Bellomia & Bellomia - [2021] FedCFamC1F 334

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bellomia & Bellomia [2021] FedCFamC1F 334

File number(s): ADC 1780 of 2017

Judgment of: MEAD J

Date of judgment: 21 December 2021

Catchwords: FAMILY LAW – PROPERTY – Where the applicant husband’s parents and associated company and trust were joined as first and second respondents – Where the first and second respondents claimed debt as against the applicant husband and the third respondent wife – Where the matter was heard undefended as between the applicant husband and the third respondent wife – Where the third respondent wife failed to properly participate in the proceedings – Where the third respondent wife opposed the applicant husband’s interim application for the appointment of a Litigation Guardian for her – Where the third respondent wife agreed to comply with an order that she obtain a psychiatric assessment of her capacity to represent herself – Where the third respondent wife then refused to obtain the assessment – Where the Court declined to make the orders sought by the applicant husband – Where the third respondent wife consistently failed to comply with trial directions – Where the overwhelming majority of the applicant husband and the third respondent wife’s gross assets consisted of the proceeds of sale of the former matrimonial home – Where the amount of debt alleged to be owing by the husband and wife to the first and second respondents exceeded the amount of the sale proceeds – Where the first and second respondents sought an order that all such proceeds be paid to them in reduction of the alleged debt – Where the applicant husband consented to that order – Where the Court was required to consider, in the absence of the third respondent wife’s participation in the proceedings, whether the funds advanced to the parties by the first and second respondents were advances by way of gift or loan – Where the funds were advanced in various tranches to the husband and wife over a period of several years – Where the funds advanced were recorded in the financial records of the first and second respondents – Where there was no evidence to support a conclusion that the advances were by way of gift – Where the first and second respondents’ evidence as to advances being by way of loan was accepted by the Court – Where an order is made for the entirety of the sale proceeds to be transferred to the first and one of the second respondents, B Pty Ltd, in part‑payment of the debts owed – Where the Court determined the remaining assets of the applicant husband and the third respondent wife should be apportioned equally – Where that finding resulted in a modest superannuation split from the husband’s superannuation interest in favour of the wife – Where the wife is ordered within two calendar months of judgment to vacate the premises owned by one of the second respondents, the G Family Trust, and occupied by her rent-free since December 2018 – Where the husband is ordered to pay reduced spousal maintenance of $250 per week together with medical benefits for the third respondent wife for a period of three years from the date of trial or until such time as the third respondent wife remarries or enters into a de facto relationship – Where the wife does not and is unlikely to ever have capacity to pay child support of any significance to the husband with respect to their nine year old child.

Legislation: Family Law Act 1975 (Cth) ss 4(1), 60CA, 75(2), 79(2), 79(4).

Cases cited:
Biltoft & Biltoft (1995) FLC 92-614

Porter & Porter (No 2) [2018] FamCA 497

Division: Division 1 First Instance

Number of paragraphs: 415

Date of hearing: 6 and 8 October 2020

Place: Adelaide

Counsel for the Applicant: Mr Jordan

Solicitor for the Applicant: Jordan & Fowler Family Lawyers

Counsel for the First Respondent: Mr Bullock

Solicitor for the First Respondent: Adelta Legal

Solicitor for the Third Respondent: In Person as an Observer only
ORDERS

ADC 1780 of 2017

BETWEEN:
MR BELLOMIA

Applicant

AND:
MR C BELLOMIA AND MS D BELLOMIA

First Respondents

B PTY LTD AND G FAMILY TRUST

Second Respondents

MS BELLOMIA

Third Respondent

ORDER MADE BY:

MEAD J

DATE OF ORDER:

21 DECEMBER 2021

UPON NOTING notations A, B and C to the draft minute of order tendered to the Court on 8October 2020 by counsel for the applicant and counsel for the first and second respondents and marked as Exhibit “A”.
THE COURT ORDERS THAT:
1.As between the applicant husband, the first respondents, the second respondents and the third respondent wife:
(a)that within seven (7) days of the date of this order the applicant husband and third respondent wife do all such things and sign all such documents as shall be necessary to pay to Adelta Legal Trust Account on account of the first respondents, Mr C Bellomia and Ms D Bellomia, and one of the second respondents, B Pty Ltd, the full proceeds of the F Bank Account (account number …40) held in the joint names of the applicant husband and the third respondent wife, being the sale proceeds of the property situate at and known as H Street, Suburb J, South Australia (“the H Street property”) by way of part-payment of:
(i)the amounts due and payable by the applicant husband and the third respondent wife for all loans made to them by the first respondents as specified in paragraph 273 of the Reasons for Judgment delivered on 21 December 2021; and
(ii)the amounts due and payable by the applicant husband and the third respondent wife for loans made to them by the second respondent, B Pty Ltd, as specified in paragraph 263 of the Reasons for Judgment delivered on 21 December 2021,

to be allocated in reduction of the applicant husband and the third respondent wife’s liabilities to them as the first respondents and one of the second respondents, B Pty Ltd, see fit.
(b)that in the event of failure or neglect by either the applicant husband or the third respondent wife to sign any document or do any such act or thing necessary to give effect to paragraph 1 hereof, then upon proof by affidavit of such failure or neglect a Registrar of this Honourable Court be empowered to sign any document or to do any such act or thing in the name of the party in default in order to give effect to paragraph 1(a) hereof.
(c)that the applicant husband do pay and discharge all monies due and owing by him to Mr C Bellomia and/or Ms D Bellomia and/or B Pty Ltd on account of loans made to him with respect to the acquisition and maintenance of the property purchased in his sole name at K Street, Suburb L South Australia (“the Suburb L property”) to the exoneration of the third respondent wife and indemnify her in respect thereof.
(d)that on or before 21 February 2022 the third respondent wife do permanently vacate the property at N Street, Suburb M SA (“the Suburb M property”) and deliver up to one of the second respondents, the G Family Trust, all keys to the said property.
(e)that thereafter the third respondent wife be restrained and an injunction is hereby granted restraining her from returning to the said Suburb M property other than with the express consent in writing of one of the first respondents, Mr C Bellomia in his capacity as Trustee and Appointor of the G Family Trust.

2.That the Amended Response filed herein by the First and Second Respondents on 21 July 2020 be otherwise dismissed.
3.As between the applicant husband and the third respondent wife:
(a)that in full and final settlement of any claim that either of them shall have against the other of them for settlement of property and spousal maintenance AND UPON NOTING the terms of paragraph 1(c) hereof:
(i)that the sum of TEN THOUSAND DOLLARS ($10,000.00) paid to the Trust Account of O Lawyers on account of the wife pursuant to a consent order made on 21 October 2019 be deemed to be by way of partial property settlement;
(ii)that the husband otherwise retain all items of personalty, household chattels and effects, motor vehicles, shares, investments and savings (including the net proceeds of sale of the Suburb L property) as well as superannuation entitlements (subject to paragraph 3(a)(iv) hereof) in his possession or control for his sole use and benefit absolutely free of any claim by the wife;
(iii)that the wife otherwise retain all items of personalty, household chattels and effects, motor vehicles (NOTING THE terms of Notation “B” to the draft minute of order tendered to the Court on 8 October 2020 and marked as Exhibit “A”), shares, savings and investments as well as superannuation entitlements (inclusive of that referred to in paragraph 3(a)(iv) hereof) in her possession or control for her sole use and benefit absolutely free of any claim by the husband;
(iv)that with respect to the husband’s interest in the P Super Fund (“the Fund”):
A.that pursuant to Section 90XT(4) of the Family Law Act 1975 (Cth) as amended (“the Act”), the Court allocates a base amount of SEVENTY TWO THOUSAND ONE HUNDRED AND FORTY FOUR DOLLARS ($72,144.00) to the wife out of the husband’s interest in the Fund;
B.pursuant to Section 90XT(1)(a) of the Act, whenever a splittable payment becomes payable in respect of the superannuation interest of the husband:
1.
the wife is entitled to be paid an amount

calculated in accordance with Part 6 of the

Family Law Superannuation Regulations 2001
(Cth) (“the Regulations”) using the base amount of $72,144.00 dollars; and
2.there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the Order;

C.paragraphs 2(a)(iv)(A) and 2(a)(iv)(B) of the Order have effect from the operative time, which is four (4) business days after the date a certified copy of the sealed Order is served on the Trustee of the Fund;
D.payments from the husband’s superannuation interest made after the Trustee of the Fund had rolled over or transferred the transferable benefits to a fund of the wife’s choosing are not splittable payments;
E.within fourteen (14) days of the Order being made:
1.the husband shall serve a certified copy of the sealed Order upon the Trustee of the Fund; and
2.the wife shall give notice in writing to the Trustee of the Fund pursuant to Regulation 72 of the Regulations;

F.that there be liberty to apply in relation to the implementation of paragraph 8 of the Order by the parties or the Trustee of the Fund.

(v)that as and from 21 December 2021 paragraph 12 of the order of 6 September 2018 being with respect to spousal maintenance be discharged;
(vi)that by way of spousal maintenance the husband do firstly pay to the wife the sum of $250 per week up to and inclusive of 8 October 2023 and secondly keep her insured as a family member with Q Health Fund Policy Number …65 up to and inclusive of the same date or such earlier date upon which the wife shall either remarry or enter into a de facto relationship.

4.That all extant applications be otherwise 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Bellomia & Bellomia is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

