SEIDLER & CERNY

[2019] FamCA 29

FAMILY COURT OF AUSTRALIA

SEIDLER & CERNY [2019] FamCA 29

FAMILY LAW – CHILDREN – Where there is one child aged six years – Where the child is currently spending nine nights per fortnight with his mother and five nights per fortnight with his father – Where the father seeks a progression to an equal time arrangement – Where the mother seeks that the current orders continue save for a slight change to reduce the number of changeovers – Where it is agreed that the parties will have equal shared parental responsibility – Where the father’s case was to attack the mother’s character and the maternal family – Where there is a risk of the child being exposed to the father’s attitude regarding the mother and maternal family – Where the child is doing well under the current arrangement – Where it is ordered that the current arrangements continue.

FAMILY LAW – PROPERTY – Where the parties cohabited for approximately six years and there is one child of the relationship – Where both parents are highly qualified professionals – Where the father’s initial contribution was greater than that of the mother – Where the mother has had the primary care of the child since separation – Where contributions are assessed to be equal – Where the father has a greater earning capacity than the mother – Where the mother will continue to have greater care of the child – Where there is an adjustment of 10 per cent in favour of the mother – Where the property division is therefore 60 per cent in favour of the mother and 40 per cent in favour of the father.

FAMILY LAW – CHILD SUPPORT – Where the mother seeks a child support departure order – Where the father opposes such an order – Consideration of s 117 of the Child Support (Assessment) Act 1989 (Cth) – Where the parties each have a high income – Where it is just and equitable and otherwise proper to make the orders sought by the mother.

Child Support (Assessment) Act 1989 (Cth) ss 116, 117, 123, 124, 125
Evidence Act 1995 (Cth) s 55
Family Law Act 1975 (Cth) ss 60CC, 65DAA, 75, 79, 117

Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Grier & Malphas [2016] FamCAFC 84
In the Marriage of Coghlan (2005) FLC 93-220; [2005] FamCA 429
In the marriage of Ferraro (1993) FLC 92-335; [1992] FamCA 64
In the Marriage of Lenehan (1987) FLC 91-814; [1987] FamCA 8
In the Marriage of Norbis (1986) 161 CLR 513; [1986] HCA 17

In the Marriage of Shewring (1987) 12 Fam LR 139; [1987] FamCA 51

In the Marriage of Zyk (1995) FLC 92-644; [1995] FamCA 135

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

APPLICANT:	Ms Seidler
RESPONDENT:	Mr Cerny

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 6696 of 2014

DATE DELIVERED: 30 January 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 10 - 13 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: Karras Partners Lawyers

RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Eldershaw

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. In addition to the parenting arrangements contained in the Orders made on 13 December 2018, during school term and unless the parties otherwise agree, the child D (“the child”) born … 2012 shall live with the father:

   (a)from the conclusion of school each Wednesday until the commencement of school on the following day; and

   (b)from the conclusion of school on the second Friday of each school term and on each alternate Friday thereafter, until the commencement of school on the following Monday morning.

   And at all other times during school term, the child shall live with the mother.

2. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth) (“the Act”), the particulars of the obligations that Order creates and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

3. Within three months of the date of these Orders (but not before 1 March 2019) the mother is to take all necessary steps and execute all necessary documents to cause the property situated at and known as F Street, Suburb G being the whole of the property contained in Certificate of Title Folio Identifier … to be listed for sale by public auction at the earliest possible date with the reserve price to be $2,800,000 or as otherwise agreed upon between the parties in writing, and that the proceeds of the said sale be dispersed as follows:

   (a)in payment of agent’s commission and any fees on sale;

   (b)in payment of legal costs and disbursements of the sale;

   (c)in discharge of the mortgage to Westpac Banking Corporation being registered dealing no. … and Westpac Banking Corporation loan #18;

   (d)in payment of the Capital Gains Tax payable by the mother in relation to the sale of the property and to give effect to this Order the sum of $100,000 (or as otherwise agreed by the parties in writing) is to be held in the trust account of Karras Partners Lawyers or a joint controlled monies account held on behalf of the parties by the conveyancing lawyer as the parties may agree, with the Capital Gains Tax liability to be paid from that account and the balance thereafter (if any) to be divided between the parties in the proportions 60 per cent to the mother and 40 per cent to the father;

   (e)in discharge of Westpac Bank loan #69 in the name of Mr and Ms H;

   (f)in payment to Mr J Cerny of $75,000;

   (g)in payment of $25,000 to the K Bank Loan #26 in the name of the mother;

   (h)in payment of $67,000 to the K Bank Loan #18 in the name of the father;

   (i)in payment of $99,970 to the L Bank Unsecured Loan #6366 in the name of the father;

   (j)in payment of 60 per cent of the remaining proceeds to the mother; and

   (k)in payment of the balance of the net proceeds to the father.

4. The father shall forthwith do all things and sign all documents necessary to transfer his interest in the joint M Bank account #16 to the mother and the mother is to thereafter indemnify the father against all or any liability in relation to the said joint bank account.

5. Other than as provided for in these Orders, the father and mother be declared to have the sole right, title and interest in:

   (a)any chattels, goods, furnishings, bank accounts and other property which are at the date hereof in their possession respectively; and

   (b)any money, shares, debentures or superannuation entitlements which stand in their sole name respectively at the date hereof.

6. By way of Child Support Departure Order the father shall pay child support to the mother in respect of the child, the child, as a periodic sum of $300 per week with the first payment to be made within seven days of these Orders and thereafter such funds to be deposited weekly into a bank account nominated by the mother in writing.

7. Pursuant to s 124 of the Child Support (Assessment) Act1989 (Cth), the father shall pay by way of non periodic payments:

   (a)half of all education costs including but not limited to school fees of a school the parties agree in writing the child is to attend, tuition fees, all school uniforms (including school shoes and sports shoes), textbooks, extra-curricular school activities, tutoring, computer requisites and excursion fees incurred in relation to the education of the child;

   (b)all of the private health insurance premiums referable to the child from time to time;

   (c)half of all extra-curricular activity costs for the child, provided the activity has been agreed to by the parties in writing before the expense is incurred; and

   (d)half of all medical, hospital, counselling, orthodontic, pharmaceutical, dental and other health professional costs incurred in relation to the child not otherwise covered by the husband’s private health insurance for the child.

8. The payments made by the father pursuant to Order 7 shall be in addition to and shall not reduce the periodic payments made pursuant to Order 6 or any subsequent order or assessment for periodic payments.

9. The father and mother shall do all acts and things and give consents and execute all documents and writings necessary to give effect to the Orders made herein.

10. In the event that either party refuses or neglects to execute any deed or instrument in order to give validity and operation to these Orders, then a Registrar of this Court is hereby empowered pursuant to s 106A of the Act to execute such deed or instrument in the name of the person who has so refused or neglected to comply.

