Harrell & Lowe - [2024] FedCFamC2F 1182

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harrell & Lowe [2024] FedCFamC2F 1182

File number(s): BRC 13187 of 2022

Judgment of: JUDGE KEARNEY

Date of judgment: 2 September 2024

Catchwords: FAMILY LAW – Parenting and Property orders – 9-year-old subject child – where the father has been inconsistent with complying with spend time with orders – history of family violence – where the mother seeks sole parental responsibility and conditions subsequent should the father fail to spend time with child –– where the father seeks to jointly make decisions – where the father seeks to amend child’s name to include his last name – property adjustment orders – where a global approach is taken – where there is a stark financial disparity between the parties – where the mother seeks a property adjustment reflective of the impact of family violence and there being no prospect of the payment of child support – adjustment of 60% of property pool in favour of the mother

Legislation:

Evidence Act 1995 (Cth) s 128

Family Law Act 1975 (Cth) Parts VII and VIIIAB; ss 4AA; 60CC; 90RD; 90SB; 90SF(3); 90SM(3)(e), (4)(d), (e) & (f)

Cases cited:

AJO & GRO [2005] FamCA 195; (2005) 33 Fam LR 134; (2005) FLC ¶93-219

Benson & Drury [2020] FamCAFC 303

Best & Best [1993] FamCA 107; (1993) 16 Fam LR 937

Bevan & Bevan [2013] FamCAFC 116; (2013) 49 Fam LR 387

Hobson & Hobson [2020] FamCAFC 251; (2020) 61 Fam LR 557

In the Marriage of Robb and Robb [1994] FamCA 136

In the Marriage of Townsend [1994] FamCA 144 at 81,654; (1994) 18 Fam LR 505

In the Marriage of Weir & Weir (1992) 16 Fam LR 154

Jonah v White [2012] FamCAFC 200; (2012) 48 Fam LR 562

Keating & Keating [2019] FamCAFC 46; (2019) 59 Fam LR 158

Kennon & Kennon (1997) FLC ¶92-757; (1997) 22 Fam LR 1

Koch & Kest [2021] FamCA 408

Lotta & Lotta [2017] FamCA 50

Mahoub & Ferrante [2013] FamCA 905

Mallet v Mallet (1984) 156 CLR 605

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17; (1986) 10 Fam LR 819

Stanford & Stanford [2012] HCA 52; (2012) 247 CLR 108; (2012) 47 Fam LR 481

Watson & Ling [2013] FamCA 57 at [35]; (2013) 52 Fam LR 79

Zaruba & Zaruba [2017] FamCAFC 91

Division: Division 2 Family Law

Number of paragraphs: 166

Date of hearing: 15-16 July 2024

Place: Brisbane

Counsel for the Applicant: Mr Larsen

Solicitor for the Applicant: Rosen Lawyers

Counsel for the Respondent: Ms Fraser

Solicitor for the Respondent: Sambanis Family Law
ORDERS

BRC 13187 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HARRELL

Applicant

AND:
MS LOWE

Respondent

ORDER MADE BY:

JUDGE KEARNEY

DATE OF ORDER:

2 SEPTEMBER 2024

THE COURT DECLARES THAT:
I.Pursuant to s 90RD(1) of the Family Law Act 1975 (Cth) (‘the Act’):
(a)The applicant, MR HARRELL (‘the father’) and the respondent, MS LOWE (‘the mother’) were in a de facto relationship for more than two (2) years for the purposes of s 90SB(a),
(b)The de facto relationship ended in August 2021,
(c)The parties made substantial contributions to their property,
(d)There is a child of the relationship, and
(e)A failure to make an Order pursuant to s 90SM and/or a declaration pursuant to s 90SL would result in serious injustice to the parties.

II.Pursuant to s 90RD(1) of the Act and for the purposes of s 90SK:
(a)The father was ordinarily a resident in a participating jurisdiction (namely the State of Queensland) at the time when the application for orders under s 90SM was made, and
(b)Both parties were ordinarily residents of the State of Queensland during at least one-third of the de facto relationship.

III.The sum of $25,000 drawn down from a loan account secured by mortgage over title to the real property and improvements comprising Lot […] Survey Plan […] on title reference […], being the property known as B Street, Town C in the State of Queensland (‘B Street’) be deemed monies had and received by the father by way of premature distribution (‘the father’s addback’).

THE COURT ORDERS THAT:
PARENTING
Parental responsibility
1.The mother shall have sole decision-making responsibility for all major long-term issues about X born in 2015.
2.In the exercise of her sole decision-making responsibility in relation to X as set out in Order 1, the mother shall:
(a)Notify the father in writing at least fourteen (14) days prior to the making of a decision related to X’s education, health, name and/or living arrangements, and
(b)Invite the father to indicate his views in writing within seven (7) days of such notice being given to him, and
(c)Take the father’s views into account when making such a decision, and
(d)Notify the father of in writing of her decision within seven (7) days of making the decision.

Conditions subsequent should the father fail to spend time with X
3.If the father fails to spend time with X for a period of six months (or more) as is prescribed within Order 9.a. and 10 made by the Court on 15 July 2024 (‘the final consent orders’), THEN those orders will no longer have any force and effect and shall be discharged forthwith.
4.If on any two (2) occasions during the operation of these Orders, the father forfeits the school holiday time that X is otherwise due to spend with him in accordance with Order 10 of the final consent orders, THEN Order 10 will no longer have any force and effect and X shall only spend time with the father as prescribed within Order 9 of the final consent order.
5.In the event of Order 3 and/or 4 being triggered, any future time between the father and X shall be as agreed in writing between the parties.

Confirmation of final orders made 15 July 2024
6.Orders 1, 4 to 8 and 9 to 21 made on 15 July 2024 are confirmed and should be read in conjunction with Orders 1 to 5 above.

PROPERTY ADJUSTMENT
Restraint on the father
7.Until such time as the father complies with Order 9 or B Street is sold pursuant to these Orders, the father is restrained, and an injunction shall issue prohibiting him from taking any steps to sell, transfer, lease, mortgage or in any way encumber, partition, subdivide or otherwise deal with B Street without the mother’s written consent.
8.Until such time as the father complies with Order 9 or B Street is sold pursuant to these Orders, the father is mandated, and an injunction shall issue requiring him to make (and keep up-to-date) all payments for the mortgage, council rates, insurance premiums and utilities failing which, in the first instance such expenses shall be paid at settlement (as may be required) and/or reimbursed to any third party who makes those payments on his behalf PROVIDED THAT ultimately, any such payments shall be deducted from the father’s share of the sale proceeds.

Cash payment to the mother
9.By 4:00pm on Friday 11 October 2024, the father is to pay the mother $736,300 (as may be directed in writing by the mother).

Sale of B Street
By private treaty
10.If the mother does not receive payment in accordance with Order 9, THEN by Friday 25 October 2024, B Street shall be listed for sale by private treaty, with the parties jointly appointed trustees for that purpose.
11.To facilitate the listing for sale by way of private treaty of B Street, and unless otherwise agreed upon in writing by the parties:
(a)By 12 noon Tuesday 15 October 2024, the mother shall electronically provide the father with a panel of three proposed real estate agents and three proposed solicitor/conveyancer including their costs of engagement,
(b)By 12 noon Thursday 17 October 2024, the father shall electronically inform the mother of his preferred nominees FAILING WHICH the mother shall forthwith unilaterally nominate and appoint one of the agents and one of the solicitors/conveyancers from the panel who shall be now be described respectively as ‘the listing agent’ and ‘the conveyancer’,
(c)By Tuesday 22 October 2024, the list/reserve price for B Street shall be as agreed in writing between the parties (‘the list price’) FAILING WHICH the list price shall be as nominated by the listing agent.

12.To facilitate the private treaty sale of B Street -
(a)The parties shall co-operate in every way with the listing agent in relation to the marketing of B Street for sale and in this regard the father shall be solely responsible for communicating with the listing agent as the sole point of contact to always organise inspections of the property reasonably requested by the listing agent,
(b)The father shall ensure B Street is clean, neat and in good order at the time of inspection by any prospective buyer,
(c)Upon the parties accepting an offer to purchase B Street, the father (as registered proprietor) shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the listing agent or the conveyancer,
(d)The contract of sale shall provide for completion within 42 days after the date of the contract,
(e)Upon agreement being reached for the sale of B Street, the father shall cause to be repaired any damage to B Street caused by him after the date of the contract of sale, with such repairs to be rectified at the father’s cost prior to the settlement date (‘cost of repairs’) FAILING WHICH if those costs are paid from the sale proceeds or by a third party (including the mother), THEN such expenses shall be reimbursed to the payee from the father’s share of the sale proceeds, and
(f)Upon completion of the sale of B Street the proceeds of sale shall be paid as follows:
(i)to discharge any mortgage secured over the property,
(ii)to discharge any liabilities attached to the property (such as council rates, water utilities or cost of repairs),
(iii)in payment of the listing agent’s and/or the auctioneer’s commission and advertising or other expenses payable on the sale,
(iv)in payment of the conveyancer’s legal costs and outlays relating to the sale, and
(v)in payment of the balance in accordance with Order 17.