The parties, Mr Bellomia (hereinafter referred to as “the husband”) and Ms Bellomia (hereinafter referred to as “the wife”) met in 1999, commenced cohabitation in or about September 2000, and married in 2002. There is one child of the marriage, X born in 2012.
They finally separated on 5 May 2017 at which time the husband left the former matrimonial home. A decree nisi with respect to the dissolution of the marriage was granted on 21 August 2018 and became absolute on 22 September 2018.
On 8 May 2017 the husband instituted these proceedings seeking parenting orders. On 15 June 2017 the wife filed responding documents seeking both parenting orders and orders for settlement of property.
On 18 June 2018 Judge Heffernan ordered both property and children’s issues be listed for trial at 10.00 am on 11 September 2019.
By further order of Judge Heffernan on 6 September 2018 Mr C Bellomia and Ms D Bellomia were joined as parties to the proceedings as to financial matters only. This was both in their personal capacities and as Trustees for the G Family Trust. B Pty Ltd was also joined as a party.
On 1 August 2019 Judge Heffernan vacated the trial listing of 11 September 2019 and transferred the matter to the Family Court of Australia.
On 17 February 2020 I listed the matter for trial to commence on 6 October 2020, allowing seven days for the hearing.
On 2 September 2020 I ordered that the matter be heard before me on an undefended basis in the event that the wife failed to file and serve her Amended Response by 8 September 2020, being the date upon which the Court had ordered her to file her trial affidavit.
On 14 September 2020 I ordered that all extant proceedings be heard on an undefended basis in circumstances where the wife had failed to comply with all previous orders made in the proceedings with respect to the filing of her Amended Response and trial affidavits.
At the hearing on 6 October 2020 the wife was present but did not participate. For reasons given orally that day, I made final parenting orders as between the husband and the wife. The orders were supported by the Independent Children's Lawyer. Submissions were then made by counsel for the husband and counsel for the first and second respondents with respect to property settlement issues. These reasons only relate to the proceedings for property settlement.
On 8 October 2020 counsel for the husband and the first and second respondents tendered to the Court a minute of final order with respect to settlement of property as agreed between them, and judgment was reserved.
At the time of trial the husband was aged 41 years and the wife 38 years.
Background to undefended hearing
When proceedings commenced in 2017 both parties were represented.
In the affidavit filed by the wife on 15 June 2017 in support of her Response she deposed in paragraphs 29 to 36 inclusive as to her medical conditions. She deposed to:
·beginning to experience regular extreme physical pain and chronic lethargy in or about 2014;
·seeing a number of medical experts including two rheumatologists and a sleep specialist;
·being diagnosed with psoriatic arthritis, hypermobility syndrome and fibromyalgia syndrome;
·experiencing symptoms of muscle stiffness, soreness and general fatigue;
·her diagnosed illness being Ehlers-Danlos Syndrome, a genetic connective tissue disorder;
·her understanding there is no known cure for that syndrome;
·being prescribed Tramadol for pain relief and requiring regular physical therapy;
·her chronic lethargy being diagnosed as idiopathic hypersomnia;
·her conditions not affecting her ability to care for X but requiring her to pace herself and plan daily activities;
·her conditions being physical in nature and not suffering from any mental health issues; and
·attending upon a rheumatologist Dr R and a respiratory and sleep physician Dr S.
Certain parenting orders were made by Judge Heffernan on each of 19 June 2017, 26 June 2017 and 31 August 2017. Included in the order of 26 June 2017 was a requirement for the parties to obtain a family report. This was prepared by Ms T and filed under cover of affidavit of the husband’s solicitor Mr Jordan on 22 December 2017.
On 25 January 2018 the wife’s solicitors filed a Notice of Ceasing to Act.
At the next hearing on 22 February 2018 the wife was represented by the Duty Solicitor. The matter was adjourned to 19 March 2018 for interim argument. The wife filed a Notice of Address for Service in her own name on 22 February 2018.
At the hearing on 19 March 2018 the wife was self-represented. The parenting orders made by the Court that day substantially increased the time X was to spend with her father from three overnight periods in each two week cycle to seven overnight periods in each two week cycle.
This new parenting arrangement was substantially in accordance with the recommendations of Ms T as contained in her family report. The wife’s physical and psychological health challenges and the impact of same on her parenting capacity were issues of significance in that report.
The order of 19 March 2018 included an adjournment to 18 June 2018.
On 7 June 2018 V Lawyers filed a Notice of Address for Service on behalf of the wife.
At the next hearing on 18 June 2018, at which time the wife was represented by Mr U of V Lawyers, the parties consented to an order effectively continuing the pattern of X’s care until further order.
At a further hearing on 6 September 2018 Judge Heffernan made an order by consent inter alia that the wife deliver up vacant possession of the “Suburb J property” on or before 11 October 2018. There were a raft of other orders made by his Honour on that occasion with respect to property issues, including the joinder order referred to in paragraph 5 of these reasons. The wife was represented by Mr U of V Lawyers at the time of the making of the consent order.
On 19 October 2018 Y Lawyers filed a Notice of Address for Service on behalf of the wife.
On 16 November 2018 Judge Vasta ordered a Warrant for Possession with respect to the property at H Street, Suburb J in the State of South Australia (“the H Street property”), and further restrained the wife personally or by her servants or agents from entering or remaining in the property. The wife was represented at that hearing by Mr W of Y Lawyers.
By the time of that hearing no further Applications, Responses or affidavits had been filed by the wife since her affidavit filed 15 June 2017, notwithstanding a Reply and affidavit filed by the husband on 16 August 2017, a Case Application and supporting affidavit filed by the husband on 28 August 2017, a further affidavit filed by the husband on 16 February 2018 and an Application in a Case and affidavit in support filed by the husband on 18 June 2018.
The matter was next before the Court on 5 December 2018 with respect to parenting issues. Mr W of Y Lawyers again appeared for the wife.
Judge Heffernan ordered a suspension of the parenting orders of 18 June 2018 in so far as they related to parental responsibility and the time X was to spend with each of her parents, and replaced it with an order during the period of the adjournment providing for:
·the husband to have sole parental responsibility for X;
·X to live with the husband; and
·the wife to spend time with X under supervision at times to be agreed between the parties.
In addition, the order provided for the wife to be restrained and an injunction was granted restraining her from removing X from Z School at Suburb J and/or from the care and control of the husband.
The wife was granted leave by the terms of paragraph 8 of that order to file and serve a responding affidavit to the husband’s Application in a Case filed 30 November 2018 within twenty-eight days of the order. No such responding documents were filed.

On 15 February 2019 Y Lawyers filed a Notice of Withdrawal as Lawyer for the wife.
At hearings on 25 March 2019 and 3 May 2019 the wife appeared unrepresented.
The order of 25 March 2019, which continued the parenting orders of 5 December 2018, contained the following notations:
a) The first respondent mother ceased to be legally represented in mid-February;
b)The mother has indicated to the Court that she has attempted to make contact with the UU Lawyers but has not yet received a response from them;
c)The Court has concerns about the ability of the mother to adequately represent herself at trial in the event that she does not have legal representation NOTING that the trial is listed on 11 September 2019 with 3 days set aside;
d)The Court cordially requests the UU Lawyers to make contact with the mother, who currently resides at N Street, Suburb M, SA, and make an assessment as to whether or not it is able to assist her with representation in these proceedings or at least for the purpose of making an application for the release of funds in order for her to engage with a solicitor; and
e)Mr Jordan will advise the Court upon the publication of the Family Assessment Report.
The last notation related to the order of 18 June 2018 in which his Honour had ordered an updated family assessment report from Ms T.
The matter was next before the Court on 3 May 2019 at the request of the wife, pursuant to liberty granted to her in that regard by Judge Heffernan on 25 March 2019. No orders were made.
On the same day as the next hearing, namely 24 May 2019, the wife again filed a Notice of Address for Service in her own name.
At that hearing a solicitor from the UU Lawyers appeared for the wife as a courtesy to the Court in circumstances where she advised the UU Lawyers were assessing whether or not they were able to assist the wife if the matter proceeded to trial. The hearing was adjourned to 1 August 2019.
On 31 May 2019 the wife filed a further Notice of Address for Service in her own name.
Judge Heffernan transferred the matter to the Family Court of Australia on 1 August 2019. Notations were made to his order of that day in the following terms:
a)The mother in this matter is not presently represented but has been receiving amicus curiae assistance from the UU Lawyers;
b)The Court has been advised that the mother has made enquiries with a number of solicitors and apparently the respondent has been advised that they cannot assist the mother in time for the trial date in September;
c)There remains a question as to the mother’s capacity to provide instructions and whether a litigation guardian should be appointed and whether a psychiatric examination is warranted;
d)This matter is proceeding on both parenting and property issues and the parties agree that it is unlikely to resolve in under 4 days; and
e)Mr Jordan indicated that the father may take it upon himself to make an application to have a litigation guardian appointment after the matter is transferred to the Family Court.
The matter came before a Registrar in the Family Court on 9 September 2019 when, after noting that the husband was seeking to file an application with regard to the interim issue of the appointment of a litigation guardian for the wife, orders were made for the filing of the appropriate documents and the matter was listed for hearing before me on 21 October 2019.
The wife represented herself on each of 9 September 2019 and 21 October 2019.
The husband filed the Application in a Case for a litigation guardian to be appointed for the wife on 25 September 2019. In the same application he also sought payment to him in the sum of $26,609.10 from the proceeds of sale of the property at H Street, Suburb J in satisfaction of an order of Judge Heffernan of 6 September 2018.
On 11 October 2019 the second and third respondents (as they were at that time) Mr C Bellomia and Ms D Bellomia and B Pty Ltd and G Family Trust had filed a Response to the Initiating Application of the husband. In that document they sought interim orders for payment to B Pty Ltd of funds from the sale of the H Street, Suburb J property.
On 21 October 2019 the wife, acting on her own behalf, filed a Response to an Application in a Case seeking that:
·$10,000 be released from the sale of the H Street, Suburb J property to enable her to secure legal representation;
·the application for the appointment of a case guardian for her be dismissed; and
·all other interim applications before the Court made either by the husband or his parents (who were second and third respondents at that time) be adjourned for forty-two days to allow her to instruct a solicitor to prepare a proper Response on her behalf.
A consent order was made at the hearing on 21 October 2019 providing, inter alia, that on or before 4.00 pm on Friday 25 October 2019, some four days later, the husband forward to the Trust Account of O Lawyers on account of the wife the sum of $10,000, the nature of which payment was to be determined at trial.
The Court further ordered that on or before 15 November 2019 the wife file and serve a Response and affidavit in support with respect to interim orders sought by the second and third respondents (as they were at that time) in the Response they had filed on 11 October 2019. The Court noted that, in circumstances where the husband consented to the orders being sought by his parents and their commercial entities, no responding documents were required of him.
The hearing on 21 October 2019 was otherwise adjourned for interim argument to 2 December 2019.
On 22 October 2019, the day after that hearing, O Lawyers filed a Notice of Address for Service on behalf of the wife.
On 2 December 2019, the day of the adjourned hearing, those solicitors filed a Notice of Ceasing to Act. The wife was self-represented.
No answering documents had been filed by the wife as ordered on 21 October 2019.
At the hearing on 2 December 2019 the husband’s application for appointment of a litigation guardian, together with the Response of the second and third respondents (as they were at that time) seeking interim orders with respect to financial issues, were adjourned to 14 February 2020.
In addition, the following orders were made in circumstances where the wife advised the Court that if such an order was made she would attend on the appointment, namely:
1.That on or before 9 December 2019 the first respondent obtain an appointment date from the rooms of Dr AA Psychiatrist for the purpose of undergoing a psychiatric evaluation with respect to the mental health of the first respondent generally but in particular as to her capacity to properly instruct legal representation for the purpose of these proceedings or to understand the purpose and nature of the proceedings to the extent of being capable of representing herself.
2.That within 48 hours of this order the applicant’s solicitor provide to Dr AA a copy of this order and copies of all affidavits filed herein to date together with copies of any orders made herein and any expert reports filed.
3.That on or before 31 January 2020 the first respondent file and serve a copy of a report from Dr AA in relation to the issues referred to in paragraph 1 hereof.
On 31 January 2020 the wife filed an affidavit. She deposed in that affidavit to issues of:
·X’s birth at 11.00 pm in 2012 without medical intervention;
·her involvement with the building of and preparations for moving into the H Street property;
·activities with respect to her care of X in her early years;
·her health issues becoming increasingly problematic;
·medical treatment sought with respect to those health issues;
·her concern with respect to having spent no time with X between November 2018 and the date of the swearing of the affidavit;
·her appreciation of the gravity of representing herself in these proceedings;
·various efforts made to spend time with X between November 2018 and the date of the swearing of the affidavit;
·the paternal family contacting the “Emergency Mental Health Triage” with concerns that she was suicidal;
·being advised by her former father-in-law that X would be with the maternal grandparents on Christmas Eve, to her being invited to spend Christmas Eve and Day with X and her own family but being concerned about the ramifications of accepting that invitation;
·the courses undertaken by her including Developing Resilience, Circle of Security, and Kids Are First;
·having a “Child-Related Employment Screening” and having a “cleared certificate”;
·being inducted into BB Group;
·not being an “infant plaintiff” in her opinion, or needing a “next friend” to be appointed;
·having the ability to purchase and learn how to set up a computer and operating systems to write, produce and submit her affidavit;
·the physical, mental and emotional stressors as a result of the changes in her life;
·having a month to move out of the H Street property;
·not knowing what company is monitoring the security system at the N Street property into which she had moved;
·having been approved on 16 March 2019 for Newstart Allowance and obtaining a pension card;
·moving in 2018 from the H Street property to the N Street property without furniture, whitegoods and many of her personal effects including clothing and cookware;
·boxes being delivered to her about a “quarter of a year” after her move but still being without items agreed available for her use including the washing machine and dryer;
·having purchased camping furniture over time and living in a place furnished by camping furniture with her dining table being a foldable picnic table, her desk being of the same nature, her book shelf consisting of picnic benches, having a hammock for her bed, and a portable campervan washing machine;
·there being no hot water and no gas connected at the N Street property when she moved in, being told that the gas had been disconnected, but to hot water being established by the second respondents (as they were) before tradesman she had contacted arrived;
·the N Street property previously being X’s paternal grandparents’ property and being constantly reminded of memories whilst living there;
·the vehicle supplied to her for her use by B Pty Ltd being of a different type to that which she drove during the relationship, with the original car suiting her needs better ergonomically, practically and giving her a chance to get out whilst enabling her to pace herself by giving her a comfortable place to rest;
·her original Motor Vehicle 1 being less taxing on her body to drive given her medical conditions, and more economical to drive;
·being originally provided with a vehicle that was not the one specified in the order of 6 September 2018, which was delivered outside of the specified timeframe because of being fitted with reverse camera and a hands free phone connection that requires pairing to a GPS system to be able to use;
·the car and system not being in her name and the vehicle being a B Company vehicle with a B Company sticker on it;
·the Court having information provided to it primarily through affidavits of the husband and the second and third respondents (as they then were);
·having received legal advice towards the end of 2019 contrary to that received in 2017 by a previous solicitor, an affidavit that had been ordered to be filed before December 2019 not being filed, and to a solicitor withdrawing in Court leaving in question her capacity to properly instruct legal representation;
·having been borrowing from her parents to help cover legal fees but to that arrangement not being possible to continue;
·finishing payment of her legal fees owing to her original solicitors CC Lawyers by August 2018;
·applying for legal aid but that approach having been unsatisfactory to the date of the affidavit;
·the report from Dr AA being required to be filed and served on or before 31 January 2020;
·booking the earliest appointment available with him on 29 January 2020;
·rescheduling that appointment on 28 January 2020 until 27 February 2020 because it was a particularly hot week, that other organisations had rescheduled appointments for that reason alone, and that the heat affects her known and disclosed medical conditions;
·having medical conditions the details of which have been disclosed over a period of approximately five years;
·none of the medical professionals who she has consulted raising concerns or need for referral to a psychiatrist;
·having to submit information to renew her driver’s license for 9 January 2020 and the license being renewed as of 16 January 2020 following upon provision of all of her medical information to the appropriate department;
·having regular appointments with “Disability Employment Services” to meet requirements of a federal department of the Australian government;
·being in communication throughout 2019 with her family advisor at DD Service and social worker and/or counsellor at EE Contact Service during a period that she was extremely distraught over the severing of contact and communication between she and X;
·having a “cleared certificate” with respect to a “Child-Related Employment Screening” and a police clearance to provide services to the VV Group of Adelaide;
·having the certificates for the parenting courses she referred to earlier in the affidavit, as well as being elected to her BB Group’s committee with an office bearer role for 2020; and
·her extensive involvement in activities in her BB Group.
In paragraph 95 the wife deposed as follows:
I submit for the Courts consideration to my capacity that:
(a)any signature in regard to these matters herein is in effect, a binding undertaking of responsibilities, and rights, normally conferred by way of an implicit affirmation of understanding upon signing by a person with the legal capacity to do so; and
(b)a report is to be obtained by a professional, that is not an officer of the court, to be sealed, served signed by me, for consideration by officers of the court as to my understanding of court process and procedures, in anticipation of argument before the court, so that those officers of the court on deliberation can submit arguments of their own to the court; and
(c)I apologise if I am mistaken, and I ask that if, as a fiducial basis of comparison, it is within the scope of a lawyer’s reasonable competence, an accepted latitude ‘that lawyers do not always ‘get it right’ … nor are they always expected to’, a similar optic be adopted here. I am under the impression, a standard, for a reasonably competent lawyer includes an ability to exercise independent judgment and an opinion on matters ‘where the ultimate result depends on the testing and interpretation of the facts in court.’; and
(d)this Affidavit now available for consideration with hope that it is of a standard expected, of reasonable competence, for officers for the court to be well informed, and on the balance of probability, my capacity.
(as per original)
In paragraph 96 she set out what she referred to as “notes relating to response to application in a case”. Paragraphs 96(1)(a), (b), (c) and (d) are recitations of paragraphs of the order of 21 October 2019.
The second sub-paragraph 1(a) of paragraph 96 is a recitation of one of the orders made on 6 September 2019. The second sub-paragraphs (b), (c) and (d) of paragraph 96 appear to be submissions in relation to order 9 of the order of 6 September 2019.
Sub-paragraph 2 of paragraph 96 which I set out herein in its entirety are clearly submissions on the part of the wife.
2. Taking into consideration subsection 1 above:
(a)summarising, Order 3, the applicant husband consents to do all things and sign all documents necessary to pay, in full payment of all sums owing, an already submitted determined value of a singular payment to B Company from sale proceeds of the former matrimonial home; and
(b)the applicant’s interim orders sought in paragraph 2 for the net proceed of the sale to be applied in payment or repayment of the costs of preparing and presenting the Suburb J property for sale, are on the basis of a B Company invoice; and
(c)given Order 3 of Order 21 Oct 2019, with Order 10(e)(v) and (vi) of Order 6 Sep 2018 nested within, the applicant consents for the payment of an already submitted determined value of a singular payment provided by the second and third respondents (i.e. parents and B Company) in an interim application submitted after the applicant’s submission of an application in a case with a B Company invoice as evidence for preparing and presenting the former matrimonial home property for sale and in addition, to the already consented submitted determined value of a singular payment in full payment of all sums owing to B Company seeks an additional payment or repayment to him reliant in totality, on a B Company invoice, not a receipt.
(d)Therefore I submit for consideration:
(i)that if an amount paid to the applicant for the cost invoiced by B Company, for preparing and presenting, satisfies paying or repaying the applicant for costs, when the applicant has already consented to a defined monetary number to be paid in full payment of all sums to B Company, then by that very fact, there is a discrepancy in regards to costs being claimed and the applicants right to deal for multiple reasons; and
(ii)if paying or repaying B Company for an invoice satisfies paying or repaying the applicant, when the applicant has already consented to a defined monetary number to be paid in full payment of all sums to B Company, then by that very fact, B Company is a financial asset of the marriage available for division; and
(iii)the page of the loan signed is not dated, and comprises the signatures at the said time of the people who signed the loan were as follows, 1. the second respondent, director, my husband’s father, my father-in-law, employer of my husband and the witness, 2. the applicant, son and employee of second respondent, my husband, a manager of employees, 3. the first respondent, daughter-in-law, wife, and 4. the witness, an employee in the employ of the second respondent; and
(iv)it appears that previously, a builders margin of 15% was not applied, where as now, it is being applied; and
(v)in regards to repayment of the applicant’s costs in 10(e)(vi), the limit appears to be $1600. In addition, invoice for removalists provided by the applicant are neither paid by the husband or with deliveries to the specified locations in the orders and receipts paid by the Second Respondents whom at any rate are not seeking the reimbursement of these costs at this juncture; and
(vi)in regards to 10(e)(vi) payment of wife’s removal costs, I provided the conveyancers receipts from the removalists and received written reply from the conveyancers of the applicant’s consent for repayment of those receipts. I have not received that payment from the conveyancers.
(as per original)
In paragraph 98 of her affidavit the wife deposes to hoping that on the merits of the information provided “from a collection of notes made contemporaneously”:
·order 3 of orders 2 December 2019 no longer will be required (the order for the filing of a psychiatric report of Dr AA);
·a change in parenting orders is possible;
·there may be a possible increase in spousal maintenance;
·she may receive funds for a vehicle to purchase in her name; and
·she may gain assistance in relocating and independent health insurance in her name for physiotherapy.

