Forester & Forester (No 2)
[2024] FedCFamC1F 378
•7 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Forester & Forester (No 2) [2024] FedCFamC1F 378
File number MLC 106 of 2022 Judgment of WILSON J Date of judgment 7 June 2024 Catchwords FAMILY LAW –PARENTING & PROPERTY – trial proceeded on an undefended basis – mother an unacceptable risk – no time ordered – property pool divided 70/30 in favour of husband after loan from his parents ordered to be paid first. Legislation Corporations Act 2001 s 1323
Family Law Act 1975 ss 60CC, 64B, 74, 106A
Cases cited Ashton v Pratt (2015) 88 NSWLR 281
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Holloway v McFeeters (1956) 94 CLR 470
Honeysett v R (2014) 253 CLR 122
Isles v Nelissen (2022) 65 Fam LR 288
Jabour v Jabour (2019) 59 FamLR 475
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Paviello & Paviello [2022] FedCFamC1F 592
Stanford v Stanford (2012) 247 CLR 108
Trevi & Trevi [2018] FamCAFC 173
Division Division 1 First Instance Number of paragraphs 115 Date of hearing 24 May 2024 Place Melbourne Counsel for the applicant The applicant did not appear Counsel for the respondent Mr J Rattray Solicitors for the respondent TFA Legal Counsel for the independent children's lawyer Mr M Leeton Solicitors for the independent children's lawyer Taft Lawyers ORDERS
MLC 106 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS FORESTER
Applicant
AND Mr FORESTER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDERS MADE BY
WILSON J
DATE OF ORDERS
7 JUNE 2024
THE COURT ORDERS THAT –
Parenting
1.All previous parenting orders be discharged.
2.The father have sole parental responsibility for the child X (born 2017) (“the child”).
3.The child live with the father.
4.The child spend no time with the mother.
5.The father provide electronic copies of the child’s photographs to the mother every six months.
6.The father notify the mother as soon as practicable if the child suffers an illness or injury that requires admission to hospital.
7.The mother is permitted to send a letter or email and up to two gifts for the child for her birthday and Christmas, with such communications to be addressed to the father at a post office box or postal address nominated by the father in writing within 14 days of the date of these orders.
8.The father has liberty to provide a copy of these orders to any of the child’s school, medical doctor and other allied health professional.
9.The father is permitted to unilaterally apply for a passport to be issued or renewed or replaced for the child without having to obtain the mother’s consent or signature and a Registrar is permitted to sign any required documentation on the mother’s behalf.
10.The father is permitted to travel overseas or interstate with the child without having to obtain the mother’s consent but he must inform the mother of the departure date from Australia and the return date to Australia.
11.Pursuant to s 64(B)(2)(g) of the Family Law Act 1975 (Cth), the mother is restrained from making any application under Part VII of the Act in relation to the child without first making an ex parte application seeking and obtaining leave of a Justice of Division 1 of the Federal Circuit and Family Court of Australia and for that purpose –
(a)the mother must file an application setting out the specific orders sought; and
(b)an affidavit setting out the evidence and reasons for seeking those orders.
Property
12.On or before 4pm on 14 June 2024, the applicant and respondent must do all acts and things including executing all necessary documents to procure the disbursement jointly in favour of Mr B Forester and Ms C Forester of the whole of the amount held in trust by Y Lawyers in respect of the land known and described as J Street Suburb K in the State of Victoria.
13.Within 48 hours of settlement of the sale of the land known and described as G Street, Suburb H in the State of Victoria, the applicant and respondent must do all acts and things including executing all necessary documents to procure the disbursement jointly in favour of Mr B Forester and Ms C Forester of such sum that, when added to the sum disbursed in accordance with paragraph 12 of these orders, aggregates a total amount of $450,000.
14.Within 14 days of the date of these orders, the wife must –
(a)transfer her shares in Z Pty Ltd to the husband; and
(b)renounces all claims against Z Pty Ltd and against the Z Trust;
(c)resign or consent to her removal (at the husband’s election) as a principal/appointor of the Z Trust;
(d)either surrender to the trust or assign to the husband (at his election) any present entitlements she has in the Z Trust;
(e)at the written direction of the husband, forgive or assign to the husband any credit/debt loan accounts that she may have in the Z Trust; and
(f)consent to her removal as a beneficiary of the Z Trust at the written request of the husband.
15.Within 14 days of the date of these orders, the wife must –
(a)renounce all claims against Forester Investments Pty Ltd and against the Forester Discretionary Trust;
(b)resign or consent to her removal (at the husband’s election) as a principal or alternate appointor of the Forester Discretionary Trust;
(c)either surrender to the trust or assign to the husband (at his election) any present entitlements she has in the Forester Discretionary Trust;
(d)at the written direction of the husband, forgive or assign to the husband any credit or debit loan accounts that she may have in the Forester Discretionary Trust; and
(e)consent to her removal as a beneficiary of the Forester Discretionary Trust at the written request of the husband.
16.Within 14 days of the date of these orders, the parties must do all acts and sign all documents necessary to enable their respective debts owed to the Z Trust to be offset against the trust’s deeds owed to each of them respectively.
17.The husband shall retain to the exclusion of the wife all right, title, and interest in the following entities and the husband remains solely liable for and indemnifies the wife against all liabilities with respect to –
(a)Z Pty Ltd in its own capacity or as trustee for the Z Trust (formerly known as W Pty Ltd);
(b)Z Trust (formerly known as W Trust);
(c)Forester Investments Pty Ltd in its own capacity or as trustee for the Forester Investment Trust; and
(d)Forester Investment Trust.
18.The husband shall retain, to the exclusion of the wife, the following assets –
(a)his savings; and
(b)his personal belongings and effects.
19.The wife shall retain, to the exclusion of the husband, the following assets –
(a)her savings;
(b)Motor Vehicle 1 motor vehicle; and
(c)her personal belongings and effects.
20.Each party is solely responsible for and indemnifies the other against all liabilities in that party’s name.
21.From the date of these orders and unless otherwise specified in these orders except for the purposes of enforcing payment of any money due under these or any subsequent orders –
(a)each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at this date including any jewellery, furniture, furnishings, shares and motor vehicles;
(b)each party is solely liable for and indemnies the other against any liability encumbering any item of property to which that party is entitled pursuant to this order; and
(c)any joint tenancy of the parties in any real or personal property are hereby expressly severed.
