Guan & Shen
[2024] FedCFamC2F 117
•1 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Guan & Shen [2024] FedCFamC2F 117
File number(s): PAC 399 of 2023 Judgment of: JUDGE STREET Date of judgment: 1 March 2024 Catchwords: FAMILY LAW - PARENTING AND PROPERTY – undefended hearing –– de facto relationship 16 years- two children – mother has sole care since separation in 2021 -no binding financial agreement – purported financial agreement set aside – alternation of property interests Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act2021 (Cth)
Cases cited: A & Z (2006) FamCA 179
A v A (1998) FLC 92
Abrum & Abrum [2013] FamCA 897
Axelsen v O’Brien (1949) 80 CLR 219
Barre & Barre [2021] FamCA 101
Chaffin& Chaffin [2019] FamCA 260
Chen & Chen [2018] FamCA 828
Clowes & Konig [2022] FedCFamC1F 565
Cotton & Cotton (1983) FLC 91
Deiter & Deiter [2011] FamCAFC 82
Dickons & Dickons [2012] FamCAFC 154
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
Dovgan & Dovgan [2021] FamCA 306
Estate of Gardner [2019] NSWSC 1324
Fairbairn v Radecki [2022] HCA18
Fitzmaurice & Woolridge [2020] FamCAFC 64
Fitzwater & Fitzwater (2019) 60 Fam LR 212
Fewster & Drake [2016] FamCA 214
G & C [2006] FamCA 994
Hickey and Hickey and Attorney-General (Cth) (Intervener) [2003] FamCA 395
Hoult & Hoult (2013) FamCAFC 109
Isles & Nelissen (2022) FLC 94
Jabour & Jabour [2019] FamCAFC 78
Johnson & Page (2007) FLC 93
Jurchenko & Foster (2014) FLC 93
Kostres & Kostres [2009] FamCAFC 222
Lancy and Lancey (1994) FamCA 94
Lincoln & Miller [2016] FamCA 547
Loddington & Derringford (No 2) [2008] FamCA 925
Logan & Logan [2013] FamCAFC 151
M v M (1988) 166 CLR 69
Martin & Newton [2011] FamCAFC 233
McCall & Clark (2009) FLC 93
Michaels & Vidal [2022] FedCFamC1F 252
N v S (1996) FLC 92
Napier & Hepburn (2006) FLC 93
Nikolakis & Nikolakis [2010] FamCAFC 52
Norman & Norman [2010] FamCAFC 66
Nyles & Nyles [2011] FamCA 565
Piras v Egan [2008] NSWCA 59
Potter and Potter (2007) FLC 93
Stott & Holgar [2017] FamCAFC 152
Talley & Patterson [2022] FedCFamC2F 1203
Teuh &Muir [2017] FamCA 138
Thorne v Kennedy [2017] HCA 49
Division: Division 2 Family Law Number of paragraphs: 130 Date of hearing: 24 January 2024 Place: Parramatta Counsel for the Applicant: Mr E Yin Solicitor for the Applicant: Sophie Zhang Lawyers Respondent: No Appearance ORDERS
PAC 399 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GUAN
Applicant
AND: MR SHEN
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
23 JANUARY 2024
THE COURT ORDERS THAT:
1.The matter proceed as an undefended hearing.
Parenting
2.That the applicant mother shall have sole parental responsibility for X, born in 2012 and Y, born in 2013 (“the children”).
3.That in exercising her parental responsibility pursuant to Order 1, the applicant mother shall:
(a)Inform the respondent father of the major long-term decision to be made at least 30 days before the decision is required, to allow the respondent father sufficient time to investigate and provide his input into the decision to be made;
(b)The respondent father to provide the applicant other with any view or input he wishes to express in respect of the decision within 21 days of receiving notice from her;
(c)The applicant mother to take into account the respondent father’s views expressed and, if necessary, seek any further clarification from him; and
(d)Inform the respondent father of the decision made.
4.That the children shall live with the applicant mother.
5.That the children shall spend time with the respondent father as follows:
(a)During school terms, each alternate Sunday from 10:00am until 5:00pm;
(b)On the respondent father’s birthday from 12 noon to 5:00pm, if a non-school day; and from 3:00pm to 6:00pm if a school day.
(c)At other times as agreed in writing between the parties.
6.The respondent father’s time with the children is suspended on the applicant mother’s birthday from 9:00am to 12 noon to 5:00pm if a non-school day, and from 3:00pm to 6:00pm if a school day, whereby the children shall spend time with the applicant mother.
7.That for the purpose of changeover, unless otherwise agreed, the respondent father shall collect and return the children from and to the applicant mother’s place where the respondent father is to keep the distance of at least 100 meters from the applicant mother’s residence and being responsible to monitor the children’s safety.
8.That the applicant mother and respondent father shall communicate with each other via SMS or through legal representatives in emergencies regarding the children.
9.That in the case of emergency, the party with the care of the children shall telephone the other parent as soon as possible and advise them of the nature of the emergency, the location of the children, and any treatment provided or proposed to be provided to the children.
10.That each party shall keep the other informed of any illness or injury suffered by the children and any medication prescribed for the children, with medication for the children, with medication for the children to travel with the children.
11.That these orders act as an authority for the applicant mother to communicate with any health or education professional and any school attended by the children and the applicant mother is to provide the respondent father with information or updates related to the children.
12.That the applicant mother and respondent father are both restrained from criticising or denigrating the other party or the other party’s partner or family members in the presence or within hearing of the children.
13.That the applicant mother holds the children’s passports and birth certificates.
14.That the applicant mother is granted the sole right to make major decisions for the children, including signing of documents for the children with the absence of the father’s signature, including the documents for applying for the renewing of passports and documents regarding the children’s education until the children get to the age of 18.
15.That the respondent father pay the applicant mother’s costs incidental to these proceedings.
Property
16.The Court declares that the undated purported financial agreement of 2017 is not binding upon the parties by reasons of failure to comply with s90UJ(1)(b) in relation the applicant.
17.Pursuant to s 90UM(1)(g), 90UM(1)(h), that the undated purported financial agreement of 2017 is set aside.
18.Pursuant to s90RD of the Family Law Act 1975 (Cth), the Court declares that there was a de facto relationship between the applicant that commenced in 2005 and continued until April 2021.
19.Pursuant to s90SL & s90SM of the Family Law Act 1975 (Cth) and insofar as applicable s90UM(6), the Court declares that it is just and equitable to alter the property interests of the parties to the de facto relationship.
20.Pursuant to s90SL & s90SM of the Family Law Act 1975 (Cth) and insofar as applicable s90UM(6), the property located at B Street, Suburb C be sold by public auction within six weeks of the date of these orders, and that the respondent is to execute all necessary documents to appoint a real estate agent for that the sale and to meet the marketing costs of the same, and a reserve price be agreed by the parties, and failing such agreement, be determined by the proper officer of the real estate institute or his nominee, and that the proceeds of the sale are disbursed as follows:
(a)Payment of agent’s commissions and advertising expenses and the legal expenses of sale;
(b)Payment of any money due or owing to the mortgagee
(c)The net balance to be divided as follows:
(i)20% to the respondent;
(ii)80% to the applicant
21.Until the sale of the said Suburb C property, the respondent is to continue to pay as and when they fall due, all regular instalments in respect of the mortgage, council rates and water rates in respect of said property.
22.If the property fails to be sold at public auction, the property is to be sold by private treaty and a price to be determined in the same manner as the reserve price, if the parties are unable to agree, and the proceeds are to be applied in the same manner as identified above as if the property was sold by public auction.
23.That as between the applicant and respondent, and subject to the above orders, the applicant and respondent shall each respectively retain all interest in and entitlement to:
(a)All personal property now in his or her respective possession or control.
(b)All shares, debentures, until trusts, bank, building society to credit union accounts standing in his or her sole name respectively.
(c)All interests in life insurance policies and superannuation funds standing in his or her sole name respectively.
(d)That except as otherwise provided by these orders, each party remains solely responsible for all debts, including credit card debts, in the parties respective names.
24.That each party is solely liable for and indemnifies the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
25.That the parties shall do all acts and things necessary and give all consents an execute all documents and writings to give effect to these orders in the time periods prescribed.
