Dorbis & Dorbis (No 2)

[2025] FedCFamC2F 64

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Dorbis & Dorbis (No 2) [2025] FedCFamC2F 64   

File number(s):

BRC 5571 of 2022

Judgment of:

JUDGE COPE

Date of judgment:

29 January 2025

Catchwords:

FAMILY LAW – PARENTING - where the child lives primarily with the mother who seeks sole decision making and a reduction in the child’s time with the father, where father proposes joint decision making for major long term issues and increased time, where there are allegations of family violence and issues regarding the mental health of the child and the father, where the father argues the mother struggles to facilitate father/child relationship

FAMILY LAW – PROPERTY - where there are addbacks sought, where the asset pool is in dispute, where contributions and future needs are in issue

FAMILY LAW – CHILD SUPPORT – Application for departure – where mother seeks departure order for school fees and other expenses - where father seeks dismissal

Legislation:

Family Law Act 1975 (Cth) ss 60CG, 61CA, 61D, 61DAA, 61DAB, 65D, 65DAB, 60CC, 75, 79, 106A

Child Support (Assessment) Act 1989 ss 4, 116, 117, 124, Division 4 Part 7

Convention on the Rights of the Child 20 November 1989

Cases cited:

A v A (1998) FLC 92-800

Bagala & Bagala [2009] FMCAfam 953

Bevan & Bevan (2013) FLC 93-545

C & C [1998] FamCA 143

Cahill & Cahill (2006) FLC 93-253

Dickons v Dickons (2012) 50 FamLR 244

Gyselman and Gyselman (1992) FLC 92-279

Hickey & Hickey (2003) FLC 93-143

Isles & Nelissen (2022) FLC  94-092

M v M (1988) 166 CLR 69

Mallet v Mallet (1984) 156 CLR 605

Norbis v Norbis (1986) 161 CLR 513

Omacini & Omacini (2005) FLC 93-218

Pickford & Pickford [2024] FedCFamC1A 249

Stanford v Stanford (2012) FLC 93-518

Trevi & Trevi (2018) FLC 93-858

Wallis & Manning (2017) FLC 93-759

Division:

Division 2 Family Law

Number of paragraphs:

230

Date of last submission/s:

30 July 2024

Date of hearing:

29 and 30 July 2024

Place:

Cairns

Counsel for the Applicant:

Mr Bunning

Solicitor for the Applicant:

Simonidis Steel Lawyers

Counsel for the Respondent:

Mr Jordan

Solicitor for the Respondent:

Waller Family Lawyers

ORDERS

BRC 5571 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS DORBIS

Applicant

AND:

MR DORBIS

Respondent

ORDER MADE BY:	JUDGE COPE
DATE OF ORDER:	29 JANUARY 2025

THE COURT ORDERS THAT:

Parenting

Decision Making – Major Long-Term Issues

1.The mother will have sole parental responsibility for the long-term care, welfare and development of the child X born in 2017 (“the child”), including any decisions related to major long-term issues.

2.The mother will advise the father of any decisions regarding major long-term issues within seven (7) days of the decision.

3.The parents will each inform the other immediately should the child suffer an illness (other than minor childhood ailments), be hospitalised or should any major injury occur while the child is in their care.

4.This Order is an authority for either parent to obtain from any treating medical practitioner, hospital and/or healthcare professional any information concerning the health of the child, at the expense of the parent requesting such information and/or documents.

5.This Order authorises the child’s school/s to provide to each of the parents any information in relation to the child’s progress and copies of reports, newsletters and photographs, at the expense of the parent requesting such information and/or documents.

6.During the time the child is with either parent or communicating with either parent, then the parents shall:

(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;

(b)Speak of the other parent respectfully;

(c)Not undermine the child’s relationship with the other parent;

(d)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child; and

(e)Not physically discipline the child.

Living Arrangements

7.The child will live with the mother.

8.During the school terms, the child will spend time with the father as agreed between the parties in writing and failing agreement:

(a)From the date of this Order until the commencement of Term 1 in Grade 3 (2026):

(i)In week 1:

A.From after school on Wednesday (or 3:00pm if a non-school day) until before school on Thursday (or 6:00pm if a non-school day).

(ii)In week 2:

A.From after school on Friday (or 3:00pm if a non-school day) until before school on Monday (or 6:00pm if a non-school day).

(b)From the commencement of Term 1 in Grade 3 (2026):

(i)Each alternate weekend from after school on Thursday (or 3:00pm if a non-school day) until before school on Monday (or if Monday is a Public Holiday or Pupil Free Day then 6:00pm).

(c)With the mother for the balance of the time.

9.From the commencement of Term 1 Grade 2 (2025), unless otherwise agreed in writing, during Queensland school holiday periods:

(a)The child will spend one half of all school holiday periods with the father and in the event the parents cannot reach agreement as to which half, the child will spend the first half of the school holiday period with the father in odd-numbered years and the second half of the school holiday period with the father in even‑numbered years;

(b)With the mother for the balance of the time; and

(c)The time during school terms set out at Order 8 above is suspended during school holidays.

10.On the child’s birthday, the child will spend time with the parent they do not wake up with as follows:

(a)On a school day, from the conclusion of school to 6:00pm that day; and

(b)On a non-school day, from 1:00pm to 6:00pm that day.

11.The child will spend time with the father on the father’s birthday as follows:

(a)If the day falls on a school day, then from after school to 9.00am (or the commencement of school) the next day; and

(b)If the day falls on a non-school day, then from 3.00pm to 9.00am (or the commencement of school) the next day.

12.The child will spend time with the mother on the mother’s birthday as follows:

(a)If the day falls on a school day, then from after school to 9.00am (or the commencement of school) the next day; and

(b)If the day falls on a non-school day, then from 3.00pm to 9.00am (or the commencement of school) the next day.

13.The child will live with the father on the Father’s Day weekend from after school on Friday (or 3:00pm if a non-school day) to before school on Monday (or 9:00am if a non-school day) in each year.

14.The child will live with the mother on the Mother’s Day weekend from after school on Friday (or 3:00pm if a non-school day) to before school on Monday (or 9:00am if a non-school day) in each year.

15.On Easter Sunday, the child will spend time with the parent she does not wake up with from 1:00pm to 6:00pm that day.

16.The child will spend time with the parents over the Easter period as follows:

(a)From 9:00am Good Friday to 6:00pm Easter Saturday, with the father in even numbered years and the mother in odd numbered years; and

(b)From 6:00pm Easter Saturday to 6:00pm Easter Monday, with the father in odd numbered years and the mother in even numbered years.

17.The child will spend time with the parents over the Christmas period as follows:

(a)From 9:00am Christmas Eve to 6:00pm Christmas Day, with the father in even numbered years and the mother in odd numbered years; and

(b)From 6:00pm Christmas Day to 6:00pm Boxing Day, with the mother in even numbered years and with the father in odd numbered years.

18.Changeover will occur at the child’s school on school days and at McDonalds in Suburb B on non-school days.

Communication

19.Unless otherwise agreed between the parents in writing, the child will communicate with the father during school terms each Thursday that the child is not living with him, such time to occur between 5:30pm and 6:00pm, with the father to make the call, and the mother will ensure that the child is available to speak, uninterrupted with the father.

20.Unless otherwise agreed between the parents in writing, the child will communicate with each parent when she is not in their care during the school holidays to occur each Thursday between 5:30pm and 6:00pm, with the parent who does not have the child in their care to make the call, and the other parent will ensure that the child is available to speak, uninterrupted with the parent who is calling.

21.Calls in accordance with these Orders will commence and conclude within the specified time frame, unless otherwise agreed between the parties with such agreement to be in advance of the call and in writing.

22.Calls will take place during periods of any overseas travel in accordance with these orders, NOTING THAT the time for calls to occur will be the time where the child is located unless otherwise agreed in writing.

Travel

23.Should either parent intend for the child to travel interstate during the times the child is to live or spend time with them, the travelling parent shall provide the other parent with at least seven (7) days’ written notice of such intention.

24.Upon the child turning 12 years of age, the parents may apply for the child to be issued with an Australian passport, and in this respect, within fourteen (14) days of a written request of either parent to do so, the parents will each respectively do all acts and sign all such documents necessary for the child to be issued with an Australian passport, and the parents will share equally in the expense of the passport.

25.In circumstances where the child’s passport has less than six (6) months validity, the parents will each respectively do all acts and sign all such documents necessary for the child’s passport to be renewed, and the parents will share equally in the expense of renewal.

26.Once the child has turned 12 years of age, each party is permitted to travel overseas with the child during the school holiday periods, or such other times that may be agreed in writing between the parents, when the child is scheduled to live with or spend time with them, provided that:

(a)The travelling parent confirms in writing with the other parent at least six (6) weeks prior to the commencement of such period, his or her intention to travel overseas with the child and the proposed flights and accommodation for the child;

(b)The travelling parent meet all the expenses associated with the trip including visa and passport expenses;

(c)Not less than four (4) weeks prior to the proposed trip, the travelling parent provide the other parent with a copy of the return plane tickets and a detailed itinerary of the travel for the child;

(d)The travelling parent will obtain comprehensive travel insurance for the child and provide the certificate of insurance to the other parent at last two (2) weeks prior to the overseas trip;

(e)The travelling parent will have the child vaccinated for the destination country or countries as recommended by the World Health Organisation and/or the child’s treating general practitioner;

(f)Not less than two (2) weeks prior to the overseas trip, the travelling parent will provide the other parent with the locality of where the child will be staying and a contact phone number and email address on which the child can be reached.

27.Notwithstanding the preceding order, each parent is restrained from travelling with the child overseas, unless otherwise agreed in writing, to any of the following destinations:

(a)Any country that has a current travel advice waring issued by the Australian Department of Foreign Affairs and Trade Smart Traveller website (or equivalent Australian Government travel warning) of “exercise a high degree of caution,” “do not travel,” “reconsider your travel,” or similar travel warnings; and

(b)Any country that is not a signatory to The Hague Convention on the Civil Aspects of Child Abduction.

28.Upon issue and/or renewal, the child’s passport will be held by the mother.

29.Provided the father has complied with Orders 26 and 27 herein, then for the purposes of overseas travel, the child’s passport will be released to the father at least fourteen (14) days prior to the scheduled departure.

30.The father will return the child’s passport to the mother within seven (7) days of the child’s return to the Commonwealth of Australia.

Property

NOTING THAT an equal division of the matrimonial property is to occur, and FURTHER NOTING THAT the Asset Pool for distribution between the parties is as set out in attachment “A” to these orders, then:

Parties to Retain

31.The wife will forthwith retain as her absolute property, the title and possession of and the husband forthwith relinquish and/or transfer all right, title and interest that he may have in and to the following property and financial resources:

(a)The $100,000 partial property settlement if already received in accordance with the Order made on 5 August 2024;

(b)The furniture, chattels and effects currently in the wife’s possession;

(c)The wife’s bank account(s);

(d)The wife’s shareholdings;

(e)The wife’s superannuation entitlements; and

(f)All other proprietary interests of whatsoever nature in the wife’s current possession and/or control.

