Bolkvadze & Bolkvadze (No 3)
[2025] FedCFamC1F 107
•24 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bolkvadze & Bolkvadze (No 3) [2025] FedCFamC1F 107
File number: SYC 2018 of 2022 Judgment of: CHRISTIE J Date of judgment: 24 February 2025 Catchwords: FAMILY LAW- Application to reopen parenting and property matters – Where the father seeks to reopen proceedings regarding parenting – Where the mother did not oppose reopening of parenting matters and sought to lead new evidence herself – Where the mother subsequently sought to reopen property matters– Leave is granted to all parties to reopen evidence in parenting matters only.
FAMILY LAW - Sole Parental responsibility– Where both parents seek sole decision-making responsibility, including decision making for medical matters– Father is granted sole decision-making responsibility whilst the mother is entitled to information and input regarding the medical treatment of the children.
FAMILY LAW - Property - Division of property - Where an adjustment is required - Where the wife contends that the husband has not disclosed certain financial resources that are available to him –– Court finds transactions during parties relationship did not result in an ongoing interest for the husband.
Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Benson and Drury (2020) FLC 93-998
Dickons v Dickons (2012) 50 Fam LR 244
Keating & Keating (2019) FLC 93-894
Kennon & Kennon (1997) FLC 92-757
Pickford & Pickford [2024] FedCFamC1A 249
S and S (2003) FamCA 905
Stephens and Anor (Enforcement) (2009) FLC 93-425
White and Tulloch v White (1995) FLC 92-640; 19 Fam LR 696
Division: Division 1 First Instance Number of paragraphs: 184 Date of hearing: 28–29 November & 2-6 December 2024 & 19-20 February 2025 Place: Sydney Counsel for the Applicant: Mr Stapleton on 28-29 November & 2-6 December 2024 Mr Harper on 19-20 February 2025 Solicitor for the Applicant: Boyce & Boyce Respondent: Litigant in Person Counsel for the Independent Children's Lawyer: Ms Shea Independent Children's Lawyer: Bleier Family Law And Mediation ORDERS
SYC2 2018 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BOLKVODZE
Applicant
AND: MS BOLKVADZE
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
24 FEBRUARY 2025
THE COURT ORDERS THAT:
APPLICATION IN A PROCEEDING
1.Leave is granted to all parties to reopen the evidence in respect of parenting matters limited to events which have occurred since 6 December 2024.
2.The applications to reopen are otherwise dismissed.
PARENTING
3.The children, X (born 2009), Y (born 2011) and Z (born 2015) (“the children”) live with the parents on a week about basis as follows:
(a)Week 1: with the father from after school Friday (or 3.00 pm on a non-school day) to after school on Friday (or 3.00 pm on a non-school day); and
(b)Week 2: with the mother from after school on Friday (or 3.00 pm on a non‑school day) to after school on Friday (or 3.00 pm on a non-school day).
4.The arrangements set out in Order 3 are to continue during school terms and the Term 1, 2 and 3 school holiday periods, unless otherwise agreed in writing between the parties.
5.During the Term 4 school holiday periods, unless otherwise agreed in writing between the parties, the children spend time with each parent as follows:
(a)The week about time in Order 3 shall be suspended;
(b)The children spend time with each parent in even-numbered years as follows:
(i)With the mother for the first two weeks of the school holiday period, commencing after school (or at 3.00 pm) on the Friday in the last week of Term 4 and concluding at 3.00 pm on the Friday two weeks later;
(ii)With the father for the second two weeks of the school holiday period, commencing at 3.00 pm on the Friday in the second week of the school holiday period concluding at 3.00 pm on the Friday two weeks later;
(iii)With the mother for the fifth week of the school holiday period, commencing at 3.00 pm on the Friday in the fourth week of the school holiday period and concluding 3.00 pm on Friday in the fifth week; and
(iv)With the father from 3.00 pm on the Friday in the fifth week of the school holiday period until the commencement of school in Term 1.
(c)The children spend time with each parent in odd-numbered years as follows:
(i)With the father for the first two weeks of the school holiday period, commencing after school (or at 3.00 pm) on the Friday in the last week of Term 4 and concluding at 3.00 pm on the Friday two weeks later;
(ii)With the mother for the second two weeks of the school holiday period, commencing at 3.00 pm on the Friday in the second week of the school holiday period and concluding at 3.00 pm on the Friday two weeks later;
(iii)With the father for the fifth week of the school holiday period, commencing at 3.00 pm on the Friday in the fourth week of the school holiday period and concluding at 3.00 pm on the Friday in the fifth week; and
(iv)With the mother from 3.00 pm on the Friday in the fifth week of the school holiday period until the commencement of school in Term 1.
6.Notwithstanding Order 3, the children spend time with each parent on special occasions as follows:
(a)With the father from 9.00 am to 5.00 pm on Father’s Day;
(b)With the mother from 9.00 am to 5.00 pm on Mother’s Day;
(c)On each of the children’s birthdays, with the parent that they are not living with on that day:
(i)From 3.00 pm to 6.00 pm on a school day; or
(ii)From 1.00 pm to 5.00 pm if on a non-school day.
(d)On each of the parent’s birthday, with the parent whose birthday it is:
(i)From 3.00 pm to 6.00 pm if on a school day; or
(ii)From 9.00 am to 5.00 pm if on a non-school day.
7.The children’s schooling arrangements will remain as follows:
(a)X shall continue to attend H School until the completion of her schooling;
(b)Y shall continue to attend K School until the completion of his schooling; and
(c)Z shall continue to attend L School until the completion of Year 6;
unless otherwise agreed in writing between the parties.
8.The mother and father shall have joint responsibility for making decisions in relation to all major long-term issues concerning the children, except decisions in relation to major long-term issues regarding the children’s health and medical needs.
9.The father shall have sole responsibility for making decisions in relation to major long‑term issues concerning the children’s health and medical needs, including but not limited to the children’s engagement with, and attendance upon, medical practitioners and therapists for purposes of assessment and/or treatment.
10.Prior to making any decision in relation to a major long-term issue concerning the children’s health and/or medical needs, the father is to:
(a)Notify the mother in writing of his proposed decision as soon as practicable prior to making the decision;
(b)Consider any feedback provided by the mother in relation to his proposed decision; and
(c)Notify the mother in writing of his final decision as soon as practicable after the decision has been made.
11.The father shall keep the mother informed of the names and contact details of all medical practitioners and therapists assessing or providing treatment to the children now or in the future and shall advise the mother of any change in these details within 72 hours of such change.
12.The father is to provide the mother’s name and contact details to all medical practitioners and therapists assessing or providing treatment to the children currently or in the future.
13.The mother shall be permitted to:
(a)Contact any medical practitioner or therapist assessing or providing treatment to any of the children and obtain information as to the results of any assessment of the children and the children’s treatment;
(b)Receive written information in relation to any assessment of the children or the children's progress in treatment, including copies or reports and test results;
(c)Provide information in writing to any medical practitioner or therapist assessing or providing treatment to any of the children, including but not limited to the mother’s views in relation to such assessment or treatment, and feedback as to the children’s presentation in her care, symptomology and response to treatment (or changes in treatment), but not instructions relating to any assessment and/or treatment of the children; and
(d)Meet with any medical practitioner or therapist assessing or providing treatment to any of the children at the invitation or request of the practitioner or therapist.
14.Each parent is restrained from:
(a)Changing the children’s school except with the consent in writing of the other parent;
(b)Denigrating or making critical or derogatory remarks about the other parent to or in the presence or hearing of any of the children;
(c)Discussing these proceedings or any of the issues raised in these proceedings with or in the presence or hearing of any of the children;
(d)Showing any court documents, including reports and affidavits, relating to these proceedings to any of the children; and
(e)Administering to the children any prescription medication that has not been prescribed to them.
15.Subject to Order 16 and 21, the mother is hereby restrained from taking the children to attend upon a medical practitioner or therapist for assessment/and or treatment or providing instructions to any medical practitioner or therapist without the father’s consent in writing.
16.In the event a medical practitioner or therapist who is assessing or providing treatment to the children (or any of them) requests to meet with the mother, with or without the children, the father is to do all acts and things necessary to inform the mother of the request and the mother is thereafter permitted to attend upon the practitioner, with or without the children, in accordance with the practitioner or therapist’s request.