22.If either party refuses or neglects to execute or return a deed or instrument in compliance with these orders, a Registrar of the Federal Circuit and Family Court of Australia (Division 1) at Melbourne is hereby appointed pursuant to section 106A of the Family Law Act 1975 to sign or execute any such instruments in the name of the defaulting party and do all acts and things to give viability and operation to the deeds and/or instrument.
23.Costs, if sought by either party, must be the subject of a separate application in a proceeding supported by affidavit material and written submissions.
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
WILSON J
INTRODUCTION
This parenting and property case proceeded on an undefended basis with the concurrence of the ICL.
The child is six years of age.
The father sought orders for sole parental responsibility and that the child have no time with the mother. The ICL supported those orders.
Property valued at around $650,000 or thereabouts fell to be divided. That sum took the form of cash at bank in trust. The husband sought an order that $450,000 of that amount be transferred to his parents.
OUTCOME
For the reasons that now follow, I make orders –
(a)that the father has sole parental responsibility for the child and that the mother has no time with the child; and
(b)the money held in trust be disbursed –
(i)first to Mr B Forester & Ms C Forester as to $450,000;
(ii)as to the balance to the husband; and
(iii)no sum is disbursed to the mother.
In making the order for the mother to have no time with the child, I have engaged in the predictive exercise of which the court spoke in Isles v Nelissen[1] and concluded that the mother presents as an unacceptable risk to the child. So far as property issues were concerned, the pool of divisible assets is very modest. The wife has misappropriated funds and it is just and equitable that she receives no further amount. The husband’s parents are major creditors in respect of joint debts owed to them by the husband and the wife.
[1] (2022) 65 Fam LR 288.
RELEVANT FACTUAL SETTING
The father is 36. The mother is 36. The child is six.
The father carries on business in construction. His father has assisted him periodically both financially and in the running of construction activities.
The mother and father commenced living together in 2012, they married in 2015 and they separated in April 2020. The child has lived with the father on a full-time basis since mid 2021.
The mother has significant issues with alcohol and narcotics abuse.
The father says the mother presents an unacceptable risk to the child while the child is in her care. The ICL agrees.
The father is presently in a strong and committed relationship with his current partner. The father’s current partner has a child with whom the six year old the subject of this proceeding presently lives.
THE EVIDENCE
The father relied on two affidavits he made, the first affirmed on 25 March 2024 and the second affirmed on 21 May 2024. He was cross-examined on the contents of his affidavits by counsel for the ICL. The more important matters that arose from his affidavits were the following –
(a)the mother has a history of violent behaviour including assault on police;
(b)the mother’s drinking of alcohol was significant from the commencement of the relationship;
(c)the mother at times concealed alcohol in the child’s bottle which the child once consumed;
(d)the mother left glasses of alcohol around the home;
(e)following separation, the mother took drugs;
(f)in early 2021 the mother was hospitalised at the D Hospital following an episode of drug-induced psychosis and she was hospitalised on two other occasions for drug‑induced psychosis;
(g)in 2021 the mother was involved in a car accident when the child was in the car and the mother drove away from the accident scene;
(h)twice between 20 December 2021 and 14 February 2022 the mother failed to undertake drug and urine testing;
(i)the mother was arrested in 2022 then released on bail;
(j)on 4 August 2023 the mother failed to present herself for a supervised visit with the child in respect of which the child reported that it was the child’s fault for the mother’s non-appearance;
(k)on 29 August 2023 the supervisor cancelled the mother’s supervised visit because the mother appeared to the supervisor to have been adversely affected by drugs;
(l)in mid-2023 the mother and child connected by video link during which the child said she did not wish to participate and behaved inattentively;
(m)the mother disclosed to the child that the mother revived an unconscious friend, using CPR, thereby saving the friend’s life;
(n)following the making of orders on 11 October 2023, the mother made telephone calls to the child at inappropriate times during which the subject of the calls was also inappropriate;
(o)on 18 October 2023 during a telephone conversation between the mother and the child, the mother told the child that the child’s living with the father and his partner made the child feel sad;
(p)on 25 October 2023 the mother shouted at the father’s partner during a telephone call with the child;
(q)on 28 October 2023 an employee of the supervising service needed to physically assist the child on play equipment because the mother stood at such a distance away from the child that the child’s safety was compromised, which episode precipitated the supervising service cancelling its involvement leading to there being no supervised visits between the mother and the child in the period between 28 October 2023 and 17 December 2023;
(r)on 15 and 16 November 2023 the mother failed to join telephone calls with the child causing stress and confusion to the child;
(s)on 30 November 2023 the mother accused the father of being nasty for failing to provide his address to enable the mother to deliver to the child an advent calendar;
(t)on 1 December 2023 the mother failed to undertake a hair follicle test;
(u)on 20 December 2023 the mother told the child that the events then underway were the father’s fault;
(v)the Christmas supervised visit was cancelled because the mother failed to confirm the visit;
(w)on 27 December 2023 the mother accused the father of abuse in the presence of the child;
(x)in early 2024 the mother contacted police and falsely asserted that the father had abused the child;
(y)on 18 February 2024, the mother arrived 20 minutes late for a supervised visit in E Shopping Centre when she was observed by the supervisor to be adversely affected by drugs so the visit was cancelled precipitating the mother in physically carrying the child while accusing the supervisor of attempting to harm the child, leading to the child experiencing nightmares and also leading to the child reporting fear of the E Shopping Centre; and
(z)frequently, after supervised visits with the mother the child returns to the father’s care in an anxious and angry manner.
The father deposed to there being six suspensions of supervision between the child and the mother. He also deposed to the child insisting that he (the father) never leaves her and that he ensures that nothing happens to her.
Among the exhibits to the father’s affidavits was a collection of documentary material making up part of the police prosecution case against the mother. The police had charged the mother with two offences. The exhibited documents revealed that the mother had been found guilty of possessing illicit drugs. Other documents disclosed violent assaults on persons having transient connections with the mother, such as a person who with her partner attended at the mother’s resident in late 2021 when the mother struck that person in the head. The father deposed to the mother being physically strong and highly skilled at martial arts.
