Bonnel & Jephson (No 5)
[2025] FedCFamC1F 288
•7 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bonnel & Jephson (No 5) [2025] FedCFamC1F 288
File number(s): BRC 12366 of 2021 Judgment of: JARRETT J Date of judgment: 7 May 2025 Catchwords: FAMILY LAW – CHILDREN – Where the parties are agreed on a number of orders – Where the principal area of disagreement concerns the time and the way the children will spend time with the respondent – Where the respondent does not genuinely accept the children’s autism diagnoses and their need for various supports – Where it was found that the applicant and independent children’s lawyer's proposed orders for time will bring more benefit to the children than those proposed by the respondent
FAMILY LAW – PROPERTY ADJUSTMENT – Where the respondent and his mother assert that the advances were loans, but there was no evidence relating to an agreed time for repayment or as to the terms of interest – Where the respondent contends there is a “negative asset pool”
Legislation: Family Law Act 1975 (Cth) ss 62G(2), 79(4)(g), 106B Cases cited: Bonnel & Jephson [2022] FedCFamC1F 812
Budiarta & Zavahir [2016] FamCA 923
Darmanin v Cowan [2010] NSWSC 1118
Pearce & Pearce (No 3) [2022] FedCFamC1F 418
Teen Ranch Pty Ltd v Brown (1995) 87 IR 308
Wayne & Dillon & Dillon [2008] FamCAFC 204
Division: Division 1 First Instance Number of paragraphs: 140 Date of hearing: 14, 15, 16 & 17 October 2024 Place: Brisbane Counsel for the Applicant: Mr Carlton Solicitors for the Applicant: ABKJ lawyers Counsel for the Respondent: Mr Blond Solicitors for the Respondent: O’Reilly & Sochacki Lawyers Counsel for the Independent Children’s Lawyer: Mr George Solicitors for the Independent Children’s Lawyer: Legal Aid Queensland ORDERS
BRC 12366 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BONNEL
Applicant
AND: MR JEPHSON
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
7 MAY 2025
BY CONSENT THE COURT ORDERS THAT:
1.All previous parenting orders and notations be discharged.
2.The parents of the children BB born 2013 and Y born 2017, shall each take all necessary and reasonable steps and use their best endeavours to ensure that, where the children’s surname is used, that be the name “JEPHSON”, and that this be the only surname by which the children will be referred to and known, by both parties and in official contexts (such as regarding the children’s school and treating medical and allied practitioners) and by third parties.
3.The applicant shall exercise sole parental responsibility for decisions for the long-term medical and allied health needs for the children BB born 2013 and Y born 2017, provided that:
(a)at least one (1) month prior to the date when a decision needs to be implemented (unless the decision relates to an acute or life threatening illness or injury when the timeframe will be dictated by the children’s needs), prior to making her decision, the applicant will give written notice to the respondent of the decision to be made and her proposed decision and reasoning for it, and invite the respondent to respond to her in writing within fourteen (14) days of her notice being given;
(b)permit the respondent to provide his written response including any alternative options to her within the said fourteen (14)-day period;
(c)consider any written response and alternate options and reasoning which the respondent has provided to her, in her decision-making thereafter; and
(d)once the applicant has made her decision, she shall provide written notice to the respondent of her ultimate decision and reasoning for this; and
(e)the applicant must keep the respondent informed in writing of the names and details of the children’s current treating medical and allied health practitioners, of any further specialist diagnoses or referrals made for the children and provide copies of any further letter/s of diagnosis to the respondent, provide details of any treatment plans and prescriptions made for the children, and provide copies of prescriptions to be filled by the respondent and or medications prescribed for the children to be taken by the children when they will be in the respondent’s care pursuant to these orders.
4.The parents shall exercise joint responsibility for making all long-term decisions for the children other than those provided for in above order 3, as follows:
(a)they will inform the other parent of the decision to be made;
(b)they will consult with each other by:
(i)the parent making the initial proposal (“the first parent”) providing in writing to the other parent (“the second parent”) the details of any proposal and the intended date the proposal is to be implemented;
(ii)if the second parent does not agree with the initial proposal, then the second parent will provide details of any proposed variations in writing to the first parent within seven (7) days;
(iii)if the second parent responds to the initial proposal with variations, the first parent will respond to the second parent about the variation in writing within seven (7) days to advise whether there is agreement; and
(iv)the parents will each make a genuine effort to reach a joint decision prior to the date the initial proposal is due to be implemented.
5.Should the parents be unable to agree in future on any significant parenting matters for the children pursuant to above order 4, then the process to be used for resolving disputes about the terms or operation of these orders is as follows:
(a)the parents will consult with a Family Dispute Resolution Practitioner (“FDRP”) such as via Relationships Australia or a private practitioner to assist with resolving the dispute;
(b)the parents will pay the costs (if any) of the FDRP equally;
(c)if the parents cannot agree upon the FDRP, then the applicant will nominate three (3) practitioners and advise the respondent in writing the details of each practitioner’s fees, experience and availability;
(d)the respondent will then choose one of the practitioners from the applicant’s list within seven (7) days of receipt of the list;
(e)if the respondent fails to choose a practitioner within the seven (7) days, the applicant may choose a practitioner; and
(f)whichever way the practitioner is chosen, the applicant is to arrange for an initial appointment for the parties to attend upon the FDRP as soon as possible and will notify the respondent of the details of the appointment in writing as far in advance as possible of the appointment date.
6.If either parent does not respond to the other’s proposal or does not engage in the dispute resolution process referred to in orders 4 and 5 above, then the first parent is at liberty to implement the initial proposal at the expiration of one (1) month from the date written notice of the initial proposal was provided to the second parent.
7.The children shall live with the applicant when they are not otherwise living with the respondent.
8.In addition to any other time provided for in these orders, the children shall spend time with the respondent:
(a)at Christmas in year 2025 and in each odd numbered year thereafter, the children will spend time with the applicant from 2.00pm on 24 December until 2.00pm on 25 December, and the children will spend time with the respondent from 2.00pm on 25 December until 2.00pm on 26 December;
(b)at Christmas in year 2026 and in each even numbered year thereafter, the children will spend time with the respondent from 2.00pm on 24 December until 2.00pm on 25 December, and the children will spend time with the applicant from 2.00pm on 25 December until 2.00pm on 26 December;
(c)on the weekend during which Father’s Day falls the children shall spend time with the applicant on that weekend from after school on Friday (3.00pm if a non-school day) until before school on Monday (9.00am if a non-school day), and the respondent’s time with the children on that weekend is otherwise suspended.
9.The parents will each initiate telephone or video call communication to the children when the children are in the other parent’s care, the respondent at 6.00pm on Thursdays and the applicant at 6.00pm on Saturdays, with the call or video communication to be made directly to the children and to be facilitated by the parent who has the care of the children at the time of the communication and with the children to be provided with their privacy during their communication.
10.The children are at liberty to have telephone or video call communication with each parent at any reasonable time, and the parent with the care of the children when either child or both children express a view or wish to that parent to have communication with their other parent will facilitate and initiate communication for the child/ren to their other parent, and if the other parent is not available to take the children’s call at that time then another call will be facilitated and initiated 15 minutes later.
11.The parents shall effect changeover of the children between them at school when changeover is to be effected after or before school pursuant to these orders, and otherwise at the Suburb CC McDonald’s, or as may otherwise be agreed between the parents in writing and either parent may effect changeover via a nominee on their behalf provided that their nominee is known to each parent and to the children.
12.For the purposes of changeover:
(a)where changeovers occur in person between the parents neither parent will raise or discuss issues at changeover which may be at that time the subject of dispute or issues of significance to be negotiated between them;
(b)belongings passing with the children between the parents should be limited to items which can fit in the children’s schoolbags, unless otherwise agreed in writing; and
(c)for the purposes of facilitating items passing between the parents’ homes:
(i)homework and any clothing received from the other parent and other items shall pass with the children by dropping any necessary baggage at an agreed place, provided that if no place can be agreed, then at the children’s school administration office, for collection by the other parent on Monday afternoons or at changeovers if a non-school day;
(ii)the items shall include the children’s items of comfort; and
(iii)during school terms the respondent shall ensure that, at the conclusion of the children’s time with him, the children are wearing the school uniforms in which they commenced to spend time with him, such that the children’s school uniforms will be laundered by the respondent over that time and worn on the next school day on which they are to be returned to the applicant if a school day.
13.Unless in an emergency concerning the children or as otherwise provided for in these orders, all communication between the parents shall be in writing via the ‘Talking Parents’ app, with the applicant to enrol and send the respondent an invitation to the app and the respondent to accept within twelve (12) hours of his receipt of that invitation, with this app to thereafter be utilised by the parents for parental communication (or such other substitute app as may be agreed to between the parents in writing thereafter but if no agreement then by the applicant proposing by email to the respondent a list of three (3) alternate comparable services and the respondent then selecting one from that list within five (5) days of his receipt of the applicant’s list and the respondent then forthwith advising the applicant by email of his choice), and shall be limited to communication about parenting related issues.
14.To facilitate the parents’ communication about the children, each parent must maintain any necessary subscription and technology to ensure their written parenting communication remains viable and each shall keep the other informed via the app or by email of a mobile telephone number for use in an emergency or urgent circumstances involving the children.
15.In an emergency concerning the children and for the purposes of the parents’ selection of any new communication app, the parents may communicate together by text message and email.
16.Neither parent shall use physical discipline or punishment on the children nor permit any other person to do so.
17.Neither parent shall use or be under the influence of any illegal or illicit drugs at any time when the children are in that parent’s care.
18.The parents and their servants or agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or their family, to or in the presence or hearing of the children and from permitting any other person to do so.
19.The parties each have leave to provide to any treating therapeutic professional on whom they may attend for psychological support to cope with co-parenting the children with the other party and for support to manage the children’s parenting, a sealed copy of these orders and the Affidavit of Ms DD filed on 30 September 2024.
20.Each parent must:
(a)maintain involvement with the children’s treating medical and allied practitioners sufficient to maintain knowledge of the children’s current prescribed medications, treatment plans, therapies and recommended behaviour management strategies;
(b)comply with the children’s prescribed medications, treatment plans, therapies and recommended behaviour management strategies;
(c)not use the children as messengers between the parents;
(d)keep the other parent informed at all times of their residential address, mobile telephone number and email address and advise the other in writing of any change/s to these details within twenty-four (24) hours of such change; and
(e)inform the other parent as soon as reasonably practicable of the specifics and particulars of any serious medical condition or significant health issue or significant other emergency suffered by either child or both children whilst in that parent’s care.
