Bannerman & Bannerman (No 4)
[2024] FedCFamC2F 1865
•23 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bannerman & Bannerman (No 4) [2024] FedCFamC2F 1865
File number(s): MLC 3796 of 2022 Judgment of: JUDGE GLASS Date of judgment: 23 December 2024 Catchwords: FAMILY LAW – PARENTING – where the mother has neglected the child - where the child’s views are given reduced weight in circumstances where the child has been significantly influenced by the mother – where it remains in the child’s best interests not to spend time with the mother - where the father will continue to have sole parental responsibility
FAMILY LAW – PROPERTY – where the matter proceeded on the husband’s evidence – where there is to be a 55/45 non-superannuation asset split in favour of the husband – where there is an equal superannuation split – where joint proprietorships are severed - where proceeds of sale of a property go to the wife and a property be transferred to the husband
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DAA, 75, 79, 90XT, 102NA, 117
Family Law (Superannuation) Regulations 2001 (Cth) pt 6, reg 13
Cases cited: Agambar& Agambar (2014) FLC 94-049
Anson & Meek (2017) FLC 93-816
Bain & Bain (deceased) (2017) FLC 93-772
IMM & The Queen (2016) 257 CLR 300
Preston & Preston (2022) FLC 94-108
Stanford v Stanford (2012) 247 CLR 108
Taffner & Taffner (2021) FLC 94-022
Yavuz & Yavuz & Anor (2017) FLC 93-771
Division: Division 2 Family Law Number of paragraphs: 129 Date of hearing: 3-5 June and 18 December 2024 Place: Melbourne Counsel for the Applicant: Mr Lovering Solicitor for the Applicant: J S Law The Respondent: Appearing on her own behalf Counsel for the Independent Children's Lawyer: Ms Tiernan Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 3796 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BANNERMAN
Applicant
AND: MS BANNERMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
23 DECEMBER 2024
THE COURT ORDERS THAT:
Parenting
1.The Applicant Father have sole parental responsibility in relation to the child X born in 2008.
2.The child live with the Applicant Father.
3.The Respondent Mother spend no time with the child.
Property
4.The Applicant be forthwith appointed as the Trustee for the sale of the real property situate at and known as M Street, Town E in the State of Victoria and more particularly described in Certificate of Title Volume … Folio … and Volume … Folio … (the "M Street property") and he shall place the real property on the market for sale ("the sale") in the following terms and conditions:
(a)the Applicant shall nominate a real estate agent within seven days of the date of these Orders and provide the details of the agent to the Respondent;
(b)the method of sale be by public auction or as otherwise recommended by the agent;
(c)the reserve price be as reasonably recommended by the agent;
(d)the contract of sale be an unconditional contract of sale providing for a settlement period of not more than 90 days;
(e)the Applicant nominate a conveyancer within seven days of the date of these Orders and provide details of the agent to the Respondent;
(f)the Applicant is authorised to, and is appointed the agent of the Respondent, to execute all documents on behalf of the Respondent as may be required to comply with the sale, including but not limited to all sales authorities, PEXA authorities, a Contract of Sale, a Transfer of Land, a Discharge of Mortgage and such like forms;
(g)for the purposes of any PEXA transaction to give effect to these Orders, the Applicant be appointed as the attorney for the Respondent including but not limited to providing verification of identity on her behalf; and
(h)the Applicant shall keep the Respondent advised of all decisions made in relation to the sale of the M Street property.
5.On settlement of the sale of the M Street property the proceeds be applied as follows:
(a)first to pay all costs, commissions and expenses of the sale, including the reasonable costs of the conveyance;
(b)second, to discharge the joint Commonwealth Bank Mortgage (Mortgage No. …) secured against the M Street property and the real property situate at and known as B Street, Town E in the State of Victoria and more particularly described in Certificate of Title Volume … Folio … (the "B Street property");
(c)third, to discharge any Capital Gains Tax liabilities;
(d)fourth, any amounts required to discharge the following caveats lodged against the M Street property:
(i)Caveat lodged by N Law Firm (Caveat No. …); and
(ii)Caveat lodged by O Law Firm (Caveat No. …); and
(e)fifth, the balance then remaining to the Respondent.
6.Within 90 days of the settlement of the sale of the M Street property, the Applicant pay to the Respondent the sum of $X to be calculated in accordance with the following formula:
$X = [(A + $569,483) × 45%] - A - $56,280 - $14,172.12
Where:
A is the balance remaining after compliance with paragraphs 5(a), (b) and (c) of these Orders;
$569,483 is the total value of the non-superannuation property interests of the parties as found excluding the value of the M Street property and loan to be discharged upon its sale;
$56,280 is the total value of the non-superannuation property interests to be otherwise retained by the Respondent; and
$14,172.12 is the total value of prior costs Orders payable by the Respondent to the Applicant.
7.Pending the sale and settlement of the M Street property:
(a)the Applicant shall have the sole right to occupy the M Street property;
(b)the Applicant and Respondent hold their respective interest in the real property upon trust pursuant to these Orders;
(c)neither the Applicant or Respondent shall further encumber the M Street property without the consent in writing of the other party; and
(d)each of the Applicant and Respondent will cause to be repaired any damage to the M Street property caused by them, such repair to be at such party's own expense.
8.That contemporaneously with Order 5, the Applicant be appointed as the Trustee in order to do all acts and sign all documents as are necessary to transfer to the Applicant at the expense of the Applicant all of the Respondent's right, title and interest in the B Street property.
9.The Applicant is authorised to, and is appointed the agent of the Respondent, to execute all documents on behalf of the Respondent as may be required to comply with the transfer, including but not limited to all PEXA authorities, a Transfer of Land, a Discharge of Mortgage and such like forms.
10.For the purposes of any PEXA transaction to give effect to these Orders, the Applicant be appointed as the attorney for the Respondent including but not limited to providing verification of identity on her behalf.
11.The Applicant shall keep the Respondent advised of all decisions made in relation to the transfer of the B Street property.
12.That pending the transfer of the B Street property:
(a)the Applicant have sole occupation of the B Street property and pay all instalments pursuant to the mortgage, rates and taxes and like apportionable outgoings of the B Street property as and when they fall due;
(b)the parties hold their respective interests in the B Street property upon trust pursuant to these Orders; and
(c)neither party encumber or further encumber the B Street property without the consent in writing of the other party.
13.Within 14 days of the date of these Orders, the parties do all things and sign all documents necessary to transfer the balance of the parties’ redraw facility to the Applicant.
