Elza & Chanan
[2025] FedCFamC2F 467
•10 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Elza & Chanan [2025] FedCFamC2F 467
File number(s): MLC 10932 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 10 April 2025 Catchwords: FAMILY LAW – Parenting – Where parents have highly conflictual relationship – Father’s ability to cooperate with Mother considered ‘problematic’ – Father highly critical of Mother’s parenting – Allegations of family violence – Where Father minimised family violence on affidavit and in the witness box – Aspects of family violence characterised by Father as not inappropriate in his culture – Child experts concerned about children’s involvement in and absorption of parental conflict – Orders made to reduce contact between parents – Orders made for spend time arrangements in relation to important religious and cultural events.
PROPERTY – De facto relationship – Limited assets available for division – Where Father alleges Mother has retained or dissipated matrimonial funds by investing in shares – Finding that Mother was “scammed” and lost the funds invested – Where Father obtained significant funds from his parents during the relationship and did not inform the Mother – Where Father paid same funds plus large sum claimed to be “interest” back to parents around the time of separation – Insufficient evidence to substantiate Father’s assertion that the funds were a “loan” – Funds added back to asset pool.
Legislation: Family Law Act 1975 (Cth) ss 4, 4AB, 60CA, 60CC, 60CG, 61DAAA, 79, 90SF, 90SM, 90SL, 90SS and 102NA
Evidence Act 1995 (Cth) ss 140 and 144
Cases cited: Benson & Drury [2020] FamCAFC 303
Blass & Blass (2022) FLC 94-085
Chorn & Hopkins (2004) FLC 93-204
Clauson & Clauson (1995) FLC 92-595
Fox v Percy (2003) 214 CLR 118
Gosper & Gosper (1987) FLC 91-818; [1987] FamCA 43
Hickey and Hickey and the AG for the C’lth of Australia (2003) FLC 93-143
Keskin & Keskin and Anor (2019) FLC 93-932
Kessey & Kessey (1994) FLC 92-495; [1994] FamCA 162
Kowaliw&Kowaliw (1981) FLC 91-092
Lovine & Connor and Anor (2012) FLC 93-515
Omacini & Omacini (2005) FLC 93-218
Phipson & Phipson [2009] FamCAFC 28
Rosati v Rosati (1998) FLC 92-804
Stanford v Stanford [2012] HCA 52; (2012) FLC 93-518
Varnham & Moses (2021) FLC 94-007
Wallis & Manning (2017) FLC 93-759
Wayne & Wayne [2010] FamCAFC 33
Division: Division 2 Family Law Number of paragraphs: 202 Date of hearing: 28 – 30 January, 7 April 2025 Place: Melbourne Counsel for the Applicant: Mr Goddard Solicitor for the Applicant: Waterson Legal Counsel for the Respondent: Mr Ng Solicitor for the Respondent: Victoria Legal Aid ORDERS
MLC 10932 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ELZA
Applicant
AND: MR CHANAN
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
10 APRIL 2025
THE COURT ORDERS THAT:
1.The Applicant Mother, Ms Elza (‘the Mother’), have sole decision-making responsibility for major long-term issues in relation to the education (including schooling) and health (including psychological counselling), as defined in section 4 of the Family Law Act 1975 (Cth), for the children, X born in 2015 and Y born in 2020 (‘the children’).
2.In exercising her sole decision-making responsibility for decisions about major long-term issues pertaining to the children’s education and health, the Mother shall:
(a)Advise the respondent Father, Mr Chanan (‘the Father’), except in cases of real emergency, about the decision to be made, as long beforehand as is practicable and invite his response; and
(b)Make a genuine effort to take into account the Father’s expressed views, if communicated in a courteous and timely manner, and about that issue; and
(c)Then make the decision and inform the Father of her decision as soon as practicable after making it.
3.The parties shall retain joint decision-making responsibility for all other major long-term issues, as defined in section 4 of the Family Law Act 1975 (Cth), in relation to the children, and in exercising their joint decision-making responsibility about decisions to be made in relation to such other major long-term issues of the children, the parents shall:
(a)Consult with each other about the decision to be made;
(b)Make a genuine effort to come to a joint decision about that issue; and
(c)In the event the parents are unable to come to a joint decision they will engage in family dispute resolution ("FDR") as soon as practicable, and if any costs are incurred for FDR the costs are to be shared equally.
Spend time arrangements
4.The children live with the Mother.
5.The children spend time with the Father as follows:
(a)During school terms, on a two-week cycle, and in the existing rotation or cycle;
Until the end of December 2027
(i)In the first week, from the conclusion of school/kinder on Thursday, or 3:00pm if a non-school day, until the commencement of school/kinder on Monday, or 9:00am if a non-school day, and on each alternate weekend at those times thereafter (‘the Father’s extended weekend time’);
(ii)In the second week, from the conclusion of school/kinder on Thursday, or 3:00pm if a non-school day, until the commencement of school/kinder on Friday, or 9:00am if a non-school day. And on each alternate Thursday at those times thereafter (‘the Father’s other Thursday time’) ; and
(iii)this rotation is referred to herein as the ‘the two week school term cycle’.
From January 2028
(iv)In the first week, from the conclusion of school on Thursday, or 3:00pm if a non-school day, until the commencement of school on Tuesday, or 9:00am if a non-school day, and in the existing rotation or cycle (‘the after 2027 block time’).
(b)During school term holidays and long summer holidays and subject to the religious holiday time provisions of these orders:
Until December 2025:
(i)From 9:00am on Thursday until 5:00pm on Monday, on the same weekend pattern continuing from the school term period which immediately preceded the holiday and not including the Father’s other Thursday time;
A.For example: If the children spend the last weekend of the school term with the Father then they will spend the first weekend of the school holidays with the Mother, and vice versa.
From December 2025 until December 2026
(ii)From 9:00am on Thursday until 5:00pm on Tuesday, on the same weekend pattern continuing from the school term period which immediately preceded the holiday, and not including the Father’s other Thursday time.
From December 2026
(iii)During school term holidays:
A.In 2027 and each odd-numbered year thereafter, for the first week of the holiday period to commence at the conclusion of school on the final Friday of that term until 5:00pm on Friday the following week;
B.In 2028 and each even-numbered year thereafter, for the second week of the holiday period to commence at 5:00pm on the Friday in the middle of the holiday until 5:00pm on Friday the following week; and
(iv)During the long summer holidays, and subject to the religious holiday time provisions of these orders:
A.In 2027-28 and each alternate year thereafter, for the first week of the holidays from the conclusion of school until 5:00pm a week later (7 nights), and every alternate week thereafter during those holidays;
B.In 2028-29 and each alternate year thereafter for the second week of the holidays from 5:00pm a week following the conclusion of school until 5:00pm a week later (7 nights), and every alternate week thereafter during those holidays,
C.PROVIDED ALWAYS THAT in the event that the long summer holidays cannot be divided equally in whole weeks, the parties are to equally split the remaining period which cannot be divided to whole weeks.
Example: If the holiday is 5 weeks and 3 days in total, then the last 10 days (which cannot be divided into two full weeks), will be divided 5 nights to each party.
(v)All other times with the Mother.
(c)As otherwise agreed in writing between the parties.
6.Save as to special occasions as set out hereafter the Father’s time be suspended during all school term holidays and the long summer holiday period, and unless otherwise agreed in writing, the school term rotation of the children’s time continue in the same cycle or rotation as it would have been had the school holiday time rotation not intervened.
Special Occasions
7.Notwithstanding the preceding provisions, and unless otherwise agreed between the parties in writing, the children spend time with the parties during special occasions as follows:
(a)With the Mother from the conclusion of school/kinder (or 3:30pm if a non-school day) on the second evening of a religious holiday in 2026 until 3:30pm the following day and every alternate year thereafter;
(b)With the Mother from the conclusion of school/kinder (or 3:30pm if a non-school day) on the first evening of a religious holiday in 2025 until 3:30pm the following day and every alternate year thereafter;
(c)With the Father from the conclusion of school/kinder (or 3:30pm if a non-school day) on the first evening of a religious holiday in 2026 until 3:30pm the following day and every alternate year thereafter;
(d)With the Father from the conclusion of school/kinder (or 3:30pm if a non-school day) on the second evening of a religious holiday in 2025 until 3:30pm the following day and every alternate year thereafter;
(e)With the Mother from the conclusion of school/kinder (or 3:30pm if a non-school day) on the first evening of a second religious holiday in 2025 until 3:30pm on the following day and every alternate year thereafter;
(f)With the Mother from the conclusion of school/kinder (or 3:30pm if a non-school day) on the second evening of a second religious holiday in 2026 until 3:30pm on the following day and every alternate year thereafter;
(g)With the Father from the conclusion of school/kinder (or 3:30pm if a non-school day) on the second evening of a second religious holiday in 2025 until 3:30pm on the following day and every alternate year thereafter;
(h)With the Father from the conclusion of school/kinder (or 3:30pm if a non-school day) on the first evening of a second religious holiday in 2026 until 3:30pm on the following day and every alternate year thereafter;
(i)With the Father from the conclusion of school/kinder (or 3:30pm if a non-school day) on a third religious holiday in 2025 until commencement of school/kinder the following day (or 9.00am if a non-school day), and each alternate year thereafter;
(j)With the Mother from the conclusion of school/kinder (or 3:30pm if a non-school day) on a third religious holiday in 2026 until commencement of school/kinder the following day (or 9.00am if a non-school day), and each alternate year thereafter;
(k)With the Father from the conclusion of school/kinder (or 3:30pm if a non-school day) until the commencement of school/kinder the following day (or 9.00am if a non-school day) on a fourth religious holiday in 2026 and each alternate year thereafter;
(l)With the Mother from the conclusion of school/kinder (or 3:30pm if a non-school day) until the commencement of school/kinder the following day (or 9.00am if a non-school day) on a fourth religious holiday in 2025 and each alternate year thereafter;
(m)For four nights with each parent during a fifth religious holiday as agreed between the parents in writing, and failing agreement with the Father for the first half of the religious holiday in even-numbered years and for the first half of the religious holiday in odd-numbered years, changeover to occur at the conclusion of school (or 3:00pm if the children do not attend school that day), and when the religious holiday falls within, or overlaps school holidays. That time (the religious holiday time) in lieu, not additional to, the children’s school holiday time with the children and is not otherwise continuing to the school holiday time of these orders.
