TOBEY & REZEK

FEDERAL CIRCUIT COURT OF AUSTRALIA

TOBEY & REZEK

[2015] FCCA 1504

Catchwords:
FAMILY LAW – Parenting – what orders to be made in the event that primary carer falls ill.

FAMILY LAW – Property Adjustment – assessment of contributions.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 90SM(4)

NHC & RCH (2004) FLC 93-204
In the marriage of Robb (1994) 18 FamLR 489
AJO & GRO (2005) FLC 93-218

Applicant:

MR TOBEY

Respondent:

MS REZEK

File Number:

CAC 740 of 2008

Judgment of:

Judge Jarrett

Hearing dates:

19 and 20 May 2014

Date of Last Submission:

20 May 2014

Delivered at:

Brisbane

Delivered on:

5 June 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Ms Godtschalk

Solicitors for the Respondent:

Legal Aid Commission ACT

ORDERS

That in addition to the orders made on 14 December 2011:
(a)the respondent continue to remain under the care of her present treating psychiatrist, Dr B, or such other treating psychiatrist as recommended from time to time by Dr B and be reviewed by that doctor at a frequency determined by the treating psychiatrist;
(b)in the event that the respondent’s treating psychiatrist determines that the respondent is temporarily too ill to care for the child, the child will live with Ms C until the respondent’s treating professional determines she is sufficiently well to resume care of the child;
(c)during any such time the orders in respect of the child's time with the applicant will continue;
(d)the respondent be forthwith entitled to any sum standing to the credit of the parties or either of them in an account held by the Legal Aid Commission ACT, and this order shall be sufficient authority for the Legal Aid Commission ACT to disburse those funds, or any part of them, to the respondent; and
(e)within 60 days of the date of these orders, the applicant pay the respondent the sum of $30,374.00.

IT IS NOTED that publication of this judgment under the pseudonym Tobey & Rezek is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT CANBERRA

CAC 740 of 2008

MR TOBEY

Applicant

And

MS REZEK

Respondent

REASONS FOR JUDGMENT

Mr Tobey and Ms Rezek formed an intimate personal relationship in about 2002. They started living together in 2003. They have one child of their relationship, X, who was born in 2005. The parties’ intimate relationship has come to an end, although they continue to have a relationship as the parents of X.
The parties physically separated in November 2007 when Mr Tobey went to Country D temporarily. At that stage, he did not intend that the parties’ personal relationship would come to an end but, according to her evidence, Ms Rezek had different ideas. Whatever the case, the parties’ intimate personal relationship ended either in late 2007 or early in 2008. The precise date upon which it ended is of no consequence to the outcome in these proceedings.
On 14 December 2011 orders dealing with both parenting and property adjustment issues between the parties were made following a trial of those issues. An appeal by Mr Tobey against those orders was partially successful and two of them, orders 16 and 20, were set aside by the Full Court on 7 May 2013. Order 16 concerned who might care for X in the event that his mother becomes unwell and unable to care for him. Order 20 concerned property adjustment and required Mr Tobey to pay to Ms Rezek $124,672.
These reasons concern the rehearing of the issues raised by the two orders set aside by the Full Court.
As to the parenting aspect of the matter, the issues evidenced by the way in which the parties conducted the case and their submissions are:
a)the nature and the extent of the relationship between X and
i)his father;
ii)his sister Ms E; and
iii)his maternal grandmother; and
b)the effect upon those relationships of the orders suggested by either party.
As to the property adjustment aspect of the matter, there are two issues relating to the assets and liabilities to be taken into account in the proceedings and issues concerning the weight to be given to the parties’ respective financial and non-financial contributions.