17.The father is to continue to engage Dr E as the children’s treating paediatrician until such time as Dr E is no longer willing or able to provide treatment to the children, at which time the father shall obtain a referral from Dr E to a suitable or alternative paediatrician.
18.The father is to do all acts and things necessary to commence P Family Therapy through the O Clinic (or such other provider as is agreed in writing) to assist Z in relation to his diagnosis of a mental health disorder and is to follow all recommendations made by the therapist in relation to such treatment.
19.The father is to provide the O Clinic with the mother’s name and contact details together with a sealed copy of these Orders for the purposes of the therapist contacting the mother to engage her in the therapeutic process.
20.The mother is to follow all recommendations made by the therapist in relation to the implementation of P Family Therapy to assist Z in relation to his diagnosis of a mental health disorder.
21.Notwithstanding Order 15, the mother is permitted to attend appointments with the children for the purposes of the implementation of the P Family Therapy to assist Z, if requested by the therapist to do so.
22.The father has leave to provide a sealed copy of these Orders to all medical practitioners and therapists assessing or providing treatment to the children.
23.The parents shall continue to communicate with each other using the “Our Family Wizard” application (or a similar parenting application agreed in writing).
24.Each parent shall pay to Legal Aid NSW a contribution for representing the children’s interests in these proceedings in the sum of $14,915.85 per parent within 3 months of these Orders being made unless he or she receives a waiver.
25.Pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
PROPERTY
26.Within 60 days of the date of these Orders, the parties shall do all things and sign all documents necessary to transfer to the wife all the husband’s rights, title, and interest in the property located at M Street, City N, United Kingdom (“City N property”).
27.Within 30 days of the date of these Orders, the parties do all things and sign all documents necessary to:
(a)Close the ANZ Savings Account ending …28 in the joint names of the parties and distribute the balance to the wife;
(b)Close the Q Bank Current Account ending …68 in the joint names of the parties and distribute the balance to the wife; and
(c)Transfer all the wife’s rights, title, and interest in the Bolkvadze Trust and in R Pty Ltd to the husband.
28.The wife shall indemnify the husband in respect of any tax, duty or other impost payable in relation to the City N property on and from the date of these Orders.
29.The net proceeds of sale of the former matrimonial home at S Street, Suburb T currently held in the trust account of the husband’s solicitors be divided between the parties as follows:
(a)$632,442 to the husband or as he may direct in writing;
(b)Balance to the wife or as she may direct in writing.
30.The parties shall otherwise retain all assets, liabilities and superannuation in their respective name or possession as at the date of these Orders.
31.The parties shall each bear their own costs associated with the implementation of these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bolkvadze & Bolkvadze has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
These are final parenting and property adjustment proceedings between the applicant husband and the respondent wife. The interests of the children in the proceedings are represented by an Independent Children’s Lawyer (“ICL”). For clarity in these reasons for judgment, I will adopt mother and father to refer to the applicant and respondent in that part of the judgment which deals with parenting matters and wife and husband in that part of the reasons which deals with financial matters.
The parties are parents of three children: X (15), Y (13) and Z (10).
The parties separated in 2020 and implemented an equal time parenting arrangement by agreement. They did so originally under the one roof. In 2021 the mother obtained a rental property and stayed in that property during the father’s time with the children. At all times the children remained in the former matrimonial home.
Having been unable to agree on final orders in respect of either parenting or property the parties had a final hearing over seven days in November/December 2024. The mother appeared unrepresented. Judgment was reserved. On 12 February 2025 the applicant applied to reopen in respect of parenting. The respondent and ICL effectively agreed to reopening in respect of parenting. The respondent sought to reopen in respect of financial matters. Those applications were heard on 19 and 20 February 2025.
APPLICATIONS TO REOPEN
On 11 February 2025 the father who is the respondent in the final proceedings filed an Application in a Proceeding seeking leave of the Court to reopen the evidence.
The father relied on an affidavit by himself filed on 12 February 2025.
The mother did not file a response but filed an affidavit on 19 February 2025 and an affidavit by a lay witness on 17 February 2025.
The mother’s position was ascertained at the hearing on 19 February 2025. She did not oppose the proceedings in respect of parenting being re-opened and sought to lead some evidence. The mother also sought to reopen in respect of property matters. I will consider that separately.
The mother had prepared a tender bundle. I identified and accepted into evidence the children’s most recent school reports (not available when the matter was reserved) and all documents relevant to the trip which the mother had with the children to Region U in the December/January school holidays.
The ICL supported the application to reopen but indicated that that support was premised on the need to explore an issue raised by the father’s affidavit material which was an allegation that the mother had conceded (to the parties’ child Y) having surreptitiously given him a higher dose of his prescribed medication in hot chocolate.
The mother had given no affidavit evidence about the issue but was given the opportunity to give oral evidence. She categorically denied the allegation.
The evidence which the father sought to lead if leave were granted to reopen related to:
(a)A dispute about Y’s dissatisfaction with the mother’s late 2024 travel plan and resulting correspondence between the parties and with the child;
(b)A variety of medical symptoms exhibited by Z in early 2025;
(c)A conversation between the father and Y concerning medical decision making responsibility;
(d)A conversation between the father and Y whereby he says Y told him the mother puts higher doses of medication in his hot beverage;
(e)A conversation between the father and Y were the father suggests Y departed from his expressed view that he wished to spend equal time with his parents.
The decision in Stephens and Stephens and Anor (Enforcement) (2009) FLC 93-425 provides useful guidance about accepted principles which apply on the making of an application for leave to reopen and adduce further evidence at [273]:
We observe that in Australian Securities and Investments Commission v Rich (2006) 235 ALR 587 Austin J set out at 593 what he described as a “useful statement of relevant discretionary factors” to the exercise of discretion to permit a beginning party in a civil penalty proceeding to adduce further evidence after it had closed its case. The factors included:
•the nature of the proceeding;
•whether the occasion for calling further evidence ought reasonably to have been foreseen;
•the importance of the issue on which the further evidence is sought to be adduced;
•the degree of relevance and probative value of the further evidence;
•the prejudice to the other party;
•the public interest in the timely conclusion of litigation;
•the explanation offered for not having called the evidence.
It may also be relevant to consider what the High Court recently said in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
Nature of proceedings
The father’s application to reopen relates to the parenting aspect of the matter. It is axiomatic that if the evidence sought to be led was new in nature and character and significant to the determination of the dispute then the obligation to make orders which are in the best interests of the subject children would almost inevitably lead to leave being granted.
Importance of the issue
It is submitted that the evidence is relevant to parental responsibility and the amount of time the children should spend in each household. I accept that this is so. The issues are plainly important. The question which arises for me is the extent to which the evidence sought to be led is in any way different to the evidence already before the Court.
The father sets out a conversation between himself and on 6 February 2025:
[Y]: Can I please not go back to mum’s house this week?
Me: Why don't you want to go to mum’s?
[Y]: It's harder to get to school. There's a lot more shouting.
Me: Last year, when you spoke with the court expert you said you wanted to keep the 50:50 arrangement is that different now?
[Y]: I did say I wanted 50;50 but I can't really give a reason why usually I have reasons for these things I was worried about [Z] is separation anxiety and I thought for the three of us it would be better to keep 50:50.
As discussed at [69] – [76] Y has expressed consistent views over many years including when speaking to the single expert in late 2024.
The ICL highlighted the paragraph of the father’s affidavit which reads:
Me: Why don’t you put your [medication] in some hot chocolate, like at my place?
[Y]: I don’t like having hot chocolate when I’m with mum, because she keeps trying to give me higher doses of [medication] in it.
Me: How do you know she is doing that?
[Y]: It tasted funny. Then I saw the beads floating in it and in the bottom. I’ve told her I noticed, and she admitted it. I don’t like having drinks that I haven’t got for myself.
Me: How long has it been since you stopped taking the afternoon meds at mum’s?
[Y]: I don’t think we’ve ever had them.
Me: And how about your beds – are your beds raised at one end at mum’s?
[Y]: No.