(n)If the Father’s birthday occurs on a day upon which the Father would not otherwise see the children, for at least two (2) hours as agreed in writing and, failing agreement, from 3:30pm to 5:30pm on the Father’s birthday;
(o)If the Mother’s birthday occurs on a day upon which the Mother would not otherwise see the children, for at least two (2) hours as agreed in writing and, failing agreement, from 3:30pm to 5:30pm on the Mother’s birthday;
(p)If a child’s birthday occurs on a day upon which one of the parents would not otherwise see that child, for at least two (2) hours with that parent as agreed and, failing agreement, from 3:30pm to 5:30pm on the child’s birthday;
(q)If Father’s Day occurs on a day upon which the Father would not otherwise see the children, from 5.00pm on the Saturday prior to Father’s Day until 5.00pm on Father’s Day;
(r)If Mother’s Day occurs on a day upon which the Mother would not otherwise see the children, from 5.00pm on the Saturday prior to Mother’s Day until 5.00pm on Mother’s Day;
Illicit Substances
8.Until 31 December 2028, the parties do all acts and things to cause and authorise the Father to submit a random supervised Hair Follicle Test within 14 days of being requested to do so by the Mother at the facility nominated by the Mother within reasonable proximity to the Father and at her expense and on no more than one occasion each calendar year and such test to be conducted as follows:
(a)The Father make an appointment and attend for hair collection at K Clinic or nominee for hair drug and alcohol testing purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the be collected for testing. To give effect to this Order:
(b)The Father is required to maintain his hair at a length of not less than four (4) centimetres; neither head hair nor body hair is to be cut less than 4cm, nor bleached or dyed between the date of this Order and the time of collection of hair;
(c)Each party or their legal representatives is at liberty to provide K Clinic with a copy of these Orders;
(d)The Father is to provide the collector with photographic identification to be recorded before the hair collection and authority, with this Order also hereby authorising K Clinic or nominee to provide the results of each test to both parties and their legal representatives upon receipt of such test results;
(e)The hair drug test may screen for drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this Order as required;
(f)The Mother be pay the costs associated with this hair follicle testing; and
(g)The parties authorise the results of such testing to be contemporaneously released to the Mother and the Father.
Changeover
9.Changeover shall occur at the children’s school/kinder where applicable and otherwise at a location to be agreed upon by the parties, and failing agreement in writing, the Mother deliver the children to the Father’s residence at the commencement of his time and the Father return the children to the Mother’s residence at the conclusion of his time.
Communication between the parties
10.Each party is to facilitate telephone and electronic communication between the children and the other party during school term and school holidays while the children are in their care, and the party who does not have the children to call the party who has the children every Tuesday between 5:30-6:00pm and every Sunday between 10:00-10:30am and the party who has care of the children to facilitate the call with the children and the parties are to further facilitate any reasonable requests made by the children to speak to the other party, including during any overseas travel.
11.The parties shall communicate about all matters relating to the health, welfare and development of the children and all matters relating to these parenting orders in writing via App Close parenting app, or another parenting app agreed between the parties in writing, save for in case of an emergency.
Education and Medical
12.Each party keep the other advised of:
(a)Any change of residential address or contact telephone numbers (both home and mobile) within 24 hours of any such change;
(b)Any medical emergency or significant illness of the children or either of them, and unless in the event of an emergency or sudden illness, the parties advise each other of any medical appointment or treatment for any of the children at least 7 days prior to such appointment.
13.Both parents do all acts and things to authorise both parents to be at liberty to:
(a)obtain copies of all childcare/kinder/school and extra curricula correspondence, newsletters, photographs and the like pertaining to each of the children at the requesting parent’s expense;
(b)communicate with each child’s treating medical, dental, and other allied health professionals in such manner and by such means as the treater requires and/or expects.
14.Subject to any lawful direction of any school authority or teacher, both parents do all acts and things to authorise both parents to be at liberty to attend all school/kinder functions and school/kinder events to which parents are ordinarily invited, save that, unless agreed in writing:
(a)The Mother be restrained from attending such events in terms 1 and 3 if notified in writing by the Father 48 hours in advance that he would attend any such specific event.
(b)The Father be at restrained from attending in terms 2 and 4 if notified in writing by the Mother 48 hours in advance that she would attend any such specific event.
15.Each party is permitted to provide a copy of these Orders to the children’s kinder/school or treating health practitioner.
Restraints
16.Both the Father and the Mother are hereby restrained by injunction from using any illicit drugs 48 hours prior to, and during, the time they have the care of the children and/or having a blood alcohol level greater than 0.05% BAC.
17.Both parents, their servants, and their agents be and is hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating each other and/or any member of their respective families in the presence and/or hearing of the children or either of them and from knowingly allowing anybody else to do so; and
(b)Discussing these Family Law proceedings and/or the parents’ Intervention Order proceedings in the presence and/or hearing of the children or either of them and from knowingly permitting anybody else to do so save in accordance with any order made by the Court.
Courses
18.Both parents enrol in and complete the “Tuning into Kids” course and provide evidence of completion to the other, as soon as practical and in any event within 12 months from the date of these orders.
Travel
19.The Mother shall retain the children’s passports.
20.The parties are hereby authorised to sign all documents required to obtain Australian passports for the children and to maintain current Australian passports for them, and any fee associated with same shall be paid by the parties in equal shares.
21.Unless agreed otherwise between the parties in writing, if either of the parties seeks to travel overseas for a holiday with the children or any of them, but not before December 2027, then it be on the following conditions, unless otherwise agreed in writing:
(a)the travel is for a maximum of one overseas trip in each one calendar year and no longer than three weeks, and be during his/her holiday time with the children, and during a maximum of 7 nights during the other parties’ time with the children, and be during school holiday or long summer holiday periods;
(b)the travelling party provide to the other party at least three calendar months’ prior written notice for overseas travel a to the non-travelling party and provide copies of itineraries with contact addresses and telephone numbers for the children during such travel, as soon as these are available;
(c)forthwith upon receipt of airline tickets, the travelling party provide to the non-travelling copies of same;
(d)the travelling party take out travel insurance from reputable travel insurance provider for the children at his/her expense and shall be responsible for any other travel related expenses;
(e)the Mother shall provide to the Father the passports for the children in her possession to be used for the period of the travel, at least three weeks prior to the date of travel, and the Father shall return the passports to the Mother on the first exchange of the children, or any of them, within two weeks after they return from the travel; and
(f)the travel is to a country which is a party to and recognises the Hague Convention on the Civil Aspects of International Child Abduction as recognised by the Commonwealth of Australia.
PROPERTY
Payments
22.The parties do all acts and things to cause and ensure that all of the funds in ANZ bank account BSB …50 ACC …05 be paid to the Mother, Ms Elza, and the parties take all necessary steps to close that account immediately thereafter.
23.The parties sign all documents and do all things necessary to remove the Father from ANZ bank accounts BSB …50 ACC …46 and ACC …84 (which currently hold approximately $21,700 and $5,083 accordingly) to cause the effect that these funds are the Mother’s funds.
24.The Father pay the applicant Mother a further sum of $28,213 within 60 days of these Orders and there be liberty to apply on short notice in the event of default.
Superannuation
25.Paragraphs 27 to 29 inclusive bind the Trustee of Super Fund 1 (‘the Fund’) with respect to the member Mr Chanan born in 1977, Member Number ….
26.The Court allocate pursuant to Section 90XT(4) of the Family Law Act 1975 a base amount of $59,349 of the Respondent Father superannuation entitlements to the Mother out of the Father’s interest in the Fund.
27.Pursuant to paragraph 90XT(1)(a) of the Act whenever the Trustee makes a splittable payment from the interest held by the Father, the Trustee:
(a)Pay the Mother the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount specified above; and.
(b)Make a corresponding reduction in the entitlement the Father would have had in the Fund but for these Orders.
28.Order 27 has effect from the operative time.
29.The operative time of these Orders is four (4) business days after the day on which the final, sealed Orders are served on the Trustee.
30.The Parties and the Trustee of the Fund do all such acts and things and sign all such documents as may be necessary so that the Trustee, in accordance with the obligations set out under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001, can calculate the entitlement of, and make payment to, the Mother in accordance with Order 28 of these Orders.