By auction
13.If B Street is not sold by private treaty on or before Tuesday 19 November 2024, THEN the parties are jointly appointed trustees for the sale and unless otherwise agreed in writing between the parties they shall do all acts and sign all documents as necessary to sell the property by public auction and on the following terms:
(a)By Friday 22 November 2024, the auctioneer shall be as agreed in writing between the parties (‘the auctioneer’), FAILING WHICH, the auctioneer shall be as nominated by the listing agent,
(b)By Friday 29 November 2024, the reserve price for B Street shall be as agreed in writing between the parties (‘the reserve price’) FAILING WHICH the reserve price shall be as nominated by the auctioneer,
(c)By Friday 13 December 2024, the auction shall take place unless otherwise agreed in writing by the parties.

14.To facilitate the sale of B Street by auction -
(a)The parties shall execute all documents requested by the auctioneer for the sale of B Street by auction,
(b)The parties shall equally pay to the auctioneer any sums requested for advertising or auction expenses,
(c)The parties shall give such instructions as are necessary to the conveyancer to prepare a contract of sale and provide it to the auctioneer prior to the auction no later than the date sought by the auctioneer,
(d)The parties shall co-operate in every way with the auctioneer in relation to the sale by auction and the father shall be solely responsible for communicating with the auctioneer as the sole point of contact to always organise inspections of the property reasonably requested by the auctioneer,
(e)The father shall ensure B Street is clean, neat and in good order at the time of any inspection and on the day of auction,
(f)The parties shall attend at the auction and negotiate with the highest bidder in the event of the reserve price not being reached,
(g)The sale price of B Street shall be any amount more than the reserve price, but should the reserve price not be reached, THEN the sale price of the property shall be such amount as is agreed between the parties or failing agreement, THEN the parties shall accept any offer received after the auction to buy the property at a price that is at least 95% of the reserve price,
(h)Upon agreement being reached for the sale of B Street Orders 12(c) to (f) shall apply.

15.Should B Street not be sold at auction pursuant to Order 13 or within 14 days after the date of the auction by further negotiation, THEN the parties shall cause a further auction of the property to be held within two (2) months after the date of the first auction and for that purpose the provisions of Order 14 shall apply.
16.Should B Street not sell at the second public auction, THEN there be further and subsequent public auctions until the property sells whereupon the reserve price for each further and subsequent auction shall reduce by 5% and otherwise the provisions of Order 14 shall apply.
17.Subject to Orders 8, 9 and 12(e) the remaining proceeds of the sale of B Street (after payments are made in accordance with Order 12(f)(i) to (iv) shall be held in a controlled monies or trust account operated by the conveyancer in the joint names of the parties (‘the controlled monies account’) and shall be disbursed in the following way, so as to achieve a 60:40 adjustment in favour of the mother:
(a)Payment to the mother (‘the mother’s share’) in accordance with their written direction and calculated by reference to the following formula:
(TM + MA + FA) x 60% = the mother’s share
Where
TM = trust monies held by the appointed conveyancer – the remaining proceeds of sale of B Street,
MA = the mother’s assets and superannuation totalling $23,898,
FA = the father’s assets and superannuation, less the encumbered B Street and including the father’s addback of $25,000 totalling $361,785,
PROVIDED THAT
(i)if the father fails to comply with Orders 8, 9 and/or 12(e) or costs were reasonably incurred because of his failure to comply with these Orders and the remaining proceeds of sale were reduced as a result and/or the mother separately incurred the expense or made the payment, THEN to reflect any such failure, the father’s share shall be correspondingly reduced and the mother’s share correspondingly increased.

(b)Payment of the remaining balance to the father (‘the father’s share’) in accordance with his written direction.

D Pty Ltd
18.The father shall indemnify the mother and keep the mother indemnified in respect of all liabilities in the father’s name or in the name of D Pty Ltd or any associated entities.

Miscellaneous
19.Pursuant to s 106A of the Act, in the event that a party neglects or refuses to sign any deed or instrument necessary to give effect to these orders within five (5) days of a written request to do so by the other party, then upon the filing of an Affidavit evidencing such neglect or refusal a Registrar of the Federal Circuit and Family Court of Australia (Division 2) at Brisbane or such other court officer appointed in their stead, is empowered to:
(a)Execute such deed or instrument in lieu of the defaulting party and do all acts and things necessary to give validity and operation to such deed or instrument; and
(b)Make order as it considered just as to the payment of costs and expenses of and incidental to the preparation of such deed or instrument and its execution.

20.Should there be a prospect of the father being the subject of an obligation to pay child support for X, the parties are permitted to provide a copy of these Orders, Declarations and Notations to the Child Support Registrar.
21.All outstanding applications are otherwise dismissed.

THE COURT FURTHER DECLARES THAT:
IV.Unless specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders, pursuant to s 90SL of the Act each party:
(a)Shall be solely entitled to the exclusion of the other, to all property (including choses-in-action) in the name or possession of such party as at the date of these orders and for that purpose bank accounts are deemed to be in the possession of the person named as account holder,
(b)Shall be solely liable for and shall indemnify the other against all debts attaching, encumbering, or relating to the property in their respective possession and any items of property to which that party is entitled pursuant to these orders and any debts in their respective sole names, and
(c)Forgoes any claim they may have to any superannuation benefits belonging to or earned by the other.

THE COURT NOTES THAT:
A.Pursuant to s 65DA(2) and s 62B of the Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
B.In exercising its discretion to award the mother 60% of the parties’ property interests, the Court had regard to the mother’s position that she would never apply for an administrative assessment of child support and that, consequently, the father would never have an obligation to pay child support.
C.Should a party file an application for costs that is ancillary to the determination of these proceedings, then at the time of filing such application, they are permitted to contemporaneously notify the chambers of Judge Kearney of this occurrence by email at […@...] in order to ensure that such application is listed for hearing before Judge Kearney.

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

A young girl wants to spend time with her father despite him being inconsistent in doing so. On a background of family violence, the parents are in dispute about how to ameliorate the child’s disappointment and how to divide the modest property they have amassed during their de facto relationship. The father also wants the girl’s name to change and for the parties to otherwise make joint decisions about the girl. What orders should I make to resolve all these controversies?
Unless a person's preference is known to the Court, gender-neutral language will be adopted.
These proceedings involve a parenting and financial dispute invoking Parts VII and VIIIAB of the Family Law Act 1975 (Cth) (‘the Act’) between the applicant, MR HARRELL (‘the father’) and the respondent, MS LOWE (‘the mother’).

