Simiko & Kellidis (No 2)
[2022] FedCFamC2F 982
Federal Circuit and Family Court of Australia
(DIVISION 2)
Simiko & Kellidis (No 2) [2022] FedCFamC2F 982
File number(s): CAC 1879 of 2019 Judgment of: JUDGE MANSFIELD Date of judgment: 28 July 2022 Catchwords: FAMILY LAW – PARENTING – Mother to have sole parental responsibility – Father demonstrates rigid views and lacks insight into effects on children of his uncompromising attitudes and behaviour – How to best promote meaningful relationship between children and the father – Eldest child to spend time with the father in accordance with her wishes – Reduction in alternate weekend time – Maintenance of mid-week time against ICL’s and mother’s proposed orders.
FAMILY LAW – CHILD SUPPORT – Identifying distinction between departure orders under Part 7 Division 4 of the Child Support (Assessment) Act 1989 (Cth) and orders under Division 5 for provision of child support otherwise than in the form of periodic amounts – Section 124 as a source of power in absence of an order under section 117 – Lightfoot v Hampson (1996) FLC 92-663 followed – Ivanovic v Ivanovic (1996) FLC 92-689 considered – Test for ‘special circumstances’ in section 125(2) met with respect to school fees but not for orthodontic expenses - Gyselman and Gyselman (1992) FLC 92-279 followed – Order for husband to provide security for payment of child support - Malcher & Malcher [2016] FamCA 1063 followed.
FAMILY LAW – PROPERTY – Effect of husband’s failure to comply with procedural orders – Effect of husband’s non-compliance with disclosure obligations – Weir and Weir (1993) FLC 92-338 applied – Parties own contributions pale into insignificance compared to amounts advanced by the wife’s father and the husband’s inheritance from his father – necessary to adopt asset-by-asset approach to achieve a just and equitable result.
Legislation: Child Support (Assessment) Act 1989 (Cth) ss 4, 99, 117, 121, 122, 123(1)(a), 123(1)(b), 124, 125, 141
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2A), 60CC(2) 60CC(2)(a), 60CC(2)(b), 60CC(3), 61B, 61C, 61D, 61DA, 61DAC, 61DB, 65D, 65DAA, 65DAB, 65DAC, 75, 79, 102NA, 102NB
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r.1.33(2)(c), r.5.01
Cases cited: Babett & Falconer (2015) FLC 98-067
Dickons & Dickons [2012] FamCAFC 154
Dovgan & Dovgan [2021] FamCA 306
G & C [2006] FamCA 994
Gyselman and Gyselman (1992) FLC 92-279
Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143
Ivanovic v Ivanovic (1996) FLC 92-689
Jurchenko & Foster (2014) FLC 93-598
Lightfoot v Hampson (1996) FLC 92-663
Loddington & Derringford (No 2) [2008] FamCA 925
Malcher & Malcher [2016] FamCA 1063
McCall and Clark (2009) FLC 93-405
Norbis v Norbis [1986] HCA 17
Perrin & Perrin (No 2) [2018] FamCAFC 122
Savery and Savery (1990) FLC 92-131
Stanford v Stanford (2012) 247 CLR 108
Weir and Weir (1993) FLC 92-338
Division: Division 2 Family Law Number of paragraphs: 203 Date of last submission/s: 13 May 2022 Date of hearing: 4-6 May 2022 Place: Canberra Counsel for the Applicant: Ms Curran Solicitor for the Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr Stagg ORDERS
CAC 1879 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SIMIKO
ApplicantAND: MR KELLIDIS
RespondentINDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE MANSFIELD
DATE OF ORDER:
28 July 2022
PARENTING
THE COURT ORDERS THAT:
Parental Responsibility
1. The mother have sole parental responsibility for the children:
(a)X born in 2008;
(b)Y born in 2010; and
(c)Z born in 2013.
2.Notwithstanding Order 1, the mother shall inform the father about any major long term decision she intends to make before making it, and shall take into account the father’s views about any such decision.
Live With
3.The children live with the mother.
Time with the Father
4.The child X spend time with and communicate with the father in accordance with her wishes.
5.The children Y and Z spend time with the father:
(a)Each alternate weekend, from after school or 3.00pm on Friday to the commencement of school or 9:00am on Monday;
(b)From the conclusion of school each Wednesday until 7:30pm with Y spending time with the father one week, and Z spending time with the father on the alternate week.
(c)For the purposes of Order 5(b), the father is responsible for delivering, or arranging for delivery, of the children to the mother, or as directed by the mother, at the end of that time.
Holidays
6.Order 5 is suspended during school holiday periods.
7.The children Y and Z spend time with the parties during school holiday periods as follows:
(a)For the Terms 1, 2 and 3 school holiday periods commencing in 2022 and each alternate year thereafter, the first half of each school holiday period with the mother and the second half with the father; and
(b)For Terms 1, 2 and 3 school holiday periods commencing in 2023 and each alternate year thereafter, the first half of each school holiday period with the father and the second half with the mother.
(c)For end of year (Term 4) school holiday periods commencing in 2022 and each alternate year thereafter, in two week blocks with each parent commencing with the mother;
(d)For the end of year (Term 4) school holiday periods commencing in 2023 and each alternate year thereafter, in two week blocks with each parent commencing with the father;
(e)For the purpose of Orders 7(c) and 7(d) in the event the Term 4 school holiday period exceeds eight weeks then the following shall apply:
(i)For the first eight weeks, the children shall spend time with each parent in accordance with Orders 7(c) and 7(d) above; and
(ii)The children shall spend the remainder of the school holiday period equally with both parents, and for that purpose the number of remaining nights shall be divided by two with each parent spending an equal number of nights with the children, and where there is an odd number of nights, the parent who did not spend Christmas Eve with the children during that school holiday period shall spend the additional night with the children.
8.Failing agreement to the contrary:
(a)School holidays are defined to commence at 3.00pm on the Friday that is or follows the last day of the relevant school term;
(b)School holidays are defined to conclude at 3.00pm on the last Friday before the first day of the following school term;
(c)The midpoint of the school holidays is 3.00pm on the middle Friday if the holiday period has an even number of weeks and 3.00pm on the middle Tuesday if the holiday period has an odd number of weeks.
AND IT IS NOTED
For the purposes of school holidays, the last weekend of the school holiday period is excluded from the holiday period. The children shall spend that weekend with whichever parent they did NOT spend time with for the last weekend of the preceding school term, such that those weekends follow the alternate weekend arrangement prescribed by Order 4.
Special Days
Christmas
9.At Christmas, failing agreement to the contrary, the children Y and Z spend:
(a)In 2022 and each alternate year thereafter, from 9.00am on 24 December until 3.00pm on 25 December with the mother and from 3.00pm on 25 December until 5.00pm on Boxing Day with the father; and
(b)In 2023 and each alternate year thereafter, from 9.00am on 24 December until 3.00pm on 25 December with the father and from 3.00pm on 25 December until 5.00pm on Boxing Day with the mother.
Easter
10.Notwithstanding any other Order the children Y and Z spend:
(a)The Greek Orthodox Easter Holy Week, from 9.00am on Greek Orthodox Easter Monday and concluding at 9.00am on the following Monday with the mother;
(b)Christian Easter, from 9.00am on Good Friday until 5.00pm on (Christian) Easter Monday with the father;
(c)In the event Order 10(a) causes the children or either of them to miss a weekend in their father's care, they shall have makeup time in his care the following weekend instead.
11.In the event Greek Orthodox Easter coincides with Christian Easter, Order 10(a) shall apply, and Order 10(b) shall be suspended to the extent of its inconsistency.
Birthdays
12.On each of the children’s birthdays, the children Y and Z spend time with the parent they are not living with that night from 3.00pm until 7.00pm.
13.The children spend time with the mother:
(a)From 9.00am until 8.00pm on the mother’s birthday;
(b)From 9.00am until 8:00pm on Mother’s Day
14.The children Y and Z spend time with the father:
(a)From 9.00am until 8.00pm on the father’s birthday;
(b)From 9.00am until 8:00pm on Father’s Day
Other Special Occasions
15.In the event either parent wishes to take the children to important events or occasions such as weddings, funerals, milestone birthdays and christenings, and such occasion falls during the other parent’s time with the children pursuant to these Orders, the following shall apply:
(a)The parent seeking to take the children to such event/occasion shall provide the other parent with:
(i)As much notice as possible, and in any event at least 14 days prior to the date of the event/occasion;
(ii)A proposal for makeup time equivalent to the time that the other parent would have spent with the children pursuant to these Orders, with such time being made up as close to possible as the time missed by the other parent; and
(iii)If available, a copy of the invitation.
(b)The other parent shall respond within 7 days of receiving notice pursuant to the preceding Order, advising as to whether or not they provide their consent, and for that purpose, neither parent shall unreasonably refuse consent.
16.The mother be permitted to take the children to her cousin, Ms C’s wedding in 2022, and for that purpose the following shall apply:
(a)In the event the wedding falls on the weekend that the father has the children pursuant to Order 5, then the father’s time that weekend shall be suspended and the children shall remain in the mother’s care from Friday to Sunday that weekend; and
(b)The time that the father missed with the children shall be ‘made up’ by the children spending time with the father on the weekend immediately following the wedding in 2022, at times consistent with Order 5.
Other Provisions
17.Each parent is restrained by injunction from:
(a)Discussing any aspect of their divorce or these proceedings with the children or in front of the children;
(b)Denigrating or criticising the other to the children or in front of the children.
18.The parents will keep the other informed in a timely way of the details and particulars of the following in respect of the children:
(a)Any medical appointment;
(b)Any social invitation or engagement:
(c)Any school related event or meeting (including, for example, interviews and assemblies);
(d)All extracurricular activities:
19.Each parent shall inform the other as to the name and contact details of any doctor, medical practitioner or similar professional that consults or treats any of the children, and shall authorise that person to release all information that is ordinarily released to parents to the other parent as well as themselves.