11. Leave is granted to the parties to apply within 28 days, on giving at least seven days’ notice to the Court and each other, in relation to the wording of these orders.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Seidler & Cerny 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:  SYC6696 of 2014

Ms Seidler

Applicant

And

Mr Cerny

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are proceedings for parenting, property settlement and child support between Ms Seidler (“the mother”) and Mr Cerny (“the father”). They were married for less than five years and have one child, D (“the child”), who is six years of age.

2. The child currently lives with his mother and spends five nights per fortnight with his father. At the commencement of the trial the mother and father agreed that they should have equal shared parental responsibility for the child and that they should share equally the child’s time during school holidays. By the commencement of oral submissions on the last day of the trial they also agreed about a range of other parenting orders.

3. The only parenting issue ultimately disputed between the parents was the living arrangements for the child during school terms. Albeit with some changes, the mother seeks a continuation of the current division of time whereas the father seeks that the child live with him and the mother in a staged progression leading, by term 3 of 2019, to equal time. I have found that it is in the child’s best interests to leave the current arrangement in place.

4. In the property proceedings the main asset is the former matrimonial home located at F Street, Suburb G (“the Suburb G property”). The mother and father are in dispute as to the quantum of contributions and how the property pool should be divided between them. I have found that a just and equitable distribution of property would be reflected by a distribution in the order of 60 per cent to the mother and 40 per cent to the father.

5. The mother also seeks a child support departure order to the effect that. In addition to certain direct payments that have been made by agreement the father’s liability would increase to $300 per week. The father opposed the departure. I have ordered that the father pay the claimed amount and that, in addition to those periodic payments, he pay or contribute to certain expenses.

6. What follows are the reasons for those decisions.

Applications

1. In relation to the issues that remained outstanding at the conclusion of the trial, the mother sought orders in terms of a Minute of Proposed Orders as follows[1]:

   [1] Exhibit 12.

   PARENTING:

   …

   ORDERS:-

   1.That [the child] live with the parties as follows:-

   Term Time

   1.1During school term [the child] shall spend time with the father during term time in each two week period as follows:-

   1.1.1In week one from the conclusion of school on Thursday until the commencement of school Friday morning; and

   1.1.2In week two from the conclusion of school on Thursday until the commencement of school the following Monday morning;

   and thereafter alternating between week one and week two.

   Holidays

   1.2Notation: It is noted that Order 18.4 of the Consent Orders made 12 June 2018 already provides for the time [the child] will spend with each parent during the 2018 Christmas school holiday period.

   1.3The first week of the new term will be week one of the term time arrangements referred to in Order 1.1.

   2.         ……

   PROPERTY:

   3.That within three months of the date of these Orders (but not before 1 March 2019) the wife is to take all necessary steps and execute all necessary documents to cause the property situated at and known as [F Street, Suburb G] being the whole of the property contained in Certificate of Title Folio Identifier … to be listed for sale by public auction at the earliest possible date with the reserve price to be $2,900,000.00 or as otherwise agreed upon between the parties in writing, and that the proceeds of the said sale be dispersed as follows:

   3.1In discharge of the mortgage to Westpac Banking Corporation being registered dealing no. … and Westpac Banking Corporation loan #18.

   3.2In payment of agent’s commission and any fees on sale.

   3.3In payment of legal costs and disbursements of the sale.

   3.4In payment of the Capital Gains Tax payable by the wife in relation to the sale of the property and to give effect to this Order the sum of $100,000.00 (or as otherwise agreed by the parties in writing) is to be held in the Trust account of Karras Partners Lawyers or a joint controlled monies account held on behalf of the parties by the conveyancing lawyer with the Capital Gains Tax liability to be paid from that account and the balance thereafter (if any) to be divided between the parties in accordance with Order 3.10 and 3.11 hereof.

   3.5In discharge of Westpac Bank loan #69 in the name of [Mr and Ms H].

   3.6In payment to [Mr J Cerny] of $75,000.00.

   3.7In discharge of the [K Bank] Loan #26 in the name of the wife.

   3.8In payment of $67,000.00 to the [K Bank] Loan #0918 in the name of the husband.

   3.9In payment of $99,970.00 to the [L Bank] Unsecured Loan #6366 in the name of the husband.

   3.10In payment to the wife of a sum sufficient to effect an overall property division whereby the wife receives 80% of the net assets inclusive of superannuation

   3.11In payment to the husband of a sum sufficient to effect an overall property division whereby the husband receives 20% of the net assets inclusive of superannuation.

   4.That the husband forthwith do all things and sign all documents necessary to transfer his interest in the joint [M Bank] account no. 73879216 to the wife and the wife is to thereafter indemnify the husband against all or any liability in relation to the said joint bank account. 

   5.By way of child support Departure Order the husband shall pay child support to the wife in respect of the child, the child, as follows:-

   5.1A periodic sum of $300.00 per week with the first payment to be made within 7 days of these Orders and thereafter weekly, such funds to be deposited into a bank account nominated by the wife in writing.

   5.2Half of all education costs including but not limited to school fees of a school the parties agree in writing the child is to attend, tuition fees, all school uniforms (including school shoes and sports shoes), textbooks, extra-curricular school activities, tutoring, computer requisites and excursion fees incurred in relation to the education of [the child].

   5.3All of the private health insurance premiums referable to [the child] from time to time.

   5.4Half of all extra-curricular activity costs for the child, provided the activity has been agreed to by the parties in writing before the expense is incurred. 

   5.5Half of all medical, hospital, counselling, orthodontic, pharmaceutical, dental and other health professional costs incurred in relation to [the child] not otherwise covered by the husband’s private health insurance for the child.

   6.That other than as provided for in these Orders, the husband and wife be declared to have the sole right, title and interest in:-

   6.1Any chattels, goods, furnishings, bank accounts and other property which are at the date hereof in their possession respectively.

   6.2Any monies, shares, debentures or superannuation entitlements which stand in their sole name respectively at the date hereof.

   7.That the husband and wife do all acts and things and give consents and execute all documents and writings necessary to give effect to the Orders made herein.

   8.In the event that either party refuses or neglects to execute any deed or instrument in order to give validity and operation to these Orders, then a Registrar of this Court is hereby empowered pursuant to Section 106A of the Act to execute such deed or instrument in the name of the person who has so refused or neglected to comply.

2. In relation to the issues that remained outstanding at the conclusion of the trial the father sought orders contained in his Final Orders Sought By The Father[2] tendered on 12 December 2018 to the following effect:

   [2] Exhibit 6.

   PARENTING

   (Further to Consent Orders Already Signed 12 December 2018)

   (Updated) Regular Spend Time Arrangements (Week 1 Corresponds with 10/12/18)

   1.That [the child] Spend Time with the Father every Fortnight as Follows:

   (a) Starting Term 3 2019, with the Father as follows (6 Nights):

   (i)From After School Wednesday in Week 1 till beginning of School on the Thursday.

   (ii)From After School Wednesday in Week 2 till beginning of School on the Monday Morning.

   (b) Starting Term 3 2020, with the Father as follows (7 Nights):

   (i)From After School Wednesday in Week 1 till beginning of School on the Friday.