21.Within five (5) days of the date of these orders the respondent shall contact the provider of the ‘Parental Education Program’ offered by Dr EE at FF Services and enrol/register to commence that program on the first available date and then complete the program, and he shall advise the applicant in writing of the start date of his attendance prior to that date, and upon completion of the program he shall provide to the applicant any written confirmation by the program provider demonstrating his completion of the program within forty-eight (48) hours of his receipt of such confirmation.
22.These orders authorise each parent to communicate with the children’s treating medical and allied health practitioners about the children and to request to be provided by the practitioners with information about the children’s progress and treatment (at the requesting parent’s own expense, if any) and to discuss the children and their treatment subject to the usual discretion of each practitioner.
23.The parents shall each have the opportunity to participate in any further assessment regarding either or both child/ren for ASD or other developmental, medical, psychological, mental health reason reasonably recommended by any medical or allied health professional on whom the children attend, including but not limited to providing any assessing practitioner/s with such information as is reasonably requested and required pursuant to that process, including attending and facilitating the attendance of the child/ren at appointments made pursuant to the assessment/s, but nothing in this order requires the parents to attend at the same time.
24.To give effect to these orders, the parents each have leave to provide a sealed copy of these orders to the children’s treating medical and allied health practitioners.
25.These orders authorise each parent to communicate with the children’s school/s and any outside school hours care provider, about the children’s attendance and progress, and each parent is hereby authorised to request to be provided by these educational facilities with (at the requesting parent’s own expense, if any) copies of documents about the children including but not limited to report cards, assessments and school photograph order forms, and to attend at the children’s school and outside school hours care, for student events to which parents are ordinarily invited.
26.The parties shall each take all reasonable and necessary steps to request and ensure that the other parent is included and is maintained as an emergency contact for the children with the children’s school/s and with any outside school hours care provider.
27.To give effect to these orders, the parents each have leave to provide a sealed copy of these orders to the children’s school/s and to any outside school hours care provider.
28.The Family Law Watchlist order made 22 March 2023 be discharged.
29.In accordance with the terms of order 30 herein, the applicant and, subject to order 38 hereof the respondent, are permitted to travel outside of the Commonwealth of Australia with the children:
(a)once each year for a maximum consecutive period of two (2) weeks, with such travel to take place during a school holiday period; and
(b)once every four (4) years, commencing in 2027, the applicant may travel with the children for a maximum consecutive period of six (6) weeks, for the purpose of the children’s attendance at a cultural event in Country GG.
30.In the event that a parent wishes to travel with BB and/or Y outside of the Commonwealth of Australia, that parent shall:
(a)not less than forty-two (42) days prior to the proposed travel, notify the other parent in writing as to:
(i)the country/ies to which the children will travel and with whom BB and/or Y shall travel; and
(ii)the date upon which BB and/or Y will depart from and return to the Commonwealth of Australia.
(b)Not less than seven (7) days prior to departure provide:
(i)the airline/s and flight details upon which BB and/or Y shall travel;
(ii)a telephone number on which the non-travelling parent may communicate with the children whilst overseas; and
(iii)evidence of travel insurance.
31.The respondent sign all documents, give all consents and do all necessary things requested by the applicant to enable the children to be issued with an Australian passport within seven (7) days of being provided with the necessary documents by the applicant, in default of which, a registrar of this Court be authorised under s 106A to sign all documents and give all consents and do all necessary things to cause the passport to issue.
32.The respondent shall forthwith return the children’s passports, whether current or expired, to the applicant, and the applicant shall retain the children’s passports.
33.The applicant be and is hereby restrained from bringing the children into contact with and from having any communication with Mr N.
34.The Independent Children’s Lawyer has leave to provide a sealed copy of these orders to the Director-General, Department of Child Safety, Seniors and Disability Services Queensland.
35.Otherwise, all outstanding parenting applications are discharged.
THE COURT FURTHER ORDERS THAT:
36.The children shall spend time and communicate with the respondent as agreed between the parents and otherwise as follows:
(a)during the Queensland gazetted school Term periods:
(i)commencing forthwith, and on each alternate weekend thereafter until the commencement of Term 3 of the 2025 Queensland school year, from after school (3.00pm if a non-school day) on Friday until 5.00pm on Saturday;
(ii)then, commencing on Friday, 18 July 2025 and on each alternate weekend thereafter until the commencement of Term 4 of the 2025 Queensland school year, from after school (3.00pm if a non-school day) on Friday until 5.00pm on Sunday;
(iii)then, commencing on Friday, 10 October 2025, and on each alternate weekend thereafter, from after school (3.00pm if a non-school day) on Friday until before school on Monday (9.00am if a non-school day).
(b)commencing with the end of the Term 1, 2026 Queensland school year, and in each gazetted school holiday period thereafter, time on each alternate weekend pursuant to above order 36(a)(iii) will continue and shall be extended to conclude at 5.00pm on Wednesday; and
(c)in 2025 and in each year thereafter, on the weekend during which Father’s Day falls, if not already a ‘time with’ weekend pursuant to these orders, from after school on Friday (3.00pm if a non-school day) until before school on Monday (9.00am if a non-school day).
37.On each of the children’s birthdays, the children shall spend time with the applicant and the respondent, as agreed between the applicant and the respondent, and failing agreement as follows:
(a)where the birthday falls on a weekday:
(i)for a period of not less than four (4) hours from the completion of school until 7.00pm with the respondent, if the children are not already spending time with the respondent on that day;
(ii)for a period of not less than four (4) hours from the completion of school until 7.00pm with the applicant, if the children are not already spending time with the applicant on that day;
(b)where the birthday falls on a weekend:
(i)if the children are not already spending time with the respondent on that day, from 10.00am to 2.00pm with the respondent;
(ii)if the children are not already living with the applicant on that day, from 10.00am to 2.00pm with the applicant.
38.Insofar as it permits the respondent to travel overseas with the children, order 29(a) will commence operation on the last day of Term 1 of the children’s 2026 school year.
AND THE COURT FURTHER ORDERS THAT:
39.Within ninety (90) days of the date of this order (“the payment date”), the respondent pay to the applicant the sum of $911, 500 (“the payment sum”).
40.In the event that the respondent does not pay to the applicant the payment sum by the payment date, the real property situate and known as HH Street, Suburb AA, in the State of Queensland, being the whole of the land more particularly described as Lot … on RP … (“the Suburb AA property”) shall forthwith be offered for sale on the following terms:
(a)the Suburb AA property shall be listed for sale by auction with a real estate agent as agreed between the parties in writing (“the selling agent”), and in the absence of agreement within seven (7) days of the payment date:
(i)the applicant shall provide to the respondent a list of three (3) real estate agents;
(ii)the respondent shall nominate one of the real estate agents from the applicant’s list, within three (3) business days from receipt of the list;
(iii)in the event the respondent fails to nominate a real estate agent within the said timeframe, the applicant shall choose the real estate agent from the list to be appointed for the sale pursuant to this order;
(b)the contract of sale for the Suburb AA property provide for a settlement period of no more than sixty (60) days from the date of the contract unless otherwise agreed in writing by the parties;
(c)the reserve price of the Suburb AA property be an amount as agreed between the parties, and failing agreement, at the price set by the selling agent;
(d)the parties will cooperate in every way with the selling agent in relation to the marketing of the sale of the Suburb AA property, including but not limited to:
(i)making a key available to the selling agent;
(ii)allowing inspection of the Suburb AA property at all reasonable times requested by the selling agent;
(iii)doing or saying nothing to hinder or prevent a sale being effected;
(iv)ensuring that the Suburb AA property, including the grounds, are in a neat and clean condition at the time of inspection by the selling agent and prospective purchasers; and
(v)signing all appropriate documents requested by the selling agent in relation to the listing for sale of the Suburb AA property;
(e)the respondent shall be responsible for payment of the auction expenses payable before the Suburb AA property is auctioned;
(f)the parties shall attend the auction (either in person or electronically) and negotiate with the highest bidder or any other interested party in the event that the reserve price is not reached;
(g)upon an agreement being reached for the sale of the Suburb AA property, the parties shall execute the contract for sale and all other documents necessary to complete the sale of the Suburb AA property including all transfer documentation forthwith upon its submission to them by the selling agent, agent or their solicitor;
(h)the proceeds of sale of the Suburb AA property shall be paid in the following order and priority:
(i)firstly, to pay all costs and commissions of the sale including any auction costs;
(ii)secondly, to discharge the Mortgage No. …, registered with E Bank, secured upon the title to the Suburb AA property;
(iii)thirdly, the balance thereafter to be paid to the parties to give effect to orders 39 and 40 herein.
41.In the event that the Suburb AA property is not sold at the auction pursuant to these orders or within fourteen (14) days after the date of the auction by further negotiation, then the parties will cause a further auction of the Suburb AA property to be held within four (4) months after the date of the first auction and for that purpose the provisions of order 41 herein will apply.
42.The applicant shall do all such acts and sign all documents as are necessary to remove Caveat No … over the Suburb AA property upon the earlier of the following occurring:
(a)contemporaneously with the parties’ fulfilment of orders 39 and 40 herein; or
(b)at such juncture as is necessary to effect the sale of the Suburb AA property pursuant to orders 40 and/or 41 herein.
43.The respondent shall use his best endeavours to have the mortgage registered over the title to the Suburb AA property by Ms Fairburn removed within 30 days of order 40 hereof being engaged.
44.Unless otherwise provided for in these orders, the applicant will retain to the exclusion of the respondent:
(a)any and all bank accounts in her sole name;
(b)all personal belongings in her possession;
(c)all furniture and household contents in her possession;
(d)her superannuation entitlements;
(e)all other assets, and financial resources in her name, possession and/or control;
and the respondent shall relinquish all rights, title and interests he might otherwise have had in the said property.
45.Unless otherwise provided for in these orders, the respondent will retain, to the exclusion of the applicant:
(a)any and all bank accounts in his sole name;
(b)the motor vehicles in his sole name;
(c)the boats and other vessels in his possession;
(d)all personal belongings in his possession;
(e)all furniture and household contents in his possession;
(f)his superannuation entitlements;
(g)all other assets, and financial resources in his name, possession and/or control;
and the applicant shall relinquish all rights, title and interests she might otherwise have had in the said property.
46.Unless otherwise specified in these orders, and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other party to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)each party hereby forgo any claim they may have to any superannuation benefits belonging to or earned by the other;
(c)each party hereby forgo any claim they may have to any employment benefits belonging to or earned by the other including, but not limited to, long-service leave, redundancy payouts, and all other leave entitlements;
(d)all insurance policies are to become the sole property of the owner named thereon;
(e)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
47.Save as otherwise provided herein, the applicant shall forthwith be solely responsible for and meet payment of all liabilities in her sole name, including but not limited to, all borrowings, personal loans, credit card facilities, taxation and duty liabilities and further, the applicant shall indemnify and keep indemnified the respondent from all liabilities howsoever arising.