Police information exhibited by the father to his 25 March 2024 affidavit revealed that the mother was present when search warrants were executed at the place where the mother lived resulting in the mother’s arrest for possessing dangerous goods. Police documentation included a preliminary brief recording that police were of the view that the mother worked with two others to use an unoccupied residential apartment to conduct drug trafficking and drug storage. When executing the search warrant police located weapons. The mother was charged with –
(a)having in her possession, maliciously and unlawfully, dangerous goods with the intent of using these to endanger life and cause serious injury to property;
(b)having in her possession dangerous goods without lawful excuse;
(c)dealing with the proceeds of crime;
(d)weapons-related offences;
(e)drug-related offences.
Dr F, clinical and forensic psychologist, provided reports dated 2 May 2022 and 11 April 2023. The second of those reports is the more temporally relevant. The following represents the more important issues that arose from the 11 April 2023 report –
(a)the relationship between the mother and the child is fragile and poorly developed;
(b)a lack of stable attachment is evident between the mother and child;
(c)an anxious attachment exists between the mother and the child;
(d)the child perceives her home and her family being her father, the father’s partner, the father’s partner’s child and the child;
(e)the child stated she has “another mother who was taken away by the police” (words attributed to the child);
(f)it is likely that the relationship between the mother and the child has been significantly damaged by the mother’s mental health, substance abuse and recent incarceration;
(g)according to the child, the father and the child enjoy a favourable relationship;
(h)parental risk with the mother is moderate to high;
(i)parental risk with the father is low;
(j)the mother suffers from significant personality disorders;
(k)the mother has a clinical disorder associated with marked vulnerability towards alcohol and substances;
(l)the mother’s problems with addiction present as related to her own family of origin dysfunction which led to personality disruption leading in turn to alcohol and drug abuse and to drug induced psychosis;
(m)the personality features just narrated cause the mother to risk the care of her child by consorting with criminals;
(n)the mother’s prognosis for recovery is uncertain and are considered to be poor; and
(o)the mother’s insight into personality difficulties is limited, presenting with a tendency for denial and minimisation and she prioritises her own psychological and addiction needs ahead of her relationship with her daughter.
Dr F contrasted the mother’s circumstances with those of the father. Dr F said the father is prepared to put the child’s needs first. Dr F suggested that as a first task, sole parental responsibility should be considered by the court. Dr F stated that the child’s central attachment is to the father and the child’s attachment to the mother is unstable. He said the child is at a point where she requires stability.
UNACCEPTABLE RISK
The father contended that the child was at an unacceptable risk while in the mother’s care. That thesis underpinned the father’s application for the mother to have no time with the child. In accordance with the observations in Isles v Nelissen,[2] I am required to engaged in a predictive exercise by assessing the likelihood of risk of the child suffering or being exposed to family violence in the future.
[2] (2022) 65 Fam LR 288.
The mother has previously been charged with criminal acts relating to drugs and weapons. She attended a supervised visit with her child when adversely affected by drugs. The mother has a drug problem, according to the evidence. The mother has refused to submit to hair follicle testing. Psychological evidence revealed that the mother presented an unstable relationship with the child and a high risk to the child whereas the father presented a stable relationship with low risk.
Whatever may be the mother’s factual and legal position on this application is unknown as she did not participate in the trial.
In my judgment, the mother poses an unacceptable risk to the child. Supervised time has been ineffective previously because the mother has attended when adversely affected by drugs. She has unilaterally cancelled a visitation and she has argued with a supervisor. Dr F expressed substantial reservations about the mother’s ability to prioritise the child ahead of her own issues. Conversely, the father does not have those issues nor does he have problems associated with drug abuse.
STATUTORY CONSIDERATIONS
Any parenting order in this case must be one that is in the best interests of the child. In determining the best interests of the child, I am required to consider the elements of s 60CC(2) and s 60CC(3) of the Family Law Act. The primary considerations in s 60CC(2)(a) and (b) being the need to make orders that provide for a meaningful relationship between the child and her parents and the need to protect the child from family violence are arranged in importance such that the need to protect the child from family violence assumes greater priority. Section 60CC(3) enumerates a collection of additional considerations which I am required to consider.
The father has applied for an order that the mother is to have no time with the child. Self-evidently, such an order conflicts with the legislative imperative for orders to be made that promote the child having a meaningful relationship with both parents. An order for a parent to have no time with the child may be validly made when it is premised on safety concerns for the child. In this case I take the view that an unacceptable risk exists that the child will be exposed to family violence in the mother’s care. The psychological evidence of Dr F was damaging to the mother in that regard.
PARENTING PROPOSALS
In the mother’s amended initiating application filed 15 March 2023 she proposed a collection of parenting orders. They were as follows –
(a)the mother and father have equal shared parental responsibility for the child;
(b)the child live with the mother;
(c)the child spend time with the father each alternate weekend, every Wednesday from 4pm to 7pm and half of the school holidays; and
(d)that changeover be at the mother’s home.
In his amended response to the mother’s amended initiating application, the father sought a collection of parenting orders yet he did not press others. Those he pressed were as follows –
1. That all previous parenting orders be discharged.
2. That the Father have sole parental responsibility for the Child X (born 2017) (“the Child).
3. That the Child live with the Father.
4. That the Child spend no time with the Mother.
5. That the Father provide electronic copies of the child’s photographs to the mother every six months.
6.That the Father notify the Mother as soon as practicable if the child were to suffer an illness or injury that requires an admission to hospital.
7. That the Mother is permitted to send a letter/email and up to two gifts for the Child for her birthday and Christmas, with such communications to be addressed to the Father at a PO Box or postal address nominated by the Father in writing within 14 days of the date of these Orders.
8. That the Father have liberty to provide a copy of these Orders to any of the Child’s school, medical doctor, and other allied health professionals.
He informed me he did not press paragraph nine which was an application to relocate to regional Victoria.
Paragraphs 10 to 12 were as follows –
10. That the Father be permitted to unilaterally apply for a passport to be issued or renewed or replaced for the Child without having to obtain the mother’s consent or signature and/or a Registrar be permitted to sign any required document/s on the mother’s behalf.
11. The Father is permitted to travel overseas or interstate with the Child without having to obtain the mother’s consent, however inform the Mother of departure date from Australia and the return date to Australia.
