Goodridge v Beadle

[2017] FCCA 3219

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOODRIDGE & BEADLE [2017] FCCA 3219

Catchwords:
FAMILY LAW – Parenting and property – de facto relationship over 13 years – farming operations.

AFFIDAVITS – Deponent refusing to return to the witness box after being briefly cross-examined – witness swearing up to affidavit but, by reason of her refusal to continue with her cross–examination – majority of her affidavit untested – whether appropriate to exclude the whole of the witness’s evidence – extensive review of authorities – evidence excluded.

FRAUD – No need to specifically call the impugned evidence “fraud” – need to provide particulars of the impugned conduct.

CONTRACT – Rule concerning certainty – void for uncertainty.

SECURITY – Sale “in the ordinary course of business” – what constitutes – no evidence of such a sale on the facts of the case – extensive review of authorities.

EVIDENCE – Adverse inference – rule in Jones v Dunkel.

SHAM TRANSACTION – Elements of.

Legislation:

34 and 35 Hen 8, C 4 (1542)

1874 Insolvency Act (38 Vic No 5)

Bankruptcy Act 1924 (Cth)

Evidence Act 1995 (Cth), s.55

Family Law Act 1975, ss.60CC(3), 90SM

Family Law Rules 2004 (Cth), order 16, rule 10
Federal Circuit Court of Australia Act1999 (Cth), s.64
Federal Circuit Court Rules 2001 (Cth), r.1.06

Cases cited:

A v A [1976] VR 298
Abalos v Australian Postal Commission (1990) 171 CLR 167
Alderson v Temple (1768) 98 ER 165
Angelides v James Stedman Henderson’s Sweets Ltd (1927) 40 CLR 43
Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
Ashton v Pratt [2015] NSWCA 12
Australian Securities and Investments Commission (ASIC) v Rich (2009) 75 ACSR 1
Associated Leisure Ltd (Phonographic Equipment Co) Ltd v Associated Newspapers Ltd [1970] 2 QB 450
Axelsen v O’Brien (1949) 80 CLR 219
B v B (1986) FLC 91-758
Balfour v Balfour [1919] 2 KB 571
Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Blatch v Archer [1774] 98 ER 969
Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842
Burns v McFarlane (1940) 64 CLR 108
Clout v Sing [2005] FCA 1058
Coghlan v Cumberland [1898] 1 Ch 704
Cohen v Cohen (1929) 42 CLR 91
Corrigan v Commvault Systems (Australia) Pty Ltd (2011) 192 FCR 71
Curley v Duff (1985) 2 NSW LR 716
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Davy v Garrett (1877) 7 Ch D 473
Dearman, Owners of SS Hontestroom v Owners of SS Sagaporack; SS Hontestroom v SS Durham Castle [1927] AC 37
Devries v Australian National Railways Commission (1993) 177 CLR 472
Downs Distributing Co Pty Ltd v Associated Blue Star Stores Pty Ltd (in liquidation) (1948) 76 CLR 463
Duke Group Ltd (in liquidation) v Pilmer (1998) 27 ACSR 1
Dunne v English (1874) LR 18 Eq 524
Emwest Products v Olifent (1996) 22 ACSR 202
Ermogenous v Greek Orthodox community of SA Inc (2002) 209 CLR 95
Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCAFC 81
Ex parte James (1874) LR 9 Ch 609
Fox v Percy (2003) 214 CLR 118
Galea v Galea (1990) 19 NSWLR 263
Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336
Godecke v Kirwan (1973) 129 CLR 629
Gow v White (1908) 5 CLR 86
GPI Leisure Group Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15
Harkness v Partnership Pacific Ltd (1997) 41 NSWLR 204
Husain v O & S Holdings (Vic) Pty Ltd [2005] VSCA 269
In Re G [1987] 1 WLR 1461
In the marriage of Chang & Su (2002) 29 FamLR 406
In the marriage of Geyl (1978) 7 FamLR 219
In the Marriage of M (1986) 11 Fam LR 765
Jones v Dunkel (1959) 101 CLR 298
Jones v Hyde (1989) 63 ALJR 349
K & R Fabrications (Queensland) Pty Ltd v M & B Rigging Pty Ltd
(1982) Qd R 585
Krakowski v Eurolynx Properties Pty Ltd (1995) 183 CLR 563
Leveque v Leveque (1983) 54 BCLR 164
Lloyds Bank Ltd v Marcan [1973] 1 WLR 1387
M & M (1988) 166 CLR 69
M and M [1998] FamCA 42
Manson v Ponninghaus 1911 VLR 239
Maurice Dry Cleaners Pty Ltd (in liquidation) v National Australia Bank Limited (1990) 8 ACLC 798
Medcalf v Mardell [2003] 1 AC 120
Muntz v Smail (1909) 9 CLR 262
Nuhic v Rail & Road Excavations [1972] 1 NSWLR 204
O’Donnell v Reichard [1975] VR 916
Paterson v Paterson (1953) 89 CLR 212
Payne v Parker [1976] 1 NSWLR 191
Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (in liquidation (2003) 214 CLR 514
Perpetual Trustees Victoria Ltd v Dunlop [2009] VSC 331
Pierce v D’Cruz [2010] FamCAFC 99
Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187
R v Burdett (1820) 106 ER 873
Raftland Pty Ltd as Trustee of Raftland Trust v Commissioner of Taxation (2008) 238 CLR 516
Re Cummins; ex parte Harris v ARC Engineering Pty Ltd (1985) 62 ALR 129
Re Sharrment Pty Limited; Lee Wynyard; Mark Wynyard; Claire Wynyard and Seyta Pty Ltd v the Official Trustee in Bankruptcy
[1988] FCA 179
Reddaway v Banham [1896] AC 199
Retailers Association of Queensland Ltd v Queensland Retail Traders’ Association of Grocers, Drapers and General Stores [1955] St R Qd 369
Robertson v Grigg (1932) 47 CLR 257
Rose & Frank Co v JR Crompton & (omitted)Bros Ltd [1925] AC 445
Rust v Cooper (1777) 98 ER 1277
S Richards & Co Ltd v Lloyd (1933) 49 CLR 49
Sheahan v Joyce [1995] FCA 1272
Sion v New South Wales Trustee and Guardian [2013] NSWCA 337
Snook v London and West Riding Investments Ltd [1967] 2 QB 786
Spedley Securities Ltd (in liquidation) v Tennyson Holdings Ltd (1992) 26 NSW LR 344
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liquidation (1999) 73 ALJR 306
Stewart & Walker v White (1907) 5 CLR 110
Taylor v Australia and New Zealand Banking Group Ltd (1988) 13 ACLR 780
The Council of the Upper Hunter County District v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429
The Parisian (1887) 13 PD 16
Thorby v Goldberg (1964) 112 CLR 497
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Vroon BV v Foster’s Brewing Group Ltd [1994] VR 32
Wallingford v Mutual Society (1880) 5 App Cas 685
Wardman v Hudson (1978) FLC 90-466
Warren v Coombs (1979) 142 CLR 531
Wells v Wells (1977) FLC 90-285
WGOC & GH & Anor [2006] FamCA 539
White Industries (Queensland) Pty Ltd v Flower & Hart (a firm) (1998) 29 ACSR 21

