.Maintaining the property in reasonable condition and repair having regard to its present condition and the state thereof, pending completion of the sale of the property.

   37.6.A reserve price will be the agreed valuation of the property as per the joint valuation of $1,800,000 agreed by the parties, and failing agreement within 14 days of the Auctioneer being appointed, the reserve price to be determined by a valuer (other than the Auctioneer) appointed by the parties, or failing agreement, appointed by the President for the time being of the Australian Property Institute (Inc.) of New South wales or his or her nominee, upon the written request of either party and the costs of that appointment to be borne equally by the parties as and when they fall due.

   37.7.The Auctioneer to nominate the date of sale which will be not more than 2 months after the Auctioneer has been appointed.

6. In the event the above Order 37 applies, then upon settlement of the Suburb O property the parties do all acts and things necessary to cause the proceeds of sale to be paid in the following manner and priority:

   38.1.payment of any costs associated with the sale including auctioneer’s fees, agent’s commission / fees and legal fees;

   38.2.payment of all monies to payout all liabilities secured by the Suburb O property Mortgage;

   38.3.balance of sale proceeds shall be paid to the Wife.

7. As between the parties, and unless otherwise specified in these Orders and except for the purpose of enforcing the payment of any money due under these or any subsequent Orders the parties shall each respectively retain all interest in and entitlement to:

   39.1.All personal property now in his/her respective possession or control;

   39.2.All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively;

   39.3.All interests in life insurance policies and superannuation funds standing in his/her sole name respectively; and

   39.4.Each party hereby foregoes any claim they may have to superannuation benefits belonging to or earned by the other.

8. That Except as specifically provided for by any Order comprising these Orders to the contrary:

   40.1.The Husband indemnify the Wife from and in respect of all actions, claims, suits and demands as may be made against the Wife in relation to the Husband’s liabilities and any other liabilities in the name of the Husband.

   40.2.The Wife indemnify the Husband from and in respect of all actions, claims, suits and demands as may be made against the Husband in relation to all liabilities in the name of the Wife.

9. If any of the parties to these Orders fails, refuses or neglects to assign any instrument or other document, the execution of which is provided for by any of these Orders, then pursuant to s106A of the Family Law Act 1975 that party hereby consents to any Application filed by another party seeking an Order appointing the Registrar of the Sydney Registry of the Family Court of Australia to execute such instruments or other documents in the name of the defaulting party.

ORDERS SOUGHT BY THE ICL

As indicated, in respect to the remaining contested parenting issues, the ICL’s ultimate position was to support the orders sought by the husband subject to:

(a)In relation to term time, X’s time with the husband in week 1 should conclude at the commencement of school on Friday;

(b)In relation to Father’s Day, if X was otherwise with the husband, time should be from 10.30am Sunday to the Monday immediately following.