12. That pursuant to section 64(B)(2)(g) of the Family Law Act 1975 (Cth), the Mother be restrained from making any application under Part VII of the Act in relation to the child without first making an ex-parte application seeking and obtaining leave of a Judge of the Federal Circuit and Family Court of Australia and for that purpose:
a. the Mother must file an application setting out the specific orders sought;
b. an affidavit setting out the evidence and reasons for seeking these orders; unless otherwise ordered such application is not to be served on the Father;
c. if possible, any such application for leave be listed before the Judge who made these final parenting orders.
In my view the orders sought by the mother are not in the child’s best interests. The child is unstable in the mother’s care. The child is stable in the father’s care. The mother’s capacity to adequately care for the child is impaired by her addition to drugs and alcohol as reported by Dr F. In the mother’s care the child is at high risk of harm whereas the same cannot be said of the risk of harm to the child when she is in the father’s care. Dr F considered the mother’s insight as being relevant. I agree. She seems to have little insight into the undesirable nature of persons with whom she associates, including persons who are criminals. In the father’s care the child is shielded from those elements to say nothing of the child being removed from drug and alcohol abuse along with psychosis episodes to which the mother has exposed the child.
In addition to my consideration of the elements of s 60CC(2), pursuant to s 60CC(1) I am required to consider the 14 separate subsections of s 60CC(3) and to pass upon the matters raised in them. To the subsections of s 60CC(3) I now turn.
Section 60CC(3)(a) requires investigation into the views expressed by the child and to accord those views such weight as I consider appropriate. In my judgment, the child is still very young. Whatever may be her expressed views, they carry little weight having regard to her tender years.
Section 60CC(3)(b) requires consideration to be given to the nature of the child’s relationship with each parent and other persons, relevantly here, the father’s partner. The evidence is overwhelmingly positive in relation to the child’s relationship with her father. It is punctuated by maturity on the father’s part, responsibility, devotion, care and love for his daughter. The same cannot be said of the mother’s relationship with the child. Dr F observed that the mother behaves in a selfish manner prioritising her own needs ahead of those of the child. As for the father’s partner, Dr F was positive in his assessment of the father’s partner.
Section 60CC(3)(c) requires consideration of the extent to which each parent has taken or failed to take the opportunity to participate in making long-term decisions in relation to the child, spending time with the child and communicating with the child. The father has been vitally active in all three categories by taking the opportunity of doing all three. The mother has not. So far as time spent with the child was concerned, the mother’s time with the child has been supervised for some time and evidence exists to the effect that –
(a)on one occasion she arrived at the supervision centre adversely affected by drugs; and
(b)on another occasion the mother became argumentative with the supervisor.
Other evidence exists to the effect that the mother has communicated with the child in a manner that embroils the child in the skirmishing between the parents, a matter highly inappropriate for a child of such tender years.
Section 60CC(3)(ca) was not enlivened as the father has paid for the child. The mother (although once a professional) has been entirely irresponsible financially towards the child.
Section 60CC(3)(d) is unlikely to be enlivened because these orders orchestrate no appreciable change in the child’s circumstances. The child’s circumstances will continue, essentially unaltered.
Section 60CC(3)(e) was likewise not enlivened.
Section 60CC(3)(f) was a major consideration. It required me to address the capacity of each of the parents (and relevantly, the husband’s partner) to provide for the needs of the child including the emotional and intellectual needs. In my view, the scales tilt overwhelmingly in favour of the father in respect of this subsection. The father is attuned to the child’s needs, he keeps her stable (a matter the mother does not), the child is calm and loved in his care, the child excels with the father’s partner and with her child. Conversely, the mother wholly lacks insight into proper parenting. That may be due to the mother’s fragile mental fabric or it may be due to years of drug abuse. The precise reason is unimportant because the mother fails to provide for the child’s emotional and intellectual needs whereas the father does.
So far as s 60CC(3)(g) was concerned, the relevant issue for my consideration was the mother’s chosen lifestyle of drug and alcohol abuse and her consorting with criminals.
Section 60CC(3)(h) was not relevant.
Section 60 CC(3)(i) required consideration of each parent’s attitude to the responsibilities of parenthood. It is a fair summary of the evidence on this parenting application that the mother has demonstrated a very poor attitude to the responsibilities of parenthood, including attending a supervised visitation adversely affected by drugs. I entertain no doubt whatsoever that the father has demonstrated a superior attitude to the responsibilities of parenthood compared with the mother.
Family violence is specifically enquired after in s 60CC(3)(j) and (k) of the Family Law Act. The police documentation exhibited by the father and the family reports by Dr F demonstrate that several instances of family violence have occurred for the purposes of s 60CC(3)(j) since 2020 and similarly, for the purposes of s 60CC(3)(k) that family violence orders apply, or have applied against the applicant in relation to the child or a member of the child’s family (relevantly here, the applicant’s mother) since that time. To my way of thinking, the history and presence of family violence and related family violence orders in relation to the applicant allow an inference to be drawn that the child is likely to be exposed to family violence during the mother’s care of the child.
Section 60CC(3)(l) requires consideration of whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child. It seems to me that the orders sought by the father are essential in order to ensure the child’s future is tolerably stable.
THE FATHER’S PARENTING ORDERS
Paragraphs one to eight of the father’s proposed orders have already been canvassed. I see them as being in the child’s best interests.
The father did not press paragraph nine.
Paragraphs 10 and 11 are the natural consequences of an order for sole parental responsibility. However, in case hereafter the father encounters trouble obtaining a passport for the child, then paragraph 10 gives him the necessary imprimatur for him to do so.
Paragraph 11 is a matter that follows from an order for sole parental responsibility. Nevertheless, the order sought will obviate an airport watchlist challenge if the father endeavours to travel with the child and the mother complains about that. I see no detriment in including an order in terms of paragraph 11.
Paragraph 12 of the father’s proposals takes the form of a requirement under s 65B(2)(g) compelling the mother to apply ex parte and obtain leave to bring a fresh application for parenting orders. Having regard to the fact that the orders now made are significant intrusions into equal shared parental responsibility, based of course on sound evidence, I see no reason why the mother ought not be put to the task of persuading a judge of this court that she is entitled to apply for further orders. As to the form of paragraph 12, the application must be made to a Justice of Division 1 and I delete proposed paragraph 12(c) because there is no warrant for the application needing to be made to me.