   (ii)From After School Wednesday in Week 2 till the beginning of School on the Monday Morning.

   PROPERTY

   1.That the Property at [F Street, Suburb G] is Sold by Auction.

   1.1That the parties do all acts and things and execute all documents necessary to cause the property situated at and known as [F Street, Suburb G] in the State of New South Wales being the whole of the property comprised in Folio Identifier … (“the [Suburb G] Property”) to be listed for sale by public auction within twenty one (21) days from the date of these orders, and:

   1.2That the Auction Date be set no later than 8 weeks from the date of these orders;

   1.3That the reserve price at auction be not less than $2,700,000 unless otherwise agreed by the parties in writing;

   1.4That the sales agency acting on the sale of the [Suburb G] property be [N Agents];

   1.5That the conveyancer acting on the sale of the [Suburb G] property be [Mr O].

   1.6That the parties do all acts and things necessary to facilitate the agent in the preparation and showing of the house for sale.

   1.7That a settlement period of 6 weeks be set for the contract of sale of the property.

   The Suburb G Property is Sold – Payment of Debts, Distribution of Net Matrimonial Assets

   2.That upon completion of the sale of the [Suburb G] Property the Wife and the Husband do all acts and execute all documents necessary to cause the proceeds of sale to be distributed in the following manner and priority:

   2.1To pay out the Westpac Loan Account Number #98 secured against the [Suburb G] Property.

   2.2The sales agent’s fees and commission relating to the sale of the [Suburb G] Property.

   2.3The legal fees relating to the sale of the [Suburb G] Property;

   2.4Payment of the Following Matrimonial Debts:

   2.4.1A Payment of $75,000 to [Mr J Cerny].

   2.4.2A payment of $67,000 to [K Bank] Specialist Loan Account 012210918 in the Name of [Mr Cerny].

   2.4.3A payment of $99,970 to [L Bank] Loan Account Number 200066366 in the Name of [Mr Cerny].

   2.4.4A payment of $25,000 to [K Bank] Specialist Loan Account, Account Number ending #26 in the Name of [Ms Seidler].

   2.5Reimbursement to the Husband for Interest Payments Made by the Husband on the Following Loans between the dates of 18 October 2014 till the date of Settlement:

   2.5.1[K Bank] Specialist Loan Account 012210918 in the name of [Mr Cerny].

   2.5.2[L Bank] Loan Account Number #66 in the Name of [Mr Cerny].

   2.6Any Residual Amount to be distributed to the parties as per below.

   Distribution of Net Matrimonial Assets after Sale of the [Suburb G] Property and Payment of Debts

   3.That any Remaining Funds after Sale of the [Suburb G] Property and the payments of detailed above in Paragraph 2 – Be Distributed as follows:

   3.170% to the Husband.

   3.230% to the Wife.

   Household Contents

   4.That there be a division of Household Contents between the Husband and Wife as Identified in the Agreed Inventory List.

   Joint Bank Accounts, Other Joint Accounts

   5.That both parties do all things necessary to close any accounts held jointly in their names including:

   5.1[M Bank]-UK bank accounts.

   5.2Any other joint accounts as may be identified.

   General

   6.That the Wife be solely entitled to the exclusion of the Husband to all other property both real and personal in her ownership, possession and/or control including but not limited to:

   6.1Her Motor vehicle

   6.2All superannuation entitlements held by her;

   6.3All other Assets in her name and possession.

   6.4All monies in financial institutions in her name either solely or jointly with another person;

   6.5Her Business interests.

   6.6Furniture, household effects, jewellery and personalty.

   7.That the Husband be solely entitled to the exclusion of the Wife to all other property both real and personal in his ownership, possession and/or control including but not limited to:

   7.1His Motor vehicle

   7.2All superannuation entitlements held by him;

   7.3All other Assets in his name and possession.

   7.4All monies in financial institutions in his name either solely or jointly with another person;

   7.5His Business interests.

   7.6Furniture, household effects, jewellery and personalty.

   8.That the Wife indemnify and keep indemnified the Husband in relation to all current and future liabilities and debts in her name, including, but not limited to, any income tax liabilities, or any other taxation Liabilities.

   9.That the Husband indemnify and keep indemnified the Wife in relation to all current and future liabilities and debts in her name, including, but not limited to, any income tax liabilities, or any other taxation Liabilities.  

   10.In the event either party refuses or neglects to comply with any of these Orders in relation to the execution of any deed, instrument or document the Court appoints and authorises the Registrar of the Federal Circuit Court of Australia, Sydney Registry, and/or any Registrar or Deputy Registrar thereof to execute such deed, instrument or document in the name of the defaulting party, and further appoints such Registrar or Deputy Registrar to do all acts and things necessary to give validity and operation to the deed, instrument or document.

1. I understood from the father that he opposed any child support orders. He indicated, however, that he agreed to continue to pay or contribute to the expenses that he currently meets as well as paying for one half of the child’s swimming costs.

2. A minute of the Independent Children’s Lawyer’s (“ICL”) proposals for the remaining parenting issue was provided on the last day of the hearing.[3] The ICL proposed:

   ·That [D] born …2012 (“the child”) live with the mother.

   ·That during school terms, and except as otherwise agreed, that the child spend time with the father on the basis of the following two-week cycle:

   oIn Week 1, from the conclusion of school or 3pm on Thursday to the commencement of school on Friday; and

   oIn Week 2, from the conclusion of school or 3pm on Thursday to the commencement of school on Monday unless Monday is a non-school day for the child in which case, he shall remain in the father’s care until 5pm.

   [3] Exhibit 11.

The Evidence in Chief of the Parents

1. The mother relied on:

   ·affidavit of the mother filed 26 October 2018;

   ·Financial Statement of the mother filed 26 October 2018;

   ·affidavit of Ms H filed 26 October 2018; and

   ·affidavit of Mr P (accountant) sworn 13 December 2018.

2. The father relied on:

   ·affidavit of the father filed 24 October 2018 (trial affidavit);

   ·affidavit of the father filed 15 November 2018 (further annexures only);

   ·affidavit of the father filed 8 December 2018;

   ·Financial Statement of the father filed 27 October 2018; and

   ·Financial Statement of the father filed 8 November 2018 (further Part N only).

3. The father, who was self-represented, filed a trial affidavit containing 1,139 paragraphs which are set out on 145 pages. It is not a helpful document and is not assisted by the 25 page Case Outline Document nor the 48 page Summary of Argument. The presentation of the affidavit with underlining, italicising, capitalising and bolding of some text (and in some instances a combination of those effects) only serves to distract the reader. Happily a practical approach was adopted by counsel for the child and for the mother and no formal objections were taken. The process of dealing with formal objections would have exhausted much of the available trial time.

