Howell & Howell - [2023] FedCFamC2F 584

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Howell & Howell [2023] FedCFamC2F 584

File number(s): SYC 3722 of 2021

Judgment of: JUDGE ELDERSHAW

Date of judgment: 22 May 2023

Catchwords:
FAMILY LAW – PARENTING – FINAL ORDERS – Best interests – Parental responsibility – With whom the children live – With whom the children spend time

FAMILY LAW – PROPERTY – FINAL ORDERS – Where the husband receives a total and permanent disability payment – Where the father’s insurance payments have been co-mingled with the equity in the matrimonial home

FAMILY LAW – COSTS – Where the Independent Children’s Lawyer seeks costs – Where no order for costs is made

Legislation:
Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 62B, 65DAA, 65DA, 65Y, 75, 79, 106A, 114, 117, 121

Firearms Act 1996 (NSW) s 79

Weapons Prohibition Act 1998 (NSW) s 38

Cases cited:
Adair & Adair [2019] FamCAFC 70

Aleksovski & Aleksovski (1996) FLC 92-705;[1996] FamCA 111

Beckett & Beckett [2017] FCCA 608

Clauson & Clauson (1995) FLC 92 – 595; [1995] FamCA 10

Jabbour & Jabbour (2019) FLC 93-898; [2019] FamCAFC 78

Norbis v Norbis (1986) 161 CLR 513

Perrin & Perrin (No 2) [2018] FamCAFC 122

Simons & Simons [2020] FamCAFC 128

Stanford v Stanford (2012) 247 CLR 108

Division: Division 2 Family Law

Number of paragraphs: 369

Date of hearing: 24 & 26 – 28 April 2023

Place: Sydney

The Applicant: The Applicant appeared in person

Counsel for the Respondent: Ms Spain

Solicitor for the Respondent: Vizzone Ruggero Twigg Lawyers

Counsel for the Independent Children's Lawyer: Mr Reeves

Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates
ORDERS

SYC 3722 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HOWELL

Applicant

AND:
MS HOWELL

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE ELDERSHAW

DATE OF ORDER:

22 MAY 2023

ON A FINAL BASIS, THE COURT ORDERS THAT:
1.All prior parenting and property orders made in these proceedings be discharged.

PARENTING
2.In these Orders, “the children” mean X born 2012 and Y born 2014.

Parental Responsibility
3.The parties shall have joint parental responsibility for all decisions about major long term issues for the children, except as to the children’s health.
4.The mother shall have sole parental responsibility for all decisions about major long term issues for the children’s health AND for this purpose:
(a)The mother must notify the father of her proposed decision in writing not less than 28 days prior to making any non-urgent major long term decision for the children including all reasonable particulars about the issue, including the contact details of any proposed treating health professional;
(b)The father must respond to the mother’s notification within a reasonable time;
(c)The mother must give proper genuine and realistic consideration of any view expressed by the father in relation to the proposed decision; and
(d)The mother must notify the father in writing of the decision within seven days of making it.

5.The mother must ensure that the father’s full name, telephone number and email address are provided to all medical and allied health practitioners who treat the children.

Live With and Spend Time with Orders
6.The children shall live with the mother.
7.The children shall spend time with the father from the conclusion of school on 22 May 2023 to the commencement of school on 23 May 2023.
8.The children shall spend time with the father during school terms based on a fortnightly cycle:
(a)In Week 1: from 3.00 pm on Thursday to the commencement of school the following Monday, unless Monday is a non-school day, in which case the time shall extend to 3.00 pm, with the first occasion to occur on 1 June 2023; and
(b)In Week 2: from 3.00 pm on Thursday to the commencement of school on Friday, unless Friday is a non-school day in which case the time shall extend to 3.00 pm, with such time to commence on 25 May 2023.

9.For the purpose of giving effect to the preceding cycle of weeks in the fortnight:
(a)The weekend that occurs immediately after the making of these Orders and every alternate weekend after that until Y attains the age of 18 years shall be spent with the father;
(b)The weekend that occurs a fortnight hence of the making of these Orders and every alternate weekend after that until Y attains the age of 18 years shall be spent with the mother; and
(c)At the start of the next school term the underlying cycle of fortnights shall continue as if the holidays had not occurred.

10.For the purpose of ensuring the orderly provision of school uniform/equipment and sports uniforms/equipment, the following shall apply:
(a)Subject to Order 10(e) below, the mother must send the children to school each Thursday morning with all school uniforms/equipment that they are likely to require on Fridays and, if the children are in the father’s care until Monday, for each day of the weekend and Monday;
(b)On the next occasion that the children return to the mother, the father must return to the mother the items that it contained on its arrival on Thursday in the same condition, save for fair wear and tear;
(c)If a uniform/item of equipment that has been provided by the mother is lost, damaged or destroyed while in the father’s possession, he must replace the item as soon as possible;
(d)If the mother omits to include an item that is required for use by the children while in the father’s care, she is to cause that item to be delivered to the front office of the relevant child’s school by 8.30 am the next day if it is a school day or by 8.00 am to the father’s letterbox if it is a non-school day; and
(e)If the father enrols the children in an activity that occurs on and only on a Thursday during school terms, then he shall be responsible for purchasing and maintaining the necessary uniforms/equipment for that activity and Orders 10(a) to (d) above will not apply.

School Holidays
11.During the school holiday period occurring at the end of Term 1, the children shall spend time with each parent as follows:
(a)In 2024 and each alternate year after that:
(i)With the father from 5.00 pm on the middle Saturday of the holiday period to 9.00 am on the first day of the children’s school attendance in Term 2; and
(ii)Otherwise with the mother.

(b)In 2025 and each alternate year after that:
(i)With the father from 3.00 pm on the last day of the children’s school attendance in Term 1 until 5.00 pm on the middle Saturday of the holiday period; and
(ii)Otherwise with the mother.

12.With respect to the Term 2 school holidays:
(a)In 2023 and each alternate year after that, the children shall spend time with the mother from 3.00 pm on the last day of the children’s school attendance in Term 2 to 9.00 am on the first day of the children’s school attendance in Term 3; and
(b)In 2024 and each alternate year after that, the children shall spend time with the father from 3.00 pm on the last day of the children’s school attendance in Term 2 to 9.00 am on the first day of the children’s school attendance in Term 3.

13.With respect to the Term 3 school holidays:
(a)In 2023 and each alternate year after that, the children shall spend time with the father from 3.00 pm on the last day of the children’s school attendance in Term 2 to 9.00 am on the first day of the children’s school attendance in Term 3; and
(b)In 2024 and each alternate year after that, the children shall spend time with the mother from 3.00 pm on the last day of the children’s school attendance in Term 2 to 9.00 am on the first day of the children’s school attendance in Term 3.

14.With respect to Term 4 school holidays, the children shall spend time with each parent as follows:
(a)In 2023 and 2025:
(i)With the father from 9.30 am on the second Monday of the school holiday period to 9.30 am the following Monday and each alternate week after that; and
(ii)Otherwise with the mother.

(b)In 2024:
(i)With the father from 9.30 am on the first Monday of the school holiday period to 9.30 am the following Monday and each alternate week after that; and
(ii)Otherwise with the mother.

(c)In 2026 and each alternate year after that:
(i)With the father from 5.00 pm on the midpoint of the holiday period until 9.00 am on the first day of the children’s school attendance in Term 1; and
(ii)Otherwise with the mother.

(d)In 2027 and each alternate year after that:
(i)With the father from 3.00 pm on the last day of the children’s school attendance in Term 4 until 5.00 pm on the midpoint of the holiday period; and
(ii)Otherwise with the mother.

15.For the purposes of Orders 11 to 13 herein:
(a)If the last day that one child is to attend school at the end of a school term is different to the other child, the “last day of the children’s school attendance” is the later of the two days; and
(b)If the first day that one child is to attend school at the start of a school term is different to the other child, the “first day of the children’s school attendance” is the earlier of the two days.

16.For the purpose of Order 14(c) and (d) herein, the “midpoint of the school holiday period” is determined by dividing the number of nights of the period by two. If there are an odd number of nights:
(a)The father shall have the benefit of the additional night in the holiday period commencing in 2026 and each alternate year after that; and
(b)The mother shall have the benefit of the additional night in 2027 and each alternate year after that.

Special Occasions
17.The children shall spend time with each parent at Christmas as follows:
(a)In 2023 and each alternate year after that:
(i)With the mother from 9.00 am on Christmas Eve to 12 noon on Christmas Day; and
(ii)With the father from 12.00 pm on Christmas Day to 5.00 pm on Boxing Day.

(b)In 2024 and each alternate year after that:
(i)With the father from 9.00 am on Christmas Eve to 12 noon on Christmas Day; and
(ii)With the mother from 12 noon on Christmas Day to 5.00 pm on Boxing Day.

18.The children shall spend time with each parent at Easter as follows:
(a)In 2024 and each alternate year after that:
(i)With the father from 9.00 am on Good Friday to 5.00 pm on Easter Saturday; and
(ii)With the mother from 5.00 pm on Easter Saturday to 5.00 pm on Easter Monday.

(b)In 2025 and each alternate year after that:
(i)With the mother from 9.00 am on Good Friday to 5.00 pm on Easter Saturday; and
(ii)With the father from 5.00 pm on Easter Saturday to 5.00 pm on Easter Monday.

19.The children shall spend time with:
(a)The mother from 5.00 pm on the eve of Mother’s Day to the commencement of school on the Monday after Mother’s Day; and
(b)The father from 5.00 pm on the eve of Father’s Day to the commencement of school on the Monday after Father’s Day.

20.The children shall spend time with each parent on each child’s birthday and each parent’s birthday as agreed in writing between them but failing agreement, the time shall lay where it falls.

