SELWOOD & SELWOOD - [2014] FamCA 531

FAMILY COURT OF AUSTRALIA

SELWOOD & SELWOOD

[2014] FamCA 531

FAMILY LAW – CHILDREN – Final Orders – equal shared parental responsibility – whether equal time in best interests of children – children expressed a wish to maintain existing arrangements – high degree of conflict between mother and father – best interests of children to reduce the number of handovers – children to spend equal time with mother and father.

FAMILY LAW – CHILDREN – CHILDREN – Final Orders – international and interstate travel – subject to conditions both parties be at liberty to travel with the children – father not to take children to any location at which the father is participating in or otherwise involved with his sporting actvities without the consent of the mother.

FAMILY LAW – CHILDREN – PROPERTY – Final Orders – just and equitable to alter assets of the parties – contributions assessed as equal – where husband did not make full and frank disclosure – where husband gave unreliable evidence – where husband continued to reduce the value of his assets during and after the commencement of proceedings - whether significant adjustment in favour of wife is appropriate – just and equitable – division of assets 70:30 in favour of the wife.

Family Law Act 1975 (Cth) s 60CC, 60CD, 65DAA, 66B, 66C, 66E, 66G, 66H, 66J, 66K, 66P, 66S,79, 75(2), 80
Child Support (Assessment) Act 1989 (Cth) s 55H, 64B, 116, 117, 118

Bevan & Bevan (2014) Fam LR 387
Gould & Gould (2007) FLC 93-333
Norman & Norman [2010] FamCAFC 66
In the Marriage of Kannis (2003) FLC 93-135
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Ms Selwood

RESPONDENT:

Mr Selwood

INTERVENERS

(24 August 2011 to 13 July 2012):

Mr K & Mr H Selwood

FILE NUMBER:

DNC

359

2010

DATE DELIVERED:

18 July 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Darwin

JUDGMENT OF:

Justice Dawe

HEARING DATE:

9-13 July 2012;
27-28 Sep 2012;
1-4 Oct 2012;
3 Dec 2012 (by videolink)
21-22 Jan 2013;
22-24 Apr 2013

(trial reopened 17 March 2014)
13-15 May 2014 (by videolink)

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Rowbottom (with Ms Farmer)

SOLICITOR FOR THE APPLICANT:

Withnalls Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Supljeglav (with Mr Norrington)

SOLICITOR FOR THE RESPONDENT:

DS Family Law

COUNSEL FOR THE INTERVENERS:

Mr Lloyd, SC

SOLICITOR FOR THE INTERVENERS:

Cater & Blumer

Orders

The mother Ms Selwood and the father Mr Selwood have equal shared parental responsibility for the children, B born … 1999 and C born … 2001 (“the children”).
During the school terms commencing 21 July 2014 the children live with the father and mother equally as follows:
(a)with the father from after school on Friday until the conclusion of school on the following Friday, each alternate week commencing the first week;
(b)with the mother from after school on Friday until the conclusion of school on the following Friday, each alternate week commencing the second week; and
(c)at such other times as may be agreed in writing by the parents.
Commencing school holidays in September/October 2014 the parents equally share each school holiday period with the children as agreed between the parents but in default of agreement, with the father for the first half of the school holiday period in odd numbered years and for the second half of the school holiday period in even numbered years and with the mother at all other times.
The time to be spent in accordance with paragraphs 2 and 3 shall be suspended while each parent is spending the following periods of special significance with the children:
(a)on the children’s birthday in each year and every year with the parent who does not otherwise have the children in their care, from 3.00 pm until 8.00 pm;
(b)with the mother on the mother’s birthday in each and every year from 3.00 pm until 8.00 pm;
(c)with the father on the father’s birthday in each and every year from 3.00 pm until 8.00 pm;
(d)with the mother and father equally on Christmas Day each and every year as agreed between the parents but in default of agreement as follows:
(i)with the father from 6.00 pm on Christmas Eve until 12 midday on Christmas Day and with the mother from 12 midday on Christmas Day until 6.00 pm on Boxing Day in each alternate year commencing 2014;
(ii)with the mother from 6.00 pm on Christmas Eve until 12 midday on Christmas Day and with the father from 12 midday on Christmas Day until 6.00 pm on Boxing Day in each alternate year commencing 2015.
(e)the children shall spend time with the mother on Mother’s Day each and every year from 3.00 pm until 6.00 pm on that day;
(f)the children shall spend time with the father on Father’s Day each and every year from 3.00 pm until 6.00 pm on that day.
For the purposes of changeover of the children pursuant to paragraphs 2, 3 and 4 (and unless the children are otherwise being collected from the school) the mother shall deliver the children to the father’s residence at the commencement of time to be spent and the father shall deliver the children to the mother’s residence at the conclusion of time to be spent.
For the purposes of calculating the school holiday periods, school holidays commence on the day after the last day of the school term and conclude on the first day of the following school term.
Each parent shall have telephone communication with the children at all reasonable times requested by either child and at the instigation of the parent with whom the children are not residing PROVIDING THAT such parent communication instigated by the parent takes place only between 4.00 pm and 8.00 pm.
That each parent be permitted to take the children on holidays interstate or overseas during the time the children spend with that parent PROVIDED THAT thirty [30] days written notice is provided to the other parent.
Subject to notice being given in accordance with paragraph 8 either parent be permitted to take the children on interstate or overseas holidays PROVIDED THAT:
(a)the time does not conflict with a period of special significance in accordance with paragraph 4;
(b)the parent give the other parent a written itinerary containing the dates of departure and return, and the address and telephone number of the places where the children shall be staying during the holiday;
(c)the nature of the proposed travel is not of the kind dealt with in paragraphs 11or 12 of these orders;
Subject to any further order of the Court the children’s passports to be handed over to the travelling parent within fourteen [14] days of notice being given to the parent not travelling overseas.
The children not be permitted to travel or spend time with the father or attend at any overseas location during any period the father is involved in, participating in or training in competition or post-competition sports activities without the mother’s prior specific written consent.
The father not permit or allow the children to attend his sporting events without the mother’s prior specific written consent.
Each parent is restrained and an injunction is hereby granted restraining each parent from denigrating the other parent to or in the presence of the children or allowing the children to remain in any place where such denigration is occurring.
The mother or the father at all times accompany the children or either of them to any medical, dental or hospital appointments.
In the event the father is unable to accompany the children or either of them to attend a medical, dental or hospital appointment the father notify the mother forthwith and the mother attend to collect the child or children for such appointment and return the children at conclusion of the appointment.
In the event the mother is unable to accompany the child or children to such appointments during any time spent the mother shall notify the father and the father attend to collect the child or children for such appointments and return the child or children at the conclusion of such appointments.
The parties inform the other in the event of any serious accident, injury or illness suffered by any of the children and any medical or other treatment for the children.
Each parent shall keep the other informed of their residential addresses and telephone numbers and any changes thereto forthwith.
Each parent be entitled to obtain directly from any school attended by the children, or from any health or welfare professional or other professional attended by the children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose each parent shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other parent so informed should such details change.
The party shall equally share the costs associated with the following expenses for the children:
(a)       all extra-curricular activities undertaken by the children;
(b)       all school fees;
(c)       all medical insurance and medical expenses.
Upon compliance by the husband with the property settlement orders hereinafter set out the orders of 15 April 2013 are discharged.

