QUAILE & BARODIN - [2019] FamCA 52

FAMILY COURT OF AUSTRALIA

QUAILE & BARODIN

[2019] FamCA 52

FAMILY LAW – CHILDREN – Parenting – Where the husband seeks an equal time arrangement with the children – Where the children have a strong and loving relationship with each of their parents – Where the children currently spend five nights a fortnight with the husband – Where the children do not currently have a full weekend with the wife – Where the children are settled in their current time arrangement – Where the wife is better able to meet the complex emotional needs of the children – Where significant weight is given to the children’s wishes – Order for the children to live with the wife and spend significant and substantial time with the husband – Where the husband sought equal shared parental responsibility – Where the wife sought sole parental responsibility for medical and allied health matters – Where the wife otherwise sought equal shared parental responsibility – Order for equal shared parental responsibility – order for each party to have sole parental responsibility when the children are in their care.

FAMILY LAW – PROPERTY – Where there is a significant dispute about initial and ongoing contributions – Where the wife is a beneficiary of a substantial estate – Where a “two pools” approach was adopted in respect to the matrimonial asset pool and the estate pool– Where both parties sought a s79(2) adjustment – Where the wife’s parents had provided an interest free loan of $1.2 million to the parties – Where the intention was to provide benefit to the wife – Where that contribution is taken into account as a contribution on behalf of the wife- Where the benefit of that loan is also a financial resource to be considered under s75(2) - Where the wife’s contributions to the matrimonial pool outweigh those of the husband – Where contributions to the matrimonial pool are assessed as 60 per cent to the wife and 40 per cent to the husband – where the wife will receive significant interest in the Estate, and the benefit of the interest free loan – Where an adjustment of $750,000 is made to the husband.

FAMILY LAW – CHILD SUPPORT – Where the wife seeks an application for a departure from the current child support assessment – Where the wife argued a history of applications to the Child Support Agency constituted “special circumstances” under s 116 and 117 of the Child Support Assessment Act 1989 (Cth) – Where no special circumstances are found – Where further, it would not be just or equitable to make a departure order – Where orders by consent are adopted.

Child Support (Assessment) Act 1989 (Cth) ss 116, 117
Family Law Act 1975 (Cth) ss 60B, 75, 79

In the Marriage of Kessey (1994) 18 Fam LR 149.

APPLICANT:

Mr Quaile

RESPONDENT:

Ms Barodin

FILE NUMBER:

SYC

866

2014

DATE DELIVERED:

8 February 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

21, 22, 23 January 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Coleman SC

SOLICITOR FOR THE APPLICANT:

Doolan Wagner Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC

SOLICITOR FOR THE RESPONDENT:

Ford Family Lawyers

Orders

IT IS ORDERED
PARENTING

That the husband and the wife have equal shared parental responsibility for their children, X born … 2002, Y born … 2005 and Z born … 2007 (and collectively referred to as “the children”).
That the husband and the wife shall each individually have sole responsibility for making decisions concerning the day-to-day aspects of the care, welfare and development of the children during periods when the children, or any of them, are living with either party respectively.
That the children live with the wife when they are not otherwise living with the husband pursuant to these orders.
That, during school terms, the children live with the husband in each alternate week from Wednesday afternoon after school until Monday morning or until Tuesday morning if Monday is a public holiday.
That the children spend the first half of the school holiday periods after terms 1, 2 and 3 with the husband and that the time pursuant to order 4 commence on the first Wednesday of the next school term.
That the children spend the second half of the Christmas school holidays with the husband in 2019 and each alternate year thereafter and spend the first half of the school holidays with the husband in 2020 and each alternate year thereafter.
That for the purpose of these orders, school holidays commence at 9.00am on the first day after the last day the children attend school and end at 6.00pm on the day before the first day the children attend school in the following term, provided that:
(a)if the number of days in the holiday is an odd number, the extra day will be spent with the husband; and
(b)if the children finish or start school on different days, the holidays start on the day after the last child finishes classes and end on the day before the first child starts classes.
That in 2019 and in each alternate year thereafter, the children spend time with the husband from 3.00pm on Christmas Day until 9.00am on 27 December.
That in 2020 and in each alternate year thereafter, the children spend time with the wife from 3.00pm on Christmas Day until 9.00am on 27 December.
That where the children spend the first half of the Christmas school holidays with the husband, the time pursuant to order 4 will commence on the first Wednesday of the first school term of the new year and where the children spend the second half of the Christmas school holidays with the husband, the time pursuant to order 4 will commence on the second Wednesday of the first school term of the new year.
That if the birthday of either parent falls in a school holiday period, the children spend time with the parent on that parent’s birthday from noon until 9.00pm.
That if the children’s birthdays fall on a school day, the children will spend time with the non-resident parent on the birthday from after school until 8.00pm.
That if the children’s birthdays fall on a weekend during school term, they will remain with the resident parent on the day of the birthday and spend time with the other parent from 9.00am until 2.00pm on the other day of the weekend.
That in the event that the children are not otherwise living with the wife on Mother’s Day then they will spend time with the wife on the weekend that includes Mother’s Day from 9.00am Saturday to before school (or 9:00am) on Monday.
That in the event that the children are not otherwise living with the husband on Father’s Day then they will spend time with the husband on the weekend that includes Father’s Day from 6:00pm Saturday to before school (or 9:00am) on Monday.
That, other than in an emergency, each parent must agree to any invasive intervention such as prescription medication or surgery for any of the children.
That either parent may initiate medical, dental or other health or educational professional review or treatment, but must inform the other parent that the treatment is occurring and continuing and of the details of the professional, so that the other parent can speak with the professional and be involved in the process.
That either parent may initiate any non-invasive intervention such as therapy, educational input or physiotherapy/exercise programs provided that if the intervention occurs during the time the child spends with the other parent, the other parent must agree.
That neither parent shall enrol the children in any extracurricular activity that would take place during the time the children spend with the other parent unless the other parent agrees to the enrolment.
That changeovers that do not take place at school will occur at the wife’s residence.
That each parent is entitled to travel with the children in any period of time that the children spend with that parent pursuant to these Orders provided that the travelling parent gives not less than two calendar months’ notice of the intention to travel and the proposed destination and, not less than seven days before departure, provides to the other parent copies of airline bookings, confirmation of travel insurance, the place where the children will be staying from time to time and telephone contact details.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

PROPERTY

That within two calendar months of the date of these orders, the wife shall pay to the husband the sum of $1,365,024
That the wife indemnify the husband in relation to any and all liability to repay the sum of $1,200,000 lent to the parties by Mr and Ms A Barodin.
That upon receipt of the sum of $1,365,024, the husband shall sign such documents as are required to effect the transfer to the wife of his interest in the property at B Street, Suburb C being the property in Folio Identifier ...
That other than as provided in these orders, each party retain such items of personal property as are in his or her possession.