Procedural Background

Mr Tobey commenced these proceedings when he filed an application seeking an equal time and care arrangements for X on 21 May 2008. Interim parenting orders were made in June 2008. In each of 2009, 2010 and 2011, Mr Tobey filed a contravention application, one contempt application, at least seven applications in a case seeking various relief and he made at least three amendments to his initiating application.
Also in 2009 and 2010, Ms Rezek filed two applications in a case and commenced the property proceedings between the parties.
In August 2009 the application was scheduled for final hearing in relation to the arrangements for X. On that day, the parties entered into final consent orders. Those orders provided:
2. The parties equally share parental responsibility for the child and to this effect:
a. Each parent will provide an authority to the child’s school authorising the release of information to the other parent including but not limited to school reports, school photograph order forms, invitations and flyers for school events and that each parent is at liberty to attend events involving the child at school;
b. Each parent will provide an authority to each of the child’s treating medical practitioners authorising the release of information to the other parent regarding the child’s medical treatment;
c. Each parent will contact the other forthwith in the event of the following involving the child:
i.   A medical emergency;
ii. The child’s non attendance at school;
iii. Illness of the child.
d. Both parties are restrained from enrolling the child into additional extra curricular activities without the prior written consent of the other parent;
e. Each parent will take the child to extra curricular activities falling during the time that the child is in either party’s care, with extra curricular activities to include schooling, sporting or social activities that the child would ordinarily attend or have been invited to attend.
3. The parties agree to do all acts and things to enrol the child into A School and that the decision to commence or to delay schooling will be made jointly between the parents and the child’s pre school teacher.
4. The child will not commence schooling at A School unless the mother is residing in the Region G of Canberra at the commencement of the 2010 school year.
5. Unless as otherwise agreed between the parties in writing, the child will attend upon Dr O and/or J Medical Clinic (while the mother continues to reside close to it) for medical issues requiring a general practitioner.
6. In respect of any counselling or other psychological therapy which may be required for the child, both parties agree that they will consult with Ms H, or such other person as agreed between the parties in writing, as to an appropriate Psychologist or Counsellor for him.
7. The child namely X born in 2005 live with the mother.
8. The child spend time with the father as follows:
a. In 2009 (or until such time as X commences school):
i.   From after pre school Wednesday to the commencement of pre school Friday commencing 2 September 2009 in week one and each alternate week thereafter, and from after pre school Friday to 5pm Sunday until 16 October 2009, and thereafter from after pre-school Friday to before pre school Monday in week two and each alternate week thereafter;
ii. In addition to Orders 8(a)(i), during the 2009 Christmas school holiday period for 2 periods of three consecutive nights as agreed between the parties in writing and failing agreement, from 3pm Christmas Day to 5pm 28 December 2009 and from 10am 1^st January 2010 to 6pm 4^th January 2010;
b. In 2010 as follows:
i.   If X commences school in 2010, during school term times, from after school Wednesday to the commencement of school Friday day in week one (commencing the first week of the school year) and each alternate week thereafter, and from after school Friday to before school Monday in week two (commencing the second week in the school year) and each alternate week thereafter;
ii. Commencing in term 3 2010 (if X commences school in 2010), from after school Wednesday to the commencement of school Monday (commencing week 1 of the school term) and each alternate week thereafter:
iii. During the ACT school holiday periods Orders 8(b)(i) and (ii) be suspended and the father shall spend time with X as follows:
1. During the term 1 and 2 holiday periods for 4 consecutive nights as agreed between the parties in writing and failing agreement, from 5pm the last day of each gazetted school term to 5pm 4 nights thereafter;
2. During the term 3 holiday periods for 5 consecutive nights as agreed between the parties in writing and failing agreement, from 5pm the last day of each gazetted school term to 5pm 5 nights thereafter;
3. During the 2010/11 Christmas school holiday period from 5pm 20 December 2010 to 3pm Christmas Day 2010 and from 9am 1^st January 2011 to 5pm 6^th January 2011.
c. In 2011 and thereafter as follows:
i.   During each school term, from after school Wednesday to the commencement of school Monday (commencing week 1 of each school term) and each alternate week thereafter:
ii. During the 2011 ACT school holiday periods and thereafter as follows:
1. For one half of all ACT school holiday periods, inclusive of the Christmas holiday period, as agreed between the parties in writing and failing agreement, for the first half in odd numbered years and the second half in even numbered years.
9. Each party will spend time with X as follows:
a. On Mother’s and Father’s Day as follows:
i.   With the father each Father’s Day from 10.00am to 6.00pm;
ii. With the mother each Mother’s Day from 10.00am to 6.00pm.
b. On the parent’s birthdays as follows:
i.   With the father on the father’s birthday if falling on a school day from immediately after school until 8.00pm that day, and if falling on a non school day, from 10.00am to 6.00pm that day.
ii. With the mother on the mother’s birthday if falling on a school day from immediately after school until 8.00pm that day, and if falling on a non school day, from 10.00am to 6.00pm that day.
c. For the child’s birthday as follows:
i.   With the father from after school to 7.00pm if falling on a school day, and if falling on a non school day from 10.00am until 2.00pm that day, commencing in 2010 and each alternate year thereafter;
ii. With the mother from after school to 7.00pm if falling on a school day, and if falling on a non school day from 10.00am until 2.00pm that day, commencing in 2011 and each alternate year thereafter.
d. At such other times as agreed between the parties.
10.    The father communicate with the child each Wednesday between the hours of 7 and 7.30pm with the father to telephone the child for the purposes of exercising such time at times the child is not with the father.
11.    For the purposes of changeover of the child, each parent will collect and return the child on school/week days to and from the child’s pre school or school and if falling on non school days, changeover shall occur at ‘M Family Services’ if M Family Services is available (and the parties shall do all things necessary to ensure M Family Services is available as a changeover point) and if M Family Services is not available the changeover shall occur at N Plaza in Suburb P unless otherwise agreed between the parties in writing.
12.    No earlier than the commencement of the 2011 school year, if the father wishes to pursue an equal shared time care arrangement, the father will communicate with the mother in writing and will make arrangements for both parties to attend upon Ms H, or such other therapist as is agreed between the parties in writing, to review with the parties the proposed arrangements for X.
13.    Either party have liberty to apply in respect of these Orders.
14.    The mother, her servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the father or any member of his household or family in the presence or hearing of the child or from permitting any other person so to do.
15.    The father, his servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the father or any member of his household or family in the presence or hearing of the child or from permitting any other person so to do.
The final hearing in relation to property matters was listed for 2 June 2010. Ms Rezek became ill shortly prior to that date and the trial did not take place. Mr Tobey applied to reopen the proceedings about the parties’ son, X.
On 29 July 2010 interim consent orders were made for the care of X in the following terms:
1. The child X born in 2005 will live with the Father.
2. The Mother will provide a report from her treating psychiatrists.
3. The child will spend time with the Mother, at the home of Ms C, as follows:
a. From after school Friday until 4pm Saturday each week.
b. From after school until 7pm each Wednesday.