Changeover
21.Except where changeover occurs at the children’s school, changeover shall occur at a venue agreed between the parties in writing but failing agreement, at B Street, Suburb C.

Communication
22.Each parent may telephone the children at all reasonable times.
23.The parties shall use the “Two Houses” parenting application (or such other application as agreed between the parties from time to time) for all communication and information about, and scheduling for, the children, save for urgent matters.

Notifications and Information Exchange
24.Each party shall notify the other of any change to their residential address, telephone number or email address within 48 hours of such change occurring.
25.This Order shall be sufficient authority for each parent to obtain such information about the care, welfare and development of the children, as he or she reasonably requests, from any school or education provider with whom the children are engaged including:
(a)A copy of all school reports, progress reports and photograph order forms;
(b)Notifications of all activities involving the children including those at which parents are invited or permitted to attend; and
(c)Notifications about parent-teacher interviews.

26.This Order shall be sufficient authority for each parent to obtain such information about the care, welfare and development of the children, as he or she reasonably requests, from any medical or health professional who treats the children.
27.In the event a child suffers a serious accident, injury or illness, the parent who is caring for the child must notify the other parent as soon as practicable of:
(a)The nature of the accident, injury or illness;
(b)The place to which the child has been taken for treatment;
(c)The outcome of any treatment; and
(d)The name and contact detail of the health professional who is treating the child.

28.The mother must inform the father of:
(a)Any medication or other treatment that has been prescribed or rendered to the children, including information about the prescribed dosages of any medication and its possible side effects;
(b)The date and time of all medical and allied health appointments for the children; and
(c)The outcome of any medical or allied health appointment.

29.The father shall keep the mother informed of any psychologist, psychiatrist or therapist upon whom he attends from time to time.

Restraints
30.Each party is restrained by injunction from:
(a)Discussing these proceedings with the children or with any other person in the presence or hearing of the children;
(b)Allowing or causing the children to gain access to any document produced in these proceedings or any legal correspondence;
(c)Making any critical or derogatory remarks about the other parent or member of that parent’s household or extended family to the children or to any other person in the presence or hearing of the children;
(d)Asking the children about their views or preferences about their parenting arrangements;
(e)Physically disciplining a child or causing or permitting any other person from doing so;
(f)Filming, photographing or recording the other parent without that parent’s express consent; and
(g)Causing or permitting the children from coming into contact with any weapon.

31.The parent who does not have the care of the children on a given day (“the first parent”) may attend any extra-curricular activity, sporting fixture, school function or like event involving the children provided that the parent who is caring for the children (“the second parent”) has been given twenty four hours’ notice of the first parent’s intention to attend.
32.Neither parent may attend the residence of the other parent other than with the express written invitation of that parent.

Overseas Travel
33.Pursuant to s 65Y of the Family Law Act 1975 (Cth), each parent is permitted to remove the children from the Commonwealth of Australia at times that the children are ordinarily in their care provided that:
(a)Subject to Order 34 herein, the travelling parent give the non-travelling parent at least 42 days’ notice in writing of the intended travel, country or countries of destination, proposed departure and arrival dates into and out of each country;
(b)Not less than 21 days prior to departure, the travelling parent gives the non-travelling parent:
(i)A copy of all return airline or shipping tickets and a copy of a detailed itinerary; and
(ii)A telephone number on which the travelling parent and the children can be contacted while overseas and all accommodation details.

34.In the event the mother needs to travel with the children to the United Kingdom due to a medical emergency involving a member of the maternal family, the time for the mother to give notice pursuant to Order 33(a) is 72 hours and Order 33(b) is 36 hours.

Passports
35.Within 28 days of these Orders, each parent shall sign all documents to apply for an Australian passport and a British passport for each of the children with the costs to be paid equally.
36.The children’s passports shall remain in the custody of the mother at times they are not travelling overseas.
37.The mother shall provide the children’s Australian and British passports to the father not less than 14 days prior to their planned departure from Sydney with him for a period of overseas travel.
38.Within seven days of the children returning to Sydney, the father must return the children’s Australian and British passports to the mother.
39.Within seven days of the mother receiving each child’s Australian and British passports, she must provide to the father a legible colour copy of the pages of each child’s passport displaying the photograph, name, nationality, date and place of birth, passport number and expiry date.
40.In the event either party refuses or neglects to execute a passport application for the children within 14 days of being requested to do so, a Registrar of the Federal Circuit and Family Court of Australia be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such application in the name of such party and to do all acts and things necessary to give validity to the operation of the application.

Section 121 of the Family Law Act
41.Pursuant to s 121 of the Family Law Act 1975 (Cth), each party has leave to provide a copy of these Orders to:
(a)The Principal of any school attended by the children;
(b)Any medical, dental or psychological health practitioner who treats the children or any of them;
(c)The Australian Passports Office;
(d)The British High Commission in Australia; and
(e)The Australian Border Force and any foreign equivalent agency.

42.The Independent Children’s Lawyer is directed to provide a copy of these Orders and Reasons for Judgment to X’s therapist, Mr D.
43.Leave is granted to the father to provide a copy of these Orders and Reasons for Judgment to any mental health professional upon whom he attends.
44.Leave is granted to the mother to provide a copy of these Orders and Reasons for Judgment to any mental health professional upon whom she attends.
45.The Registrar of the Federal Circuit and Family Court of Australia at Sydney is requested to provide a copy of these Orders and Reasons for Judgment to Dr E for his information.

Independent Children’s Lawyer
46.The Independent Children’s Lawyer be discharged.
47.The Independent Children’s Lawyer’s application for costs be dismissed.

Procedural Orders
48.The Australian Federal Police remove the name of the children, X born 2012 and Y, from the Family Law Watchlist at all points of arrival and departure in the Commonwealth of Australia.

49.Pursuant to ss 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

PROPERTY ORDERS
Suburb G Property
50.Within 60 days of the date of these Orders (“the due date”), the wife shall pay to the husband the sum of $720,470.
51.Simultaneously upon performance by the wife of Order 50 the husband shall transfer to the wife all of his right, title and interest in the property known and situated at F Street, Suburb G NSW, being the whole of the land in Folio Identifier … (“the Property”).
52.If the wife does not fully comply with Order 50 herein by the due date, then the parties shall do all acts and things, and sign all documents necessary, to sell the Property for the best price reasonably obtainable.
53.In the event the parties cannot agree on the appointment of an agent, engagement of a conveyancer or other matters relevant to the conduct of the sale of the Property, Order 66 herein shall apply to the extent necessary.
54.The sale proceeds of the Property shall be distributed in the following manner and priority:
(a)In payment of the costs of legal fees and disbursements incurred by the conveyancer acting for the parties;
(b)In payment of the selling agent’s commission and any reasonable costs of sale incurred by the agent including marketing fees, styling costs and other agreed expenses;
(c)In payment of any council rates, water rates or other ordinary adjustments on sale as advised by the conveyancer; and
(d)Of the balance:
(i)62.6 per cent of the net sale proceeds to the husband; and
(ii)The remaining balance to the wife.

55.Pending the discharge of Order 50 or Order 54(d) as may apply, the wife shall pay as and when they fall due, all council and water rates, and home building insurance costs of the Property and costs of repairs and maintenance without recourse to the husband.

Weapons
56.Within 90 days of these Orders, the husband shall do all acts and things to dispose of all weapons in his possession or control.
57.Pending the disposal of each weapon, pursuant to s 114 of the Family Law Act 1975 (Cth), the husband is injuncted from causing or permitting any such weapon from being removed from H Shop located at J Street, Suburb K.
58.In the event H Shop declines to store the father’s weapons pending their disposal, the husband is to immediately notify the Commanding Officer of Suburb K Local Area Command of NSW Police and thereafter do all acts and things to cause the weapons to be stored as directed by the Commanding Officer or his delegate.
59.The husband is released of his Undertaking to the Court on 26 April 2023.
60.Mr L is released from his Undertaking to the Court on 26 April 2023.
61.The Court requests the Deputy Marshal of the Federal Circuit and Family Court of Australia at Sydney provide a copy of Orders 56 to 61 herein to the NSW Firearms Registry, and the Commanding Officer of Suburb K Police Area Command of New South Wales Police.

Other matters
62.Within 28 days of these Orders, the parties shall do all acts and things to close the M Bank Account No. …09 with the whole of the closing balance to be retained by the husband.
63.Within 28 days of the Orders, the wife shall do all acts and things to transfer to the husband all right title and interest in the recreational vehicle.
64.Except as otherwise provided by these Orders, each party shall retain, to the exclusion of the other, all bank accounts, superannuation entitlements, pension entitlements, vehicles, personal effects and household contents of which that party is the account holder, named member or interest holder, registered owner or is otherwise in possession.
65.Except as otherwise provided by these Orders, each party (“the first party”) shall be solely liable for any credit card, taxation or other debt howsoever incurred or arising, and standing in that party’s name at the time of the making of these Orders AND this Order may be relied on by the other party as a defence against any claim for the whole or any part of the said debt by a third party creditor, and against any claim for contribution or apportionment of such debt by the first party.