26.That in the event that either party refuses or neglects to execute any deed, document or instalment necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to s106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation of the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
27.The respondent is to the pay the applicant’s cost of these parenting and property proceedings, as agreed or as assessed under s 117 of the Family Law Act 1975 (Cth).
28.The Court reserves its written reasons.
THE COURT NOTES THAT:
A.It is satisfied that service, in accordance with the orders, has been made upon the respondent and that the respondent has been provided with procedural fairness in respect of today’s undefended hearing.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).
RESERVED REASONS FOR JUDGMENT
JUDGE STREET
INTRODUCTION
These proceedings were commenced on 30 January 2023 by the applicant (“the mother”) against the respondent (“the father”) as both property and parenting proceedings and were fixed for hearing on 23 January 2024 by orders made by the Chief Justice on 15 November 2023. There are two children of the de facto relationship being X, born in 2012 and Y, born in 2013 (“the children”). The de facto relationship commenced in 2006 until April 2021. There was an undated purported financial agreement of 2017 between the parties in respect of which orders were sought by the mother declaring the same to be invalid or to have it set aside and for an alteration of property interests of the parties.
Those orders made on 15 November 2023 included a notation that the father had failed to appear in the proceedings and has not filed material to date. The further notation was made that the matter may proceed as an undefended hearing in the event of further non-compliance by the father with the orders of the Court. Further, order 4 expressly identified that the matter may proceed as an undefended hearing if the father does not appear without reasonable excuse.
Order 1 of those orders made on 15 November 2023 listed the matter for a final hearing at which the father was required to attend and no excuse has been proffered for the failure of the father to attend on 23 January 2024. The Court is satisfied that the father was served with the process commencing these proceedings and with the amended application brought by the applicant and was on notice of the substance of the orders being sought and that the father has been afforded procedural fairness in respect of this hearing.
In that regard, the Court has also taken into account that orders were made by a Judicial Registrar on 25 September 2023 that required the father to take steps in relation to the filing of a response within seven days giving disclosure in accordance with rule 6.02 and providing a certificate of readiness in the approved form, none of which occurred nor was there any compliance with order 3 made by the judicial registrar in respect of a legal representatives conference. The Court has taken into account the principles in Lancy and Lancey (1994) FamCA 94 and A & Z (2006) FamCA 179 at [64-73] and the overarching purpose in s190 of the Federal Circuit and Family Court of Australia Act2021 (Cth), as well as the principles in s43, s60B and s69ZN of the Family Law Act 1975 (Cth) (the “Act”). The Court is satisfied that there has been default within Rule 10.26 of the Federal Circuit and Family Court of Australia (Family Law) 2021 as well as failure to appear under Rule 15.19 enlivening the Court’s powers under Rule 10.27. The Court is satisfied that it is just to make an order that the matter proceed as an undefended hearing and in respect of the parenting proceedings is also satisfied that this order is in the best interests of the children. In all the circumstances, the Court was satisfied that it was appropriate to proceed by way of the making of an order that the matter proceed as an undefended hearing.
EVIDENCE
The Court admitted the following material into evidence:
·Exhibit A – Balance Sheet filed 30 January 2024; and
·Exhibit B – Financial Statement filed 19 January 2024.
The Court had read the following affidavits:
·Affidavit of Applicant Wife dated 18 September 2023;
·Affidavit of service dated 2 November 2023;
·Affidavit of service dated 1 December 2023;
·Affidavit of Applicant Wife dated 19 January 2024
·Affidavit of Applicant Wife date 30 January 2023
CHRONOLOGY
Date Event 1973 Respondent Husband is born. 1982 Applicant Wife is born. 2000 Applicant arrives in Australia and becomes a permanent resident. 2005 Parties met in Australia. 2006 Parties commenced their de facto relationship and cohabitation. 2007 Parties jointly purchased the property situated at D Street, Suburb E, NSW for $379,000. 2007 Applicant commences full-time work with the public service. 2010 Applicant commences full-time with the public service. 2011 Parties jointly purchased the property situated at B Street, Suburb C NSW for $330,000 (“Suburb C Property). 2012 X is born. 2013 Y is born. 2014 Parties jointly purchased the property situated at F Street, Suburb G, NSW for $1,070,000. 2015 Respondent works for H Company until 2019. 2015 The children are sent to Country J to live with the maternal grandmother for a year. 2016 The children return to Australia from Country J. 2017 The parties’ relationship begins to deteriorate. 2017 Respondent suggests to the applicant to have a Binding Financial Agreement. 2017 Respondent slaps X causing her to bruise. 2017 Respondent turns 44 contrary to recital A “is currently aged 43” in the purported Binding Financial Agreement 2017 THIS AGREEMENT dated day of 2017 The parties purport to sign a purported Binding Financial Agreement -undated- Mr Shen Signature witness Mr K and Mr L Signature witness Ms Guan- Appears four signatures on 8 pages prior to execution page, execution page and witnesses sign, 3 pages of annexures signed by four signatures 2017 Certificate by Mr K solicitor U Law Firm instructed by Mr Shen “prior to entering into this agreement” with two signatures by parties at bottom 2017 Certificate of Mr L solicitor T Law Firm instructed by Ms Guan “prior to entering into this agreement” with two signatures by parties at bottom 2019 Respondent goes to Country J to visit family. 2021 Respondent returns Australia from Country J. 30 April 2021 The parties separate on a final basis. 23 January 2024 Final hearing before Judge Street. APPLICANT’S EVIDENCE
The mother was born in Country J and is 41 years of age. The father is 50 years of age. The mother came to Australia in or around 2000 and has been a permanent resident since then. The parties met in Australia in or around 2005 and the de facto relationship commenced in February 2006 when the parties’ commenced cohabitation. According to the mother’s affidavit on 19 January 2024, the relationship lasted for 15 years, and the de facto relationship ended on 30 April 2021. There are two children as a result of the relationship, X, born in 2022 and Y, born in 2013 (“the children”).
The mother and father lived together during their de facto relationship between early 2006 until final separation in April 2021. During the period of the de facto relationship, except of when the parties were spending time in Country J for a short period of time, including the period that the father was living in Country J due to the COVID-19 lockdowns between 2019 and 2020, the mother and respondent, along with their children, lived in the same household.
When the parties met in 2005 and leading up to 2006 when the parties commenced a de facto relationship, the mother was in her final year of university. The father did not have a formal degree in Australia and did not have a proper and stable job. The parties did not bring any real estate properties into the relationship and the savings that they brought into the relationship was about $7,500.00 - $10,000.00.
The mother commenced working on a full-time basis with the public service in 2007 in an administrative position and worked there until 2010, and the mother earned around $80,000 annually. The mother has since been working for the public service since 2010 on a full-time basis. Since working for the public service for 15 years, the mother’s annual income is around $110,000.00. During the entirety of the de facto relationship, apart from when the mother taking maternity leave to look after the children, the mother has been working full-time.
During the period of the parties’ relationship, the father was employed in various jobs, however, the mother deposes that the father could not secure a stable job. The mother identified that the father worked as a transport worker for around a year and then worked as a part-time worker in a factory for around one year where the respondent’s employment was terminated due to conflict with other workers. The mother has also identified that the father worked as a transport worker on a casual basis after Y was born. The mother identified, to their best of their knowledge, that the respondent’s annual income when he was working was not over $40,000.00.
The parties jointly purchased the property situated at D Street, Suburb E NSW (“Suburb E Property”) in 2007, with the purchase price of $379,000.00.
The mother has identified that she contributed around $50,000 to the deposit and the father contributed around $15,000 towards the deposit of the purchase. The Suburb E property and the home loan is under the mother’s name. The mother has identified to having contributed to nearly all of the expenses related to the Suburb E Property and with some nominal payments by the respondent.
According to the mother’s affidavit dated 19 January 2024, the approximate current market price for the Suburb E Property is around $940,000. The mother has identified that the Suburb E Property is rented out to support the children and her life, given that the father does not pay child support fee. The mother deposes that the weekly rental receipt is $530.00.
In 2014, the parties jointly purchased the property situated at F Street, Suburb G NSW (“Suburb G Property”) for $1,070,000.00. The mother identified to having paid $53,500 towards the deposit of the purchase and the rest of the deposit was re-financed from the Suburb E Property. The mother deposes to the father not having make any contributions to the Suburb G Property purchase.
