HEIDER & HEIDER

[2020] FamCA 291

FAMILY COURT OF AUSTRALIA

HEIDER & HEIDER [2020] FamCA 291

FAMILY LAW – CHILDREN – Undefended hearing – With whom the children shall live and spend time with – Parental responsibility – Best interests – Where previous interim orders by consent provided for a shared care arrangement – Where this arrangement broke down with the father’s mental health having deteriorated and his consequent behaviour causing fear and leading to his current incarceration – Where the children currently live with the mother and spend no time with the father – Where the father has not seen the children for more than a year – Where there is no prospect of restoring a meaningful relationship between the children and the father – Where the children require protection from exposure to family violence by both parties, and from psychological harm caused by the father’s impaired capacity to meet their emotional needs – Where the presumption of equal shared parental responsibility is rebutted – Ordered sole parental responsibility and residence to the mother – Ordered restraints on the father from approaching the mother’s residence and workplace, and any education or extra-curricular venue attended by the children. 

FAMILY LAW – PROPERTY – Undefended hearing – What adjustment if any should be made pursuant to Section 75(2) – Where the parties’ contributions during the relationship were equal – Where the husband, after separation, unilaterally dispersed assets – Where the wife is the sole carer for the two children of the marriage and her future needs exceed that of the husband – Where it is just and equitable to make an order for adjustment of interests in property – Ordered adjustment to reflect 60 per cent to the wife and 40 per cent to the husband.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 68B, 75, 79

Bevan & Bevan [2013] FLC 93-545

Stanford & Stanford (2012) 247 CLR 108

APPLICANT: Ms Heider

RESPONDENT: Mr Heider

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 3974 of 2017

DATE DELIVERED: 28 April 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 16 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mooney

SOLICITOR FOR THE APPLICANT: Burke & Mead Lawyers

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

Parenting

1. That the Applicant have sole parental responsibility for the children:

   (a)       X, born … 2013; and

   (b)       Y, born … 2016.

2. That the children live with the Applicant.

3. Pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) the Respondent is restrained from approaching within 100 metres of:

   (a)       The Applicant’s residence;

   (b)       The Applicant’s workplace;

   (c)       Any school, preschool or day care facility attended by either child; and

   (d)Any other venue at which either child attends for any sporting or extracurricular activity.

4. That a passport be issued for each of the children without the necessity for the consent of the Respondent, and that a sealed copy of these orders be served upon the Australian Passport Office who is requested to give effect to any such application made by the Applicant.

5. That the Applicant have possession of the children’s passports.

Property

1. That the net proceeds of sale of B Street, Suburb C NSW (“the former family home”) be paid to Burke Mead Lawyers, for and on behalf of the Applicant.

2. That paragraphs 8-11 (inclusive) of these orders are binding on D Pty Ltd (“the Trustee”) of the Super Fund 1 (“the Fund”).

3. That the base amount of $143,376.00 be allocated to the Applicant out of the Respondent’s interest in the Fund Member Number ….

4. That pursuant to s 90XT(1)(a) of the Act whenever a splittable payment becomes payable in respect of the Respondent’s interest in the Fund, the Applicant shall be entitled to be paid an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations2001 (Cth) (“the Regulations”) using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.

5. That Order 9 has effect from the operative time.

6. The operative time for the purposes of Order 10 of these orders is 4 business days after the date of service of these orders upon the Trustee of the Fund.

7. That until such time as the superannuation split to the Applicant pursuant to these orders can be rolled over into a separate account to the Applicant:

   (a)The Respondent shall provide to the Applicant no less than 28 days’ notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part his entitlement in the Fund;

   (b)The Respondent shall direct and authorise the Trustee of the Fund to communicate with the Applicant and/or any person authorised by her in writing:

   (i)To answer any reasonable inquiries as may be made by her or on her behalf from time to time in relation to her entitlement in the Fund; and

   (ii)To provide to the Applicant and/or her authorised representative/s a copy of any notice of any application or request by the Respondent which seeks release of entitlements in the Fund insofar as that release may affect the Applicant’s entitlement in the Fund pursuant to these orders;

   (c)The Respondent by himself, his servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the Applicant, her heirs, executors, administrators or nominees from receiving the benefits in the Fund to which she is entitled pursuant to these orders.

