Duncombe & Duncombe
[2025] FedCFamC2F 438
•4 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Duncombe & Duncombe [2025] FedCFamC2F 438
File number(s): NCC 3300 of 2021 Judgment of: JUDGE BETTS Date of judgment: 4 April 2025 Catchwords: FAMILY LAW – Parenting – two subject children, aged 16 and 11 – where the children have been exposed to the parental conflict – where the father has had a relatively limited involvement in the children’s lives – where the disputed parenting orders are limited – best interests of the children.
FAMILY LAW – Property – net matrimonial assets worth a little over $4M – where each party seeks to retain 60% of the net non-superannuation property – where the wife seeks to retain 60% of the combined superannuation and the husband seeks that it be equalised – where the Court must weigh up each party’s contributions and their future needs – just and equitable outcome.
Legislation: Family Law Act 1975 (Cwlth), Part VII and Part VIII Cases cited: Zubcic & Zubcic [2019] FamCAFC 168 Division: Division 2 Family Law Number of paragraphs: 223 Date of last submission/s: 11 October 2025 Date of hearing: 24, 25 and 26 July 2024 and 11 October 2024 Place: Newcastle Counsel for the Applicant: Ms Hamilton Solicitors for the Applicant: Peter Hamilton & Associates Counsel for the Respondent: Mr Bithrey Solicitors for the Respondent: Lucy Urach & Associates
Table of Corrections 25 August 2025 In paragraph 215 the word “mendacious” has been replaced with “mean” to properly reflect what his Honour had meant to say. ORDERS
NCC 3300 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DUNCOMBE
Applicant
AND: MR DUNCOMBE
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
4 APRIL 2025
THE COURT ORDERS THAT:
PARENTING
1.By consent, the children X (born in 2008) and Y (born in 2013) live with the Mother.
2.That the Mother have sole authority to make major long-term decisions in relation to the children. She is to notify the Father in writing within fourteen (14) days of making any decisions. For the purposes of these orders, “writing” includes by email, text, letter or by message sent via an agreed Parenting App.
3.That X spend time with the Father as agreed between the parties in writing, but failing agreement on each alternate weekend from 5.00pm Friday until 5.00pm Sunday.
4.That Y spend time with the Father as agreed between the parties in writing, but failing agreement on each alternate weekend from after dancing Saturday until 5.00pm Sunday. On any weekend where Y does not have dancing on Saturday morning, the alternate weekends will begin:
(a)in 2025 - at 9.00am Saturday; and
(b)from Term 3 in 2026 onwards – at 5.00pm Friday night.
5.Whenever X is in the Father’s care, he:
(a)is to take X to all of her employment commitments;
(b)is restrained from leaving X unsupervised for a period greater than 3 hours.
6.The Father will take Y to all of her dancing commitments that occur on a Sunday when Y is spending time with him. In the event that he does not wish to take Y to these dancing commitments, then he is to deliver Y back to the Mother’s residence prior to the dance commitments on the Sunday and with sufficient time to enable the Mother to take Y to these dancing commitments.
7.The Father is restrained from consuming alcohol twelve (12) hours prior to, or during, any period of time when either of the children are in his care.
8.The implementation of the Father’s time with X and Y is to occur as follows:
(a)by the Father collecting X from the Mother’s residence on Friday afternoon;
(b)in the event that Y is required to dance on Saturday, by the Father collecting Y from dance at the conclusion of her dancing. In the event that Y does not have dance on Saturday, the Father is to collect Y from the Mother’s residence at 9.00am Saturday up until Term 3 in 2026 from which time he is to collect her at 5.00pm Friday;
(c)by the Father returning X and Y to the Mother’s residence at 5.00pm on Sunday, provided always, that if Y is required to dance on Sunday, the Father will deliver Y to dance no later than 15 minutes prior to the start time or alternatively, if he does not wish to take Y to these dancing commitments, then he is to deliver Y back to the Mother’s residence prior to the dance commitments on the Sunday and with sufficient time to enable the Mother to take Y to these dancing commitments.
PROPERTY ORDERS:
9.That within forty-two (42) days from the date of these Orders, both parties take all necessary steps and execute all necessary documents to cause the property situated at B Street, Suburb D in the State of New South Wales ('the Suburb D property') and being the whole of the land in title reference … to be sold by private treaty and the following shall apply:
(a)The property shall be listed with any such real estate agent as agreed in writing between the parties and failing agreement within fourteen (14) days then the Applicant Wife shall promptly nominate three (3) real estate agents, and the Respondent Husband shall choose one.
(b)The property shall be listed at a sale price to be agreed on between the parties and failing such agreement to be determined by the proper officer of the Real Estate Institute or their nominee.
(c)The parties are to co-operate in every way with all reasonable directions and requests by the real estate agent with respect to marketing the property for sale, including doing all acts and things to ensure the keys are readily available and allowing inspections at all times reasonably requested by the agents.
(d)The parties shall ensure the property, and its surrounds are maintained in neat and tidy condition at the time of any inspections and shall not anything to hinder or prevent a sale being affected.
(e)Within twenty-one (21) days of agreement being reached for the sale of the property, the parties shall execute the contract for sale and all documents necessary to complete the sale of the property.
(f)The sale proceeds shall be disbursed in the following manner and priority:
(i)Payment of agent’s commission and advertising expenses and legal expenses of the sale;
(ii)Payment of any money due and owing to the mortgagee;
(iii)The Respondent Husband to receive such amount from the leftover sum as results in him retaining 44% overall of the net non-superannuation property calculated in accordance with the attached Balance Sheet, and for this purpose the amount of the leftover sum is to be substituted for the figures in Items 1, 23 and 26 of the Balance Sheet;
(iv)The remainder to the Applicant Wife.
10.That prior to the Suburb D property being listed for private sale in accordance with Order 9 herein:
(a)The parties shall consult with the appointed Agent as to any recommended repairs /maintenance that should be undertaken to maximise the sale price.
(b)The parties will arrange appropriate tradespersons to undertake such works as agreed between the parties;
(c)In the event that tradespersons are to be engaged, the Respondent Husband shall provide to the Applicant Wife three (3) quotes for any such tradespersons and the Applicant Wife shall nominate one of the tradespersons; and
(d)The parties will equally share the costs of any repairs or works to prepare the property for sale.
11.In the event that the Suburb D property fails to be sold by private treaty within a period of three (3) months from the date of listing, then each party take all necessary steps and execute all necessary documents to cause the said property to be sold by auction at the earliest possible date and the following shall apply:
(a)The property shall be listed with any such real estate agent/auctioneer as agreed in writing between the parties and failing agreement, then within fourteen (14) days then the Applicant Wife shall promptly nominate three (3) real estate agents/auctioneers, and the Respondent Husband shall select one.
(b)The property shall be listed at a such a reserve price to be agreed on between the parties and failing such agreement, the reserve price is to be determined by the Auctioneer/agent with carriage of the auction.