32.The husband will forthwith retain as his absolute property, the title and possession of and the wife forthwith relinquish and/or transfer all right, title and interest that she may have in and to the following property and financial resources:

(a)The $100,000 partial property settlement if already received in accordance with the Order made on 5 August 2024;

(b)The husband’s interest in D Partnership;

(c)The furniture, chattels and effects currently in the husband’s possession;

(d)The husband’s bank account(s);

(e)Motor Vehicle 1;

(f)The husband’s shareholdings, other than as provided for in these Orders or any subsequent Orders of this court;

(g)The husband’s superannuation entitlements; and

(h)All other proprietary interests of whatsoever nature in the husband’s current possession and/or control.

Cash payment to the wife

33.After compliance with the Orders made on 5 Augst 2024, the net proceeds of sale of the property situated and known as E Street, Suburb F in the State of Queensland also known as Lot … on Registered Plan … (“the Suburb F property”), being the funds held in the Simonidis Steel Lawyers trust account, will be distributed as follows:

(a)To the wife, such amount as required to achieve an overall equal property settlement; and

(b)Any remainder to the husband.

34.In the event the funds received by the wife from the sale of the Suburb F property are insufficient to achieve an overall division of 50% in the wife’s favour, then within seven (7) days of the settlement of the sale of the Suburb F property, the husband will do all acts and things necessary to sell the entirety of his shareholdings with G Company (account no. …), and on settlement of the sale, the sale proceeds will be disbursed as follows:

(a)To the Simonidis Steel Lawyers trust account, such amount as is estimated in capital gains tax calculated pursuant to Order 36 herein;

(b)To the wife, such amount as is necessary to achieve an equal distribution of the asset pool, with the asset pool to be calculated in accordance with Annexure “A” with the amount of CGT to be factored into the asset pool, and if the amount realised is insufficient then the entirety of that amount; and

(c)Any remainder to the husband.

35.Any remaining sum required to ensure a 50% property division be paid to the wife by the husband forthwith upon the sale of the G Company shares, and in any event within seven (7) days of the completion of the sale of the G Company shares.

Capital Gains Tax

36.At least three (3) days prior to the settlement of the sale of the husband’s shareholdings with G Company, the parties shall engage C Accounting Firm to calculate the capital gains tax payable by the husband on the sale, and the amount so calculated will be held back from the sale proceeds in the Simonidis Steel Lawyers trust account for anticipated capital gains tax.

37.Upon the husband providing Simonidis Steel Lawyers with his notice of assessment and a letter from C Accounting Firm on letterhead setting out the capital gains tax component of the husband’s income tax liability, Simonidis Steel Lawyers is irrevocably authorised to pay to the Australian Taxation Office the amount calculated by C Accounting Firm.

38.In the event there are funds remaining in the Simonidis Steel Lawyers trust account after payment of the capital gains tax component of the husband’s income tax liability, the remaining funds will be forthwith disbursed equally between the parties.

39.For the purpose of assessing and holding funds, and paying the CGT arising from the sale of shares, the parties will share equally in the cost of C Accounting Firm.

Miscellaneous

40.The husband and wife will each be responsible for liabilities incurred in their name including all borrowings, personal loans and credit card facilities and tax debts and shall indemnify and keep indemnified the other against any liability that occur in respect thereof.

41.The husband and wife will each do all acts and things necessary, including signing all necessary documents, so as to give full force and effect to the provision of these Orders and in the event that either party refuses or neglects to comply with any provision of these orders within fourteen (14) days of a written request to do so by the other party, then a Registrar of the Federal Circuit and Family Court of Australia at Brisbane (Division 2) be hereby appointed, pursuant to section 106A of the Family Law Act 1975 (Cth), to execute all documents in the name of that party and do all acts and things necessary to give validity and operation to these Orders.

Child support

42.The mother’s application for a Departure Order pursuant to section 124(1) of the Child Support (Assessment) Act 1989 (Cth) be dismissed.

Outstanding Applications

43.All outstanding applications are otherwise dismissed, save and except for the Enforcement Application filed on 31 October 2024 which remains listed for an enforcement hearing on 15 April 2025 at 9:30am.

ASSET POOL – ANNEXURE ‘A’ TO FINAL ORDERS:

Ownership	Description	Value
ASSETS
1	Joint	E Street, Suburb F	Net proceeds of sale after compliance with orders of 5 August 2024
2	Husband	¼ Interest in D Partnership	$700,000.00
3	Husband	Motor Vehicle 1	$44,500.00
4	Husband	G Company share portfolio ending …	$378,319.42
5	Wife	H Company shares – … shares	$5,005.00
6	Wife	NAB account ending …64	$1,050.00
7	Wife	NAB account ending …85	$55,000.00
8	Husband	CBA account ending …24	$23,261.10
9	Husband	CBA account ending …93	$14,864.78
10	Husband	CBA account ending …65	$0.00
11	Husband	Funds held in the Trust Account of Waller Family Lawyers (anticipated legal fees & counsel’s fees)	$80,000.00
12	Wife	Funds held in the Trust Account of Simonidis Steel Lawyers (anticipates legal fees & counsel’s fees)	$14,017.14
Total Assets		$1,306,017.44 plus value of item (1) above

ADDBACKS
13	Husband	Insurance proceeds from accident in Motor Vehicle 2	Excluded
14	Husband	Funds withdrawn by Husband from X’s account ending …18	Excluded
15	Husband	Funds drawn against the home loan account ending …36 (conceded to be applied to legal fees)	$46,698.52
17	Wife	Funds spent on legal fees from savings	$154,203.84
18	Husband	Funds spent on legal fees	$13,317.28
19	Husband	Costs Order made against the Husband paid from sale of shares	$30,060.00
20	Husband	Shares sold from share portfolio ending …17 and applied towards expenses	$160,067.20
Total Addbacks		$404,346.84

LIABILITIES
21	Husband	CBA home loan for Suburb F property ending …36	Taken into account at item (1)
22	Husband	J Company loan for Motor Vehicle 1	$13,937.67
23	Husband	CBA credit card account ending …54	Exclude
24	Husband	Credit card (membership #...03)	Exclude
25	Wife	NAB credit account #...31	Exclude
26	Wife	NAB Visa account (card ending #...10)	Exclude
27	Husband	ATO Deferred Debt regarding ART for financial year ended 30 June 2024	Exclude
28	Husband	ATO Income Tax Debt	$82,797.69
29	Husband	Notional PAYG (2024 FY)	Exclude
Total Liabilities		$96,735.36

SUPER
Member			Name of Fund	Type of Interest	Value
30	Wife		Super Fund 1	Accumulation	$145,256.00
31	Husband		Super Fund 2	Defined Benefit	$439,469.21
32	Husband		Super Fund 2	Accumulation	$308,139.08
Total Super		$892,864.29

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE COPE

INTRODUCTION

1. The court is asked to determine parenting, property and child support matters between the applicant wife/mother, Ms Dorbis and the respondent husband/father, Mr Dorbis.

2. The parties commenced their relationship in 2008, married in 2014 and separated on 16 October 2020. There is one child of the relationship namely X born in 2017, currently 7 years of age. 

   ISSUES FOR DETERMINATION

   Child Matters

3. Did the father perpetrate family violence including coercive control?

4. Does the mother struggle to facilitate X’s relationship with her father?

5. Should the mother have sole parental responsibility?

6. What living arrangements are in X’s best interests?

   Property Matters

7. What is the asset pool?

8. What percentage factors should be placed on each party’s contributions?

9. Should there be an adjustment for future needs?

10. What division of the assets is just and equitable?

    Child Support – Departure Application

11. Should there be a departure from the child support assessment in place?

    EVIDENCE AND SUBMISSIONS

    Documents

12. Each party filed an Outline of Case document and material was read into the record. The parties also tendered and relied upon material in accordance with the Court Exhibit List. I have read and considered that material.

13. The valuations were not challenged and that evidence is accepted.

    The Applicant Mother/Wife

14. I am satisfied that the mother was a witness of truth and complied with her oath. She was a confident, comfortable and self-satisfied witness. At times she smiled and laughed during cross-examination. I have rarely seen someone so completely assured in the witness box. The mother is completely assured that she is acting in X’s best interests and cross-examination did not shift her from that view. I am confident that she told the truth to the best of her ability.

    The Respondent Father/Husband

15. The father was not an impressive witness. He had a habit of splitting hairs. For example he denied that he told the Family Report writer that he was not medicated but when pressed conceded that he had said something like it, answering questions by saying he had said “words to that effect”.

16. He would be a frustrating and confusing person to argue with as it was difficult to get a straight answer out of him, particularly regarding the challenging issues of family violence and mental health issues. This was reflected also in the notes of the Family Report writer of her interviews with him.

    Mr K – the mother’s brother

17. This witness was not required for cross-examination such that his evidence is unchallenged.

18. His evidence confirms that of the mother; that he paid his share of the inheritance from their stepfather to her to keep in her bank account on his behalf, and that the sum was repaid later at his request with additional funds. He then returned a sum of money to her to ensure that the inheritance each received was equal. He also confirmed that he paid the mother’s rent for a period post separation and she subsequently repaid him.

    Family Report Writer – Ms L

19. Two Family Reports were prepared by this report writer. The first was released in January 2023 and the second in June 2024.

20. The recommendations in the most recent report are dependent on the findings that the court makes and are as follows:

    166.     If it is determined that [Mr Dorbis] may experience future problems, and/or that he will be deceptive about this, and/or that this will impact detrimentally on the co-parenting relationship, it may be necessary to reduce [X]’s time with her father to ensure this is manageable for her. This will allow [Ms Dorbis] to independently access support for [X] as required. It will minimise conflict between the parents, or at least [X]’s exposure to this. It will mean [X] is primarily with the person she has the closest bond to and who is arguably best placed to recognise and respond to support her emotionally. Most importantly, it will reduce the impact for [X] if her father struggles to recognise her emotional state, and/or if he is distracted by his own distress or rumination. [X] probably has a good enough bond with her father to sustain this if she can spend relatively consistent time with him. School holiday time may supplement their relationship, allow her more time with paternal family, and reduce the potential stressors related to attending at school.

    167.     If it is determined that [Mr Dorbis] will not experience future problems, and/or that he will be open in letting [Ms Dorbis] know about this and adapting the arrangements accordingly, and/or that this will not impact detrimentally on the co‑parenting relationship, then there could be some benefits for [X] if she spends slightly more time with her father. A routine where she can spend two nights at a time with her father will reduce the transitions between the households and allow [Mr Dorbis] to have more of a routine with her. This could eventually increase to two nights in one week, and three in the other, to further reduce the need for the parents to have direct contact with each other. It is suggested that this will need to be approached cautiously, if it is accepted the parents will have minimal capacity to resolve any problems that [X] may experience in adjusting to this.

    168.     If the scenario outlined in paragraph 167 is determined to be the case, and there is concern [Ms Dorbis] is needlessly, and consciously, influencing [X]’s attitude toward her father then it may be more imperative to increase [X]’s time with her father to try to mitigate this.[1]

    [1] Exhibit C2 at paragraphs 166 – 168 inclusive

21. Regardless of the Orders as to X’s time with the father, the Family Report writer recommends that X live with the mother and have a weekly call with the father and be able to call her mother during holiday periods.

22. In the witness box, she corrected aspects of her report, clarifying that the father had told her he had seen a psychologist and also corrected references to paragraph numbering at paragraph 172. She confirmed that she had read the trial affidavits. She advised that doing so had changed her opinion as expressed at paragraph 170, somewhat qualifying the criticism of the father. Otherwise her opinions as to the recommended outcomes remained unchanged.

