Einarsson & Joshi - [2024] FedCFamC1F 423

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Einarsson & Joshi [2024] FedCFamC1F 423

File number: MLC 8590 of 2021

Judgment of: CARTER J

Date of judgment: 24 June 2024

Catchwords: FAMILY LAW – PROCEDURAL – Where the father declined to participate in these proceedings – Leave granted to proceed on an undefended basis.
FAMILY LAW – PARENTING – Where the father has not spent time with the child since March 2024 – Orders made for the mother to have sole responsibility for major long-term decisions in relation to health and education – Orders made for joint decision-making for all other long-term decisions.
FAMILY LAW – PROPERTY – Where the father has not provided full and frank disclosure – Where there is limited evidence as to the father’s total assets and liabilities – Orders made.

Legislation:
Family Law Act 1975 (Cth) ss 60CA, 60B, 60CC, 61DAA, 90SF, 90SM

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13

Cases cited:
Aleksovski v Aleksovski (1996) 135 FLR 131

Bevan v Bevan (2013) 279 FLR 1

Kannis & Kannis (2002) 172 FLR 464

Stein v Stein (1986) FLC 91-779

Van der Linden & Kordell [2010] FamCAFC 157

Weir & Weir (1992) FLC 92-338

Division: Division 1 First Instance

Number of paragraphs: 183

Date of hearing: 27 May 2024

Place: Melbourne

The Applicant: Litigant in person (did not participate)

Counsel for the Respondent: Ms Southey

Solicitor for the Respondent: Lardners Solicitors
ORDERS

MLC 8590 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR EINARSSON

Applicant

AND:
MS JOSHI

Respondent

ORDER MADE BY:

CARTER J

DATE OF ORDER:

24 JUNE 2024

THE COURT ORDERS THAT:
1.Leave is granted for the matter to proceed on an undefended basis.

Decision making
2.In relation to major long-term issues for X born 2016 (“the child”);
(a)the mother have sole responsibility for making decisions in relation to issues regarding health and education; and
(b)the mother and father otherwise make joint decisions in relation to all other major long term issues in relation to the child.

3.Prior to the making of any long-term decision with respect to the child’s health and education, and save for in the event of an emergency:
(a)the mother shall advise the father by email (to an e-mail address to be provided by the father to the mother within seven days of the date hereof) of her proposal;
(b)if the father wishes to comment on the mother’s proposal (or if the father has any proposal he wishes to make on this issue) he shall, within seven days after the date of the mother’s email, advise the mother by one email (to the email address from which the mother sent his communication) of his views;
(c)upon receipt of any comment or proposal by the father, the mother shall give consideration to his views;
(d)after the mother has considered the father’s comments, she shall make a decision and advise the father by email or SMS text message of the outcome immediately after making that decision.

Live with
4.The child live with the mother.

Spend time with
5.Subject to Order 6, the child spend time with the father as follows:
(a)each alternate weekend during all gazetted school terms from 3.30 pm or the conclusion of school on Friday to 4.00 pm the immediate next Sunday commencing 28 June 2024 and each alternate week thereafter;
(b)for two hours on the child’s birthday if not already in the care of the father, if a school day from 3.30 pm to 5.30 pm and if a non-school day for four hours from 10.00 am to 2.00 pm;
(c)for two hours on the father’s birthday if not already in the care of the father, from 3.30 pm to 5.30 pm if a school day and for six hours being from 10.00 am to 4.00 pm if a non-school day;
(d)on Father's Day from 9.00 am to 4.00 pm if not already in the care of the father;
(e)for such further or other periods as may be agreed in writing between the parties (including via text message).

6.The father shall provide the mother with his residential address prior to any time occurring as set out in Order 5, and overnight time shall not be exercised at B Street, Suburb C, in the State of Victoria.
7.The spend time referred to in Order 5(a) be suspended as follows:
(a)during all gazetted school holidays;
(b)for any period the mother travels outside the Commonwealth of Australia with the child with such travel;
(i)to be for a maximum period of six weeks, and fall as far as practicable during school holiday periods;
(ii)to occur no more often than every second year; and
(iii)the mother to provide the father with not less than 30 days written notice of the travel, and with an itinerary not less than seven days prior to the scheduled travel;

(c)on the mother’s birthday if the child is not already in her care from 3.30 pm to the commencement of school next day if a school day and from 10.00 am to 9.00 am the next day if a non-school day;
(d)on Mother's Day if the child is not already in her care from 9.00 am to 9.00 am the next day.

Changeovers
8.All changeovers on school days occur at the child’s school and all other changeovers on a non-school day occur at the mother’s home, or as is otherwise agreed in writing between the parents.

If father unavailable
9.In the event the father is unable to provide care for the child for greater than a 48-hour period, he provide the mother first opportunity to provide such care.

Communication
10.The father be permitted to communicate with the child by telephone/videolink when he is in the mother’s care at 5.00 pm each Wednesday and Sunday, such call not exceeding 15 minutes unless otherwise agreed, with the father to initiate the call and the mother to facilitate same.
11.The mother be permitted to communicate with the child by telephone/videolink when he is in the father’s care at 5.00 pm:
(a)on a single day of the mother's choosing for weekend periods; and
(b)on two occasions in any seven-day spend time period;

with each call not exceeding 15 minutes unless otherwise agreed and the mother to initiate the call and the father to facilitate same.
12.Both parties to communicate by email or SMS text message for all parenting related communications and matters.
13.Both parents keep the other advised at all times of any significant allergies, health issues, illness and/ or injury pertaining to the child.
14.Both parents keep each other advised at all times of their residential addresses, contact phone numbers, and email addresses and advise the other within 48 hours of any change to same.

Injunctions
15.Each parent, their servants and/or agents be restrained from:
(a)abusing, insulting, belittling, rebuking, criticising or otherwise denigrating the other parent or members of that parent's family to, or in the presence or hearing of the child or permitting the child to remain in the presence or hearing of anyone else engaging in such behaviour; and
(b)discussing these proceedings, the documents filed herein or the reports prepared with or in the presence or hearing of the child or allowing the child to remain in the presence or hearing of anyone else engaging in such behaviour.

Extracurricular activities
16.Both parties have liberty to attend all extracurricular and sporting activities in which the child is involved in no matter who has the care of the child at that time.

Passports
17.Pursuant to s 11 of the Australian Passports Act 2005 (Cth), the mother be permitted to apply for an Australian passport and any subsequent renewals for the child in the absence of the father’s signature and/or consent.

Travel
18.The mother is permitted to travel with the child outside the Commonwealth of Australia for the purpose of holidays, with such holidays to coincide as far as practicable with school holiday periods.

Provision of these orders
19.The mother have leave to provide a copy of these orders to:
(a)each of the child’s treating medical, specialist or allied health practitioners;
(b)the Australian Passports Office;
(c)any officer of Australian or International Border Control; and
(d)the child’s school.

PROPERTY
Election
20.Within 14 days of service upon him of these orders in accordance with Order 37 herein, the father elect in writing either:
(a)to pay the mother in accordance with Order 21 herein; or
(b)for the property at Suburb D to be sold and the mother’s entitlement to be paid to her from the proceeds of that sale in accordance with Order 24 herein.

Payment to the mother
21.In the event the father elects to pay the mother pursuant to Order 20(a) herein, then on or before 23 September 2024 (“the due date”) the father shall pay the mother the amount of $678,670 (“the payment”) being the amount necessary to effect the division of the pool 40 per cent to the mother and 60 per cent to the father.

Sale of Suburb D
22.In the event:
(a)the father elects for the property to be sold, or fails to make an election in accordance with Order 20, the property at Suburb D be forthwith placed on the market for sale; or
(b)the father fails to make the whole of the payment by the due date then the property at Suburb D be placed on the market for sale (“sale in default”).