48.Save as otherwise provided herein, the respondent shall forthwith be solely responsible for and meet payment of all liabilities in his sole name, including but not limited to, all borrowings, personal loans, credit card facilities, taxation and duty liabilities and further, the respondent shall indemnify and keep indemnified the applicant from all liabilities howsoever arising.
49.Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders or any liability in a party’s name at the date of these orders.
50.Save as otherwise provided, any duty payable on any transaction arising from these orders, or any document executed pursuant to these orders, be paid by the party receiving the benefit of such transfer or transaction.
51.Each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of these orders within fourteen (14) days of being requested to do so.
52.In the event either party fails to sign any necessary documents or instruments or to do any acts required or contemplated by these orders to be done, with such failure continuing for fourteen (14) days, then the Registrar of the Federal Circuit and Family Court of Australia shall, pursuant to section 106A of the Family Law Act 1975 (Cth), have the power to execute any documents or instruments in the name of the person who has refused or neglected to sign any necessary document or instrument or to do any act required or contemplated by these orders.
53.For the Registrar to comply with the powers provided for in order 52 above, it shall be sufficient proof that there has been non-compliance that the applicant or the respondent provide to the Registrar an affidavit deposing to non-compliance by the other party.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
This application concerns parenting orders in respect of the parties’ two children BB, now aged nearly 12 years and Y, now aged nearly 8 years. It also concerns the adjustment of the parties’ property now that their marriage has come to an end.
By the conclusion of the trial, the applicant and the independent children’s lawyer had reached agreement about the orders to be made in the parenting cause. The respondent accepted most of those orders but contended for some variations to the way in which the children’s time with him would increase over time.
The parties remain in dispute about their property cause. There is a significant dispute about a particular liability for which the respondent contends and differing contentions about how I should assess the parties’ contribution-based entitlements, the adjustment to that assessment and the form of the orders to be made.
SOME BACKGROUND TO THE PARENTING APPLICATION
The applicant is presently 33 years of age and the respondent is presently 48 years of age. The applicant has no other children. The respondent has one child from a previous relationship, X, who is presently about 17 years of age.
The parties commenced their relationship in May 2009. Whilst the respondent says that the parties commenced living together in July 2010, the applicant swears that they began living together in July 2009. The anxiety around this issue probably has something to do with the parties’ ages at the time – the respondent was nearly 33 years of age and the applicant had just had her eighteenth birthday. I prefer the applicant’s evidence on this point and find that they commenced living together in July 2009. They married in 2012. BB was born in 2013. Y was born in 2017.
The parties separated on a final basis in March 2020 when BB was over 6 years old but not yet 7 and Y was nearly 3 years old.
Upon separation the parties were able to ensure that the children spent regular time with both parents. Whilst the evidence demonstrates that the parties have widely differing views about those arrangements at that time and the circumstances in which they came to be, what is clear is that all time between the children and the respondent ceased in November 2021. By that time, the applicant had commenced these proceedings. She had also commenced a relationship (at about the time of her separation from the respondent) with Mr N. Mr N had two children of his own who were about the same age as BB and Y. He was engaged in litigation about their best interests with their mother.
Mr N was a bad influence upon the applicant, as she has now come to understand. From mid-2021 his children ceased to spend time with their mother and even when supervised contact was ordered, it did not happen, ostensibly because the children (despite their age) refused to go and could not be forced to engage with the relevant contact centre or their mother.
So too, it was with BB and Y. Their time with the respondent ceased in November 2021. The same types of allegations that Mr N raised in his case – the children failing to cope with time with their non-resident parent, drug use and physical violence by that parent towards the children – were raised by the applicant here against the respondent. Despite orders for supervised time, it did not occur, the applicant seemingly being incapable of having the children attend the relevant contact centre or otherwise spend time with the respondent.
In October 2022 another judge of this court ordered that the children and the respondent engage in a therapeutic reunification process with an expert skilled in such work, Ms V. Despite her attempts to advance this process, it was not successful. In February, 2023 Ms V reported that, in her opinion, the applicant did not support the children seeing the respondent and that the respondent and Mr N did not assist the children to understand that they could safely have a relationship with both of their parents. Ms V thought that the applicant might lack capacity to understand the importance of decisions of the court and the impact of non-compliance with orders on the children’s parenting arrangements.
In February 2023 Y was diagnosed with autism spectrum disorder. She commenced receiving multidisciplinary support.
The proceedings between Mr N and his children’s mother finalised in August 2023. As a result, the children returned to their mother’s care and there was a moratorium of time imposed between the children and Mr N for six months. There were a range of other orders made to ensure that the children transitioned back to their mother’s care. An appeal against those orders was unsuccessful. As the independent children’s lawyer points out, those orders led to the cessation of the relationship between Mr N’s children and BB and Y.
By this time, the applicant claimed that she had ceased her relationship with Mr N and had asked him to move out. There is reason to be sceptical about this, however, because in late 2023 Mr N applied for a protection order against the respondent on the basis that he was BB and Y’s step-father, he would have to co-parent with the respondent in the future and he was scared of him.
In August 2023, BB was assessed with autism spectrum disorder. He commenced receiving multidisciplinary support.
In late September 2023 further interim parenting orders were made, this time by consent, prohibiting the applicant bringing the children into contact with Mr N. Supervised time at the JJ Contact Service between the children and the applicant was ordered to commence and if need be, Ms V was to be involved in that process. The respondent was given authority to engage with the children’s therapists and schools. He was urged to do so by the independent children’s lawyer. But the evidence is that he did not take up these opportunities except in the most perfunctory way.
Whilst the supervised time between the children and the respondent occurred as ordered, it did not proceed smoothly. By the time a consultant social worker and family consultant, Ms U, saw the children and the parties for the purposes of a second report pursuant to s 62G(2) of the Family Law Act 1975 (Cth), she thought that the children’s attitude towards the respondent was worse than it was when she first saw the family two years earlier. She thought the children were disrespectful and negative towards the respondent.
The children’s behaviour toward the respondent deteriorated over the course of the supervised visits that occurred at the beginning of 2024, so much so that the supervisor thought that the visits were doing more harm to the children than good. Consequently, the respondent decided to end the visits in late April 2024.
In July 2024 the parties agreed to an order that they commence some reunification counselling with another expert skilled in such work, Ms DD. This appears to have proceeded well. According to Ms DD, the applicant gave the respondent an apology for the distress he was caused by her failure to promote the children’s relationships with him when she was with Mr N and more generally, and he appeared to accept that apology.
Through Ms DD’s involvement, the children began spending each alternate Sunday with the respondent, between 9.00am and 5.00pm. The relationship between the applicant and the respondent improved, according to the respondent largely due to and dating from the absence of Mr N.
Notwithstanding this, and seemingly on the basis of what can only be described as spurious and insightless advice from his lawyers, prior to the next session with Ms DD the respondent emailed Ms DD and said that he refused to continue the therapeutic work unless the applicant gave him a written apology for what he considered were her wrongful allegations of family and domestic violence including rape that she had made in the proceeding. However, the applicant refused to provide the apology because “she believed the truth of her experience”.
Subsequently, at a session in late August 2024 with Ms DD, the respondent continued to raise his dissatisfaction with the applicant’s denial of his fathering role. He also continued to question the reasons for the children’s difficult behaviours. He did not accept the children’s diagnoses of autism. He reiterated his need for the allegations of violence against him to be retracted. He became emotionally heightened, yelled at Ms DD and slammed the door loudly on leaving. Ms DD conducted follow-up phone calls to the parties and during these, the respondent apologised for his behaviour, repeated that he required a written apology from the applicant, in the absence of which he would proceed to Court and “would win” and that there was absolutely nothing wrong with the children aside from having been denied time with him. According to him, they had no developmental issues.
The reunification therapy was terminated because the respondent refused to participate. Nonetheless, the children continued and continue to spend time from 9.00am to 5.00pm each alternate Sunday with the respondent. The applicant and the respondent seem to have progressed in their co-parenting relationship such that this can now occur without third party intervention.
Thus, when the trial commenced before me, the children were living with the applicant and spending alternate Sundays from 9.00am to 5.00pm with the respondent.
THE AGREED ORDERS
The orders agreed between the parties and the independent children’s lawyer are set out in the commencement of these reasons and are expressed as consent orders. Those orders not agreed, and in respect of which I have made a determination are identified separately in the orders set out at the commencement hereof. My reasons for those determinations follow.
The principal area of disagreement concerns the time and the way in which the children will spend time with respondent, including over school holidays. Other matters seemingly in dispute when submissions started, evaporated as counsel tried to make submissions to support their respective client’s positions on those issues, only to find that nothing could usefully be said about them or their clients came to realise their positions were unreasonable when they heard their arguments articulated aloud.
In her second report dated 8 March 2024, Ms U made the following relevant recommendations:
232.The children live with their mother, and spend time with their father, on a gradually increasing basis, up to 4 or 5 nights per fortnight as follows.
i.The first 2 visits are to occur for 3 hours each, on 2 consecutive Saturdays or Sundays, with the children’s time with their father to be supervised by the [JJ] Contact Centre, with a supervisor to attends offsite, at [Mr Jephson’s] home. I recommend that the paternal grandmother be present on the second of these visits for at least some of the time, so that the children can become reacquainted with her. Thereafter, I recommend that the paternal grandmother tries to spend at least some time with the children on each visit, if possible.
ii.Thereafter, an unsupervised basis, over the next 2 consecutive weekends, either Saturday or Sunday, from 9am to 1 pm, with the changeovers to occur at the [JJ] Contact Centre.
iii.Thereafter, over the next 2 consecutive weekends, either Saturday or Sunday, from 9am to 4pm, with the changeovers to occur at the [JJ] Contact Centre.
iv.Thereafter, over the next 2 consecutive weekends, from 9am Saturday to 11 am Sunday, with the changeovers to occur at the [JJ] Contact Centre.
v.Thereafter, for 2 alternate weekends (over 4 weeks), from 9am Saturday until 5pm Sunday, with the changeovers to occur at the [JJ] Contact Centre.
vi.Thereafter, each alternate weekend from 4pm Friday to Monday, with the changeover on Friday to occur at the [JJ] Contact Centre, until the commencement of school on Monday, with the father to deliver the children directly to school.
vii.When a parent is either delivering the children to school or collecting them from school , the other parent is not to be present at or around the school and is not to interfere with the children ‘s transition.
viii.From the commencement of term 3 , 2024, from Thursday 4pm to Monday, with the changeover on Thursday to occur at the [JJ] Contact Centre , until the commencement of school on Monday.
ix.From the commencement of term 1, 2025, from Wednesday 4pm with the changeover to occur at the [JJ] Contact Centre, unless otherwise agreed, until the commencement of school on Monday.
x.From December 2024/January 2025, provision should be made for school holiday time with each parent, commencing with periods of 5 consecutive nights.