23. One of her concerns is about the possibility that the father may be deceptive about any future mental health issues. The Family Report writer confirmed that the father had told her that he was weaned off medication for medical conditions, when he had earlier told the court that he had not said any such thing to her. Under cross-examination she advised the court that at interview the father spoke theoretically, confusingly and was avoidant of certain topics – such as issues of family violence. His presentation when he gave evidence was similar.

24. She did not support a five day block of time with X as sought by the father unless the court made findings favourable to the father as regards his willingness to be open with and coparent with the mother. If it was the court view that time should extend to a five day block, she was hesitant about when that block could start, expressing the need to weigh up uninterrupted time with each parent and limiting the need for any interaction between the parents.

25. When asked about a three night block for X with the father each alternate weekend, she said that having read the mother’s material there was a possibility that X’s anxiety may be increased by a reduction in time with the father. She advised that this was why in either case she still supported time occurring on the Wednesday, though if findings were made that were unfavourable to the father she did to support overnight time occurring on the Wednesday.

    PARENTING

    Orders Sought

26. In summary, the father proposes orders for joint decision making regarding major long-term issues, that X live with the mother. He proposes that X live with him for five nights each fortnight, initially in two blocks and as of 2025 for one block each fortnight. He also proposes week about during the holidays until X starts Grade 2 (2025) at which time he seeks half holidays.

27. The mother proposes that she have sole parental responsibility and X live with her. She proposes time with the father in terms of the reduced time suggested by the Family Report writer where the court makes findings favourable to him.

28. In short the father seeks orders based on the court making favourable findings about him and the mother’s orders sought are contemplating that the court will make findings adverse to the father.

    Risk Factors

    Family Violence

29. The mother alleges a history of family violence including coercive and controlling behaviour. That behaviour was not contemporaneously reported to the police. She gives detailed evidence and I summarise some but not all of that herein.

30. The mother gives evidence of the father controlling and dictating day-to-day life, including that the father stipulated the day that she was allowed to do laundry, insisted that he alone do the grocery shopping, not allow the mother to drive their more expensive car, refused to tell her where he was going when he went out or when he would be home, would not allow the mother to spend “his” money on herself and if she wanted to purchase something for X she had to ask him first. Despite the fact that she was not working she gives evidence that the father insisted she pay half the cost of a replacement dishwasher.

31. The mother also asserts as family violence, pressure from the father to allow his parents to care for X and pressure from the father to place the child in day care when X was 12 months old.

32. The mother describes an incident in 2017 when she was heavily pregnant. On her evidence the parties argued in the laundry, and the father pushed himself into the mother with his body ultimately causing her to lose her footing, and causing her to grab and rip his shirt to prevent falling. The mother gives evidence of the father often barging into her or pushing and shoving her with the weight of his body when he was in a bad mood or angry. If she asked him to stop the mother alleges that the father blamed her for their collisions.

33. The mother alleges gaslighting by the father, including asking her why she was washing dishes which he alleged he had already cleaned and alleging that she hid a bag of clothes from him. Her evidence is that the father had her genuinely believing that she was at fault.

34. When X was about two months old the mother alleges that the father pushed her and when she pushed back he grabbed her wrists causing visible red marks. The photos tendered of these alleged marks are unclear and I can make nothing of them.

35. The mother gives evidence of “on occasion” threatening to leave the father after arguments, that the father would then grab X from her and take her into a room where he would prevent the mother entering. She reports X “always” screaming. The mother reports that she would bang on the door and repeatedly tell the father to open it and that once he did so she would take X from him and go into her room for the night.

36. The mother gives affidavit evidence that once X learned to speak the father taught her to call the mother a “bitch” and that the child parroted the father calling her a “fuckhead”, with the latter supported by a contemporaneous text message tendered during the trial.

37. In 2018 the mother alleges that the child grabbed the father’s face to hold herself up and the father “lost it” and yelled and screamed at the child leading to the child to bump her head on the ground.

38. The mother alleges an incident in the home in 2019 where the father locked her out of the house and the child was inside the house and crying hysterically. The mother alleges an incident on Christmas Day 2019 when the father deliberately shut the car door on the back of her legs while she was putting the child in the car.

39. The mother alleges an incident in early 2020 when the father was intoxicated and was verbally abusive towards her. The mother alleges that in early 2020 the father yelled at her outside the child’s bedroom, waking the child who began to cry for her mother. The father picked the child up and when the mother asked for the child to be handed over the father pushed her away with a hand to her head.

40. In mid-2020 the mother alleges the father called her a “bitch” and the child began to parrot the father. The mother alleges that the father then tried to grab the child from her arms, screamed in her face so that she could feel his spit on her skin and was screaming over and over again “if you keep going, I am going to hurt you”. The mother alleges she then crouched down on the floor with the child in a foetal position and called to the neighbours to help, that the child began to vomit, and the mother then called her aunt for assistance. The mother gives affidavit evidence that this event was so bad she thought the father was going to kill her; that it was “the worst he had ever been”. Shortly after this event she contacted a domestic violence service. She then left the home with X in late 2020 when the father was away on an annual “boys’ trip”.

41. Although she did not make reports to the police the mother has tendered text messages which she argues supports her allegations. They do little to do so being general statements, thinking the recipient for support provided, states the father was “being a dick”, and that she needed “back up”, that she is “embarrassed by the way he acts” and that she “stayed out all day with [X] to be safe”. It does however contemporaneously support her allegation of the father pushing her in the head and that she then “went crazy” though in the text messages she denies pushing herself into him saying that was what the father had alleged.

42. The father’s affidavit material is of little assistance with the mother’s allegations largely unchallenged. He denies insisting that he do the grocery shopping, giving evidence that he thought he was helping the mother by doing so. Otherwise he does not directly address the mother’s detailed allegations of family violence in his affidavit material.

    Child’s Mental Health

43. In late 2021 the father and child were involved in a car accident.

44. In February 2022 the mother took the child to the GP about what she referenced as the child’s anxious presentation. A mental health care plan was completed and the child was referred to a service called M Centre where she engaged in play therapy.

45. On 14 February 2023 the mother took the child to see her GP and a further mental health care plan was prepared referring the child to Ms N psychologist. At this time the child ceased attending play therapy at M Centre.

46. In July 2023 the child commenced attendance on Ms O for psychology. This ceased in November 2023.

47. Both parents give evidence of X screaming and vomiting in 2023. The mother provides a troubling and detailed period of behaviour including vomiting, crying, and resistance to time spending with the father throughout much of 2023, and to a lesser extent in 2024. Each party blames the other, and indeed it must be distressing to have X crying and vomiting. Support for X has properly been sought. The mother received advice that X’s issues were likely due to her becoming accustomed to the transition between homes, and the improvement in 2024 supports that. There is however no definitive cause identified. Regardless of the reason, X has struggled and she needs parents who are focussed on supporting her rather than allocating blame to each other. I agree with the Family Report writer that X is no doubt a confused little girl.

48. While the mother expressed concern about the child’s well-being at school, in 2024 the school reports that she is at the appropriate levels in her schoolwork and doing well with her reading. Some anxiety was noted by the school when X gets things wrong, but the school had strategies to support her. The school expressed that X did not require targeted intervention. So that evidence was reassuring.

49. I have no doubt that in the event that X needs targeted or other supports they will be provided by the parents and the school. The evidence is also that the presentation that was so troubling in 2023 had eased in 2024.

    The Father’s Mental Health

50. The father concedes challenges in 2023. He denies that this impacted X. He concedes that he only sought supports because he had to do so for the proceedings. He has a tendency to minimise his mental health issues, however he did seek an adjournment of the trial in February 2024 based on situational crisis. The medical records tendered referred to “anxiety/depression – compounded by marriage breakdown, child custody and litigation proceedings… further complicated by protected workplace issues”. A referral was made to see a psychologist.[2] There was some confusion at trial as to whether the father was or was not recommended to see a psychologist by his doctor but certainly the material tendered in support of the adjournment reflect the referral was made by the doctor. It is some comfort that the father followed medical advice but I am conscious that he did so in the context of ongoing litigation and a looming trial.

    [2] Exhibit AW2

51. The father alleges that he had informed the mother of the challenges that he faced as they occurred. This is denied by the mother. I accept her evidence about that, given that the father told the Family Report writer that his mental health was great and he did not think he had ever had a problem with it. He advised the Family Report writer that it was life challenges and it was noted that he said something similar to explain his delay in filing his tax returns – that it was due to life challenges.

1. There is no evidence before the court as to the father’s current mental health. There is evidence that the father had been diagnosed with an adjustment disorder. The Family Report writer considered that once he had adjusted he should not experience further problems with adjustment disorder. She gave evidence, however, that he could experience a future adjustment disorder – being a reaction over and above the norm to life’s challenges.

2. In relation to the doctor referencing anxiety in the context of the exhibited medical notes she was of the opinion that was a description of his behavioural reaction rather than a diagnosis. The father himself conceded that at the time in February 2024 he lost weight, ruminated, slept three hours a night and was unable to do his affidavit material. The doctor described the father’s presentation as a temporary cognitive impairment – whatever that may mean.

3. Having considered the evidence I am of the view that the father says whatever he thinks will get him the outcome he seeks at the time; for example he said in February 2024 that he had mental health challenges which prevented trial preparation and required an adjournment but later told the Family Report writer that he has no mental health issues relevant to determining what time he spends with X.

   BACKGROUND

4. The parties commenced their relationship in 2008 and married in 2014. Although the parties did not live together prior to this date they did spend significant time together for a number of years. Each party held assets at the commencement of the relationship. Neither party was able to produce documents to support all of the initial contributions that were alleged.

5. During the trial the mother gave evidence that despite the lack of documents she did not dispute the father’s evidence as to the extent of his initial contributions which he estimated at $1,419,293.63 of which $358,000 was superannuation.

6. It is not disputed that the mother had a half share in the real property at E Street, Suburb F (“the Suburb F property”) worth $265,000 at that time. The mother’s evidence is that she also had $150,000 in savings, a car valued at about $25,000 with a $10,000 liability, and unspecified super interests. The father does not recall the wife having substantial savings at the commencement of the relationship and her evidence was to the effect that she was unable to locate all supporting documents and could prove only $50,000 in cash. Despite that, under cross-examination the husband accepted that the wife had savings of $150,000 and super worth about $20,000 to $30,000. Taking the upper end of the super estimate, that puts the wife’s initial contributions at $460,000 of which $30,000 was super.

7. During the relationship the parties opened two joint bank accounts. In 2014 the father purchased the other half share in the Suburb F property from the mother’s stepfather, paying $350,000. The parties jointly purchased motor vehicles.

8. In 2017 the only child of the relationship was born, X. X was seven years old at the time of the trial.

9. In 2018 the mother’s stepfather passed away leaving her an inheritance to the value of about $112,240.88. While the father initially gave evidence that the amount inherited by the mother was $385,740.88, he did not challenge the evidence of the mother’s brother, which was to the effect that he had transferred his share of the inheritance to the mother to hold for him, that he then asked and received a transfer of $160,000 which he needed, but later transferred back $40,000 to redress the overpayment. This witness’ evidence that he financially supported the wife post separation and has been repaid $50,000 for that support is also unchallenged.

10. The mother alleges that the marital relationship was characterised by family violence and that this was the cause of the relationship breakdown. I address that later in these reasons.

11. The parties separated on 16 October 2020, having been married for over six years. The wife left the Suburb F property and has resided in rental accommodation since that time. There was no formal arrangement in place for time spending however the father spent regular time with X. This did not include overnight time, noting that X was three years old at the time of separation.