8. In the event that the superannuation split to the Applicant pursuant to these orders can be rolled over into a separate account to the Applicant each of the parties hereto shall each do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.

9. That except as provided above, each party shall be entitled, to the exclusion of the other party, to the sole legal and beneficial ownership of all other property, both real and personal, which is registered in each of their names or their current possession or control, including their superannuation entitlement and they shall be solely liable for and indemnify the other against any personal liabilities.

10. In the event that any party refuses or neglects to comply with any provision of these orders:

    (a)A Registrar of the Family Court of Australia is hereby appointed pursuant to s 106A of the Act to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these orders; and

    (b)The defaulting party pay all reasonable costs incurred by the other party for the purpose of exercising this order.

11. For the purpose of Order 15 hereof, an affidavit setting out the defaulting party’s failure to comply with the orders shall be sufficient evidence of neglect and default.

12. That the Respondent pay the Applicant’s costs of and incidental to these proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Heider & Heider has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3974 of 2017

Ms Heider

Applicant

And

Mr Heider

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application, by Ms Heider (“the mother”) for final parenting orders in respect of two children, a girl (“X”) aged almost 7 years and a boy (“Y”) aged 3 years 9 months, and also for an adjustment of interests in matrimonial assets.

2. The respondent, Mr Heider (“the father”), has not filed any documents in accordance with procedural orders. He is currently in gaol. The father is aware of the proceedings and has been served with the documents of the mother.  

3. The parties began living together in 1999, were married in 2007 and separated in October 2017. They lived together for 18 years.

4. The children currently live with the mother and spend no time with the father.

The Parties

The Applicant – Ms Heider

1. The applicant mother is currently 38 years of age. She works in the public service as an Assistant Director. She lives in the Newcastle area in New South Wales (“NSW”).

2. She is in a domestic relationship with Mr E.

3. Her household consists of herself, Mr. E and the subject children.

The Respondent – Mr Heider

1. The respondent father is currently 40 years of age. He has worked as a tradesman.

2. The father is currently incarcerated at F Town Correctional Centre, apparently following an assault and consequent breach of an Apprehended Violence Order (“AVO”) on his former partner.

The Trial

1. The undefended trial was listed for two hours and concluded within that time.

2. The mother was represented by counsel.

3. The Independent Children’s Lawyer (“ICL”) represented the interests of the children.

4. There was no appearance by or on behalf of the father.

The Applications

Parenting

1. By her Further Amended Initiating Application filed 6 December 2019, the mother seeks residence and sole parental responsibility.

2. She seeks restraints on the father from approaching within 100 metres of the mother’s residence, workplace and any school attended by the children or any other venue at which either child attends for sporting or extracurricular activity.

3. She also presses for an order that passports be issued, without the necessity for consent of the father, and for the mother to keep possession of the passports.

Property

1. In relation to property, the mother seeks a payment to her which reflects 60 per cent to herself and 40 per cent to the father.

2. She proposes that the proceeds of sale of the former family home be paid to Burke Mead Lawyers for and on her behalf. She also seeks a base amount of $143,376 to be allocated to her from the father’s superannuation.

Brief History of Relevant Events

1. In 2010 the parties purchased B Street, Suburb C NSW (“the former family home”). The parties remained living here until the mother moved out of the property following separation in late October 2017.

2. The father remained living in the former family home with the children and the mother spent time with the children on an ad hoc basis.

3. On 7 November 2017 the mother attempted suicide by overdosing on medication. The mother was admitted to the G Hospital and released the following day. The mother states this was an isolated incident and she has not self-harmed since.

4. On 9 November 2017 the mother spent time with the children. An incident occurred where the mother punched the father in the face and abused him in the presence of the children. The mother was placed on a good behaviour bond for two years and an Apprehended Domestic Violence Order (“ADVO”) was issued for the father’s protection.

