Pickering & Pickering

[2023] FedCFamC2F 1116

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Pickering & Pickering [2023] FedCFamC2F 1116

File number(s):

MLC 3557 of 2019

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

28 August 2023

Catchwords:

FAMILY LAW – final property orders – interim applications not heard and consolidated with final hearing – arrears of interim order sought- spousal maintenance – lump sum spousal maintenance sought – child support departure order – lump sum child support sought – one party seeks to retain former matrimonial – estimate of days for final hearing exceeded – child support assessments not enforced – one party occupying the bulk of matrimonial pool pending final orders – draft orders provided.

Legislation:

Child Support (Assessment) Act 1989 (Cth) ss 112, 114, 116, 117, 123A

Child Support (Registration and Collection) Act 1988

Evidence Act 1995 (Cth), s 140

Family Law Act 1975 (Cth), ss 72, 74, 75, 79, 80, 102NA, 117

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021

Cases cited:

Adamson & Adamson (2014) FLC 93-622

Badir & Badir [2022] FedCFamC1A 109

Benson & Drury (2020) FLC 93-998

Bevan & Bevan (1995) FLC 92-600, 19 FamLR 35

Clauson & Clauson (1995) FLC 92-595

Fooks & Clark (2004) FLC 93-183

Fox v Percy (2003) 214 CLR 118

Hickey and Hickey and the Attorney-General [2003] FamCA 395; (2003) FLC 93-143

Hobson v Hobson (2020) 61 Fam LR 557, [2020] FamCAFC 251

Kennon v Kennon [1997] FamCA 27; [1997] FLC 92-757

Kensit & Kensit [2022] FedCFamC1F 633

Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932

Langford & Coleman (1993) FLC 92-346

Lovine & Connor (2012) FLC 93-515

Rosati v Rosati (1998) FLC 92-804

Stanford v Stanford [2012] HCA 52; (2012) FLC 93-518

Varnham & Moses (2021) FLC 94-007

Wallis & Manning (2017) FLC 93-759

Wayne & Wayne [2010] FamCAFC 33

Yunghanns & Ors (1999) FLC 92-836

Zubcic & Zubcic (2019) FLC 93-918

Division:

Division 2 Family Law

Number of paragraphs:

263

Date of last submission/s:

25 May 2022

Date of hearing:

28, 29 & 30 April 2021, 10 & 11 June 2021, 3 & 4 May 2022

Place:

Melbourne

Counsel for the Applicant:

Mr D. Carne

Solicitor for the Applicant:

Sayer Jones

Counsel for the Respondent:

Mr D. Cash

Solicitor for the Respondent:

Ian Brooks

ORDERS

MLC 3557 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS PICKERING

Applicant

AND:

MR PICKERING

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	28 AUGUST 2023

THE COURT ORDERS THAT:

1.A copy of the draft final orders be sent to the parties this day together with reasons for Judgment.

2.The matter be adjourned for hearing at the Federal Circuit and Family Court of Australia on Thursday, 31 August 2023 at 10am to be conducted via Microsoft Teams.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

TABLE OF CONTENTS

INTRODUCTION	[6]
HISTORY OF PROCEEDINGS	[6]
History of interim applications, orders and deferral of interim hearings	[6]
FINAL HEARING	[14]
ISSUES TO BE DETERMINED	[22]
DOCUMENTS RELIED UPON	[22]
THE WIFE’S CASE	[32]
Result sought with lump sum spousal maintenance and child support orders	[32]
Result sought without lump sum spousal maintenance and child support orders	[39]
Result sought by the Wife in final address	[41]
THE HUSBAND’S CASE	[64]
APPLICABLE LAW	[64]
Standard of proof	[64]
SPOUSAL MAINTENANCE & PROPERTY ALTERATIONS	[64]
The applicable law as to property division	[64]
The applicable law as to spousal maintenance	[64]
The applicable law regarding departure from child support assessment	[70]
SOME SIGNIFICANT EVENTS AND ISSUES	[71]
Husband’s inheritance	[87]
Interim orders made 29 April 2019	[87]
The Wife’s employment, income and expenses	[91]
The Husband’s income and expenses	[109]
Child support Assessment of 1 June 2020 is a guide to enforcement	[125]
What was the amount of the April 2019 orders obligations?	[128]
The school fees	[139]
Conclusion as to enforcement and retrospective variation of the interim orders	[152]
Conclusion as to prospective lump sum spousal maintenance	[157]
Conclusion as to prospective lump sum child support	[158]
Motor Vehicle 1	[163]
Disclosure	[166]
Wife’s reserved costs of 17 March 2020 and 9 July 2020	[167]
PROPERTY DIVISION	[197]
Stanford v Stanford [2012] HCA 52; (2012) FLC 93-518	[197]
The Preferred Approach	[197]
APPLICATION OF THE PREFERRED APPROACH	[197]
Step one: identify the property and liabilities	[197]
School fees	[197]
Wife’s loan	[197]
Husband’s vehicle valuations	[197]
Husband’s tax debts	[197]
Step two: section 79(4)(a), (b) and (c) contributions	[197]
Date of separation	[197]
Contribution during the relationship	[204]
Contributions after the Husband leaves the FMH	[204]
Step three: section 75(2) factors	[210]
(a) Age and state of health	[222]
(b) Income, property, financial resources and capacity for employment	[222]
(c) Care of children under 18 years	[222]
(d) Commitments of each of the parties to support themselves or a child	[222]
(e) Responsibilities of either party to support any other person	[222]
(f) Pension or benefit	[237]
(g) Reasonable standard of living	[237]
(h) Would maintenance assist education or training	[237]
(ha)        Effect on creditors	[237]
(j) Extent Wife, who seeks maintenance, has contributed to Husbands earning capacity	[237]
(k)          Duration of marriage & effect on earning capacity of maintenance claimant	[237]
(l) Protect parties role as a parent	[237]
(m)         Whether party cohabiting with another person	[237]
(na)        Child support to be provided	[237]
(o)           Any fact or circumstances justice requires to be taken into account	[237]
Conclusion as to Step 3 adjustment for section 75(2) factors	[241]
Step four: just and equitable and conclusion	[258]
CONCLUSION	[258]
Form of orders	[262]

INTRODUCTION

1. Having separated after a marriage of around 16 years, the Applicant, Ms Pickering (‘the Wife’) and the Respondent, Mr Pickering (‘the Husband’) ask the Court to make orders adjusting their property interests pursuant to Part VIII of the Family Law Act 1975 (Cth) (‘the Act’). They have three children, now aged 20, 17 and 13 respectively.

2. The proceedings have a lengthy history with an interim order for financial support being made on the first return and then the party seeking enforcement or those orders and one party seeking variation. Ultimately a section 102NA family violence cross-examination scheme order was made preventing the Husband from personally cross examining the Wife and both parties were legally represented for the final hearing.

3. The parties commenced cohabitation in 2002 and married in 2002.  The date of separation is disputed, with the Husband alleging it occurred on 23 December 2017 and the Wife alleging it occurred in October 2018.  On either account, the parties remained living under the same roof until the Husband departed the former matrimonial home (‘FMH’) in November 2018. 

4. At the commencement of the final hearing, the Wife was aged 52 years and the Husband was aged 53 years.  The Wife is self-employed with a professional background, and the Husband is self-employed in the transport industry.  At final hearing the Wife had not re-partnered and the Husband was in a new relationship.  

5. On 5 February 2020 the parties entered into final parenting orders by consent for their three children.  The orders provided for, among other orders, that the children to live with the Wife, the older two children to spend time with the Husband in accordance with their wishes, and the younger child to spend five nights per fortnight, half school holidays and special occasions with the Husband.  The parties have each retained equal shared parental responsibility.

   HISTORY OF PROCEEDINGS

   History of interim applications, orders and deferral of interim hearings

6. Unfortunately for the parties, interim orders and what they meant, competing applications for enforcement and variation, and their inability to get an interim hearing on those matters all complicated the orders sought at final hearing and added to necessary evidence from each party. 

7. The Wife commenced proceedings on 4 April 2019 and the Husband filed a response on 24 April 2019.  On 29 April 2019 interim orders were made by consent (‘the April 2019 orders’) for the Husband to meet various costs of many financial obligations and for the parties to attend mediation in August 2019.  At this time, the Husband says he understood he was only required to pay the costs outlined in the interim orders until the parties attended mediation.  As this became a major issue in the proceedings, the Wife asserted that the Husband remained obligated ‘under further order’ pursuant to the wording of the order.

8. In August 2019 the parties attended mediation and did not reach agreement.  By early 2020 Husband reduced his financial contributions to the Wife’s household pursuant to the April 2019 orders however continued to meet some costs and then as time went on reduced that support further.

9. On 19 December 2019 the Wife filed an application for enforcement against the Husband with respect to the April 2019 orders.  The matter was listed for mention on 5 February 2020.  At that time, final parenting orders were made by consent.  The Wife’s application for enforcement was adjourned, but with an order that the Husband meet the outstanding school fees then of $8,597.83.  The matter was adjourned to 17 March 2020 for interim defended hearing to resolve the Wife’s enforcement application.

10. Just prior to 17 March 2020, the Husband served on the Wife his financial disclosure, she says unindexed, and did not correctly complete Part N of his financial statement.  On 17 March 2020 the interim defended hearing did not proceed with respect to the Wife’s enforcement application and orders were made for the Husband to correctly complete Part N of his financial statement within 14 days, and for the Wife to file and serve responding material on the Husband within 28 days.  The matter was adjourned for further interim defended hearing to 9 July 2020.  The Wife’s costs of the day are reserved. 

11. On 9 July 2020 some orders were made by consent with the Husband to provide further financial disclosure and the matter, again, being adjourned for interim defended hearing to 18 September 2020.  The Wife’s costs for the day were again reserved.  A Notation was made that the matter remains listed for a three-day final hearing on a date to be fixed with priority to be given in 2020. 

12. On 10 August 2020 the Husband’s lawyers withdrew. On 16 September 2020, in circumstances where cross-examination was expected to occur at the interim defended hearing on 18 September 2020, it was determined that the interim defended hearing could not proceed with cross-examination because of the provisions of section 102NA of the Act and an order pursuant to the section 102NA of the Act was made. The interim defended hearing listed on 18 September 2020 was vacated and adjourned to a date to be fixed.