(c)The parties are to co-operate in every way with all reasonable directions and requests by the real estate agent/auctioneer with respect to marketing the property for sale, including doing all acts and things to ensure the keys are readily available and allowing inspections at all times reasonably requested by the agents.
(d)The parties shall ensure the property, and its surrounds are maintained in a clean, neat and tidy condition at the time of any inspection and on the day of auction and shall not do or say anything to hinder or prevent a sale being affected.
(e)Both parties are permitted to bid at the auction.
(f)The parties shall attend the auction and negotiate with the highest bidder in the event the reserve price is not reached.
(g)The sale price of the property shall be any amount in excess of the reserve price but in the event of the reserve price not being reached the parties may negotiate with the highest bidders or any other interested person and subject to the parties’ agreement the parties may accept a price which is not more than 2.5% below the reserve price.
(h)Upon sale of the property, the parties shall execute the contract for sale and all documents necessary to complete the sale of the property.
(i)The sale proceeds shall be disbursed in the following manner and priority:
(i)payment of agent’s / auctioneer’s commission and advertising expenses and legal expenses of the sale;
(ii)payment of any money due and owing to the mortgagee;
(iii)The Respondent Husband to receive such amount from the leftover sum as results in him retaining 44% overall of the net non-superannuation property calculated in accordance with the attached Balance Sheet, and for this purpose the amount of the leftover sum is to be substituted for the figures in Items 1, 23 and 26 of the Balance Sheet;
(iv)the remainder to the Applicant Wife.
12.That on or before completion of the sale of the property the Applicant Wife will provide vacant possession, remove all items not included in the sale and ensure that the property is left in a clean and tidy condition, having regard to its condition at the time of marketing the property for sale.
13.That within thirty (30) days from the date these Orders, the parties shall do all acts and things to cause the sale proceeds held in the Trust Account of Hamilton Legal Services Pty Ltd, trading as Peter Hamilton & Associates Lawyers, from the sale of the property situated at C Street, Suburb E in the State of New South Wales being the whole land contained in title folio identifier … ('the Suburb E property') to be disbursed in the following manner and priority:
(a)The Respondent Husband to receive 44%;
(b)The remainder to the Applicant Wife.
14.Within fourteen (14) days from the date of these Orders, in accordance s90XT(1)(b) of the Family Law Act 1975, the Trustee of Super Fund 1 (‘the Fund’) shall do all acts and things and sign all documents necessary and give all consents to ensure that:
(a)the Respondent Husband is paid the specified percentage, being 100%, of the Applicant Wife’s interest in the Fund; and
(b)the Applicant Wife’s entitlement in the fund in correspondingly reduced.
15.Simultaneous to Order 14 herein the Trustee of the Fund, shall do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the Respondent Husband in accordance with Order 14; and
(b)pay the respective entitlements out of the Applicant Wife’s interest in the Fund.
16.In accordance with s90XT(1)(b) of the Family Law Act 1975, the Trustee of Super Fund 1 (‘the Fund’) shall do all acts and things and sign all documents necessary and give all consents to ensure that:
(a)the Applicant Wife is paid the specified percentage, being 60%, of the Respondent Husband’s interest in the Fund; and
(b)the Respondent Husband’s entitlement in the fund in correspondingly reduced.
17.Simultaneous to Order 16 herein the Trustee of the Fund, shall do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the Applicant Wife in accordance with Order 16; and
(b)pay the respective entitlements out of the Respondent Husband’s interest in the Fund.
18.That Orders 14 and 15 (inclusive) of these Orders have effect from the Respondent Husband’s operative time and Orders 16 to 17 (inclusive) of these Orders have effect from the Applicant Wife’s operative time, with the operative times operating as follows:
(a)first, the Respondent Husband’s operative time operates being the date of transfer of the transferable benefits from the Applicant Wife’s superannuation entitlement to the Respondent Husband’s superannuation entitlement; and
(b)second, and immediately following the commencement of the Respondent Husband’s operative time, the Applicant Wife’s operative time operates in relation to the transfer of the transferable benefits from the Respondent Husband’s superannuation entitlement to the Applicant Wife’s superannuation entitlement.
19.That, after service by the trustee of the payment split notice pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994 the Applicant Wife shall do all such acts and things and sign all such documents as may be necessary, including but not limited to, exercising her request pursuant to r.7A.06 of the Superannuation Industry (Supervision) Regulations 1994 for the transfer of the Applicant Wife’s transferable benefits from the Fund to a regulated fund of the wife’s choosing (“the Applicant Wife’s new super fund”).
20.That following the receipt by the Trustee of the election made by the Applicant Wife as contemplated by Order 19, the Trustee of the Fund shall cause a meeting to be held in accordance with Rules of the Superannuation Fund Trust Deed of the Fund and in that meeting shall:
(a)note the amount of the Applicant Wife’s transferable benefits;
(b)authorise the transfer of the transferable benefits to the Applicant Wife’s new super fund; and
(c)authorise the consolidation of the Respondent Husband’s superannuation interest in the Fund.
21.Within forty-eight (48) hours of the Applicant Wife being informed of the Trustee giving effect to Order 16 herein, the Applicant Wife shall:
(a)Tender her resignation as director of the trustee;
(b)Transfer to the Respondent Husband all her shares in the trust; and
(c)Resign as a member of the Fund.
22.Within twenty-one (21) days from the date of these Orders, the parties do all acts and things necessary to close the Westpac Account ending #...23 with the balances of said accounts to be divided 56% to the Applicant Wife and 44% to the Respondent Husband.
23.From the date of these Orders and unless otherwise specified in this Order except for the purposes of enforcing payment of any money due under these or any subsequent Orders:
(a)Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at this date including any jewellery, furniture, furnishings, shares and motor vehicles.
(b)Moneys standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held.
(c)Each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other.
(d)The party in whose name any such policy of superannuation or insurance stand shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other.
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order.
24.That:
(a)Each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of this Order within fourteen (14) days of being requested to do so.
(b)If either party refuses or neglect to sign or execute and return a document within fourteen (14) days of a written request to do so, then a Judicial Registrar of the Federal Circuit and Family Court of Australia (Division 2) at Newcastle is hereby appointed under Section 106A of the Family Law Act1975 to sign or execute such document on behalf of the party upon lodgement of such document and the filing of an Affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.
(c)A defaulting party shall pay the other party’s taxed costs of and incidental to such request and production of documents to the Judicial Registrar.
25.Within twenty-eight (28) days, the parties have general liberty to apply as to the form of the orders and must file any costs application they intend to bring.
NOTATION:
A.The parties reached a consent position in August 2024 which resulted in an interim property distribution to each of them of $51,108.50. It was agreed by the parties at the time that such interim payment would form a partial property settlement. The current monies standing in the Trust Account of Peter Hamilton & Associates Lawyers, from the sale of the Suburb E Property is $38,763.67.