The subject child is X born in 2015.
Where calculations have been conducted, at times I may have rounded up or down to the nearest AUD$100 and omitted references to cents. References to legislation shall be references to the Act unless otherwise specified.
At the start of the trial, the parties had reached agreement about a broad range of parenting orders to be made by the Court which reflected (in essence) the status quo being promoted so that X lived with the mother and spent time with the father on alternate weekends and half school holidays. Final parenting orders were made by consent and the outstanding parenting issues will be set out shortly.
The parties helpfully prepared a Joint List of Issues,[1] which, along with how the evidence fell and the parties’ closing submissions, meant that the Parenting List of Issues became -
·What would be the effect upon X should her surname be changed?
·What do I make of parental conflict and the parties’ differing parental attitudes?
·What insight has the father demonstrated about his failure to fully embrace the time he is currently able to spend with X?
[1] Marked as ‘MFI-1’ for ease of reference during the trial.
As for the property settlement dispute, there was no contest about the Court’s jurisdiction to entertain the parties’ respective property adjustment applications. Nonetheless because of other findings I needed to make, some declarations will be made about the circumstances of the de facto relationship.
Other than one proposed “addback” against the father’s interests, the balance sheet was agreed.[2] It was common ground that no procedural fairness had been afforded to the father’s relevant superannuation trustee including because no relief of that nature had ever been sought.[3]
[2] Exhibit ‘B’.
[3] Belatedly during the trial, the father’s counsel raised (for the first time) the prospect of the father seeking a superannuation splitting order. No formal order was provided to the Court and ultimately the father did not press for such relief, which if it had, would have raised a significant issue about procedural fairness – not only for the relevant superannuation trustee but also for the mother who had concluded her case and her cross-examination of the father.
Drawn from the same sources as referred to earlier, the main property adjustment issues in the case were:-
·Does the Court have jurisdiction to entertain the parties’ applications?
·Is my approach to be global, asset-by-asset or something else?
·What are the parties’ property and superannuation interests and as part of that process–
·Should $25,000 be notionally added-back?
·Why do the parties ask me to make a property adjustment order?
·What are the direct and indirect financial and non-financial contributions of the parties and how should the Court assess them particularly insofar as:
·Their initial contributions,
·Their contributions during the de facto relationship, and
·Their post-separation contributions?
·Are there any relevant future needs?
·What outcome will be just and equitable?
·Are there any relevant future needs?
·What outcome will be just and equitable?
With that background and in broad compass, the parties’ positions were diametrically opposed–
(a)The father wanted the parties to jointly make decisions about X, the mother wanted to be solely responsible.
(b)The father wanted X’s surname changed, the mother did not.
(c)The father wanted X to return to her former school, the mother did not.
(d)The mother wanted there to be a ‘guillotine’ of the time X spent with the father if the father became inconsistent in the exercise of such time, the father did not.
(e)The father wanted the parties’ property adjusted 65:35 in his favour, the mother wanted the opposite.
In summary I have decided to:
(a)make orders for the mother to have sole decision-making responsibility for X (meaning there will be no change to X’s surname unless the mother decides to do so and the mother will decide where X goes to school),
(b)make ‘condition subsequent’ orders to relieve X (and the mother) from unrealised expectations should the father’s compliance with orders become inconsistent once more,
(c)make a declaration that grounds the Court’s jurisdiction including that the parties’ de facto relationship endured for more than two (2) years ending on a final basis in August 2021,
(d)make a declaration that notionally adds back $25,000 to the father’s share of the property, and
(e)divide the adjusted property pool 60:40 in favour of the mother (using a ‘global’ approach), and
(f)make various orders and declarations to otherwise finalise the parties’ financial relationship: s 90ST.
I have read all the evidence relied upon in the proceedings and where necessary, I will make findings on credit because to do otherwise would not enable me to make the findings that the parties’ evidence demanded I make to do justice. Insofar as the parenting dispute is concerned, I have had regard to the relevant legislative provisions and have considered s 60CC, albeit I have chosen to only focus on those considerations which had a significant impact on my decision-making process.
Statements of facts as set out below should constitute findings of fact unless otherwise expressed.
PARENTING ISSUES
What would be the effect upon X should her surname be changed?
There was significant controversy about the circumstances that caused X’s birth certificate to be registered bearing the mother’s surname.[4]
[4] See for example the affidavit of Mr Harrell filed 17.06.2024 at ¶75 p.17 and the affidavit of Ms Lowe filed 17.06.2024 at ¶73 and the viva voce evidence of at least the mother. Future references to these two affidavits shall respectively be identified with the acronym MRH or MSL.
Taking a holistic view, the father appeared almost entirely focussed on improving the parties’ financial circumstances and dismissive of the contributions the mother brought to bear in those endeavours. I am satisfied that the father was an astute business operator, and he would have been concerned about how the recording of his name on X’s birth certificate might impact the financial benefit that the family must have been receiving from the mother’s fraudulent receipt of Commonwealth benefits (by not disclosing the status of the parties’ relationship).[5]
[5] Evidence of which is protected via a certificate pursuant to s 128 of the Evidence Act 1995 (Cth).
I am satisfied that the mother acceded to the father’s request not to include his name on the child’s birth certificate and that it is only in more recent times that the father has had a change of heart in this regard.[6]
[6] MRH¶15.
X is the half-sibling to three older siblings who all have a different surname to X and her mother. X is now nine (9) years of age and at school she is known by the surname ‘Lowe’.
There was no expert evidence on the topic.[7]
[7] Affidavit of Mr E filed 12.05.2023, annexure ‘ME1’. Future references to this annexure shall be identified with the acronym FR.
Given her lived experience to-date, I am satisfied that X would have to make a significant adjustment if her surname was changed.
What do I make of parental conflict and the parties’ differing parental attitudes?
The written and oral evidence of the parties confirmed the finding of the family report writer (‘the FRW’) that –
The parents will never be able to communicate in a way which would pass a benefit to the children.[8]
[8] FR¶143 and see also FR¶149 where the FRW opined that [a]ny contact between them is contraindicated.
Notwithstanding the father telling the Court that his past negative views of the mother are “going to change” there was no demonstrable evidence of this new approach.
Because of their own evidence, I can comfortably find that the parties despise each other as alleged perpetrators of family violence against each other and the manner in which each of them otherwise treated the other during the relationship (informed perhaps by their respective personality deficits).[9] I am satisfied that both parties have impairments in their judgment[10] and that the prospect of them being able to amicably communicate and reach consensus on major long-term issues about X are zero.
[9] See for example - MRH¶31, 32, 37, 46, 95-97, 132 and MSL¶-63, 66-72, 75-77, 79, 81-83, 87-92, 95-98, and 127.
[10] This finding is consistent with FR¶139.
In making this finding I need only remind myself of the two (2) most recent examples of this inability to co-parent, being that despite these proceedings being on foot for over a year, the parties have entrenched competing positions about X’s surname and her education.
What insight has the father demonstrated about his failure to fully embrace the time he is currently able to spend with X?
It was common ground that the regime of time spent between X and her father was regulated by interim parenting orders made on 31 May 2023 (‘the May 2023 orders’).
Relevantly, the May 2023 orders prescribed that –
(a)X spend term-time with the father each alternate weekend from 5.00pm Friday to 4.00pm Sunday,
(b)X spend time with the father on Christmas Day 2023 from 12:00noon to 12:00noon Boxing Day and from 12:00noon New Year’s Eve until 12:00noon New Year’s Day, and
(c)Such time was facilitated by a changeover at McDonald’s Suburb F with provisions including that the father give notice to the mother if there was going to be a delay in the timing of the changeover.
In cross-examination, the father agreed that there had been a hiatus in X’s time with him of some five (5) or six (6) months and that he did not see X on Christmas Day. Despite having the opportunity to elaborate on this hiatus in his trial affidavit, I could not find any evidence about why this had occurred.
In contrast, the mother’s affidavit is littered with examples of the father inexplicably running late (and not giving notice as required) or not turning up at all.
Significantly, the mother’s evidence (which I accept, because it was unchallenged) was that –
(a)X did not spend Christmas Day nor New Year’s Day with the father because the father failed to comply with the May 2023 Orders,[11]
(b)For the month of January 2024 X did not spend time with the father,[12]
(c)At the instigation of the mother, X spent Saturday 3 February 2024 and Sunday 4 February 2024 with the father, having not spent time with the father since the 2023 Father’s Day weekend,[13]
(d)On the weekends commencing Friday 16 February 2024 and Friday 1 March 2024, X did not spend time with the father,[14]
(e)Between the weekends commencing Friday 12 April 2024 and Friday 7 June 2024 X did not spend time with the father.[15]
[11] MSL¶211.
[12] MSL¶214 & 219.
[13] MSL¶225 & 226.
[14] MSL¶229 & 231.
[15] MSL¶241, 244, 248, 253 & 256.
On Christmas Day 2023, the mother informed the father via text message of X feeling hurt by his rejection of her. It was uncontested that X was aware that she was going to see her father on Christmas Day (and for that following week) and that she waited with her mother at the McDonalds Restaurant in anticipation of his arrival which never came.[16]
[16] MSL¶211.
CONCLUSION – PARENTING RELIEF
X’s surname
In Mahoub & Ferrante[17] Forrest J observed that there were several non-exclusive matters that should be considered when a child’s name is in dispute and in summary these are –
(a)The avoidance of unnecessary confusion to the child’s identity,
(b)The short and long-term effects of any change,
(c)The short and long-term advantages of leaving the child’s name unchanged,
(d)The present and ongoing involvement of the parents in the life of the child, and
(e)The child’s current name registration and any earlier agreement that is evidenced.
[17] [2013] FamCA 905.
Having regard to the evidence, I am satisfied that I should not change X’s surname to ‘Lowe‑Harrell’ because:
(a)X has entered primary school with the surname ‘Lowe’ and, it appears to me to be uncontroversial that, as with all school children, her experience would be that her first name and surname are regularly cited either orally in public or within documents such as school reports and that this is an important feature of her identity,
(b)For many years, X has been known as ‘X Lowe’ either because it suited the father and/or he acquiesced to that arrangement enduring, at least for the duration of the parties’ relationship,
(c)There was insufficient evidence to support any significant advantage to X’s surname changing, because it is self-evident from the final parenting orders made in this proceeding (supported by the FRW[18]), that X has a secure relationship with the father that is not necessarily going to be improved because her surname is changed to reflect the father’s parentage of her. Her point of reference to her paternal origin is already known to her and will not necessarily be enhanced by a surname change – she knows who her father is and that she is inextricably linked to him because of that biological connection,
(d)Changing X’s surname to include the father’s surname may cause her to feel confused and hurt if, for example, despite her having to adjust to this significant change, her namesake continues to be (from her perspective) diffident to something significant for her by failing to regularly spend= time with her.
[18] FR¶108, 148 & third recommendation p.29.
In addition to the above reasons, the mother’s surname is ‘Lowe’. The mother will remain the primary carer for X and given the benefit of ‘consistency’ and the avoidance of parental conflict that is embedded within the reasoning of the FRW[19], I am satisfied that the retention of ‘Lowe’ as X’s surname will best support X’s needs and avoid potential conflict in the future.
[19] FR¶137 & 147.
This is because, given the impairments of judgment opined by the FRW[20], if I were to mandate that the mother adopt a pathway that she is opposed to, and which would likely lead to the father articulating as a ‘win’ - X is likely to be exposed to more conflict in circumstances where she has already suffered trauma from past exposure.[21]
Allocation of parental responsibility (and consequently X’s schooling)
[20] FR¶139.
[21] FR¶140, 141 and s 60CC(2)(c).
X is going to live with the mother and spend alternate weekends and half school holidays with the father.
There was no persuasive evidence upon which I could conclude that the mother has deficits in her exercise of parental responsibility which would cause me alarm. I am satisfied that the mother does have the capacity to provide for X’s needs.[22]
[22] Section 60CC(2)(d).
The father has no tested experience in exercising parental responsibility for reasons which I am satisfied have more to do with the father’s decision to be the primary breadwinner than anything else. In his words during cross-examination, he was “involved on the edges” when it came to decisions and/or activities about the children.
In addition, one concern I had about the father’s capacity to demonstrate insight and prioritise X’s needs over his own was about where X should attend school. Despite, X reportedly saying that she has friends at school and there being no evidence from the FRW that would suggest a change in her enrolment,[23]the father presses for a change. The evidence he brings in support includes that –
(a)the mother unilaterally changed X’s school to make it harder for him to secure ‘equal time’ with X[24],
(b)X was doing extremely well at her old school[25],
(c)X has told him that she is struggling to make friends and is getting bullied.[26]
[23] FR¶105.
[24] MRH¶9.
[25] MRH¶109.
[26] MRH¶109.
In cross-examination of the father, I heard that X’s current school is about 15-20 kilometres from the Region H area (where X lives with the mother) and that G School (the father’s preferred school) is about 50 kilometres away.
Despite it being put to the father that his proposal would see X travelling over twice the distance for most of each fortnight in each school term, the father continued to press his relief.
The lack of insight displayed by the father in not at least being able to contemplate what the impact of his proposal might be on X’s developmental and emotional needs in terms of loss of convenience (travelling time) and adjustment to her new peer network (removal from her friends) was profound. I find that the father’s capacity to exercise parental responsibility is impaired.[27]
[27] Section 60CC(2)(d).
The sad reality is that the parents cannot agree on much. To invite them to formally have to confer on decisions about X would just expose X to more parental conflict, which is inevitable given that X will have to transition to secondary education and the parents’ history suggests that unless I make one person responsible, the parties will not be able to agree, raising the prospect of conflict and future litigation, neither of which would meet X’s needs.[28]
[28] Section 60CC(2)(c).
Given her primary care of X and her parental capacity being sound, I am satisfied that the mother is best placed to exercise parental responsibility for her daughter.
It flows from this decision that any change of school for X will be the mother’s sole domain albeit, I will accede to the mother’s proposal for the father to be given the opportunity to provide feedback.[29]
[29] Exhibit ‘M1’.
I do so with some hesitation because of the strong opinion of the FRW against parental contact, but I have weighed the evidence and findings, against the demonstrated perseverance of the mother to continue reaching out to the father in a polite manner about him spending time with X, despite any response that may (or may not) have been forthcoming. It seems to me the messaging demonstrates some improvement, at least on her part, in being able to regulate her emotions in the face of diffidence.
Conditions subsequent
In the context of what has come before, and the making of final parenting orders that are meant to endure for another 10 years or so - the mother seeks orders to ensure that if there is a prolonged period of no time due to the father’s actions, then those applicable orders are discharged. In other words, a condition subsequent. If certain situations occur then instead, the mother proposes that any time between father and daughter would be as agreed between the parties.[30]
[30] Exhibit ‘M1’ and the preamble to final parenting order 9 made 15 July 2024.
I have made findings about the lack of time spent between the father and X despite the existence of the May 2023 Orders and/or an informal agreement over Christmas 2023.
The father demonstrated no insight into how his actions have inconvenienced the mother and hurt his daughter’s feelings. Given the family report interviews pre-dated the most recent series of ‘breaks’ in time spent, the current damage (if any) to the father-daughter relationship is not clear, albeit the parties must be confident that moving forward, the regime of time they advocated for will be implemented and will be in their daughter’s best interests.
Notwithstanding these circumstances, I am satisfied that the father’s actions have not promoted X’s emotional safety because –
(a)on Christmas Day waiting at McDonalds, it would be entirely understandable that X would feel upset and rejected by her father, and
(b)the inconsistent regime of time experienced by her in recent times would give rise to similar feelings that she is not important to the father.
I regret making those findings but in the absence of any plausible explanation for the father’s behaviour I feel impelled to do so.
If the pattern of inconsistency in time between X and the father occurs into the future, it flows from the findings just made, that X’s emotional safety will be imperilled and the risk of parental conflict (and X’s exposure to it as it did when she waited with her mother on Christmas Day) will be elevated.

