Hemming & Hemming - [2022] FedCFamC2F 1824

Federal Circuit and Family Court of Australia
(DIVISION 2)
Hemming & Hemming [2022] FedCFamC2F 1824

File number(s): NCC 3953 of 2018

Judgment of: JUDGE BETTS

Date of judgment: 19 December 2022

Catchwords: FAMILY LAW – Property and Parenting – two children aged 16 and 14 – where both parties agree to equal shared parental responsibility – where the husband seeks a week-about arrangement – where the wife seeks to maintain the existing arrangement where the children live with her and spend five nights a fortnight with the husband – where the husband seeks to retain 55% of the net matrimonial assets – where the wife seeks a 50/50 division – where the Court must weigh up the evidence of the parties’ financial contributions and the future parenting arrangements – just and equitable – best interests of the children.

Legislation: Family Law Act 1975 (Cth), Pt VII and Pt VIII

Cases cited:
Godfrey & Sanders [2007] Fam CA 102

Gosper & Gosper (1987) FLC 91-818

Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

Kowaliw & Kowaliw (1981) FLC 91-092

Mallett & Mallett (1984) 156 CLR 605

MRR & GR (2010) FLC 93-424

Norbis & Norbis (1986) FLC 91 – 712

Stanford & Stanford (2012) FLC 93-518

Division: Division 2 Family Law

Number of paragraphs: 278

Date of last submission/s: 23 September 2022

Date of hearing: 8 and 9 February 2022 and 16 May 2022.

Place: Newcastle

Counsel for the Applicant: Mr Levick

Solicitors for the Applicant: Attwaters

Counsel for the Respondent: Mr Mueller

Solicitors for the Respondent: Fielden & Associates – Family & Relationship Lawyers

ORDERS

NCC 3953 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HEMMING

Applicant

AND:
MS HEMMING

Respondent

order made by:

JUDGE BETTS

DATE OF ORDER:

19 DECEMBER 2022

THE COURT ORDERS THAT:
Property Settlement
1.Within 3 months of the date of this order or such longer period as agreed in writing between the parties (“the settlement date”) the Wife is to pay the Husband the sum of $87,831.
2.Contemporaneously with the settlement date:
(a)The Husband shall do all acts and things to transfer the property known as and situate at B Street, Suburb C (“B Street, Suburb C”) with the title reference Lot …, to the Wife;
(b)The Wife shall discharge the joint ANZ mortgage with the BSB …02 and A/C. No. …31 on B Street, Suburb C and/or refinance it into her sole name;
(c)The Wife shall resign as Director of D Pty Ltd Pty Ltd (“D Pty Ltd”) and transfer her shares, right, title and interest in the company to the Husband;
(d)The Husband shall refinance the following joint mortgages into the name of D Pty Ltd Pty Ltd or into his sole name or into his name together with another person or entity:
(i)ANZ Home Loan with the BSB …70 and A/C. No. …18 secured against E1 Street, Suburb F (“E1 Street, Suburb F”) and with the title reference Lot ….
(ii)ANZ Home Loan with the BSB …02 and A/C. No. …38 secured against E1 Street, Suburb F.
(iii)ANZ Home Loan with the BSB …93 and A/C. No. …25 secured against E2 Street, Suburb F (“E2 Street, Suburb F”) with the title reference Lot ….
(iv)ANZ Home Loan with the BSB …93 and A/C. No. …69 secured against G Street, Suburb H (“G Street, Suburb H”) with the title reference Lot ….
(v)The Wife shall transfer all her right, title and interest in G Street, Suburb H and E2 Street, Suburb F to the Husband.

3.Subject to the these Orders the Husband shall retain to the exclusion of the Wife, the following assets and property:
(a)G Street, Suburb H, (“G Street, Suburb H”) with the title reference Lot …;
(b)His shares in D Pty Ltd being the corporate entity which operates as Trustee for the Hemming Family Trust;
(c)His interest in E1 Street, Suburb F;
(d)His interest in E2 Street, Suburb F;
(e)His Motor Vehicle 1;
(f)the furniture, furnishings and personal effects currently in his possession;
(g)his tools, building materials, plant and equipment currently in his possession;
(h)the cash at bank or cash at hand in his name or in the name of any entity under his direction or control;
(i)the balance of the insurance funds received by the parties from Company J in respect of damage to E2 Street, Suburb F;
(j)any funds owed by Ms K to the parties;
(k)any funds owed by Ms L to the parties;
(l)any superannuation balances remaining in his name after the superannuation split to the Wife has been executed by the Trustee of Super Fund 1.

4.The Husband shall indemnify the Wife and keep her indemnified against any taxation liabilities arising from the entities known as “D Pty Ltd” and the “The Hemming Family Trust” including:
(a)any costs or capital gains tax liabilities arising from the transfer of the Wife’s interest in D Pty Ltd and/or the Hemming Family Trust to the Husband;
(b)any liabilities arising from the corporate status of “D Pty Ltd” and or the “The Hemming Family Trust”;
(c)any liabilities owed by D Pty Ltd or the Hemming Family Trust as at the date of these Orders or in future;
(d)any tax liabilities or other liabilities owed by the Husband to any third parties;
(e)any capital gains tax liabilities arising from the transfers of property interests between the parties pursuant to these Orders.

5.The Wife shall retain to the exclusion of the Husband, the following assets and property:
(a)M Street, Suburb H (“M Street, Suburb H”) with the title reference Lot …;
(b)B Street, Suburb C (“B Street, Suburb C”) with the title reference Lot …;
(c)her Motor Vehicle 2;
(d)the furniture, furnishings and personal effects currently in her possession;
(e)the cash at bank or cash at hand in her name or in the name of any entity under her direction or control;
(f)her contingent or vested interest in the Estate of the Late Mr O;
(g)any superannuation balances in her name.

6.The Wife shall indemnify the Husband and keep him indemnified against any taxation liabilities arising from:
(a)any costs or capital gains tax liabilities arising from the transfer of the Husband’s interest in 6 B Street, Suburb C to the Wife;
(b)any liabilities arising from her role as Executor of the Estate of the Late Mr O and/or from the distribution of assets from the Estate.

7.In accordance with section 90MT(1)(a) of the Family Law Act 1975 (“the Act”):
(a)whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of Mr Hemming from his interest in the Super Fund 1, the Respondent Wife, Ms Hemming is entitled to be paid by Super Fund 1, being the Trustee of Super Fund 1 (“the Trustee”), the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $62,095.50 and;
(b)there is a corresponding reduction in the entitlement the Applicant Husband, Mr Hemming would have had but for these Orders.

8.The operative time for Order 7 is four (4) business days after the service of these Orders on the Trustee.
9.Each party and the Trustee have the liberty to apply to the Court on not less than three (3) business days’ notice in respect to the implementation of the super splitting orders.
10.In the event that any stamp duty or transfer duty is payable on the transfer of M Street, Suburb H to the Wife by the company, then the parties shall be each liable for 50% of such duty and each party’s share is payable contemporaneously with the registration of the transfer.

Parenting Settlement
11.The Mother and the Father have equal shared parental responsibility for the children: X born in 2006 and Y born in 2008 (“the children”).
12.The children live with the Mother.
13.The children spend time with the Father as agreed between the parties, but failing agreement as follows:
(a)During school terms, each alternate weekend from the end of the school day on Wednesday until return to school on Monday, if the Monday is a public holiday or a pupil free day then until return of school on Tuesday. Such alternate weekend time shall commence on the second Wednesday of each school term.
(b)During the terms 1 and 3 school holidays from the end of the last day of school until 6pm on the second Saturday of the school holidays.
(c)During the term 2 school holidays from the end of the last day of school until 6pm on the second Wednesday of the school holidays.
(d)During the term 4 school holidays the children shall spend time with the Father as follows:
(i)In odd-numbered years:
A.From 4pm 8th December until 4pm on 15th December;
B.From 4pm on 22nd December until 4pm on 29th December;
C.From 4pm on 5th January until 4pm on 12th January;
D.From 4pm on 19th January until 4pm on 26th January.

(ii)In even-numbered years:
A.from the end of school on the last day of the school year until 4pm on 8th December;
B.From 4pm on 15th December until 4pm on 22nd December;
C.From 4pm on 29th December until 4pm on 5th January;
D.From 4pm on 12th January until 4pm on 19th January;
E.From 4pm on 26th January until 4pm on the day before either of the children are due to commence school for the new academic year.

(e)On the weekend of Father’s Day from 3pm on Saturday until return to school on Monday.
(f)On each of the children’s birthdays as follows, in even-numbered years from 3pm on the child’s birthday until the start of school or 3pm the next day and in odd-numbered years from 3pm on the eve of the child’s birthday until the start of school or 3pm the next day.

14.The children’s time spent with the Father shall be suspended as follows:
(i)On the weekend of Mother’s Day from 3pm on Saturday until the start of school on Monday.
(ii)On each of the children’s birthdays as follows, in even-numbered years from 3pm on the eve of the child’s birthday until the start of school or 3pm the next day and in odd-numbered years from 3pm on the child’s birthday until the start of school or 3pm the next day.

15.Each of parents shall take all reasonable steps to ensure that the children’s primary health care provider is P Medical Centre and if another health care provider is required to be used because it is impracticable on a one-off basis to use P Medical Centre then the parent taking the child to a different practice shall ensure that the clinical notes of that consultation are sent to P Medical Centre and the other parent is immediately informed of any recommended treatment.
16.Each of the parents shall advise the other parent immediately upon the children or either of them requiring:
(a)emergency medical treatment, attendance by NSW Ambulance or referral to a specialist.
(b)a period of self-isolation due to Covid19 or another illness requiring the child to self-isolate.