4. Changeover for these purposes will occur at the school where appropriate; at M Family Services where that is available; and otherwise the mother will engage a professional service to transport the child to either the father’s home or the N Plaza.
5. It is intended that these orders vary Order 3 of the orders of 4 June 2010.
The Mother has liberty to relist on 7 days notice after receipt of the report referred to in Order 2 above.
Those orders were short lived because on 12 August 2010 the Court ordered:
1. THAT until further order all current orders in relation to the child X, born in 2005 are suspended.
2. THAT until further order the child live with Ms F.
3. THAT the reports of Ms H and Ms K are released to the Office of Children Youth and Family Support and noting that Mr L has agreed to supply those documents.
4. THAT the matter is adjourned to 9:15 am on 17 August 2010 before Federal Magistrate Neville.
5. THAT neither parent contact the child until the adjourned date.
Mr Tobey filed an appeal against that order which he subsequently withdrew.
On 9 September 2010 the Court made further orders in the following terms:
1. The child X born in 2005 (‘the child’) live with Ms F.
2. The child spend time with the Father:
a. From after school on Friday until 4:00pm Sunday each alternate weekend commencing on Friday 10^th September 2010.
b. From after school on the last day of term 3 until 4:00pm on the middle Saturday of the school holidays (24^th September 2010 to 2^nd October 2010).
c. Changeover be effected at school where possible, and otherwise at M Family Services unless otherwise agreed.
3. The child spend time with the Mother:
a. From after school on Friday until 4:00pm Sunday each alternate weekend commencing on Friday 17^th September 2010.
b. From 4:00pm on the middle Saturday of the term 3 school holidays until the commencement of school in term 4 (2^nd October 2010 to 11^th October 2010).
c. Changeover be effected as agreed between the Mother and Ms F.
Mr Tobey filed an appeal against those orders. That appeal was determined on 8 April 2011. It was dismissed with costs.
On 23 May 2011, the parties commenced the final hearing of the outstanding parenting and property matters. The trial continued for five days and then was adjourned part-heard. It was completed on 7 and 8 September 2011. Judgment was given and orders were made on 14 December 2011. The orders provided:
(2)The child X born in 2005 live with the Mother.
(3)The Mother have sole parental responsibility for the child’s education and psychological testing, however, for his primary education the child is to remain at A School unless otherwise agreed.
(4)The Mother continue to authorise the child’s school and counsellors to provide information to the Father upon his request.
(5)Any information provided by the Father to the school or to the child’s counsellors shall be in writing and copied to the Mother.
(6)Each parent will provide an authority to each of the child’s treating medical practitioners authorising the release of information to the other parent regarding the child’s medical treatment.
(7) Each parent will contact the other forthwith, in the first instance by text message, then by email, in the event of the following involving the child:
(a)    A medical emergency;
(b)     The child’s non-attendance at school;
(c)      Illness of the child.
(8)The Mother and Father consult in relation to other issues of parental responsibility but in the event they cannot agree, the Mother shall make the final decisions.
(9)The child live with the Father as follows:
(a)    During the school term time in week one from the conclusion of school Friday to the commencement of school the following Monday and in each alternate week;
(b)    During school term time in week two from the conclusion of school Monday to the commencement of school Tuesday and in each alternate week;
(c)     For one half of all ACT school holiday periods, inclusive of the Christmas holiday period, as agreed between the parties in writing and failing agreement, for the first half in odd numbered years and the second half in even numbered years.
(d)    The Father’s time pursuant to order 9(a) will commence in the first week of school term if the Father exercised the first half of the holidays with the child and the second week in school term if the Father exercises the second half of the holidays with the child;
(e)     The Father’s time pursuant to order 9(b) will commence in the first week of school term if the Father exercised the second half of the holidays with the child and the second week in school term if the Father exercises the first half of the holidays with the child;
(f) The Father’s time with the child pursuant to Order 9(a) and (b) will be suspended during each of the ACT school holiday periods which are defined as commencing at the conclusion of school on the last day of each term and will resume at the commencement of school on the first day of the next school term period.
(10)Each party will spend time with the child as follows:
(a)    On Mother’s and Father’s Day as follows:
(i)With the Father each Father’s Day from 10.00am to 6.00pm;
(ii)With the Mother each Mother’s Day from 10.00am to 6.00pm.
(b)    On the parent’s birthdays as follows;
(iii)With the Father on the Father’s birthday if falling on a school day from immediately after school until 8.00pm that day, and if falling on a non school day, from 10.00am to 6.00pm that day.
(iv)With the Mother on the Mother’s birthday if falling on a school day from immediately after school until 8.00pm that day, and if falling on a non school day, from 10.00am to 6.00pm that day.
(c)     For the child’s birthday as follows:
(v)With the Father from after school to 7.00pm if falling on a school day, and if falling on a non school day from 10.00am until 2.00pm that day, commencing in 2010 and each alternate year thereafter;
(vi)With the Mother from after school to 7.00pm if falling on a school day, and if falling on a non school day from 10.00am until 2.00pm that day, commencing in 2011 and each alternate year thereafter.
(d)    At such other times as agreed between the parties.
(11)The Father will communicate with the child each Tuesday and Thursday between the hours of 7.00pm and 7.30pm with the Father to telephone the child for the purposes of exercising such time.
(12)For the purposes of changeover of the child, each parent will collect and return the child on school days to and from the child’s school and if falling on non school days, changeover shall occur at ‘M Family Services’ if M Family Services is available (and the parties shall do all things necessary to ensure M Family Services is available as a changover point) and if M Family Services is not available the changeover shall occur at N Plaza in Suburb P unless otherwise agreed between the parties in writing.
(13)The Mother may use an agent to effect the changeover. It is noted that, in the absence of notice by the Father via text message, the Mother will not be required to wait more than 20 minutes after the designated time for delivering the child to the Father.
(14)Unless as otherwise agreed between the parties in writing, the child will attend upon Dr O and/or J Medical Clinic (while the Mother continues to reside close to it) for medical issues requiring a general practitioner.
(15)In respect of any counselling or other psychological therapy which may be required for the child, both parties agree that they will consult with Ms H, or such other person as agreed between the parties in writing, as to an appropriate Psychologist or Counsellor for him.
(16)In the event the Mother’s treating psychiatrist or psychologist determines that the Mother is temporarily too ill to care for the child, the child will stay with either Ms F or Ms C until the Mother’s treating professional determines she is sufficiently well to resume care of the child, and the Orders in respect of the child’s time with the Father will continue.
(17)Each parent is restrained from using physical discipline upon, or verbal abuse directed to, the child.
(18)Each parent is restrained from disparaging the other parent to, or in front of, the child, or from permitting any other person to do so.
(19)Each parent is restrained from making any further applications in relation to the child without the prior leave of the Court.
(20)Within 60 days of the date of these Orders, the Applicant pay the Respondent the sum of $124,493.00.
(21)In accordance with section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of Mr Tobey from his interest in the Super Fund Q, Ms Rezek is entitled to be paid (by the Trustee of the Super Fund Q) the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulation 2001 using a base amount of $98,068.00 and there shall be a corresponding reduction in the amount Mr Tobey would be entitled to receive but for these Orders.
(22)A new assessment for child support be made at the earliest possible time after the date of these Orders.
(23)The Application to have the costs of Dr R shared equally between the parties is dismissed.