The Suburb G Property and the home loan is under the mother’s name and the father did not have capacity to pay for a home loan due to him being unemployed. The maternal grandmother lent the mother about $40,000.00 in cash and that was used to pay for the home loan, stamp duty and other expenses to the Suburb G Property.
The mother deposited $38,684.72 in their bank account and the remaining $2,000.00 was paid for the council fee related to the Suburb G Property.
The mother is currently living in the Suburb G Property with the children since 2014. The father lived in the Suburb G property with the mother and the children until he returned to Country J in 2020 and has never lived in the Suburb G Property since then. The mother is solely responsible for all expenses to the Suburb G Property including home loan repayments since the property settled.
According to the mother’s affidavit dated 19 January 2024, the current market price of the Suburb G Property according to an online website, is on average of $1.8 million between low and middle range.
In 2011, the parties jointly purchase the property situated at Suburb C and the purchase price was $330,000. The mother paid half of the deposit that being, $32,175 in late 2011 and $22,800 in early 2012 which went towards the purchase. The Suburb C property and the home loan of the property is under the respondent’s name. The mother has identified to having occasionally assisted paying for the home loan, strata and council fees, and other expenses related to the Suburb C Property whenever the father requested her to do so. According to the mother’s affidavit dated 19 January 2024, the father was suffering from financial hardship, and he could not meet the property’s liabilities. The total payments that the mother made towards the Suburb C Property to which the mother has identified, excluding the 50 per cent deposit that has already been paid by the mother, is approximately $5,000.
According to the mother’s affidavit dated 19 January 2024, the current market price for the Suburb C Property is approximately $545,000 in the middle range according to an online website. The father has been living in the Suburb C Property since the parties separated, and the mother does not know if the father rents the spare room out.
The mother has identified that the father has two real estate properties in Country J, situated at M Street, Suburb N, City O of Country J (“City O Property”). The property was purchased during the relationship. The mother has identified that to their best of their knowledge, the current price of the City O Property is equivalent to AUD $300,000. The father owns another property situated at P Street, Suburb Q, City R of Country J (“City R Property”), which the father obtained this property during the relationship of the parties and the current market value of the property is equivalent to AUD $400,000. The mother has deposed that due to the father not responding to the proceedings, the mother has very limited information about the respondent’s financial situation or whether he has obtained any further real estate assets in Country J.
The mother took less than six months of maternity leave after giving birth to the children, given that she was stressed to secure the job and the needs of raising the children. The mother identified that the father spent of time at home playing computer games. The mother was working during the relationship, she sent the children to childcare when they were young and to school later, and prepared meals for the whole family. On occasion, the mother would ask the father to cook when he was at home, however, the father would yell at the mother and did not cook. The father refused to do housework and house maintenance despite staying at home whilst the mother was at work.
Prior to the birth of both children, the mother did not take leave from work until two weeks prior to giving birth.
Since one of the children was born, the mother took three months of paid maternity leave. During the first three months of giving birth to one of the children, the mother was taking care of the child on a full-time basis and was feeding her, changing nappies, soothe her when the child became emotional and took care of the child at night when the child was crying. The mother identified that the father helped her for certain limited extent and remembered that he did not work all the time.
The expenses of the family, back to the time the mother was on maternity leave, were mostly paid from the mother’s maternity leave payment and her savings. The mother returned to work after three months of maternity leave, and the father did not work and sometimes worked on a casual basis. The maternal grandmother came from Country J and assisted in looking after the first-born child.
Since the second child was born, in the first six months of giving birth, the mother was on paid maternity leave and was using the entire six months to take care for both children. The father spent most of his time at home and was frequently using it to play computer games. The father sometimes collected the children from childcare and helped with cooking and laundry, however, the mother did most of the housework after work.
According to the mother’s affidavit dated 19 January 2024, the mother identified that their daily routine was that she got up at 7:30am to prepare the children for childcare; dressed herself up and sent the children to childcare; then proceeded to go to work; collect the children from childcare; and then went back home to prepare for meals. The mother identified that this routine was only for about one year that between around early 2015 and early 2016 and both children were sent to Country J to live with the maternal grandmother because she was extremely busy at work, and the father would be partying or at his casual job on and off most of the time, and he did not work.
During the time the father worked, he worked on a few days depending on the needs of the work, and he did not maintain to secure a job due to not liking the work or conflicts that occurred between him and other coworkers. The father changed jobs frequently and the mother was exhausted with maintaining the finances of the family and taking care of the children. The mother expressed their concern to her family and the maternal grandmother, who was willing to help to take care of the children. The children were looked after by the maternal grandmother for a year and returned to the mother around early 2016.
After the children returned in 2016, the mother was back to the same routine and was doing the parenting duties on her own.
When both children commenced school, the mother regularly sent and collected the children from school from Monday to Friday. The father sometimes prepared dinner but this was not as often. After the mother finished work and picking up the children from school, the mother began to cook, clean the dishes and kitchen items, and assisted the children with their homework and would play with them until they go to bed. On weekends, the mother drove the children to attend tutorial classes and gave them company and engaged with them for some social activities such as walking in the park, watching movies, and speaking to them over snacks and afternoon tea.
The father worked in the transport industry from the end of 2015 till 2019 on a casual basis. The respondent’s working time was flexible, but he rarely spent time with the children. On one occasion, the mother asserts that when she was very busy and asked the father to collect the children at the conclusion of school, the father yelled over the phone to the mother saying:
“Why don’t you tell me earlier, you should make an appointment with me like you see the GP. No. I do not want to collect the children. I am busy. I don’t care!”
On another occasion, when one of the children were sick, the child needed to be sent to emergency and the mother asked the father for help, to which the father refused. The mother took both children to the hospital and the father was sleeping at home.
The father went back to Country J to visit his family in 2019 and did not return to Australia until around March 2021 due to the Covid-19 lockdown. The mother identified that it was the commencing time the father was absent in the of life of the children till now. Since the end of 2019, the father did not spend time with the children, not talk to them, not give financial and non-financial support to the children.
The mother asserts that were severe arguments involving domestic violence committed by the father and which involved child abuse as well. The mother asserts the father yelled at her in front of the children and said words to the effect:
“You are not like a woman, except you can give birth, your parents did not teach you well. I can correct you for your parents, you make the money so you should pay. I do not make money so I do not have to pay.”
This incident occurred when the mother asked the father to pay expenses such as the books, after class activities or clothes for the children.
In 2018, the father threw things on the table and kitchen onto the floor and items became broken and spread all over the floor. The father then yelled at the mother. The mother identified that the father was not settled and further approached her, to which the mother reported the incident to Suburb S Police. The father then cleaned up the floor before the police arrived for the investigation and the father asked the mother to delete the video she took on her phone which recorded the respondent’s aggressive behaviours.
The mother identified that upon the respondent's return in March 2019, he was issued with an AVO due to his violence towards her. The father then permanently moved out from home, and the mother identified that it was the start of the end of their de facto relationship.
Around December 2017, the parties had a few verbal arguments. Following on, one of the children was crying and told the mother that the father had slapped her and that it hurt. The slapped caused a bruise. The mother asked the father if he had slapped the child, to which the father said “Yes, I did.”
From final separation with the father in April 2021 till now, the mother became a single mother who is taking care of two children. The mother has identified that she receives around $3,000.00 net fortnightly from employment to support the children. The children received about $38 monthly from Child Support Agency that is trivial for supporting children. The total expenses of the children for a whole year are around $15,000.00-$18,000.00. The mother has identified that she is struggling to raise the children as well as repay the mortgages.
In December 2017, the parties entered into a purported Binding Financial Agreement, to which the mother has identified she was threatened by the father to sign it. The relationship between the parties began to deteriorate in 2017 mainly due to the father being upset with the complaints by the mother that he did not work enough to support the family. As a result, the parties had many arguments, and the police was called on some occasions of the arguments.
In late 2017, during a conversation with the respondent, he suggested that they have a Binding Financial Agreement and he expressed that he was feeling unfair that the properties were under the mother’s name.
In the following months, the mother asserts that the father used direct and non-direct ways to harass her to force her to enter a Binding Financial Agreement. The father did not do any housework and refused to communicate with the mother and yelled at the mother saying words to the effect “If you do not agree with a Binding Financial Agreement, I cannot see my rights given that the house is under my name. I am telling you that I will not do any work, no housework and parenting until you agree with entering into a Binding Financial Agreement.”