Justice John Bryson, “Affidavits” (1999) 18 Australian Bar Review 166

JP Bryson, QC, “How to draft an affidavit” (1985) 1 Australian Bar Review 250
Justice Arthur R Emmett, Practical litigation in the Federal Court of Australia: Affidavits, (2000) 20 Australian Bar Review 28
John Levingstone, The Law of Affidavits (2013), Federation Press, chapter 18 entitled “Attendance by deponent”
Practical Litigation in the Federal Court of Australia – Affidavits
(2000) 20 Australian Bar Review 28
Wayne Lonegren, The Valuation of Businesses, Shares and Other Equities (2003) 4^th edition
The Honourable Justice Alan Robertson, College of Law Judges’ Series, Affidavit Evidence, paper presented on 26 February 2014

Applicant: MR GOODRIDGE

Respondent: MS BEADLE

File Number: MLC 10573 of 2015

Judgment of: Judge Wilson

Hearing dates:

7, 8, 9, 10, 29 August 2017
6 September 2017
11 September 2017

8 November 2017
12 December 2017

Date of Last Submission: 12 December 2017

Delivered at: Melbourne

Delivered on: 19 December 2017

REPRESENTATION

Counsel for the applicant: Mr D Whitchurch

Solicitors for the applicant: Harwood Andrews

Counsel for the respondent: Mr J Williams

Solicitors for the respondent: Berry Family Law

ORDERS

(1)I direct the parties to bring in minutes of orders that give effect to these reasons within 21 days of today’s date, by email.

(2)Otherwise, the further hearing of this proceeding is adjourned to a date to be fixed.

IT IS NOTED that publication of this judgment under the pseudonym Goodridge & Beadle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10573 of 2015

MR GOODRIDGE

Applicant

And

MS BEADLE

Respondent

REASONS FOR JUDGMENT

Introduction

1.These reasons were prepared prior to the appointment of liquidators to (business omitted) Pty Ltd, prior to the applicant petitioning for his own bankruptcy and prior to the Australian Taxation Office (“ATO”) serving a statutory demand for payment of unpaid amounts to it.

2.Upon urgently listing this proceeding at the request of the parties I was told on 12 December 2017 that the legal status of various interested parties in this case had changed in such a way that these reasons, as presently formulated, may require refinement. The parties joined in a request for me to publish these reasons, unaffected by the fact that (business omitted) Pty Ltd is now in liquidation and the applicant is a bankrupt. The parties said it would assist in their assessment of their overall position for me to publish these reasons in their current form. While I recognise such an approach is a little unorthodox, it is far from unprecedented. To assist the parties, I have acceded to their request.

3.This case concerned X, a very young girl born to the applicant and the respondent. The case also mainly concerned the division of assets in relation to a (omitted) farming enterprise.

4.On parenting issues, the mother sought orders for sole parental responsibility whereas the father sought orders for equal shared parental responsibility. The parents agreed that the child should live with the mother. They were opposed about the time the father should spend with the child. They were also opposed on the venue at which change overs would take place.

Synopsis

5.In these reasons, I have resolved the debate about sole or equal shared parental responsibility as well as the time to be spent between the child and the father as well as changeovers.

6.So far as the division of property was concerned, counsel for the parties prepared a list of issues over which the parties remained in dispute. Other issues were either agreed between the parties or were not pressed as issues requiring determination by me. In these reasons I have made findings and determinations in relation to disputed property issues.

7.Before turning to the detail, let me endeavour to put this dispute in some form of factual context.

An introduction to some basic facts

8.The applicant was born in 1974 and was 43 years of age at the trial of this proceeding. The respondent was born in 1969 and was 47 years of age at the trial of this proceeding. The child was born on (omitted) 2014.

9.The mother and father commenced their domestic relationship in 2002. They commenced living together in 2003. They separated on a permanent basis on (omitted) 2015 prior to the child’s first birthday. The child has lived with the mother ever since her parents’ separation.

10.On the first day of the trial of this proceeding the parties provided an agreed statement of facts. May I express my gratitude to the parties and their legal advisers for the cooperative approach adopted by them in the formulation of that document. Emotionally charged litigation such as this can only ever be meaningfully advanced where the parties cooperate even to the relatively modest extent of preparing an agreed statement of facts. It is as well to set out the matters in respect which the parties agreed, namely –

1.The parties were in a de facto relationship from 2002 or 2003 and separated in September 2015.

2.There is one child of the relationship, X born (omitted) 2014.

3.The (omitted) farming property known as “(omitted) Pty Ltd” at Property A, was purchased in 2003 and the purchase settled in (omitted) 2004. The Applicant is the sole proprietor of the initial parcels of land acquired. During the relationship, additional land holdings were acquired by (business omitted) Pty Ltd as trustee for the Goodridge Agricultural Trust and the dairy operation was expanded. A (business omitted) enterprise was also established in or about 2011. (business omitted) Pty Ltd is the trustee for the Goodridge (omitted) Trust.

4.The Applicant’s parent/s are guarantors for the (omitted) Bank mortgage loan secured against the land.

5.Following separation, the child X has resided with the Respondent. The Applicant’s time spent with X was initially limited, then supervised (although the Applicant denied the necessity for supervision), and from April 2016, with some exception, the Applicant has spent time with X pursuant to interim parenting Orders. The Applicant presently spends 1 night per week with X in a rotating 4-weekly cycle. Changeover for time spent is at (omitted) (in the mornings) and (omitted) (in the afternoons).

6.     X enjoys a good relationship with both of her parents.

7.The parties have obtained a private family report from Ms R dated 2 June 2017. That report contains recommendations in relation to the ongoing parenting arrangements.

8.The parties have obtained a valuation of the farm land, water rights, plant & equipment and livestock by Mr S of (omitted) Valuations dated 15 June 2017.

9.The Applicant transferred (omitted) head of livestock to his parents in (omitted) 2016. The Applicant asserts this was to repay a loan to his parents. This is disputed by the Respondent.

10.The Respondent asserts domestic violence perpetrated by the Applicant. The allegations are denied by the Applicant.

11.    The Applicant has re-partnered and recently married.

12.The Applicant continues to manage (omitted) Pty Ltd and resides permanently at the farm property.

