Hendrix & Haroldson
[2025] FedCFamC1F 269
•30 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hendrix & Haroldson [2025] FedCFamC1F 269
File number(s): SYC 2244 of 2021 Judgment of: CURRAN J Date of judgment: 30 April 2025 Catchwords: FAMILY LAW – PROPERTY – Final orders –Property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) – Whether property is held on trust – Where property is found not to be held on trust – Where dispute as to inclusion of assets and liabilities including treatment of alleged liabilities – Where allegations of extensive non-disclosure – Where dispute as to length of relationship – Where relationship is found to be of 3 and ½ years - Where husband made greater initial financial contributions– Where husband found not to have made full and frank disclosure – Adjustment warranted due to non-disclosure – Where orders made to affect a 60/40 split
FAMILY LAW – PARENTING – Final orders – Where parties reached consent on decision making responsibility – Where dispute was time with orders during the school term and during school holidays – Consideration of child’s wishes – Consideration of risk of psychological harm -Where equal time is ordered during school term and school holidays are in the child’s best interests
Legislation: Australian Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) pt VII, ss 4, 60B, 60CA, 60CC, 61B, 61C, 61CA, 61D, 75, 79, 106A, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Convention on the Rights of the Child
Cases cited: Atuk and Anor & Atuk [2017] FamCAFC 215
Bevan & Bevan (2013) 279 FLR 1; [2013] FamCAFC 116
Biltoft & Biltoft (1995) 126 FLR 385
Black and Kellner (1992) 106 FLR 154
Blatch v Archer (1774) 1 Cowp 63
Briese and Briese (1985) 82 FLR 369
Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Fielding & Nichol [2014] FCWA 77
Jabour & Jabour (2019) 59 Fam LR 475; [2019] FamCAFC 78
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kennon & Spry (2008) 238 CLR 366; [2008] HCA 56
Piroozi & Piroozi [2023] FedCFamC1F 359
Rogers & Rogers (No 2) (2016) 55 Fam LR 167; [2016] FamCAFC 104
Singerson & Joans [2014] FamCAFC 238
St John v St John (1974) 6 Fam LN N14
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Trask & Westlake (2015) 55 Fam LR 153; [2015] FamCAFC 160
Weir and Weir (1992) 110 FLR 403
Williams v Williams [2007] FamCA 313
Division: Division 1 First Instance Number of paragraphs: 440 Date of last submission/s: 4 December 2024 Date of hearing: 28, 29 November 2024 & 2, 3, 4 December 2024 Place: Sydney Applicant: Litigant in person Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Boettcher Solicitor for the Independent Children's Lawyer: Chidiac Legal Pty Ltd ORDERS
SYC 2244 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HENDRIX
Applicant
AND: MS HAROLDSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
30 APRIL 2025
ON A FINAL BASIS THE COURT ORDERS THAT:
1.All prior orders be discharged.
BY CONSENT ON A FINAL BASIS THE COURT FURTHER ORDERS THAT:
PARENTING
Decision Making
2.The applicant father (“the father”) have sole decision making authority in relation to X’s (born 2012) (“the child”), education.
(a)The father notify the mother within seven (7) days, of the high school that that the child will be attending.
(b)The father notify the mother seven (7) days prior to any change to the child’s school.
(c)These Orders act as an authority for both parents to attend all school events to which parents are normally invited to attend.
(d)These Orders act as an authority for the mother to obtain copies of all school reports and to receive any information in relation to the child’s attendance at school, together with participation with any online information service in relation to the child.
3.The respondent mother (“the mother”) have sole decision making authority in relation to the child's health.
(a)The mother notify the father within seven (7) days of the child’s general practitioner and provide notice to the father of any counsellor, therapist or psychologist that the child may be attending. The parties will use their best endeavours to ensure that the child attend the same GP except in the case of an emergency.
(b)These Orders act as an authority for the father to meet with the child's treating health professionals and obtain any relevant reports, at his own expense.
(c)The parties will use their best endeavours to follow any recommendations of the child's treating health professionals.
(d)Within 14 days of the date of these Orders, the mother make inquiries in relation to the child’s participation in extra-curricular activities such as sport and to advise the father of proposals for extra-curricular activity.
(e)The parties will use their best endeavours to ensure that the child participates in any extra-curricular activity he is enrolled in while the child is in their care.
(f)The parties will pay equally the costs, if any, associated with the child’s participation in extra-curricular activities.
4.The parties have shared decision making for all other matters in relation to the child.
Travel
5.Either party shall be permitted to travel with the child outside of the Commonwealth of Australia. Such overseas travel shall occur wherever possible during school term holidays.
(a)Each party is to provide to the other party, 42 days prior to any overseas travel:
(i)Copy of proposed itinerary;
(ii)Copy of travel insurance; and
(iii)Contact details for the child while the child is overseas.
(b)Such travel is to occur no more frequently than once per year with either parent.
(c)Copy of return tickets is to be provided to the other parent seven (7) days prior to the proposed travel.
6.Both parties shall ensure that they sign any such documents and do such things as may be necessary for the child to obtain ant maintain a current Australian passport together with any visa documents that may be required for travel.
Communication
7.Each party shall inform the other party as soon as practicable of any medical emergency involving the child, including the name of any hospital or treating professional attended, any medication prescribed or proposed ongoing treatment.
8.Each party is restrained from denigrating the other party in the presence or hearing of the child, or from allowing third parties to denigrate the other party in the presence or hearing of the child.
9.Each party shall advise the other party within 48 hours of any change of details, including:
(a)Their current residential address;
(b)Their contact telephone number; and
(c)Their contact email address.
Special Occasions
10.The child spend time with the father on Father’s Day weekend, if not already in the care of the father, from the conclusion of school on Friday to the commencement of school on Monday.
11.The child spend time with the mother on Mother’s Day weekend, if not already in the care of the mother, from the conclusion of school on Friday to the commencement of school on Monday.
Changeover
12.For the purpose of implementing these orders, if changeover does not occur at the child’s school, then the parent with which the child is to spend time will collect the child from the other parent’s home, or such other location as agreed between the parties in writing.
ICL Costs
13.The parties are to equally share the costs of the Independent Children’s Lawyer as sought in the amount of $17,530.00.
ON A FINAL BASIS THE COURT FURTHER ORDERS THAT:
Live with
14.The child will live with both parents on a shared care fortnightly arrangement on the following terms:
(a)With the mother from after school on Monday (or 3:00pm on a non-school day) until before school on Wednesday (or 9:00am on a non-school day). and then
(b)With the father from after school on Wednesday (or 3:00pm on a non-school day) until before school on Friday (or 9:00am on a non-school day), and then
(c)With the mother from after school on Friday (or 3:00pm on a non-school day) until before school on Wednesday (or 9:00am on a non-school day), of the following week, and then
(d)With the father from after school (or 3:00pm on a non-school day) on Wednesday until before school on Monday (or 9:00am on a non-school day).
15.Upon the child commencing year 9 in high school, the parenting arrangements will be that the child lives with both parents on a week about arrangement with changeover to occur at the conclusion of the school week.
School Holidays Arrangements
16.The child spend time with each party during Term 1, 2, 3, and 4 school holidays as arranged between the parties in writing but failing agreement:
(a)In even-numbered years, with the father for the first half of the school holiday period and with the mother for the second half of the school holiday period.
(b)In odd-numbered years, with the mother for the first half of the school holiday period and with the father for the second half of the school holiday period.
(c)For the purpose of these orders, school holidays will commence from 9.00am on the first Saturday of the NSW Gazetted School Holidays and conclude at 9.00am on the last Saturday of NSW Gazetted School Holidays.
X's Birthday
17.The child will spend time with the parent that he is not otherwise with from after school (or 3.00pm on a non-school day) until 7.00pm that same evening.
Christmas
18.All parenting orders are suspended for the Christmas Day arrangements.
19.In even numbered years the child will spend time with the applicant mother from 5.00pm on Christmas Eve until 5.00pm on Christmas Day.
20.In odd number years the child will spend time with the applicant father from 5.00pm on Christmas Eve until 5.00pm on Christmas Day.
Communication
21.On each occasion that the child lives with either parent, the child is at liberty to telephone or video call, the other parent at any time and the other parent will do all such things to facilitate this communication and will afford the child age-appropriate privacy at this time.
22.The parties shall communicate with each other using the Divvito app, except by text in the case of emergency.
Extra-curricular activities
23.The child is at liberty to partake in any additional extra-curricular activity at any time.
24.In the event that the child does choose to undertake an extra-curricular activity, both parents will do all such things as required to facilitate his attendance at this activity,
25.In the event that the father is unable or unwilling to facilitate such attendance, then the mother will collect the child not more than one (1) hour prior to the commencement of said activity and return him to the father not more than (1) one hour following the conclusion of the activity.
Authorisations
26.Both parents shall do all things and sign all documents to ensure that both parents shall be listed as the emergency contact persons on any school, medical or extra-curricular the child’s enrolment forms.
Passports
27.Pursuant to s 11 of the Australian Passports Act 2005 (Cth), the child be permitted to have an international travel document (Passport) as required to leave the Commonwealth of Australia.
28.The parents will equally bear the costs associated with the passport application and/or passport renewals for X if the request is made by a parent,
29.The mother will be responsible at all times to hold and to have possession of the child’s passport other than when the father is travelling with the child at which time the mother will provide the passport to the father at least 14 days prior to travel and the father will return the passport to the mother within 14 days of return from travel.