Property Settlement Orders

If within thirty [30] days from the date hereof the wife notifies the husband in writing that she exercises her option to retain the properties at O Road, Suburb I, L Street, Suburb M and N Street, Suburb P, the following shall apply:
(a)within fourteen [14] days of such notice being given the husband sign all documents necessary to transfer to the wife all his right title and interest in the following real estate:
(i)O Street, Suburb I, NT
(ii)L Street, Suburb M, NT
(iii)N Street, Suburb P, NT
(b)provided that upon settlement the wife is to pay the husband the sum of FIVE HUNDRED AND NINETY ONE THOUSAND THREE HUNDRED AND THIRTY EIGHT DOLLARS AND THIRTY-THREE CENTS [$591,338.33];
(c)upon settlement the wife do all acts and things necessary to refinance the existing National Australia Bank Home Loan and thereafter indemnify the husband with respect to the National Australia Bank Home Loan.
If within thirty [30] days from the date hereof the wife notifies the husband that she wishes to exercise the option to retain the former matrimonial home at O Street, Suburb I, NT then the following shall apply:
(a)within fourteen [14] days of such notice being given the husband sign all documents necessary to effect a transfer to the wife of all his right title and interest in the real estate at O Street, Suburb I, NT;
(b)upon settlement the wife do all acts and things necessary to refinance the existing National Australia Bank Home Loan and indemnify the husband with respect to the National Australia Bank Home Loan.
(c)subject to any written agreement between the parties to the contrary the remaining real estate at L Street, Suburb M, NT and N Street, Suburb P, NT be placed on the market for sale by public auction within fourteen [14] days after the wife has provided the notice referred to in this paragraph such auction to be conducted by auctioneers and agents determined and appointed by the wife for reserved prices as determined by the wife after obtaining advice from a licenced auctioneer;
(d)the proceeds of sale of the properties auctioned or sold in accordance with the preceding sub-paragraph to be paid and distributed as follows:
(i)in payment of all reasonable costs of sale including agents fees and auctioneer costs, legal and conveyancing costs, and any rates adjustments or relevant disbursements payable;
(ii)payment to the wife of the sum of FOUR HUNDRED AND EIGHT THOUSAND SIX HUNDRED AND SIXTY-ONE DOLLARS AND SIXTY-SEVEN CENTS [$408,661.67] less seventy [70] per cent of the amount incurred for sub-paragraph (i) hereof;
(iii)payment to the wife of seventy [70] per cent of any amount by which the sale prices for both properties exceeds ONE MILLION DOLLARS [$1,000,000.00];
(iv)payment to the husband of the balance.
If within thirty [30] days from the date hereof the wife has not informed the husband of the intended exercise of her option to acquire any of the properties as set out in accordance with the above orders then each of the properties at O Street, Suburb I, NT, L Street, Suburb M and N Street, Suburb P shall be placed on the market for sale by public auction by auctioneers and agents determined and appointed by the wife for reserved prices as determined by the wife after obtaining advice from a licenced auctioneer.
The proceeds of sale of the properties auctioned or sold in accordance with the preceding paragraph to be paid and distributed as follows:
(a)in payment of all reasonable costs of sale including agents fees and auctioneer costs, legal and conveyancing costs;
(b)any rates adjustments and in discharge of all mortgages and related incidentals;
(c)the balance then remaining to be distributed as follows:
(i)in payment to the wife of ONE MILLION TWO HUNDRED AND SIXTY THREE THOUSAND SIX HUNDRED AND NINETY THREE DOLLARS [$1,263,693.00];
(ii)in payment to the wife of seventy [70] per cent of the amount by which the total of the sale prices less the cost of sale exceeds TWO MILLION THREE HUNDRED AND FIFTY THOUSAND DOLLARS [$2,350,000.00];
(iii)in payment of balance to the husband.
The husband be entitled to retain any outstanding rents and debts due in relation to the real estate property the subject of these orders, together with any debts due to the parties from personal loans made by the husband.
The husband indemnify the wife with respect to all and any taxation liabilities or other debts in relation to himself personally and in relation to Selwood Pty Ltd and the Q Trust.
Each party shall be entitled to the exclusion of the other all other property and chattels of whatsoever kind or nature in the possession of such party as at the date hereof and for this purpose, bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements including but not limited to the wife to retain her Z Pty Ltd shares, motor vehicle, her superannuation, household contents, jet ski and trailer and quad bike.
Failing agreement the question of costs is reserved to a date to be fixed.
All applications are removed from the active pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 359 of 2010

Ms Selwood

Applicant

And

Mr Selwood

Respondent

REASONS FOR JUDGMENT

introduction

The proceedings between the applicant Ms Selwood (“the wife”) and the respondent Mr Selwood (“the husband”) concern orders to be made by way of property settlement and issues concerning the children of the marriage B who was born in 1999 and C who was born in 2001 (“the children”).

Brief procedural history

The proceedings commenced when the wife filed an Initiating Application seeking property settlement orders in the Federal Magistrates Court of Australia (as it then was) in August 2010. The Orders sought were expressed to be “an alteration of property interest allocating to the wife 70 per cent and to the husband 30 per cent.”
Subsequently, the husband in his response sought both property settlement orders and parenting orders. The orders sought in relation to the children were that the parents have equal shared parental responsibility and that the children live with each parent on a week about basis.
The final property settlement orders the husband sought were expressed to be “just and equitable distribution of the matrimonial property as the Court deems appropriate”.
Subsequently, interim orders were made including orders which provided for the children to live with each parent on a week about basis. Interim orders were also made in relation to financial matters.
In May 2011 the husband’s parents, Ms K Selwood and Mr H Selwood and F Pty Ltd were granted leave to intervene in the proceedings. The Federal Magistrates Court trial dates were vacated and the matter was transferred to the Family Court of Australia.
In December 2012 an interim order was made restraining the wife from allowing the children to be in the presence of Mr R, other than when the wife was present at all times.
The final trial in relation to both children’s issues and property settlement issues commenced in Darwin on 9 July 2012 when the husband, wife and interveners were represented by counsel. The trial continued on the 10, 11, 12 and 13 July 2012. At the conclusion of the hearing on 13 July 2012 orders were made by consent which released the interveners from further participation in the proceedings.
The Consent Order was as follows:
BY CONSENT IT IS ORDERED:
1,That the husband and the wife pay to the Interveners from the property pool of the husband and wife the sum of $375,000 in the reverse proportion found by the Court or by resolution to be their entitlement under section 79 and section 75(2) of the Family Law Act.
2.That in the event of a resolution the husband and wife shall identify within the terms of the settlement the proportion attributed to their respective section 79 and section 75(2) entitlements and provide a copy of the same to the Interveners within 7 days.
3.That the husband and wife pay any respective sums payable to the Interveners within 7 days of the wife receiving her entitlement proceeds pursuant to judgment or resolution.
4.That each of the parties pay their own costs with respect to the Interveners claim.
5.That each of the Interveners hereby releases both the husband and the wife from all debts due and owing to them by the husband and wife.
NOTATION
A.That the Interveners have compromised their claim in accepting the sum referred to herein.
B.The parties accept this settlement on the basis that it is in addition to the $150,000 the money the Interveners have received from [Mr S] (“[S]”).
The part heard trial was adjourned to 27 September 2012.
The matter resumed on that date and continued on 28 September, 1, 2, 3 and 4 October 2012. Difficulties arose in relation to the completion of the evidence, and in particular, the evidence of the husband’s father.
As a result the matter resumed and was heard by video-link on 3 December 2012. The matter was adjourned part-heard to 21 January 2013. On that date the part-heard trial resumed and further evidence was received on 21 January 2013 and 22 January 2013. The matter was then listed for the conclusion of evidence and final submissions to 22 April 2013.
On 15 April 2013 for detailed reasons given on that date I made orders for the husband to pay one-half of medical, travel and accommodation costs connected with the treatment of B and ancillary orders in relation to health cover.
Consent Orders were made on 19 April 2013 by way of interim orders which provided for the sale of the E Street, Suburb T property. The Orders also provided that upon the sale, after payment of the costs and outgoings, each of the solicitors receive $85,000 with the remainder to be paid to the parties’ joint National Australia Bank Mortgage Account.
After the interim hearing on 19 April 2013 the matter resumed on 22 April 2013 and continued on 23 April, with final submissions being heard on 24 April 2013.
Judgment was reserved on 24 April 2013.

The parties were directed to inform the Court of the sale of the E Street property and the net amount received. Subsequently, the Court received information from both parties’ solicitors confirming on 7 October 2013 that the E Street, Suburb T property had been sold and giving particulars of the net amount received. A joint balance sheet was also received from the solicitors for the parties on 7 October 2013.
An Application in a Case was filed on 13 February 2014 by the wife for listing on 12 March 2014, but adjourned due to power outage difficulties in Darwin.
On 17 March 2014 the matter was reopened. Directions were made for further documents to be filed and the matter adjourned to 13 May 2014.
After further affidavit material was filed the trial was reopened on 13, 14 and 15 May 2014 and continued with evidence from the wife and the husband. Judgment was reserved on 15 May 2014 after final submissions from counsel.
For most of the trial the husband was represented by Mr Supljeglav (with Mr Norrington), the wife by Mr Rowbottom (with Ms Farmer) and when the Interveners participated by Mr Lloyd, SC (with Ms Giacomo).