CHILD SUPPORT

By consent, that pursuant to Section 124 of the Child Support (Assessment) Act 1989 (Cth), commencing from 1 January 2019, the payer husband provide non-periodic child support (“Third Party Payment”) to the payee wife for the children by paying as and when they become due and payable, fifty (50) per cent of any compulsory school fees and expenses at such of D School, E School or F School as the children are from time to time attending.
By consent, that, in the special circumstances of the case, it is just and equitable as regards the children, the payee wife and the payer husband, and otherwise proper for Order 27 to be made.
By consent that the Third Party Payment to be made by the payer husband pursuant to Order 27 is not to be credited against or otherwise reduce the annual rate of child support payable by the husband as assessed from time to time and is not to be relied upon by the husband in support of any application to reduce the annual rate of child support payable by him under any relevant administrative assessment.
That the wife’s application for a child support departure order is otherwise dismissed.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 866 of 2014

Mr Quaile

Applicant

And

Ms Barodin

Respondent

REASONS FOR JUDGMENT

Mr Quaile (“the husband”) and Ms Barodin (“the wife”) married and commenced their co-habitation in 1996.
Both parties were in employment. Both had professional qualifications.
They have three children, X, born in 2002 (now 16 years), Y, born in 2005 (now almost 14 years) and Z, born in 2007 (now 11 years).
The husband asserts that at the time of their marriage and cohabitation he had savings and shares to the value of $100,000. The wife asserts that they each had minimal assets.
Shortly before the parties married, they purchased a property at Suburb G for $200,000. Settlement took place on 30 January 1996. There is a dispute about how the purchase was financed. The husband asserts that he contributed $100,000 from savings and they borrowed $160,000, using the surplus to pay for renovations. The wife asserts that they borrowed $170,000 and the husband contributed $30,000.
The parties renovated Suburb G. The renovations cost about $200,000. The wife contributed $9,000 which was a gift from her grandmother. The husband contributed savings but there is no agreement about the amount the husband contributed. The balance of the costs were funded from income.
Until the renovations were completed, they lived with the husband’s parents. The husband asserts they did not pay rent. The wife asserts they paid $50 per week. Ultimately, there was no cross-examination on that issue and no submissions were made about it.
They both agree that they each worked on the renovations. The husband did substantial physical work. The wife did the design work but she also did physical work. They both continued to work full-time and the wife was also studying.
X was born in 2002. The wife took leave, and returned to work when X was one year old. Initially the wife worked two days each week and the maternal grandmother cared for X on one of those days.
The wife’s father gave her $50,000 in 2002 which was used to buy a car for $42,000. That money was paid to her to acknowledge work she did in relation to litigation concerning a property owned by her father at H Street, Suburb J. It was the wife’s case that the sum of $50,000 should be treated as earned income.
The husband asserts that the wife suffered from post-natal depression after X’s birth and that he assisted in caring for her and for X. Ultimately, there was no cross-examination in relation to the effect of the wife’s post-natal depression and no submissions were made in relation to contributions arising out of her illness.
In September 2002, the wife’s grandmother, Ms K Barodin, died. The wife was a beneficiary of a 1/18^th share of her grandmother’s estate (“the Barodin Estate”). The estate was substantial and comprised significant real property including commercial property. The wife’s father and paternal aunt are the executors. The estate has not yet been fully administered but the wife expects that she will receive a final payment in February 2019. The final payment is expected to be $2,720,455.
The husband asserts that the wife had a substantial involvement with the conservation and improvement of the property interests which comprised the estate and that, by caring for the children when the wife was involved with estate matters, he made an indirect contribution to the preservation and improvement of the estate. That assertion is disputed.
In November of 2002, the husband inherited $15,000 on the death of his father. This money was placed into their offset mortgage account.
Y was born in 2005. The husband asserts that the wife’s post-natal depression became more severe and she needed psychiatric treatment.
In December 2006, the parties purchased a property at Suburb C for $1,615,000. The wife’s parents lent the parties $1,200,000 interest free. They signed a loan agreement documenting the loan. There is a dispute about whether that loan will ultimately be repayable.
Because Suburb G had not yet sold, the wife’s parents lent the parties a further $492,000. That loan was also documented.
Later in December 2006, Suburb G was sold for $850,000. The mortgage of $33,502.93 according to the husband or $49,296.86 according to the wife, was discharged. The loan of $492,000 was repaid to the wife’s parents. The parties received about $300,000 net from the sale.
Z was born in 2007. The wife took a year of maternity leave.
In 2009 the wife’s parents gave her $100,000. That money was placed in a joint account.
In 2010 the husband inherited $84,200 on the death of his mother.
Suburb C was renovated at a cost of some $530,000. The renovations were paid from joint income and the husband’s inheritance.
The parties separated on 15 September 2013, the wife and the children remaining in Suburb C and the husband moving into rented accommodation.
At separation, the parties had savings of $207,000, including the gift from the wife’s father.
There is a dispute about the amount of money that each of the parties used from their joint account after separation.
The wife received partial distributions from the Barodin estate in 2017 and 2018 totalling $825,440. The estate has not yet been distributed.
The wife has repartnered. Her partner, Mr L, is also a professional and the wife consults to his business.
The husband also repartnered but that relationship broke down in 2018.