The mother said she has never put medication (let alone a higher dose) in a hot chocolate for Y. She said in fact Y did not take his medication during the holidays notwithstanding her belief that he would benefit from it.
Degree of relevance and probative value of the evidence
The children’s views are always relevant. The question of the probative value that can be attached to those views is contextual. I have the whole of the context of a final hearing including several reports which detailed the children’s views.
I have to consider whether, even if I accepted the father’s evidence as being unchallenged, the words spoken by Y in the context in which they were spoken would impact on my factual findings concerning the children’s views. Further, I would need to consider whether that would have an impact on my conclusions about what orders are ultimately in the best interests of all three children.
The evidence about Y telling his father the mother has but medication in his hot chocolate is relevant whether it is true or not. I will return to its probative value later in these reasons.
Public interest in timely conclusion of litigation
This is relevant but not determinative. Additional time spent by the court on this matter has the real effect of delaying other matters awaiting determination and accordingly cannot be ignored. However, if the evidence were of significance I would consider it necessary to reopen.
Other matters: Finality of litigation from the perspective of the children
The children have experienced their parents being involved in post-separation litigation (and involvement of the police) for more than two years. In that time they have understood that their parents are at issue about medical matters (and specifically about which parent should make decisions). They are also aware of the parents’ positions in respect of living arrangements. It is important that the litigation end in the interests of the children.
Having considered the application to reopen the evidence in the parenting matter I admitted the parents’ affidavits (albeit that I limited the material upon which I permitted the mother to rely to that which post-dated the hearing) as they relate to parenting matters and will consider the evidence as part of my evaluation of the evidence as a whole.
Property re-opening
The principles which apply to the application for leave are the same as those considered above. Here it would seem that the following factors are relevant:
(a)the nature of the proceeding;
(b)the importance of the issue on which the further evidence is sought to be adduced;
(c)the degree of relevance and probative value of the further evidence;
(d)the prejudice to the other party;
(e)the public interest in the timely conclusion of litigation;
(f)the explanation offered for not having called the evidence.
Nature of proceedings
The overriding duty of the court in a financial adjustment matter is to make an order which is just and equitable as between the parties. The wife contends that the husband has failed to disclose historical transactions which would impact upon the court’s assessment of the financial resources which are available to him.
If I were satisfied that the evidence upon which the wife relied demonstrated incontrovertibly that the husband’s financial resources were significant then I accept that the evidence would be important. The documents upon which the wife sought to rely did not establish the present existence of any financial resource available to the husband.
Degree of relevance and probative value of evidence
The evidence to which my attention was drawn by the wife in submissions was a transfer of a property referred to as V Property. The transfer says the property, owned in part by the company G Pty Ltd was sold for $2,800,000.
The husband’s affidavit said that the property known as V Property sold for $2,800.000 of which his mother received $2,520,262.50.
There has been no apparent non-disclosure.
The wife says that because the husband’s mother has continued to lend the funds of a company called G Pty Ltd to the husband to fund his legal fees this is indicative of an ongoing interest in those assets or in that entity as a financial resource.
The mother referred to the purchase of a property in Town AA in 2006 by Bolkvadze Family Investments. There was no evidence to suggest a beneficial interest in that property by the husband at any time.
Otherwise, the wife sought to issue further subpoena to four banks, an accountant and a lawyer. In effect that was an application to reopen at large in the hope that unspecified documents may demonstrate a case. That would not satisfy the test for leave to reopen.
Prejudice to the other party
The two most obvious issues are time and cost. The latter can be remedied by the making of costs orders.
Public interest in timely conclusion of litigation.
The observations at [23] apply.
Explanation offered for not having called the evidence.
The wife says she was self-represented and fully occupied with preparation of the parenting aspect of the matter which caused her to overlook the fact that the documents she seeks to tender were available at the hearing.
In the main the documents were emails between the husband and the husband’s mother and the solicitors who have historically acted for the husband’s mother. I read those on the application to reopen. Rather than supporting a non-disclosure I read those documents as being consistent with the case the husband brought at trial.
The evidence the wife seeks to lead if she is granted leave to reopen falls into two categories:
(1)Documents which were available at trial; and
(2)Unspecified documents which might be produced if leave were granted to issue subpoena.
I am not satisfied having regard to the above considerations that the wife has demonstrated that the documents have probative value such to outweigh the prejudice to the husband and to litigants at large. If the property aspect of the hearing were to be reopened it is unlikely to be allocated hearing dates in the next six months (unless other matters resolve).
I propose to dismiss the application to reopen the financial aspect of the proceedings. I turn then to consider the disposition of the parties’ final applications for parenting and property orders.
PARENTING
The father seeks orders that he have sole decision making responsibility, that the children live with him and that he be permitted to change the children’s schools and place of residence. In the event that he is not permitted to change the children’s place of residence he would still propose that the children live with him and that he be permitted to change their schools. The mother seeks that the children live with her predominantly and that the amount of time the children spend with their father be consequent upon the distance between his home and their schools such the if he lived within a 7km radius then the term time would be divided so that they spent 8 nights a fortnight with their mother and six nights with their father. The mother seeks sole decision making responsibility.
The ICL sought orders at the conclusion of the evidence which provided that the children remain living with both parents in a week about arrangement and that the father have sole decision making responsibility.
The parameters of the dispute as defined by the parents and the ICL arises from determination of the following matters:
(a)Do mental health issues for the parents historically or presently impact their parenting capacity and if so with what consequences for allocation of decision making responsibility and time?
(b)What is the significance of the children’s views about their medical treatment?
(c)What weight should be attached to the children’s views about their parenting arrangements?
(d)What is the significance of the children’s special needs for the parenting orders (both in respect of time and decision making)?
(e)Has either party engaged in family violence and if so with what consequences for the parenting orders?
(f)Have there been objective indicators supporting the value to the children of the order for sole decision making responsibility?
(g)Should the evidence about school attendance inform the time arrangements for the children?
I have treated the proposal of the father as in effect being a preferred proposal which was for the children to live with him in Region RR and an alternate proposal for the children to live with him in Sydney.
The children
X
At the time of trial X was 15 years old. She was in year 9 at school.
When X’s treating paediatrician saw her in November 2024 she recorded the issues presenting for X as a range of medical and mental health conditions.
X’s most recent school report indicates that she performs somewhere in the middle of her cohort.
X’s school attendance is problematic.
X is under the care of a psychologist, Ms BB. Ms BB gave evidence in the proceedings.
Y
At the time of trial Y was 13 years old. He was in year 7 at school. He has performed well academically.
When Y’s treating paediatrician saw him in November 2024 she recorded the issues which present for him as a range of medical conditions.
Y is prescribed medication for ADHD. The mother believes that Y benefits from this medication and in fact would benefit from a higher dose of the medication.
The mother gave evidence that Y did not take medication in the most recent school holidays nor did she require him to do so. The father said Y took it seldomly in the school holidays while in the father’s care.
As outlined above Y reported to his father in January 2025 that he was reluctant to have a hot chocolate “when I’m with mum, because she keeps trying to give me higher doses of [medication] in it”. In cross-examination the mother categorically denied the allegation. She agreed that Y had seemed wary of accepting drinks from her but had not understood it was as a consequence of a belief she had put prescription medication in the drinks. She specifically denied having “admitted” same to Y. The manner in which the mother gave her evidence about this topic was consistent with her evidence overall. She appeared sincere and as the ICL submitted “adamant” in her denial. She did not doubt Y had spoken the words and said they caused her concern as it seemed apparent that Y’s consciousness of adult issues had now led him either to suspicion or to play the parents off against one another. Given the seriousness of the allegation and the mother’s evidence I am not satisfied to the requisite standard that the mother did in fact administer the medication. It is not however surprising that the father should bring this information to the attention of the Court.
The evidence which both parties gave on reopening about this issue supported the conclusion reached by the single expert Dr C, that he was concerned about “possible overmedicalisation and overfocus on the children’s mental health considering how well they are functioning from the school reports”. At the conclusion of the trial this observation holds true in respect of both parents. I do not dismiss the mother’s concern that the conversations set out in the father’s affidavit on re-opening lend credence to the theory that the father sees fault in the mother’s approach and seeks information from the children about her household. It is unhelpful as it fuels the mother’s concern that the father does not value her insights and observations.