Orders Sought

At the conclusion of the hearings in April 2013 the wife sought orders which would provide for the parties to have equal shared parental responsibility for the children, that the children live with the husband from after school on Friday until before school the following Thursday each alternate week and from after school on Thursday until before school on Friday in the second week. Otherwise, the children were to live with the wife. She also sought orders for shared school holiday periods and special occasions, with particular orders in relation to notifying the other party or agreeing in relation to treatment and specific travel arrangements, including orders which did not permit the children to travel with the husband overseas when the husband was involved in any sports activity or attending sports functions without the wife’s consent.
The final property settlement orders sought provided for the wife to receive by way of transfer from the husband the properties at O Street, Suburb I, L Street, Suburb M and N Street, Suburb P and the motor vehicle. She also sought the Suburb T property which had already been the subject of orders for sale. The Orders sought also provided for the husband to indemnify the wife in relation to taxation liabilities and other debts in relation to the company and Q Trust.
The minutes of orders sought by the husband proposed that the parties have equal shared parental responsibility for the children and that during school term they live with the husband and wife equally on the basis that they live with the husband from after school on Friday until the conclusion of school on the following Friday each alternate week “commencing the first week in odd numbered years and commencing the second week in even numbered years”. It also provided for equal shared holiday time, special occasions, overseas travel and other ancillary orders.
In relation to final property settlement orders the husband sought an order that provided for the property at O Street, Suburb I to be transferred to him, the husband paying for the discharge of the mortgage on the property. The Orders also proposed that the company Selwood Pty Ltd sell the “quad bike, [exercise facilities]; and all other equipment, chattels and assets owned by [Selwood Pty Ltd] with the proceeds of sale being deposited into a bank account for the payment of the ATO debt and thereafter be divided in accordance with the overall orders”.
The husband proposed that he retain the motor vehicle 2 and the wife retain the motor vehicle 1 and that “the husband shall pay to the wife such sum necessary (sic) to effect an overall distribution of net matrimonial assets of 40 per cent in favour of the wife and 60 per cent in favour of the husband.” Other ancillary orders were proposed.
Counsel provided a document which was headed “Effective husband’s orders sought using husband’s values”. This provided for the husband to retain all the real estate property save and except the wife was to receive L Street, Suburb M. It provided for the wife to retain the motor vehicle 1 and other assets, on the basis that the husband will take over the National Australia Bank home loan and pay the wife a further $242,940.92.

Application in relation to child support and children’s expenses

The wife sought final orders which provided for earlier orders to be discharged and for the husband to pay one half of the total medical, travel and accommodation costs for the wife and children in relation to the medical treatment of B. She also sought variation of Child Support Assessment.
The wife filed an Application in a Case on 13 February 2014 seeking orders by way of enforcement of the orders of 21 January 2013. In response the husband sought that monies which he had paid be repaid to him and that the application of the wife be dismissed. The husband sought the orders made on 15 April 2013 be declared “ultra vires” and, in the event that they were not, sought the dismissal of the orders and other orders in relation to the parties’ contributions to the costs of the children’s medical, travel and accommodation costs relating to B’s treatment. He also sought other orders in relation to educational costs and expenses.
On 22 January 2013 an order was made by consent which stayed the enforcement of the collection of the Child Support Assessment debts due and payable by the wife to the husband.
The wife sought orders described as “child maintenance” in relation to the payment by the husband of half of the costs associated with travel and medical expenses concerning B and private health cover. She sought those orders pursuant to the child maintenance provisions of the Act or in the alternative to variation of child support.
The husband sought orders dismissing the previous order that was made by me for the reasons that I gave on 15 April 2013. It was alleged on behalf of the husband that those orders were “ultra vires”. In the alternative the husband sought a variation of those orders including a departure order pursuant to the Child Support (Assessment) Act 1989 (Cth).
When the application by the wife for child maintenance orders was heard by me on 21 January 2013 both parties were represented by counsel.
After the orders were made no appeal was lodged. However, the absence of an appeal does not create jurisdiction if no jurisdiction exists. In paragraphs 21 and 22 of my reasons for judgment delivered on 15 April 2013:
21.Counsel proceeded with their submissions at the hearing on the implicit assumption that I had the jurisdiction to make the order requested by the wife. Neither of the parties, in written or oral submissions, attempted to conceptualise the wife’s desired orders as either child maintenance or spousal maintenance.
22.I find that the application is to be treated as an application to vary the consent orders relating to child maintenance as certified by FM Turner on 23 September 2010.
The Consent Orders made by Federal Magistrate Turner (as she then was) on 23 September 2010 provided for the husband to make available to the wife the use of a credit card “to be used by the wife solely in relation to the medical and education expenses relating to the children and the husband shall meet such expenses incurred on the credit card”. It also provided for medical and education expenses to include, tuition fees, school uniforms, text books, other necessary fees, general practitioner visits, specialist consultation, hospital expenses and dental expenses. Paragraphs 4 and 5 dealt with the husband making payment of private health cover for the family at his expense.
Section 66E refers to “An application which could properly be made for the respondent to be assessed in respect of the costs of the child”.
The Child Support (Assessment) Act 1989 (Cth) provides for a definition of the “costs of the child” to have the meaning given by s 55H or s 55H(A) as the case requires. Section 55H is not the required definition in this case. Section 55H(A) refers to the administrative assessment of child support during a particular period with specific reference to the Costs of the Children Table.
I am therefore not satisfied that the Court was not able to make the child maintenance order because it has not been established the wife could have made the application she made to this Court to the Child Support authorities under the Child Support (Assessment) Act 1989 (Cth).
Section 80 of the Family Law Act 1975 (Cth) (“the Act”) provides:
General powers of court
(1) The court, in exercising its powers under this Part, may do any or all of the following:
(a)order payment of a lump sum, whether in one amount or by instalments;
(b)order payment of a weekly, monthly, yearly or other periodic sum;
(ba)order that a specified transfer or settlement of property be made by way of maintenance for a party to a marriage;
(c)order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;
(d)order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;
(e)appoint or remove trustees;
(f)order that payments be made direct to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage;
(h)make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;
(i)impose terms and conditions;
(j)make an order by consent;
(k)make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and
(l)subject to this Act and the applicable Rules of Court, make an order under this Part at any time before or after the making of a decree under another Part.
(2)The making of an order of a kind referred to in paragraph (1)(ba), or of any other order under this Part, in relation to the maintenance of a party to a marriage does not prevent a court from making a subsequent order in relation to the maintenance of the party.
(3)The applicable Rules of Court may make provision with respect to the making of orders under this Part in relation to the maintenance of parties to marriages (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of maintenance payable under them.
(4)If a bankruptcy trustee is a party to a proceeding before the court, the court may make an order under paragraph (1)(d) directed to the bankrupt.
(5)If the trustee of a personal insolvency agreement is a party to a proceeding before the court, the court may make an order under paragraph (1)(d) directed to the debtor subject to the agreement.
(6)Subsections (4) and (5) do not limit paragraph (1)(d).
In the minutes of the proposed orders of the husband he sought orders that the parties share the cost of extra-curricular activities, school fees and medical expenses for the children.
Considering the provisions of the Act I am satisfied that jurisdiction exists.

Summary of documents relied upon and evidence heard

The wife relied upon the oral evidence and affidavits of herself, Mr U, Ms V and Ms W.
The husband relied upon the oral evidence and affidavits of himself, Ms X and his father.
The Court received the Family Report of 19 June 2012 and the oral evidence of the author, Mr Y.

Relevant background

The husband, Mr Selwood, was born in 1975 and is 38 years of age. He was initially employed by his parents before becoming a professional sportsman. The husband is now employed by the company Selwood Pty Ltd.
The wife, Ms Selwood, was born in 1976 and is 37 years of age. She was employed by Z Pty Ltd where she worked full time, save and except for two periods of maternity leave following the birth of each of the children. She ceased to work for Z Pty Ltd in December 2010. Shortly thereafter in December 2010 she commenced full time employment with AA Pty Ltd.
There are two children of the marriage, B, who was born in 1999 and C, who was born in 2001. They are currently aged 14 and 12 years respectively.
B was born premature and spent a considerable period of time in intensive care. At the age of three, in 2002, B was diagnosed with mild cerebral palsy.
The relationship between the parties commenced in 1992. They began cohabiting in approximately 1995. Prior to the marriage, but at a time when the parties were in a relationship, the husband purchased BB Street, Suburb CC. A house was constructed on the vacant block. The National Australia Bank mortgage was registered in October 1995.
The parties were married in 1999. The parties originally resided in the husband’s parents’ home in Suburb DD, for approximately three years.
In December 2002 the parties purchased the vacant land at O Street, Suburb I. Subsequently, over a period of years between 2003 and 2005, a house was constructed on the Suburb I property by F Pty Ltd for $200,000.
The property at BB Street, Suburb CC, was sold in December 2004 for $250,000. The mortgage on the property was discharged.
On 17 November 2005 the company Selwood Pty Ltd was incorporated. That company has thereafter conducted consultancy and other work. The husband has used the company to purchase and sell exercise equipment.
Selwood Pty Ltd is also the corporate trustee of the Q Trust, the Family Trust.
In late January 2006 a permit to occupy was released for the former matrimonial home at O Street, Suburb I.
Subsequently, the parties also purchased other real estate including, H Street, J Town, which was purchased on 31 July 2006 for $70,000 and H Street, J Town, which was purchased on 18 August 2006 for $70,000. It was asserted that the deposit, conveyancing fees and stamp duty were paid by the husband’s parents.
In November 2006 the parties purchased L Street, Suburb M from the husband’s parents for $80,000. A house was subsequently constructed on the property by F Pty Ltd for $150,000.
In January 2008 the parties purchased N Street, Suburb P for $150,000. There is no mortgage on this property.
On 12 February 2009 the parties sold H Street, J Town for $205,000.
In May 2009 the parties entered into a contract which provided for F Pty Ltd to carry out work on the N Street, Suburb P property at a cost of $150,000.
Between October 2009 and 13 November 2009 the parties paid $110,000 to F Pty Ltd for work being done on the Suburb P and Suburb M properties.
On 6 April 2010, Selwood Pty Ltd deposited $200,000 into the joint mortgage account to assist in the purchase of E Street, Suburb T. That property was purchased by Selwood Pty Ltd on 9 April 2010 for $345,000.
The parties were separated for a period between October 2009 and 20 May 2010. Evidence suggested that on 28 May 2010 the parties lent “S” $150,000 from the joint mortgage account.
The parties finally separated in June 2010.
The wife commenced the proceedings for property settlement in early August 2010 in the Federal Magistrates Court (as it then was).
The husband filed a response also seeking orders in relation to the children.