Explanation of Orders
30.Within 14 days of the making of these Orders the parties do all things necessary to arrange for the child to attend upon the Independent Children’s Lawyer, at a time and place nominated by the Independent Children’s Lawyer, for the purposes of the Independent Children’s Lawyer explaining these Orders to the child.
PROPERTY
Payment to the wife
31.Within forty-five (45) days from the date of these Orders, the applicant husband (“the husband”) shall pay to the respondent wife (“the wife”) by way of cleared funds the sum of $307,618.00.
B Pty Ltd
32.Simultaneously with the husband’s compliance with Order 31 hereof:
(a)The wife shall:
(i)Do all things and sign all documents to resign from all positions that she may hold in the company B Pty Ltd.
(ii)Do all things and sign all documents necessary for the wife transfer to the husband all share holdings and interest held by her in the company B Pty Ltd.
(iii)Otherwise relinquish any right, title or interest in either B Pty Ltd, and in the businesses C Pty Ltd, D Business and the Hendrix’s Family Trust.
(b)The husband shall indemnify the wife and keep her forever indemnified in relation to any liability howsoever arising, including any liability for personal income tax, with respect to the following:
(i)B Pty Ltd;
(ii)C Pty Ltd;
(iii)D Business; and
(iv)The Hendrix’s Family Trust.
E Street Property
33.Pending the husband’s compliance with Order 31 and in the event of default Order 38, the husband is restrained from dealing in any way with his interest in E Street Suburb F NSW (“the E Street property”) other than as is necessary to obtain the funds to comply with Order 31.
34.The husband shall indemnity the wife and keep her forever indemnified in relation to the caveat held by G Financial Services, over the E Street property.
Sale of Real Property in default of payment ordered
35.In the event that the husband fails to make the payment referred to in Order 31 within the time stipulated, then the husband shall, within seven (7) days do all things and sign all documents reasonably necessary to sell the E Street Property for the best price reasonably obtainable and the following orders shall apply:
(a)The husband shall list the E Street property for sale with an agent as agreed, and in the absence of agreement as selected by the husband from a list of three agents provided by the wife (“the agent”);
(b)The husband shall instruct a lawyer as agreed, and in the absence of agreement as selected by the husband from a list of three lawyers provided by the wife, to have carriage of the sale for the parties (“the conveyancing solicitor”);
(c)The husband shall list the E Street property for public auction within six (6) weeks of the appointment of the Agent (“the first auction”);
(d)The reserve price for such auction shall be as agreed and in the absence of agreement shall be as set by a valuer as agreed between the parties and failing agreement appointed in accordance with Order 36;
(e)If the E Street property remains unsold after the first auction, the husband shall do all acts and things and sign all documents necessary to immediately relist the E Street property for sale by public auction again, on a date nominated by the agent and at such auction there shall be no reserve price unless otherwise agreed by the parties in writing;
(f)The husband shall irrevocably authorise and direct the appointed lawyer, agent and valuer to:
(i)Communicate with and provide the wife with any update she may request in respect of the progress of the sale, inform her of any issues which have arisen and provide her with copies of the contract for sale and any proposed or final settlement statement; and
(ii)Pay the amount to the wife as required by these Orders at the time of settlement and before any distribution to the husband in accordance with Order
36.If the parties are unable to agree as to the listing price or sale price of the E Street property, then they shall appoint a valuer nominated by the president for the time being of the New South Wales Division of the Australian Property Institute or his/her nominee on the application of either party to determine the market value of the E Street property and:
(a)In the case of the listing price of the E Street property the parties shall list the E Street property for sale at a price not more than 10 per cent higher than the value so determined; and
(b)In the case of the sale price shall accept any offer to purchase the E Street property at that price or higher.
(c)In the event that a valuer is appointed by the parties pursuant to the above order then the parties shall pay the costs thereby incurred in equal shares.
37.Pending the sale of the E Street property, the following terms and conditions shall apply:
(a)The husband shall be responsible for payment of the mortgage repayments and any interest, charges and penalties in favour of H Pty Ltd. Number … as and when they fall due and if in default of this Order, the amount of such default shall be deducted from his entitlement pursuant to these orders.
(b)The husband shall be responsible for all municipal rates assessments, taxes, insurances, statutory charges and other outgoings relating to the E Street property and if in default of this Order, the amount of such default shall be deducted from his entitlement pursuant to these orders.
(c)The husband shall pay such funds as are necessary to discharge the liability in favour of G Financial Services and in default, that payment shall be deducted from the balance of funds to be paid to the husband in accordance with Order 38(j) below.
(d)The husband shall make the E Street property available for inspection by prospective purchasers at all reasonable times and on reasonable notice from any real estate agent appointed to sell the E Street property.
(e)The husband will keep the E Street property clean and tidy and in a good state of repair and make a key available to any real estate agent appointed to affect such sale.
(f)The husband shall have the sole right to occupy the E Street property.
38.On the settlement of the sale of the E Street property, the husband shall cause the proceeds of sale to be paid in the following manner and priority:
(a)Agent's and Auctioneer's costs and advertising expenses,
(b)To discharge the Mortgage in favour of H Pty Ltd. Number …,
(c)Such funds so as invoiced by the conveyancing solicitor for their services,
(d)Such funds as invoiced by the appointed taxation agent for their services,
(e)Such funds to the Australian Taxation Office, as recommended by the appointed taxation agent so to discharge the Capital Gains Tax liability accrued on the Suburb F NSW property.
(f)The sum of $8,064 to Region K Council;
(g)The sum of $6,000 to L Corporation;
(h)The sum of $3,138 to M Pty Ltd;
(i)To the wife pay an amount calculated as follows:
$(40% x X) – Y
where:
X = the value of the total net assets and superannuation as determined by the Court plus the net proceeds of sale of the E Street property after the payments required by Orders 38(a) to 38(h)
Y = $113,980 being the value of the assets to be retained by the wife; and
(j)The balance to the husband.
Sale of Real Property – appointment of taxation agent to calculate CGT liability
39.In the event that the E Street property is sold in accordance with these orders a taxation agent as agreed and in the absence of agreement as selected by the husband from a list of three taxation agents provided by the wife, is to be appointed to represent the vendors of sale of the property for the purpose of assessing the Capital Gains Tax Liability, if any, to be applied to the E Street property.
Residual Property
40.Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all other property resources and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements, and the chattels in the E Street property are deemed to be in the possession of the husband.
(b)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
(c)With respect to debts and liabilities, whether past, present or future, as are in the sole name of the wife or husband, neither the wife nor the husband will seek contribution from, or indemnity by the other, with respect to such debts and liabilities;
(d)Except as otherwise provided herein, each party hereby release the other from liabilities or claims owing from one to the other.
41.More particularly, the husband is to retain the following property and liabilities, not already referred to:
(a)The property at E Street Suburb F;
(b)B Pty Ltd;
(c)The Hendrix’s Family Trust;
(d)Any interest in any business in his name,
(e)All bank accounts in his name,
(f)Motor Vehicle 1 in his possession,
(g)Motor Vehicle 2 (registration …) in his possession,
(h)Motor Vehicle 3 (registration …) in his possession,
(i)Any household contents chattels and personal effects in his possession,
(j)Any other vehicles and machinery in his possession, regardless of condition or saleability,
(k)Any interest in any property in Country N,
(l)Any liability in his name in favour of Suburb O Council,
(m)Any liability, penalties or interest in his name or in respect of B Pty Ltd in respect of the Australian Taxation Office,
(n)Any liability, penalties or interest in his name in favour of Centrelink;
(o)Any and all liabilities accrued to any institution by way of credit cards in his name or any other entity to which he has an interest,
(p)Any and all liabilities, and purported liabilities in favour of any or the husband’s family members, including in favour of his father, sister and brother-in-law and
(q)All liabilities accrued in the husband’s name through the Higher Education Contributions Scheme, the Higher Education Loan Program, the Student Start-up Loans program or any other educational finance facility.
42.More particularly, the respondent is to retain the following property and liabilities, not already referred to:
(a)All bank accounts in her name,
(b)Motor Vehicle 4 (registration …) in her possession,
(c)Any motor vehicle registered in her name or in her possession,
(d)Any household contents in her possession,
(e)Any shares in her name;
(f)Any inherited property in Country P including Q Street, City R, Country P and the property situated at T Street City R, Country P;
(g)Any and all liabilities accrued to any institution by way of credit cards in her name or any other entity to which she has an interest; and
(h)All liabilities accrued in the wife’s name through the Higher Education Contributions Scheme, the Higher Education Loan Program, the Student Start-up Loans program or any other educational finance facility.
Section 106A
43.In the event of the wife or husband refusing or neglecting to sign the necessary documents to effect such sale, transfer or assignment within seven (7) days of being requested by a party, then the Registrar of the Federal Circuit and Family Court of Australia is hereby appointed and empowered pursuant to the provisions of s 106A of the Family Law Act 1975 (Cth), to execute such documents in the name of the defaulting party and to do all acts and things necessary to give validity and operation to such document and further, that the defaulting party pay the costs on an indemnity basis in relation to the obtaining of the Registrar’s signature.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hendrix & Haroldson has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CURRAN J:
INTRODUCTION
These proceedings concern the competing parenting and property applications between Mr Hendrix (“the father/husband”), and Ms Haroldson (“the mother/wife”).