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 BETTS
INTRODUCTION:
These are parenting and property settlement proceedings arising out of the breakdown of the marriage between Ms Duncombe (“the wife”) and Mr Duncombe (“the husband”).
The parties commenced cohabitation in 2000 and married in 2004. Their relationship seems to have been rather unhappy and ultimately it ended on either 1 August 2019 (husband’s version) or 6 January 2020 (wife’s version). On balance I prefer the wife’s version as it coincides with a major argument the parties had when the wife found out that the husband was seeing another woman. To be clear, I make no adverse credit findings about this as I accept that from his perspective the husband already thought the relationship was over. In any event the exact separation date does not much matter as the parties stayed living together in highly acrimonious circumstances right up until 1 August 2022 when the husband finally moved out.
There are three (3) children of the marriage:
(a)Mr F born in 2006 who is 18, shortly turning 19. Mr F has been diagnosed with high functioning autism, ADHD, anxiety and depression - at times with suicidal ideation. Mr F found mainstream schooling too difficult, leaving high school in 2022 and instead studying for his HSC through an alternative school. Mr F has participated in the NDIS Scheme for many years;
(b)X born in 2008 who is 16 years old. X has been diagnosed with depression and anxiety and has had associated school refusal and social issues. X has been prescribed Zoloft. She is presently in Year 11 at G School in City H and has a weekend retail job;
(c)Y born in 2013 who is 11 years old and in good health. Y is presently in Year 6 at J School in City H. Her primary passion is dance, in which she has won awards, but she is also involved in other sporting activities.
Mr F, X and Y all live with the wife in the former matrimonial home at Suburb D. Mr F and the husband are estranged and do not communicate but as Mr F is an adult he is not part of the parenting proceedings. Parenting orders are only sought for X and Y.
Pursuant to interim consent orders of 24 May 2022, once he moved out of the home the husband was to spend time with all three children on alternate weekends from 9am to 5pm Saturdays and Sundays. But he lost his licence for high range drink driving within a week or so of moving out and so initially he didn’t see the children at all for about 3 weeks. He then started seeing the children from 9am to 5pm on alternate Sundays only, arranging for an Uber to transport them to and from his rental home.
By December 2022 Mr F had stopped visiting the husband and they have spent no physical time together since.
When the husband got his licence back in March 2023 he briefly saw both girls again in accordance with the interim orders. But following a car accident in April 2023 he dropped the time back to alternate Sundays and within a few weeks Y had stopped going.
At X’s request, after the husband got himself a new car in June 2023 the wife let X stay overnight with the husband on her alternate weekends from 9am Saturday until 5pm Sunday. X later obtained a weekend job which involved working most Saturdays in which case the husband would collect X from work at 3pm instead.
In about March 2024 Y again started spending time with the husband on a Friday night each month from 7pm until around 8.30pm or 9pm with the wife dropping her off at his home and waiting outside in her car.
The parenting arrangements in [8] & [9] above were in force at the date of the hearing. That is, since the husband moved out of the home X had never spent a ‘full’ alternate weekend with him (ie. from Friday to Sunday) and Y had not spent any overnight time with him.
There is significant acrimony between the parties. The children are well aware of it; for years they have been well and truly exposed to (if not immersed in) their parents’ conflict. Ultimately however, the scope of the parenting dispute turned out to be quite narrow.
The husband’s proposed orders are as set out in his Amended Response:
1.That the parents shall share decision making responsibilities for the children, [X] born [in] 2009 and [Y] born [in] 2013 (referred to herein after as ‘the children’).
2. That the children live with the mother.
3.That the children spend time with the father as agreed in writing and failing agreement each alternate weekend from 5.00pm Friday until 5.00pm Sunday.
The wife’s proposed orders are:
1.That the children, namely [X] born [in] 2008 and [Y] born [in] 2013 live with the Applicant mother.
2.That the Applicant mother have the authority to solely exercise major decision making in relation to the children, provided always that the Applicant mother is to notify the Respondent father within 14 days of making such decision.
3.That [X] spend time with the father as agreed between the parties in writing by email but failing agreement, on each alternate weekend, from after school (or 3.00pm in the event of a non-school day) on Friday, until 5.00pm on Sunday.
4.That [Y] spend time with the father as agreed between the parties in writing by email but failing agreement, on each alternate Saturday night, from after dancing (or 9.00am in the event that [Y] does not have dancing) on Saturday until 5.00pm on Sunday.
5.The father will take [X] to all of her employment commitments at all times that [X] is spending time with him.
6.The father will take [Y] to all of her dancing commitments, that may occur on a Sunday when [Y] is spending time with him, or in the event that he does not wish to take [Y] to these dancing commitments, then he is to deliver [Y] back to the mother’s residence prior to the dance commitments on the Sunday and with sufficient time to enable the mother to take [Y] to these dancing commitments.
7.Except when [X] is at work, the father is restrained from leaving [X] unsupervised for a period greater than 3 hours on any day when [X] is in his care pursuant to these Orders.
8.The father is restrained from consuming alcohol 24 hours prior to or during any period of time when the children or either of them, are in his care.
9.That implementation of the father’s time with [X] and [Y] is to occur as follows:
9.1By the father collecting [X] from school on Friday afternoon.
9.2In the event that [Y] is required to dance on Saturday, by the father collecting [Y] from dance at the conclusion of her dancing, or in the event that [Y] does not have dance on Saturday, by the father collecting [Y] from the mother’s residence at 9.00am on Saturday.
9.3By the father providing [X] and [Y] to the mother’s residence at 5.00pm on Sunday, provided always, that if [Y] is required to dance on Sunday, the father will deliver [Y] to dance no later than 15 minutes prior to the start time or alternatively, if he does not wish to take [Y] to these dancing commitments, then he is to deliver [Y] back to the mother’s residence prior to the dance commitments on the Sunday and with sufficient time to enable the mother to take [Y] to these dancing commitments.
Notation:
A.[Y]’s dancing routine changes each term, in circumstances where she is currently competing at [competition] level. [Y] usually dances on Saturday, but there are some occasions when she is required to dance on Sunday. The parties agree that given that [Y] is dancing at [competition] level, the parties will prioritise [Y]’s dance commitments including when they might impact upon their spend time arrangements, for the purpose of [Y] attending any dance rehearsals and any travel to dancing competitions/commitments.
That the disputed orders are so narrow is not a demonstration of the parents’ mutual goodwill and child focus so much as realpolitik on the part of the parents. The husband’s limited proposal reflects his past relatively limited involvement in the children’s lives. The wife’s original proposal had been to continue the parenting arrangements in [8] & [9] and she only abandoned that position quite late when the weight of the evidence showed its inadequacy.
The property dispute concerns net matrimonial assets worth a little over $4M. The wife had been hoping to retain the Suburb D home but by the time of the hearing she conceded that this was not going to be achievable and that the home would have to be sold. The main disputes concern the weighting of each party’s contributions and their future needs. Each party seeks to retain 60% of the net non-superannuation property (valued at E $3,329,278). In relation to the combined superannuation (valued at E $762,165) the wife seeks to retain 60% and the husband seeks that it be equalised.