Z
At the time of trial Z was nine years old and in year 3 at school. His results at school are unremarkable. Z still co-sleeps on occasion with the mother.
When Z’s treating paediatrician saw him on 12 November 2024 she recorded the issues which presented as a mental health disorder and a medical condition.
Z’s medical treatment has been the subject of significant debate between his parents.
On 22 August 2024, an order was made appointing Mr F as a single expert in these proceedings. The need for a single expert (in addition to the child and family psychiatrist Dr C) arose out of the parents’ differing approaches to diagnosis and treatment (including medication) in relation to all three children but, perhaps most significantly in respect of Z.
In exhibit 26, Mr F said:
While [Z’s] height velocity has slowed marginally the more significant drop in [Z’s] weight trajectory and marked drop in his BMI centile are clinically significant and may well be explained by the potential for stimulant medication to reduce appetite.
During cross-examination Mr F maintained his evidence that Z’s growth was of concern and supported the recommendation of Dr E that Z be given the opportunity for a more extended trial period without stimulant medication. During that trial it was proposed that Z’s teachers monitor his symptoms at school to provide a source of information to the paediatrician about Z’s presentation (over a more sustained period) without stimulant medication.
The mother has been resistant to reduction or cessation of stimulant medication for Z because she is aware that Z has identified that he feels that he benefits from the medication and because, in her observation Z has benefitted from medication. The mother’s concerns are legitimate.
However, there are two factors which persuade me that her reticence is not in Z’s medium to long term interests. The first factor is that Mr F found that he was unable to confirm Z’s diagnosis of ADHD (Dr CC) because he did not have data from two separate sources over a sustained period. He stressed that this does not mean that he is concluding that Z has been wrongly diagnosed – merely that he lacked the data to confirm the diagnosis. The second factor is the literature (including the specific product information for the medication) about the correlation between stimulants and appetite suppression. Given the Mr F’s concerns about growth (and the role stimulants may have played) it is in Z’s interests to determine whether a period without stimulants leads to an increase in appetite and consequent growth. The trial would provide the paediatrician with information which would be useful to inform treatment. Of the two parents the father is more likely to support a trial.
Exhibit 60 was a table the content of which was uncontroversial as between the parties. Z’s height in late 2024 put him in the 0.8 percentile for his age. The percentile has decreased while he has taken stimulants and the single expert Mr F indicated that this also supported a trial without medication.
The characteristics of the children and in particular their medical needs are relevant to the determination of allocation of parental decision making responsibility and time.
The father submitted that he should exercise sole decision making responsibility. There were a number of different asserted reasons including: to prevent future conflict about these issues, to streamline the pathway, and to more easily enable the children’s medication dosages to be lowered should this be medically recommended.
The mother had agreed historically that the shared decision making responsibility had caused conflict and agreed to an interim order in an effort to reduce this area for disagreement. That order provided sole decision making responsibility to the father. It did not markedly reduce disagreement but it is likely that it gave some certainty to the medical providers about the legal source of consent to treatment. I accept that this is likely to streamline decision making with advantages to the children.
The children’s views
The parties agreed that until 6 February 2025 all three children have consistently and unambiguously expressed the view that they wish to live with both parents.
There are two other relevant subjects about which the children (or some of them) have expressed views: medication and medical decision making. I will discuss those when I am considering the orders for parental responsibility.
It is significant that the parties implemented a “nesting arrangement” after separation which saw them share the children’s care approximately equally. When this arrangement came to an end there was a short period of time before an equal arrangement was reintroduced by court order. When the children came to be interviewed for the Child Impact Report on 12 December 2022 the report writer recorded:
12.It is [X’s] expressed view that she live in an equal time week about parenting arrangement. [X] said that she does not want a mid-week dinner with the non‑resident parent as it would be “more complicated”. [X] stated that she is used to living in an equal time parenting arrangement. [X] said that she would like to have telephone contact with her non-resident parent in accordance with her wishes. X said that she would not “be very happy” if the Judge made an Order for her to primarily live with one parent over the other. [X] reiterated that she would “miss” the parent who she did not primarily live with.
15.[Y] described [Ms Bolkvadze] as “adventurous” because she likes to take him and his siblings on walks and to the beach. [Y] said that, sometimes, he feels too tired to go on adventures with [Ms Bolkvadze] but that, once on the adventure with his mother, he typically enjoys himself despite feeling tired. He said that he likes it when he and [Ms Bolkvadze] go to the park, the beach and play with the dogs together. [Y] described [Mr Bolkvadze] as “calm” and “interesting”. He said that he enjoys discussing philosophical topics with [Mr Bolkvadze], playing video games and going on walks around the local area together.
21.It is [Z’s] expressed view that he live in an equal time parenting arrangement, in either a split week or week about parenting arrangement but that he would prefer the split week parenting arrangement. [Z] said that it would be “not good” if he were ordered to live with one parent more than the other.
(Child Impact Report dated 15 December 2022)
In September 2023 the children met with Dr C. In interview with the children he canvassed their views concerning their living arrangements – the children’s expressed views on this occasion were consistent with those conveyed to the author of the Child Impact Report.
After the children had met with both the author of the Child Impact Report and Dr C the father amended his application to seek different parenting orders. The key difference was that the father was proposing that the children change schools, that he be permitted to change where they live and the time proposed with the mother was more curtailed.
Against that background the children had further interviews with Dr C.
The single expert recorded the children’s current views about the amount of time spent in each household which were unchanged. X understood the position of each parent but identified the advantages to her of the continuation of the present time arrangements. Given her age, her experience and the consistency of her views I place significant weight on them. Y also indicated to the single expert that he preferred to remain in his equal shared time arrangement. He expressed a preference for his father to “manage their medical appointments as this reduced confusion and tension between his parents”. Although Y is younger it is also appropriate that I give his expressed views strong weight in my determination. Z echoed the views of his siblings. All three children were consistent in their view that they would like to remain in their currents schools and with their parents living in close proximity.
I accept that, in the ordinary course, children will be required to undertake moves which effect change to their home, their geographical location and their school. However, it is plain that to do so in this case would disturb arrangements which are settled for children for whom stability and structure are important. The father’s primary proposal involves a move which would also have a highly significant impact on the time the children could spend with their mother.
On 6 February 2025 Y asked his father if he had to return to his mother’s home. I have set out the conversation which the father relays above. Characteristic of the conversations in the father’s affidavit of 12 February 2025 he asks questions of Y which appear designed to obtain information about the operation of the mother’s household. I accept the father may consider these inquiries as appropriate but in the context of the present dispute they have the real chance of operating to create a situation where the children are cast in the role of decision maker (against a background where the arrangements are prescribed by court order). The conversation suggests that Y’s opinion about an equal time arrangement has either changed or in the alternative was based on concern for his sibling. Y’s concern for Z was not a new circumstance, he had discussed his concerns with Dr C.
I must weigh this conversation between father and son against the objective evidence in the single experts’ reports over a sustained period of time. I must also consider that even if I was firmly convinced Y’s views had now shifted I would continue to be guided by the views of his siblings and his historically close relationship to both parents, the expert having described the children as “equally attached to both parents”. There is nothing in the evidence in either party’s case to suggest different arrangements should apply for the children individually and hence I remain inclined to afford significant weight to the views which have been expressed over time by all of the children.
The father initially proposed that the children’s time would be significantly curtailed to allow him to administer aspects of what he understood were required by P Family Therapy.
Mr F’s oral evidence supported the conclusion that the P Family Therapy program was not so rigid that it should impact overnight and extended time in two households. It could operate over two households were both parties were, as here, highly motivated.
It is necessary for me to weigh the children’s different needs, medical, psychological, emotional, educational, social – in order to evaluate the competing proposals. A proposal (such as the father’s) places the key emphasis on the children’s medical (and related psychological needs) without proper consideration of the emotional, psychological and social losses which would be required.
The joint statement of the single experts (exhibit 3) stated:
Given the ongoing conflict in relation to the children’s health management, it would be better for one parent to have primary care of the children and the other parent to have substantial time, at least fortnightly weekends from Friday to Monday and half the school holidays.