5. Following this, the father withheld the children from the mother.

6. On 20 November 2017 the father distributed intimate photographs of the mother to the maternal family. The father was fined $500 and an ADVO was issued to protect the mother for 12 months.

Proceedings commence in the Federal Circuit Court of Australia

1. On 22 December 2017 the mother commenced parenting proceedings in the Federal Circuit Court of Australia (“FCC”) along with a Notice of Risk alleging the father perpetrated family violence and had a poor mental state.

2. On 25 January 2018 the mother began spending irregular time with the children as agreed between the parties.

3. On 6 March 2018 the father provided a Response and filed a Notice of Risk alleging the mother perpetrated family violence and had attempted suicide and threatened suicide a number of times throughout their relationship.

4. On 7 March 2018 interim orders were made which provided for the children to spend time with the mother each alternate weekend and each alternate Thursday.

5. On 24 August 2018 interim consent orders were made which provided for the children to live in a shared care arrangement with each parent.

6. On 15 October 2018 the mother amended her initiating application and sought orders for the allocation of matrimonial property following correspondence from H Bank that the home loan had defaulted and proceedings would commence to remedy the arrears.

7. On 19 November 2018 the solicitors for the father filed a Notice of Withdrawal.

8. The father has not participated in proceedings since this time.

Proceedings commence in the Family Court of Australia

1. On 22 November 2018 the matter was transferred by the FCC to this Court.

2. Between 3 and 5 February 2019 the father is said to have attempted suicide, used illicit drugs and threatened to kill the paternal family. The paternal family sought ADVOs to protect themselves. The father was taken to the G Hospital by police and ambulance. 

3. These events caused the children to live with the mother and not spend time with the father.

4. On 8 February 2019 interim orders were made directing the children to live with the mother and restraining the father from entering or approaching within 100 metres of the mother’s home, and any school, preschool or day care attended by the children or any other venue which either child attends for any sporting or extracurricular activity.

5. On the same day interim orders were made which provided for the former family home to be sold.

6. On 23 March 2019 the mother entered into a ‘Time to Sell’ agreement with H Bank. 

7. On 11 April 2019 orders provided for the father to vacate the former family home and to be restrained from entering or approaching within 100 meters and from interfering with the sale of the property.

8. On 19 April 2019 the mother took possession of the former family home. The mother states the home was in a state of disrepair.[1] She spent $5,000 repairing the property and $8,900 readying the property for sale.

   [1] Affidavit of Ms Heider filed 31/01/2020, para 222.

9. In late April 2019 the former family home was broken into on two occasions and damage was caused.  The home was again broken into in July 2019.  The mother believes it was the father who broke into the property.

10. On 9 August 2019 the former family home was sold for $610,000 with $115,118 net proceeds. This amount is being held on trust pending proceedings.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant – Ms Heider

   (a)Further Amended Initiating Application filed 06/12/2019;

   (b)Affidavit of Ms Heider filed 31/01/2020;

   (c)Financial Questionnaire filed 06/12/2019;

   The Respondent – Mr Heider

   (d)Paragraphs 135-148 of Affidavit of Mr Heider filed 17/10/2018 [read by consent of the Applicant];

   Reports

   (e)Family Report by Mr J dated 14/11/2018.

Oral Evidence

The Mother

1. The mother gave brief evidence. She presented as calm and considered.

2. The mother had thought about the implications of there being no order for time and communication between the children and the father.

3. She was focused on the safety of the children and harm possibly caused to X by what she witnessed at separation and the negative statements made by the father to her about the mother.

4. The mother has spoken to a psychologist to obtain guidance on how to speak to the children about what has happened in their family and when they are older, about why they do not have contact with the father.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.  The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Parental Responsibility

1. There will be an order for sole parental responsibility for the mother.

2. The father had challenged the application of the mother in that regard in his Response.[2] He sought such an order himself.

   [2] Response filed 6/03/2018.