13. On 7 October 2020 the matter came before me for mention.  I was informed at that time that it was understood that the interim defended hearing issues and final hearing should be consolidated.  I listed the matter for final hearing on 28 April 2021 with an estimated hearing time of three days.

    FINAL HEARING

14. The matter was set down for a three day trial commencing Wednesday, 28 April 2021.  Some considerable time was lost to the parties on the first day due to other matters being listed as well.  On the third day it was apparent that the matter would not conclude by the end of the day, having not yet commenced the Husband’s cross-examination.  The matter was adjourned to 1 June 2021 for a further one day. 

15. On 27 May 2021 it was announced that Victoria would enter its fourth COVID lockdown for a period of seven days.  My chambers were contacted by the Wife’s solicitor requesting that, due to the volume of documents, the matter occur in person on 1 June 2021 if permitted to do so under the relevant restrictions, or alternatively, the matter be adjourned until after the conclusion of the lockdown.  The Husband, via his solicitors, indicated that he was content to proceed via Microsoft Teams.  On 28 May 2021 I determined that the matter should be adjourned, and set the matter down for a further 1½ days of hearing commencing 10 June 2021 in person. 

16. As that day approached Melbourne was still in a lockdown.  The matter proceed over two further days via Microsoft Teams but did not conclude.  The Husband claimed tax liabilities without proper evidence and I ordered for him to obtain a report from his accountant with respect to the extent of his tax liabilities, payment of instalment or assessment of GST, income tax and Business Activity Statement liabilities, and any other relevant information, and file the report to be confirmed on affidavit before the next hearing date.  I adjourned the matter to a date to be fixed, ultimately listing the matter to commence for a further two days commencing 18 October 2021. 

17. On 5 August 2021 Melbourne again entered a lockdown which ran until 21 October 2021.  My chambers informed the parties on 6 October 2021 that it would be unlikely that the matter would proceed face-to-face.  On 11 October 2021 my chambers received an email from the Wife’s solicitor (carbon copied to the other party) raising concerns that the Husband and some children had or would soon have COVID (the Wife expected she would test positive for COVID shortly), and she was concerned about whether the trial would conclude in the further two days if it were to occur via Microsoft Teams due to the volume of material relied upon and to be reviewed and tendered under cross-examination.  She also did not have anyone to care for the children.  The Wife sought that the matter be adjourned to two other days where the matter could proceed in person.  The Husband opposed the adjournment application, indicating an anxiousness to finalise the proceedings.  I allowed the parties to submit a half page of written submissions on the issue before determining the issue in chambers.  

18. On 13 October 2021 I made orders vacating the trial dates of 18 and 19 October 2021 and adjourned the matter to a date to be advised.  The matter came on for mention on 23 November 2021 via Microsoft Teams.  It was agreed that the matter still required two days (if it was in person) and the request was made for this to occur in person.  At that time, although lockdowns were concluded, leave was required for hearings to occur in person.  I adjourned the matter part-heard for two further days on 3 and 4 May 2022 with an intention that this occur in person.  I ordered the parties to file updating financial statements and an updated valuation of the FMH.  

19. The matter proceeded on 3 and 4 May 2022.  Both parties were re-called and cross-examined on their current financial circumstances.  The matter concluded at 5:36pm on what was day seven of the trial. 

20. The delivery of this judgment is well outside the three month guideline for delivery of judgments of this Court.  I apologise to the parties and their lawyers for the delay. 

    ISSUES TO BE DETERMINED

21. The issues I must determine in this application include:

    ·Whether the April 2019 orders were to continue indefinitely;

    ·Payment of arrears of school fees;

    ·The extent of arrears pursuant to the April 2019 orders;

    ·Whether to make a prospective lump spousal maintenance order to the Wife;

    ·Whether to make a prospective departure order and a lump sum child support order in lieu of periodic child support as assessed;

    ·The weight to be given to the Husband’s recent inheritance on property alteration in the contribution step of the “preferred approach”;

    ·The extent of adjustment for section 75(2) factors at the third step of the “preferred approach”;

    ·The reserved costs of two interim hearing listings.

    DOCUMENTS RELIED UPON

22. The Wife relied on the following documents:

    ·Amended initiating application filed 1 April 2021;

    ·Trial Affidavit of the Wife filed 1 April 2021;

    ·Financial Statement filed 1 April 2021;

    ·Affidavit of Mr B filed 7 April 2021;

    ·Case Outline filed 25 April 2021;

    ·Affidavit of the Wife filed 24 May 2021;

    ·Affidavit of the Wife filed 21 March 2022;

    ·Financial Statement filed 22 April 2022;

    ·Affidavit of Mr B filed 29 April 2022; and

    ·Costs Notice filed 2 May 2023.

23. The Husband relied upon the following documents:

    ·Response to Initiating Application filed 30 July 2019;

    ·Trial Affidavit of the Husband filed 13 April 2021;

    ·Financial Statement filed 31 March 2022;

    ·Affidavit of Ms C filed 14 May 2021;

    ·Affidavit of Ms D filed 21 May 2021;

    ·Affidavit of Mr E filed 8 July 2021;

    ·Costs Notice filed 3 May 2022; and

    ·Unsealed Outline of Case.

24. A voluminous number of exhibits were tendered into evidence:

    ·W1:     Pickering Balance Sheet (joint) (exhibited 28 April 2021);

    ·W2:     Bundle of documents (folder titled ‘Expenses Provided by Client on 26 April 2021) (exhibited 29 April 2021);

    ·W3:     Redundancy Letter from F Company dated 28 April 2021 & attachment (exhibited 29 April 2021);

    ·H1:     Bundle of documents (10 documents) (exhibited 30 April 2021);

    ·H2:     Spreadsheet (exhibited 30 April 2021);

    ·W4:     Restoration manuals  (exhibited 30 April 2021);

    ·W5:     Letter from Sayer Jones (exhibited 30 April 2021);

    ·W6:     Wife’s statement of legal fees (exhibited 30 April 2021);

    ·W7:     Statement of mortgage payment re: paragraph 134(a) (exhibited 30 April 2021);

    ·W8:     Email between Wife and Mr G (exhibited 30 April 2021);

    ·H3:     Amended expenses ledger (exhibited 30 April 2021);

    ·W9:     Husband’s response to application filed 24 April 2019 (exhibited 30 April 2021);

    ·W10:   Handwritten consent minute from 29 April 2019 (exhibited 30 April 2021);

    ·W11:   Affidavit of Husband 24 April 2019 (exhibited 30 April 2021);

    ·W12:   Financial Statement of Husband 24 April 2019 (exhibited 30 April 2021);

    ·W13:   Financial Statement of Family Trust (exhibited 30 April 2021);

    ·W14:   Electronic lodgement declaration form – tax return  (exhibited 30 April 2021);

    ·H4:     Husband’s statement of legal fees (exhibited 11 June 2021);

    ·W15:   Individual tax return for 1 July 2019 to 30 June 2020 (exhibited 11 June 2021);

    ·W16:   Tax return and financial statements for Pickering Family Trust (exhibited 11 June 2021);

    ·W17:   Tax return and financial statements for Pickering Group (exhibited 11 June 2021);

    ·H5:     Husband’s Spreadsheet and invoices re: travel (Produced by Husband from his computer records on 10 June 2021) (exhibited 11 June 2021);

    ·W18:   6 July 2020 Financial Statement (exhibited 11 June 2021);

    ·H6      Minute of 29 April 2019 Orders (Certified by Ms H on 3 May 2019) (exhibited 11 June 2021);

    ·W19:   Notice of Assessment – year ended June 2019 (exhibited 11 June 2021);

    ·W20:   Part One – Tax Portal 17 February 2021 (exhibited 11 June 2021);

    ·W21:   Part two – Tax Portal 17 February 2021 (exhibited 11 June 2021);

    ·W22:   BAS Statement (First quarter of this Financial Year) (exhibited 11 June 2021);

    ·W22A: BAS Statement (Second quarter of this Financial Year) (exhibited 11 June 2021);

    ·W23:   Husband’s Activity Statement 14 April 2021 (exhibited 11 June 2021);

    ·W24:   Email chain 11 October 2021 & 13 October 2021 (exhibited 23 November 2021);

    ·W25:   Email chain 18 October 2021 (with COVID test results) (exhibited 23 November 2021);

    ·W26:   Email from Wife – ready to proceed – 15 November 2021 (exhibited 23 November 2021);

    ·H7:     Email from Husband – ready to proceed – 16 November 2021 (exhibited 23 November 2021);

    ·W27:   Updated Pickering Balance Sheet (exhibited 3 May 2022);

    ·H8:     Husband’s Tax Assessment at 2 March 2022 (exhibited 3 May 2022);

    ·H9:     Notice of Costs (exhibited 3 May 2022);

    ·W28:   Notice of Costs (exhibited 3 May 2022);

    ·W29:   Wife’s Tax returns and assessments for FY 2019-2021 (exhibited 3 May 2022);

    ·W30:   Wife’s 3 April 2022 Financial Statement (exhibited 3 May 2022);

    ·W22B: BAS Statement (Third quarter of Financial Year 20-21) (exhibited 3 May 2022);

    ·W31:   22 November 2021 Wife’s Solicitor Letter disclosing employment (exhibited 3 May 2022);

    ·W32:   Account #...59 – 9 June 2021 to 5 January 2022 (exhibited 3 May 2022);

    ·W33:   Account #...18 – 4 August 21 to 4 February 2022 (exhibited 3 May 2022);

    ·H10:    Husband’s paragraph 5(a)(m) and RD1 of 29 January 2020 Affidavit (exhibited 3 May 2022);

    ·W34:   Notice of Defence – Magistrate’s Court April 2022 (exhibited 3 May 2022);

    ·W35:   Notice of Complaint – Magistrate’s Court March 2022 (exhibited 3 May 2022);

    ·W36:   Child support assessment (exhibited 3 May 2022);

    ·W37:   J Street Property Lease & bundle of documents with information on J Street Property (exhibited 3 May 2022);

    ·W38:   October and November 2021 requests for updated disclosure (exhibited 3 May 2022);

    ·W39:   19 and 26 April 2022 requests for updated disclosure  (exhibited 3 May 2022);