Motor Vehicles
14.Within 14 days of the date of these Orders, the parties do all acts and things and sign all necessary documents to transfer the registration of Motor Vehicle 1 into the Respondent's name.
15.Within 14 days of the date of these Orders, the parties do all acts and things and sign all necessary documents to transfer the registration of Motor Vehicle 2 into the Applicant's name.
Superannuation
16.For the purpose of these Orders, pursuant to Section 90XT(1)(a) of the Family Law Act 1975 (Cth):
(a)the operative time is the date 4 days after service of these Orders on the trustee;
(b)the member spouse is the Applicant Husband, Mr Bannerman, born in 1965; and
(c)the additional member spouse is the Respondent Wife, Ms Bannerman, born in 1969.
17.The base amount allocated to the Respondent Wife, the additional member spouse is $228,015.22 of the interest held by the member spouse in Super Fund 1.
18.Whenever the trustee makes a splitable payment for the interest held in Super Fund 1 by the member spouse, Mr Bannerman, born in 1965, the trustee shall pay to the additional member spouse, Ms Bannerman, her entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there shall be a corresponding reduction in the entitlement that the member spouse would have had but for these Orders.
19.The Applicant be restrained by himself, his servants or agents from making any binding death benefit nomination to the trustee of Super Fund 1 in favour of any child who is an eligible beneficiary within the meaning of Regulation 13 of the Family Law (Superannuation) Regulations 2001 which would have the effect of diminishing the value to the Respondent Wife of the splitting Order made in Paragraph 27 of these Orders.
20.Paragraphs 16 to 19 (inclusive) of these Orders are binding on the trustee of Super Fund 1.
21.Each party and the trustee of Super Fund 1 have liberty to apply in relation to the implementation of the orders affecting the superannuation interest.
Other
22.The Applicant be solely responsible for and indemnify the Respondent against any liability arising from:
(a)the DD Company Credit Card;
(b)the Z Bank Loan;
(c)P Pty Ltd; or
(d)any other liability held in his sole name.
23.The Respondent be solely responsible for and indemnify the Applicant against any liability arising from:
(a)the Z Bank credit card;
(b)personal loan from Ms Q;
(c)outstanding legal fees with N Law Firm;
(d)outstanding legal fees with O Law Firm;
(e)outstanding toll invoices with R Authority;
(f)HECS Debt; and
(g)any other liability held in her sole name.
24.The Applicant retain free from claim by the Respondent and for his sole use and benefit the following:
(a)P Pty Ltd;
(b)his personal bank account; and
(c)farm equipment.
25.The Respondent retain, free from claim by the Applicant and for her sole use and benefit the following:
(a)Vehicle 3;
(b)Vehicle 4;
(c)Vehicle 5
(d)shipping containers x 2;
(e)animal equipment;
(f)animals in her possession; and
(g)Vehicle 6.
26.The parties must each immediately do all acts and things and give all consents and execute all deeds, documents and instruments necessary to give effect to these Orders.
27.The parties forthwith do all such acts and things and sign all documents as may be necessary to enable the other party to comply with his/ her obligations under these Orders.
28.Unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money under these or any subsequent orders:
(a)each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these Orders including choses-in-action, any jewellery, furniture, furnishings, and motor vehicles;
(b)moneys standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held save for any joint account in which funds are to be divided equally and the account closed;
(c)each party hereby foregoes any claims they may have to any insurance policies or superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance stand shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other;
(d)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to the sealed final Orders; and
(e)any joint tenancy is severed
29.The Independent Children’s Lawyer be discharged.
30.All extant applications be dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
Mr Bannerman and Ms Bannerman commenced cohabitation in 1995, married in 1996, and separated in January 2022.
They have three children together, Mr S, Ms T and X, aged 28, 25 and 16 years old respectively. X currently lives with Mr Bannerman and spends no time with Ms Bannerman.
Arising for determination are parenting and property applications.
Mr Bannerman seeks the orders contained in Exhibit A2 as amended orally in closing address. He relies on his Affidavit filed 9 May 2024 and Financial Statement filed 10 May 2024. He relies on his Outline of Case filed at 9.19 pm on 30 May 2024.
The Independent Children’s Lawyer relies on the documents set out in her Outline of Case filed 31 May 2024.
At the commencement of the final hearing Ms Bannerman outlined the orders she proposed in Exhibit R3. She relied on a number of identified documents.
After two previous final hearings had been adjourned, the final hearing of the applications commenced on 3 June 2024. Mr Bannerman gave his evidence and was cross-examined by the Independent Children’s Lawyer that day. By virtue of the operation of section 102NA of the Family Law Act 1975 (Cth), Ms Bannerman was prohibiting from cross-examining Mr Bannerman. She had failed to engage legal representation pursuant to a request previously made to Victoria Legal Aid to provide assistance to her under the cross-examination scheme.
On 4 June 2024, Ms Bannerman commenced giving her evidence. After the luncheon adjournment that day, she complained that she was “struggling”, “feeling sick” and “getting a migraine”. The case was adjourned to 6 June 2024.
On 6 June 2024, Ms Bannerman advised that the Court that she “can’t proceed in this manner”, that “I have a migraine and I’m in excruciating pain and I can’t make any decisions and I can’t proceed with this.” For reasons then given, I adjourned the proceedings to the next available days of hearing, 18 and 19 December 2024.
On 18 December 2024, Ms Bannerman arrived to Court late. She did not respond to an enquiry as to whether she appeared. She sat in the back of Court and refused to approach the bar table. She repeatedly interjected when I was addressing counsel. She refused to desist doing so. She was non-responsive to questions as to whether she appeared or was prepared to participate in the proceedings. She refused to respond to an enquiry as to whether she required expert witnesses for cross-examination. She refused to indicate whether she was prepared to continue giving her evidence. I adjourned briefly to allow Ms Bannerman to consider her position. When Court resumed, Ms Bannerman continued to refuse to engage with the Court. She refused to acknowledge her presence in the courtroom. She continued to refuse to approach the bar table. She continued to repeatedly interject. On the application of Mr Bannerman and the Independent Children’s Lawyer, I determined to proceed in her absence. Ms Bannerman had by then declined multiple opportunities to continue participating in the final hearing.
Because of Ms Bannerman’s unavailability to complete her cross-examination, I decline to afford her evidence any significant weight. The oral evidence she did give was at times fanciful and lacking in plausibility. For example, Ms Bannerman was asked in cross-examination whether she accepted the Court’s jurisdiction. She answered “yes. In part”. When she was asked to explain which parts she accepted and which parts she didn’t, she gave evidence “we stand under the Crown” but that we “should be under the unicorn and the lion”, “under the United Kingdom… because we’re a corporation in this building”.