12. After a car accident in late 2021 where the father was driving and X was in the car, the father’s evidence is that the mother started attending the time he spent with X and then sought that their time be supervised.

13. In March 2022 the parties reached agreement for the father to spend supervised time with the child. On 4 April 2022 the parties entered into a Parenting Plan. In accordance with that agreement, the father then spent unsupervised time with the child but with supervised changeovers. The mother then commenced legal proceedings on 13 May 2022.

14. On 11 October 2022 orders were made for the father to spend time with the child for increasing periods of time during the day. Orders were also made for communication each Monday and Thursday between 6:00pm and 6:30pm. A notation to the order reflected the parties had agreed to enter into a Binding Child Support Agreement to the effect that the father would pay child support as assessed and also pay the tuition and levies for P School. The father did not sign the Binding Child Support Agreement. The mother’s position is that she agreed not to press for interlocutory spouse maintenance based on that agreement to enter into a Binding Child Support Agreement.

15. On 16 March 2023 an Order was made by a Senior Judicial Registrar that the child live with mother and spend time with father, gradually increasing to an overnight each Wednesday and three nights each alternate weekend, being five nights per fortnight.

16. The mother had that decision reviewed by a Judge and on 27 April 2023 the father’s time was reduced to four nights each fortnight – with the overnight occurring each Wednesday but the alternate weekend reduced to two nights.

17. On 14 February 2024 those Orders were suspended and the father’s time became daytime contact only and to occur in the presence of another person. An interim hearing was however listed for 30 April 2024.

18. On 1 May 2024 that Order was discharged and the father’s time reverted to four nights each fortnight in accordance with the orders of 27 April 2023. Those Orders remained in place at the time of trial.

    The Legal Principles

19. This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). The court is generally guided by s 60B of the Act which sets out the two objects of Part VII of the Act. Those objects are:

    (a)to ensure the best interests of children are met, including by ensuring their safety; and

    (b)to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

20. In accordance with s 65D of the Act, the court may make such parenting orders “as it thinks proper”, subject to s 65DAB which requires the court to have regard to any parenting plan to the extent that doing so is in the best interests of the children.

21. In determining what parenting order to make, the best interests of the children are the court’s paramount consideration. Section 60CC of the Act sets out how the court determines what is in a child’s best interests.

22. Section 64B of the Act defines a parenting order and sets out the powers the court holds – what type of orders the court is able to make in a parenting matter. That includes orders about with whom a child is to live, the time a child is to spend with other persons, the allocation of parental responsibility, the communication a child is to have with other persons and “any aspect of the care welfare or development of the child or any other aspect of parental responsibility for a child“.[3]

    [3] Family Law Act 1975 (Cth) s 64B(2).

23. There is no presumption of equal shared parental responsibility. While the definition of parental responsibility has not changed, the way that the court determines parental responsibility, or decision making for major long-term issues, and whether that should be “joint” has changed. The relevant provisions regarding decision making include ss 61CA, 61D, 61DAA, and 61DAB of the Act.

24. Safety is a key consideration for the court in determining whether to make orders for sole or joint decision making for major long-term issues.[4] The court will ensure that any order made is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount.[5]

    [4] Family Law Act 1975 (Cth) s 60CC(2A).

    [5] Family Law Act 1975 (Cth) s 60CG.

    Discussion and Findings

25. The relevant considerations as regards to best interests are set out and reviewed in these Reasons, noting that the court must also give consideration to any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and any family violence order that applies or has applied to the child or a member of the child’s family.

26. In M v M (1988) 166 CLR 69, the High Court held that a parenting order ought not be made if such order exposes the children to an “unacceptable risk” of harm.[6] The “unacceptable risk” test has since been authoritatively applied to any potential risk of harm to a child and is not limited to sexual abuse.[7] The court will consider “unacceptable risk” in light of each party’s parenting proposals and the availability of any appropriate safeguards.

    [6] M v M (1988) 166 CLR 69 at 78.

    [7] A v A (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77.

27. The Full Court in Isles & Nelissen has clarified that the test relating to risk is one of possibility rather than probability with a consideration of the severity of harm that would arise from the actualisation of the risk.[8] Nothing about the new legislation impacts or varies the application of those tests.

    [8] Isles & Nelissen (2022) FLC 94-092 at 81446.

28. The mother alleges risk arising from the father’s conduct. In making determinations regarding safety, the court considers not only the physical safety of the child but also the psychological and emotional safety.

29. I am not satisfied that all conduct as alleged by the mother would reach the threshold of family violence due to the lack of specificity, such as her evidence in chief as to the father wanting her to pay for half the dishwasher and wanting his mother to babysit. I am however satisfied that the mother’s allegations of pushing and shoving and some of the allegations of coercive and controlling behaviour, such as assuming sole control of the grocery shopping, and controlling her spending, constitute acts of family violence.

30. I do not accept the father’s denial of the conduct alleged by the mother. I accept the mother’s evidence as to the family violence perpetrated by the father. I do so for the following reasons:

    (a)The mother’s evidence was detailed and consistent;

    (b)The father did not address the allegations of family violence in his evidence in chief other than in a very cursory way;

    (c)The father’s evidence that he was doing the mother “a favour” in assuming sole responsibility for grocery shopping was unpersuasive;

    (d)Under cross-examination he disagreed that he had not addressed the allegations of family violence and pointed to paragraph 188 of his trial affidavit. That paragraph lists the courses he has done and in no way responds to the mother’s allegations;

    (e)The father’s unsatisfying evidence that he did not think he needed to respond to the mother’s allegations because they were false and misleading;

    (f)His unimpressive attempt to explain his concession to the Family Report writer of “pushing and shoving” as meaning playfulness including with the child;

    (g)His evidence that as the mother had access to bank accounts that she had “carte blanche”. The fact that a person can access bank accounts does not mean that they can do so freely or without consequences;

    (h)His evidence that when the Family Report writer described him as guarded and closed that was based on him telling her that he didn’t recall the specifics;

    (i)His statement to the Family Report writer that the mother’s allegations were “subjective” and the mother “may believe that” he was acting in a controlling way; and that while the mother perceived his behaviour as family violence, he did not;

    (j)His changing evidence such as whether he was weaned off the medication for his medical condition;

    (k)His denial of all the allegations and the failure to offer any alternate explanation;

    (l)Despite the father advising the Family Report writer that he was not a high conflict person she noted the evidence in the subpoenaed material reflecting that the Kindergarten staff felt intimidated by him, and that his behaviour in the workplace was alleged to be aggressive. This reflects a lack of insight on his part as to how his behaviour may be interpreted by others.

31. Given those findings it is not surprising that the mother struggles to facilitate X’s relationship with the father.

32. Having made those findings I turn to look at the risk of harm arising from family violence into the future. Although in her trial affidavit the mother states that she was “subjected to family violence at the hands of [Mr Dorbis], both during our relationship and since separation”, she does not particularise allegations of post separation family violence. In the over three years since separation, there is affidavit evidence from the mother that the father was “unrelenting” in his demands to see the child immediately post separation but again no particularisation of what was done so as to enable a forensic analysis. There is also evidence given of disputes between the parents, for example, the mother alleging that at changeovers the father made a snide remark about her buying new shoes, that the father alleged that she had “hit” X, and that the father commented to X that the mother “put her up to” her distress at changeover.

33. I am simply not satisfied that the mother has sufficiently particularised what was said and done to allow me to make findings that there is an ongoing campaign of coercive control or other forms of family violence perpetrated by the father post separation. This is not to say that family violence is not an issue that this court takes very seriously, however I am obliged to apply the same forensic blowtorch to allegations of family violence as I am to any other disputed matter before the court.[9]

    [9] Pickford & Pickford [2024] FedCFamC1A 249 at [78] – [80]

34. I accept the mother’s evidence and I am satisfied that the father has at times behaved inappropriately at changeovers, exposing X to the parental conflict.

35. I am satisfied that there is a poor co-parenting relationship and a lack of trust between the parties. This is clearly reflected in the Family Reports and the evidence of each party under cross-examination.

36. I am not satisfied that the evidence is such that I can be satisfied that the mother has “needlessly, and consciously”[10] sought to influence X’s attitude towards her father as was considered by the Family Repot writer. I am however satisfied that the mother genuinely believes that X does not enjoy time with the father and that the mother speaks and acts accordingly. The mother’s belief was clearly demonstrated to the Family Report writer to the extent that the expert found herself considering whether the mother’s conduct was indeed deliberate.

    [10] Exhibit C2 paragraph 168

37. During the mother’s interview with the Family Report writer she stated that she expected X would at some point decline to spend time with her father; she appears to be in expectation of that occurring. I have also considered the school has formed the view that some of X’s resistance/distress about leaving the mother was about leaving the mother alone- in effect it was not about the father.

38. I have seen the mother in the witness box. I am satisfied that she is acting out of misguided love however I am satisfied that she herself is as much the author of X’s confusion and distress as the father.

    Application of the Law

39. The relevant considerations as regards best interests are reviewed below, noting that in this review the court must also give consideration to any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and any family violence order that applies or has applied to the child or a member of the child’s family.

40. I have already addressed the risk factors in some detail and do not intend to repeat that here. I confirm, however, that I have considered that evidence and my findings in making this determination.

41. The most significant risk factor is that of family violence. The mother was not cross-examined in detail as to her allegations of family violence but to the extent that she was, she remained consistent and adamant as to the father’s conduct. The father’s denials in the witness box have not rung true, as noted earlier in these reasons. I am however troubled about X’s emotional and psychological safety in both homes. Both parents displayed a level of certainty in their own views which bodes ill for X.

42. The mother is determined that X may choose whether she spends time with the father. She cannot accept that her own fears and anxieties may influence X’s wishes. She retains her complete certainty that what she is doing is good for X regardless of what the experts may say.

43. The father is likewise self-satisfied and assured that what he wants is best for X. I share the Family Report writer’s concern that he appears not to have benefited from the interventions he has undertaken in the form of courses and counselling due to his unsatisfactory evidence, as detailed above, and his continuing denials in light of the findings that I have made.

44. The Family Report writer is unable to identify the cause of X’s distress and vomiting. Each parent believes that it is caused by the other. I have considered the possibility that the most likely cause is the parental conflict and her exposure to it. Her parents have in the past physically fought over her – snatching X from each other’s arms, locking themselves in a room with her while the other pounds on the door and yells out. I accept the mother’s evidence that this occurred on more than one occasion.

45. X is no doubt aware of the conflict; for example the mother gives affidavit evidence that X told her the father had told her what to tell the Family Report writer and the mother stated that she told X to just tell the truth. The Family Report writer considered the possibility that both parents attempted to influence X as regards what she had to say. I have no doubt that an end to these proceedings will bring great relief to X and that a reduction in the parents coming face to face in her presence will greatly ameliorate her anxiety.

46. X is only seven years old. She is a young child highly susceptible to being influenced by those around her – particularly her parents. I have already addressed her struggles in 2023 and 2024 earlier in these reasons and I have that firmly in my mind when considering what orders are in X’s best interests.

47. X expressed wishes not to spend time with the father, however the Family Report writer expressed the view that little weight should be placed upon that. I agree. Certainly the contact supervisor reports reflect that although at times X expressed reluctance to spend time with the father, she transitioned easily and their time together was positive. It was reported that X enjoyed her time, was affectionate towards the father and that the father was, in the main, child focused. The Family Report writer was also positive about their relationship in her observations.