4. Unfortunately that left a situation where it was not clear during the trial what of the father’s written evidence would be taken into account and what would not. Counsel for the ICL and for the mother were obliged to canvass some of the most serious contentions in cross-examination. In respect of the parenting proceedings, Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides relief from some of the exclusionary rules of evidence but the key rules remain. Evidence must be relevant and admissible. Section 55(1) of the Evidence Act 1995 (Cth) provides that:

   The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

5. Luckily the ultimate dispute in the parenting proceedings is of very narrow compass. The only issue is the proportion of time the child should spend with each of his parents during the school term. There is no proposal, for example, for supervision of time nor that either parent should be denied overnight time or block periods of time.

6. The father’s affidavit evidence in the parenting case is largely inconsistent with the orders he seeks and many of his answers in cross-examination involved him resiling from and apologising for the contents and tone of his deposition. As it transpired, the evidence the father needed to give in the parenting case could have been contained in a page or two.

7. As to the property proceedings the disputes seem to mainly focus on the approach that should be taken to the presenting facts, rather than on disputes about the facts themselves.

Credibility

1. There are very few relevant factual disputes and even fewer that rely entirely on the uncorroborated testimony of a witness. In that situation it is not necessary to comment generally about the credit of the witnesses. Disputes of fact fall to be determined issue by issue.

Expert Evidence

1. The expert evidence in relation to the parenting dispute was that of the single expert psychiatrist, Dr B. His report was dated 28 March 2018 and he was cross-examined.

2. Mr Q prepared a valuation report of the Suburb G property following receipt of a joint letter of instruction from the parties. His valuation report is attached to an affidavit filed 26 October 2018. A further report of Mr Q was attached to his affidavit filed 5 December 2018.

3. The mother relied on the opinion of her accountant, Mr P, in respect of the likely Capital Gains Tax (“CGT”) effect of selling the Suburb G property. The import of his evidence was for the very limited purpose of seeking to identify the possible quantum of the CGT in order that funds could be set aside to await the assessment of that tax.

The Hearing

1. The hearing commenced on 10 December 2018. The mother and the ICL were represented by counsel. The father was unrepresented and as a result he was at a significant disadvantage. In my view it is likely that there would have been little or no reason for a trial had the father been represented and properly advised. Proceedings between two highly intelligent parties, in respect of a limited number of disputes arising from a short marriage, should have been compromised without the need for judicial intervention. In addition to the problems that many individuals find in being an advocate in their own cause, the father drew his affidavit and presented his case in large part to address events from years ago that had little or no relevance to the parenting or financial issues currently before the Court.

2. On 13 December 2018 orders were made to the following effect:

   1.The Application in a Case handed up by the father and signed on 8 December 2018 to adjourn or vacate the trial is dismissed.

   2By consent, orders are made in terms of Exhibit 10, as set out hereunder:

   1.That the parties have equal shared parental responsibility for the child of the marriage [D] born … 2012 (hereinafter referred to as “the child”).

   2.That the child live with the parties during school holidays as follows:- For the school term holidays at the end of terms 1, 2 and 3 from the conclusion of school on the last day of term that the child attends school until 6 pm on the day which is the midpoint of the holiday period with the father and from 6 pm on the day which is the midpoint of the holiday period to the first day that the child attends school for the commencement of term with the mother.

   2.1That in relation to the 2019 Christmas school holiday period and each odd numbered Christmas school holiday period thereafter, the child is to spend time with each of the parties as follows:-

   2.1.1From the conclusion of school on the last day of term until 11 am on 24 December, the child is in the care of the mother.

   2.1.2That from 11 am on 24 December until 11 am on 30 December, the child will be in the care of the father.

   2.1.3From 11 am on 30 December until 4 pm on 14 January the child will be in the care of the mother.

   2.1.4From 4 pm on 14 January until the first day of the new school term, the child is to be in the care of the father.

   2.2That in relation to the 2020 Christmas school holiday period and each even numbered Christmas school holiday period thereafter, the child is to spend time with each of the parties as follows:-

   2.2.1From the conclusion of school on the last day of term until 11 am on 24 December, the child is in the care of the father.

   2.2.2That from 11 am on 24 December until 11 am on 30 December, the child will be in the care of the mother.

   2.2.3From 11 am on 30 December until 4 pm on 14 January the child will be in the care of the father.

   2.2.4From 4 pm on 14 January until the first day of the new school term, the child is to be in the care of the mother.

   2.3That the school holiday period is defined as commencing at the conclusion of school on the last day of term that the child attends school, and as concluding on the first day of the following term that the child attends school.

   3.      That the child be in the care of the father each Father’s Day weekend from 6 pm on the Saturday until 5 pm on the Sunday and that he be in the care of the mother each Mother’s Day weekend from 6 pm on the Saturday of that weekend until 5 pm on the Sunday.

   4.      In relation to the child’s birthday, if it falls on a school day then he is to spend time from the conclusion of school until 7 pm in the care of the non-resident parent and if the birthday falls on a weekend then he is to spend time from 2 pm until 7 pm on his birthday with the non-resident parent.

   5.      That in the event that the Easter long weekend does not fall within the term 1 school holiday period then the parties are to alternate between having the child in their respective care commencing with the mother.

   6.      That both parties are to do all things, sign all documents and pay equally all moneys necessary to ensure that the child has a current Australian Passport.

   7.      That each party be permitted to travel internationally to countries that are signatories to the Hague Convention (unless otherwise agreed to in writing between the parties) with the child, during the time in which he resides with them provided they give written notice to the other parent at least 28 days prior to the departure with the notice to include but not limited to:-

   7.1A copy of the return air ticket.

   7.2A full itinerary including details and contact telephone numbers of the accommodation at which the child will be staying.

   7.3That not less than twenty eight (28) days prior to the party travelling with the child shall receive from the other party the child’s passport, should the passport not already be in their care.

   8.      That each party shall do all acts and things and sign all documents necessary to instruct and authorise the administrators of such schools as the child may attend from time to time to forward to each party copies of all the child’s school reports, newsletters and all notices relating to school events, functions, parent/teacher meetings, parent/helper opportunities and other school activities in which the child may be involved and parents are invited to attend and/or participate in.

   9.      That the parties are hereby restrained from denigrating the other or members of their family to the child or in the presence or hearing of the child and the parties are to use their best endeavours to ensure that no other person denigrates the other party or members of their family to the child or in the presence or hearing of the child.

   10.    That both parties are to keep the other fully informed in relation to all issues concerning the health of the child and are to notify the other as soon as practicable thereafter upon the child attending upon any medical or health practitioner.

   11.    That each party forthwith authorise the child’s treating doctors, dentists and any other health professional to provide information and all reports to the other parent in relation to the child’s state of health.

   12.    That the parties are to do all acts and things necessary to facilitate any telephone contact requested by the child with the non-resident parent and are to facilitate telephone communication between the non-residence parent and the child at all reasonable times.

   13.    That during holiday periods as provided for in Order 2 the party with whom the child is living with shall facilitate the child telephoning the other party not less than once in each four (4) day period.

   14. That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

   15. That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

   3.Any current parenting orders inconsistent with those orders are discharged or varied.