Ms Bannerman demonstrated repeated reluctance to give straightforward answers to straightforward questions. Some of her evidence is clearly fanciful, other parts are incoherent, confusing or deliberately obfuscating. Her presentation to the Court was consistent with the description given to her presentation by psychiatrist Dr J:
[Ms Bannerman] proved difficult to obtain a contained personal history. She tended to digress into overly-inclusive and sometimes tangential responses. She often needed to be interrupted and redirected. It was evident at times that she didn’t volunteer all relevant information…[1]
Although the following evidence of Dr J was focused on one aspect of Ms Bannerman’s narrative to him, I find it to accurately reflect my general impression of her oral evidence to the Court:
[Ms Bannerman] provided a vague and discursive account of her formal psychiatric history. She was similarly generally rather discursive for large parts of the assessment. It appeared difficult for her to succinctly respond to direct questions; instead, she often digressed into loosely relevant content that was often difficult to redirect. She appeared to provide an abbreviated, tailored and possibly partly inaccurate account of her psychiatric history. This was later demonstrated upon receipt of the medical file notes.[2]
[1] Affidavit of Dr J filed 19 July 2023, page 10.
[2] Affidavit of Dr J filed 19 July 2023, page 24.
Because of Ms Bannerman’s failure to prosecute her case, I also decline to place any weight on the other evidence upon which she sought to rely.
Mr Bannerman was cross-examined by counsel for the Independent Children’s Lawyer. There was nothing about the way he answered questions that caused me to doubt the reliability of his evidence. Whilst he at times became quite discursive in his responses, he realised as much, and enquired whether he had answered the questions put to him. His answers were responsive.
The Independent Children’s Lawyer took up with Mr Bannerman some matters of disagreement between the parties. Mr Bannerman’s oral evidence was consistent with his affidavit evidence. Again, there was nothing about the way he gave his oral evidence that caused me to doubt it.
It is not suggested, and I do not find, that any of Mr Bannerman’s evidence is so incredible, fanciful, preposterous or unreasonable that it cannot be reasonably accepted.[3] Even though unchallenged evidence may be rejected,[4] I find no basis here to do so. I accordingly accept Mr Bannerman’s evidence.
[3] IMM & The Queen (2016) 257 CLR 300 at [39] and [58] per French CJ, Kiefel, Bell & Keane JJ; Bain & Bain (deceased) (2017) FLC 93-772 at [114].
[4] Agambar & Agambar (2014) FLC 94-049 at [24] and the cases there cited.
Dr F prepared a Family Report. Neither Dr J nor Dr F were required for cross-examination.
PARENTING
Mr Bannerman proposes that he have sole parental responsibility for X, that X live with him, and spend no time with Ms Bannerman.
He had originally proposed in the alternative that X spend professionally supervised time with Ms Bannerman once per month. He had also originally proposed that Ms Bannerman and X be at liberty to send each other cards, gifts and photographs. Both proposals were ultimately abandoned by him.
The Independent Children’s Lawyer supports Mr Bannerman’s proposal.
The applications fall to be determined by reference to Part VII of the Family Law Act 1975 (Cth). I am guided by the objects of that Part.[5] X’s best interests are the paramount consideration.[6] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.
[5] Family Law Act 1975 (Cth), s 60B.
[6] Family Law Act 1975 (Cth), s 60CA.
Before turning to those considerations, it is instructive to recite some relevant background.
Upon the parties’ separation in January 2022, X lived with Ms Bannerman and spent ad hoc time with Mr Bannerman. In March 2022, Ms Bannerman ceased facilitating X’s time with Mr Bannerman.
On 1 September 2022, X commenced living with Mr Bannerman pursuant to interim Orders, and thereafter spent no time with Ms Bannerman for a period of three months. X commenced spending supervised time with Ms Bannerman in December 2022.
On 23 June 2023, contrary to Court Orders, Ms Bannerman unilaterally retained X in her care. On 1 August 2023, Court Child Services facilitated X’s return to Mr Bannerman’s care. A moratorium was then imposed on X’s contact with Ms Bannerman until further order.
On 24 April 2024, a Recovery Order issued for the return of X to his father’s care after he had been overheld by Ms Bannerman’s mother.
What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of X and each person who has the care of X (whether or not a person has parental responsibility for the child)
For reasons that follow, I conclude that X’s safety from being exposed to neglect and family violence is promoted by him continuing to live in Mr Bannerman’s care and not spend time with Ms Bannerman. I am not satisfied that the risk can otherwise be ameliorated on the evidence now before me.
Any history of family violence, abuse or neglect involving X or a person caring for him (whether or not the person had parental responsibility for X)
Ms Bannerman has neglected X’s needs, and in particular, his educational needs. She has yelled at X for wanting to attend school rather than stay home.
In January 2022, Ms Bannerman told Mr Bannerman that she would be home-educating X and that X would not be returning to school. In March 2022, she removed X from the school he was then attending, C School in Town V. X missed five months of school. There is no evidence he was in fact home-schooled during that period. His absenteeism was described by his school principal as “extreme”,[7] given he had only attended 20% of school in 2022 as at July of that year.
[7] Affidavit of Mr Bannerman filed 9 May 2024, paragraph 159.
Dr F asked Ms Bannerman why X had missed so much school. He reports that:
… her answer was vague and somewhat avoidant as if him missing school didn’t matter because he had been with her, and she briefly referred to her trying to home school him and keeping him home for all of several months because he didn’t want to go to school, and that he had been bullied without any further rational explanation of any action she had taken with the school or father to try to get him back to school, except to blame the school this time, rather than possibly anything she might be doing that might be associated with his very extensive school absences.[8]
[8] Family Report, paragraph 26.
There is nothing in the evidence that satisfies me that Ms Bannerman has now acquired the insight or skills necessary to ensure that X’s educational needs are not neglected by her.
In early 2022, Ms Bannerman neglected X’s needs in other ways. She was engrossed in online activities at night until the early morning and frequently did not wake to take X to school. Ms Bannerman ignored X for long periods, leaving him to his own devices. He spent more than 50 hours per week on his gaming console. Ms Bannerman restricted X’s social interaction with peers and access to immediate family members. In her care, X stopped attending extra-curricular and sporting activities, and stopped socialising with school friends.
In March 2022, Ms Bannerman failed to collect X from school. In August 2022, Ms Bannerman claimed that she could not get X out of bed. Despite repeated correspondence from Mr Bannerman’s solicitor and the Independent Children’s Lawyer, Ms Bannerman failed to engage a recommended child psychologist for X. X reported to Dr F that Ms Bannerman had not taken him to see a doctor or counsellor to deal with his panic attacks.