1. I am satisfied that each of the parents love X very much. I have however grave doubts about the capacity of both parents to meet her emotional needs. The mother is placing enormous pressure on X by enabling her to make decisions about her time with the father. I doubt that at seven years of age she would allow X to make decisions about bedtime, school attendance and attending the doctor for health issues. Why on earth would she empower a young child to make decisions about when and if she sees the father? There is certainly no evidence that she is developmentally ready for such responsibility. I was troubled about the mother’s evidence that “if she doesn’t want to go I’m not putting pressure on her” and “we make decisions together”. That is not parenting. That is treating your child like an adult who is fully developed and mature enough to make adult decisions. It also discounts the evidence of the contact supervisor and the Family Report writer that the resistance expressed by the child is not reflected in the child’s interactions with the father.

2. I accept that the mother does struggle to facilitate X’s relationship with the father because of the family violence she has experienced. She is of the view that X does not want to see the father and this is despite the positive contact supervision reports and the positive view of the Family Report writer. The mother’s position is based on what the child tells her and what the child has said to third persons. But her behaviour with the father directly contradicts what she says. The Family Report writer considered the possibility that the mother may be influencing the child to say those things and directly attempting to undermine her relationship with the father. Given the mother’s beliefs and her attitude I consider that this is a very real possibility. I would like to think that it was inadvertent but the mother’s supreme confidence in the face of independent evidence leaves me with the view that due to her intense negative feelings about the father she is looking for problems and undermining that relationship. I am however satisfied that she is doing so in the genuine belief that it is protecting the child. I do not agree with the mother.

3. I do not accept the mother’s evidence that she was happy to read in the report that X was pleased to see her father because I formed the view that she does not believe that to be the case, noting her advice to the Family Report writer that “[X] does not enjoy time with her father”. I think the mother was simply telling the court what she though the court would want to hear.

4. It is undisputed that on a practical level she is a good and loving mother. She does however have some very odd notions of parenting. The idea that X at seven years of age, or 12 years of age, should choose her own living arrangements is very much at odds not only with the law but also with the research as regards the developmental needs of children. If the mother continues in this way then she is going to find herself with an unmanageable teenager.

5. By making X the decision maker the mother is placing an enormous burden on X. She appears unwilling to consider that this pressure may be at least in part the basis for X’s issues.

6. The mother had some notion that whatever orders the court makes now were temporary only and that at 12 years of age X got to choose. She was informed otherwise. Orders made by this court are enforceable until a child turns 18 years and both parents and the child are expected to comply.

7. I see great benefit in X retaining a relationship with both parents and through them the extended family. Clearly both parents share that view as they each seek that X spend time in both homes. Both parents have Country Q heritage. Both parents are connected to their culture through special days and extended family and both are keen to share their heritage with X.

   DETERMINATION – PARENTING

8. This is a difficult matter as neither parent presented as insightful or able to objectively review the data. Each was married to their own perceptions and beliefs.

   Parental Responsibility for Major Long-term Decisions

9. The mother proposes that she have sole parental responsibility. The difficulty I see with that option is the father’s evidence that the mother fails to keep him informed. Her evidence was that she did discuss things with him first, his evidence is to the contrary. Regardless of who is telling the truth about that it bodes ill for co-parenting into the future.

10. On the other hand I do not see how joint responsibility will work. I have made findings that during the relationship the father did perpetrate acts of family violence. That makes it nigh impossible for the parties to work collaboratively as the mother clearly remains on high alert. 

11. The father wishes for the parties to consult and make decisions together. In an ideal world that would be best for this child. I am, however, of the view that it will not work for this family because of the family violence, because of the parental conflict and because of the child’s exposure to that and her anxiety.

12. I therefore propose to make the orders sought by the mother that she have sole parental responsibility. I shall however add a proviso that the father be kept informed of the decisions that are made. Whilst that is not included in the mother’s proposed orders she does seek standard authority orders and as such it is clear she expects that the father will be informed and able to access information regarding medical and educational matters, and therefore it is clear that she expects him to know the identity of the service providers.

13. I shall make orders granting both parents those authorities to obtain documents and information in the terms proposed by the mother.

    Time Spending

14. There is no dispute that the mother is to remain the primary carer for X. This is a role that she has always maintained and I accept the opinion of the Family Report writer as to the child’s attachments. The issue that remains is how much time X is to spend with her father. The parties agree that time should be spent and that time need not be supervised. But the extent of that time is in issue.

15. X must move between parents who interpret her behaviours and distress differently. The father sees her distress and vomiting in his care as not real and submits that if she had a good time with him she may be unable to tell the mother. If indeed, as explored by the Family Report writer, the mother has exaggerated X’s anxiety and vomiting and the links to the father, or if the mother is creating that situation, then the Family Report writer recommends increased time to address.

16. One of the issues with the reduced time proposed by the mother is that this means more face to face handovers where X passes directly from one parent to the other. I am satisfied that to allow that to occur will increase her anxiety and distress as both parents are sure that the other is undermining their relationship with X and the mother is sure that X is having a terrible time with the father. Handovers at school mean that X has the time at school as a buffer between her parents and gives her the opportunity to relax and transition without any immediate questioning or sense of obligation to report.

17. I am of the view that it is vital to minimise the parties coming into contact with each other in order to protect X from any competing loyalties or perceptions that her mother may expect to see her resisting moving into the father’s care or expect her to be relieved to leave her father. Changeovers must therefore occur as school wherever possible.

18. Whilst I respect the opinion of the Family Report writer, I cannot accept any option that takes changeovers away from the school as being in the child’s best interests. I have indeed made findings adverse to the father. I am of the view that he perpetrated family violence. I am also of the view that he does at times act inappropriately at changeovers; he exposes the child to parental conflict.

19. There is no evidence to suggest that the father will experience mental health challenges in the future. He has no history of mental health issues, other than situational distress arising from these proceedings and the work conflict. In effect it was a perfect storm of stress and trauma. There is always the possibility that he may suffer again, but there is no expert evidence to suggest that it is likely or what the impact would be. It is certainly not uncommon in this court to find parties who are experiencing situational stress.

20. I do expect that it is possible the father will not communicate openly with the mother in the event that he does experience future mental health challenges. That is because of the finding I have made that he was not open with her in the past and the high level of conflict.

21. I have, however, also made findings adverse to the mother. I am of the view that she is undermining the child’s relationship with the father. I do not think that she is deliberately attempting to make the child ill, but her very certainty as to the child’s loathing of the father likely places the child in a highly confusing and conflicted situation. I therefore do not propose to make the orders proposed by the mother to reduce the child’s time with the father. But because I have made findings adverse to the father I am of the view that an increase in time must be carefully managed.

22. X has been spending alternate weekends with her father from school on Friday and concluding on the Sunday, most recently since those arrangements were reinstated in May 2024. I am satisfied that it is appropriate now to move that to the full weekend from Friday after school to Monday at the commencement of school with changeovers at school in the absence of the other parent.

23. I agree with the Family Report writer that the time mid-week is important while X is young and intend to retain that arrangement for another year until she commences Grade 3 in 2026. At that time X will be a little older and better placed to manage the longer separation from her father. I propose however to balance the removal of that mid-week time with an additional overnight on the alternate weekends, such that X’s block time with the father will increase to four nights per fortnight.

24. Given the family violence and the challenges in the co-parenting relationship together with my doubt as to their ability to support X’s relationship with each other, I do not propose to increase the child’s time with the father during school terms beyond that point. I am of the view that the time needs to be clearly delineated and as simple as possible.

25. In relation to school holidays, the recommendation of the Family Report writer envisages regular contact between the parents and X transitioning between homes spending blocks of three nights with the father and gradually increasing. That means repeated back and forth throughout the holidays and the parents repeatedly coming into contact at those changeovers. I simply cannot see how that is a good thing in a high conflict parenting relationship. I am not attracted to the mother’s proposal which mirrors that recommendation. I will not make orders in those terms.

26. The father proposes a move to half school holidays and I do support that proposition. Holiday time for X will become a nightmare of transitions if she is moving back and forth routinely. The longer periods of time during holidays allow her to travel, visit with family and settle into each parent’s home. If that starts straight away, then come the Christmas holiday in 2025 she will be at the end of Grade 2 and she will be eight years old and have shared block holiday time of a little over a week with each of her parents on three occasions. I am satisfied that she will be ready for the usual half school holidays block, having experienced that throughout the year together with the increased fortnightly time with her father, and importantly the decreased contact between her parents at handover.

27. I have no doubt that if X needs expert therapeutic support that the mother will arrange it. That is certainly preferable to the mother attempting to talk to X herself when exposure to the parental conflict is to be avoided.

28. There is not much to pick between each parents’ proposals for special days other than the father seeks to introduce additional overnights on birthday. I prefer the proposal of the mother that does not look to add in overnights during the week, aside from the Mother’s Day and Father’s Day weekends when I see merit in the full weekend as opposed to waking up early on the day for an 8:00am handover. Instead the child can awake with the parent in question and there is no issue of a changeover to spoil the day. I do not propose to make orders for time on her name day as well as her birthday.  Her name day can be celebrated as it falls.

29. Given the findings that I have made regarding family violence and the need to reduce stressors for X I propose to order that changeovers that do not occur at school occur at a neutral location rather than the parents’ homes. Whilst a home based changeover is usually preferable and easier, it is not supported in a case such as this.

    Communication with the Child

30. The mother seeks no orders for calls. On her unchallenged evidence the calls have been a source of conflict and stress for X.

31. The father proposes that he speaks to X twice a week and that the mother talk to X once during the time that X is in the father’s care. The Family Report writer proposed a weekly call for X with the father and calls with the mother while she is in her father’s care during school holidays only – initially each second day then moving to one call in each block. I have considered however that the Family Report writer recommended shorter block times of time starting with three nights and increasing to six nights. Orders have now however been made for the parties to share school holidays so a different scenario is more appropriate than one call say in a three week period.

32. I am of the view that while the child is with her father her time should be uninterrupted by calls save for school holidays. I agree with the Family Report writer that weekly calls during school holidays, both ways, will be helpful for X. They maintain the connection during longer periods of absence. For school terms, I will order a weekly call between X and the father on the Thursday. That will transition to fortnightly once the child’s time with the father moves to one four day block, in order to break up the time that they are apart. I hear the mother’s evidence that she and X live in a small apartment, so it is sensible to make it routine for X to go to her bedroom in either home so she can take the calls in privacy.

33. I will keep the time and day for calls consistent for school terms and school holidays to minimise any confusion. Those calls should be for no longer than the time specified, they can commence at any point in that time frame but should finish at the time specified. If parents are worried about being late then perhaps they should set a recurring alarm.

34. It seems trite to say that it can only be in X’s best interests that if a call cannot be made or one parent is late whether for calls or handovers the other parent must be told directly as soon as possible so that X can be told what is going on.  

35. In the event that X commences an extracurricular activity on a day that interferes with the call then changes will need to be negotiated to the time or the day of the call. X should not miss out on the call but nor should she miss out on an activity.

    Travel

36. Both parties agree that there should be orders to allow them to travel overseas with X while she is in their care. The mother proposes that this does not commence until X is 12 years old. Given the changes that are occurring for X in accordance with these orders and the struggles she has experienced in the past, I share the mother’s view that travel should wait until X is a little older.