Sharing of information
20.Each party is hereby authorised to obtain from the children’s school all notices, letters, school reports, photographs and other documents pertaining to the children’s education and attend any parent/teacher interviews and other events to which parents are invited.
CHILD SUPPORT
IT IS NOTED THAT:
A.Orders 2-3 of Annexure A of the Orders made 25 November 2021 remain of force and effect; and
B.The following orders are made pursuant to sections 124 and 141 of the Child Support (Assessment) Act 1989 (Cth).
THE COURT FURTHER ORDERS THAT:
21.Order 2 made on 16 April 2021 is discharged.
22.The mother is to pay all of the school fees for the education of the children for the 2022 school year as soon as practicable.
23.The mother is to provide to the father and to the solicitor acting on the sale of the property at D Street, Suburb E, receipts or proof of payment in compliance with the preceding order.
24.By this order, upon completion of the sale of the property at D Street, Suburb E, the father is taken to have authorised and directed the solicitor acting on the sale of the property for the vendors to cause a sum equivalent to 50% of the 2022 school fees paid by the mother to be paid from his share of the net sale proceeds (after discharge payment of any secured creditor, costs of sale and usual adjustments on sale) to the solicitors for the mother.
25.The solicitors for the mother are, immediately upon receipt of such amount, to pay or cause to be paid such amount to the mother or at the mother’s direction.
26.The father must provide child support for Z otherwise than in the form of periodic amounts paid to the mother, namely, by payment to B School half of all school fees as and when they fall due for and from the 2023 school year for the education of Z.
27.The father must provide child support for X otherwise than in the form of periodic amounts paid to the mother, namely, by payment to F School half of all school fees as and when they fall due for and from the 2023 school year for the education of X.
28.The father must provide child support for Y otherwise than in the form of periodic amounts paid to the mother, namely, by payment to F School half of all school fees as and when they fall due for and from the 2023 school year for the education of Y.
29.The child support provided pursuant to these orders is not to be credited against a liability under any relevant administrative assessment of child support.
30.By way of security for the payment of child support by the father, the father is to pay to the mother, the sum of $150,000 from his share of the proceeds of sale of the property at D Street, Suburb E, and the mother is to cause such amount to be paid into an interest bearing account in a financial institution of the mother’s choosing, in the name of the mother (“the child support account”).
31.The mother is restrained from withdrawing any amount from the child support account except as provided for in the following Order.
32.In the event the father is in arrears of his obligation to pay child support pursuant to the preceding orders for a period in excess of one calendar month, the mother is at liberty to withdraw from the child support account the amount of the arrears then outstanding.
33.Upon the happening of a child support terminating event for the last of the children, the balance of funds held in the child support account, including any interest earned, is to be paid to the husband.
34.The wife is to cause a copy of these orders to be served upon the Child Support Registrar as soon as practicable.
PROPERTY
THE COURT FURTHER ORDERS THAT:
35.The wife be, as against the husband, the sole legal and beneficial owner of all of her interest in the property at G Street, Suburb H in the Australian Capital Territory (G Street, Suburb H);
36.The husband be, as against the wife, the sole legal and beneficial owner of all of his interest in the property at D Street, Suburb E in the Australian Capital Territory (D Street, Suburb E);
(a)The parties have liberty to apply, with 7 days’ notice, with respect to the sale of D Street, Suburb E.
37.The wife is declared to be solely liable for, and hereby indemnifies the husband against any liability for:
(a)NAB Bank Loan account …97, secured by mortgage registration number …43, registered against the G Street, Suburb H property;
(b)The amount owing as at the date of these Orders by her, by the husband, or by her and the husband jointly, to the wife’s father, Z, or the wife’s parents.
38.That within 7 days, the husband removes the caveat registration number …29 registered by him against the G Street, Suburb H property. If he fails to do so then a Judicial Registrar of the Canberra Registry of this Court is appointed to execute any deed or instrument in the name of the husband, and do all acts and things necessary, to give validity and operation to the deed or instrument specifically including executing a Withdrawal of Caveat form in those terms.
39.Except as otherwise set out in these Orders, the wife and the husband each be, as against the other, the sole legal and beneficial owner of all property in their name as at the date of these Orders, or where there is no legal title, in their possession as at the date of these Orders;
40.The wife and the husband each pay, be liable for, and indemnify the other against liability for, any debt in that party’s name as at the date of these Orders.
41.Without limiting the preceding Order, the wife be the sole legal and beneficial owner of all of her member balance in the Kellidis Superannuation Fund.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Simiko & Kellidis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSFIELD
INTRODUCTION
The applicant, Ms Simiko (née Kellidis) (‘the mother’) (‘the wife’) and the respondent, Mr Kellidis (‘the father’) (‘the husband’) are the parents of three children - X (born in 2008, currently 13 years of age), Y (born in 2010, currently 12 years of age) and Z (born in 2013, currently 9 years of age).
The parties were married and commenced cohabitation in 2007. The parties separated on 1 June 2019 and remained living under the one roof until 1 or 9 July 2019 when the respondent moved out of the former matrimonial home. The applicant and the children remain living in the former matrimonial home.
There are three aspects to these proceedings – parenting, child support and property. Orders are made under each of these headings and the reasons for them are likewise set out under each of these headings.
Procedural Background
Applications in the Case
On 19 September 2019, the applicant filed an initiating application relating to property only. On 25 October 2019, the respondent filed a response. On 22 January 2020, the applicant amended the application to include parenting orders.
On 7 May 2020, the applicant filed an application in a case seeking the appointment of a single expert for preparation of a Family Report. On 21 May 2020, the application was resolved by way of consent orders.
On 17 August 2020, the applicant filed a further amended initiating application regarding interim arrangements for the children. After a contested hearing on 24 August 2020, interim consent orders were entered into providing for: equal shared parental responsibility for the children; the children to live with the mother and spend time with the father each alternate weekend; and, for each alternate week to have one evening with the father. (These orders reflect the current care arrangements for Y and Z). The matter was listed for final hearing on a date to be advised and trial directions were made.
On 14 September 2020, the respondent became self-represented and remained so at final hearing.
The parties were divorced on 22 September 2020.
On 14 December 2020, the applicant filed a second application in a case regarding child support. This was followed by a third application in a case filed on 8 April 2021 in relation to change in time spent with the father on weekends. A contested hearing was held on 16 April 2021 dealing with these second and third applications in the case. Orders were made on 16 April 2021 in the applicant’s favour ordering the father to pay child support and rearranging the time spent with the father so that the children were able to attend Greek Orthodox Easter with the mother.
On 11 May 2021, the applicant filed a fourth application in a case after X ceased spending time with her father in accordance with the interim orders of August 2020. On 13 July 2021, the applicant filed a fifth application in case seeking enforcement of outstanding payments by way of sale of real property by the father. On 11 November 2021, the applicant filed a sixth application in a case regarding Z’s enrolment at B School. These applications were heard on 25 November 2021. Consent Orders were entered into following a contested hearing, made primarily in line with the applicant’s applications, that X can spend time with her father in accordance with her wishes and ordering the father to pay the outstanding school fees upon sale of the property. It was further ordered that the parents take all necessary steps to enrol Z at B School for the 2022 school year. The parties also consented to an order for themselves and the children to participate in non-reportable family therapy.
On 17 December 2021, Orders were made in Chambers listing the matter for final hearing before me for three days, commencing on 4 May 2022.
On 21 April 2022, the applicant filed a seventh application in a case, regarding the appointment of a single expert property valuer. This issue came before me on 26 April 2022 and Orders were made appointing a single expert to prepare a report on the current value of the parties’ two real properties.
Final hearing
On 4 May 2022 the matter came before me for final hearing. The respondent had not filed any trial material. At the commencement of the hearing, the respondent complained that he needed more information from the applicant, that he had asked for it over two or three years and that he felt intimidated at the hearing. Counsel for the applicant indicated any application to adjourn the hearing would be opposed. The respondent indicated that he had no evidence in support of his allegations of non-disclosure. The opening discussions did not become an application by the applicant to adjourn the hearing.
For the purposes of ensuring as far as is possible that procedural fairness was afforded to all parties and in order to ensure a fair trial, I explained to the applicant the trial process and the order of witnesses, his right to cross-examine the witnesses and the importance of remaining calm and respectful in the ostensibly stressful process. I brought to the applicant’s attention sections 60B, 60CC, 75 and 79 of the Family Law Act 1975 (Cth) (“the Act”) and provided hard copies of those sections to the applicant.
The respondent advised that he intended to cross-examine the applicant so the applicability of section 102NA of the Act was considered. The mandatory protections did not apply. Counsel for the applicant advised that the applicant was content to be cross-examined personally by the respondent and did not require any special measures. No further enquiry into the application of s 102NA(1)(c)(iv) or s 102NB was made.