There is one child of the relationship, X born 2012 (“the child”), who is 12 years old. The main issue in dispute was the time that the child should spend with his parents during school term and school holidays together with ancillary orders.
The property at E Street Suburb F NSW(“E Street property”) is the only asset of any significant value. The husband contends it is held on trust and should not be included as property of the parties and that there should be no property adjustment. The wife contends it is property that should be included in the pool of assets to be considered as part of the competing applications under s 79 of the Family Law Act 1975 (Cth) (“the Act”).
UNREPRESENTED LITIGANTS – ENGLISH AS A SECOND LANGUAGE
Each of the parties had been represented at various times since proceedings had commenced in 2021. However, by the time of the trial both parties were unrepresented. It is not intended as a criticism of either party, but it should be observed that for each party English is their second language and while both endeavoured to navigate the relevant statutory considerations in presenting their evidence, there were deficits in the evidence each presented in support of their respective cases.
The evidence was at times piecemeal and inadequate. The evidence was presented in a haphazard and, at times, chaotic way. At one point the father sought to discontinue his application in the mistaken belief that the mother’s case would cease as a consequence of this action. The consequence of his oral application was explained to him, and he was asked to see the duty lawyer. He subsequently withdrew the application.
There were significant allegations and counter allegations of failures to comply with the obligation of disclosure. The husband sought to tender 2,200 pages of disclosure documents served late on the wife. The tender was refused and the husband was directed several times during the trial to prepare a bundle of relevant documents to tender. He failed to compile the documents as directed. On a number of occasions, he repeated his attempt to tender the whole bundle without identifying the documents, how they were relevant, or when they were disclosed to the wife.
Interpreters were offered to the parties. The husband declined the assistance. The wife had the assistance of an interpreter during the trial to interpret for her if she required particular evidence to be interpreted.
At the commencement of the trial the parties indicated agreement in respect of a number of items on the competing balance sheets. During the trial the parties appeared to resile from that position necessitating the re-opening of evidence to permit the tender of documents in support of purported values.
These are just several of the difficulties the parties and the Court faced in hearing and determining the matter. Both parties were employed at the time of the trial, but each failed to engage the services of lawyers to assist them, despite having some capacity to fund representation.
The matter had been listed as ready to proceed and had been in the Court list for some years thereby requiring it to be finally determined. No party sought to adjourn the final trial despite these difficulties.
For the reasons set out herein and doing the best that could be done based on the evidence, I find that the property orders made are just and equitable and that the parenting orders are in best interests of the child.
ORDERS SOUGHT
Property orders
A number of the orders sought by both parties were incompetent.
The husband sought orders that he pay the wife a lump sum of $50,000 and provide the wife with “rent assistance” of $300 per week until the child turns 18 years old and that he “make an undertaking to the child to provide him with a life tenancy in one room at the matrimonial home, and a 40 per cent of the inherent right of the father.” Alternatively, the husband sought orders which would give effect to an 85:15 split in the property pool in his favour, and in that instance, sought that each retain right, title, obligation and interest in the property held in their respective names.
The wife sought orders for the sale of the matrimonial home and the proceeds of sale to be distributed as follows: the amount of $50,000 be paid to the wife, that $40,000 of the sale proceeds be used to discharge the caveat held over the property by G Financial Services and the balance of the proceeds be distributed equally between the parties. The wife sought orders to be removed from any position she may hold in the B Pty Ltd company. The wife also sought orders for the parties to each retain his or her own remaining property.
Parenting orders
To the parties’ credit they were able to reach agreement in respect of parental responsibility and consent orders reflecting that agreement were made on the second day of trial. The parties agreed that the father be responsible for decision-making regarding the child’s education and the mother be responsible for decision-making regarding the child’s health. They agreed that they respectively communicate and consult with each other about these decisions. They agreed to an order that both parties jointly share parental responsibility for all other long-term issues for the child. I was satisfied that the orders that each party sought by consent were in the child’s best interest and made those orders.
To avoid confusion, I have discharged all previous orders and the consent orders made on 29 November 2024 have been included in the orders made herein on a final basis to ensure there is one document clearly setting out all current parenting orders. This is to assist the parties in their communication and implementation of all orders relevant to the child and to reduce any confusion or misunderstanding. I will also order that the Independent Children’s Lawyer (“ICL”) explain the parenting orders to the child.
For the reasons that follow I find that the Orders are in the best interests of the child.
MATERIAL RELIED UPON
Both parties sought to rely on material that extended well beyond the material that had been filed in accordance with the trial directions. They were not permitted to rely on material other than evidence that was filed in compliance with the trial directions and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
The parties were also not permitted to rely on material that had not been otherwise disclosed unless as ruled during the trial or otherwise agreed.
The father relied upon the following material:
(a)Amended application for final orders filed 30 October 2024;
(b)Affidavit filed 19 November 2024;
(c)Affidavit filed 25 November 2024;
(d)Financial Statement 18 November 2024;
(e)Affidavit of Mr S filed 18 November 2024;
(f)Balance sheet filed 19 November 2024;
(g)Three list of documents filed 8 March 2024; and
(h)Summary of Argument filed 25 November 2024.
The mother relied upon the following material:
(a)Amended response filed 15 November 2024;
(b)Balance sheet filed 18 November 2024;
(c)Affidavit filed 18 November 2024;
(d)Financial Statement filed 18 November 2024;
(e)Two Affidavits filed 28 February 2024; and
(f)Affidavit of Ms U filed 12 September 2024.
The ICL relied upon the following material:
(a)Report of Court Child Expert Ms V filed 4 October 2023; and
(b)Family Report of Court Child Expert Ms W dated 26 February 2024.
PARENTING
Parental responsibility
Parental responsibility is defined at s 61B of the Act. According to s 61C of the Act, each parent has parental responsibility for the child and the parents are encouraged, where it is safe to do so, to consult each other about major long-term issues in relation to the child having regard to the child’s best interests pursuant to s 61CA.
The Court has the power to make parenting orders that allocate the responsibility for decision-making to the parties jointly or solely in relation to all or specified major long-term issues under s 61D(3). The term “major long-term issues” is defined at s 4(1) of the Act to mean issues about the care, welfare and development of the child, including the child’s education and health.
As referred to above, and to their credit, the parties were able to reach agreement about orders for parental responsibility. The orders sought by the father and the mother regarding parental responsibility for the child are ostensibly seeking the same outcome; the father to have decision-making responsibility for the child’s education and the mother to have decision-making responsibility for the child’s health.
It was opined by the Court Child Expert (“CCE”), and I accept on the evidence, that the parents have a dysfunctional and hostile attitude towards each other. Even in Court it was difficult for them to contain the contempt with which each view the other.
Despite this observation, the CCE recommended the father to have sole decision-making responsibility for decisions relating to the child’s education and the mother to have sole decision-making responsibility for decisions relating to the child’s health, as being in the child’s best interest. This included both parents being at liberty to seek information from either health and/or education providers. The CCE recommended that the parties should hold shared decision-making responsibility for the outstanding decision-making areas. I accept the opinion of the CCE and note the consent of the parties for such orders.
Despite the hostility toward each other, given the agreement reached and the age of the child, I am satisfied that the orders as agreed in respect of decision-making are in the child’s best interest and I make the orders as sought by consent.
Parenting orders
Orders in respect of children are informed by Pt VII of the Act. The meaning of a parenting order is defined at s 64B.
Section 60CA of the Act provides that the Court is to regard the best interests of the children as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII, being to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child (“CROC”).
Section 60CC(2) identifies the matters that the Court is to take into account in determining what is in the best interests of a child, those being:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
Pursuant to s 60CC(2)(a) of the Act the Court is required to have regard to arrangement that promote the safety of the child and each person who has care of the child (whether or not a person has parental responsibility for the child) in determining what is in the best interests of the child.
To make orders that are in the best interests of the children and best promote the safety of the children and each person who has care of the children, the Court must undertake an assessment of their safety in the individual circumstances of each case.
The child is not Aboriginal or Torres Strait Islander children, accordingly the considerations under s 60CC(3) are not relevant to this matter.
ISSUES IN DISPUTE - PARENTING
The main aspect of the dispute between the parties is the time the child should spend with his parents during school terms and school holidays. There were issues in dispute in respect of ancillary orders regarding special days, communication, non-denigration and other orders that were not agreed.
For the reasons that follow the child will spend equal time with his parents both during school term and during the school holidays and I make specific orders in respect of the balance of the orders sought. In determining these parenting arrangements, the relevant s 60CC factors have been considered.
The child currently spends time each Friday afternoon until Monday morning and each Wednesday and Thursday afternoon after school until 8.00pm with the father. The rest of the time is spent with the mother, in accordance with Orders made on 18 September 2023.
The father sought orders that the child spend time with the mother during the week, and the mother’s orders contemplate a more equally split allocation of time including that the child spend alternate weekends with each parent.
The father sought orders for the child to stay with the mother from Monday morning to Wednesday afternoon each week and spend time with the mother every third weekend during the school term. He contended this was a nine-day/five-day split of the time. He sought the same arrangement during the school holidays.