Depending on the circumstances, such as an extended delay of up to six (6) months or more, and absent any therapeutic intervention, I am satisfied that there is a significant risk of the father/daughter relationship breaking down entirely.
To avoid those sorts of consequences, I am satisfied that the regime of conditions subsequent as sought by the mother are justified as promoting the emotional safety of X and reduction of her exposure to potential future parental conflict.
It simply means that X won’t have her expectations dashed but rather, there will be some flexibility so that, as the mother has done in the past, the mother (if not the father) has the option to reach out to see what time would work given each protagonists’ circumstances at that time.
For all these reasons I am satisfied that the Orders I make are in the best interests of X.
Turning then to the property dispute.
PROPERTY ADJUSTMENT ISSUES
Does the Court have jurisdiction to entertain the parties’ applications?
Although there was some inconsistency in both parties’ written and oral evidence about when the de facto relationship commenced, I am satisfied that ultimately the parties agreed that sometime in 2012 they were in a relationship as a couple living together on a genuine domestic basis.[31] There was also consensus about the de facto relationship ending in August 2021, meaning their de facto relationship endured for nine (9) years or so. During the de facto relationship it is unchallenged that:-
(a)The mother brought to the de facto relationship her three children, J, K and L who were all under 18 at the time.
(b)The parties’ child X was born in 2015,
(c)During the de facto relationship the parties made varying financial and non-financial contributions towards the acquisition, conservation, or improvement of the property in which either of the parties had an interest,
(d)The parties’ relationship ended in August 2021,
(e)The father continues to live in a property purchased during the de facto relationship, located at B Street, Suburb C in the state of Queensland (‘B Street’),
(f)In October 2022, the father commenced these proceedings and at the time he was (and remains) a resident of Queensland.
[31] Mother’s evidence under cross-examination and despite her clarifying oral evidence in chief, and MRH¶4.
My task is to make an evaluative factual decision as to when the de facto relationship started and broke down, or in other words to determine a jurisdictional fact (Jonah v White [2012] FamCAFC 200; (2012) 48 Fam LR 562 at [32]).
Section 4AA sets out the meaning of a de facto relationship. I am satisfied that the parties were in a relationship as a couple living together on a genuine domestic basis such that there was a de facto relationship between them from 2012 until August 2021. This is because during this period, the parties considered themselves to be in a committed relationship, with the mother moving into a rental property at Town M with her children to be geographically closer to the father, and the parties sharing or enjoying the benefit of financial dependence or interdependence: ss 4AA, 90RD and 90SB.
Further and based on the largely unchallenged evidence of both parties, I am satisfied that the circumstances of both the de facto relationship and of the father (at the time he initiated these proceedings) satisfy the geographical conditions identified within s 90SK.
Consequently, I intend to make declarations to the effect that the Court has jurisdiction upon which to proceed to entertain the parties’ property adjustment application: ss 90RD & 90SK.
Is my approach to be global, asset-by-asset or something else?
There were no submissions on the approach I should adopt. Subject to the controversy about a proposed addback, the agreed joint balance sheet consolidated all items of assets, liabilities and superannuation interests with no delineation of property into separate “pools” (so to speak). For these reasons, I am satisfied that I should adopt a “global” approach to the parties’ interests: see Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17; (1986) 10 Fam LR 819 at 831 (‘Norbis’).
I now turn to the more controversial issues foreshadowed earlier.
What are the parties’ property and superannuation interests?
Because the parties invite me to make a property adjustment order (s 90SM), it is important that I understand what the parties are “worth”.
With that premise in mind, the High Court in Stanford & Stanford [2012] HCA 52; (2012) 247 CLR 108; (2012) 47 Fam LR 481, (‘Stanford’) at [35], said that s 79(2) provides that the Court shall not make an order altering parties’ interests to matrimonial property unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. At [37] the High Court observed that:
First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of section 79(1)(a) itself, which refers to “altering” the interests of the parties to the marriage in the property … The question posed by section 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
Although Stanford related to a married couple, the principles apply equally to applications brought by de facto couples pursuant to Part VIIIAB of the Act (see for example, Lotta & Lotta [2017] FamCA 50 at [281] – [290]).
So, having regard to the provisions of Part VIIIAB, what are the existing property interests of the parties, including their assets, liabilities, superannuation, and financial resources – in other words what does the balance sheet consist of?
I use the phrase, ‘the balance sheet’ colloquially because (in reality) I break it down into two (2) tables or a ‘his’ and ‘hers’ (so to speak) and then I calculate a short-form version which reflects the relevant totals drawn from the two (2) tables.
With the above in mind, the father’s property interests have been reproduced with the asterisked item remaining in dispute, with my reasoning following:
Table 1 – schedule of the father’s property interests