31.Until the happening of any of:
(a)the establishment of a separate account in the name of the Mother in the Superannuation Fund; or
(b)the transfer or 'rolling over' into another superannuation fund or superannuation account of the payment split created by paragraph 28 hereof; or
(c)the Mother satisfies a condition of release and is paid the payment split which was created by paragraph 28 hereof; or
(d)the Mother executing a waiver of rights within the meaning of Section 90XZA of the Family Law Act in relation to the payment split created by paragraph 28 hereof; or
(i)the Father be and is hereby restrained by himself, his servants or agents from executing a Death Benefit Nomination in favour of any person or doing any other act or thing which would render any part of his interest in the Superannuation Fund a ‘not splittable payment’ within the meaning of Regulations 12 or 13 of the Family Law (Superannuation) Regulations 2001.
32.There be liberty to apply on the implementation of the superannuation split.
33.Unless otherwise specified in these orders and except for the purposes of enforcing the 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 (including choses in action) in the possession of such party as at this date;
(b)Money standing to the credit of either the Father or the Mother in any bank, building society or investment account shall be the property of the account holder;
(c)Each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other;
(d)All insurance policies shall be the sole property of the owner named thereunder;
(e)Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(f)Each party shall be solely liable for and indemnify the other in respect of their individual debts; and
(g)Any joint tenancy of the parties in any property real or personal is hereby severed.
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 O’SHANNESSY
INTRODUCTION
Ms Elza (‘the Mother’) and Mr Chanan (‘the Father’) (collectively referred to as ‘the parents’) commenced to live together in a de facto relationship within the meaning of section 4AB of the Family Law Act 1975 (Cth) (‘the Act’) in about late 2013 and their de facto relationship ended on, or around, 25 September 2021. The parents have two children, X, born in 2015 and now nine years old (‘X’) and Y, born in 2020 and now 5 years old (‘Y’), collectively ‘the children’.
The parents are in a bitter dispute about the children’s living arrangements and how their modest remaining property is to be distributed. So, they seek a decision of the Court to determine X and Y’s living arrangements and how property alteration orders should be made pursuant to the Act.
The proceedings and final hearing
The Mother commenced proceedings on 22 September 2023. Based on the parties’ estimates of time required, the matter was listed for final hearing over 3 days on 28 January 2025. This is yet another matter that contributes to listing chaos when the time the case took exceeds the estimate. The matter proceeded over 3 days, 28-30 January 2025 and was then adjourned part heard, while the respondent Father was being cross-examined for a fourth day of hearing on Monday 7 April 2025. The matter concluded after 6.00pm.
Documents relied upon
The parties relied upon the documents described in outlines of case and documents tendered during the hearing. On the first day of the final hearing, I heard, and ruled, on various objections to parts of affidavits.
Exhibits tendered
Exhibits tendered during the Final Hearing are as follows:
Exhibit No: Description: Party who submitted exhibit: 28 January 2025 M1 Mothers minute of proposed orders Mother M2 Costs notice of the Mother Mother J1 Joint balance sheet Joint M3 Emails between Dr C & Mother’s soli from Aug-Sep 23 Mother 29 January 2025 M4 ATO statement re: recently incurred tax debt Mother M5 Messages re: iPhone January 2025 Mother MFI1 Cryptocurrency document Father M6 Bank statements showing receipt of social security payments (excel) Father 30 January 2025 C1 Subpoena and court correspondence re: Cryptocurrency subpoena Court F1 Loan agreement said to be dated 13 Jan 2015 Father F2 Loan agreement said to be dated 26 Dec 2018 Father F3 Said to be English translation in part (except clause 5) of 13 Jan 2015 loan agreement – first produced to O/S on 28/01/25 Father F4 Bundle of emails between parties re X’s birthday in 2023 Mother F5 27 January 2025 text messages Mother F6 Email from Father to Ms B court book p 358 Mother 7 April 2025 F7 Text message from Father to ‘Ms D’ on 22 March 2025 Mother F8 September 2021 Father’s #...61 and #...04 CBA bank statements Mother F9 Father’s costs notice dated 6 April 2025 Mother F10 Emails relating to the Whatsapp messages re photos of loan agreement Mother F11 Page 290 of Court Book – Father’s #...04 acc at September 2023 Mother F12 Second […] 2025 text messages Mother F13 Father’s balance sheet aide memoires Father M7 Joint balance sheet Mother J2 Agreed translation of loan agreement Joint 9 April 2025 M8 Mother’s cost notice Mother F14 Father’s cost notice from VLA Father F15 Counsel’s email of citations referred to in closing submissions Father
In addition, the annexures to the parties’ affidavits were regarded as tendered in evidence as to be identified by the annexure description each had in the affidavit.
Furthermore, where I was handed a copy of a document and I have perused it and it was cross- examined upon or I was addressed on it, and it has not been tendered, I am satisfied that the failure to tender was an oversight and so for the purpose of the record, I have made such documents an exhibit.
Witnesses
The Mother, a friend of the Mother’s (said to have witnessed an incident of family violence), the Father, a private investigator from Country E (retained by the Father in an attempt to prove the Mother had retained undisclosed bank accounts in that country), the family report writer and a therapist for one of the children were cross-examined.
THE LAW
Standard of proof
In these reasons, statements of fact are findings of fact. Findings are made on the balance of probability. I apply section 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) which states as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Credit of the parties
In Fox v Percy (2003) 214 CLR 118 (‘Fox v Percy’), at first instance, the rider of a horse was found to be a more reliable witness than the driver of the Kombi Van that had collided with oncoming horses and riders. The issue was upon which side of the road the collision occurred. The High Court had to interfere with the first instance decision where it had been incorrectly determined, by reason of the apparent reliability of the witnesses, that the collision occurred on the horses’ side of the road. The High Court found the first instance decision was erroneous because the proven skid marks of the Kombi van demonstrated incontrovertibly that at all material times the Kombi van had been on its correct side of the road.
When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality of Fox & Percy observed:
[31]…in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
(Citations omitted)
I have endeavoured to rely on objectively established facts and the apparent logic of events in this case as well as the evidence and demeanour in the witness box of the parties.
In this case care must be taken not to treat an unconvincing denial of acts or motivation as positive proof of the contrary. By no means can the words, “I didn’t do it”, become proof, in themselves that he or she did do it, even when uttered unconvincingly. But an unconvincing denial may mean that other evidence has greater weight.
In any event, the purpose of looking at the events and attitudes of the past is to grasp the nettle of risk of future events. Although a serious allegation/s may not be proven on the balance of probabilities, the possibility that those past events occurred may indicate risk to safety. Where there is only a small risk, or likelihood or probability, of an adverse event occurring, but the consequences of the event occurring would be catastrophic, serious regard must be had to that risk.
Given the breadth of the factual matters in dispute that each of the parents relied upon as informing the outcome of the parenting and property orders sought, the Mother was cross examined efficiently over all of the second day of hearing. The carefully prepared and probing, but still courteous, cross-examination was helpful in determining relevant factual disputes. It is only necessary to determine the factual disputes that will inform the orders that are to be made, not every dispute. Nonetheless, the Mother’s evidence was frank and she by and large attempted to engage with the question asked. Her evidence under cross examination had a verisimilitude to it and I am satisfied that the Mother did not attempt to fill in the gaps of events to suit her case where she genuinely did not have a clear recollection. She readily made concessions, and I am satisfied did not “seek to improve” her account of an event when cross-examined about it. That she was able to give further detail in oral evidence when describing an event broadly described in an affidavit is not surprising.
I found the Mother to be a reliable witness.
The Father’s oral evidence and demeanour in the witness box was argumentative when asked to answer questions in cross-examination. The Father needed to be reminded again and again to answer the question asked, rather than attempt to deflect the question or give an explanation about the event/s without answering the question. The Father’s demeanour in the witness box also had a self-righteous aspect to it and, at times, an air of “why would you challenge what I say?”
The Father’s articulate written communication[1] showed a competitive, very confident and determined personality with no contemplation of the position of the other parent, or capacity for reflection or self-questioning about the veracity or appropriate tenor of his allegations against the Mother. His demeanour in oral evidence showed the same characteristics.
[1] For example see MSE-6 at page 45/163, the email of 10 November 2023 (the ‘class theatre show’ email), MSE 10 at page 75/163 the email of 2 May 2024 (the ‘she neglects her child’ email) and MSE 10 at pages 71-2/163, the emails of 13 May 2024 (the ‘“hundreds of emails” email chain’). It must be noted that just after the 10 November 2023 email, the family report interviews took place and the family report (parts of which are recited later) was provided in February 2024, that is, a couple of months before the latter two email chains.
The reliability of the Father’s evidence was also challenged by the implausibility of his account of the “loans” of the $254,000 from his parents and his production of, and tender into evidence of, what purported to be an accurate English language translation of a purported loan document in his first language. The reliability of the Father’s evidence was also undermined by inconsistencies in his approach to parenting and his evidence about that, see for example at MSE-10, the “she neglects her child” email. There, in the context of vociferously complaining that the Mother was “gatekeeping” his relationship with the children and not supporting that relationship, when asked to care for Y on a day when the Father was not working and was nearby, he refused, because he said he had already “made many plans for today”, and then he criticised the Mother (to her solicitor) as going to work instead of staying with Y at home and so “neglects her child, while prioritizing her profession.”[2]
[2] These words were bolded in the original email of complaint by the Father.
In the end, because of the profound unreliability of the Father’s evidence as to matters big and small and controversial matters including allegations of family violence and past drug use and parental roles during the relationship, I accept the Mother’s evidence where it is in conflict with the Father’s evidence. I do accept the Father’s evidence as to the importance of the children to him, his deep love for them and the importance to him of sharing traditional religious and/or cultural events with them.