Mr Tobey lodged an appeal. The appeal was heard by the Full Court of the Family Court of Australia on 24 October 2012. Judgment was delivered on 7 May 2013. The Full Court set aside orders 16 and 20 of the orders set out above but otherwise left all of the other orders intact. The issues dealt with by those orders were remitted for rehearing.
An application for special leave to appeal the decision of the Full Court was dismissed by the High Court of Australia with costs on 13 December 2013.
From the above procedural history, two things are clear. First, there is no general remitter to this court of the application for parenting orders that were made on 14 December 2011. Second, the property adjustment order that was set aside was one of two orders which dealt with the property owned by the parties and their superannuation. It is only the order relating to the payment which has been disturbed by the Full Court and so the other order, a superannuation splitting order, must remain undisturbed.

Order 16 – Parenting Matters

The evidence in these proceedings demonstrates that these parties are engaged in intractable and long-standing conflict. There are few signs that the conflict is likely to abate. The conflict between the parties means that their co-parenting relationship is compromised. There is little in the evidence to suggest that their co-parenting relationship will improve.
Before proceeding further, it is as well to set out that X has a half-sister Ms E who was born in, 1997 and is now 17 years of age. Ms C is Ms Rezek’s mother and X’s maternal grandmother. Ms F is Ms E’s paternal grandmother.
The issue for determination is the person with whom X should live should his mother become unwell. There is no dispute between the parties that Ms Rezek suffers from bipolar affective disorder. It is well controlled by medication at the moment, although the evidence reveals that she becomes susceptible to the disorder when she is under stress. The last significant episode took place at the conclusion, or soon after the conclusion, of the trial in May 2011.
Ms Rezek’s disorder became florid and in December 2011 she was very unwell. She was admitted to hospital involuntarily. She was not discharged until February 2012. During that period, and pursuant to the orders made in December 2011, X remained living with his maternal grandmother, Ms C, and Ms E’s grandmother, Ms F. X’s care by those people was, according to the evidence, unremarkable and, according to the evidence of Ms C, went well.
Certainly, there is no suggestion from Mr Tobey that it did not go well, although he complains that he was not kept informed of what was going on. Clearly, however, it is the case that those caring for X ensured that X’s time with his father, pursuant to the orders of December 2011, took place.
Ms Rezek proposes the following orders:
1. That the mother continue to remain under the care of her present treating psychiatrist, Dr B, or such other treating psychiatrist as recommended by Dr B and shall be reviewed by that doctor at a frequency determined by the treating psychiatrist
2. That in the event that the mother's treating psychiatrist determines that the mother is temporarily too ill to care for the child, the child will live with Ms C until the mother's treating professional determines she is sufficiently well to resume care of the child, and the Orders in respect of the child' s time with the father will continue.
Mr Tobey proposes the following orders:
1. In the event that the respondent mother is too unwell to care for the child X, DOB 2005, the child shall live with the father.
2. For the purpose of order 1, the mother's treating psychiatrist is to assess the mother not less frequently than 3-monthly and conduct a full mental state examination.
3. For the purpose of order 1, the mother will be too unwell to care for the child in the event of:
a. A finding by the mother's treating psychiatrist of an abnormal mental state examination, or
b. Conduct of the mother which leads the mother's treating psychiatrist to believe that she is too unwell to care for the child, or
c. Non-compliance with treatment.
4. The mother will provide her treating psychiatrist with her mental health records as subpoenaed in this matter.
Mr Tobey’s case is that there are really two aspects of the issue that need determination. The first is a determination of the mechanism by which an obligation for X’s care to be undertaken by a person other than his mother is triggered when his mother is unwell; the second is who should undertake X’s care in the event that Ms Rezek is unwell and unable to care for him.
As to the first matter, it seems to me that it is outside of the remit of the Full Court. The order of the Full Court is:
(4) The issue of what parenting orders should be put in place for the care of the child in the event that the mother’s treating psychiatrist determines she is too ill to care for the child be remitted to the Federal Circuit Court for rehearing ….
(my emphasis)
It seems to me that the orders of the Full Court are made on the basis that it will be for the mother’s treating psychiatrist to determine in the way he or she sees fit, that Ms Rezek is too ill to care for X.
In any event, even if I am wrong about that, for the reasons that follow I would not make the order sought by Mr Tobey concerning the mechanism by which X’s care is to be undertaken by a person other than his mother is triggered when his mother is unwell. Mr Tobey caused a subpoena to be issued to Ms Rezek’s present treating psychiatrist. That person, Dr B, gave oral evidence. Dr B’s evidence was that it would be necessary to monitor Ms Rezek on a two-monthly cycle to ensure that she was capable of properly caring for X. He gave evidence that, in his experience, the onset of a period of difficulty for a person with bipolar affective disorder is often of a gradual nature. However, there is some evidence in this case, from Ms C, that on at least one occasion when Ms Rezek has become unwell, she has become unwell reasonably quickly. Mr Tobey is concerned, understandably, to put in place proper monitoring mechanisms which would lead to swift action should Ms Rezek become unwell.
But, the question that Mr Tobey requires answering is incapable of answer. As the evidence of Dr B demonstrated, there are no absolutes. Each period of decompensation or illness may be preceded by either a gradual or rapid onset of illness. For that reason, it is difficult to be dogmatic about a mechanism which would lead to the recognition of incapacity on the part of Ms Rezek.
Ms Rezek’s submissions focused on the relevant s.60CC factors. As counsel for Ms Rezek pointed out, given the age of this matter, it is the form of s.60CC which existed prior to the most recent amendments on 7 June 2012 which applies to this case.
The proposals of each of the parties address the primary considerations. Both parties’ proposals recognise that X will benefit from a meaningful relationship with each of his parents.
I had the opportunity of seeing Ms C cross-examined and given that she is the person that Ms Rezek contends should look after X in the event that Ms Rezek becomes unwell, her cross‑examination was important. Her answers to some questions that I asked her demonstrated that she had a poor view of the importance of X’s relationship with his father. The impression I formed was that she barely tolerated that relationship and if she was left to her own devices, as she has been in the past, X would only spend with his father the amount of time which has been ordered by the Court. That is so notwithstanding that, on the uncontroversial evidence, X has in the past asked to spend more time with his father. Her evidence was that on at least one occasion her answer to X was that it was not permitted by the Court orders. Further, whilst I am satisfied that Ms Rezek’s proposal might recognise the importance of the relationship and the benefit to be derived from the relationship between X and his father, her mother, Ms C, does not share that same view.