EXHIBITS AND OTHER MATERIAL RELIED UPON
The following exhibits were received as evidence:
Exhibit Number
Description
A1
Affidavit of Ms Simiko dated 30 March 2022
A2
‘Parenting Arrangements Term 2 2021 and supporting documents’ – 11 pages
A3
NAB Bank Statement #6 - 1 page
A4
Tender bundle regarding non-disclosure by the respondent
A5
Letter from applicant’s lawyers to applicant regarding USB
A6
Affidavit of Z dated 30 March 2022
A7
Email correspondence between solicitors- 3 pages ending 6 August 2019
R1
Affidavit of Mr Kellidis dated 10 February 2020 (limited to use in the parenting proceedings only)
R2
Affidavit of Mr Kellidis dated 17 August 2020 (limited to use in the parenting proceedings only)
C1
Family Report by Ms J dated 15 July 2020
C2
Affidavit of Ms J dated 29 April 2022
C3
Valuation report of G Street, Suburb H, 2 May 2022 of Mr K
C4
Valuation report of D Street, Suburb E, 2 May 2022 of Mr K
Other Material relied upon by the parties included:
By the Applicant
Financial Statement filed 30 March 2022
Case outline filed 28 April 2022
Clean Minute of Orders Sought
By the Respondent
Amended Response filed 17 August 2020
By way of updated final orders sought:
“What I want from parenting orders” – 1 page
“Property” – 1 page
By the Independent Children’s Lawyer
Case outline filed 28 April 2022
Minute of proposed orders of the ICL
Respondent’s non-compliance with trial directions
At the close of the applicant’s case, the issue of the respondent’s failure to comply with the trial directions was revisited. The solicitor for the applicant indicated that he wanted to adduce evidence in chief. The independent children’s lawyer’s (‘the ICL’) position on the parenting proceedings was that he was opposed to the applicant adducing fresh evidence, there was relevant and contemporaneous evidence from within the family reports, and that there were previous affidavits filed in the proceedings by the father that could be relied upon by the father.
The applicant’s position was that the court ought to determine the proceedings as if it were undefended (as was foreshadowed at the commencement of the hearing). After some discussion as to the appropriate course, the respondent only then disclosed that he did not actually have any fresh evidence in chief prepared. The focus then turned to his previous affidavits. Ultimately, the applicant made an application for an order pursuant to rule 1.33(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 that the court determine the proceeding as if it were undefended.
For reasons given ex tempore, it was determined that:
(a)For use within the parenting proceedings only, the father was granted leave to adduce as evidence in chief two affidavits previously filed in the proceedings;
(b)In the property proceedings, the applicant’s application was granted to the extent that the respondent was not permitted to adduce any evidence in chief;
(c)The proceedings would not be determined wholly undefended in that whilst the respondent was not permitted to adduce evidence in chief in the property proceedings, by that stage he had cross-examined the applicant’s witnesses, he would cross-examine the family report author, he would be cross-examined, and he would make submissions.
THE PARENTING PROCEEDINGS
The Orders sought
The mother proposed orders which included that:
(a)The mother have sole parental responsibility and the children live with her;
(b)Y and Z spend time with the father:
(i)During school terms, alternate weekends from after school on Friday to 7.30pm on Sunday.
(ii)During school holidays, for half of the time;
(iii)Various times on various special occasions;
(c)The parties be restrained from changing the children’s schools;
The ICL proposed orders in accordance with the mother but for:
(a)X to spend time with the father in accordance with her wishes (whereas the mother was silent on X’s time with the father);
(b)That the mother be required to notify and consider any views of the father prior to making a decision in exercise of parental responsibility;
(c)The alternate weekend time conclude at the commencement of school on Monday rather than 7.30pm on Sunday.
(d)Y and Z each spend additional time with the father during school terms on Wednesdays from after school to 7.30pm in alternating weeks (Y one week, and Z the next) provided that the father first provides:
(i)A medical certificate from his General Practitioner that clears the father for any form of return to work; and
(ii)Proof of attendance at no less than four appointments with a registered psychologist.
(e)The ICL is silent on the restraint with respect to changing the children’s school.
In his Amended Response filed on 17 August 2020, the father proposed orders that included:
(a)There be equal shared parental responsibility;
(b)The children, including X, live with him and spend alternative weekends and Wednesdays after school with the mother during school terms and half the time during school holidays.
At the close of the applicant’s case, the father produced a document titled “What I want from parenting orders” which described:
(a)There be equal shared parental responsibility;
(b)The children, including X, live with each parent on a week about basis.
(c)Y and Z each spend Wednesdays from after school to 8.00pm in alternating weeks with the other parent (Y one week, and Z the next).
Issues
Distilled from the parties’ competing proposals, the parenting issues to be determined are:
(1)Whether the parents have equal shared parental responsibility or whether the mother have sole parental responsibility.
(2)What, if any, separate arrangements should be made for X.
(3)Whether the children live week about or with the mother.
(4)If the children live with the mother, what time they are to spend with the father.
(5)Whether or not the child support departure order is made.
Parenting Proceedings – Legal Principles.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII. These are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 65D of the Act gives the Court the power to make such parenting orders as it thinks proper, having regard to section 61DA and section 65DAB of the Act. Section 60CA provides “In deciding whether to make a particular parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration.”
Parental responsibility
Division 2 of Part VII of the Act is titled ‘Parental responsibility’ and deals with the concept of parental responsibility including (a) what parental responsibility is; and (b) who has parental responsibility.
Section 61B provides that parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Section 61C provides that each of the parents of a child who is not 18 has parental responsibility for the child, despite any changes in the nature of the relationships of the child’s parents, but is subject to any order of a court for the time being in force.
61D provides that a parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any): (a) expressly provided for in the order; or (b) necessary to give effect to the order.
Further, the effect of a parenting order that provides for shared parental responsibility is set out at section 65DAC where the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child. The order is taken to require the decision to be made jointly by those persons which requires each of those persons: (a) to consult the other person in relation to the decision to be made about that issue; and (b) to make a genuine effort to come to a joint decision about that issue.
In section 4 – Interpretation, “major long-term issues”, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(e)the child’s education (both current and future); and
(f)the child’s religious and cultural upbringing; and
(g)the child’s health; and
(h)the child’s name; and
(i)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence. The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
(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.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC(2)(b) of the Act.
In Loddington & Derringford (No 2) [2008] FamCA 925 Cronin J held at [169] that:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
In Loddington Cronin J further added at [173] that an assessment of the benefit to the child must be made according to ‘the peculiar facts of what the parents are offering.’
In Jurchenko & Foster (2014) FLC 93-598 at 79,420, the Court noted at [123] that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
In McCall and Clark (2009) FLC 93-405 at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a “prospective” one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or violence.
The question that may be asked is whether there is a risk of physical and/or psychological harm in the child spending time with either parent. If so, the next question is whether or not the risk is an unacceptable risk.
Additional considerations
Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard. To assist analysis, those considerations can conveniently be grouped under the following headings:
Issues relating to the children – their views, level of maturity, culture and relationships:
·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
Issues of family violence:
·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
Effect of change:
·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
Practical difficulty of implementation:
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Avoiding further proceedings:
·Sub-section (3)(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.
Other relevant matters:
·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
Consideration – Parenting Proceedings
Parental responsibility
Pursuant to section 61DB of the Act, in making a final parenting order I disregard the allocation of equal shared parental responsibility made in the interim order of 24 August 2020.
That a parenting order is to be made triggers s 61DA of the Act which applies a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility for the children. Family violence is not an issue in this case. The presumption is, however, rebutted as I am satisfied on the following grounds that it would not be in the best interests of the children for the parents to have equal shared parental responsibility for the children:
(a)Since 24 August 2020 when the order was made by consent for the parents to have equal shared parental responsibility, there have been six interlocutory applications with respect to parenting matters including payment of school fees and Z’s enrolment at school;
(b)The parents’ disinclination or inability to attend family therapy despite orders to do so being made by consent on 25 November 2021;
(c)The mother intends for the children to remain enrolled at their current private schools and the father believes they should attend public schools unless and until he can afford to contribute to the school fees;
(d)The parents do not have any kind of effective communication. They have different parenting styles and different views about parenting; and
(e)The absence of any evidence demonstrating that the parents have, could or would comply with the mandatory requirements in section 65DAC that the parties jointly make decisions about major long-term issues in relation to the children.
The grounds in support of the order for the mother to have sole parental responsibility are:
(a)Notwithstanding the communication difficulties with the father since separation and certainly since 24 August 2020, the mother has been the primary carer for the children and has discharged her responsibilities in the exercise of parental responsibility in an appropriate manner;
(b)Each of the six interlocutory applications were resolved specifically or generally in her favour;
(c)The father’s evidence under cross-examination by counsel for the ICL is that:
(i)He understands equal shared parental responsibility to mean the children spending equal time with each parent;
(ii)He understands the parents’ interests are to be considered equal to the children’s interests; and
(iii)He considers the children as a considerable support and of assistance to him.
The ICL seeks a condition that the mother be required to notify and consider any views of the father prior to making a decision in exercise of parental responsibility. I am not persuaded to make such an order. Of relevance to this issue is the evidence of the Forensic Psychologist’s report at 3.13-3.15:
[3.13] … His reports of time spent with the children, and his conversations with [X] directly contrast with what the children are reporting to their mother and in this assessment.
[3.14] Additionally, despite both parties agreeing that shared care was not working for the children at the last assessment, [Mr Kellidis] has perseverated on a desire for this arrangement. This raises some concerns about his insight and cognitive processing. It is further noted that [Mr Kellidis] was unwilling to demonstrate flexibility in the children attending important maternal family events due to "instructions from Legal Aid." He presents with considerable characteristics of anxiety, avoidance, low empathy and poor cognitive flexibility.
[3.15] In short, [Mr Kellidis] displays no insight into the perspectives of his children or the impact that his anxieties have on them. On the one hand, [Mr Kellidis] has idealistic views of his role as a parent and the life he wants for his children. However, he is then so driven by his anxieties about making these things happen that [Mr Kellidis]’ communication is abrupt and without consideration of how he is received by others. While there is no doubt that [Mr Kellidis] wants the best for his children, his ability to communicate with them in a way that they find supportive is being impacted by his anxiety. Without some intervention around his anxiety and communication, it is likely that his relationship with all three children will continue to be challenging.
In these circumstances, compelling the mother to engage in written communication with the father prior to making decisions in my view is unlikely to assist the mother in making a decision. To the contrary, it is more likely to make the process unnecessarily arduous for the mother which is not to the benefit of the children.
Having made an order for the mother to have sole parental responsibility, it is unnecessary to make the order sought by the mother restraining the parties from changing the children’s schools.