23.For the purposes of that sale or sale in default:
(a)the parties forthwith jointly appoint a selling agent to conduct the sale;
(b)in the event the parties do not agree as to the selling agent, the mother shall nominate a list of three proposed selling agents 28 days after the making of these orders (or in the event of a sale in default, within seven days of the date of default) and the father shall select an agent from that list within a further seven days. In the event the father fails to select an agent within seven days of the mother providing him with a list of three proposed selling agents, the mother shall determine the selling agent;
(c)the parties shall do all acts and things as may be necessary to appoint the selling agent and comply with all reasonable directions of the selling agent regarding the sale, including preparing the property for sale; and
(d)the sale shall be on such terms and conditions as are agreed and failing agreement as nominated by the selling agent.

Proceeds of sale of Suburb D
24.The proceeds of the sale of Suburb D be applied as follows:
(a)first, to pay the costs, commissions and expenses of the sale;
(b)secondly, to meet all costs relating to the discharge of the ANZ registered mortgage secured over the property, the current balance of which is anticipated to be $416,078;
(c)thirdly to pay the mother;
(i)in the event of the sale not being a sale in default; 40 per cent of the net proceeds of sale less 40 per cent of any anticipated capital gains tax liability (estimated to be $39,200) plus a further sum of $5,101; or
(ii)in the event of a sale in default so much of the sum as is outstanding together with interest thereon calculated in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); and

(d)the balance paid to the father.

25.Pursuant to s 106A of the Family Law Act1975 (Cth), the mother be appointed to execute all documents on behalf of the father for the purposes of effecting the sale of the Suburb D property in default of the father’s compliance with Order 23 including but not limited to signing:
(a)the client authorisation form required to authorise the transfer of the Suburb D property to the purchasers via the PEXA (Property Exchange Australia) platform in settlement of the sale; and
(b)any requisite discharge of mortgage forms to effect settlement of the sale; and
(c)any requisite State Revenue Office forms required to be completed by the father to effect the settlement of the sale;
(d)any requisite Transfer of Land document required by the Registrar of Titles; and
(e)any requisite Transfer of Lease and/or Licence document required to effect settlement of the sale;

provided that such documents are signed by the mother so as to effect settlement of the sale of the Suburb D property in compliance with these orders.
26.For the purpose of Order 25 hereof and to effect the sale of the Suburb D property the father shall be excused from providing documents verifying his identity and that a certified copy of these orders be attached to a client authority or any other documents required on behalf of the father to effect settlement of the Suburb D property through PEXA and in accordance with the requirements of ARNECC (Australian Registrars National Electronic Conveyancing Council).
27.The parties have liberty to apply in relation to the terms of the sale of the Suburb D property and the calculation of capital gains taxation arising from the sale.
28.The father shall retain responsibility for the payment of all capital gains liability arising from the sale of the Suburb D property.

Vehicle
29.Within 14 days the father and mother do all acts and sign all documents as are necessary to transfer to the mother at the expense of the mother all of the father’s right, title and interest in Motor Vehicle 1, registration No. ‘…’.
30.Pursuant to s 106A of the Family Law Act1975 (Cth), the mother be appointed to execute all documents on behalf of the father for the purposes of effecting the transfer of the motor vehicle in default of the father’s compliance with Order 29 including but not limited to signing any transfer.

Superannuation
31.Pursuant to s 90XT(1)(b) of the Family Law Act 1975 (Cth), on or before 30 September 2024, the parties as directors of E Pty Ltd as trustee for Superannuation Fund 1 (“the Fund”) do all acts and sign all documents necessary:
(a)to fulfil any obligation set out in the Family Law Act1975 (Cth) and the Family Law (Superannuation) Regulations2001 (Cth) so that the parties’ respective entitlements in the Fund, net of any transaction and taxation costs and liabilities, can be calculated as at 30 June 2024:
(b)to transfer and roll out to any superannuation fund or as directed by the Mother (acting in accordance with superannuation legislation and regulations) the sum of 40 per cent (less any applicable taxation levied) of the total of:
(i)the mother’s entitlement in the Fund; and
(ii)the father’s entitlement in the Fund;
(“the mother’s superannuation rollout”); and

(c)to make any appropriate adjustment to the father ’s interest in the Fund so that at the date of the mother’s superannuation rollout, the father ’s superannuation entitlement in the Fund is 60 per cent of the total at Order 31(b).

32.Upon the mother’s superannuation rollout taking effect, the mother do all acts and sign all documents necessary to:
(a)resign as director of E Pty Ltd;
(b)transfer her shares in E Pty Ltd to the father;
(c)resign as a member of the Fund; and
(d)resign as a trustee of the Fund.

33.Contemporaneously with the mother’s superannuation rollout, the father pay and continue to pay and indemnify the mother in relation to the Fund, and any past, present or future liability of the mother personally arising out of her involvement in the Fund and any corporate trustee of the Fund.
34.The father and mother equally share the cost of any taxation or levies imposed arising out of the mother’s superannuation rollout.
35.Pending the mother’s superannuation rollout, the parties be and are hereby restrained from doing any act or thing or giving any direction which would have the effect of reducing or prejudicing the mother’s superannuation rollout.
36.For the purposes of giving effect to Orders 31 to 35 and in default of the father’s compliance with those orders, pursuant to s 106A of the Family Law Act1975 (Cth) the mother be appointed to execute all documents on behalf of the father including but not limited to:
(a)signing any form required for lodgement with any statutory entity including the Australian Taxation Office;
(b)the client authorisation form required to authorise any sale with a real estate agent or the transfer of any real property held by the Trustee of Superannuation Fund 1 property to the purchasers via the PEXA platform in settlement of the sale;
(c)any requisite discharge of mortgage forms to effect settlement of the sale;
(d)any requisite State Revenue Office forms required to be completed by the Father to effect the settlement of the sale;
(e)any requisite Transfer of Land document required by the Registrar of Titles; and
(f)any requisite Transfer of Lease and/or Licence document required to effect settlement of the sale.

Service
37.The solicitors for the mother forthwith personally serve the father with a copy of these orders and reasons for judgment.

Miscellaneous
38.Unless otherwise specified in these orders, and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) owned by or in possession of such party as at the date of these orders;
(b)monies standing to the credit of the parties in any joint bank account are to be equally divided between the parties and any such account be forthwith closed;
(c)insurance policies remain the sole property of the owner named therein;
(d)each party otherwise retain for their sole use and benefit, their superannuation entitlements;
(e)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled, pursuant to these orders; and
(f)any joint tenancy of the parties, in any real or personal estate, is hereby expressly severed.

39.All extant applications are dismissed, and the matter removed from the list of pending cases maintained by the Court.

AND THE COURT NOTES THAT:
A.Pursuant to section 81 of the Family Law Act 1975 (Cth), the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
B.Pursuant to rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Court may vary or set aside a judgment or order made in the absence of a party.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
JUSTICE CARTER
APPPLICATION TO PROCEED ON AN UNDEFENDED BASIS