Mechanism and process of sale if parties unable to reach agreement
66.In the event the parties cannot agree on any aspect of the process for the sale of the Property, the following provisions shall apply as needed:
(a)Within 14 days of the due date, the parties shall agree on the appointment of a real estate agent failing which either party may apply to the President of the Real Estate Institute of New South Wales for a nomination and such nomination shall bind the parties;
(b)Within 14 days of the Due Date, the parties shall agree on the engagement of a conveyancer failing which either party may apply to the President of the New South Wales Law Society for a nomination and such nomination shall bind the parties;
(c)The parties must do all acts and things that are requested by the real estate agent and the conveyancer acting on the sale to ensure the orderly conduct of the sale including the preparation of the contract of sale;
(d)The parties must sign all documents and pay any upfront fees required by the real estate agent for the purpose of giving effect to the sale;
(e)The parties must co-operate with the real estate agency to ensure that the Property is available to the agent to conduct inspections at all reasonable times, making all keys available to the agent and ensuring that the Property is in a neat and clean condition at the time of any inspection by prospective buyers;
(f)Except as otherwise agreed, the Property shall initially be listed for sale by private treaty at a price agreed between the parties but, failing agreement, either party may apply to the President of the Australian Institute of Valuers for a nomination of a valuer, whose valuation shall bind the parties;
(g)In the event the Property has not sold within 90 days of these Orders, the Property, it shall be listed for sale by public auction with an auction to be scheduled within a further four weeks;
(h)The reserve price for any auction shall be as agreed between the parties but failing agreement, as recommended by the selling agent; and
(i)In the event the Property is not sold at public auction, the parties shall continue to list the Property for auction within a further three months of the first auction.

Ancillary Orders
67.Each party must do all acts and things and sign all documents as may be necessary to give effect to these Orders.
68.In the event either party refuses or neglects to execute any deed or instrument within 14 days of being requested to do so, including any PEXA authorisation, then a Registrar of the Federal Circuit and Family Court of Australia be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
69.Pursuant to s 121 of the Family Law Act 1975 (Cth), for the purpose of assisting in the orderly implementation of these Orders, each party is granted leave to provide a copy of these Orders to the New South Wales Land and Property Information Office, any lending institution or finance broker, to the agent who has been appointed to act on any sale of the Property, and for the purpose of giving effect to the indemnity provisions of these Orders.

Procedural Orders
70.All outstanding applications are otherwise dismissed.
71.The proceedings be removed from the list of matters awaiting finalisation.

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

These proceedings concern parenting and financial issues between the Applicant, Mr Howell born 1980 (“the father” or “the husband”) and the Respondent, Ms Howell born 1984 (“the mother” or “the wife”).
The children of the parties are X born 2012 and Y born 2014 (“the children”).
The parties commenced their relationship in 2007 and they were married in 2010. They separated on a final basis on or about 31 December 2018.
These proceedings were commenced by the husband’s Initiating Application filed on 20 May 2021, to which the wife joined issue by her Response filed on 20 August 2021.
Documents
The father relies on his Amended Initiating Application filed 1 December 2022, his affidavits filed 1 December 2022 and 27 March 2023, his Financial Statement filed 23 April 2023, and his Case Outline Document filed 10 April 2023. The father also relies on Exhibits F-1 to F-12. The documents listed at points three to nine inclusive under the heading “List of Documents” in the father’s Case Outline Document are otherwise Exhibits or form part of his affidavit material.
The mother relies on her Response filed 20 August 2021, her affidavits filed 1 December 2022 and 21 March 2023, her Financial Statement filed 14 April 2023, and her Case Outline Document filed 17 April 2023. The mother also relies on Exhibits M-1 to M-5.
The Court was assisted by a Single Expert Report by Consultant Clinical Psychologist Dr E (“the Expert”) dated 19 January 2023 and an Independent Children’s Lawyer.
A Single Expert Report from Mr N as to the value of the Property was prepared. As the value of the home was agreed, the affidavit was not read. I have adopted the stated value as an agreed fact.
Definitions
In these Reasons:
(a)“Expert” means Dr E. .
(b)“Insurance” means the totality of monies paid to the husband subsequent to a statutory worker’s compensation claim and common law claim against the father’s former employer and its insurer.
(c)“The Property” means the former matrimonial home at F Street, Suburb G.
Applications
Parenting
After the close of evidence and prior to final submissions, the parties provided a joint Minute of Orders as to parenting matters, which were by consent save for the issue of the time that the children should spend with each parent during school terms. This document has been marked as Court Exhibit-2.
The father primarily seeks orders that the children live in a week-about arrangement but in the alternative, that the current arrangement of six nights per fortnight in his care and eight nights per fortnight in the mother’s care continue.
The mother and the Independent Children’s Lawyer seek that the children live with the mother and spend four nights per fortnight in the father’s care.
Property
The husband’s primary position is that the Property be sold and that he retain 75 per cent of “its value upon sale at auction.” His primary relief does not particularise what should occur to assets other than the Property.
The husband’s alternate position is that he retains the Property and pays a sum to the wife equivalent to 25 per cent of the overall pool of assets within 60 days of the Orders, failing which the Property is sold.
The wife proposes that there be a 55 per cent division of assets in her favour. This includes that she retain the Property and pay the corresponding cash adjustment to the husband.
BACKGROUND: PROPERTY
The husband was born in 1980 and is presently 42 years of age.
The wife was born in 1984 and is presently 39 years of age.
X was born in 2012 and is presently 11 years of age. Y was born in 2014 and is presently nine years old.
2007
The parties commenced cohabitation in mid-2007.
In mid-2007, the husband acquired a residential property at Suburb P for $250,000. He paid a deposit of $12,500 but otherwise met the cost by way of a home loan secured against the property in the sum of $237,000. The husband expended about $29,000 on improvements at the Suburb P property. The husband paid the mortgage from his income.
The husband deposes that the wife transferred $200 per fortnight to the husband’s bank account. The wife deposes that she paid $50 per week towards the mortgage but otherwise paid for the household groceries and supplies. On either version, both parties contributed to the costs of living in this period.
At the time of cohabitation, the wife had no assets of significance.
The husband owned a property at Suburb P. Given the recency of the purchase of the Suburb P property relative to the start of cohabitation, I infer that the equity in the home was about $12,500.
At or about the time of cohabitation, the husband also had a motor vehicle, which he had purchased in 2005 or 2006, savings of about $45,552, about 200 ANZ Bank (“ANZ”) shares, superannuation of $29,354 and life insurance cover of $547,536.
There is no evidence as to the value of the ANZ shares as at 2007. The current balance sheet describes a parcel of about 500 ANZ shares. The husband gives unchallenged evidence that the reason for the increased number of shares is that he has participated in an ANZ reinvestment scheme.
As at 2007, the wife was employed as an allied health professional earning about $80,000 per annum. The husband was employed as a public servant and earning about $118,000 per annum. The husband was employed in his role from 2007 to 2012.
2010
X was born in 2010.
The parties sold the Suburb P property in 2010. From the sale proceeds:
(a)About $30,600 was applied to the purchase of the Property; and
(b)About $31,000 was used to purchase Motor Vehicle 1, which remains an asset of the parties at the time of hearing.
The parties acquired the Property in late 2010 for $612,000 subject to a mortgage of $546,194.
The husband’s income paid the home loan and the wife’s income paid other household expenses.
There is no dispute the Property has been extensively renovated since 2010.
I accept both parties contributed to the renovations, although the tasks undertaken by them were different. The husband undertook the majority of the work. The wife assisted where she could. As X had been born in 2010 and was an infant when the parties began renovating, I infer that, while the husband was undertaking building work, it is probable that the wife was caring for X.
2010 and 2011: Workplace Incidents
On one occasion in 2010 and a second occasion in 2011, the father was exposed to egregious acts of bullying at work, the cruelty of which is difficult to comprehend.
In late 2016, the father was diagnosed by Dr Q, a consultant psychiatrist with Post Traumatic Stress Disorder (“PTSD”). The father adduces the report of Dr Q in his own case, from which I infer that he adopts its contents as accurate. Under the heading “Work History”, Dr Q records of the father that:
In 2007 he joined the [team].
This he described as being [a specialised team]. He said the [team] tends to be isolated from other [teams] within the [agency] and was difficult to join.
He describes it as having a bullying culture, and particularly mentioned alpha males who would bully, and states that this behaviour would be condoned by [senior team members].
In 2010, he made complaints against a particular [team member] who, he believes, had taken a dislike to him.
He describes a particular incident […]. On returning to [the workplace], he said that the man in question raised a [firearm], pointed it at his head and pulled the trigger, and stated under his breath “Next time it will be loaded”.
[Mr Howell] did not report this incident, as he said that would lead to more problems within the [team] with alienation, and he did not want this.
He said that he felt that he had already been alienated. There were other incidents as well.
In 2011, there was another time when the group had been [engaged in an activity]. […]. He said that a gun was pointed at his head by the same man and that those around him laughed.
His response was that he became anxious and fearful that he would be killed at work. He was tremulous and he thought that he would not be supported or he might be killed by this particular man [at work].
He became more anxious at work and this led to difficulty in his functioning. He made notes regarding these Incidents.
He had attended his general practitioner and, at that time, it seems that his symptoms were similar to those he currently describes. He was unable to cope. He had a fear of being killed at work and he spoke to his [supervisor] about what had happened in case he was killed at work.
He found himself tearful unreasonably in public places. There was sleep disturbance and problems in relating, and further events occurred. Effectively, he appears to have been in a state of breakdown at this time.
He was treated by his general practitioner and continued to work. He had ‘well checks’, where he spoke regarding the Incidents. However was not as open as he states that he is now.
He remained In the [team] until 2012, and had to get away. He joined [another team] and then undertook a course [in another role].
In 2016, he was referred to psychiatrist, [Dr R]. Different medications were tried and he settled on [a daily medication], which he said has been helpful. He describes himself as being on “a knife's edge, but getting by”. He is pre-occupied with anxiety and worry. [A publicised incident] brought the matter back to him again and he stated that the particular man involved in the Incidents […] was [involved in this incident].
Outside of that, he said that he has been able to function in [other work duties]. However, internally anxious and disturbed.
In the last eight weeks following his viewing of the documents in his application for [another department], there has been a re-emergence of the anxiety symptoms leading to state of breakdown.
(As per the original)
The mother deposes in her trial affidavit that:
15.Following these incidents, [Mr Howell] became anxious and fearful that he would be killed at work by his colleague. [Mr Howell’s] anxiety progressively got worse, to the point [Mr Howell] was unable to function day to day. For example, [Mr Howell] constantly thought about being followed and regularly stopped the car to check if this was the case. [Mr Howell] was unable to sleep and had continual nightmares, or he did not want to leave the house.
[…]
19.As part of [Mr Howell’s] recuperation from his incident, [Mr Howell] was required to attend psychology and doctor’s appointments, which I took him to approximately fortnightly. At the time of [Mr Howell’s] more frequent medical appointments, I was working two (2) days per week and often had to take leave to take [Mr Howell] to his appointments.
[…]
35.Prior to separation, [Mr Howell’s] coping strategy when he became angry was that he counted to three and attempted to walk away from the situation. Prior to separation, [Mr Howell], on 3 or 4 occasions, simply left a social gathering and said to me words to the effect: “I can’t cope. I need to leave the situation.”…