Main issues in dispute

The main dispute concerned whether the children should spend each alternate week with each parent, or whether they should spend eight days and nights each fortnight with the wife and six days and nights with the husband. The wife also sought an injunction which would prevent the husband from taking the children to event nights or to travel overseas with the husband when he was attending such functions.
In relation to financial matters the significant issues related to the treatment of items described as “Notional Assets” which the wife maintained should be brought into account, but which the husband said should not be considered or treated as a “notional asset”.
Other significant factors were the allocation of the percentage and assessment of the contributions made by each of the parties. The wife made significant allegations that the husband had failed to appropriately disclose all assets and had diminished the asset pool. The wife also maintained that the husband had a significantly greater earning capacity than he was disclosing.

The Law – Children

The provisions of the Family Law Act 1975 (Cth) (“the Act”) in relation to the children’s matters are set out in Part VII.

Section 60CC

How a court determines what is in a child’s best interests

Determining child’s best interests

Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

Additional considerations

Additional considerations are:
(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;
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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;
(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;
(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;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.

Section 60CD
How the views of a child are expressed

(1)Paragraph 60CC(3)(a) requires the court to consider any views expressed by a child in deciding whether to make a particular parenting order in relation to the child. This section deals with how the court informs itself of views expressed by a child.
(2)The court may inform itself of views expressed by a child:
(a)by having regard to anything contained in a report given to the court under subsection 62G(2); or
(b)by making an order under section 68L for the child’s interests in the proceedings to be independently represented by a lawyer; or
(c)subject to the applicable Rules of Court, by such other means as the court thinks appropriate.

Note 1: Paragraph (a)—subsection 62G(3A) generally requires the person giving the report to ascertain the child’s views and include those views in the report.
Note 2: Paragraph (b)—paragraph 68LA(5)(b) requires the independent children’s lawyer for the child to ensure that the child’s views are fully put before the court.

Both parties seek orders that provide for the parents to have equal shared responsibility. The provisions of s 65DAA are therefore relevant.

Section 65DAA
Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

Equal time

(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

Substantial and significant time

(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and

(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii)occasions and events that are of particular significance to the child;
and

(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality

(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.

Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:

(a)The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).

Note 2: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

Consent orders

(6) If:
(a)the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b)the order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child;

the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).

(7)To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.

Note: Section 60CA requires the best interests of the child to be the paramount consideration in a decision whether to make a particular parenting order.

The Law – Property Settlement

The provisions of the Act relevant to these property settlement proceedings are sections 79 and 75(2).
Section 79
Alteration of property interests
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy Trustee in the vested bankruptcy property;
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)    an order requiring:
(i)     either or both of the parties to the marriage; or
(ii)    the relevant bankruptcy Trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
…
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
…
Subsection 75(2) is relevant as it is referred to in subsection 79(4)(e) of the Act. Subsection 75(2) states:
Section 75(2)
(2)    The matters to be taken into account are:
(a)     the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)     himself or herself; and
(ii)    a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)     any law of the Commonwealth, of a State or Territory or of another country; or
(ii)    any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person -- the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)     the property of the parties; or
(ii)    vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of the person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
Orders sought pursuant to s 79 of the Act were previously dealt with by reference to a four stage process (see, eg, Hickey & Hickey (2003) FLC 93-143 at [39]). That process involved:
a)Identification and valuation of the property of the parties;
b)Identification and evaluation of contributions to the property (including property no longer owned by the parties);
c)Identification and assessment of the various matters in s 79(4)(d) to (g) including, to the extent they are relevant, the matters in s 75(2); and
d)Consideration of matters of justice and equity.
In the High Court of Australia decision of Stanford v Stanford (2012) 247 CLR 108 the joint judgment of French CJ, Hayne, Kiefel and Bell JJ noted three fundamental propositions relevant to the operation of s 79 at 120. Those propositions were summarised by Bryant CJ and Thackray J in Bevan & Bevan (2014) Fam LR 387 at 402:
The High Court in Stanford has laid down three “fundamental propositions” which will provide useful guidance to trial judges in approaching the task under s 79. These were recited above, and could be summarised thus:
1. Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
2. The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
3. A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
Finn, May and Murphy JJ in Norman & Norman [2010] FamCAFC 66 at [60], noted that the established four step approach “merely illuminates the path to the ultimate result” and is not an approach that is mandated by the Act. Rather, it is the “mandatory legislative imperative (to reach a conclusion that is just and equitable) that drives the ultimate result.”
The approach to be taken in this matter is as follows:
a)Identification of the existing legal and equitable interests in property of the parties, the effect of which will be to identify all of the assets which are available for distribution;
b)Determinate pursuant to s 79(2) of the Act whether, “having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order” and in doing so avoid “a determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), [as such a determination] would erroneously conflate what are distinct statutory requirements” as outlined in the third fundamental proposition identified by the joint judgment in Stanford & Stanford (Supra).
c)Identification and evaluation of contributions to the property (including property no longer owned by the parties) and contributions to the welfare of the family as set out in s 79(4)(a) to (c) of the Act;
d)Identification and assessment of the various matters in s 79(4)(d) to (g) including, to the extent they are relevant, the matters in s 75(2); and
e)A final consideration of whether the result arrived at upon the conclusion of the above processes is a just and equitable outcome for the parties.
Allegations concerning one party’s failure to disclose assets were dealt with in detail by the Full Court in the matter of Gould & Gould (2007) FLC 93-333. In paragraphs 25 and 26 of that judgment the Full Court cited with approval comments taken from the judgment of the Full Court in In the Marriage of Kannis (2003) FLC 93-135, including the often quoted section:
Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance is beside the point. The duty to disclose is absolute. Where the Court is satisfied the whole truth has not come out it might readily conclude the asset pool is greater than demonstrated. In those circumstances it may be appropriate to err on the side of generosity to the party who might be otherwise seen to be disadvantaged by the lack of compliance candour.
These authorities have also referred to the “robust approach” to be taken.

Child support and Child Maintenance

As indicated in the judgment delivered on 21 January 2013 the parties had consented to orders on 23 September 2010 which provided inter alia that the husband would give all consents and sign all necessary documents for the wife to use a credit card in relation to the medical and educational expenses for the children at the husband’s expense and that the husband would meet costs of all private health cover with Medibank Private.
The order made on 21 January 2013 provided for the husband to pay one-half of the total medical, travel and accommodation costs for the wife and both children connected with or related to the medical treatment of B within fourteen days of the wife providing receipts and for the parties to do all things and sign all necessary documents to ensure the current level of private health cover with Medibank Private was maintained for the family at the cost of the husband.
Those orders were made pursuant to the provisions of s 66B to s 66S of the Act. The husband maintains that s 66E forbids the Court making such an order. Section 66E provides:
Child maintenance order not to be made etc. if application for administrative assessment of child support could be made
(1)A court having jurisdiction under this Part must not, at any time, make, revive or vary a child maintenance order in relation to a child on the application of a person (the applicant ) against, or in favour of, a person (the respondent ) if an application could properly be made, at that time, by the applicant under the Child Support (Assessment) Act 1989 for the respondent to be assessed in respect of the costs of the child, or vice versa.
(2)Subsection (1) has effect whether or not an application for administrative assessment of child support for the child has in fact been made (whether by the applicant, the respondent or another person).
(3)This section does not apply to proceedings under regulations made for the purposes of section 110 or 111A.