The father did not attend at the final hearing listed on 27 May 2024. The mother sought leave to proceed undefended.
I am of the view that it is appropriate to grant that leave for the following reasons.
First, I am satisfied that the father knew;
(a)the final hearing was listed for 27 May 2024 and he has elected not to participate in that hearing;
(b)the orders sought by the mother, having been served with same; and
(c)that the mother would seek leave to seek to proceed on an undefended basis on 27 May 2024 if he did not attend.
The father was represented in September 2023 when the matter was listed for final hearing to commence on 27 May 2024. Accordingly, he was aware of the trial date.
The father is the applicant in these proceedings. He failed to file material in accordance with the trial directions made on 4 September 2023. The mother late filed her material – on 10 May 2024. However, she is the respondent and it was not unreasonable for her to delay filing responding material in circumstances where the applicant failed to file his trial material.
I have read the affidavits of Ms F and Ms H, being the process server and the mother’s solicitor. These affidavits set out the attempts that have been made to serve the father with the mother’s material. I am satisfied that the father received the material by email on 14 May 2024 and was personally served on 22 May 2024. He made many attempts to avoid service – deliberately blocking emails from the mother’s solicitors – and then behaving aggressively towards the process server. The father has subsequently returned the mother’s trial material – which had been served on him – to the mother’s solicitor by post.
The covering letter from the mother’s solicitors which was personally served on the husband, and dated 15 May 2024 squarely advised the father that the mother would seek to proceed on an undefended basis if the father did not attend Court, and that could mean the orders sought by the mother would be made in the father’s absence.
My chambers also emailed each of the parties on 20 May 2024 requiring the provision of information to ready the matter for trial. The father sent a written response to chambers dated 20 May 2024 (which has been tendered). This letter provided as follows;
Regarding: your filing reference number MLC8590/2021 regarding your email received on Monday 20^th May 2024 at 9.36am (attached) I will not be participating in any further proceedings regarding this matter as [MR EINARSSON].
I now consider this matter closed.
The father was called at Court on 27 May 2024. There was no response to that call.
I am satisfied the that the father – being the applicant in these proceedings – was aware of the proceedings being listed, was aware the matter could proceed undefended, and was aware of the terms of the orders that would be sought in his absence. He has elected to play no role in the proceedings. I see no utility in the circumstances in adjourning the matter further.
Secondly, pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Court may vary or set aside an order if it was made in the absence of a party. Accordingly, the prejudice to the father in proceeding in his absence is ameliorated by this rule which provides him with the opportunity to seek a variation or discharge of the orders I make. He will of course have to explain his failure to participate in these proceedings.
Further, the matter has been in the list since August 2021. This was the second time the matter was listed before me for final hearing. The matter was first listed for final hearing on 4 September 2023. The matter had to be adjourned in circumstances where the father advised an application for bankruptcy had been filed against him in another court regarding an unpaid liability owing to previous solicitors. It was agreed those proceedings had to be resolved prior to the property dispute being determined in this Court. The bankruptcy proceedings were resolved in late 2023. The father has provided no evidence as to the outcome of those proceedings – beyond advising that the matter resolved and the petition for bankruptcy filed against him was withdrawn. I am not aware that the outcome has had any impact on the pool.
The matter involves parenting and property proceedings. I am mindful to resolve the matter as quickly, inexpensively, and efficiently as possible. It would be inappropriate in all the circumstances to permit the applicant father’s determination to not participate – and his decision not to prosecute his own application – to hold up the final resolution of this matter.
Accordingly, I grant leave for the matter to proceed on an undefended basis.
BRIEF BACKGROUND
In material previously filed by the father I note he asserted some differences in the following chronology. In circumstances where he is not participating in the hearing, and not present to contest the mother’s evidence, I adopt the mother’s chronology.
The father is 52 years old. The mother is 40 years old.
In around 2006 the father purchased a property at G Street, Melbourne (“G Street property”). It is asserted the purchase price was over $1,750,000.
In about 2010 the father received a payout because of a health condition. It appears to be conceded by the mother that he received around $2,000,000. He used these monies to purchase a property at J Street, Suburb D (“the Suburb D property”) in 2010 for around $1,700,000.
The parties commenced cohabitation – according to the mother – in 2013. There is one child of the relationship – X – who was born 2016. He is now eight years old. He attends K School and is in grade two. He is progressing well.
The mother deposed to the relationship being marred by violence and abuse perpetrated upon her by the father. She also asserted the father suffered from poor mental health which has at times required his admission into hospital.
The parties separated briefly on two occasions during their relationship – and separated on a final basis in March 2020.
The mother continued to be the child’s primary carer post separation. She facilitated the father’s time with the child on a regular basis, although there were periods the father absented himself from the child’s life.
The father filed these proceedings on 2 August 2021. At about the same time the mother sought and obtained an interim Intervention Order against the father.
There have been a significant number of interim hearings in this matter including hearings to consider the child’s time with the father, spousal maintenance for the mother, objections to subpoena, restraining orders, an enforcement application and contravention applications.
The operative parenting orders were made on 15 February 2022 and provide for the child to spend four nights each alternate weekends – from Thursday after school to Monday morning, and one night in the other week (being five nights in total across each fortnight) with the father. The orders also provided for some extension of time during school holidays. Those orders were made by consent after the father moved to Region L – closer to where the mother and child live in Suburb M.
In mid-2022, the father sold the G Street property for around $1,750,000. The net proceeds of sale were $17,000. Those monies were paid to the mother’s solicitor’s trust account and – according to the mother – have been wholly expended to fund expert reports in these proceedings.
The matter was first listed for final hearing on 4 September 2023. The hearing was adjourned to enable bankruptcy proceedings brought against the father by his previous solicitors to be completed. The father only advised those proceedings were on foot days before the matter was listed for trial in this Court. Those bankruptcy proceedings concluded in late 2023. The father did not advise the outcome of the proceedings, but it is understood the petition for bankruptcy was withdrawn and there was no order as to costs.
Since 25 March 2024, it is the mother’s evidence the father has substantially withdrawn from the child’s life. The mother provided a copy of the parties’ SMS exchange dated 27 March 2024 in which the father advised he would not be collecting the child that day, and advised the mother that she was to collect the child on Thursdays “until further notice”. The father has not collected the child on alternate Thursdays, or Fridays since that time and has at his election, spent no face-to-face time with the child since then.
The father advised the mother on 29 March 2024 via email that he has moved ‘back to Melbourne’. The mother believes he has moved in with his parents in Suburb C. However, the father has declined to provide the mother with his new residential address. The mother said she has seen a ‘for lease’ sign at the front of the property the father previously occupied.
The mother gave some brief oral evidence advising that, after a complete absence of six-weeks, the father has resumed some ad hoc electronic communication with the child, contacting him on about four or five occasions by facetime since early May 2024. The father also attended to watch the child play sport on about 21 May 2024. Otherwise, the father has determined to spend no weekend, or overnight time with the child. The mother deposed that when she overheard the child asking the father during a facetime communication when he might see him, the father replied that he was not sure.
MATTERS TO BE DETERMINED
The substantive matters I must determine are:
(a)what parenting orders are in the child’s best interests?; and
(b)whether it is just and equitable that I make orders adjusting the parties’ interests in property, and if so, what orders would be just and equitable and otherwise appropriate to make.
I will deal with the parenting issues first.
PARENTING
This case was heard after the enactment of the Federal Circuit and Family Court of Australia (Family Law) Amendment (2024 Measures No.1) Rules 2024. The legislative changes therefore apply to this case and the consideration of best interest factors below reflects the relevant legislation as at the date of final hearing.
HOW ARE THE CHILDREN’S BEST INTERESTS ASSESSED?
Section 60CA of the Family Law Act sets out that when deciding whether to make a particular parenting order in relation to children, the best interests of the child must be my paramount consideration.
The objects of Part VII of the Family Law Act inform how I must exercise my discretion. Those objects include ensuring that the best interests of the child are met, including by ensuring their safety [s60B(a)]. The legislation further provides that I must also give effect to the Convention on the Rights of the Child [s 60B(b)].
THE GENERAL CONSIDERATIONS
There are a range of considerations that I must take into account in determining what is in the child’s best interests.
Section 60CC(2) sets out a non-hierarchical list of considerations which I must take into account being:
(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.
Subsection 60CC(2A) provides:
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.
Promoting safety
It is the mother’s evidence that she was subjected to increasing episodes of family violence from shortly after the commencement of the parties’ relationship. She described the father’s unpredictability, his frequent angry outbursts at her and at the child, verbal abuse and denigration, periods of time where he refused to speak to her, threats to leave her with nothing, threats to assault her, control of the parties’ finances and an occasion where he physically prevented her from leaving the home. Additionally, during a short period the parties separated in September 2019 the mother deposed that the father refused to allow the mother to collect personal belongings and items for herself and the child. The father subsequently threw away a number of the child’s toys and deliberately damaged some of her personal items, and hid others.
The mother also deposed to the father suffering poor mental health. She set out that the father attended upon a psychiatrist in 2017 and was prescribed medication. However, she deposed the father’s compliance with his treatment regime was inconsistent. The mother said at times the father appeared to be significantly affected by medication, becoming “disengaged with his surroundings … sometimes being delirious”. She said the father experienced rapid mood changes, and that at times he would sleep excessively, at other times refuse to engage with her and the child.
In addition, the mother’s evidence is that between 2019 and 2023 the father was prescribed multiple other medications including for the treatment of multiple disorders. I note the mother further deposed the subpoenaed material revealed the father attended upon 48 different doctors between May 2019 and February 2024 across a variety of different locations.
When the parties separated in 2020, the mother said the father became enraged and locked her and the child out of the home. He initially refused to allow the mother any access to funds and declined to provide her with any furniture from their home. She said the father’s conduct towards her deteriorated post separation, and he told her he would “bankrupt [her]” and leave her with “nothing”.
In November 2023, the mother’s solicitors received correspondence from Dr N at O Health Service advising the father was “currently managing personal medical problems” and would “not be able to attend any matters related to his family law case”. The letter requested that the mother’s solicitors “cease and desist with regard to any contact with [the father] while he manages his medical issues”. The father has provided no explanation for his doctor’s advice and requests. He has ignored all correspondence from the mother’s solicitors since that time, save to send back the mother’s trial material after it was personally served on him. Accordingly, the current state of the father’s mental and physical health – and whether that impacts his ability to provide safe care for the child – is unknown.
It is of concern that the father has determined not to spend time with the child at this point. It is also of concern that he refused to participate in these proceedings. The letter he sent to the Court in which he said he would not participate and considered the matter “closed” was sent from the R Organisation and his address was given as a Private Member of that organisation. That appears to be a “sovereign citizen” group. These matters raise real concerns about the father’s functioning – which is clearly relevant to questions of safety.
Views expressed by the child
I understand two Family Reports were prepared in this matter. Whilst those reports were not outlined as being relied upon by the mother, she has responded to the reports in her trial material. Accordingly, to understand her evidence, and her criticisms of the reports, I have considered their contents. They also give me some evidence as to the child’s views and the nature of his relationships with his parents.
In the updated Family Report dated 3 August 2023 the child was reported as being more settled in the knowledge that he would be spending regular time with his father – with the Family Report writer having previously formed a view that the mother had unnecessarily interfered in the father/child relationship. It seems to me that the father’s recent decision to move away from the child and away from regular and predictable time must be distressing and confusing for the child.
The child told the Family Report writer he wanted to live primarily with his father, describing his father as “more fun”. He also “spoke of the benefits of living in an equal shared care parenting arrangement”. He was seven at the time of interview.
The child is now eight years old. I do not have evidence as to his current views. Obviously at his age, the child’s views would not be determinative. It is clear, however, that he would like to maintain a relationship with his father.
Whatever the child’s current views might be, as a matter of practicability however, the child’s views cannot overcome the fact that the parties now appear to live a significant distance from each other. Nor can they overcome the father’s decision to walk away from the proceedings, and to substantially withdraw from the child’s life at this time. These circumstances mean that a shared care arrangement – or indeed overnight time mid-week during school term – is not practicable, nor something that the Court could realistically consider at this stage.
Developmental, psychological, emotional, and cultural needs of the child
The child appears to be developing well and having his needs met.
According to the Family Report writer the child had a “close affinity” with his father and experienced some difficulties in his relationship with his mother. However, during observations, the mother was described as child focussed and there was no criticism of her parenting beyond asserting that the mother “tended to dominate the conversation”. The observations of the child with the father were described in very positive terms.
The observations of the close father/son relationship make the father’s recent action in withdrawing from the child’s life perplexing. As observed, it must be quite upsetting and confusing for the child.
Capacity of each person who has or is proposed to have parental responsibility for the child to provide for their developmental, psychological, emotional and cultural needs
The Family Report writer opined that the father presented as very child focussed. She was positive about the role the father played in the child’s life and impressed that the father had upended his life to move to Region L in order to remain close to and available to the child. The report writer was more critical of the mother, regarding her has being overly controlling of the child’s time with the father.
However, the father’s resolve to live close to the child was reasonably short lived and his recent determination to withdraw from the child’s life could not be described as child focussed. I note further the report writer expressed some scepticism as to the mother’s assertion that the father would relocate to Melbourne once final orders were made. In light of the father’s decision to substantially withdraw from the child’s life and these proceedings it would appear there was more merit in the mother’s concerns about the father and his lack of stability than the report writer considered.
I have already referred to the mother’s apprehension regarding the father’s unpredictable and aggressive behaviours, his mental health issues, and his current functioning. Her evidence was that it was difficult to negotiate the child’s time with the father post separation. She said the father was often inconsistent with care and would not agree to a fixed and consistent regime, preferring to spend time with the child on an ad hoc basis that suited his schedule. At times post separation the mother said the father disappeared for periods, and then he would resume contact with her and request time with the child. He has again substantially absented himself from the child’s life.