The mother sought orders that the child live with both parents on a shared care fortnightly basis, involving the child spending time from Monday after school until Wednesday before school with the mother, from Wednesday after school until Friday before school with the father, and alternating weekends with each parent.
The mother sought for these spend time arrangements to change to a week about arrangement upon the child commencing Year 9 in 2027.
The mother sought orders for school holidays, special occasions, communications changeovers, extra-curricular activities, information sharing, authorisation, non-denigration, passports and overseas travel.
What arrangements would promote the safety of the child and each person who has care of the child?
There were a number of reports each party made to the Department of Communities and Justice (“the Department”). Both parents had complained that the child had been exposed to physical abuse due to excessive discipline and neglect, inadequate supervision, and that the child had been exposed to violence in the care of the other parent.
In 2019 there was an incident where the father kicked the child in the leg during an argument with the mother when the child had said “don’t talk to mummy like that.” He was charged by the police and served with an ADVO.
In 2023 there was an incident when the child failed to meet his mother after school as planned. He had gone to the father’s home and was using a computer there. The father was overseas at the time. The mother became worried and contacted friends as the child was not replying to her calls and texts. When she located him it was dark. The mother said that she hit him with a water bottle and damaged a computer screen. She agreed she had reacted in this way and accepted that it was not child focussed.
The father was in Country N at the time of this incident and upon his return he took the child to the police to report the incident, after which the mother was charged.
Both incidents illustrate that the child has been directly exposed to family violence by each of his parents.
As expressed at [77] of the Family Report, the CCE was of the view that “neither of the parents holds a genuine fear of the other, and that family violence is not a significant risk factor for consideration in this matter.”
The reality is that many of the risk issues arising from the child being left home alone and unsupervised are now less significant as he is reaching adolescence. Each parent seeks that the child spends time with the other parent. It follows that neither can be contending the child is at physical risk in spending time with the other parent.
The mother complains that the father lacks balance in his parenting of the child. She gave an example of the father’s decision to withhold the child from school for several weeks to study long hours in the lead up to a selective exam for entry to the Y School program.
The father rejected the criticism and maintained that he was appropriately assisting the child with study in the lead up to testing for entry to Y School, where he has been offered a place. He explained that the child missed three out of six weeks of school and in that time he was studying 10 hours a day. He did not agree that missing school, including the social elements of the school, in conjunction with the intensity of such a study routine for a child aged 11, may not be in the child’s best interests.
There was a history of late arrivals to school when the child was in the care of both parents as noted by the CCE. The child commenced high school at the beginning of 2025. As he is now more independent by reason of his age and that he is attending high school, school attendance and arrival time is more likely to be within his control. I do not consider the history of late arrivals at school as a significant matter in the determination of orders that are in the child’s best interests.
The CCE identified a risk to the child of his exposure to the hostility between the parents and their poor attitude toward each other and the deleterious impact of this exposure on him. The parents present as intelligent and hard-working individuals, however both parents’ lack of insight as to the impact on their child of their hostility toward each other is striking and concerning. I give weight to the CCE’s opinion of the risk to the child’s psychological health.
The CCE opined that the father has serious parenting deficits in his attitude toward the mother. Her concern was that the father may drive a wedge between the mother and the child to the extent that the child may reject his mother in years to come. The CCE opined that this would be a poor outcome for the child and could result in him having an increased risk of mental health problems, underachievement in school, and create difficulties in forming and maintaining healthy intimate relationships in his adult life. I accept her evidence as to the risks that this exposure may have upon the child.
The CCE stated at [53] “[the father] was highly dismissive of [the mother’s] academic abilities and her views on education” and reported at [43] that “[the father] acknowledged that he has set a poor example for [the child] about how relationships should be conducted.”
The father’s oral evidence highlighted the poor attitude he held toward the mother. He said that her academics were “so bad” that the mother cannot assist the child in education. In submissions, the father said that it would be in the child’s best interests to not believe Country AA culture. He spoke about the political climate in Country AA and commented that he doubted the “whole nation” were honest people. These comments, in circumstances where the child’s mother is of Country AA heritage, illustrate the concern identified by the CCE. The father struggled to identify any positive attributes of the mother, and he accepted that the child would be aware of how the father viewed the mother.
The mother was less overt in her attitude toward the father but also displayed disdain to the father during the trial in some comments she made.
An example of the high conflict between the parties occurred only two weeks prior to the trial when the mother attended the house to deliver a parcel for the child in late 2024. She attended with a friend while the father was out shopping. While she was at the home, she took photos of the house in the presence of the child knowing that the child was aware of the imminent Court proceedings. The father’s response to discovering the mother’s conduct was to text the mother and tell her she was being reported to the police for trespass.
These events occurred well after the parents had the benefit of the Family Report and the benefit of knowing that the child had reported that he would like it if they could be “more peaceful.” The child’s express wish has fallen on deaf ears as neither parent has shown the capacity to modify their negative behaviour toward the other or behave in a manner that is “more peaceful.” They both choose to escalate incidents of conflict and threaten to involve the police.
Each of the parents, by their conduct, have displayed a lack of insight as to the potential detriment to the child of such a highly conflictual relationship. The continuance of such high conflict reflects poorly on each of the parents insofar as showing any insight or capacity to change their behaviour.
I accept the opinion of the CCE that the father’s negative attitude toward the mother may serve to damage the relationship between the child and his mother, as the child is at risk of rejecting the mother in years to come if he is overexposed to the poor opinions. The mother’s attitude to the father is also poor. I also find, on the evidence, that each parent has a poor attitude toward the other and each has, in the past, exposed the child to that attitude.
Equal time orders have the benefit of ameliorating the identified risk by providing the child with a balance of time with his parents and not overly and disproportionately exposing the child to the negative views held by one parent which may influence him.
Any views expressed by the child
The child is 12 years of age. The CCE interviewed the child on 30 January 2024. The CCE expressed that the child’s views should be given some weight owing to his age and maturity “but not determinative weight.” The ICL also met with the child and the orders sought reflected the views expressed by the child to the ICL. Those views are more recent in time.
The child expressed to the CCE that he felt closer to the father and prefers to spend time at his father’s house as he is “calmer”, “kinder” and “less rude.” The child described that his mother could become easily angered. When the child was asked about the time arrangements, he expressed a desire to spend more time with the father than with his mother each week. The child stated that he would have no objection to spending alternate weekends with each parent so he would have some weekend time with the mother.
His views were set out as follows at [64]:
When asked about time arrangements, [the child] said that he wants things to be “a little different”. He expressed a desire to spend more time with his father than with his mother each week, although he was unclear about what this might look like across a week or fortnight. When different time splits over a fortnight were discussed with him, he stated that he thought nine nights with his father and five nights with his mother would be desirable. He stated that he would have no objection to alternating weekends so that he has some weekend time with his mother.
The father was very firm in the arrangements being nine nights with him and five with the mother in both school term and holiday time, as he interpreted that this was what the child had expressed to the CCE. Although it was reported that the child had expressed a desire for “more time” and that the nine nights with the father “would be desirable”, it was not clear that this expression was intended to include school holiday time.
The father was steadfast and rigid in his position that the child should spend time with him every weekend and should spend time with the mother five nights a fortnight but not during the weekends. Although the child had told the CCE he wanted some weekend time with his mother, the father sought that if weekend time was to be ordered, it should be only one weekend in three. He could not explain why this was in the child’s best interests other than that he contended his proposed orders sought would give the child “a voice.”
The difficulty with the father’s attitude to the child’s wishes is that the father presented as rigid in his view and motivated to give the child a voice when it aligned with his own views, but not necessarily otherwise. For example, the father said he was aware that the child would prefer to attend Y School as many of his primary school friends including his best friend will be attending that school. The father explained that he told the child that only children whose parents do not care and do not pay fees go to that school. The father was firm in his view that the father’s preferred school of Z School’s would be best for the child.
Another example of the father’s rigidity was illustrated by his response to the minute of orders sought by the ICL. The father said the orders sought by the ICL of equal time was not what the child wanted despite counsel for the ICL advising the court that the orders sought were consistent with the child’s express wishes when the ICL spoke to the child shortly before the hearing.
The father said he had discussed the ICL’s proposed orders with the child when he received them and gave evidence that he asked him if what was proposed was “his real voice.” The father showed no appreciation of the pressure that his questions about what the child had expressed to the ICL would place on the child.
The views expressed by the child to the CCE and to the ICL are something I take into consideration and give some weight to, given his age. No one factor, however, is determinative.
The developmental, psychological, emotional and cultural needs of the child and the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
I have addressed the issue of the developmental and psychological needs of the child above in the context of the concerns identified by the CCE, which I accept. However, I am satisfied on the evidence that both parents have the capacity to provide for the child and will provide for his cultural, developmental, psychological and emotional needs.
Both parents presented as very hard-working and wanting the best for the child. I have no doubt that each parent loves their son and that he has a close and loving relationship with both his parents.
As observed by the CCE, each parent has the capacity to provide for the developmental, psychological, emotional and cultural needs of the child. However, each also lacks insight into the impact of some of their negative behaviours and hostility toward each other on the child.
The father is from Country N and has strong ties to his father and sister there. He wishes to take the child to visit the paternal grandfather without delay as his grandfather is in his nineties. The child has travelled to Country N with his parents. Such travel is not opposed by the mother.