Section 66G provides:
Court's power to make child maintenance order
In proceedings for a child maintenance order, the court may, subject to this Division and to section 111AA, make such child maintenance order as it thinks proper.
Section 66S provides:
Modification of child maintenance orders
(1)This section applies if:
(a)there is in force an order (the first order ), for the maintenance of a child (whether or not made under this Act and whether made before or after the commencement of this section):
(i)     made by a court; or
(ii)    registered in a court; and
(b)a person (being someone who could apply for a child maintenance order in relation to the child) or persons (each of whom could do that) apply to the court for an order under this section in relation to the first order.
(1A)With the consent of all the parties to the first order, the court may, subject to section 111AA, make an order:
(a)discharging the first order; or
(b)suspending its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or
(c)if the operation of the order has been suspended under paragraph (b) or (2)(b)--reviving its operation wholly or in part; or
(d)varying the order:
(i)     so as to increase or decrease any amount ordered to be paid by the order; or
(ii)    in any other way.
(1B)However, the court must not make an order under subsection (1A) that allows any entitlement of a child or another person to an income tested pension, allowance or benefit, to affect the duty of that child's parents to maintain the child.
Note: For the duty of a parent to maintain a child, see section 66C.
(2)    In any other case, the court may, by order:
(a)discharge the first order if there is just cause for so doing; or
(b)suspend its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or
(c)if the operation of the order has been suspended under paragraph (b) or (1A)(b), revive its operation wholly or in part; or
(d)subject to subsection (3), vary the order:
(i)     so as to increase or decrease any amount ordered to be paid by the order; or
(ii)    in any other way.
(3)The court must not vary the order so as to increase or decrease any amount ordered to be paid by the order unless it is satisfied:
(a)that, since the order was made or last varied:
(i)     the circumstances of the child have changed so as to justify the variation; or
(ii)    the circumstances of the person liable to make payments under the order have changed so as to justify the variation; or
(iii)   the circumstances of the person entitled to receive payments under the order have changed so as to justify the variation; or
(iv)   in the case of an order that operates in favour of, or is binding on, a legal personal representative--the circumstances of the estate are such as to justify the variation; or
(b)that, since the order was made or last varied, the cost of living has changed to such an extent as to justify its so doing (this is expanded on in subsections (4) and (5)); or
(c)if the order was made by consent--that the amount ordered to be paid is not proper or adequate (this is expanded on in subsection (6)); or
(d)that material facts were withheld from the court that made the order or from a court that varied the order, or material evidence previously given before such a court was false.
(4)In satisfying itself for the purposes of paragraph (3)(b), the court must have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.
(5)The court must not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or last varied having regard to a change in the cost of living.
(6)In satisfying itself for the purposes of paragraph (3)(c), the court must have regard to any payments, and any transfer or settlement of property, previously made to the child, or to any other person for the benefit of the child, by the person against whom the order was made.
(7)An order decreasing a periodic amount payable under the order, or discharging the order, may be expressed to be retrospective to such day as the court considers appropriate.
(8)If an order (the subsequent order ) decreasing a periodic amount payable under the first order is expressed to be retrospective, amounts paid under the first order that are not payable under the first order as varied by the subsequent order may be recovered in a court having jurisdiction under this Part.
(9)If an order discharging the first order is expressed to be retrospective to a specified day, amounts paid under the first order since the specified day may be recovered in a court having jurisdiction under this Part.
(10)For the purposes of this section, the court must have regard to the provisions of Subdivisions B, C and D (to the extent applicable).
(11)The discharge of the first order does not affect the recovery of arrears due under the order when the discharge takes effect.
Section 66S (10) refers to certain sections of sub-divisions B, C and D where applicable.
Section 66B provides:
Objects
(1)The principal object of this Division is to ensure that children receive a proper level of financial support from their parents.
(2) Particular objects of this Division include ensuring:
(a)that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and
(b)that parents share equitably in the support of their children.
Section 66C provides:
Principles--parents have primary duty to maintain
(1)The parents of a child have, subject to this Division, the primary duty to maintain the child.
(2)Without limiting the generality of subsection (1), the duty of a parent to maintain a child:
(a)is not of lower priority than the duty of the parent to maintain any other child or another person; and
(b)has priority over all commitments of the parent other than commitments necessary to enable the parent to support:
(i)     himself or herself; or
(ii)    any other child or another person that the parent has a duty to maintain; and
(c)is not affected by:
(i)     the duty of any other person to maintain the child; or
(ii)    any entitlement of the child or another person to an income tested pension, allowance or benefit.
Section 66H provides:
Approach to be taken in proceedings for child maintenance order
In proceedings for the making of a child maintenance order in relation to a child, the court must:
(a)consider the financial support necessary for the maintenance of the child (this is expanded on in section 66J); and
(b)determine the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of the child, that should be made by a party, or by parties, to the proceedings (this is expanded on in section 66K).
Section 66J provides:
Matters to be taken into account in considering financial support necessary for maintenance of child
(1)In considering the financial support necessary for the maintenance of a child, the court must take into account these (and no other) matters:
(a)the matters mentioned in section 66B; and
(b)the proper needs of the child (this is expanded on in subsection (2)); and
(c)the income, earning capacity, property and financial resources of the child (this is expanded on in subsection (3)).
(2)In taking into account the proper needs of the child the court:
(a)must have regard to:
(i)     the age of the child; and
(ii)    the manner in which the child is being, and in which the parents expected the child to be, educated or trained; and
(iii)   any special needs of the child; and
(b)may have regard, to the extent to which the court considers appropriate in the circumstances of the case, to any relevant findings of published research in relation to the maintenance of children.
(3)In taking into account the income, earning capacity, property and financial resources of the child, the court must:
(a)have regard to the capacity of the child to earn or derive income, including any assets of, under the control of or held for the benefit of the child that do not produce, but are capable of producing, income; and
(b)disregard:
(i)     the income, earning capacity, property and financial resources of any other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them; and
(ii)    any entitlement of the child or any other person to an income tested pension, allowance or benefit.
(4)Subsections (2) and (3) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).
Section 66K provides:
Matters to be taken into account in determining contribution that should be made by party etc.
(1)In determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of a child that should be made by a party, or by parties, to the proceedings, the court must take into account these (and no other) matters:
(a)the matters mentioned in sections 66B, 66C and 66D; and
(b)the income, earning capacity, property and financial resources of the party or each of those parties (this is expanded on in subsection (2)); and
(c)the commitments of the party, or each of those parties, that are necessary to enable the party to support:
(i) himself or herself; or
(ii) any other child or another person that the person has a duty to maintain; and
(d)the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child (this is expanded on in subsection (3)); and
(e)any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.
(2)In taking into account the income, earning capacity, property and financial resources of a party to the proceedings, the court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for the benefit of the party that do not produce, but are capable of producing, income.
(3)In taking into account the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child, the court must have regard to the income and earning capacity forgone by the parent or other person in providing that care.
(4)In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must disregard:
(a)any entitlement of the child, or the person with whom the child lives, to an income tested pension, allowance or benefit; and
(b)the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or has such a duty but is not a party to the proceedings, unless, in the special circumstances of the case, the court considers it appropriate to have regard to them.
(5)In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must consider the capacity of the party, or each of those parties, to provide maintenance by way of periodic payments before considering the capacity of the party, or each of those parties, to provide maintenance:
(a)by way of lump sum payment; or
(b)by way of transfer or settlement of property; or
(c)in any other way.
(6)Subsections (2) to (5) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).
Section 66P provides:
General powers of court
(1)In proceedings for a child maintenance order, a court may do all or any of the following:
(a)order payment of a lump sum, whether in one amount or by instalments;
(b)order payment of a weekly, monthly, yearly or other periodic amount;
(c)order that a specified transfer or settlement of property be made by way of maintenance for a child;
(d)order that payment of an amount ordered to be paid be wholly or partly secured as the court specifies;
(e)order that any necessary instrument be executed, and that such documents of title be produced and such other things be done, as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;
(f)order that payment be made to a specified person or public authority or into court;
(g)make a permanent order, an order pending the disposal of proceedings, an order for a fixed period, an order until a child attains a specified age or an order until further order;
(h)make an order imposing terms and conditions;
(i)make an order by consent;
(j)make any other order (whether or not of the same nature as those referred to in paragraphs (a) to (i)) that it considers appropriate;
(k)make an order under this Division at any time.
(2)The making of an order of a kind referred to in paragraph (1)(c), or of any other order under this Division, in relation to the maintenance of a child does not prevent a court from making a subsequent order in relation to the maintenance of the child.
(3)The applicable Rules of Court may make provision with respect to the making of orders under this Division (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of maintenance payable under them.
In the alternative to orders pursuant to s 64B(5) and s 66G, the wife sought orders pursuant to s 118(1)(j) of the Child Support (Assessment) Act 1989 (Cth). Section 118 of the Child Support (Assessment) Act 1989 (Cth) states:
Orders that may be made under Division
(1)The orders that a court may make under this Division are as follows:
(a)an order varying the annual rate of child support payable by a parent;
(b)an order varying a parent's or non-parent carer's cost percentage for a child;
(c)an order varying a parent's child support income;
(d)an order varying the parents' combined child support income;
(e)an order that:
(i) the column in the Costs of the Children Table that covers a parent's child support income or combined child support income that is, or is ordered to be, greater than 2.5 times the annualised MTAWE figure for the relevant June quarter, is the column headed "2 to 2.5"; and
(ii) the column is to apply as if the second dollar amount in the heading to that column did not apply;
(f)an order varying a parent's child support percentage;
(g)an order varying a parent's adjusted taxable income;
(h)an order varying a parent's relevant dependent child amount or multi-case allowance;
(i)an order varying a parent's self-support amount;
(j)an order varying the costs of the children.
(2)An order under this section may make different provision in relation to different child support periods and in relation to different parts of a child support period.
(2B)A court may only make an order under this Division in respect of a day in a child support period, being a day that is more than 18 months earlier than the day on which the application for the order is made under section 116, if the court has granted leave under section 112 for the order to be made.
(2C)If the court has granted leave under section 112, the court may only make an order under this Division in respect of a day in a child support period if the day is within the period specified by the court, under subsection 112(6), in the order granting the leave.
(3)If the court makes an order under this section, the court must:
(a)give reasons for making the order (including reasons for its satisfaction as required by paragraph 117(1)(b)); and
(b)cause the reasons to be entered in the records of the court.
(4)Subsection (3) does not apply in relation to an order if:
(a)it is an order made by consent; and
(b)the carer entitled to child support concerned is not in receipt of an income tested pension, allowance or benefit.
(5)A contravention of subsection (3) in relation to an order does not affect the validity of the order.
Section 116 of the Child Support (Assessment) Act 1989 (Cth) provides:
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:
(a)all of the following apply:
(i)     the Registrar has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment;
(ii)    an objection to the refusal has been lodged;
(iii)   the Registrar has disallowed the objection; or
(aa)all of the following apply:
(i)     a decision has been made in respect of the administrative assessment;
(ii)    an objection to the decision has been lodged;
(iii)   in making a decision on the objection, the Registrar has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment; or
(ab)the SSAT has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment; or
(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).
Note 1: For the orders that a court may make under this Division see section 118.
Note 2: With a court's leave, a court may make an order under this Division in respect of a day that is more than 18 months earlier than the day on which the relevant application was made (see subsection 118(2B)). A person is taken to have applied under this section if leave is granted.
Note 3: A court may make an order under this Division if the court sets aside a child support agreement under section 136.
(2)An application may be made by the carer entitled to child support, or the liable parent, in relation to the child.
(3)Subject to section 145 (Registrar may intervene in proceedings), the parties to the application are the liable parent and the carer entitled to child support.
Section 117 of the Child Support (Assessment) Act 1989 (Cth) provides:
Matters as to which court must be satisfied before making order
Court may make departure order
(1)Where:
(a)application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b)the court is satisfied:
(i)     that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii)    that it would be:
(A)just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B)otherwise proper;
to make a particular order under this Division;
the court may make the order.
Grounds for departure order
(2)For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a)that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
(i)     the duty of the parent to maintain any other child or another person; or
(ii)    special needs of any other child or another person that the parent has a duty to maintain; or
(iii)   commitments of the parent necessary to enable the parent to support:
(A)himself or herself; or
(B)any other child or another person that the parent has a duty to maintain; or
(iv)   high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;
(aa)that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));
(b)that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(i)     because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or
(ia)because of special needs of the child; or
(ib)because of high child care costs in relation to the child; or
(ii)    because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(c)that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i)     because of the income, earning capacity, property and financial resources of the child; or
(ia)because of the income, property and financial resources of either parent; or
(ib)because of the earning capacity of either parent; or
(ii)    because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.
High costs involved in enabling parent to care for a child
(2B)A parent's costs involved in enabling the parent to care for a child can only be high for the purposes of subparagraph (2)(a)(iv) or (2)(b)(i) if the costs that have been or will be incurred, during a child support period, total more than 5 per cent of the amount worked out by:
(a)dividing the parent's adjusted taxable income for the period by 365; and
(b)multiplying the quotient by the number of days in the period.
(2C)If a parent has at least regular care of a child, then the only costs that can be taken into account for the purposes of subsection (2B) are costs related to travel to enable the parent to spend time with, or communicate with, the child.
High child care costs
(3A)The ground for departure mentioned in subparagraph (2)(b)(ib) is taken not to exist unless:
(a)the costs are incurred by a parent or a non-parent carer; and
(b)the child is younger than 12 at the start of the child support period.
(3B)Child care costs for a parent can only be high for the purposes of subparagraph (2)(b)(ib) if, during a child support period, they total more than 5 per cent of the amount worked out by:
(a)dividing the parent's adjusted taxable income for the period by 365; and
(b)multiplying the quotient by the number of days in the period.
(3C)Child care costs for a non-parent carer can only be high for the purposes of subparagraph (2)(b)(ib) if, during a child support period, they total at least 25 per cent of the costs of the child for that period.
Matters to consider for purposes of subparagraph (1)(b)(ii)
(4)In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b)the proper needs of the child; and
(c)the income, earning capacity, property and financial resources of the child; and
(d)the income, property and financial resources of each parent who is a party to the proceeding; and
(da)the earning capacity of each parent who is a party to the proceeding; and
(e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i)     himself or herself; or
(ii)    any other child or another person that the person has a duty to maintain; and
(f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g)any hardship that would be caused:
(i)     to:
(A)the child; or
(B)the carer entitled to child support;
by the making of, or the refusal to make, the order; and
(ii)    to:
(A)the liable parent; or
(B)any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order; and
(iii)   to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.
(5)In determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b)the effect that the making of the order would have on:
(i)     any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii)    the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
Proper needs of the child
(6)In having regard to the proper needs of the child, the court must have regard to:
(a)the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and
(b)any special needs of the child.
Income, earning capacity, property and financial resources
(7)In having regard to the income, earning capacity, property and financial resources of the child, the court must:
(a)have regard to the capacity of the child to earn or derive income, including any assets of, under the control of, or held for the benefit of, the child that do not produce, but are capable of producing, income; and
(b)disregard:
(i)     the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii)    any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.
(7A)In having regard to the income, property and financial resources of a parent of the child, the court must:
(a)have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the parent that do not produce, but are capable of producing, income; and
(b)disregard:
(i)     the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii)    any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.
(7B)In having regard to the earning capacity of a parent of the child, the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:
(a)one or more of the following applies:
(i)     the parent does not work despite ample opportunity to do so;
(ii)    the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;
(iii)   the parent has changed his or her occupation, industry or working pattern; and
(b)the parent's decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
(i)     the parent's caring responsibilities; or
(ii)    the parent's state of health; and
(c)the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.
Direct and indirect costs in providing care
(8)In having regard to the direct and indirect costs incurred by the carer entitled to child support in providing care for the child, the court must have regard to the income and earning capacity foregone by the carer entitled to child support in providing that care.
Subsections not to limit consideration of other matters
(9)Subsections (4) to (8) (inclusive) do not limit other matters to which the court may have regard.
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.