17.The Mother shall be recorded as the ‘next of kin’ for the children in circumstances where only one parent can be recorded as the official ‘next of kin’ but both parents will be recorded in all other circumstances and each of the parents shall promptly inform the other, of any and all information that is communicated to them in their capacity as the children’s ‘next of kin’.
18.Both parents are authorised by these Orders to obtain, at their own expense, from any healthcare practitioner upon whom either of the children attend, information about their health, care, welfare and development, that such health practitioners are legally authorised to provide.
19.Each of the children shall enjoy liberal and flexible communication with their parents and they shall ensure that the children have complete privacy for their communications with the other parent. In order to, facilitate such communication each of the parents shall take all reasonable steps to ensure that the children have access to their communication devices during waking, non-school hours, for the purpose of calling the other parent at reasonable times.
20.The parents shall each be restrained from installing active spyware on the children’s mobile phones, iPads and any other electronic communication devices and they shall forthwith remove any such software.
21.The parents shall use text messages to communicate with each other in relation to day to day parenting arrangements and emails to communicate with each other in relation to longer term parenting matters.
22.The parents shall each be restrained by injunction from using the children or other third parties to communicate with the other parent about parenting arrangements or issues involving the children.
23.The parents shall each ensure that all communications with the other parent are courteous, respectful and civil at all times.
24.Each of the parents shall promptly inform the other parent of any changes to their postal address, residential address, email and/or mobile phone contact details.
25.The parents shall be restrained by injunction from discussing any parental conflict or parenting disputes with the children and shall immediately remove the children from the hearing or presence of any third parties engaging in such discussions.
26.Each of the parents is restrained from denigrating the other parent in the hearing or presence of the children and shall immediately remove the children from the hearing or presence of any third parties engaging in such behaviours.
27.Each parent is authorised by this agreement to obtain at their own expense, information about the children’s education, welfare and development, from any school that the children or either of them attend.
28.Each of the parents is restrained by injunction from using any physical force or any form of physical discipline, corporal punishment or physical coercion on the children or either of them.
29.The parents shall ensure that the children are allowed to freely move their clothing and other personal items between each of their parent’s households.
30.That these reasons be taken out in writing and provided to the parties.
31.The matter is adjourned to 14 February 2023 at 9.30am for mention only in respect of any specific costs applications that may be brought in the proceeding.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Hemming & Hemming has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS

These reasons for judgment were delivered orally. They have been corrected from the transcript in order to make them easier to read.
INTRODUCTION
These are parenting and property settlement proceedings arising out of the breakdown of the marriage between Mr Hemming (“the husband”) and Ms Hemming (“the wife”).
The husband was born in 1980, the wife in 1980. Each of them is now aged 42. They married and commenced cohabitation in 2002. There are two (2) children of the marriage: X born in 2006 (now aged 16 ½) and Y born in 2008 (now aged nearly 14 ½).
In August 2015, the parties separated when the husband moved out of the family home and into adjacent premises that the parties owned. In total, their relationship subsisted for some 13 and a half years or so, although since separation, they have remained financially intertwined to a significant extent.
In terms of parenting, the children initially spent weekends with the husband and school week periods with the wife: see exhibit 11.
From early 2017 until March 2020, the parties implemented a six (6) week rotating arrangement. Pursuant to that arrangement, the children effectively lived with the wife and spent eleven (11) nights out of forty-two (42) with the husband, including two (2) out of three (3) weekends from Friday to Sunday, and alternate Tuesday nights. Although somewhat ad hoc, the parents also split school holiday time essentially equally.
The husband wanted more time with the children. After unsuccessfully pressing the wife at mediation to give him more time, on 18 December 2018 he commenced proceedings.
On 20 March 2020, interim orders were made for the children to live with the wife, and to spend five (5) nights per fortnight with the husband during school terms, being from after school Wednesday to commencement of school Monday, in alternate weeks. Holidays were to be shared more or less equally. The orders provided for “liberal and flexible communication” between the children and the parents. There were various machinery orders and injunctions, including a specific order that the children be allowed to freely move their clothing and other personal items between each household. Most of those interim orders were made by consent; the father’s time with the children was a notable exception. Those arrangements have been in force ever since.
In the parenting proceedings the wife had been seeking sole parental responsibility for the children and the husband had been seeking equal shared parental responsibility. At trial, the wife belatedly conceded that an order for equal shared parental responsibility would be in the best interests of the children.
The question of the husband’s time with the children however remains live. He seeks equal time, by way of a week-about arrangement. The wife seeks to maintain the status quo. This is the major debate. It is agreed that school holidays should continue to be shared essentially equally. There are some minor debates concerning time with the children on special occasions and the like.
As for the property settlement proceedings, the husband seeks to retain fifty-five percent (55%) of the net matrimonial assets whereas the wife seeks a 50/50 division.
Unfortunately, the parties’ separation in this case was quite bitter and there are a number of unresolved emotional wounds from the relationship, particularly on the wife’s part. The litigation itself has been characterised by relatively high levels of conflict throughout. One notable example was the fact that the parties ended up in a debate before me as to the identity of a Court-appointed mediator. This was despite the Court having previously made an order for the husband to submit a panel of three (3) mediators, and for the wife to pick one. It is tedious to set out that particular dispute, beyond recording that it was one of many throughout the course of these proceedings. The children, in particular, have been impacted by the parental disputes, the poor parental communication, and the parents’ lack of trust.
For the reasons which follow, I have decided that the existing five (5) nights per fortnight parenting arrangement should continue, and that an equal time order should not be made. I have also decided that the parties’ property should be divided equally. For convenience, I propose in these reasons to set out my findings and orders in respect of the property settlement proceedings first, as some of the findings in those proceedings are relevant, and give context to, the unhappy and somewhat dysfunctional co-parenting dynamics that have existed since separation.

Unless stated otherwise, statements of fact herein should be read as findings made in accordance with the relevant civil standard.
THE HEARING
The final hearing took place over three (3) days, being 8 and 9 February 2022 and 16 May 2022. The parties made their closing submissions on 16 September 2022, at which time judgment was reserved. In between the February and May tranches of the hearing, the husband was able to obtain relevant financial records of a historical nature. He made active attempts to do so in order to assist the court. The wife displayed less enthusiasm than he did, and when the hearing resumed she was ultimately unable to produce anything significant in terms of her own historical financial circumstances.
Throughout the hearing, Mr Levick of counsel appeared for the husband, and Mr Mueller of counsel appeared for the wife.
The husband relied upon the following documents:
(a)Outline of Case Document filed 4 February 2022;
(b)Draft Minute of Order which was tendered as exhibit 1;
(c)Affidavit of the husband filed 1 February 2022;
(d)Financial Statement of the husband filed 1 February 2022;
(e)Affidavit of Ms L (the husband’s sister) filed 1 February 2022;
(f)Affidavit of Ms K (the husband’s mother) filed 1 February 2022;
(g)Affidavit of Ms Q (a relative of the husband who gives evidence in relation to the husband’s inheritances) filed 1 February 2022; and
(h)Family Report of Dr R, Clinical Psychologist, dated 20 February 2020, which was tendered and marked as exhibit 2.
The wife relied upon the following documents:
(a)Outline of Case Document filed 7 February 2022;
(b)Draft Minute of Order which was tendered as exhibit 3 but later superseded by exhibit 17;
(c)Affidavit of the wife filed 4 February 2022;
(d)Financial Statement of the wife filed 4 February 2022; and
(e)Family Report of Dr R referred to previously.
In addition to this material, the parties tendered numerous exhibits. These will be referred to as relevant.
PART I - PROPERTY SETTLEMENT PROCEEDINGS
THE LAW
I observe that property settlement proceedings are governed by the provisions of Part VIII of the Family Law Act 1975 (Cth) (“the Act”). Broadly, Part VIII of the Act provides that a Court cannot make a property settlement order unless it is “just and equitable” to do so.
In arriving at the mandated just and equitable outcome, I propose to adopt the following approach:
(a)I will identify and value the property, liabilities, and financial resources of the parties (the Balance Sheet);
(b)I will consider whether it is just and equitable to make any property settlement order adjusting the parties’ respective interests therein;
(c)If it is, I will then identify and assess the respective contributions made by each of the parties towards the net assets, pursuant to section 79 of the Act. For convenience, each party’s respective contributions-based entitlement will be expressed in percentage terms;
(d)I will identify and assess the relevant “future factors”, as I would colloquially refer to them, as set out in section 75(2) of the Act, including any relevant matters arising pursuant to section 79(4)(d), 79(4)(f), and 79(4)(g) of the Act. I will then determine what, if any, adjustment for future factors is warranted in respect of each party’s contributions-based entitlement;
(e)Lastly, I will consider the effect of my findings and proposed orders so as to satisfy myself that any property settlement order I am contemplating is “just and equitable.”
This pathway derives from the Full Court’s decision of Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143, adapted to take into account the High Court’s later decision in Stanford & Stanford (2012) FLC 93-518.
STEP 1 – THE BALANCE SHEET
At the end of the hearing the parties tendered a Balance Sheet, which became exhibit 19. Most items were agreed. I reproduce it now, using the same item numbering as the parties, even though it does contain some “blank” line items. Contentious figures have been asterisked (*), and my reasons for arriving at those figures will follow.

REALISABLE “CASH” ASSETS

VALUE

1

G Street, Suburb H (Joint) - 2 residential units rented out

$715,000

2

M Street, Suburb H (Wife)

$700,000

3

E2 Street, Suburb F (Husband)

$410,000

4

E1 Street, Suburb F (D Pty Ltd as trustee for Hemming Family Trust)

$700,000

5

B Street, Suburb C (D Pty Ltd as trustee for Hemming Family Trust)

$550,000

6

ANZ Account #...94 (Husband)

$2,306

7

ANZ Account #...39 (Husband)

$3,695

8

ANZ Account #...17 (Husband) – includes interim property distribution moneys of $193,047

$196,889

9

ANZ Account #...45 (Husband)

$2,580

10

ANZ Account #...65 (Husband)*

$39,693

11

Bank S (Wife)

$4,080

12

Interest in her late father’s estate (Wife)*

$516,666

Assets subtotal

$3,838,179

NOTIONAL ASSETS (ADDBACKS)

13

Donations to Church S (Husband)*

$Nil

14

Partial property settlement moneys already spent (Wife)*

$Nil

15

Partial property settlement moneys already spent (Wife)

$Nil

16

Difference in spent legal costs (Husband)

$49,658

17

(blank)

18

(blank)

19

(blank)

Addbacks subtotal

$49,658

LIABILITIES

20

Joint ANZ Mortgage #...69 (G Street, Suburb H)

$193,583

21

Joint ANZ Mortgage #...25 (E2 Street, Suburb F)

$264,669

22

Joint ANZ Mortgage #...18 (E1 Street, Suburb F)

$180,428

23

Joint ANZ Mortgage #...38 (E1 Street, Suburb F)