THE HEARING & MATERIAL RELIED UPON:
The matter proceeded to hearing on 24, 25 & 26 July 2024. The wife was represented by Ms Hamilton of counsel, the husband by Mr Bithrey of counsel.
The wife relied upon her Case Outline Document filed 24/07/24, her Amended Initiating Application filed 16/07/24, her trial affidavit filed 16/07/24 and her Financial Statement filed 24/07/24.
The husband relied upon his Case Outline Document filed 24/07/24, his Further Amended Response filed 17/07/24, his trial affidavit filed 26/06/24, his amending affidavit filed 17/07/24 and his Financial Statement filed 13/07/24.
Numerous exhibits were tendered in the course of the hearing, including a Family Report, various affidavit annexures and business records all of which will be referred to as relevant.
At the close of the hearing the parties were directed to file some further draft orders and supplementary written submissions, the timeframes for which were later extended. The wife’s updated Minute of parenting orders is set out in [13] above and was formally marked as exhibit 27. Regrettably, despite the parties advising me that there was to be an agreed form of Minute in relation to the property orders, with the only ‘loose end’ being the cash adjustment, they ultimately provided two (2) competing Minutes which while similar also contained some subtle differences. The wife’s Minute was marked as exhibit 28A, the husband’s as exhibit 28B. (The supplementary written submissions were not formally marked as exhibits.) [1]
I have taken into account all of the above material as well as the oral evidence and submissions.
PART I – THE PARENTING PROCEEDINGS
The law:
The parenting proceedings are governed by the recently-amended provisions of Part VII of the Family Law Act 1975 (Cwlth) (“the Act”).
Amongst other things, ‘parenting orders’ include orders allocating parental responsibility for a child, and orders for a child to spend time and/or communicate with a parent. ‘Parental responsibility’ is broadly defined in s 61B. Each parent has parental responsibility for their child, subject to court orders: s 61C. A parenting order may, amongst other things, confer parental responsibility and decision-making on one parent and remove it from the other parent: s 61D. Where there is an order for joint decision-making, the parents are required to consult each other and make a genuine effort to come to a joint decision: s 61DAA.
When making parenting orders the court must regard the ‘best interests’ of the children as the paramount consideration: s 60CA. In arriving at a ‘best interests’ determination, s 60CC of the Act relevantly provides: [2]
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1)…[I]n determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2)…
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)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
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
Though “safety” is not defined for the purposes of s 60CC(2)(a), it is clearly a term of wide import which encompasses not just physical but also psychological and emotional safety. It includes keeping a child safe from “family violence” broadly defined in s 4AB(1) of the Act as:
violent, threatening or other behaviour that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.
The court has power to grant injunctions that it considers “appropriate” for the welfare of the children, including for their personal protection: s 68B.
Relevant findings:
There are many disputed facts in this case the resolution of which will make no practical difference to the outcome given how narrow the real dispute now is. The case comes down to a few issues only and these will be the focus.
Before turning to those issues, there are some broad findings which I should make at the outset. Specifically, I accept the Family Report writer’s evidence that:
(a)the children have a lengthy lived experience of the wife being their active caregiver and the husband being absent or otherwise much less engaged in their life;
(b)that for different reasons both X and Y have quite high needs even on weekends;
(c)that of the two parents, the wife has the proven and much greater capacity to meet their needs, with the result that the children have developed strong views and expectations that she will continue to do so; whereas
(d)the husband’s capacity to consistently meet their needs remains untested.
Decision-making for the children:
No major long-term issues arise concerning the children’s names, their religion or their schooling nor is there any prospect of them moving away to a distant location. There is however room for dispute about the children’s healthcare needs and their participation in extra-curricular activities.
X is 16 and will largely make, or be heavily involved in making, her own decisions about such matters. In a practical sense, Y is therefore the major focus here.
Can the parents cooperate effectively if they have to make long-term decisions jointly? What will be the impact of a joint order, or of an order vesting the wife with sole responsibility for decisions?
The parents have had a difficult relationship for many years, long before separation. They are wildly apart even as to the separation date.
X told the Family Report writer that the parents “never really seemed married” and “never got on”. From her perspective, they had very different parenting and domestic styles, with the wife doing just about everything while the husband sat on the couch. I accept that this was her lived experience. I also accept that the husband withdrew from parenting to some extent because when he tried to set boundaries for the children, the wife often undermined those boundaries. For instance, if he confiscated one of the children’s iPads for misbehaviour, she would give it back to them. Overall, the wife has a more permissive parenting style than the husband – which he resented – as evidenced by his statement in the witness box that he was the children’s “parent” whereas the wife was their “friend”. [3]
The level of conflict while the parties lived separately under the one roof was disastrous for their co-parenting relationship and also for the children. I accept the Family Report writer’s observations that during this time the children were exposed to overt and covert hostilities between the parents.
Both parents behaved poorly in the presence of the children on many occasions. Many examples could be given but I will restrict them to a few of the more notable ones.
In the case of the husband, I accept the wife’s evidence that in January 2020 she and the husband had a loud argument about him having a new partner, that he called the children into the room, that they became upset and the wife then told him to stop and threatened to call the Police. No doubt in a highly elevated state, the husband responded that if she did so, then he would charge at Police and they would shoot him dead in front of the kids.
I accept the wife’s evidence that both X and Y sometimes became afraid of the husband when he got angry, their perception being that his face went red and the veins in his neck became more prominent. [4] On one occasion X defiantly hid the husband’s toothbrush and flosser from him in response to which he became angry, pushing Y out of the way, hitting X on the arm and yelling at Mr F.
In the presence of one or more of the children, the husband has denigrated the wife by saying such colourful things as: “I hope you burn in hell”; “I’m forcing the sale of the house, you watch me” (upsetting Y who told him to “stop arguing with mum”); he repeatedly told the wife on one occasion that she was “a pig woman” (which in the witness box he tried to pass off as a joke); he told Y that the wife was “friends with” Lucifer (which in the witness box he labelled as a “stupid joke” on his part); and in front of X, the husband called the wife “a fucking thing” which prompted X to kick him and tell him to “leave mum alone”.
On numerous occasions the wife also denigrated or otherwise spoke badly about the husband to the children. She accepts for instance that in September 2021 she yelled at him. She knowingly discussed with the children her desire to retain the Suburb D home after the husband had moved out, and about the prospect of it being sold at the husband’s behest. It was an unfair burden the children should not have been saddled with.
I accept the husband’s evidence that, without consulting him, the wife took the children away from the home on weekends and during school holidays with the practical effect that he was, and felt, excluded. To be fair though, the husband never himself proposed to the wife that he spend block time with the children on holidays, or special occasion time.