   4.Each of the parents pay one half of the costs of the Independent Children’s Lawyer assessed in the sum of $7,378 each, to be paid on the settlement of the sale of the Suburb G property or by 30 June 2019 whichever is the sooner.

   5.Unless otherwise provided for in the orders the child’s passport be held by the mother.

   6.The parties are excused from attending the delivery of judgment.

Short History

1. The father was born in 1975 and was 43 years of age at the time of the hearing. He works as a health professional. The mother was born in 1977 and was 41 years of age at the time of the hearing. She works as a health professional. The parties commenced cohabitation in March 2008. The parties were married in 2009 and separated on 5 January 2014.

2. The child is the only child of the marriage. He was born in 2012 and is now six years of age.

Background Facts

1. In May 2007 the mother consulted a psychiatrist, Dr R, for assistance with anxiety and depression.

2. The parents began living together in March 2008. At the commencement of cohabitation the father was working full-time at the S Hospital and the mother was working at the same hospital.

3. On 28 November 2008 the parties opened a joint line of credit with L Bank, a provider of financial services to healthcare professionals.

4. The parties were married in 2009. Following the wedding the parties moved to the UK for a year. The mother worked earning £28,628 per annum. The father also worked earning £24,201 per annum.

5. In July 2010 the parties returned to Australia and commenced living at T Street, Suburb U. The father worked in Region TT. The mother worked part-time and also worked in a hospital.

6. At that time the mother consulted her GP, Dr V, and was prescribed anti‑depressants. Not long thereafter the parties travelled to Country W. While in Country W the mother felt suicidal and ceased the medication.

7. In May 2011 the parties returned to Sydney and lived in rental accommodation at X Street, Suburb Y. The mother obtained work in Suburb Z.

8. In June 2011 the mother saw psychologist, Ms AA.

9. In July 2011 the father opened the Suburb Z Clinic. Thereafter he worked between the Suburb Z Clinic and the Region TT Clinic.

10. The child was born in 2012. The mother suffered depression following the birth.

11. In July 2012 the mother returned to paid work part-time, initially working two half days per week. The paternal grandmother cared for the child while the mother was at work.

12. In late 2012 or early 2013 the parties purchased the Suburb G property for a purchase price of about $1,350,000. The father’s parents contributed $100,000 to the purchase. $25,000 was subsequently repaid but $75,000 remains owing. The remainder of the purchase cost was funded through $100,000 from the mother’s parents which they in turn borrowed from Westpac, and a $1,215,000 mortgage with Commonwealth Bank of Australia. The $100,000 borrowed by the mother’s parents and interest, has been repaid.

13. In the first half of 2013 the mother tried three different anti-depressants but she experienced side effects and found them unhelpful.

14. In July 2013 the mother commenced taking a different class of anti‑depressants. This medication worked well. Dr V referred the mother to a different psychiatrist, Dr BB. The mother continues to consult with Dr BB every six weeks. From approximately July 2013 the mother also commenced consulting a psychotherapist, Ms CC for general counselling and stress management.

15. In July 2013 the child began attending day care at DD Centre at Suburb Z several days per week.

16. In 2013 the parties each obtained an overdraft facility with the K Bank for $30,000.

17. By the end of 2013 the mother was working three days a week. The father was staying one night each week in EE Town as he was working at Region TT Clinic several days per week.

18. On 5 January 2014 the parties separated. It is the mother’s evidence that during a discussion the father lost his temper and threw a ceramic bowl across the room. The parents continued to live at the Suburb G property but were separated under one roof until 6 September 2014.

19. On 11 February 2014 the mortgage on the Suburb G property was refinanced through National Australia Bank (“NAB mortgage”). As part of the refinancing arrangement the parties were able to draw down a further $90,000 on the loan secured on the property.

20. In May 2014 the mother returned to full-time work.

21. On 23 July 2014 the mother’s parents’ loan with Westpac obtained to finance the purchase of the Suburb G property, was paid out and refinanced. It is the father’s evidence that the refinancing generated new debts of $50,000 in the name of the father, $25,000 in the name of the mother and a further drawdown of $25,000 on the mortgage over the Suburb G property. It is the mother’s evidence that the payment of the debt stemmed from a withdrawal of $75,000 from L Bank loans and $25,000 from the NAB mortgage. By the end of the trial I was in no better position to make findings about this issue.

22. In August 2014 the father paid his parents $25,000. It is the father’s evidence that this was in part payment of the $100,000 loaned for the purchase of the Suburb G property.

23. On 6 September 2014 the mother moved out of the Suburb G property and into her parents’ residence.

24. On 16 September 2014 the father moved out of the Suburb G property and into his parents’ apartment while Suburb G was being renovated for sale.

25. On 25 September 2014 the child commenced spending Monday and Friday nights with the father. From mid to late October 2014 the child spent time with the father mostly during the day and occasionally overnight.

26. On 2 October 2014 the father moved into an apartment at FF Street, Suburb G, while awaiting the sale of the Suburb G property.

27. On 17 October 2014 the mother cancelled the auction of the Suburb G property, scheduled for the following day. The mother moved into the Suburb G property, changed the locks and hired security guards. That night the father arrived at the Suburb G property with the child and spoke to the security guards. The father called the police who later attended the property. The father was and remains greatly distressed by those events.

28. As at 18 October 2014 the NAB mortgage secured over the Suburb G property stood at $1,286,560.

29. In October 2014 the father ceased paying the mortgage on the Suburb G property. The mother’s parents opened a new account with Westpac in their names with a $70,000 loan facility and allowed the mother to draw down the whole of that amount by way of a loan to her. These funds were used to pay legal fees and living expenses including expenses relating to the mortgage payments.

30. On 20 October 2014 the mother emailed the father stating that she would not make the child available to spend time with him.

31. In late October 2014, as a result of a consultation with the mother, Dr BB made a mandatory report about the father to the Department of Family and Community Services. As a result of that report, the father then made a complaint about Dr BB to the Australian Health Practitioner Regulation Agency.

32. On 24 October 2014 the mother commenced these proceedings by filing in the Federal Circuit Court of Australia at Sydney, seeking financial orders.

33. On 5 November 2014 the father filed a Response to the mother’s Initiating Application in which he also sought parenting orders.

34. On 30 November 2014 the father commenced paying child support.

1. On 13 December 2014 the child stayed overnight with his father.

2. In April 2015 the National Australia Bank (“NAB”) began enforcement proceedings and issued default notices in relation to the mortgage over the Suburb G property.

3. On 28 April 2015 the following interim orders were made:

   (a)by consent the parties have equal shared parental responsibility of [the child];

   (b)[the child] shall live with the mother; and

   (c)[the child] shall spend time with the father each Thursday from 8.00 am to 6.30 pm and each Saturday from 8.00 am to 5.00 pm.