$59,018

24

“D Pty Ltd” ANZ Mortgage #...31 (B Street, Suburb C)

$205,515

25

Land tax debt (B Street, Suburb C)

$5,136

26

(blank)

27

Repairs to E2 Street, Suburb F (anticipated)*

$39,693

28

Wife’s HECS / HELP fees (outstanding debt)*

$4,733

Liabilities subtotal

$952,775

SUPERANNUATION

29

Super Fund 1 (Husband)

$182,457

30

Super Fund 2 (Husband)

$1,474

31

Super Fund 3 (Wife)

$59,740

Superannuation subtotal

$243,671

TOTAL NET ASSETS

$3,178,733

I turn now to the disputed items.
Items 10 & 27 – Bank account and anticipated repair costs
As will be seen, these two Balance Sheet items are related, and needed to be considered together.
By way of background, in 2019 a stranger drove their car into the front of the parties’ property at E2 Street, Suburb F, causing significant damage to the home. The husband claimed on his Company J home insurance for the cost of the repairs. They assessed the repair costs at $90,188. By agreement with the husband, Company J paid this amount to the husband’s bank account on the basis that he would then arrange for the repairs to be carried out.
Over time, the husband progressively drew down on those moneys to pay for the repairs. The remaining insurance moneys come to $39,693, as reflected in item 10 of the Balance Sheet, which is an agreed asset figure.
The dispute relates to item 27, namely, the anticipated cost of the remaining repairs. I accept the husband’s evidence that substantial repairs are, in fact, still needed, primarily in respect of the bathroom. I accept his evidence that such repairs will inconvenience the existing tenants, as the bathroom will need to be temporarily out of use. The husband, therefore, intends to have the repairs carried out when the current lease expires, presumably in the very near future. The husband estimates those repairs costs at $40,000, which is slightly more then the left-over insurance moneys paid by Company J. He therefore asks for a $40,000 allowance in item 27.
The wife disputes his figure. She does not concede that any allowance should be made. She contends that the husband will do the repair work himself, or will otherwise get it done by someone else at a discount and thereby make a profit.
I cannot accept the husband’s $40,000 figure as, in my view, his estimate is inadmissible evidence. He does not have the requisite expertise to provide the Court with a cost estimate himself, nor has he provided quotes, or other independent evidence, to corroborate his figure. I am also satisfied that he will try to arrange to get the work done as cheaply as possible.
Equally the wife’s suggestion that the court make no allowance for the repair costs is plainly unjust and unreasonable, as well as being inequitable.
Ultimately, I have decided that repair costs in item 27 will be the amount which is identical to the amount held in the husband’s bank account (item 10) of $39,693. That is to say, items 10 and 27 of the Balance Sheet will effectively cancel each other out.
I take this approach because:
(a)the repair payout from Company J was compensatory by nature. That is, the payment was not a payment intended to reap a profit for the husband but, rather, to compensate him for the reasonable repair costs, as assessed by Company J; and
(b)it is agreed that the husband will retain E2 Street, Suburb F at the conclusion of the proceedings; therefore
(c)if the husband is able to save some of the repair moneys, it will solely be a products of his own efforts in either doing the work himself, or finding a tradesman willing to do the work at a cheaper price than allowed for by Company J. It is just and equitable that he retain any such savings himself; in those circumstances because
(d)likewise, if there is any future problem relating to the quality of the repair work, it is just and equitable – if not inevitable – that the husband will be responsible for any associated losses, including potential loss of rental income while rectification work is carried out.
Item 12 – wife’s interest in her late father’s estate
In a factual sense, there is some complexity about this aspect of the matter.
The wife’s evidence in relation to the estate is set out in her affidavit, in some detail, in paragraphs 265 through to 291, some of which, I should add, has been struck out by way of objections, and the items struck out have not been taken into account by me. Essentially, the wife’s father, the late Mr O, was living in Country T when he passed away in of 2018. He had a will, pursuant to which the wife was appointed the sole executor of his estate. She engaged U Lawyers [Australian solicitors] to assist her with probate.
The financial arrangements of the wife’s late father were complex, in that he was living in a de facto relationship with a Country T woman at the date of his death, and he had previously been in a long term de facto relationship with another Country T woman. Apparently, each of those women had some sort of inheritance rights under Country T law.
In any event, the estate was divided into two (2) separate species of assets, being the assets in Country T, and the assets in Australia. The wife had to engage a Country T legal firm to manage the distribution of her late father’s bequests to his Country T beneficiaries, and she also had to wind up various business and property interests, so that a real property he owned there could pass to his current de facto partner, unencumbered, and with the rights and titles intact.
There was some delay in finalising this aspect of the estate, and questions were raised concerning the possibility of his de facto spouse making a claim on the Australian estate. Ultimately, a settlement was negotiated whereby his de facto spouse relinquished any claims under Australian succession law, as part of the settlement of the Country T portion of the estate.
So, the only relevant estate for present purposes is the Australian estate.
Pursuant to the deceased’s will, his estate is to be divided into three (3) equal shares between the wife, her sister Ms V, and her brother Mr O. The estate comprises a self-managed superannuation fund, various investments, cash deposits, shares, and the like.
I accept the wife’s evidence that, upon commencing the winding up of her father’s estate, she was advised that his self-managed superannuation fund was non-compliant, and that it required auditing, as well as lodgement of income tax returns. The wife gives various details as to what happened in terms of managing those matters.
Ultimately, the wife concedes that the exact figure of $516,666 equates to her one-third share of the Australian estate. It is this amount that the husband seeks to be added to the Balance Sheet in item 12, and I have accepted his argument in this respect. The wife was proposing that a lesser figure of $400,000 only be allowed for.
The estate circumstances are somewhat curious, to say the least. On the wife’s own evidence, she has paid each of her siblings an interim distribution of $220,000 in December of 2019, and then a further $330,000 in December of 2020. I say this is curious because:
(a)at the same time as the wife ensured that her siblings received their one-third share, she in fact overpaid them, each to the tune of around $34,000. It seems there may be some confusion on the wife’s part – or on the part of her advisors – in that the overpayment appears to have been by way of a mistake, and not to have taken into account some taxes, or other charges. In any event, she has not only overpaid them; but
(b)and this is the second point which is curious – the wife has received nothing herself from the estate. The wife effectively says in her affidavit that she has accidentally overpaid her siblings, and that the balance that is left over to distribute to her is less than the amounts already distributed to her siblings and so “I will then have to decide whether I want to commence legal proceedings against them to get the overpayments back.”
The wife was the executor and trustee of her late father’s estate. That she has chosen to pay her siblings more than their apparent entitlement is a matter which, in my view, falls squarely on her shoulders. As the executor and trustee, she could have decided not to make distributions until such point as the circumstances were clarified, particularly given that she was aware, quite some time ago, that the self-managed superannuation fund was non-compliant.
The wife is entitled to pursue repayment from her siblings; they may indeed disgorge the excess moneys they have received voluntarily if they are shown the relevant evidence and proof that they were overpaid. But if the wife does not receive the excess moneys from them then, in any event, it seems to me that the overpayment to the wife’s siblings falls within the category of waste identified by Baker J in Kowaliw & Kowaliw (1981) FLC 91-092. I am especially certain of that particular finding, given that the wife was the executor. In a sense, to use the colloquial, she was in charge of the “purse strings”.
To the extent that the circumstances of the wife’s father’s estate remains somewhat mysterious, and to the extent that the husband makes some legitimate complaints about disclosure, these matters add to, and reinforce my finding, that the full amount of the wife’s inheritance should be included in the Balance Sheet - not some discounted amount selected by the wife. Hence, I allow the full amount of the inheritance in at $516,666.
Item 13 – donations to Church S
The wife seeks to add back the husband’s post-separation donations to Church S, totalling some $83,196. The husband opposes any addback in this respect.
Historically, the husband has always been a generous donor to the Church S. He is passionate about his church; it seems to me that it is an integral part of his life, and has been for a very long time. I accept the husband’s evidence that, back in 2009, he joined a Church committee to look for a building for the Church to buy, and that he advocated for a Church building. I accept his evidence that, in 2017, the Church ran a fundraising drive to raise money to fund the purchase of a building. Not only did the husband enthusiastically support this mission, but he also invested such money as he could. Indeed, his affidavit states that he donated $45,000.
The husband also provides, as exhibit 16, a document which sets out the source of the funds which he donated. The donations, on balance, represent quite a substantial amount of money. To some extent, they have been made from post-separation income of the husband. To some extent, the husband has donated capital. But that capital was in his possession, pursuant to an informal property division which the parties affected upon separation, and which I will refer to later. That is, the husband took the position, quite reasonably, that those moneys were his to use as he saw fit. His Church donations are also tax-deductible. So the amount donated by him does not represent, dollar-for-dollar, the amount of money actually “given away.”
The money is now spent. The smaller donations that comprise part of the $83,196 are reasonable and modest donations, about which nothing really needs to be said. The larger donations, totalling $57,000, do not fall into that particular category. I am not going to add them back in item 13 – the moneys are spent – but I consider their expenditure to be relevant to the assessment of contributions generally.
Item 14 – wife’s partial property settlement
It is common ground that the parties each received $193,047 in December 2019, following the sale of two of their investment properties. Those payments were made pursuant to an interim order.
The husband has retained – and still holds onto – all of his share of that money. It is reflected in his account balances. These particular moneys are included in item 8.
The wife applied $100,000 of her settlement moneys towards the B Street, Suburb C mortgage, but she has spent the other $93,047, and the husband seeks to add back that latter figure. The wife opposes any addback; her case is that she has spent all of that money on reasonable living expenses.
At the outset, I note that approximately $27,000 of that $93,047 was paid to the wife’s solicitors. To add that amount back would be a double-count, because item 16 of the Balance Sheets reflects the extent to which the husband’s legal fees exceeded the wife’s. In that sense, the $27,000 is already accounted for in item 16. So that leaves only $66,047 unaccounted for.
From that $66,047 figure I accept the wife’s evidence that she spent approximately $12,000 on home insurances and school fees, which further reduces the unaccounted-for balance down to around $54,000. The wife says that she has applied the balance of those funds towards legal fees – which again would be a double-count if I were to include such figures, towards school fees and towards general living expenses.
Given the wife’s financial circumstances, particularly that her expenses exceed her income, I do not consider it appropriate to add back the balance spent by the wife. I accept that those moneys fall within the general description of money spent on reasonable living expenses.
I might add here that item 15 involves a similar addback argument in respect of a $15,000 property distribution received by the wife in July 2019. The husband had sought that amount to be added back, but in closing argument he appropriately abandoned that argument and the matter became uncontroversial. Even so, had the husband not abandoned his particular argument on item 15, I would also have found that those moneys in item 15 had been spent on the wife’s reasonable self-support.
Item 28 – wife’s HECS/HELP fees
Each party brought a HECS/HELP debt into the marriage. It was inextricably linked to each of their respective income-earning capacities. Each party worked during the marriage and that income was applied for the benefit of the parties, including the children.