The husband accepted in the witness box that Mr F had read some of his messages to other women on family sharing devices. He also accepted that on one occasion he had grabbed X and dragged her up the stairs, and that she became very upset as her hair had gotten caught.
In 2021, Y was struggling at school, becoming withdrawn, crying, craving hugs, experiencing problems with her friendship groups and starting to struggle academically. She talked to her teacher about hearing the parents arguing (which made her sad), and she talked about the husband saying that the house would be sold which made her worry about having nowhere to live. [5] (It seems that the husband too was talking about the house with the children, though not to nearly the same extent as the wife did.)
During their interviews for the Child Impact Report on 9 May 2022, both Mr F and Y said things to the Court Child Expert (‘CCE’) which were strongly suggestive of the children being exposed to the adult conflict. Y expressed fear that the husband was telling her things would change and that she felt anxious about what this change would look like and mean for her and her family. She described being aware that the issue was around the house and if the “father will make mum sell it” and this seemed to be quite a significant focus for Y and her concerns around her family structure.
In the context of a looming mediation in April 2023, the wife again spoke to the children (or at least to Mr F & Y) about her desire to retain the Suburb D home and that for this to happen the home needed to be valued conservatively. In turn, both Mr F and Y messaged the husband about it.
Mr F accused the husband of threatening to take their home away and explained how many good memories he had there, including that some beloved pets were buried on the property. Having already stopped visiting his father some four (4) months prior in December 2022, Mr F’s message was that if the husband took the home away, he would not see or hear from him again:
I’m not threatening you I’m merely telling you what will happen if you go through with forcing the sale of this house, I know this may be a hard decision but I hope you will pick the right one between having a fleeting sense of financial security or ever seeing your son’s face again. Make the right decision dad, From [Mr F].
Y texted the husband as well:
I’m not talking to you until you lower the price for the house…It’s either you lower the price or you stop and let us live in our home. [6]
The wife’s conduct in this respect was emotionally harmful to the children.
Despite the period of time since separation, the parties still struggle to communicate effectively and cooperatively. They do not trust each other and whenever possible avoid verbally communicating. I accept the husband’s complaint that the wife did not keep him properly informed in relation to X’s mental health and school difficulties; he only discovered that X was seeing a psychologist when he attended court and reference was made to subpoenaing those records.
The wife’s perception is that when she does try to talk to the husband, he is “always hostile” towards her, such that she now limits their communication to texts and emails only - giving him an ‘updating’ email about the children every 3 months or so.
But even their written communication can be unproductive. A good example is when they emailed each other in October / November 2023 about X vaping and smoking cannabis; X told the wife that the husband knew about it and that he even drove X to the drug dealer. The wife believed X, emailing the husband who in turn denied it following which the parents simply ended up trading accusations of poor parenting. [7] In the witness box the wife still held concerns about the husband allowing X to vape and smoke cannabis. When Mr Bithrey suggested to her that she would not be agreeing to alternate weekend time if her concerns were genuine, she disagreed, saying that X was (then) nearly 16 and her father should be setting a better example.
The wife alleges that X has complained to her about overhearing the husband and his new partner Ms K loudly having sex. The wife believes it and the husband denies it. The children are used to telling the wife negative things about the husband; the bigger point is that there is simply no trust between the parents.
The wife’s trial affidavit is unapologetically disparaging of the husband. In the witness box the best she could muster about him as a parent was that she was “sure he loves the children” which seems rather the minimum expectation. She does not trust him to make child-focused decisions and sees him as a potentially harmful influence on the children.
In the witness box the wife said that X was accepting of her time with the husband because he gave her money and more freedom – including dropping her at the shops. Her description of such a transactional relationship reflected her dim view of the husband as a parent but to be fair to her the Family Report writer herself expressed similar concerns.
The wife deposed that Y was only visiting her father in order to “visit the [pets]”. [8] In the witness box she properly walked that back somewhat by accepting that part of Y’s reason for visiting was in fact to see her father. (The Family Report writer did however say in the witness box that the wife deserved some credit for facilitating this time, including by driving her to the husband’s home and sitting in her car during the visits.)
To be fair, the husband’s opinion of the wife seems no better. In his interview with the Family Report writer, he accused the wife of wanting the children’s emotional and mental health to remain poor until the property settlement was completed so that she would receive a greater percentage of the matrimonial property. [9]
Overall, I accept the submission of the wife’s counsel [10] that the parties’ relationship is:
marred by mutual distrust, lack of effective communication and co-parenting and evidence of high conflict and denigration of the parties. These issues, as well as the mother’s contention that the father has had limited involvement in the children’s activities and medical appointments, support the need for the mother, as the primary caregiver, to have sole parental responsibility and decision-making regarding major long-term issues.
Returning then to the topic of the girls’ health, their lived experience is that of the two parents it is the wife who has managed all their medical needs including vaccinations. [11] When Y was admitted to L Hospital in early 2021 with a medical condition, the wife was the only parent her treating surgeon ever saw at hospital and later on at his rooms and when she was subsequently hospitalised again for surgery. [12] The only inference is that the husband trusted the wife to handle medical decisions and associated practicalities.
In the witness box the husband said that during the relationship he and the wife would discuss matters about the children but that the wife would make the decisions. But the dynamic that both parents described in the Family Report interviews was more accurate – namely that the wife would identify the issue, find a solution, resolve it and then advise the husband. As the Family Report writer observed, alternate strategies (such as joint decision-making) are untested and may give rise to barriers.
In relation to extra-curricular activities, again Y is the major focus particularly given her comparatively young age and her enthusiasm and obvious skills in dance. I will discuss this issue in more detail later but it suffices at this stage to say that again the wife is the parent who facilitates her participation and that it is quite an intensive activity.
About the only ‘ray of sunshine’ in favour of joint decision-making is that the wife initially proposed it during her Child Impact Report interview on 9 May 2022. This was shortly followed by the interim order of 24 May 2022 wherein the parties agreed to advise each other by email about significant matters concerning the children. But advising is not the same as sharing decision-making responsibility and the wife’s proposal was made the better part of 3 years ago. The wife has long since abandoned any suggestion that joint decision-making will work.
Mr Bithrey’s submission in favour of joint decision-making boiled down to it being a ‘shield against alienation’ rather than necessarily being practical. He contended that the order was necessary in order to show the children that their father is involved and interested in their lives, as well as avoiding the risk that the wife might abuse her power by enrolling the children in numerous weekend activities which he would then be obliged to facilitate, ie. she could thereby ‘stymie’ his weekend time with them.
To be clear, the wife is likely a contributor to Mr F becoming alienated from the husband, although the issue is complex and the husband has contributed as well. He and Mr F and very different people. [13] Likewise with X, it is not a ‘black and white’ situation. [14]
In my view, to make an order for joint decision-making as some sort of ‘shield’ against the wife’s potentially malign influence on the father/children relationship would be contrary to the girls’ best interests. The orders I am making will provide for the father to spend regular time with the children. His fear that she could use decision-making power to load up his weekend time with extra-curricular activities ignores the fact that it would also involve crimping her own weekend time. Moreover, there is no suggestion the wife has enrolled the children in activities with the aim of restricting his time.