On 17 February 2020 the wife appeared on her own behalf and tendered to the Court a Book of Documents containing the material to which she referred in her affidavit.
After hearing argument, orders were made for payments to the husband from the sale proceeds of the H Street property in accordance with paragraphs 10(e)(v) and (vi) of the order of Judge Heffernan of 6 September 2018, and for payment to the wife in the amount of $1,600 in satisfaction of paragraph 10(e)(vi) of that order.
The time for the wife to file and serve the report of Dr AA was extended to 12 March 2020 in circumstances where she advised the Court she had rescheduled the appointment with Dr AA to 27 February 2020, and the husband’s Application in a Case filed 25 September 2019 insofar as it related to interim financial matters was otherwise dismissed.
The application contained therein for a case guardian to be appointed for the wife was adjourned to 26 March 2020 together with directions generally, including the possible appointment of an Independent Children’s Lawyer.
The matter was listed for trial at 10.00 am on 6 October 2020 with seven days allowed.
By the next hearing on 26 March 2020 the wife had not complied with the order that had extended the time for the filing of the psychiatric report from Dr AA.
The Court ordered an Independent Children’s Lawyer and adjourned the question of the appointment of a litigation guardian for argument to 29 May 2020 with counsel for the husband, the legal representatives for the second and third respondents (as they then were) and the Independent Children’s Lawyer to file and serve Written Submissions in dot-point form in relation to the appointment of a case guardian on or before 1 May 2020, with those Submissions not to exceed five pages in length. The Court further ordered that on or before 22 May 2020 the wife file and serve Written Submissions in relation to that same issue and in response to any Submissions made by the other parties’ legal representatives, with those Submissions not to exceed seven pages in length.
The wife complied with the order for the filing of Written Submissions.
The hearing on 29 May 2020 was by telephone in circumstances where COVID‑19 restrictions had begun to affect the Court.
On 29 May 2020 the wife advised the Court in her Outline of Submissions filed 27 May 2020 that she attended the appointment with Dr AA on 27 February 2020. She told the Court that in conversation she had informed Dr AA that she did not want to proceed with the assessment and he accepted her position.
After reading Submissions and hearing from counsel for the husband, the wife in person and the legal representative for the second and third respondents (at that time), the Court, for reasons delivered orally that day, declined to make the order for a litigation guardian.
It was the position of the wife that there was no sufficient cause for such an order to be made, and she sought a further order for the release of funds from the sale of the H Street property, with such funds to be held on trust for a barrister. The wife was unable to provide any information to the Court as to whether the barrister she proposed, namely Ms FF, was prepared to act as her counsel and on what conditions.
In an effort to assist the wife, the Court determined at that hearing that the then second and third respondents should be deemed to be the first and second respondents such that she became the third respondent. This was intended to provide practical assistance to the wife such that prior to being required to file her material for trial, she was completely apprised of the orders sought by the husband, his parents personally and in their corporate capacities, and the evidence upon which they relied in seeking those orders.
To further clarify the position the Court ordered that the husband file and serve any Amended Application he may be advised on or before 19 June 2020 and the first and second respondents file and serve any Amended Response they may be advised on or before 3 July 2020.
The wife was ordered to file and serve any Response she may be advised to such Amended Applications or Responses on or before 17 July 2020.
An order was also made for the husband to file and serve all affidavits of evidence on which he intended to rely at trial by 4 August 2020, that the first and second respondents do likewise on or before 18 August 2020, and that the wife file and serve affidavits of all evidence on which she intended to rely at trial on or before 1 September 2020. Affidavits in response from the husband and first and second respondents were due by 15 September 2020.
The Court agreed to make an order facilitating the attendance of the family report writer Ms T for cross-examination at 11.00 am on the first day of trial.
By correspondence dated 10 July 2020 the parties and the Independent Children’s Lawyer were reminded of the terms of the order of 29 May 2020 with respect to the regime of the filing of trial material, noting that as at that date no Amended Application had been filed by the husband and no Amended Responses had therefore been filed by the first and/or second respondents. The parties were advised that the Court was mindful of the wife being self‑represented, and the time for filing the relevant documents was extended to 4.30 pm on Tuesday 14 July 2020. In the alternative the husband and/or first and second respondents were to advise the wife in writing by that date and time that they did not intend to file amended documents.
On 14 July 2020 the Court was advised in writing by the husband’s solicitor that the husband’s Amended Initiating Application would be filed by 9.00 am the next day and that the wife had been advised of that fact, as had the legal representatives for the first and second respondents, and the Independent Children's Lawyer.
On 16 July 2020 the Court was advised by the solicitor for the first and second respondents that their clients had filed an Amended Response to the husband’s Initiating Application on Tuesday 14 July 2020 in compliance with the previous correspondence from the Court, but that the husband had subsequently filed an Amended Initiating Application on 15 July 2020, such that the Amended Response did not properly respond to the orders sought in that document. The Court was advised that the solicitors wished to withdraw the Amended Response and file and new document.
In order to avoid further confusion, particularly in circumstances where the wife was self‑represented, the Court determined to call the matter on for a further directions hearing by telephone at 9.00 am on 21 July 2020. The Court also advised the wife that she was excused from compliance with the order for the filing of her Amended Response, noting that such document was due on the day of the email.
The husband’s Amended Application had been filed on 15 July 2020.
On 21 July 2020 I ordered that the Amended Response filed by the first and second respondents on 14 July 2020 be uplifted, that their time to file such document be extended to 22 July 2020, and that the time for the wife to file any Amended Response she may choose to file be extended to 31 July 2020. I also extended the time for all parties in relation to the filing of their trial affidavits, such that the wife’s trial affidavits were not due until 8 September 2020.
The Amended Response of the first and second respondents was filed by them on 21 July 2020. No Amended Response was filed by the wife either by 31 July 2020 or at any time prior to trial.
The husband’s financial statement and trial affidavit were filed on 11 and 12 August 2020 and the affidavits relied on by the first and second respondents were filed on 26 and 27 August respectively. No trial affidavit was filed by the wife.
By email correspondence to my Associate dated 6 August 2020 at 3.35 pm, copied to the solicitors for the husband, the first and second respondents and the Independent Children’s Lawyer, the wife said as follows:
Dear Associate,
RE: ADC1780/2017 - Bellomia
I apologise for not communicating my situation earlier and for not having filed an amended application, on schedule, for Her Honour. I had held hope I would be successful in obtaining advice to fulfill the requirement of that aspect of the order. I do however have a draft amended application that is not quite of a standard I consider ready to be filed, however, if to Her Honour it acceptable that my amended application draft attached here be filed without having received advice, I can edit it to be filed for the court by the end of business tomorrow, 7 August 2020.
It would seem to me that it could be good if there were at least a person in a position of mentorship I could talk to or correspond, even more so that it be a person with whom the court had confidence and so could I. In a short presentation available by LexisNexis Australia on Courtroom Etiquette, Barrister Richard Burbidge QC suggests finding someone for guidance and that if the right person is asked, they will be happy to do so. I have found this generally to be true, previously, in other areas. As an example, my teacher during my teenage years, Mrs GG, otherwise known as Ms HH, in theory at the time could have already retired, and for arguments sake, if she had been part of the Judiciary would have been in her life around that point in time it mandatory to retire, yet showed no signs of slowing in her field. I was fortunate to receive scholarships to study with her over multiple years, still appreciate the mentorship given by her to me and remember that mentorship with fondness and sense of professional friendship. I am missing this in my life and would like to find, to follow a similar line of thought to QC Burbidge, the right person to ask (I realise that this is not one directional, that also, I need to be the right person to be accepted.).
While I realise that I am not a new member of the profession, let alone a member, I do have confidence in the court and wonder, with consent, if there might be a member who is retired or semi-retired, for whom being a mentor would not be an imposition, perhaps would not mind being a mentor and either I could be put in contact with or this message with my contact details passed along to them so that they can contact me?
Kind regards,
Ms Bellomia
(as per the original)
The Court replied to the wife by way of email on 7 August 2020 at 11.16 am, copied to the solicitors for the husband, the solicitors for the first and second respondents and the Independent Children’s Lawyer in the following terms:
Dear Ms Bellomia,
I refer to your email below.
Please be advised that Her Honour is unable to provide any assistance to you in the preparation of your case. We hope that you are able to obtain some legal advice.
It is necessary to comply with orders made by the Court to ensure the trial is ready to proceed on the allocated date and in particular it is necessary for your Amended Response to be filed so that the other parties are aware of the orders you seek at trial.
Kind Regards,
…
Associate to the Honourable Justice Mead
By further email to the parties from the Court on 31 August 2020 at 3.12 pm they were advised that I wished to list the matter for mention on 2 September 2020 at 10.30 am by way of telephone hearing.
The matter was called on by me in circumstances where, notwithstanding the correspondence to which I previously referred, no trial material, either by way of Response or affidavits, had been filed by the wife.
An order was made extending the time for her to serve her Amended Response on the same date as her trial affidavit, being 8 September 2020.
The original order in relation to the filing of material for trial was made on 29 May 2020 and provided for the wife to file her trial affidavit by 1 September 2020.
The order of 21 July 2020 had extended the time for the filing of all trial material on the part of all parties, which orders had been complied with by the husband and the first and second respondents.
On 2 September 2020 the Court, in addition to extending the time for the filing of the material, ordered as follows:
2.Failure by the Third Respondent [the wife] to comply with the terms of paragraph 1 hereof will result in the matter being listed for hearing on an undefended basis.
Directions were adjourned to 9.00 am on 14 September 2020 to enable the wife to comply with the order.
She did not do so, and on 14 September 2020 the Court made the following order:
1.That all extant proceedings be heard on an undefended basis commencing on the date currently listed for trial namely 6 October 2020 NOTING THAT Ms Bellomia has failed to comply with all previous orders made herein with respect to the filing of her amended Response and trial Affidavits and the matter will therefore proceed undefended in accordance with the terms of paragraph 2 of the order of 2 September 2020.
2.That on or before 28 September 2020 the Independent Children’s Lawyer provide to the Applicant Father’s solicitor and as a matter of courtesy to the Respondent Mother a draft minute of order as proposed by the Independent Children’s Lawyer with respect to final parenting issues at trial.
3.That on or before 1 October 2020 the Applicant Father’s solicitor advise the Independent Children’s Lawyer of any additional or alternate final parenting orders sought by the Father at trial with same to be provided to the Respondent Mother as a matter of courtesy on or before 1 October 2020.
4.That on or before 28 September 2020 Counsel for the Applicant Father and the First and Second Respondents provide to the other of them and to the Associate to Justice Mead:
a. A draft minute of final property orders sought at trial; and
b.A summary of argument including any authorities to be relied on with respect to this order.
5.That that the summaries of argument referred to in paragraph 4 hereof be provided to Ms Bellomia as a matter of courtesy on or before 30 September 2020.
Notwithstanding that I listed the matter for trial on an undefended basis, I had to hand and took into account the following material filed by the wife:
·Response to the husband’s Initiating Application filed 15 June 2017;
·the affidavit in support of her Response filed 15 June 2017;
·a financial statement filed by her on 15 June 2017;
·affidavit filed by the wife on 31 January 2020;
·Book of Documents relating to that affidavit tendered by the wife on 17 February 2020; and
·Outline of Submissions in relation to the issue of the appointment of a litigation guardian filed 27 May 2020.
Even though the wife did not participate in the hearing it was necessary for the Court to be satisfied that:
(a)final parenting orders be in the best interests of X;[1]
(b)it was appropriate that any order altering the parties’ interest in property be made,[2] and
(c)such order be just and equitable taking into account the issues of contribution,[3] and need.[4]
[1] Family Law Act 1975 (Cth) s 60CA
[2] Family Law Act 1975 (Cth) s 79(2)
[3] Family Law Act 1975 (Cth) s 79(4)
[4] Family Law Act 1975 (Cth) s 75(2)
A Summary of Argument on the part of the first and second respondents was forwarded to my Associate, to the husband’s counsel and to the wife by email on 28 September 2020. A Case Outline on behalf of the husband was forwarded to the Court as well as to the solicitor for the first and second respondents and to the wife by email dated 2 October 2020.
Parenting issues at trial
The husband sought final orders with respect to parenting issues in terms of paragraphs 1 to 6 inclusive of his Amended Initiating Application filed 15 July 2020, in the following terms:
FINAL ORDERS SOUGHT
1.That the husband do have sole parental responsibility for the infant child of the marriage X born on …12 (‘the child’).
2. That the child live with the husband.
3.That the child spend time with the wife in accordance with the recommendations of Ms T set out in her family assessment report dated 13/6/19 or as otherwise recommended or ordered by the Court.
4.That the wife be entitled to participate in all school events for the child to which parents are ordinarily invited and to receive all school reports and other notices provided by the child's school.
5.That the husband keep the wife informed of any medical issues that might affect the child from time to time including any specialist medical treatment or hospitalisation.
6.That the wife shall have access to all medical practitioners/health professionals treating the child and the husband shall execute an appropriate authority in favour of the wife if so required by them.
Although the wife did not file any Amended Response, she had sought parenting orders in her Response to the husband’s Initiating Application filed 15 June 2017 in terms of paragraphs 1 to 6 inclusive of the final orders sought. Those orders were in the following terms:
Children's Orders
1)That the parties have equal shared parental responsibility for the child of the marriage X born … 2012.
2)        That the child live with the wife.
3)        That the child spend time with the husband as follows:
a)on each alternate weekend from 6.00pm on Friday until 6.00pm on Sunday;
b)during each intervening week from 6.00pm on Wednesday until 6.00pm on Thursday.
4)        That the parties shall spend time with the child on special occasions as follows:
a)for Christmas as agreed between the parties or failing agreement as follows:
i)in 2017 and each alternate year thereafter the wife shall spend time with the child from 3.00pm on 24 December until 3.00pm on 25 December and the husband shall spend time with the child from 3.00pm on 25 December until 3.00pm on 26 December;
ii)in 2018 and each alternate year thereafter the husband shall spend time with the child from 3.00pm on 24 December until 3.00pm on 25 December and the wife shall spend time with the child from 3.00pm on 25 December until 3.00pm on 26 December.
b)for Easter as agreed between the parties or failing agreement as follows:
i)in 2018 and each alternate year thereafter the wife shall spend time with the child from 6.00pm on Maundy Thursday until 6.00pm on Easter Saturday and the husband shall spend time with the child from 6.00pm on Easter Saturday until 6.00pm on Easter Monday; and
ii)in 2019 and each alternate year thereafter the husband shall spend time with the child from 6.00pm on Maundy Thursday until 6.00pm on Easter Saturday and the wife shall spend time with the child from 6.00pm on Easter Saturday until 6.00pm on Easter Monday.
c)for Mother's Day and Father's Day as agreed between the parties or failing agreement as follows:
i)the wife shall spend time with the child from 9.00am until 6.00pm on Mother's Day;
ii)the husband shall spend time with the child from 9.00am until 6.00pm on Father's Day.
d)the parties' time with the child during special occasions as set out in paragraphs 4 shall take precedence over the time set out in paragraph 3.
5)That the husband be at liberty to communicate with the child by telephone between 5.30pm and 6.00pm each Tuesday.
6)That the parties shall communicate by way of text message about matters relating to the child and such communication shall be limited only to those relevant and important matters.
The wife attended at the trial on 6 October 2020 but did not participate. After the delivery of ex tempore reasons, final parenting orders were made by me that day in the following terms:
UPON NOTING:
A.that the First and Second Respondents have not sought to be heard in relation to parenting issues presently before the Court;
B.that the Third Respondent Mother has attended at the hearing as an observer but is not permitted to participate in the proceedings pursuant to the Order made on 14 September 2020;
C.the Family Assessment Report of Ms T dated 13 June 2019;
D.the failure of the Third Respondent to engage in the psychiatric assessment with Dr AA in February 2020; and
E.that it is anticipated at some point in the future the Third Respondent may bring proceedings to spend time with the child X born on … 2012.
IT IS ORDERED:
1.That the Applicant Father have the sole parental responsibility for the infant child of the marriage of the Applicant and the Third Respondent X born on … 2012.
2.That the said child live with the Applicant.
3.That the Third Respondent Mother be entitled to participate in all school events for the said child to which parents are ordinarily invited and to receive all school reports and other notices provided by the said child’s school.
4.That the Applicant keep the Third Respondent informed of any medical issues that might affect the said child from time to time including any specialist medical treatment or hospitalisation.
5.That the Third Respondent have access to all medical practitioners/health professionals treating the said child and the Applicant shall execute an appropriate authority in favour of the Third Respondent if so required by them.
6.That the order for the appointment of the Independent Children’s Lawyer be discharged.
7.That all extant parenting applications be otherwise dismissed.