3. The order reflects the current arrangement for the care and supervision, and decision making for the children which has been in place since 8 February 2019 when previous parenting orders were suspended.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. I accept that the younger child Y, aged three years, does not now remember his father. In the October 2018 interviews for Family Report Y “went to his father’s arms” when the mother left the room and was apparently content there.[3]

   [3] Family Report dated 6/11/2018, para 94.

2. In her interview X had a clear belief that both her parents loved her. She thought her life would be better if the family was “back together, mum and dad together.”[4]

   [4] Family Report dated 6/11/2018, para 92.

3. She also told the Family Consultant that her father had said to her “daddy told me mum tells lies, daddy told me she’s sick in her brain”.[5]

   [5] Family Report dated 6/11/2018, para 92.

4. Within four months of the interview, the mental health of the father had deteriorated in a way that made members of his own family, and the mother, fearful.

5. More than a year has passed since the father last saw the children. 

6. There is no present prospect of the children restoring a meaningful relationship with the father.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. The children do require protection from exposure to the family violence which erupted after separation of the parties.

Additional Considerations

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The children previously had close relationships with the paternal grandparents. The paternal grandmother had regularly cared for the children while the parties were working. She was interviewed for the Family Report.[6] Those relationships have broken down.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

[6] Family Report dated 6/11/2018, paras 75-80.

1. Immediately after separation, in October 2017, the children lived with the father and saw very little of their mother. The mother asserts the father denied her time with the children. That was partly a result of physical violence between the parties. AVOs were in place for the protection of each parent from the other.

2. By August 2018 there was a shared care arrangement in place.

3. Six months later the children lived with the mother exclusively and had no contact with the father.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. The father was in arrears of child support before he became ill. He is now incarcerated and without income.

2. The mother has taken on the whole financial responsibility for the cost of raising the children.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. The children have been disrupted over a period of more than two years. They have now adjusted to living with the mother and her partner and not seeing the father.

2. In November 2018, before the children moved to full time residence with the mother, the Family Consultant recommended that the children live with the mother:[7]

   It is my belief that the mother at this point in time has the greater capacity to focus on the children’s long term psychosocial development rather than be focussed on the history of the parents’ relationship.[8]

   [7] Family Report dated 6/11/2018, para 106.

   [8] Family Report dated 6/11/2018, para 103.

3. The children will not be immediately affected by these orders although, in the long term they will have questions to ask and worries to express about not seeing the father.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The father has experienced a decline in his mental health and an aggravation of a tendency to be aggressive and condemnatory under pressure.

2. He does not appear to have understood his obligation to protect the children from his views and bitter feelings about the mother. This represents an impaired capacity to meet their need for emotional stability and freedom to feel and express themselves.

3. The father had a need to prove to the children that the mother was the one responsible for separation. The children should have been shielded from blaming and anger.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. Both parties moved quickly into relationships with new partners. There was a lot for very young children adapt to.

2. At interview neither child had complaints about their parents’ partners. X reported that her mother’s partner “told lies” but knew that because her father had told her so.

3. The relationship of the mother with her partner has been maintained for two years.

4. The relationship of the father broke down acrimoniously.

5. Released from a relationship of 18 years which they had begun as teenagers, both parties to some extent put their own needs before those of the children.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. Each of the parties have been a protected person under a State order.

2. On 8 December 2017 an interim AVO was made for the protection of the mother, her partner and the maternal grandmother. This was in relation to the father sending to others, intimate photographs of, and text messages by, the mother.

3. On 10 October 2018 the father was placed on a Good Behaviour Bond. The AVO was made final.

4. In March 2018 the mother was found guilty of assault occasioning actual bodily harm, with no conviction recorded. A final AVO was made for 12 months for the protection of the father.

5. The circumstances of the separation lead to uncontained emotion, mainly anger, and physical violence towards each other and themselves (suicide attempts).

6. The father mounted a campaign to humiliate and punish the mother.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

1. The mother is understandably and appropriately protective of the children.

2. Drug use by the father from at least early 2019 frightened the mother as to its behavioural consequences.

3. The father had not undertaken hair follicle testing as required by a judge of the FCC when he was seen by the Family Consultant in November 2018. That failure is consistent with a wish to conceal use of illicit drugs.