The husband’s HECS or HELP debt was lower than the wife’s because the husband’s parents had generously paid off the first few years’ worth of his debt. The husband’s debt was paid off during the marriage, in combination of the fact that it was a lower debt than the wife’s, but also because it was an agreed position that after the birth of Y in 2008 that the wife effectively became a full-time homemaker. The husband was the primary breadwinner.
It would be unjust and inequitable, in my view, to exclude the wife’s modest residual HECS/HELP debt from the Balance Sheet in circumstances where, given the roles each party adopted during the marriage, the wife has been left with that modest debt.
Like the wife’s argument about the husband’s Church donations, this particular argument reeks of a degree of meanness. It reflects much of what I have observed about these parties’ rather unhappy attitudes towards each other.
STEP 2 – IS IT “JUST AND EQUITABLE” TO MAKE A PROPERTY SETTLEMENT ORDER?
I need say little about this aspect of the matter beyond observing that it was a fairly lengthy relationship, at the end of which the parties remain financially intertwined. There are various assets held by the parties, including by a company which they incorporated. There is a family trust. There is cross-securitising of mortgages as between the various properties owned by the parties.
Each party contends that it would be just and equitable to now make a property settlement order, and in those circumstances, although they disagree as to what that order should be, I am comfortably satisfied that the essential just and equitable requirement identified by the High Court in Stanford (supra) is made out.
STEP 3 – ASSESSMENT OF CONTRIBUTIONS
This was a 13 ½ year relationship. It produced two (2) children. The husband inherited moneys early on, which formed part of the springboard for the parties’ asset base. In 2018, the wife became entitled, at least theoretically, to her post-separation inheritance from her late father. Those moneys are, as indicated, included in the Balance Sheet at full value. In the circumstances of this case, I propose to assess contributions globally across the whole of the parties’ asset base, including the wife’s late inheritance, notwithstanding that the husband made no meaningful contribution towards that inheritance: see Norbis & Norbis (1986) FLC 91 – 712.
Although the parties, particularly the husband, have provided numerous financial documents to the Court, including historical documents, and although the Court has some quite precise evidence as to the purchase of various properties, I emphasise at the outset that the task of arriving at a just and equitable property division is not done with a calculator; it is not a strictly mathematical exercise but more holistic in nature.
This is the nature of the section 79 discretion. How does one weigh homemaking and parenting contributions, for example? In Mallett & Mallett (1984) 156 CLR 605, the High Court of Australia warned Courts not to undervalue such contributions.
Initial contributions
I begin with initial contributions. For context, it is helpful to go back to a little prior to the marriage date.
The parties met when they were at University, where the husband was studying a Bachelors Degree. Both parties were Christians, the husband already an active member of the Church S, or Church S, to which I have referred.
Both parties graduated in 2001. The husband was initially unsuccessful in obtaining employment. The wife commenced casual and part-time work as an educator. At that stage, she was still living at home with her parents, and in that year she claims to have earned $65,000, of which she said she was able to save $40,000 by the time the parties married and commenced cohabitation in 2002.
The husband disputes her figures. The wife failed to produce any independent documentary evidence to corroborate them. She had ample time to do so.
In cross-examination, the wife admitted that she was not good at remembering details of her finances back at that stage. She accepted that her figures were not exact but, rather, were estimates. She also accepted that the full time teaching award for 2001 was $41,000 per annum. On that basis, her earnings and savings figures that year do not appear congruent with that award.
However, the situation is complicated somewhat because the wife’s evidence is that she worked part-time and did casual work. Casual educator work pays a higher daily rate. And in those circumstances, the $41,000 figure set out in the award, in my view, is not necessarily an accurate depiction of what the wife would have earned in that year.
Ultimately, I am satisfied that the wife’s savings were significant, but more likely in the order of $20,000 - $30,000 rather than $40,000. I cannot be any more specific than that.
As for the husband, he owned 1,983 x Company W shares and 600 x Company Z shares that his father had purchased for him when he was a minor: see exhibit 15.
Upon marrying, the parties moved into rental accommodation together.
Contributions during the marriage
At the commencement of the marriage, the wife worked full-time as an educator and her income supported both parties.
The husband could not find professional work and so he took unpaid work as a trainee. He also worked three (3) nightshifts per week from 2000 to 2006 at the Employer AB. He was not overworked in this role. He admits that on each shift he had a couple of hours spare to study the financial news and the share market as reported in newspapers. The husband used this knowledge to trade and build up his existing share portfolio.
I accept the wife’s evidence that the husband’s religious beliefs placed him as the head of the home and that she was expected to adopt a more subservient and supportive role. But even if his beliefs were not founded in religion per se, this is the practical reality of how the parties conducted themselves. The husband managed their bank accounts. The wife had to deposit her income into an account that he controlled. He set up a number of accounts to meet different expenses and would leave only a small amount of money available for the family to live on. In short, although she was the primary breadwinner, the husband was very much their money manager and controller.
The husband was firm about budgets. It made sense for the parties to budget. But the budget that he imposed was rigid and tight, to say the least.
I accept the wife’s evidence that early on she had a weekly allowance of just $55 per week to live on, and I accept her evidence that the husband grudgingly increased this to $200 over time and that she could not freely buy extra items, like clothing. The wife gives evidence that she had to go to the “Op Shop” on occasions to buy clothing, and I accept that evidence. She submitted to an extremely tight budget, about which she was unhappy but in which she ultimately acquiesced.
The wife said that the husband was critical of her if he felt she had spent too much money. He disputed that – while at the same time accepting that at his instigation they went through receipts together every few months and checked them against the budget to see if they “were on track”.
I broadly accept the wife’s evidence as to the husband being critical of her about expenditure of money, especially given it is corroborated by the husband’s own typewritten letter of “apology” to the wife, which is annexure “C” to her affidavit, in which he states:
I held back all but the least amount of money to live on.
(There is a typo in the letter. The word “least” reads as “lease”. That is clearly a typographical error and the word “least” is what was intended.)
In the long run, the husband’s control and rigidity about money was a two-edged sword for the family. Certainly, it helped them financially, but it was unhelpful for the parties’ relationship and at trial the wife showed palpable resentment about it.
From the beginning of the marriage, even though money was tight, the husband made regular tax-deductible donations to Church S and to other Christian organisations. The amounts were modest. The wife acquiesced.
In 2002, the husband inherited some lump sums from his family, namely: $25,171 from an aunt in the United Kingdom and $91,015 from his grandmother in the United Kingdom. There is some dispute about the exactness of those figures and there are questions as to the relevant exchange rate at the time that was applicable. In the end, however, I accept the husband’s evidence as to the above figures. He has produced corroborating documentary records.
The husband’s approach to budgeting, the generosity of the husband’s family, and I should say, the wife submitting to an extremely tight budget - paid off when in 2002 the parties were able to purchase their first home at G Street, Suburb H. They purchased it mortgage-free for $225,000. Settlement occurred in 2003 when the parties moved in: see exhibit 15.
The purchase moneys of $225,000 were made up of:
(a)a deposit of $22,500, which I accept can be traced back to the wife’s pre-existing savings (that is, her savings before the marriage);
(b)the first homeowner’s grant, which was either $7,000 or $14,000. I am unable to make a finding either way, but it does not matter much in the grand scheme of this case;
(c)the above inheritances of the husband, totalling $116,186;
(d)the balance purchase moneys of $79,314 was funded in a way that, oddly enough, neither party can explain.
The wife deposes that by that stage her total savings were $55,000. I am broadly going to accept that figure, but after deducting the $22,500 deposit, these additional savings were only another $32,500, so there is still a shortfall of around $39,000 - $46,000.