The respondent’s proposal is based upon these recommendations.
Prior to her cross-examination, Ms U had the opportunity to consider the parties’ trial material and a report from Ms DD about the work she had done with the family. As a result of that information, Ms U thought that the major issue was now the respondent’s “failure to fully understand the children’s neurodiverse issues and to be willing to wholeheartedly support that in a way that’s going to be consistent and useful for the children”.
Ms U thought that given the children’s experiences over the past few years and their comments to her (particularly those of BB), block time away from the applicant, such as half of the school holidays, was not immediately appropriate. Whether that was something that would suit the children was not something to which Ms U was prepared to commit, saying:
I think it depends on how they go. I mean they’re only going for the day at the moment, so we need to see how they go overnight. I think shorter periods, I think, will be better for the children. I think it may also be better for [Mr Jephson] that he will cope better with the children for shorter periods. I think their – their experience is such that they’re going to probably react to being away from their mother if it’s for too long, and then I think you might start getting some of the behaviours that are challenging, and then I think there’s a bit of a – a bit of uncertainty as to how [Mr Jephson] would be able to deal with challenging behaviours. I think that shorter blocks of time are going to be better, even in the holidays.
Further, Ms U moved away from her recommendation that the children spend up to five nights a fortnight, including time during the week, because of “the children’s needs” and her assessment of the capacity of the respondent to meet those needs. Additionally, Ms U thought that it was important for the respondent to educate himself about the children’s needs and to do what he could to give them a consistent experience across both parties’ households.
Ms U thought that if the respondent was not supportive of a diagnosis or the treatment plans in place for these children, shorter periods of time with the father so as to minimise any disruption to them as a result was preferred.
When asked by counsel for the respondent to explain the reasons for the change in her recommendations, Ms U said:
Because of concerns about how the children’s special needs have developed. And – and that they are going to require support on an ongoing basis for that. And also their – I suppose also their – their views. They’re – they’re very much wanting to be with Mum. It is good that they’re starting to enjoy their time with their father. I am concerned that if that is extended too long, that – the ability for these parties to co-parent, I think, is – is quite limited.
When pressed, Ms U recommended that the children’s time with the respondent move to overnight for “a couple of months” with changeovers happening as the parties had organised between themselves. Ms U suggested that continue for about the length of a school term and then the overnight time should increase from one night to two nights. Thereafter, the time could increase to a maximum of three nights. Ms U thought that appropriate given her assessment of the parties’ capacity to co-parent, the children’s needs and the evidence (specifically about what the respondent told Ms DD) that the respondent did not really accept the children’s diagnoses. She thought that some holiday time “in blocks” would also be appropriate at some point in the future.
When pressed by counsel for the respondent about Ms U’s change in her recommendations she also said:
And I suppose the other issue that troubles me is the actual refocusing on the allegations of abuse, and try – and – which, to me, indicates that [Mr Jephson] does not understand how that domestic – how the domestic violence relationship evolved, and how the mother has been affected by that. And I think his understanding is because she withdrew from – from the domestic violence proceedings, that – that it didn’t happen. And, certainly, her experience of the relationship was very, very real to her. And – and not just to her; it was real. I think he really struggles to accept her point of view there, and her experience as being different to him. I don’t think he thinks that he was abusive to her.
He doesn’t. He denies it?---Yes. And – and clearly, in my opinion, she suffered – she has really suffered from domestic violence. And I think the fact that that is not being acknowledged by him, really concerns me about their ability to go forward, and for her to be able to manage a co-parenting relationship with him, when he doesn’t really get the power imbalance here. And I think that – that’s probably a major reason why I am changing - - -
Okay?--- - - - or pulling back. I think it is great that kids have a relationship with him. But it is unrealistic to think these guys can – can actually – that he can work with her.
When taxed with the proposition that she had transgressed into the area of fact finding by seemingly accepting the applicant’s accusations of domestic violence against the respondent, Ms U clarified her evidence by saying:
Then what would your opinion be then, if the court’s finding was that there is no evidence to support this?---Look, I think the – the experience of the mother, regardless of the finding, is that she – she has felt very – very intimidated and compromised in that relationship, and it has affected the way she has managed things. So I think that I stand by that.
Okay. So you can’t see it any other way. Is that what you’re saying to me?---No, I’m not - - -
Because I asked you what your recommendation would be if he wasn’t - - -?---Yes.
- - - the perpetrator - - -?---Yes.
- - - as he has been described?---I guess I’m – I’m bringing it back to what I think the kids can manage. And I think, from the information I have got now, I think probably three nights a fortnight would be what I think they would manage. And I might be – I could be wrong. And I am – ask – I am saying that’s what my – my opinion is at the moment, from what I - - -
Ultimately, Ms U adhered to her revised view based largely on her assessments of the needs of the children, the capacity of the parents to co-parent effectively and the respondent’s capacity to meet the needs of the children over longer periods of time. Her opinions were not shaken by, at times, vigorous cross-examination. I accept them unreservedly.
The proposals of the independent children’s lawyer, joined in with by the applicant, are based upon and reflect Ms U’s revised recommendations.
I accept Ms U’s assessment of the respondent’s capacity to meet his children’s needs over longer periods of time. The respondent impressed me as a dogmatic person who, unless confronted with no alternative, would rarely make concessions that he considered were against his interest. Consistent with that was his now realisation that it would be a good idea for him to consult a psychologist and to undertake a course nominated by the applicant to assist him to better understand the children’s needs. No explanation for these realisations occurring only at the time of trial were offered.
No viable reason was offered in submissions by counsel for the respondent for the court to disregard these assessments or Ms U’s revised recommendations. The significant matter upon which I was addressed was Ms U’s change of heart said to be based upon her apparent acceptance of the applicant’s allegations of family violence against the respondent. As I have set out above, however, whilst that matter played a part in her overall assessment and recommendations, it was but one aspect of a much broader assessment.
In cross-examination, both the respondent and his mother exhibited a less than satisfactory attitude towards the applicant and her role as the children’s mother. There is a very real risk, in my view, that those views will become known to the children, if they have not already. Even if the children are not directly exposed to those views, I am satisfied that they will be exposed through inadvertence or inattention. They will pick up on the attitudes expressed by the respondent and more particularly his mother. Those attitudes have the potential to undermine the children’s relationships with the applicant, which are plainly important to them.
Underscoring his attitude towards the applicant is the respondent’s dismal record of financial support for the children. I have set this out in more detail later in these reasons.
The evidence of Ms U is that consistency in the care regime of the children across the parties’ households is important. I am satisfied that the respondent does not genuinely accept the children’s diagnoses and therefore their need for various supports. In that respect, I consider that the orders for time proposed by the independent children’s lawyer and the applicant will bring more benefit to these children than those proposed by the respondent. Those orders will promote the opportunity for consistency of care for the children in the applicant’s household which accepts and recognises their needs, safeguards the children’s relationships with the applicant from the negative attitudes of the respondent and his mother as best as can be managed, whilst at the same time providing an opportunity for the children to maintain and develop their relationship with the respondent.
Whilst historically the applicant’s attitude to the children’s relationships with the respondent can best be described as abysmal, I was satisfied by her evidence that she has indeed turned a corner. She has, I am satisfied, ridded herself of the corrosive influence of Mr N. I accept that her statement given in evidence that “I’m trying to fix this mess” is utterly genuine.
Turning then to the particular orders about which there is no agreement:
(a)the children’s time with the respondent should be as proposed in order 8 of the independent children’s lawyer’s proposal. I have made a minor modification to accommodate the fact that Term 2 of the 2025 school year has commenced;
(b)the children’s school holiday time with the respondent should also be as the independent children’s lawyer proposes;
(c)the children should spend time with the respondent on their birthdays (something not seemingly catered for in the independent children’s lawyer’s order – only electronic communication is suggested). I will make order No. 10 of the respondent’s proposal in that regard;
(d)It was not clear after submissions if the changeover point nominated in the independent children’s lawyer’s proposed orders was agreed – the respondent had included a different venue, but in the absence of submissions on the point I have nominated the venue in the independent children’s lawyer’s orders;
(e)the independent children’s lawyer and the applicant agree that there should be an order that neither parent shall use physical discipline or punishment on the children nor permit any other person to do so. The respondent did not address me on this order and so far as I can tell, sought no similar order in his proposal. I take his silence on the issue as acquiescence and I have included that order;
(f)the independent children’s lawyer and the applicant also propose an order whereby the parties can provide a copy of Ms DD’s report filed on 30 September 2024 to any treating therapeutic professional. The respondent seems to accept this order but his proposed orders extend to include the family reports of Ms U. No submissions were made, however, to support this extension and in the absence of argument, I do not consider it appropriate. I have made the order as proposed by the independent children’s lawyer and agreed to by the applicant;
(g)although there was some confusion about it, the overseas travel orders were ultimately agreed save for when the orders for the respondent’s overseas travel with the children would begin. The independent children’s lawyer and the applicant contend that the orders should permit overseas travel by the respondent and the children from when school holiday time between the children and him commences under the order. On that basis, it commences at the end of Term 1 in 2026. The respondent contends that it should commence when the children commence spending time with him for a four-day period (which he proposed in his orders). However, I do not intend to make his orders. Pursuant to the independent children’s lawyer’s orders, the children will commence spending four-day block time with the respondent at the end of Term 1 in 2026. I have provided for the overseas travel provision in respect of the respondent to commence at that time.
PROPERTY ADJUSTMENT
I find that the parties have the following assets, liabilities and financial resources:
Assets: HH Street, Suburb AA (H) $2,600,000.00 C class shares – K1 Pty Ltd (H) $180.00 Motor Vehicle 1 (H) $35,000.00 Boat 1 (H) $40,000.00 Boat 2 (H) $25,000.00 Boat 3 Hull (H) $6,000.00 Boat parts (H) $2,000.00 Motor Vehicle 2 (H) $6,000.00 Various motor vehicles (H) $1,350.00 Wedding rings (H) $2,070.00 Furniture and chattels (H) $12,715.00 Add backs: Legal fees paid from proceeds of Suburb Q (W) $138,208.15 $2,868,523.15 Liabilities: Mortgage over the Suburb AA property (E Bank) (H) ($720,891.00) KK Bank Credit Card (H) ($16,631.00) Commonwealth Bank Credit Card (H) ($13,800.00) LL Finance Credit Card (H) ($8,962.00) Commonwealth Bank Credit card (W) ($8,500.00) ($768,784.00) Superannuation: W’s Super (2 accounts) $28,755.00 $28,755.00 Total non-super. assets: $2,099,739.15 Total assets incl. super. $2,128,494.15
I was told during the course of submissions by counsel for the applicant that the assets identified in the balance sheet in her amended outline of case document and their values were agreed. There was no demur to that from counsel for the respondent. So too, the value and identity of the applicant’s superannuation interests. The respondent has no superannuation. I have, accordingly, acted on that basis.