Description

Value ($)

Total ($)

Assets

B Street

1,250,000

Bank accounts

6,128

D Pty Ltd

218,119

Motor Vehicles

33,000

Total assets

1,507,247

Liabilities

Mortgage secured over B Street

(368,570)

Total liabilities

(368,570)

Addbacks

Drawdown on mortgage secured over B Street

Cash advance by father to mother on 11.08.2021

25,000*

Total addbacks

25,000

Superannuation

Super Fund 1

79,538

Total superannuation

79,538

Nett property

$1,243,215

Drawn from the same sources, the mother’s property interests have been reproduced:
Table 2 – schedule of the mother’s property interests

Description

Value ($)

Total ($)

Assets

Bank account and shareholdings

6,000

Vehicles

5,300

Total assets

11,300

Liabilities

Credit card

(4,020)

Total liabilities

(4,020)

Superannuation

Super Fund 2

16,618

Total superannuation

16,618

Nett property

$23,898

Turning now to the disputed item.
How do I treat the $25,000 drawn down by the father?
It is uncontroversial that on 23 January 2023, an order was made by consent restraining the father from further encumbering or attempting to further encumber the property situated at B Street, Town C (the former matrimonial home) (‘the injunction’). The father was legally represented at the time and despite the misnomer in the street address, the subject property of the Order is one and the same as B Street.
Earlier this year, the father withdrew a total of $25,000 from the mortgage which he had re‑financed over B Street.[32] There was no specific disclosure made by the father about these transactions and under cross-examination the father claimed ignorance. The highest the father’s evidence got was to acknowledge a re-finance due to interest rate rises and also to allow for sufficient monies to pay to the Respondent a property settlement.[33]
[32] Exhibit ‘M4’ transactions dated 16.05.2024, 01.05.2024 and 29.02.2024.
[33] MRH¶18 p.40.
The mother invites me to find that the father’s three (3) drawdowns upon the B Street mortgage totalling $25,000 should be added back as being a premature distribution of property that would otherwise be available at trial (see AJO & GRO [2005] FamCA 195; (2005) 33 Fam LR 134; (2005) FLC ¶93-219 (‘AJO & GRO) and In the Marriage of Townsend [1994] FamCA 144 at 81,654; (1994) 18 Fam LR 505).
It was uncontroversial that the three (3) transactions between 29 February 2024 and 16 May 2024[34] were inconsistent with the injunction. At the time those Orders were made, as now, and compared to the father, the mother has limited access to liquid assets. It is perhaps no wonder that the parties agreed to protect the most significant asset of the de facto relationship so that it could be properly adjusted at the requisite time. The financial disparity between the parties was (and is) stark.
[34] Exhibit ‘M4’ – N Company transaction list.
The evidence (or lack thereof), permits me to find that –
(a)The father has acted inconsistently with the injunction, and
(b)The father has had the benefit of $25,000, to the detriment of the available equity held within B Street.
Having reflected on the circumstances of the parties, I have exercised my discretion to find that in the circumstances of this case, it would be an affront to justice and equity if I did not addback $25,000 as being a premature distribution (see AJO & GRO and Watson & Ling [2013] FamCA 57 at [35]; (2013) 52 Fam LR 79).
Relying on the information set out in the above tables, the property pool consists of:-
·Nett combined non-superannuation property
(father’s interest $1,163,677 + mother’s interest $7,280)     $1,170,957
·Superannuation in the father’s name   $79,538
·Superannuation in the mother’s name  $16,618
·TOTAL PROPERTY POOL  $1,267,113
Why do the parties ask me to make a property adjustment order?
The parties agree that their proprietary interests need to be adjusted.
The Court may rely on the factors set out within s 90SM(4) to inform its inquiry about the justice and equity of making property adjustment orders pursuant to s 90SM(3) (see Bevan & Bevan [2013] FamCAFC 116; (2013) 49 Fam LR 387 (‘Bevan’) at [83] – [89], [163], [169], [171]-[172]).
The parties’ circumstances include that they no longer live together, the father holds most of the assets and superannuation and there has not been a common use of their collective property interests for years.
The undertakings and assumptions that governed the use of their property ended with the parties’ separation in August 2021.
I find that it is just and equitable that an order be made to adjust the parties’ interests in their property (see Stanford at [35] and Bevan).
What are the direct and indirect financial and non-financial contributions of the parties?
Initially
At the time the de facto relationship commenced, and based on the evidence before me, I am persuaded that the father had interests in property including the following:
(a)An unquantified interest in D Pty Ltd,
(b)$7,000 in cash used to paydown the mortgage over O Street,
(c)An unquantified interest in Motor Vehicle 1, and
(d)Livestock worth between $25,000 and approximately $30,000.
At the time the de facto relationship commenced, and based on the evidence before me, I am persuaded that the mother had interests in property including:
(a)An unquantified interest in O Street (‘O Street’) secured by a mortgage,
(b)Motor Vehicle 2 worth between $7,000 and $10,000,
(c)Motor Vehicle 3 worth between $5,000 and $10,000,
(d)An unquantified interest in Motor Vehicle 4 worth about $8,000,
(e)An unquantified interest in furniture and household goods, and
(f)An unrealised and unquantified interest in a superannuation account in the name of her deceased husband.
At the time of the de facto relationship, the mother was in receipt of Commonwealth benefits and the father was a self-employed tradesman.
During
Soon after the de facto relationship commenced, the mother had to sell various assets because she could not afford to sustain various debts. To her credit, and against her interests, the mother said that the father had contributed some cash towards payments or liabilities associated with O Street as well as providing labour. The mother denied the sum amounted to $25,000 (as asserted by the father) and said that whatever he had paid, she had offered to pay back but that the father had refused. Clearly there is a controversy there but the most I can find is that the parties were co-mingling their finances by this time.
The mother’s evidence was that when O Street was sold, she received between $1,500 and $1,700. The mother also had to sell Motor Vehicle 4 for about $8,500 and I prefer her evidence because she was the owner of the vehicle and would have had more intimate knowledge of the transaction and because her written evidence was not the subject of challenge during cross‑examination.
Within about two (2) years of the parties commencing their de facto relationship, they had saved $50,000 for the purpose of buying their ‘forever home’ with the mother providing unchallenged evidence about how she made up her half-share[35]. It was uncontentious that the mother’s capacity to secure finance was limited if not non-existent and I accept that it was only through the father’s credentials that the purchase of B Street could be financed in his sole name.
[35] MSL¶32.
The mother was employed by D Pty Ltd and had moved her family to a rental property closer to the father’s residence.
There is no doubt about the father’s commitment to providing a solid financial base upon which to support the mother, his stepchildren and his daughter. He worked hard and despite some inconsistencies (orally he said he worked 5 1/2 days per week) whereas elsewhere[36] he deposed to working more than that - I can reasonably infer that the father often worked six (6) days per week and usually for long hours. He was the main breadwinner and any paid employment by the mother was insignificant as compared to the father.
[36] FR¶19 and for example in MRH¶34 & 35 p.7 (where he describes starting work early, working a long day and returning home late from work) and then again at MRH¶24 p.10 (where he says he worked 7 days per week) and MRH¶47 p.13 (where he describes working 14 hours a day).
I do not accept the overwhelmingly critical account that the father gives about the mother’s role within the operation of D Pty Ltd. His evidence about her contributions is infected by his antipathy towards the mother, which is demonstrated by his lack of acknowledgment of the significant role she must have played given his long absences from the home due to his work commitments. This antipathy was similarly on display in his oral evidence and as a result, there is little credit that I can give to his self-serving descriptions about what he did versus what the mother must have done in his absence.
Even though the father refused to give the mother much (if any) credit for her role as homemaker and parent, I am satisfied that the mother made a significant contribution to the welfare of the family as both homemaker and parent.[37]
[37] Section 79(4)(c).
The mother gave evidence of the works she did to conserve and improve B Street, some of which was uncontested. When the mother’s evidence was tested, she presented as an honest historian and I accept her recollections over those contended for by the father, which were generally infected by his contempt for almost all the skills that the mother offered towards their de facto relationship.
Given his skills, the father would have made significantly more contributions towards the construction of various buildings, earthworks and landscaping that went into building the outbuildings, home and other improvements at B Street. The counterbalance to those efforts made personally by him (and not others on his behalf) was that the father’s capacity to earn an income from his personal exertions would have been diverted.
Family violence
Using a broad-brush approach, from the mother’s perspective, she asked the Court to reflect on any differential of property adjustment through a consideration of her contributions being made more arduous because of the family violence she endured.[38]
[38] Exhibit ‘M2’ Outline of Case Document p.7 ‘Future needs’ adjustment’.
The father denied the circumstances warranted such an adjustment.[39] Insofar as the father’s oral evidence was concerned, on day one (1) of the trial, various allegations recorded within the family report were put to him and in the main he accepted them as accurate. On day two (2), his oral responses to similar allegations arising from the mother’s trial affidavit were denied and these inconsistencies were the subject of some consternation from the mother’s counsel. On day two (2), I observed the father to be far more reticent, if not outright defensive and I formed the view that his evidence was not reliable because it was (in parts) inconsistent with previous admissions made less than 24 hours earlier.
[39] Exhibit ‘F1’ Outline of Case Document p.7 ‘Future needs’ adjustment’.
From his presentation between day one (1) and day two (2), I am satisfied that the father’s later evidence was a belated attempt to minimise the impact and effect that he anticipated his earlier admissions would have on his own interests in the case (enabled because he had overnight to reflect on the way day one (1) had progressed).
At this point, it is noteworthy that the FRW was not challenged about their observation that on the issue of family violence, the father exuded a lack of remorse for using highly insulting language and dire threats, these conceded glibly and casually.[40]The manner of his presentation on day one (1) was consistent with these observations by the FRW.
[40] FR¶119.
Conversely what little challenge there was to the mother’s evidence[41] served only to reinforce the veracity of the mother’s lived experience. That is because, when asked why she stayed to endure the father’s behaviour, she simply replied, in a softly spoken voice “I loved him.” The mother’s presentation, demeanour and response were consistent with her own personal history of trauma and was entirely credible.
[41] In this instance about MSL¶47.
Consistent with various recordings of statements within the family report and (to a more limited degree) the opinion drawn by the FRW, the mother said, and I accept, that when the mother did physically push the father, it was in defence of her own safety. This finding is in part based on the mother’s evidence under what cross-examination there was about the acts perpetrated.
Whilst I accept that the de facto relationship was volatile, that is no excuse or justification for the perpetration of family violence by the father.
The mother’s allegations as to her exposure to family violence are both specific and generalised. They include medical records, photographs of injuries to her body and an x-ray of an injury.[42]
[42] Exhibits ‘M5’& ‘M6’.
The children who were interviewed are also recorded as describing acts of family violence perpetrated either on a child or upon the mother[43]. The mother was present when these events happened in front of a child/children and must have caused her great distress in not being able to protect them.[44]
[43] FR¶96 & 107.
[44] MSL¶76 & 90.
There is a longstanding pathway for consideration of such matters (see for example, Kennon & Kennon (1997) FLC ¶92-757; (1997) 22 Fam LR 1 and Keating & Keating [2019] FamCAFC 46; (2019) 59 Fam LR 158 (‘Keating’)). The decision in Keating emphasised that the imposition of family violence upon a party may lead to contributions being significantly more arduous and causing a discernible impact on the parties’ contributions.[45]
[45] Keating at [35]-[36].