When the matter resumed on 22 April 2013, the husband’s father was recalled and his cross-examination continued. He was frequently unable to recall events which were put to him, nor could he confirm material recorded in accounts and documents.
When cross-examined about various transactions and whether they appeared in any of the accounts, the husband’s father was unable to remember or said he did not know. His evidence overall was not helpful and could not be considered reliable.
Mr G then gave evidence. He is a Chartered Accountant. He was involved in the management of HH Pty Ltd business for several years and dealt with the husband on occasions in relation to services provided by II Pty Ltd which was also known as Selwood Pty Ltd. He understood that the husband was currently employed by II Pty Ltd of which he was a director. This entity was brought into existence in January 2013. He said that the arrangement he made with the husband was that he would “look after statutory requirements” so that the husband’s business could continue. Acting on the advice and information supplied by the husband the witness produced invoices for work actually carried out by the husband. This involved work which was done for the event nights and service contracts.
The wife then gave her further oral evidence and was cross-examined at length. She was still working at AA Pty Ltd. She gave detailed evidence about money that she had borrowed from her family and bonuses she received from her employment.
Subsequently, the husband was recalled again to give further evidence. He confirmed that he was at that time in April 2013 working for II Pty Ltd and for JJ Pty Ltd.
When cross-examined he indicated that he had handed the businesses over to Mr G. Again, his evidence in relation to his knowledge of financial transactions and the information in his financial statement was not satisfactory. When he was referred to the motor vehicle 3 having been transferred, his evidence was that he had said it “was going to be”. He said his lawyers had been mistaken.
When asked about the Financial Statement he agreed that the motor vehicle 3 was not referred to in the Financial Statement. He said that his explanation was “it’s the lawyers who filled this out”. He also said it was a “typo”.
His answers in relation to cash received for various functions was again unsatisfactory, particularly as to whether all the cash had been banked in the appropriate accounts.