There is an asset in the applicant’s balance sheet described as “[MM Group Pty Ltd]” with a value described by her as “Unknown” and “Nil” by the respondent. The respondent gives evidence that this is a company of which he is the sole director and shareholder. He says that it traded between October 2017 and June 2018 and that “The company has net assets of $76,707 which is made up of a loan to me in the sum of $76,647 and $60.00 cash at bank”. In the very next paragraph of his affidavit of evidence-in-chief (page 541) the respondent swears that “The [MM Group] no longer trades and therefore will never be able to repay the loan to me.” These two propositions are inconsistent. This is an example of the general unreliability of the respondent’s evidence. It is confused and confusing.
The respondent seems to contend in his affidavit (although not in his final submissions because, save for submissions about the alleged liability to his mother, counsel for the respondent made no submissions about the make-up of the balance sheet) that a tax liability that MM Group Pty Ltd has of about $32,000 should be included on the balance sheet. No reason for that is offered. It is a debt of the company and there is no evidence to suggest that the respondent bears or will bear any personal responsibility for that debt. I have excluded it.
It is uncontentious that the respondent holds 180 C class shares in K1 Pty Ltd. Although the value of these shares is now uncontentious, the respondent’s evidence about his shares is worth recounting. The respondent confirmed in cross-examination that he instructed the single expert valuer of those shares (Ms NN) that the company “is a trustee company which does not complete financials”. The purport of his evidence was that such was always the case. This was plainly wrong. The applicant’s evidence-in-chief included a copy of a 2016 income tax return for the company which clearly indicated that the company was not a trustee company and traded in own right generating gross income in the relevant income tax year of $271,511. When taxed with this document the respondent said that the company no longer traded and when asked about this in cross-examination he said:
Well, it’s a significant trade, isn’t it? Why did it stop trading? --- I don’t know. It’s my mother’s company.
You had no control over it?---No.
This too was wrong. On the face of the income tax return, the respondent is described as the “Public Officer” of the company and his address – HH Street, Suburb AA QLD – is described as the postal address for the company. It seems beyond curious that the respondent held shares in the company, was the public officer of the company and his address was its postal address but yet he knew so little about the company and its affairs. I am satisfied that the respondent was being deliberately evasive about this issue.
The balance sheet to which I was directed in the applicant’s amended outline of case contains a number of liabilities. Before dealing with the most significant of these liabilities, I record that neither party contended that the credit card liabilities should be disregarded or that the amounts recorded for them were not accurate. I have acted on the basis that there is no dispute about these matters.
The applicant seeks to include as liabilities in the balance sheet two loans she says she has received from her father, Mr OO. The sum total of her evidence about these liabilities appears at paragraph 439 of her affidavit of evidence-in-chief. There, she says that on 22 September 2023 she entered into a deed of loan agreement with her father. She swears that the purpose of the loan (she only refers to one) “is to provide financial assistance to me in meeting my legal costs, rent, and living expenses, pending the resolution or determination of these proceedings.” She claims that she owes her father $243,643.12 although gives no particulars as to how that amount has accrued. She gives no evidence about how much of this has been used for legal fees and how much has been used for other expenses. I have no means of determining that myself. I have excluded this liability from the balance sheet (and the second liability to Mr OO, about which there is no evidence) but will give it consideration when considering the matters raised by s 79(4)(g) of the Act.
The significant issue between the parties concerns funds advanced to the respondent by his parents in 2005 and 2008. His evidence about these advances is as follows:
(a)He purchased a property at Suburb PP in 2003 which he later sold in 2005. According to his evidence he realised a gross profit of $182,500. He does not say how he funded this purchase although he refers to a mortgage he granted to QQ Limited, so that indicates commercial borrowings to fund the purchase;
(b)He also purchased a property at Suburb RR in 2003 which he later sold in early 2007. According to his evidence there was a gross profit of $180,000. Again, he does not say how he funded this purchase although he refers to a mortgage he granted to QQ Limited. He says that after repaying the mortgage and costs of sale, he utilised the net proceeds of sale to purchase a vehicle and to fund his living expenses. He does not say what the net proceeds of sale were, but says that he purchased a particular motor vehicle. Inconsistently, he told the applicant’s counsel in cross-examination that he used this money to buy a different motor vehicle for $160,000;
(c)He purchased a property at Suburb AA in July 2005 for $500,000. This is the property at item 1 in the above balance sheet. He says that his parents paid a total of $501,388.25 (an initial deposit of $2,000 on 6 July 2005, the balance deposit of $18,000 on 18 July 2005 and the balance purchase price of $481,388.25 on 19 August 2005) to permit his purchase of this property;
(d)In March 2008, the respondent says that his parents advanced him $122,550 to assist with the costs of redevelopment of the Suburb AA property. However, having regard to the documents said to corroborate this, it seems that the payment was made by K Pty Ltd. In any event, I accept that the respondent was the beneficiary of these funds from the company and that his parents or one of them, caused the company to make the payment;
(e)Of the total of $623,938.25 (he says $623,938.47 but his figures do not add to that amount), he says he has repaid only $20,000 although he gives no particulars of the repayment or the circumstances in which it was made. Neither does his mother (who says that the repayment was $22,000); and
(f)He entered into a Deed of Loan and Guarantee with his parents on 17 March 2009 “to formalise the loan and document the advances”. I will deal more fulsomely with this document later in these reasons.
The respondent called evidence from his mother, Ms Fairburn, about these advances and the loan agreement. Her evidence is generally consistent with that of the respondent’s evidence. However, she asserts that she and her late husband paid $122,500 to the builder undertaking work on the Suburb AA property “from our personal bank account”. She refers to a cheque stub annexed to her affidavit to corroborate this evidence. She also annexes a bank statement from K Pty Ltd (the company’s bank account) showing a cheque withdrawal of $122,500 on 18 March 2008 via cheque number …32. The cheque stub is for cheque number …32. I think Ms Fairburn is mistaken when she says that she and her husband paid these funds from their “personal bank account”. They clearly came from the business account. There is no evidence that they were funds (or those of her husband’s) to which either he or she was entitled. At best, the evidence established that it was an advance from the company.
Ms Fairburn swears that in March 2009 she engaged a lawyer to prepare a loan agreement to document the loans to the respondent. That resulted in she and her husband on the one hand and the respondent on the other entering into a document entitled “Deed of Loan and Guarantee” dated 17 March 2009.
There are some oddities about this document and its terms.
First, the parties are referred to as companies and are expressed as follows:
BETWEEN:The Borrower being the company whose name and address is set out in Part 1 of the Schedule hereto (“Borrower”).
AND:The Lender being the company whose name and address is set out in Part 2 of the Schedule hereto (“Lender”).
Despite this, and despite a reference in clause 3(c) of the deed to the loan becoming due and payable upon the parties or any of them, “being unable or deemed to be unable to pay its debts within the meaning of the Corporations Law or ceases to carry on its business or the major part thereof”, the parties named in the schedule are the respondent, Mr L and Ms Fairburn. K Pty Ltd is not a party to the loan agreement and neither Mr L nor Ms Fairburn purport to execute the agreement for the company.
Second, the text of the first recital in the deed suggests an agreement in the past to advance money in the future: “The Lender has agreed at the request of the Borrower to advance to the Borrower the sum set out in Part 3 of the Schedule hereto”. Clearly both the agreement to advance the funds and their actual advancement had taken place long before the deed was executed. Neither does the deed acknowledge or recite that there were in fact four separate advances. The text of the deed is consistent with only one advance.
Third, the second recital contemplates that a mortgage to secure the advance has been or “is about to” be executed to secure the advance. It is uncontroversial that whilst the respondent granted a mortgage over the Suburb AA property to his mother, it was not registered on the relevant title until March 2021. The mortgage document is not in evidence. Nor are the terms of the mortgage. Its execution date is unknown, but neither the respondent nor his mother gave evidence that the mortgage was executed when the deed was executed but not lodged for registration until 2021.
Fourth, the loan amount is said to be $600,000, but on Ms Fairburn’s documentary evidence she and her late husband only advanced a little over $500,000, with $122,5000 coming from the company. Whilst it is possible that the funds paid by the company were funds to which Ms Fairburn and her husband were entitled to, that was information peculiarly within her knowledge and so to be expected within her evidence. The lack of evidence about that tends to suggest that there is no evidence to bear out such a suggestion. The company was not a party to the loan agreement.
Fifth, the deed provides for the repayment of the loan “on or before twenty years from the date of the advance”. But, on the respondent’s case there were four separate advances and so it is not clear from which point the twenty years commences to run. In cross-examination he suggested that there were only two advances and time ran separately for each advance, but that is clearly wrong. No evidence was given and no submissions were made to make out the respondent’s argument that the time commenced to run from the first advance (in 2005), rather than the last advance (in 2008). At best all there was, was an assertion from Ms Fairburn under cross-examination that time commenced to run from 19 August 2005.
More than this, in paragraph 483 of his affidavit of evidence-in-chief the respondent swears that he did not use any of the net proceeds of sale from the property he sold in January 2007 to discharge any of this loan to his mother because the “debt to [Ms Fairburn] was not due and payable until 2030”. This evidence assumes that there was an agreement between the parties prior to the execution of the deed about when the funds were to be repaid. It also assumes that time runs from the last payment in 2008 (at least that gets the repayment date closer to 2030 than the first three payments made in July 2005). But the 2008 advance had not been made when the respondent received the proceeds of sale from his earlier properties, the last of which was sold in January 2007. At that stage he had only received the advances for the Suburb AA purchase in July 2005. Repayment in 20 years would put repayment in July 2025, not 2030. When asked about this paragraph in cross-examination he confirmed the 2030 repayment date related to “the second part”, but that cannot be so given that the “second part” (which is plainly a reference to the company’s advance in 2008) was then yet to be made.
To be fair, this evidence needs to be contrasted with the respondent’s evidence at paragraph 496 of his affidavit where he suggests that repayment is due on 6 July 2025 “being 20 years from the date of the first advance”. How paragraph 483 and paragraph 496 of the respondent’s evidence could be reconciled was not explained. It is also inconsistent with his mother’s evidence given in cross-examination that the repayment date is 19 August 2025.