4. After the father leaves prison, he might stabilise his mental health and cease using dangerous illicit drugs. With medical evidence of his recovery he could make an application to the Court to consider that change in his circumstances.

5. It is unlikely that the mother could be persuaded to arrange time and communication for the father with the children. That level of trust between the parties no longer exists.

6. For these reasons, and in the absence of any evidence by the father, orders are made as sought by the mother.

Approach to alteration of interests in property

1. In considering applications for alteration of property interests and transfer of property the Court must:

   (i)Identify the existing legal and equitable interests of the parties in property;[9]

   (ii)Consider whether it would be just and equitable in the particular circumstances to make an alteration;

   (iii)

   If an alteration should be made, to consider the matters contained in

   
   

   ss 79(4) and 75(2) of the Act in coming to an adjustment; and

   (iv)Analyse and consider whether the adjustment under consideration would be just and equitable.

   [9]Stanford & Stanford (2012) 247 CLR 108; Bevan & Bevan [2013] FLC 93-545

1. Identify the assets and liabilities of the parties

1. The parties’ assets are set out in the joint balance sheet:[10]

   [10] Exhibit X

Ownership		Description	Applicant’s value	Respondent’s value
ASSETS
1.	J	Net proceeds of sale of B Street	$     115,117.94	$
2.	J	Motor Vehicle 1	$     32,000.00	$
3.	J	Caravan	$     32,500.00	$
4.	J	Motorbike 1	$       7,100.00	$
5.	J	Quad bike	$       5,000.00	$
6.	J	Motorbike 2	$        1,000.00
7.	W	Jewellery	$     15,000.00	$
8.	H	Tools	$       5,000.00	$
9.	J	Apple Mac computer	$       3,000.00	$
10.	J	Apple Mac iPads	$       2,000.00	$
11.	J	2 x Apple Mac iPhone 7	$        1000.00

Total $        218,718 $  

ADDBACKS
12.	J	Motor Vehicle 2	$     20,000.00	$
13.	J	Thermomix	$       2,500.00	$
14.	J	Motorbike 2	$       1,000.00	$
15.	J	Car parts	$          300.00	$
16.	J	Evacool Glacier portable fridge	$          500.00	$
17.	J	Mavic pro controller	$          500.00	$
18.	J	12/14 ft. boat trailer	$          500.00	$
19.	J	Honda Generator ex1000	$          350.00	$
20.	J	White leather lounges, entertainment unit, coffee table	$          500.00	$
21.	J	Boom and two sails	$          150.00	$
22.	J	Mitsubishi 8kw split system air conditioner	$       1,150.00	$
23.	J	Magna chlor chlorinator	$          250.00	$
24.	H	Shimano fishing rod	$          700.00	$
25.	J	Cash withdrawal by Husband from loan redraw account	$     20,000.00	$
26.	J	Boat	$       9,000.00	$
27.	W	Motor Vehicle 3	$     10,000.00	$

Total $          67,400 $  

LIABILITIES
28.	$	$

Total $                  0 $                  0

SUPERANNUATION
Member		Name of Fund	Type of Interest	Applicant’s value	Respondent’s value
29.	W	Super Fund 2	$     169,682.79	$
30.	H	Super Fund 1	$     197,981.72	$

Total $        367,665 $                  0

FINANCIAL RESOURCES
Ownership		Description	Applicant’s value	Respondent’s value
31.	$	$

Total $                0 $                  0

Total pool $      653,783 $                  0

2. Would it be just and equitable to make an adjustment to interests in property?

1. There are funds held in an account by a solicitor for both parties which require distribution. 

2. Some assets have been sold or dispersed unilaterally by the father.

3. An adjustment of interests is necessary.

3. Consideration of ss 79(4) and 75(2) of the Act in order to come to a just and equitable adjustment

Contributions under section 79(4)

1. The parties were both in the paid work force during the marriage.

2. The wife started as a casual in retail sales and progressed to increasingly senior roles as a manager.

3. Other than for a total of two and a half years of maternity leave the wife was always in full time employment.

4. The husband started, but did not complete, two apprenticeships. He also worked as a labourer.

5. In 2007 he took on a traineeship and began to earn income comparable to that of the wife.

6. By the end of the marriage the husband was earning about $130,000 - $150,000 per annum, the wife $107,000 - $115,000 plus.[11]

   [11] Financial Questionnaire of Ms Heider filed 6/12/2019, para 8.