4. On 27 July 2015 interim orders were made transferring the Suburb G property to the mother. It was noted that the transfer was by way of interim property adjustment only. The father was restrained by injunction from approaching or entering the Suburb G property except with the mother’s prior written consent. The mother was restrained from further encumbering the Suburb G property and, pending further order, the mother was to indemnify the father in respect of the mortgage over the Suburb G property. The proceedings were transferred to this Court.

5. On 28 August 2015 the NAB mortgage was refinanced into a Westpac Bank interest-only mortgage loan in the name of the mother. The balance of the new loan was $1,302,000. At around this time the mother’s parents borrowed $100,000 using their home as security.

6. On 8 September 2015 the mother completed the Keeping Kids in Mind course.

7. On 25 May 2016 orders were made in terms agreed by the parties providing for the sale of the Suburb G property with a payment of 61 per cent of the proceeds to the mother and 39 per cent to the father following payment of debts and liabilities.

8. On 18 August 2016 the orders made on 25 May 2016 were set aside following an application by the mother to review the registrar’s decision.

9. On 9 October 2017 the following orders were made by consent:

   (a)that [the child] spend time with the father each alternate weekend from 8.00 am Saturday to 5.00 pm Sunday and such other times as agreed between the parties with the weekend time to commence from Friday afternoon from 5 January 2018 onwards;

   (b)that [the child] spend time with the father each alternate Wednesday to Thursday; and

   (c)that [the child] spend time with the father on each other Wednesday from 3.00 pm to 6.30 pm.

10. By November 2017 the mother owed her parents $100,000 for the funds drawn down from Westpac accounts.

11. As at 24 May 2018 the mother owed her parents a total amount of $146,934.35 due to various loans.

12. On 12 June 2018 the proceedings were listed for hearing over four days commencing on 10 December 2018 and orders were made by consent for the child to spend time with the father including:

    ·each Wednesday afternoon to Thursday morning and each alternate weekend from Friday afternoon to Monday morning;

    ·half of the Term 1, 2 and 3 school holidays; and

    ·set periods during the Term 4 school holidays.

The Parenting Proceedings

The expert evidence

1. The single expert was Dr B. Dr B is a consultant child, family and adult psychiatrist. He completed a Bachelor of Medicine/Bachelor of Surgery at the in 1983 with honours. He completed his psychiatric training in December 1991. He was awarded the Fellowship Royal Australian and New Zealand College of Psychiatrists in February 1992.

2. Dr B has worked as a psychiatrist in private practice since 1993. He has a special interest in child, adolescent and family psychiatry and related medicolegal and Family Court matters.

The legislation

1. The law to be applied in parenting proceedings is found in Part VII of the Act.

2. For the purposes of the determination of these proceedings, I will adopt the following approach:

   (a)set out the current arrangements;

   (b)set out the proposals, including any options not advanced by a party, that the parties addressed or could have addressed;

   (c)where possible and relevant, consider and make findings about matters set out in s 60CC of the Act;

   (d)apply s 65DAA of the Act and assess the proposals in light of that provision;

   (e)consider and make findings about living arrangements; and

   (f)make orders.

The current arrangements

1. As to the arrangements during school terms, they were established by orders made in terms agreed between the parties on 12 June 2018 which provided for a fortnightly pattern to the following effect:

   (a)in week one from the conclusion of school on Wednesday until the commencement of school the following day; and

   (b)in week two from the conclusion of school on Wednesday until the commencement of school the following day, and from the conclusion of school on Friday until the commencement of school the following Monday morning.

The proposals

1. The mother sought that the existing division of time in school term should substantially continue but be changed by replacing Wednesday night for Thursday night to reduce the number of handovers. The father sought an increase in his time, leading within two years, to an equal time arrangement. In the event that his proposal did not find favour and there was to be no increase in the child’s time with him, the father sought to retain the current arrangement, rather than the change proposed by the mother.

Section 60CC considerations

1. Section 60CC of the Act specifies the following considerations:

Primary considerations:

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

1. A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[4] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.

   [4] McCall & Clark (2009) FLC 93-405.

2. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider ‘the benefit to the child’ of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[5]

   [5] Champness & Hanson (2009) FLC 93-407.

3. The background facts, the orders agreed to by the parents and the orders sought by each of them suggest that the relationships between each of them and the child are meaningful and I make that finding.

(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. Each of the parents alleges that the other has been responsible for family violence.

2. For example, the father contends that soon after the child’s birth the mother waved a knife around in his presence. He contends that the mother had poor mental health and suicidal ideations. The mother contends that the father has been controlling and abusive towards her. The mother alleges and the father conceded that at times he threw objects.[6]

   [6] Paragraph 50 of Dr B’s report dated 28 March 2018.

3. At times the affidavits sworn by the parties were themselves abusive. The father relied on such an affidavit for the trial. During his oral evidence and submissions the father conceded that his affidavit was inappropriate.

4. During his cross-examination, Dr B changed the recommendations he had made in his written report. That resulted largely from Dr B reading the father’s affidavit. The area of concern was the strength and personal nature of the father’s attack on the mother in these proceedings.

5. Happily, despite their many allegations, neither of the parents contends that the child is at risk of physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence in the other’s care.

Additional considerations

(3)(a)  any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The child is only six years of age and his views are not of significance in the proceedings. In any event the evidence about his views would not seem to assist in distinguishing between the parents’ proposals.

   (3)(b)  the nature of the relationship of the child with each of the child’s parents and

other persons (including any grandparent or other relative of the child)

1. At interview, Dr B observed a delightful rapport between the mother and the child. Indeed, Dr B assessed there to be a close rapport between the child and each of his parents. The child told Dr B that he particularly enjoyed playing Beyblades with his father. He said that he felt comfortable about sleeping at his father’s place and, when asked, expressed no hesitation about having holiday time with his father.

2. Dr B reported:

   67.When exploring his emotional experience, [the child] identified feeling happy a lot. He enjoyed his phone time, Xbox time and playing with his Nerf gun at his Dad’s house. He viewed his mother as the happiest member of the family and recalled her birthday when all her friends came to visit. When asked about his birthday the previous weekend, he had nothing to add. He identified feeling sad “a tiny bit”, when someone tickled him. He viewed his father as the saddest in the family, “Because he’s just so sad every day. I don’t know why”. He denied that he ever felt nervous or angry.

3. Dr B accepted the proposition put by the father that in relation to the reference to sadness, that the child may have not been accurately reflecting the father’s presentation to his son. That nevertheless leaves the possibility that the child did accurately report his observations.

   (3)(c)  the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
   (i)  to participate in making decisions about major long‑term issues in relation to the child; and
   (ii)  to spend time with the child; and

(iii)  to communicate with the child

1. In my view, each of the parents has taken those opportunities. At least on some occasions, the father has chosen not to attend events for the child that occurred during the mother’s time. He was asked about that in cross-examination and said something to the effect that he did not feel the need to attend all of the child’s events during the mother’s time with him. In my opinion there is nothing of significance in this issue. The parents may have different approaches to some things but, in the broad, it is my impression that they have taken the opportunities referred to in this criterion.