13.The Respondent is engaged in home duties and is in receipt of Centrelink benefits.

14.The Applicant pays child support for X as assessed by DHS.[1]

[1] Agreement statement of facts filed by the parties dated 3 August 2017.

Parenting issues

11.Most of the time in the trial of this proceeding was taken up with property issues. Parenting issues consumed vastly less court time.

12.Each parent gave evidence about –

a)the mother’s contentions that she should have sole parental responsibility;

b)the question of equal shared parental responsibility; and

c)the time the father should have with child.

13.A family consultant, whose identity remains unimportant for present purposes, provided three reports in this case and she gave viva voce evidence. In essence, the family consultant’s evidence amounted to –

a)each parent should have equal shared parental responsibility for the child except in relation to schooling in which case, absent agreement, the mother should have the final say on matters relating to schooling; and

b)the father’s time with the child should gradually increase according to a regime recommended by the family consultant.

14.I have embraced the family consultant’s recommendations on both issues. For reasons developed below, in my view –

a)it is not in the best interests of the child for the mother to have sole parental responsibility, except on the limited issue recorded above;

b)it is in the best interests of the child for each parent to have equal shared parental responsibility;

c)the child is very young, she has lived with her mother all her life, she has spent time with the father successfully to date so the regime for future time between the father and the child should continue to develop but in accordance with the structured regime the family consultant recommended as that is in the child’s best interests.

15.Let me explain my reasoning for those decisions.

16.At the date of the trial of this proceeding, the child lived with her mother in (omitted). The father continues to live on the farm at (omitted). According to the father, it takes up to two and a half hours to drive between (omitted) and (omitted) each way. Mr Williams of counsel for the mother colourfully described that as the “tyranny of distance”. Mr Williams said it was burdensome to the mother to require her to drive that distance on an ongoing basis. Mr Williams said equal shared parental responsibility was unworkable in circumstances where the parents do not cooperate. He also said equal shared parental responsibility was impossible in circumstances where an existing intervention order operated upon the father forbidding him to approach either of the two protected persons mentioned in the order, those being the mother and the child. The mother contended she should have sole parental responsibility.

17.The family consultant grappled with that seemingly complicated set of circumstances. She was asked to assume, as a fact, that the parents do not cooperate on issues that ordinarily underpin the safe and satisfactory workings of an order for equal shared parental responsibility. The family consultant gave evidence that cooperation was most relevant, in the circumstances of this case, in the free flow of information about the child when the child had been in the care of the respective parent. She said that if one parent was unable or unwilling to discuss all aspects of the child’s involvement with the other parent when in his or her care, then the simplest solution was to require each parent to report upon matters relevant to the child’s involvement with that parent in what has colloquially come to be known as a ‘communication book’.

18.

I agree that such a book can be useful and is frequently used in cases in this court. But something more pressing presented itself under the guise of communication difficulties. It appeared to me that the mother and father were abdicating their responsibilities to promote the best interests of their child and that they did so by asserting that communication obstacles stood between them. Those obstacles must be removed at once. The parents are adults. They have a child. They must behave like adults who have a vulnerable dependent as their responsibility. Both must behave responsibly so as to advance the best interests of their child. It is inexcusable and unforgivable for them to make no attempt to communicate with one another and thereafter to say they are unable to communicate, with the consequence that by their implacable and obdurate attitude they imperil the welfare of their child. It is not a good answer for them to exude disdain for one another and for them to thereafter say they are unable to cooperate. They must cooperate. I will not countenance any immaturity on their part nor will I countenance the abdication of their responsibilities as adults and parents by permitting them to slough off their parental responsibilities. They have a child who will need their full attention for the next

15 years, at least. They simply must put her interests ahead of their own. They must communicate in relation to their child.

19.The mother told me at length she took the view that an order for equal shared parental responsibility was inappropriate by reason of the fact that the father had engaged in family violence. She said the existing intervention order made contact with the father well-nigh impossible.

20.The family consultant gave evidence about the reality of equal shared parental responsibility in circumstances where an intervention order operated. More broadly, under the rubric of family violence, the family consultant was asked whether she maintained her view that an order for equal shared parental responsibility was appropriate having regard to historic evidence of family violence in this case.

21.In her 20 March 2016 report, the family consultant took the view that any violence (if at all) between the father and mother did not bear upon the time the father should spend with the child. The family consultant described the mother’s allegations of abuse to be –

opportunistic in the sense that she uses them to lend doubt to [the father’s] parenting capacity and safety of the child when there is no evidence to suggest that [the father] has ever been abusive or a risk to [the child].[2]

[2] Affidavit of Ms R affirmed 14 July 2017, Annexure R-D, at para.60.

22.The family consultant’s report dated 25 July 2016 said nothing on the issue. However, in the family consultant’s report dated 2 June 2017 the family consultant referred to the mother’s continued fear of the father, apparently based on abusive behaviour by the father towards the mother in front of the child. Details of the alleged abuse were not given. The family consultant referred to the mother’s worry for her (the mother’s) safety at changeovers. The family consultant expressed the view that there appeared to be little evidence that the father posed a physical threat to the mother particularly in light of the mother’s own assertion that at changeover, the father does not engage with the mother and walks away before the mother has placed the child in the car. Ultimately, a fair construction of the family consultant’s third report is that the family consultant did not regard any threats of violence between the mother and father as serious because the family consultant recommended an increase in time between the father and the child and an increase in consecutive overnight stays.

23.It seemed to me that if the family consultant was troubled by the alleged violence the mother said existed, the family consultant (experienced and well–versed in her field) was most unlikely to have made those recommendations.

24.In those circumstances, it seemed to me that I should proceed on the basis that the mother’s apprehension of the existence of violence as between her and the father was more apparent than real, seemingly embedded subjectively in the psyche of the mother, there being no actual foundation for the mother’s concerns.

25.In making those observations, I have taken into account a line of authority in the decided cases to the effect that in certain circumstances, emotional violence, if proven, as between the father and mother can impact upon the child for the simple reason that such emotional violence is transferred through the mother to the child. The family consultant alluded to the risks associated with parental hostility in paragraph 38 of the family report dated 2 June 2017 in which she wrote the following –

Hostile environments are frightening for children, arguments are confusing and they become anxious and distressed. Although X is too young to cognitively understand her world, she nonetheless will feel and be aware of the temperature and the toxicity of the parental relationship.

26.In accordance with a long line of authorities collected together by the High Court of Australia in M & M,[3] (“M&M”) a court exercising powers under the Family Law Act 1975 (Cth) (“the Act”) ordinarily considers, assesses and evaluates the possibility or likelihood of the risk of harm to the child. In the case of physical and emotional abuse, I regarded it as fundamental to assess the existence and magnitude of the risk of physical or emotional abuse.