These matters raise concerns as to the father’s capacity to appropriately and safely provide care for the child. These matters may also demonstrate the father’s lack of insight and understanding of the child’s need for stable, predictable and consistent parenting.
The mother has been the child’s primary carer throughout his life. The mother undertook a Tuning into Kids course in late 2021 to improve her parenting strategies and communication with the child.
I am satisfied the mother provides the child with a stable, safe and comfortable home environment and that she provides adequately for his needs. The child is progressing well in her care. I am also satisfied that the mother will facilitate a relationship between the child and the father as best as she can. To that end I note the orders she sought were not for no time, or only time as agreed, notwithstanding her concerns about some of the father’s behaviour. She has proposed ongoing, alternate weekend time despite the father’s absence for some months, as she recognises the importance of the father/child relationship, and is satisfied that the father is able to provide safe and appropriate parenting on those alternate weekends.
The benefit to the child of being able to have a relationship with their parents, and other people who are significant to the child
It is plain the child will benefit from having a relationship with both of his parents. The mother acknowledges the child has a close and loving relationship with his father, and she wishes for that relationship to continue.
Any other matters of relevance to the particular circumstances of the child
During the relationship the father worked long days, leaving at 7.00 am and returning late at night. He also undertook weekend work from early 2019. In those circumstances the vast bulk of the child’s care fell to the mother. She continues to provide primary care for the child – and has done so consistently throughout the child’s life.
The history or family violence, abuse or neglect, and any family violence order that applies or has applied
I have already set out the mother’s evidence regarding family violence.
The mother obtained an Intervention Order in mid-2021. That application was withdrawn in early 2022 with the father providing an undertaking not to commit family violence. That undertaking expired in early 2023.
PARENTING ORDERS TO BE MADE
Decision making
Pursuant to s 61DAA of the Family Law Act, in the event an order is made for the parents to have joint decision-making duties, that order would require the parties to consult each other in relation to each decision and make a genuine effort to come to a joint decision.
It is the mother’s case that she should have sole decision-making authority in relation to the child’s major long-term issues. She said the parties’ co-parenting relationship is not sufficiently developed to enable them to consult and make genuine efforts to reach joint decisions. She said their communication is very limited and strained. She said on occasion when the parents have disagreed regarding care arrangements, the father has become infuriated at her. On other occasions he simply has not replied to the mother’s communications. As already set out, it is also the mother’s case that she has been subjected to abusive and controlling behaviours by the father, which makes it difficult for her to negotiate with him.
The material before me also suggests that the parties have come into conflict at least in relation to medical matters affecting the child.
I note further that the father has elected not to exercise time with the child since March 2024, and that he declined to participate in the final hearing.
Decisions will need to be made for the child in a timely fashion – and in circumstances where the father, for whatever reason, is currently electing to play a minor role in the child’s life, the responsibility must fall to the mother. I am also cognisant of the mother’s evidence that there have been other occasions of time when the father has decided to limit his role in the child’s life.
It seems to me that the significant issues impacting the child will be decisions to be made in relation to his health and education. I see no reason to extend the mother’s decision-making authority beyond those very important aspects of the child’s care, welfare and development when there is no evidence that other major long-term issues have been in dispute between the parents.
Live with
The child has always lived with the mother. Again, where the father has not participated in these proceedings, there is no basis upon which I would change that arrangement.
Time with
In terms of the child’s time with the father, I am satisfied it is in his best interests for time to be as proposed by the mother. Whilst the Family Report writer recommended time increase – rather than decrease – that recommendation was made in circumstances where:
(a)the parties were living close to each other, and close to the child’s school; and
(b)the father was spending regular time with the child.
Those important factors have fundamentally changed. The father is now living in Melbourne. It would clearly be impractical for the child to spend Sunday nights, or any school night in the father’s care. To make orders to that effect would impose on the child an unreasonable travel burden if he had to travel from his father’s home (which appears to be in Suburb C) to his school in Region L. In the circumstances, the child’s time with the father will conclude on Sundays so that he is not required to wake up early and travel extensively to attend school on a school morning.
The mother proposed orders for the child to spend time with each parent on various special occasions. Those orders seem entirely appropriate and in the child’s best interests. The mother proposed the child’s time during school holidays be suspended. In addition, she sought orders she be permitted to travel overseas with the child for holidays.
At first blush the mother’s proposal for no time during holidays seems difficult to understand. However, that proposal was put in circumstances where the father has elected to withdraw substantially from the child at this point. It is not known when the father may determine he wants to resume weekend time with the child. If the father is substantially absent for a prolonged period, it will likely be extremely upsetting and confusing for the child. Orders requiring the child to then spend extended periods in his father’s care after a protracted period of absence could then also be distressing and confusing for him.
Further, the mother may wish to holiday with the child interstate, or overseas. In circumstances where the father has at times absented himself from the child’s life it is not unreasonable that the mother should be at liberty to make arrangements for herself and the child during school holiday periods, and not be required to remain available in Victoria in the event the father decides to spend time with the child.
I note the mother’s proposals do include the usual order that additional time can occur as agreed. If the father resumes regular, and reliable time with the child, I am reasonably confident the mother will ensure the child also spends holidays with the father.
Travel
The mother proposed orders that she and the child be able to travel outside Australia for holidays. In the course of discussions with counsel the mother indicated she would not travel more than once every two years, and any international holiday would fall as far as practicable during school holiday periods. There are no flight risk issues in this matter. The father’s Amended Amended Amended Initiating Application filed 16 August 2023 similarly proposed that each parent be at liberty to travel outside of Australia for holidays with the child.
The mother’s proposals for holidays – including the provision of an itinerary to the father – appear reasonable and practicable. In the absence of any objection raised by the father to the mother’s proposals for overseas travel, it seems to me that the child’s best interests will be met by enabling him to experience travel internationally as proposed by the mother.
I will also make the orders sought by the mother in relation to obtaining a passport for the child, so that such overseas travel can be facilitated.
Communication
The mother proposed orders that she be able to communicate with the child at 5.00 pm one day the child is in the father’s care for a weekend, and if he is spending extended time with the father, communication occur twice across seven days. The father has not provided any objection to that proposal. It does not appear to be unreasonable.
The mother’s proposed minute did not include any proposed orders for the child to communicate with the father. The interim orders made 15 February 2022 provided for the child to communicate with the father:
i.By telephone/videolink each Wednesday and each alternate Sunday at 5pm for 30 minutes, such call to be initiated by the father and facilitated by the mother at any location convenient to her.
It does not seem to me to be in the child’s best interests to discharge that order and make no alternate provision for communication. I note further the mother’s evidence that the father has – on a somewhat ad hoc basis – communicated with the child even though he has stopped spending time with him. That communication should continue to be facilitated.
There was no evidence advanced by the mother that the regime contained in the interim orders was problematic or not in the child’s best interests. Accordingly, the final orders will include an order to this effect. However, I have reduced the time of each parent’s call to 15 minutes, unless otherwise agreed so that the calls are not overly intrusive into the child’s time in the other parents’ household.