PROPERTY
The usual benefit of the trial judge having what is euphemistically called in this jurisdiction a “balance sheet” was denied to me in this case. Instead, the father created what he called the “asset pool”. It was as follows –
Assets
G Street, Suburb H (in trust) $225,000
J Street Suburb K (in trust) $267,000
Money taken by applicant $50,000
Respondent’s cash-at-bank $1,000
Motor Vehicle 1 $20,000
L Bank account $30,000
Applicant bank accounts $10,000
Proceeds of sale of Motor Vehicle 2 $38,000
$641,000
Superannuation
Applicant $58,322
Respondent $99,811
$158,133
Liabilities
Business Loan $450,000
Net Assets w/o sup’n $191,000
Net Assets with sup’n $341,133
Superannuation is conventionally regarded as an asset. In the above configuration of the statement of assets and liabilities, in my view superannuation should be regarded as an asset when formulating total assets. Liabilities should be deducted therefrom. In other words, total net assets, being existing legal and equitable interests in property according to Stanford v Stanford,[3] were –
[3] (2012) 247 CLR 108.
(a)money in trust for Suburb H $225,000
(b)money in trust for Suburb K $267,000
(c)cash at bank $1,000
(d)Motor Vehicle 1 $20,000
(e)L Bank $30,000
(f)applicant’s cash-at-bank $10,000
(g)proceeds from sale of Motor Vehicle 2 $38,000
$591,000
I have separately addressed addbacks.[4]
[4] Trevi & Trevi [2018] FamCAFC 173.
INITIAL CONTRIBUTIONS
The father deposed to the state of the assets at the commencement of his relationship with the mother. He said he owned three parcels of real property, all burdened by mortgages, namely –
(a)units 1 and 2 M Street, Suburb N;
(b)O Street, Suburb P; and
(c)Q Street, Suburb R.
He said each property was solely in his name and that the combined equity was $370,000. He adduced no document to verify the combined equity amount. He said that finance had been provided pursuant to two loans one under which he was the borrower and the other under which his parents were the borrowers. He said he and his father constructed town houses on the Suburb P property as well as on the Suburb N property. The respondent deposed to his father helping with construction works on properties acquired by the respondent and applicant subsequent to the commencement of the relationship. He said his father did not render a fee for his building works. The respondent deposed to entering the relationship with the applicant with significantly more by way of initial contributions than the applicant had.
THE SUBURB K PROPERTY
The husband[5] deposed to purchasing J Street Suburb K in 2013. He said the Suburb K property was purchased jointly with the applicant for $256,000 funded by the respondent refinancing existing loans (I infer[6] the loans secured by the Suburb N units, the Suburb P property and the Suburb R property). The Suburb K property was developed by the respondent and his father carrying out construction works on town houses. The respondent deposed to entering into a formal building contract with his father in order to undertake those works. The respondent deposed to the Suburb K property being tenanted between 2013 and 2018. The respondent deposed to living in the Suburb K property between 2018 and 2020. He said the applicant lived in that property for four months subsequent to separation. He said that the Suburb K property had been tenanted since August 2020, the rent being applied in reduction of the mortgage debt.
[5] Traditionally, when addressing parenting issues the father is referred to as “the father” as I have done above and when addressing property issues, the father is referred to as “the husband” which nomenclature I shall observe in these reasons although the reference to “the father” or “the husband” is a reference in this case to the respondent Mr Forester.
[6] Holloway v McFeeters (1956) 94 CLR 470.
So far as documentation was concerned to verify the statements made by the respondent in paragraph 148 of his affidavit made 25 March 2024, he produced no documentation. It would have assisted me in my determination of the matters in issue in this case to have seen –
(a)the contract pursuant to which the Suburb K property was purchased disclosing the price (including deposit) and in whose names the property was purchased;
(b)the details of the refinancing undertaken so as to verify the extent of the indebtedness in respect of which existing facilities were extended;
(c)the certificate of title revealing the registered proprietors of the property once the applicant and respondent settled their purchase;
(d)the construction contract for the creation of the town houses on the property;
(e)building plans and permits for the town houses;
(f)rental agreements between the registered proprietors of the property and tenants showing rental sums due; and
(g)bank statements showing the total amount of rental paid by tenants and, more importantly, to whom that rental was paid.
Witnesses in court giving viva voce evidence are bound by the obligations enunciated by the High Court in Kuhl v Zurich Financial Services Australia Ltd[7] to tell the truth, the whole truth and nothing but the truth. The same obligation applies to deponents to affidavits, all the more when a deponent, as did the respondent, enters the witness box to verify the contents of one or more affidavits as being true and correct.
[7] (2011) 243 CLR 361.
Here, the respondent had no contradictor. The case was undefended. But that did not relieve the respondent from his obligation to tell the truth, the whole truth and nothing but the truth – both viva voce and in affidavit form. Solicitors who prepare affidavits for use in family law litigation should be more astute in the discharge of their clients’ duties in that regard.
THE SUBURB T PROPERTY
The respondent deposed to purchasing real property at S Street, Suburb T jointly with the applicant in 2015. He said the purchase price was $290,000. No documents were adduced to support that statement. He said the construction cost of town houses on that land was $240,000. He said that in order to purchase that property, he (not he jointly with the applicant) drew down on the equity derived from refinancing loans on his investment properties (again, while not stated by the respondent in terms, I infer he meant the Suburb N, the Suburb P and the Suburb R properties) thereby generating $29,000 required for the deposit and stamp duty. The respondent deposed to he and the applicant borrowing to pay the balance between the purchase price less the deposit. He said his father and he constructed town houses on the Suburb T property. He said he and the applicant lived at the property between 2015 and 2017 after which the property was sold generating a net profit of approximately $200,000.
As with the Suburb K property, no documentation was exhibited by the respondent in relation to the Suburb T property. The observations made above about the respondent telling the truth, the whole truth and nothing but the truth apply in respect of the Suburb T property with as much force as those comments apply in relation to the Suburb K property.
THE SUBURB H PROPERTY
The respondent deposed to purchasing G Street, Suburb H in 2015 jointly with the applicant and the respondent’s parents. He said he and the applicant at the time were unable to purchase the property in their own names because they had borrowed as much as they were then able so the respondent’s parents agreed to become co-purchasers as to a one half interest. The respondent deposed to his parents attending the auction of G Street, Suburb H at which the four were the successful bidders at a price of $445,000.