I accept the mother’s account of the father’s behaviour noting that it is generally consistent with the report of Dr Q, being a report on which the father relies.
2012 to 2019
The father ceased working in his team in 2012. He remained employed by the same agency in a different team and later elsewhere in the agency.
Y was born in 2014.
The mother deposes of the period from 2012 to separation on or about 1 January 2019:
…between 2012 and 2019, [Mr Howell] suffered from extremely low mood and persistent depression, and had no motivation or drive …. For example, whenever [Mr Howell] returned home he just laid on the ground after work and did not assist in any of the care of the children or any of the household tasks. Between 2012 to separation in 2019, I was solely responsible for the care of the children, the care of [Mr Howell] and the household tasks such as cleaning, cooking, washing and other incidental and household chores. Disappointingly, [Mr Howell] was not a hands on father and the children have always relied on my as their primary carer.
In her oral evidence, the mother conceded that from 2012 to 2017, the father was working full time in the public service, including studying at S University as part of his role.
The wife was challenged over her contention that the husband was not a “hands on” father. In answer to the proposition that he read to the children, the wife answered “rarely.” In answer to the proposition that the parties hosted birthday parties for the children, the wife said “I hosted parties. I agree that your family assisted but that any role of the father was minor.” In her oral evidence, the mother overtly emphasised the word “I” at the start of the sentence.
The wife conceded that the father has assisted with the children’s activities such as coaching sports and being in the swimming pool with them when they were learning to swim. The wife gave a number of answers to the effect that the husband had “transported” the children to activities rather than making the easy concession that he had been involved in those aspects of their life.
When asked about the father’s involvement with the children during a five-week holiday in 2017, in a campervan travelling from Perth and City T, and the fact that the father undertook all the driving, rather than respond in the affirmative, the mother sniped “because you didn’t trust me with the driving.”
I find that in the period 2012 to 2019, the father was involved in caring for the children and was a “hands on father.” The mother’s description of his role was unduly diminishing of it and failed to accommodate the fact that he was working full time from 2012 to 2017 and also, as I will come to, renovating the family home for the benefit of the family, while also managing a serious mental health issue.
That said, the reports of Dr Q from December 2016 and Dr U from 2018 make clear the father’s function was impaired by reason of poor mental health and this impacted his family life. I accept that the mother provided the majority of care to the children in this period and undertook the majority of household chores.
The husband deposes that, between 2013 and January 2019, he paid various sums for council rates, utilities and insurance for the home and also paid various credit card debts. The wife deposes to paying childcare fees, electricity, water and telephone bills and fees for children’s activities from her salary. Neither party was challenged about these matters, for which reason I accept that the husband’s income was applied to the mortgage and some of the utility bills, rates and general living costs, and the wife’s income was applied to groceries, childcare fees and children’s activities and some utilities.
Early 2017: Medical Discharge from public service
The father was medically discharged from the public service in early 2017.
Commencing in early 2017, the husband received a monthly benefit from life insurance cover of $6,939. The benefit period was seven years or the age of 60, whichever comes first. The benefit end date is early 2024. This appears to be the same policy that the husband had at the commencement of the relationship with an asserted value of $547,536.
2017 to 2020: Workers Compensation and Common Law Payments
In early 2017, the father lodged several claims against his former employer and its insurers for workers’ compensation and common law negligence.
In early 2017, the husband received $53,554 from his former employer. This represented his final salary payment including accrued entitlements.
In late 2017, the husband received $45,000 from the Insurer comprising $30,250 for permanent impairment and $19,750 for pain and suffering.
In early 2018, the husband applied $27,000 of the Insurance to acquire a motor vehicle.
In late 2018, the husband received $177,942 from the Insurer. The next day, he transferred $177,000 in payment of the home loan.
The following month, the husband received $312,911 from the Insurer. Two weeks later, he transferred $312,000 in payment of the home loan.
Two days later, the husband transferred $28,105 in payment of the home loan, at which time the loan was repaid and the mortgage discharged.
In early 2020, the father received $307,394 following the settlement of the common law claim.
There is no dispute that the husband applied $518,105 from Insurance to the home loan in late 2018, and that the mortgage was discharged.
31 December 2018: Separation
The parties separated on 31 December 2018. Since that time, the wife has resided in the Property to the exclusion of the husband. The husband initially stayed with his parents before obtaining rental accommodation.
Since 31 December 2018, the wife has paid the rate and utilities associated with the Property.
The wife deposes at paragraph 145 of her trial affidavit:
Since December 2018, I have been solely responsible for the payment of bills and insurance on the home, including maintenance and upkeep of the property.
However, the wife conceded in her oral evidence that, in early 2020 after a period of heavy rain, the husband and his father attended the Property in the night during the storm after part of a retaining wall or embankment had collapsed onto the driveway. The husband and his father made sandbags and barricaded the back door so no further water could enter the house, which had been pouring into the house and down some internal stairs. The wife conceded that the husband also cleared drains on the night and three days later, the husband returned to clear up the collapsed retaining wall.
In 2022, a retaining wall was constructed at the Property by a contractor at a cost of about $5,500. The wife paid half and the paternal grandfather provided the other half of the funds in the first instance, which the husband repaid to his father. That is, the parties ultimately each paid half the cost of the retaining wall.
In her oral evidence, the wife was taken to a text message dated 7 April 2022 between the wife and paternal grandfather, comprising Exhibit F-10. The wife wrote “Big landslide at the bottom of driveway, so grateful you were able to support me with shot Crete of wall at house.” The paternal grandfather responded “Good timing and the job looked good so well done we were glad to help. [Mr Howell] has since paid us back.”
A proposition was put to the wife that the reasonable meaning of the paternal grandfather’s text message was that the husband had paid his share of the cost of the retaining wall. The wife responded “I don’t know if the money was from [the husband].” It is obvious from the paternal grandfather’s message that the husband had paid his share.
The wife gives unchallenged evidence that she installed a wood burning fireplace and ceiling fans at the Property since separation at a total cost of about $7,000.
December 2022: Transfers from Joint Account
The wife conceded that in December 2022, without notice to the husband, she transferred three tranches of $5,000 from the husband’s M Bank account number …09 to her own account. In her oral evidence, the wife conceded that she had never received payments into the account …09. She said that the account was “a joint account and you’d cleared out in 2018.” When asked during which part of 2018, the wife responded “November.” The wife denied saying to the husband on 26 December 2018 that “I’m going to take the money out of the account and freeze everything.”
The wife conceded the husband had sent her a text message after she transferred the $15,000 to her CBA account to ask why she took the money and that she did not respond to the text.
I find the funds paid into the …09 account were funds paid to the husband from the ATO and that the wife removed these funds without his consent.
I do not accept the wife’s explanation that she was recovering funds that belonged to her but which the husband had removed from the joint account shortly before separation in circumstances where she otherwise conceded that she never received funds of her own into that account.
BACKGROUND: PARENTING
From 1 January 2019 to September 2020, the children lived with the mother and spent time with the father one night per week and alternate weekends. During this period, the father was staying with his parents at Suburb V until he obtained his own accommodation.
From September 2020 to June 2022, the children spent six nights per fortnight with the father and eight nights with the mother. That arrangement was in place at the time of the final hearing.
Early 2016: Firearms License Application
In early 2016, the father completed an Application for a Personal Firearms License, which was received by the NSW Firearms Registry in mid-2016.
The form required the applicant to answer “Yes” or “No” to the question: “have you ever attempted suicide or self harm or, in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness?” The father marked “No” beside the box for this question.
The firearms licence issued pursuant to this application was for a period of five years. The license was subsequently renewed.
July 2019
The father deposes that, in July 2019, he was in the living room of the Property with the children. The mother was in another room. The father deposes at paragraph 40 of his affidavit.
…I was speaking with [X] and [Y] when [Ms Howell] quickly walked into the lounge room. In an angry, loud voice [Ms Howell] said; “... good, you can see the cousins and new babies every day then”. I said; “Is there any way can work this out?” In an angry voice, [Ms Howell] said; “No, you haven't bought me flowers or done anything for me, I don't want another fucking baby”. I said; “We aren't going to have another baby”. [Ms Howell] said; “We aren't going to have a relationship. I have two dates this week when you have the kids. It's over, you have made it clear how you feel. Go and get your vasectomy and you will never have to have any more kids”. I left the kitchen and entered the lounge room, closing the door behind me. [X] and [Y] were both sitting with me on the lounge. Within seconds, [Ms Howell] opened the door quickly and burst into the room. She was extremely angry and stood over me as I sat on the lounge. She grabbed my keys and a finger bun I had bought the children and yelled; “Get out, get out, I don't want you here, you can't threaten me like that”. She quickly walked towards the exit of the room. I stood up. She turned and advanced towards me very quickly and with an angry expression. I said; “Calm down please, don't do this in front of the kids”. [Ms Howell] yelled; “Get out, you don't want any more fucking kids, get out!” [Ms Howell] stormed out of the room and down-stairs with heavy steps as she went. I heard the front door open. I followed her and saw her throw my keys outside through the front door. [X] jumped up off the lounge and ran behind it as I heard [Ms Howell’s] heavy steps coming back up the internal stairs. She walked towards me yelling. Her face was red and she was waving her arms around in an aggressive manner with fists clenched yelling repeatedly; “Get out, get out, it's over, I don't want another fucking baby, get out”. I said; “Calm down, don't do this in front of the kids”. [X] came out from behind the lounge and gave [Ms Howell] a cuddle. I said goodbye to [X] and [Y] and left.
(As per the original)
In cross-examination by counsel for the Independent Children’s Lawyer, the mother was asked whether she said the words “Good, you can see the cousins and new babies every day then”, to which the mother responded “I can’t recall.” Counsel then asked the mother “Can you remember saying things like that?” to which the mother responded “I can’t recall”. When asked further whether she said “Get out, get out I don’t want anymore fucking kids,” the mother responded that she did not use swear words. When yet further asked if she said “Get out, get out” the mother said that the events “were not in context” and she “might have said that” and then “I could have said those words.” The mother agreed the children were present and would have heard the words. Lastly, when asked “It is not unbelievable to you that you were using words along those lines” the mother said “I could have, definitely.”
1 August 2019: Text Messages
The father deposes at paragraph 42 of his affidavit that on 1 August 2019, he received a text message from the mother which included the words:
…Things are very real now and I am not gonna make anything easy for you!!! If you are so well and can be looking after kids and taking them out, how can you be on permanent disability????
(As per the original)
In cross-examination, the father put the chain of messages between 9.55 am and 10.10 am to the mother. In context, the “Received” messages are from the mother and the “Sent” messages are from the father.
The messages comprise Exhibit F-12 and reads:

Received 9:55:47 No [Mr Howell] you or your family will not be given the option of minding the kids on my day if I need to go somewhere. In fact you better make sure your celebrations fall on your days as I am no longer being flexible, you are not having the kids for parties etc on my days. I think our parenting will need to go to court so I will sort before and school care out now!!!

Received 9:56:44 Things are very real now and I am not gonna make anything easy for you!!! If you are so well and can be looking after kids and taking them out, how can you be on permanent disability????

Sent 9:58:06 Why make things so difficult? Why can’t you just act in the interests of the kids? Is that really so hard?

Received 9:58:29 I saw the kids 6pm till bedtime, then 6.30am till 9 only that less than 5 hours, so no way am I wasting time calling u!!

Received 9.58.49 You have brought things to this point and you better be ready for what is to come

Sent 10.10.21 The kids are the most important thing to consider in this, you know that.
(As per the original)

During cross-examination by the father, the messages were put to the mother. When asked whether she sent the message containing the words “Things are very real now and I am not gonna [sic] make anything easy for you …” the mother answered that she could not recall.
When the mother was asked whether she received the message containing the words “Why make things so difficult…” she answered that she could not recall. The mother denied sending a message which read “You have brought things to this point and you better be ready …” Only after being confronted with Exhibit F-12 did the mother concede that the message must have been sent.
Late 2019
A letter from Ms W, Clinical Psychologist, dated 9 March 2022 to a General Practitioner, records that the mother attended three sessions under a Mental Health Plan in late 2019. The letter reports:
…As you indicated, [Ms Howell] presented with anxiety and adjustment disorder in the context of her husband’s mental illness and consequent relationship difficulties. Therapy was within a CBT/ACT framework focussing on psychoeducation, problem solving and modifying unhelpful thinking styles.
[Ms Howell] did not return following her third session after which she was due to visit family in the UK. As I am now reviewing my cases, I will close her file…
The mother later attended on counselling services at Z Organisation.
Early 2020
In early 2020, the mother posted a message to Y’s teacher which reads:
Hi, [Y] has been with his dad, he has been doing all the on line work, but his dad, [Mr Howell], doesn’t have the see saw app to post at the moment, I will encourage him to download it. I will be having [Y] Thurs/Fri so will post work on those days…
(As per the original)
April 2020
The father deposes at paragraph 61 of his trial affidavit that:
[X] and [Y] were with me on Wednesday 15/4/20 until [Ms Howell] collected them after work. During the day, [X], [Y] and I made up cheap little photo albums I had bought from Kmart containing several photos of them, myself, my parents and their cousins doing things together. [X] put hers under her jumper while she was walking down the driveway […] to [Ms Howell’s] car. I asked her “Why are you doing that?” to which she responded: “So mummy doesn’t see it.” We opened the back left door to [the car] and the kids got in. In an angry aggressive tone, [Ms Howell] said; “I don’t want the kids to have those. I don’t want any photos of you in the house. This is all your fault. You have caused all this. You have caused this damage to the kids.” As [Ms Howell] was yelling this, both [X] and [Y] were crying with tears rolling down their faces.”
(As per the original)
This incident was put to the mother in cross-examination by the father. When it was put to her that she said “I don’t want any photos of you in the house”, the mother answered “I didn’t want picture frames on the walls.” The mother conceded that there were raised voices. When it was put to the mother the children were present, she answered “I don’t know.” The mother’s evidence thereafter became difficult to follow and had the appearance of obfuscating. There is no cogent connection between the fact the photographs were in an album and her concern about pictures being hung on the walls at home. It is implausible to not know that the children were present given it was a changeover. I accept the father’s account at paragraph 61 of his trial affidavit.
On further inquiry, the mother identified that Y has a photograph of the father in his bedroom. X has photographs of both parents but this is in a drawer.
July 2020
The father deposes at paragraph 73 of his trial affidavit:
[In July 2020], [X] said to me words to the effect: “When I am older, I can choose who I want to live with.” I said “Why would you say that?” [X] responded: “That’s what mummy said.” At 6.43pm, I sent [Ms Howell] an SMS: “Why would [X] tell me that she can choose she wanst to live with when she is older? Answer – because you said that to her. Don’t you think that is damaging?” At 6:46 [Ms Howell] responded: “….Yes eventually when kid are older I know they will choose to live with me!”
(As per the original)
In her oral evidence, the mother denied telling X that she can choose where she lives when she is older. The father asked the Expert whether such information, if given, would be an example of a parent wishing to influence a child. The Expert was not of that view but said it may be an adult telling a child when she may have greater agency in the process. I make no finding as to whether the mother told X that she can choose where she lives when X is older. However, paragraph 73 of the father’s trial affidavit displays the mutually aggressive nature of communication between the parties.
August 2020
The father deposes at paragraph 75 of his trial affidavit:
About 1:50pm [on a day in August 2020], [Y] and I arrived at the Family Home after being at [Y’s sporting] match. When we arrived, [Ms Howell] prevented me from walking up the stairs by standing in my way. I needed the toilet and she allowed me to use the downstairs toilet. I had a conversation with her. I said; “Why does your lawyer want the medical records from […]?” [Ms Howell] said; “You caused all this, but at least you got your pay out and never have to have any more kids”. I said; “You know the only winners will be the lawyers, we need to try and mediate this”. [Ms Ms Howell] said; “How can I do that? I tried but you wouldn't even let me take the kids to [the United Kingdom] for a holiday”. I said; “It wasn't about the holiday. I was worried you wouldn't come back”. [Ms Howell] said; “I hate you. I wish I had never come to Australia, I wish I had never met you”. I said; “[Ms Howell] you cant say that. We've got two beautiful kids that we wouldn't have had”. [Ms Howell] said; “I wish you were dead. It would be so much better if you weren't here”. I said; “You can't say that [Ms Howell], that's so wrong”. [Ms Howell] emptied the boot of her car. I said; “Do you want some help”. She said; “No”. I left soon after.
(As per the original)