X had not, by that date, spent time with her mother since late 2018. At the time the final order was made not only did the Court have before it the updated family report of Ms T dated 13 June 2019, but X was also represented by an Independent Children’s Lawyer. Both the husband’s counsel and the Independent Children's Lawyer made submissions.
The report was heartening in that somewhat unusually, both the husband and his parents indicated a level of sympathy towards the unfortunate circumstances in which the wife found herself with respect to both her physical and emotional wellbeing. They expressed their position with regard to the orders sought by the husband as taking a course they considered to be supportive of X rather than critical of the wife.
Property settlement issues at trial
In the husband’s Amended Initiating Application filed 15 July 2020 he sought final orders with respect to settlement of property in the following terms:
7. That by way of settlement of property or alteration of interests in property:
(a)the first and second respondents be paid the sums claimed by them from the net proceeds of the sale of the former matrimonial home at H Street, Suburb J (or otherwise in the event of a shortfall) and the husband be paid the sum (if any) remaining;
(b)that paragraph 11 of the Order made on 6/9/18 be discharged (interim settlement of property);
(c)the wife do vacate the property at N Street, Suburb M within 90 days;
(d)contemporaneously with compliance with sub-paragraph (c) above the husband do pay to the wife the sum of $140,000 or such other sum as may be ordered by the Court;
(e)the husband do cause the Motor Vehicle 2 in the possession of the wife to be transferred to her for her sole use and benefit absolutely;
(f)the wife do have as her sole property all items of furniture and household effects situated at N Street, Suburb M;
(g)the wife do have and the husband do cause a superannuation split to be made to the wife from his superannuation interest using the base amount of $72,144 and calculated in accordance with the Family Law (Superannuation) Regulations 2001.
8.That paragraph 12 of the Order made on 6/9/18 (interim spousal maintenance) be discharged.
9.That by way of spousal maintenance the husband do pay to the wife the sum of $250 per week for the period of twelve calendar months and do pay all medical insurance premiums as may be required to keep the wife insured as a family member during the same period but not otherwise.
10. That the wife’s claim for spousal maintenance be otherwise dismissed.
In the wife’s Response to the husband’s original Initiating Application which she filed on 15 June 2017 she sought orders with respect to settlement of property in the following terms:
1. That the wife receive 65% of the net non-superannuation asset pool.
2. That there be an equalisation of superannuation entitlements.
No Amended Response was filed by the wife throughout the proceedings.
In the Amended Response (to the husband’s Amended Initiating Application) filed on 21 July 2020 by the first respondents, being his father and mother, and the second respondents, being B Pty Ltd and G Family Trust, the following orders were sought on a final basis:
1.        Final Orders sought by the First Respondent, Mr C Bellomia and Ms D Bellomia.
1.1.That the Applicant and Third Respondent do pay to the First Respondent the sum of $780,619.86 comprising various loans made by the First Respondent to the Applicant and Third Respondent in relation to real properties owned by them.
1.2.That within 7 days the Applicant and Third Respondent do all things and sign all documents necessary to pay from the sale proceeds of the former matrimonial home situated at H Street, Suburb J the said sum of $780,619.86.
1.3.That in the event of a failure or neglect by either the Applicant or Third Respondent to sign any document or to do any act or thing necessary to give effect to paragraph 1.2 hereof within 7 days of any written request to do so, then upon proof by Affidavit of such failure or neglect to sign any document or do any such thing, a Registrar of this Honourable Court be empowered to sign any document or to do any such acts or things in the name of the party in default in order to give effect to paragraph 1.2 and the party in default shall pay the other party’s costs as agreed between the parties or as taxed.
1.4.That the Third Respondent do pay the costs of the First Respondents.
2.        Final Orders sought by the Second Respondent, B Pty Ltd.
2.1.That the Applicant and Third Respondent do pay to the Second Respondent B Pty Ltd (ACN …) the sum of $623,043.73 (plus interest accruing from 1 July, 2020) comprising:
2.1.1the sum of $555,079.73 being the balance due by the Applicant and Third Respondent for the construction of on a home by B Pty Ltd on the property situated at H Street, Suburb J at the request of the Applicant and Third Respondent; and
2.1.2the sum of $67,964 being the balance due by the Applicant and Third Respondent to B Pty Ltd as at 30 June 2020 pursuant to the terms of a loan agreement entered into between the Applicant and Third Respondent and B Pty Ltd dated 19 August, 2011 (‘the said loan agreement’); and
2.1.3further as yet undefined sum for interest accrued pursuant to the said loan agreement from 1 July 2020 until repayment is made in full.
2.2.     That:
2.2.1the Applicant and Third Respondent do all things and sign all documents necessary to pay from the sale proceeds of the former matrimonial home situated at H Street, Suburb J the said sum of $623,043.73 plus interest.
2.2.2in the event of a failure or neglect by either the Applicant or Third Respondent to sign any document or to do any act or thing necessary to give effect to paragraph 2.2.1 within 7 days of any written request to do so, then upon proof by Affidavit of such failure or neglect to sign any document or do any such thing, a Registrar of this Honourable Court be empowered to sign any document or to do any such acts or things in the name of the party in default in order to give effect to paragraph 2.2.1 and the party in default shall pay the Second Respondent’s costs as agreed between the parties or as taxed.
2.3.That pursuant to paragraph 2 (b) of the Order made by the Honourable Judge Heffernan in the Federal Circuit of Australia on 6 September, 2018 (‘the said Order’) the Third Respondent do pay to the Second Respondent, B Pty Ltd:
2.3.1the sum of $2,515.79 being the amount due by the Third Respondent to B Pty Ltd for maintenance and running costs in relation to the sole use by the Third Respondent of the Motor Vehicle 2 registered number … (‘the said Motor Vehicle 2’) as at 30 June 2020; and
2.3.2such further amount as shall accrue for maintenance and running costs in relation to the sole use by the Third Respondent of the said Motor Vehicle 2 from 1 July 2020 until the Third Respondent returns the said Motor Vehicle 2 to B Pty Ltd.
2.3.3That the Third Respondent do return the said Motor Vehicle 2, and all keys for the said Motor Vehicle 2, to B Pty Ltd within 90 days.
2.4.That the Third Respondent do pay the costs of the Second Respondent, B Pty Ltd.
3.        Final Orders sought by the Second Respondent, the G Family Trust
3.1.That pursuant to paragraph 11 (c) of the Order made by the Honourable Judge Heffernan in the Federal Circuit of Australia on 6 September, 2018 (‘the said Order’) the Third Respondent do pay to the Second Respondent, the G Family Trust:
3.1.1the sum of $3,757.42 being the amount due by the Third Respondent to the G Family Trust pursuant for council rates, water and sewerage rates, and Emergency Services Levy in relation to the sole use and occupation by the Third Respondent of the property at N Street, Suburb M (‘the Suburb M property’) as at 30 June 2020; and
3.1.2such further amount as shall accrue for council rates, water and sewerage rates, and Emergency Services Levy in relation to the sole use and occupation by the Third Respondent of the Suburb M property from 1 July 2020 until the Third Respondent vacates the Suburb M property.
3.2.That paragraph 11 of the said Order be discharged and that the Third Respondent do vacate the Suburb M property within 90 days.
3.3.That the Third Respondent do make good at her own expense any damage caused to the Suburb M property by the Third Respondent during her occupation of the Suburb M property.
3.4That the Third Respondent do pay the costs of the Second Respondent, the G Family Trust.
4.        Such further or other Orders as this Honourable Court deems fit.
(as per original)
Following upon the making of the final parenting order, counsel for each of the husband and the first and second respondents spoke to their Written Submissions with respect to issues of property settlement.
No cross-examination was required of the husband by his parents, and likewise, his counsel did not seek to cross-examine his parents.
At the completion of submissions, during which the wife was present but did not participate, the Court ordered the matter to be adjourned to 8 October 2020 to enable counsel for the husband and the first and second respondents to tender to the Court a consolidated and agreed proposed minute of order.
It was clear by that time that in the event that the Court found the sums alleged by the first and second respondents were due and owing to them, both personally as well as to B Pty Ltd and the G Family Trust, the debt would exceed the total value of the parties’ available assets.
The only assets that existed other than the net proceeds of sale of the H Street property were the net proceeds of sale of the property owned by the husband in Suburb L, some modest savings of the husband and each party’s superannuation entitlements.
The minute of order as drafted noted that the first and second respondents would provide the husband with $140,000, on terms to be agreed between them, to enable him to pay that to the wife by way of property settlement on condition that:
·she vacated the N Street property at Suburb M;
·paid certain amounts they alleged were owing to their family trust (the G Family Trust) and to B; and
·make good at her expense any damage caused to the N Street property during her occupation of same.
There was a further notation in the following terms:
C.To the extent that the Applicant and Third Respondent remain liable to pay any amount to the First and Second Respondents following the execution of these orders the First and Second Respondents will not pursue any further payment from the Third Respondent.
The draft orders further proposed that the sum of $10,000 paid to the wife by order dated 21 October 2019 should be deemed to be by way of partial property settlement.
Upon the tendering of that document to the Court on 8 October 2020 at a hearing at which the wife also attended, judgment was reserved.
Evidence of the parties
The husband
The husband relied on his trial affidavit filed 12 August 2020 and his financial statement filed 11 August 2020.
The only evidence before the Court from the wife with respect to issues of settlement of property was that contained in the two affidavits filed by her during the course of the proceedings, on 15 June 2017 and 31 January 2020 respectively.
In so far as the first and second respondents were concerned an affidavit was filed by the husband’s father Mr C Bellomia (on 27 August 2020) on his behalf and on his wife’s behalf with her authority as first respondents, and as the sole Director and Secretary of B Pty Ltd, the sole Director and Secretary of E Pty Ltd, and as the Trustee of the G Family Trust, the second respondents. The husband’s mother Ms D Bellomia filed an affidavit (on 26 August 2020) in her own right and as a Trustee of the G Family Trust, and as a shareholder in E Pty Ltd. A further affidavit was filed on 26 August 2020 in support of the claims of the first and second respondents by Ms PP, Executive Assistant to Mr C Bellomia.
In the husband’s trial affidavit he deposed to the following matters, namely that:
·he and the wife commenced living together in September 2000 at his parents' home, rent free and without necessity to contribute to household expenses or meals;
·in August 2001 his father purchased two blocks of vacant land at 1–2 KK Street, Adelaide for $113,751, with each block having a separate Torrens Title;
·at settlement the title over 1 KK was registered in his brother's name and the title over 2 KK was registered in the names of he and the wife;
·his father made the financial arrangements;
·he was unaware of how much deposit was paid but a mortgage loan was taken from F Bank guaranteed by his parents;
·soon after purchase his father arranged for building plans to be drawn after consultation with he and the wife, following upon which two identical residences were built, one on 1 KK and one on 2 KK Street;
·he and the wife moved out of his parents' home into rented accommodation at JJ Street, Adelaide in approximately June 2002;
·they lived in that rented accommodation for approximately nine months whilst waiting for the home at 2 KK Street, Adelaide (“the KK Street property”) to be completed;
·the husband and the wife moved into the KK Street property in March 2003;
·the total cost of the purchase of the land and construction of the house was $350,000;
·by the time of completion of the building the mortgage was $250,000;
·following the husband and wife moving into the KK Street property they paid a portion of the mortgage payments to F Bank and his parents paid the remainder;
·the husband’s parents paid a total of $22,378 towards the mortgage payments until the sale of the property;
·in May 2003 the husband commenced working in his parents’ business B Pty Ltd;
·the parties remained living in the KK Street property until January 2007 when the property was sold;
·in November 2006 the husband and wife purchased a property at LL Street, Suburb MM (“the Suburb MM property”);
·the total cost of the property was $486,510 (including settlement costs);
·the husband’s parents paid the total cost on a "bridging basis" pending the sale of the KK Street property;
·the net proceeds of sale of the KK Street property were $152,694;
·the parties paid those funds to the husband’s parents in reduction of the cost of the Suburb MM property;
·that payment reduced the parties’ indebtedness to the husband’s parents to $333,716;
·the Suburb MM property was unencumbered notwithstanding the amount owing to the husband’s parents;
·$15,000 was spent on air-conditioning, a security system and other minor work on the Suburb MM property;
·the cost of the improvements was invoiced to and paid by B Pty Ltd;
·the husband and wife lived at the Suburb MM property without paying mortgage payments or rent but did pay rates and taxes;
·in June 2011 the husband purchased vacant land at K Street, Suburb L (“the Suburb L property”) for $82,000 plus costs;
·the purchase was a speculative venture;
·the property was registered in the husband’s sole name but the purchase price was paid from a Commercial Bill purchased by B Pty Ltd in the amount of $100,000;
·B Pty Ltd paid the interest from time to time;