The mother has also proposed very standard orders that the parties keep each other informed if the child suffers serious illness or injury, and that the parents provide the other their address and telephone numbers. Those orders are entirely appropriate.
Injunctions
The mother sought an order preventing the father from exercising overnight time at the home of the paternal grandparents. Her evidence in that regard was that the paternal grandmother suffers from very poor mental health, and the mother has significant concerns about the child’s safety and sense of security in that household. She said the child had not previously spent overnight time at the home of the paternal grandparents, although she acknowledged the child and paternal grandfather have a close bond. Indeed, the mother gave some brief oral evidence, in which she said she had recently facilitated the child spending some time with the grandfather when they lunched and shopped together. In that oral evidence the mother also said the paternal grandfather is around 85 years old, and unable to drive. She described the paternal grandmother as quite mentally unwell – being housebound, erratic, sleeping excessively and unable to attend to her hygiene. She said the father previously told her that the paternal grandmother had been diagnosed with mental health conditions.
The father was on notice that the mother had concerns regarding his parents’ home and that her proposed orders restrained him from having the child there overnight. The father has not attended Court to provide any evidence to persuade me that the mother’s concerns are misguided, or lack any reasonable basis. In the circumstances and on the basis of the mother’s evidence I am satisfied that overnight time should occur at a separate residence to the paternal grandparents’ home. The father will still be able to take the child to visit his grandparents for shorter visits, during the daytime.
The mother sought a wide range of injunctive relief, including restraining the parties from posting “denigrating material about each other or the other’s family members on social media”. I have redrafted the restraints, and rather than including such broad restraints, I have limited them to the injunctions more usually made in parenting proceedings. There was little evidence as to the need for such wide-ranging restraints. Moreover, I question the source of power I would be exercising to make some of the orders as sought.
For these reasons I am satisfied the parenting orders I am pronouncing are in the child’s best interests.
PROPERTY
In material filed previously on behalf of the father it was apparent that the parties were not in agreement regarding the asset pool. However, in circumstances where:
(a)the father was on notice as to the mother’s assertions as to the parties’ assets and liabilities; and
(b)has elected not to participate in these proceedings, to test the evidence or advocate in support of his assertions as to the pool;
I am of the view that it is generally appropriate to accept the mother’s evidence where that is properly supported.
Findings in relation to the pool
The Suburb D property has been valued by a single expert as at 14 February 2023 at $2,100,000. It is subject to a mortgage of around $416,078, as at December 2023.
The sum of $16,940 was paid to the mother’s solicitors being the proceeds of sale of G Street in mid-2022. That amount shall not be notionally added back, as I accept the mother’s evidence that the funds were applied to meet the costs of valuations and the mediator’s fees. There are nil funds remaining on trust.
I am excluding the parties’ bank account balances from the pool. The amounts are modest and there seems no utility in including them.
There is also a bank account in the child’s name with $15,105 in it. I do not know who has control of that account. It would seem to me appropriate that the mother have control of the account as she has the primary care for the child. In circumstances where I do not know anything else about the fund, or who has control of it, I am excluding it from the pool.
I understand the father previously asserted the mother has savings of around $280,000. That is denied by the mother. There is no evidence adduced or subpoenaed by the father that supported this assertion and accordingly I do not accept it.
The mother asserted the father’s business – P Pty Ltd – was worth $250,000.
According to the father’s previously filed material the business had two vehicles –
(a)Motor Vehicle 1 driven by the mother which the father had included in his material at $180,000; and
(b)Motor Vehicle 2 driven by the father which he included in his material at $70,350.
I note those two amounts add up to $250,350, being effectively the value the mother ascribed to the business in her outline of case.
The father also asserted there was a loan in relation to one of the vehicles of $77,828. It is the mother’s understanding that the loan is secured over the vehicle driven by the father.
The vehicles have not been valued. The only ‘evidence’ the mother adduced as to the value of her vehicle was a Redbook statement, asserting that the same make and model as the car driven by the mother in very good condition could be sold privately for $100,000.
A Redbook indication is not evidence of the value of the specific car driven by the mother. It does not appear the mother has provided the father with the Redbook statement. Nor does her trial affidavit or outline of case ascribe a particular value to the vehicle. Accordingly, I cannot be satisfied that the father is on notice of what she says the car is worth. He is on notice that she would like to retain the vehicle.
It seems to me that the most efficient way to deal with this matter is to adopt the value the father ascribed to the vehicle. I appreciate that is an unusual way to manage this gap in the evidence where the proceedings are undefended. However, the mother could have had the vehicle valued, and/or she could have provided the father with that valuation, or the Redbook statement upon which she sought to rely. Given the relatively modest difference between the parties’ assertions as to the value of the vehicle there seems little utility in me to adjourning the matter to enable the mother to obtain, and serve, a proper valuation.
I will include the father’s vehicle at $70,350 and the loan encumbering it in the pool of assets. The material filed by the mother and served on him included those assets and liabilities – albeit she indicated she did not know whether the father’s figures were correct.
Counsel for the mother conceded the father’s business bank account was an operating account, and likely to fluctuate. In the circumstances, it does not appear appropriate to include the funds in that account taken at any one point in time. This is particularly so when it is acknowledged by the mother that the business has no real value other than the vehicles. For similar reasons I am not including the father’s asserted business credit card liability. I have no evidence as to what is currently owed, or how those monies were accumulated.
I note that according to the father’s material the company owed him the sum of around $290,000 in 2021. He said he had provided the funds to P Pty Ltd to engage in business development. If that is accurate then whilst the father has an asset of $290,000, the business has a corresponding liability. As they offset each other there is no need to include either.
Both parties appear to have some modest digital currency holdings. Given the volatility of the asset, and the modesty of the holdings, I decline to include those amounts.
The mother asserted she had home contents worth $5,000. There was no value nominated for the home contents the father has. On the assumption that each party lives in a fully furnished home, I will leave those items off the pool.
The mother asserted the father has vehicles, tools and equipment. She has ‘guessed’ the values of those items totalling $58,000. They have not been valued, and the father did not prescribe any value to those items in his previously filed Financial Statement. He did acknowledge he operated a business, and that he had equipment. Indeed, he complained that when he relocated to Region L, he was unable to find a property large enough to store all his equipment. He did not refer to having a vehicle.
The father is on notice as to the dollar value the mother ascribes to those items and has elected not to participate in these proceedings to assert otherwise. However, the mother’s ‘guess’ as to these items having the value she ascribes does not seem to me to provide an appropriate basis to include her figures on the parties’ balance sheet. Rather, I am of the view that it is more appropriate that I consider the fact that the father does have tools and equipment to operate a business under s 90SF(3)(r).
The parties also have jewellery, which was valued at $465,195 by a single expert in February 2023. According to the father many of these items were owned by him at the commencement of the parties’ relationship. The mother’s evidence is that she has jewellery worth $70,000 in her possession, and the father has retained the balance of the jewellery. In circumstances where the father is on notice as to the mother’s evidence as to the jewellery she has in her possession and has not participated in these proceedings to challenge that evidence, I accept her figures.
The mother included in her table of assets an item she called “minor jewellery and luxury items” which she said were worth a total of $129,231. I understand those assets include items such as luxury sunglasses and suitcases, and some items of furniture. She has not set out which party has which item – simply calling them “joint”. As best I can tell, the items have not been valued and I do not know who has which item. In those circumstances I will not include the items in the pool.
I understand the parties both have frequent flyer points. I am not including any value for those points in the pool.