I am not persuaded that if there are final orders and the father is given responsibility for medical decision then the children will be exposed to significant conflict so as to require them to live in one household or the other. I take into account the fact that even if the children were to be living with one parent and spending time in the other household the parents would be remain involved and invested in their children’s education and medical treatment. If anything I consider that having an imbalance in the time the children spend in one household is more likely to be productive of the opportunity for conflict than an equal arrangement.
Family violence?
Section 43(1)(ca) of the Family Law Act 1975 (Cth) (“the Act”) provides that “[a] court exercising jurisdiction under this Act must, in the exercise of that jurisdiction, have regard to … the need to ensure protection from family violence”. While the section is drafted in a manner which looks to the future – it is clear that my assessment of whether such protections are required will be informed by my findings of what has occurred in the past.
While the parties have engaged in a protracted dispute about their post-separation arrangements this is to be differentiated from the type of conduct which meets the definition of family violence: Pickford & Pickford [2024] FedCFamC1A 249 at [94].
In August 2022 when the parties had separated the mother went to the former matrimonial home without first informing the father. The father phoned the police. I do not consider that any action of the mother on that day meets the definition of family violence.
A few days later, both parties were at issue about who was going to take their daughter to a medical appointment. When the mother attended to collect X from school she believed she was not there so she proceeded to the former matrimonial home. There was an argument and the father would not allow the mother to enter the home. I accept she was yelling. The father called the police. The mother drove to a local police station and told the police that the father was being controlling by not allowing her access to the children. Again, while the parties’ conduct was indicative of conflict it was not an incident of family violence.
The father proposed the mother could see and spend time with the children if she agreed to certain conditions.
A short time later, the mother indicated to the father by text that she intended to collect the children from school (she had not accepted the conditions he sought in writing). The father engaged the police to conduct a welfare check. The mother’s evidence is she spoke to a domestic violence liaison officer because she contended the father was not providing the children’s necessities.
Neither the account of the mother or that of the father disclose events which meet the definition of family violence. They do demonstrate high levels of post-separation conflict to which the children were exposed.
In September 2022 the mother says she was informed by the children that the father was throwing the mother’s belongings away. She emailed the father to let him know she was coming to the former matrimonial home. The mother did attend and the parties had a disagreement. The mother endeavoured to gain access to the house through the kitchen window. The mother was able to get about halfway through the window such that her head and upper torso were in the house. The father tried to prevent her from further entering by closing the window. Both parties sought apprehended domestic violence orders. Both applications were dismissed. The police viewed a video of the incident.
I accept that this incident is capable of meeting the definition in s 4AB:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(as per original)
On that occasion the conduct of both parties was such that it meets the definition.
The final incident identified by the parties’ evidence as being one in which it is contended that there was family violence is the father’s evidence that the mother attended the former matrimonial home in September 2022. At its highest I do not think this incident meets the definition of family violence.
Given my findings that the parties engaged in conflict in the immediate post-separation period which almost always fell short of constituting family violence and given that neither party asserted a history of family violence in the relationship or after 2022 I am comfortably satisfied that whatever orders I make the children are unlikely to be at risk of family violence, consistent with the requirements of s 60CG(1)(b) of the Act.
Parental capacity
I elsewhere in these reasons refer to the opinion of both single experts that both parents “are reasonably high functioning”.
The father experienced a major depressive episode in 2020. Dr B said in his report of May 2023 that the father “did not demonstrate significant impairment in his parenting capacity”. That evidence was unchallenged.
The father’s affidavit material questioned whether perceived deficits in the mother’s cognition and his concerns about her presentation would be distressing for the children or result in reduced empathy.
I accept that the mother has from time to time (including during the hearing) presented as heightened or “emotionally labile” when discussing issues related to the children’s care. There does not seem to be any evidence that this in and of itself has had a negative impact on the children and does not appear to have influenced their expressed wishes. In my view there was no objective evidence to support the conclusion that the mother has reduced empathy.
Dr B in his report of May 2023 considered that if the children were exposed to the mother’s anxious and emotionally labile presentation then this may cause the children distress. The mother has a treating psychiatrist and her anxiety – at least as much as was evident from the trial arises in the context of these proceedings. It would follow that the conclusion of these proceedings should aid the mother’s anxiety.
The mother talked about the manner in which she would approach X if X was distressed, which included soothing her and lighting candles and other activities of a similar nature. The father submitted that a video taken by the mother indicated she was more focused on “evidence” than comforting X. While I accept that this particular example may not be indicative of the mother comforting X I do not think that the mother routinely ignores X’s distress. In fact, Ms BB’s evidence supports the conclusion that the mother may become overwhelmed or effected by X’s distress such as to render her less useful. The approach of a parent to each situation experienced by his or her children will not necessarily be ideal but I am not persuaded that this difference should dictate the arrangements of all three children.
X’s treating psychologist was appropriately circumspect about betraying her confidences but did confirm that, at present, X may find her father’s approach to her distress more useful. Her evidence was that if “parents themselves struggle with emotional dysregulation or have limitations in self-organization, it can impede their ability to offer emotional attunement and responsive support that X requires to achieve regulation, return to a calm state, and learn effective interpersonal and regulatory skills.” I accept Ms BB’s evidence but must weigh that against X’s desire to remain living half time with her mother.
The evidence on reopening canvassed a vacation which the mother arranged for the children during the long summer holiday. Y was confronted by the concept of a change of arrangements such that he indicated to the mother that he would not attend. The mother sought the father’s input and inquired whether Y could stay with him. The father had plans but told Y he would change them if Y requested. Y ultimately accompanied the mother. While the situation posed a challenge it did not demonstrate incapacity. The mother provided a variety of child focused activities for the children demonstrating her ability to understand and endeavour to meet the various needs of the children.
Apart from the observations above, from the evidence I concluded both parents are equal to the task of providing for the children’s needs and their emotional well being and I accept the opinion of the single experts that they are reasonably high functioning.
School attendance
The father submits one of the reasons why the Court would make the orders which he seeks is that he has a better track record for ensuring the children’s school attendance.
Exhibit 6 supports the conclusion that Z’s and Y’s school attendance was unremarkable. They were more likely to be late to school during the mother’s week. X experienced significant issues related to lateness and attendance in terms 3 and 4 of 2024 which were more pronounced when in her mother’s care.
All things being equal I would consider that a parent who has a better capacity to ensure school attendance should be the parent responsible for caring for the children on the preponderance of school days. However, there are multiple factors to be balanced in this case such that the issue of school attendance is not determinative.
Parenting determination (time)
It follows from the above consideration, that I have concluded that the children’s best interests will be served by an arrangement which preserves the equal time arrangement, which would preclude any move.
I am conscious that the father sought to move house whatever the outcome of his application and to be permitted to change the children’s place of residence to Region RR. He cited financial reasons. I will not restrain the father from moving but any change of school will require the mother’s consent. The children currently benefit from:
(a)The close proximity between their parents’ homes;
(b)The close proximity between the home of the father and school;
(c)The close proximity between the home of the mother and school;
(d)The stability of a known school environment.
The mother gave evidence that she anticipated her rental property would remain available to her until she sought to move.
While the father had explored some suburbs in reasonable proximity to the children’s schools as options for rent or purchase, it became clear in cross-examination that he had not explored all options. Given my conclusions about financial adjustment (set out below) I find that it is reasonable to conclude that he will be able to find accommodation which allows him to remain living in proximity to the children’s schools.
The parties have been involved in a lengthy dispute about parenting arrangements. There is little evidence to demonstrate that other than in the early separation the children have been exposed to damaging parental conflict. Both parents appear to retain a strained respect for one another and certainly acknowledge their value to the children and each parent appears to have similar attitudes and values to one another.
Both Dr C and Mr F concluded that a change in living arrangements such as is contained in the father’s primary proposal would constitute a significant change and that X and Z would find such a change challenging.
The disadvantages of the father’s primary proposal and the corresponding advantages of the continuation of the current arrangements as discussed above strongly favour orders which provide for equal time. This arrangement may not be without flaw but it is to be preferred to the other available arrangements.