37. It also appears to be a commonsense matter of courtesy to notify each other of any interstate travel. Parents should know where their child is living and where she is traveling, unless there are safety considerations that mandate otherwise.

    Other Orders

38. The father seeks a number of other orders that are in my view more appropriate for situations where the parties have joint decision making for major long-term issues and as such I have declined to make those orders.

    PROPERTY

    Orders Sought

39. The applicant wife seeks detailed property orders with the intent to achieve a 65% division in her favour.[11] The husband proposes an equal division of the asset pool.[12]

    [11] Exhibit A2

    [12] Outline of Case document filed 26 July 2024

40. The parties were in agreement that the property at Suburb F (“the Suburb F property”) be sold. As a consequence, orders were made by consent on 5 August 2024 to facilitate that process. 

    Legal Principles

41. These proceedings are governed by provisions of Part VIII of the Family Law Act 1975 (Cth) (“The Act”) and will be determined in accordance with an approach laid down by the Full Court in Hickey & Hickey (2003) FLC 93-143.

42. The relevant principles were considered by the High Court in Stanford v Stanford (2012) FLC 93-518 (“Stanford”), noting subsequent Full Court decisions. In particular, that decision provides that the “just and equitable” requirement in s 79(2) is not to be read as part of s 79(4), or s 75(2) and the provisions of the legislation are to be reviewed separately. Separated parties are not entitled to a property settlement as of right.

43. Once the Court is satisfied that it is just and equitable to make an Order under s 79(1) and (2) of the Act, the court has what has been described as “a very wide discretion to make such Order as it thinks fit”: see Mallet v Mallet (1984) 156 CLR 605 at 608 per Gibbs CJ.

44. Whilst there has been debate as to the appropriate approach to be taken since Stanford’s case, it has been the practice of the court to determine, as an initial issue, whether it is just and equitable to make an adjustment of marital property. The pathway to be followed is therefore:

    ·To consider whether it is just and equitable to make a property settlement order as referred to in Stanford;

    ·To identify and value the asset pool being the property, liabilities and financial resources of the parties;

    ·To identify and assess the respective contributions by each party towards the assets pursuant to s 79;

    ·To identify and assess the relevant future factors set out in s 75(2) as well as any other matters arising pursuant to s 79(4)(d), s 79(4)(f) and s 79(4)(g). Having done so, to then determine what, if any, adjustment ought to be made to each party’s contributions-based entitlement; and

    ·Lastly, to consider the effect of any findings and proposed Orders so as to be satisfied that the proposed property Order (if any) is just and equitable.

45. In that process, however, the just and equitable requirement is also “one permeating the entire process”; Bevan & Bevan (2013) FLC 93-545 at [86].

46. In Wallis & Manning (2017) FLC 93-759, the Full Court referred to and approved the Court in Dickons v Dickons (2012) 50 FamLR 244 at [21] where the Full Court said:

    …the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applies, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79.

47. I have had regard to the decisions debating the varying approaches to dividing an asset pool in terms of an asset by asset approach or global approach as referred in Norbis v Norbis (1986) 161 CLR 513; Cahill & Cahill (2006) FLC 93-253.

48. The global approach is generally adopted and involves examining the assets on a global view and determining an overall contribution of each party, as opposed to the asset-by-asset approach which involves determining the interests of each party in each asset or group of assets.

    DETERMINATION – PROPERTY

    Determining the assets and liabilities

1. The joint Balance Sheet provided by the parties is as follows:

Ownership		Description	Applicants value	Respondents value
ASSETS
1	Joint	E Street, Suburb F	$1,250,000.00	$1,250,000.00
2	Husband	¼ Interest in D Partnership	$701,202.00 (as at 30.06.2023)	$700,000.00 (as at 30.06.2022)
3	Husband	Motor Vehicle 1	$44,500.00	$44,500.00
4	Husband	G Company share portfolio ending …17	$378,319.42 (as at 11.07.2024)	$378,319.42 (as at 11.07.2024)
5	Wife	H Company shares – … shares	$5,005.00	$5,005.00
6	Wife	NAB credit account ending …64	$1,050.00 (as at 20.07.24)	$500.00
7	Wife	NAB account ending …85	$55,000.00 (as at 20.07.24)	$61,000.00
8	Husband	CBA account ending …24	$23,261.10 (as at 05.07.2024)	$23,261.10 (as at 05.07.2024)
9	Husband	CBA account ending …93	$14,864.78 (as at 08.07.2024)	$14,867.78 (as at 08.07.2024)
10	Husband	CBA account ending …65	$0.00 (as at 05.07.2024)	$0.00 (as at 05.07.2024)
11	Husband	Funds held in the Trust Account of Waller Family Lawyers (anticipated legal fees & counsel’s fees)	$80,000.00	$80,000.00
12	Wife	Funds held in the Trust Account of Simonidis Steel Lawyers (anticipates legal fees & counsel’s fees)	$14,017.14	$NK
Total		$2,567,219.44	$2,557,450.30

ADDBACKS
13	​Husband	Insurance proceeds from accident in Motor Vehicle 2	$10,400.00	Exclude
14	Husband	Funds withdrawn by Husband from X’s account ending …18	$7,706.00	Exclude
15	Husband	Funds drawn against the home loan account ending …36	$46,698.52 (as at 01.07.2024)	$46,698.52 (as at 01.07.2024)
17	Wife	Funds spent on legal fees from savings	$154,203.84	$159,072.96
18	Husband	Funds spent on legal fees	$13,317.28	$13,317.28
19	Husband	Costs Order made against the Husband paid from sale of shares	$30,060.00	$30,060.00
20	Husband	Shares sold from share portfolio ending …17 and applied towards expenses	$160,067.20	$160,067.20
Total		$422,452.84	$409,215.96

LIABILITIES
21	Husband	CBA home loan for Suburb F property ending …36	$46,698.52	$46,698.52
22	Husband	J Company loan for Motor Vehicle 1	$13,937.67	$13,937.67
23	Husband	CBA credit card account ending …54	Exclude	$3,830.78 (as at 05.07.2024)
24	Husband	Credit card (membership #...03)	Exclude	$1,393.39 (as at 05.07.2024)
25	Wife	NAB account #...31	Exclude	$605.11 (as at 27.12.2023)
26	Wife	NAB Visa account (card ending #...10)	Exclude	$2,393.79 (as at 15.01.2024)
27	Husband	ATO Deferred Debt regarding ART for financial year ended 30 June 2024	Exclude	$1,344.68
28	Husband	ATO Income Tax Debt	$82,797.69	$158,446.18
29	Husband	Notional PAYG (2024 FY)	Exclude	$5,813.00
Total		$143,433.88	$234,463.12

SUPERANNUATION
Member		Name of Fund	Type of Interest	Applicants value	Respondents value
30	Wife	Super Fund 1	Accumulation	$145,256.00	$145,256.00
31	Husband	Super Fund 2	Defined Benefit	$439,469.21	$439,469.21
32	Husband	Super Fund 2	Accumulation	$308,139.08	$308,139.08
Total		$892,864.29	$892,864.29

1. While the parties had the assets that remained in dispute at the time of trial are as follows:

   The Suburb F Property

2. The value of this property was agreed at $1,250,000 on the basis of a single expert valuation. It is now agreed however that this asset will be sold and the value will ultimately be the net proceeds of sale in accordance with the orders of 5 August 2024.

   The husband’s one quarter interest in a Business Partnership

3. There is $1,202 difference in the parties’ estimates. In closing submissions, the wife accepted the husband’s value.

   NAB account ending …64 and …85

4. I accept the wife’s estimates of value of her own accounts. She is in the best position to know and no evidence was provided that those values, as at the time of trial, were incorrect or any reason for the wife to be misleading as to the values, particularly given the small proportion of the asset pool that those funds form.

   Credit Cards

5. I do not propose to include debts incurred by the parties’ post separation in the asset pool. This is in circumstances where it is not suggested these debts fall within the category that should be considered an addback. Each party should be responsible for their own post separation debts as they are not debts of the relationship.

   ATO Debt

6. I am of the view that the tax liability post separation is the husband’s issue alone. I accept the wife’s submissions that as she has received no benefit from that income she should not share in the liability.

7. As regards the liability incurred during the relationship, I accept the submission that the amount included should be limited to the liability. The penalties and interest incurred by the husband for lodging his 2016 tax return eight years late should be his responsibility alone as the obligation to lodge individual tax returns lies with that person.

   Addbacks

8. The parties have each included in the joint balance sheet some figures that they respectively argue should or should not be added back into the asset pool. Addbacks are the exception rather than the rule; they are often sought but rarely granted. Where an addback is allowed the court will notionally add to the asset pool the value of an asset which no longer exists. Whether the court chooses to do so is a discretionary exercise.

9. In Omacini & Omacini (2005) FLC 93-218 at [30] the Full Court identified three clear categories where it may be appropriate to notionally add back assets that no longer exist to the pool of assets:

   (a)where the parties have expended money on legal fees;

   (b)where there has been a premature distribution of matrimonial assets; and

   (c)where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets or has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.

10. Normal living expenses and necessary costs do not usually fall within a category of acceptable addbacks. Parties are not expected to “go into a state of suspended economic animation” after separation,[13] and are “entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting on with their lives”.[14]

    [13] M & M [1998] FamCA 42

    [14] C & C [1998] FamCA 143 at [46]

11. The court will exercise its discretion to add back the value of assets or cash in exceptional cases where, in the particular circumstances of the case, justice and equity requires it. The key concept here is “exceptional” which carries its usual meaning; indicating something that is unusual or outstanding. In cases that are not exceptional, justice and equity can be achieved not by adding back, but rather by taking the matter up as a relevant s 75(2) factor. The Full Court has indicated that the latter course is technically more correct.[15]

    [15] Trevi & Trevi (2018) FLC 93-858 at [28]-[30]

12. It is common to add back funds expended by each party on legal fees and I intend to do so here, including the funds used by the husband to meet a costs order. It is safe to say that it is never the intention of a court when making a costs order that the payment of same should reduce the asset pool available for distribution between the parties.

13. There are however other proposed addbacks in dispute which I shall now consider.

    Insurance proceeds

14. In late 2021, the husband was involved in a car accident in Motor Vehicle 2 that formed part of the asset pool. In early 2022, the husband received a total of $10,400 in an insurance payout as a result of the accident.

15. I accept the husband’s evidence that the majority of those funds are in the pool already and that $2,200 was paid towards child support. The amount paid for child support should not have come out of the pool, however I see nothing “exceptional” about joint funds being used in this manner. It is regrettable, indeed in my view it is inappropriate, but hardly exceptional. I shall therefore not addback that amount.

    Funds withdrawn by the Husband from X’s account ending …18

16. The notes to the Joint Balance Sheet reflects each party’s position as to these funds as follows:

    The Husband’s position is that the sum of $7,706.00 (being the balance of [X]’s account as at the date of separation) should not be added back into the pool because the funds in that account were applied towards [X]’s expenses including [X]’s education, [X]’s extracurricular activity expenses, and other related expenses.  

    The wife’s case is that during the relationship the parties opened a CBA account in the child’s name and transferred funds into that account for the child’s future. It was intended to save funds for her future. The husband has unilaterally used those funds since separation to pay for [X]’s kindergarten fees. This was not the intention of the funds in the account, and the husband did not consult the wife with respect to him using the child’s funds to meet her kindergarten fees.