[3] M & M (1988) 166 CLR 69.

27.Various formulations have been offered by the courts over the years to define the magnitude of that risk. Those formulations include whether the degree of risk is –

a)a “risk of serious harm”;[4]

b)“an appreciable risk”;[5]

c)a “real possibility”;[6]

d)a “real risk”;[7] or

e)an “unacceptable risk”.[8]

[4] A v A [1976] VR 298, 300.

[5] In the Marriage of M (1986) 11 Fam LR 765, 771.

[6] B v B (1986) FLC 91-758.

[7] Leveque v Leveque (1983) 54 BCLR 164.

[8] In Re G [1987] 1 WLR 1461, 1469.

28.In M & M the High Court held that a court will not grant a parent time with the child where time with the child would expose the child to an unacceptable risk of abuse.

29.

It is true that since the 1988 High Court decision in M & M the Act has been amended to specifically enumerate the precise considerations that guide a court nowadays in assessing the best interests of the child.

The legislation was also amended to relegate to a secondary position the desirability of the child having a meaningful relationship with both parents where evidence reveals that circumstances of physical or emotional violence exist.

30.In those circumstances, it seemed to me that there was no proper basis to refuse an order for equal shared parental responsibility for X on the asserted basis that issues of family violence dominated the relationship that existed between the mother and the father.

31.In making that finding, I have taken into account the best interests of the child as required by s.60CC(3) of the Act, as is set out below.

Time to be spent between the father and the child

32.The time to be spent as between the child and the father was the subject of vigorously contested evidence in this case.

33.The mother advanced a complicated regime recorded in section M of the mother’s amended case outline dated 4 August 2017. It was as follows –

From the date of the making of these Orders for a period of

12 weeks as follows:

(a)In the first week of the calendar month from 9.00am on Saturday until 5.30pm on Sunday.

(b)In week two of the calendar month, from 9.00am on Saturday until 5.30pm on Sunday.

(c)In week three of the calendar month from 9.00am on Saturday until 5.30pm on Sunday.

(d)In week four of the calendar month, from 9.00am on Monday until 5.30pm on Tuesday.

Thereafter:

(e)Until the child commences school; each alternate weekend from 9.00am on Friday until 5.30pm on Sunday.

(f)Once the child commences school, each alternate weekend from after school on Friday until 5.30pm on Sunday.

(g)During school holiday periods when the child is in Grade Prep as follows:

(i)     In Term 1 holidays, for three consecutive overnights at times to be agreed between the parties.

(ii)     In Term 2 holidays, for four consecutive overnights are times to be agreed between the parties.

(iii)   In Term holidays, for five consecutive overnights at times to be agreed between the parties.

(iv)    During the summer school holiday period in the first fortnight, for six consecutive overnights and in the second fortnight for seven consecutive overnights at times to be agreed between the parties.

(h)From the time the child commences Grade 1, for half of all school holidays on a week about basis at times to be agreed between the parties.

(i)At Christmas in 2018 and each alternate year thereafter, from 3.30pm on Christmas Eve until 3.30pm on Boxing Day.

(j)On Father’s Day from 3.30pm on the day preceding Father’s Day until 5.30pm on Father’s Day.

(k)At such further or other times as may be agreed between the parties.

4.  That once the child commences school, the Father’s time with the child pursuant to paragraphs 3(e) and (f) herein be suspended during school holiday periods.

5.In the event that the child is not ordinarily in the Mother’s care pursuant to these Orders, the Father’s time be suspended and the child live with the Mother as follows:

(a)From 3.30pm on the day preceding Mother’s Day until 5.30pm on Mother’s Day.

(b)At Christmas commencing 2017 and each alternate year thereafter, from 3.30pm on Christmas Eve until 3.30pm on Boxing Day.[9]

[9] Amended outline of case document prepared on behalf of the respondent filed 10 August 2017.

34.The regime proposed by the father was vastly less complicated. It was as follows –

3.  That the child spend time with the father as follows:

3.1    For the next four months, each weekend as follows:

3.1.1 On Saturday for a half day in the afternoon, in (omitted), from midday until 6.00 pm; and

3.1.2 On Sunday for the full day, at the father’s home (or in his care), from 9.00 am until 6.00 pm;

3.2    Thereafter, increasing as follows:

3.2.1 for the next four months, increasing to one overnight period each weekend from 9.00 am on Saturday until midday on Sunday, and

3.2.2 for the next four months, increasing to 9.00 am Saturday until 6.00 pm Sunday; and

3.3At other times, such as Father’s day, Christmas, Easter, birthdays and other occasions by agreement of the parties.[10]

[10] Further amended initiating application filed 28 July 2017 at p.5.

35.Having outlined the risks to the child associated with ongoing friction between the parents, the family consultant then stated she was largely supportive of the father spending time with the child even to the extent of an increase in the time the father spends with the child leading to an enhancement of overnight time. In support of that conclusion the family consultant referred to the child’s comfort and security with the father’s new wife and the fact that the father’s new wife was warm and caring towards the child. The reasoning behind the family consultant’s conclusions was expressed between paragraphs 43 and 48 of her 2 June 2017 report. It is as well to record that verbatim –

43.In the circumstances, there is little to indicate X’s time with her father cannot increase concomitant with her developmental stages. Incremental increases as suggested in previous reports are recommended. In the first instance, her time can increase two full days so that changeover can occur at about 9am on Saturday to 5.30pm on Sunday. Return time should be about an hour before her bedtime. Changeover at 5.30 allows her to be home by about 6pm with bedtime reported to be about 7pm.

44.An increase to two consecutive overnights can occur after about six weeks from the first increase in time to include changeover on Friday afternoon/evening. The changeover time should take into account her mealtime and bedtime. She should be able to arrive at her Father’s home no less than one hour before her bedtime on Friday evening.

45.To enable both parents to enjoy weekend time with X, an alternate weekend with each parent can be established. In the alternate week, time can occur on Monday and Tuesday overnight. In about June next year, an increase to three consecutive overnights can occur each alternate weekend, such as from Friday afternoon to Monday morning. This will establish a parenting plan of five overnights a fortnight with the Father and an alternate weekend regime of three consecutive overnights before X commences school.

46.Although X is not at school, holiday time with her Father can be considered say about three times a year when she can spend an added overnight time say no more than four consecutive overnights with her Father up until she is four. An increase of one consecutive overnight can be established each year for holiday periods and half school holidays of a week at a time can be established once she is in Grade Prep or Grade 1.