Thus, to the extent that Mr Tobey’s proposal would allow X to spend more time with Mr Tobey in the event that Ms Rezek becomes unwell, his proposal might bring more benefit to X. Against that proposition though, is that:
a)the current parenting orders provide for a certain regime to be in place whilst Ms Rezek is well. That parenting regime was not upset on appeal and must be taken to represent X’s best interests;
b)leaving aside special occasions, those arrangements provide for X to spend each alternate weekend, and overnight in the other week and school holiday time with Mr Tobey; and
c)Ms C has ensured X has spent the time provided for in those orders with Mr Tobey, when X has been in her care.
Neither party suggested that there was a need to protect X in this case from an unacceptable risk of physical, psychological or emotional harm by reason of X being exposed to abuse, neglect or family violence.
Both parties suggested that the willingness and ability of these parties to promote an appropriate relationship between X and the others was an important factor in this case. I have already made some observations about Ms C. She is not a party to these proceedings, but during the trial Ms Rezek’s counsel handed to the Court a written undertaking by Ms C that she would ensure that X spent time with Mr Tobey in accordance with the orders otherwise made in December 2011. The undertaking goes no further. I am not satisfied that beyond mere compliance with court orders for X to spend time with Mr Tobey she would actively and positively promote X’s relationship with his father if she were left to her own devices. Similarly, however, I formed the view that Mr Tobey was not likely to promote X’s relationship with Ms C in the event that he was caring for X whilst Ms Rezek was incapacitated. Further, I formed the view that he was unlikely to promote X’s relationship with Ms E.
It seems to be accepted, although there is no evidence before me from a professional person, that X and Ms E have a good and important relationship with each other. One of the mainstays of Ms Rezek’s argument is that if Mr Tobey was to care for X during relevant periods, then his relationship with Ms E will suffer because he will not be able to spend time with her. Certainly in the past Mr Tobey has not undertaken all of the steps that he could have to ensure that Ms E and X have spent time together. Between June 2010 and early August 2010 X was in Mr Tobey’s care and despite orders of this Court that he should spend time with Ms F (with whom Ms E then lived), X did not spend that time. Mr Tobey asserts that there was a stay of those orders in place, but there was no stay in place. His claims about that are disingenuous.
Against that, however, is the notion that Ms E is now 17 years of age. Her interests will, I assume, take her away from her household regularly and so her opportunities to spend time with X, even if he was to remain living with Ms C during the relevant periods may be limited.
There is no evidence before me about the changes or the likely effect of any changes in the parenting arrangements for X as each of the parties propose. That is the type of evidence that one would expect to be given by a family consultant, but there was no family report prepared for the purposes of these proceedings, although one was prepared in 2009 for the purposes of the earlier trial between the parties.
X has an entitlement to a relationship with his father. He also has an entitlement to a relationship with those other people that are important to him. The last time this matter was before the Court, X was much younger than he is now. When the orders were made in December 2011, X was six years of age. He is now nine. I accept that it is likely that he has a good and strong relationship with his sister Ms E and that he spends considerable time with her given that they live in the same household (albeit in different parts of the same house). I accept that he also has a good relationship with his mother and with his maternal grandmother, Ms C.
I do not accept the evidence of Ms C that after X has spent considerable periods of time with his father, his behaviour changes. I do not accept the reasons speculated upon by Ms C for those changes.
I do not propose to make the orders propounded by Mr Tobey that Ms Rezek’s mother's treating psychiatrist assess her not less frequently than 3-monthly and conduct a full mental state examination. In my view, Ms Rezek’s proposal that she continue to remain under the care of her present treating psychiatrist, or such other treating psychiatrist as recommended by her current treating psychiatrist, be reviewed by that doctor at a frequency determined by the treating psychiatrist is appropriate. I am of that view because it will permit Ms Rezek and her psychiatrist to work together in a way that best suits her needs. It might be that the frequency of consultation that is required is less than that proposed by Mr Tobey or it might be more. The point is that there is little benefit to ascribing an arbitrary time frame because, according to the evidence, the nature of Ms Rezek’s illness makes it unpredictable.
Whilst I understand that the orders proposed by Mr Tobey are not intended to impact upon the therapeutic regime under which Ms Rezek is treated, there is the risk that it will do so. It is a risk which is, in my estimation, unnecessary to take.
Moreover, because I propose to make the other parenting order providing for X’s care, the fact that Ms Rezek will have the support of her own mother is an important safeguard against Ms Rezek becoming unwell and her deterioration not being detected.
The proposals of each of the parties carry benefits for X. His mother’s proposal provides for a continuity of care in familiar surroundings should she become unwell. X’s relationships would remain largely unchanged, save that he might not see as much of his mother than he would if she was well. But his relationships with Ms E, Ms C and Mr Tobey will continue in much the same way as when Ms Rezek is well.
Mr Tobey’s proposal perhaps carries with it a benefit for X, namely the opportunity to be cared for more often and for longer periods of time by his father. But it is a benefit that must be approached within the context of the primary finding that X’s best interests are served by him living in his mother’s care most of the time and him living with his father as set out in the orders of December 2011. Further, Mr Tobey’s proposal carries with it the prospect of disruption in the continuity of X’s relationships with Ms E and Ms C. His relationship with his father would also change because he would be spending additional (although indeterminate) time living with him.
On balance, I consider that orders consistent with those sought by Ms Rezek are in X’s best interests. Those orders would reduce the potential disruption to X, both on a day-to-day basis and on a relationship level. He would continue living in more or less the same household. He would live with and spend time with those people who are important to him – his father, Ms E, Ms C and Ms F – in very much the same way as he would when his mother was well. The only issue with which he would have to deal is his mother being unwell. On Mr Tobey’s proposal, not only would he have to deal with that, he would also have to deal with some significant changes to his day-to-day life and relationships. In my view, Ms Rezek’s proposals carry more benefit to X than do Mr Tobey’s.