That I do not accept his evidence on many matters does not mean I have found that he lied about those matters. The Father may have come to actually believe his incorrect assertions about controversial events including family violence. He may have lied about some of them, but a finding of lying is a further consideration beyond merely a deponent’s evidence not being accepted, see Blass & Blass (2022) FLC 94-085 at [39-40], and I do not make that finding.
Family Law Act provisions
In deciding what particular parenting orders to make I must regard the best interests of the children as the paramount consideration as commanded by section 60CA of the Act. I must consider the matters described in section 60CC of the Act in making a determination as to what is in the children’s best interests. I apply and take into account the whole of Part VII of the Act including the following sections:
4 INTERPRETATION
…
major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
…
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
…
60CAChild's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
…
60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (4), in determining what is in the child's best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).
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.
…
60CG Court to consider risk of family violence
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
…
61DAAEffect of parenting order that provides for joint decision-making about major long-term issues
(1)If a parenting order provides for joint decision - making by persons in relation to all or specified major long - term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
(a) to consult each other person in relation to each such decision; and
(b) to make a genuine effort to come to a joint decision.
(2)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
The parties’ property applications are to be determined by application of Part VIIIAB of the Act, and in particular the provisions of sections 90SF, 90SM, 90SL and 90SS of the Act.
The provisions of section 90SF apply to a consideration of spousal maintenance between de facto partners. Those same provisions, to the extent they apply, are also required to be considered in a property division application for people who have lived in a de facto relationship that has ended.
The relevant parts of these sections include the following:
90SF Matters to be taken into consideration in relation to maintenance
…
(3) The matters to be so taken into account are:
(a)the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f)subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) a standard of living that in all the circumstances is reasonable; and
…
(i)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
…
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
…
(q)any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
…
90SM Alteration of property interests
(1)In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them – altering the interests of the parties to the de facto relationship in the property…
…
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the de facto relationship; or
…
to make, for the benefit of either or both of the parties to the de facto relationship or a child of the de facto relationship, such settlement or transfer of property as the court determines.
…
(3)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c)the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e)the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
…
90SL Declaration of interests in property
(1) In proceedings between the parties to a de facto relationship:
(a) after the breakdown of the de facto relationship; and
(b) with respect to existing title or rights in respect of property;
the court may declare the title or rights, if any, that a party has in respect of the property.
…
(2)If a court makes a declaration under subsection (1), it may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession.
[Notes omitted]
…
90SS General powers of the court
General powers
(1)The court, in exercising its powers under this Division, may do any or all of the following:
(a)order payment of a lump sum, whether in one amount or by instalments;
(b) order payment of a weekly, monthly, yearly or other periodic sum;
(c)order that a specified transfer or settlement of property be made by way of maintenance for a party to a de facto relationship;
(d)order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;
(e)order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;
(f) appoint or remove trustees;
(g)order that payments be made direct to a party to the de facto relationship, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the de facto relationship;
(h)make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;
(i) impose terms and conditions;
(j) make an order by consent;
(k)make any other order, or grant any other injunction, (whether or not of the same nature as those mentioned in the preceding paragraphs of this section) which it thinks it is necessary to make to do justice;
(l)subject to this Act and the applicable Rules of Court, make an order under this Division at any time before or after the making of a decree under another provision of this Act.
THE PARTIES’ COMPETING CASES
It is convenient to set out the parties parenting and property cases at this point.
Mother’s parenting case
The Mother is 46 years old and is employed in the fitness industry. Early on in the litigation, which commenced in September of 2023, the parties sensibly retained a family consultant to provide a family report. That family report recommended that the children live during the school term in a fortnightly arrangement colloquially described as a “5/9 nights”, but in reality a “4 +1/9 nights”. That is, the children spend time with the Father in a two week cycle from each alternate Thursday afternoon until before school/kindergarten the following Monday morning as well as the following Thursday after school overnight until Friday the following morning. The Mother seeks to continue that regime. In addition, she seeks she have sole decision-making responsibility in relation to matters of health and education of the children. She says the parties do not communicate sufficiently well as she says is necessary to facilitate a more shared regime and equal responsibility to all long term decisions for the children.
Her case is that the children are settled in the current regime and that the Father has involved them in the proceedings and inappropriately placed a burden on the child X, to advocate the living arrangements the Father seeks. The Mother says the Father has unnecessarily demanded repeated information from her and that he harasses her with communication and demands for information and quick responses to questions and variations of the orders in which he seeks.
The Mother’s parenting case included the following:[3]
[3] Mother’s outline of case document filed 21 January 2025.
Parental responsibility
1.The welfare of the children will be advanced by an order that the wife have sole parental responsibility for matters relating to the children’s health and education.
2.It is not in the children’s best interests for these parents to have equal shared parental responsibility.
a.There is a Final Intervention Order against the husband for him not to communicate with the wife or come within 5 meters of her front door during changeover. There were previous Interim Intervention Orders against the husband, the first of them withdrawn by the wife based on the husband’s undertaking, which the husband has not complied with.
b.The parents have no capacity to co-operate. [Ms B] says: “currently these parents do not present as candidates for co-operation without therapy or parental guidance.” [Ms B] further states with respect to the husband: “From the Parental Alliance measure, [Mr Chanan] has more of a “problematic” approach to cooperation.”
c.The husband has filed three Applications in Proceedings to determine interlocutory issues including enrolment in school, renewal of passport, forcing communication and forcing the wife to attend a parenting coordinator with the husband.
d.The wife has experienced the husband and his conduct during the relationship and during these court proceedings as oppressive, stressful and overwhelming which has exacerbated her mental health vulnerabilities. She remains vulnerable to the husband’s denigration, including to mutual friends.
e.The husband has demonstrated lack of boundaries with respect to his conduct toward the wife, stalking her residence, coming close to her at changeover and being verbally abusive towards her including in the presence of other people and the children.
f.The husband has further involved the children in the dispute with the wife with respect to time arrangements, exposing, especially [X], to matters he should not have been exposed to. [Dr C] in her report states:
“It is my view that overtly or covertly [X] is being subjected to hearing about his parents’ disagreement and court proceedings. The language he used in some sessions, such as ‘equal parental care’ is not language used by children his age. He says he is comfortable with the current arrangement, which is not 50-50, however then states ‘dad says week on and week off would be good’. It is of note that these are voluntarily statements that are not initiated by myself at all.”
3.There are many parenting years ahead and if history is any predictor, the parties will be unable to meaningfully engage to try and reach joint decisions. If they share responsibility for long-term parenting decisions, litigation is likely to be revived to the detriment of the children.
…
1.The children living primarily with the wife would best promote their safety, in particular being exposed to family violence.
2.The children living primarily with the wife would best promote the wife’s safety.
3.Each of the parents have parental capacity to meet the children’s needs. The husband’s capacity has been impaired by drug abuse in the past. The husband has minimised the extent of his drug abuse and the Court ought by cautious in accepting the husband’s account that he is drug free. To minimise the risk of the husband’s relapse into drug abuse upon these proceedings ending, the wife seeks orders which provide a mechanism to monitor his sobriety.
4.The husband’s capacity has also been impaired by his antipathy toward the wife resulting in a failure to protect the children from the parental dispute.
5.The children derive significant benefit from their relationships with each of their parents and the wife’s proposed orders will protect these important relationships.
6.The husband does have a history of family violence toward the wife to which the children have been exposed. The wife is protected by a current final intervention order made [in] 2024 for a period of 12 months.
…
The Mother seeks special arrangements for the usual secular events of birthdays/Mother’s/Father’s Day and, in addition, special arrangements over 4 religious and/or cultural events. The Mother seeks ongoing drug testing for the Father and restrictions on overseas travel for the children.
Mother’s property case
The Mother’s case was that few substantial assets remained, totalling only about $234,130 with a total of about $101,464 of superannuation in accumulation funds. By the end of the case that much was common ground.[4] On those assets, $157,000 was in three bank accounts and the balance in modest shares, cryptocurrency, personal savings and motor cars. Early in the final hearing substantial time was taken attempting to prove that the Mother had either wasted or retained some $17,000 or $21,000 in a cryptocurrency type investment and had money in undisclosed bank accounts in Country E. By the end of last day of the hearing those allegations were sensibly not pursued. Of the agreed assets the Wife retained $15,500 of assets, being a modest motor car and bank account. The Mother seeks to retain the remaining funds in joint accounts ($157,000) and receive a payment from the Father of $60,000. In addition, she seeks a superannuation split order to effect a 70/30 division of superannuation.
[4] See exhibit M7, 7 April 2025 and F13, 7 April 2025.
But the Wife asserted, and maintained, that shortly before or shortly after separation, the Father had secretly transferred $250,000 and later $100,000 to his parents, $14,500 to his brother, $13,064 to his friends, and sold shares of $6,330 (a total of $383,000) plus, he had paid from funds otherwise available for distribution between them, $50,000 on legal advice relating to the proceedings. Those alleged transferred away or disposed of funds totalled $433,894.
It was not disputed that, unknown to the Mother, in two tranches (in 2015 and then in 2019), a total of $254,000 had been transferred to the Father’s account and retained there. Then, also unknown to the Mother, at or shortly after separation two tranches of a total of $350,000 ($250,000 and then $100,000) had been transferred to the Father’s parents by the Father.
All those “transferred away” funds of $433,894, so the Mother submitted, should be “added back” to the pool of assets. The Mother asserts that the alleged “loan” agreements were actually drafted by the Father (not his brother as he alleges) and are not genuine. The Mother alleges the money transferred by the Father to his parents, to his brother and to friend/s, was merely a device to put the money beyond the reach of the Court to defeat, or protect against, the Mother’s potential property alteration claim.