The mother asserts that she was thinking more about maintaining a family for the child that the child has a father and mother around them, also expected some positive changes from the respondent.
Before entering into the Binding Financial Agreement, the father sometimes refused to return home and to which the mother alleges, the father used this ‘kind of cold violence’ towards her with his unhappiness and forced her to agree with the Binding Financial Agreement.
The father refused to do any housework or care for the children and did not want to help until the mother signed the agreement. The father would continue to play computer games or going out and not come home. The father would come and go as he pleases.
The parties entered into a Binding Financial Agreement in December 2017.
In December 2017, the mother asserts that the father slapped the eldest child which was referred to in the mother’s previous affidavit on 30 January 2023. There were bruises on the child, which made the mother feel that the family peace will not be settled until or unless her signature of a Binding Financial Agreement was needed to meet the respondent’s demand. The mother also identified that she had concerns for the safety of herself and her children.
The mother asserts that she was under a lot of pressure from working full time and caring for the children, and the father refused to help her with the domestic responsibilities. The mother has deposed that her health was beginning to suffer and given the constant refusal by the father to help until the mother agreed to sign the Binding Financial Agreement. The mother agreed to sign the Binding Financial Agreement so she could get some help from the respondent.
The mother was represented by T Law Firm on her behalf for the Binding Financial Agreement. The mother asserts that the father introduced T Law Firm to her. The mother had no contract with T Law Firm before the father told her to contact them.
The mother recalls that prior to contacting T Law Firm she was asked to go with the father to the office of U Law Firm who represented the father for the Binding Financial Agreement.
When the mother arrived at the office of U Law Firm, she told the solicitor that the father instructed them to draft the document with brief details of the financial split and sought her agreement for them to formally finalise the agreement. The mother said words to the effect “I do not like the agreement you told, but I have no choice. If I do not sign, there is no peace in our family and my children’s safety would be concerned.” The mother asserts that the solicitors ignored her and did not tell to speak to her lawyer or obtain advice from another lawyer.
The mother was told the same thing by T Law Firm before signing it. The mother asserts that they did not give her any advice in relation to her concerns or the Binding Financial Agreement. The mother alleges that their professional negligence caused her to execute the Binding Financial Agreement back in 2017.
The mother asserts that she was not given any opportunity to negotiate the Binding Financial Agreement. U Law Firm had completed drafting the Binding Financial Agreement and gave it to T Law Firm. The mother alleges that those communications and correspondence were not disclosed in neither of their produced documents subject to the subpoena filed on 8 December 2023 and 20 December 2023. In December 2017, the mother received a call from T Law Firm outlining the Binding Financial Agreement was ready to sign at their office and the mother attended their office. The mother signed the agreement, and the mother was told to leave the office.
In 2021 and 2022, the mother’s solicitors asked the father or his legal representatives about revoking the signed Binding Financial Agreement due to non-enforcement at any material time since the execution of the documents. The father provided a limited financial disclosure, and only provided an amount up to around April 2022. The mother appointed a mediator to try and resolve the dispute. The father emailed the mother’s solicitors advising that he did not want to pay a mediation fee and asked the mother to pay the fee, to which the mother agreed to pay the mediation fee. The mother identified that the father tried to avoid the scheduled mediation and delayed it by not answering the call or responding to the email from the mediator.
The mother has identified that prior to her signing the Binding Financial Agreement, she was not given a copy of the draft Binding Financial Agreement and any time to think or and reflect on the agreement. The mother asserted that she obtained limited legal advice from T Law Firm, prior to the execution of the agreement, and they told the mother that she had a right to enforce the Binding Financial Agreement in Family Court if the father fails to follow the terms of the agreement.
The mother asserts that she instructed the current solicitors, who are representing her now, to subpoena T Law Firm and U Law Firm for the file notes and relevant memorandums of meetings with them relating to the Binding Financial Agreement. The mother asserts that they charged her $440 conduct money but produced nothing relevant subject to the subpoenas. The mother asserts that T Law Firm failed to give her legal advice as to her concern that she was threatened by the father to enter into the Binding Financial Agreement.
After the Binding Financial Agreement was entered into, the mother asserts that the father failed to make any positive changes and that he continues to not work much, support the family, and not fulfil the obligations as a husband and a father. The father did not help the mother with the domestic aspect of the relationship or caring for the children.
In 2022, the mother’s solicitor made attempts to request on behalf of the father for his payslips and work-related information, however, the father avoided and refused to provide. The mother asserts that due to the respondent’s limited financial disclosure, she is not in a position to know about his financial situation.
BALANCE SHEET
| Ownership | Description | Applicant Wife’s Value | Respondent Husband’s Value | |
| ASSETS | ||||
| W | F Street, Suburb G NSW | E$1,800,000 | NK | |
| W | D Street, Suburb E NSW | E$940,000 | NK | |
| H | B Street, Suburb C NSW | E$700,000 | NK | |
| W | V Bank account (BSB …; acct no: …63) | E$1900 | NK | |
| W | NAB account (Acct no: …48 BSB:…) | E$6200 | NK | |
| W | CBA (Acct no: …45 BSB:…) | E$4900 | NK | |
| H | City O Country J property | E$300,000 | NK | |
| H | City R Country J property | E$400,000 | NK | |
| H | Motor Vehicle 1 | E$20,000 | NK | |
| H | Motor Vehicle 2 | E$20,000 | NK | |
| H | Motor Vehicle 3 | E$3,000 | NK | |
| H | NAB bank account (Acct: …14 NSB:…) | NK | NK | |
| H | Country J bank – saving accounts | NK | NK | |
| SUB-TOTAL | E$4,176,000 | NK | ||
| LIABILITIES | ||||
| W | Home loan secured for Suburb G Property | E$816000 | NK | |
| W | Home loan secured for Suburb E | E$533000 | NK | |
| W | Loan from mother | E$40000 | NK | |
| H | Home loan secured for Suburb C Property | NK | NK | |
| SUB-TOTAL | E $1,389,000 | NK | ||
| SUPERANNUATION | ||||
| Member | Name of Fund | Type of Interest | Applicant Wife’s Value | Respondent Husband’s Value |
| Husband | Super Fund 1 | Accrued | NK | NK |
| Wife | Super Fund 2 | Accrued | E$160000 | NK |
| TOTAL NET ASSETS INCLUDING SUPERANNUATION | E$2,947,000 | |||
PRINCIPLES IN RELATION TO PARENTING LAW
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children including the principles to be applied by Courts in s43 and the principles for conducting child related proceedings in s69ZN. Section 60B of the Act sets out the objects and principles of Pt VII. These are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence.
Further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. For reasons which I subsequently explain, I have determined that it is not in the interests of the child for the presumption to apply, in the context of the lack of cooperation between the parents.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: ss 60CC(2)(b) of the Act.
In considering that first matter, I note that, in McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at 83,476, [122], the Full Court said:
…No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests.
In McCall and Clark at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a “prospective” one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
In Jurchenko & Foster (2014) FLC 93-598 at 79,420, the Court noted at [123] that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
In Loddington & Derringford (No 2) [2008] FamCA 925 Cronin J held at [169] that:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
(emphasis added)
In Loddington Cronin J further added that an assessment of the benefit to the child must be made according to ‘the peculiar facts of what the parents are offering.’ [At 173]
In Cotton & Cotton (1983) FLC 91-330, Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
And that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
(emphasis added)
Issue of risk
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or violence. The question that may be asked is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent.
In Stott & Holgar [2017] FamCAFC 152 at [38], the Full Court confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm. If a determination is made that such a risk exists, the Court is then required to consider whether that unacceptable risk could be ameliorated by safeguards.
The relevant principles in assessing whether a child would be exposed to an unacceptable risk of psychological and/or physical harm were recently considered by the Full Court in Isles & Nelissen (2022) FLC 94-092, who agreed with and adopted Austin J’s dissenting judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following:
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139. Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
…
142. As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
Thus, it can be seen that determining the issue of risk essentially involves applying a risk matrix, whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence. That is, there is an obligation on a trial judge to evaluate not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N v S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303, Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96] and Deiter & Deiter [2011] FamCAFC 82 at [54].