(3)(ca)  the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. Again, the parties have had disputes about financial support for the child but I am satisfied that, in the main, they have fulfilled their obligation to provide for his financial support. For example, the parents seem to have been able to share the costs of many of the child’s activities, without requiring a formal agreement or order.

   (3)(d)  the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
   (i)  either of his or her parents; or

(ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The father’s proposals would mean a gradual change for the child, leading to equal time. The advantages the father sees in that proposal are that the father can be more available to the child after school than the mother has been. The father would take up some other occasions when the child is with neither of his parents, something that Dr B thought would be positive. Dr B also agreed that there would be advantages to the child in having more time with his father.

2. Importantly however, Dr B said he was concerned that the father’s proposal would potentially expose the child to the father’s adverse views about the mother.

3. During his cross-examination Dr B said:

   I was very concerned when I read the father’s affidavit and his case outline. I was concerned that he used this as an opportunity to be overtly critical of many aspects of the mother’s personality, of her functioning over the years and he stigmatised her experience of mental health problems. It was excessive to my mind and certainly he had approached this task in an obsessive compulsive manner whereby he was going through and essentially with a fine tooth comb hauling through every aspect of the mother’s vulnerability with regard to her emotional state, with regard to her behaviour, with regard to her family of origin experience, with regard to her subsequent relationships and there was an absolute lack of empathy demonstrated in the preparation of this document. This was particularly concerning to me given that the father’s concerns regarding his experience had already been validated.

4. In his enthusiasm to support his case, to respond to criticisms made of him in interlocutory proceedings and to record his frustration and anger about the events on 17 October 2014 and their sequelae, the father has put the lie to much of his case about his contributions to the family. The father gave evidence about supporting the mother through her mental health difficulties early in the marriage. He told Dr B that he did not make any adverse inferences from the testing undertaken of the mother for sexually transmitted disease. The father spoke well of the mother’s family. In a repudiation of those representations, the effect of much of the father’s evidence for the trial was to demean, stigmatise and unfairly criticise the mother and the members of her family. At paragraph 45 of the family report Dr B reports the following:

   He detailed his concerns about the actions of her family members, which included the maternal grandmother’s controlling, overbearing and intrusive presence. He alleged that her brother, [Mr GG] had been angry and abusive, causing her step-brother, [Mr HH], to be fearful.

5. As the father himself submitted, there is no indication that he has behaved in that way in the child’s presence. Dr B said that the child shows no sign of exposure to the conflict that has supported the litigation between his parents. Hopefully there has been no such exposure. He also said that the child is a resilient child. I also accept that it would be inconsistent with an apparently unblemished professional life that the father has behaved in that way on a regular basis. That leaves us with him deliberately storing up his knowledge about the mother, her struggles and challenges and his grievances against her and the members of her family and deploying them against her in these proceedings. He apparently did so without appreciating or caring about the impact on the mother of doing so, not to mention the potential impact on the child of those attacks. All to achieve a forensic advantage in narrowly drawn parenting proceedings. During his questioning of Dr B the father compared his affidavit to a PhD thesis.

6. The father submitted that the references made by Dr B to obsessive compulsive behaviours and to narcissistic tendencies by him may have been unwarranted and amounted to pathologising his conduct. Although I have no basis for rejecting Dr B’s opinions, even if that is right, the conduct itself is of sufficient concern, whatever the label.

7. I gather from the father’s submissions that he would argue that in at least one affidavit filed in interlocutory proceedings the mother behaved as he did in his trial affidavit. I assume that the argument would be that albeit not in a trial affidavit, the mother behaved as badly as he did and that his affidavit, as well as his outline of case and summary of argument, are somehow justified thereby. It is not a very attractive argument (“I am no worse than she is”) but in my view the behaviour was not of the same order. Neither I nor Dr B were taken through the detail of the documents. In an unlovely competition, the father must win on volume[7] but I have not conducted a detailed analysis to make a qualitative comparison of the two affidavits. The background facts suggest that the father’s judgment about these matters is likely to be poor. On the face of it he made a professional standards complaint about Dr BB who was simply meeting a professional obligation. He accused the maternal grandmother of racism for a comment that may have been patronising, incorrect and/or impolite but that was not racist.   

   [7] The father’s trial affidavit contains 1139 paragraphs of text and there are a significant number of passages making personal criticisms of and attacks on the mother and members of her family. The mother’s trial affidavit has 275 paragraphs and there are only a handful of critical personal references to the father. The mother’s affidavit sworn and filed 23 February 2015 contains 74 paragraphs and there are many paragraphs critical of the father’s conduct but personal criticisms were largely confined to paragraphs 27(d) and 32.

8. Albeit a marginal risk, the father’s proposals would increase the risk of the child being exposed to the attitudes which underpinned the attack made on the mother.

9. The mother’s proposals would involve only a minor change for the child. There would be no difference in the division of time during school term but the time would be aggregated so as to reduce the need for additional handovers.

(3)(e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. The father asserts that, as opposed to the current arrangements, the mother’s proposals would be inconvenient for his practice. Otherwise there are no significant practical issues.

   (3)(f)  the capacity of:
   (i)  each of the child’s parents; and
   (ii)  any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

1. The agreed orders and the modest range of dispute about living arrangements during school term suggest that the parents consider that there are no significant issues relevant to this criterion.

2. From his interviews, Dr B observed that each of the parents was highly attuned to the child’s emotional experience and aware of his interests and needs.

3. In his report Dr B noted that the father was both critical and positive about the mother’s conduct. He reported that, having initially critically appraised the mother’s personality, style and actions, the father spoke in a positive manner about their capacity to cooperatively parent the child. In the father’s view, he and the mother had interacted better than a normal happily married couple. As I have set out earlier in these reasons, during Dr B’s oral evidence, however, he said he was concerned by the father’s trial affidavit and his presentation during the hearing.

4. Dr B noted no abnormalities in his mental health examination of the mother. The mother has had effective treatment of her anxiety. Dr B spoke to the mother’s psychiatrist, Dr BB. Dr BB identified that the mother’s mental health had been adversely affected by her parents’ separation. Dr BB had not identified any impairment in the mother’s parenting capacity related to her anxiety and post-natal depression. She reported that the mother had adhered to treatment and had responded well. She gave the mother a good prognosis.

5. Dr B referred to the father’s obsessive compulsive behaviours.

6. I will not repeat here what I have set out under other criterion.

7. There is a narrow range of dispute between the parents in relation to the parenting proceedings but I am obliged to explain the reasons for preferring one proposal or another. Suffice it to say that the evidence about the capacities of the parents tends to support the mother’s general proposal over that of the father.

(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.

Definition of resident child

(10)  For the purposes of this section, a child is a resident child of a person only if:

(a)  the child normally lives with the person, but is not a child of the person; and

(b)  the person is, or was, for 2 continuous years, a member of a couple; and

(c)  the other member of the couple is, or was, a parent of the child; and

(d)  the child is aged under 18; and

(e)  the child is not a member of a couple; and

(f)  one or more of the following applies in respect of each parent of the child:

(i)  the parent has died;

(ii)  the parent is unable to support the child due to the ill‑health of the parent;

(iii)  the parent is unable to support the child due to the caring responsibilities of the parent; and

(g)  the court is satisfied that the resident child requires financial assistance.