17. I accept the wife’s evidence that the husband has acted unilaterally and contrary to the intended use of those funds. But again I come back to the need to find something exceptional about the use of those funds which would support an addback. I am unable to do so and therefore exclude that amount also.

    Funds spent on legal fees (wife)

18. I accept the wife’s estimate of legal fees to be added back into the pool. There is about $5,000 difference in each party’s calculation and I accept that the wife is best placed to provide the correct figure.

    Quantum of Joint Funds spent on legal fees

19. The notes in the parties’ Joint Balance Sheet reflect as follows:

    It is the Husband’s position that the amount of funds spent by the Husband in legal fees noted in item 18 are calculated as follows:

    1.Total funds spent on legal fees as at 19 July 2024 totals $250,143.00 (inclusive of the costs orders paid by the Husband).

    2.Minus the costs order paid to the Wife in the sum $30,060.00, given it is included as a separate addback at item 19.

    3.Minus the drawings made by the Husband in the sum of $46,698.52 from the mortgage over the [Suburb F] property, given it is included as a separate addback at item 15.  

    4.Minus the funds received by the Husband from the sale of a portion of his [G Company] shareholding in the sum of $160,067.20, given it is included as a separate addback at item 20.

20. I accept that calculation, noting that it was not challenged by the wife.

    Sale of Shares

21. Whilst the parties agree as to the quantum of the amount sold on shares and it is included by both parties in the Joint Balance Sheet as an addback, I will briefly touch on this consideration.

22. I support the addback on the basis that I am of the view that to reduce the asset pool by $160,067.20 is extraordinary. Although the husband gives evidence that was to meet expenses this was not traversed in evidence and I have considered that the wife has had to pay her own expenses post separation including rent while the father remained in the Suburb F property. In those circumstances, I am of the view that the addback is justified.

    The Asset Pool Available for Distribution

23. Based on the findings that I have made the following asset pool is available for distribution between the parties:

Ownership	Description	Value
ASSETS
1	Joint	E Street, Suburb F	Net proceeds of sale – sale price estimated at trial as $1,250,000.00 less expenses and mortgage as per orders of 5 August 2024
2	Husband	¼ Interest in D Partnership	$700,000.00
3	Husband	Motor Vehicle 1	$44,500.00
4	Husband	G Company share portfolio ending …17	$378,319.42
5	Wife	H Company shares – … shares	$5,005.00
6	Wife	NAB account ending …64	$1,050.00
7	Wife	NAB account ending …85	$55,000.00
8	Husband	CBA account ending …24	$23,261.10
9	Husband	CBA account ending …93	$14,864.78
10	Husband	CBA account ending …65	$0.00
11	Husband	Funds held in the Trust Account of Waller Family Lawyers (anticipated legal fees & counsel’s fees)	$80,000.00
12	Wife	Funds held in the Trust Account of Simonidis Steel Lawyers (anticipates legal fees & counsel’s fees)	$14,017.14
Total		$2,566,017.44

ADDBACKS
13	Husband	Insurance proceeds from accident in Motor Vehicle 2	Excluded
14	Husband	Funds withdrawn by Husband from X’s account ending …18	Excluded
15	Husband	Funds drawn against the home loan account ending …36 (conceded to be applied to legal fees)	$46,698.52
17	Wife	Funds spent on legal fees from savings	$154,203.84
18	Husband	Funds spent on legal fees	$13,317.28
19	Husband	Costs Order made against the Husband paid from sale of shares	$30,060.00
20	Husband	Shares sold from share portfolio ending …17 and applied towards expenses	$160,067.20
Total		$404,346.84

LIABILITIES
21	Husband	CBA home loan for Suburb F property ending …36	To be paid out on sale of the property
22	Husband	J Company loan for Motor Vehicle 1	$13,937.67
23	Husband	CBA credit card account ending …54	Exclude
24	Husband	Credit card (membership #...03)	Exclude
25	Wife	NAB credit account #...31	Exclude
26	Wife	NAB Visa account (card ending #...10)	Exclude
27	Husband	ATO Deferred Debt regarding ART for financial year ended 30 June 2024	Exclude
28	Husband	ATO Income Tax Debt	$82,797.69
29	Husband	Notional PAYG (2024 FY)	Exclude
Total		$96,735.36

SUPER
Member		Name of Fund	Type of Interest	Value
30	Wife	Super Fund 1	Accumulation	$145,256.00
31	Husband	Super Fund 2	Defined Benefit	$439,469.21
32	Husband	Super Fund 2	Accumulation	$308,139.08
Total		$892,864.29

1. I have used the valuation of the Suburb F property as the net proceeds of sale for the purposes of ascertaining the asset pool and subsequently for the exercise of reviewing what each party will receive from the asset pool in dollar terms. I acknowledge that it will not be perfect as I do not know the actual sale price or related expenses, however it will give a good sense of the final outcome.

2. So turning back to the asset pool, having made those findings and determinations, that leaves a total asset pool to the value of $3,766,493.21[16] of which $2,873,628.92 consists of non-super assets and $892,864.29 in super, noting that one fund is a defined benefit fund.

   [16] Having deducted the mortgage and used $1,250,000 as net proceeds of sale of Suburb F

   Determining the Approach

3. The parties were married and commenced living together in 2014. They separated in October 2020. That was a relationship of some six years, which is a relatively short-term relationship. The husband’s initial contributions far exceeded those of the wife. Against that I have considered that they had one child together, they opened joint bank accounts, the husband sold the real estate he owned at the commencement of the relationship, he purchased the wife’s stepfather’s half share in the Suburb F property, they purchased cars together and the wife received a significant inheritance during the relationship. Both parties worked and contributed financially to the relationship. In those circumstances, I am satisfied that a global approach to property division is appropriate

   Determining whether it is just and equitable to make Orders

4. I am satisfied that it is just and equitable to make orders in this matter for the following reasons:

   ·I have again considered the factors which persuaded me to a global approach;

   ·The value of assets held at the commencement appears to have increased in value during the relationship – particularly the Suburb F property, a half share of which the wife brought into the relationship; and

   ·Of the non-super assets, if matters remain as they stand the husband would retain about 73% of those assets[17]. He currently holds about 84% of their super interests. Whilst he had the greater initial contribution and this was a short-term relationship, they had a child and jointly purchased assets and the wife received a significant inheritance.

   [17] Net assets held by husband = $2,766,961.29, including $625,000 as net proceeds of sale of Suburb F

5. In those circumstances I am satisfied that it is just and equitable for an adjustment of the parties’ assets, liabilities and financial resources to occur.  

   Evaluation of s 79(4) - Contribution Issues

6. I have considered the issue of contributions and in doing so reviewed again the parties’ affidavits, their evidence under cross-examination and documents tendered. The significant factors that I have considered are set out below.

7. I am satisfied that the husband’s initial contributions were to a total value of about $1,419,293.63. I am satisfied that the wife’s initial contributions were valued at about $460,000. The husband’s initial contributions were therefore about three times greater than those of the wife.

8. The husband worked full-time throughout the relationship and in addition received an income from his business interest. The wife worked until shortly before the birth of the child and returned to casual work in early 2020. The mother was the primary carer for the child and attended to the majority of household tasks, though she concedes some contributions by the husband.

9. Overall during the relationship I am satisfied that the wife made the greater non-financial contributions in the form of childcare and home duties, while the husband made the greater financial contributions in the form of income.

10. In 2014 the husband purchased the other half share of the Suburb F property from the wife’s stepfather.

11. In mid-2016 the husband sold the land he owned at the commencement of the relationship for $531,000. Those funds were contributed to the mortgage over the Suburb F property and the balance paid into an account in the husband’s sole name.

12. In 2018 the wife received an inheritance and a gift to the value of about $112,240.88.

13. I am satisfied that post separation the husband used a small amount of joint funds, being part of the insurance payout for the car, to pay child support. I am also satisfied that he unilaterally accessed the child’s bank account of $7,706 for his personal use. I do not accept that because he applied all or part of this to child related expense this is an irrelevant factor.

14. I have considered that the parties were separated for almost four years by the time of trial. During that time the wife was the primary carer for X, noting the child’s young age at separation. Post-separation the husband remained living in the Suburb F property. At the time of separation the mortgage was minimal. The wife on the other hand had to pay rent on a home for herself and the child, giving unchallenged evidence of having paid $126,856 by way of rent. She received financial assistance from her brother.

15. The husband was assessed to pay child support. Until December 2023 the husband paid child support of about $320 per week. At the time of trial the child support was assessed at about $68 per week. The wife concedes that in addition the husband paid school fees and medical insurance costs. As of April 2023, the parties shared equally in X’s therapist costs – noting that prior to that date the wife met those fees.

16. Having considered those matters I find that the contributions are 55:45 in the husband’s favour.

    Evaluation of s 75(2) factors – Future Needs

17. The husband is five years older than the wife. Both parties are in good health.

18. The husband lost his job as a public servant in late 2023. He then commenced employment as a professional in early 2024 working on a casual basis. His evidence is that his income varies. The Financial Statement reflects an estimated income of $850 per week consisting of $150 estimated salary and $700 estimated business income. He gives evidence of actively seeking alternative employment.

1. The wife’s evidence is that she works in a family business. Her weekly income is reported to be $1,317 consisting of $1,249 in salary and $68 in child support. Prior to the husband losing his job in late 2023, his evidence was that he was assessed to pay $320 per week.

2. The wife is the primary carer for X.

3. The husband continues to pay child support at what can only be regarded as a minimal amount and is significantly in arrears – about three months. He has, however, also paid school fees and private medical insurance. That may however change in the event that he is successful at obtaining better paid work.

4. Having considered all of those circumstances I make a five percent adjustment in favour of the wife.

   Just and Equitable

5. The overall distribution that I am considering is an equal division of the asset pool.

6. If calculations are based on the net proceeds of the sale of the Suburb F Property at $1,250,000.00, then that provides for each party to receive roughly $1,883,246.60, being half of $3,766,493.21[18]. Of that amount the wife holds super to the value of $145,256.00 and assets and addbacks of $229,275.98, excluding her share of the Suburb F property. That is a total of assets, addbacks and super in the wife’s possession to the value of $374,531.98. That requires a cash or other asset adjustment in her favour of $1,508,714.62.

   [18] This includes the estimated net sale proceeds for the Suburb F property as above, such that all calculations here are based on that figure

7. If the half share of the estimated net value of the Suburb F property is included, then the wife retains assets, addbacks, liabilities and super in her possession and control totalling $999,531.98, of which $145,256 is super leaving $854,275.98 of non-super assets, including the addback for legal fees. If we exclude the Suburb F property from the calculations and deal only with what the wife has in hand, leaving the Suburb F property as part of the proceeds for distribution, then the wife has in her possession and control assets to the value of $374,531.98[19]

   [19] $999,531.98 - $625,000 (with $625,000 being the notional half share of the Suburb F property)

8. Of the asset pool the husband currently has assets, addbacks, liabilities and super in his possession and control totalling $2,766,961.29 of which $747,608.29 is super, leaving $2,019,353 of non-super assets, including the half share of the estimated net value of the Suburb F property.

9. On my calculations, if the net proceeds of sale of the Suburb F property are $1,250,000, then there must be an adjustment to the wife in the sum of $1,508,714.62 to reach the 50% division. Neither party proposes that there be a super split. Based on net proceeds of sale of $1,250,000 for the Suburb F property, these calculations reflect that there will likely not be enough to ensure a 50% division to the wife from the sale; there will be a shortfall of about $260,000.