THE COMPETING APPLICATIONS

The husband seeks orders that would have the children living with each parent on a week about basis and sharing school holidays.
He sought an order for the sale of Suburb C and the payment of 90 per cent of the net proceeds of the sale to him.
At the commencement of submissions, the husband’s position was refined and he sought an equal division of the “non-estate” (to which I refer as the “Suburb C pool” in these reasons) pool and 25 per cent of the inheritance.
The wife seeks orders that the children spend a block period of five days in each fortnight with the husband and that school holidays be shared.
The wife seeks to retain Suburb C.
The wife’s position was also modified at the commencement of submissions. She sought a division of the Suburb C pool of 60 per cent to her and 40 per cent to the husband. She conceded a small adjustment in favour of the husband in relation to s75(2) factors of the Family Law Act (1975)(Cth) (“the Act”), the chief of which was her possession of her inheritance.
In addition, the wife seeks a departure from the current child support assessment which would increase the amount paid by the husband and require him to pay one half of the children’s private school fees and other nominated expenses.
In relation to the financial matters, the issues of fact to be determined are:
·    The husband’s initial contribution.
·    How the purchase of Suburb G was financed.
·    Whether the loan of $1,200,000 advanced by the wife’s parents is a loan to both parties and whether that loan will have to be repaid.
·    Whether the wife, and indirectly the husband, contributed to the conservation and improvement of the assets of the Barodin Estate.
·    Joint funds used by each party after separation.

PARENTING

The substantial dispute between the parents was in relation to the time the children would spend with each of them. The husband contended for an equal time arrangement with the children spending seven consecutive days with each parent. The wife contended for an arrangement where the children spent five days each fortnight with the husband and otherwise lived with her.
The current arrangement for the children is that they spend alternate weekends with the husband from Friday after school until Monday in one week, and in the second week, from after school on Thursday until 11am on Saturday. The children do not have a full weekend with the wife.
In the event that it was determined that the wife’s position were to be adopted, then it was agreed that the children would live with the husband from Wednesday after school until Monday morning, or Tuesday if the Monday were a public holiday, every alternate week.
The parties were also in dispute about a number of ancillary provisions which will be separately discussed.
The Court had the advantage of a report from Dr M, a child, adolescent and family psychiatrist who prepared a report dated 16 April 2018. Dr M had seen the family in late November 2017. Dr M was cross-examined.
Dr M reported on the views of each of the children.
In relation to X’s response to the husband’s proposal, Dr M reported that X said:
I’d have a fear... I have a set place for myself [in the maternal home]...for my schoolwork... and planning my time... I’m used to it... I don’t wanna [sic] have to get used to something else.
X told Dr M that, if she had to choose, she would choose to continue the current arrangement. She said that she would like to “keep things the same”, not reduce her time with her father and that she valued her time with him.

Dr M observed that the wife was “strong in the area of meeting X’s need for predictability, routine, connection and expectation”.
Y told Dr M that he would not want equal time and would prefer to continue to spend the majority of time with his mother. Y said that he was more productive with his schoolwork at his mother’s home and “I don’t trust myself to do it when I’m at dad’s... there’s more distraction”.
Dr M said Y identified that he could “get away with more” in the husband’s household and that Y identified for himself a need to have boundaries set as happens in the wife’s household. Dr M stated:
I feel that this outcome is quite an achievement on the mother’s part, and reflects a child/mother relationship that includes both positive connection and appropriate parental control and expectation.
Dr M said that the wife met Y’s needs for “both sensitivity/acceptance and firmness/expectation/boundary-setting/persistent attention to his special educational needs”.
In relation to the husband, Dr M said that his capacity to meet Y’s needs was:
[vulnerable] in the area of meeting Y’s needs for firmness/expectation/boundary-setting, in the areas of attitude and behavioural boundaries, and potentially regard to diligence in schoolwork and any additional work associated with his learning difficulties.
Y said that he would alter the current arrangement “a tiny bit” so “I have a few week days [sic] with dad”. Y suggested that the time with the husband might start on Thursday rather than Friday.
Z told Dr M that she wanted to see both her parents but that she would like to keep the current arrangement as it is. She said “I’ve got used to that”.
Dr M did not recommend that the children live in an equal shared arrangement but suggested a block period of five days each fortnight would meet their needs.
Dr M said that the mother was better able to meet the children’s complex emotional needs and that “I would carry some concerns about Y’s character development and developmental trajectory in majority paternal care.”
I accept the submission of Senior Counsel for the husband that the Court must have regard to the Objects contained in section 60B of the Act specifically that of:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.
There is no dispute that all three children must have a meaningful relationship with both of their parents and both parents must have a meaningful involvement in the lives of the children. The issue here is what involvement of the husband meets the best interests of the children.
To the husband’s credit, he did not suggest that the children should be separated. To an extent, the needs and wishes of the group must prevail over individual needs or wishes, absent any significant consequence for an individual child.
The views of the children were canvassed by Dr M in his report. Neither parent gave evidence of any change in those views. In so far as X and Z expressed the view that they did not want the current arrangements to change, the parents have agreed that change is necessary and the configuration of the time the children currently spend with the husband will be changed.
In so far as Y expressed a wish for a little more weekday time with the husband, the changed configuration gives him more weekday time with the husband although not more overall time.
The children have a strong and loving relationship with each of their parents. Dr M said that they have an attachment relationship with both parents.
Dr M reported that X was positive about the mother’s partner, Mr L. Y said that he enjoyed time with Mr L and with his sons.
Although the wife is critical of the husband’s attitude to the financial support of the children, it is not disputed that he has paid child support in accordance with any assessment.
However, he did not contribute to the support of the children between separation and December 2014 when the first child support assessment was made. The husband, in cross-examination, said that in that period the wife had the use of the joint bank account containing some $207,000 (which included the gift of $100,000 from her parents) so that, in so far as she paid for all of the costs of the children, she was doing so from joint funds.
Both parents believe that changing the current configuration of time that the children spend with the husband is appropriate because it reduces the number of changeovers, largely dispenses with changeover between them personally and gives each parent a whole weekend with the children.
Changing the current arrangements so that the children spend a week in the husband’s home each fortnight would have an impact, particularly on X who is in year 11. X is doing exceptionally well at school. She told Dr M that she values routine. She spoke to Dr M about having a set place for homework and planning her time. In cross-examination, Dr M said that X was relatively settled and needed a home base to study.
X does not want to change her current living arrangement and there is no evidence that such a change would be beneficial to her. It would be unwise to impose a change on her and risk destabilising her school performance.
The parents plan to live in reasonable proximity to one another and the children’s schools and there are no practical barriers to the children moving between the two homes.
Dr M identified deficits in the father’s parenting capacity. He suggested that the husband has “vulnerabilities in the areas of reflective functioning and empathic attunement”, specifically in relation to Y’s attitudinal and behavioural difficulties.
Dr M stated:
I am concerned that the father’s adaptation to the betrayal and loss of the parental separation has involved some self-protective distortions of perception of the mother and of the children’s experience of the mother, the latter being a projection onto the children (in particular [Y]) of the father’s own experience.
The flow on effect for the children ... is that whereas they feel known by the mother s separate individuals from herself, with experiences, opinions and wishes separate from those of the mother, in the father’s case there is less differentiation and more merging of perspective and feeling with an associated felt need to in part to own and take responsibility for paternal needs.
Dr M observed that both X and Y were,
...vigilantly mindful of not wanting to hurt the father’s feelings with their decisions or expressed opinions whereas with the mother they appeared more able to have differentiated self and opinion separate from the other person.
In considering all of these matters, I give greatest weight to the children’s wishes. X is 16 and her conversations with Dr M appear to have been mature and thoughtful. X’s wishes must be given proper weight.
The children will spend five nights each fortnight with the husband and otherwise live with the wife.
In relation to the ancillary matters relating to the children’s day to day care, no attempt was made to compare the orders sought by each party and see if there was any common ground. Lest it be thought this is a trivial issue, the husband sought 31 separate orders and the wife some 33 separate orders. In the course of submissions, the husband’s applications were reduced to 23 separate orders but it was nevertheless left to me to work out where they disagreed.
In relation to these issues, such as school holidays, birthdays, special days, overseas travel and the like, I accept the evidence of Dr M that ongoing disputes will be reduced if the orders that are to be made are as proscriptive as is possible.
There is no evidence to which I was directed that can inform my determination of these issues and I will proceed to determine them as best I can.