Arrangements for X
From April 2020 the applicant began receiving complaints from X about having to spend time with her father. These complaints grew in intensity and frequency over the course of a year during which time the mother continued to encourage X to see her father. The mother deposed that on 27 April 2021, X came to her car at the end of time with her father “hysterically in tears and was inconsolable” about things the father had said to her. X refused to spend time with her father thereafter and their contact reduced to occasional telephone conversations.
On 25 November 2021, orders were made providing for X to spend time with her father in accordance with her wishes. Since then she has spent time with her father on Christmas Day 2021 for four hours and on Z’s birthday in 2022 for about four hours, both times in the company of her siblings.
The Forensic Psychologist reported:
The theme of [Mr Kellidis]’ poor insight is also reflected in the state of his relationship with [X]. It is unlikely that [X] will voluntarily return to a shared living arrangement with her father and without significant improvement in [Mr Kellidis]’ communication, insight and psychological traits of anxiety and rigidity, any attempt at forcing this relationship is likely to destroy what is left of it.
…
[X] is distressed by the idea of spending more time with him for fear of future altercations and comments which cause her to feel badly about herself.
The relationship between X and her father has broken down. Whether or not X currently has a meaningful relationship with her father is a live issue. What benefit there is for X in developing that relationship and how best that may be promoted remains to be seen.
It is appropriate that there be separate arrangements for X. Taking into account the cessation of antagonism between X and her father since the current arrangements were set in November 2021, the clear views and wishes of X and the identifiable grounds upon which those views are formed, it is in X’s best interests for the order sought by the ICL to be made which is for X to spend time with the father in accordance with her wishes.
Live with and time with
For the same reasons that the mother has sole parental responsibility, the children should live with the mother and an order has been made accordingly. For the same reasons, an order that the children live with each parent on a week about basis is not in the children’s best interests.
The mother seeks a reduction in time the children currently spend with the father on alternate weekends from Thursday to Monday down to Friday to Sunday, and removal of Wednesday afternoons. She deposes in her affidavit that the father’s disinclination to engage with the children on almost every level means that the children prefer not to spend time with him. Further, the time interrupts and disturbs their routines and homework. In his affidavits, the father deposes that he does engage and describes typical activities and routines. The Forensic Psychologist states:
Themes outlined in [Ms Simiko]'s affidavits around the children's interaction with their father, supervision and care tasks while in his home were confirmed in discussions. Concerningly, there was indication that the children continue to be exposed to conversations about their role in decisions on living arrangements.
My impression of the father’s evidence from the witness box is consistent with the behaviour reported by the mother and as opined by the Forensic Psychologist as lacking in insight and rigid. This was a common theme throughout the evidence and is illustrated by the following examples:
(a)Despite the recent reality of the breakdown of his relationship with X, the father prioritised not compromising his beliefs and world views over the negative effect of them on his children.
(b)The father refused to accept that he may have been wrong in his opinion that the Forensic Psychologist advised him to discuss the context of the first Family Report with the children, including that he said “I have three little liars.” Even after hearing the Forensic Psychologist deny that she gave such advice to him, in explanation of his behaviours the father maintained that she did.
(c)The father’s disinclination to do anything about resolving the uncertain and conflicting circumstances around his back condition. He complains of this condition to the Forensic Psychologist to obtain latitude for his idleness, or, for extra credit for doing things in spite of it. He says it is an impediment limiting his ability to work and consequently why he does not pay any child support. He doesn’t do anything about treating the condition, offering vague reasoning such as Covid-19 and not wanting an operation. At the same time, he says it is a condition that is up to him to manage and it does not interfere with his capacity to provide for all of the needs of the children when in his care.
The children do receive a benefit from spending time with their father. They can enjoy it and they are able to outline the things that they do with their father including maintaining relationships with their external paternal family. It was acknowledged by the mother that it is important for the children to have a meaningful relationship with him.
It is a perplexing state of affairs where, despite there being an absence of typical obstructions to a meaningful relationship such as family violence, substance abuse, tyrannies of distance or practicalities, there is nevertheless a distinct void in the space where a meaningful relationship between the father and his children should be.
The father ultimately accepted the proposition from the ICL that perhaps he has been and is in a state of depression, and that there is scope for change for the better. The quandary in the meantime is the assessment of what time the children should spend with the father having regard to the considerations in s 60CC of the Act, in particular the primary consideration in s 60CC(2)(a) of the benefit to the child of having a meaningful relationship with both of the children's parents.
In relation to the alternate weekend time, it will be from after school on Friday to the start of school on Monday for the following reasons:
(a)The reduction of one night is sufficient to limit the children’s exposure to the father’s at times adverse parenting attitudes;
(b)It provides for some time that is not weekend time with minimal disruption to the children’s routines and homework;
(c)It eliminates the need for a changeover on Sunday evening.
In relation to Y and Z each spending time with the father on alternate Wednesdays, this time will continue for the following reasons:
(a)Despite some considerable pressure being put on the Forensic Psychologist in cross-examination, she remained of the view that this time was of value to the children. In addition, she affirmed it was not comparable to or transferable to additional weekend time;
(b)It is substantial and significant time being time that each child will spend with the father that does not fall on a weekend or holiday;
(c)The benefit to the relationship between the children and the father outweighs the disruption to the children’s routines and homework. To further mitigate the disruption, an order has been made requiring the father to deliver the child to the mother at the end of the time; and
(d)It provides an opportunity for X to have contact with her father.
Despite being recommended by the Forensic Psychologist and sought by the ICL, I decline to make orders conditioning the commencement of the Wednesday time on the father obtaining a medical certificate for his back and attending psychological therapy for the following reasons:
(a)The Wednesday afternoon time is already occurring and it is far less than the alternate weekend or holiday time with the father;
(b)Whatever the extent of the back condition is, the father was able to attend and move around court seemingly freely which is probably commensurate with the level of activity required of him for the few hours on Wednesday afternoons;
(c)I am not satisfied that compelling the father to attend psychological therapy will be of any utility. Whether or not the father is willing and able to accept that psychological therapy may be of benefit is a matter for him;
(d)Both of these conditions, really, are aimed at motivating the father to improve his own circumstances. Whilst I accept that there would probably be a consequential benefit to the children if the father did in fact improve his own circumstances, these proceedings are about the children, not the father. The children are old enough to undoubtedly become aware of these conditional arrangements and there is a risk that they perceive the situation unfavourably. For example, by being used as a reward, or inappropriately drawing attention to the father’s shortfalls.
Other Provisions
Under the heading ‘Other provisions’ the mother sought an order (which was also in the minute of orders sought by the ICL) “That each parent is restrained by injunction from introducing any boyfriend or girlfriend or partner to the children without giving the other at least one week’s prior written notice.” No evidence was adduced on this subject matter (other than the uncontroversial evidence that neither party has re-partnered) and no submissions were made with respect to it by any party. It is not evident to me how it is in the best interests of the children. I proceed on the basis that the order is not pursued and I decline to make it.
The additional order for the sharing of information is made for the following reasons or purposes:
(a)The reasons for the order for the mother to have sole parental responsibility do not include for the father to be kept out of or away from major long term issues;
(b)To assist the parties to comply with and meaningfully consider the requirement at Order 2; and
(c)In order to promote a meaningful relationship between the father and the children.
Though not sought by any party, there was nothing in the evidence or submissions that indicate the order may be controversial and the order is complimentary to other Orders.
THE CHILD SUPPORT PROCEEDINGS
The Orders sought
It is first necessary to take into account relevant orders previously made in these proceedings:
On 16 April 2021:
2. Pursuant to section 124 of the Child Support Assessment Act 1989 the respondent father, [Mr Kellidis], shall pay the following by way of child support for the children [X] born [in] 2008, [Y] born [in] 2010 and [Z] born [in] 2013, in addition to the amounts payable by the father to the mother, [Ms Simiko], in accordance with the administrative assessment of child support:
a. Within 7 days the father shall pay to the [F] School the sum of $61,129.76 being outstanding school fees for [X] and [Y] to 30 March 2021;
b. From the date of these orders the father is to pay half of all school fees owing to [F] School for the education of the three children [X] born [in] 2008, [Y] born [in] 2010 and [Z] born [in] 2013 as and when the fee fall due;
c. Within 7 days the father shall pay to [L] Orthodontics the sum of $2,945 representing half of the orthodontic expenses for [X] to date; and
d. From the date of these orders the father shall pay to [L] Orthodontics half of the cost of orthodontic treatment of the children [X] and [Y].
On 25 November 2021:
6. The mother is responsible for [Z]’s school fees at [B] School with a right to argue, at the final hearing in 2022, that the father ought to be required to pay those fees or make a contribution to them, including retrospectively.
CONSENT ORDERS
IT IS NOTED THAT:
A. The wife filed an Application in a Case on 31 July 2021 seeking, by way of enforcement of a child support departure order made on 16 April 2021, the sale of a property owned by the husband and his brother, [Mr M], at [D Street, Suburb E] (the Property);
B. The Property is owned by the husband and [Ms M] as tenants in common in equal shares;
C. The Application in a Case is listed for hearing on 25 November 2021;
D. The husband and [Mr M] have since listed the Property for sale;
E. On the basis that the Property is presently listed for sale and that all reasonable and timely steps are taken by the husband and [Mr M] to sell the Property, the wife does not to press Orders 4 – 8 of her Application that that the Property be sold.
F. The Court notes an Undertaking provided by [Mr M] in the terms attached to these Orders.
G. The balance of the wife’s Application remains listed for hearing on 25 November 2021.
BY CONSENT IT IS ORDERED:
2. By this order, upon completion of the sale of the Property, the husband is taken to have authorised and directed the solicitor acting on the sale of the Property for the vendors to cause the sum of $83,687.70 to be paid from his share of the net sale proceeds (after discharge payment of any secured creditor, costs of sale and usual adjustments on sale) to the solicitors for the wife.