The assessment of such an impact should not be undertaken in a “compartmentalised manner”.[46] As the Full Court said in Benson & Drury [2020] FamCAFC 303 at [35]; (2020) 62 Fam LR 1:
The central question raised by this appeal is how a judge takes into account the contributions of one party, found to have been made significantly more arduous by the conduct of the other, when assessing contributions under ss79(4)(a)-(c) or ss 90SM(4)(a)-(c) of the Act. The answer is the primary judge must take a holistic approach. The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent. 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 (citations omitted).
(my emphasis)
[46] See for example, Koch & Kest [2021] FamCA 408 at [26].
I cannot address this issue more eruditely than Gill J in Koch & Kest [2021] FamCA 408, so I adopt his reasoning as set out below:
27.It is necessary, in support of the contention that the contributions were rendered more arduous, to establish the incidence and effect of family violence and, as was said in Keating at [39], “an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make the relevant contributions”.
28.As to the nexus, in Benson & Drury the Full Court said at [49]:
[I]t should now be clear that the required nexus between proven family violence and the significant adverse effect upon the contributions of the victim is capable of being inferred from the lay evidence of the parties...
29.The court is then required to examine the matters set out at s 90SF(3) as to whether those matters point to an adjustment of the property.
30.Finally, the court is again to examine whether the result arrived at constitutes a just and equitable settlement of the property.
(my emphasis)
The mother contended that due to her exposure to family violence, her contributions were made more arduous, and she should be assessed as being entitled to a further positive adjustment.
The effects upon the mother’s contributions were profound - as a homemaker, mother and employee of D Pty Ltd. The mother deposes to her struggling to cope because of the father’s treatment including his lack of respect for her.[47] The mother endured ongoing disdain and contempt for her efforts to assist in the administration/operation of D Pty Ltd and her works around B Street[48] and sometimes this occurred in the presence of the children, causing degradation and hurt for the mother[49].
[47] MSL¶260.
[48] MSL¶47, 51, 63.
[49] MSL¶63.
The father’s coercion and control extended to the mother being given ultimatums about the relationship[50] that meant she was “shown the door” (despite the father being in the stronger financial position to secure alternate accommodation and the mother being primary carer to all her biological children including X).
[50] MSL¶56.
Because of the lay evidence (a lot of which was unchallenged), it is reasonable for me to infer that the father’s behaviour would have heightened the mother’s vulnerability to coercion because the mother would have felt immense pressure to endure his behaviours out of a fear of being homeless and worse still, the real prospect of having to leave the children with the father until she could find somewhere for them all to stay.
I am satisfied that the evidence and/or the reasonable inferences that I can draw from the evidence allow me to find that the father perpetrated various acts of family violence including:
(a)Causing the mother fear by having to witness her son being held up by the neck,
(b)Causing the mother fear at the risk of X being hurt or exposed to family violence because X had to intervene between her parents to stop the father from hurting the mother,
(c)Causing the mother fear because of an injury during an argument between them,
(d)Using threats about her living arrangements to coerce the mother to endure the relationship despite feelings of shame, degradation and emotional hurt due to enduring repeated verbal derogatory taunts and threats of physical injury (some of which were perpetrated in the presence of a child/children and were about not only the mother’s parenting but her capacity as an employee of D Pty Ltd);
(e)Causing the mother fear through witnessing (and incidentally allowing a child(ren) to witness) animals being physically tortured or harmed either because they were rodents and/or pets behaving badly.
Finally, I am satisfied that the mother’s exposure to the perpetration of family violence by the father clearly made it significantly more arduous for her to contribute in all her roles including, but not limited to, her being primary carer, homemaker and employee of D Pty Ltd as well as her non-financial contributions towards the improvement and/or maintenance of B Street.
Post-separation
There is also no doubt that post-separation the parties have largely continued making similar contributions as they did during the relationship, although the father no longer had to support and/or provide care for his former stepchildren. However, even when separated, the father could not help himself and chose to cause a scene at the mother’s workplace (and the children’s school) which was aimed at causing embarrassment to her in a way aimed to coerce and/or control personal decisions she made about her personal relationships and employment.[51]
What are the ‘future needs’ factors?
[51] FR¶21-23 & MSL¶127.
What access do the parties have to income, property and financial resources?
The father is a qualified, competent and successful tradesman and business operator. That much is clear from both parties’ recorded observations of D Pty Ltd and the hard work undertaken by the father which in part (at least) must be reflected in the agreed value attributed to D Pty Ltd of over $218,000. At present the father’s recorded income is more than $1,000 per week[52]. It was an agreed position that the father would retain D Pty Ltd (his source of income).
[52] Financial statement of Mr Harrell filed 17.06.2024 at item 9. In future, this document will be described as ‘FS-MRH’ with items specified.
It was common ground that the mother’s capacity to earn an income is limited (as compared to the father’s), with that view informed by the mother’s ad-hoc employment during and after the relationship concluded and her lack of any current formal qualification that would otherwise enhance her employment opportunities.
Just over a year ago, the mother was injured in a motor vehicle accident.[53] The mother went into some detail about the impacts of the accident injuries and how much more difficult it was for her to return to the workforce (including completion of practical work for her study as an allied health worker).[54]
[53] MSL¶5.
[54] MSL¶327-347.
During cross-examination the mother revealed that at an appointment (post-dating her trial affidavit being filed), the mother’s surgeon had suggested she change her employment outlook to work in an administrative role because the surgeon was not confident her body could manage the physical requirements of an allied health position. I accept that the weight I can give to this evidence is limited given how late it came out and the inability for any substantiating records to be obtained, but nonetheless it is clear that to improve the mother’s capacity to earn income she is reliant on obtaining some form of qualification.
Although the subject of cross-examination, there was no persuasive evidence about the mother’s likely receipt of benefits arising from her injuries, other than what she currently receives via the compulsory third party (‘CTP’) insurance program.[55] Presently, the mother describes herself as a student and her income consists of Commonwealth benefits and those CTP benefits. [56] It is common ground that the mother will receive cash from these proceedings (which could potentially earn her some interest on investment) as opposed to any current and enduring income-generating asset like D Pty Ltd.
[55] MSL¶347.
[56] Financial statement of Ms Lowe filed 17.06.2024 at items 3, 12 & 15.
The balance sheet referred to earlier, made no mention of this issue rising to the status of a ‘financial resource’ and/or a chose in action capable of having a proprietary interest. This approach would seem to be consistent with a line of authority that suggests that a right of action to recover damages for negligence resulting in personal injury is not capable of assignment and such a bare right is purely personal which cannot be assigned and is not property for the purposes of the Act.[57]
[57] See for example, Best & Best [1993] FamCA 107 (Fogarty, Lindenmayer and McGovern JJ) at [67] & [68]; (1993) 16 Fam LR 937.
Any income-tested Commonwealth benefit is to be disregarded,[58] and I take judicial notice that the mother's receipt of family tax benefit part A and part B is likely to fall within that category.
[58] The Act s75(3).
In summary, the father’s income appears secure, whereas the mother’s is limited either because of her lack of qualifications and/or her ongoing rehabilitation and recovery efforts sustained from an accident neither related to the de facto relationship nor of her own making.
What is the parties’ health like?
The mother’s unchallenged evidence was that not only does she suffer from the effects of the motor vehicle accident, but also depression and other chronic issues.[59] The father says that post‑separation he found medication consistent with treating mental illness.[60]The father appears to contend that the mother’s mental health issues have been longstanding.[61]
[59] MSL¶352.a.
[60] MSL¶32.
[61] MSL¶97&140.
The father is seven (7) years younger than the mother[62] and in the absence of any other submissions about his personal circumstances[63], I am satisfied that moving forward, he is likely to have better health prospects than the mother.
[62] MSL¶30.
[63] Exhibit ‘F1’, Outline of Case Document p.7 ‘Future needs’.
What are the parties’ commitments?
The mother will remain the primary carer. The mother’s evidence about her commitments was not the subject of much (if any) challenge.
The father will have regularised time with X. Various expenditure items within the father’s financial statement were successfully challenged so that I am not satisfied that his disclosed weekly commitments of over $2,100[64] are accurate. In his financial statement, the father did not disclose to anyone living in his household or paying for their expenses.[65]
[64] FS-MRH, item 33.
[65] FS-MRH, parts E & H.
What about the father’s support of the stepchildren?
The father contended that consideration should be given to his contribution towards the stepchildren (albeit to nullify any adjustment that I would otherwise have made in favour of the mother).
I have had regard, in a meaningful way, to the father’s contributions towards the stepchildren, seen through the light of not only his financial support for them, but also his capacity to assist in their care (see Zaruba & Zaruba [2017] FamCAFC 91 at [53] and In the Marriage of Robb and Robb [1994] FamCA 136 (‘Robb & Robb’)).
No child support was available to supplement the stepchildren’s financial support and ultimately all but one (1) of the step-children left the family unit during the course of the relationship. There was no evidence of the father supporting the stepchildren after the mother left B Street.
Circumstances which weigh against the father’s contribution are the limited time that he spent with the family given his long work hours, something that was commented upon by one (1) of the stepchildren.[66]
[66] FR¶101.
Weighing up the competing circumstances, I am satisfied that a Robb & Robb adjustment favours the father.
What about child support?
The father wants to pay child support and reiterated this when giving his oral evidence.[67]
[67] MRH-17.
The mother does not want to be beholden (my word) to the father for financial support for X.[68] There was no evidence about what the father’s future liability might look like.
[68] MSL¶351.
The circumstances of this family trigger a consideration of ss 90SF(3)(q) and/or 90SM(4)(g).
Early in 2022, and post-separation, the father approached the mother’s employer about the mother’s personal health. Within the unchallenged family report, he is recorded as telling staff that the mother suffered from [mental illnesses] …“when she was still under the same roof and shagging old mate and driving […]”, when she was taking medication which he thought [they] should know about, going on to say that he thought this demonstrated that “I am a decent bloke who wants to see the kids and I thought I’d get my own back – coppers don’t care” (my emphasis).[69]
[69] FR¶21-23.
The mother described feeling intimidated and humiliated and considered the behaviour to be an attempt to cause the mother to lose her job.[70]
[70] MSL¶127.
The father’s poor attitude towards the mother continued during cross-examination.
From their presentation as witnesses and from their written evidence, I am satisfied that if the mother was reliant on the father for paying regular child support, she would be the subject of more coercion and control by the father. For example, the mother would be unlikely to be able to easily manage her budget if she was beholden to the father making regular child support payments given his extremely poor attitude towards her.
My finding is also informed by his failure to be consistent in spending time with X which I apprehend may well be based not only in his work commitments but his general lack of insight into how disruptive his inconsistency is for others relying on him (or worse that he engages in the behaviour to coerce or control the mother’s ability to plan activities in advance).
CONCLUSION – PROPERTY ADJUSTMENT
The property pool equates to $1,267,113.
Each party sought an adjustment of the property pool involving the mother receiving property, albeit on differing terms. Both parties contended the mother should receive a cash adjustment, with various declarations and restraints imposed. I can make orders that are just and equitable by reference to an adjustment of the non-superannuation property between the parties.
In relation to the property pool, the mother sought a 55:45 division in her favour for her contributions and a further 10% adjustment for other factors.
Relying primarily on contributions, the father sought an overall adjustment of 65:35 in his favour.
I am satisfied that, to a limited degree, the father made the greater initial contributions given his access to ongoing income, cash and livestock. During the relationship the mother’s highly leveraged property was sold, as well as various chattels and livestock owned by one or other of the parties and both parties benefited from those transactions.
By dint of his qualifications and experience, the father made a more significant contribution towards the growth in D Pty Ltd and the acquisition, improvement and conservation of B Street. To the extent that it did, the father’s contributions would not have happened if the mother had not supported his endeavours through her contributions as homemaker, parent and via her paid and unpaid labour.
Post-separation the father has continued making contributions in the same fashion as before the parties separated, as has the mother, albeit her homemaker and parent roles have been enlarged since she moved out of B Street and away from any peripheral support that the father could have offered.
The myriad of contributions by the mother were made significantly more arduous by the father’s perpetration of family violence.
The contributions made by each of the parties during the relationship is assessed as 52.5% in favour of the mother and 47.5% for the father which is largely informed by not only the father’s superior financial and non-financial contributions but also his perpetration of family violence and how that impacted the mother’s contributions at all levels.
Insofar as s 90SF(3) is concerned, the father is currently in receipt of a steady income with access to D Pty Ltd which he will have the power and control over into the future.
Although I have reflected on the illumination of inaccuracies in his financial statement during cross-examination, I am not satisfied that these were of such merit as to make any further adverse findings and otherwise change my approach to the making of findings.[71]
[71] See for example, In the Marriage of Weir & Weir (1992) 16 FamLR 154.
In Hobson & Hobson [2020] FamCAFC 251; (2020) 61 Fam LR 557, the Full Court reflected upon the decision in Mallet v Mallet (1984) 156 CLR 605 at 638, and said that the purpose of a s 75(2) adjustment (read as ss 90SM(3)(e) & 90SF(3)) –
is not to achieve equality in the financial strengths of the parties, nonetheless the overarching obligation is to achieve a just and equitable division of the property.[72]
[72] Hobson & Hobson [2020] FamCAFC 251 at [32].
Here, I have already made a finding that the father earns an income, whereas the best the mother has is a CTP benefit which at some point is likely to stop (hopefully once she has re‑commenced employment). Informed by her past employment history and her attempts to gain further qualifications, the mother’s capacity to earn an income, based on the evidence before me, is modest at best.
In assessing any adjustment pursuant to s 90SM(3)(e) and the relevant s 90SF(3) considerations I have had regard to all the circumstances of the parties’ including those highlighted above, as well as the decision in Hobson, and the other relevant circumstances pursuant to ss 90SM(4)(d), (e), (f) and (g).
If the value of D Pty Ltd is anything to go by, in my view, the father will continue to grow D Pty Ltd because he is a hard worker and there is an ongoing demand for his skills. He is the sole director and so has full control over the income and other benefits that he derives from the entity. Conversely the mother’s employment prospects are modest at best and at this time, impeded by circumstances not of her own making. The disparity of income between the parties is stark, but I also need to consider the other s 90SF(3) factors including whether that income earning capacity has been impacted by the duration of the relationship over nine (9) years. With the father away working so much, the mother’s capacity to secure other qualifications whilst at the same time working for D Pty Ltd and/or as homemaker was impinged simply because there would have been no time left over for such studies. Nine (9) years on the mother must essentially start from scratch to secure non-manual work that is sufficient to provide financial security for herself.
The mother is in receipt of various Centrelink benefits and has the ongoing commitment of X for some time into the future. L still lives with her. but she is much more independent than her younger sister.
These commitments, in tandem with the mother’s modest income earning prospects are significant. She also has her own health concerns, albeit I placed limited weight on this factor given the lack of medical evidence to support her prognosis and/or need for future medical treatments.
I have also had regard to the father’s support of his stepchildren, which warrants a small adjustment in his favour.
I have no expectation that the father will ever be obliged to pay child support because I accept the mother does not want to have to rely on him. This is not a criticism per se of the father, it is just the reality. Consequently, it makes sense for the mother to receive a further adjustment now, rather than be burdened by what I would expect to be an inconsistent future regime of payments which would only cause the mother to feel coerced or controlled about her budgeting decisions out of frustration of the unknown. Conversely it is important that the Child Support Registrar is aware of my intention and a notation will be included to limit any potential difficulties for either party in their future interface with the administrative bureaucracy.