Ms Bannerman has also perpetrated family violence. She has been verbally abusive towards, and angrily berated, Mr Bannerman, causing him fear. She has slapped Ms T and called her a “slut” in a fit of rage when they were shopping together. She has otherwise verbally abused Mr S and Ms T. In January 2022, Ms Bannerman yelled at X when he accidentally knocked kitchen utensils to the ground.
Although Ms Bannerman had made allegations of family violence in these proceedings against Mr Bannerman, she has ultimately failed to prosecute her case. Mr Bannerman’s evidence that he has not committed family violence towards Ms Bannerman or X is unchallenged, as is his evidence that he has never neglected or abused any of his children. I accept his evidence and find that Mr Bannerman has not perpetrated family violence, neglect or abuse.
Any family violence order that applies or has applied to X or a member of his family
In mid-2022, a final Intervention Order was made protecting Ms Bannerman and X from Mr Bannerman for a period of six months. The Order was made by consent without admissions as to the allegations contained in the application.
In late 2022, the Intervention Order was extended for a period of six months, again by consent without admission of the allegations.
In mid-2024, an interim Intervention Order was made for the protection of X and Mr Bannerman from Ms Bannerman on the application of police.
Any views expressed by X
X has consistently expressed a desire to live with Ms Bannerman.
In July 2023, at the time of Dr F’s assessment of the family, X was living with Ms Bannerman. X refused to have anything to do with Mr Bannerman during Dr F’s assessment. X claimed that “not for one second had he ever been happy living with the father”.[9] Dr F observed that “the child has quite suddenly turned against the father and has accused him of gross and long-term family violence and now is wanting nothing to do with him.”[10]
[9] Family Report, paragraph 6.
[10] Family Report, paragraph 7.
X has referred to Ms Bannerman’s more permissive approach to parenting. He told Dr F that Mr Bannerman has more “structure and rules” than Ms Bannerman and that “yes I hated it … Dad was far too hard at times, but Mum lets me do what I like most of the time.”[11] He also said that “Mum let me stay home”.[12]
[11] Family Report, paragraph 36.
[12] Family Report, paragraph 35.
Dr F postulated that:
… some of the child’s professed negativity towards the father simply may be related to his seeming adolescent acute egocentrism and selfish needs, and how he views and acts in his world, and it seemed quite clear from a few statements he made during his interview, if he lives with father he will have relatively fixed structures, rules, and expectations of him, which he strongly opposes, whereas when living with the mother, as possibly indicated by his extreme school absences in 2022, he can basically manipulate her and do whatever he likes.[13]
[13] Family Report, paragraph 68.
Dr F was sceptical as to the veracity of X’s claims of family violence perpetrated by Mr Bannerman. He opined that:
Overall, given his professed anxiety and state of acute worry about the father what struck the writer about the child was that, despite his professed utter anxiety and hatred about the father and knowing he was outside in the street in his car and hence very close to him now, he presented so calmly and he seemed so relaxed in his body language and in the tone and pace of his speech, and such clearly belied some if not all of the comments he made about having acute ongoing anxiety about his schooling, or indeed especially about his acute anxiety and hatred of the father.[14]
[14] Family Report, paragraph 39.
Dr F was also sceptical of the extent to which X’s views represented his own views. He observed:
… the child and found him to be articulate and to use language in a quite sophisticated way but what was noticeable was how often he referred to negative issues in much the same way as the mother, and he even used similar words and almost identical phrases or stories at times to describe the father’s alleged abuse of him (ie., he dragged me hard, he threw me; he is very calculating and so controlling), and he gave the impression of either having been coached by the mother, or being quite impressionable and being easily manipulated by her against the father.[15]
[15] Family Report, paragraph 5.
Further, Dr F opined that:
… if the writer’s impressions were to be close to the mark, the question must be asked how much of what he has said, either about the school or the father are his words and feelings, or they in fact him parroting the mother’s words and what he knows of her feelings where presumably he well and truly knows that by playing her game he can continue to live with her and do seemingly very much what he pleases, as opposed to the rules/structure of the father’s home which he so much opposes because he like so many naturally confounding or rebellious teenagers he knows he can no longer do what he pretty well pleases when living with the father.[16]
[16] Family Report, paragraph 40.
Consistent with the suggestion that X’s expressed views are not his own, he told Mr S that Ms Bannerman had told him what to say in conversations with Family Report writers and with the Independent Children’s Lawyer. X has repeatedly told the Independent Children’s Lawyer he wants to live with his mother.
Dr F considers X to be a “highly emotionally needy, immature, and impressionable child”.[17] He considers him to have an “already well-established vulnerability to significant mental instability”.[18]
[17] Family Report, paragraph 53.
[18] Family Report, paragraph 67.
I accept the Independent Children’s Lawyer’s submissions that:
[t]here are numerous reasons why weight should not be placed on [X]’s view. He is a vulnerable child and he is an immature child and we now have a psychological report that makes it very clear that he is also an autistic child. He has been subjected to long-term emotional manipulation by the mother over time. There is evidence before the Court in numerous different reports that he has parroted her view rather than reflecting on any view he may have reached himself. Most, if not all, of the reports of professionals speaking with [X] have expressed, in one way or another, this concern that when [X] speaks about court matters he does so with his mother’s words and language and mirrors her.
The mother has an overwhelming strength of conviction and it is unrealistic to expect that any child could stand against that dominant of a personality at the age he was when these proceedings first commenced being, I think, 13.
Despite X’s advanced age, I conclude that significant weight should not be afforded to his views. I find those views to be significantly influenced by Ms Bannerman, and to also be based on immature considerations such as the lack of routine and structure imposed by Ms Bannerman.
The developmental, psychological, emotional and cultural needs of X
In December 2014, X was diagnosed with a learning disability and his cognitive ability was assessed to be in the low average range. In September 2021, X undertook a psychological assessment which recommended additional educational and psychological supports. In November 2024, X was diagnosed with “Autism Spectrum Disorder”.[19] He is considered to require “support to develop adaptive behaviour skills”.[20]
The capacity of each person who has or is proposed to have parental responsibility for X to provide for his developmental, psychological, emotional and cultural needs
[19] Exhibit ICL2, page 21.
[20] Exhibit ICL2, page 21.
Ms Bannerman’s capacity to provide for X’s needs is severely compromised. She has suffered from a long history of mental health difficulties. She has been diagnosed with depression, anxiety, mood instability and personality disorder. She has expressed suicidal ideation to Mr Bannerman.