·in March 2011 the husband and wife found a property at H Street, Suburb J that they were keen to purchase;
·the husband’s parents agreed to fund the purchase;
·the property was purchased on the basis that a new home would be built on the land after demolishing the existing dilapidated home;
·the parties purchased the H Street property for $552,490 including settlement costs;
·the husband’s parents paid the purchase price and costs at first instance whilst a mortgage was arranged;
·some months later a mortgage loan of $420,000 was obtained from F Bank;
·the property was registered in the joint names of the husband and the wife;
·construction of the new property on the H Street site commenced in approximately mid-2013;
·the husband and wife moved into the H Street property in December 2014;
·the building costs were paid by B Pty Ltd in an amount just under $1 million;
·at the same time, the Suburb MM property was sold for $592,000 (net);
·that amount was paid to B Pty Ltd in reduction of the parties’ debt;
·whilst the parties resided at the H Street property the husband’s parents paid the monthly mortgage payments;
·the husband and wife paid rates and taxes and utilities for the H Street property;
·the parties finally separated on 5 May 2017;
·the wife remained living in the H Street property until it was ultimately sold;
·during that time the husband paid the mortgage and the outgoings on that property;
·as at the date of separation the parties owed approximately $600,000 to the husband’s parents personally and approximately $780,000 to B Pty Ltd;
·the sums deposed to did not include any component for interest;
·the H Street property was sold in mid-June 2019 with settlement on 12 July 2019;
·sale and settlement on that property was delayed as a result of the wife’s refusal to vacate the property following separation;
·the husband sought and obtained an order for vacant possession on 6 September 2018;
·the wife did not comply with the order;
·he sought and obtained a Warrant for Possession on 16 November 2018;
·the Suburb L property was sold on 12 March 2020;
·the net proceeds of that sale were $57,989;
·the property secured a Commercial Bill with F Bank in the amount of $100,000 as referred to earlier herein; and
·the sale price occasioned a shortfall of approximately $40,000.
In addition to the matters referred to in the previous paragraph the husband also deposed to:
·having savings of approximately $10,000 at the commencement of cohabitation;
·the wife having no assets of any significance at the commencement of cohabitation;
·the parties living rent free and not having to contribute to household expenses or meals at the home of his parents between September 2000 and June 2002;
·studying for a Bachelor’s Degree and working part-time at the commencement of cohabitation;
·working fulltime as a professional between April 2002 and May 2003;
·the wife undertaking a Bachelor Degree at the commencement of cohabitation which she completed in 2001;
·thereafter the wife having intermittent casual employment and undertaking but not completing further tertiary courses;
·the property purchased in his name in June 2011 in Suburb L being purchased as a speculative venture;
·in early 2011 the parties, in contemplation of starting a family, deciding to move from the Suburb MM property to a home closer to his parents’ home in Suburb J;
·the property at H Street, Suburb J being approximately 200 metres from his parents’ home;
·purchasing a vacant block of land at Suburb NN in June 2011 as a speculative venture, and to the property being sold but no profit being made;
·the wife falling pregnant with X in late-2011 and X being born in 2012;
·placing the Suburb L property on the market for sale around the time of X’s birth but the property not selling until 12 March 2020 at a loss of about $45,000;
·the wife being diagnosed with Ehlers-Danlos Syndrome in 2014;
·the parties separating for the first time in October 2016;
·living in an apartment in Adelaide owned by his parents between October and late‑December 2016;
·returning to live at the H Street property with the wife and X in December 2016;
·he and the wife being provided with the use of various motor vehicles by his parents during the period of cohabitation and marriage;
·earning income from fulltime employment from 2002 onwards;
·the wife having no significant income;
·him doing most of the household chores including cooking, cleaning, washing and shopping as well as most of the gardening and home maintenance;
·to having some help with gardening and home maintenance from contractors;
·attending to a considerable amount of the care of X after she was born when he was at home;
·his mother making a very substantial contribution to X’s care including babysitting, caring for X for a few days from time to time to permit the wife some respite, driving X about, taking X shopping and the like;
·making an overall significant non-financial contribution due to the wife’s health as she was often tired and slept in most days;
·the parties attending marriage counselling in November 2016 which was unsuccessful;
·final separation occurring on 5 May 2017 when he left the H Street property and moved to his parents’ home;
·taking X to live with him the morning after separation as a consequence of his concerns about the wife’s capacity to properly care for X and how safe she would be in the wife’s sole care;
·the wife remaining living in the H Street property until its sale in mid-June 2019;
·paying the mortgage and outgoings on that property during the period from separation in May 2017 to June 2019 whilst living at his parents’ home;
·the loans to he and the wife from his parents personally totalling approximately $600,000 at the date of separation and from B Pty Ltd totalling approximately $780,000 at separation, such sums being exclusive of interest;
·the assets at separation comprising the following:
·H Street, Suburb J property;
·land at Suburb L;
·savings of about $10,000;
·furniture and household effects;
·his P Super Fund in the amount of $106,383 as at 30 June 2017; and
·the wife’s P Super Fund valued at approximately $7,500;
·Liabilities as follows:
·H Street mortgage to F Bank - $385,000;
·Commercial Bill with respect to the Suburb L property - $100,000;
·debt to his (the husband’s) parents;
·debt to B Pty Ltd; and
·the wife’s “HECS” debt – approximately $51,000;
·continuing his employment at B Company post-separation;
·his current income being $79,976
·B Pty Ltd paying his statutory superannuation contributions;
·his superannuation interests increasing from separation to the date of the swearing of the affidavit from $106,383 to $143,885;
·the wife, to the best of his knowledge, not having worked post-separation;
·paying interim spousal maintenance initially at the rate of $400 per week (noted in the order of 26 June 2017) and later at the rate of $285 per week (order 12 of the consent order of 6 September 2018) from separation to 12 August 2020 save and except between May and July 2020 inclusive;
·incurring substantial legal fees as a result of needing to apply to the Court for an order that the wife vacate the former matrimonial home and for a Warrant of Possession to enforce that order;
·proceedings commencing with his application for urgent parenting orders filed 8 May 2017:
·the wife filing a Response seeking parenting orders , property settlement orders, urgent and interim spousal maintenance at the rate of $400 per week and sole use and occupation of the H Street property;
·the order of 19 June 2017 including an order for X to spend some time with the wife pending interim judgment listed for 26 June 2017;
·orders being made on 26 June 2017 including:
·X to be delivered up to the mother;
·a recovery order to issue failing compliance with the order for delivery up;
·X to live with the wife until further order;
·X to spend time with him from Friday at 5.00 pm to Sunday at 5.00 pm on each alternate weekend and in the intervening week from 6.00 pm Wednesday to 6.00 pm Thursday;
·orders for X’s time with him at Christmas, Easter and Father’s and Mother’s Days;
·orders for specific issues;
·an order for a family report;
·notations that he continue to pay:
·$400 per week to the wife by way of spousal maintenance;
·mortgage instalments upon the former matrimonial home as and when they fall due;
·outgoings for the former matrimonial home as and when they fall due;
·provision to the wife of the use of a motor vehicle; and
·permitting the wife sole use and occupation of the former matrimonial home during the period of the adjournment.
·an interim order by consent on 18 June 2018 including an order for equal shared parental responsibility and for X to have significant time with him;
·a consent order being made on 6 September 2018 including that:
·he deliver up to the wife a certain Motor Vehicle 2 for her sole use and benefit pending trial, with the wife to pay the maintenance and running costs;
·the wife deliver up vacant possession of the H Street property on or before 11 October 2018;
·upon vacation of the former matrimonial home the wife keep the Motor Vehicle 2 garaged under cover at her place of residence when not in use;
·the wife be at liberty to remove the contents of the H Street property save and except for certain items to be agreed between the parties or ordered by the Court, which shall remain in the husband’s possession pending trial, and have exclusive use of the same pending trial;
·the husband in the company of his solicitor be allowed by the wife to attend at the H Street property on 14 September 2018 to inspect the contents, with the wife to remain present at the property during the inspection;
·the husband provide the wife with a list of items from the property that he seeks to retain pending trial within two business days of the inspection;
·the husband at first instance pay the wife’s removal costs from the H Street property to N Street, Suburb M (“the N Street property”) limited to the sum of $1,600;
·the H Street property be sold on certain terms and conditions by public auction;
·the net proceeds of sale of the H Street property be applied to:
·the agent’s fees and commission
·payment of all outstanding rates and taxes;
·payment of vendors’ conveyancing costs;
·as required to discharge the mortgage to the Westpac Banking Corporation;
·in payment or repayment of costs of preparing and presenting the H Street property for sale;
·in payment or repayment of the wife’s removal costs; and otherwise
·to remain in an interest bearing bank account in the joint names of the husband and the wife to abide further order of the Court as to interim distribution;
·that by way of interim settlement of property the wife have the sole use and occupation of the N Street property until X attains the age of eighteen years or upon the wife ceasing to use the property as her principal place of residence;
·that such use and occupation shall be on condition that AP Real Estate be appointed to manage the property during the wife’s occupation;
·the wife shall not be required to pay rent or management fees but shall pay the council rates, water and sewerage rates, Emergency Services Levy, and utilities as and when they fall due for payment, and in default of payment by the wife and the default continuing for thirty days, the wife shall vacate the N Street property, and the wife shall permit the property manager and his servants or agents access to the property for regular inspection and for maintenance purposes; and
·pending trial the husband shall pay interim spousal maintenance to the wife in the amount of $285 per week in addition to child support as assessed from time to time;
·a Warrant for Possession of the H Street property being issued by Judge Vasta on 16 November 2018;
·the wife moving out immediately thereafter;
·the wife being paid the sum of $10,000 from the proceeds of sale of the H Street property to enable her to secure legal representation;
·the wife being paid the further sum of $1,600 from those funds on account of her removal costs;
·the assets and liabilities at trial comprising the following:
Assets:
·the proceeds of sale of the H Street property - $1,090,728;
·the proceeds of sale of the Suburb L land - $57,989;
·the husband’s savings - $27,000;
·furniture and household effects - E$20,000
·husband’s superannuation with P Super Fund - $143,885;
·wife’s superannuation with P Super Fund - E$10,000;
Total: E$1,349,602
Liabilities
·loans from the husband’s parents - $780,619;
·loan from B Pty Ltd (building costs) - $555,079;
·loan from B (Loan Agreement dated 19 August 2011) - $67,964;
·F Bank Commercial Bill - $100,000
Total: $1,503,662
·he and the wife being joint Trustees for X of savings with F Bank with a balance as at 12 August 2020 of $49,895 and regarding that as X’s money, it comprising contributions made solely by his parents to the best of his knowledge;
·understanding the wife would still have a “HECS” debt;
·continuing to live in his parents’ home with X;
·intending to move into his own rental accommodation;
·not being able to manage to pay his own rental accommodation and spousal maintenance to the wife;
·X having been in his care since November 2018 and not having seen the wife as at 12 August 2020;
·the wife not accepting his proposed supervisors and not having had supervised contact at the OO Contact Centre despite registration taking place;
·intending for X to move to live with him in rented accommodation when he leaves his parents’ home;
·being employed by B Pty Ltd as manager;
·holding no office or interest in B Pty Ltd;
·being paid a salary by that company and being provided with a telephone and laptop computer, as well as using a car owned by his parents personally;
·to forming a new relationship but not living with his partner;
·having no financial relationship with his partner;
·her being 39 years of age and employed as an educator;
·her having two children aged nine and seven;
·expecting that they will eventually cohabit;
·his partner being well-known to X, to X having a good relationship with her and her children and to spending most weekends together and having holidays together;
·X having a relationship with both of his parents;
·his father working and his mother not working;
·X spending very limited time with the wife’s family members except her uncle who also works at B Pty Ltd;
·the wife’s family seeing X for an afternoon and occasionally overnight on average about once every two or three months;
·X attending Z School at Suburb J and being in Year 2 in 2020;
·expecting that she would remain at that school until the conclusion of Year 6, to her loving school and progressing well;
·his parents paying her school fees at an approximate cost of $3,800 per annum;
·his mother assisting him with the care of X;
·he or his mother taking X to school in the mornings and his mother collecting her after school;
·her not being in after school care in 2020;
·X having school activities which include ballet, gymnastics and swimming;
·his parents looking after X after school until he comes home from work usually at about 5.30 pm; and to
·he and X being in good health.