The Mother recognised the $254,000 from the Father’s parents, unknown to her until disclosure of bank statements, as a contribution (pursuant to section 90SM(4)(a) of the Act) by the Father, pursuant to Gosper[5] and Kessey[6] principals. Otherwise, it was asserted section 90SM contributions should be regarded as equal, and taking account of all contributions an assessment of 70/30 in the Father’s favour, but with a 15% adjustment pursuant to section 90SF(2) of the Act in the Wife’s favour, giving a division of that notional, or reconstructed, pool of 45/55 in the Father’s favour.
[5] Gosper & Gosper (1987) FLC 91-818; [1987] FamCA 43.
[6] Kessey & Kessey (1994) FLC 92-495; [1994] FamCA 162.
In addition, the Mother submitted, the total superannuation should be divided 70/30 in her favour, on the basis that contribution to those assets should be regarded as about equal and with a substantial section 90SF(2) adjustment in her favour.
The Father’s parenting case
The Father seeks that, until 2026, the children live in a 6/8 school term arrangement (a 5+1/8 nights arrangement) and from then on the children live in a week about equal shared care arrangement with joint long term decision making responsibility.
The Father denies any family violence and on affidavit, and historically, he saw the Mother as not supporting his relationship with the children and as being a “gatekeeper” of his time with them. He asserted that while there had been disagreement about parental decisions in the past, there had been improved communication more recently and with the cessation of litigation things would again improve. In substance, he regarded a move to an equal time regime as essential for the children’s relationship with him and as essential for their welfare.
The Father’s evidence about family violence included a denial and the following:[7]
[7] Transcript p 327 – 328.
MR GODDARD: Sir, you have a fairly sophisticated understanding of what family violence is, don’t you?
[MR CHANAN]: No, I don’t it’s very… I think it’s a very grey area.
MR GODDARD: Okay?
[MR CHANAN]: Like there’s very clear do and don’ts but there’s a very big grey area between these two.
MR GODDARD: Yes. Yes. You’ve been to - - -
[MR CHANAN]: And second before that, I come from [Country E]. In cultural differences, things that I’ve done here with my ex would never even considered as domestic violence [in Country E]. It’s a much more straightforward, even you can call it so-called much more assertive, straightforward. You say what you want, you show it. It’s a cultural difference so - - -
…
MR GODDARD: So you’ve heard the definition that’s used in the Magistrate’s Court about what family violence is, that it can include psychological abuse, sexual abuse, emotional abuse, financial abuse, yes?
[MR CHANAN]: Yes.
MR GODDARD: Behaviour that controls or coerces another person. You understand all of these things?
[MR CHANAN]: Understand.
MR GODDARD: Do you say you have engaged in those behaviours towards my client or you have not engaged in those behaviours towards my client?
[MR CHANAN]: Partly, yes.
MR GODDARD: What were the behaviours that could be characterised that way?
[MR CHANAN]: Maybe trying to push her towards attending [X]’s birthday and not accepting no from the start, and try again which again, I think it’s a cultural difference. You know, from where we come from, your Honour, the word […], which you’re kind of – it’s […], you’re kind of cheeky, you’re kind of rude. You know, you say what you want, then you can get the no, but it’s okay, then you can ask it again. Something that here in Australia you cannot do. Once you get first time, no, that’s it. If you ask again, you cross a line. Me and [Ms Elza] come from a culture that it’s somehow, it’s accepted to do it a second or even a third time.
I do not accept the assertion of the Father that his complained of behaviour is “cultural” nor do I accept his implied assertion that only physical family violence is unacceptable in Country E. I do not accept the “its only […]” assertion, although that assertion appeared to well qualify as that from the witness box.
In interim orders on 8 February 2024, the Father was ordered to undertake a Men’s Behaviour Change Program and he had not undertaken such a course. When interviewed as to suitability for the course, the Father had denied any family violence and asserted he had been assessed as unsuitable for such a course. From annexure MRC-19 it appears that much is true:
After initial assessment, [the Father] has been assessed as unsuitable for the men’s behaviour change program, at this time, as he had not used family violence or identified any behaviours he wishes to change”.
For reasons set out later, I do not accept that the Father has not used family violence. I accept that he would have, and in very emphatic terms, truthfully asserted that he could not identify any behaviours he wishes to change.
I was not pressed to again order the Father to attend a Men’s Behaviour Change Program. But the extant order of 8 February 2024 has not been discharged.
The Father’s property case
By the end of the fourth day of the case, the remaining assets described above were not in dispute and the Father accepted that the funds from the sale of the F Company shares should be added back to the pool of assets. The Father denied that the other transactions warranted any adjustment or “addback”. He asserted that the $254,000, advanced as to $171,500 on 22 October 2015 and as to $82,975 on 15 May 2019, were advanced pursuant to two separate written loan agreements made with his parents.
On 1 July 2021 (about 7 weeks prior to separation), while, or soon after, the parties were attending relationship counselling, $250,000 (even) was transferred to the Father’s parents. Then nine months after separation another $100,000 (even) was transferred to the Father’s parents. Those two secret transfers, totalling $350,000 were submitted to be merely repayment of the loans due to his parents.
The Father’s parents were not witnesses in the proceedings. Save for the Father asserting, “I didn’t know I had to”, when asked why he had not called his parents in cross-examination on 30 January 2025, there was no explanation as to the absence of his parents as deponents on affidavit. Because of the general unreliability of most of the Husband’s evidence, explained later, and the nature of the purported loan agreements, I do not accept the Father’s assertion that “I didn’t know I had to” (call my parents to corroborate my account of loan agreements) as an explanation for the failure to call those persons as witnesses. That does not mean I can speculate about why they were not called, or speculate about what they might have said, but their unexplained absence as witnesses central to the “loans” controversy, means that the evidence, and inferences from evidence, that contend against the Father’s account of those events, carry greater weight.
EXPERT EVIDENCE
The case included expert evidence as follows.
Dr C
Without objection, Dr C was called for cross-examination as the first witness in the case. It is not disputed that Dr C was retained following a referral from a general practitioner for the mental health of X. Dr C is a clinical psychologist with a doctorate in clinical psychology. Dr C requested both parents execute a contract, or authority, to provide therapy to X before she commenced therapy for X.
Dr C was cross-examined in an efficient and prepared manner by counsel for the Father. Dr C had prepared a report at the request of the Mother’s solicitors, and I am satisfied she did not obtain the authority of both parents before writing that report and providing it to the solicitors.
Dr C’s report made the following observations.
[X] is an 8 year old, older brother of 2 siblings. I have been seeing him for management of adjustment issues with mixed anxiety and low mood secondary to an acrimonious parental separation. Parents separated around 2 years ago.
[X] is a sensitive young boy, who is very emotionally aware of his surroundings. He feels conflicted between mum and dad, and wants to have a relationship with both. I have been helping him manage his emotions secondary to his parents’ separation, while separating his emotions from theirs/their grief post separation…
…
[X] demonstrates clear guilt and frustration around feeling ‘stuck’ in between his parents. I have clearly relayed to both parents to cease any direct or indirect discussion with [X] around shared parental care. He has presented tearful at few of the attended sessions due to his conflict around ‘choosing’ how much time he should spend with either parent. A matter that is unequivocally not for a young child to have to ponder upon.
…
It is clear that [X] enjoys time with both mum and dad, and he enjoys different activities that he partakes with both. Both parents appear to care and love [X] and [Y].
[X] has commenced seeing me on the 22nd of November 2022. I have seen him for a total of 39 sessions thus far. I see him fortnightly…
…
Timing of court proceedings are often associated with [X] presenting quieter, increasingly tearful and frustrated. It is my view that overtly or covertly [X] is being subjected to hearing about his parents’ disagreement and court proceedings. The language he used in some sessions, such as ‘equal parental care’ is not language used by children his age. He says he is comfortable with the current arrangement, which is not 50-50, however then states ‘dad says week on and week off would be good’. It is of note that these are voluntarily statements that are not initiated by myself at all…
…
In terms of psychological intervention, it is my opinion that [X] will continue to require psychological intervention for the time being. I see his prognosis as positive, contingent on how the parents’ equally manage the separation, parental care and responsibility of the children. In the meantime [X] needs psychological care to manage with his emotions and associated changes in his family composition.
…
From my observation of [X]’s weight and food intact I did not see the need for dietetics input.[8]
…
There has been an expectation by dad that I email outside of each and every session, without being reimbursed for my time, which is against the fee structure both agreed upon early on. This is not normal process and indeed if required separate parent sessions are to be organised and paid upon. I received numerous emails from dad during the duration of my involvement with [X], which I reminded him many times are untenable. Dad expressed unhappiness with my reminder of feedback/any service I provide in whichever modality requires reimbursement…
It was brought to my knowledge by Waterson legal that one of [X]’s drawings done on the 6th of March 2024 was taken out of context by dad and included in an affidavit, stating [X] requesting 50-50 share care. This was not the case. Indeed if the drawing was looked at closely, he started by writing 5 days with mum, then wrote 4 days with dad. Realising that it was more than 7 days, he changed it. He got quite tearful at the time, and then wrote swap, as he felt it was fair and what dad wants…
…
Both parents care for [X], however I have found dad to disagree to my approach or my assessment of [X]’s presentation, often referencing his childhood teaching experience. My views are simply views to assist both parents, it is not given with any intend other than that.