47.In summary, X’s time with her Father can continue to increase gradually over time as indicated in previous reports. X’s unsettled behaviour upon return from her Father is typical of children as they transition different households but will be impacted upon and exacerbated by the hostile and acrimonious parental relationship. It is incumbent upon the parents to ensure she [sic] shielded from conflict and is provided with a positive and supportive environment to enable her to develop a relationship with each parent.

48.The conclusion is not to reduce X’s time with her Father but for the parents to address their relationship and hostility. X is a much loved and precious child and her healthy development is a reflection of good and loving care from both parents. It is hoped her nascent signs of anxiety and distress are transient and short lived.[11]

[11] [43] – [48] of annexure R-B to the affidavit of Ms R affirmed 14 July 2017.

36.The family consultant did not modify the essence of her conclusions when cross-examined by counsel for the mother. In those circumstances, it seemed to me that the family consultant provided the most reliable and acceptable evidence on the time that the father should spend with the mother. Having taken into account the best interests of the child, I consider that the family consultant’s evidence on point is to be accepted.

Changeovers

37.The parties were also at odds in relation to the place at which changeovers would take place. The disagreement on this point was to some extent understandable having regard to the fact that the parents lived between one and a half and two and a half hours drive from one another, one way. The very considerable drive between the parents may not matter when the child is not at school. However, the travelling time is likely to become wearing and draining on the child as she enters and passes through her schooling years. In addition, the mother gave evidence of the personal hardship that will be occasioned to her if she were required to drive long distances when effecting changeover. She deposed to the discomfort she suffers following personal injuries sustained by her previously. She also deposed to the fact that the consequences of her acquired brain injury make it difficult for her to undertake tasks that more able–bodied people may find less confronting.

38.On any view, the mechanics of changeover present a logistical obstacle for both parties. As with all aspects of parenting, the situation is to be resolved by the determination of the best interests of the child.

39.Specific provisions of the Act provide guidance on how a court is to determine that issue. The court is required to give separate consideration to each of the many factors prescribed by s.60CC(3) of the Act. While all factors in those subsections are critical and must separately be considered, none, in and of itself, is separately determinative of the outcome of the case. Ultimately, a consideration of each is a matter for judgment, informed by the evidence of the parties and in some instances most compellingly by the evidence of the family consultant.

40.In her affidavit filed 18 July 2017, the mother swore that changeovers were currently being effected at (omitted) in the mornings and at the (omitted) in (omitted) in the afternoons. The mother swore that in recent times, by reason of what she asserted was the father’s intimidatory behaviour, she has retained the services of a security guard to attend changeover with her and she has installed a camera on the dashboard of her car to record the events. The father referred to them as well in paragraph 116 of his affidavit affirmed 10 July 2017. He said changeover was stressful and he proposed a police station as a neutral venue, instead of a (omitted) or store. In her amended case outline, the mother proposed that changeovers that do not take place at school shall take place at McDonald’s, (omitted). The father proposed an agreed venue in (omitted).

41.Self-evidently, changeover under the supervision of a security guard is anything but desirable for the mental fabric and emotional well-being of the child. That must stop. So must the dashboard camera recording of changeovers come to an end. A secure environment for changeover is desirable, preferable at a family friendly venue with security cameras. Typically, a McDonald’s venue meets those criteria.

42.The mother sought an order for changeover at McDonald's (omitted). To my mind, that will orchestrate an unfair hardship upon the father because he will be forced to drive the entirety of the distance from the farm to (omitted) then back again on every changeover. To my mind, there is no warrant for an order in those terms.

43.A venue midpoint is fair. I am attracted to the father’s proposal for a venue in (omitted). Given the inbuilt security at McDonald’s, I order change overs take place at McDonald's (omitted).

Best interests of the child considerations

44.Let me now turn to s.60CC(3) considerations.

45.Under subsection (a) I am required to consider any views expressed by the child. In this case the child is too young to express any views so this subsection is not applicable.

46.Under subsection (b) it is relevant to consider the nature of the relationship of the child with each parent. According to the family consultant both parents enjoy a very favourable relationship with the child. No direct evidence in this case suggested otherwise.

47.For the purposes of subsection (c), it is relevant that I consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about long–term issues relating to the child, to spend time with the child and to communicate with the child. Here, the parents have different parenting styles but it cannot be denied that each has the welfare of the child uppermost in mind. While the mother and father are unable to agree about certain issues, that does not mean that they have failed to participate in making decisions about long–term issues relating to the child. Equally, the child lives with the mother but the father appears to have been diligent and conscientious about his time with the child. The family consultant attested to there being a very favourable bond between the child and each parent.

48.The extent to which each parent has or has not fulfilled the parent’s obligation to maintain the child is a matter relevant to subsection (ca). As was the uncontroverted evidence, the father has paid child support in relation of the child of a ridiculously small amount. The evidence did not suggest that he volunteered to pay an increased amount or ever explored with the mother·whether he had the financial capacity to pay any increased amount beyond the amount assessed by the relevant assessment authority. In his evidence the father was at pains to point out that the amount he paid had been assessed based on amounts disclosed as his taxable income. I found that evidence very difficult to accept. The amount in issue on the property aspect of this case is very considerable. The amount paid to Ms M when she was not married to the applicant and instead was employed as a farm employee exponentially eclipsed the amount paid by way of child support. To my mind, that reflected the father’s desire to pay Ms M a particular amount as well as his desire to pay a different and exquisitely smaller amount by way of child support, both instances reflecting the father’s choice.

49.There was no reason why the father was unable to pay greater sums by way of maintenance for his child. It struck me that he preferred to pay other amounts ahead of or in priority to any sum properly characterised as maintenance for his child. That was not an act consistent with good, concerned or financially responsible parenting, irrespective of the financial vagaries and changing fortunes through which the farm operation passed since the birth of the child. I found it unacceptable that the father spent any amount on new rolling stock for example ahead of paying maintenance amounts in respect of his child. Buying and selling (livestock omitted) for the purposes of the farming operations was relevant as a matter of commercial expedience but under no circumstances should those commercial interests have prevailed ahead of the father’s financial responsibility for the maintenance of his own child. On that issue, I was most unimpressed with the father’s evidence and his behaviour over the short life of his child. His attitude to his obligations to maintain the child must change forthwith. Any failure to do so illustrates that he is incapable of preferring the best interests of his child over his commercial enterprise. I will not tolerate that.

50.Under subsection (d) I am required to consider the likely effect of any change in the child’s circumstances including separation from either of the child’s parents or any other person with whom she has been living. That is not relevant in the circumstances of this case as the child will continue to live with the mother, the only issue being the increased time sought by the father.