3. The solicitors for the wife are, immediately upon receipt of such amount, to pay or cause to be paid the following:
a. $61,129.76 to [F] School, in full satisfaction of the husband’s obligation pursuant to Order 2 (a) of the Orders dated 16 April 2021;
b. $13,726.35 to [F] School, in full satisfaction of any obligation of the husband pursuant to Order 2 (b) of the Orders dated 16 April 2021 up to and including Term 4, 2021;
c. $2,945.00 to [L] Orthodontics, in full satisfaction of the husband’s obligation pursuant to Order 2 (c) of the Orders dated 16 April 2021;
d. $1,650.00 to [L] Orthodontics, in full satisfaction of any obligation of the husband pursuant to Order 2 (d) of the Orders dated 16 April 2021 to 25 November 2021;
e. $4,236.59 to the wife or at the wife’s direction, in full satisfaction of the costs order at Order 3 of the Orders dated 16 April 2021, together with interest calculated to 25 November 2021.
In her Amended Initiating Application filed on 30 March 2022, the mother seeks the following orders.
28. The following orders are made pursuant to section 124 of the Child Support (Assessment) Act 1989 (Cth) (the CSAA).
29. That the father shall pay the following by way of child support for the children, in addition to the amounts payable by the father to the mother in accordance with the administrative assessment of child support:
29.1 Within 7 days the father shall pay to the [F] School the sum of $86,371.74 being the current outstanding school fees for [X] and [Y] to 6 May 2022;
29.2 Within 7 days the father shall pay to the mother the sum of $7,018.75 being half the amount of school fees incurred by the mother for Term 1 and Term 2 of 2022 for the child [Z]’s attendance at [B] School;
29.3 From the date of these orders the father is to pay half of all school fees owing [F] School for the education of [X] and [Y] as and when the fees fall due;
29.4 From the date of these orders the father is to pay half of all school fees owing to [B] School for the education of [Z] as and when the fees fall due;
29.5 Within 7 days the father shall pay to [L] Orthodontics the sum of $4,452.50 representing half of the orthodontic expenses for X to date; and
29.6 From the date of these orders the father shall pay to [L] Orthodontics half of the cost of orthodontic treatment for the children X and Y.
30. For the purposes of s125 of the CSAA, the annual rate of child support paid by the father under any relevant administrative assessment is not reduced by the above orders.
31. By way of security for the payment of child support by the husband, the husband is to pay to the wife, the sum of $150,000 from his share of the proceeds of sale of the property at [D Street, Suburb E], and the wife is to cause such amount to be paid into an interest bearing account in a financial institution of the wife’s choosing, in the name of the wife (“the child support account”).
32. The wife is restrained from withdrawing any amount from the child support account except as provided for in the following Order.
33. In the event the husband is in arrears of his obligation to pay child support pursuant to Order 29 above for a period in excess of one calendar month, the wife is at liberty to withdraw from the account referred to in the previous order the amount of the arrears then outstanding.
34. Upon the happening of a child support terminating event for the last of the children, the balance of funds held in the child support account, including any interest earned, is to be paid to the husband.
35. The wife is to cause a copy of all the orders made herein to be served upon the Child Support Registrar as soon as practicable.
At the close of the applicant mother’s case at hearing, a “Clean Minute of Final Orders sought” was handed up with submissions to the effect that the minute aligns with the amended application but for the inclusion of half of all school fees owing to B School. I do not agree that the clean minute and the amended application align but for the stated distinction. The orders sought in the clean minute are:
Departure
27. The following orders are made pursuant to section 124 of the Child Support (Assessment) Act 1989 (Cth) (the CSAA).
28. That the father shall pay the following by way of child support for the children, in addition to the amounts payable by the father to the mother in accordance with the administrative assessment of child support:
28.1 From the date of these orders the father is to pay half of all school fees owing to [B] School for the education of [Z] as and when the fees fall due. ·
29. For the purposes of s125 of the CSAA the annual rate of child support paid by the father under any relevant administrative assessment is not reduced by the above order.
Security
30. By way of security for the payment of child support by the husband, the husband is to pay to the wife, the sum of $150,000 from his share of the proceeds of sale of the property at [D Street, Suburb E], and the wife is to cause such amount to be paid into an interest bearing account in a financial institution of the wife’s choosing, in the name of the wife (“the child support account”)
31. The wife is restrained from withdrawing any amount from the child support account except as provided for in the following Order.
32. In the event the husband is in arrears of his obligation to pay child support pursuant to Order 29 above for a period in excess of one calendar month, the wife is at liberty to withdraw from the account referred to in the previous order the amount of the arrears then outstanding.
33. Upon the happening of a child support terminating event for the last of the children, the balance of funds held in the child support account including any interest earned, is to be paid to the husband.
34. The wife is to cause a copy of all the orders made herein to be served upon the Child Support Registrar as soon as practicable.
Written closing submissions on behalf of the mother included:
2. The mother proposes the following notations to her minute of order sought, arising from the submission at Trial, as follows:
AND IT IS NOTED:
A. Order 2 of the Orders dated 16 April 2021 remain of force and effect.
B. Orders 2-4 of Annexure A of the Orders made 25 November 2021 remain of force and effect.
3. The mother presses as a primary application the Orders sought at Clauses 28 to 35 of her Amended Initiating Application filed 30 March 2022. An alternative application is put below.
4. The mother’s application is in two parts:
a. At Orders 28 to 30, departure orders;
b. At Orders 31 to 35, security for the departure orders.
Departure Orders
5. The mother seeks departure orders pursuant to the Child Support (Assessment) Act 1989 (the CSAA).
6. …
7. The relevant Part of the CSAA is Part 7, and the relevant Division here is Division 5. The power is conveyed on the Court in s124.
8. The mother seeks an order that the father pay half the school fees for the child [Z] to attend [B] School. From a practical perspective, that order brings orders governing the payment for [Z]’s attendance at [B] School in line with the orders governing the payment for his older sisters’ attendance at [F] School. Those orders are dated 16 April 2021. When they were made, [Z] attended [F] School as well.
9. Notwithstanding that the application before the Court is effectively an update of the substance of the original orders reflecting a change of school to a school of comparable cost, the mother concedes that the Court must be satisfied as to the relevant matters before making the departure orders sought.
10. Accordingly, these submissions address the legislative pathway and requirements.
….
31. [T]here are existing, it is submitted final, orders for child support departure. Those were made on 16 April 2021. They were enforced by orders made on 25 November 2021. When the [D Street, Suburb E] property sells, $83,687.70 will be paid to the wife. That amount satisfies:
a. At Order 3a, [F School] fees quantified in the 16 April 2021 orders, which was the amount outstanding at that time;
b. At Order 3b, [F School] fees post the 16 April 2021 orders, being the amount outstanding to the end of Term 4, 2021;
c. At Order 3c, orthodontic costs quantified in the 16 April 2021 orders, which was the amount outstanding at that time;
d. At Order 3d, orthodontic costs post the 16 April 2021 orders and up to 25 November 2021;
e. Costs.
32. Certainly, the 25 November 2021 orders, and the enforcement mechanism provided therein, deal with the husband’s obligation to 25 November 2021 (or in the case of [F School] more specifically, to the end of Term 4, 2021).
33. Moving forward, the departure orders create the obligation. The retention of the $150,000 is not double dipping. Orders 32 and 33 provide the conditions by which the wife can withdraw from the $150,000 and Order 34 provides if the husband pays his child support properly then the account, plus interest, gets released to the husband on the happening of a child support event for the last child.
34. It’s conceded the retention of the $150,000 disadvantages the father, but in circumstances when he has egregiously failed to comply with his child support obligations, it is submitted that order is just and equitable in the context of the CSAA.
35. There are three separate applications or sources of funds:
•The 25 November 2021 orders effectively deal with amounts up to the end of 2021;
•The orders sought in these proceedings brings payment for [Z]’s attendance at [B School] in line with the girls’ attendance at [F School];
•The $150,000 provides a form of security if the father continues to ignore his obligations to pay child support pursuant to departure orders.
No orders were sought by the respondent father with respect to child support.
Consideration – The child support orders sought
In making final orders I proceeded on the following basis:
(a)There are a multitude of previous orders made in these proceedings, including as to costs. The final orders do not seek to reconcile all of them and purposely do not include an order that “all previous orders be discharged.” Further, rule 5.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ought to be read in this context.
(b)The orders made on 16 April 2021 were a result of an interim hearing on an Application in a Case. They do not specifically state that they are made on an interim basis. However, they do not finally decide the proceeding and in my view Order 2 made on 16 April 2021 is not a final order. Further, the components of Order 2 that amount to a money order have since been overtaken by the orders made on 25 November 2021. Order 2 has been discharged in the final orders.
(c)Orders 2 and 3 made on 25 November 2021 together are effectively a money order and is extant until satisfied by the father. It need not be reconsidered. The practical and useful effect is it quantifies the father’s liability up to 25 November 2021 and provides an enforcement mechanism.
(d)Despite there being various references to “departure orders,” there is no application (and nor has there been one at any time on an interim basis) for a departure order pursuant to Division 4 of Part 7 of the Assessment Act that seeks to depart from the provisions of the Assessment Act relating to administrative assessment of child support.
(e)I am concerned only with an application under Division 5 for an order under section 123(1)(a) for provision of child support otherwise than in the form of periodic amounts. Further, there is no application under section 123(1)(b) for provision of child support by way of a lump sum payment.