Property

The parties in this case commenced their relationship in 2002 and commenced living together in 2003. They separated in either late 2007 or early 2008. On any view, it was a short relationship.

Assets, liabilities and financial resources

At the commencement of the trial, counsel for Ms Rezek gave to me a schedule of the assets and liabilities that the parties own or for which they are liable. That schedule is exhibit 1 in the proceedings. The assets and liabilities set out in that schedule are agreed, save in two respects. I find that the parties assets, liabilities and financial resources are as follows:

Assets:	City S Property (H)	$1,100,000.00
Cash at bank (w)	$644.00
Cash at Bank (H)	$11,702.00
Cash at Bank (J)	$132,000.00
Furniture and household contents (W)	$4,400.00
Furniture and household contents (H)	$35,760.00
Legal Fees add-back (H)	$91,274.00
Vehicle (W)	$7,890.00	$1,383,670.00
Liabilities:	Mortgage – City S Property	$941,174.00
Income Tax (H)	$9,366.23	$950,540.23
Superannuation:	Wife	$146,171.00
Husband	$528,091.00	$674,262.00
Total Nett non-super assets:	$433,129.77
Total assets:	$1,107,391.77

I have indicated the legal ownership of the various assets and liabilities by indicating (H) for husband, (W) for wife and (J) where the asset is jointly owned. It can be seen that, for the purposes of these proceedings, Ms Rezek presently has property worth $159,105 ($12,934 in non-superannuation assets and $146,171 in superannuation). That takes no account of the joint funds presently held by her lawyers. Mr Tobey has nett assets of $816,286.00 ($288,195 in non-superannuation assets and $528,091 in superannuation assets).
The first issue that arises in respect of the asset and liability table is the inclusion in that table of an “add-back” for legal expenses that have been paid by Mr Tobey. As the table set out above demonstrates, I have determined to include in the asset table, as an add-back, legal fees in the sum of $91,274. That is an amount paid by Mr Tobey to his previous lawyers by way of fees for these proceedings and proceedings which have arisen from them. Originally, Ms Rezek claimed that the sum of $237,079 ought to be included as an add-back because that was the amount paid by Mr Tobey to his lawyers. But his evidence in cross-examination revealed that, of that sum, $91,274 was paid using borrowed funds that he raised on the security of a mortgage registered over some real property owned by him.
That real property, situated in City S, is a property which forms part of the asset pool for distribution between the parties in these proceedings. Thus, to the extent that Mr Tobey’s equity in that property was diminished by him raising borrowings to meet his legal expenses, the amount received by him should be added back to the asset pool (see NHC & RCH (2004) FLC 93-204 and AJO & GRO (2005) FLC 93-218).
In cross-examination Mr Tobey said that the balance of his legal fees was met from payments made by him from his income. I do not propose to add those funds back to the asset pool. The income from which he met those expenses was earned by him after the parties’ separation.
The second issue that arises in respect of the asset pool is whether a purported tax liability, to which Mr Tobey says he is subject, should be included. There is little evidence about the tax liability. The only evidence appears in Mr Tobey’s affidavit that was filed on 22 April 2014. As to the tax liability, Mr Tobey says that when the matter was before the Court in 2011, he had an estimated liability to the Australian Tax Office. There was no liability but, rather, his estimate of what might be owed to the Tax Office.
Subsequently, in submissions that he made to the Full Court of the Family Court of Australia, Mr Tobey said:
In reply to points 23 of the respondent, the appellant submits that his tax liability was reasonably incurred. An estimated liability of $60,000 was provided in the father’s financial statement filed 13 May 2011 (A200) and was the operable figure at the time of the hearing. The father told the court, at LN10-37, (A1617) that in the weeks before the resumption of the hearing on 7 September 2011, he had attempted to raise funds to allow continued legal representation. That was unsuccessful and led to a notice of discontinuance being filed by his lawyers on 5 September 2011. It is not surprising that the father had not allowed his unassessed tax liability to crystallise out of fear of prejudice to obtaining finance. (It should be noted, as included in the financial statement of 13 May 2011, that the father was fulfilling the majority of his tax obligations by PAYG on salary plus some provisional tax by instalments). That tax liability did crystallise on 2 April 2012 as $103,929.96 (annexure D affidavit filed 13 May 2012).

According to Mr Tobey’s evidence set out in paragraph 81 of his affidavit filed on 22 April, 2014:
I attach at “T8” advice from my tax accountant that my tax debt currently is $9366.23 and integrated client account stands at $115,547.50. This is the total amount owing to the Tax Office, including provisional tax, for the current year.
The integrated client account, which is “T8” to Mr Tobey’s affidavit, is largely uninformative. On its face, the document does not suggest that the amounts set out therein are amounts owed by Mr Tobey to the Tax Office. The balance of his income tax account (so described in the document) is $9366.23. The balance of the “integrated client account” is $115,547.50. It is not at all clear that those amounts are the amounts owed to the Taxation Office. Indeed, there is a note that appears on the document in this form: “Note that the total is not necessarily the total amount owed. At present, not all accounts can be viewed online and are not included in the total. There are limitations on the information displayed above.”
In any event, if the amount of $115,547.50 represented in the integrated client account is provisional tax for the current year, it is clear that that is an amount which has been provisionally assessed on income to be earned in the relevant taxation year, which is well after separation.
I have included in the abovementioned asset table the income tax debt of $9366.23. Although the evidence does not clearly disclose when that debt came into existence, or how it came into existence (that is to say whether it was incurred as a result of the earning of pre-separation income), I am satisfied of the existence of the debt. However, the balance of the alleged tax debt, given that it seems to be a provisional assessment for future income to be earned by Mr Tobey, I have excluded from the asset pool.
I find, therefore, the assets and liabilities as set out in the table set out above.

Section 90SM(4)(a) – 90SM(4)(c)