[8] As then pressed for by the Father.
Dr C was cross-examined. I found Dr C to be a careful witness who had considered the children’s welfare, and in particular X’s, from a professional view independent of the parents. Sadly, I accept the observations and opinions of Dr C. I am satisfied that the Father has involved X in this litigation and the concepts of what time he should spend with each parent and that this is deeply contrary to his welfare. I am satisfied that the Father is significantly more responsible than the Mother for the emotional distress and of X and his “clear guilt and frustration around feeling ‘stuck’ in between his parents….” and presenting “tearful at few of the attended sessions due to his conflict around ‘choosing’ how much time he should spend with either parent”.
The Father would do well to attempt to reflect on his contribution to this sad state of affairs for X and to contemplate that X is likely to remember his Father’s attempts to have him support his Father’s views of living arrangements in this litigation for the rest of his life.
I am satisfied that the Father’s style of communication with Dr C irritated her, and not unreasonably. But I am satisfied that Dr C’s irritation with the Father’s demands and style of communication did not move her from a position of professional independence and divert her from the welfare of X.
The Family Report
The parties obtained a privately funded family report prepared by Ms B. The interviews and observations for this report were conducted on 27 November 2023. Ms B’s report is dated 31 January 2024 and, I infer, was released to the parties soon after. At the time of the report release, X was 8 and Y was just, or almost 4. X is now 9 and Y 5. I take the small advancement in years into account.
Relevant parts of the report include the following:
From the assessment both parents question each other's capacity to be cooperative and support the children. Hence to indicate the capacity of each parent to accept each other in the lives of the children each parent completed a Parental Alliance Measure.
The concept of Parenting Alliance is to describe that part of the parental relationship that is concerned with parents involved in child rearing. A sound parenting Alliance is established if each parent is invested in the children, values the other parent’s involvement with the child respects the judgements of the parents as well as desires to communicate with the other parents. In other words, the Parenting Alliance reflects the parents' ability to cooperate with each other in meeting the needs of children after a divorce or separation.
The scores for the parents are as follows:
[Ms Elza]’s parental alliance capacity is "within normal limits."
…
The score for [Mr Chanan] is “problematic”.
…
The scores for the parents indic[a]ted a contrast in the capacity to be cooperative parents. [Ms Elza] is prepared to work at the parental alliance and sees that [Mr Chanan] as important to the children’s lives.
[Mr Chanan]’s score of “problematic” indicates he will need support and strategies to engage positively with his former partner for the best interests of the children.
It is noted in [Mr Chanan]’s material that he wishes for the parents to have joint birthday partis [sic] for the children. In this regard [Mr Chanan] shows a lack of insight into the conflict that may ignite in front of the children when the parents are in the same space. From the children’s session they are aware that their parents dislike each other and can be angry with each other.
The parents' discord and views of each other are negative. From the material and session, [Mr Chanan] has poor insight and demonstrated poor safety consciousness of the children. However, he is competent enough to change his behaviour when these issues are raised with him. It is this disquiet that is of concern to [Ms Elza].
[Mr Chanan] would benefit by engaging with a parenting professional to assist him in the management of safety for the children. Priority should be given to the children's safety. [Mr Chanan] may believe that the children are more mature and more capable to manage themselves than their chronological and emotional development allows.
[Mr Chanan] refers [to] [Ms Elza]’s dysregulated states over the relationship and post separation period. He sees this as unstable, neglectful, and impacting upon the children. He sees that she vacillates from gate keeping the children, to agreeing to time with children. This level of unpredictability is frustrating for him.
The dominant narratives in the adult dyad are one of control and dependence and avoidance. Both have a disordered attachment, and their own emotional and psychological needs were not met by the other partner.
The family violence allegations made and refuted show frustration, poor conflict management. [Ms Elza] says that she is fearful of [Mr Chanan], although was able to go [to] his home. She experienced aggression, yelling and observed [Mr Chanan]’s anger (punching the wall). [Mr Chanan] alleged emotional annihilation as his personal needs were not met, and he was highly criticised for his lack of parenting competence leading to poor self-esteem. This also contributed to escapist behaviour into drug use and absence from the home.
The children then are witness to their parents' dynamics. [X] is protective of his parents. He is secretive about the dynamics in the home. [Y] is less concerned as he is a child who demands that his needs are met.
The children had accommodated the parental dynamic. However, they do not benefit from seeing their parents in conflict.
Their need is to get the best from each parent. They need regular and predictable routines. They need a safe and calm environment and not be the pawns in the parents' conflict. They will blame themselves for the escalating conflict if the parents do not reduce it for the children. It is not the separation that will impact their emotional health, but the conflict observed and absorbed. The parents may see that the children withhold information from each parent, they may become the ‘pleaser’ in the family, or they may act out in anger and sadness due to the parental dynamic.
This is the risk that the children face unless both parents do not reduce their conflict but see each other as acceptable parents end engage usefully so that the children can have a productive relationship with each parent.
…
What was evident in this family is their dismissiveness about the children capacity to cope in the separated arena. If the material and session information is accepted, then the parents are focusing on finding deficits in each other. They find it difficult to see positive capacity in the parent-child interaction, unless specifically questioned. The writer is concerned that the parents assume that the children accept and can manage between the parents without support. The parents, at time present as in an ownership manner about the children, e.g. both withholding children from each other without discussion. Successful support for the children often requires that the parents make changes in their own behaviour and parenting. From the Parental Alliance measure [Ms Elza] shows capacity to cooperate and support the parent-child relationship, although the interview session was not a clear in that regard. From the Parental Alliance measure, [Mr Chanan] has more of a "problematic" approach to cooperation.
…
Views expressed by the children.
No specific views were expressed by the children as they were protective of the parents. They do not understand the consequence of any expressed views and are adaptable if supported by their parents.
…
Impact on the children and their relationship with the Mother if the Court made orders as sought by the Father
…
The extra time requested is in the children best interest and [Ms Elza] [sic] acknowledged that the children need their Father, despite the conflicted adult issues. Subject to the safety of illicit drug use, the children time with the Father is accepted however not on a shared care basis.
…
Impact on the children and their relationship with the Father if the Court made orders as sought by the Mother
The Mothers suggestion of time with Father is a reduction of the current regime. This contrasts with her stated view of the Father's importance in the life of the children. It is understood that she has safety issues of illicit drug use and interparental denigration in front of the children.
…
Living with and Spending time with issues (65DAA)
The children benefit from spending time with each parent. They have an established attachment to their Mother. [X] has an established attachment to his Father and [Y] has been developing one over the recent time. The children are at different ages and stages. [X]’s interests and needs are different to [Y]'s. Consideration should be given to some individual time for the children to have with their Father so that they can develop individual memories and that activities can be more tailored to the ages and stages of each child.
The children require certainty and regularity in their life and minimal tension. As noted, the midweek sessions are very short and stressful for children. It is the parental need for this time, and it can impact on the child who may be overly heightened.
Longer blocks of time may be beneficial for the children to engage with each parent. They do not need to be physically or emotionally moving often which uses energy and stress. It is suggested that the parents consider block time for the children.
This is subject to [Mr Chanan] not using illicit or any drugs at least 48 hours before the children are in his care. This also relates to [Mr Chanan] being watchful, and focussed on the children when they are with him to avoid the children being at risk or in danger.
It is respectfully suggested that [X] and [Y] spend time with their Father from after school/kinder on a Thursday to commencement of school /kinder on Monday morning and in the alternate week from after school on Thursday to the commencement of school on Friday. This provides a weekend with children for each parent.
…
Recommendations
1. That the parents retain parental responsibility.
2. That the children live with the Mother.
3. That the children spend time with their Father as follows:
a.[X] and [Y] spend time with their Father from after school/kinder on a Thursday to commencement of school /kinder on Monday morning and in the alternate week from after school on Thursday to the commencement of school on Friday.
b.That [Y] spend some individual time with his Father before collecting [X] for the time spent, subject to practicality and availability of [Mr Chanan].
4.That the Father is does not engage in any illicit drugs all prescription drugs at least 48 hours prior to the children coming into his care.
5. That the parents enrol in completes Tuning into kid 's course.
6.That the parents enrol and complete a Parenting after Separation course if they have not done so to date.
7.That the children spend 2 hours on each of their birthdays after school with their Father if not in his care at the time.
8.That the children spend 2 hours on each of their birthdays after school with their Mother if not in her care at the time.
9. That the children spent two hours of each of their parents' birthdays after school if not in their care at the time.
10. That the children spend Father's Day from 9:00 AM to 5:00 PM if not in his care at the time.
11.That the children spend Mother's Day with their Mother from 9:00 AM to 5:00 PM if not in her care at the time.
12. That special occasions and religious celebrations be alternated between the parents.
13. That the children spend four days in the first week of each school term holidays Father.
14. That the children spend four days on two separate occasions in the long school holidays in January 2025.
15. That neither parent denigrates, belittle, or abuse the other parent in the presence of, within hearing or to the children.
16. That the changeovers be at school if that is practicable to avoid the parents interacting with each other.
17. For each parent be at liberty to attend school events with the children on an alternate term basis: i.e. any school events in term 1, 2024 be afforded to the Father, any school events in term 2 in 2024 be afforded to the Mother and alternating thereafter.
18. That both parents have access to the medical records and register with the appropriate medical practitioner to be able to contact that practitioner and seek medical advice pertaining to the children.
19. That both parents be supported with a parenting professional or a parenting coordinator to guide them and minimise conflict and assisting improving communication.