School holidays

The parties agree that school holidays should be equally shared but disagree about how that should occur. The husband wants the first half of all holidays, the wife wants to alternate between first and second halves. I was not directed to any evidence in relation to the issue.
The orders will provide for the children to spend the first half of the short holidays with the husband, so that his block periods with the children once the next term commences, will start on the first Wednesday of the school term.
In relation to the Christmas holidays, the parents will alternate between the first and second halves so that the children can experience the events leading up to Christmas with each parent in turn and there is some chance that they will also be able to share Christmas with Mr L’s children, at least in alternate years.
The holiday period will be calculated to commence at 9 am on the day after the children’s last day of actual school attendance and end at 6pm on the day before the children’s first day of attendance in the following term. If there are an odd number of days in the holidays, the extra day will be spent with the husband in the short holidays and with the wife in the Christmas/end of year holiday.
When the children spend the first half of the holidays with one parent, they shall spend time with the other parent from 3pm on Christmas Day until 9am on 27 December.

Birthdays

If the birthday of either parent or a child falls in a school holiday period the children will spend time with that parent, or the non-resident parent, from noon until 9pm on the day of the birthday.
If the children’s birthdays fall on a school day, they will spend time with the non-resident parent from after school until 8pm. If the children’s birthdays fall on a weekend in term time, they will remain with the resident parent on the day of the birthday and spend the other weekend day with the other parent from 9am until 2pm.

Mothers’ Day and Fathers’ Day

The children will spend Mothers’ Day with the wife and Fathers’ Day with the husband from 6pm on Saturday until the commencement of school on Monday.

Easter

There will be no specific orders dealing with Easter. The parties each sought different orders and no submissions were made as to the appropriateness of either proposal. Nor was I directed to any relevant evidence.

Changeovers

Changeovers that do not occur at school will take place at the wife’s residence.

Travel

Each parent will be entitled to travel with the children in any period of time that the children spend with that parent pursuant to these orders provided that the travelling parent gives not less than two calendar months’ notice of the intention to travel and the proposed destination and, not less than seven days before departure, provides to the other parent copies of airline bookings, confirmation of travel insurance, the place where the children will be staying from time to time and telephone contact details.

Extra-curricular activities

Dr M suggested that orders be made in relation to enrolling the children in extra-curricular activities that occur when the children are with the other parent. The orders will require the permission of both parents were the activity takes place when the children are with the other parent.

PARENTAL RESPONSIBILITY

The husband asks for orders providing for equal shared parental responsibility. The wife seeks sole responsibility, after consultation, for decisions relating to medical and allied health matters, in the event that the parents do not agree.
There is a history of the parent’s failing to reach agreement in relation to proposed treatment, particularly for Y, and the wife initiating such treatment despite the husband’s opposition.
This was one of the matters of which the husband complained to Dr M, he believing that the wife initiated unnecessary treatments. Dr M reviewed the medical histories and concluded that the treatments initiated by the wife were reasonable in the circumstances.
Dr M recommended that each parent could initiate medical treatment for the children provided that the other parent is informed and given the opportunity to speak to the treating professional. In relation to invasive treatment, Dr M recommended that both parents must consent.
I propose to make orders in accordance with Dr M’s recommendations.
Therefore the orders will provide for the parties to have equal shared parental responsibility.
It is not necessary to make orders relating to information about schooling and attendance at school events. Each parent is entitled to information and to attend events to which parents are invited by the schools.
There is no longer any disagreement in relation to schooling. It is agreed that Z will attend the same school as X from 2020.
I have already considered whether it is in the best interests of the children to spend equal time with each parent in the context of their respective parenting proposals and I have rejected that proposition.

PROPERTY

I propose, firstly, to determine the factual issues which were identified.

The husband’s initial contribution.