I note the father’s previously filed material sought to assert the existence of other assets, and additional liabilities including a loan to his father, legal fees, rates, and land tax. However, he did not participate in these proceedings and there is no evidence before me regarding those additional items he may have contended for, and accordingly, I will disregard them.
I am accordingly satisfied that the asset pool is comprised as follows:

ASSETS

J Street, Suburb D

$2,100,000

Motor Vehicle 1 – in the mother’s possession

$180,000

Motor Vehicle 2 – in the father’s possession

$70,350

Jewellery – in the father’s possession

$395,231

Jewellery – in the mother’s possession

$70,000

TOTAL ASSETS

$2,815,581

LIABILITIES

ANZ mortgage secured over the Suburb D property

($416,078)

Motor Vehicle 1 loan over Motor Vehicle 2 in the father’s possession

($77,828)

TOTAL LIABILITIES

($493,906)

NET TANGIBLE POOL

$2,321,675

In the event the Suburb D property is sold, this will attract a Capital Gains Taxation liability.
Superannuation
The parties operated a self-managed superannuation fund called Superannuation Fund 1. That was established by the father in around late 2010. He said at the commencement of the relationship his entitlements in that fund totalled $225,696.
In mid-2017, the mother transferred her superannuation entitlements into the SMSF of around $35,424.
The fund owns a commercial property at Q Street, Suburb S valued by a single expert in February 2023 at $850,000. This property was purchased in late 2015 using funds, according to the father, from the sale of a business he operated commenced by him prior to the parties’ relationship.
The mother tendered the financial statement for the SMSF for the year ending June 2022. According to that statement the fund also owned some digital currency worth $134,479 and had debtors of $179,553.
The statement further sets out that the father’s entitlement in the fund was $598,116 and the mother’s $328,743. That was on the basis that the Q Street property was valued at $610,000 – and it is now valued at $240,000 more.
No more up to date statement was provided.
The mother proposed the parties’ entitlements in the SMSF be equalised, with the mother to roll out her 50 per cent entitlement. That proposal would likely require the real property to be sold in order to pay out the mother. It is the mother’s evidence that the father has recently sought to sell the property.
ALLEGATIONS OF NON-DISCLOSURE
The mother asserted the father had failed to provide full and frank disclosure in accordance with his obligations. The mother deposed to multiple requests being made for disclosure that were ignored or only partially complied with. She said the father made multiple threats to her to “bankrupt you with your legal fees”, and that he would “drag the matter out for years”. She said as a result of his non-disclosure she was required to issue subpoenas to endeavour to determine the asset pool.
It was the mother’s case that as a result of the father’s failure to make full and frank disclosure she does not know what assets he has, nor does she know his income. She pointed to the profits the father was able to generate in his business throughout 2017 and 2020, as previously deposed by him, in addition to other revenue raising ventures he was involved in. She said in those circumstances the Court should be prepared to draw inferences that the father has a significant income earning capacity that he has effectively obfuscated by failing to meet his duty of disclosure.
The Full Court of the Family Court said in Weir & Weir (1992) FLC 92-338, at 79,593, said:-
… once it has been established that there has been a deliberate non-disclosure … the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
The case law makes it clear that in the event of one party deliberately failing to meet their obligations of disclosure, the Court may then draw adverse inferences against that party, “if there is material on which such an inference can be based”; Stein v Stein (1986) FLC 91-779, at 75,677.
In Kannis & Kannis (2002) 172 FLR 464, the Full Court emphasised the potential consequence of a failure to disclose, summarised in the headnote:
… whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, was beside the point. The duty to disclose is absolute. Where the Court is satisfied the whole truth has not come out it might readily conclude that the asset pool is greater than demonstrated. In those circumstances it might be appropriate to err on the side of generosity to the party who might be otherwise be seen to be disadvantaged by the lack of complete candour.
The mother outlined in her trial affidavit the difficulties she had encountered obtaining documents from the father. Correspondence from her solicitors to those then acting on behalf of the father requesting the production of documents was tendered at trial. It was the mother’s evidence that some requests for documents were ignored and had to be followed up repeatedly. She said many documents were not produced, and that in relation to what was produced it was piecemeal and incomplete. Further despite multiple requests for explanations for various transactions – and an order made in June 2022 requiring the father to provide complete and detailed explanations – he failed to do so.
I am satisfied that the father has not provided full and frank disclosure to the mother. I am also satisfied that this has made it more difficult for the mother to determine the pool of assets and liabilities. It has also made it difficult to determine the father’s income earning capacity. I will turn later to the inferences that can be drawn following this non-disclosure.
IS IT JUST AND EQUITABLE THAT AN ORDER BE MADE?
Having identified the parties’ existing assets and liabilities, I must determine whether pursuant to s 90SM(3) of the Family Law Act it is just and equitable for any order to be made adjusting the parties’ interests in that pool. That is a separate enquiry to that set out in s 90SM(4). There is no presumption that the parties’ entitlements in the existing asset pool should be altered, or that one party has the right to have the property of the parties divided between them only on the basis of the considerations in s 90SM(4).
In my view, this is one of the “vast majority of cases” referred to by the plurality of the High Court in Bevan v Bevan (2013) 279 FLR 1 at [164] in which the requirements of s 90SM(3) of the Family Law Act are fairly readily satisfied. It is plainly just and equitable to make an order pursuant to s 90SM of the Family Law Act in these proceedings for a division of property between the parties. If no order was made, the father would retain the vast majority of the assets, after a seven year relationship that produced one child, for whom the mother is currently wholly physically and financially responsible.
SECTION 90SM(4) OF THE ACT
Having determined it is just and equitable that orders be made, I must now weigh and assess the parties’ contributions of all kinds so that I can determine what orders should be made. This is not a mathematic or accounting exercise – but rather one in which, as opined by his Honour Kay J at 147 of Aleksovski v Aleksovski (1996) 135 FLR 131, I must;
… somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship …
Initial contributions
The father owned the G Street property at the commencement of the relationship. He purchased that for over $1,750,000 in around mid-2006. In 2012 – not long before the parties commenced living together – the mortgage was refinanced with the sum of $1,400,000 being borrowed. Accordingly, it would not be unreasonable to conclude the father had equity of around $360,000.
The father also owned the Suburb D property. He purchased that in around 2010 for $1,700,000 – using funds from an insurance payout following a medical. That property was unencumbered at the commencement of the parties’ relationship. The father said that he undertook renovations to that property prior to cohabitation – although there is no evidence as to the extent of the renovations, nor whether they had any impact on the value of the property.
The father said at cohabitation he was operating a business he said he established in 1994 for around $150,000 to $200,000. There is no evidence as to the value of the business at the time the parties commenced their relationship. The father said the business was sold in mid-2015 for $1,500,000.
Accordingly, the father’s initial contributions were not less than $2,400,000. Much of that initial contribution was made up of the Suburb D property, which the father continues to own.
The father also said he owned a large amount of expensive jewellery, watches, accessories and handbags.
In addition, the father said he had established a SMSF in late 2010. At the time the parties commenced cohabitation that SMSF had cash funds of around $225,696.
The mother had a loan of $18,680 and a vehicle worth $14,000. She said she had other furniture and belongings worth about $30,000. She also had some superannuation.
Contributions during the marriage
According to the father’s earlier filed material, he continued to operate the business in the early years of the parties’ relationship. As set out, he said he sold that for approximately $1,500,000 in mid-2015, and contributed the funds into his business P Pty Ltd and the SMSF.
The father said P Pty Ltd operated a business, as well as undertaking developments. In his previously filed material, the father said he used equity in the Suburb D and G Street properties to develop other properties. He purchased and sold several properties in the Suburb T area between about 2017 and 2021 for profit.
The mother said she was in paid employment until the child was born. She said she applied all her earnings – including her maternity leave payments and a $9,000 redundancy package to the relationship.