The Family Report writer said that the parties have very different parenting styles that are not conducive to joint decision-making. She recommended that the wife retain sole decision-making power, but with consultation. She said that the importance of consultation is that it sends the children a message that their father is “interested and involved” in their lives. I respectfully agree with that; it meets one of the husband’s concerns about ‘alienation’.
The wife does have a capacity to respectfully communicate in writing with the husband. [15] Her proposed order whereby she notifies the husband of decisions is practical and can be complied with. The children have always had a loving and close bond with her; they trust her to make decisions in their best interests. She is attuned to the children and well-equipped to do so. [16]
Given the ages of the children and Y’s particular aptitude and interest in dance, an order for joint decision-making could potentially result in a ‘gridlock’ between the parents about her participation. If the husband refused or otherwise restricted her dance, this would likely have an adverse impact on their relationship.
As Ms Hamilton submitted about Y’s dance:
It is not a ‘fun’ activity; [Y] performs at a high level. She has a bright future – don’t dim it.
Ultimately the children’s views, their developmental needs and questions of practicality inform my decision to accept the recommendations of the Family Report writer.
Husband’s ‘straightforward’ weekend proposal for both girls -v- wife’s detailed proposal which differs for both girls and contains various injunctions:
Superficially, the husband’s order is attractive insofar as it is straightforward and cannot realistically give rise to any conflict concerning its interpretation. But will the husband’s order work or is it in the best interests of the girls to be more prescriptive and in Y’s case, restrictive?
If the wife trusted the husband this debate would not likely be happening. But she doesn’t and, to be fair to her, the children do not necessarily trust him either. Moreover, there are some risk factors in the husband’s care that do need to be considered and, if necessary, addressed by way of injunctions.
Husband’s use of alcohol:
The husband is a binge drinker and at times alcohol has caused real problems in his life.
In the early hours of a morning in 2004, following his father’s funeral, the husband was conveyed by Ambulance to M Hospital in response to a call from his sister who said he had been aggressive with the family, saying he did not want to live anymore. He presented with a swollen right eye, blood on his right earlobe and a scratch on his nose. The Hospital notes record that he “smelled strongly of ETOH”. [17] He told the Hospital he did not remember how he got injured but he deposed in his affidavit that the wife had hit him. I cannot make a finding as to how he was injured but his mental state is the major concern here. If this was a one-off episode of binge drinking I would give it limited weight, especially noting he had just lost a parent. But it was not a one-off.
In the evening / early hours of a morning in early 2009, the husband decided to drive home from a party while intoxicated. Police began following him; he turned off his headlights and tried to outrun them. It did not end well; he was apprehended and arrested for high range drink driving as well as driving in a reckless or dangerous manner. In mid-2009 he was disqualified from holding a drivers licence and placed on a bond. [18] Not only had the husband put himself and other road users in danger, the wife then had to drive him around during his period of disqualification, including getting him to and from work while also managing Mr F and X who was still an infant.
Post-separation while the parties were living under the one roof, the husband regularly returned home Saturday nights heavily intoxicated.
While intoxicated in early 2021 the husband broke his ankle in an altercation outside a hotel. He had to have four (4) months off work during which time the wife had to care for both he and the children.
In the early hours of a morning in mid-2022 the husband was drink driving when he briefly lost control of the vehicle, mounting a guard rail on a bridge, causing the vehicle to be thrown back heavily onto the road and tipped on its side. Police were called. The husband was breath-tested, returning a high range blood alcohol concentration. He was again charged with high range drink driving, and later disqualified from holding a drivers licence, placed on a Community Corrections Order and ordered to participate in an alcohol interlock program for 2 years. [19] As noted earlier, the children had to catch Ubers to see him on weekends.
The husband later told the wife that the reason he crashed was because he was checking his mobile phone for the random breath test locations in an effort to avoid apprehension. His drink driving was not a mere lapse in judgment, but a calculated decision.
In late 2022 the husband entered a hotel while intoxicated. When security asked him to leave, he argued with and threatened to assault them. The husband’s friend helped get him outside. The hotel called Police to ensure he did not try to come back in. Police attended and told him to move on; he had called an Uber by then and there were no further incidents. [20]
The Family Report writer considered that the husband “would need to ensure that he curbs any habits of Friday nights at the hotel and prioritises spending quality time with the children.” [21]
This would seem not to be a problem for the husband as his own affidavit deposes that:
160I do not regularly drink alcohol. I will have a few drinks when I catch up with friends.
In the witness box the husband admitted he doesn’t drink much because when he does he “stirs people up.”
The imposition of an injunction is always a balancing act. Alcohol is a legal drug, but nonetheless a drug the husband sometimes uses at problematic levels. The girls need him to be emotionally attuned to them during their weekend visits; he has plenty of opportunity to drink alcohol at the times when they are not with him.
As will be seen below, caring for the girls on alternate weekends will cast a significant responsibility on the husband. His consumption of alcohol will make those responsibilities even more onerous. The husband’s past alcohol history, and the girls’ individual care needs, make it “appropriate” for the welfare of the children to impose an absolute injunction. But in my view, 24 hours prior to having the children is too wide a restraint; 12 hours is sufficient.
Getting X to work & not leaving her unsupervised / getting Y to & from dance:
The husband’s proposal is to have both girls from 5pm Friday until 5pm Sunday. In the witness box he said he will not work those weekends and will be fully available. Asked about getting X to work and Y to dance, he emphatically said he “will do it.” But he does not want formal orders; he says he knows what is required and will get it done.
The wife’s orders specifically provide for the husband to get X to work and for the husband’s time with Y to be geared around her dance commitments.
In this case, the practicalities really do matter to the girls.
In the witness box the wife said that X now starts work at 7am on Saturdays and that in the couple of weeks leading up to the hearing X had expressed concern that the husband won’t get her to work on time, especially given that X struggles to get out of bed in the morning. (The wife’s routine is to start waking X up at around 5am.)
Asked how she ‘reassured’ X about the husband getting her to work on time, the wife said that she had told X to “talk to her father”. Pressed about whether she told X that her father would get her to work on time, there was a long pause before the wife responded with:
“I’m sure that he would try to get her up…I would be concerned that he would get angry [but] I’m confident he would make an attempt to get her up.”
This was not a vote of confidence and I am satisfied that both the wife and X are worried about this issue. It is manifestly in X’s best interests to attend work and to build her resilience and independence. What is the harm in making an order as sought by the wife in circumstances where the husband agrees he will take her to work anyway? In my view the wife’s order will give her (and X) reassurance about this issue which will in turn assist to improve the quality of the father/daughter relationship as well as making their weekend time less ‘stressful’ for X in that respect. It is an order in X’s best interests and one that would be “appropriate” for her welfare.