The husband is adamant there was no mortgage, and the wife’s evidence is the same. The only way I can see that those balance moneys were paid without a mortgage is if the husband’s mother assisted, by paying that “missing” amount. Ironically and somewhat unusually in this case, it is the wife, not the husband, who says that the husband’s mother financially assisted them. I also note that the husband’s mother swore an affidavit setting out the details of the various loans she had given the parties [which does not include any such advance].
Nonetheless, on balance, and weighing these things up, it seems to me that the likely explanation for the $39,000 to $46,000 of unexplained purchase moneys is that the husband’s mother gifted those moneys to the parties, and that is the finding I would make.
G Street, Suburb H comprised two units. The parties lived in one and rented out the other; initially for $100 a week, and later for $140 per week. The husband donated the whole of the rental income to Church S which, again the wife was not happy about, but acquiesced in. The husband’s public generosity to Church S, while being privately parsimonious towards the wife was a feature of their marriage and, in my view, contributed to some of the resentment that has arisen in this case.
In 2004, the wife left the education environment, taking up work at Employer AC. She deposed that her starting salary was $72,000, but independent evidence – and I am referring here to exhibit 7 being the screenshot of the wife’s 2005 tax return – showed that her gross income that year was $43,000. She questioned the veracity of that document when it was shown to her, but I reject her challenge to it, and I accept that this evidence is reliable.
In any event, the wife was still earning more income than the husband was; she was the primary breadwinner.
Up to 2005, the husband’s personal exertion income had been very modest. I do not say that disrespectfully - the reality is he had not found work as a professional, and he did not want to do work that was not going to assist him in his planned career.
When in 2006 he did obtain work as a professional, this was the first time the husband had worked on a full-time basis during the marriage. At that stage, his income increased to around $45,000. Regrettably, but unavoidably, he was also required to work very long hours, seemingly leaving home around 8 am in the morning, and returning home as late as 8 o’clock at night. This was a feature of his employment thereafter, which continued through the rest of the marriage. I accept that the wife took on the primary homemaking role at that time, including doing outdoor work, such as mowing and maintaining the gardens. The wife had always been primarily responsible for such roles, even when she was acting as primary breadwinner.
X was born in 2006. The wife received a baby bonus of $6,000 as well as Family Tax Benefits. She planned to take twelve (12) months unpaid maternity leave after her birth. She wanted to stop the generous donations to Church S, but the husband refused and such donations continued. The husband also required of the wife that she buy second-hand baby and maternity items, and cloth nappies rather than disposable nappies, to save money. Save money it did, but at the cost that the wife then had to do a lot more washing work than if she had bought disposable nappies.
But even with these cost savings, the parties ended up going through their money rather more quickly than they would have liked, and the wife returned to work for one (1) day a week when X was just seven (7) months old.
I should say that X had some difficulties as a baby, and that the wife obviously had to get up during the night, and care for her. I do not say that to be critical of the husband in any way, he was acting as the primary breadwinner – but merely to emphasise that the wife was making significant contributions around the home.
In 2007, the husband inherited $151,346 from his late father. The parties decided, that same year, to purchase the home at M Street, Suburb H. The purchase price was $266,000. Again, there was no mortgage. The purchase moneys were made up of:
(a)the husband’s inheritance of $151,346;
(b)an $18,000 interest-free loan from the husband’s mother, Ms K: see exhibit 15. I note here that, as an offset, the husband did some renovation and repair work to Ms K’s home over the next eight (8) years or so, and deducted the cost of materials purchased by him from such debt. I accept her evidence that he repaid $9,572 to her in this manner;
(c)the sum of $68,533, being proceeds of the sale of the husband’s shares in Company AD, Company AE, Company AF, Company AG, Company AH – collectively totalling $53,203 – and Company AJ $15,330. To be clear, although the husband had acquired those shares and managed them, obviously in a profitable way, the shares were matrimonial property that, effectively, arose out of the joint labours of the parties;
(d)the balance of the purchase price was made up out of the parties’ savings, together with a loan of $15,000 from the husband’s uncle although, ultimately, this was “buffer money” only, and the parties did not, in fact, need to draw upon it, and it was able to be repaid to the uncle.
Somewhere around this time, the husband sold his gifted Company Z shares for around $12,620.
To pause at this point, the husband submitted at trial that because of his family’s financial generosity, the parties had acquired two (2) mortgage-free homes by 2007. There is some merit in this submission. But it is also true that the wife had herself made significant contributions, both as an income earner and as a homemaker and parent - and particularly noting her financial sacrifices, to which I have referred. But certainly, the husband has a “springboard” argument of some strength in terms of those contributions from his family.
After purchasing M Street, Suburb H, the parties moved into that property. The husband was still donating rent money from the G Street, Suburb H property to Church S, which amounts increased over time to around $200 per week.
Y was born in 2008. Like his older sister, he was something of a challenging baby. He had various sleep issues. At this stage, the wife stopped all work as an educator and she was, again, very much acting as a full-time homemaker and parent.
Later in 2008, the parties purchased E2 Street, Suburb F. It seems on the evidence this is the first time that they had to borrow money from a bank. Over the next few years, they went on to acquire a number of other real properties, either in their own names or through the Hemming Family Trust.
They acquired E2 Street, Suburb F, which I have referred to, purchasing it in 2008/2009 for $255,000 and later renovating it to create five (5) separate accommodation units for students. In 2011, the husband incorporated D Pty Ltd to act as corporate trustee for the Hemming Family Trust. The wife was a director and shareholder of the company as well as a beneficiary under the trust together with him. But the husband was the driver of these structures. I do not say this disrespectfully to the wife, but it seems to me that, at least at that stage, her role was essentially limited to signing the paperwork when it was presented to her.
In 2011, the parties subdivided E2 Street, Suburb F to create E1 Street, Suburb F, a new premises which they constructed and which included a seven (7) bedroom boarding house for student accommodation. This cost them $450,000. The property was registered in the name of D Pty Ltd so that the income could be distributed tax-effectively through the trust.
In 2012 the parties purchased M Street, Suburb H for $320,000. This was rented out as a three bedroom home.
In 2013 the parties purchased AK Street for $320,000, renovating that property to create further student accommodation.
In 2014, the parties purchased B Street, Suburb C for $367,500. They then renovated and rented it out as student accommodation. Again, it was registered in the name of D Pty Ltd for the purposes of distributing the income through the trust in a tax-effective way.
All of these properties or renovations, namely E2 Street, Suburb F, E1 Street, Suburb F, M Street, Suburb H, AK Street and B Street, Suburb C, were funded by borrowings or securities given to the bank. But by then, the parties already had a “springboard” in terms of an asset base and the debt levels that they incurred were much less than the value of the properties they had / were acquiring.
I broadly accept the wife’s evidence that from 2009 until separation in August 2015, that she managed their investment properties, including vetting prospective tenants, organising leases and direct debits for rental payments into accounts nominated by the husband, overseeing repairs and maintenance work, mowing lawns and doing general garden maintenance, doing bookkeeping and financial record keeping and conducting property inspections. Overall, she did a significant amount of work.
The husband says that he did most of the work and this is a disputed fact. But given the long hours the husband worked, I accept the wife’s evidence that she did most of it. This is not to say that the husband did not contribute. I accept that he did some of the property maintenance and he assisted the wife with various aspects of the properties.
Notably again, the husband controlled the income, not the wife. I accept that the husband also attended upon the accountant for the purposes of preparing the necessary tax returns and the like.
Ms K loaned the parties some $48,000 or so during the marriage as set out in her affidavit. The loans were on favourable terms with limited interest. She also paid for the children’s private school fees when they were at junior school. This is a contribution that I would regard as a contribution on the husband’s behalf: see Gosper & Gosper (1987) FLC 91-818. The husband made regular generous Church donations throughout the marriage.
Post-separation contributions