The husband tendered a number of documents which, he asserted, demonstrated that he had savings of $100,000 when the parties were married and commenced co-habitation on 4 May 1996. He also asserted that he had a superannuation interest valued at $20,000 and a motor vehicle.
In cross-examination, the husband’s position changed slightly in that he asserted that he had the funds at the date of settlement of the conveyance of the Suburb G property in January 1996.
The wife’s evidence was that the husband contributed $30,000 to the purchase of Suburb G.
The documents tendered in the husband’s case referred to various transactions over a period commencing in 1990 and ending in 2001.
The documents became Exhibit 1 in the proceedings. The relevance of many of the documents, some 104 pages, was not obvious.
Pages 60 to 65 and 67 to 79 relate to an account with N Bank for a deposit account ending 4810. Those pages demonstrate that between 1991 and June 1995 the husband had a deposit of $10,000, initially with N Bank and then with O Bank. For a time the deposit was greater but the husband conceded in cross- examination that he had used about $20,000 to buy a motor vehicle.
Pages 81 to 93 refer to a deposit of $10,023.29 with O Bank ending #02 between February 1995 and February 1996.
Page 94 shows a deposit into an account ending #81 of $2,098.71 on 9 May 1994.
Page 95 shows a withdrawal of $22,098.71 from a passbook account, ending #92 on 9 May 1994.
Pages 96 and 97 show an investment of $10,000 with ANZ between 1 November 1995 and 7 December 1995.
Pages 98 to 106 show a deposit with ANZ, account ending #76, of $20,000 in May 1994 maturing on 9 May 1996.
Pages 107 to 121 deal with a deposit initially of $30,000 in August 1995 in an account ending #17. The balance was $30,536.73 as at 10 January 1996. On 10 January 1996, $6,069 was withdrawn leaving $24,467.73. In January 1996, $10,000 was withdrawn and $14,589.73 was re-invested in February 1996. That deposit matured in March 1996.
Pages 122 to 139 deal with an account ending #09 holding a deposit of $10,000 between August 1993 and February 1996.
Pages 140 to 145 deal with an account ending #93 holding $10,000 between September 1990 and October 1992.
Pages 146 to 151 are statements of an ANZ savings account ending #81 commencing in 1995 and showing a balance at 21 February 1996 of $5,609.21.
Pages 152 to 155 appear to relate to the deposit of $10,023.29 referred to in Paragraph 103.
Page 156 is a duplicate of Page 95.
Page 157 is a duplicate of page 94.
Pages 159 to 160 refer to a P Insurance statement of benefits on a policy ending in #1A with a death benefit as at 15 March 1995 of $10,141. I am unable to speculate on the surrender value at that date or if the policy could be surrendered.
Pages 161 to 163 relate to a Q Super interest of $2,994.81 in 2001 which was rolled over to P Insurance.
Page 164 refers to an R Super account at 30 June 1997 with a retirement balance of $9,373.10.
I accept that the husband had the deposit of $30,000 and, after the settlement of the conveyance in January 1996, retained, in addition, the amounts detailed at paragraphs 104 ($10,023); 109 ($14,590); 107 ($10,000) and 112 ($5,609). Those amounts total $40,222.
Thus the husband’s initial cash contribution was about $70,000.
The husband’s assertion that he had a superannuation interest of about $20,000 was not challenged.
The husband’s initial contribution was therefore cash of about $70,000, superannuation of about $20,000 and a motor vehicle.

How the purchase of Suburb G was financed.

If the husband contributed $30,000 to the purchase, which appears to be conceded by both parties, then the mortgage must have been about $170,000.
The renovations to Suburb G were funded using the balance of the husband’s savings, $9,000 given to the wife by her maternal grandmother and the balance from their joint incomes. It is agreed that the renovations cost about $200,000.

Whether the loan of $1,200,000 advanced by the wife’s parents is a loan to both parties and whether that loan will have to be repaid.

The wife’s parents lent the parties $1,200,000 secured by a Deed of Loan dated 26 November 2006. The Deed provides that the loan is for a term of 30 years but that earlier repayment may be required on three months’ notice. The loan was expressed to be interest free. The loan was expressed to be a charge over Suburb C and the borrowers agreed to execute a mortgage over Suburb C if requested.
The borrowers agreed that if they sold Suburb C and purchased another home, the loan would be charged over the new home.
The borrowers were the husband and the wife.
Senior counsel for the husband submitted that the loan was made to both the husband and the wife and that as a consequence, in so far as there was a benefit obtained from the wife’s parents forbearing to charge interest, that benefit was intended to benefit both of the parties equally.
In In the Marriage of Kessey (1994) 18 Fam LR 149, the Full Court of the Family Court of Australia held that it was open to a trial judge, in the absence of evidence of any other reason for the contribution of funds by the wife’s parent, to conclude that the contribution was made on behalf of the wife.
Both the wife’s parents swore affidavits. Neither deposed that it was his or her intention only to benefit their daughter. However, there was no other connection between the advance and the husband. The lenders were not professional lenders. The loan was not in commercial terms. Common sense defies the proposition that the money would have been lent to the husband had he been a stranger at arms’ length from the lenders. The only nexus between the lenders and the husband was that he was married to the lenders’ daughter.
I conclude that, absent evidence to the contrary, the intention of the parents was to benefit their daughter.
It follows that the benefit bestowed by the parents’ forbearing to charge interest, was also a benefit that they intended to bestow on their daughter and that contribution will be taken into account as a contribution on her behalf.
Unchallenged evidence in the wife’s case established that the benefit of the interest free loan between the date of the advance and September 2017 when the calculation was prepared, was $882,250. A further 16 months have elapsed and the amount would now be greater.
However, that contribution needs to be viewed in the context in which it was enjoyed. The benefit has been made available over a period of more than 12 years. It needs to be given significant weight, commensurate with its value to the parties from year to year, but it cannot simply be included as a mathematical calculation and given value at that sum. That is not how the benefit was received.
Senior counsel for the husband submitted that the loan of $1,200,000 will never have to be repaid. In that regard, emphasis was placed on the fact that, although the lenders had made demand for payment in 2013, they had never proceeded to enforce the demand.
It is significant that, until very shortly before the hearing, the position of both of the parties was that Suburb C would be sold and the loan repaid from the proceeds. The wife’s amended application was filed on 10 January 2019 and in that application, for the first time, the wife sought to retain Suburb C and indemnify the husband in relation to the loan.