The mother was born in Country AA and teaches the child Country AA cooking and language. She is now a health professional working in Australia but also wishes to travel internationally so that the child can experience international travel and have a connection to her culture.
There can be no doubt each parent will assist the child to have an understanding and appreciation of their own cultural background. The father will promote and encourage him to understand his Country N background and the mother will promote and encourage him to understand his Country AA background.
The mother’s international travel was not opposed, although the father maintained that if the mother were permitted to travel with the child for two weeks he should spend four weeks of holiday time with the father.
The father could not explain why it was in the child’s best interests to spend more holiday time with him than with his mother. As referred to above, the evidence supports a finding that the father’s attitude toward the mother, in both his conduct and in his evidence, was dismissive and critical of her and I accept the opinion that if the child is exposed more to this attitude, which it appears cannot be curtailed, it may impact his relationship with his mother.
The CCE’s concern that the father may drive a wedge between the mother and the child due to his poor attitude toward her is equally relevant to school holiday time as it is to term time.
There is no evidence that supports a difference in time during the school holidays and accordingly no basis for the child to spend more holiday time with one parent than the other.
I accept and am persuaded by the observations of the CCE. I take the risk as to the child’s psychological health into account in the determination of the time with orders that are in the best interests of the child, both during school term and school holidays.
The CCE was of the view that it would be in the best interests of the child to spend equal time with both parents, inclusive of one full weekend each fortnight with each parent. The CCE suggested the spend time arrangements could be so that the child spends Monday to Wednesday and alternate weekends from Friday to Monday with the mother, and each Wednesday to Friday and alternate weekends from Friday to Monday with the father.
That recommendation is supported by the evidence as it ensures the child is able to spend regular time with each parent and ameliorates the risk of the child being overly exposed to a poor attitude towards the other parent. Consequently, this reduces the impact on the child’s relationships with either parent, thereby reducing the identified risks to the child’s psychological wellbeing as identified by the CCE. Although such orders are not entirely in accordance with the views expressed by the child in January 2024, they accord with the views more recently expressed to the ICL.
OTHER ORDERS SOUGHT
In addition to the consent orders reached with respect to Mother’s Day and Father’s Day, I make orders for the child to spend special occasion time and other ancillary orders. There were no submissions in support or opposition of these orders. However, I have adopted the recommendations of the CCE because I accept that the child will derive benefit from spending time with each of his parents on special days. I am satisfied that the orders proposed will remove any potential conflict as to times and days, thereby reducing the child’s potential exposure to the conflict between the parents.
I am also satisfied that orders permitting the child autonomy in respect of communication with each parent and in respect of his extra-curricular activities are appropriate because of his age and the poor communication between the parents.
No party made submissions in respect of who should hold the child’s passport. I have ordered that the mother does so because I accept her evidence that she is supportive of the father travelling with the child overseas and I accept she will comply with the obligations of these orders to provide the passport to the father at times of overseas travel. It is otherwise appropriate for the parties to share in the costs of passport renewals as they each earn a similar income.
I decline to make the mother’s proposed order for family dispute resolution. On the evidence before me the parties had no capacity to reach agreement on matters in which they held a firm view and to impose such a process in the circumstances is futile.
There was no evidence as to the parties means of communication. The mother sought that the parties communicate through an app called the “Divvito” app. The father told the CCE they have minimal communication and that the parents are like strangers. To have a consistent means of communication will be in the child’s best interest and the CCE recommended a separate parenting App to be used for all essential communication regarding activities and other matters involving the child. Accordingly, I make the order sought by the mother.
The parties have reached consent with respect to the decision-making orders for the child, including consent around ancillary orders for each party to access and receive any information with respect to the child’s education and health. In the interests of providing sufficient clarity to the parties I also make the mother’s orders sought for each parent to be listed as the emergency contact on any school, medical or extra-curricular forms.
CONCLUSION ON PARENTING ORDERS
I have considered the negative attitude of the parents toward each other and its impact on the child, the inability of each parent to appreciate the benefit to the child of them being, as the child articulated to the CCE, “more peaceful” and to the reported wishes of the child in respect of the spend time arrangements.
Having carefully weighed each of the factors in s 60CC, including having considered the child’s views, I accept the opinion of the CCE that it is in the child’s best interest for him to spend equal time with his parents. This will best promote the balance of positive benefits he can receive from both parents and will protect him from any potential risk of being over exposed to a negative attitude toward the other parent, which could damage his relationship with that parent.
Accordingly, I order that during the school term the child spends equal time with each parent as agreed, and failing agreement, in the configuration as recommended by the CCE.
In respect of school holidays, the child will spend one half of each school holidays with the parents as agreed and in the absence of agreement the first half with his mother in odd years and the first half with his father in even years.
In respect of the ancillary orders sought I make orders as set out in the reasons above for the reasons articulated.
I am satisfied that the orders are in the best interests of the child.
DETERMINATION OF COMPETING PROPERTY APPLICATIONS
The husband made submissions arising from the decision of Stanford v Stanford (2012) 247 CLR 108 that it was not just and equitable to alter the parties’ property interest. He adopted an alternate position seeking orders adjusting their property 85 per cent to him and 15 per cent to the wife, while maintaining that the E Street property should not be included in the pool. The wife seeks orders adjusting the property interests of the parties and seeks an equal division of her contended property pool.
The starting point in any financial case is to identify the legal and equitable title to the parties' assets and make a finding as to whether it is just and equitable to make an order within the terms of s 79(2) of the Act before determining what the final order should be.
As set out by the Full Court in Bevan&Bevan (2013) 279 FLR 1 at [85] “there will be a range of cases … where determining whether it is just and equitable to make any order altering property interests will not be so clear cut and will therefore require not only separate but very careful deliberation.”
The parties’ financial interests were entangled during their relatively short relationship, and as set out below, they each made contributions, both financial and non-financial, during this time. There is a child of the relationship who pursuant to these orders will spend equal time with both of his parents.
In the circumstances of this case summarised above and set out in more detail below, the justice and equity requirement is readily met. Making an order altering the property interests of the parties is a necessity for a just and equitable outcome of the competing claims.
The approach then to be adopted in a financial adjustment case pursuant to s 79 of the Act is to follow the four-step process.
It is necessary to first identify the legal and equitable interests of the husband and the wife, consider what (if any) liabilities each of them has, and consider any superannuation and financial resources in the names of the husband, the wife, or either of them, at the date of the hearing.
It is then necessary to assess the contributions of the parties and determine a contributions-based entitlement having regard to the matters set out in s 79(4) of the Act insofar as they are relevant to the facts in this case. The assessment of contributions is usually approached in a holistic fashion.
The third step is to identify and consider relevant matters under s 75(2) of the Act to determine such adjustment as is necessary to the contributions-based entitlement.
The final step requires the Court to consider the effect of the findings and determine whether the orders are just and equitable in all of the circumstances.
NON-DISCLOSURE
The authorities establish that both parties to financial proceedings are required to make full and frank disclosure (see Weir and Weir (1992) 110 FLR 403 (“Weir”)). The case law is supported by obligations set out in the rules. The duty of disclosure is absolute and ongoing.
The requirements for disclosure as set out in the decision of Briese and Briese (1985) 82 FLR 369 are at the very heart of cases concerning property and maintenance given the substantial disadvantage that it places upon both the innocent party and the Court by hindering the achievement of a just and equitable property settlement.
These principles as discussed in Black and Kellner (1992) 106 FLR 154 and Weir establish that where there has been non-disclosure “the court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature” (Weir at 407–408).
The Court takes a serious view of non-compliance with the duty of disclosure and the Rules.
Non-disclosure of the husband
During the trial it became clear there had been virtually no ongoing disclosure since June 2023, a period of eighteen months prior to the trial. The wife alleged the failure to comply with disclosure obligations pre-dated June 2023 and had occurred since separation. The wife had been provided some limited disclosure in late October 2024 and further disclosure in the period immediately prior to the trial.
The husband agreed that he had not made disclosure as required since June 2023 and that he understood his obligations to make such disclosure. He said he did not disclose documents to the wife due to a concern she would use them “for other purpose.” The following exchange occurred:
HER HONOUR: Why haven’t you made disclosure - - -
[MR HENDRIX]: Yes.
HER HONOUR: - - - between June 2023 and now?
[MR HENDRIX]: I tell you why. Because she’s not represented, and I worried information will be used for improper purpose.
HER HONOUR: So you understand that you were obliged to make ongoing, full and frank disclosure?
[MR HENDRIX]: Yes. I make all disclose to her lawyer, but the bank information come to her hand – a different story. She maybe use for other purpose.
HER HONOUR: What purpose?
[MR HENDRIX]: Trying to blame me. I was - - -
HER HONOUR: [Mr HENDRIX], do you understand you are obliged, as being a litigant in these proceedings - -
[MR HENDRIX]: Yes.
HER HONOUR: - - - to make ongoing, full and frank disclosure?
[MR HENDRIX]: Yes.
The wife contended that there were numerous instances of non-disclosure, late disclosure, a failure to provide the records necessary to have the entities valued (being a further breach of his obligations for disclosure) and a general failure in his duty of disclosure.
The wife alleged the husband’s failure to disclose was of substantial significance and created injustice and prejudice to her as he had control of the relevant assets, bank accounts and the company records such that the failure in his duty to disclose meant she had no understanding of the history or management of any asset since separation. She contended that she was consequently unable to obtain valuation evidence and could not understand the value of the assets of the parties.