Decision making responsibility
I have concluded that the children’s best interests would be served by an equal time arrangement. Each party will have decision making responsibility for day to day matters while the children are in his or her respective care. The most significant dispute between the parties about long term issues relates to the children’s medical treatment. Other long term-issues are less conflictual and ought be the subject of parental consensus.
The Joint Statement of Experts (exhibit 3) said:
Both parents are reasonably high functioning and very committed to the children. However, there is a risk that each parent sees the children’s behaviour through the lens of their own experience.
I agree with this conclusion.
The mother and the father are involved, diligent and curious about the children’s medical treatment. The mother has read widely and has been informed by the NHMRC Australian Evidence Based Clinical Guidelines for ADHD.
The parties spent considerable time post-separation exchanging information (and opinions) about treatment options. The discussions did not assist them to reach consensus on some important issues.
In May 2024 Z sent his father a text message (exhibit 13):
I REALLLLLLLLYYYYYYYYYYYYY want to be on the other medication because I feel like I prefer life when I am on the other meds but I also REALLLLLLLLLYYYYYYY don’t want to talk about it to anybody so can we not talk about it.
(As per original)
The mother says, and I accept, that she is attuned to her children and she is aware of the importance of the children’s views being taken into account in their treatment. She submits that as a consequence she is better placed to make decisions of a medical nature for the children.
The mother is distrustful of the father’s approach to medical decision making.
The mother’s approach of ensuring her children have a voice in their treatment is appropriate. I am not confident that the father is opposed to this approach. However, he is more open to an approach which may depart from their expressed views if that is recommended by their treaters. It is that key difference which in a difficult case persuades me that on balance (and given shared decision making is untenable) the father should hold parental decision-making responsibility.
The joint statement of experts (exhibit 3) said:
The current situation whereby the Father has sole responsibility for medical decisions appears working reasonably well. He has a more flexible, conservative approach to the children’s health management that is likely to be better for the children in the long term.
This expert opinion remains sound following cross-examination and I accept that it accords with the evidence and supports the making of an order for sole parental responsibility in favour of the father.
It is not the role of the court to make treatment decisions where the parents cannot agree – nor can I in the circumstances of this case say that one parent’s view about treatment options is necessarily to be preferred. I can however conclude that joint decisions are contra-indicated and that the father is on balance more likely to approach the recommendations of treaters more flexibly and openly.
I am acutely aware that the mother rejects the expert opinion about her being rigid in respect of the children’s medical treatment. I accept that she perceives herself as flexible. But time and again in her evidence and submissions the mother returned to her position that an “optimal dose” of ADHD medication would help the children achieve their maximum potential.
The children’s medical issues are not limited to the one issue of ADHD and its treatment but this issue is the one which has occupied the greatest time and attention. The mother correctly submits that other medical issues require a joint or at least complimentary approach. This is not precluded by giving one parent the final say on treatment options.
The single experts thought it invaluable to the children that the mother be permitted to provide information to the treaters and receive feedback from them. The effect of my order will be that medical advice to the parents will be premised on both parents having been permitted to provide information to the treaters but that any instructions (if required) about treatment options will be made by the father.
All other (non-medical) major long-term decisions will be made by agreement between the parents.
These parenting proceedings appear to have taken a significant emotional toll on the children: in particular X and Y. It is evident that the mother has seen the proceedings as a forum in which her parenting has been scrutinised and criticised leaving her feeling defensive and overwhelmed. That was plainly exacerbated by undertaking the role of advocate on her own behalf.
Ms Swift wrote in the Child Impact Report:
[b]oth parents seem to have a lot of valuable qualities and skills that they can pass on to their children, and it would be a shame [for] the animosity between the parents to increase due to being involved in prolonged Court involvement and subsequently negatively impact the quality of their relationships with the children and for the children’s emotional well being to decline.
While it appeared as though the children had been largely shielded from the consequences of the prolonged dispute the evidence on reopening suggests that this has begun to change. Further litigation is plainly contrary to their interests. Each party contends that his or her proposal will best meet the children’s needs but the reality is that the children’s needs may not be entirely met whatever orders the Court makes. It is however, beyond question that they need the litigation to end.
PROPERTY
The parties were in their early twenties when they commenced to reside together. The wife had savings of $30,000 and the husband assets of nominal value.
The work history of the wife can be summarised. Between 2002 and 2010 the wife’s income was greater than the husband as he was predominantly studying or completing unpaid internships. The parties lived overseas for the husband’s work/study in 2007-2009. After return from overseas the wife was caring for the parties’ young children and did not engage in paid work. The wife has undertaken extremely limited work part-time in education and a short period involving animals.
The work history of the husband can be summarised. From soon after marriage the husband studied for two periods 2003-2007 and 2013-2018. He engaged in limited part-time work during some of these periods. Since 2019 he has engaged in part-time work as a health professional.
The history of acquisition and disposal of real property is uncontroversial.
The most significant factor in the financial proceedings between the parties is the weight which should be attached to the funds which were provided by the husband’s family and whether as the wife contends the husband has a financial resource.
The parties identified their property in a Joint Balance Sheet which was Exhibit 55:
Ownership Description Applicants value Respondents value ASSETS 1 J Q Bank Account (ending #…68) $17,548 $17,548 2 J DD Bank Account (ending …07) (Bolkvadze Trust) $10,309 $10,309 3 J DD Bank Account (ending …34) (Bolkvadze Trust) $155 $155 4 J DD Bank Trading Account (ending …03) (Bolkvadze Trust) $6,207 $6,207 5 J EE Ltd Fund, Property Address: FF Street, Suburb GG QLD (Held by Bolkvadze Trust) $37,000 $37,000 6 J M Street (City N Property) $264,661 $264,661 7 J Net proceeds of sale S Street, Suburb T (Held in Applicant’s lawyer’s Trust Account) $761,770 $761,770 8 A Motor Vehicle 1 $6,000 $6,000 9 R Motor Vehicle 2 $15,000 $15,000 Total $1,118,650 $1,118,650 ADDBACKS 10 A Part Property Settlement $510,000 $510,000 11 R Part Property Settlement $510,000 $510,000 Total $1,020,000 $1,020,000 LIABILITIES 12 A HELP Debt $91,715 $91,715 13 R HELP Debt $40,236 $40,236 Total $131,951 $131,951 SUPERANNUATION Member Name of Fund Type of Interest Applicants value Respondents value 14 A Super Fund 1 Accumulation interest $24,835 $24,835 15 A Super Fund 2 Accumulation interest $42,914 $42,914 16 R Super Fund 1 Accumulation interest $60,378 $60,378 17 R Super Fund 2 Accumulation interest $7,260 $7,260 Total $135,387 $135,387 FINANCIAL RESOURCES Ownership Description Applicants value Respondents value 18 A Asserted remainder in estate of husband’s father NIL $1.5 mil undisclosed from the $5.5 million dollar sale held in the estate of Mr KK. Valued in 2012. 19 A Asserted Interest of Applicant in unknown trust NIL $7 million if figures provided from the father of G Holdings cut of sale are correct, as of 2012. Do not recall seeing documentation to validate this claim. Value today unknown 20 A Half of money given to pay legal fees NIL $50,000 Total NIL TOTAL Assets $1,118,650 Assets – Liabilities $986,699 Assets + Addbacks $2,138,650 Assets + Addbacks - Liabilities $2,006,699 Assets + Addbacks + Super - Liabilities $2,142,086 (As per original)
Does the husband have a financial resource?
The husband was a beneficiary of the estate of his father who died in 1999.
The husband’s mother was the executor of the estate of her late husband.
The grant of probate listed the assets of the estate as follows:
·Interest in the property known as HH Property $2,000,000
·Interest in JJ Partnership $169,742
·Shares in public companies $14,879
·Preference share in G Pty Ltd $30
The husband’s mother received the benefit of property previously owned in joint names with her husband.
As a consequence of later transactions it is plain that the value attributed to the assets in the grant of probate was less than the value which was achieved by sale of the assets relatively soon thereafter. G Pty Ltd had an interest in two parcels of real estate which when sold provided significant funds to the husband’s mother.