The affidavit of the wife’s mother was sworn in October 2017 at a time when both parties were proposing to sell Suburb C and repay the loan. The wife’s mother in her affidavit deposed that the letter of demand for repayment of the loan was sent after the parties separated. In response to the demand, the wife proposed that Suburb C be sold but the husband opposed any sale. In a letter from the husband’s solicitors to the lenders dated 29 November 2013, they stated:
I advise that my client is not agreeable to the sale of the property and indeed is hopeful of refinancing same as part of a property settlement with his former wife. The liability to you will need to be included as part of that refinance.
The wife’s mother deposed that the husband refused to execute a mortgage submitted to him by the solicitors for the lenders.
She deposed:
In the light of the commencement of these proceedings and [the husband’s] refusal to cooperate in securing payment, my husband and I chose not to pursue the repayment of the loan any further at that time but we do require the loan to be repaid.
Senior counsel for the husband submitted that, on the balance of probabilities, the wife will not be required to repay the loan prior to the date provided in the Deed – November 2036.
Although I accept the evidence of the wife’s mother that the loan must be repaid, I also accept that the Deed of Loan specifies a repayment date of 2036. If, as I have found, the purpose of the loan was to benefit the lenders’ daughter, then logic suggests that the lenders still intend that benefit to continue.
It is likely that the wife will retain the benefit of the interest free loan when she retains the Suburb C property and that benefit is a financial resource which will be considered in the context of section 75(2) of the Act.

Whether the wife, and indirectly the husband, contributed to the conservation and improvement of the assets of the Barodin Estate.

The husband’s evidence in relation to this issue is found at paragraphs 169 to 171 of his affidavit. In so far as the material was admissible, it was general and of little assistance. Much of the husband’s evidence was disputed by the wife.
The husband sought to cure the deficiencies in his case by filing a further affidavit on 15 January 2019 containing some seven pages of detailed information making reference to a number of persons in relation to whom no previous evidence had been given. The husband neither sought, nor was granted leave to rely on a further affidavit, both parties having filed their trial affidavits in 2017. There was no material in the later affidavit which had not been available to the husband when he swore his trial affidavit.
Senior counsel for the wife opposed the admission of the later material on the basis that the three working days available to consider the matters contained in the affidavit was not sufficient and the wife could not meet the material. That submission was accepted and the husband was not permitted to rely on such of the affidavit as dealt with this issue.
The wife’s father, Mr Barodin, was the owner of a property at S Street, Suburb T (“S Street”) which he had acquired in 1989. That property was the subject of proceedings in the Land & Environment Court. The wife did work in her professional capacity in relation to those proceedings. The wife’s father gave the wife $50,000 in recognition of her assistance.
The Barodin Estate owned a separate property at U Street, Suburb V (“U Street”). That property was next door to the property in S Street so there was some commonality in the issues involved. That property, at a later date, was also the subject of proceedings in the Land & Environment Court. In relation to those proceedings, large law firms were instructed, counsel, including senior counsel were briefed and independent experts were retained.
The wife also did work in relation to those proceedings. The wife asserts that, in so far as she did work in relation to U Street, that work was done by her in her capacity as an employee and was billed by her employers. The husband disputes that assertion. He asserts that the wife did work privately in addition to the work done as an employee. He bears the onus of proof. His assertions were not made out.
In cross-examination, the wife agreed that she had also done work in relation to U Street in her private capacity for which no payment was sought. She did not agree with the proposition that she spent “significant” hours working on the matter at home (she was working part-time). She agreed that she had read emails that were sent to her for her information, and that, on occasion, she had replied to emails. She had perused reports prepared by experts but denied that she had discussed those reports with the husband. On occasions, she engaged in discussion with her father who was an executor of the Estate. The wife denied that she had discussed the issues relating to U Street with the husband, regularly or at all.
The wife denied that her work in relation to U Street was substantial.
In so far as it was put to the wife that the husband’s engineering expertise was called on in relation to the litigation, the wife said that the Estate engaged experts to provide that assistance.
Subsequently there was a similar dispute in relation to another property owned by the Barodin Estate at W Street, Suburb AA (“Suburb AA”). Again the wife asserts that such work as she performed in relation to Suburb AA was in her capacity as an employee and charged out by her employer. The husband disputes that assertion and says that she did work privately in addition to her work as an employee. The wife in cross-examination said that such work as she did in relation to the Suburb AA property was charged out by her employer and the bill totalled about $9,000.
The wife denied that the husband often cared for the children while she attended meetings in relation to U Street or Suburb AA. She said that the meetings took place in business hours.
I am left with evidence that the wife did some work in relation to U Street but no more than she conceded.
I am unable to find that the wife did work in relation to Suburb AA other than that for which she was paid in the course of her employment.
The wife’s contribution to the conservation and improvement of the assets of the estate is not such as to warrant adjustment. Accordingly, the husband’s assertion that he made an indirect contribution to the conservation and improvement of the assets of the estate is rejected.

Joint funds used by each party after separation.

When the parties separated in September 2013 there was $207,000 in a joint account. Of that sum, $100,000 had been a gift from the wife’s parents in 2009 and $107,000 was joint savings from income. In addition there was $23,000 in another joint account into which both parties deposited their income. The husband stopped depositing his income into the joint accounts at separation.
The husband continued to draw on the joint accounts after he stopped contributing to them. The wife’s unchallenged evidence was that the husband withdrew a total of $17,183 from one account and a further $10,000 from the other.
The wife used the balance of the funds, some $103,000 to pay expenses of the household including the children and to pay the outgoings on the home she and the children occupied. Although the husband remained living in the home until June 2014, he made no direct contribution to the outgoings on the home or to the expenses of the children during that period.
After the husband moved from the home, he did not pay anything to the wife by way of child support until December 2014 when an assessment was issued.
On behalf of the husband it was submitted that there should be a contribution adjustment to take into account the wife’s use of funds after separation.
I do not accept that submission.
From separation in September 2013, the wife was supporting the children without assistance from the husband and paying the outgoings on the property in which, until June 2014, they and the children lived. Until December 2014 she continued to be the sole support of the children. It was not suggested that her expenditure was unnecessary or extravagant and the reasonableness of her expenses was not challenged.

SECTION 79(2)

Both parties ask the Court to make an order adjusting their assets between them in circumstances where their marriage has ended and they can no longer jointly enjoy the benefit of their assets.

BALANCE SHEET

The parties tendered a joint balance sheet, which, after some agreed adjustments is reproduced below. I note that there was no agreement and no evidence about the value of the household contents removed from Suburb C and in the husband’s possession and I have adopted the husband’s admission of $900. This pool includes the parties’ superannuation interests in relation to which no splitting order has been sought.
Both parties adopted a “two pool” approach to the assets. The first pool comprises Suburb C and their respective chattels including superannuation (“the Suburb C pool”). The second pool is the wife’s inheritance from the Barodin estate (“the Barodin Estate”).