51.For the purposes of this subsection (e) the practical difficulty and expense of the child spending time with a parent is relevant. Expense is and never has been an issue in this case. However, the practical difficulty associated with the mother’s request for changeover to be in (omitted) has been an issue. Further, the practical difficulty associated with the child’s transportation to and from the farm from (omitted) has also been an issue. I have endeavoured to address those in the passages above.

52.Under subsection (f) it is relevant for me to consider the capacity of each parent to provide for the needs of the child including her emotional and intellectual needs. According to the family consultant, neither parent presented as being unable to provide for the emotional and intellectual needs of the child.

53.Under subsection (g) the maturity, sex, lifestyle and background of the child or either parent is relevant. Nothing in the evidence indicated anything problematic arising from those matters. To the contrary. The family consultant encouraged equal shared parental responsibility, subject to the mother having sole parental responsibility in relation to matters of education, and the family consultant encouraged each parent to spend time with the child.

54.Subsection (h), relating to Aboriginal or Torres Strait Islander children, was not relevant.

55.Subsection (i) invited a consideration of the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents. Subject to the comments above about the father’s approach towards maintenance, each parent has demonstrated a commendable attitude to her and his responsibilities as a parent.

56.Matters of family violence relevant under subsections (j) and (k) have already been addressed.

57.Under subsection (l) I am required to consider whether it would be preferable to make an order that would be least likely to lead to the institution of further litigation in relation of the child. Naturally, in the family law jurisdiction there is no guarantee that the making of orders – whether by consent or otherwise – will have the effect of quelling the controversy between the parents. The orders I have in mind to make based on the reasons expressed in this case seemed to me to be least likely to lead to further litigation in relation to parenting.

58.It is next necessary to turn to issues relevant to the division of assets.

Property matters

59.The parties were not married and so the provisions set out in s.90SM of the Act applied.

60.Before addressing applicable legal principles, it is important to identify the issues which were not agreed between the parties and which therefore required determination. Let me catalogue them below –

Assets	Applicant’s value	Respondent’s value	Agreed/In Dispute
Livestock (Agribusiness Valuation)	$587,595	$1,061,920	In dispute
Livestock unaccounted for (Agribusiness Valuation – (omitted) @ $1,275)	$NIL	$62,475	In dispute
Additional (livestock omitted) feeder (Agribusiness Valuation)	$NIL	$3,750	In dispute
Insurance payout after fire	$NIL	$180,243	In dispute
Payout from (omitted) forced sale of shares	$NIL	$40,045	In dispute
Applicant's Ms U and (livestock omitted)	$NIL	$3,000	In dispute
Respondent’s post separation horse	$NIL	$1,500	In dispute

Liabilities
ATO (omitted) Trust (Applicant says as at separation)	($337,274)	($133, 786)	In dispute
ATO Goodridge (omitted) business (Applicant says as at separation)	($61,511)	($59,224)	In dispute
(omitted) Pty Ltd	($6,000)	$NIL	In dispute
(omitted) Bank Visa credit card	($16,768)	$NIL	In dispute[12]

[12]

The property aspects of this case

61.Overwhelmingly, the time spent in this case on property matters eclipsed the time spent on parenting issues. Whether that reflected the parties’ true focus was not explored.

62.Be that as it may, the parties very helpfully agreed on a collection of facts and documents prior to the commencement of the trial of this proceeding.

63.The agreed statement of facts has been recorded above at paragraph 10.

64.

Mr Whitchurch of counsel for the applicant filed a document entitled “List of discrete factual issues prepared by the applicant”. It was a blend of legal submissions as well as a notice of contention that certain issues were disputed. To some extent, it served to highlight areas in which the parties were at odds. It is useful to set it out in full

hereunder –

1.In regard to the argument concerning X’s parenting arrangements the parents do not agree that they share parental responsibility. The Applicant submits it should be shared. Also, they do not agree to respective spend time proposals. The Applicant agrees with Family Report writer Ms R.

2.There are a number of disputed assets and liabilities. The main issue is the livestock. The Applicant transferred ownership of (livestock omitted) to his parents during 2016. Paragraphs 197–289 at PP27–37 of the Applicant’s Affidavit filed 10/7/2017 is his evidence regarding this issue. His parents attest to this matter as well. See Ms R filed 7/7/2017 at paragraphs 45–95 at PP7–12. Further to this evidence see Mr R filed 7/7/2017 at paragraphs 15–38 at PP 3–6. The agreement is legally binding. The Respondent seeks to have the Court set is aside. She has no evidence to support her argument.

3.Further to the livestock issue the Respondent alleges

49 livestock are unaccounted for. See the List of Assets and Liabilities. This is denied by the Applicant.

4.The Respondent alleges the List should include the insurance payout of $180,342. The Applicant refers to paragraphs 385–391 at PP48–49 of his July Affidavit. The money has been spent.

5.The Applicant submits the value of the sold (omitted) shares should not be included. Paragraphs 290–299 at PP37–38 are his evidence regarding this issue. The Respondent contends for inclusion but has no evidence to support her contention.

6.The ATO debts are not agreed. The Applicant contends the Court should adopt the date of trial as the relevant date, whereas the Respondent says date of separation.

7.The claim made on the remainder of the Estate of Mr J by the Respondent cannot be made out as it has no basis at law. The asset has not vested to the Applicant, nor will it for many years. It is a future inheritance that may vest in whole or in part subject to a number of current and future contingencies.

8.Reference is made to the Respondent having the benefit of $92,700 of her own funds since separation. These should be included in the pool. The Respondent ignores this issue.

9.The Respondent argues for departure from the CSA Assessment. The Applicant disagrees. There is an assessment that is based on proper considerations. The child support income amount cannot in any way amount to $100,000. There are no facts to support her argument.

10.The Applicant denies the Respondent’s contention that she contributed financially to the purchase and ongoing expenses of the farm business and the (omitted) business.

11.The Applicant denies the Respondent worked on the farm. She lived there but did no farm work of any consequence.

12.The applicant contends that an order for the sale of the farm will result in a negative net asset result. Ms R and Mr R will be exposed to significant financial loss as a result. (omitted) Bank is holding $1,500,000 of their money as security. A perusal of the Land Valuation figure and the (omitted) Bank debt indicates this fact. Also it will destroy any income earning potential that the business otherwise now has.[13]

[13] List of discrete factual issues prepared by the applicant and dated 4 August 2017.

65.So far as an agreed bundle of documents was concerned, the parties jointly relied on a folder containing 46 agreed documents that became marked as an agreed exhibit. An equally comprehensive valuation of two parcels of land in Property A prepared in June 2017 by Mr S went into evidence as an agreed exhibit. In that document, Mr S expressed as his opinion that the total asset pool for consideration in this case was $5,324,300.00. For reasons that have been developed below, the assets and liabilities that fell for determination in this case were not as Mr S asserted.