    ·W40:   Memo of Wife’s employment (exhibited 3 May 2022);

    ·W41:   10 June 2021 Holdings & Accounts (Share Statement) (exhibited 3 May 2022);

    ·C1:     Draft Joint Chronology (exhibited 4 May 2022);

    ·W42:   Payslip for 7 April (exhibited 4 May 2022);

    ·W43:   Wife’s recent bank statements for #...18 (exhibited 4 May 2022);

    ·W44:   Wife’s recent bank statements for #...59 (exhibited 4 May 2022);

    ·W45:   Orders and court transcript from 5 February 2020 (exhibited 4 May 2022);

    ·W46:   Pickering Trust annual report (exhibited 4 May 2022);

    ·W47:   Husband’s 2021 personal tax return (exhibited 4 May 2022);

    ·W48:   Husband’s exempt GST expenses for 1^st and 2^nd Q FY 22 (exhibited 4 May 2022);

    ·W49:   Husband’s 1^st and 2^nd quarter BAS activity statements FY 22 (exhibited 4 May 2022);

    ·W50:   Husband’s credit card statement 17 January 2020 – 16 February 2020 (exhibited 4 May 2022);

    ·W51:   Husband’s credit card statement 17 September 2021 to 17 October 2021 (exhibited 4 May 2022);

    ·W52:   31 July 2019 Hardship withdrawal acknowledgement (exhibited 4 May 2022);

    ·W53:   Husband’s credit card statement from 17 October 2019 to 17 November 2019 (exhibited 4 May 2022);

    ·W54:   Letter from Sayer Jones to Respondent Husband (exhibited 4 May 2022);

    ·W55:   6 July 2020 Letter (exhibited 4 May 2022);

    ·W56:   K school fees (exhibited 4 May 2022);

    ·W57:   Updated balance sheet (exhibited 4 May 2022);

    ·W58:   Email from Wife’s counsel enclosing further documents (exhibited 25 May 2022);

    ·W59:   Revised chronology (exhibited 25 May 2022);

    ·W60:   Bundle of correspondence referred to in revised chronology (exhibited 25 May 2022);

    ·W61:   Wife’s Schedule of Costs (exhibited 25 May 2022).

1. Helpful documents tendered by the Wife included a revised chronology (exhibit W59) and revised balance sheet (exhibit W57).

   THE WIFE’S CASE

2. The Wife’s case in her outline of case differed from her case in closing, but retained the same themes.  In closing submission the Wife pressed her alternate case that she receive 70% of the total property pool on the basis that she is to pay the school fees.  The Wife seeks to retain the jointly owned FMH.  She otherwise seeks reimbursement for various payments she says she had to make due to the Husband’s non-compliance with the April 2019 orders and payment now for things he should have paid.  She seeks a superannuation split in her favour equalising the parties’ superannuation. 

3. Further, she seeks both a prospective lump sum spousal maintenance payment and a departure from the administrative assessment of Child support in relation to all three children for a lump sum cash payment from the Husband.  The claim for lump sum maintenance was said to arise from the Husband’s noncompliance with the April 2019 orders, made at a time when the Wife had minimal income from self-employment.  The extent of the Husband’s liability pursuant to those orders is controversial in these proceedings.  In the event the Husband cannot meet those payments, the Wife seeks that the Husband’s shareholdings be sold, and in the event such funds are insufficient, sale of the Husband’s vehicle or vehicles and memorabilia. 

4. The effect of the competing interim applications not being heard, and the competing allegations remaining alive was that, by default, the interim applications and cross-applications were effectively consolidated with the applications for final orders and that they were heard and determined retrospectively.  The Wife sought enforcement of the April 2019 orders and the Husband sought to vary them. 

5. As to the property division, in a detailed outline of case filed shortly before the commencement of the final hearing, the Wife asserted the net pool of non-superannuation assets and liabilities was about $1,340,000, with another $192,000 of superannuation.  The Husband’s ‘keep” or part of those assets already in his possession was said to be about $293,000. 

6. The Wife contended the parties’ current superannuation entitlements should be equalised by a payment split order on the Husband’s greater superannuation.  At all times the Husband opposed that order.  

7. The Wife then contended that the parties’ contributions during the relationship should be considered equal but:

   ·her greater initial contribution should weigh as to 2% from a 50/50 position;

   ·the Husband’s recent inheritance should weigh as at to 3% contribution in his favour; 

   ·in the event the Husband’s default of compliance with the April 2019 order was not treated separately, the post-separation events should weigh in a negative contribution on his part, with a 5% adjustment in the Wife’s favour.

   Result sought with lump sum spousal maintenance and child support orders

8. Hence, the Wife’s position was that, if the lump sum spousal maintenance and child support orders she sought were made, there should be an overall contribution finding of 49/51 in the Husband’s favour and there should be an adjustment of 10-12% on account of the factors listed at section 75(2) of the Act. That would leave a result of division of non-superannuation net assets of 39-41/59-61 in the Wife’s favour and from the Husband’s part arrears and lump sum spousal maintenance and lump sum child support should be paid to her.

9. The sum of the lump sum spousal maintenance order sought was both retrospective and prospective.  The quantum of arrears of the orders of April 2019 was then (April 2021) alleged to be on account of unpaid: 

   ·Private school fees,  $  40,647

   ·Mortgage payments,  $  46,647

   ·Rates, utility bills, internet, insurance, and termite treatment,          $  17,444

   ·Horse expenses of the parties’ daughter Ms C’s horse expenses,                 $    5,527

   ·Total:  $110,265

10. Lump sum prospective spousal maintenance of $112,242 from the Husband was sought.  Lump sum child support of $119,429 from the Husband was sought.

11. This meant that the Husband would receive a payment (in addition to keeping his business, shares and motor cars) and receive a payment to him of $206,805, although the actual calculations of that figure were not transparent.

12. From the calculated $206,805 the claimed arrears of $110,265 were to be deducted leaving a payment to be made at the time of the transfer of the Husband’s one half interest in the $1.1 million property, of $157,735 to him.

13. But contemporaneously with that payment of $157,735 to the Husband, the lump sum spousal maintenance of $112,242 and lump sum child support arrears of $119,429, a total of $231,671, were to be paid to the Wife by the Husband. 

14. The end result of this, said to be just and equitable, division of property was claimed to be as follows: 

    ·Payment to Husband:  $157,735

    ·Payment from Husband:  (231,671)

    ·End result payment from Husband to Wife:              $  73,936

    In addition the Husband was to retain his paid legal fees, two restored motor cars and his recently purchased second hand one and the balance of his inheritance.

    Result sought without lump sum spousal maintenance and child support orders

15. The Wife’s position was that, if the lump sum spousal maintenance and child support orders were not made, there should be an overall contribution finding of 44/54 in the Wife’s favour and there should be an adjustment of 15% on account of the factors listed at section 75(2) of the Act, leaving a result of division of non-superannuation net assets of 29/71 in the Wife’s favour. 

16. The clear thrust of the Wife’s case was that the Husband’s delinquent financial behaviour after separation far outweighed his contributions by bringing property into the marriage and his contributions over the 20 or so years since. 

    Result sought by the Wife in final address

17. By the time of closing addresses, the FMH had been revalued to $1,500,000 and the asset pool had become clearer with the benefit of the hearing and the ascertainment of the extent of funds that would otherwise be available for distribution but spent on legal fees being included. 

18. The non-superannuation asset pool was asserted by the Wife as being $1,829,774[1] (see exhibit W57, the “balance sheet’) and this figure and the components within it were not disputed by the Husband.  Within that figure the Husband’s “keep”, really his business, paid legal fees, the two classic cars and his motor car, purchased post separation, came to $386,616. 

    [1] And the then arrears of school fees of $69,052 had been already deducted to get to that figure.

19. In final address, on the basis that the lump sum spousal maintenance and child support orders were not made, the Wife’s counsel asserted that all the parties contributions should overall be regarded as either balancing the contribution “ledger” or “very close to it”.  The Wife’s counsel gave regard to the Wife’s post separation contribution of managing parenting in difficult circumstances, the Husband contributing less than the assessed child support amount, the Husband’s recent inheritance and the long period of contribution during the relationship. 

20. As to the third largely prospective step of the preferred approach, on the basis that the Wife would bear all of the school fees (both arrears and future), she said that there should be an adjustment of about 20% or a bit more for section 75(2) factors, to get to a 70/30 division in the Wife’s favour.

21. 30% of $1,829,774 is $548,932 (rounded), less the Husband’s “keep” of $386,616, means that the Husband would end up with a payment of $162,316. 

22. The pressure of time to conclude final addresses rather than go into an eighth day meant that some matters were not specifically addressed.  But the application for the lump sum spousal maintenance and child support orders was not abandoned. 

23. The end result or disparity between the parties must be considered.  The Wife’s closing address of a 70/30 position is the equivalent of the Wife receiving the first 40% and the balance divided equally.  In dollar terms, the disparity the Wife sought was about $732,000 (rounded).

24. The parties’ superannuation totalled $245,586 of which the Husband had $138,386, or 56.3%.  An equalising payment split order, as the Wife sought and the Husband opposed, would be an order for a payment split of about $16,093.  

    THE HUSBAND’S CASE

25. The Husband sought the sale of the FMH.  He said the sale proceeds should be applied to pay all costs, commissions and expenses of the sale, council and water rates and all other outgoings of the property, then to repay all loans and discharge all mortgages of the property, then to repay any joint liabilities as determined by this court, and lastly any remaining funds to be divided as per determination by the Court. 

26. On day three of the final hearing the Husband changed his position to concede that he did not seek the sale of the FMH until the parties eldest child, Ms C, had completed year 12, which was likely to be the end of the 2022 calendar year. 

27. In final address, the Husband sought a 55/45 split in the Wife’s favour of the non-superannuation assets on the basis of the Wife’s greater future needs with two children in her primary care and the burden of the health difficulties experienced by the middle child.  I infer that he seeks the parties otherwise retain what is in their possession.  

28. He opposes a superannuation payment split, and opposes any departure from Child support obligations as assessed.  He opposes orders for lump sum spousal maintenance payments and lump sum child support payment.  In final address he no longer pressed for various addbacks which are described below.  Both parties seek that the other party meet the outgoings of the FMH pending either its transfer into the Wife’s name, or sale.