Additionally the following guidance emerges from authorities:
(1)It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77.
(2)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148].
(3)The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at [68], endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
(4)While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”.
The Court must have regard to the primary considerations and the additional considerations in s60CC(3) of the Act. The Court has also taken into account the definition of abuse is s4(1) and definition of family violence in s4AB.
PRINCIPLES IN RELATION TO ALTERATION OF PROPERTY INTERESTS – DE FACTO
In respect to the parties dispute regarding the division of their property these proceedings, s 90SM of the Act sets out the following:
(1)In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them--altering the interests of the parties to the de facto relationship in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the de facto relationship--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring
(i) either or both of the parties to the de facto relationship; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the de facto relationship or a child of the de facto relationship, such settlement or transfer of property as the court determines.
Note 1: The geographical requirement in section 90SK must be satisfied
Note 2:The court must be satisfied of at least one of the matters in section 90SB.
Note 3: For child of a de facto relationship, see section 90RB.
(2)If a party to the de facto relationship dies after the breakdown of the de facto relationship, an order made under subsection (1) in property settlement proceedings may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(3)The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c)the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e)the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
Section 90SF(3) of the Act is as follows:
(3) The matters to be so taken into account are:
(a)the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f)subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(i)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(o)the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i)a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii)a person who is a party to another de facto relationship with a party to the subject de facto relationship; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(p)the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i) a party to the subject de facto relationship; or
(ii)a person who is a party to a marriage with a party to the subject de facto relationship; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(q)any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(s)the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
(t)the terms of any financial agreement that is binding on a party to the subject de facto relationship.
The applicant is seeking an alteration of property interests under s 90SM of the Act. The Court must be satisfied that it is just an equitable to make such an order. The Court must take into account the matters in s 90SM(4), including the matters so far as relevant in s 90SF(3) of the Act. The Court may make a declaration as to the existence of a de facto relationship under s 90RD of the Act and, in relation to that declaration power, the Court must be satisfied of the geographical requirement under s 90RG of the Act. Section 4AA defines the meaning of a de facto relationship.
There is a length of relationship requirement in s 90SB of the Act and also a geographic requirement under s 90SK for the making of an order under s 90SM of the Act. The principles in relation to the approach of the four-stage process for alteration of property interests are correctly identified in the applicant’s submissions referred to below and is summarised, albeit referring to the married parties relevantly identical provisions.
In Hickey and Hickey and Attorney-General (Cth) (Intervener) [2003] FamCA 395 (“Hickey”) the Full Court discussed the preferred approach to the determination of a property settlement order:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case. (Citations omitted)
In Fitzmaurice & Woolridge [2020] FamCAFC 64 (“Fitzmaurice”), the Full Court makes the point that Hickey is only a preferred approach:
These three aspects echo three of the four steps or stages developed in [Hickey]. Adherence to those four steps is not mandatory, and the approach “merely illuminates the path to the ultimate result” (see Norman & Norman [2010] FamCAFC 66 at [60]). Indeed in Martin & Newton [2011] FamCAFC 233; (2011) FLC 93-490 at 86,127, it was said of the four step calculus: 305. ... [T]hat approach is not legislatively mandated, and as the Full Court [in Hickey] said, is simply the preferred approach. This is because it will be sufficient, in most cases, to have regard to the overall justice and equity of the orders after determination of the asset pool, consideration of contributions and assessment of the relevant S75(2) matters.
The principles in relation to the existence of a de facto relationship are adequately summarised as follows. In Piras v Egan [2008] NSWCA 59, Campbell JA held at [146]:
The finding of not being satisfied that the plaintiff lived on a full-time basis with the Deceased in the relevant period is of central importance to whether a de facto relationship existed. It should be recalled that the list of “circumstances” in section 4(2) are reminders of matters that possibly might be relevant in deciding whether two people are in a de facto relationship, but do not state its essence. The essence is to be found in the definition in section 4(1). If two people do not “live together as a couple” they do not satisfy the definition of being in a de facto relationship, regardless of what might be the situation concerning the various “circumstances” listed in section 4(2).
The principles have also been summarised in Estate of Gardner [2019] NSWSC 1324 [20] – [44] Bell J. These principles, in determining when the de facto relationship commenced, whether it existed, and when it ended, and the statutory framework are summarised by the Full Court in Fairbairn v Radecki [2022] HCA18 at [4-6], [28-31], [33], [38-39].
The Court is required to make an assessment of the nature and quality of the totality of the parties’ contributions throughout the entirety of their relationship, together with their contributions in the period subsequent to their separation. In [29] Dickons & Dickons [2012] FamCAFC 154, [14] (Bryant CJ, Faulks DCJ, Murphy J); Jabour & Jabour [2019] FamCAFC 78, [61] (Alstergren CJ, Ryan and Aldridge JJ). See also Dovgan & Dovgan [2021] FamCA 306, [347] (Harper J), which restates the need to holistically assess contributions following the case of Dickons, and that ‘all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder’.
PRINCIPLES IN RELATION TO BINDING FINANCIAL AGREEMENTS AND SETTING ASIDE OF BINDING FINANCIAL AGREEMENTS
Under s71A Part VIII has no application where there is a binding financial agreement, Kostres & Kostres [2009] FamCA 222 at [64]. There is a geographical residential requirement in s90UA of Division 4 of Part VIIIAB at the time of making the Part VIIIAB financial agreement. In the present case the parties were in a de facto relationship at the time of making the agreement, were not spouse parties to any other agreement and the agreement in recital G was expressed to be made under s90UC. The agreement addressed all the property and financial resources of the parties within s90UC(2). Section 90UJ provides when a Part VIIIAB financial agreement is binding relevantly as follows:
When financial agreements are binding
(1)Subject to subsection (1A), a Part VIIIAB financial agreement (other than an agreement covered by section 90UE) is binding on the parties to the agreement if, and only if:
(a) the agreement is signed by all parties; and
(b)before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and
(c)either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and
(ca)a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and
(d)the agreement has not been terminated and has not been set aside by a court.
Note:For the manner in which the contents of a financial agreement may be proved, see section 48 of the Evidence Act 1995.
(1A) A Part VIIIAB financial agreement (other than an agreement covered by section 90UE) is binding on the parties to the agreement if:
(e) the agreement is signed by all parties; and
(f)one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and
(g)a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and
(h)the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and
(i)the agreement has not been terminated and has not been set aside by a court.
(1B)For the purposes of paragraph (1A)(d), a court may make an order declaring that a Part VIIIAB financial agreement is binding on the parties to the agreement, upon application (the enforcement application ) by a spouse party seeking to enforce the agreement.
(1C) To avoid doubt, section 90UN applies in relation to the enforcement application.
(2)A Part VIIIAB financial agreement covered by section 90UE is binding on the parties to the agreement if, and only if, the agreement has not been terminated and has not been set aside by a court.
(3)A Part VIIIAB financial agreement ceases to be binding if, after making the agreement, the parties to the agreement marry each other.
(4)A court may make such orders for the enforcement of a Part VIIIAB financial agreement that is binding on the parties to the agreement as it thinks necessary.
The circumstances in which a Part VIIIAB financial agreement maybe set aside are addressed in s90UM as follows:
Circumstances in which court may set aside a financial agreement or termination agreement
(1)A court may make an order setting aside, for the purposes of this Act, a Part VIIIAB financial agreement or a Part VIIIAB termination agreement if, and only if, the court is satisfied that:
(a)the agreement was obtained by fraud (including non-disclosure of a material matter); or
(b) a party to the agreement entered into the agreement:
(i)for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor or creditors of the party; or
(ii)with reckless disregard of the interests of a creditor or creditors of the party; or
(c)a party (the agreement party) to the agreement entered into the agreement:
(i)for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a de facto relationship (the other de facto relationship) with a spouse party; or
(ii)for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 90SM, or a declaration under section 90SL, in relation to the other de facto relationship; or
(iii)with reckless disregard of those interests of that other person; or
(d)a party (the agreement party) to the agreement entered into the agreement:
(i)for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a marriage with a spouse party; or
(ii)for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 79, or a declaration under section 78, in relation to the marriage (or void marriage); or
(iii)with reckless disregard of those interests of that other person; or
(e)the agreement is void, voidable or unenforceable; or
(f)in the circumstances that have arisen since the agreement was made it is impracticable for the agreement or a part of the agreement to be carried out; or
(g)since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the de facto relationship) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (4)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or
(h)in respect of the making of a Part VIIIAB financial agreement--a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or
(i)a payment flag is operating under Part VIIIB on a superannuation interest covered by the agreement and there is no reasonable likelihood that the operation of the flag will be terminated by a flag lifting agreement under that Part; or
(j)the agreement covers at least one superannuation interest that is an unsplittable interest for the purposes of Part VIIIB; or
(k)if the agreement is a Part VIIIAB financial agreement covered by section 90UE--subsection (5) applies.