THE SUBURB C POOL

Ownership		Description	Value
1.	J	B Street, Suburb C	$ 3,100,000
2.	H	Scooter	$ 1,300
3.	J	Household contents in Suburb C property	$ 17,500
4.	J	Household contents removed by Husband in June 2014 from Suburb C	$ 900
5.	H	Shares (315) @ $7.06	$ 2,268
6.	H	ANZ Online Saver Account	$ 13,360
7.	H	ANZ Access	$ 3,042
8.	H	P Insurance Policy #6A Surrender Value	$ 5,977
9.	W	ANZ Account # 23	$ 4,915
10.	W	ANZ Cheque Account # 89	$ 4,234
11.	W	ANZ Account # 15	$ 17,058
12.	W	ANZ Account # 69	$ 8,377
13.	W	Jewellery	$ 2,500
14.	W	Artwork	$ 8,000

Total

$ 3,189,431

15.

Loan from Mr & Ms A Barodin

$ 1,200,000

Net

$ 1,989,431

Member		Name of Fund	Type of Interest	Value
16.	W	BB Super #42	Accumulation	$ 67,353
17.	H	ANZ Smart Choice Super	Accumulation	$ 301,405

Total

$ 368,758

In addition to the liability included in the balance sheet, each party has personal debts which are not included but which both parties submitted should be taken into account.
The husband has borrowed $164,503 and used that money to pay legal fees. I propose to ignore that liability. The wife has used $294,000 of funds received by her after separation from the Barodin Estate to pay her legal fees. I propose to add that sum back to the value of the wife’s interest in the Barodin Estate. This will place both parties in the position that they will notionally pay their legal fees from their own funds received as a result of the property distribution.
The husband, in addition, has personal and credit card debts of $30,380. All of those debts were incurred after separation.
The wife has personal and credit card debts of $29,427.
The debts are approximately equal. I do not propose to consider them further.
Thus for the purpose of this determination, the net assets in the Suburb C pool (including superannuation) are $2,358,189.
The wife will retain the house and her personal assets including the contents of Suburb C. The husband will retain assets to the value of $26,847 and his superannuation of $301,405 to which he will not have access for some five years at minimum.

CONTRIBUTIONS TO THE SUBURB C POOL

The contributions made by each of the parties of their physical effort and their respective incomes are equal. There was no suggestion by either of them that the other did not wholeheartedly apply him or herself to the enterprise of their marriage and their family.
There were a number of contributions from third parties that must be given effect and the husband made the greater initial contribution.
At the commencement of the marriage the husband had about $20,000 in superannuation and $70,000 in savings that he contributed to the purchase and renovation of Suburb G.
The husband’s superannuation interest was minimal and his present superannuation entitlement has accrued since the marriage.
The wife contributed $9,000 which was a gift from her grandmother to the renovations.
In 2002 the husband inherited $15,000 from his late father which was paid into their offset mortgage account.
In 2006 the wife’s parents lent the parties an interest free loan of $1,200,000. The fact that they were relieved of the burden of interest is a contribution on behalf of the wife.
In 2009 the wife received a gift of $100,000 from her parents.
In 2010 the husband received an inheritance of $84,200 which was used to fund part of the renovations of Suburb C.
The wife’s contributions outweigh those of the husband. The husband’s cash contributions from savings and inheritance total $169, 200. The wife’s cash contributions from gifts total $109,000. The most significant external contribution is that of the wife’s parents in foregoing interest on the loan of $1,200,000.
Contributions are assessed at 60 per cent to the wife and 40 per cent to the husband.

BARODIN ESTATE

18.   Interest in the estate of the late Ms K Barodin (to be realised) $     2,720,455

19.   Balance held in ANZ Account #07 – paid estate fund $        550,927

20.   Wife’s paid costs added back $         294,000

TOTAL $      3,565,382

SECTION 75(2)

The most significant matter to be taken into account is that the wife will receive her interest in the Barodin Estate which is some $3.56 million.
In addition, she will continue to have the benefit of the interest free loan of $1,200,000. In 2017 the interest which would have to be paid on that sum was more than $60,000 per annum so that benefit is significant.
She will continue to have the majority of the care of the children and will not be expected to work full time at present. However, her evidence in cross-examination is that she will return to full time work when the children are older. Z will be in High School in 2021 and she could be expected to return to full-time work sometime after that.
In the mean-time, the wife’s partner earns an income and contributes to a share of household expenses.
Because the wife will retain Suburb C, she will not have the expenses of acquiring a new property such as stamp duty.
Because the superannuation has been included in the Suburb C pool at current value, and the husband will not have access to his entitlement immediately, there must be some adjustment in his favour.
I do not accept the submission of senior counsel for the wife that an adjustment in favour of the husband “should not be significant’.
I propose to make an adjustment in favour of the husband in the sum of $750,000 which is the equivalent of 31.8 per cent of the Suburb C pool or 12.7 per cent of the total assets.

CONCLUSION

This will result in the husband receiving a total of $1,693,276. Taking into account his retained assets, including superannuation, of $328,252, he would be paid a further $1,365, 024
By way of checking, if a single pool approach had been adopted, the pool would be assessed as:
Suburb C pool  $2,358,189
Barodin Estate  $3,565,382
Total  $5,923,571
If the husband receives or retains $1,693,276 that is the equivalent of 28.6 per cent of the total asset pool which accords with the overall findings as to their disparate contributions.

CHILD SUPPORT

There were two aspects of the wife’s application for a departure from the current child support assessment.
The first was that she sought by way of non-periodic payment, an order that the husband pay half of the children’s expenses specified as:
·    Private school fees including tuition fees, technology requirements, building fund contributions, school uniforms, books and stationery, school excursions, school camps, special lessons and activities.
·    Extra-curricular and/or after school and weekend activities undertaken by the children including but not limited to sports registrations, uniforms and equipment, music tuition, musical instruments and tuition fees. (I assume the latter refers to academic not musical tuition.)
·    Private health fund contributions at the highest rate.
·    Costs of health care including counselling, not covered by medical benefit rebates.
·    Costs of prescribed medications.
Secondly she sought a periodic payment of $13,000 per child per annum or $250 per week per child, a total of $750 per week.
The husband currently is assessed to pay $450 per week in total, including his contribution to school fees.
In the course of the hearing, an agreement was reached in relation to school fees, where the husband agreed to pay for half of all school fees.