29. The Husband sought that the April 2019 orders be discharged as at August 2019.  The disparity the Husband sought, in the Wife’s favour, was (on a 45/55 split) 10% of $1,829,774 or $182,900.  The effect is that the Wife should get the first $182,900 of the proceeds of sale of the FMH and the balance should be divided equally.  The Husband sought that school fees be treated as a joint liability, like the mortgage.  The effect of that analysis would be that 45% of the arrears of school fees would come from his property settlement and 55% from the Wife’s property settlement.

    APPLICABLE LAW

    Standard of proof

30. In these reasons, statements of fact are findings of fact. Findings are made on the balance of probability. I apply section 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) which states as follows:

    (1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

    (2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

    (a)       the nature of the cause of action or defence; and

    (b)       the nature of the subject-matter of the proceeding; and

    (c)       the gravity of the matters alleged.

    Reliability of the parties’ evidence

31. Fox v Percy (2003) 214 CLR 118 (‘Fox v Percy’) is a High Court case concerning the skid marks of a Kombi van on the correct side of the road.  When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality observed:

    [31]…in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…

    (Citations omitted)

32. That is the context to that observation is that in Fox v Percy, the evidence of the rider of the horse was found to be a more reliable witness than the driver of the Kombi Van that had collided with the horse and rider, the issue being upon which side of the road the collision happened.  The High Court had to interfere with the first instance decision because by determining, by reason of the apparent reliability of the witnesses, which side of the road the collision occurred, the decision was wrong because the skid marks of the Kombi van incontrovertibly demonstrated that at all material times, the Kombi van had been on its correct side of the road.

33. I have endeavoured to rely on objectively established facts and the apparent logic of events in this case.

34. I am also guided by the observations of the Full Court in Adamson & Adamson (2014) FLC 93-622:

    [89]In Carlson & Fluvium [2012] FamCA 32 at [165] to [169] Kent J made the following observations concerning the making of adverse credit findings against a parent in a parenting case:

    [165]As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.

    …

    [169]Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.

    [90]We agree with those observations. It follows from them that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to.

35. I acknowledge the wisdom of those observations.  However for the reasons set out later, I regard the Husband’s assertions about what expenses of the Wife and children he was able to pay as unreliable.  For reasons set out later, I regard the Wife’s assertions of the extent of her household expenses as unreliable.

    SPOUSAL MAINTENANCE & PROPERTY ALTERATIONS

    The applicable law as to property division

36. The property orders dispute falls to be determined by application of Part VIII of the Act and in particular the provisions of sections 79, 75 and 80. The relevant parts of section 79 are as follows:

    Section 79 Alteration of property interests

    (1)In property settlement proceedings, the court may make such order as it considers appropriate:

    (a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or

    …

    including:

    (c)an order for a settlement of property in substitution for any interest in the property; and

    (d)       an order requiring:

    (i)        either or both of the parties to the marriage; or

    …

    to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.

    …

    (2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

    (4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

    (a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

    (b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

    (c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

    (d)the effect of any proposed order upon the earning capacity of either party to the marriage; and

    (e)the matters referred to in subsection 75(2) so far as they are relevant; and

    (f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and

    (g)any child support under the Child support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

37. By section 79(4)(e), the shopping list of largely prospective factors set out in section 75(2), that are the same factors to be considered when considering spousal maintenance, must be had regard to. 

38. The relevant parts of section 75 provide as follows:

    Section 75Matters to be taken into consideration in relation to spousal maintenance

    (1)In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).

    (2)      The matters to be so taken into account are:

    (a)       the age and state of health of each of the parties; and

    (b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

    (c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

    (d)commitments of each of the parties that are necessary to enable the party to support:

    (i)        himself or herself; and

    (ii)child or another person that the party has a duty to maintain; and

    (e)       the responsibilities of either party to support any other person; and

    (f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

    (i)any law of the Commonwealth, of a State or Territory or of another country; or

    (ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

    and the rate of any such pension, allowance or benefit being paid to either party; and

    (g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

    (h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

    (ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and

    (j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

    (k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

    (l)the need to protect a party who wishes to continue that party's role as a parent; and

    (m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and

    (n)the terms of any order made or proposed to be made under section 79 in relation to:

    (i)        the property of the parties; or

    (ii)       vested bankruptcy property in relation to a bankrupt party; and

    …

    (na)any child support under the Child support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

    (o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

    …

    (3)In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.

    (4)      In this section:

    "party" means a party to the marriage concerned.

1. The Court has wide powers as set out as section 80 of the Act:

   Section 80 General Powers of Court

   (1)The court, in exercising its powers under this Part, may do any or all of the following:

   (a)order payment of a lump sum, whether in one amount or by instalments;

   (b)       order payment of a weekly, monthly, yearly or other periodic sum;

   (ba)order that a specified transfer or settlement of property be made by way of maintenance for a party to a marriage;

   (c)order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;

   (d)order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;

   (e)       appoint or remove trustees;

   (f)order that payments be made direct to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage;

   (h)make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;

   (i)        impose terms and conditions;

   (j)        make an order by consent;

   (k)make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and

   (l)subject to this Act and the applicable Rules of Court, make an order under this Part at any time before or after the making of a decree under another Part.

   (2)The making of an order of a kind referred to in paragraph (1)(ba), or of any other order under this Part, in relation to the maintenance of a party to a marriage does not prevent a court from making a subsequent order in relation to the maintenance of the party.

   The applicable law as to spousal maintenance

2. When spousal maintenance is considered, on an interim or a final hearing, before or at the same time as the factors of section 75(2) (recited above ,) sections 72 and 74(1) of the Act must also be considered and are as follows:

   72       Right of spouse to maintenance

   (1)A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

   (a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

   (b)by reason of age or physical or mental incapacity for appropriate gainful employment; or

   (c)for any other adequate reason;

   having regard to any relevant matter referred to in subsection 75(2).

   (2)The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.

   …

   74Power of court in spousal maintenance proceedings

   (1)In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.

   …

3. On an interim hearing, income and readily available resources of each party are the key determinants but on a final hearing, all of the property, income and financial resources of the parties are determinants.  A spousal maintenance order is determined after the property division is determined.  Authorities or precedent cases provide guidance as to the application of the legislative provisions. 

4. The Full Court in Bevan & Bevan (1995) FLC 92-600, 19 FamLR 35 (at [81982]) states:

   Taken together then, we would state the law as being that an award of spousal maintenance requires:

   1. a threshold finding under s 72;

   2. consideration of s 74 and s 75(2);

   3.no fettering principle that pre-separation standard of living must automatically be awarded where the respondent's means permit;  and

   4.discretion exercised in accordance with the provisions of s 74, with "reasonableness in the circumstances" as the guiding principle.

5. Another recent and very useful and convenient summary of general principles is the decision of Brasch J in Kensit & Kensit [2022] FedCFamC1F 633 and at [30] adopts 2007 Full Court authority:

   30The Full Court of the Family Court in Brown & Brown (2007) FLC 93-316 summarised the principles with respect to “adequately” at paragraph 161 as follows:

   •It is not to be determined according to any fixed or absolute standard.

   •The idea that “adequate” means a subsistence level has been firmly rejected.

   •Where possible, both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable, although the parties’ standard of living may have to be lower if financial resources are insufficient to maintain that standard.

   •In some circumstances, it may be reasonable for the parties to live at a higher standard than previously enjoyed.

   •It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he or she is unable to support him or herself adequately.

   •However, an applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy.

6. The capacity to pay spousal maintenance is usually and primarily driven by income considerations but is not limited to only income of the parties.  Available cash resources can be considered.

7. McClelland DCJ in Badir & Badir [2022] FedCFamC1A 109 cited the High Court in Hall v Hall (2016) 257 CLR 490 (‘Hall’) as follows:

   25In Hall at [3]–[8], the High Court confirmed that an applicant seeking orders for spousal maintenance carries the evidentiary burden as set out in s 140 of the Evidence Act 1995 (Cth). However, the High Court confirmed that, in the context of interim spousal proceedings, “[t]he evidence need not be so extensive and the findings not so precise” as in an application for a final order. The High Court nonetheless confirmed that “there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth).”

   The applicable law regarding departure from child support assessment

8. Child support is determined administratively by a branch of the Commonwealth government, not by the Court, according to the Child support (Assessment) Act 1989 (Cth) (‘the Assessment Act”) and the Child support (Registration and Collection) Act 1988 (Cth). However, in some circumstances an order for a “departure” from an administratively determined assessment can made, usually done by internal review within the Government department, not the Court. However, in limited circumstances, the Court can decide an application for departure. For present purposes the key provisions of the Assessment Act include the following:

   114     Additional particular objects of Division

   Additional particular objects of this Division include ensuring:

   (a)that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and

   (b)that parents share equitably in the support of their children.

   …

   116     Application for order under Division

   (1)A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:

   (b)both of the following apply:

   (i)the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;

   (ii)the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or

   (c)in the case of a liable parent—the administrative assessment of child support payable by the liable parent for the child is made under subsection 66(1).

   …

   (Notations omitted)

   (2)An application may be made by the carer entitled to child support, or the liable parent, in relation to the child.

   (3)Subject to section 145 (Registrar may intervene in proceedings), the parties to the application are the liable parent and the carer entitled to child support.

   117     Matters as to which court must be satisfied before making order

   Court may make departure order

   (1)      Where:

   (a)application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and

   (b)the court is satisfied:

   (i)that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and

   (ii)that it would be:

   (A)just and equitable as regards the child, the carer entitled to child support and the liable parent; and

   (B)otherwise proper;

   to make a particular order under this Division;

   the court may make the order.

   Grounds for departure order

   (2)For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:

   (a)that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:

   (i)the duty of the parent to maintain any other child or another person; or

   (ii)special needs of any other child or another person that the parent has a duty to maintain; or

   (iii)commitments of the parent necessary to enable the parent to support:

   (A)himself or herself; or

   (B)any other child or another person that the parent has a duty to maintain; or

   (iv)high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;

   (aa)that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));

   (b)that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:

   (i)because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or

   (ia)because of special needs of the child; or

   (ib)because of high child care costs in relation to the child; or

   (ii)because the child is being cared for, educated or trained in the manner that was expected by his or her parents;

   (c)that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:

   (i)because of the income, earning capacity, property and financial resources of the child; or

   (ia)because of the income, property and financial resources of either parent; or

   (ib)because of the earning capacity of either parent; or

   (ii)because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.