Given the length of time since separation, these assume some significance.
At separation, the wife stayed in the property at M Street, Suburb H with the children. The husband moved into one of the two residential units at G Street, Suburb H, which was diagonally back-to-back with the property at M Street, Suburb H.
The wife continued as primary carer of the children. She remained a stay-at-home mother. The children had various anxiety and health issues, primarily anxiety-related, and they missed a lot of school in the period 2016 - 2018, which I will discuss later in the context of the parenting proceedings.
In this initial period, the husband continued working as a professional on a full-time basis.
The wife alleges that in late 2015, the husband told her that he was entitled to a seventy percent (70 %) share of their joint property based on his inheritances. On that basis, he said she could retain B Street, Suburb C and the rent income, as well as retaining the former matrimonial home at M Street, Suburb H which was unencumbered. The wife says that he told her he would keep the rental income from the other five (5) properties and that as an interim measure until she returned to full-time educator work, he would apply some of his rental income to meet the B Street, Suburb C mortgage and the insurances for both B Street, Suburb C and M Street, Suburb H.
The husband gives a different version of events. He vigorously disputes that he ever suggested proposing a 70/30 division. Rather, he says that he proposed that there be a 50/50 division based on the value of the assets as at 30 June 2016. He agrees that he said he would take five (5) of the seven properties, the shell company D Pty Ltd and the family trust and liability for all loans which he says totalled $1.5 million. He says that there were minutes of that agreement as recorded by him and sent to the wife. The husband was able to produce those minutes. They became exhibit 11.
I accept the reliability of that document. I accept that the parties in fact agreed – at least, it seems to me – on a 50/50 division as at 30 June 2016, some seven (7) months after the date of the agreement, being effectively the “settlement date” for the purpose of calculating their respective entitlements.
I do accept the wife’s evidence that she felt pressured by the husband about reaching agreement. Her consent, like many aspects of their financial relationship during the marriage, was given perhaps reluctantly or it might be better expressed as she “acquiesced” in what the husband told her should happen.
That said, and to be fair to the husband, he was thereafter entitled to proceed on the basis that he would be receiving the rental income from the five (5) properties and each party effectively conducted their financial affairs on that basis from that point onwards, subject to some other difficulties which I will turn to shortly. As for the wife, she lived in M Street, Suburb H with no mortgage. The home had solar panels, so there were reduced electricity bills or potentially even electricity credits. She also kept the rent income from B Street, Suburb C, initially $530 and later increasing to $720 per week while the husband met the mortgage and outgoings for that property. The husband also paid the insurances for M Street, Suburb H as referred to earlier.
The husband kept the rental income for the other five (5) properties, being G Street, Suburb H, E1 Street, Suburb F and E2 Street, Suburb F, M Street, Suburb H and AK Street. The wife estimated the gross rent from these properties at $3,070 per week and the net income at $1,770 after mortgages, rates and insurances were paid. The husband disputes those figures. His counsel pointed me to pages 3 - 5 of the husband’s Financial Statement of 1 February 2022, which shows much more conservative figures in the order of $800 net per week. However, those figures are not necessarily of much assistance, as by that stage the parties had sold M Street, Suburb H and AK Street so the rental income was inevitably much reduced.
The husband in this case generally provided the Court with quite significant details as to financial matters where he was able to do so, but, somewhat curiously, his evidence as to the rental income he received from these five (5) properties lacks any real particularity. In the circumstances, I broadly accept the wife’s evidence that the net income figure would have been in the order of $1,770 per week - but likely somewhat less than this. The evidence does not permit me to be any more accurate than this.
In November of 2015, the husband repaid $32,153 to his mother on account of various loans, leaving a net loan amount of $15,496 still owing to her, according to his mother’s affidavit. While some repayments had already been made over prior years, Mrs Hemming was obviously quite generous to the husband, and indeed to both parties, and the repayment arrangements had always been fairly “loose”.
Some of the moneys the husband repaid his mother after separation may well have been statute-barred in terms of being able to be formally recovered by his mother from him. In any event, such amounts were unlikely, in my view, to be enforced as true debts.
The practical effect is that the repayment by the husband to his mother is relevant to the contributions credit otherwise referrable to the husband on account of his mother’s generosity. To be clear, I am not being in any way critical of the husband for repaying his mother moneys in those circumstances, but it is relevant in terms of contributions.
Whatever the husband’s exact rental income may have been, it is clear that in December 2016, he was able to cease work as a professional. The wife had estimated that he was earning $115,000 per annum at the time, but a payslip he produced and a 2017 income tax return showed that his true annual income was around $72,000.
The husband’s termination payment is a little unclear. Doing the best I can, it appears to have been around $19,000, which I calculate by reference to:
(a)the fact that the payslip is dated 31 December 2016 or thereabouts;
(b)that up to that point in time, he should have earned $36,000 gross in accordance with his usual salary; but
(c)the payslip shows that he had in fact earned $55,000: see exhibit 14. The wife did not accept the payslip, even going as far as to suggest that “her 14 year-old son could have generated” it. I reject the wife’s challenge and accept that the husband’s documents are accurate.
Despite ceasing full-time work as a registered professional, the husband still undertook casual and contract work. It is true that the husband had “had enough” of professional work at this time, but he also made a conscious choice to maximise his time with the children and calculated that he could largely live off his rental income – which was, in my view, significant. (If further evidence as to that point was needed, the husband does admit to loaning his sister Ms L a figure of $51,500 in early 2018 which he says came from the rental income.)
At different times, the wife either sought an assessment of child support from the husband or an assessment was automatically generated because of her receipt of Family Tax benefits. The husband consistently objected to any such assessments and ultimately did not ever pay any formal child support. The wife’s Family Tax benefits were reduced as a result, but I do not have any precise figures in this respect.
In May 2018, the post-separation financial arrangements began to unravel. The husband accuses the wife of withdrawing money from joint accounts. She says that he withdrew money first. It probably does not matter, and it is not clear to me who is right and who is wrong. It suffices to observe that the wife did withdraw $31,000 from joint accounts of the parties and that the husband thereafter withdrew $39,950, which he initially transferred to his sister Ms L to hold for him and to preserve.
To use the colloquial, this is the point when “all bets were off” and the husband took the view that if the wife was going to access these joint moneys, then she should start paying the B Street, Suburb C mortgage, especially given she was receiving the rental income. Later that year, it would be fair to say that a financial storm was starting to brew when some of the ANZ loans over the various properties converted from interest-only to principal and interest. By July/August 2018, the husband stopped paying both of the mortgages on B Street, Suburb C. The wife started paying one of the mortgages.
It was around this time that the wife’s father passed away, as referred to earlier.
In September 2018, the ANZ sent some arrears notices to the parties about B Street, Suburb C. At that time, the parties were $1,550 in arrears of the mortgage. The husband suggested a sale of the property, the wife refused. Further notices were sent from the bank and the husband told ANZ that they needed to talk to the wife. To put it simply, the parties were at an impasse.
According to exhibit 6, on 15 January 2019 the ANZ sent a notice of termination and demand to D Pty Ltd concerning three (3) loans being in default. The total amount of the loans the subject of the defaults totalled $554,697. ANZ made an immediate demand for repayment and threatened debt recovery steps.
On 25 January 2019, the husband’s solicitors wrote to the wife’s solicitors suggesting the urgent sale of B Street, Suburb C and E1 Street, Suburb F. The husband’s solicitors suggested that a family member of his (his sister Ms L) was willing to buy E1 Street, Suburb F for the value as per the previous valuation and he also indicated he was agreeable for the wife to purchase B Street, Suburb C for its previous valuation. The wife paints a slightly different picture in this respect, but I accept the husband’s evidence in this regard.
In January 2019, the wife began applying all of her rental income from B Street, Suburb C towards the mortgage and property outgoings. She was by then under increasing financial pressure and starting to struggle and go backwards financially.
In February 2019, this Court made interim orders that a bank account balance of $30,600 be divided equally between the parties. The wife makes an unfair and unreasonable complaint that the husband in some way “dragged his heels” about signing the requisite bank authorities so as to authorise the release. She clearly implies that he delayed the process by some five (5) months. Her criticism of him is entirely unfounded. I accept the husband’s evidence that the wife never sent the relevant authority to him until June 2019, nearly four (4) months after the order had been made. He returned it to her within six (6) days; he cannot be criticised in this respect. The wife also criticised the husband that only $15,000 was released instead of one half of the account - being $15,300 – but what the wife does not mention is that the $15,000 figure was one that she wrote into the relevant authority: see exhibit 12. The wife’s evidence on this topic was unimpressive, to say the least.
Pursuant to the subsequent consent orders of 10 September 2019, which were made to try to reduce debts and to generally assist the parties to “remain afloat” financially, the parties were to sell two (2) of the investment properties, namely M Street, Suburb H and the property at AK Street.
In October 2019, the husband stopped paying the mortgages for both of those properties, while continuing to pocket their rental income.
The property at AK Street settled in late November 2019, M Street, Suburb H settled in late December 2019. At settlement, the mortgage arrears were paid out and each party ultimately received $193,047 that I have referred to earlier in the Balance Sheet. As I noted earlier, the husband has effectively retained his half share in full. Notably, he was able to loan it to his sister in full, together with another $60,000 or so, and she repaid all of that money to him in March 2020.
I should just note for the record that, in relation to the $100,000 of those moneys which the wife applied towards the mortgage on B Street, Suburb C, that she stopped making any mortgage repayments after that date, striking an agreement with the bank that the repayments would resume in 2024. As at the time this matter came on for trial before me, she was still $62,261 ahead on the mortgage: see exhibit 13.
In 2020, the husband’s sister purchased a property at AL Street, Suburb H. By agreement, the husband lived there rent-free for a year, until the end of 2021, when he started to pay her rent of $420 per week. The rent-free accommodation offered to him was on the basis that he would renovate the granny flat at the property, which he did.
Weighing up contributions
The initial contributions and family gifts/inheritances clearly favour the husband. They provided a significant “springboard” to the parties to acquire real estate at a relatively young age, and without a mortgage for their first two (2) real properties.
Both parties worked very hard during the marriage in their respective spheres. The husband was able to preserve his inheritances to some extent because of the extremely frugal approach he took to spending in the early years of marriage, and to which the wife submitted. The practical effect is that, the parties largely lived off the wife’s income.
I am also mindful of the wife’s contributions as homemaker and parent, and the need not to undervalue same particularly given the husband’s long work hours from 2006 onwards. Of course, it should also be said that the husband has, himself, made parenting and homemaking contributions as well, though less than those of the wife.
Post-separation, the wife has been the primary carer of the children. She had the benefit of the former home with no mortgage; she also received the rental income from B Street, Suburb C. The income the wife received from B Street, Suburb C appears to be greater than the actual distributions recorded as being made to her in the financial records of the trust.
The husband had the benefit of a greater passive rental income than the wife. The wife has then come into a very late, but significant, inheritance. As against that, the husband has retained the whole of the interim property division of $193,047.
Each party has superannuation arising out of their own employment; each party effectively supported the other to work.
Overall, the husband’s counsel contended that contributions favour the husband 55% - 45%. The wife contended that contributions should be assessed equally. Weighing up all the matters to which I have referred, I assess the husband’s contributions at fifty-one percent (51%), and the wife’s at forty-nine percent (49%).
On the basis of their assessed contributions entitlement, the husband would be entitled to net assets of $1,621,154, and the wife $1,557,579.
STEP 4 – ADJUSTMENTS FOR FUTURE FACTORS
Both parties are 42 years old and in good health.
Each has a significant contribution-based property entitlement.
The husband presently undertakes work for “AM”. Although a qualified professional, he cannot practice as one because he is not formally registered. Professional indemnity insurance would be required for him to register, such insurance is prohibitive in its cost, and I accept that the husband has no desire to undertake such work. He may, however, continue to do other work for people such as “AM”.
The husband also works as a property manager for the parties’ remaining investment properties, as well as managing some other properties belonging to friends of his, and a property belonging to his sister.
The husband has a genuine income-earning capacity, he seems content to live in a reasonably frugal way, and he has substantial money in the bank.
The wife is a qualified educator. She last worked as an educator in 2020, but at trial she admitted she had been offered a job in Sydney the very day before. She did not take that job, as she said she was “too focussed on the Court case.”
Like the husband, the wife also has property management experience. She also receives rental income from B Street, Suburb C.
The wife refused to be vaccinated against COVID-19, a topic I will discuss later in the parenting proceedings, the result being that her places of employment would not, in fact, accept her to work until 14 May this year. She can however now work as an educator and earn $400 per day on a casual rate. She has a genuine earning capacity as an educator, albeit unexercised for some years.
I consider that both parties have the capacity to meet their reasonable outgoings, particularly once their finances are separated, and the mortgages are appropriately restructured. Each party has significant access to cash resources. Both parties should have a reasonable standard of living.
The wife will continue as primary carer of the children, pursuant to the parenting orders I am going to make which I will shortly turn to. I am satisfied the husband is unlikely to ever pay her any child support.
The wife has received Family Tax benefits from time to time, but in 2021 these were cancelled due to the husband’s late lodgement of company and trust tax returns. Up to that point, the wife had been receiving $211 per week in Family Tax benefits.
Neither party cohabits with anyone else.
Overall, I consider that the wife’s ongoing primary care and support of the children, the lack of any child support, and the potential impact that her care of the children will have on the wife’s work commitments warrants a one per cent (1%) adjustment in her favour. One percent (1%) may sound tokenistic. It is not, it equates to $31,787. I consider such an adjustment to be appropriate.
STEP 5 – CONSIDERING THE EFFECT OF MY FINDINGS AND ENSURING A JUST & EQUITABLE OUTCOME
I have concluded that each party should receive fifty percent (50%) of the net assets, or $1,589,366.50.
That said, the husband holds a disproportionate share of the superannuation assets; it would not be just and equitable to saddle him with that disproportionate share of the superannuation given the deferred nature of the benefit that it confers. It is just and equitable to split the super funds equally between the parties.
Put another way, the non-superannuation assets will be divided 50/50, and the combined super will be divided 50/50 by way of a splitting order.
In terms of form, the asset division is agreed. The dispute relates to the quantum of the cash payment to be made. But given the cross-securitising of various loans over their real property portfolio, the parties sought that, instead of the more usual cash adjustment from one to the other, that instead their respective mortgage debts be readjusted.
I contemplated such an outcome, but I am not much enamoured of it given that:
·firstly, it will require each of them to make appropriate refinancing arrangements with the bank;
·secondly, the exact mortgage balances as at the date of any discussions with the bank will inevitably be different to the balances the parties have agreed upon in the Balance Sheet, and which I have based my calculations on in this judgment.
On the latter point, the bank will not care what numbers I have worked from. The bank will care about what the current numbers are - and if there is one thing that I do not want these parties to have again, it is another argument before the Court based on “dollars and cents” and what proportion of adjustment should be made according to my reasons vis-à-vis the final figures as presented to the bank. It would be a nightmare, and my own sense is that I would be very surprised if the solicitor for the wife and the solicitor for the husband would actually reach agreement on it. But even if they did, I see no reason not to simply go ahead and to make a standard order for payment of a cash sum. It is much simpler, and it will avoid some of these problems.