As for leaving X unsupervised, it is apparent that X has had emotional difficulties and school refusal. She has experimented with vapes and cannabis. She is a child who at this stage of her life and development requires significant support from both her parents.
I accept the Family Report writer’s observations that:
74.[X] is at an important and delicate phase of her development where she is learning about peer and romantic relationships. The father-daughter relationship can play a vital role during this period by supporting a young woman to set a strong framework for healthy and respectful relationships. The combination of problematic mental health, anxiety, school refusal, deliberate self-harm, combined with rocky peer relationship and experimental drug use, creates a perfect storm for [X] to potentially become heavily involved in drug use, antisocial behaviour, and interpersonal relationships characterised by violence. She is currently in a highly vulnerable position and requires both parents to think very carefully about supports, limits, and expectations [X] needs to stay on track. If for example, she were to be spending time with the father on a Friday night but was permitted to hang out with friends, go to parties etc without limits and supervision, she could be expected to find herself in deeper difficulties and her mental health issues escalating. Substance abuse/dependence is a very attractive option for a young person who wishes to escape unpleasant feelings or uncomfortable family dynamics.
75.There is benefit to [X] spending quality and meaningful time with the father where he can demonstrate that he is wanting and able to attend to her needs and interests rather than expect her to watch television with him, or worse, be burdened with unwanted information about his sexual exploits. If the father were genuinely able to prioritise additional and meaningful time with [X], it is likely to assist her greatly. If, however, he could not genuinely and constructively spend time with [X] it would have the opposite and detrimental effect in equal measure. This responsibility would sit entirely with the father.
In the witness box the Family Report writer reiterated her concerns about X being left unsupervised. She observed that given X’s vulnerabilities it “could go horribly wrong”, emphasising that X needed close observation. The Family Report writer considered that more, rather than less, structure was needed around X’s time with the husband, that they needed to spend quality time together – with the husband needing to be mindful of her movements and social activities and not simply “letting her do her own thing”. She was also concerned about the potential risks to X of the husband giving her money [22] or if he was going off to hotels during his weekends with her. The Family Report writer suggested that the husband would benefit from a “Keeping Up With Teens” course and that he:
needs to understand that [X] needs a reasonably high level of support and he needs to do that and not give her the same freedoms that many 15 year olds would expect.
Ultimately, the wife’s proposed restraint is in X’s best interests and “appropriate” for her welfare. It is not impractical as it is time-limited to periods exceeding 3 hours.
The Family Report writer emphasised the significance to both children of continuing to support their skills and talents through their extra-curricular activities which she described as going to fundamental aspects of the girls’ independence, identity and mental health. [23]
I accept the Family Report writer’s observations that:
76.[Y] has been able to successfully maintain a strict schedule of activities and routines which have most likely protected her from the disruptions and distractions of the parent conflict. Her determined and independent personality appears to create a style of connection and interaction that is strongly transactional. It is therefore suggested that if [Y] is forced to spend additional time with the father and he does not prioritise her needs, she will vote with her feet. Having said this, however, it was observed that she did have a positive relationship with the father which should be supported and nurtured…
The wife was born in 1973 and is turning 52 this year. She is in good health and works as a professional for a Sydney-based company, earning $3,557 p/w or $184,964 per annum. She has flexible work hours and continues to work from home by and large. She also receives a vehicle allowance from her employer of $423 p/w. Overall, her income is $4,065 p/w and her expenses are $4,154. [46] She also receives child support from the husband which is assessed at $85 per week. The assessment is based on the parties’ taxable incomes in FY 2023 of $49,464 (husband) and $219,530 (wife). [47]
The husband was born in 1970 and is turning 55 this year. He is in good health and works a self-employed tradesperson in his own business. He is also qualified in another trrade. He presently lives in rented accommodation. He earns around $2,154 per week and his expenses come to around $1,885 a large portion of which are paid through the business.
Both parties have very good work histories but at the end of their lengthy relationship the wife exited with a significantly greater and more stable and predictable income-earning capacity. Though relatively minor in the grand scheme, I have taken into account the wife’s leave entitlements referred to in paragraph [126] herein.
The orders I propose to make will not impact either party’s income-earning capacity. Each of them will receive a substantial ‘cash’ payment upon the sale of the Suburb D home and each will be able to rehouse themselves more-than-adequately if they wish to. Each will have the opportunity to enjoy a reasonable standard of living and, provided each of them chooses to do so, each will be comfortably able to live within their means and pay their bills. Neither of them receives or is dependent upon any means-tested benefits or pensions.
The wife is, and will remain, the primary carer for X and Y. This entails substantial commitments as noted earlier. Fortunately for the wife, the nature of her work has permitted her to undertake her parenting role while still earning a good income. That will not change, although it will involve substantial ongoing effort on her part.
The husband has re-partnered but is not cohabiting with his new partner as yet.
The only other potentially relevant matter to consider is the wife’s ongoing care and support for Mr F.
I accept the wife’s affidavit evidence that:
185.[Mr F] is on the Autism spectrum and has been diagnosed with depression. [Mr F] is prescribed Ritalin and antidepressants. Following the separation of [Mr Duncombe] and I, [Mr F]’s mental health deteriorated to the point where he was refusing to go to school and withdrawing socially. [Mr F] continues to have these difficulties, and whilst he is now over the age of 18 years, he is currently not working, and continues to have regular appointments to which I take him to. I envisage that I will need to continue to support [Mr F] emotionally and financially well into the future given his Autism diagnosis and mental health.
186.[Mr F] is very dependent on me and has not been able to develop independent skills. He has no part-time job/work and does not have a driver’s licence or even a proof of age card. He studies part-time […] on-line through [HH University] as he could not cope with full time distance education. I have to provide a lot of support and assistance to [Mr F]. He does not have any friends and does not leave the house. He does not participate in any social or sporting or recreational activities. [Mr F]will continue to attend clinical psychologist [Dr DD]. He is in the process of being transferred from paediatrician [Mr EE] to a psychiatrist [Dr FF] due to his ongoing psychiatric mental health needs…
189.I anticipate that even though [Mr F] is over the age of 18 years, I will continue to need to support him emotionally and financially into the future, given his circumstances and poor mental health.
The husband concedes that Mr F has a range of special needs. In the witness box he accepted that Mr F had briefly worked but had to quit because he couldn’t cope.
The question of whether, and if so how, the court should take into account the wife’s care of Mr F pursuant to s 75(2) was highly controversial.
Mr Bithrey conceded that the court could take the wife’s care of Mr F into account under the catch-all provision in s 75(2)(o):
“any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.”
However, Mr Bithrey contended that no adjustment was appropriate. He submitted that Mr F has NDIS funding in place, with no suggestion of it being withdrawn. He also submitted that the relevant medical report about Mr F was written in 2022 and that there was no recent evidence that Mr F is either incapable of supporting himself now, or in the short term. To quote from his written submissions:
17.…People with depression take medication, diabetics take insulin. The evidence does not underpin a finding that [Mr F] would, or must, be an impost on the wife.