   …

   Matters to consider for purposes of subparagraph (1)(b)(ii)

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

   (a)the nature of the duty of a parent to maintain a child (as stated in section 3); and

   (b)the proper needs of the child; and

   (c)the income, earning capacity, property and financial resources of the child; and

   (d)the income, property and financial resources of each parent who is a party to the proceeding; and

   (da)the earning capacity of each parent who is a party to the proceeding; and

   (e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:

   (i)himself or herself; or

   (ii)any other child or another person that the person has a duty to maintain; and

   (f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and

   (g)any hardship that would be caused:

   (i)        to:

   (A)       the child; or

   (B)       the carer entitled to child support;

   by the making of, or the refusal to make, the order; and

   (ii)       to:

   (A)the liable parent; or

   (B)any other child or another person that the liable parent has a duty to support;

   by the making of, or the refusal to make, the order; and

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

   (5)In determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to:

   (a)the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and

   (b)the effect that the making of the order would have on:

   (i)any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or

   (ii)the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.

   Proper needs of the child

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

   (a)the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and

   (b)any special needs of the child.

   Income, earning capacity, property and financial resources

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

   (a)have regard to the capacity of the child to earn or derive income, including any assets of, under the control of, or held for the benefit of, the child that do not produce, but are capable of producing, income; and

   (b)disregard:

   (i)the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and

   (ii)any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.

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

   (a)have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the parent that do not produce, but are capable of producing, income; and

   (b)disregard:

   (i)the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and

   (ii)any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.

   (7B)In having regard to the earning capacity of a parent of the child, the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:

   (a)       one or more of the following applies:

   (i)the parent does not work despite ample opportunity to do so;

   (ii)the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full‑time work for the occupation or industry in which the parent is employed or otherwise engaged;

   (iii)the parent has changed his or her occupation, industry or working pattern; and

   (b)the parent’s decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:

   (i)        the parent’s caring responsibilities; or

   (ii)       the parent’s state of health; and

   (c) the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.

   Direct and indirect costs in providing care

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

   Subsections not to limit consideration of other matters

   (9)Subsections (4) to (8) (inclusive) do not limit other matters to which the court may have regard.

   …

   123AOrders for provision of child support in the form of lump sum payment to be credited against amounts payable under liability

   (1)The court may make an order that a liable parent provide child support for a child to a carer entitled to child support in the form of a lump sum payment to be credited against the amount payable under the liability under the relevant administrative assessment if:

   (a)the carer entitled to child support or the liable parent makes an application to a court under paragraph 123(1)(b); and

   (b)the court is satisfied that it would be:

   (i)just and equitable as regards the child, the carer entitled to child support and the liable parent; and

   (ii)otherwise proper;

   to make an order under this section; and

   (c)the amount of the lump sum payment equals or exceeds the annual rate of child support payable for the child under the administrative assessment.

   Note: If the court makes such an order, the lump sum payment is credited under section 69A of the Registration and Collection Act against the amount payable under the liable parent’s liability (rather than reducing the annual rate of child support payable under the administrative assessment).

   (2)A lump sum payment may include a payment by way of transfer or settlement of property.

   (3)An order under subsection (1):

   (a)must specify the amount of the lump sum payment; and

   (b)must specify that the lump sum payment is to be credited against 100%, or another specified percentage that is less than 100%, of the amounts payable under the liability.

   (4)In determining the application made under paragraph 123(1)(b), the court must have regard to:

   (a)the administrative assessment; and

   (b)any determination in force under Part 6A (departure determinations) in relation to the child, the carer entitled to child support and the liable parent; and

   (c)any order in force under Division 4 of this Part (departure orders) in relation to the child, the carer entitled to child support and the liable parent; and

   (d)whether the carer entitled to child support is in receipt of an income tested pension, allowance or benefit; and

   (e)if the carer entitled to child support is not in receipt of such a pension, allowance or benefit—whether the circumstances of the carer are such that, taking into account the effect of the order proposed to be made by the court, the carer would be unable to support himself or herself without an income tested pension, allowance or benefit.

   (5)In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make an order under subsection (1), the court must have regard to the matters mentioned in subsections 117(4), (6), (7), (7A) and (8).

   (6)In having regard to the earning capacity of a parent of the child under paragraph 117(4)(da), the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied as mentioned in subsection 117(7B).

   (7)In determining whether it would be otherwise proper to make an order under subsection (1), the court must have regard to the matters mentioned in subsection 117(5).

   (8)Subsections (4), (5), (6) and (7) do not limit the matters to which the court may have regard.

   SOME SIGNIFICANT EVENTS AND ISSUES

1. It is necessary to determine some significant events and/or issues that bear on the questions to be determined in this dispute.

   Husband’s inheritance

2. The Husband’s father died in 2018.  On or about early 2020 the Husband received an inheritance of about $110,000 in cash and shares.  Some was applied to his legal fees and some added back.  That part applied to legal fees is, I understand, included in the ultimate asset list tendered on the last day of hearing, W57, recited later.

   Interim orders made 29 April 2019

3. In April 2019, about 5 months after the Husband left the FMH, the Wife filed an application in this Court seeking orders for a property settlement and spousal maintenance.  The Husband had sought interim orders where each party paid a fixed proportion of the expenses of the Wife’s household, 50% each, until 31 December 2019.

4. At the first return on 29 April 2019, the parties reached agreement that the Suburb L investment property would be sold with a request for the mortgage payments to be stayed until sale.  The Husband would pay a suite of expenses that included the mortgage and ancillary costs of the FMH, private health insurance for the family and any gap expenses, school fees, agreed extracurricular activities, horse expenses, children’s phone expenses and a reimbursement for the Wife’s expenditure for the children’s clothing and shoes up to $4,160 per annum. 

5. The detail of those orders is important.  Those orders were as follows:

   THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:

   1.The parties do all acts and things to forthwith place the property situated at and known as … [Suburb L] on the market for sale.

   2.        For the purposes of the sale:

   (a)The parties shall agree on a real estate agent within 7 days, failing which the agent shall be as nominated by the President of the REIV upon request in writing by either party;

   (b)The method of sale, together with the conveyancer, the particulars of sale including reserve price etc. shall be as agreed between the parties in consultation with the appointed estate agent and, failing agreement within 7 days of appointment of the agent, then as nominated by the President of the REIV upon request in writing of either party;

   (c)       The proceeds of sale shall be applied as follows:

   (i)        To pay the costs, commissions and expenses of the sale;

   (ii)To discharge the mortgage encumbering the title to the property;

   (iii)The balance be held in an interest-bearing trust account in the joint names of parties held by the solicitors for the husband; and

   (d)The parties have liberty to apply in relation to any matters unable to be resolved in relation to the sale.

   3.The parties shall do all things necessary to make application to [M Bank] to request a suspension of mortgage payments during the period pending sale, such application to be made as soon as practicable.

   4.        The husband shall pay, and indemnify the wife in relation to:

   (a)All mortgage payments, insurances, rates, water, gas, electricity, telephone and internet expenses relating to the former matrimonial home situated at and known as …[N Street, Suburb O];

   (b)All mortgages, insurances, rates, taxes and water expenses relating to the [Suburb L] property;

   (c)Private health insurance at the current level for the family, together with dental expenses, all gap payments and all agreed in writing additional and ancillary health care and pharmaceutical expenses for the children;

   (d)School fees, book and stationery expenses and all billed ancillary costs for the children at [K] School in [Suburb P];

   (e)Agreed in writing extracurricular expenses for the children (noting that [X] is playing [a musical instrument]);

   (f)All expenses, including; agistment, vet, food, dental, farriers, tack etc for the children’s horses;

   (g)       Children’s telephone expenses on the current plans;

   (h)Payment for, or reimbursement of the wife’s expenditure, on the children’s clothing and shoes to a maximum of $4,160 per annum ($80 per week on average); and

   (i)        Any other expenses agreed in writing.

   5.The parties shall attend a mediation with … such mediation to be conducted prior to 15 August 2019, and the costs of the mediator to be borne equally;

   6.The further hearing of the interim application for spousal maintenance be adjourned to 22 August 2019 at 10:00am.

   7.Within 28 days the parties provide each other full and frank disclosure pursuant to Rule 24.03 of the Federal Circuit Court Rules, together with any other relevant documents requested in writing;

   8.        The Applicant wife have the sole right to occupy the former matrimonial home;

   9.Within 28 days, unless they have already been provided, the husband produce documents to the wife which may be relevant to the value of [Q Pty Ltd], including but not limited to:

   [a detailed list of documents] …

   10.The wife provide to the husband within 28 days of these orders, if they have not already been provided, such documents as are in her primary power and control:

   [a detailed list of documents] …

   11.If in the event the husband asserts the payments he makes pursuant to paragraph 4 of these orders have been in excess of an average of $1,500 per week for 4 months or more he have liberty to apply to have any amount paid in excess re-characterised as a part property settlement to the wife and/or to otherwise reduce the payments;

   12.On an agreed date in May 2019 between 8am and 12 noon the husband be at liberty to access and the wife facilitate the husband’s access to the garage at the former matrimonial home to collect:

   (a)       Tools;

   (b)       Engraved glasses from the top cupboard above the [cabinet];

   (c)       Husband’s boxes of personal items in the garage;

   (d)       Bins of paint;

   (e)       Paternal family items and heirlooms.

   13.The husband be at liberty to apply to have any payments made towards the benefit, welfare and upkeep of the children to be offset against any child support assessment.

   …

   AND THE COURT NOTES THAT:

   A.For the purpose of mediation with …on or about August 2019 the parties will rely on the following valuations:

   (a)The [R Company] Valuation of …[N Street, Suburb O] dated February 2019 …

6. The context to those orders included the financial statements each party had filed.  The Wife’s first financial statement (exhibit W30), filed 4 April 2019, showed her income as an “estimated” total of $500 per week from self-employment and expenses of $2,874 per week (not including mortgage payments), an apparent shortfall of $2,374 per week.  This figure included $673 per week for school fees that represented an obligation to pay, not an actual payment, so adjusting the claimed shortfall for school fees, the Wife’s financial statement claimed an excess of expenditure over income of $1,701 per week.  The Wife had provided documents, including bank statements, as “financial discovery” by letter dated 23 April 2019, that is six days before the first return of her application listed for 29 April 2019. 