In early 2000, Ms Bannerman was admitted as a psychiatric inpatient due to being suicidal and self-harming.
In early 2003, Ms Bannerman was again admitted to a psychiatric hospital after Mr Bannerman found her self-harming.
In late 2012, Ms Bannerman was being treated for Post Traumatic Stress Disorder. Her improvement was described as “unstable, with a partial relapse following sudden cessation of [prescribed medication].”[21]
[21] Exhibit ICL3.
In early 2013, Ms Bannerman was admitted to W Hospital with suicidal and homicidal ideation, anxiety and an increase in depressive symptoms. The following month, she was diagnosed with “[mental health conditions]”.[22]
[22] Exhibit ICL4.
In mid-2013, Ms Bannerman was reported to have cancelled her psychological treatment after her “[mental health] symptoms appeared to increase”.[23]
[23] Exhibit ICL5.
In late 2013, Ms Bannerman was admitted to an acute psychiatric unit in City Y. She was discharged a week later, having been diagnosed with numerous mental health conditions. She reported suicidal ideation over the past two years, having thoughts of harming her son, and developed paranoia.
Ms Bannerman was treated by a psychiatrist for approximately ten years. In late 2021, Ms Bannerman stopped attending her psychiatrist and stopped taking her prescribed medication. She began talking to herself. As Mr Bannerman deposes,
[Ms Bannerman] began to verbally abuse [Mr S] and [Ms T] over the phone and via text messages telling them they would die soon because they had been vaccinated. [X] heard this abuse and she yelled at me also. [X] also saw and heard the abuse directed at me as well. Both the older children told me they struggled to cope with [Ms Bannerman]’s 'Covid conspiracy' influenced thinking and behaviours… [Ms Bannerman] repeatedly told [X] that everyone would die; me, his grandparents and his sibling.[24]
[24] Affidavit of Mr Bannerman filed 9 May 2024, paragraph 83.
Ms Bannerman threatened to buy a weapon. She was constantly on her mobile phone engaging with conspiracy theorists. She told Mr Bannerman and X that their immediate family members would die from vaccinations. She claimed the government was spying on her. She claimed that she knew in the future “there would be an economic disaster, the government would fall and that the children and [Mr Bannerman] would die from the vaccine.”[25]
[25] Affidavit of Mr Bannerman filed 9 May 2024, paragraph 95.
During periods of mental unwellness, Ms Bannerman’s behaviour is described by Mr Bannerman as follows:
… I observed that [Ms Bannerman]’s hygiene would often deteriorate. [Ms Bannerman] had previously bred [animals] in the living room and kitchen with some [baby animals] dying and left […] for days. She would leave rotten meat on the floor and allow the dogs to defecate and urinate in her bedroom. I would attempt to clean up after her constantly. She was sleeping with our three dogs and her room was in squalor. When [Ms Bannerman] and [X] left the family home, I began cleaning up the home and discovered that [Ms Bannerman] had been hoarding food in her room and the spare room. She had also been hoarding animals and had [many animals] at that time, I was spending around two hours a day or more looking after all the animals.[26]
[26] Affidavit of Mr Bannerman filed 9 May 2024, paragraph 109.
Dr F summarised Ms Bannerman’s mental health in this way:
… it appears that the mother has medical records to indicate that she has a significant history of vacillating mental illness, including mental health admissions and suicidal ideation, and possibly several suicide attempts, yet she appeared vague, decidedly avoidant, minimising, or even dismissive of such, and it seems that due to her ongoing mental health issues the father had to play a very significant rearing role in all three children’s lives.[27]
[27] Family Report, paragraph 44.
Dr J observed that Ms Bannerman has a “long history of anxiety and panic disorder”.[28] He noted the absence of her receiving any meaningful psychiatric treatment and considered it preferable for Ms Bannerman to be “regularly engaged with a psychiatrist”.[29] He was “uncomfortable with the proposition that [Ms Bannerman] received no psychiatric follow-up given her extensive past history.”[30]
[28] Affidavit of Dr J filed 19 July 2023, page 26.
[29] Affidavit of Dr J filed 19 July 2023, page 27.
[30] Affidavit of Dr J filed 19 July 2023, page 27.
Despite Ms Bannerman’s extensive psychiatric history, she has failed to engage in psychiatric treatment. She was ordered to do so in early 2023. There is no evidence she has complied with that direction.
In July 2023, Dr F reported that “the mother appears to have basically ignored” the Orders and considers that “she no longer ha[s] any mental health issues.”[31] Ms Bannerman’s failure to undertake psychiatric engagement was of “significant concern’” to Dr F.[32] Dr F recommended that Ms Bannerman “must once again be ordered to undertake the psychiatric process to determine her capacity to safely and appropriately care for the child.”[33] He recommended that she should also “be ordered to undertake ongoing psychological counselling and assessment, with a particular focus to be upon any possible risks to the child while in her care, and written reports of such processes should be made available to the Court.”[34] There is no evidence of Ms Bannerman having complied with those recommendations.
[31] Family Report, paragraph 51.
[32] Family Report, paragraph 63.
[33] Family Report, paragraph 63.
[34] Family Report, paragraph 63.
Dr F opines that Ms Bannerman:
… did not give much notion in the writer’s mind that her current actions were balanced and insightful, rather they appeared to be lacking insight and being very much governed by acute self-need and immediate emotional gratification, with such possibly being fuelled by, an (sic) at times, if not often, unstable emotional mind, and a mind that appears rational and balanced, but is often extremely egocentric to the detriment of rational thought and action, and the child’s best interests.[35]
[35] Family Report, paragraph 16.
Dr F observed Ms Bannerman to have limited capacity to reflect on X’s needs. In particular, he noted that Ms Bannerman “provided far less information to suggest that she understood the child and his needs more than the father, especially his emotional-social needs”.[36] He reported that “the way she described [her] relationship [with X], it seemed that he was there to fulfil her emotional needs more than anything else, and most significantly at no time did she speak about the child’s needs or what the current situation might be doing to the child’s emotional health, unless she completely blamed the father for such.”[37]
[36] Family Report, paragraph 24.
[37] Family Report, paragraph 25.
Dr F opined that:
… the mother lived very much in her world of what was right and wrong for her alone, she was very fixated, and it seemed that the way she talked about the child’s needs she was really talking about her needs, and they seemed to be for her now to keep the child safe by keeping him away from the evil father, and perhaps even that now the child no longer wished to have the father in his life, he belonged to her, and then for her to very much determine what direction his immediate future might take.[38]
[38] Family Report, paragraph 29.