The respondent’s evidence on this point is unsatisfactory and unhelpful. It does not assist to explain why the terms of the deed do not reflect the number and timing of the advances with which it purports to deal.
Sixth, the term as to interest is as follows:
RATE OF INTEREST & REPAYMENT
(i) For the period from the date of advance to 20 years after the date of the advance, interest only at the greater of 8.99% per annum, or the Westpac standard variable interest rate from time to time .
Both the respondent and his mother swear in their respective affidavits of evidence-in-chief that the amount owing by him to her for interest is $1,759,579 and the total owing is $2,359,579.17. These are precise sums.
The respondent annexed to his affidavit of evidence-in-chief (annexure MJ35) documents described as “Home Loan Statements”. The provenance of those statements is not explained in his evidence. There is no evidence of when or how they were produced. The first statement commences from 17 March 2009, namely the date the deed of loan and guarantee was signed. The interest calculations do not extend back beyond then.
I asked Ms Fairburn about the interest she said she was owed and how it was calculated. She said that she instructed an accountant Ms SS to perform the relevant interest calculations. That evidence indicated that there was no running account (such as that set out in the respondent’s annexures) of the accrual of interest. She said that she instructed the accountant to calculate interest from the date the loans were made. When asked, she told me that interest was compounding interests but was initially “not sure” about the interest rests. When I reminded Ms Fairburn that she had just told me that she instructed the accountant to prepare the interest calculations and that she must have given instructions about the interest rate and rests, she said it was either monthly or yearly, before settling for “12 monthly”. She had not seen the schedule of principal and interest annexed to her son’s affidavit.
The loan schedules in the respondent’s evidence commence from the date of the loan agreement, not the date of the advances. The interest appears to be calculated on monthly rests not yearly rests. Yet, despite this and the evidence from Ms Fairburn about the instructions she provided the accountant, the amount for interest and the principal and interest total are exactly the same. I accept the evidence of neither party on this issue.
More generally, the parties’ evidence about these advances is curious. Apart from a bare assertion that the advances were loans when they were made, neither the respondent nor his mother give any evidence as to the discussions that led to the formation of the agreement about the loans. There is no evidence that they discussed and agreed upon a time for repayment or the terms as to interest. There is no evidence about how the advances came about – at whose request or offer, for example. And that, it seems, is because there were no such discussions.
Ms Fairburn gave evidence that she went to see a lawyer and it was his idea to get the deed prepared. She does not say when, but a fair inference is that it was shortly before its execution. Her lawyer drew the document. The effect of Ms Fairburn’s evidence in cross-examination was that before she saw her lawyer there was no agreement with the respondent about repayment of the advances or any interests to be charged. It was when she was speaking with her lawyer “we determined it would be a 20-year loan with no payments on a monthly basis”. It seems from her evidence that the term as to interest was also something that she discussed and decided with her lawyer. The lawyer was not called to give evidence. There is no evidence, either from the respondent or anyone else, that there was any discussion about the terms of the deed or specifically the terms as to repayment and interest with the respondent.
According to both the respondent and his mother, the purpose of the deed was to ‘formalise the loan” and to “document” the advances. But why was that necessary at all, there being no dispute between them about the advances apparently? Significantly, they do not depose that the purpose of the deed was to vary the oral loan agreement or agreements that they had reached when the funds were advanced because they wished to change or add terms about repayment or interest. That is significant because there is no suggestion in the evidence that the respondent and his mother and father had agreed on any repayment terms or interest terms prior to the deed’s execution. The work, then, of the deed was to do more than simply document the advances and the terms of them. It worked to vary the repayment terms (the advances, if truly loans, until then being repayable on demand because there was no other stipulation as to repayment) and to impose a term as to interest. That is consistent with the statements of the loan (annexure MJ33 to the respondent’s affidavit of evidence-in-chief) commencing on 17 March 2009. But apart from the execution of the deed, there is no evidence of any assent by the respondent to those terms. There is no evidence of any discussion or agreement about the repayment term or the interest. These things seem to have been the suggestion of Ms Fairburn’s lawyer and given no thought by the respondent.
The delay in “documenting” the advances is curious. The bulk of the advances had been made about four years earlier and involved significant sums of money. When the respondent was taxed with this in cross-examination, he gave evidence that suggested there was no such delay because the last payment was made at the end of 2008 and the deed was entered into in early 2009. But that too, is wrong. The last payment (the cheque from K Pty Ltd) was made on 18 March 2008 and the deed was not executed until almost exactly one year later on 17 March 2009. I formed the impression that the respondent’s answers to many of the questions asked of him in cross-examination were simply things that occurred to him on the spot, rather than being his recollection of the facts, acts, matters or things about which he was being asked.
When asked in cross-examination, the respondent said that he thought the deed was necessary to “protect his parents”. When asked what it was from which they needed protection, he was unable to say and suggested that he had used the wrong word – he then preferred the word “formalise”.
Ms Fairburn swears that on or about 24 March 202l, “in accordance with the terms of the Deed, I caused the Deed to be registered against the title of the [Suburb AA] property to protect my interest as a result of [Mr Jephson] and [Ms Bonnel’s] separation”. However, that is not what occurred. What was registered was a mortgage over the title to the Suburb AA property. Neither the instrument of mortgage nor the terms of it are in evidence. There is no evidence as to its execution date. Why she would wait so long to register the mortgage is not answered by her evidence.
However, despite the lack of evidence from the respondent and his mother about the need for the deed and the mortgage, the applicant’s evidence provides some answers. She says that prior to her relationship with the respondent he was in a relationship with Ms TT. At one point he and Ms TT were engaged to be married. They have a child together. They moved into the Suburb AA property in approximately February 2009, but subsequently separated in early March 2009 when Ms TT and X moved out of the Suburb AA property. The respondent said in cross-examination that he had separated from Ms TT a couple of months before the deed was executed, but according to the evidence of Ms TT in her affidavit of evidence-in-chief filed on 16 September 2024 (initially read by the respondent but later not relied upon), she separated from the respondent in early March 2009. The applicant also says that the respondent told her he separated from Ms TT in early March 2009. I prefer the applicant’s evidence about this, it being consistent with the evidence of Ms TT. The deed in question was executed on 17 March 2009 seemingly on a matter of days after the respondent’s separation from Ms TT.
The applicant says that the respondent “has admitted to me during discussions that the “loan” was only taken out to protect him from any financial claim that [Ms TT] may have made against him following their separation”. She says that he also told her that he had destroyed this loan agreement and told her that when they were married “it wasn’t valid anyway”. Further, she says that “In conversation with me, [Mr Jephson] has referred to the Loan as a “set up” involving [Ms Fairburn]”. The respondent has set out in his affidavit of evidence-in-chief a transcript of these conversations. He does not cavil with the accuracy of the applicant’s evidence about these matters.
I am satisfied that the respondent’s parents advanced him $501,388.25 for the purchase of the Suburb AA property, expenses and stamp duty. I am satisfied that the company K Pty Ltd advanced $122,500. I am satisfied that the respondent has paid his mother and late father $20,000, although I am not satisfied that this is properly characterised as a loan repayment. The circumstances in which it was made are not in evidence.
I am not satisfied on the evidence that the advances were loans. In cases of intra-family transactions like this, there is a presumption that the parties do not intend to create legal relationships or binding obligations. The presumption is explained in in Teen Ranch Pty Ltd v Brown (1995) 87 IR 308 at 310 and Darmanin v Cowan [2010] NSWSC 1118 at [206] – [208] and adopted by this court in Pearce & Pearce (No 3) [2022] FedCFamC1F 418 at [154] – [156]). The presumption is rebuttable, but the evidence of the respondent and his mother, far from rebutting the presumption in this case, only serves to make it good.
Moreover, I am not satisfied that the advances the subject of the deed of loan and guarantee are to be repaid in accordance with that document. I am not satisfied that the advances attract interest as set out in the deed. Having regard to:
(a)the timing of the creation and execution of the deed compared to his separation from Ms TT;
(b)the lack of evidence from the respondent about any discussion or negotiations leading to the deed;
(c)the lack of evidence from Ms Fairburn about any discussion or negotiations leading to the deed;
(d)Ms Fairburn’s evidence about how the repayment term and the terms as to interest came about;
(e)the lack of any reliable evidence about the calculation of interest and what appears to be no serious attempt to keep an account of the interest from time to time;
(f)the commencement date for the interest calculations relied upon by the respondent; and
(g)the lack of reliability of the respondent’s evidence about these matters generally that I have recorded earlier in these reasons.
I am satisfied that the deed of loan and guarantee executed on 17 March 2009 is a mere facade behind which the respondent attempts to hide some of his assets, no doubt at the urging of his mother, by creating the impression that they are hopelessly encumbered to his mother. I find that the deed is not directed, in truth, to creating a legally binding relationship between the parties to the deed. It is, as the respondent asserts, a mechanism by which the money advanced by his parents might be protected by presenting a façade of legality, but nothing more. I am not satisfied that by the deed, the respondent and his mother intended to create a legally binding arrangement between them. The existence of the deed does not, in my view rebut the presumption to which I have referred above.
Even if my view that the advances were not loans is erroneous, I have concluded that there is no prospect that they will ever be repaid because Ms Fairburn will not require them to be repaid. I have come to that conclusion for the following reasons.
First, if the advances are properly viewed as loans, they are repayable upon demand (there being no agreement as to repayment). No demands have been made for repayment. A demand for repayment is unlikely to be made after a property adjustment order is made because that would deplete the respondent’s resources even more. Such conduct is inconsistent with Ms Fairburn’s constant and generous financial support of her son.
Second, when the advances were made, there was no agreement about repayment or the accrual of interest on the advances. This is inconsistent with the notion that they were loans that would be repaid.
Third, questions of repayment and the accrual of interest only became of interest when the respondent separated from Ms TT. The evidence is bereft of suggestions to the contrary. There is no explanation in the respondent’s evidence or that of his mother as to why the timing of the creation and execution of the deed of loan and guarantee was coincidental to the respondent’s separation from Ms TT. To the extent that the Ms Fairburn sought to suggest in her evidence in cross-examination that the creation of the deed of loan and guarantee came about because she and her husband were going interstate and wanted to have something in place “if something happened” I reject her testimony as a fabrication. I have set out already the applicant’s evidence about the respondent’s statements to her about this.
Fourth, the focus of the respondent and his mother upon financial matters is such that I consider that they would say or do anything to prevent the applicant from receiving any share of the respondent’s property. In that regard, the respondent’s failure to provide child support for the applicant is remarkable. It was not until the last day of the trial that the respondent paid $4,000 towards his child support arrears, which at that point stood at about $75,000. Whilst it is true that he had paid some of the children’s school fees and day-care fees, that had last occurred in 2022. He said that he had also paid about $18,000 in 2020 or 2021, but under cross-examination from counsel for the independent children’s lawyer it turned out that it had been paid by his mother in any event. The device which is the deed of loan and guarantee is also evidence of the desire of the respondent and his mother that the applicant receive nothing following the failure of the parties’ relationship.