The wife further deposed to having been consulting a respiratory and sleep physician since November 2015 and having been prescribed by him with dexamphetamine as a form of neuro‑stimulant therapy which she takes at 5.00 am, 11.00 am and 5.00 pm. That evidence was confirmed by a report from Dr S dated 14 June 2017 being annexure C to the affidavit of the wife. She described her conditions as being physical in nature and not suffering from any mental health issues.
The wife further deposed to health issues in her affidavit filed 31 January 2020. In paragraph 12 she deposed to not recovering from expected stressful events including giving birth to X, looking after her as a toddler and the process of building a new home and moving house.
She deposed in paragraphs 15 to 20 to the same issues to which I have already referred as contained in her affidavit of 15 June 2017 but in particular deposed in paragraph 20 to the recovery path being slow but steady and improved on medication.
She deposed in paragraph 33 to the father failing to return X to her care in accordance with existing court orders in November 2018 and to advising her by text message that his actions were due to “your current health state”.
She deposed in paragraph 34 to having been contacted the previous day by the Emergency Mental Health Triage and being advised that family members were concerned with respect to her mental health and as to her being suicidal. She deposed to the Mental Health Triage team deeming her to be “ok” and to being contacted by them again on 5 December 2018 as a result of information provided to them by the same family member.
In paragraph 94 of her affidavit filed 31 January 2020 the wife deposed to:
·her medical conditions and the reports annexed to her affidavit filed 15 June 2017;
·having regular contact with her multidisciplinary medical team and no concerns being raised or referrals made to a psychiatrist;
·obtaining a certificate of fitness to enable her to renew her Driver’s License in January 2020;
·having regular appointments with disability employment services;
·contact during 2019 with a family advisor at DD Service and social worker and/or counsellor at EE Contact Service at a time she was extremely distraught over the “severing of contact and communication with my young daughter”;
·obtaining a Child-Related Employment Screening certificate;
·having a police clearance to provide services to the VV Group of Adelaide;
·certificates of completion from 2019 for Developing Resilience and Circle of Security Parenting;
·having a certificate of completion from 2018 for Kids are First adults group;
·being a member of BB Group;
·attending regular BB Group meetings;
·having the opportunity to be a chairperson for several of those meetings;
·actively supporting an attending BB Group events; and
·participating in the preliminary qualifying round of BB Group’s annual competition.
In the husband’s affidavit filed 8 May 2017 he deposed in paragraphs 11 to 17, 21 to 24 and 27 to his observations of the wife’s health difficulties during the marriage, his concerns that as well as physical health difficulties the wife may also have mental health issues, and to the wife being distressed in about June 2016 at the suggestion of the parties’ General Practitioner that she seek some psychological help.
In paragraph 66 of that same affidavit he deposed to being concerned about the wife’s mental state and capacity to properly care for X, and in paragraphs 49 to 58 he deposed to an incident on 4 May 2017 when the wife’s behaviour whilst X was in his care led him to call the police to ensure they were safe.
In his affidavit filed 16 August 2017 wherein paragraphs 44 to 47 he deposed to what he described as the wife’s significant health issues resulting in periods of time when she was bed‑ridden and appeared emotionally unwell, was unable to drive as a result of not being physically well enough to do so and her condition deteriorating both during her pregnancy with X and following upon X’s birth.
In paragraph 53 he confirmed the evidence of the wife with respect to her diagnosed health conditions referred to in her affidavit of 15 June 2017.
Although the wife readily acknowledged her serious problems with respect to her physical wellbeing she seemed reluctant to acknowledge that she suffered from any mental health condition.
I am satisfied that the wife was unable to effectively participate in these proceedings at least in part because of mental health challenges. The nature of these are unfortunately unknown to the Court as a result of the wife ultimately declining to obtain a report from Dr AA, notwithstanding the order to that effect being made in circumstances where she indicated that she would comply with its terms.
The question of the stability of the wife’s mental health was addressed in two family reports prepared by Ms T of AL Psychology, a clinical psychologist, dated 7 December 2017 and 13 June 2019.
At the time of the first report X was primarily in the care of her mother. On pages 17, 18 and 19 of that report Ms T expressed concern as to the wife’s ability to care for herself as a result of her chronic pain, mobility issues and exhaustion and she was concerned as to the impact of those issues on her capacity to appropriately parent X.
She referred to assistance the wife may need to assist her being more able to meet X’s needs including supportive counselling with a psychologist. She recommended that X’s time with her father increase to an equal shared care arrangement, but that if ongoing concerns with the wife’s care of X continued, she opined that it may be that X would need to live primarily with the husband. She referred in that report to the assistance being given to the wife by the husband’s parents, and in particular his father.
By the time of the second report on 13 June 2019 X was in the fulltime care of her father subsequent to him retaining her in his care in late November 2018. As at trial X had not had contact with her mother since November 2018.
Ms T referred to X understanding that her mother was unwell at the time of the second report and to the wife not demonstrating “insight into how compromised her care of X had become, and disputes the seriousness of the concerns raised. She does not see how her circumstances have and are likely to continue to impact on X.”[11]
[11] Family report of Ms T dated 13 June 2019, page 12.
Ms T went on to say further on page 12:
It is the writer’s view that Ms Bellomia needs the above range of supports in order to be able to become more functional. In addition to her physical/medical needs, Ms Bellomia requires skilled mental health support to manage her current anxiety and model confidence to X and a consistent child-focus. The writer recommends that she be referred for a psychiatric assessment, with the goal of her being linked into the public mental health service. The writer also again recommends Ms Bellomia contact the National Disability Insurance Scheme and find out what home supports are available to her. This may allow for Ms Bellomia to begin to organise her home and reduce any associated risk to her own wellbeing.
It was that recommendation of Ms T, together with her inability to effectively participate in these proceedings or instruct solicitors, that led the Court to order that she attend upon Dr AA and obtain a psychiatric report.
Taking all of those issues into account, I am satisfied that the wife suffers serious physical and psychological health issues, the nature of her mental health condition remaining undiagnosed at the time of trial.
There was no evidence before the Court as to the wife’s income at the time of trial but taking into account in particular the matters raised in the second family report of Ms T I am satisfied that it is likely she was in receipt of government benefits in circumstances where she had apparently not participated in the paid workforce for almost twenty years.
I find on the limited evidence that was available to the Court that at the time of trial she did not have the physical and mental capacity for appropriate gainful employment and is unlikely to participate in the paid workforce in the foreseeable future.
At the time of trial the husband deposed to participating in the paid workforce as manager of B Pty Ltd. He deposed in his financial statement to income of $1,538 per week by way of total salary or wages.
I find that neither party have property of any significance and both have significant debt. The husband will ultimately be able to access superannuation entitlements which at trial had increased to $143,885 from the value at separation of $106,383.
I find that the husband is undertaking appropriate gainful employment.
In circumstances where he is employed by the company owned and operated by his parents, I am satisfied that his employment is secure for the foreseeable future.
The husband has the sole care of X who is now aged 9 years.
X had not spent time with her mother for some two years at the time of trial.
Although it is hoped that such situation will alter in the future and that X will have the opportunity to spend time with her mother, such circumstance will be dependent on improvement in the mother’s health and/or assistance from the husband’s parents.
The Court noted and made findings as to the level of assistance provided by the husband’s parents to the wife, both during the course of the husband and the wife’s relationship and subsequent to their separation. Although there is no doubt they were frustrated by the situation at times, I am satisfied that they did what they could to ensure that any assistance they could reasonably provide to the wife was so provided.
There was no evidence before the Court from the wife as to her income and expenses at the time of trial, but I am satisfied that her income was minimal and most likely by way of Centrelink benefits, and accordingly her commitments were no doubt similarly modest.
At the time of trial her housing requirements were being met by the husband’s parents.
The husband deposed to the weekly expenses he incurred providing for X and himself. I am mindful that they were residing with his parents who provided not only physical assistance with respect to the care of X, but also financial assistance with respect to day to day living expenses.
I accept the evidence of the husband that at the time of trial he was in a relationship but was not cohabiting with his partner. She is employed as an educator and has two young children.
Neither the husband or the wife have a responsibility to support any other person and I have already referred to the likely scenario of the wife with respect to entitlements to Centrelink benefits.
At the time of trial the husband and X were living in his parents’ home and enjoying a standard of living that in all of the circumstances is reasonable.
The wife was resident in property owned by the husband’s parents in respect of which she did not pay rent but was expected to pay usual outgoings. As at the date of trial she had not done so.
At the time of trial the first and second respondents sought an order that the wife vacate the N Street property on or before 3 January 2021. The property is owned by the G Family Trust.
There is no evidence before the Court as to the wife’s likely standard of living in the future. It is unlikely however that for the foreseeable future she will be able to maintain a standard of living equivalent to that enjoyed during the relationship, where the available asset pool essentially comprises modest superannuation entitlements.
I am unable to find that the wife contributed to the income, earning capacity, property and financial resources of the husband other than in a modest way. This was by way of contribution towards homemaking and parenting, primarily prior to the birth of X and for the first couple of years after her birth, before the wife’s health conditions severely curtailed her capacity to provide any such contribution. I am not satisfied that the duration of the marriage affected the earning capacity of the wife.
For the reasons set out herein to date I intend to make an order that will result in almost all of the available assets being paid to the first and second respondents in reduction of the debt owing. The order will result in neither party retaining assets that will be accessible to them in the foreseeable future. It may be of course that the wife will be eligible to access her superannuation on grounds of hardship or ill health.
I find in this particular case, justice requires the Court to take into account that one of the orders sought by one of the second respondents, the G Family Trust, is that the wife vacate the N Street property owned by the Trust. As at the date of trial the wife had occupied that property for almost two years on a “rent free” basis but with liability for outgoings which she had not paid.
B Pty Ltd, the other of the second respondents, was not requiring the return of the motor vehicle to the company but rather proposing that it be made available to the husband to provide to the wife.
Taking into account the comparatively young age of the husband and the wife, the wife’s state of ill health, the wife’s lack of capacity to work, the husband’s capacity to work in secure employment, the very real difficulty the wife will face in maintaining a standard of living that is reasonable in the circumstances of this case, as well as the extremely modest asset pool, I find that there should be an adjustment in favour of the wife of 30 per cent on account of s 75(2) factors.
I find that absent a significant change in relation to the wife’s physical and mental health challenges in respect of which there was no evidence before the Court, she is unlikely to have the capacity to provide any child support for X in the future. She has not paid child support since X went into the fulltime care of the husband in November 2018.
Taking into account her work history both during the marriage and post-separation I find she is unlikely to return to the paid workforce in the foreseeable future.
CONCLUSION
Taking into account the adjustment on account of s 75(2) factors, combined with my finding as to contribution, the assets available to the husband and the wife should be apportioned equally between them. That can only be effected by a superannuation split in favour of the wife.
I have found that the assets total $190,885. One half of that amount equals $95,442.50. Of that amount the wife is deemed to have received $10,000 by way of interim property settlement and has superannuation entitlements deemed to have a value of $10,000, a total of $20,000.
Equality as between the husband and the wife will require a superannuation split in favour of the wife of the husband’s superannuation in the sum of $75,442.50.
I referred earlier herein to a minute of order tendered to the Court by way of an agreed position between the husband and the first and second respondents.
It was proposed by way of order that the first respondents, Mr C Bellomia and Ms D Bellomia, and the second respondent B Pty Ltd retain the full proceeds of the F Bank account (account number …40) held in the joint names of the husband and the wife.
This would be by way of part-payment of amounts due and payable by the husband and the wife for:
·all loans made to them by the first respondents;
·the amounts due and payable by the husband and the wife jointly to B Pty Ltd for the construction of the home on the H Street property;
·loans made to the husband and the wife jointly by the second respondent B Pty Ltd pursuant to the terms of a Loan Agreement entered into between the husband, the wife and B Pty Ltd; and
·loans made to the husband by B Pty Ltd pursuant to a Loan Agreement entered into between the husband and B Pty Ltd,
to be allocated in reduction of the husband’s and wife’s liabilities to them, as the first respondents and the second respondent B Pty Ltd see fit.
It was further proposed that:
·the wife pay the outgoings in respect of the Motor Vehicle 2 and that if she was to receive any funds by way of property settlement those outstanding liabilities be paid therefrom before she received such funds; and
·the same scenario apply with respect to payment of amounts owing to the G Family Trust with respect to outgoings relating to the N Street property.
The draft order also proposed inter alia, that by way of property settlement the husband pay the wife the total sum of $150,000, reduced by the sum of $10,000 already paid to her by way of interim property settlement on account of the order of 21 October 2019. A further $20,000 was proposed to be paid to her within twenty-one days of the date of an order, with the balance of $120,000 being paid to her upon vacation of the N Street property and the payment of the amounts owing to the first and second respondents with respect to the N Street property and motor vehicle expenses.
It was also proposed that the husband cause the Motor Vehicle 2 registration to be transferred to the wife, the wife retain as her sole property all items of furniture and household effects in the N Street property, and there be a superannuation split in favour of the wife from the husband’s fund in the sum of $72,144.
Although notation “C” to the draft minute of order provided that should the husband and the wife remain liable to pay any amount to the husband’s parents, B Pty Ltd and the G Family Trust following the execution of the order for settlement of property, neither the husband’s parents, nor B Pty Ltd or the G Family Trust would pursue any further payment from the wife, I am satisfied that the terms of the proposed order contemplated that the wife would pay to B Company and to the G Family Trust the sums owing with respect to the motor vehicle and the N Street property from the $120,000 she was to receive.
The reality however is that there are no funds available to make a payment to the wife by way of property settlement, save and except the superannuation split to which I have referred.
The first notation to the draft order proposed by the husband and the first and second respondents was in the following terms:
A.The first and second respondents will make available to the applicant funds in the amount of $140,000 (on terms to be agreed privately between the applicant and the first and second respondents) for the purpose of permitting the applicant to comply with his obligations under these orders.
The second notation was in the following terms:
B.The second respondent B Pty Ltd will make available to the applicant the Motor Vehicle 2 bearing registration … (on terms to be agreed privately between the applicant and B Pty Ltd) for the purpose of permitting the applicant to comply with his obligations under these orders.
The only obligations on the husband arising from the orders I intend to make in this matter will be to ensure compliance with the order for a superannuation split in favour of the wife and to pay any amounts due and owing by him to his parents and/or B Pty Ltd arising from the Loan Agreements between he and they or otherwise in respect to the purchase and ultimate sale of the Suburb L property, to the exoneration of the wife.
The Court’s power to make an order for settlement of property is confined to the property that exists.[12]
[12] Porter & Porter (No 2) [2018] FamCA 497.
Section 4(1) of the Act defines “property” of a marriage as follows:
[I]n relation to the parties to a marriage or either of them—means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.
The only property that existed in this matter was comprised by the net sale proceeds of the former matrimonial home, the sale proceeds of the Suburb L property, the husband’s savings, the wife’s interim property settlement, and two superannuation entitlements.