10. One of the assets to be retained by the husband is his interest in a business valued at $700,000 from which he receives a regular income. The court is reluctant to require the sale of an income producing asset without turning first to other sources. The husband holds other readily realisable assets including $80,000 in a solicitor’s trust account, funds in bank accounts and shares valued at $378,319.42. I am satisfied that he has the capacity to pay any shortfall.

11. Having considered those matters I am satisfied that the proposed division of assets is just and equitable in the circumstances of this case.

12. I propose to make orders in general terms as sought by the wife, with the adjustment to a 50% division. I do not, however, propose to make any restraints. While the court has a broad power to make such injunctions, the wife must satisfy the court that they are reasonably necessary. It is accepted that post-separation the husband cashed in shares and drew down against the home loan, however those funds have been accounted for, in terms of legal fees and expenses, and added back into the pool. I am not satisfied that there is persuasive evidence that he was attempting to defeat the jurisdiction of this court, and will therefore not make the restraints sought.

13. I do not propose to make orders for the sale of the husband’s business as it is unknown whether further funds will be required over and above the sale of the shares and any cash resources. I also do not propose to make orders which simply confirm legal rights to file enforcement proceedings in the event of non-compliance. If full payment is not achievable through the orders that I now make, then the wife has the option to file enforcement proceedings.

14. Although the sale of the shares is court ordered to allow a clear pathway forward, in the event that the husband is able to pay the cash amount required to achieve the equal division of assets from other sources, then the parties are able to agree a variation to the orders to that effect.

    DETERMINATION - CHILD SUPPORT

    Orders Sought

15. The mother proposes that in accordance with s 124(1) of the Child Support (Assessment) Act 1989 (“the CSAA”), the father pay:

    (a)100% of the educational expenses for the child and that the annual rate of child support is not reduced as a consequence of that order.

    (b)50% of the child’s medical, pharmaceutical and health expenses inclusive of the expenses of psychiatry, psychology, general medicine, dietetics, nutrition and pharmaceuticals and again that the annual rate of child support not be reduced.

    (c)100% of the child’s private health insurance and that the annual rate of child support payable by the father not be reduced as a consequence.

16. The mother proposes that the father pay those amounts directly to the school or service provider but in the event that an expense is paid by the mother, she proposes that the father reimburse her within two days of receiving a receipt.

17. The father proposes that pursuant to Division 4 Part 7 of the CSAA there be no departure from the administrative assessment of non-periodic child support relating to X.

    Legal Principles

18. An application may be brought pursuant to s116 of the CSAA by a carer entitled to child support under special circumstances. Section 117 of the CSAA sets out matters about which a court must be satisfied before making a child support departure order.

19. The Full Court in Gyselman and Gyselman (1992) FLC 92-279 remains good law. The Full Court provides a process to be followed before making a departure order pursuant to s 117 of the CSAA:[20]

    Section 117(1)(b) identifies a clear three-step process:

    1. Whether one or more grounds of departure in s 117(2) is established.

    If so:

    2.Whether it is “just and equitable” within the meaning of s 117(4) to make a particular order.

    3.Whether it is “otherwise proper” within the meaning of s 117(5) to make a particular order.

    [20] Gyselman and Gyselman (1992) FLC 92-279 at 79,064

    Consideration and Determination

20. As a preliminary issue, this court needs to be satisfied of two things. First there must be an application in this court and secondly the court must be satisfied “it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case”.[21]

    [21] S116(1)(b) of the Assessment Act – my emphasis

21. Clearly the jurisdiction of the court is enlivened as both parents are parties to proceedings in this court. That is the simple part of the process. But the second limb is less clear. I have no doubt that most liable parents in a situation where an increase or added obligation is sought would very firmly say that it is not in their “interest” for the court to consider the matter.

22. Turning then to the case law, Riethmuller FM (as he then was) considered the issue of the “interest” of the parties in Bagala & Bagala [2009] FMCAfam 953. His Honour is of the opinion that s116(1)(b)(ii) gives the court a discretion to allow the application.[22] In doing so His Honour refers to the objects of the CSAA set out in s 4 and further comments:[23]

    Section 4(2)(c) of the Act seeks to have child support matters settled without recourse to the Courts, thus avoiding needless expense for the parties and using court resources that might otherwise be utilised. There have been two sets of significant amendments to the scheme, each further advancing the object of providing an inexpensive administrative system for review of child support assessments…All of these changes were driven by considerations of access to justice, and the reality that the costs of legal proceedings are almost invariably greater than the amount of money in dispute in child support cases, placing great hardship on applicants and undue pressure on respondents to settle to avoid the disproportionate costs of litigation. Thus, a well developed informal administrative system has been developed.[24]

    [22] At [18]

    [23] At [20]

    [24] [2009] FMCAfam 953; (2009) FLC 98-043 at [20]

23. This aspect of the applications before the court was not the focus of any significant cross examination such that I turn to the parties’ material for assistance. The parties’ Financial Statements were in a large part unchallenged. Despite this being a matter where a Departure Order is sought, the father has failed to complete Part N of his Financial Statement. Thus the court has but rudimentary information as to his expenses. His evidence is that his expenses exceed his income.

24. There are however a number of matters which are clear or undisputed on the evidence.

25. Until the father lost his job in late 2023 he was paying $320 per week in child support. He now pays $68 per week.

26. Until that point the father’s income was significantly greater than that of the mother who is working casually in a relative’s business and earns about $1,317 per week, with her expenses far exceeding that amount, being estimated at $1,895.

27. The father did not resign his well-paying employment but rather was terminated against his wishes. Indeed the evidence is that he fought hard to retain his employment.

28. The father is actively job hunting but in the meantime is in casual employment which does not pay as well as his previous long term employment.

29. The mother’s unchallenged evidence is that at the time of swearing her trial affidavit there were child support arrears of $778.21. That is over 11 weeks, almost three months, where child support has not been paid by the father.

30. Setting aside the issue of admissibility of informal agreements, I place no weight on the mother’s evidence as to the parties’ intentions in October 2022, as at that time the father was in full-time and well paid employment. His circumstances have changed.

31. It appears that the mother seeks the court make some adverse finding about the father on the basis that he has behaved in a way which led to the termination of his employment. I decline to do so. I simply know nothing of the details of his alleged conduct and, even if I did, I am uncertain how that could inform a child support departure application. Often the court is looking at someone who has deliberately reduced their income to reduce their child support obligations, but that is not argued here.

32. The mother’s own evidence is that the father has paid the following child related expenses:

    (a)he met the child’s school fees in full in 2023 and had paid the fees for Terms 1 & 2 in 2024 when this matter proceeded to trial in July 2024;

    (b)he has met the private health insurance costs for the child and herself since separation; and

    (c)he has paid half the cost of the child’s therapy since April 2023.

33. The mother has paid all other expenses for the child including all therapy expenses before April 2023 and half since then, and all medical, pharmaceutical and health expenses for X. She also pays for music lessons, fortnightly tutoring and will soon also be paying for extracurricular lessons and OT costs.

34. The father’s evidence is that he cannot afford what the mother seeks and that he will be unable to continue to pay the education fees in full.

35. Having considered those matters it does not appear to me that the mother has established that a Departure Order is in the interest of both parties. In the event that the father obtains better paying employment, which he is actively seeking, the child support assessment will increase.

36. Setting aside the shameful arrears in child support, the father has shown a willingness to contribute to additional expenses when he can afford to do so. I am satisfied that the matter can safely be left in the hands of the Child Support Agency to assess the proper amounts payable in accordance with the legislative equations, and to enforce that payment.

37. In the event that I am wrong about that I have turned my mind to s117 of the CSAA. I am unable to ascertain that the mother has satisfied any of the criteria in s117(2). This is not a special needs child, there are no high level of child expenses argued, no duty to maintain self or another child or others which rears its head, no high cost of contact argued or the like. It is pure and simple that the mother wants and indeed likely needs more money from the father to be able to pay for the advantages they both would like to give their child – such as private school, music lessons and tutoring.

38. I am satisfied that both parties wish those things for their child however the father’s employment has been lost. Perhaps due to his own conduct but very much against his wishes. Unfortunately at the current time he just cannot afford what the mother seeks and what he wants to give their child, but to some extent (and I am not forgetting those arrears) he has done what he can.

39. Therefore I am not satisfied that it is just and equitable or otherwise proper to make the orders sought by the mother.

    CONCLUSION

40. I am satisfied that the orders made regarding X are in her best interests.

41. I am satisfied that the property Orders are just and equitable.

42. I am satisfied that the application for a Child Support Departure Order should be dismissed.

I certify that the preceding two hundred and thirty (230) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope.

Associate:

Dated:       29 January 2025

ASSET POOL – ANNEXURE ‘A’ TO FINAL ORDERS:

Ownership	Description	Value
ASSETS
1	Joint	E Street, Suburb F	Net proceeds of sale after compliance with orders of 5 August 2024
2	Husband	¼ Interest in D Partnership	$700,000.00
3	Husband	Motor Vehicle 1	$44,500.00
4	Husband	G Company share portfolio ending …17	$378,319.42
5	Wife	H Company shares – … shares	$5,005.00
6	Wife	NAB account ending …64	$1,050.00
7	Wife	NAB account ending …85	$55,000.00
8	Husband	CBA account ending …24	$23,261.10
9	Husband	CBA account ending …93	$14,864.78
10	Husband	CBA account ending …65	$0.00
11	Husband	Funds held in the Trust Account of Waller Family Lawyers (anticipated legal fees & counsel’s fees)	$80,000.00
12	Wife	Funds held in the Trust Account of Simonidis Steel Lawyers (anticipates legal fees & counsel’s fees)	$14,017.14
Total Assets		$1,306,017.44 plus value of item (1) above

ADDBACKS
13	Husband	Insurance proceeds from accident in Motor Vehicle 2	Excluded
14	Husband	Funds withdrawn by Husband from X’s account ending …18	Excluded
15	Husband	Funds drawn against the home loan account ending …36 (conceded to be applied to legal fees)	$46,698.52
17	Wife	Funds spent on legal fees from savings	$154,203.84
18	Husband	Funds spent on legal fees	$13,317.28
19	Husband	Costs Order made against the Husband paid from sale of shares	$30,060.00
20	Husband	Shares sold from share portfolio ending …17 and applied towards expenses	$160,067.20
Total Addbacks		$404,346.84     ​

LIABILITIES
21	Husband	CBA home loan for Suburb F property ending …36	Taken into account at item (1)
22	Husband	J Company loan for Motor Vehicle 1	$13,937.67
23	Husband	CBA credit card account ending …54	Exclude
24	Husband	Credit card (membership #...03)	Exclude
25	Wife	NAB credit card account #...31	Exclude
26	Wife	NAB Visa account (card ending #...10)	Exclude
27	Husband	ATO Deferred Debt regarding ART for financial year ended 30 June 2024	Exclude
28	Husband	ATO Income Tax Debt	$82,797.69
29	Husband	Notional PAYG (2024 FY)	Exclude
Total Liabilities		$96,735.36

SUPER
Member			Name of Fund	Type of Interest	Value
30	Wife		Super Fund 1	Accumulation	$145,256.00
31	Husband		Super Fund 2	Defined Benefit	$439,469.21
32	Husband		Super Fund 2	Accumulation	$308,139.08
Total Super		$892,864.29