The wife agreed the husband had complied with aspects of the single expert appointment orders but that the state of the records provided, and the incomplete disclosure, left the proposed expert unable to complete the valuation. She then abandoned her attempts to have the disputed assets valued.
Orders were made on 17 October 2024 listing the matter for final trial for four days commencing on 28 November 2024 in respect of both parenting and property. At this time, the parties were ordered to file a single consolidated trial affidavit containing their evidence and any affidavits of witnesses they relied on together with their financial statements by 18 November 2024.
The husband filed his affidavit on 18 November 2024. The affidavit was 13 pages with four pages annexed attaching an ATO notice of assessment from 2022, and a three-page document titled “[Exhibit MRH - 1]-1 list”. The three-page document was an index referencing approximately 2,200 pages of documents. The documents were not referred to in the body of the husband’s trial affidavit and were not annexed because the husband said he was unable to upload the documents at time of filing.
The husband sought to tender and rely on the 2,200 pages of documents, many of which the wife said were emailed to her for the first time on 22 November 2024, being less than one week prior to the commencement of the final trial.
Given the husband was an unrepresented litigant I requested on several occasions during the trial that the husband identify the relevant evidence on which he sought to rely on from the 2,200 pages of documents. He was requested to produce a refined bundle of documents. Given the wife’s contention that she had not previously seen the vast majority of the documents, I directed that he also identify when the documents had been disclosed to the wife. It was explained that he should then individually tender any relevant documents on which he sought to rely.
The wife objected to the husband relying on many of the documents due to the late disclosure and the prejudice it created for her. A number of bank records of the husband and of some of the entities the husband controlled, were produced for the first time in October 2024 and others were produced during the trial, but after cross-examination had concluded. Many of these records were bank records that the wife’s previous lawyers had sought disclosure of in mid-2023.
The husband contended that he had sent the wife many emails attaching disclosure documents in the weeks prior to the trial. It remained unclear precisely what had been disclosed by the husband and at what time.
A number of bank statements addressed to The Director of B Pty Ltd t/as BB Pty Ltd became Exhibit 63. These were statements between October 2022 and October 2024 for an ANZ account …15 and statements between December 2022 and November 2024 for an ANZ account …07.
Bank statements for the period between 25 February 2016 and 16 February 2023 addressed to X with the account details recorded as “[X]”, BSB … account …69 (…69) became Exhibit 64. The wife contended that she had not seen these accounts prior to the trial. The husband did not produce statements from this account after February 2023. The non-disclosure in respect of account …69 relates to a period of almost two years. This account is where the rental income derived from the E Street property was deposited.
In submissions, the wife identified that Exhibit 64 recorded regular transfers of funds from account …69 to an account identified as “[CC Pty Ltd]”. There was no evidence before the Court and no disclosure of the relevance or purpose of the transfers to “[CC Pty Ltd].” The husband had given no sworn evidence nor provided disclosure of where the rental income received was being dispersed. The wife stated that she was confused and did not know who CC Pty Ltd were and was previously unaware of any such entity.
In June and July 2023 there was correspondence between DD Lawyers, for the wife, and EE Lawyers for the husband, where the wife requested disclosure of relevant documents including several identified bank accounts “from 12 months prior to separation until June 2023.” Those accounts were NAB …69; ANZ …15, ANZ …07; NAB …06; NAB …85; CBA …34; CBA …34; Westpac …56; Westpac …59; Westpac …86 and J Pty Ltd …53.
In responding to that request EE Lawyers provided limited disclosure. In respect of the account NAB …69, disclosure was provided from 5 February 2023 until 5 June 2023. In respect of the ANZ business account …07, disclosure was provided from 17 January 2023 until 17 May 2023. In respect of the ANZ account …15, disclosure was provided from 17 July 2013 until 17 April 2023. In respect of CBA account …34, disclosure was provided from April 2013 until January 2015 and from 25 January 2023 until 2 June 2023. The husband’s solicitor advised additional disclosure “would be provided.” There is no evidence that any additional disclosure was provided and the wife deposed that it was not. His solicitors also advised that the sale and purchase of assets were “done through [B Pty Ltd].”
In a further letter dated 28 July 2023, the wife’s solicitor again requested disclosure. The request specifically identified the banks, the account details, and the periods requested and sought disclosure of documents relevant to the company B Pty Ltd and in respect of Hendrix’s Family Trust.
Each party became unrepresented in August 2023. The husband’s lawyers filed a notice of withdrawal as lawyer on 30 August 2023 and the wife’s lawyers filed a notice of withdrawal as lawyer on 29 August 2023. The wife was later represented for short periods of time but was unrepresented at the trial.
Despite the husband’s assertion that he had provided disclosure, he failed to provide any evidence of further disclosure having been made between the July 2023 request and the documents sent to the wife by email in the period shortly prior to, and over the course of the trial.
The index annexed to the husband’s trial affidavit referred to various financial records in general terms such as “Wife CBA A/C” and “Accounting NAB A/C statement.” The index also refers to “trust fund trace” accounts from 2002-2008. The index did not include any apparent reference to the bank accounts that were subject to the requests by the solicitor for disclosure. The wife accepted that she had received some emails with partial disclosure of some accounts such as the company bank records that were emailed to her on 28 October 2024 but denied she had received full and frank disclosure as required.
Given the history of requests made and lack of evidence of full disclosure of historical documents and bank accounts as sought, together with the concession made by the husband as to the failure to make disclosure from mid-2023, I find that the husband failed to provide full and frank disclosure and failed to make timely disclosure of relevant documents and records. He failed to produce many of the documents identified in the request from the wife’s solicitor and he failed to produce documents relevant to the financial activity of the trust, the company, or personally through the requested bank statements. He failed to meet his ongoing obligation to make full and frank disclosure as required by the Rules.
The husband offered no explanation for this failure other than that the matter was listed quickly and his concern as to the risk of the mother’s “improper use.” At the time of listing both parties confirmed the matter was ready for hearing and raised no issue with the timetable for filing the trial material. Both parties had been reminded of their duty of full and frank disclosure at a number of the directions hearings prior to the matter being listed. The husband has not convincingly explained why he failed to make disclosure and failed to make timely disclosure of the relevant records. I do not accept the explanation given for not disclosing due to a concern the records would be used for an improper purpose as contended. There was no evidence to support such a concern nor was any alleged improper purpose identified.
The extent of and sheer volume of the documents that were disclosed very late, together with the piecemeal and partial disclosure provided, prejudiced the wife in her capacity to understand and respond to the financial circumstances of the parties. She simply had no understanding of the operation of the company or of the financial matters relevant to the alleged trust including the use made or amount of rental income received. Each party is entitled to a fair trial and should not be subjected to a trial by ambush.
The effect of the husband’s non-disclosure and late disclosure as set out above has been that his income, the history of transactions from the bank accounts and the use of the funds in the sole control of the husband remains opaque. Consequently, I can make no finding as to the value of the interests of the husband in assets including the entities he controls nor in bank accounts.
Non-disclosure of the wife
The husband contended that the wife had not complied with her ongoing obligation of disclosure. The wife also had not made any disclosure since June 2023. She was therefore also in default of her obligations, which both parties must have been aware of having both signed an undertaking as to disclosure and having been previously legally represented.
The difference, however, is that the wife’s financial affairs were simple and did not involve control and management of alleged trusts, companies or historical financial records of entities in which the parties both had an interest. The wife receives an income as a health professional and pays rent on a property. There were no allegations of undisclosed assets other than the dispute as to the treatment of her interest in the land in Country P referred to below and the issue of the loan she took out to meet her own legal costs, which was addressed in cross-examination.
Both parties had been directed on the first day of trial to make updated disclosure of all outstanding records.
The husband did not claim any prejudice arising and it is difficult to contemplate any prejudice suffered by the husband, particularly when the parties were not in significant dispute as to the wife’s income, assets and liabilities.
THE PROPERTY POOL
The husband filed written submissions in support of the orders he sought referencing various authorities in support of the orders he sought. I have read and considered the submissions, and the evidence permitted to be relied upon in the proceedings including the exhibits, but do not propose to repeat all of the submissions or the evidence in these reasons.
Each party filed a separate balance sheet which identified various contended assets and liabilities. Both balance sheets were confusing and inconsistent with the parties’ sworn evidence and other evidence relied upon. The parties had limited capacity to agree even in respect of de minimis amounts in dispute.
The husband contended that he had no property to divide as the assets had a nominal value, and otherwise, the assets were held on trust for the benefit of his son, X, and his father, Mr FF.