The following clauses of the will are apposite:
3. I GIVE DEVISE AND BEQUETH the whole of my real and personal estate whatsoever and wheresoever unto my trustees UPON TRUST to sell call in and convert money (with power to postpone such calling in and conversion of any part of my residuary estate) and to retain any of my investments in the same state of investment as at my decease for so long as my trustees shall in their absolute discretion think fit without being personally liable or responsible for any loss occasioned by such postponement or retention and out of my ready money and the proceeds of such sale calling in and conversion subject as is hereinafter mentioned to pay my debts funeral and testamentary expenses including all probate estate and other duties State or Federal payable in respect of my estate or in consequences of my death AND so that no person shall be liable to make any payment to my executors by reason of the fact that any property which has been or may hereafter be disposed of by me by any gift settlement or other disposition made in my lifetime or which may be vested in him or her at or after my death is included in my estate for the purpose of the assessment of any such duty as aforesaid and to invest the remainder of my ready money and of the said proceeds (hereinafter called “my trust estate”) in such investments as may be authorised by law for the investment of trust funds and also as hereinafter authorised and to hold the same UPON TRUST to pay the whole annual income of my trust estate (including the income of securities unauthorised by law for the investment of trust funds but retained by my trustees under the power of postponement and retention hereinbefore contained) as from the date of my decease to my wife during her life.
1.From and after the decease of my said wife I DECLARE that my trustees shall hold my trust estate and the income thereof UPON TRUST for such of my children as shall be living at my death and if more than one in equal shares.
2.If any of my children shall die in my lifetime whether before or after the date hereof living issue any of whom shall be living at my death and attain the age of twenty one years such issue shall take and equally amongst them if more than one beneficial the beneficial interest in my estate which their respective parents would have taken if living at my death.
(As per original)
In 2012, the beneficiaries of the estate entered into a deed which provided:
RECITALS:
A.[Ms LL] is the executor and Trustee of the Estate (“the Estate”) of the Late [Mr KK] who died [in] 1999.
B.Probate Number […] of [Mr KK’s] will dated […] 1981 (“the Will”) was granted to [Ms LL] [in] 1999.
C.After making certain provisions for payment of debts and testamentary expenses the Will provided for the balance to be held upon Trust upon certain items including –
(i)“To pay the whole annual income of my trust estate…….as from the date of my decease to my wife during her life”;
(ii)“From and after the decease of my said wife I declare that my trustee shall hold my trust estate and the income thereof upon trust for such of my children as shall be living at my death and if more than one in equal shares”;
(iii)“I empower my trustees at their own discretion to expend and if necessary for this purpose to raise the whole or any party of the beneficial interest in my estate whether expectant or otherwise to which any person is entitled under this my will for the advancement in life or benefit of such person in any way my trustees shall in their absolute discretion think fit with liberty in the case of any infant to pay the same to his or her guardian or guardians notwithstanding that any guardian may be a trustee of this my will without being liable or responsible to see the application thereof.”
D.[Ms LL] is [Mr KK’s] widow and [Mr W, Mr SS and Mr Bolkvadze] were his children living at the date of his death.
E.[Mr W, Mr SS and Mr Bolkvadze] have requested [Ms LL] both in her capacity as Trustee and life tenant of the Estate to make and/or consent to the advancement of certain capital monies from the Estate to them at their direction
F.The parties entered this Deed to record their agreement.
NOW THIS DEED WITNESSES
1.[Ms LL] in her capacity as Trustee of the Estate and life tenant of the Estate hereby resolves to distribute $4,000,000 from the Estate by way of advancement to or at the direction of [Mr W, Mr SS and Mr Bolkvadze].
2.[Mr W, Mr SS and Mr Bolkvadze] direct [Ms LL] to pay those monies as follows:
Name Amount Mr W $1,000,000 Mr SS $1,000,000 Mr Bolkvadze $1,000,000 Mr MM $250,000 Ms NN $250,000 Mr OO $250,000 Ms PP $250,000
3.In consideration of [Ms LL] acting in accordance with their request and to the fullest extent permitted by law, [Mr W, Mr SS, and Mr Bolkvadze] will jointly and severally indemnify [Ms LL] from any and all liabilities whatsoever in relation to making the payments referred to in the preceding clause.
4.Each party acknowledges that they have had the opportunity of obtaining independent legal and financial advice before entering into this Deed and have made such arrangements in that regard as they consider appropriate.
5.This Deed may be signed in counterparts and all such counterparts when taken together shall constitute a single instrument.
(As per original)
The husband did not commence any proceedings to contest the administration of the estate. The grant of probate and the deed were entered into during the relationship and there was no evidence to suggest that the transactions were entered into to defeat a claim by the wife. It may well be the case that the husband could have sought a more favourable outcome but he did not.
The wife’s case appeared to be that even if it were the case that the husband had no further interest or entitlement in respect of the estate of his father he had an expectation in respect of the estate of his mother. The husband’s mother is alive. The husband’s mother’s will was not in evidence.
I am unable to conclude on the basis of the evidence that the husband has any present entitlement to an asset or financial resource arising out of the estate of his father.
Given the factual circumstances it is possible that the husband may receive an inheritance when his mother dies but I am unable to take into account a potential future inheritance. Given the circumstances of this case it is not proper to have regard to what may occur upon the death of a party’s parent: White and Tulloch v White (1995) FLC 92-640; 19 Fam LR 696.
It follows that I do not find that the husband has a further asset or financial resource. Accordingly, the assets, liabilities and superannuation of the parties is as follows:
Ownership Description Value 1 J Q Bank Account (ending …68) $17,548 2 J DD Bank Account (ending …07) (Bolkvadze Trust) $10,309 3 J DD Bank Account (ending …34) (Bolkvadze Trust) $155 4 J DD Bank Trading Account (ending …03) (Bolkvadze Trust) $6,207 5 J EE Fund, Property Address: FF Street, Suburb GG QLD (Held by Bolkvadze Trust) $37,000 6 J M Street City N Property $264,661 7 J Net proceeds of sale S Street, Suburb T (Held in Applicant’s lawyer’s Trust Account) $761,770 8 A Motor Vehicle 1 $6,000 9 R Motor Vehicle 2 $15,000 Total $1,118,650 10 A Part Property Settlement $510,000 11 R Part Property Settlement $510,000 Total $1,020,000 12 A HELP Debt $91,715 13 R HELP Debt $40,236 Total $131,951 Member Name of Fund Type of Interest Value 14 A Super Fund 1 Accumulation interest $24,835 15 A Super Fund 2 Accumulation interest $42,914 16 R Super Fund 1 Accumulation interest $60,378 17 R Super Fund 2 Accumulation interest $7,260 Total $135,387 TOTAL Assets $1,118,650 Assets – Liabilities $986,699 Assets + Addbacks $2,138,650 Assets + Addbacks - Liabilities $2,006,699 Assets + Addbacks + Super - Liabilities $2,142,086 Contributions
The wife was in employment at the commencement of the parties’ relationship and deposed (from memory) to having about $30,000 in savings from her employment. While she (understandably) did not have corroborative documentary evidence I accept that she had some savings when the parties started to live together.
Prior to the birth of the parties’ children the wife was the primary income earner. After the birth of the children the husband’s personal exertion income remained low and he had several years out of the workforce while he retrained. In the last few years of the relationship his income was greater than that of the wife.
The parties both performed considerable unpaid work. Both parents made parenting contributions prior to and since separation. In the early years of the children’s lives the mother had primary responsibility as the father was studying.
Both parties undertook work around the home and the wife was involved in the organisation of renovations to the parties’ home in 2014.
The husband said that the contributions of the parties should be assessed 65/35 in his favour on the basis of the monies which came from his family. The wife said the contributions favoured the husband but would be adjusted by reason of her home making contributions and to take into account family violence.
It is important that I approach the assessment of the various financial and non-financial contributions over this approximately 18-year relationship in a holistic manner. As the Full Court observed in Dickons v Dickons (2012) 50 Fam LR 244:
24.There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
25.Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “giving over-zealous attention to the ascertainment of the parties’ contributions” (Norbis v Norbis (1986) 161 CLR 513 at 524; 65 ALR 12 at 18; 10 Fam LR 819 at 825; [1986] HCA 17) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
26.The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
I would, cognisant of the preferred approach, take into consideration both financial and non‑financial contributions holistically, as opposed to individually assessing different components mathematically.