18…From a day-to-day perspective, [Mr F]’s presence in the wife’s home is likely to be of little financial, physical or emotional consequence to parenting beyond that which she is already providing in respect of the parties’ daughters.
With respect, the weight of the evidence shows the above submissions to be somewhat mean. The suggested analogies of depression and diabetes are not apposite; Mr F has quite complex needs and if there was a simply a ‘pill’ he could take to fix his problems then I have little doubt he would have done so. His NDIS funding is there for a reason; it reflects his serious disability albeit that I accept the medical evidence is now a little old.
Ms Hamilton contended that Mr F’s future care needs could be taken into account either under s 75(2)(d) ‘commitments of the parties’, s 75(2)(e) ‘responsibilities to support another person’, s 75(2)(l) ‘the need to protect a party who wishes to continue that party’s role as a parent’ or by way of the catch-all in s 75(2)(o).
I am satisfied that, at least in the short term and likely over the medium term, the wife will continue to support Mr F physically, emotionally and financially. In my view, that ongoing support is capable of being considered pursuant to all of the paragraphs of s 75(2) set out by Ms Hamilton and by reference to the authorities which she cites in her written submissions, most notably Zubcic & Zubcic [2019] FamCAFC 168. But even if that were wrong, his circumstances at least engage s 75(2)(o).
Overall, I am satisfied that the s 75(2) factors warrant a slight uplift to the wife essentially on account of her ongoing parenting responsibilities which will continue long after this judgment is handed down. Primarily this uplift is on account of Y, but it also makes allowance for X and Mr F to a lesser extent. The uplift will be limited to the non-superannuation property only. As each 1% is worth E $33,620 my view is that the appropriate uplift is 2%. But for the wife’s significantly superior income and her capacity to work from home, the uplift would have been greater.
Conclusion & orders:
For these reasons the non-superannuation property will be divided as to 56% to the wife and 44% to the husband. The superannuation property will be divided as to 60% to the wife and 40% to the husband. I am satisfied that this is a just and equitable outcome overall.
The orders I propose to make are set out at the commencement herein.
In relation to the form of order, which was supposed to have been agreed, various disputes seem to have belatedly ‘flared up’ as evidenced by the competing Minutes that were provided to the court. The order I make is ultimately an amalgam of what each party contended for. In general terms I have used the wife’s template for the non-superannuation orders and the husband’s template for the superannuation orders.
By way of further specific explanation of the specific form of orders I have adopted:
(a)orders 9(f)(iii) and 11(i)(iii) are formulaic in nature so as to give effect to these reasons. I specifically reject the wife’s proposed order that, for this purpose, the $25,000 interim payment made to the husband be deducted from his share of the property. These moneys were not included as an asset in the Balance Sheet, have long been spent and a significant portion of them would have been applied to the husband’s reasonable living expenses in any event;
(b)both parties seek orders for work to be carried out to the Suburb D home and the orders provide for this to occur. However, since the husband is a tradesperson it is better that he, rather than the wife, obtain the relevant quotes the tradespeople. The parties should share such costs equally and I do not see any proper basis to make the husband pay those costs in the first instance;
(c)the wife’s order 3.5 will be included as order 11(e) (which allows both parties to bid at auction if they wish);
(d)the husband’s order 3.6 has been adopted as order 11(f) and is self-explanatory;
(e)the real property owned by the SMSF should be sold. Ms Hamilton’s proposed Minute provides for this. Mr Bithrey’s did not but was otherwise a much more detailed order to split and separate the parties’ interests. In the circumstances I have adopted Mr Bithrey’s proposed orders on the assumption that, while not expressly stated in the order, the sale of the real property owned by the SMSF is necessarily implied in any event;
(f)order 13 reflects the overall 56 - 44 division of the non-superannuation property. The wife’s draft Minute (order 5) had referred to deduction of possible CGT but I have not allowed for it. This is because no CGT liability was referred to at the hearing, no CGT liability was included in the Balance Sheet, there is no evidence about the quantum of any such CGT liability. Moreover, the parties subsequently chose to deplete most of the trust moneys which could instead have been held back if either party was concerned about possible CGT.
Having regard to the formulaic orders, and particularly the superannuation splitting orders and my observations in paragraph [222(e)] above, there will be general liberty to apply within 28 days as to the form of the orders. Any costs application must also be brought in that timeframe.
I certify that the preceding two hundred and twenty-three (223) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 4 April 2025
[1] Because they are not evidence
[2] I have omitted the provisions concerning Aboriginal or Torres Strait Islander children as they are not applicable
[3] See also exhibit 1, paragraphs 42 – 44.
[4] Y told the Family Report writer about the husband screwing his face up when he was angry; see exhibit 1, paragraph 30
[5] Exhibit 4. See also what Y told the husband in February 2022 as set out in paragraph 142 of the husband’s affidavit
[6] The messages are exhibit 18
[7] Exhibit 17. See also exhibit 1, paragraph 21
[8] Paragraph 112
[9] Exhibit 1, paragraph 11
[10] Wife’s Case Outline, paragraph 8
[11] Exhibit 15
[12] Ibid.
[13] See exhibit 1, paragraphs 10 & 11
[14] See exhibit 1, paragraph 20
[15] Evidenced by the emails which form exhibit 2
[16] See also exhibit 1, paragraph 53
[17] Exhibit 5
[18] Exhibit 6. The circumstances of this event are recounted in the wife’s affidavit and the court infers that her version is based on what the husband admitted to her had happened
[19] See exhibit 6 & exhibit 7
[20] Exhibit 7
[21] Exhibit 1, paragraph 70
[22] The husband deposes that he gives X spending money of around $100 per week by direct transfer: paragraph 172 of his affidavit.
[23] Exhibit 1, paragraph 48
[24] To avoid doubt, I regard the figures as being admissions against interest
[25] There is no proper basis to notionally add-back the account balances as an asset of the wife.
[26] Husband’s affidavit, paragraphs 38 - 40
[27] See husband’s amending affidavit filed 17/07/24; see also exhibit 22
[28] Exhibit 10
[29] Exhibits 8 & 25. See also the husband’s affidavit, paragraph 25
[30] Exhibit 21
[31] Exhibit 9
[32] The builder sold the other two townhouses on the land
[33] It was valued at that figure as at June 2008; see exhibit 11
[34] See paragraph [73] herein
[35] Exhibits 23 & 24
[36] See husband’s affidavit, paragraph 28
[37] Exhibit 16
[38] See exhibit 19
[39] Exhibit 3
[40] Exhibit 1, paragraph 18
[41] These matters were noted earlier at paragraph [114] herein
[42] Pets
[43] See Items 2, 2A & 2B of the Balance Sheet
[44] Paragraph 43
[45] Exhibit 20
[46] See wife’s Financial Statement
[47] Exhibit 13, although notably the assessment is based on the husband having the girls 0% of the time
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