In the husband’s balance sheet filed 19 November 2024, the assets were identified as follows:
Ownership Description Applicant’s value Respondent’s value ASSETS 1 Bank
A/CCBA …34 (756) 2 NAB
A/CNAB …37 427 3 B Pty Ltd
shareDebt over equity, see Valuation Report order by the Court 4 Motor Vehicle 1 non running, unregistered Already disclose in 2011 binding financial agreement in Country AA where both parties sign 500 5 Furniture Sofa, bed, study table and so on 1000 6 Note: I often purchase under B Pty Ltd name, therefore no personal belong, no car Total $ $ ADDBACKS 7 Property GG $130,000, 1/3 of interest of USD 200,000 in 2011, asset list in binding financial agreement, not document of change ownership 8 Total $ $ LIABILITIES 9 Centrelink Over payments $56,000 10 ATO BAS late lodgement Fee $59,000 11 Repay all trust fund paid by the Trust to person not in the Beneficiary list Settlement pay to wife unknown, legal fee of $100,000 with $75,000 unpaid, because the binding financial agreement not binding, by trust deed. 12 Ms HH, higher education loan of $240,000 deduce from my salary every week, Legal loan $40,000, unpaid legal fee $30,000, traffic fine $8,000, insurance claim liability $8,000. Council e legal bill unknown, $30,000 in 2012 with accrued interest $22,000 and compound interest from 2007 for her mortgage plus income tax if any Total SUPERANNUATION Member Name of Fund Type of Interest Applicants value Respondents value 13 In my affidavit Super Fund1 Employee contribution $1717 14 15 16 17 Total FINANCIAL RESOURCES Ownership Description Applicant’s value Respondent’s value 18 Trustee hold asset for benefit of beneficiary E Street Suburb F, I would get more to do the same amount of work elsewhere, the Trust not even pay me award wage or equal amount, control as trustee but not benefit, control alone is not sufficient to treat as financial resource, trust fund trace 2002 to 2024 provided, tax return 2008 to 2023 provided for assessment negative or 0 19 Council rate, L Corporation bill, M Pty Ltd bill, Gas bill,
should bill to Trustee of the trust, not me.Total
His balance sheet also noted the following:
Item No. 18 The Trustee is prohibited to sell trust real estate, income and capital must distributed to income or capital beneficiary without discretion, could not change trust deed, not benefit obtain, rather is a burden. The one room rent free is worth $200 a week, but repair, maintenance work, manage 5 tenants, and make shortfall of the mortgage of the trust, I have not benefit, no one want to take the role for such small reward. see trust tax return, trust fund trace 2002 to 2024. 18 A expert evidence may required to calculate the Capital gain tax if the trust property was sold, as the capital beneficiary is non Australian resident, the CGT is tax on trustee of 45% flat tax rate without 50% long term asset holding discount Such event will cause lender for the construction of the house not able to receive their funds. 7 Document in possession of the wife need to be provided before an item can be agree. The court could not make a fair and equal division without knowing the current value of a significant asset listed in the binding financial agreement where one party is more honest in a good relationship than in a property proceeding.
In cross-examination when it was suggested the wife did not make such contributions she said:
[I] send you money on your mortgage, I bought furniture, I help you remove rubbish, I bring you for tenants downstairs washing machine, microwave, fridge I help you organise downstairs for tenants, I went to […] for washing machine, […] for microwave for tenants, dishes, blankets.
The husband set out in substantial detail the owner-builder contributions he made prior to the relationship and during the relationship. He gave evidence at [84] of his trial affidavit that in 2013, after the child was born of further renovations he undertook:
In 2013, the down stair cleaning business moves out, I replace two bookcases with plaster walls and create a study room under the 2008 comply development, with a private certifier approval of the alternation. I carry the work myself to install timber frame, install wall insulation, install plaster board, fix the joint, create a bathroom and kitchenette at the open plan living area, paint the walls, to rent it out to 3 different people while keep the same occupancy rate as the […] business bas 3 people occupy the rooms being a couple and one child. I also lay 13 m2 marble tile at the workshop area. After the alteration, the rooms are easier to lease out, allow the trust to obtain more stable rental income to serve its mortgage.
The wife’s evidence was that she provided assistance to the husband in the renovations. These renovations were being undertaken during the relationship when the child was a young baby. I find that the maintenance and renovations together with the care of the parties’ young child were contributions made by both parties.
The husband’s contention that the wife made no non-financial contributions during the relationship is an extraordinary contention and is not supported on the evidence. I accept her evidence of her role as a homemaker and parent. Her evidence was corroborated by both Ms U and Mr S. Both parties made contributions to the care of the child post separation.
The wife gave specific and detailed evidence during her cross-examination of the non-financial contributions she made. She said she was involved in cleaning the apartments as tenants left, including washing curtains. She said that when renovations were being undertaken she drove a utility that had been hired to assist with delivery and collection of building materials and disposal of rubbish. The husband denied these contributions, denying that he had hired a utility and denied that the wife cleaned or assisted in this way at all.
When cross-examined by the husband, the wife clarified that she drove the vehicle hired by the husband for that purpose because the husband had lost his licence. The husband ultimately agreed that he did not have a drivers’ licence at the time. I accept the wife’s evidence in respect of these contributions.
Mr S gave uncontested evidence that he observed the husband undertake work such as gardening, building repairs, maintenance and painting and that he did not observe the wife participate in such tasks. However, he also gave evidence that he observed the wife perform housekeeping and cleaning duties of the shared spaces in the house. Similarly, Ms U gave evidence that while she attended the home, she observed the wife cooking and cleaning and attending to the child. Her observations at that time were that the wife attended to the preparation of meals, cleaning and childminding. She observed the husband spent most of his time at his desk studying and she never observed the husband undertaking any chores or maintenance or assisting with the house or childcare of the child.
I accepted that both Mr S and Ms U were honest witnesses doing their best to recollect their observations at the time. Mr S observed the husband contributing the maintenance and gardening and Ms U observed the wife contributing the cooking, cleaning and attending to the child. I accept that both the husband and wife did make non-financial contributions as observed.
Indirectly, the wife contributed by joining with the husband in undertaking cleaning and house-keeping tasks and assisting the husband by driving him when he was without a licence. The husband contended that the cleaning would not be considered a contribution and relied on the authority of Fielding & Nichol [2014] FCWA 77. I reject that submission. The arrangements in respect of this particular property was not simply cleaning a family home in which they resided. The evidence of the parties is that the home provided accommodation for multiple tenants with common areas and individual rooms. Renovations were undertaken while the parties lived there with a small baby. Additionally, the management of the property involved showing prospective tenants the accommodation, cleaning and assisting with the rental of the then four studios and a one-bedroom apartment. The wife gave evidence that she undertook some tasks such as gardening and assisting with aspects of maintenance. The wife accepted that the husband undertook more of the renovation and maintenance works.
Given the evidence I have accepted, there is little distinction in the parties’ financial and non-financial contributions during the period of the relationship and they are afforded comparatively little weight.
The husband has remained living in the E Street property since the wife obtained independent accommodation and has had that benefit, but I accept he has had the financial obligations associated with mortgage, rates, insurance and maintenance together with the benefit of the rental income derived from the property. Due to the lack of evidence, I cannot make any finding as to the income made or lost by him.
This does not warrant any adjustment.
Assessment of contributions
This was a short relationship where the wife’s financial contributions are comparatively modest. Essentially, she contributed her more modest assets being her interest in the overseas property, some furniture and savings of US$26,000 at cohabitation while the husband had more modest savings and significant equity in the E Street home.
I accept that the parties each made non-financial contributions by way of maintenance and cleaning and as a homemaker and parent and there is little distinction available on the evidence between their respective, but different, contributions as observed by the respective witnesses.
Accordingly, I am satisfied that a contribution-based analysis warrants an adjustment in favour of the husband of 70 per cent to the husband and 30 per cent to the wife. This reflects a significant weighting in the husband’s favour due to his far greater initial contribution in this relationship. I make this assessment after consideration of the significance of his contribution to the acquisition of the property and the benefit the parties derived from the property, balanced with the parties’ respective financial and non-financial contributions which followed cohabitation and separation.
OTHER SECTION 79(4) FACTORS
None of the orders I will make will affect the earning capacity of either of the parties.
The husband is employed full-time as a transport worker and earns $78,000 per annum. He was on probation and had only been employed for six weeks.
Despite the husband giving evidence that he earns $78,000 per annum, he deposed in his financial statement to earning $1,650 per week. The husband also has access to an undisclosed sum being the rental income from the studio apartments he rents to numerous tenants who live with him at the E Street property. This is balanced with the consideration that he has the obligation of the mortgage, rates, insurance and maintenance of the property. There was no evidence as to whether the rental amounts provide a deficit or an excess over the mortgage and other relevant expenses, again due to the absence of direct evidence and inadequate disclosure made.
Despite the husband’s qualifications, there is no evidence that he has been employed as a finance professional or practised as a finance professional other than to use his training to apparently manage the affairs of the corporate entities and businesses he controls. There is no evidence he has derived income from his other qualifications but there has been a failure to disclose the relevant financial records such that any finding can be made.
The husband has an interest in B Pty Ltd, the value of which is unknown. I am unable to make any finding as to any income or benefit derived or financial resources of the husband arising from his interest in B Pty Ltd and its various business ventures due to the lack of evidence from him and due to the inadequate disclosure.
Since coming to Australia, the wife has learned the English language and has recently graduated as a health professional. She is now employed at XX Organisation and gave evidence that she is employed 40 hours per week. Her evidence was that she earns $65,000 per annum. She accepted that she has the capacity to earn penalty rates in her shift work.
Given the relatively similar incomes of the parties and the absence of any evidence as to any other relevant factor that may warrant any adjustment, I do not consider that this factor warrants any adjustment. Pursuant to these orders the parties only child will live with the parties in an equal time arrangement. This is not a factor that warrants any adjustment.