66.The parties, also very helpfully, prepared an agreed table of assets and liabilities. The parties agreed that the items in the table exhaustively set out the totality of the assets and liabilities that fell for division under the Act.

67.While lengthy, it is purposeful to set out the table verbatim –

Assets	Applicant’s Value	Respondent’s value	Agreed/In dispute
(omitted) Pty Ltd freehold land and water right (Agribusiness Valuation)	$3,414,000	$3,414,000	Agreed
Portable Plant & Equipment (Agribusiness Valuation)	$848,400	$848,000	Agreed
Livestock (Agribusiness Valuation)	$587,595	$1,061,920	In Dispute
Livestock unaccounted for (Agribusiness valuation – 49 @ $1,275)	$NIL	$62,475	In Dispute
Additional (omitted) cattle feeder (Agribusiness valuation)	$NIL	$3,750	In Dispute
Insurance payout after fire	$NIL	$180,243	In Dispute
(omitted) shares (100,070 shares - $0.68 per share 11/7/17)	$68,047	$68,048	Agreed
Payout from (omitted) forced sale of shares	$NIL	$40,045	In Dispute
(omitted) Bank savings	$5,509	$5,509	Agreed
(omitted) Bank Farm Management account (31/5/17)	$99	$Negligible	Agreed
(omitted) Bank Goodridge (omitted) business (31/5/17)	$10	$Negligible	Agreed
Ms U and (omitted) horses	$NIL	$3,000	In Dispute
Ms Beadle’s post separation horse	$NIL	$1,500	In Dispute
(omitted) Bank account (30/6/17)	$2,208	$2,208	Agreed
(omitted) Bank account	$398	$Negligible	Agreed
(omitted) Bank Account (X)	$74	$Negligible	Agreed
Share portfolio (6/7/17)	$22,597	$22,597	Agreed
Total Assets	$4,948,398	$5,713,695	In Dispute

Liabilities
(omitted) Bank account (23/6/17)	($3,933,332)	($3,929,375)	Mostly agreed
(omitted) Bank account for (omitted) Truck (3/7/17)	($189,599)	($189,599)	Agreed
(omitted) Bank account for (omitted) farm equipment (3/7/17)	($67,239)	($67,239)	Agreed
(omitted) Bank Equipment Finance re (vehicle omitted) (3/7/17)	($19,936)	($19,936)	Agreed
(omitted) debt for John Deere	($19,258)	($19,258)	Agreed
(omitted) trading account	($13,787)	($13,787)	Agreed
(omitted)– Fodder loan	($75,966)	($75,966)	Agreed
ATO (omitted) Trust (Applicant says as at separation)	($337,274)	($133,786)	In Dispute
ATO Goodridge (omitted) business (Applicant says as at separation)	($61,511)	($59,224)	In Dispute
(omitted) Pty Ltd	($6,000)	$NIL	In Dispute
(omitted) Bank Visa credit card	($16,768)	$NIL	In Dispute
Total Liabilities	($4,470,670)	($4,508,170)	In Dispute
Superannuation
(omitted) business Agricultural Self-Managed Superannuation Fund (30/6/15)	$13,588	$13,588	Agreed

Total net asset pool excluding inheritance and fund to which each party has had the benefit	$221,855	$1,219,113	In Dispute
Financial Resources
1/3rd Remainder man Interest in the Estate of Mr J (Property B – sold for $1.3 million June 2017; settled 10 July 2017)	$NIL	$433,333	In Dispute
The Applicant asserts that the Respondent has had the benefit of funds totalling $92,700 from bank accounts following separation and should be characterised as premature distribution.	In Dispute
The Respondent asserts that the Applicant has had full and unfettered access to and the benefit of all funds in all bank accounts with respect to himself, (business omitted) Pty Ltd, the (omitted) Agricultural Trust, Goodridge (omitted) business and the Goodridge (omitted) Trust.[14]	In Dispute

[14] Agreed table of assets and liabilities filed 3 August 2017.

68.

A cursory reading of the table of assets and liabilities revealed that

17 assets were recorded, 10 of which were agreed as to value and seven were disputed as to value. So far as liabilities were concerned, 11 were set out of which seven were agreed and four were disputed.

69.Superannuation was agreed.

70.An inheritance was disputed.

71.Contributions were disputed.

72.In short, a very considerable dispute surrounded the factual substratum of this litigation. In view of the very many issues that were disputed, these reasons for judgment have necessarily been lengthy. I have done the best I could to produce these reasons in a timely manner so as to meet the legitimate expectations of the parties and their legal advisors.

An elaboration upon some rudimentary facts

73.The applicant settled his purchase of the (omitted) farming property known as “(omitted) Pty Ltd” on Property A, in 2004. A second landholding was of relevance in this case known as “(omitted)”. The relevant title details were as follows –

a)certificate of title volume (omitted) folio (omitted);

b)certificate of title volume (omitted) folio (omitted);

c)certificate of title volume (omitted) folio (omitted)

d)certificate of title volume (omitted) folio (omitted);

e)certificate of title volume (omitted) folio (omitted);

f)certificate of title volume (omitted) folio (omitted)

g)certificate of title volume (omitted) folio (omitted);

h)certificate of title volume (omitted) folio (omitted);

i)certificate of title volume (omitted) folio (omitted);

j)certificate of title volume (omitted) folio (omitted); and

k)certificate of title volume (omitted) folio (omitted).[15]

[15] Exhibit A – Valuation report produced by Mr S at Annexure – Certificates of title.

74.The land known as “(omitted)” was the land described in certificate of title volume (omitted) Folio (omitted). All other land making up the farm was described in the titles referred to in subparagraphs (a) to (k) above. According to Mr S, the total number of hectares of all parcels of land was 364.4 or 900.7 acres.

75.In his personal capacity the applicant was the registered proprietor of five of the 11 parcels of land mentioned above. They were –

a)certificate of title volume (omitted) folio (omitted);

b)certificate of title volume (omitted) folio (omitted);

c)certificate of title volume (omitted) folio (omitted);

d)certificate of title volume (omitted) folio (omitted); and

e)certificate of title volume (omitted) folio (omitted).[16]

[16] Exhibit A - Valuation report produced by Mr S at Annexure at p.17.

76.(business omitted) Pty Ltd was the registered proprietor of six of the 11 parcels of land mentioned above. They were –

a)certificate of title volume (omitted) folio (omitted);

b)certificate of title volume (omitted) folio (omitted);

c)certificate of title volume (omitted) folio (omitted)

d)certificate of title volume (omitted) folio (omitted);

e)certificate of title volume (omitted) folio (omitted); and

f)certificate of title volume (omitted) folio (omitted).[17]

[17] Ibid.