7. The Husband’s first financial statement (exhibit W12) was filed 24 April 2019, five days before the first return.  That showed he had an income and benefits from self-employment of $2,831 per week and expenses of $3,004, an excess of expenditure over income of $173 per week.  That excluded rental income on an investment property in Suburb L property of $350 per week and expenses of $513 and $85.  The Suburb L property was “underwater” to the extent of about $248 per week, which the Husband serviced until it was sold in July 2019.  Hence, on his financial statement the Husband had an excess of expenses over income of $421 until the Suburb L property was sold.  The Husband’s net of tax income from employment on his financial statement was $628 per week or $32,656 per annum, hence a stated net income from self-employment of $1,853 per week. 

8. Subsequently filed tax returns showed that for the financial year ending 30 June 2019 (‘FYE 2019’) the Husband’s taxable income was $144,076, with income tax of $42,687, a net of tax income of $101,389 or $1,949, or about $96 per week more than put in his financial statement.  The Wife’s subsequently filed tax return showed that for the FYE 2019 her total income was $12,778 with no tax payable.  A year later on 6 July 2020[2] the Wife disclosed receiving a tax refund of $9,679 for FYE 2019.

   [2] Exhibit W60 page 6.

9. One of many intense disputes in this case is the parties understanding of how long the Husband’s obligations under the April 2019 orders would be in place.  The parties arranged mediation for August 2019.  After the unsuccessful mediation, the Wife asserts that the Husband ceased meeting his financial obligations pursuant to the April 2019 orders, including making mortgage repayments.  The Husband’s case is that he did not have the funds to maintain those outgoings over a prolonged period, and only understood that he would be meeting those costs until the mediation.  The Wife raised issues with the Husband travelling to Europe for six weeks in 2019 with his partner and his partner’s child in light of the Husband’s alleged financial difficulties.  The Husband’s evidence is that trip was substantially a work trip at a client’s expense. 

10. In October 2019 the Husband was falling behind on payments for the children’s school fees.  The Wife’s solicitors wrote to the Husband’s solicitors suggesting the children move schools.  She asserts no response was received.  Under cross-examination, the Husband indicated that a response would have been sent but he was not able to produce any response.  The following March the Husband contacted the school via email to alert them to the fact that he was no longer able to meet the costs and sought to remove the children at the conclusion of Term 1.  The Wife changed her mind about the children being removed from the private school and wanted them to remain.  However it came to be, the children remained at their school and the debt of school fees continued to grow.  At the conclusion of the final hearing the school fees amounted to around $70,000 and the school had issued proceedings against the Husband seeking to obtain payment.  It is unclear why the application was pursued against the Husband only.  It was suggested that it may be that they had a copy of the orders which provided that the Husband was to meet the cost. 

11. On 19 December 2019 the Wife filed an enforcement application of the April orders.  It was determined by the then Judge that the enforcement required cross-examination and the matter was adjourned for interim defended hearing.  In late January 2020 the Husband filed an application to vary the order while maintaining the order ceased at the date of the nominated interim defended hearing that is 22 August 2019 or the date of mediation.  The Wife contended that the obligation continued until varied by a subsequent order.  Despite the issue being agitated by the parties and three appearances at this Court, the matter was not heard and determined and the parties regarded the dispute as alive.  These proceedings were regarded as the “consolidation” of those interim applications with the applications for final orders.  The consequence of that was that this hearing, by necessary evidence and cross-examination, was considerably extended. 

12. In May 2020 the Husband ceased the private health insurance plan and commenced a new plan for himself and the children.

13. The interim defended hearing was listed on 9 July 2020 and interim consent orders were made.  The matter was again adjourned for an interim defended hearing to 18 September 2020, which was subsequently vacated.  On 7 October 2020 orders were made for the parties to jointly obtain a valuation of the FMH and the Husband’s motor vehicles.

14. The live issue of enforcement and/or variation of the April 2019 orders was not determined.  The nature of those orders, with the benefit of hindsight, had many problems.  Some bills or receipts of payments with requests for reimbursement were sent to the Husband as they came in.  One of the children had the Husband’s credit card details and paid for “horse” expenses directly to his credit card without consultation, but arguably within the ambit of the orders.  When an assessment of child support was made on 1 June 2020, it was not enforced.  The Husband was entitled to apply set off payments pursuant to the April 2019 orders against any child support assessment. 

15. It is clear enough that at April 2019 the Husband had not secured his own rental accommodation, but in July 2019 he did so at the not unreasonable rate of $550 per week. 

16. In 1993 in Langford & Coleman (1993) FLC 92-346 (‘Langford & Coleman’), Nygh J, with whom Ellis and Barblett JJ agreed, determined (at 79,671) that:

    It follows that if an order made by consent must be treated like any other non-consensual court order must be read and interpreted quite independently of what the parties subjectively might have intended thereby.  It must be read as standing on its own feet, as it were[3].

    [3] Langford & Coleman has been followed in Yunghanns & Ors (1999) FLC 92-836 at [143] and in Fooks and Clark (2004) FLC 93-183.

17. On the same page of the report Nygh J also acknowledged the discretion of the court to refuse to enforce an order if it would be inequitable to do so.  In Langford & Coleman that issue was remitted to the trial judge.  However, the surrounding circumstances or context to the order would or should inform the interpretation of the order and, whether or not that is so, the surrounding circumstances and context would inform whether it is inequitable to enforce the order “read standing on its own feet”. 

18. Hence the Husband’s intention that the orders only operated to August 2019 or the end of 2019 does not inform what the orders meant.  However the context does.  The Husband’s net of assessed tax income for the FYE 2019 year was $101,389 and for the FYE 2020 year was $106,372.  The full amount of the April 2019 orders after the sale of the Suburb L property was in the order of $73,500 and that plus rent for accommodation for the Husband meant little was left for the Husband’s day to day expenses from his income unless the Husband didn’t pay his income tax according to law.  That circumstance or context informs the question of whether the orders were to continue to a certain date and be reviewed or whether the orders were to continue until reviewed.  However the Husband’s capacity to pay included his income and what money he had inherited.  He had just inherited $110,000.

19. I do not accept that the orders were to continue indefinitely.  The extent of the obligations were not sustainable even considering the Husband’s inheritance.

20. Whether or not that is correct those circumstances and the Wife obtaining employment in late 2019 cried out for the orders to be reviewed. 

    The Wife’s employment, income and expenses

21. The Wife was self-employed in her business from when the Husband left the FMH, but had minimal income.  Sensibly, the Wife sought and obtained regular employment working 24 hours per week in late 2019.  I am satisfied that for the period from April 2019 until the late 2019 the Wife had a need for spousal maintenance from the Husband, that is, over that period she was unable to support herself to a reasonable level in all the circumstances.  Thereafter from August 2019 until 24 March 2021 the Wife was in regular employment earning an income or on paid leave from that employment.  I am satisfied that income from employment was sufficient to support herself in all the circumstances. 

22. From December 2020 until March 2021, because of the serious illness of the parties’ middle child, the Wife was unable to attend paid employment and received paid leave and obtained assistance of a carers benefit.

23. In mid-2021 the Wife received about $8,000 by way of a redundancy payment from her previous employer.  She applied those funds to her legal fees in these proceedings.  I am satisfied that the payment to her legal representatives was both necessary and sensible, and the whole of that redundancy payment is effectively included in the pool of assets (line 7 of the balance sheet, “Funds applied to legal costs”), described later in these reasons.  Hence, that redundancy payment should not be regarded as money available to the Wife to support herself at that time.

24. With commendable diligence, notwithstanding the profound parenting issues with the recovering but nonetheless continuing illness of the parties middle child, the Wife obtained employment mid-2021 and thereafter continued to be employed.

25. I am satisfied that for the period from when her paid leave ran out, early 2021 until her first payment from the new employment mid- 2021, the Wife was in need of spousal maintenance, or in the words of section 72 of the Act, “unable to support herself… adequately”.  But thereafter she was able to support herself adequately.  

26. In the circumstances of the serious illness of their child there can be no suggestion that the Wife has not appropriately and diligently sought employment.

27. As at the resumed final hearing in May 2022, the Wife was employed at an annual salary of $77,000 and also had the small benefit of some salary packaging (see W42).  The Husband pointed to the larger net of tax sums the Wife received in later 2021 as the basis for a finding that the Wife’s income was significantly higher.  It is clear that for a period the Wife did earn, by shift work and overtime, more than $77,000 per annum pro rata over a short period but she said this was at a significantly busy time at her work and was unlikely to be available on an ongoing basis.  I accept that evidence.

28. I am satisfied the Wife has an income of about $77,000 per annum and an earning capacity of a little more due to earning up to $150 per week in her separate self-employment or business.

29. The Wife earns significantly less than the Husband and, because of the demand of parenting, works as much as she can, but this is less than full time and at the end of March 2022 was 28 hours per week (see W42).

30. The Wife has been consistent in asserting that her expenditure has exceeded her income at all material times since separation.

31. As to the assessment of appropriate spousal maintenance, income tested government benefits must be disregarded and I do disregard them for that purpose.

32. In the Wife’s financial statement filed 4 April 2019 she estimated her only income as $500 from her business when it was actually much less, but discretionary of Part N household expenditure for her and the children was said to be $2,874 per week, a huge shortfall.

33. In the Wife’s financial statement filed 1 April 2021 her only income was government benefits but her discretionary Part N household expenditure for her and the children was said to be $1,666 per week plus some items of fixed expenditure.  Again a huge shortfall.

34. In the Wife’s financial statement filed 22 April 2022 she stated her income without government benefit of carer’s payment of $8 per week was $1,346 from employment and $150 from her business.  But discretionary or Part N household expenditure for her and the children was said to be $1,495 per week plus fixed expenditure at items 19, 26-27 of $387, a total of $1,882 not a huge shortfall, but a not insignificant one of $387 per week.