Note: For child of a de facto relationship , see section 90RB.
(2)For the purposes of paragraph (1)(b), creditor , in relation to a party to the agreement, includes a person who could reasonably have been foreseen by the party as being reasonably likely to become a creditor of the party.
(3)For the purposes of the application of subparagraph (1)(c)(ii) to a Part VIIIAB financial agreement covered by section 90UE:
(a)the reference in that subparagraph to an order under section 90SM is taken to include a reference to an order (however described) under a corresponding provision (if any) of the non-referring State de facto financial law concerned; and
(b)the reference in that subparagraph to a declaration under section 90SL is taken to include a reference to a declaration (however described) under a corresponding provision (if any) of the non-referring State de facto financial law concerned.
(4)For the purposes of paragraph (1)(g), a person has caring responsibility for a child if:
(a)the person is a parent of the child with whom the child lives; or
(b) a parenting order provides that:
(i) the child is to live with the person; or
(ii) the person has parental responsibility for the child.
(5)This subsection applies if:
(a)at least one of the spouse parties to the agreement was not provided, before signing the agreement, with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages to that party of making the agreement; or
(b)if this advice was provided to at least one of the spouse parties to the agreement that party was not provided with a signed statement by the legal practitioner stating that this advice was given to that party;
and it would be unjust and inequitable, having regard to the eligible agreed matters (within the meaning of section 90UE) for the agreement, if the court does not set the agreement aside.
(6)A court may, on an application by a person who was a party to the Part VIIIAB financial agreement that has been set aside, or by any other interested person, make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of persons who were parties to that financial agreement and any other interested persons.
(7)An order under subsection (1) or (6) may, after the death of a party to the proceedings in which the order was made, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(8)If a party to proceedings under this section dies before the proceedings are completed:
(a)the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings; and
(b) if the court is of the opinion:
(i)that it would have exercised its powers under this section if the deceased party had not died; and
(ii) that it is still appropriate to exercise those powers;
the court may make any order that it could have made under subsection (1) or (6); and
(c)an order under paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(9) The court must not make an order under this section if the order would:
(a)result in the acquisition of property from a person otherwise than on just terms; and
(b) be invalid because of paragraph 51(xxxi) of the Constitution.
For this purpose, acquisition of property and just terms have the same meanings as in paragraph 51(xxxi) of the Constitution.
Section 90UN provides for the validity, enforceability or effective of a Part VIIIAB financial agreement to be determined according to principles of law and equity of contracts and purported contracts. The principles of construction and interpretation of contracts was usefully summarised by the learned Harper J in Barre & Barre [2021] FamCA 101 at [224-231].
The Court has taken into account the onus being upon the respondent, being a potential bar to the application of the applicant under Part VIII, to establish that the agreement is binding and that in respect of a certificate of independent advice there is a forensic obligation on the recipient of the advice under the certificate to disprove or at least throw into doubt the inference or conclusion to be drawn from the certificate, Hoult & Hoult (2013) FamCAFC 109 at [54-63]; Logan & Logan [2013] FamCAFC 151 at [44-45]. The issue under s90UJ(1)(b) is whether the advice referred to is given, see Hoult & Hoult, supra at [100],[279]. What constitutes the required advice is identified in Abrum & Abrum [2013] FamCA 897 at [39-40]. The meaning of the requirement for both parties to sign has been addressed in Balson & Balson [2023] at [34-38]
Fraud has been usefully summarised by the learned Murphy J in Hoult & Hoult, supra at [125-126,133]; and is also helpfully addressed including non-disclosure of a material matter, in Nyles & Nyles [2011] FamCA 565 at [176-179], which also addresses the issue of inducement at [192-193]. The meaning of reckless was touched upon in Chen & Chen [2018] FamCA 828 at [179].
Duress, undue influence and unconscionable conduct have been discussed in Thorne v Kennedy [2017] HCA 49 at [26-40] as well as the five steps at [60]. The principles as to duress were usefully further summarised in Lincoln & Miller [2016] FamCA547 at [76,77]. The principles as to unconscionable conduct were usefully further summarised by the learned Wilson J in Teuh &Muir [2017] FamCA 138 at [197-198]. The principles as to undue influence were also usefully summarised by the learned Campton J in Clowes & Konig [2022] FedCFamC1F 565 at [186-189] which also identified at [212] that a contract is affected by uncertainty if its essential terms are uncertain or lacking, Axelsen v O’Brien (1949) 80 CLR 219 at 226. The principles concerning uncertainty have been usefully summarised by the learned Judge Morley in Talley & Patterson [2022] FedCFamC2F 1203 at[136-141]. Hardship must be linked to the change in circumstances, Fewster & Drake [2016] FamCA 214 at [65]; Michaels & Vidal [2022] FedCFamC1F 252 at [15,17]; Chaffin& Chaffin [2019] FamCA 260.
The approach to s90UJ has been identified in respect of the earlier similar provision as to married parties binding financial agreement requirements in Hoult & Hoult supra at [160] and [211-215] by the learned Thackray J. The strict requirements in s90UJ(1) if signed by all parties and (1) (b), (c)or (ca) are not satisfied, then the Court undertakes assessment of the broad discretion required by s90UJ(1A), in respect of those requirements so that it is not a vehicle of injustice, which is a wide-ranging one that includes considerations such as the facts and circumstances surrounding the particular requirement said not to be met, what the parties said and did, if anything to rend the agreement not binding, the circumstances within which the bargain was concluded, the length of time between the agreement and the decision whether the parties are held to it, what was done in reliance upon the agreement being binding, and whether the terms of the bargain offend ordinary notions of fairness or plainly fall outside any reasonable broad assessment of the s79 or 90SM discretion in reaching the satisfaction required under s90UJ(1A)(c) that it would be unjust and inequitable if the agreement were not binding on the spouse parties and the making of an order under s90UJ(1A)(d). Where binding the Court may make such orders for enforcement as it thinks fit under s90UJ(4).
SUBMISSIONS
Mr Yin, counsel for the mother, relied upon the amended application and sought orders substantially in accordance with the same in respect of both parenting and property. Mr Yin submitted the de facto relationship commenced in 2005 and continued until April 2021 and that the geographic and time requirements were met. Mr Yin submitted that the financial agreement provided effectively a 50:50 split of what was described in the attachments to the agreement as being joint property. Mr Yin identified the net value of the two properties, Suburb G and Suburb E, in the mother’s name was about $1.3m. Mr Yin identified that no orders for sale were being sought in respect of the Country J properties owned by the respondent. Mr Yin also sought an order for removal of a caveat.
The effect of the deed was to exclude the Suburb C property having a value of $700,000, subject to an unknown mortgage amount. Mr Yin submitted that there was non-compliance with s90UJ(1)(b) and that further that the financial agreement should be set aside for undue influence and a material change of circumstance and as a result of that change the mother will suffer hardship within s90UM(1)(g) and also relief on s90UM(1)(h) as well as an alteration of interests under s90UM(6). The change of circumstances were the separation and sole parenting responsibility of the mother for the two children, the consequential financial burden and the failure to contribute to the same beyond a small payment of child support of $38 monthly. It was submitted that since separation in April 2021 the mother has been the sole carer of the two children, meeting their financial and non-financial needs and no contribution by the father in caring for the children. Further the father had conveyed that he was going to co-operate with the parenting of the children at the time of the agreement. It was submitted that the father exercised undue influence and had put the mother under a lot of pressure to sign the agreement. Reference was made to the mother’s concerns from bruises on the children and concern as to her safety and that of the children.