For the reasons given, the husband and the wife will be required by the terms of orders I intend to make to transfer their legal and equitable interest in the funds standing to their credit in the F Bank account arising from the sale of the H Street property to the husband’s parents in reduction of their debt.
There is no other property available in respect of which the Court can make orders in favour of the wife for any amount other than referred to in the superannuation splitting order.
The orders proposed by the husband and the first and second respondents are a further indicator of the compassion exhibited by the husband’s parents in particular towards the wife.
Nevertheless, the Court has no jurisdiction to make that order in the absence of existing property.
It is in effect a proposal of an ex gratia payment to the wife albeit with some conditions attached.
I am satisfied in circumstances where the first and second respondents will not receive sufficient funds to extinguish the debts owing to Mr and Ms Bellomia in their personal and corporate capacities, that it is just and equitable to include in the order for settlement of property an order that the wife must vacate the N Street property at Suburb M. This is a property owned by the G Family Trust, one of the second respondents. Mr C and Ms D Bellomia are the specified beneficiaries of the Trust which had been deprived of rental income by the time of trial at least at the rate of $400 per week for a period of nearly two years.
I consider the appropriate manner to adopt is to note the intention of the husband’s parents with respect to their proposed generosity, together with their intention to refrain from pursuing any further payments from the wife with respect to her share of the joint debt remaining unpaid and the liabilities arising in respect of the Motor Vehicle 2 and the N Street property.
The notations are not enforceable. It is likely that the preparedness of Mr C and Ms D Bellomia to execute their intention with respect to payment to the wife will be dependent upon the reasonableness she exhibits with respect to the vacation of the N Street property and possibly, at the very least, the making good of any damage during her period of occupation.
In addition, it was proposed that the existing order for interim spousal maintenance be discharged and the husband pay to the wife spousal maintenance at the rate of $250 per week and keep her insured as a family member with Q Health Fund Policy Number …65 for a period of twelve calendar months from the date of the order.
The order for spousal maintenance was contained in paragraph 12 of the order of Judge Heffernan of 6 September 2018 and was in the following terms:
That pending trial the husband shall pay interim spousal maintenance to the wife in the amount of $285 per week (noting that in addition the husband will pay child support as may be assessed from time to time).
At the time of the making of that order, X was still living with the wife, the wife was in poor health, and his Honour’s order of the same day also provided for her to deliver up vacant possession of the H Street property on or before 11 October 2018.
As set out previously herein she did not comply with the order, a Warrant of Possession was ultimately ordered by Judge Vasta and the wife moved into the N Street property provided for her use by the husband’s parents via the G Family Trust in early December 2018, by which time X went into the fulltime care of the husband.
This order will result in the wife having to vacate the N Street property in circumstances where she has limited, if any, capacity to work and no readily available funds.
I am satisfied that the husband has the capacity to pay spousal maintenance, but taking into account his modest income and his physical and financial responsibility to provide for the parties’ daughter X, in circumstances where it is unlikely that the wife will ever have the capacity to pay child support, that it is appropriate to reduce the amount from $285 per week to $250 per week and limit the time of payment to a period of three calendar years from the date of trial, or until such time as the wife remarries, or enters into a de facto relationship.
In circumstances where the trial concluded on 8 October 2020 the payment shall continue until 8 October 2023, or such earlier date as appropriate in accordance with the orders I intend to make.
I further find, taking into account the wife’s needs with respect to her health and the husband’s capacity to pay, that he should likewise continue to insure the wife as a family member with Q Health Fund Policy Number …65 or such other health policy as he shall have in place to provide health benefits for he and X, for the same time period.
For those reasons I make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding four hundred and fifteen (415) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mead.
Associate:
Dated: 21 December 2021