Conclusion on evidence

Carefully considering all of the evidence and in particular the unsatisfactory nature of the evidence of the husband and his father, and taking into account the much more reliable evidence of the wife and the witnesses called on her behalf, there is considerable doubt as to the full and frank disclosure by the husband of his true financial circumstances, his assets, income and earning capacity.
Where there is any difference in the weight to be given to the list of assets and their values provided by each of the parties, the Court prefers the evidence provided by the wife.
At the conclusion of the trial the parties agreed that the following assets should be brought into account:

(1)    O Street, Suburb I, NT - $1,350,000 (Joint)

(2)    N Street, Suburb P, NT - $500,000 (Joint)

(3)    L Street, Suburb M, NT - $500,000 (Joint)

(4)    Household contents - $8,945 (Joint)

(5)    Jet Ski & Trailer - $2,500 (Joint)

(6)    Quad bike - $3,000 (Joint)

(7)    Rent owed by Mr JJ (N Street, Suburb P) - $8,600 (Husband)

(8)    Z Pty Ltd Shares - $551 (Wife)

(9)    Motor vehicle 1- $14,850 (Wife)

(10)    Motor vehicle 2 2009 - $37,400 (Husband)

Total:   $2,425,846.00

The husband maintained at the conclusion of the trial that Selwood Pty Ltd had a value of $25,365. For the wife it was submitted that this was not known. Similarly, the husband sought to maintain that there was $2,290 in the NAB bank account of Selwood Pty Ltd and $120,442 owed by way of company tax to the Australian Taxation Office. The wife did not concede that this was the true situation of the company Selwood Pty Ltd.
The husband also asserted that Selwood Pty Ltd as trustee for the Q Trust had a debt due to it in relation to rent for E Street, Suburb T. The husband maintained that this was $6,750. The wife maintained that it was $8,000.
Under the heading described as “Notional Assets” the husband and wife both sought to bring in to account numerous items. Some of these were agreed.
The agreed items in relation to the wife were the following:

(1)    The sale of BHP Billiton Shares to meet agreed single expert costs and litigation expenses - $9,484.00 (W)

(2)    Legal fees paid from Z Pty Ltd redundancy (accept W’s amount) - $37,167.00 (W)

(3)    Interim distribution to the wife pursuant to Orders 5 July 2011 - $75,000.00 (W)

(4)    Interim distribution to the wife pursuant to Orders 19 April 2013 - $85,000.00 (W)

Total: $206,651.00 (A)

In relation to the husband the following were agreed:

(1)    5/11/10 – From NAB Home Loan account contrary to injunctive orders made 23 September 2010 - $459.00 (H)

(2)    8/11/10 – From NAB Home Loan account contrary to injunctive orders made 23 September 2010 - $459.00 (H)

(3)    11/12/10 – From NAB Home Loan account contrary to injunctive orders made 23 September 2010 - $2,251.00 (H)

(4)    25/3/11 – From NAB Home Loan account contrary to injunctive orders made 23 September 2010 - $470.00 (H)

(5)    9/8/11 – From NAB Home Loan account contrary to injunctive orders made 23 September 2010 - $474.00 (H)

(6)    24/2/12 – From NAB Home Loan account contrary to injunctive orders made 23 September 2010 - $2,606.00 (H)

(7)    Loan by husband to Mr KK - $13,000.00 (H)

(8)    Interim distribution Orders 5 July 2011 - $75,000.00 (H)

(9)    21/9/10 – Payment by Selwood Pty Ltd for legal fees - $13,000.00 (H)

(10)    1/12/10 – Internet BPay – PAWA – Suburb I - $129.47 (H)

(11)    15/2/11 – Internet BPay – PAWA – Suburb I - $267.00 (H)

(12)    24/5/11 – Transfer to 684991932 – Mr Selwood personal - $110.00 (H)

(13)    27/9/11 – Internet BPay – PAWA – Suburb I - $154.94 (H)

(14)    5/12/11 – Internet BPay – PAWA – Suburb I - $154.94 (H)

(15)    22/3/12 – Internet BPay – PAWA – Suburb I - $153.25 (H)

(16)    26/4/12 – Internet BPay – Darwin City Council Suburb I - $991.06 (H)

(17)    4/9/12 – Internet BPay – PAWA – Suburb I - $1,041.78 (H)

(18)    19/11/12 – Internet BPay – Darwin City Council – Suburb I - $543.00 (H)

(19)    18/12/12 – Internet BPay – Darwin City Council – Suburb I - $489.46 (H)

(20)    Interim distribution – orders 19/4/13 - $85,000.00 (H)

Total: $196,753.90 (B)

The parties agreed the valuation of the respective superannuation interest with the husband having Australian Super of $64,812. The wife has the following:

(1)    Z Pty Ltd Super - $118,683.00

(2)    Australian Super - $8,372.00

(3)    Super Directions Fund - $6,432.00

(4)    AXA Super - $5,858.00

Total Wife: $139,345.00

Total Superannuation Wife & Husband: $204,157.00

The parties agreed the liabilities to be brought into account as the National Australia Bank home loan of $494,968.67 and the debt to be paid to the husband’s parents pursuant to the Consent Order of $375,000, making a total of liabilities of $869,968.67.
There remains the dispute as to the other amounts provided by the husband’s parents, if any, and whether it should be treated as a gift, loan or a contribution on behalf of the husband.
The evidence provided by the husband and his father was not sufficient to establish that the husband and wife or the husband or other related entities owe any more money to the husband’s parents. Any contributions made by the husband’s parents has been offset by monies and assets retained and used by the husband’s parents.

The disputed items on the balance sheet

The wife seeks to bring into account cash/rent from January 2011 to December 2011 in relation to L Street, being 44 weeks at $410 per week or $18,040.
This is disputed by the husband. It is clear from the evidence which the Court has received that the husband has failed to account in an appropriate fashion for rent which should have been received during this period. If not brought into account as an asset, which in ordinary circumstances should have been received, this amount would otherwise be brought into account as one of the factors to be considered under s 75(2)(o). It is appropriate to include the amount as an asset of the husband.
In relation to the value of the Selwood Pty Ltd it is not appropriate to accept the husband’s evidence, or the evidence produced on his behalf, as to the value of this entity. Nor is it appropriate to simply bring into account as a debt the amount owed to the Australian Taxation Office. Overall the value of Selwood Pty Ltd in its own right and as trustee for the Q Trust needs to be considered in the context of the significantly unreliable evidence provided by the husband about his business dealings at the time the parties resided together and since the separation. These assets will be considered as a significant factor under s 75(2)(o).
The wife sought to bring into account as a notional asset, monies in the safe at separation. The husband maintained that there was $3,500 in the safe at separation, but this evidence was not accepted by the wife. The wife was unable to provide any accurate particulars of the monies in the safe at separation.
Taking into account the lack of reliable evidence given by the husband it is still not possible however to place a figure greater than $3,500 as the amount in the safe at separation which has been retained by the husband. This however can be offset against the claim that the husband wished to bring in early payments to the wife and the wife’s Z Pty Ltd account at separation. These are factors therefore appropriately offset against each other.
The disputed monies drawn from the loan account which the wife sought to bring into account as against the husband are factors which can also be considered under s 75(2)(o) in relation to the overall adjustment.
This also applies to monies which the wife claims were payable to the husband, but which the husband maintained were either not recoverable or were not loans.
The following assets, liabilities and superannuation are therefore to be considered.
Assets

O Street, Suburb I

$1,350,000 (J)

N Street, Suburb P

$500,000 (J)

L Street, Suburb M

$500,000 (J)

Household contents LMPA Valuation

$8,945 (J)

Jet ski and trailer

$2,500 (J)

Quad bike

$3,000 (J)

Rent owed by Mr JJ (N St, Suburb P)

$8,600 (H)

Z Pty Ltd shares

$551.00 (W)

Motor Vehicle 1

$14,850 (W)

Motor Vehicle 2

$37,400 (H)

Cash rent January 2011 to December 2011 – L Street – 44 weeks @ $410 pw

$18,040 (H)

Subtotal:

$2,443,886

Agreed Notional Assets Wife (A)

$206,651

Agreed Notional Assets Husband (B)

$196,753

Total:

$2,847,290

Liabilities

National Australia Bank home loan 597644692

$494,968.67

Court ordered debt by consent to husband’s parents

$375,000.00

Total Liabilities:

$869,968.67

Net Assets:

$1,977,321.33

Superannuation

Husband’s Australian Super

$64,812

Wife’s Z Pty Ltd Super

$118,683

Wife’s Australian Super

$8,372

Wife’s Super Directions Fund

$6,432

Wife’s AXA Super

$5,858

Total Superannuation:

$204,157

Total of Net Assets and Superannuation (including agreed Notional Assets):

$2,181,478.33

In the joint balance sheet provided by the parties counsel on 7 October 2013 (after the sale of E Street and the reduction of the mortgage and distribution of funds) the wife listed under “notional assets of the husband” some $874,000. The husband only conceded notional assets totalling $203,252.30. Many of these included withdrawals from the NAB Home Loan Account, contrary to the injunctive orders of 23 September 2010.
The overall evidence clearly indicates that I should accept the evidence of the wife rather than that of the husband. There is however still an issue which requires the wife to prove the existence of an asset before it can be taken into account.
I am therefore not in a position to declare these disputed items as assets in existence for the purpose of the property settlement between the parties, however, I am satisfied that there has been significant use of funds by the husband and significant failure to account by the husband for the use of a large amount of funds, which are factors to be brought into account under s 75(2)(o).