Initially when the parties commenced their relationship, Mr Tobey owned real property (referred to in the evidence as the Suburb T property) which he had purchased a couple of months earlier for $560,000. He financed the purchase of that property by paying a deposit of about $50,000 and borrowing the balance of $510,000 secured by mortgage against the property. He also had superannuation entitlements valued by the parties at about $62,467 (as at 30 June 2003) and a motor vehicle. Ms Rezek had some savings of about $6000, a motor vehicle and some Shares U with a value of about $4000.
Mr Tobey was the primary income earner during the course of the parties’ relationship. He is a health care worker by occupation and he has earned income from both employment and business. He earned approximately $300,000 per annum. Ms Rezek also worked full-time between 2003 until almost the time of X’s birth in 2005. Thereafter, she commenced a period of 12 months maternity leave. She earned approximately $36,500 per annum. She contributed her income, I accept, to the household expenses.
After 12 months of maternity leave, Ms Rezek returned to the workforce. She returned on a full-time basis but found that after the payment of child care and other expenses, she was earning very little. She moved her employment to part-time (20 hours per week) and earned about $20,000 per annum. In 2006 she ceased employment.
The parties are at loggerheads about which of them fulfilled the role as X’s “primary carer”. The attribution of labels is, however, unhelpful. What is important is the evidence about the contributions made by each of the parties.
I am satisfied that both parties participated in X’s care to the extent that their other commitments permitted. In the case of Mr Tobey, that meant that the opportunity that he had to spend time with and care for X was less than that which was available to Ms Rezek. Mr Tobey, on all of the evidence, was a busy full-time health care worker and it is not difficult to envisage that, by and large, X’s care fell to Ms Rezek, particularly after she ceased work in 2006. He was also an avid sportsman and participated in training and events. To the extent that Mr Tobey suggests that he provided more hands-on care to X than did Ms Rezek, I reject his evidence.
During their relationship, each party made the contributions of which they were capable. Mr Tobey made significant financial contributions from his income. Ms Rezek also made financial contributions, although to a much lesser extent. Following X’s birth, the nature of the contributions made by each of the parties changed. Mr Tobey continued to make the financial contributions that he had been making, but he also contributed to the household through his care of X.
However, I am satisfied by the evidence that Ms Rezek’s care of X was far greater than that provided by Mr Tobey. To the extent that labels matter, I considered that she was likely to have been X’s primary carer. That is so notwithstanding that she attempted to return to full-time work which, soon thereafter, became part-time work. But it is clear enough that, in 2006 she stopped working altogether.
I accept that both parties contributed to the chores of the household and that Mr Tobey participated in the cooking. He was also responsible for much of the yard work, whereas Ms Rezek was responsible for work inside the household. The parties had the benefit of a cleaner, paid for by the income generated by Mr Tobey, and whilst Mr Tobey paid for the cost of house repairs and the maintenance while the parties were together, Ms Rezek organised those matters. Ms Rezek looked after X when Mr Tobey was away with his sporting activities. She also cared for X when Mr Tobey was away on after-hours work, both during the week and on the weekends.
It is uncontroversial that Mr Tobey travelled interstate and overseas for work and sometimes for recreation. There is a dispute between the parties about how often he did that, particularly in the 2007 year, but nothing turns on the number of trips that he undertook. What is clear is that he undertook some trips and, during those periods, X’s care fell to Ms Rezek. He must have been satisfied with the standard of care that she was able to provide to X.
Whilst Mr Tobey undertook most of the gardening work at the property in which the parties lived, it is not the case that he was the sole contributor to that work. I accept Ms Rezek’s evidence that she also contributed. She assisted the parties to landscape, choose and cultivate plants and improve and maintain the health of the gardens that the parties established.
At the time the parties commenced their cohabitation, Ms Rezek had the full-time care of Ms E. Ms E lived with she and Mr Tobey and she was part of the household that the couple established. Mr Tobey provided care and attention to Ms E. He provided for her financially. Ms Rezek does not contend to the contrary. She accepts that Mr Tobey made significant contributions to the welfare of her daughter (both financially and non-financially) during their relationship.
When the parties separated in late 2007 or early 2008, Ms Rezek and X and Ms E remained living in the Suburb T property. They remained there until 13 March 2010. During that period, Mr Tobey continued to meet the mortgage repayments in respect of that property, as well as a range of other costs associated with it, such as rates and insurance. He also made other financial contributions and, in particular:
a)he paid some child support to Ms Rezek, although his child support payments were reduced to take account of his repayments of the mortgage and in respect of some leasing expenses for a motor vehicle;
b)he also made contributions to the leasing costs of a motor vehicle that was retained by Ms Rezek following separation. The lease payments included registration, insurance and petrol costs. However, once the lease term was complete, the vehicle was subsequently returned to Mr Tobey. In return, he gave to Ms Rezek $5000 to fund a replacement vehicle. Retrieving the vehicle from Ms Rezek was not easy and the parties engaged in litigation about that. Ms Rezek contends that once he received the vehicle back, Mr Tobey sold it for a sum far in excess of that which he paid to her for a replacement vehicle. But just what occurred with that vehicle is unclear. I am not satisfied by Ms Rezek’s evidence that it was sold for a greater sum than $5,000 as asserted by her.
The payments made by Mr Tobey in respect of the mortgage over the Suburb T property when he owned it are clearly direct financial contributions made by him to the conservation and maintenance of the Suburb T property. If he had not paid those payments, then presumably the secured creditor would have moved against the property and the parties would have lost it. The mortgage payments made by him assisted with the preservation of that property.
To the extent that Mr Tobey was the registered proprietor of that land, and therefore the legal owner, and to the extent that he permitted Ms Rezek and the children to remain in that property, he made a contribution to their welfare. Had he not done that, Ms Rezek and the children would have required alternate accommodation. That may have come at a cost to her. But Mr Tobey’s actions permitted her to remain X’s primary carer in familiar surroundings. It relieved her of some of the financial burden associated with accommodation. It is a significant contribution by Mr Tobey. That is not to lose sight of the fact that Ms Rezek had a legitimate expectation to share in that property or some of its sale proceeds, but Mr Tobey’s contributions were, in my estimation, far greater.
So too, the payment of leasing costs in respect of the motor vehicle that she used. It provided a significant indirect financial contribution and non-financial contribution to the welfare of Ms Rezek and the children. To that extent, Mr Tobey continued to make contributions to the welfare of Ms E in the sense explained by the Full Court in In the marriage of Robb (1994) 18 FamLR 489. He also made direct financial contributions in the payment of periodical sums of about $400 per week. Once Ms Rezek moved from the Suburb T property and into the granny flat with her own mother, Mr Tobey’s support of her in the ways that I have just mentioned came to an end.
Mr Tobey claims that he made payments necessary to prepare the Suburb T property for sale but I am not satisfied that those payments were necessary. I do not doubt that he made them but I am not satisfied, having regard to Ms Rezek’s evidence about the state in which she left the Suburb T property, that those payments were necessary. I accept Ms Rezek’s evidence about the state in which she left the Suburb T property in March 2010. I am satisfied by her evidence that the property was in good condition and it did not require the repair or maintenance that Mr Tobey subsequently undertook to the property. Certainly it was not necessary for the purposes of a sale of the property, although clearly there was some benefit to Mr Tobey to ensure that the property was presented in the best possible way for the purposes of sale.
Since the parties’ separation, Mr Tobey’s support for Ms Rezek’s daughter has come to an end. Ms Rezek has been primarily responsible for the care of X. Mr Tobey has made payments of child support but at the time of the trial, he was in arrears of about $2500. There was a period, between June 2010 and May 2011, or perhaps even as late as December 2011 where he paid no child support at all. For some of that time, and particularly in June and July 2010 X was in Mr Tobey’s care.
When taxed with why he had not paid any child support to Ms Rezek at certain times, Mr Tobey claimed that he was under no obligation to do so because there was no child support assessment in place. Whilst that might have been so, his response was disingenuous. Even though there may have been no child support assessment in place from time to time no doubt X’s needs continued and Ms Rezek required financial support to care for him.
In March 2010 Mr Tobey moved the Court for orders that Ms Rezek give up her occupancy of the Suburb T property. She did so willingly and she, X and her daughter then moved to a “granny flat” attached to her own mother’s residence.
Between 23 February 2010 and 24 May 2010 Mr Tobey paid to Ms Rezek $400 per week. After she vacated the Suburb T property, Mr Tobey undertook some work to the property so as to prepare it for sale. It is not entirely clear whether he now claims that the work that he did increased the price for which the property was eventually sold but, to the extent that is his case, the evidence does not bear that out. There is no suitably qualified expert evidence that bears on that issue.
In 2010 Mr Tobey purchased a property at City S for $1,080,000. He used the Suburb T property as security for the finance he raised to purchase that property. The Suburb T property was sold by Mr Tobey in 2010 and, at that point, an equity of about $425,000 had accumulated in the property. That equity was contributed wholly to the reduction of the borrowings raised by him to finance the purchase of the City S property. To the extent that Mr Tobey was able to acquire the City S property firstly using the Suburb T property as security and then the net proceeds to reduce the debt on the City S property, Ms Rezek has made an indirect financial contribution to the acquisition and conservation of that property. Ms Rezek did not have any legal interest in those proceeds. It is entirely arguable that she had no equitable interest in those proceeds either. But, nonetheless, having regard to the matters which had, up to that point in time, fallen between the parties it was clearly the case that she had an expectancy to some of those funds by way of property adjustment under the Family Law Act. Mr Tobey was able to use those funds, however, to assist him to reduce the borrowings he needed to purchase the City S property and thereby reduce his interest bill on those borrowings over time. He also occupied the City S property to the exclusion of Ms Rezek.
Ms Rezek was concerned about Mr Tobey’s dealing with the Suburb T property and his failure to accept a proposal by her that half of the equity in that property should be placed in trust for her benefit. Ultimately orders were made by this Court that ensured that the City S property was not further encumbered by Mr Tobey pending the outcome of these proceedings.
Since the orders of December 2011 the balance of the borrowings secured against the City S property has increased from $714,000 to $941,000. In cross-examination, Mr Tobey said that of the $233,000 increase, $91,274 was paid to his lawyers in discharge of a liability for some legal fees arising from these (in the broader sense) proceedings. The balance was used to pay to Ms Rezek’s solicitors the amount ordered to be paid in the orders of December 2011.
Having regard to all of those matters that I have just discussed, it is inescapable that Mr Tobey has made significantly greater financial contributions to the acquisition, conservation and improvement of the parties’ property. He did so at the commencement of the relationship, during the parties’ relationship and after it ceased. He made significant non-financial contributions to the welfare of the family constituted by he, Ms Rezek, X and Ms E.
Ms Rezek made far fewer direct financial contributions, although she did make some. She also made indirect financial contributions in the manner I have described above. Overwhelmingly, however, she made the greater contributions to the family as homemaker and parent, both during and after separation. She has been a more or less constant carer for X since his birth. That is despite the difficulties put in her way by Mr Tobey concerning accommodation, transport and child support.
Whilst it is important to provide proper recognition of the vastly superior financial contributions made by Mr Tobey, it is equally important to give proper recognition to the non-financial contributions made by Ms Rezek to the care and welfare of the parties’ child, most particularly in the post-separation period. Whilst it is the case that Mr Tobey has provided for some of that period in a very significant way, it is also the case that, for the whole of that period (leaving aside a short period when X was in Mr Tobey’s care), Ms Rezek has been responsible primarily for X. Those matters each need to be given appropriate weight and, in my view, the assessment I have arrived at recognises the weight to be given to each of those contributions appropriately.
I am satisfied that, as at the date of the trial, I ought to see the parties’ contributions to the acquisition, conservation and improvement of their property, as favouring Mr Tobey. In my assessment, I should determine that the parties have contributed to their property in the proportions of 75 per cent to Mr Tobey and 25 per cent to Ms Rezek.
Thus, on the basis of that assessment, Mr Tobey is entitled to $885,913.77 and Ms Rezek is entitled to $221,478.