For the reasons set out earlier, I am satisfied that it is appropriate to make a further adjustment in favour of the mother so that overall, the property pool will be adjusted 60:40 in her favour.
Stepping back from my conclusions and looking holistically at whether the proposed adjustment is just and equitable, 60% of the pool equates to $760,267. The mother currently has superannuation and non‑superannuation interests valued at $23,898 or just under 2% of the property pool. To bring the adjustment to 60%, a cash payment of $736,300 (rounded down) is required.
The father has some cash available on redraw, but this amount is not sufficient to meet the adjustment calculated by me. The mother sought the immediate sale of B Street, with the father remaining silent on that as a fallback position.
I recognise the value to the father in retaining B Street because it appears to have infrastructure that is sympathetic to the ongoing work of D Pty Ltd. I must act justly notwithstanding what I see as a gap in the father’s relief (by not offering an alternate position to a set cash payment). As such, I will allow the father time to re-finance so that he can either retain B Street and/or be entitled to receive a significant injection of cash upon the sale of that property.
Accordingly, I will allow the father about six (6) weeks to pay the mother $736,300 failing which, default interest will accrue until B Street can be sold. Rather than fixing the quantum of the cash payment to the mother, upon the sale the division of the balance proceeds will reflect whatever the actual sale price and costs of sale may be, largely because I had no evidence of what those costs look like, placing a limitation on what the property pool could look like after sale.
Ancillary orders for the sale have been drafted in a manner to avoid a stalemate and/or reliance upon the advice of unknown third parties (who may or may not be able to give the advice as ordered). Given the mother is more reliant on a final resolution of the parties’ property settlement, she will hold the fallback position of making decisions if the father once more becomes diffident in his actions. Given those decisions she may have to make will directly impact on the quantum of the cash sum she will ultimately receive, I am satisfied that she will act appropriately and not in a manner inconsistent with her role as joint trustee for the sale of B Street.
Declarations have been made to give certainty to the parties’ current possession and/or interests in property.
Looking holistically as to the effects of such an adjustment, I am satisfied that the Orders I will make are a just and equitable division of the property pool, given the parties’ circumstances.