The husband denied such behaviour, but in his October 2015 letter, he apologises that:
“I had sex with you starting when you were asleep, which you did not like.”
The letter in question is annexure C to the wife’s affidavit. Given the husband’s admission and my other findings about the nature of the parental roles during the marriage, I broadly accept the wife’s complaints about such conduct. I am satisfied that the husband’s behaviour was at best sexually abusive behaviour and thus “family violence” as defined in section 4AB of the Act.
It is not necessary nor is it appropriate for me to attempt to make any other findings about that issue. I do not need to. What I am satisfied about, however, is that such behaviour had a substantial impact on the wife over time and particularly, her feelings towards the husband and her ability and willingness to trust him and to communicate constructively with him.
The wife is also resentful about another matter which I will touch on briefly. In particular, the wife, the husband and the husband’s friend Mr AN, ended up in some sort of sexual threesome for a period towards the end of the marriage. The wife says that the husband relentlessly pushed her into this arrangement and that he effectively coerced her into doing so. She says she felt like she was being treated like a prostitute, but that ultimately, she ended up agreeing to this arrangement. She says that the arrangement then continued for several further occasions over a number of months and that according to her:
“I hated every second and every minute of these sexual encounters. I felt very physically abused, disrespected, emotionally manipulated and physically sick in the lead up to, during and after each of these sexual encounters that [Mr Hemming] engineered.”
She says the abuse only stopped when she met with Mr AN by herself and explained to him that she hated being manipulated by the husband, at which point he confessed that he was sorry and that he thought she was consenting.
Such conduct may amount to sexually abusive behaviour on the husband’s part and thus “family violence”. However, I do not make a specific finding on that point because it seems to me that the situation is rather more murky than is the case in relation to the husband engaging in sexual activity when the wife was asleep and unable to consent. The fact is that the wife did not tell me in her affidavit that she chose to continue an intimate relationship with Mr AN for months after separation. In circumstances where the wife continued a sexual relationship with Mr AN, it seems to me that the Court ought to be very careful, particularly careful, about making any findings as to family violence in that respect. And I make no such finding, save observing that at the very least, the husband was pushy towards the wife and applied pressure to the wife. In my view, this did have a marked negative impact on the parents’ relationship. Indeed, reading the material one gets the sense that the husband had opened a “Pandora’s Box” in terms of Mr AN and that the husband deeply regretted everything that had happened.
In any event, I raise the matter merely to observe that it also informs the rather sad co-parenting dynamics in this case. It would be remiss of me not to record that there are factual disputes about the husband’s letter of apology. The wife says the husband sent it to her. He denies ever doing so. He says it was written by him as a personal document which was effectively in the nature of – perhaps for want of a better word – a form of therapy or self-cleansing, as it were. He certainly says he never sent it to the wife. I do not know which party’s version is true and I do not consider I need to make a finding.
The wife says that the husband’s apology letter was read out to Church without her knowledge or consent:
“I found this action completely humiliating. It is still really humiliating to think about, but I can’t even remember exactly what happened that day because I’ve tried to block most of it out.”
This is a rather bizarre paragraph because in cross-examination the wife admitted that she was not in Church at the time of this alleged event. It seems that she was told that the husband had read it out in Church, which is totally contrary to the flavour of what the wife deposes to in her affidavit. The husband denies reading it out in Church and I accept the husband’s denial.
These things being said, the fact is that there was some emotional harm done between these parents, particularly some harm to the wife as the relationship progressed.
And although issues of “matrimonial fault” and the like are irrelevant in the context of parenting cases, the concept of matrimonial fault having been abolished many years ago, nonetheless the facts and matters to which I have referred in this respect – particularly, the sexual matters and the financial controlling matters – do inform how the parties got to the awkward situation they are in today.
The parties have not communicated very well. At times, the children have likely had to act as go-betweens, which is unfortunate. The wife’s negativity towards her husband appears in the Family Report where she suggested that the husband’s time with the children be reduced to two (2) nights per fortnight. In my view, that was nothing more and nothing less than her resentment speaking.
In the wife’s care, the children’s school absences in 2016, 2017 and 2018 were unacceptably high. In large part, the children’s absences were likely anxiety-related, given the ongoing parental tension. But the absence of proper parental communication was problematic.
By 2018, the husband had contacted the school, seeking that they advise him whenever the children were absent for a medical reason or otherwise. He was particularly concerned about Y’s ongoing complaints of abdominal pain and about the wife obtaining her own medical advice, including a recommendation for an elimination diet. He told the school he was afraid the wife was doctor shopping and even mentioned her possibly having Munchausen’s by-proxy Syndrome, which he explained in the witness box as:
“making other people sick to get attention.”
On any view, his attitude towards the wife as a parent was quite negative for him to make such accusations against her.
The school followed up the absences with the wife the same day: exhibit 5. On 8 November 2018, the school convened a more formal meeting with the wife to discuss the children’s chronic absences. And after that meeting, their attendance improved and that issue fell away. (The absences are set out in the husband’s affidavit at paragraph 68 and a relevant record of Institution AO is exhibit 10.)
In 2018, the husband was anxious that the wife may have been giving colloidal silver to the children – an unconventional medical treatment. Having taken advice from his own GP about its dangers, he contacted the children’s GP to express that concern. Later that day when the wife took X to the GP with flu-like symptoms, the GP warned the wife about the dangers of colloidal silver and told her about the husband’s earlier call.
The wife denied ever giving colloidal silver to X. I accept that denial.
A modicum of sensible co-parental communication, goodwill and trust might have saved significant angst for all parties in relation to the school absences and medical issues.
As can be seen, medical issues have been a “flashpoint” for conflict between these parents. I accept the wife attended to the children’s medical matters during the relationship. Her evidence is that the husband tried to impose control on such matters post-separation.
She says when she obtained a mental health plan for X, that she told the husband about it and then he unilaterally arranged his own counsellors for the children. She acquiesced and took the children to those counsellors. I accept her evidence about that. She says the children went to counselling for eighteen (18) months by which time they were well and truly weary of it, having told her they wanted to stop months earlier. I accept her evidence.
Each parent accuses the other of “doctor shopping” at different times - the husband’s being referred to earlier. But the wife also accused him of “doctor shopping” in the context of seeking an ADHD diagnosis for X. She accused him of not listening to doctors who said she did not have ADHD. She also criticises the husband for telling X that he thinks she has ADHD. I should note here that the husband himself has ADHD. He may well have a reasonable suspicion about this in terms of X, who has never been formally diagnosed.
It is true also that the wife has some unconventional attitudes to medical treatment for the children. One such matter relates to vaccines for COVID-19. I will not repeat paragraphs 151 to 170 of the wife’s affidavit, but it suffices to say that she is resistant to COVID-19 vaccination. She does not trust or believe that mRNA vaccines, such as Pfizer, are safe. The children have expressed fears to her about such vaccines. She has done a significant amount of research, presumably over the internet, in relation to COVID-19 vaccination, although he hastened to tell me in the witness box, as well as in her affidavit, that the research she looked at was not conspiracy-based but was “peer reviewed” medical information.
The upshot of all of this is that I am comfortably satisfied that she has actively shared her vaccination fears with the children. She may even have induced the children’s fears in relation to COVID-19 vaccination.
Certainly, the wife has done nothing to dissuade the children from having those fears. And when the husband made arrangements for the children to be vaccinated without telling her, she then cancelled that vaccination, saying the children did not want it.
I saw the wife give evidence about this topic and it was most unimpressive. In my view, she clearly did not respect the science in relation to vaccination. I certainly formed the view that her evidence about vaccination had a conspiratorial flavour. Perhaps most significantly, the children’s GP had suggested they should be vaccinated. In that regard, it is ironic that the wife had complained to Dr R in the Family Report (paragraph 73) that she was the one who always followed medical advice and that it was the husband who made things difficult. She complained that he does not support the medical interventions that she provides, noting that her medical intervention is always on the advice of an appropriate medical practitioner. That is simply untrue in the context of the COVID-19 vaccination.
The wife has the view that the bulk of the medical fraternity in this country, and indeed the western world, and presumably also the regulatory bodies in Australia and the western world, generally are wrong and she is right. If I was in doubt about her attitude on this point, that doubt was removed by reference to the Novavax vaccine. The wife expressed in her affidavit that she may agree to the Novavax vaccine being administered to the children because it was not an mRNA vaccine and she was of the view that it might be something that should be considered in the future.
Unfortunately for her, the Novavax vaccine was approved prior to the trial concluding and, when it was suggested to her that such vaccine actually be given to the children, it was quite apparent that she could not retreat quickly enough.
Relevantly in terms of these proceedings, the husband ended up having to bring an application for the children to be vaccinated against COVID-19. The wife opposed his application, seeking that it be “dismissed as having no merit.” The application was listed in the Court’s COVID-19 list and ultimately, a consent order was made before Judge Kearney. The consent order provided that the husband could have the children vaccinated.
The wife had no intention of doing anything to assist him to do so. Instead, she continued to validate and confirm the children’s anxieties and effectively subvert that order. The husband, after trying to push the issue for a period, ultimately gave up and did not seek to enforce it.
This is ironic - because for all of the times the husband probably controlled the wife, this is one occasion where in my view she controlled him in a most manipulative way. It was the husband who had to back down for a change instead of the wife. But to be fair to him, it demonstrated that the husband can be child-focused and does not always have to have his own way. He was the more child-focused of the two, in my view, when it came to this issue.
I expressed concern about the wife’s vaccination evidence at the time of the hearing and I rather suspect that my criticism of her evidence informed her decision to agree to an order for equal shared parental responsibility. In any event, it is to her credit that she did belatedly agree to such an order.
As I have indicated, I do consider that equal shared parental responsibility with some reservations ought to be made as an order as being in the children’s best interests. In my view, the husband is a useful and necessary “counterbalance” to the wife’s influence in terms of unconventional medical attitudes.
Section 60CC(3)(g) – childrens’ characteristics
X is in year 10 at school. She is at times inattentive. She may have some learning difficulties. The husband considers she may have ADHD, but this was medically ruled out in 2019. Instead, the medical advice was that her issues related to the marital separation and its impact on her. The husband, who has ADHD, thinks X does too. I accept he is being genuine about that. I accept that the wife is also genuine when she says she does not want any further testing.
X also has hypermobile joints which cause her pain at times.
Y is in year 8 at school and performing well academically. He is in good health. Fortunately, his abdominal problems have subsided.
In my view, both of these children, given everything they have been through since separation, would benefit from stable, predictable co-parenting arrangements. They need sensitive and careful handling from this Court because, regrettably, at times both parents have caused the children to be caught up and embroiled in ongoing conflict and distrust.
Section 60CC(3)(j) & s 60CC(3)(k) – family violence and related orders
I am satisfied on the evidence that the husband has perpetrated family violence against the wife. Noting the content of his letter of apology, I have already referred to his sexually abusive behaviour, and particularly assaulting or effectively assaulting her when she was asleep. Such behaviour is sexually abusive behaviour and fits within the definition of family violence.
I also consider that the extent to which the husband restricted the wife’s access to money as a feature of the marriage would fall within the definition of “unreasonably denying the wife the financial autonomy she otherwise would have had” or “unreasonably withholding financial support at a time when she was dependent upon him”. It is probably unnecessary to make a specific finding about such matters because, as I have indicated, I do intend to order equal-shared parental responsibility as requested by both parties. Nonetheless, I am obliged to take such behaviour into account, though, as I have indicated earlier, I do not consider that the children are now at unacceptable risk of any such behaviour in either parent’s home.
Section 60CC(3)(l) – future litigation
In terms of future litigation, it is important that these children do not end up back in this Court, although the children’s ages do seem to make such a risk fairly remote.
Subject to any appeal, the practical reality is that the ages of the children will make it increasingly difficult for this Court to be overly prescriptive about arrangements.
Section 60CC(3)(m) – other relevant facts or circumstances
Nothing particular arises.
WEIGHING UP THE COMPETING PROPOSALS
I come then to weigh up the competing proposals of seven (7) nights – v – five (5) nights per fortnight.
Seven (7) nights a fortnight is an unknown and would be a major change for the children. There is no reliable evidence that they are seeking such a change to the longstanding arrangements which they have grown accustomed to. They are used to having the wife as their primary carer. I am particularly concerned about the impact on the children of bringing about another significant change for them. It is well and good to say that seven (7) nights is not much more than five (5) nights per fortnight, but it makes a significant difference - the children would no longer have a primary home with their mother.
Particularly as the children enter their final years of school, most especially X who is 16 ½ years old, I am concerned that such a change would be disruptive.
The husband agreed at trial that equal time requires cooperation between the parents and a capacity to work together. To this stage, the parents have achieved that, but only at a very basic level and with the children having been, in all likelihood, emotionally damaged many times over the years.
Equal shared parental responsibility would require the parents to communicate, but only in relation to major long-term issues and that would not be anything like the usual volume of week-to-week communication that might be needed in the event of an equal time order being made.
I accept that the children could probably walk from one parent’s house to the other if they left a school item behind, but it is not ideal to put them in that situation and I am far from convinced that the parents themselves could manage such situations without simply telling the children, “Go to your mother’s house” or “Go to your father’s house” as the case may be.
It is true that in the witness box that the mother conceded that a week-about arrangement could “possibly” work for the children. This was a concession made by her after some cross-examination from Mr Levick and it is to her credit that she makes that admission.
I agree with her. A week about arrangement could possibly work, but I am not willing to take the risk that it will not. I consider that the potential risks associated with forcing such a change on the children at the time, given their ages, outweigh the potential benefits.
The father already has a “meaningful” relationship with the children; “meaningful” for the purpose of section 60CC(2)(a) does not mean “optimal” - see the decision of Kay J in Godfrey & Sanders [2007] Fam CA 102 where his Honour was sitting as the Full Court. Though this was an observation made in the context of a relocation application, the fundamental underpinning principle still applies.
The father, to his credit, has immersed himself significantly in the children’s lives and has played an active and important role. He has “stepped up to the plate.” But these are children who have been through a lot, particularly in the early post-separation years when they both suffered various physical maladies and were, ultimately, diagnosed with anxiety. I have already referred to Y’s abdominal pain. But the children have now improved and that some of the heat has disappeared from the case means that the children have shown their resilience and their capacity to adapt to difficult circumstances. I am not going to force another change in arrangements at this point in their life just so that they can “maximise” their time or “optimise” their time with the husband with whom they already have a good relationship and in circumstances where the effect of such a change would be an unknown.
In any event, in a few years these children will be adults at which point they can do what they like. It would be a most unusual situation for this Court to tell 16 ½ year old children, in particular, what they should be doing.
In terms of “reasonable practicability” the existing 5/9 arrangement has been on foot now for the better part of three (3) years. Its continuation, in my view, would be reasonably practicable, which is not the same as saying that it will be easy. It has never been particularly easy for the children, but it is reasonably practicable and the children have adapted and gotten used to it.
CONCLUSION & ORDERS