77.All 11 parcels of land were mortgaged in favour of (omitted) Bank Australia Ltd (“(omitted)”).

78.Various structural improvements had been made to the land on which the (omitted) farming activity was undertaken. Among the improvements were –

a)a (omitted) constructed in 2012;

b)a (omitted) brick veneer dwelling plus add-ons renovated in late 2016;

c)a double garage;

d)a machine shed;

e)a hayshed constructed in the early 1980s;

f)an (omitted) hay shed; and

g)working yards.

79.The applicant was at all relevant times the sole director and shareholder of (business omitted) Pty Ltd. That company was at all relevant times the trustee of a trust styled the “Goodridge Agricultural Trust” (“(omitted)”). Curiously, the actual trust instrument was not put into evidence yet a deed of retirement and appointment was put into evidence as was a deed of variation. Both of those deeds recited that (omitted) was constituted by a deed of settlement made on 20 August 2003 between Mr N as settlor and (business omitted) Pty Ltd as trustee. It might fairly be inferred that (omitted) was a trading trust as (omitted) filed a trust tax return for the financial year ended 30 June 2016 as well as business activity statements.

80.The applicant exhibited to his affidavit affirmed 10 July 2017 an annual return for the 2015 financial year in relation to (omitted) business Agricultural Superannuation Fund, being a self-managed superannuation fund the sole member of which was identified as the applicant.

81.The applicant owned and operated a business known as “Goodridge (omitted) business” (“(omitted)”). Among the financial documentation in this case was a document entitled “detailed statement of financial position as at 30 June 2016” that recorded as an unsecured liability an amount allegedly owing by (omitted) to (omitted). There was little doubt in this case that the applicant had been provided with comprehensive tax planning and wealth creation advice and that the separation of financial interests was not easily drawn between the applicant personally from his financial interests as proprietor of (omitted) or from his financial interests as sole owner and controller in (business omitted) Pty Ltd, the trustee of (omitted).

82.The accountant whose name appeared on a number of financial documents of importance in this case, Mr N (the settlor of (omitted)) did not give evidence in this case. Had he done so, certain complexities associated with (business omitted) Pty Ltd and with (omitted) may have been explained.

83.At all events, there was no dispute in this case that the applicant ran a (omitted) operation from (omitted) Pty Ltd. The evidence did not descend to such detail as to reveal whether dairy activity was run on (omitted) as well. However, the evidence did reveal that revenue derived from (omitted) farming was mercurial, fluctuating from time to time, that it was weather-dependent as well as being dependent upon good management. So far as the last point was concerned, it seemed that for a period the applicant installed a manager to run the (omitted) operations at (omitted) Pty Ltd and that the manager who had been installed caused the applicant considerable financial loss. Details of that have been addressed below.

84.In order to fund the farming operations undertaken at (omitted) Pty Ltd, the applicant borrowed extensively from several financiers, chief among which was (omitted). It held a security interest as mortgagee over all 11 certificates of title. It also held an interest as mortgagee pursuant to a stock mortgage granted in favour of (omitted) by (business omitted) Pty Ltd. Item 4 of the schedule to the stock mortgage recorded as follows –

This stock mortgage is given by the Mortgagor in consideration of the Mortgagee advancing $3,327,000.00 to the Borrower under the Letter of Offer and is intended to secure further advances.[18]

[18] Exhibit 2 – Stock mortgage from (omitted) Pty Ltd in favour of (omitted) Bank Ltd.

85.The letter of offer referred to in item 4 of the schedule to the stock mortgage was an offer of financial accommodation from (omitted) in favour of (business omitted) Pty Ltd in the form of a letter dated 22 December 2010. The stock mortgage was dated 17 February 2011. Pursuant to it the legal and beneficial interest in the stock described in the schedule was assigned to (omitted). Item 1 of the schedule described “stock” to include (livestock omitted). Item 2 of the schedule to the stock mortgage provided that the stock described in schedule 1 was held at ‘(omitted)’, Victoria (104.48 ha).

345.During the relationship the evidence was scant about each party’s financial contributions. However, Ms Beadle provided non-financial contributions of a substantial amount. I am satisfied on the evidence that the respondent worked on the farm, raised and cared for her daughter and provided non-financial support to enable the dairy operations of (omitted) Pty Ltd, of (omitted), and of (omitted) to be undertaken.

346.The applicant married Ms M on (omitted) 2017. There are no children of that relationship.

347.The mother has not commenced any relationship since separating from the applicant.

348.The mother remains the primary carer of X. The mother and X live with the respondent’s mother in (omitted).

349.The father pays an absurdly small amount of child support, in the order of $3.00 per day.

350.The respondent suffered injuries in a motor vehicle accident in 2011 during which she acquired a brain injury and has suffered difficulties with her mobility arising from back problems and hip disorders. She presently receives a disability pension and has a limited earning capacity, facts not challenged by the applicant.

351.It seemed to me that the respondent’s capacity to earn an income in the future is considerably impaired by reason of her acquired brain injury, her physical limitations following the car accident and her need to provide care for X, at least in the short term. Conversely, the applicant is and remains an able-bodied man capable of many future years of farming or (occupation omitted) from which he will derive an income.

352.It has weighed heavily upon me that the applicant made almost no effort to supplement the incredibly modest amount of child support he has contributed to the welfare of his daughter. Over the life of his daughter, the applicant has paid substantial sums to either acquire assets or to deposit funds into various accounts. He has not been diligent in the discharge of his financial obligations towards his daughter.

353.

In percentage terms, in my judgment the respondent made

non-financial contributions and certain financial contributions to the 13-year relationship she had with the applicant of 40%, compared to the applicant’s contributions of 60%.

354.I have reached that conclusion faced with very considerable difficulty largely by reason of the inadequate proofs of the applicant. So far as evidence of the flow of funds was concerned, there was very little in the way of detail that the applicant produced. He could have done much better with proofs, especially had he adduced evidence from (omitted), his financial consultants and others. In my view the reason for the paucity of financial evidence in this case falls squarely at the feet of the applicant.

355.For the reasons set out above, in my view it is just and equitable for the assets to be divided in the manner described above, once the totality of the assets capable of division is brought to account in accordance with my reasons above. Thereafter, to the extent that there is a nett position capable of division, that is to be divided as to 60% in favour of the applicant and 40% in favour of the respondent.

356.I direct the parties to bring in minutes of orders that give effect to these reasons within 21 days of today, by email.

I certify that the preceding three hundred and fifty six (356) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date:  19 December 2017

Amended outline of case document prepared on behalf of the respondent filed 4 August 2017 at
pp.8-9.