(f)In the plainest of terms, in the child support proceedings the mother seeks:
(i)To not disturb or depart from administrative assessments and any resultant periodic child support;
(ii)That the father pay to the mother half of the school fees that she has already paid;
(iii)That the father pay directly to the children’s schools half of the future school fees;
(iv)That the father provide security of $150,000 from the forthcoming proceeds of sale of real property to meet his school fees liabilities in the event he defaults;
(v)That the father pay to the mother half of the orthodontic fees that she has already paid;
(vi)That the father pay directly to the orthodontist half of the future orthodontist fees.
It is necessary at this point to refer to the full court decisions in Lightfoot v Hampson (1996) FLC 92-663 and Ivanovic v Ivanovic (1996) FLC 92-689. In those cases, as in this case, there was an application to read Division 5 of Part 7 of the Assessment Act as conferring through section 125(2) a power to increase the amount of child support liability. Compared to the long held view that Division 5 is a substitution provision and not an independent source of power to make child support orders, and thereby limited in quantum to the capitalised value of the periodic rate as assessed.
The majority in Lightfoot is extant authority that says Division 5 is not an avenue for increasing quantum, unless there are ‘special circumstances’ justifying an order that did not provide for substitution.
The test which governs the meaning of “special circumstances” is “facts peculiar to the particular case which set it apart from other cases.” (Savery and Savery (1990) FLC 92-131 cited with approval by the Full Court in Gyselman and Gyselman (1992) FLC 92-279 at 79, 065). The Full Court in Ivanovic noted the description was with respect to the contemplation of a departure order under section 117, but nevertheless endorsed the description for use when contemplating section 125(2).
In Ivanovic it was open to the Full Court to depart from the majority view in Lightfoot. Although the Court had reservations about the correctness of Lightfoot, it was not sufficiently persuaded that the decision is wrong and considered it should not express a contrary conclusion. It went on to determine that the relevant factors of Ivanovic fell within the ambit of special circumstances envisaged in Lightfoot.
Applying the authorities to these proceedings, the applicant mother must satisfy the court as to the matters in section 124 and section 125(2).
Child Support - Facts, Matters and Circumstances
The mother relevantly deposed in her affidavit:
[13] After we separated, but prior to proceedings, [Mr Kellidis] and I attended a round table conference with our solicitors on 1 July 2019. We reached an agreement at that conference that provided (in summary):
(d) I would pay [Z]'s school fees;
(e) [Mr Kellidis] would pay [X] and [Y]'s school fees and costs.
[15] (c) On 14 December 2020, I filed an Application in a Case to seek Child Support Departure Orders that [Mr Kellidis] be ordered pay outstanding arrears to [F School] and his half share of ongoing school fees for the children to continue to attend [F School], outstanding arrears for [L] Orthodontics and ongoing medical expenses.
[15] (e) On 16 April 2021, orders were made by Judge Hughes that [Mr Kellidis] shall pay by way of child support, the periodic amounts payable pursuant to the child support assessment and in addition:
i) Outstanding amounts for arrears payable to [F School] in the sum of $61,129.76 for [X]'s and [Y]'s outstanding school fees, and to [L] Orthodontics in the sum of $2,945; and
ii) Ongoing payments for the children's school fees at [F School], and their orthodontic expenses payable to [L] Orthodontics.
(f) On 13 July 2021, I filed a further Application in a Case seeking the enforcement of the orders made on 16 April 2021, such that [Mr Kellidis] be required to pay these amounts by selling the property he owned jointly with his brother.
(g) On 11 November 2021, I filed a further Application in a Case seeking that [Z] be enrolled to attend [B] School and that [Mr Kellidis] be required to pay child support in accordance with the administrative assessment and half of the school fees for [Z].
(h) On 25 November 2021, the matter came before Judge Hughes for an interim hearing on the outstanding issues, being the Applications as detailed at paragraphs 12(e), 12(f) and 12(g). In relation to these applications, the following orders were made (in summary, not verbatim):
(i) Orders were made by consent that [Z] be enrolled in [B] School to commence from Term 1 in 2022.
(iv) It was noted that [Mr Kellidis] had consented to the sale of the [D Street, Suburb E] property.
[67] [Mr Kellidis] did not comply with the July 2019 Agreement, nor has he complied with the Orders dated 16 April 2021, requiring him to pay:
(a) The outstanding amount in arrears payable to [F School];
(b) The outstanding amount in arrears payable to [L] Orthodontics;
(c) Ongoing payment of fees to [F School] for [X]and [Y]'s fees;
(d) Ongoing payment of the children's orthodontics costs.
[69] [Mr Kellidis] has not made any payments towards the children's expenses.
[71] The children have attended [F School] since they were at the Early Learning Centre at age 4. This was something that [Mr Kellidis] and I agreed during our relationship and confirmed in the July 2019 Agreement.
[72] Since Term 1 of 2022, [Z] has attended [B] School. He moved schools on my application as traditionally boys attended [F School] until Year 2 and then moved to [B School]. [F School] now caters for boys until the end of Year 3 but I still proposed that [Z] move at the end of Year 2, and Orders were made to that effect. He is doing well at [B School] and enjoys attending there.
[73] The Order for [Z] to change schools was made, in part, on the basis that I pay the fees on an interim basis. The Court noted at the time that I could seek that [Mr Kellidis] pay half of the fees incurred to date and in future on a final basis, and I do seek that. The fees at [B School] and [F School] are equivalent, the progression from [F School] to [B School] is common (and, by the end of Year 3 in any case, some change of school is required) and [Mr Kellidis] had agreed prior to separation that Z would transition from [F School] to [B School] and then reneged on that agreement. I am particularly concerned about the negative impact on [Z] of him attending a school other than one of the schools if both his sisters continue at [F School].
[81] After the July 2019 Agreement I expected that [Mr Kellidis] would pay the school fees for [X] and [Y] at [F School] as we had agreed. I paid [Z's] school fees from that date.
[82] On 28 February 2020 I received an email from [F School] that said some of the school fees were outstanding. At the time, [Z's] school fees were up to date. I forwarded the email to [Mr Kellidis] and said “I would like to know what your intentions are in regards to the outstanding school fees. Have these been paid? Are you planning to pay them by the end of the week?”
[83] [Mr Kellidis] responded by saying, “I have not paid it get [sic] as I have no funds to do so ... I believe its unfair for either of us to pay more than half of our children's total schooling fees ... I believe we should keep all three children in girls [school] till at least the end of term two this year,( I’ve been informed that [F School] require one terms notice if we require to pull out the kids and send them elsewhere) so we have till Thursday 9th April 2020 to [G Street, Suburb H] and [N] primary schools to check them out. I was impressed. any schools for our children's future schooling ??”
[84] To my knowledge there had been no change in [Mr Kellidis]’s financial circumstances between July 2019 and February 2020.
[85] On 6 August 2020 [Mr Kellidis] and I received an email from the [F School] Finance Officer. That email confirmed:
(a) Our debt at the time was $28,532.35; and
(b) That there had been one payment of $3,675.37 on 16 July 2020.
That debt was referable, entirely, to the girls' school fees. The payment on 16 July 2020 was a payment that I made towards [Z's] school fees.
[86] In late August or early September 2020 [Mr Kellidis]sent me a message with words to the effect of “you should pay one-third of the school fees, I’ll pay another third and your father can pay another third”.
[87] On 4 September 2020 I instructed my solicitors to write to [Mr Kellidis]’s solicitors confirming the agreement that we had reached in July 2019, and, noting [Mr Kellidis]’s proposal to pay one third of the school fees, asking him to at least pay that amount. [Mr Kellidis] did not respond to that letter.
[88] On 2 October 2020 I received a phone call from the children's school. The office worker who rang said to me words to the effect, “'There is a large debt owed. We need to work out how this is going to be paid.”
[89] I organised a meeting with the Finance Officer the following week, who said to me, “You are both liable for the school fees, because you both signed the enrolment form,” or words like that. I explained the July 2019 agreement.
[94] [X]'s teeth have been crooked and crowded for a long time. Prior to separation, and from recollection in 2017, we agreed to and did make an appointment for her to see [Dr O], an orthodontist at [L] Orthodontist. [Dr O] recommended we immediately start orthodontic care to expand her jaw and remedy an overbite, with a few to braces being used later. We agreed to that and [X] commenced receiving treatment, initially a twin block and then brackets to her front teeth.
[95] [X] continued to be treated by [Dr O] throughout 2017, 2018, 2019, 2020, 2021 and this year. Prior to separation, [Mr Kellidis]and I always followed his advice, which was always to the effect that braces would be required at some point, and she would need to have some teeth removed prior to the braces being applied.
[96] Earlier in 2020, at an appointment with [Dr O] with [X], he said to me, “We need to do the surgery [to remove her teeth] and put her braces on before the end of the year.”
[97] On 9 September 2020 I received an email from [X]'s orthodontist.
[98] That email provided an updated quote for her orthodontic work, and confirmed a total amount owing of $8,905. I sent this information to [Mr Kellidis] by email.
[99] I have exhausted the lifetime ‘maximum’ for orthodontic treatment for [X] through our private health insurance.
[107] [Y] is following a similar process. She has had twin blocks and now uses a plate, and is preparing for braces. I have also exhausted the lifetime maximum for that care from private health insurance.
[108] Following an interim hearing before Judge Hughes on 16 April 2021, Orders were made for [Mr Kellidis] to pay: -
a. [F School] School fee to the sum of $61,129.76 for outstanding school fees for [X] and [Y] to 30 March 2021;
b. Half of all school fees owing to [F School] for the education of the three children as and when they fall due;
c. Within 7 days, the sum of $2,945 to [L] Orthodontists (which was half of the amount I had incurred to that time);
d. From the date of the orders, half the cost of orthodontic treatment of the children [X] and [Y].
e. Within 7 days, the sum of $3,852 to me by way of costs.
[109] [Mr Kellidis] has not complied, at all, with the 16 April 2021 child support departure orders. Nor has he appealed them. He has ignored them. This has been a cause of frustration and stress to me as the costs I incurred in obtaining them were far greater than the quantum of the costs order made in my favour.