Conclusions based on evidence

Following upon the decision of Stanford (Supra) it is necessary to decide whether any order is just and equitable in these circumstances. The parties separated in 2010. There are joint assets which need to be divided and adjustments made for assets retained by the parties and their needs.
It is just and equitable to make orders dividing up the assets and liabilities of the parties following the principles set out in s 79.
The initial contributions of the parties are a factor in the overall determination. The husband owned the Suburb CC property prior to the relationship. It was subject to a mortgage and a loan provided by his parents. These debts were paid when the property was sold.
Throughout the relationship both parties earned income and made savings which were used to invest in other properties. Each party also contributed to the welfare of the family as homemaker and parent. The husband provided assistance whilst the wife worked full-time. The wife also provided extra family contributions when the husband attended to his duties in the industry and carried on the business and engaged in event nights
During the relationship there was some assistance provided by the husband’s parents which enabled the parties to carry out improvements to the properties, and in particular, the former matrimonial home.
I accept the evidence on behalf of the wife that there were significant amounts paid to the husband’s parents, either by way of cash or credits which were not otherwise disclosed. I also accept the evidence that the husband provided a motor car for the use of his parents.
The husband’s father admitted to collecting rent from properties which was not brought into account.
I do not accept the evidence of the husband or his father that there were sums payable to the husband’s parents from any profit made on the sale of H Street, J Town.
Considering the unsatisfactory evidence of the husband and of his father, I am not satisfied that any debt remains payable by either of the parties to the husband’s parents, nor that there was any remaining loan between either of the parties and the husband’s parents.
Overall the contributions made by the husband’s parents need to be seen in the context of the cash transactions and the failure to account for payment of other monies.
Since the parties’ separation the husband has had the free use of the former matrimonial home. This considerable financial benefit for the husband needs to be compared to the costs and expenses which the wife has paid.
A significant factor to be taken into account is the husband’s failure to comply with orders, such as the payment of the mortgage on the former matrimonial home for a considerable period. Another significant factor is the unreliable evidence of the husband and the husband’s failure to disclose his assets and financial resources.
Taking into account the authorities referred to in Gould (Supra) it would be appropriate to “readily conclude the asset pool is greater than demonstrated”. It is also appropriate therefore to “to err on the side of generosity” to the wife who has been disadvantaged by the husband’s lack of candour. A significant adjustment in favour of the wife is therefore appropriate.
The husband retains the assets which are agreed as attributable to him as notional assets which total $196,753.90. He also retains the $18,040 rent received and $8,600 and Toyota Lexus $37,400 and superannuation of $64,812. This totals $260,793.90.
There remains the National Australia Bank Home Loan debt to be brought into account at $494,968.67. The Consent Order provided that debt to the husband’s parents of $375,000 be paid “in accordance with the reverse of the adjustments” found.
I am satisfied that the contributions, both financial and otherwise, of the parties, taking into account the known assets and the agreed notional assets should be considered equal.
The husband has taken steps to reduce the value of his business by transferring, or purporting to transfer, his business interests after the proceedings commenced and indeed after the trial commenced. There is sufficient evidence however to indicate that he has a significant capacity to continue earning an income from his businesses and organising profitable event nights and similar functions.
The wife continues to have an ability to earn income from her current employment or from employment of a similar nature.
The orders proposed in relation to the children will provide for the parties to have shared care and therefore similar responsibilities concerning the future care and upbringing of the children.
It is also necessary to bring into account the amounts paid by the wife for medical travel and accommodation associated with B’s treatment in August 2013 and February 2014. The wife maintains that the husband has not contributed to the costs which she has incurred, notwithstanding the orders of 15 April 2013. The amounts she seeks to recover total approximately $6,000.
As previously indicated there are significant factors to be considered under s 75(2)(o). One of the facts and circumstances of this case that is significant is the husband’s treatment of the various assets, including cash received, and his failure to provide satisfactory evidence and full disclosure of all relevant assets and explanation for the use of large amounts. Following the principles of Gould & Gould (Supra) it is appropriate to make an adjustment in favour of the wife to provide that the wife receive a further 20 per cent of the known and admitted assets. Whilst this is a significant proportion, it is also apparent from the evidence that there are significant anomalies and discrepancies in the husband’s evidence concerning the assets and considerable confusion caused by his unreliable evidence.
It is therefore appropriate for this 20 per cent adjustment to be made providing for the wife to receive 70 per cent and the husband 30 per cent of the known net assets.
Seventy per cent of the net assets (including superannuation and the debt to the husband’s parents) is $1,527,035.
Taking into account all of the evidence, the provisions of s 79 of the Act and the overall circumstances, I am satisfied that it is just and equitable that there be such a distribution.
The wife will retain, Z Pty Ltd shares, $551; motor vehicle 1, $14,850; the “notional” assets, $206,651 and her superannuation, $139,345. This totals $361,397.
She also seeks to retain the household contents, $8,945; Jet Ski and Trailer, $2,500 and Quad Bike $3,000; sub-total $14,445.
The wife therefore will retain the total sum of $375,842.
The Consent Order concerning the husband’s parents’ debt requires the wife to pay 30 per cent of that debt or $112,500.
The wife originally sought to retain all of the real estate remaining, namely, O Road, Suburb I property, the L Street, Suburb M property and the N Street, Suburb P property and take over the mortgage from the National Australia Bank.
If the wife still seeks to retain the three properties (total value $2,350,000) and she refinances the National Australia Bank loan which then stood at $494,968.67, she would be retaining the net value of those properties at $1,855,031.33. She would also be retaining her other total assets and superannuation of $375,842, making a total of $2,230,873.33. She would also be required to pay the sum of $112,500 to the husband’s parents leaving her with net assets of $2,118,373.33.

The wife’s entitlement of 70 per cent of the net assets (which takes into account the notional assets and superannuation) is $1,527,035.
This would therefore require the wife to pay the husband $591,338.33.
If the wife seeks to retain only the former matrimonial home at O Road, Suburb I (valued at $1,350,000) less the mortgage debt ($494,968.67) leaving a net $855,031.33 together with her other assets and superannuation ($375,842) less the sum payable to the husband’s parents ($112,500) she would retain $1,118,373.33. She would thus be entitled to at least a further $408,661.67, or an adjustment which achieved an overall 70/30 per cent division taking into account any adjustment for the sale price and costs of sale of the properties.
Taking into account the requirement that orders be just, equitable and appropriate I consider it necessary to give the wife the option to raise the sum necessary to acquire all three properties and in the alternative to raise sufficient funds to retain as her own asset the O Road, Suburb I property.
If she is unable to do either the real estate should be sold, the mortgage paid and the proceeds divided to achieve the overall 70/30 per cent division. This would be achieved by taking into account the other items the wife retains ($375,842) less payment due to the husband’s parents ($112,500) leaving a net $263,342 and paying her the balance of 70 per cent adjusted for the increase or losses on sale. Seventy per cent of $1,527,035 less $263,342 equals $1,263,693.
Taking into account all of the factors, and in particular, the provisions of s 79 I am satisfied that such orders are just and equitable in all of the circumstances.

I certify that the preceding two hundred and twenty nine (229) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 18 July 2014.

Associate:

Date: 18 July 2014

O Street, Suburb I	$1,350,000 (J)
N Street, Suburb P	$500,000 (J)
L Street, Suburb M	$500,000 (J)
Household contents LMPA Valuation	$8,945 (J)
Jet ski and trailer	$2,500 (J)
Quad bike	$3,000 (J)
Rent owed by Mr JJ (N St, Suburb P)	$8,600 (H)
Z Pty Ltd shares	$551.00 (W)
Motor Vehicle 1	$14,850 (W)
Motor Vehicle 2	$37,400 (H)
Cash rent January 2011 to December 2011 – L Street – 44 weeks @ $410 pw	$18,040 (H)
Subtotal:	$2,443,886
Agreed Notional Assets Wife (A)	$206,651
Agreed Notional Assets Husband (B)	$196,753
Total:	$2,847,290

National Australia Bank home loan 597644692	$494,968.67
Court ordered debt by consent to husband’s parents	$375,000.00
Total Liabilities:	$869,968.67
Net Assets:	$1,977,321.33

Husband’s Australian Super	$64,812
Wife’s Z Pty Ltd Super	$118,683
Wife’s Australian Super	$8,372
Wife’s Super Directions Fund	$6,432
Wife’s AXA Super	$5,858
Total Superannuation:	$204,157
Total of Net Assets and Superannuation (including agreed Notional Assets):	$2,181,478.33