The evidence relied upon by the mother also engaged consideration of s90UM(1)(e). Mr Yin submitted that once set aside it was just and equitable for a property split involving the sale of Suburb C property, which has a mortgage, the amount of which is unknown to the mother, with a 80:20 percentage split in favour of the mother. Assuming the net value is $700,00 the mother would on sale receive $560 and the father would receive $140,000. Mr Yin submitted that the alteration of interest was just and equitable given the increased parenting role of the mother in respect of the two children. In addition to s90UM(6) in the alternation of property interests Mr Yin also relied upon s90SM.
Mr Yin submitted that the father had engaged in unreasonable conduct in the conduct of these proceedings and that the mother incurred unnecessary costs as a result and that an order should be made in favour of the mother under s117 for costs. Mr Yin also relied upon the respondent’s failure to participate in these proceedings or comply with orders for hearing.
FINDINGS AND CONCLUSIONS AS TO PARENTING
The Court finds that it is in the best interests of the children to make the parenting orders as sought in the amended application filed on 21 April 2023. The Court has taken into account the principles in section 60B and section 69ZN in respect of the final parenting orders and has taken into account the principles under section 43. The Court is satisfied that the parenting orders meet the primary considerations identified in section 60CC(2). The father has not participated in the parenting of the children since separation and has not participated in these proceedings. The proposed orders do provide a real and meaningful opportunity for the father to have a meaningful relationship with the father and is satisfied that the proposed orders give effect to the need to protect the children, which primary consideration is given greater weight under s60CC(2A).
Equal parental responsibility presumption under s61DA is rebutted by reason of the mother’s evidence as to family violence in 2017 and in 2019 including the taking out of an AVO against the respondent. The Court is satisfied that the mother should have sole parental responsibility albeit the orders provide for input by the father on long term issues. The Court is satisfied that the children should continue live with the mother. The Court has taken into account the additional considerations relevantly in relation to s60CC(3)(a) the children having been living with the mother and she has been meeting their needs and there is no suggestion that they have views different from the orders being sought by the mother. In relation to s60CC(3)(b) the children have a close relationship with the mother and the father appears to have taken no parenting role since separation in March 2021. In relation to s60CC(3)(c) the father has failed to take the opportunity to participate in decision making about long term issues, failed to spend time with the children and the evidence as to his communications is unclear. In relation to s60CC(3)(ca) the mother has been meeting the needs of the children and fulfilling her parental obligations. The father has not fulfilled his parenting obligations since separation.
In relation to s60CC(3)(d) proposed orders do not affect any real change in the children’s circumstances and provide an opportunity for the father to engage with them. In relation to s60CC(3)(e) the proposed orders do not create any practical difficulty or expense for the father spending time with the children. In relation to s60CC(3)(f) the mother has capacity to mee the needs of the children, and the father’s capacity seems impaired by his failure to engage with his children since separation. In relation to s60CC(3)(g) the Court has taken into account the age of the children, their background and the parents background.
Section 60CC(3)(h) and (k) have no application. In relation to s60CC(3)(i) the mother has been meeting the needs of the children and the father has not which reflects a very poor attitude by the father and a failure to discharge his parental responsibilities. In relation to s60CC(3)(j) the Court accepts that there were bruises on the children and finds that the father implicitly threatened the welfare of the mother and children unless the financial agreement was signed by the mother. As to s60CC(3)(l) the making of these proposed orders is least likely to give rise to further proceedings in relation to the children. The failure of the father to participate in these proceedings is another relevant fact in relation to the proposed parenting orders. The Court is satisfied that the proposed parenting orders are in the best interests of the children.
FINDINGS AND CONCLUSIONS AS TO ALLEGED BINDING FINDING AGREEMENT AND ALTERATION OF PROPERTY INTERESTS
Mr Yin of counsel took the Court through the mother’s evidence in relation to the making of the purported binding financial agreement of 2017 which agreement, although signed by the parties, was undated. The agreement effectively provided for the joint property to be split fifty-fifty and for the parties to remain in ownership of property in their own name. The purported binding financial agreement had an annexure A that failed to identify a Suburb C property owned by the father which was apparently acquired in 2011. Annexure B identified the property of the mother and annexure C identified a joint property which was said to include the Suburb G property, the Suburb C property and a Suburb E property.
The net assets were identified as being $1.462 million as an estimate and the total liabilities were an estimate of $1.590 million, with the total joint assets being an estimate of $3,052,000 in the financial agreement. There was a certificate under section 90UJ(1) in relation to the father dated 15 December 2017 and a certificate by a Mr L, a solicitor of T Law Firm, dated 22 December 2017. The onus is upon the father to prove that there is a binding financial agreement and Mr Yin of counsel submitted that the mother’s evidence as to the inadequacy of the legal advice alleged by the mother should be accepted, notwithstanding the certificate dated 22 December 2017.
The undated nature of the agreement as subject of the certificate concerning the mother is of concern that the Court has taken into account. There is a notation in respect of the 27-pages of the financial agreement put into evidence and the court notes that there are two missing pages that have not been put into evidence Although there are signatures which the court finds include the mother’s signature, which was witnessed by the same solicitor as gave the certificate, the absence of the date of the agreement is of particular concern as the separate property allegedly identified in annexure A, was said to be “as at the date hereof”, and the same preamble appeared for annexure B, and the same preamble appeared for annexure C. Yet there is no date in the agreement. There is no date on the agreement and further, no date referable to the annexures A, B and C. The signatures which the Court finds were those of the parties on the two certificates supports the conclusion that the certificate was given to the mother before signing the agreement, although the erroneous recital age for the father suggests the contrary.
Mr Yin relied upon the mother’s evidence as to the deficiencies in respect of compliance with the mandatory obligation for independent legal advice under section 90UJ(1)(b) about the effect of the agreement on the rights of the party about the advantages and disadvantage at the time that the advice was provided to that party of the making of the agreement.
Whilst the certificate supports compliance with those required steps the mother’s evidence which identified that she personally had no contact with the firm providing the certificate, and that it was arranged through the respondent, that evidence suggests that the mother was told briefly the details of the financial split and that her agreement was sought to formally finalise the same, and the mother raised concerns in relation to having no choice and no peace and safety for her and her family and disputing the required advice should be accepted.
The mother gave evidence there was no advice given in relation to her concerns, or as to the binding financial agreement and the mother was not given the opportunity to negotiate the same. The execution was said to have occurred with the solicitor who provided the certificate reading the document through to the mother and telling her words to the effect, “Here is the pen. You sign here and I witness.”
The mother contended that she hadn’t been given a draft copy and that she only saw the proposed agreement when it was read through and she was asked to sign. The mother identified that she was only given limited legal advice and that she received advice that she had the right to enforce the binding financial agreement.
The mother’s evidence does not support that the effect of the agreement or the rights of the mother was explained to her, or that there was explanation about the advantages and disadvantages of the binding financial agreement. Notwithstanding the certificate in light of the mother’s evidence, which the Court accepts, the court finds that there was not compliance with section 90UJ(1)(b). The Court is not satisfied that it would be unjust and inequitable if the agreement was not binding. The circumstances in which the agreement undated came to be signed reflect pressure for the father upon the mother, no negotiation, no proper solicitor instructions or engagement with the requirements , notwithstanding the certificate, as the Court accepts the mother’s evidence as the failure to address the requirements under s90UJ(1)(b). It is over 6 years since the agreement was signed, the children are older and their needs greater and the father misrepresented his willingness to engage in the care of the children, applied undue pressure upon the mother to enter the agreement and the mother signed the same fearing for her safety and that of the children. No relevant reliance appears to have been placed on the agreement or any relevant change of position. Given the current sole parenting circumstances of the mother and failure to assist by the father the 50:50 split does offend ordinary notions of fairness and falls outside the reasonably broad range of assessment under s90SM. In these circumstances the court is satisfied that it is appropriate to make a declaration under s90UJ(1B) that there was no binding financial agreement.
Mr Yin also relied on section 90UM(1)(g) and (h) in seeking to have the agreement set aside and for orders altering property interests under s90UM(6).
In relation to section 90UM(1)(g) Mr Yin said that there had been a material change in circumstances due to the mother becoming a single parent and having to try and support herself and the two children, and effectively the cessation of financial support by the respondent. Mr Yin took the Court to the evidence of a small payment in respect to child support, albeit it was contended in submissions that only one such payment had been made.