The mother deposed she was the primary carer for the child and attended to the vast majority of homemaker and parent duties. She also said that as a result of the father’s poor mental health and functioning she had to provide the father with additional emotional and physical care at times he was unwell. That included periods when the father had lost his licence and the mother drove him to and from work. She said the father also gambled excessively.
Contributions post-separation
The mother has continued in her role as homemaker and parent to the parties’ child post separation. The father has provided her with some funds – of around $20,000 – to assist her to secure rental accommodation for herself and the child.
The father also provided the mother with the use of a motor vehicle through P Pty Ltd.
RELEVANT CONSIDERATIONS PURSUANT TO SECTION 90SF(3) OF THE ACT
The mother ceased working in paid employment to provide primary care for the parties’ child. She continues in her role as the child’s primary carer. Post separation she has established a business in which she works five to six hours each working day and earns about $1,300 per week. She would like to retrain and re-enter the workforce in specialist management – being the industry in which she was employed prior to the child’s birth. Her income earning capacity has been affected by her role as the child’s primary carer and continues to be impacted at this time.
In his previously filed material, the father deposed to having successfully developed a number of properties in the Suburb T area. He also deposed that he established, owned, and operated a business. I note when the parties were interviewed for the preparation of the updated Family Report in May 2023 the father was described as self-employed. However, as at August 2023 the father said his only income was the rental income from the Suburb D property, which is approximately $14,000 per annum net.
The mother was sceptical of the father’s assertion that he is not in employment. From the bank statement discovered, she said she had identified a number of payments that had been made into and out of accounts in his name in 2023 that would suggest he continued to have access to some funds and continued to engage in investing activities. However, he clearly failed to disclose all his accounts.
I was not provided with copies of any taxation returns that could have assisted me in understanding the father’s income earning capacity.
The father previously paid child support, between April 2022 and August 2023. The mother said she received a total of 19 payments of varying amounts. In May 2023 the father commenced paying child support in the sum of $1,047 per month. However, he has paid no child support since 17 August 2023. There are now arrears of $9,549.
The mother asserted that the father gambled during the relationship which was a source of ongoing tension between them. She said when he lost, he would return depressed and angry. She said the father made significant withdrawals at gambling venues during the relationship. From the father’s bank statements, the mother said she had been able to identify that the father withdrew $209,816 from gambling venues between 2014 and 2020. It was conceded the mother’s evidence would fall short of establishing that the father had ‘wasted funds’ – but I was urged to consider this as a factor that could be considered pursuant to s 90SF(3)(r).
The father was on notice of the mother’s evidence about his gambling habits. The mother relied on a spreadsheet tendered as an aide memoir in which she listed multiple withdrawals made by the father between 2015 and early 2021 totalling in excess of $209,000 that related to the father’s gambling. That spreadsheet formed part of the mother’s trial material and has been served on the father.
The father has not attended Court to challenge that evidence. At its highest he told the Family Report writer that he gambled occasionally. He made a similar statement in his earlier filed affidavit. Additionally, as already outlined the father has failed to meet his obligations to provide full and frank disclosure and has failed to comply with an order requiring him to provide detailed answers to various transactions queried by the mother. Accordingly, the mother remains unclear whether she has been able to uncover the true extent of the father’s gambling.
In the circumstances, I am satisfied it is appropriate to infer that the father has used funds for gambling, and that this is a matter appropriately taken into consideration pursuant to s 90SF(3)(r).
As already mentioned, the father acknowledged he ran a business and had tools and equipment necessary to conduct that business. I have no admissible evidence as to the value of the various bits of plant and equipment given the father’s failure to participate in these proceedings. In the circumstances, I consider that the justice and equity of this case requires that I take the father’s possession of such items into account pursuant to s 90SF(3)(r).
ASSESSMENT OF CONTRIBUTIONS AND PROSPECTIVE NEEDS
I note this was a relatively short relationship, and that the father’s initial contributions were very significant. The Suburb D property was owned by the husband at the commencement of the relationship and continues to form the bulk of the asset pool. There were no improvements made to the property during the relationship.
The property owned by the SMSF was purchased using the proceeds of sale of a business commenced – according to the father – well prior to the parties’ cohabitation.
It is the mother’s case that she worked hard during the relationship – contributing her income when she was earning, and then providing homemaker and parent contributions. I accept that evidence.
The mother asserted the parties’ respective contributions should be assessed at 65 per cent by the father, and 35 per cent by her, substantially in light of the father’s greater initial contributions, and the duration of the relationship. On the mother’s evidence, the parties were in a relationship for seven years, that produced one child.
In my view and weighing all the contributions made by the parties to the non-superannuation pool across the totality of their relationship, I am satisfied that an appropriate assessment is 72 per cent by the father and 28 per cent by the mother. In my view that appropriately recognises the father’s far greater financial contribution, and the additional and myriad contributions each made, substantially in their spheres during the course of the seven year relationship.
The mother remains the child’s primary carer. She is younger than the father. She earns a modest income. As far as I can tell, in the past the father’s income has been greater than that earned by the mother. I have no evidence as to the father’s current income, or income earning capacity. In the event he is not earning an income, his capacity to provide child support will be compromised. I note again he is currently significantly in arrears, leaving the whole weight of providing for the child on the mother.
The Full Court in Van der Linden & Kordell [2010] FamCAFC 157 observed in relation to s 75(2) – which is in the same terms as s 90SF(3) – at [90];
90.As this court has often recognised (eg see Steinbrenner & Steinbrenner [2008] FamCAFC 193, at paragraph 234), given that the assessment of the relevant factors arising under s 75(2) of the Act inevitably moves from a “qualitative evaluation” of those factors to a “quantitative reflection of such evaluation, there will inevitably be a ‘leap’ from words to figures”. That is the nature of the exercise of discretion.
The mother sought an adjustment on the basis of s 90SF(3) factors of 30 per cent in her favour. That would bring her entitlement to 65 per cent of the pool. I do not agree that the circumstances of this matter require such a significant adjustment on the basis of the relevant factors contained in s 90SF(3).
Rather, I am satisfied it is appropriate for a 12 per cent adjustment in the mother’s favour on the basis of the s 90SF(3) considerations – so that the pool is divided 60 per cent to the father and 40 per cent to the mother.
In my view that further adjustment appropriately takes into account the mother’s responsibility for caring for the parties’ child and the impact of her caring duties on her earning capacity, in circumstances where the father is currently electing to spend no time with the child. I note further the father has ceased paying child support, and according to his material he is currently unemployed, leaving the full financial burden of providing for the child on the mother. This division also appropriately takes into account the father’s failure to make full and frank disclosure, and his failure to adduce evidence regarding the value of the tools and equipment in his possession – preventing the mother and the Court from being able to clearly assess the father’s actual income, the value of the assets in his possession, and his expenditure on gambling. It also takes into account that if the Suburb D property is sold, the father will no longer have the source of rental income.
SUPERANNUATION
The mother and father are the directors of the trustee company of the SMSF. I am satisfied that there has been procedural fairness as the father has been served as already set out in these reasons and more than 28 days have elapsed between service and the date I am pronouncing these orders. The father has not provided any specific objection to the proposed superannuation orders at any time since he was served with them.
In relation to superannuation as set out, the mother contributed $35,424. She proposes the parties’ entitlements in the SMSF be divided equally.