35. Exhibit W28, the Wife’s costs notice, shows that over the period of December 2019 to February 2020, when working or on paid leave to look after the middle child, the Wife had, from “wages” paid some $10,500 to her lawyers for legal fees.  Further, from September 2020 until November 2020, while employed the Wife had, from “wages”, paid some $12,000 to her lawyers for legal fees.  Further in the period from September 2021 to February 2022, a time of a bit higher than usual wages, the Wife had paid her lawyers the sum of $31,700 from “wages”.  Further in the period from July 2021 until May 2022 the Wife had increased her savings from $4,537 to $11,493 in her main account.  That evidence was unchallenged and I accept it.  Hence over the period from July 2021 until May 2022, from income, the Wife had managed to raise, save and/or pay to her lawyers the sum of about $38,650.

1. Because there are some complexities in the option to retain the home aspect and the outstanding school fees being a joint debt and being treated as a joint debt, notwithstanding the cost to the parties which I take into account, I propose to give them an opportunity to consider the form of the draft orders that will be provided to them over only a few days.  The draft orders are Appendix 3 to these reasons.

I certify that the preceding two hundred and sixty-three (263) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       28 August 2023

APPENDIX 1

Date	Name	Totals	Comment
3/04/2019	Electricity Suburb O- 142.78	0	Before orders
3/04/2019	Equine Practice – 139	0	Before orders
23/04/2019	Region AA Stock Feeds - 143.40	0	Before orders
29/04/2019	Date of order
30/04/2019	BB Therapy Centre	90
1/05/2019	Horse agistment	500
1/05/2019	gas bill	53.66
1/05/2019	CC Street loan	2224.99
1/05/2019	Suburb O loan	430.64
1/05/2019	Concert	123
2/05/2019	Hay bale	90
7/05/2019	Town EE stock feeds	59.45
8/05/2019	phone	14.61
9/05/2019	internet and phone	121.15
11/05/2019	X music	16.95
14/05/2019	clothes for kids	79.95
15/05/2019	X music books	40
17/05/2019	Kids public transport cards	30
17/05/2019	Horse supplements	84
18/05/2019	Horse rug	45
20/05/2019	FF Company	498
21/05/2019	Water Suburb O	262.64
21/05/2019	Mobile phones	103.5
28/05/2019	BB Therapy Centre	90
28/05/2019	X camp	365
28/05/2019	Suburb O gas	132.71
29/05/2019	Transfer to Ms Pickering	375.2
1/06/2019	Horse agistment	500
7/06/2019	Internet and phone	170.35
12/06/2019	Kids clothing	214.79
13/06/2019	Kids clothing	396.9
14/06/2019	Kids clothing	40
14/06/2019	Kids clothing	107.88
17/06/2019	M Bank CC Street Loan	2159.67
18/06/2019	Home loan	430
18/06/2019	X's music exam	160
18/06/2019	BB clothes	475
18/06/2019	Electricity Suburb O	288.96
19/06/2019	FF Company	498
24/06/2019	BB learners permit	24.73
25/06/2019	Sports club	768
25/06/2019	School fees	6400
28/06/2019	Water CC Street	154.95
28/06/2019	Kids mobiles	35
30/06/2019	END FYE 2019	Total to FYE 2019	$18,654.68
1/07/2019	BB camp (bag)	300
1/07/2019	Horse agistment	500
8/07/2019	X clothes	78.4
12/07/2019	Equine Practice	337.67
15/07/2019	Equine Practice	192.46
18/07/2019	Telstra bill	136.2
20/07/2019	FF Company	498
20/07/2019	phone	10.1
20/07/2019	Kids mobiles	65
20/07/2019	Home loan	430
23/07/2019	Y music	54
24/07/2019	Gas Suburb O	384.89
26/07/2019	BB Therapy Centre	90
26/07/2019	Y shoes	30
30/07/2019	Classes	704.95
1/08/2019	Y shoes	29.99
1/08/2019	Horse agistment	500
5/08/2019	School photos	130
6/08/2019	Y sports club	90
6/08/2019	CC Street Water	239.5
7/08/2019	BB course	224
19/08/2019	Kids phone	66.55
22/08/2019	Telstra Suburb O	136.78
22/08/2019	Original date of interim hearing	Total 29/4/19 - 22/8/2019	$23,793.17
9/09/2019	Horse agistment	500
18/09/2019	Kids mobiles	65
23/09/2019	Telstra Suburb O	132.7
4/10/2019	BB Dress	179.95
4/10/2019	Horse agistment	500
9/10/2019	School fees	6400
15/10/2019	BB horse gear	220
17/10/2019	Sports club rally Y	40
18/10/2019	X music camp	640
18/10/2019	Kids mobiles	65
22/10/2019	Telstra Suburb O	140.6
25/10/2019	Musical instrument strings	95
31/10/2019	Shoes for Y	79.99
31/10/2019	Supplies for horse	79.99
1/11/2019	Round bales x 4	480
3/11/2019	X's music exam	235
14/11/2019	Horse agistment	500
18/11/2019	Kids mobiles	65
18/11/2019	X music exam	59.95
26/11/2019	Telstra home phone & internet	279.4
26/11/2019	Health insurance	498.75
27/11/2019	School books BB & X	110.85
1/12/2019	Spotify (May - December 2019)	125.93
1/12/2019	Netflix (July to December 2019)	119.94
1/12/2019	Horse agistment	500
2/12/2019	BB school books	190
5/12/2019	Provisional tax kept - $9567	0	Not included
13/12/2019	Xs doctor	960
16/12/2019	X bedding	212
17/12/2019	Bottle holder and stand for Y's bike	40
18/12/2019	Kids mobiles	65
20/12/2019	Horse for E	39.99
20/12/2019	Hay bags	49.98
20/12/2019	School fees	5000
21/12/2019	Telstra Suburb O	110.06
26/12/2019	Health insurance	498.75	Total 30/4/19 to 31/12/19	$43,162.00
1/01/2020	Horse agistment	500
18/01/2020	Kids mobiles	65
26/01/2020	Health insurance	498.75
1/02/2020	Horse agistment	500
5/02/2020	Return of Enforcement/ Variation applications	Total paid to 5/2/20	$44,635.75
7/02/2020	School fees	8368
18/02/2020	Kids mobiles	65
26/02/2020	Health insurance	498.75
1/03/2020	Horse agistment	500
18/03/2020	Health insurance	498.75
18/03/2020	Kids mobiles	65
20/03/2020	Laptop BB	3112.79
20/03/2020	Laptop X	550
1/04/2020	Horse agistment	500
9/04/2020	Health insurance	237.1
18/04/2020	Kids mobiles	65
24/04/2020	Y's pet bedding	15.99	Total 30/4/19 to 30/4/2020	$59,112.13
1/05/2020	Horse agistment	500
15/05/2020	Health insurance	118.18
18/05/2020	Kids mobiles	65
18/05/2020	Toy horse	13.99
18/05/2020	iPod for Y	466.95
30/05/2020	Helmet Y horse riding	209.95
30/05/2020	Y clothes	79.94
31/05/2020	Y clothes	170.5
31/05/2020	Helmet cover bag	31.95	Total 30/4/19 to 1/6/20	$61,358.59
1/06/2020	Horse agistment	500	Total 1/1/20 to 1/6/20	$18,196.59
1/06/2020	CHILD SUPPORT ASSESSMENT
17/06/2020	Health insurance	177.65
18/06/2020	Kids mobiles	65
30/06/2020	END FYE 2020	Total 1/7/19 to 30/6/20	$42,946.56
1/07/2020	Horse agistment	500
17/07/2020	Health insurance	177.65
18/07/2020	Kids mobiles	65
1/08/2020	Horse agistment	500
17/08/2020	Health insurance	177.65
18/08/2020	Kids mobiles	65
1/09/2020	Horse agistment	500
17/09/2020	Health insurance	177.65
18/09/2020	Kids mobiles	65
1/10/2020	Horse agistment	500
17/10/2020	Health insurance	177.65
18/10/2020	Kids mobiles	65
1/11/2020	Horse agistment	500
17/11/2020	Health insurance	177.65
18/11/2020	Kids mobiles	65
1/12/2020	Horse agistment	500
17/12/2020	Health insurance	177.65
18/12/2020	Kids mobiles	65	Total calendar 2020	$22,895.14
1/01/2021	Horse agistment	500
17/01/2021	Health insurance	177.65
18/01/2021	Kids mobiles	65
1/02/2021	Horse agistment	500
17/02/2021	Health insurance	177.65
17/02/2021	Ambulance Service	96
18/02/2021	Kids mobiles	65
1/03/2021	Horse agistment	500
8/03/2021	Kids mobiles	65
15/03/2021	Sports club Aust	380
17/03/2021	Health insurance	177.65
24/03/2021	Vet bill (Suburb GG)	370
1/04/2021	Horse agistment	500
7/04/2021	X appointment	115
17/04/2021	Health insurance	177.65
18/04/2021	Kids mobiles	65
27/04/2021	X appointment	94.4	Total calendar 2021	$4,026.00
Total:	$70,083.14	Total 1/6/20 to 27/4/21	$9,224.55
Total 1/7/20 to 27/4/21	$8,481.90

APPENDIX 2

Extracted from Appendix 1.

Date	Name	Totals
25/06/2019	School fees	6400
9/10/2019	School fees	6400
20/12/2019	School fees	5000
7/02/2020	School fees	8368
Total:	$26,168.00

APPENDIX 3

DRAFT PROPOSED FINAL ORDERS

1.All previous Orders relating to property and spousal maintenance be discharged.

2.That the Husband indemnify the Wife as to 42.5% of any part of the school fees outstanding as at 4 May 2022 that she has paid since then and the Wife indemnify the Husband as to 57.5% of any part of the school fees outstanding (but not legal costs) as at 4 May 2022 that either has paid since then. 

IN THE EVENT THE WIFE SEEKS TO RETAIN THE N STREET, SUBURB O PROPERTY

3.In the event the Wife seeks to retain her interest, and obtain the Husband’s interest in the real property known as Suburb O (“the Suburb O property”) then on or before 4.00 pm on Thursday 28 September 2023 (28 days after these orders) (‘the election date’) the Wife advise the Husband in writing (by email directly to the Husband and to his solicitors) of her decision.