The respondent did not depose to the events at the auction, especially the payment of the deposit or the contract executed. I found that surprising because –
(a)the respondent had given no meaningful evidence to that point about his annual earnings;
(b)he said nothing about the state of his monthly mortgage indebtedness across the two Suburb N units, the Suburb P unit, the Suburb R unit, the Suburb K property and the Suburb T property;
(c)he said nothing about how much rent was being received to service all loans; and
(d)he said nothing about what his debt to equity ratio was.
It seemed readily apparent that the respondent was by 2015 heavily burdened by debt. He gave no evidence of the applicant’s earnings as a professional. Whether either had income protection insurance went unsaid in the evidence.
At all events, the respondent deposed to needing the financial assistance of his parents in order to complete the purchase of the Suburb H property. He said his parents paid their half in cash. Not knowing how much was paid by way of deposit and by whom, the reference to his parent’s paying their half was highly imprecise. The respondent deposed to his parents needing to be joint borrowers in order that he and the applicant could obtain a loan yet he said his parents provided their half in cash, not needing a loan. In a highly confusing manner, the respondent deposed in paragraph 151 of his 25 March 2024 affidavit to his parents not paying half the construction costs on the Suburb H property “because they used their own money to discharge one of my investment loans that was registered in their name which had to be done to enable us to purchase” the Suburb H property. That statement was meaningless. It was for the respondent to prove his case by admissible evidence. It was not for me to guess at what he was attempting to convey. Solicitors drafting trial affidavits in property cases in this court should be more astute to comprehensively and cogently expressing their client’s instructions, information and depositions with an eye keenly attuned to not only adducing admissible evidence but evidence expressed in clear logic. Paragraph 151 of the respondent’s 25 March 2024 affidavit fell very far short of achieving that objective.
In respect of the Suburb H property, no documentation was exhibited. As a consequence, I was left wholly uninformed about –
(a)who paid the deposit and how much it was;
(b)what the balance of the purchase price was;
(c)how much the applicant and respondent borrowed by way of mortgage;
(d)how much the construction costs were;
(e)how much the husband’s parents paid to discharge one of the respondent’s investment loans;
(f)whether any discharge of mortgage was associated with the repayment of the respondent’s investment loan;
(g)what was the overall respondent’s indebtedness to that point; and
(h)whether the applicant paid or contributed in any way to meeting liabilities to one or more mortgagees.
By the end of 2015 the respondent and the applicant or one or other of them were registered proprietors of six parcels of real property, each secured by mortgage.
They purchased a seventh property in 2016, this one at U Street Suburb V. The purchase price was said to have been $562,000. The respondent did not depose to how he and the applicant were able to purchase that particular property, it being the most expensive acquired to date, especially when the applicant and respondent encountered such complications when purchasing the Suburb H property that the respondent’s parents needed to join as co-purchasers. Only after one of the respondent’s investment loans had been discharged by the respondent’s parents could the respondent borrow funds. Precisely how he was able to borrow without the assistance of his parents after committing to purchase in the sum of $562,000 went wholly unexplained.
Be that as it may, the respondent deposed to barely breaking even in respect of the sale of U Street Suburb V.
The respondent deposed to commencing business in 2017.
He said he borrowed $450,000 from his parents in November 2020. He said he undertook those borrowings to avoid bankruptcy.
The respondent deposed to the applicant withdrawing the sum of $53,000 from the business without his permission.
He said in July 2020 he and the applicant agreed that she would borrow $10,000 from the business which loan he said she failed to repay.
The respondent deposed to unauthorised acts by the applicant with respect to finances. Those included –
(a)spending $14,090.23 on business credit card personal expenses;
(b)selling a motor vehicle for $38,000 without the respondent’s consent;
(c)removing $6075.46 from an account intended for the child; and
(d)removing $21,844 from funds earmarked to meet mortgage repayments due in respect of the Suburb K property resulting in the mortgagee requiring the sale of the property.
The respondent deposed to the applicant removing amounts in aggregate totalling $148,000.
He also deposed to the Suburb H property being sold by court order. He said a firm of solicitors holds the proceeds of sale ($225,000) but not the deposit as the original agent holds that. The sum totalling the deposit was not stated.
The respondent deposed to the entire proceeds of the sale of the Suburb K property ($267,000) being held in trust.
The respondent proposed that the entirety of the funds held in trust ($225,000 plus $267,000) be paid to the respondent’s parents in satisfaction of the debt owed to them by W Pty Ltd. The applicant and respondent are shareholders in W Pty Ltd. The debt due to the respondent’s parents stands at $450,000. The amount held in trust is $492,000. A surplus will be divisible even if I were minded to do as the respondent asks.
The circumstances in which the agreement dated early 2020 came into existence may be shortly stated. They were as follows –
(a)W Pty Ltd was incorporated;
(b)the directors of W Pty Ltd were once the applicant and the respondent;
(c)the applicant and respondent are and remain shareholders in W Pty Ltd;
(d)the applicant’s father, after once indicating his willingness to support the applicant and respondent, informed them that he was unable to borrow funds so as to assist; and
(e)the respondent’s parents expressed their willingness to assist.
The respondent deposed to obtaining from his parents what he described as a line of credit that enabled him to meet W Pty Ltd’s business expenses. He said he did not need $450,000 in one tranche so he sought and obtained instalments of funds of $30,000 over 13 instalments over the period October 2020 to April 2021.[8]
[8] The period mentioned was six months so it appears the instalments were not identical in amount not regular over a fixed period.
Precisely when the funding arrangement was first documented escaped mention by the respondent. It must have been after March 2020 because by that date the applicant’s father indicated his inability or unwillingness to help. The loan document exhibited by the respondent is dated early 2020, not in handwriting but rather that date is typed on the opening line of the document.
Before going to the terms of the loan agreement it is important to record several aspects of the document. First, it is expressed to be signed, sealed and delivered as a deed, thereby obviating the need for consideration. Issues about the contemporaneity of the advances and the promise to repay evaporate. Next, the deed was executed by the respondent on behalf of W Pty Ltd. Space on the deed was provided for the applicant to sign the deed but she did not sign it. No argument was addressed to me about whether one signature only sufficed to bind W Pty Ltd. The lenders each executed the deed, however. Next, no issue was addressed to me about the bona fides of the deed, especially whether it was the product of a valid, arm’s length transaction between the respondent and his parents. While true, even in a family context a legally enforceable commercial arrangement can be reached,[9] the resultant agreement falls to be construed in accordance with ordinary contractual principles. Accordingly, no presumption of unenforceability exists by reason merely of the fact that the agreement arises out of domestic or familial circumstances.