As already observed, the financial statement for 2022 provided the parties’ respective entitlements were $598,116 (in the father’s name) and $328,743 (in the mother’s name).
The real property has increased in value since that time. I have no more up to date information regarding other assets of the fund.
In light of the father’s significant contributions towards the fund, I am not satisfied that an equalisation of the parties’ superannuation entitlements would achieve justice and equity in this matter. Rather, based on the parties’ contributions pursuant to s 90SM(4) and the matters set out in s 90SF(3) it seems to me that superannuation should be divided in the same proportions as the parties’ non-superannuation assets.
In coming to that conclusion I note in particular that the mother rolled over her superannuation into the SMSF, and the mother’s caring duties for the parties’ child across the duration of the relationship and post separation which has – and will continue into the future – to adversely impact on the mother’s income earning capacity, and therefore on her ability to contribute to her superannuation entitlements.
I do not know if the SMSF is compliant.
PROPERTY ORDERS TO BE MADE
It is the wife’s proposal that to achieve a payout to her, the property at Suburb D will need to be sold. The sale of that property will attract capital gains taxation. The mother has had accounting advice that suggests the father may incur a liability of around $98,000. That is, of course, an estimate only, and based on the information provided by the mother which may or may not be correct.
It seems to me the father should be given a short period after service of these orders upon him to elect whether he will pay the mother what I have determined to be her entitlement, and retain the Suburb D property, or whether that property will be sold. If he fails to make an election, or elects for the property to be sold, the property will be sold and then any capital gains taxation liability will be borne by the parties in the same proportion as the assets have been divided.
If the father elects to retain the property, but then fails to make the payment, and the property is sold in default, it seems to me appropriate that in those circumstances the father alone should bear the liability. The orders I am making will reflect that.
If the property is to be sold, the father shall be given the opportunity to participate in selecting the selling agent. However, if he does not engage, the mother will appoint a selling agent. I appreciate it may become necessary for the mother to make a further application to the Court to have sole control of the sale of the property if the father does not properly participate. At this stage, however, I am not of the view it would be just and equitable to deprive the father of having input into the method of sale, reserve price, sale price or the terms of any sale.
I will also include the mother’s orders for the motor vehicle in the mother’s possession to be transferred to her name. The father was well aware that order was sought – and could be made in his absence. The mother requires a vehicle to transport the parties’ young child.
If the property is sold by agreement, then from the following adjustments need to be made:
(a)the father will need to pay the mother a further $5,101 from his share of the proceeds of sale, to ensure the non-property tangible assets as I have determined them are divided in the requisite proportions; and
(b)a sum equal to 40 per cent of any anticipated capital gains tax will need to be deducted from the mother’s share, and paid to the father. He will thereafter be responsible to ensure the capital gains liability is paid to the Australian Taxation Office. As already observed, if the father elects to pay the mother, but fails to do so, and the sale then occurs in default, in my view the father would then bear the responsibility entirely for the capital gains tax.
The parties have liberty to apply in relation to the sale and also in relation to the calculation of capital gains tax if they are unable to agree.
In relation to superannuation, I am making orders as sought by the mother, save for a different percentage adjustment in the superannuation that the mother will roll out. The father is squarely on notice as to the terms of those orders and has not sought to persuade the Court other orders are more appropriate.
As indicated, I do not know if the SMSF is compliant. In circumstances where the father has substantially managed the SMSF, and not provided documents in the discharge of his obligations to make full and frank disclosure it is, in my view, appropriate to make the indemnities sought by the mother as a result of any potential liability that might arise as a result of non-compliance or other default. If there were substantial issues, the father could have brought them to the attention of the Court. He has chosen not to do so.
The mother sought a variety of orders pursuant to s 106A. Those orders are all appropriate – so that if the father does not engage, or fails to execute the documents as required, settlement will not be unduly delayed. Again, the father was on notice as to the terms of the orders sought and has elected to remain silent and absent himself from these proceedings.
SERVICE
These orders and my reasons for judgment will need to be served on the father. I appreciate there have been significant difficulties with service upon him – and that the orders I am making significantly impact the father’s parenting obligations, and financial circumstances. For these reasons I require the mother’s solicitors to personally serve the father. The Court will also send a copy of the orders and reasons to the father by email. To date correspondence sent from the Court’s email has not bounced back – but of course that may change.
The father then has his rights pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to seek my orders be varied or set aside as they have been made in his absence.
For all of the foregoing reasons, I make the orders as are set out.

I certify that the preceding one hundred and eighty-three (183) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter.
Associate:
Dated: 24 June 2024

File number:	MLC 8590 of 2021
Judgment of:	CARTER J
Date of judgment:	24 June 2024
Catchwords:	FAMILY LAW – PROCEDURAL – Where the father declined to participate in these proceedings – Leave granted to proceed on an undefended basis. FAMILY LAW – PARENTING – Where the father has not spent time with the child since March 2024 – Orders made for the mother to have sole responsibility for major long-term decisions in relation to health and education – Orders made for joint decision-making for all other long-term decisions. FAMILY LAW – PROPERTY – Where the father has not provided full and frank disclosure – Where there is limited evidence as to the father’s total assets and liabilities – Orders made.
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60B, 60CC, 61DAA, 90SF, 90SM Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Cases cited:	Aleksovski v Aleksovski (1996) 135 FLR 131 Bevan v Bevan (2013) 279 FLR 1 Kannis & Kannis (2002) 172 FLR 464 Stein v Stein (1986) FLC 91-779 Van der Linden & Kordell [2010] FamCAFC 157 Weir & Weir (1992) FLC 92-338
Division:	Division 1 First Instance
Number of paragraphs:	183
Date of hearing:	27 May 2024
Place:	Melbourne
The Applicant:	Litigant in person (did not participate)
Counsel for the Respondent:	Ms Southey
Solicitor for the Respondent:	Lardners Solicitors

MLC 8590 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR EINARSSON Applicant
AND:	MS JOSHI Respondent

ORDER MADE BY:	CARTER J
DATE OF ORDER:	24 JUNE 2024

ASSETS
J Street, Suburb D	$2,100,000
Motor Vehicle 1 – in the mother’s possession	$180,000
Motor Vehicle 2 – in the father’s possession	$70,350
Jewellery – in the father’s possession	$395,231
Jewellery – in the mother’s possession	$70,000
TOTAL ASSETS	$2,815,581
LIABILITIES
ANZ mortgage secured over the Suburb D property	($416,078)
Motor Vehicle 1 loan over Motor Vehicle 2 in the father’s possession	($77,828)
TOTAL LIABILITIES	($493,906)
NET TANGIBLE POOL	$2,321,675