[110] My solicitors sent a letter to [Mr Kellidis] dated 23 April 2021, in relation to the payments he was required to pay pursuant to the orders.
[111] [Mr Kellidis], by email dated 23 April 2021 to my solicitors, acknowledged receipt of the email attaching the letter dated 23 April 2021. He emailed again on 27 April 2021 in relation to various matters, but in relation to the issue of the payments that he was required to pay pursuant to the Orders, amongst other things, [Mr Kellidis] said the following:
a. “I can state that I can't pay these sums as I have no funds to do so. I did mention this several times in court on Friday 16 April 2021 as the court transcripts will reveal”.
b. Proposing that we sell “some jewellery” and the [G Street, Suburb H] Property to pay the amount owing by way of school fees and orthodontic costs.
[112] On 13 July 2021, I filed an Application in a Case seeking, by way of enforcement of a child support departure order made on 16 April 2021, the sale of the [D Street, Suburb E] Property. The matter was listed for interim hearing on 25 November 2021.
[113] On 25 November 2021, [Mr Kellidis] and [Mr M] agreed to list the [D Street, Suburb E] Property for sale. [Mr M] provided an undertaking that he agreed to that action (which I understand was filed).
[115] The [D Street, Suburb E] property is listed for sale but to the best of my knowledge has not sold. My solicitors have made enquiries of the listing agent who said, on 4 March 2022 responding to a query from my solicitor as to the amount of any written offers:
High $2,000,000’s need to get into the $4,000,000’s + or high $3,000,000’s as the brother [Mr M] wants a high price. To build now would cost more than that as it is a large block and solid brick.
[116] The consequence of that is that both the past and future amounts required to be paid by [Mr Kellidis] in the child support departure orders made on 16 April 2021 and enforced by order dated 25 November 2021 remain outstanding.
[118] I am aged 46.
[119] I am in good health.
[120] I continue to work part time and flexible hours so that I can take the children to and collect them from school. I earn approximately $73,500 net per year. My income is generous for the working conditions I enjoy.
[121] There is a current child support assessment that mandates [Mr Kellidis] pay me $76.25 per month. That child support assessment commenced on 1 December 2021 and is meant to be in place until 28 February 2023. The current child support assessment is annexed and marked "-3" (pages 50 to 52). The previous child support assessment for the period 9 September 2021 to 30 November 2021 required [Mr Kellidis] to pay me $366.75 per month. [Mr Kellidis] has not paid me any child support since either of the assessments were implemented.
[122] I have not repartnered.
[123] Broadly I do not know [Mr Kellidis]’s current circumstances. He is aged 49 and to the best of my knowledge he does not suffer from any condition that impedes his capacity to work and I do not know why he has not taken steps to obtain employment.
[124] In his Financial Statement filed 25 October 2019, [Mr Kellidis] deposed to earning approximately $500 per week by way of salary, having more than $156,000 in his bank account, and having net assets in his name worth more than $1.3 million.
[125] Although in his Affidavits filed on 17 August 2020 and 23 November 2021, [Mr Kellidis] deposed to his financial circumstances he has not filed a further updating Financial Statement and he does not provide sufficient details to determine:
a. The balance of his savings;
b. What income he is earning other than $750 per week that he is earning doing handyman work for his brother. This is more than the salary he disclosed receiving in his 2019 Financial Statement.
[126] The following costs orders have been made in my favour and not paid by [Mr Kellidis]:
a. Order 3 of the Orders dated 16 April 2021, which provides that [Mr Kellidis] pay me the sum of $3,852 by way of the costs of that day's proceedings; and
b. Order 3e of the Orders dated 25 November 2021, which provides that [Mr Kellidis] pay me the sum of $4,236.59 in full satisfaction of the costs order made on 16 April 2021 (referred to in the preceding subparagraph), plus interest calculated to 25 November 2021.
[20] In respect of the [G Street, Suburb H] Property, that property is our former matrimonial home. [Mr Kellidis] moved out of this property in June 2019, and I have continued to reside in the [G Street, Suburb H] Property. I am liaising with [Mr Kellidis] with a view to reaching an agreed value for the trial. There is a loan secured by mortgage over the property. The loan is in my sole name but guaranteed by my father. The current loan balance is $1,252,787.
[21] [Mr Kellidis] has an interest in a property at [D Street, Suburb E] (the [D Street, Suburb E] Property). This property is owned as tenants in common by [Mr Kellidis] and his brother, [Mr M] ([Mr M]) as 50/100 shares each. [Mr Kellidis] inherited his share of the [D Street, Suburb E] Property from his father in or around 2020 after Probate was granted [in] 2019. To the best of my knowledge, this property is unencumbered.
Some of the facts as deposed by the wife’s father were challenged by the husband in cross examination. To the extent that they were, they were not undermined in any significant way.
It is useful at this point to refer to and repeat:
(a)The facts, matters and circumstances as stated earlier in these reasons with reference to parenting proceedings and child support proceedings that are relevant to property matters;
(b)The findings I have already made with respect to the husband’s non-disclosure, and the consequential approach I have taken, set out at paragraph 94 and 130 above;
(c)The findings I have already made with respect to the husband’s non-compliance with trial directions, and the consequential approach I have taken, set out at paragraphs 20 and 91 above.
Property Proceedings – Legal Principles.
Section 79 of the Family Law Act 1975 (“the Act”) sets out the following:
(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
…
(c) an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the marriage; or
…
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
…
(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
In exercising that discretion, the court is required to take into account the matters set out in section 79(4) of the Act, as follows:
(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.
The High Court in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”), at [35] confirmed that before an order is made adjusting the parties’ property the court is required to make a determination that it is just and equitable to do so. That determination is to be made, however, not as a discrete or preliminary issue but requires the Court to consider the matters set out in section 79(4) of the Act.
In Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143 (“Hickey”), the Full Court held at [39] that, in considering the matters set out in section 79(4) of the Act the preferred approach was to adhere to the following four steps:
(i)Identify and determine the value of the asset pool of the parties as at the date of the hearing (this necessarily involves identifying both the assets and liabilities);
(ii)Identify and assess each of the parties’ financial and other contributions up until the date of the hearing (this can include the financial contributions made before, during and after the marriage);
(iii)Assess how future and other events may have a financial impact on either of the parties, such as their age and state of health and their income and property or financial resources (known as the s 75(2) factors); and
(iv)Step back and examine this formula-based reasoning against the history of the marriage, intangible considerations and other contingencies so as to consider whether the outcome represents a just and equitable result.
The High Court noted at [35] in Stanford, s 79(2) of the Act provides that the Court shall not make an order altering the interests of the parties to the matrimonial property, “unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Accordingly, since Stanford, it has generally been the practice of the Court to determine, as an initial issue, whether it is just and equitable to make an adjustment of marital property.
The Full Court in Perrin & Perrin (No 2) [2018] FamCAFC 122 cited at [57]–[58] with approval, the decision in Babett & Falconer (2015) FLC 98-067 at [44]:
Within the family law context, those comments [in respect to the adequacy of reasons] should be seen as reinforced by the fact that the nature of the s 79 inquiry is, in essence, a broad discretionary assessment, which is neither an accounting nor mathematical exercise and which, effectively as a corollary, requires a “broad-brush approach”.(Citations omitted)
Is it just and equitable to make a property adjustment?
Both parties contend that it is just and equitable for the parties’ property interests to be adjusted. I am satisfied that this should occur in circumstances where the parties’ relationship is at an end and they no longer have the common use of their property – in particular in this case chattels. The express or implicit assumptions which underpinned their relationship, including that they would be able to consensually adjust their interests in such property, are at an end. (See Stanford at [42]).