In cross-examination by the father, the mother agreed the father may have wanted to use the bathroom at the Property as this was a frequent pattern, however she could not recall the date. When it was put to the mother that she said “I wish you were dead, it would be so much better if you were not here”, the mother said the words were not spoken but may have been in a text message. When asked whether she said “I hate you” to the father, the mother answered “Not in the last two to three years, no.”
I need not make a finding about whether the words said by the mother were at the home, as the father describes, or in a text message. The relevant matter is that the mother has said to the father words to the effect “I hate you” and “I wish you were dead, it would be so much better if you weren’t here.” The mother’s statements are inexcusable.
May 2021
The father deposes at paragraph 121 of his trial affidavit that:
…I prepared the kids for school, dropped [X] to [her extra-curricular] at 8:30am and [Y] at 9am. At 2:14pm [on a day in May 2021] I received an SMS from [Ms Howell] which in part said; “So tell me why I should stay in Australia...with no family ...”. I collected them at 3:15pm and took [X] to [sport] at [Suburb AA] where I purchased her some uniform and equipment for an upcoming [event]. At 7:51pm I received an SMS from [Ms Howell] which in part said; “I will fight to take the children with me bk to the uk. I'm sick of being in Australia...”. At 8:11pm I received another SMS from [Ms Howell] which in part said; “You will be much happier when you don't have to do anything for your kids because they are living with me in UK and can have a new dad over there. Then you can enjoy being an amazing uncle with sisters kids”. I responded; “[Ms Howell], please stop. You are causing me harm with the constant threats and putting me down, especially when its to or in front of the kids”. At 8:17pm I received an SMS from [Ms Howell] which in part said; “...I want to be completely away from you and family...I have absolutely nothing left to lose”. [Y] and I collected [X] from [sport] at 8:30pm and we returned home. During this period, [X] was doing 16.5 hours of [sport] a week!
(As per the original)
In her oral evidence, the mother did not deny making these statements.
On 20 May 2021, the father commenced family law proceedings seeking parenting and financial orders. Amongst others, the father sought that the children’s names be placed on the Family Law Watchlist.
Late May 2021
The father deposes that, in late May 2021, Y said to him “Mum told me you are sick in the brain like [Mr BB]. I know you are.” From the cross-examination, Mr BB is a former public servant who is involved in local sport and experiences PTSD. In cross-examination, the mother was asked “How would [Y] come to know that [Mr BB] and [the father] are out of the [public service] due to PTSD?” The mother answered that she did not know how.
I am unconvinced by the mother’s evidence, which was given in a rigid and combative manner. I need not make a making a positive finding about this issue but will consider it in the wider analysis of s 60CC factors in the Family Law Act 1975 (Cth) (“the Act”).
June 2021
The father deposes at paragraph 136 of his trial affidavit:
At 11:50am on [a day in June 2021], I received a phone call from [Ms Howell]. She sounded upset and angry when she said; “I hate you so much for what you have done. I came here for you and now you have done this. When I go back to the UK without the kids and you have them full time you wont be able to cope. You're a bloody idiot [Mr Howell]. You caused all this with your bloody PTSD. You never did anything for me. I hate you”. I said; “Please calm down [Ms Howell]. I haven't done this to hurt you. I have done this because I'm afraid you're going to take the kids to [the United Kingdom], and I can't lose them”. [Ms Howell] said; “If I lose the house I'm going straight to the UK. You don't even want the kids full time”. I said; “[Ms Howell] please calm down. I am not saying I want the kids full time. I just can't afford to lose them”. [Ms Howell] said; “The kids want to be with me. They only want to be with me. I will get a children's lawyer so they can they that”. I said; “Don't be silly, why would you want to drag the kids into the court process. That would be so damaging”. [Ms Howell] said; “I hate you so so much. I hope you die a really slow and painful death for what you have caused”. I said; “[Ms Howell] please calm down. You can't say that. Did your lawyer give you my affidavit or is it the airport watchlist application?”
(As per the original)
In her oral evidence, the mother conceded that she communicated the words to the father “I hate you and wish I had never met you.” She said this occurred a few days after proceedings had commenced and she said “I would have been quite upset.” The mother conceded that such statements are inexcusable. That said, she has never apologised to the father for making them.
My concern about this evidence is heightened given the father had, two days later, told the mother that her comments were causing him harm. That is, the mother knew the father’s mental health was vulnerable having been diagnosed with PTSD. Much of her case addresses his hypervigilance being a symptom of the PTSD.
Even through the lens of being upset about proceedings, I am at a loss to understand why the mother found it necessary or proportionate to attack the father in this way, especially after he had previously signalled to her that such comments were causing him harm.
August 2021
In August 2021, X attended on Psychologist Ms CC following a referral from X’s General Practitioner. The mother was present during the appointment. Ms CC reported to the General Practitioner that:
… [X] expressed the view that her father does not love her as, much as he loves her brother [Y], and complained her father will often show more interest in [Y] and his activities, than he does with her. This belief appears to be weighing on [X], who indicated she does not feel as close to her father as perhaps she would like to.
During cross-examination by counsel for the mother, the father agreed that he had been invited to attend the initial consultation with Ms CC but that he did not attend because “in part” he did not trust the process. The father agreed “absolutely” that he was unsure if Ms CC was independent and that the mother was taking X to see Ms CC to benefit the mother in the family law proceedings.
The father said that he made an appointment to attend on Ms CC with X and that was to occur in October 2022. However, when he arrived, the appointment had been cancelled.
Child Dispute Conference: November 2021
On 16 November 2021, the parties attended on a Court Child Expert for a Child Inclusive Conference. The Court Child Expert recommended that it may assist the Court if a mental health report is obtained for the father. The Court Child Expert also recommended that the matter may benefit from a Single Expert Report from a Child and Family Psychiatrist.
December 2021
In December 2021, Ms CC reported to X’s General Practitioner:
Further to my correspondence dated 27 August 2021, I am writing to advise that [X] has now completed six psychological consultations. I am also writing to inform you that [X] is being discharged from [DD Counselling].
Unfortunately, I am unable to include an updated Strengths and difficulties Questionnaire (SDQ) as part of this review. Despite several SDQ requests forwarded to [X’s] mother, [Ms Howell], some weeks ago for completion, none have been returned. Should [Ms Howell] return to it at some point in the future, I will write to you again with the SDQ results and compare them to those taken at the first consultation …
The above extract is contained in a document within Exhibit M-2. Despite the document being tendered in the mother’s case, there is no evidence to explain why the mother did not undertake the questionnaire requested for her by Ms CC. I find that each of the parties let X down at this time. The father ought to have attended the initial consultation as requested. The mother ought to have completed the questionnaire.
Early 2022: Birthday Party
On one afternoon and evening in early 2022, X attended the birthday party of her friend EE. The party was to include a sleepover.
Of this event, the father deposes in his trial affidavit at paragraph 142:
…Between [late 2021 and early 2022], I received a number of messages from [Ms Howell] regarding a sleepover birthday party [X] had been invited to by her school friend ‘[EE]', which was set to take place at [EE’s] home [in early 2022]. The party fell on the weekend I was due to have the children. Between [late 2021 and early 2022], I told [Ms Howell] several times that I was not happy allowing [X] to stay overnight at the sleepover, but that she would be attending the daytime component of the party between 2:30pm and 6:30pm. I later changed the time of pick up to 9:30pm after I spoke with [Ms FF], [EE’s] mum. About 2:30pm on [the day of the party], I arrived at [GG Street, Suburb G] to drop [X] off to the birthday party. I had a conversation with [Ms FF]. About 7:59pm I received a phone call from [04…]. I answered and spoke with [Ms FF]. [Y] and I arrived at the party at 9:30pm as I had arranged with [Ms FF]. Immediately after stopping my vehicle in the driveway, I observed a male opening the front door which was illuminated from within. When the male exited the house, I saw it was [Mr JJ], [Ms Howell’s] current boyfriend. [Ms Howell] also exited the doorway. I was surprised they were there. [Mr JJ] walked part way down the stairs, standing on the left side of the staircase and above me, and extended his right arm out, blocking my access up the stairs. [Ms Howell] was standing behind him at the top of the stairs. [Ms Howell] insisted that [X] remain there overnight and that she would stay there with her. In part, [Ms Howell] said; “They are not happy for you to have [X]” and “I am not happy for you to knock on the door”. When [Ms Howell] said ‘they’ she was referring to [Ms FF] and [Mr JJ]. [Ms Howell] insisted that she would stay overnight with [X]. Several minutes into the discussion with [Mr JJ] and [Ms Howell], [Ms FF] and her husband [Mr KK], exited the home. [Y] was holding my hand as we stood in the darkness on the steps of the home throughout this interaction. As a result of the conversation with [Ms Howell], [Mr JJ], [Ms FF] and her husband, [Y] and I returned to my car where I called the police at 9:53pm. [X] was being withheld from me. Between 10:46pm and 11:03pm [Ms Howell] and I exchanged SMS and WhatsApp messages, during which she confirmed she would drop [X] to me the following day at 10:30am. At 11:05pm I called [Suburb LL] Police Station and spoke with a male and cancelled Police attendance. Subsequently, [Y] and I returned to my unit where I put him to bed.
(As per the original)
The father also deposed to this incident at paragraphs 13 to 23 of his affidavit sworn on 9 February 2022, which comprises Exhibit M-3 and to which I have read in full.
The Expert asked the father about the birthday party incident in early 2022 and reported at paragraph 71 of the Single Expert Report (“the Report”):
[Mr Howell] was asked about the events of [early] 2022 which resulted in his calling the police to [X’s] friends birthday sleepover. [Mr Howell] described the whole incident as ‘disturbing’. He clarified this to mean his belief that [Ms Howell] and [X’s] friends’ mother apparently conspiring ‘to keep [X] from him’. He reviewed that [X] was attending a birthday, that there was a sleepover, but he was not happy for her to stay for the sleepover portion. He declared that when he arrived to pick her up, [Ms Howell] and [Mr JJ] were present and while [Mr Howell] was holding [Y’s] hand, they were preventing him from entering the property. He declared, ‘I think [Ms Howell] and [EE’s] mother had gotten together to make up a story about [X] not wanting to see me’.
(As per the original)
The Expert asked the mother about the birthday party incident in early 2022 and reported at paragraph 29 of the Report:
[Ms Howell] was asked about the incident in [early] 2022 regarding [X] wanting to sleep over at a friend’s home. She described [X] became emotional because she decided she wanted to stay at the sleepover. [Ms Howell] said she was contacted by the friend’s mother asking her to come over. She described that she arrived and wanted to negotiate with [Mr Howell], saying she would agree to also stay over at the house so [X] would remain supervised. She said that [Mr Howell] left, but called the police. She highlighted this as another example of the parents’ limited capacity to agree on the children’s social activity.
In his oral evidence, the father said that he did not want X to remain at the sleepover because he did not know the host parents and that X had a sore arm after receiving a COVID-19 vaccination that morning. The father was agreeable to X staying until 9.30 pm, by which time the children would have finished watching a movie. The host mother asked the father if X could return the next morning to join the other children for breakfast but he said it would be too much for X.
Noting the father’s evidence that he did not know the host family and in the course of his work had seen some terrible incidents involving children, the Court inquired as to whether he had considered contacting the host parents and meeting them to satisfy himself that X would be safe. The father conceded that, in hindsight, he should have done this.
When asked by counsel for the mother why he called the Police, and whether the purpose was to extract X from the party, the father said it was his time with X and the mother had interfered with this by arranging for X to go to the party and “Obviously I needed to do something.”
Of the same incident, the mother deposes at paragraph 80 of her trial affidavit:
[In early] 2022, [Mr Howell] allowed [X] to attend a […] party at [EE’s] house in [Suburb G]; however, he refused to let her sleep over with all the other girls. During the party, and around 8.30pm, [EE’s] mother and father called me (they were on speakerphone as I understand it) and said, words to the effect: “[X] is really upset and hysterical and is frightened of [Mr Howell] and asked that you come to collect her. We really don't feel comfortable handing her over to [Mr Howell] when he comes here at 9.00pm”. I went over and we tried to speak with [Mr Howell]; however, [Mr Howell] just kept saying ‘[X] is not sleeping over, I am collecting her’. [Mr Howell] then attended the home at 9.00pm and appeared agitated and aggressive and had [Y] with him. I recall that [Mr Howell] tried to enter the house; however, [EE’s] mother said to [Mr Howell], words to the effect: “please do not come in. [X] is really upset and wants to stay and she is scared of how angry you were when you were speaking to her on the phone”. [Mr Howell] then said in a very aggressive tone, words to the effect: “That is my daughter, I am taking her”. I then calmly said to [Mr Howell], words to the effect: “[Mr Howell] please, she is very upset and doesn't want to go with you. I will stay over to comfort her but I think its best that you leave and put [Y] to bed”. [Mr Howell] then said: “Fine, I am calling the police”. [EE’s] parents had asked me to stay during the sleepover as [Mr Howell] was so angry on the phone and they were concerned that the police would attend and there would be further distress to [X]. I agreed to stay and at around midnight, the police attending their home; however, I was able to explain the situation and the police left.
(As per the original)
During cross-examination by counsel for the Independent Children’s Lawyer, the mother was asked what her plan was when she attended the home of the host family. The mother said “It was not a plan … just to calm everything down.”
Counsel for the Independent Children’s Lawyer asked whether the mother had acted in a way that assisted X to do something that the father did not want to occur during the holiday time that X was to be with him. The mother did not grapple with the question and again said that she wanted to “calm things down”. The mother conceded that:
(a)She did not assist X in going with the father;
(b)It was not X’s decision as a ten year old to stay at the party;
(c)The party occurred at a time the parties had agreed would be the father’s time with the children;
(d)She knew the father had said he would collect X at 9.30 pm;
(e)She attended the party to “calm things down” but acted in a way that deferred the decision to X and this was not a good message for X; and
(f)Following the party, the mother did not return X to the father’s care despite the agreement with the father for X to be in his care for another nine days.
The mother said she instructed her lawyers to write to the father about the remainder of the school holidays. The letter appears to have required the father to attend counselling before he could spend time with X. Counsel for the Independent Children’s Lawyer put to the mother that the letter was an ultimatum, which the mother conceded.
I find that neither party acted in a child focussed way in relation to the evening in early 2022. I accept that the time was within the father’s domain and that it was for him to make the decision about whether X stayed overnight. I appreciate the sensitivity the father has to the children spending time in places about which he has not knowledge and respect that this may be symptomatic of the PTSD and may arise from his frame of reference in his previous work. However, the party had been the subject of an invitation since late 2021 and there had been time for the father to introduce himself to the host parents. To have done so may have ameliorated his concerns and also built a bridge between himself and X’s social group which would be important for X.
On the other hand, the mother’s attendance at the party was inflammatory. She said that she had no plan in going there. It concerns me that the mother reacts without a plan and, in so doing, amplifies conflict with the father at X’s expense.
Early 2022: Sports Field Incident
The father deposes to an incident in early 2022 which occurred at the children’s school. The father voice recorded the incident on his mobile phone without the mother’s consent. The recording was admitted into evidence over objection from the mother and forms Exhibit F-2.
There is no dispute the father was to collect the children from school that day. The children and the father were at school when the mother approached. The mother can be heard on the recording, insisting that the father sign a form to enable X to attend a sport. The father is heard to speak in a calm voice. That said, he knew that the incident was being recorded and, I infer, conducted himself accordingly. That is, the recording is intended to be self-serving. In fact, the recording reflects poorly on both parties. The first about 48 seconds of the 10-minute recording are sufficient:
Father:[Ms Howell], are you here for any particular reason? What are you here for? You’re not taking [X] or [Y].
Mother:You’re not supporting her in any of the activities she wants to do…
Father:So you’re here … no you’re not taking [X]. It’s my day …
Mother:And you are not supporting her … it’s her decision…
Father:[Ms Howell], this is highly disruptive to the kids and to myself …
Mother:Your behaviour is disgusting
Father:I will be notifying the Court of this and I will be seeking that the matter’s expedited.
The father deposes at paragraph 155 of his trial affidavit:
The first time [X] can be heard speaking in an upset voice and moaning is at 04:19 while she was crying. The impact the incident had upon [X] can be heard in her voice throughout the recording and specifically at the following intervals; 04:19 where [X] in a sad laboured voice says; “But you won't fill out the forms”, 04:27 where [X] can be heard moaning and saying in a laboured tone “Daddy, why didn't you submit the forms?”, 05:38 where in a in a sad voice [X] says; “You pick, okay, you pick”. At 5:46, where with tears in her eyes, [X] says; “Who do I go home with?” 05:58 where in a very sad, drawn-out tone [X] says at 05:58; “But mum wants to take 8:31 where in a very lethargic and drawn-out voice, [X] says “Bye mummy”. 09:28, lethargic voice [X] says; “Who do I go home with?” 09:41, where in a very lethargic and drawn out tone, [X] says; “Bye mummy”. 10:41, where in a sad voice [X] says; “Why does this have to happen?” Towards the end of the recording, [X], [Y]and I walked to my car and we left the school. Whilst we were driving on [B Street, Suburb G], [X] said; “I've got the worst headache” and “Mummy is angry at me because I didn't go with her”. I said: “No she's not beautiful”. [X] said; “Yes she is, she was shaking her head at me when I came with you daddy, I'm going to get in so much trouble from mummy”. [X] said in a laboured voice; “l don't think I can go to [sport] daddy. I've got a really bad headache…I will get in trouble from mummy if I don't go”.
(As per the original)