I accept Dr F’s unchallenged opinion and find that Ms Bannerman lacks the capacity to understand X’s needs as distinct from her own, and that her egocentric thought patterns operate to the detriment of X’s best interests. Those conclusions are consistent with Ms Bannerman’s report to Dr J that when X suffered panic attacks at primary school, “she didn’t ask questions because she didn’t want to know” and “she didn’t know why she didn’t ask [X]”.[39]
[39] Affidavit of Dr J filed 19 July 2023, page 15.
Ms Bannerman demonstrated a repeated failure to comply with Court Orders. She has failed to comply with Orders that she not contact X. On 23 June 2023, she overheld X from Mr Bannerman’s care.
Upon X being placed in Mr Bannerman’s care in September 2022, X returned to school, and thereafter attended almost every day of school. Mr Bannerman set limits for X’s behaviour, and sets boundaries for him. X responded well to Mr Bannerman’s approach and adjusted well to being in his father’s care. His mental health has greatly improved, and he has settled into productive and steady routines.
Mr Bannerman has demonstrated an extensive capacity to provide for X’s needs. He has facilitated X’s attendances upon psychologists, a paediatrician, an art therapist, and ensured he has received support from his school chaplain and program mentor. He obtained after school jobs at local businesses, and has undertaken volunteer work. Mr Bannerman has facilitated X’s attendance upon sports and extra-curricular activities. X eats regularly, and routinely exercises in his father’s care. His personal hygiene has improved.
I accept the Independent Children’s Lawyer’s submission that X is:
… able to be very focused on tasks and jobs and developing skill sets and that this has all taken place while he has been in the father’s care. Noting that he came into the father’s primary care in late 2022. Since that time, he has got […] qualifications, he has learned [work skills], he has got a job, several different jobs at [local businesses], [and voluntary work].
He has managed to successfully, despite everything that has been happening in these proceedings and between his parents, be a valuable member of the community and engage, presumably consistently, with doing them, which shows stability and groundedness while in his father’s care. It’s in striking contrast to the school reports in terms of the attendance when he was with his mother as opposed to when he was with his father.
Mr Bannerman has been involved in specific planning with X’s school to ensure his educational needs are met. This includes attending meetings with school staff to develop individual learning plans, enrolling him in a music program, discussing strategies for X to employ when suffering from anxiety and identifying extra classes for him to take.
I am satisfied that Mr Bannerman will continue to provide for X’s needs, including those needs recently identified in X’s psychological assessment of November 2024.
The benefit to X of being able to have a relationship with X’s parents, and other people who are significant to X, where it is safe to do so
Despite facilitating X spending ad hoc time with his father upon the parties’ separation in January 2022, Ms Bannerman refused to facilitate X’s time with his father from March 2022. She failed to facilitate X’s attendance at sessions for supervised time with his father.
Despite Ms Bannerman’s failure to facilitate X’s relationship with his father, X has re-established a close bond with Mr Bannerman since being placed in his care in September 2022. Their relationship has been re-established and normalised.
Mr Bannerman has facilitated X’s relationship with his family members, including his adult siblings, his paternal grandmother and other extended family members. He also previously facilitated X’s relationship with his maternal grandmother.
X’s time with his mother since December 2022 has not progressed well. It had a regressive effect on his mental state, he became surly and withdrawn. Ms Bannerman repeatedly called X so as to interfere with his morning routines and impeded his ability to prepare for school. She allowed X to sit with her for extended periods of time in the car at changeover. Mr Bannerman nevertheless facilitated X’s time with his mother, including when considerable travel was required.
The benefit to X of his relationship with his mother is called into question by Dr F’s opinion that “there now appears to be an enmeshed and psychologically-emotionally unhealthy relationship between the mother and child”.[40]
[40] Family Report, paragraph 72.
Anything else that is relevant to the particular circumstances of X
X is not an Aboriginal or Torres Strait Islander child.
Parenting Conclusions
Mr Bannerman deposes that “it is important that [X] remains in my primary care, to ensure continuity and stability and to provide the opportunity for his mental health to continue to stabilise.”[41] He also deposes that Ms Bannerman “continues to be a risk to [X]’s mental health.”[42] I agree. [X]’s needs have been neglected by Ms Bannerman. Mr Bannerman is substantially more capable of providing for those needs.
[41] Affidavit of Mr Bannerman filed 9 May 2024, paragraph 249.
[42] Affidavit of Mr Bannerman filed 9 May 2024, paragraph 249.
I accept the Independent Children’s Lawyer’s submission that:
Evidently, the mother’s fragile and unstable mental health poses a significant risk to [X]. It does so … in a physical sense given her inability to manage her surroundings safely. It does so in a psychological sense in terms of her historical behaviours so as to dominate and overwhelm his view of the world. It does so in circumstances where he is, as we now can say confidently, an autistic child with a tendency to see the world in black-and-white terms in any event and who needs structure and consistency and routine.
It was Dr F’s temporary recommendation in July 2023 that X not be returned to Mr Bannerman’s care. He saw that step as “potentially extremely hazardous to the child’s current and ongoing mental health and overall wellbeing”.[43] That step was nevertheless taken in August 2023. The adverse consequence did not materialise. Although Dr F did not give updating evidence in this final hearing, I do not take his recommendation to be that X’s best interests are served by now returning to Ms Bannerman’s care, particularly in the absence of her having undertaken the psychiatric and psychological treatment he saw as so essential for her.
[43] Family Report, paragraph 61.
I am satisfied that X’s best interests are served by continuing to live with Mr Bannerman and continuing to spend no time with Ms Bannerman.
Mr and Ms Bannerman are unable to communicate in relation to major long-term decisions affecting X. They are accordingly unable to comply with the requirements that would attend the making of an order for joint decision-making about such issues.[44]
[44] Family Law Act 1975 (Cth), s 61DAA.
Ms Bannerman has previously denied X’s access to school support services and participation in school social activities. Ms Bannerman’s harassment of staff at X’s school resulted in her being directed in March 2022 to contact only the school principal. I am satisfied X’s best interests are served by Mr Bannerman continuing to have sole parental responsibility for X.