The balance sheet
Ownership Description Applicant Value Respondent’s position at hearing PROPERTIES 1 Wife G Street, Suburb H
Valuation dated 3 May 2022$4,000,000 Disagrees 2 Husband 50% Interest in D Street, Suburb E
Valuation dated 3 May 2022$1,400,000 Disagrees SHARES 3 Husband ASX Shares
Husband’s financial statement 25 October 2019$15,000 Doesn’t know 4 Husband 24 Company AN Shares
Letter from husband’s lawyer dated 28 October 2019E $448 Sold since separation. Amounts sound right. 5 Husband 24 Company AF Shares
Letter from husband’s lawyer dated 28 October 2019$1,185 6 Husband 1449 Company AG Shares
Letter from husband’s lawyer dated 28 October 2019$47,000 BUSINESS INTERESTS & VEHICLES 7 Husband Kellidis Family Trust
Being unpaid trust distributions for 2018 and 2019, pursuant to financial statement 30 June 2019 for Kellidis Family TrustE $112, 913 Disagrees 8 Husband U Pty Ltd
Being net equity as reported in 2019 financial statementE $2,694 Now nil 9 Husband T Pty Ltd
Husband’s financial statement 25 October 2019Unknown 10 Husband Motor Vehicle 2 (owned by T Pty Ltd)
Husband’s financial statement 25 October 2019$21,000 Agrees 11 Husband Motor Vehicle 3 (owned by T Pty Ltd)
Husband’s financial statement 25 October 2019$12,000 Agrees 12 Husband Company V
Company included in orders dated 28 October 2019Unknown Now nil 13 Wife Motor Vehicle 1
Wife’s financial statement 30 March 2022$7,000 Agrees ACCOUNTS 14 Joint NAB Gold Banking #...73 as at 30 March 2022
Wife’s financial statement 30 March 2022$0 15 Joint NAB Smart Reward Saver #...30 as at 30 March 2022
Wife’s financial statement 30 March 2022$40 16 Wife NAB Classic Banking #...90
Wife’s financial statement 30 March 2022$3,164 17 Husband Westpac Business Cheque #...58
Husband’s financial statement 25 October 2019$156,539 Now hundreds of dollars 18 Husband CBA Account #...22
Letter from husband’s lawyer dated 28 October 2019 – no further disclosure$0 19 Joint NAB Private Tailored Flexi-Plus #...98 $0 20 Husband Westpac Mr Kellidis Account #...29
Being interest accrued pursuant to husband’s tax return 30 June 2019$2.835 21 Joint Westpac X Account #...54 (held as trustee for children) EXCLUDED 22 Joint Westpac Y Account #...37 (held as trustee for children) EXCLUDED 23 Joint Westpac Z Account #...21 (held as trustee for children) EXCLUDED OTHER 24 Husband Watches and Jewellery
Husband’s financial statement 25 October 2019$10,000 Agrees. But says wife also has jewellery. 25 Husband D Street, Suburb E household contents
Husband’s financial statement 25 October 2019$15,000 Agrees 26 Husband Realised interest in the estate of Mr Kellidis
1/3 interest pursuant inventoryE $12,333 Disagrees Total $5,819,151 LIABILITIES 27 Wife NAB Home Loan account #...97 over G Street, Suburb H property
Wife’s financial statement 30 March 2022$1,252,787 Assumes correct 28 Joint Loan from Mr W (funds advanced for G Street, Suburb H property)
Wife’s financial statement 30 March 2022$2,401,250 Disagrees 29 Wife Loan from Mr W (funds advanced post separation)
Wife’s financial statement 30 March 2022$744,227 Disagrees 30 Husband CBA MasterCard #......28
Husband’s financial statement 25 October 2019$0 31 Husband AMEX #......03
Husband’s financial statement 25 October 2019$0 32 Husband Post-separation loan to Mr AH and Mr M
Husband’s financial statement 25 October 2019EXCLUDED 33 Husband Post-separation debt to AJ Law Firm and AK Law Firm (Legal Fees)
Husband’s financial statement 25 October 2019EXCLUDED 34 Husband Post-separation debt to Company AL
Husband’s financial statement 25 October 2019EXCLUDED 35 Joint NAB Private Package Home Loan #...32 $0 Total $4,398,264 SUPERANNUATION 36 Wife Kellidis Superannuation Fund – SMSF
Wife’s financial statement 30 March 2022$474,507 Disagrees 37 Husband AM Pty Ltd –SMSF
Husband’s financial statement 25 October 2019$203,607 Disagrees Total $677,574 FINANCIAL RESOURCES 38 Husband Interest in the estate of Mr Kellidis (Husband’s father, since realised and in balance sheet as interest in D Street, Suburb E property and realised estate)
Husband’s financial statement 25 October 2019Unknown Total $0 NET TOTAL ASSETS (excluding superannuation) $1,420,887 NET TOTAL ASSETS (including superannuation) $2,098,461
As to certain items in the balance sheet and other disputed items I find as follows.
The values attributable to the G Street, Suburb H and D Street, Suburb E properties are by way of evidence from the court appointed single expert witness. The husband’s disagreement with the values are not supported by contrary evidence nor was the expert called by him for cross examination.
As to the value of the wife’s and the husband’s superannuation entitlements, there is no valuation pursuant to the Family Law (Superannuation) Regulations 2001. They are both interests in self-managed superannuation funds as sworn in their respective financial statements.
With respect to the money advanced by the wife’s father, there are three categories:
(i)$2,401,250 between 16 February 2010 and 30 June 2014 being the entire balance of the purchase price and associated acquisition expenses of the G Street, Suburb H property plus contributions towards the redevelopment costs (the balance of the redevelopment costs being the cause of the NAB loan);
(ii)$209,227 between 1 July 2019 and 28 March 2022 being principal and interest payments against the NAB loan post separation;
(iii)$535,000 between 11 July 2019 to 28 March 2022 being towards the mother’s living expenses and legal fees post separation.
The husband did not challenge in any way that the transactions occurred as described by the wife and her father. Nor did he challenge their purpose as described. I find that they did occur and for the purposes as described by the wife and her father.
The husband’s challenge is to the nature of the transactions. Essentially, that they are all entirely by way of gift and not repayable. Evidence against this contention includes:
(a)The affidavit evidence of the wife and her father to the contrary which the husband was able to cross examine them on;
(b)The Deed of Loan executed by the wife and her father, the key terms being:
(i)It is dated 10 April 2019;
(ii)The Loan Amount is $2,500,000;
(iii)The Limited Purpose is ‘The purchase of Land and the construction of a residential dwelling and associated improvements on the Land;’
(iv)It is repayable upon sale of the G Street, Suburb H property;
(v)It provides to the Lender an equitable interest in the Land sufficient to ground a registered caveat.
That it is not signed by the husband is of no consequence. The property is in the wife’s sole name and so is the NAB loan. The Deed precedes separation. A caveat has been lodged against the property pursuant to the Deed.
The sums advanced that relate directly to the G Street, Suburb H property are $2,401,250 and $209,227. For the purposes of these reasons I find that the loan amount up to $2,500,000 is sufficiently certain, repayable upon sale of the G Street, Suburb H property and likely to be enforced in that event. As such there is a liability of $2,500,000 that is included in the pool.
I do not regard the amount above $2,500,000 in the same way. I am satisfied it would be sufficiently certain, but not satisfied that it could or would be repayable upon sale of the G Street, Suburb H property or likely that it could or would be enforced in that event.
I do not regard the post separation advances totalling $535,000 in the same way. They are not subject to any Deed or other record of agreement. It is not sufficiently certain and I am not satisfied that it is repayable or likely to be enforced.
Contributions
The Court is required to make an assessment of the nature and quality of the totality of the parties’ contributions throughout the entirety of their relationship, together with their contributions in the period subsequent to their separation. Dickons & Dickons [2012] FamCAFC 154. See also Dovgan & Dovgan [2021] FamCA 306 at [347], which restates the need to holistically assess contributions following the case of Dickons, and that “all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder.”
With respect to the G Street, Suburb H property, compared to the amounts advanced by the wife’s father and his guarantee enabling the NAB loan, the non-financial contributions and especially the financial contributions of the parties pre, during and post the relationship pale into insignificance – let alone whatever difference there is between the parties’ own respective contributions. Quite simply, but for the wife’s father the G Street, Suburb H property would not have been acquired to begin with and would not have been conserved during or post the relationship. The G Street, Suburb H property is virtually all attributable to the wife by way of her father as a financial resource.
The D Street, Suburb E property is entirely attributable to the husband by way of his inheritance of it soon after separation.
Any other contributions of the parties pale into insignificance.
Future needs
I have had regard to the factors in section 75(2) of the Act.
The wife is aged 46 and enjoys good health and working capacity. The husband is aged 49. He complains of ill health effecting his working capacity but I am not satisfied that it is to any significant extent. The parties were married for 12 years.
The wife works for her father and deposes that her income is $73,500 net per year. The husband chooses to work reduced hours and says he earns a negligible income. I am satisfied he has capacity to earn more and to a sufficiently equivalent level to the wife.
The wife will have the majority of care or control of the children and I anticipate be responsible for the majority of their financial needs.
The wife’s future needs are otherwise unremarkable. The husband is no doubt in a less advantageous positon than the mother. That seems to be almost entirely a situation of his own making – including the lack of evidence upon which I may otherwise have had regard to when considering his proposed orders. The parties will nevertheless find themselves in a standard of living that is comparable to their pre separation standard and is reasonable.
The findings with respect to future needs would be very different if the orders sought by the husband were made and the G Street, Suburb H property was to be sold.
Justice and Equity
I have also taken into account:
(a)The nil effect of the property orders on the earning capacity of either party;
(b)The other orders made under the Act in these proceedings affecting the parties and the notations to the Orders made on 25 November 2021;
(c)The child support order made under the Child Support (Assessment) Act 1989 that the father is to provide and is liable to provide in the future for the children of the marriage.
The pool is dominated by the G Street, Suburb H property which remains in the wife’s sole name and occupied by her, and the husband’s interests in the D Street, Suburb E property which he occupies. All other items pale into insignificance.
Since Norbis v Norbis [1986] HCA 17, it is well settled that in property proceedings under section 79, the Court can adopt either a global approach – involving the division of the parties’ assets on an overall proportion of the global view of the assets; or an asset-by-asset approach – involving a determination of the parties’ interests in individual items of property. Whilst a global approach has been taken to the assessment of contributions and future needs, it is necessary to adopt an asset-by-asset approach to achieve a just and equitable result.
The proposals of the parties and their effects are summarised as:
Wife’s proposal Wife Husband G Street, Suburb H property 4,000,000 NAB Loan -1,252,787 Mr W Loan -2,500,000 D Street, Suburb E property proceeds 1,400,000 247,213 1,400,000 Husband’s proposal G Street, Suburb H property 4,000,000 NAB Loan -1,252,787 Mr W Loan -2,500,000 D Street, Suburb E property proceeds 1,400,000 Settlement 1,500,000 -1,500,000 1,500,000 147,213 Husband's other proposal G Street, Suburb H property proceeds 4,000,000 NAB Loan -1,252,787 Mr W Loan -2,500,000 Net proceeds 74,164 (30%) 173,049 (70%) D Street, Suburb E property proceeds 1,400,000 74,164 1,573,049
The husband’s first proposal would require him to obtain finance in his own name. There is no evidence of his ability to achieve that. Rather, the facts and circumstances are incontrovertibly against it. It can be disregarded on this ground alone.
The husband’s other proposal grossly offends subsection 79(2) and is disregarded.
I agree with the wife’s contention that the just and equitable outcome is that sought by her – that she retain her home, and indemnify the husband against liability for the secured home loan or any amount owing by her or the parties jointly to her father, and the husband retain the benefit of his interests in the D Street, Suburb E property.
I certify that the preceding two hundred and three (203) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansfield. Associate:
Dated: 28 July 2022
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