[9] Ashton v Pratt (2015) 88 NSWLR 281.
The deed dated 1 March 2020 appeared to have been prepared by legal representatives, although nowhere in the evidence was it said by whose camp, i.e, lenders or borrower. The respondent’s parents were the lenders. W Pty Ltd was the borrower. No guarantee was given by the directors of W Pty Ltd, however. The deed recorded terms adding a veneer of sophistication in drafting such as a governing law clause, a binding effect clause, a severality clause, an entire agreement clause as well as a prohibition on parole amendment. Yet in the other respects the deed contained terms potentially affecting its enforceability such as a provision in clause two which amounted to an agreement to agree on repayment terms and conditions.
Pursuant to clause one of the deed, the lenders undertook to lend to W Pty Ltd an amount of up to $450,000 with interest at 4.5% p.a. calculated monthly in arrears and if unpaid in any month, such interest to capitalise to be added to the loan balance at the end of each month.
Pursuant to clause two of the deed, the lenders and borrowers agreed that “the loan”[10] would be repaid on terms and conditions to be agreed but that the loan would be repaid in full (that is to say, principal plus interest) by early 2024. Clause two also provided that W Pty Ltd was required to use its best endeavours to make regular payments commencing on 1 July 2020 and that in each financial year, a minimum sum of $50,000 had to be paid.
[10] That phrase was not defined but it seems to have meant the unpaid balance and interest from time to time.
Pausing there, the deed was silent on a number of matters. Those included the following –
(a)no stipulation was made requiring the lender to advance a specific amount by a specific date to W Pty Ltd;
(b)no regular monthly repayment date or amount was stipulated; and
(c)no stipulation was made requiring interest to be paid at all and instead the deed simply stated that interest would be capitalised if not paid monthly yet no obligation to pay monthly was recorded in the deed.
Clause two required a minimum amount of $50,000 to be paid each year. The loan amount was required to be repaid by early 2024, four years after the commencement of the deed. Over four years, if the minimum sum only was paid, only $200,000 of up to $450,000 was repayable, that is to say, less than half the sum that may have been advanced.
Clause three provided for the consequences of default. It was premised on W Pty Ltd defaulting in the performance of any obligation under the deed. The only obligation required of W Pty Ltd to be performed by a specific date was payment in each financial year of a minimum amount of $50,000. If that obligation was not performed by W Pty Ltd by 30 June each year, then under clause three of the deed the lenders were entitled (but not required) to serve a notice requiring the default to be remedied within 14 days. If that default was not remedied the lenders were entitled to serve a further notice stating that all amounts due under the deed were immediately due and payable with default interest being payable. If that default went unremedied for 60 days from the commencement of the default period the lenders were entitled to enforce their security including “the appointment of a receiver to the borrower”.
The security mentioned in clause five was a notification on the Personal Properties Security Register under clause six.
The receivership mentioned in clause five seemed to be a receivership pursuant to a security instrument. It was not a receiver appointed by the court in pursuance of the provisions of s 1323 of the Corporations Act. No receivership powers were specified in clause five. The power of appointment of the receiver was highly dubious in my view. The point was not argued.
Returning to the narrative given by the respondent, he deposed in paragraph 177 of his 25 March 2024 affidavit that between October 2020 and April 2021 his parents transferred a total sum of $450,000 to him (not to W Pty Ltd) over 13 instalments of $30,000. The respondent did not exhibit a bank account revealing the deposit of each payment of $30,000. He deposed to making a request for funds and to his parents subsequently transferring that amount. On the respondent’s own evidence, the deed was executed in “early 2021” (although he did not specify a month) and the last amount was advanced in April 2021, meaning that the majority of the amount advanced had in fact been advanced prior to the execution of the deed, possibly pursuant to purely verbal arrangements between the respondent and his parents.
The respondent deposed to the applicant taking $53,000 from the business account in May 2021 without his consent. However, the relevant bank reversed the transfer so no loss was sustained by W Pty Ltd.
He deposed to paying the applicant’s personal expenses of $14,090.23.
He said he has no property at all. He said he has a large debt.
So far as ascertaining the legal and equitable interests in property for the purposes of Stanford v Stanford was concerned, it was necessary to go to the respondent’s balance sheet under paragraph 158 of his 25 March 2024 affidavit to separately identify and address each item.
The funds in trust aggregating $492,000 ($225,000 plus $267,000) are immediately identifiable as property available for division.
The respondent stated in paragraph 171 of his affidavit that the applicant had taken assets to the value of $148,000. That sum was made up of the following –
cash unilaterally removed $50,000
Motor Vehicle 1 $20,000
L Bank account $30,000
proceeds of sale of Motor Vehicle 2 $38,000
bank account $10,000
$148,000
There being no evidence contradicting the amounts or items by which the sum of $148,000 has been ascertained, I accept that amount as representing funds already appropriated by the applicant and which must be taken into account in this property application.
The evidence about contributions was imprecise. No valuation evidence was adduced. Lay persons should not give evidence within the specialist expertise of a valuer. That said, the evidence about money in trust does not involve the expression of an opinion.[11]
[11] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 and Honeysett v R (2014) 253 CLR 122.
Concerning contributions, the respondent made a collection of submissions. Those included his contentions that –
(a)his initial contributions exceeded those of the applicant – namely, he brought to the relationship properties in Suburb N, Suburb P and Suburb R;
(b)the property in Suburb K was funded by drawing down equity against the Suburb N, Suburb P and Suburb R properties;
(c)the property in Suburb T was funded in part by refinancing loans on the respondent’s investment properties;
(d)the property in Suburb H was funded partly with the respondent’s parents and is the home of the respondent’s parents;
(e)the property in Suburb V was funded by borrowings (it seems, although paragraph 152 of the respondent’s affidavit was highly equivocal on point) secured against other properties, that is to say, the borrowings for the Suburb V property were cross collateralised with loans secured over other all properties owned by the respondent; and
(f)contributions made during the relationship by the respondent significantly exceeded those of the applicant.
The respondent asserted in his affidavit (although in reality this was a submission whereas a deponent of an affidavit should confine his or her evidence to factual matters and not submissions) that during the relationship he made greater contributions by reason of the fact that the applicant suffered from serious alcohol abuse issues. He said he was the family’s primary bread winner.