Each party sought an adjustment in relation to the matters under s 75(2) the husband seeking a further adjustment in his favour by reason of the fact he 57 years of age and is 13 years older than the wife.
Each of the parties will retain certain liabilities such as legal costs and possible liabilities as identified earlier in these reasons such as their tertiary education liabilities and I take into account those matters in my overall assessment.
The wife sought an adjustment such as to equalise the pool because of the non-disclosure. I consider that the husband’s non-disclosure is of great significance. The conduct of the husband in his flagrant, extensive and deliberate non-disclosure and is a factor that the justice of the case requires to be taken into account.
The evidence suggests that he has had control of the company and business assets with income derived since separation and has had the control and benefit of all of the rental income derived from the E Street property since separation. The ongoing and egregious non-disclosure has been in the face of assurances that disclosure would be provided, orders being made for disclosure to occur, notwithstanding this the non-disclosure continued in the face of warnings as to the consequences.
The wife had endeavoured to obtain expert evidence by appointment of a single expert to determine the value of the entities in the control of the husband. I am satisfied on the balance of probabilities that her endeavours were frustrated by the lack of disclosure and the extremely late disclosure of bank records.
As referred to by His Honour, Justice Schonell at [45] in Piroozi & Piroozi [2023] FedCFamC1F 359 when considering the issue of the obligation of disclosure, Justice Hutley observed in St John v St John (1974) 6 Fam LN N14:
… faced with the party whose affairs were tangled and who did not give the assistance within his power to disentangle them the trial Judge in my opinion was well entitled to simply take the view that it lies upon that party to devise means to comply with the order. If the burden is impossible, he cannot complain as he is the author of his own misfortune.
The husband had the control of the entities, the bank accounts and all records. He was the tax agent for relevant entities. He was uniquely placed to illuminate the financial arrangements and did not do so despite understanding his obligation to do so. He provided a detailed history of his contributions and financial activities in respect of the purchase of and building of the property in his sworn evidence. He gave detailed evidence with specificity as to the dates and amounts he borrowed and the work he undertook in the period prior to the relationship. However, he failed to provide any evidence in respect of the conduct of the company, the rental property or the various business interests. I do not accept the husband has been frank and honest with the Court about financial matters that post-date the parties’ separation.
His conduct in this regard has left the wife and the Court with no clarity as to the financial activities and affairs including in respect of the rental income received, the mortgage payments made and of the activities and value of the entity in which both parties had an interest.
The justice of the case requires that the husband’s conduct is a factor that warrants adjustment pursuant to s75(2)(o). To do otherwise would be to permit a charter for fraud and would permit the consequences of his failure to be frank and open with the Court and with the wife to be rewarded. This is a matter that requires a significant adjustment in favour of the wife.
Assessment of s 75(2) factors
Overall, I would have made a further adjustment in favour of the husband due to his more advanced age but for his egregious non-disclosure. I am satisfied that balancing all of the s75(2) factors identified warrants a further adjustment in favour of the wife of 10 per cent because the husband’s conduct in failing to make full and frank disclosure resulted in the parties’ true financial situation remaining opaque.
In my view absent such an adjustment, the conduct of the husband in ensuring the lack of clarity as to the financial affairs post-separation, would result in an outcome that is not just and equitable. Due to the non-disclosure, I infer that there is more in the property pool than has been evidenced in these proceedings and that this warrants the order that has been made.
I am not satisfied that an overall equal division of the property as sought by the wife, however, would result in a just and equitable outcome.
PROPERTY ORDERS
Adjustment of the property of the parties
The effect of my findings as against the known pool of assets is that the husband will receive overall 60 per cent of the identified pool of assets and the wife will receive 40 per cent of the identified pool of assets.
Based on the findings as to the property pool having a total value of $1,053,995, a 60 per cent adjustment to the husband reflecting his superior financial contributions will result in him retaining $632,397 of the total identified pool. The wife will retain $421,598. Overall, 60 per cent to the husband and 40 per cent to the wife.
The adjustment to the husband provides him, in monetary terms, $210,799 more than the wife. The effect of this division is that, after accounting for the known assets, financial resources, superannuation and liabilities of each party the husband is to pay the wife the sum of $307,618.
The wife will otherwise receive assets having a value of $113,980 while the husband will receive assets having a value of $940,015. In order to bring about a 40 per cent overall division to the wife, he will need to pay her the sum of $307,618. The husband will have 45 days to pay such sum. In default of payment the property will be sold and in order to ensure justice and equity the parties will share in any rise and fall of the sale price to affect an overall 60 per cent division to the husband and a 40 per cent division to the wife.
I recognise and have taken into account that each will retain their individual outstanding legal fees and other identified liabilities and possible liabilities, including the burden of meeting their own higher education liabilities in the event that these are recoverable.
The husband will retain any liabilities in his name as well as any liability to his family as outlined above, including the $220,000 and if any such further liability exists.
Neither party made any submission as to the timing of the payment. In the circumstances, I will order that the payment is to be made within 45 days, as it is a reasonable period for the husband to arrange re-finance. Should he fail to pay the sum in that time, the property will be sold.
E Street property and mortgage
The wife seeks orders for the immediate sale of the E Street property.
The husband seeks that he retains his interest in the E Street property and the husband and child have continued to reside there. If the husband is able to refinance all encumbrances secured over the E Street property into his sole name and has the capacity to pay the wife in accordance with these orders, he should be permitted to do so.
There is no reason why the husband should not be permitted to retain the property if he has the capacity to do so. To do so will also avoid the realisation at this time of a possible CGT liability. The husband will be permitted time to pay the wife the sum ordered but if he fails to do so within 45 days the property will be sold.
The husband has adduced no evidence that he has a capacity to raise funds necessary to pay the wife's entitlement. In the absence of evidence, I see no reason why the wife should have to wait any longer than the period of 45 days.
Default provisions
Orders in default of payment to facilitate the sale of the E Street property in the event that payment is not made by the husband by the due date are necessary.
The wife sought an amount determined by an independent accountant to be invested for payment of CGT upon sale. There was no evidence of any CGT liability, or any anticipated amount. The parties agree that such a liability is likely in the event of a sale accordingly an assessment by an independent accountant is appropriate and will avoid conflict and delay.
No submissions were advanced by the husband as to the appropriateness or otherwise of the wife's orders for sale of the property. In circumstances where the husband's orders provided no mechanism for sale and in the absence of a submission as to why such orders would not be appropriate, I make orders for sale, including in respect of calculation of CGT liability, should a sale become necessary.
For practical implementation I have ordered default provisions which include orders for the parties to share in any increase or decrease in the sale price of the E Street property in accordance with the principle as adumbrated in Trask & Westlake (2015)55 Fam LR 153, in the event that a sale becomes necessary. This is because in the event that the E Street property is required to be sold, the ultimate sale price cannot be known at present. The appropriate way to ensure each party receives their entitlement is to take the present determined total value of the net assets, excluding the E Street property, and relevant encumbrance and adjust the sum to be paid to the wife, once the net proceeds of sale are known. That figure will then be divided to bring about a 40 per cent adjustment to the wife and a 60 per cent adjustment to the husband.
The husband sought orders that he pay as option A the sum of $50,000 plus a sum of $300 per week which he called “rent assistance” until the child tuns 18 years old. This was a proposed order by way of property adjustment not as child support. The order is not an order that would properly be made pursuant to s 79. He sought in the alternative that he pay 15 per cent of the property pool (option B). He also sought an order that he provide a whole life free tenancy of one room at E Street, Suburb F NSW and “40% of the inherent right of the Applicant.” The proposed orders are incompetent, and I decline to make them.
Property to be retained by the parties
The parties agreed that they would otherwise retain all property in their respective possession and control. Those orders are appropriate, and orders are made accordingly. No party sought to adjust their respective superannuation interests which I include in the calculation of the net pool which has been undertaken on a global asset pool basis.
Section 106A
The husband and wife both sought an order pursuant to s 106A of the Act. Such an order is appropriate in the event of non-compliance with the orders. I will make that order.
Resignation of wife from B Pty Ltd
The wife sought orders for her to resign as a director or officeholder of B Pty Ltd. The husband sought that he shall retain to the exclusion of the wife all his right, title, obligation and interest in the company. Such an orders are appropriate and I make these orders.
Indemnity
The wife sought an order for an indemnity in respect of any liability arising in respect of the company including taxation liabilities. That is also appropriate for the reasons set out above and I make such an order. There was no submission made by the husband opposing such an order noting the orders sought by him sought each provide the other with a series of indemnities. That too is an appropriate order to be made given the lack of mutual disclosure.
The husband's made no submissions on the issue of the indemnities as sought by the wife. In circumstances where the husband will retain the corporate entities and where I am satisfied that there has been non-disclosure, I will order the indemnities sought by the wife because she is entirely in the dark as to the affairs of the company.
For the reasons set out in the judgment it is appropriate that the husband shall indemnify the wife in respect of the caveat liability from his share of the property in the event a sale is necessary given those funds were used to meet his legal expenses.
CONCLUSION ON PROPERTY ORDERS
Taking all of the above matters into account I am satisfied that the orders I propose to make are appropriate and are just and equitable. The orders meet, as best they can on the evidence available, the obligation to finally determine the financial relationship between the parties and to avoid further proceedings to the extent possible.
I certify that the preceding four hundred and forty (440) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 30 April 2025
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