PROPERTY
Mr Bannerman proposes that the parties’ non-superannuation assets be distributed in the proportions of 55% to himself and 45% to Ms Bannerman. He proposes that he be appointed as the trustee to sell a real property in M Street, Town E, with the proceeds of sale being distributed to Ms Bannerman. Within 90 days’ thereafter, he proposes that he pay Ms Bannerman such sum as is necessary in order to achieve that percentage outcome. He proposes that Ms Bannerman’s interest in a real property in B Street, Town E, be transferred to him. He proposes the transfer of Motor Vehicle 1 into Ms Bannerman’s name, and the transfer of Motor Vehicle 2 into his name. He also proposes an equalisation of the parties’ superannuation interests.
Pursuant to section 79 of the Act, I have a discretion to make such order altering the parties’ interests in property as I consider appropriate. I am prohibited from making an order unless I am satisfied, in all the circumstances, it is just and equitable to do so.[45] If I am so satisfied, I am required to consider the matters prescribed by subsection 79(4) of the Act and by the device of paragraph 79(4)(e), relevant matters referred to in subsection 75(2) of the Act.
[45] Family Law Act 1975 (Cth), s 79(2).
Property interests
It is necessary to begin by identifying, according to common law and equitable principles, the existing legal and equitable interests of the parties in property.[46] Mr Bannerman’s final contentions as to the nature and identity of those assets are contained in Exhibit A5.
[46] Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) at [37].
For reasons that follow, I find those valuable interests to comprise the following:
Asset O'ship Value B Street, Town E Jt $500,000 M Street, Town E Jt $475,000 Commonwealth Bank home loan Jt ($220,630) Redraw facility Jt $2,691 Commonwealth Bank business account P P/L $18,000 Commonwealth Bank personal account H $958 Motor Vehicle 2 H $200 DD Company Credit Card H ($4,346) Afterpay H ($500) U Company H ($5,000) Motor Vehicle 1 P P/L $30,000 Vehicle 3 P P/L $3,580 Vehicle 4 Jt $800 Vehicle 5 Jt $5,200 Shipping containers x2 Jt $5,200 Animal equipment Jt $3,500 Animals Jt $2,000 Vehicle 6 Jt $6,000 Vehicle 7 Jt $1,200 Total non-superannuation interests $823,853 Super Fund 1 H $508,984 Super Fund 1 W $52,954 Total superannuation interests $561,938 Total property interests $1,385,791
The value of both real properties was the subject of agreement at the commencement of the final hearing, as was the balance of the home loan.
Mr Bannerman contends that the parties’ redraw facility now has a balance of $1,000. There is no evidence to support that contention. He deposes to the account having a balance of $2,691. In accordance with that evidence, I find the balance of the redraw account to be $2,691.
On 9 May 2024, Mr Bannerman had deposed to the balance of his business bank account being $61,705. At the commencement of the hearing, he gave oral evidence that the balance was approximately $18,000. He now asserts the account has a balance of $14,000. That assertion has no evidentiary foundation. I find the balance of the account to be $18,000 in accordance with the most recent evidence I have.
Mr Bannerman deposes to his personal account having a balance of $958. I adopt that figure in the absence of any evidence to support his current assertion that the account has a balance of $580.
I accept Mr Bannerman’s unchallenged evidence as to the value of the parties’ motor vehicles, vehicles, shipping containers, livestock and equipment. Whilst Mr Bannerman give oral evidence in response to assertions as to the value of items of equipment made by Ms Bannerman, in the absence of her prosecuting her case, I decline to attribute value to other items alleged by her.
I also accept Mr Bannerman’s unchallenged evidence with respect to the value of the parties’ other liabilities. Whilst he gave evidence of having a Z Bank loan liability of $25,395, he did not contend for the inclusion of that loan in closing address. In that circumstance, I decline to treat the Z Bank loan as a liability of the parties.
Mr Bannerman deposes to his superannuation balance being $508,984, and Ms Bannerman’s balance being $52,954. I reject his assertions of different values in closing address, which assertions were unsupported by evidence.
Justice and equity
The parties are the joint proprietors of two real properties. They are jointly liable for a home loan secured against the properties. Those joint proprietary interests and that joint liability must be severed, so it is just and equitable to make an order under section 79 of the Act.[47]
[47] Preston & Preston (2022) FLC 94-108 at [38].
Contributions
I am required to take into account the parties’ financial and non-financial, direct and indirect, contributions to the acquisition, conservation or improvement of property.[48] I am also required to take into account the parties’ contributions to the welfare of the family.[49]
[48] Family Law Act 1975 (Cth), s 79(4)(a)-(b).
[49] Family Law Act 1975 (Cth), s 79(4)(c).
At the commencement of the parties’ relationship, Ms Bannerman had assets worth a total of $55,350, comprising a motor vehicle, animals, animal equipment and savings. Mr Bannerman then had vehicles worth a total of $2,700, along with:
Block of land at [AA Street, Suburb BB] purchased by my father and me as tenants in common for $26,500 in 1992. The deposit of $10,000 was paid by my father and we took out a mortgage of $16,500, which I serviced.
My father died in 1997 and my mother, [Ms CC], inherited my father's share of [Suburb BB]. She essentially gifted her share to [Ms Bannerman] and me, valued at $5,000 and title was transferred into both mine and [Ms Bannerman]’s names as joint proprietors.[50]
[50] Affidavit of Mr Bannerman filed 9 May 2024, paragraph 12.
In 2000, the parties purchased the B Street property for $72,000. Mr Bannerman applied $7,200 from his savings to the deposit. Mr Bannerman has subsequently incurred expenses, he estimates to amount to $18,000, for maintenance and renovation of the property. Ms Bannerman used funds from the redraw facility for the purchase of animals.
The Suburb CC property was sold in 2003 for $69,000, resulting in proceeds of sale of $64,000. Those proceeds were applied to reducing the mortgage on the B Street property.
In 2013, the parties purchased the M Street property for $130,000. The deposit was financed through the mortgage on the B Street property.
Mr Bannerman was employed as a professional throughout the marriage. He undertook consulting work through his solely owned and controlled company, P Pty Ltd.
Ms Bannerman ceased paid employment in 1999, although she thereafter undertook the bookwork for P Pty Ltd.
Mr Bannerman’s income has been applied to the parties’ expenses, including servicing the real estate loan and outgoings after the parties’ separation in January 2022.
Ms Bannerman suffered from frequent bouts of depression and episodes of mental illness, frequently sleeping until past midday and being mostly preoccupied with animals she had acquired. Mr Bannerman was the primary carer of the children as a result, being responsible for morning routines and taking them to school. He cooked most nights and cleaned each Saturday.
Since separation, Mr Bannerman has been solely responsible for X, including meeting his living and education expenses. He has paid school fees of $7,970, ambulance membership of $400, art therapy fees of $80 per week, as well as expenses associated with extra-curricular activities.