Section 90SM(4)(e) – 90SM(4)(g)

The parties identified a number of matters as relevant to whether there ought to be an adjustment of their contribution based entitlement on way or the other.
Ms Rezek identified the disparity in the parties’ earning capacity. Presently Mr Tobey earns in excess of $370,000 per annum gross according to his financial statement filed on 22 April 2014. Ms Rezek earns a fraction of that. Her current part-time income is about $33,000 per annum gross. She also receives $121 a week from Centrelink, $80 a week by way of child support from Ms E’s father and $292 a week from Mr Tobey for child support.
Ms Rezek will continue to be primarily responsible for X’s care when she is well. He spends 10 days out of every fortnight with her and, according to the material; she meets many of X’s expenses. X attends a grammar school and Mr Tobey meets the costs associated with that. Although, Ms Rezek purchased all of X’s uniforms and books for this academic year.
There is a contest between the parties about their standards of living since separation and, most particularly, since Ms Rezek vacated the Suburb T property. She contends that Mr Tobey now lives in a heritage listed house which is of a relatively grand scale. She suggests that his standard of living, having regard to his income and the property that he is able to afford, is much greater than hers. She suggests that she has a much lower income, as indeed she does, and she lives in accommodation which is not of the same standard as that occupied by Mr Tobey. I accept her arguments in that regard.
Mr Tobey suggested that Ms Rezek’s current arrangements were perfectly adequate and delivered to her a great deal of amenity. He suggested that she was living in a property which well suited her needs. The difficulty, of course, with that argument is that Ms Rezek is sharing her accommodation with her mother. Although she lives in a granny flat which, according to the evidence, is semi-detached from her mother’s residence, the fact is that she cannot afford her own accommodation. She is relying on the good graces of her mother to provide accommodation to her. It is hardly a satisfactory arrangement for a person who has significant responsibilities for two children.
Mr Tobey has significant financial resources. Under the superannuation splitting orders, which will remain undisturbed, he has superannuation of a little more than $528,000. Ms Rezek has superannuation of a little over $146,000. He also has the City S property.
Whilst Mr Tobey has been paying his assessed child support, at the time of the trial he was in arrears. He has failed to pay in the past. I note that he meets X’s school fees directly and some other expenses, but I am satisfied that Ms Rezek will not be paid anything other than the amount assessed by way of child support from time to time. Ms Rezek wishes to continue in her role as parent for X. The orders of December 2011 provide for that and she should be supported in that endeavour.

I accept Ms Rezek’s submissions that it is necessary to adjust the parties’ contribution based entitlement to take account of the matters I have just outlined. It is appropriate, in my view, to adjust that contribution based assessment by a further $100,000 or a little less than one third of Mr Tobey’s annual gross income. It is less than 10% of the value of the nett asset pool. Combined with her other resources that would provide her with some cash resources from which she might fund some independent accommodation for she and X.
That would mean that Ms Rezek would be entitled to $321,478. Mr Tobey would be entitled to the balance of $785,913.77.

Just and Equitable

There is no doubt, in my view, that it is just and equitable to make an order for property adjustment in this matter. Neither party contends to the contrary.
The form of the order is limited by the remitter of the Full Court to the amount, if any, that ought to be paid by Mr Tobey to Ms Rezek given the other assets that each of them have.
The total asset pool is $1,107,391.77. Of that presently Ms Rezek has superannuation of $146,171 and other assets with a value of $12,934.00. She has total assets totalling $159,105.00. To make up her entitlement, it is appropriate that Mr Tobey pay her the amount of $162,374.00. Legal Aid presently holds $132,000, plus accretions on that sum. Ms Rezek is entitled to those accretions because she is, on my view, and has been since the orders of December 2011 entitled to the funds held by Legal Aid. Those accretions, if any, should not count towards her entitlement in this case.
To make up Ms Rezek’s entitlement, Mr Tobey should pay her an additional $30,374.00.

Conclusion

For the reasons expressed above, I make the orders set out at the commencement of these reasons.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate:

Date: 5 June 2015

[2015] FCCA 1504

5 June 2015

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