4.In the event the Wife has advised the Husband in writing in compliance with the previous order of her decision to retain her interest and obtain the Husband’s interest in the Suburb O property then;

(a)On or before 4.00 pm Monday 27 October 2023 (‘the due date’) the Wife pay to the Husband the sum of $391,038 ($777,654 minus $386,616) LESS the following:

(b)$37,700 on account of arrears of payments due pursuant to the orders of 29 April 2019 (‘the 29 April 2019 arrears’); and

(c)$4,000 on account of the Wife’s costs of 17 March 2020 (‘the Wife’s 17 March 2020 costs’); and

(d)$4,000 on account of the Wife’s costs of 9 July 2020 (‘the Wife’s 9 July costs’); and

(e)being a total payment (a-c) of $345,338

(“the payment)

5.Contemporaneously with the payment:

(a)Wife pay, discharge and indemnify the Husband against all payments and liability pursuant to the mortgage name the debt to M Bank secured against the Suburb O property and all apportionable rates and taxes of or with respect to the Suburb O property of whatsoever nature and kind (‘the refinance’); and

(b)The Husband do all such things and execute all such documents as may be necessary to transfer to the Wife at the expense of the Wife all of his right, title and interest in the Suburb O property (‘the transfer’);

(c)Subject to order 2 herein The Wife pay discharge and indemnify the Husband against arrears of school fees in the sum of $69,052 as at 4 May 2022.

6.Pending the refinance, the payment and the transfer:

(a)The Wife have the sole right to occupy the Suburb O property and during such right of occupation the Wife pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;

(b)The parties hold their respective interests in the real property upon trust pursuant to these orders; and

(c)Neither party encumber the real property without the consent in writing of the other party save to the extent necessary to comply with these orders.

SALE AND PERCENTAGE DIVISION IN DEFAULT OF PAYMENT

7.In the event has advised the Husband of her election to retain the Suburb O property and obtain the Husband’s interest therein, and the Wife fails to make the payment to the Husband and/or the refinance on or before the due the date, then the parties are to do all acts and things to place the Suburb O property on the market for sale (‘the default sale’) on the following terms and conditions:

(a)The parties shall agree on a selling agent, and failing agreement, the Wife shall provide to the Husband the names of 3 real estate agents and the Husband shall nominate one of those agents within 7 days;

(b)The reserved price shall be as agreed and failing agreement, $1,200,000; and

(c)The settlement period be as agreed and failing agreement, 60 days; and

(d)There be liberty to apply as to terms and conditions of the default sale.

8.Upon settlement of the sale of the Suburb O property, the proceeds of the sale be applied as follows:

(a)First, to all costs, commissions, and expenses of the sale;

(b)Secondly, to discharge any mortgage and any other encumbrance effecting the real property;

(c)Thirdly, to pay arrears of school fees in the sum of $69,052 as at 4 May 2022.

(d)Fourthly, 57.5% of the proceeds of sale to the Wife; and

(e)Fifthly, 42.5 % of the proceeds of sale to the Husband; and

(f)From the Husband’s 42.5% part or share pay to the Wife the following sums:

(i)$37,700 on account of arrears of payments due pursuant to the orders of 29 April 2019 (‘the 29 April 2019 arrears’); and

(ii)$4,000 on account of the Wife’s costs of 17 March 2020 (‘the Wife’s 17 March 2020 costs’); and

(iii)$4,000 on account of the Wife’s costs of 9 July 2020 (‘the Wife’s 9 July costs’);

IN THE EVENT THE WIFE DOES NOT ADVISE OF ELECTION TO RETAIN THE N STREET, SUBURB O PROPERTY

9.In the event the Wife has not advised the Husband in writing of her election to retain her interest and obtain the Husband’s interest in the real property known as Suburb O (“the Suburb O property”) as provided in these orders, then on or before 4.00 pm on Thursday 5 November 2023 the parties are to do all acts and things to place the Suburb O property on the market for sale (‘the sale for division’) on the following terms and conditions:

(a)The parties shall agree on a selling agent, and failing agreement, the Wife shall provide to the Husband the names of 3 real estate agents and the Husband shall nominate one of those agents within 7 days;

(b)The reserved price shall be as agreed and failing agreement, $1,200,000; and

(c)The settlement period be as agreed and failing agreement, 60 days; and

(d)There be liberty to apply as to terms and conditions of the sale for division.

10.Upon settlement of the sale of the Suburb O property, the proceeds of the sale be applied as follows:

(a)First, to all costs, commissions, and expenses of the sale;

(b)Secondly, to discharge any mortgage and any other encumbrance effecting the real property;

(c)Thirdly, payment of outstanding school fees of $69,052

(d)Fourthly, 57.5% of the remaining proceeds of sale to the Wife; and

(e)Fifthly, 42.5 % of the remaining proceeds of sale to the Husband; and

(f)From the Husband’s 42.5% part or share the following sums be paid to the Wife:

(i)$37,700 on account of arrears of payments due pursuant to the orders of 29 April 2019 (‘the 29 April 2019 arrears’); and

(ii)$4,000 on account of the Wife’s costs of 17 March 2020 (‘the Wife’s 17 March 2020 costs’); and

(iii)$4,000 on account of the Wife’s costs of 9 July 2020 (‘the Wife’s 9 July costs’).

SUPERANNUATION PAYMENT SPLIT

11.That the base amount of $16,093 is allocated, as required by s.90XT(1)(a) of the Family Law Act 1975, to the Wife out of the interest held by the Husband, Mr Pickering (member number …) in the Super Fund 2 (the Trustee for which is HH Company).

12.That whenever a splitable payment within the meaning of Section 90XE of the Act becomes payable to or on behalf of the Husband from his interest in Super Fund 2, the Trustee, HH Company shall pay the Wife the entitlement calculated in accordance with Part 6 of the Family Law Act (Superannuation) Regulations 2001, and make a corresponding reduction in the entitlement of the Husband would have had but for these Orders.

13.That Orders 9-14 have effect from the operative time.

14.That the operative time is 4 business days after the date of service of sealed Orders upon the trustee.

15.That this Order binds the Trustee of Super Fund 2 (the Trustee for which HH Company).

16.There be liberty to apply to each party and HH Company (the Trustee of Super Fund 2) in relation to the implementation of the Orders effecting the superannuation interest.

MISCELLANEOUS

17.Within 14 days, the parties shall do all acts and things to transfer the Wife’s interest and shareholding (if any) in the Husband’s business interests and associated trusts (including but not limited to Q Pty Ltd and J Pty Ltd) to the Husband at his expense, and he shall indemnify her with respect to all liabilities of whatsoever nature and kind in relation to the business entities and associated trusts.

18.The Wife retain for her sole use and benefit, to the exclusion of the Husband, all other assets, resources and liabilities in her sole name including, but not limited to the following;

(a)Her shares;

(b)Motor Vehicle 2;

(c)Chattels in her possession;

(d)Her cash at bank;

(e)Her superannuation entitlements; and

(f)Any other asset or liability in her possession or sole name.

19.The Husband retain for his sole use and benefit, to the exclusion of the Wife, all other assets, resources and liabilities in his sole name including, but not limited to the following:

(a)His cash at bank;

(b)His transport business;

(c)The Q Pty Ltd and JJ Pty Ltd businesses;

(d)The Pickering Family Trust and any other Trust entities;

(e)The balance of his superannuation entitlements;

(f)Motor Vehicle 4;

(g)Motor Vehicle 3;

(h)Motor Vehicle 1;

(i)Chattels in his possession; and

(j)Any other asset or liability in his possession or sole name.

20.Save as otherwise provided for in these Orders and as a separate and ongoing obligation the Wife shall do all acts and things necessary and sign all such documents which may be required from time to time to pay and indemnify and keep the Husband indemnified in relation to all debts, liabilities, interests, costs and outgoings in relation to:

(a)Any and all creditors of the Wife, and/or her related entities;

(b)Any and all borrowings of the Wife, and/or her related entities;

(c)Any and all of the Wife’s taxation liabilities and/or those of her related entities in any jurisdiction and any interest, costs (including accounting costs) or penalties applicable thereto;

(d)Any and all taxation liabilities owing by the Husband personally on income notionally distributed to him by any of the Wife, and/or her related entities in any jurisdiction and any interest, costs or penalties applicable thereto;

(e)Any and all hire purchase and/or liabilities in respect of any assets owned by the Wife, and/or her related entities;

(f)Any and all other debt and/or liability of whatever nature in respect of the Wife, and/or her related entities;

(g)Any personal guarantees given by the Husband in respect of the debts of the Wife, and/or her related entities.

21.Save as otherwise provided for in these Orders and as a separate and ongoing obligation the Husband shall do all acts and things necessary and sign all such documents which may be required from time to time to pay and indemnify and keep the Wife indemnified in relation to all debts, liabilities, interests, costs and outgoings in relation to:

(a)Any and all creditors of the Husband, and/or his related entities;

(b)Any and all borrowings of the Husband, and/or his related entities;

(c)Any and all of the Husband’s taxation liabilities and/or those of his related entities in any jurisdiction and any interest, costs (including accounting costs) or penalties applicable thereto;

(d)Any and all taxation liabilities owing by the Wife personally on income notionally distributed to her by any of the Husband, and/or his related entities in any jurisdiction and any interest, costs or penalties applicable thereto;

(e)Any and all hire purchase and/or liabilities in respect of any assets owned by the Husband, and/or his related entities;

(f)Any and all other debt and/or liability of whatever nature in respect of the Husband, and/or his related entities;

(g)Any personal guarantees given by the Wife in respect of the debts of the Husband, and/or his related entities.

22.Unless otherwise specified in these Orders and except for the purposes of enforcing compliance with the terms of these Orders:

(a)Each party shall be solely entitled to the exclusion of the other to all property (including choses-in-action) and financial resources in the possession of such party as at the date of these Orders;

(b)Each party hereby forgoes any claim they may have to any superannuation benefits or other employment related benefits belonging to or earned by the other;

(c)All insurance policies shall become the sole property of the owner named in the policy;

(d)Each party shall be solely liable for and indemnify the other against any liability encumbering an item of property to which that party is entitled pursuant to these Orders; and

(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

23.All outstanding applications are otherwise dismissed.

AND THE COURT NOTES THAT:

A.Pursuant to section 81 of the Family Law Act 1975 (Cth) the parties intend that these Orders shall, as far as is reasonably practicable, finally determine the financial relationship between them and avoid further proceedings between them.