THE LAW

The relevant provisions are found at sections 116 and 117 of the Child Support (Assessment) Act 1989 (Cth) (“the Child Support (Assessment) Act”) which are set out below.
s116 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).
S117 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
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.

What, then, are the “special circumstances of the case” on which the applicant relies to enliven jurisdiction pursuant to s116 of the Child Support (Assessment) Act?
Senior counsel for the wife relied upon the history of applications made to the Child Support Agency to vary current assessments.
The wife first applied for an assessment in June 2014 and the assessment issued in July 2014. In September 2014 the husband lodged an estimate of income stating that his income had reduced. Accordingly the assessment was reduced.
In October 2014 the husband lodged an objection to the percentage of care relied upon in the assessment and an application for change of assessment seeking to reduce the child support to nil. That application was defended by the wife. Ultimately the percentage of care calculation was changed, albeit by only one per cent in the husband’s favour. The change of assessment application was not successful. In fact the assessment was increased.
In April 2015, the husband lodged a further application to change the assessment. That Application was dismissed.
In March 2015, the time the children spent with the husband was increased by one night each fortnight and the husband sought to change the assessment. He was successful and the amount was reduced.
A further application was lodged by the husband in June 2015 seeking to have the reduction backdated to March 2015 when the time was increased. That application was successful.
In August 2016, the wife sought to change the assessment on the basis of Y’s “special needs and expenses”. That application was successful and the husband was assessed to pay a further $810 per annum.
In May 2018, the wife lodged an application to change the assessment based on the special needs of the children, in this instance orthodontic expenses, speech therapy and costs of medication. She also sought a contribution by the husband of 50 per cent of private school fees for X and Y (Z was attending a public school). The husband objected. In August 2018 the Child Support Registrar determined those applications on 19 October 2018. The wife was unsuccessful and the assessment was, in fact, reduced on other grounds.

HAVE THE REQUIREMENTS OF S116 AND S117 BEEN MADE OUT?

Section 116 of the Child Support (Assessment) Act requires that the Court consider whether an order should be made under this Division in relation to the child in the “special circumstances” of the case. It is not sufficient only that the parties are engaged in other proceedings relating to financial matters and that one of them wants a child support departure order.
I was not referred to any authority which deals with the meaning of “special circumstances” in the context of s116 of the Child Support (Assessment) Act.
What constitutes “special circumstances” for the purpose of s117 of the Child Support (Assessment) Act has been given some consideration by the Full Court of the Family Court of Australia.
In Gyselman & Gyselman (1991) 103 FLR 156, the Full Court of the Family Court of Australia noted that:
Section 117(2) sets out the grounds for departure from administrative assessment. Each of those grounds is prefaced by the words, “in the special circumstances of the case“. While it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasize that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the court will not interfere with the administrative formula result in the ordinary run of cases. In Savery’s case (p 77,897), Kay J, adopting the view in Philippe and Philippe (1978) FLC 90-433 at p 77,202 in a different context, said that “special circumstances“ were “facts peculiar to the particular case which set it apart from other cases“. The approach to the interpretation and application of the particular grounds in s 117(2) must be guided by that qualification.
The “special circumstances” upon which the wife appears to rely are the applications by each party to vary the child support assessment when a change in circumstances has been asserted.
The mechanism for making such an application is provided in the legislation. It is clearly the intention of the legislation that, if a parent believes that changed circumstances justify an adjustment to an assessment, that parent may make an application.
I do not consider the fact that both parents, with varying degrees of success, have utilised the mechanism provided by the child support scheme to seek variations, from time to time, is a special circumstance. It is a circumstance envisaged by the scheme.
If I am in error in relation to that determination, I propose to assess whether one or more of the grounds for departure are made out.
No submissions were directed to this aspect of the matter.
The wife, in her affidavit, relies on the provisions of s117, ss2(b)(ia) and (ii) and 2(c) of the Child Support (Assessment) Act.
In relation to “special needs” I assume, but cannot be certain, that the wife relies on the costs of speech and other therapy for Y. The wife’s evidence is that the costs of orthodontic treatment were $8,352 and the costs of speech therapy are $98 per session. The wife deposed that she paid $1,666 for speech therapy in 2018. She does not depose that either is an ongoing expense.
The wife deposed that she paid $930 for medication for Y in 2018. She does not depose that this expense is ongoing. She deposed that X’s asthma medication costs $375 per annum.
I am otherwise unable to determine, from part N of the wife’s Financial Statement sworn 10 January 2019, what expenses are said to be relevant or how the claims in that statement accord with the wife’s evidence in her updating affidavit.
The issue of education expenses has been resolved by the agreement that sees the husband paying half of the school expenses.
In relation to s117, ss2(c) of the Child Support (Assessment) Act, the wife deposed “...the child support assessment is unfair because of the income, earning capacity, property or financial resources of each of [the father] and myself.”
I accept that the wife’s income of about $55,000 is less than the husband’s income of about $183,000 but, as I have found, the wife’s partner earns a substantial income.
The more relevant factor is the asset position of each of the parents.
As a result of the orders I will make, the husband will have immediately available assets of $1,365, 024, from which he will be required to pay his legal fees. He will be required to use those funds to rehouse himself.
The wife will have the Suburb C house, valued at $3,100,000, which she occupies without the requirement to pay mortgage payments and she will have cash assets of some $1,900,000 after paying the required sum to the husband. Her financial position is superior to that of the husband.
The premise of s117, ss2(c) of the Child Support (Assessment) Act is not made out.
Further, on that basis, it would not be just and equitable, or otherwise proper to make the order that the wife seeks.
Except in relation to the orders that I am asked to make by consent in relation to private school fees, the application for a child support departure order will be dismissed.

I certify that the preceding two hundred and thirty-one (231) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 8 February 2019.

Associate:

Date: 8 February 2019

18.	Interest in the estate of the late Ms K Barodin (to be realised)	$ 2,720,455
19.	Balance held in ANZ Account #07 – paid estate fund	$ 550,927
20.	Wife’s paid costs added back	$ 294,000
TOTAL	$ 3,565,382