For these reasons, I am going to make the orders by reference to exhibit 17, being the Minute of order proposed by the wife - with some changes.
I am positively declining to make the wife’s proposed order 18, which in my view is a child support order and should not, and could not, be made by me on the evidence. I am not going to make the wife’s order 19, which in my view is likely to cause rather than reduce conflict. If the husband were to force the children to go to Church, this would be counterproductive for their relationships anyway.
In terms of the husband’s proposed orders, the only “loose end” that remains is the husband’s order 12 about school attendances. I decline to make that order as I no longer consider it a live issue. New South Wales legislation requires the children to attend school. I do not consider that it is worthwhile my making such further orders.
It will be necessary for the Court to take out a written copy of these orders and these reasons. So I am going to order that these reasons be taken out in writing.

I certify that the preceding two hundred and seventy-eight (278) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts.
Associate:
Dated: 19 December 2022

File number(s):	NCC 3953 of 2018
Judgment of:	JUDGE BETTS
Date of judgment:	19 December 2022
Catchwords:	FAMILY LAW – Property and Parenting – two children aged 16 and 14 – where both parties agree to equal shared parental responsibility – where the husband seeks a week-about arrangement – where the wife seeks to maintain the existing arrangement where the children live with her and spend five nights a fortnight with the husband – where the husband seeks to retain 55% of the net matrimonial assets – where the wife seeks a 50/50 division – where the Court must weigh up the evidence of the parties’ financial contributions and the future parenting arrangements – just and equitable – best interests of the children.
Legislation:	Family Law Act 1975 (Cth), Pt VII and Pt VIII
Cases cited:	Godfrey & Sanders [2007] Fam CA 102 Gosper & Gosper (1987) FLC 91-818 Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 Kowaliw & Kowaliw (1981) FLC 91-092 Mallett & Mallett (1984) 156 CLR 605 MRR & GR (2010) FLC 93-424 Norbis & Norbis (1986) FLC 91 – 712 Stanford & Stanford (2012) FLC 93-518
Division:	Division 2 Family Law
Number of paragraphs:	278
Date of last submission/s:	23 September 2022
Date of hearing:	8 and 9 February 2022 and 16 May 2022.
Place:	Newcastle
Counsel for the Applicant:	Mr Levick
Solicitors for the Applicant:	Attwaters
Counsel for the Respondent:	Mr Mueller
Solicitors for the Respondent:	Fielden & Associates – Family & Relationship Lawyers

NCC 3953 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR HEMMING Applicant
AND:	MS HEMMING Respondent

order made by:	JUDGE BETTS
DATE OF ORDER:	19 DECEMBER 2022

REALISABLE “CASH” ASSETS	VALUE
1	G Street, Suburb H (Joint) - 2 residential units rented out	$715,000
2	M Street, Suburb H (Wife)	$700,000
3	E2 Street, Suburb F (Husband)	$410,000
4	E1 Street, Suburb F (D Pty Ltd as trustee for Hemming Family Trust)	$700,000
5	B Street, Suburb C (D Pty Ltd as trustee for Hemming Family Trust)	$550,000
6	ANZ Account #...94 (Husband)	$2,306
7	ANZ Account #...39 (Husband)	$3,695
8	ANZ Account #...17 (Husband) – includes interim property distribution moneys of $193,047	$196,889
9	ANZ Account #...45 (Husband)	$2,580
10	ANZ Account #...65 (Husband)*	$39,693
11	Bank S (Wife)	$4,080
12	Interest in her late father’s estate (Wife)*	$516,666
Assets subtotal	$3,838,179
NOTIONAL ASSETS (ADDBACKS)
13	Donations to Church S (Husband)*	$Nil
14	Partial property settlement moneys already spent (Wife)*	$Nil
15	Partial property settlement moneys already spent (Wife)	$Nil
16	Difference in spent legal costs (Husband)	$49,658
17	(blank)
18	(blank)
19	(blank)
Addbacks subtotal	$49,658
LIABILITIES
20	Joint ANZ Mortgage #...69 (G Street, Suburb H)	$193,583
21	Joint ANZ Mortgage #...25 (E2 Street, Suburb F)	$264,669
22	Joint ANZ Mortgage #...18 (E1 Street, Suburb F)	$180,428
23	Joint ANZ Mortgage #...38 (E1 Street, Suburb F)	$59,018
24	“D Pty Ltd” ANZ Mortgage #...31 (B Street, Suburb C)	$205,515
25	Land tax debt (B Street, Suburb C)	$5,136
26	(blank)
27	Repairs to E2 Street, Suburb F (anticipated)*	$39,693
28	Wife’s HECS / HELP fees (outstanding debt)*	$4,733
Liabilities subtotal	$952,775
SUPERANNUATION
29	Super Fund 1 (Husband)	$182,457
30	Super Fund 2 (Husband)	$1,474
31	Super Fund 3 (Wife)	$59,740
Superannuation subtotal	$243,671
TOTAL NET ASSETS	$3,178,733