The wife was seeking a separate consideration of her homemaking and parenting contributions and I have certainly had regard to those contributions when reaching my conclusions but not separately such that I have assigned a percentage to her financial contributions and another to her non-financial contributions, but rather considered those contributions globally.
In the written outline of submissions the wife asked that I consider another “separate” adjustment of 5% to take into account “family violence”. To the extent that the evidence before me related to allegations of family violence it was not extensive and was confined to a period between August 2022 and September 2022. During this period the parties had separated and the husband was endeavouring to secure sole occupation of the parties’ home. The police were called during this period. In September 2022 the wife sought access to the home via an open window. The husband sought to close the window while the wife was climbing through.
There is nothing in the wife’s account taken at its highest to satisfy me that it is appropriate to make an adjustment having regard to the matters set out in the mother’s affidavit. The Full Court in Kennon at 84-294 stated “it is essential to bear in mind that the relatively narrow band of cases to which these considerations apply”. I accept that not every incident of family violence will be relevant to assessment of contribution. The Full Court in S and S (2003) FamCA 905 (“S and S”) adopted the trial judge’s comments that:
…the references to ‘exceptional cases’ and ‘narrow band of cases’ occurs in the context of the principle of misconduct in general rather than the more narrow formulation about domestic violence. My reading of these passages, therefore, is that it is not necessarily correct that only cases of exceptional violence or a narrow band of domestic violence cases fall within the principles. It seems to me that reading these passages carefully, the key words in a case where there are allegations of domestic violence are ‘significant adverse impact’ and ‘discernable impact’. That reading of the passage is, I think, given some additional force by the actual decision in the Doherty case and the judgments of Baker J in both Doherty and Kennon.
The Full Court in S and S said they did not want the reference to “exceptional” to be understood to mean “rare”.
The wife did not make any further submissions about this adjustment. There must be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions. I am not satisfied that the principles established by the Full Court decisions in Kennon & Kennon (1997) FLC 92-757 (“Kennon”); Benson and Drury (2020) FLC 93-998 and Keating & Keating (2019) FLC 93-894 have application to this case.
The contributions to the parties’ assets from the husband’s family of $667,000 in 2009 and $1,000,000 in 2012 are significant in the context of the pool of assets acquired by the parties. That does not mean that I do not take into account the other periodic financial contributions of each party or their individual non-financial contributions but it does mean I must accord proper weight to the lump sum contributions. I view the contribution of $1,667,000 to a current pool of $2,006,699 (assets, including addbacks, less liabilities) as being a matter which must be accorded significant weight. I accept the position submitted by the husband in this regard and assess the contributions overall at 65/35 in his favour.
Matters arising under Section 75(2)
The husband is 45 years of age and the wife is 44 years of age. Neither party asserted that he or she had health considerations which impacted earning capacity.
The husband’s income from part-time employment is $76,965. In cross-examination he said that if he worked full-time he would earn $120,000 (in his affidavit the figure is $110,000). Given the wife’s negligible earnings this difference is not material. The husband indicated he could increase his hours in order to service a mortgage (although I accept it is not his preference).
The wife was earning income in education in 2022 when she swore her most recent Financial Statement. She also had income from an animal-related business. It is not controversial that she no longer has income from either source.
The wife gave evidence that she was accepted for a degree at QQ College but she has been unable to successfully complete any units as yet. She hopes to retrain. In the meantime she identified working as a driver in the future as a means of generating income. It is necessary for me to have regard to the s75(2)(h) as it would appear that the successful completion of those qualifications would assist the wife to earn a greater income.
I also accept that the wife has contributed to the husband’s income and earning capacity through financial support and non-financial contributions made while he was studying. It is significant that the husband’s HELP debt is the largest liability in the Joint Balance Sheet. While I recognise that the wife also has a liability for study related debt it is less than half that of the husband. I accept that the wife has contributed to the husband’s income and earning capacity and to a lesser extent he to hers.
As a consequence of the contribution-based assessment the husband will have greater assets than the wife and it is necessary for me to have regard to a standard of living that in all the circumstances is reasonable.
The circumstances in this case include the fact that as a consequence of my orders the children will live with both parents who will be responsible for their care for half of the time.
The parents will ideally obtain accommodation in reasonable proximity to the children’s school and whether that is rental property or a property which they purchase, each will need access to capital.
The parties’ superannuation entitlements are approximately equivalent. No party sought a splitting order.
In considering the adjustment to the parties’ contribution based entitlements as discussed above it is also important to have regard to the size of the net pool available for adjustment in order to appreciate the dollar value of any adjustment.
The wife has a very limited recent work history, no current income and proposes retraining. In those circumstances it is appropriate that there be an adjustment equivalent to 10% of the net pool of assets and superannuation. In dollar terms that is $214,209.
The wife has the following assets, liabilities and superannuation:
(a)Motor Vehicle 2 $15,000
(b)Part property settlement $510,000
(c)HELP debt ($40,236)
(d)Super Fund 1 $60,378
(e)Super Fund 2 $7,260
Total $552,402
The husband has the following assets, liabilities and superannuation:
(a)Motor Vehicle 1 $6,000
(b)Part property settlement $510,000
(c)HELP debt ($91,715)
(d)Super Fund 1 $24,835
(e)Super Fund 2 $42,914
Total $492,034
The assets held in joint names are as follows:
Q Bank Account (ending …68) $17,548 DD Bank Account (ending …07) (Bolkvadze Trust) $10,309 DD Bank Account (ending …34) (Bolkvadze Trust) $155 DD Bank Trading Account (ending …03) (Bolkvadze Trust) $6,207 EE Ltd Fund , Property Address: FF Street, Suburb GG QLD (Held by Bolkvadze Trust) $37,000 M Street, City N Property $264,661 Net proceeds of sale S Street, Suburb T (Held in Applicant’s lawyer’s Trust Account) $761,770
There is a joint ANZ bank account with a negligible balance. The husband’s application sought that it be closed and the balance paid to the wife. I will so order.
The joint account with Q Bank can also be closed and, in accordance with the husband’s application the balance can be paid to the wife.
The Bolkvadze Trust was treated by the parties as property of the parties in the manner in which they ran the case and I will do likewise. The husband seeks to retain the entitlement to assets held by that Trust. The wife made no submissions specifically addressed to this issue.
The parties agree that the wife will retain the M Street, City N property.
When that distribution of the parties’ joint property is taken into account the assets in the name of each party would be as follows:
Wife
(a)Motor Vehicle 2 $15,000
(b)Part property settlement $510,000
(c)HELP debt ($40,236)
(d)Super Fund 1 $60,378
(e)Super Fund 2 $7,260
(f)Q Bank $17,548
(g)City N Property $264,661
Total: $834,611
Husband
(a)Motor Vehicle 1 $6,000
(b)Part property settlement $510,000
(c)HELP debt ($91,715)
(d)Super Fund 1 $24,835
(e)Super Fund 2 $42,914
(f)Trust assets:
(i)DD Bank Account
(ii)(ending …07) (Bolkvadze Trust) $10,309
(iii)DD Bank Account
(iv)(ending …34) (Bolkvadze Trust) $155
(v)DD Bank Trading Account
(vi)(ending …03) (Bolkvadze Trust) $6,207
(vii)EE Ltd Fund
(viii)EE Ltd Fund Property Address:
(ix)FF Street, Suburb GG QLD
(x)(Held by Bolkvadze Trust) $37,000
Total: $545,705
The total pool of assets (including interim distributions), superannuation (less the liabilities) is: $2,142,086.
The adjustment in accordance with my findings will be achieved by dividing the remaining joint assets, namely the proceeds of sale of S Street, Suburb T (Held in Applicant’s lawyer’s Trust Account) of $761,770. The husband should receive an overall 55% ($1,178,147.30) and the wife 45% ($963,939). To achieve that the proceeds will be divided so that the husband receives $632,442 and the wife receives the balance (approximately $129,328). This adjustment will represent a just and equitable division as between the parties having regard to the above determination.
I certify that the preceding one hundred and eighty-four (184) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 24 February 2024
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