7. The parties both contributed to the purchase of a property in Suburb K in 2002 with some financial assistance from the wife’s father.

8. The applicant from her wages paid for improvements to the property.

9. That property was sold in 2010 for $312,000.

10. The net proceeds were applied to the purchase of the family home at Suburb C. The parties together paid for extensions.

11. From separation in October 2017 the husband remained in the property. The property became damaged and rundown. The husband failed to meet mortgage payments and the mortgagee moved to sell the house. The wife successfully negotiated for a private sale.

12. In the first half of 2019 the wife paid $9,000 to clean and prepare the house for sale. She also undertook extensive work herself, cleaning, removing rubbish and painting.

13. The wife was required to bring two applications to the Court in order to sell the property, one to be made Trustee for sale, the next to exclude the husband from the property.

14. The property was broken into and damage done on three occasions with repairs required.

15. In August 2019 the sale of the Suburb C property settled. From the sale price of $610,000 there was $115,117 in net proceeds.

16. The relevant matters to be taken into account are as follows.

Relevant factors under section 75(2)

The age and state of health of each of the parties

1. The parties are 38 and 40 years.

2. The wife is in good health. There is no evidence about the current physical and mental health of the husband.

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 

1. The wife continues to work full time. The husband retained a great number of assets including vehicles, motorbikes, a boat, a caravan, tools, furniture and computers.[12]

   [12] Affidavit of Ms Heider filed 31/01/2020, para 182.

2. He listed less valuable assets for sale on social media.[13]

   [13] Affidavit of Ms Heider filed 31/01/2020, para 184.

3. He withdrew $20,000 from the loan redraw facility.[14]

Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years

[14] Affidavit of Ms Heider filed 31/01/2020, para 183.

1. The wife is the sole carer for two children aged six and almost four years.

Subject to s 75(2)(3), 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

1. Both parties have superannuation interests, roughly comparable.

If either party is cohabiting with another person--the financial circumstances relating to the cohabitation

1. The wife is living with her partner of two years, Mr E.

2. There was no evidence of his income, occupation and contribution to the household of the wife.

3. The household is said to live in a three bedroom home.

Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage

1. The husband was assessed to pay child support but has not paid since early 2019. The wife received $4,000 from a tax fund intercept which reduced arrears.

4. Analysis of whether the adjustment contemplated is just and equitable

1. This was an undefended hearing. I have considered the evidence before me and taken into account that:

   a)The wife made solid financial contributions throughout the 18 year relationship between the parties, as did the husband at least in the later years.

   b)Both parties made contributions to the care of the children, with the wife performing more of the domestic work of the household and the outdoor maintenance.

2. The wife agreed to paragraphs 135-148 of the Affidavit of the Husband[15] being read. That evidence can be given little weight. There is no current information.

   [15] Affidavit of Mr Heider filed 17/10/2018.

3. The only evidence of the sale of the family home and the events which led up to it is that of the wife.

4. The husband did not propose any orders for adjustment of interest in property in his Response.

5. The wife very fairly contends that the contributions to the date of final separation were equal.[16]

   [16] Financial Questionnaire of Ms Heider filed 6/12/2019, Part B.

6. She proposes an adjustment by superannuation split that equates to a ratio of 60/40 per cent in her favour.

7. In circumstances where the wife has the care and supervision of two very young children and the obligation to support them with little or no assistance from the husband that adjustment is a just and equitable reflection of contributions and future needs.

8. Orders are made accordingly.

I certify that the preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 28 April 2020.

Associate: 

Date:  28 April 2020