20.That the parents use a parenting App to communicate about the children to avoid face to face interaction other than in an emergency.
21.That the matter be reviewed in mid-2025 to consider how these suggested arrangements have worked, and if any increase or decrease should be considered.
22.If either parent re-partners prior to the review, for them to seek professional guidance as to how to introduce that notion to the children and to obtain support from the stepfamily association.
In all those circumstances I am satisfied it is just and equitable and proper to add back the following sums:
Item Mother asserts “add-back” of: 12[18] H Only $100,000 transferred to Husband’s parents $100,000 14 H Further funds paid to Brother after proceeding $14,500 16 H Legal fees paid (of $70,000) $50,000 Total $164,000 [18] The same numbering as in the last joint list of assets and liabilities.
Hence the real and notional pool of assets is as follows:
| Ownership | Description | Value | |||
| ASSETS | |||||
| 1 | H&W | Funds in ANZ account #...05 | $130,000 | ||
| 2 | H&W | Funds in ANZ accounts #...46 & #...84 (children’s) | $27,000 | ||
| 3 | W | Funds in personal bank accounts | $7,000 | ||
| 4 | H | Funds in personal bank accounts | $9,000 | ||
| 5 | H | Cryptocurrency | $39,130 | ||
| 6 | W | Cryptocurrency | NIL | ||
| 7 | H | Shares (F Company) | $9,500 | ||
| 8 | H | Motor Vehicle 1 | $4,000 | ||
| 9 | W | Motor Vehicle 2 | $8,500 | ||
| 10 | W | Country E Bank Accounts | N/A | ||
| 11 | W | J Company Shares | N/A | ||
| Total | $234,130 | ||||
| ADDBACKS | |||||
| 12 | H | Funds paid to Husband’s parents | $350,000 | ||
| 13 | H | Funds gifted to family and friends | $13,064 | ||
| 14 | H | Further funds paid to Brother after proceeding | $14,500 | ||
| 15 | H | Sale of F Company shares | $6,330 | ||
| 16 | H | Legal fees paid for assets | $50,000 | ||
| $164,000 | |||||
| Total non super’n assets | $398,130 | ||||
| LIABILITIES | |||||
| Total | $NIL | ||||
| SUPERANNUATION | |||||
| Member | Name of Fund | Type of Interest | Applicants value | ||
| W | Super Fund 2 | UK | $11,676 | ||
| H | Super Fund 1 | UK | $89,788 | ||
| Total | $101,464 | ||||
A 50/50 split of superannuation means a base amount split of $39,056. But a 70/30 split means a superannuation split of $59,349 (rounded), that is about $20,000 more than a 50/50 type split. I must not split superannuation to punish the Father but rather to make just and equitable orders. A 60/40 split would mean a superannuation split of $49,202, about $10,000 more than a 50/50 type split.
I proceed on the basis of a pool of existing and notional non-superannuation assets of $398,130
Step two: section 90SM(4)(a), (b) & (c) contributions
The financial contributions made directly or indirectly by or on behalf of a party
Both parents have made significant, but different, direct and indirect financial and non-financial contributions as parents and as income earners. I refer to and repeat my observations about the contribution of the $254,000 from the Father’s family recited at step one of these reasons.
Acknowledging that the assessment of contribution must not be compartmentalised (see Benson & Drury [2020] FamCAFC 303), it was not contended that contributions of the parties by and large should not regarded as equal. I accept the broad thrust of those propositions. Given the extent of the Father’s involvement with illicit drugs, that might be seen as a generous concession on the Mother’s part, but nonetheless I accept it. Contributions must be assessed by looking at real and human individuals and not by some standard of perfection.
Hence at this point, and on the basis of adding back the matters described at step one of these reasons, I assess contributions to non-superannuation assets as roughly equal, or roughly $199,062. If I did not make those notional addbacks, it would be necessary to otherwise adjust the contribution assessment to the same effect and I have chosen to go down the notional addback route rather than adjust the contribution percentage assessment because I am satisfied that the addback route, in this case, will be more transparent for the parties.
As to superannuation I am satisfied I should assess that as being equally contributed to in the section 90SM sense.
Step three: section 90SF(3) factors
I now turn to third step of the preferred approach recited earlier.
Although sometimes described as “future needs” this is only partly accurate as some factors relate to circumstances during the relationship. Although the headings that follow only paraphrase the relevant sections, I take the whole of the provision recited earlier into account.
I refer to the observations of the Full Court regarding section 75(2) (and therefore it’s equivalent de facto provision at section 90SF(3)).
The observations of the Full Court in Clauson & Clauson (1995) FLC 92-595 (‘Clauson’) have guided judges and practitioners since 1995. In Clauson the Full Court did not interfere with a contribution assessment of 75/25 in the husband favour. But on a re-exercise of discretion, the Full Court made a section 75(2) adjustment of 25% and included the observation (at 81,911) about consideration of section 75(2) factors that:
…in any event it is the real impact in money terms which is ultimately the critical issue.
In Rosati v Rosati (1998) FLC 92-804 (‘Rosati’) the Full Court had reason to re-exercise the discretion in the division of the parties’ assets in a $1,500,000 pool of assets back in 1998. After finding that section 79(4) contribution should be regarded as 60/40 in the Husband’s favour the Full Court found a 10% adjustment on account of section 75(2) factors was appropriate. But it is significant how the Full Court addressed the income disparity on account of section 75(2), way back in 1998, and it was addressed as follows at 85,046:
On our adjusted figure for the value of the parties net assets ($1,503,863), adjustment of 10% in the wife’s favour results in an increase in her entitlement of $150,386, and a corresponding reduction in the husband’s entitlement, producing a differential movement between them of $300,772 …
Decisions where the Full Court finds error and re-exercises the discretion or decision are always of particular assistance to Judges and practitioners where the facts are similar enough to be roughly comparable.
In Wayne & Wayne [2010] FamCAFC 33 (‘Wayne’), the Full Court dealt with an appeal where the total asset pool was $937,000 (in 2010 dollars), the parties had 4 children aged 18, 16, 10 and 8. The 18-year-old could be regarded as independent and the 16 year old, having left school, and was soon enough to be working or looking for work. The 10- and 8-year-old children lived in a 5/9 nights per fortnight in school term and shared holiday arrangement, with the Husband for the 9 nights. The 16-year-old also lived with the Husband. The Husband was found to have a full-time earning capacity of $45,000 to $50,000 and the Wife worked 35 hours per week and had slightly less earning capacity.[19] Contribution was found to be 48/52 in the Wife’s favour and that was not interfered with on appeal.
[19] See at [58] and despite complaint the Full Court did not interfere with those findings.
In Wayne, in those circumstances, the learned Trial Judge made a section 75(2) or third step adjustment of 10%. The Full Court found the extent of that adjustment to be an error of law and decided the adjustment should be only 4% in the circumstances. The rational of that decision can be easily discerned from the following paragraphs of the appeal decision:
[107]It is also important to recall what was said in Phipson & Phipson [2009] FamCAFC 28 when the Full Court was dealing with another appeal from the trial Judge in the present proceedings:
[39]It is always important to keep in mind that an adjustment of X% for s 75(2) factors leads to a disparity in the value of property received by the parties representing 2 x X%. It is that disparity, measured in “money terms”, that requires consideration in determining whether the result is just and equitable: see Campbell v Kuskey (1998) FLC 92-795 at 84,928.
[108]The 10% adjustment his Honour made on account of s 75(2) factors has led to a disparity in favour of the wife equivalent in value to 20% of the assets. In money terms this represents $187,733 out of a total asset pool of $938,665. Apart from the issues associated with the care, accommodation and maintenance of the children, the s 75(2) factors largely balanced out (save that as a result of the assessment of contributions the wife would have more capital than the husband). The husband was going to have whatever responsibility remained for the care, accommodation and maintenance of J. Both parties would have significant responsibility for the two younger children. It is true the wife will have the children with her about 20% more of the time than the husband, but this amounts to only a little more than 70 additional days a year.
[109]In our view an assessment leading to a disparity of $187,733 in the capital/superannuation to be received by each party was outside the reasonable ambit of the trial Judge’s broad discretion, even taking into account the matters found by his Honour relating to the non-payment of child support in the period after the husband gave up his employment. Our conclusion is sufficient to enliven appellate intervention (House v The King (1936) 55 CLR 499 and Norbis v Norbis (1986) 161 CLR 513). The appeal will therefore be allowed.
…
[112]In our view, given that the children will be with him around 40% of the time, the husband’s accommodation needs for the children would not be significantly different to those of the wife. However, in light of the agreement in relation to child support, we accept that the wife will bear the greater proportion of the burden of maintaining the two younger children (at least for the time being). The husband, on the other hand, will have whatever responsibility remains for accommodating and maintaining J. The other s 75(2) factors, in our view, are evenly balanced, save for the fact that as a result of the assessment of contributions the wife will have 4% (or $37,546) more of the assets/superannuation than the husband.
[113]Taking these matters into account, and the failure of the husband to pay child support after giving up his employment, we consider there should be a 4% adjustment for s 75(2) factors, creating a disparity of 8% between the parties – or in money terms an amount of $75,093.
In Lovine & Connor and Anor (2012) FLC 93-515, another Full Court approved the observations in Wayne and demonstrated that the percentage, the actual dollar amount of the adjustment and the disparity the adjustment creates should be taken into account when considering a section 75(2) adjustment.