When making a decision pursuant to s 79 of the Act, the “broad brush” approach, as opposed to a mathematical approach, is well established: Perrin & Perrin (No 2) [2018] FamCAFC 122 at [57]–[58].
When making an adjustment pursuant to s 79(4)(d)/75(2) of the Act, the real impact or value of the adjustment in money terms is ultimately the critical issue, not its expression as a fraction or percentage of the overall assets: Clauson & Clauson (1995) FLC 92 - 595 at 81,911; Adair & Adair [2019] FamCAFC 70 at [66]; Simons & Simons [2020] FamCAFC 128 at [18].
It is legitimate for the Court to take an asset-by-asset approach or a global approach to the assets, and which one is more convenient will depend on the circumstances of each case: Norbis v Norbis (1986) 161 CLR 513. In that decision, Wilson and Deane JJ held at [831]:
…If the parties’ interests in specific items of property differ or they have made differing contributions, it may be desirable to proceed upon an item by item basis in the division of property between them. In such cases, justice and equity may be best served by treating the items separately for the purpose of determining the proportions in which they are to be divided, particularly if the overall division is to be effected by the transfer or retention of interests in individual assets…
CONSIDERATION
What are the assets, liabilities and financial resources of the parties or either of them?
The parties provided a joint Balance Sheet, marked Court Exhibit-1. I have rounded the sums to the nearest whole dollar for convenience. The only disputed item is the addback claimed by the husband against the wife. There are no liabilities.

Owner Assets Value

Joint F Street, Suburb G NSW 1,150,000

Joint M Bank Account No. …09 324

Husband M Bank Account No. …09 2,697

Husband M Bank Account No. …09 89,140

Husband CBA Account No. …27 831

Wife CBA Account No. …51 17,000

Wife WW Bank UK Account 149

Wife Motor Vehicle 1 9,000

Husband Motor Vehicle 2 21,000

Joint Recreational vehicle 7,000

Husband XX Company shares 5,104

Husband Westpac shares 5,841

Husband ANZ shares 11,122

Husband Firearm collection 6,000

Non-Superannuation Assets: 1,325,208

Addbacks

~~Wife~~ ~~“Benefit to Ms Howell of not paying mortgage since December 2018 (calculated at $1,459.36 per fortnight for the period 31/12/18 to 1/11/21)”~~ ~~102,154~~