1. A ground for departure must be established in the special circumstances of the case. In my view, s 117(2)(b)(ii) and s 117(2)(c)(1a) apply.

2. Only one ground is required. As to s 117(2)(c)(ia), the administrative formula has a maximum rate for the costs of children which is based on a combined child support income for the parents of 2.5 times the Male Total Average Weekly Earnings. For 2018 that is $184,015. The combined income for the parents in these proceedings is substantially more than twice that sum. Even with provision for non-periodic support, the administrative formula is not ideally adapted to children in the child’s situation.

3. Next, findings are required under s 117(4) and s 117(5) on a range of issues that would go to whether it is just and equitable to make such an order (dealing with how the mother and father should share the responsibilities of the costs of the child), and then how those responsibilities should fall as between the parents and the taxpayer.

4. As to the financial circumstances of the parents:

5. Omitting the rent, the mother’s income is $5,167 made up of $2,307 in wages, $2,740 in income from her medical practice and $120 in child support. I was not told why the father pays $136 per week in child support and yet the mother only receives $120. It is even more puzzling given that the assessed rate is about $143 per week. The mother estimates her liabilities at $9,200 per week. That represents a weekly shortfall of over $4,000. In the future the mother plans to apply the money she currently pays on the mortgage, to her rent. Hopefully some of her unsecured debts will also be discharged from her property settlement. The mother was not cross‑examined about the repayments she makes on her Visa card. At $3,230 per week the repayments seem high. I assume that the repayments include ongoing weekly expenditure on the card/s that is in addition to the required repayments and in addition to the expenditure of $1,445 per week identified at Part N of her Financial Statement. The mother’s Financial Statement makes no reference to the OO Bank debt claimed by her in the property settlement proceedings. The Financial Statement puts the Visa card debt at $47,000, while the mother’s evidence in the property settlement proceedings put the Visa card debt at over $43,000 and the related OO Bank debt at $10,000. I assume that the combined current credit card debt is over $53,000. Again, hopefully that debt can be extinguished from the mother’s property settlement. Relief from those credit card payments would go some way towards reducing the very substantial shortfall in the mother’s weekly budget. Even without apportioning the other fixed expenses, the mother estimates that she spends and will spend $1,377 per week on the child. I am satisfied that there is a substantially greater shortfall in the mother’s weekly budget for the child’s expenses than the amount she claims.

6. As is referred to earlier in these reasons, the father’s income is $5,749 per week and he spends $5,860 each week. The effect of the father’s evidence in cross‑examination is that the $308 per week he applies to expenses associated with these proceedings is not a recurrent expense and he is unsure whether he will continue to incur $67.00 per week in child minding fees. Without those expenses, the father will spend $5,485 per week and would have a surplus of $264 per week.

7. The mother seeks that the father pay $300 per week, which is an additional $157 per week on top of the current assessment for periodic payments of child support. The father conceded that the mother’s claim for his liability was within an acceptable range. The mother has a greater weekly shortfall than she is claiming by way of departure. The father has a greater weekly surplus than the mother is claiming. At least in respect of expenditure on food and holidays for the child in his household, the father is providing for him at a higher rate than is the mother, despite him having the child for less than half the time.

8. The child has no income, earning capacity, property and financial resources. There will be no hardship to the father by making the departure sought by the mother but there could be hardship to her and the child if the departure was refused.

9. I am satisfied that it would be just and equitable to increase the father’s child support liability to $300 per week.

10. Neither of the parents is in receipt of an income tested benefit. There will be no impact on the revenue of the departure proposed by the mother. I am satisfied that it would be otherwise proper to grant the mother’s departure application.

11. I will make the orders in the terms proposed by the mother. As the departure was not expressed to be sought for a specified period, it will only apply to the current assessment which applies until 29 February 2020. It is probably for that reason that the mother has not sought any provision for the liability to increase with movements in the CPI.

12. The mother also seeks to formalise the parties’ arrangement as to non-periodic payments, albeit in terms defined by their ongoing agreement about the particular school or activity etc. Unlike the departure application, there are no jurisdictional impediments to the Court entertaining the mother’s application.

13. The father would prefer that there be no orders about child support but as I say, the orders sought by the mother effectively formalise the current arrangement. Indeed, I apprehend that the orders sought by the mother were amended to include a reference emphasised by the father during submissions, that the school fees and other expenses to which he would contribute would relate only to a school which the child attends with the agreement of both parties.

14. Sections 123 and 124 of the Assessment Act provide as follows:

    123  Application for order under Division

    (1)  An application may be made to a court having jurisdiction under this Act for:

    (a)  an order that a liable parent provide child support otherwise than in the form of periodic amounts paid to the carer entitled to child support; or

    (b) an order that a liable parent provide 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.

    (2)  An application under subsection (1):

    (a)  may only be made if an administrative assessment is in force in relation to the child, the carer entitled to child support and the liable parent; and

    (b)  may be made by the carer entitled to child support or the liable parent.

    (3)  Before hearing the application, the court must hear and determine any pending application made to the court for an order under Division 3 (administrative assessments more than 18 months old) or Division 4 (departure orders) in relation to the child, the carer entitled to child support and the liable parent.

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

    …

    124  Orders for provision of child support otherwise than in form of periodic amounts paid to carer entitled to child support

    (1)  Where:

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

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

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

    (ii)  otherwise proper;

    to make an order that the liable parent provide child support for the child otherwise than in the form of periodic amounts paid to the carer entitled to child support;

    the court may make the order.

    (2)  In determining the application, the court must have regard to:

    (a)  the administrative assessment in force in relation to the child, the carer entitled to child support and the liable parent; and

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

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

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

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

    (3A)  In having regard to the earning capacity of a parent of the child under paragraph 117(4)(da), the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied as mentioned in subsection 117(7B).

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

    (5)  Subsections (2), (3), (3A) and (4) do not limit the matters to which the court may have regard.

15. No ground is required in respect of non-periodic payments. As to the other matters to be taken into account, they largely replicate many of the provisions of s 117. Suffice it to say that having regard to the effect of the departure to be ordered by me and the relevant findings made earlier in these reasons, insofar as they apply to the health, school and extra curricula expenses for the child, it is just and equitable and otherwise proper to make the orders sought by the mother. I will make the orders in the terms proposed by the mother. Again there is no controversy between the parents about the particular payments. Unlike the departure order, this order is not limited in application to the duration of a particular assessment.

16. I will note for the purposes of s 125 of the Assessment Act that no part of those direct payments or contributions is to be credited against the father’s recurrent child support liability whether as fixed by these orders or as later assessed from time to time.

I certify that the preceding two hundred and thirty-seven (237) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 30 January 2019.

Associate:

Date:  30 January 2019