File number(s):	ADC 1780 of 2017
Judgment of:	MEAD J
Date of judgment:	21 December 2021
Catchwords:	FAMILY LAW – PROPERTY – Where the applicant husband’s parents and associated company and trust were joined as first and second respondents – Where the first and second respondents claimed debt as against the applicant husband and the third respondent wife – Where the matter was heard undefended as between the applicant husband and the third respondent wife – Where the third respondent wife failed to properly participate in the proceedings – Where the third respondent wife opposed the applicant husband’s interim application for the appointment of a Litigation Guardian for her – Where the third respondent wife agreed to comply with an order that she obtain a psychiatric assessment of her capacity to represent herself – Where the third respondent wife then refused to obtain the assessment – Where the Court declined to make the orders sought by the applicant husband – Where the third respondent wife consistently failed to comply with trial directions – Where the overwhelming majority of the applicant husband and the third respondent wife’s gross assets consisted of the proceeds of sale of the former matrimonial home – Where the amount of debt alleged to be owing by the husband and wife to the first and second respondents exceeded the amount of the sale proceeds – Where the first and second respondents sought an order that all such proceeds be paid to them in reduction of the alleged debt – Where the applicant husband consented to that order – Where the Court was required to consider, in the absence of the third respondent wife’s participation in the proceedings, whether the funds advanced to the parties by the first and second respondents were advances by way of gift or loan – Where the funds were advanced in various tranches to the husband and wife over a period of several years – Where the funds advanced were recorded in the financial records of the first and second respondents – Where there was no evidence to support a conclusion that the advances were by way of gift – Where the first and second respondents’ evidence as to advances being by way of loan was accepted by the Court – Where an order is made for the entirety of the sale proceeds to be transferred to the first and one of the second respondents, B Pty Ltd, in part‑payment of the debts owed – Where the Court determined the remaining assets of the applicant husband and the third respondent wife should be apportioned equally – Where that finding resulted in a modest superannuation split from the husband’s superannuation interest in favour of the wife – Where the wife is ordered within two calendar months of judgment to vacate the premises owned by one of the second respondents, the G Family Trust, and occupied by her rent-free since December 2018 – Where the husband is ordered to pay reduced spousal maintenance of $250 per week together with medical benefits for the third respondent wife for a period of three years from the date of trial or until such time as the third respondent wife remarries or enters into a de facto relationship – Where the wife does not and is unlikely to ever have capacity to pay child support of any significance to the husband with respect to their nine year old child.
Legislation:	Family Law Act 1975 (Cth) ss 4(1), 60CA, 75(2), 79(2), 79(4).
Cases cited:	Biltoft & Biltoft (1995) FLC 92-614 Porter & Porter (No 2) [2018] FamCA 497
Division:	Division 1 First Instance
Number of paragraphs:	415
Date of hearing:	6 and 8 October 2020
Place:	Adelaide
Counsel for the Applicant:	Mr Jordan
Solicitor for the Applicant:	Jordan & Fowler Family Lawyers
Counsel for the First Respondent:	Mr Bullock
Solicitor for the First Respondent:	Adelta Legal
Solicitor for the Third Respondent:	In Person as an Observer only

ORDER MADE BY:	MEAD J
DATE OF ORDER:	21 DECEMBER 2021