The respondent also submitted that he made greater post separation contributions. He said he had been the child’s sole carer since March 2021.
The applicant’s position in respect of contributions was wholly unknown because she did not participate in the trial with the consequence that I was denied her version of financial matters. The respondent complained that the applicant had failed to make proper disclosure during the interlocutory phases of the case. There was considerable merit in that complaint. In Paviello & Paviello[12] I examined in detail the duty by which parties are bound in giving proper disclosure. I also examined the consequences of defective disclosure in Bacall & Zagar.[13] Those comments are to be treated as being incorporated into these reasons.
[12] [2022] FedCFamC1F 592.
[13] [2020] FamCA 350.
Even though the trial of this proceeding was undefended, the litigation itself was adversarial requiring the person asserting the existence of some fact to prove it. In this case, the applicant was obliged to prove whatever contentions she advanced in relation to contributions. She failed to do so.
That was particularly evident in this case. The applicant, while possessing nothing of value at the commencement of the relationship, nevertheless (for a time at least) worked as a professional contributing an amount to the marital relationship. In 2013, when the applicant and respondent purchased the Suburb K property, the applicant likely became indebted to the mortgagee and liable to it under personal covenants to jointly repay the mortgage debt. Each time funds were jointly borrowed to buy real property the same set of circumstances likely unfolded. Her execution of mortgage documents and her assumption of liability by reason of her indebtedness to the lender was a contribution. In all likelihood, the applicant and respondent would not have been able to purchase the Suburb K property, the Suburb T property, the Suburb H property or the Suburb V property were it not for the fact that the applicant was a co-purchaser and co-mortgagor. That represented a contribution, to my way of thinking.
The evidence revealed that the applicant worked in the business of W Pty Ltd. The evidence of her role, responsibilities, terms and conditions was near zero. However, assessing contributions is not a mathematical exercise and is frequently described as being holistic in nature in respect of which, according to Jabour v Jabour,[14] all myriad of contributions are taken into account, measured, assessed and considered. The evidence disclosed a termination payment to the applicant. However, calculating her salary from that termination document was not possible. The applicant’s role commenced in early 2018, according to the respondent.
[14] Jabour v Jabour (2019) 59 FamLR 475.
The respondent contended that the applicant unilaterally removed funds aggregating $148,000 from the marital relationship. He contended that the pool of divisible assets would have been enhanced by that sum if the applicant had not removed those funds. According to Trevi & Trevi[15] the principles in Stanford v Stanford are not affronted by making an add back of those amounts. In Trevi & Trevi the court held that the essence of a claim for addbacks is that the asserted sums should be added back to the value of existing property interests of the parties and, subsequent to the assessment of contributions, credited to the spending party as part of the value of his or her assessed entitlements.
[15] Trevi & Trevi [2018] FamCAFC 173.
According to the respondent, the pool is valued at $650,133, made up of funds in trust and two superannuation entitlements, namely –
$225,000
$267,000
$158,133 (both superannuation)
$650,133
Liabilities stand at $450,000.
The net position ($650,133 less $450,000) is $200,000 in approximate round terms, so long as the debt to the respondent’s parents is first satisfied in full from divisible assets. The husband argued that his parents should be paid in full before the marital parties receive any distribution. The applicant did not participate so as to register her position one way or the other. I told the respondent’s counsel that even though the course proposed by the respondent was not opposed, this being an undefended application, nevertheless I am forbidden from making orders under s 79 unless persuaded that the orders propounded are just and equitable. The respondent told me from the witness box when giving evidence on 24 May 2024 that –
(a)his parents should be paid in full to reimburse them for the $450,000 advanced by them;
(b)having regard to the sum misappropriated (the respondent’s word) from joint marital property ($148,000) no further distribution should be made to her; and
(c)if that had the effect of there being no division of assets to the applicant or to the respondent, then that was just and equitable.
I agree that the evidence disclosed that the respondent’s contributions were superior to those of the applicant. By reason of there being no affidavit material filed by the applicant it is near impossible to precisely quantify the relative percentage contributions. That said, where a party fails in his her or disclosure obligations thereby preventing a proper assessment of contributions from being made, the court is authorised to adopt a robust approach towards assessment of contributions. In supplementary submission prepared by Mr Rattray of counsel, he argued that the $450,000 due to the respondent’s parents should be ordered to be paid to the respondent’s parents first and then the surplus should be divided as to 70% to the respondent and as to 30% to the applicant.
Before coming to percentages, it is utile to point up that s 75 factors must be addressed. It is relevant that the respondent will have the responsibility and expenses associated with raising the child for the foreseeable future. The applicant has preferred to associate with criminals. The future tasks that fall to the father must be recognised in these orders.
The sum advanced to W Pty Ltd is recoverable, as I find. It can be called upon and it is enforceable. No evidence exists that it has yet been called upon. However, W Pty Ltd is in a one-director company and the respondent seeks an order for the applicant to transfer her shares in W Pty Ltd to the respondent. The applicant and respondent do not envisage cooperative shareholding in and ownership of W Pty Ltd into the future. The respondent’s parents are entitled to be paid for their loan. I see no just and equitable reason for not according them priority in being paid first.
THE ARITHMETIC
Proceeding on the basis that net assets available for division total $650,133, once $450,000 is returned to the respondent’s parents then $200,000 or thereabouts is left. The percentage contributions I assess at 70% in favour of the respondent and 30% in favour of the applicant. Expressed arithmetically, 70% of $200,000 is $140,000 and 30% of $200,000 is $60,000.
Applying the add back principles espoused in Trevi & Trevi, the applicant has already unilaterally appropriated $148,000 to her own use and benefit. Her 30% entitlement was $60,000. In other words, she has taken $88,000 more than she was entitled to. That $88,000 must be adjusted in favour of the respondent. He was to receive 70% of $200,000 ($140,000) and as the applicant was to receive 30% of $200,000 ($60,000) but instead has removed $148,000, she has been enhanced over and above her entitlement by $84,000. She therefore receives nothing from the $200,000. It all is payable to the respondent.
ORDERS
I make orders in accordance with paragraphs 13 to 25 of the orders sought by the respondent in his amended response to the wife’s amended initiating application.
Costs, if sought by either party, must be the subject of a separate application in a proceeding supported by affidavit material and written submissions.
I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 7 June 2024
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