I reject Ms Fairburn’s self-serving that she intends to enforce “the loan if the monies including interest are not payable to me by the due date”.
The liability contended for by the respondent arising from the advances made to him by his parents and K Pty Ltd is rejected.
Before leaving this matter, I record that the respondent argued that the question of the loan and its legitimacy had been settled by another judge of this court in Bonnel & Jephson [2022] FedCFamC1F 812. I reject that submission. That judgment dealt with an application by Ms Fairburn, K Pty Ltd and K1 Pty Ltd to be removed from these proceedings. She succeeded on that application. Relevant to the present issue, the only relief sought against Ms Fairburn at that stage, in her personal capacity, was an order setting aside the mortgage she had registered over the title to the Suburb AA property. No relief was sought in respect of the advances or the deed of loan and guarantee. Given the way in which the application proceeded, the outcome and the orders made by the court were inevitable, but there was no determination of the applicant’s claims about the advances and the loan on the merits.
I turn to other matters.
The respondent contends that I should add-back certain amounts to the balance sheet to the credit of the applicant. I will deal with each item in turn.
The first item is the sum of $50,000 received by the applicant from the sale of a motor vehicle that took place in about December 2020. The vehicle realised net sale proceeds of $50,000. By an order made on 23 November 2021, the funds were released to her, the respondent says so that she could get legal representation. However, the order says:
1.The Wife be at liberty to access funds held by her and flowing from the sale of [Motor Vehicle 3], such use to be categorised at final hearing or by agreement between the parties.
According to her unchallenged evidence, the senior judicial registrar said in her reasons for making that order:
58Whilst the wife is not required to diminish capital in her own support, it is common ground that she holds, at the current time, a sum of $50,000 on trust for she and the husband (such retention insisted upon by the husband). These are monies flowing from the sale of a vehicle that she previously utilised. There is no formal order in relation to funds being held, and the wife’s evidence is that she agreed to hold the funds after being threatened with injunctive action being taken by the husband.
…
75I intend to order that she be at liberty to access the funds held and flowing from the sale of [Motor Vehicle 3] and in order to do so, on the basis that the utilisation of the relevant funds be the subject of categorisation by further agreement or final order’.
The applicant swears that she used the funds to pay her lawyers and her living expenses, although she omits to descend into particulars about the division of the funds between those uses.
The respondent contends that this amount should be added back, but his submissions on the point were perfunctory and did not address the proper categorisation of the funds in the applicant’s hands as envisaged by the senior judicial registrar’s order. There is no material, nor submission before me that would assist me to make that determination. If the receipt of those funds by the applicant was as spousal maintenance, no occasion to add them back arises. If the funds are properly viewed as a partial property adjustment order, an add-back may be appropriate. In the circumstances I am not satisfied that it is appropriate to add-back those funds and I decline to do so.
The next contentious add-back concerns the proceeds of the sale of a property described in the evidence as the Suburb Q property. Some context is necessary.
The applicant purchased this property in June 2009, soon after the parties commenced their relationship. The purchase price was $295,000. She sold it in November 2022 for $400,000. Initially in the proceeding, the respondent contended that the applicant sold this property at an undervalue, but he resiled from that argument during his cross-examination. He produced no evidence to establish that the value of the property when it was sold was any different to its sale price.
After payment of expenses of sale, discharge of a registered encumbrance and the payment of legal fees ($25,650.90 which, no doubt included fees for these proceedings) a balance of $157,016.35 remained. A sum of $50,000 of that was retained in the applicant’s solicitor’s trust account on account of anticipated fees and disbursements and she received the balance of $127,016.35. The applicant says that she disbursed the balance as follows:
(a)$28,590.87 to her father to reimburse funds he had loaned her to pay legal fees;
(b)$33,966.38 to a person called Mr P, also in reimbursement of loans used for legal fees;
(c)$17,750 to Mr T in payment of 71 weeks of unpaid rent;
(d)$8,589.00 in payment of an overdue Commonwealth Bank MasterCard;
(e)$9,743.55 in payment of the therapy, diagnoses and children’s reports;
(f)$14,000 in weekly rent payments to the applicant’s father ($700 over 20 weeks from the date of settlement of the Suburb Q property until January 2023);
(g)$2,447.50 to Scope Consultancy pursuant to court order;
(h)approximately $12,000 in payment of day-to-day expenses, such as rent, groceries, utilities, medical expenses, clothing and items for the children, and Christmas presents for the children.
Of these amounts, the funds expended on legal fees should be added-back, but the other expenditure is best considered as reasonable living expenses associated with the applicant and the parties’ children. I have added-back a total of $138,208.15 ($25,650.90 + $50,000 (which I have assumed has been spent) + $28,590.87 + $33,966.38).
Finally, in the balance sheet for which he contends in both his outline of case document and his affidavit of evidence-in-chief, the respondent seeks that the sum of $10,000 be added-back for what is described as “Sale of [goods] Stock”. No evidence and no submissions were directed to this item. I am not persuaded it is an appropriate add-back.
It will be apparent from the balance sheet as I have found it to be, that all but about $150,000 of the parties’ wealth is in the respondent’s hands or under his control. In those circumstances, I consider that it is plainly just and equitable to make a property adjustment order.
SECTIONS 79(4)(A), (B) AND (C)
At the commencement of the relationship, the applicant was working, although in just what capacity is not clear from her evidence. There is a suggestion in a submission made on her behalf to the Child Support Agency that she worked as a finance professional. The respondent says that she was employed as a service worker and a finance professional for her father’s business. The respondent swears that he was working on a full-time basis as a tradesperson in his parents’ company, K Pty Ltd. He contends that he was so employed for the whole of the parties’ relationship and continues to be so employed.
When the parties commenced cohabitation, the applicant owned a property located at UU Street, Suburb Q in which she had about $35,000 equity. I have already mentioned this property in connection with the balance sheet. The respondent says that her equity was as low as $5,000 but I prefer the applicant’s evidence about this. In any event the evidence shows the price for which it sold in 2022.
I also accept the applicant’s evidence that she had approximately $45,000 in savings. She had a car which, according to the respondent was worth about $20,000 and $10,000 in superannuation. I find that she had assets that totalled $110,000 in value.
At the commencement of the relationship, the respondent says that he had the following assets and liabilities:
(a)HH Street, Suburb AA $1,600,000
(b)Motor Vehicle 4 $250,000
(c)Motor Vehicle 5 $108,000
(d)Mortgage secured over the Suburb AA property ($1,000,000)
(e)Motor Vehicle 4 finance ($160,000)
(f)Motor Vehicle 5 finance ($90,000)
Total $708,000
Whilst I accept the list of assets and I accept that the respondent received advances from his parents and their company as I have set out above, I do not accept that there was a “Loan to [Ms Fairburn]” as he alleges.
The respondent set about redeveloping the Suburb AA property after he purchased it. To that end, in about 2007 he borrowed $1,000,000 from E Bank to fund the renovations. This proved to be too little and the subsequent advance from K Pty Ltd in March 2008 made up the shortfall.
Since the raising of the finance to redevelop the Suburb AA property, the respondent’s parents and then following his father’s passing, his mother has made all of the repayments (of principal and interest) due to E Bank. He describes in his evidence-in-chief how these payments are made by his mother transferring him the money to make the repayment and he then making the relevant payment. He points out that sometimes she causes the payments to be made by K Pty Ltd and these payments are not income in his hands, but are “loans”. He annexes to his affidavit of evidence-in-chief what he describes as his “loan account ledger”. The ledger commences with an almost nil balance and over successive months the balance rises to $151,974.15 as at 1 June 2022. Since then, his mother has paid all repayments directly from her account.
The descriptors for the entries in the company’s ledger suggest that there are many different payments made that are recorded against this ledger. For example, all of the payments recorded after 22 December 2020 are recorded as being made to “CSA” which I infer is a reference to the Child Support Agency. Many earlier payments are recorded as payments to “[X]” – a reference to the respondent’s child with Ms TT.
Whatever the case, I accept that the respondent has not made any of the repayments to E Bank as he alleges and that they have all been made by his mother or she has caused the company to make them. Despite the respondent’s claim that the money paid by the company is a loan, he seeks that no commensurate liability be included in the balance sheet. That tends to underscore, I think, that his assertion of a loan is a fiction. Moreover, his mother does not claim that the repayments she has made are loans to her son. Nor does she claim an ownership interest in the Suburb AA property. That leaves the only conclusion that the repayments made by her and the company are gifts to the respondent. They are all, nonetheless, contributions on his side of the ledger.
The applicant’s Suburb Q property was always tenanted throughout the parties’ relationship. The rent was paid to the applicant who used it to defray the mortgage secured upon it.
Between 2009 and 2010 she says that she contributed approximately $100,000 from her personal income towards improvements to the respondent’s property located at HH Street, Suburb AA from her work as a service worker. She gives no particulars about this, but she was not challenged on it, so I accept it. In December 2010, she also contributed $31,326 to the construction of the swimming pool at this property. This too seems uncontroversial.
Intermittently from 2009 until 2013, and then in 2019 – 2020, the applicant worked for her father in an office administration role. She used the income she earned from this role to purchase groceries and pay the children’s general expenses. She also maintained a business selling goods and as a service worker. According to her case, the applicant’s average annual income throughout the parties’ marriage was approximately $8,000.
In his evidence, the respondent said that initially he was earning about $45,000 - $50,000 per year in his employment and that increased over the years to $80,000 by the time of separation. However, he was also the beneficiary of the largesse of his mother and her company. She paid his mortgage payments to E Bank.
I accept the applicant’s evidence that throughout the parties’ relationship, the applicant undertook all of the household duties, such as cooking, cleaning, washing, laundry and the like. She also assisted the respondent with tasks outside of the home such as gardening and general house maintenance including high-pressure water cleaning, painting and concreting.
It is uncontroversial that the applicant was the primary carer for the parties’ children and following the birth of their children she principally fulfilled a role as parent and homemaker while the respondent was a full-time income-earner. The children each have additional needs which require ongoing assistance. She has been responsible for taking the children to almost all of their medical and educational appointments. The respondent acknowledges the applicant made a greater contribution as home maker and parent.
Unhelpfully, neither in his outline of case document or in his counsel’s submissions did the respondent deign to suggest a contribution-based assessment for the court’s assistance. His case was solely focussed upon the proposition that because there was, on his case, a “negative asset pool” there could, or perhaps should, not be any property adjustment order. As a matter of principal such an approach is fundamentally flawed.