Mr Bannerman transferred a total of $11,200 to Ms Bannerman between April and December 2022, and paid other bills for her.
Assessing contributions of all kinds and from all sources before, during, and after the parties’ cohabitation,[51] I determine those contributions by each of Mr Bannerman and Ms Bannerman ought be assessed equally. The result is that each will be seen to have contributed 50% of the value of their interests in property, being a total of $692,896 each, comprising $411,927 in non-superannuation assets and $280,969 in superannuation assets.
[51] Anson & Meek (2017) FLC 93-816 at [29] per Murphy J.
Paragraphs 79(4)(d)-(g) and subsection 75(2) factors
Mr Bannerman is 59 years old. He is in good health. He continues to operate the business P Pty Ltd. The business has two employees. He currently earns $104,000 per annum.
Ms Bannerman is in receipt of a Carer’s Pension of approximately $42,500 per annum.
Pursuant to my earlier conclusions, Mr Bannerman will remain solely responsible for X’s care.
Ms Bannerman pays no child support for X.
Mr Bannerman submits that the relevant factors ought result in a 5% adjustment in his favour in relation to non-superannuation assets. I agree. So much equates to a differential of $82,385 from the assessment of the parties’ contributions to that class of asset.
It is not contended, and I do not find, that any adjustment should be made to the assessment of the parties’ contributions to their superannuation assets.
Property Conclusions
I am satisfied that an outcome whereby Mr Bannerman retains 55% of the value of the parties’ non-superannuation assets and Ms Bannerman retains 45% of that value is just and equitable. In dollar terms, based on the current value attributed to the M Street property, such an outcome would result in Mr Bannerman retaining non-superannuation assets worth $453,119 and Ms Bannerman retaining non-superannuation assets worth $370,734.
I am also satisfied that it is just and equitable for the parties to each retain 50% of the value of their combined superannuation interests. The effect of that finding is that each will retain superannuation assets worth $280,969. Having been advised that procedural fairness has been accorded to the relevant superannuation trustee, I am satisfied the orders proposed to achieve that result are appropriate.
Whilst Ms Bannerman had indicated a desire to retain the M Street property as part of her property settlement, she made no such proposal at the commencement of the hearing. She adduced no evidence of any capacity to retain the property in circumstances where it would be necessary for her to re-finance at least part of the current loan secured against the property. In those circumstances, I am satisfied it is just and equitable for the M Street property to be sold. I am also satisfied it is appropriate for Mr Bannerman to have the sole conduct of the sale given Ms Bannerman’s lack of compliance with court processes and Orders. I find the conditions proposed by him for the sale to be appropriate in the circumstances, including that he have sole occupation of the property pending its sale.
Whilst I have no evidence as to any likely capital gains tax arising from the sale of the M Street property, it would be erroneous to ignore that potential tax consequence.[52] It is appropriate to make formulaic orders to ensure the correct percentage outcome is achieved.[53] I find it appropriate to make allowance for any capital gains tax liability from the proceeds of sale of the M Street property as is proposed by Mr Bannerman.
[52] Yavuz & Yavuz & Anor (2017) FLC 93-771 at [178] and [180].
[53] Taffner & Taffner (2021) FLC 94-022 at [46].
Mr Bannerman ultimately contended that Ms Bannerman ought to retain the proceeds of sale of the M Street property subject to any amounts required to discharge the caveats lodged on the property being paid from that balance. Given those proceeds are estimated in these proceedings to amount to $254,370, being approximately 31% of the value of the parties’ non-superannuation interests, I am satisfied it is appropriate for Ms Bannerman to retain those proceeds.
Mr Bannerman proposes that within 90 days of the settlement of the sale of the M Street property, he transfer such sum to Ms Bannerman as is necessary for her to then retain 45% of the value of the parties’ non-superannuation assets. I consider that order to be appropriate. I also consider it appropriate that the sum payable by him be reduced by the sums owing by Ms Bannerman to Mr Bannerman pursuant to costs Orders previously made in these proceedings.
It is also appropriate that Ms Bannerman be responsible for any legal fees incurred by her in the proceedings. To do otherwise would be to offend the default position prescribed by subsection 117(1) of the Act.
Mr Bannerman seeks to retain the B Street property. I am satisfied that he ought to do so. Inconsistently with his proposal that the Commonwealth Bank home loan be repaid from the proceeds of sale of the M Street property, he seeks an order that he refinance the loan into his sole name. Given the transfer of the B Street property is proposed to occur contemporaneously with settlement of the sale of the M Street property, I find no reason to make the order sought by him for the refinance. He may need to obtain finance in order to raise funds to pay Ms Bannerman, but that is distinct from any need to refinance the extant home loan. Given Ms Bannerman’s conduct in these proceedings, I am satisfied it is appropriate for Mr Bannerman to be appointed to sign any documents necessary for the transfer on behalf of Ms Bannerman. The orders proposed to preserve the parties’ real assets pending transfer or sale are also appropriate.
Mr Bannerman proposes that Motor Vehicle 2 be transferred to him and Motor Vehicle 1 be transferred to Ms Bannerman. Given her current use of Motor Vehicle 1, I am satisfied that outcome is just and equitable.
Mr Bannerman sought to retain the balance of the parties’ redraw account. I will make orders for that balance to be transferred to him within 14 days.
I also consider it just and equitable for orders to be made reflecting that each party is liable for their personal liabilities and specifying the assets currently in their possession or control that are to be retained. Given other Orders will specify the transfer of the parties’ motor vehicles, I will not also include them in orders providing for the parties to retain the assets currently in their possession. As discussed with Mr Bannerman’s Counsel in closing address, I will also include the farm vehicles as assets to be retained by Ms Bannerman. I determine other orders proposed by Mr Bannerman providing for the execution of documents and the retention of the parties’ other assets to be appropriate.
Intervenor
In November 2023, leave was granted to Ms Bannerman’s former solicitors to intervene in the proceedings. The solicitors were given “leave to address the Court with respect to any funds proposed to be paid to” Ms Bannerman pursuant to proposed orders.[54]
[54] Orders of 13 November 2023, paragraph 2.
The solicitors did not appear at any subsequent hearing date. After the conclusion of the hearing, the Court received an email from the solicitors purporting to advise what they “require” and proposing orders be made in their favour. The basis upon which it is thought that an email to the Court after the conclusion of a hearing is an appropriate vehicle to move the Court to grant relief is not articulated. In the absence of any application or appearance by the intervenor, I decline to give further consideration to what the solicitors “require”.
I certify that the preceding one hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 23 December 2024
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