I certify that the preceding one hundred and sixty-six (166) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney.
Associate:
Dated: 2 September 2024

File number(s):	BRC 13187 of 2022
Judgment of:	JUDGE KEARNEY
Date of judgment:	2 September 2024
Catchwords:	FAMILY LAW – Parenting and Property orders – 9-year-old subject child – where the father has been inconsistent with complying with spend time with orders – history of family violence – where the mother seeks sole parental responsibility and conditions subsequent should the father fail to spend time with child –– where the father seeks to jointly make decisions – where the father seeks to amend child’s name to include his last name – property adjustment orders – where a global approach is taken – where there is a stark financial disparity between the parties – where the mother seeks a property adjustment reflective of the impact of family violence and there being no prospect of the payment of child support – adjustment of 60% of property pool in favour of the mother
Legislation:	Evidence Act 1995 (Cth) s 128 Family Law Act 1975 (Cth) Parts VII and VIIIAB; ss 4AA; 60CC; 90RD; 90SB; 90SF(3); 90SM(3)(e), (4)(d), (e) & (f)
Cases cited:	AJO & GRO [2005] FamCA 195; (2005) 33 Fam LR 134; (2005) FLC ¶93-219 Benson & Drury [2020] FamCAFC 303 Best & Best [1993] FamCA 107; (1993) 16 Fam LR 937 Bevan & Bevan [2013] FamCAFC 116; (2013) 49 Fam LR 387 Hobson & Hobson [2020] FamCAFC 251; (2020) 61 Fam LR 557 In the Marriage of Robb and Robb [1994] FamCA 136 In the Marriage of Townsend [1994] FamCA 144 at 81,654; (1994) 18 Fam LR 505 In the Marriage of Weir & Weir (1992) 16 Fam LR 154 Jonah v White [2012] FamCAFC 200; (2012) 48 Fam LR 562 Keating & Keating [2019] FamCAFC 46; (2019) 59 Fam LR 158 Kennon & Kennon (1997) FLC ¶92-757; (1997) 22 Fam LR 1 Koch & Kest [2021] FamCA 408 Lotta & Lotta [2017] FamCA 50 Mahoub & Ferrante [2013] FamCA 905 Mallet v Mallet (1984) 156 CLR 605 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17; (1986) 10 Fam LR 819 Stanford & Stanford [2012] HCA 52; (2012) 247 CLR 108; (2012) 47 Fam LR 481 Watson & Ling [2013] FamCA 57 at [35]; (2013) 52 Fam LR 79 Zaruba & Zaruba [2017] FamCAFC 91
Division:	Division 2 Family Law
Number of paragraphs:	166
Date of hearing:	15-16 July 2024
Place:	Brisbane
Counsel for the Applicant:	Mr Larsen
Solicitor for the Applicant:	Rosen Lawyers
Counsel for the Respondent:	Ms Fraser
Solicitor for the Respondent:	Sambanis Family Law

BRC 13187 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR HARRELL Applicant
AND:	MS LOWE Respondent

ORDER MADE BY:	JUDGE KEARNEY
DATE OF ORDER:	2 SEPTEMBER 2024

Description	Value ($)	Total ($)
Assets
*B Street*	1,250,000
Bank accounts	6,128
D Pty Ltd	218,119
Motor Vehicles	33,000
Total assets	1,507,247
Liabilities
Mortgage secured over *B Street*	(368,570)
Total liabilities	(368,570)
Addbacks
Drawdown on mortgage secured over *B Street* Cash advance by father to mother on 11.08.2021	25,000*
Total addbacks	25,000
Superannuation
Super Fund 1	79,538
Total superannuation	79,538
Nett property	$1,243,215