The disparity that a 15% adjustment made between the parties in Lovine & Connor contributed to that Full Court finding that such an adjustment was wrong in that case. However, the facts of that case are very different to this one and so that case does not assist with what would be an appropriate adjustment in dollar or percentage terms, but the cited principle remains applicable. In Wallis & Manning (2017) FLC 93-759 the Full Court, after a discussion of the section 75(2) factors applicable to that case, concluded:
[169]In our view, s 79(4)(e) requires those matters to be taken into account in arriving at orders that are just and equitable as between the parties. In arriving at an appropriate assessment for those factors, a dollar value of it should be uppermost in our minds [79] and, of course, the ultimate disparity in entitlements which it might produce. That dollar value is, in turn, dependent upon the value of the interests in property of the parties.
In Varnham & Moses (2021) FLC 94-007 the Full Court again approved the “real money” approach of Wayne, and of Phipson & Phipson [2009] FamCAFC 28 (cited in Wayne), and of Lovine & Connor.
There can thus be no doubt that settled law requires, when considering all relevant section 90SF(3) factors that the “real money” as well as the “percentage” must be considered, as well as the disparity between the parties, that any adjustment creates.
I now turn to the factors to be taken into account pursuant to section 90SF(3). I recite only part of the provision in the heading for convenience but take into account the whole of the relevant provision.
(a) Age and state of health
Both parents are in their late forties and tell me they are in good health. I accept that.
(b) Income, property, financial resources and capacity for employment
The Father works full-time in the professional occupation of his training. He is clearly an intelligent and competent individual and I am satisfied he works hard. The Father has a significant, but not large, professional income of about $130,000 per annum gross before tax and he deposes to income tax (not challenged) of about $33,020 per annum leaving a net of income tax income of $96,980. In addition, the Father pays child support as assessed at the rate of about $286 per week (not challenged) or $14,872 and so a net of tax and child support income of about $82,108 per annum.
Compared to the Father’s income, the Mother’s income is small, however she has the assistance of social security benefits of a significant amount. Her net of tax income (unchallenged) was said to be, and I accept, $540 per week, or $28,080 per annum. When child support ($14,872) and social security benefits ($475 + $118 per week) of about $30,836 are added to that income, the Mother’s income net of tax in her household is about $1,410 per week or $73,528. That is not much less than the Father’s net of tax and child support household income.
As the children get older, I am satisfied the Mother has the capacity to work longer hours and earn, to a modest extent, more than what she currently earns.
The Mother will have to apply a significant part of the property settlement she receives pursuant to my orders to the payment of her legal fees. Though eye-watering to the lay person, the intensity of the proceedings, the multiple issues in dispute, and the multiple necessary attendances at Court, have resulted in the Mother incurring legal costs that, to my assessment, are modest relative to the quality and volume of the work involved.
(c) Care of children under 18 years
Both parties will have the significant obligation to care for the children implicit in a 5/9 school term regime and the Father will be able to maintain his full-time employment as well as care for the children.
(d) Commitments of each of the parties to support themselves or a child
The parties have the usual and unremarkable commitments of a family in an Australian capital city, where they are of limited capital resources. Both need to support the children as well as themselves.
(e) Responsibilities of either party to support any other person
Neither party asserts an obligation to support any other person except the children.
(f) Pension or benefit
In the spousal maintenance context I must not take into account a means tested pension or benefit. But when considering property division, I must take into account that one party receives an income tested benefit. I have taken into account the Mother’s income tested social security benefits at an earlier part of this section 90SF consideration.
(m) Whether party cohabiting with another person
The Father alleges, and the Mother disputes, that she cohabits with another adult. The Mother accepts that she has an intimate relationship with this person but asserts they do not cohabit as man and wife. The reality of modern intimate relationships means that adults can have significant time with another and can spend time overnight from time to time. An intimate relationship does not mean you cohabitate as man and wife.
I do not accept the Mother is cohabiting with anyone, although I accept the potential for that to occur in the future. At this time, and in the foreseeable future, I am unable to see on the evidence that the Mother has any significant financial support from her current partner or “boyfriend”.
(naa) Child support to be provided
The nature of the Father’s occupation means that he will earn a regular income and be readily available to be assessed by child support, which he will have to pay.
(o) Any fact or circumstances required to take into account
The Father has not conserved the resources that should have been available for division, and I refer to and repeat the issue of addbacks and, in particular, the $100,000 sent to his parents that was purported to be interest and the $50,000 applied to legal advice (notwithstanding that the Father was at all material times self-represented). I will not double count or further take those matters into account, save that those funds that the Father has already disposed of are not readily available to him. I am satisfied that the Father’s parents were generous to him in the past and it may be they will be generous again, but at this time that is a mere suspicion and the Father has not disclosed, nor does the evidence demonstrate, an intention of the Father’s parents to again be generous to him by the transfer of significant capital as they did previously with the $254,000. Hence, I cannot be satisfied on the balance of probabilities that the Father’s parents will assist him with substantial capital in the future.
The Father retains cryptocurrency with a value of $39,000 and some shares. He did not put forward or assert any potential income tax liability relating to the same. However, that was in the context of his case, which was that he would receive some part of the joint funds. I am not satisfied that when the cryptocurrency assets are converted to cash for the purpose of making a payment to the Mother in these proceedings, that there will not be any income tax. I take that into account and the adjustment on account of section 90SM(3) factors should be moderated in that circumstance.
I also take into account that the Father needs some funds for assets available to him to provide for his own day to day needs and for the children when they spend time with him. Hence, I am not satisfied that it is just and equitable to make an order that would mean that the Father has no available assets to get by on a day to day basis. And that is so even though the almost capital-less predicament that he is in at the end result of the implementation of the orders I will make is entirely his own doing, and he must take responsibility for such foolhardy conduct of his financial affairs at that time.
Conclusion as to Step 3 adjustment for section 90SM(3) factors
In all of these circumstances I am satisfied of the actual and notional assets that there should be an adjustment of 7.5% giving a disparity of 15% and of $59,715 on account of section 90SM(3) factors, would ordinarily be appropriate.
Step four: just and equitable and conclusion
The effect of this assessment means that the Mother will retain all of the funds now available in joint accounts, including the account notionally in the names of the children, but actually owned by the parents. The effect of this assessment is that the Father will need to make a payment to the Mother. A conclusion of a split of non-superannuation assets of 57.5/42.5 in the Wife’s favour means a payment of $56,424[20]. But such a payment would leave the Father with virtually no assets. He must also support the children when with him. In that circumstance I am satisfied the payment cannot be $56,424, very close to the $60,000 sought by the Mother, but rather half that payment or $28,213 (rounded). This payment is less than it should be because the Father has foolishly reduced the pool of assets, but I am to make a just and equitable property settlement not sentence the Father for foolishness and asset dissipation.
[20] $398,130 @ 57.5% = $228,925 less $157,000 (joint funds) less $15,500 Mother’s car and bank account retained by her leaves $56,425.
Hence the total non-superannuation assets to be retained by the Mother is $200,713 or only a tad over 50% of the assets that should be available. That is $28,213 less than what would otherwise be just and equitable.
Given the ages of the parties, the superannuation that they would have upon their retirement many years into the future will depend upon a multitude events, including investment decisions one makes and how they spend their income. That cannot now be confidently predicted. It is likely that the Father’s income will remain larger than the Mother’s and hence he will end up with more superannuation. That is likely to be a function of his greater earning capacity. I have already taken into account his greater earning capacity in my assessment in the relevant 90SM(3) adjustment of non-super assets and I do not take the further income disparity again when dealing with the issue of super split orders.
However, because of the manner in which the Father has dealt with the significant capital that should have been available for the division between them, and notwithstanding that the contribution to super should otherwise be regarded as roughly equal, I am satisfied that the superannuation split contended for by the Mother, effectively a 70/30 split based upon the values at the time of the trial are just and equitable. That is a split of about $20,000 more than would have otherwise been the case.
I also take into account the circumstances of the potential effect of on the recently announced again/off again Trumpian tariffs[21] and the potential for that to impact on individual superannuation, and that the value of superannuation of both parties at the time of the split may well be different to what it was at trial. Ordinarily, that would call for a percentage type divisional split rather than a base amount split. Neither party contended for that before me. However, in the circumstances of this case and, most significantly, the transfers of a large proportion of the assets which otherwise should have been available for distribution between the parties, I am satisfied that a base fixed amount is just and equitable notwithstanding for the potential of volatility for superannuation amounts to fall more heavily on the Father.
[21] I am satisfied that the existence and nature of Trumpian tariffs is not a matter that is reasonably open to question or that requires specific or expert evidence as contemplated by section 144 of the Evidence Act 1995 (Cth).
CONCLUSION AS TO PROPERTY
I am satisfied that it is just and equitable that the Mother should retain all of capital of the parties in the joint bank accounts together with her personal account and motor car. In addition to that there should be a payment from the Father to the Mother within 60 days in the sum of $28,213. That is a notional division of the still available distribution non-superannuation assets in the proportions of 50.4 percent to the Mother and 49.6 percent to the Father. This will mean non-superannuation assets available to the Mother of $200,713 and modest superannuation of about $70,000.
COSTS SOUGHT BUT NOT DETERMINED
The Mother sought that the Father pay her costs of the proceedings. Costs are usually determined after the final decision is handed down because I must take into account matters that I am not usually informed of, like offers in writing. If an application for costs is to be made it should be in accordance with the Rules of the Court and should be determined on short written submissions.
I certify that the preceding two hundred and two (202) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 10 April 2025
0
6
2