The mother as referred to the father pressing for a binding financial agreement in around late 2017 and that she was then pressured to enter into the same. The mother said that the father did not do any housework and refused to properly communicate with her. The mother identified that she was thinking more about maintaining her family for the children and for the children to have a father around than expecting some positive changes by the father if she signed the binding financial agreement.
The mother referred to the father refusing to return home and what she described as a “kind of cold violence” towards her with his unhappiness to force the execution of an agreement. Reference was made to refusing to undertake housework or care for the children with the statement, “I won’t help you until you sign the agreement. I will only help you once you sign the agreement. I don’t care what happens to you if you don’t.” Mr Yin submitted that the failure after execution to help with the housework and care for the children was a material change of circumstances that has occurred and as a result the mother has suffered hardship and will suffer hardship if the agreement is not set aside.
The Court accepts Mr Yin’s submissions and finds that there has been a material change of circumstances since the making of the agreement in section 90UM(1)(g) insofar as it could be said there was a binding financial agreement and the Court is satisfied that the mother will suffer hardship if the Court does not set aside the agreement. In that regard, the Court has taken into account the property in the balance sheet referred to above and the duration of the de facto relationship as well as the two children of the relationship that are primarily in the care of the mother and their relative ages, and that the mother would now be likely to obtain an order under section 90SM altering property interests above the 50 per cent split of the joint property identified in the financial agreement. Accordingly, the Court finds that the financial agreement should be set aside by reason of section 90UM(1)(g).
Mr Yin also advanced that the agreement was one in which the father had engaged in conduct that was in all the circumstances unconscionable. Mr Yin in that regard relied upon the mother’s evidence in relation to the threats and mother’s concern as to the safety for herself and her family. The conduct and threats of the father are ones that, on the face of the evidence, overwhelmed the mother to the point where she expressly said at the time of signing, “I have no choice.” and said, “There is no peace in our family and my children’s safety would be concerned.” Turning to the five steps identified in Thorne v Kennedy, supra, there was no opportunity for the mother to negotiate, the emotional circumstances include the threat not to help parent and the fear created by the father in the mother as to her safety and that of the children, there was no relevant time for reflection by the mother given her evidence and her expressed concerns were ignored, the de facto relationship was already longstanding being almost 12 years and the two children had been born and the father was not helping in the parenting, the financial position was similar but the father has property in Country J, the independent advice was not adequate and there was no opportunity for the mother to reflect on the same. On the mother’s evidence before the Court in all the circumstances the Court is satisfied, given the conduct engaged in by the respondent, that the purported financial agreement undated in 2017 was unconscionable and should be set aside under section s90UM(h) if otherwise binding.
Mr Yin also relied upon section 90UM, subsection (6), whereby if an agreement is set aside, the Court may make such order as it considers just and equitable in respect of the persons who are parties to the financial agreement. For the reasons already given, the Court finds there was no binding financial agreement and accordingly the Court has turned to consider whether it is an appropriate matter in the circumstances to make an order under section 90SM altering the de facto parties rights. For the reasons given below the Court would otherwise have made the orders pronounced under s90UM(6) as being just and equitable.
The Court finds that the de facto relationship was from 2005 until April 2021, accepting evidence of the mother, and further finds that the application was brought within the time limit under section 90SB and that the geographic requirement under section 90SD is also met. Accordingly, the Court made orders in relation to a declaration about the duration of the de facto relationship.
Then the Court turned to the orders sought by the mother in respect of the balance sheet that was put into evidence. Mr Yin identified that the Suburb G property and the Suburb E property are both in the name of the mother and it is only the Suburb C property that is in the name of the respondent. The mother indicated that she wished to retain the Suburb G property and the Suburb E property on which there remain existing mortgages. The mother indicated that she was not aware of the extent of the mortgage on the property at Suburb C. The Court was taken to the evidence that identified the mother having property in Country J worth $700,000. The Court was satisfied that it was just and equitable in the circumstances to make an alteration of property interests between the parties.
Mr Yin sought an under for sale of the Suburb C property and a split of the net proceeds 80/20. The Court is in a position where it does not know whether there is in fact a mortgage on that property. Assuming no mortgage an 80/20 split would give the mother $560,000 and the father $140,000 upon the sale of that property.
In addition to the property held by the father in Country J this would reflect the father retaining $850,000 from the real property and the mother retaining approximately $1.4 million given the Suburb G property and the Suburb E property, together with a further $560,000, totalling approximately $1.9 million. This would be approximately 30 per cent of the $2.7 million net property being received by the mother.
The mother, however, has further property in the nature of superannuation in the order of $160,000. The Court also has taken into account the non-disclosure by the father in respect of his NAB account, and any potential savings in the Country J Bank support a generous approach by the Court in ultimately determining what order is, in all the circumstances, just and equitable. The Court finds that the property of the parties is as identified in the above balance sheet and given the circumstances since separation with the mother having sole parental responsibility as well as meeting the financial needs for the children and the likely continuation of that into the future it is just an equitable to make an order altering the property interests of the parties.
The Court finds under section 90SM(4)(a) that the mother made the greater financial contributions and greater substantial contribution to the acquisition of the Suburb G, Suburb E and Suburb C properties. The Court finds that that financial contribution of the mother further added to the acquisition, conservation and improvement of said properties and the properties in Country J.
In relation to section 90SM(4)(b) the Court finds the mother provided substantial contribution as the primary child carer throughout the de facto relationship of the two children and after separation in April 2021 to date as the primary carer, and that the mother provided substantial contribution as a home maker, and as a parent, and that these contributions assisted in the acquisition and conservation and improvement of the property of the parties.
The Court further finds that the contribution by the mother as home maker and parent to the welfare of the family and the children of the de facto relationship substantially outweighs the contributions made by the father to the welfare of the family and the children. In relation to section 90SM(4)(d) the Court is satisfied the proposed orders do not have an adverse effect on the earning capacity of either party to the de facto relationship. In relation to section 90SM(4)(e) the Court has taken into account the matters in section 90SF(3).
In relation to s90SF(3)(a) the father is now 50 and the mother is 41 and the Court finds both are able to work. In relation to s90SF(3)(b) the property and resources of the parties are identified in the above balance sheet and the Court finds both can obtain gainful employment. The mother has been working almost full time throughout the relationship and the respondent has obtained work now and again at a lower salary. In relation to s90SF(3)(c) the mother has sole parental responsibility for the children and they are currently likely to live with her full time without the father taking the benefit of the parenting orders to advance an meaningful relationship with the children. In relation to s 90SF(3)(d) the mother has commitments to look after the two children and the proposed orders will enable her to support herself and the two children. In relation to s90SF(3(g) the proposed orders will provide a standard of living that in all the circumstances is reasonable. Section 90SF(3)(h), (i) and (j) have no application or are not relevant. In relation to s90SF(3)(k) the de facto relationship was for 16 years. In relation to s90SF(3)(l) the Court has taken into account the need to protect the mother in her current sole parenting role. In relation to s90SF(3)(m) the mother is living with the two children and the Court does not know the circumstances of the respondent.
In relation to s90SF(3)(n) the Court has taken into account the terms of the proposed orders in relation the property of the parties. In relation to s90SF(3)(o) and (p). the Court has taken into account the proposed declarations and orders on the parties. In relation to s90SF(3)(q) the Court has taken into account the evidence of monthly child support paid by the father in the sum of $38, albeit that it was orally submitted that the payments had ceased. The failure of the father to put on evidence as to his property and financial resources and failure to participate in these proceedings is a matter which the justice of the case requires be taken into account. For the reasons already given there is no binding financial agreement requiring consideration under s90SF(3)(s) as a result of the orders of this Court. In relation to s90SF(3)(t) there is no financial agreement binding on the parties.
In relation to section 90SM(4)(f) the Court has taken into account that there is some small amount of child maintenance being paid. In relation to section 90SM(4)(g) the court is satisfied that there is a nominal order for child support, as referred to above.
The Court has also taken into account the real probability that the mother will have to carry the full financial burden of the advancement of the two children in her care and they receive little, if any, child support from the respondent.
The Court is satisfied that in all the circumstances it is just and equitable and appropriate to make the orders pronounced under section 90SM.
I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 1 March 2024
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