The applicant submits that I should find the parties’ contributions as equal. Just how that could be so, was not explained. The respondent has clearly made the lion’s share of financial contributions to the property now available for division, either himself or through contributions for which he can take credit. His initial contributions were nearly six and half times greater than the applicant’s contributions. So too, his financial contributions during the course of the relationship. The applicant made her own financial contributions but in terms of the property now available for distribution between the parties, they are not easily recognisable. However, her non-financial contributions should not be undervalued.
Having regard to these matters, I have concluded that I should assess the parties’ contribution-based entitlement as 65% to the respondent and 35% to the applicant. That means, on the net assets as I have found them to be, the applicant is entitled to $744,972.95 and the respondent the balance of $1,383,521.20.
SECTION 79(4)(E) AND 79(4)(G)
Neither party suggest that their age or the state of their health is relevant to my considerations.
The applicant presently works at a local University. She has done so for about eight years. She is paid on a sessional basis. She has skills in financial work that she has used in the past. There is no evidence about her earnings. The applicant gave no evidence of her income or expenses by way of a financial statement or swearing to those matters in her affidavit of evidence-in-chief. The respondent accepted in cross-examination, however, that he earned “significantly more” than the applicant.
The applicant has and will continue to have the majority care of the parties’ children, aged 12 and nearly 8. They have both been diagnosed with autism spectrum disorder and each have multidisciplinary supports for which the applicant is responsible to co-ordinate. There is no evidence about the cost of these supports.
The respondent too, did not rely upon any up-to-date financial statement or other sworn testimony as to his income or expenses. It seems, however, that his income is fixed at $80,000 gross per annum. When asked if he had completed and lodged his taxation returns since 2021, the respondent said that he had completed and lodged them “last Thursday”. He then said, when asked if he had given copies to his solicitor, that he was “not sure if they have actually filed it with the tax department yet”. He accepted that those returns, in draft or otherwise, had not been disclosed to the applicant. Counsel for the applicant called for the production of the returns referred to by the respondent, but the call was never answered. I conclude from this that the documents did not exist and the respondent’s evidence about their existence was deliberately false. The only other alternative is that the returns had been prepared but disclosed matters that the respondent did not want the applicant or the court to know. Either way, this evidence detracted significantly for the respondent’s already badly tarnished credit.
Some of the respondent’s expenses are met by his mother. She meets his mortgage repayments (principal and interest) which he swore amounted to $96,000 per annum. He has other benefits from his employment, including a company car and his telephone accounts are paid by the company.
The applicant has access to a financial resource represented by her ability to borrow money from her father. Her evidence is that he is not well off and has had to return to full-time work and sell some of his assets to assist her to fund this litigation. None of her evidence about this was challenged. I accept that she has the debts I have earlier referred to owing to her father arising from her legal costs.
The respondent also has access to a financial resource, although it is far greater in my view, than that to which the applicant has access. The respondent’s mother has demonstrated herself to be devoted to the respondent and his financial welfare. She has made considerable contributions to his financial welfare in the ways I have already described. On the respondent’s evidence she has gifted him at least $1.4m through her loan repayments. There is nothing to suggest that this level of financial support will not continue.
Throughout both his written and oral testimony the respondent asserted that he was an employee of his parent’s company, K Pty Ltd. The references are numerous. He was explicitly asked about this in cross-examination:
You’re currently an employee with your mother’s company?---Yes.
You’ve always been in that employment, haven’t you?---Yes. I have.
So too, in the evidence of Ms Fairburn. She was at pains to point out in her written evidence that she was able to make appropriate accommodations for the respondent concerning his working hours and duties should he secure an order that the children live with him. It will be noticed from the balance sheet set out above, that the respondent has no superannuation. When taxed with that curiosity, given the employment status of her son, Ms Fairburn immediately responded that he was a subcontractor and was not entitled to superannuation. Whilst this is not, of course an employment case, it is relevant to test the evidence of the parties. Ms Fairburn’s evidence does not withstand scrutiny on this point. The level of control she purports to exert over the arrangement of her son’s employment is inconsistent with him being a subcontractor. Further, the respondent’s evidence within his financial statement is completely at odds with the proposition that he is a subcontractor.
I am satisfied that such is her support for her son that she will give false evidence for him. That is the only conclusion I can come to when I compare her sworn testimony in her affidavit of evidence-in-chief about his employment:
25. [Mr Jephson] is currently employed as a [tradesperson] with [K Pty Ltd]. [Mr Jephson] currently works on a full-time basis. [Mr Jephson’s] home is located 10 kilometres from my office. Depending on traffic. [Mr Jephson] is approximately a 10-minute drive from the office and workshop. The [K Pty Ltd] office is located a 15 minutes’ drive from the children’s school.
26. [Mr Jephson] and I have discussed his work commitments and how this will be managed if [Mr Jephson] is successful in his application for the children to live primarily with him. [Mr Jephson] usually commences work at 7:00am to load the vehicles for the day’ [jobs]. Currently, [Mr Jephson] works as a [tradesperson] and generally is away from the office for most of the day. [Mr Jephson] generally finishes work at 3:00pm.
27. If the children were to live with [Mr Jephson], I intend to transition [Mr Jephson] to a management position within [K Pty Ltd]. This will mean that [Mr Jephson] will not have to be at work by 7:00am and will not be required in the office until 8:30am to commence work. [Mr Jephson] will be able to undertake his role either in the office or at home. [Mr Jephson] will have flexibility in his work arrangements to assist the children become settled in his care and to enable him to facilitate the children’s attendance at school, their extracurricular activities and medical appointments.
28. At times, [Mr Jephson] may be required to attend job sites and assist with [jobs]. 1 do not foresee this being a regular occurrence and will only arise if one of the other [employees] are sick and the job cannot be rescheduled. If this occurs, I will ensure that he will be available to deliver the children to school and collect the children from school.
with what she swore in a statutory declaration for the purposes of an objection to a child support departure order in February 2022:
3. [K Pty Ltd] subcontracts [Mr Jephson] to [do jobs for] its customers. [Mr Jephson] has no involvement with the operation or management of [K Pty Ltd], nor has he ever.
4 I am responsible for paying [Mr Jephson’s] wage for subcontracting with [K Pty Ltd], which I confirm is in or around $75,000 gross per annum.
These statements are entirely inconsistent with each other. The respondent is either an employee or a subcontractor. Both cannot be true. His own evidence was that he was an employee and earned a wage. When taxed with the proposition that as an employee the respondent was entitled to and should have been paid superannuation by K Pty Ltd, Ms Fairburn changed her evidence to say that the respondent was a subcontractor rather than an employee. However, she produced no evidence to corroborate her claims in this regard.
I note that the respondent commenced an application in the Administrative Appeals Tribunal challenging an objection decision about an administrative assessment for child support for the parties’ children (see annexure MB-15 to the affidavit of evidence-in-chief of the applicant). In that application he contended that he was a subcontractor, but he does not now persist with that contention in this court. That is, in my view, telling against the proposition that he is in fact a subcontractor. Not that it matters ultimately, because it is clear that the respondent’s mother has given him significant support and will, I am satisfied, continue to do so.
As a result of his mother’s support, the respondent has been able to continue the lifestyle enjoyed when the parties were together. He lives in an expensive property and enjoys the accoutrements of a luxurious lifestyle –boats and expensive cars. The respondent does not. She has access to limited funds and has had to resort to Centrelink benefits to get by with the children. Even those were curtailed when, after separation the respondent amended his 2019 and 2020 taxation returns to increase his income, resulting in the applicant having to repay money to Centrelink. Despite his claims about the provision of financial support to the applicant, at the time of trial he owed about $77,000 in arrears of child support, with no plan about how to discharge them. I found it remarkable that he would not countenance asking for a loan from his mother to discharge these arrears, preferring to enter into some repayment plan over an unspecified period of time.
All of these matters considered together mean that there ought to be an adjustment to the parties’ contribution base entitlement in favour of the applicant. I consider that adjustment should be another $325,000 (or a touch over 15% of the parties’ net property), which is about 4 years gross wages for the respondent.
On that assessment, the applicant is entitled to $1,069,972.95, which I will round to $1,070,000 and the respondent is entitled to the balance of $1,058,494.15.
ORDERS
The applicant presently has assets (including credit for her paid legal fees) of $158,463.15. To make up her entitlement, she requires a further $911,536.85. I will round that down to $911, 500.
The simplest way for the applicant to receive her entitlement is for the respondent to make a cash payment to her of that amount. Whether he can raise that amount remains to be seen, but I will give him a reasonable opportunity to do so, before it becomes necessary for him to sell assets to meet the applicant’s entitlement.
The orders proposed by the applicant recognise that this is also the simplest solution. In default of payment, however, the applicant’s proposed orders provide for a sale of the Suburb AA property. The orders she proposes say nothing about the mortgage registered over the title to that property by the respondent’s mother. The existence of that mortgage will no doubt present an obstacle to the orderly realisation of that property so that the applicant can receive her entitlement. To that end, I have included an order requiring the respondent to use his best endeavours to have that mortgage removed.
Before concluding these reasons two other matters require special mention. In her Amended Initiating Application filed on 16 September 2024, the applicant, for the first time, sought orders that the deed of loan and guarantee between the respondent, his mother and his late father be set aside pursuant to s 106B of the Act. It will be observed that the respondent’s mother, Ms Fairburn, is not a party to these proceedings. Given that the setting aside of the agreement might affect her rights, as against the respondent and she would be interested in that relief, I suggested to counsel for the applicant that Ms Fairburn’s absence from the proceedings presented an unsurmountable obstacle to that relief. In response, I was referred to the decision of a single judge of this court in Budiarta & Zavahir [2016] FamCA 923. In that case, on an application to join a parent of one of the parties to the proceedings for the purposes of seeking an order to set aside certain transactions between that parent and their child (the other party to the proceeding), the court observed that in the circumstances of that case, joinder should be refused because the parent was not a necessary party. It was held that notwithstanding the absence of the parent as a party, an order under s 106B could still be made because the parent was on notice of the application and her son intended to call her to give evidence and be cross-examined in the trial.
Whilst I accept that there are similarities between the facts of that case and this, I harbour doubts that the approach taken in Budiarta should be followed, especially in light of the earlier dicta from another single judge of this court in Wayne & Dillon & Dillon [2008] FamCAFC 204 at [18] and [19].
I decline to make an order setting aside the deed of loan and guarantee pursuant to s 106B of the Act. Apart from the matter to which I have just referred, I do not consider that the order is necessary given my findings about the true nature of the advances and the nature of the deed.
I certify that the preceding one hundred and forty (140) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 7 May 2025
0
6
1