Total Addbacks NIL

Superannuation

Owner Description Value

Wife Superannuation Fund 1 135,604

Husband Superannuation Fund 1 228,569

Total Superannuation: 364,173

Total Pool: 1,689,381

The husband seeks an addback in the sum of $102,154 against the wife. On the Balance Sheet, the husband describes this as the “benefit to [Ms Howell] of not paying mortgage...”
An addback is an accounting device used to create a notional asset where a party has, prior to the final disposition of the financial proceedings, alienated themselves from an asset (sometimes described as a “premature distribution”). Unless the value of the alienated asset is represented on the balance sheet (i.e. “added back”), an injustice will be done.
In the instant case, the wife has not alienated herself from an asset. She did not, for example, give the money away. Instead, the wife has been saved the cost of paying the mortgage because the debt was discharged in October 2018. This is more correctly addressed through the prism of s 75(2)(o) of the Act. It is not an addback.
The financial contribution made directly or indirectly by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property
Initial contributions
The wife introduced no assets of significant to the relationship.
The husband gave unchallenged evidence that he introduced assets to the relationship comprising:
(a)The seed capital of the Suburb P unit, which was about $12,500;
(b)The life insurance cover of $547,536;
(c)Other superannuation of $29,353; and
(d)Cash of $45,552.
This amounts to assets and superannuation of $634,941. The husband also introduced a portfolio of ANZ shares of unknown value at that time, but I note it is the same portfolio that remains on the Balance Sheet.
According to the document at pages 70 and 71 of the husband’s trial affidavit, the life insurance cover was paid to him as an income stream on and from 2017, when he was medically discharged from his work. I infer the monthly benefit paid to the husband from this resource of $6,940 was applied to the expenses of the family prior to separation and has otherwise met the husband’s costs of living since separation. That is, although the life insurance cover is no longer an item on the Balance Sheet, the parties have had the benefit of it.
I have taken care to ensure that the life insurance cover is not double counted. The life insurance cover value was introduced at a value and has since been returned to the husband as a post‑discharge income stream. I have taken this into account as an initial contribution but will not also “credit” the husband for the income stream he received from it since 2017.
Initial financial contributions favour the husband.
Contributions during the relationship and since separation
During the relationship, the wife made direct financial contributions from her income, which was applied to family expenses during the relationship, including groceries, utilities and child‑related expenses. The wife was earning about $80,000 in 2007 and now earns about $113,000 per annum. I have no evidence as to her income over time, but the difference between 2007 and 2023 is not so great as to cause me to think further, nor am I invited to do so.
During the relationship, the husband applied his income to paying the home mortgage and other family related expenses. In 2017, the husband was paid his accrued entitlements from his former employer and his last pay cycle payment in the amount of $53,553. This money represents either salary earned or capitalised entitlements that had been accrued while employed and are thus viewed as part of his overall income during the relationship.
Between 2017 and 2018, the husband received payments from his former employer’s insurer (“the Insurer”) in the sum of about $535,853. This money was applied to purchase the husband’s car for $27,000 and $518,105 was applied to discharge the home mortgage. He also received an income stream from the life insurance cover, which I have already taken into account.
It is clear from a tranche of payment made in 2017 by the Insurer that $19,750 was on account of pain and suffering. This sum is a contribution made exclusively by the husband as the injured person.
In 2020, the husband settled a civil claim with his former employer and the Insurer and received the sum of $307,394.
Pausing there, the husband urges me to adopt the approach of his Honour Judge Altobelli, as he was then known, in Beckett & Beckett [2017] FCCA 608 (“Beckett”).
In that case, his Honour used a two-pool approach with one pool comprising the “non-TPD assets” and the second pool being the “TPD assets.” The “TPD assets” was a sum of $880,000 in the husband’s solicitor’s trust account with some attendant addbacks for sums drawn from the insurance payment. The “non-TDP assets” comprised all other assets of the parties including the Property.
It is a matter of discretion as to whether I use a one pool or two pool approach. Regardless of the approach used, I need to consider the effect of the Orders in their totality to ensure that they are just and equitable in all the circumstances. In this case, unlike Beckett, the insurance payment has been significantly co-mingled with the equity in the Property. While I have evidence as to the extent of the mortgage in October 2018, I have no point-in-time valuation evidence of Property.
The capital growth in the property since October 2018, which is to be treated in accordance with the principles in Jabbour & Jabbour (2019) FLC 93-898 and favours neither party, further confounds my ability to isolate the insurance money from the current equity represented by the value of the home. In the circumstances, I will adopt a one-pool approach.
In closing oral submissions, counsel for the wife asserted a contributions-based claim to the insurance money: Aleksovski & Aleksovski (1996) FLC 92-705. She contends that while the husband was unwell in the aftermath of his psychological injury, she undertook personal care tasks such as driving him to appointments and meeting other personal care needs. The wife’s case outline also categorises the same conduct as a s79(4)(c) factor.
The report of Dr Q dated December 2016 records:
[The husband] indicated that currently he strongly needs support. He came into town today, travelling on a train, which he said he could not do himself and does not believe he could have coped with a psychiatric examination without the support of his wife.
The husband reported to Dr Q that after the 2011 incident:
He found himself tearful unreasonably in public places. There was sleep disturbance and problems in relating, and further events occurred. Effectively, he appears to have been in a state of breakdown at this time.
The husband relies on the report of Dr Q in his own case, from which I can assume he asserts it to be accurate. I accept that the wife provided care and assistance to the husband during his period of illness and that this may be treated as a contribution by her to the insurance payment. I will take it into account pursuant to s 79(4)(a). As the contribution must not be double-counted, it will not also fall under the head of s 79(4)(c).
Since separation, each party contributed an equal sum to the construction of a retaining wall in 2022.
The wife purchased a wood heater and ceiling fans at a cost of $7,000. The husband, for his part, attended the home in 2020 with his father (whose exertions are taken to be a contribution on behalf of the husband) in the middle of a storm to address flooding and protect the asset from storm damage. He returned three days later to clear a collapsed embankment from the driveway. The husband’s contribution is a non-financial contribution but I have addressed it here for convenience.
The wife says she has paid the rates and other essential outgoings on the Property. This is potentially a contribution by her. However, Item 22 of the wife’s Financial Statements states “Nil” for “rates and levies.” The only insurance listed is health insurance. The wife’s Financial Statement at Part N states “Nil” for gardening, lawn mowing, cleaning and repairs. In the presence of evidence that the sums paid for these categories of expense are nil, I give no weight to the contention.
The wife has paid for the utilities at the Property. However, utilities are for consumable items such as electricity and gas. Payment of them is not a contribution to the preservation or improvement of the Property.
Taken together, direct financial contributions favour the husband. I assess direct financial contributions as 60 per cent to the husband and 40 per cent to the wife.
The contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last mentioned property
There is no dispute that the Property underwent significant renovation. I accept that the wife assisted to the extent of her ability. However, there was no challenge to the husband’s evidence of the tasks he undertook and the time involved. Non-financial contributions favour the husband.
The contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent
Counsel for the wife sensibly conceded that the wife had overstated her evidence by the use of absolute terms within her client’s affidavit.
I accept that both parties contributed to the welfare of the children and homemaker activities. The evidence establishes the husband worked continuously throughout the relationship until 2017. He also undertook significant renovations at the home. These domains of activity consumed much of his time and were for the benefit of the family. X was born in 2010 and Y was born in 2014, at the time the husband was working full-time and working on the house.
It is probable that the wife cared for the children while the husband attended to renovations and full time employment. This factor favours the wife. I have accounted for her additional support to the husband after he was injured in the context of s 79(4)(a).
The greater contributions made by the husband for the purpose of s 79(4)(b) and balanced by the greater contributions made by the wife for the purpose of s 79(4)(c).
The effect of any proposed order upon the earning capacity of either party to the marriage
There is no evidence of this.
The matters referred to in subsection 75(2) of the Act so far as they are relevant
The husband is aged nearly 43 years and the wife is aged 39 years.
The wife has been employed by her current employer for 14 years and is currently enjoying the benefits of employment-related leave entitlements. She earns about $113,000 per annum gross.
The husband does not work. He receives an income of about $92,000 per annum gross from a superannuation source that will cease in 2024.
The wife is in good health. There is no barrier to her remaining in the workforce until retirement. The husband suffers poor mental health. He was diagnosed with PTSD in 2016 and medically discharged from his work in April 2017. As at December 2018, he was assessed as having no prospect of returning to the workforce prior to the retirement age of 67 years. The chronicity of his condition and current need for psychotherapeutic support was reiterated by the Expert in his evidence on 28 April 2023 and made abundantly clear from the letter that Dr TT sent to the Department of Communities and Justice and the NSW Firearms Registry in February 2023. The wife cannot be heard to say in the parenting case that the father has significant mental health issues while also contending that he has the capacity for appropriate gainful employment.
The husband has been enrolled in a tertiary qualification. Even if the husband completes the course, there is no evidence that he could in fact perform the relevant work given the currency of the Expert’s opinion that he requires ongoing psychotherapeutic treatment.
The wife will have the primary care of the children, who are currently aged 10 years and seven years. She is unlikely to receive child support from the husband in view of his likely inability for appropriate gainful employment. I must be careful to avoid conflating a child support order as a property order. However, I can and do recognise that the cost of caring for a child is real and attracts an adjustment. As the wife will face, in reality, so much of that cost, an adjustment in her favour pursuant to s 75(2)(c) is warranted.
The wife has had the benefit of exclusive occupation of the Property since 31 December 2018. The husband has correspondingly been excluded and been put to the cost of housing himself in rental accommodation.
The wife’s counsel resists an adjustment in favour of the husband for the four and a half years of exclusive occupation of the home that her client has enjoyed for no more detailed explanation than “That’s how it’s been.” I do not accept that analysis. Had the wife been paying a mortgage, then the benefit of excusive occupation would be balanced by the burden of meeting the liability. Had the wife had the sole care of the children, then the benefit of excusive occupation may be balanced by the duty to house the children. In this case, there has been no mortgage and the children have been in a virtually shared care arrangement. The husband’s forbearance in the exercise of his common law right of occupation over nearly four and a half years attracts an adjustment in his favour pursuant to s 75(2)(o).
In December 2022, the wife withdrew $15,000 from the husband’s bank account without his consent. She ought not to have done so, as this money represented a payment from the ATO to the husband. Although paid into a joint account, it was an account that the wife did not use. I will take this into account pursuant to s 75(2)(o).
The wife has re-partnered with Mr JJ and they now have a baby, born in 2023. Initially, the mother relied on an affidavit from Mr JJ that would have required her to make Mr JJ available for cross-examination. During the trial, the mother withdrew that affidavit. I infer that any evidence that Mr JJ may have given about the living arrangements with the mother would not have assisted her case.
The wife says that she and Mr JJ “do not live together.” She conceded since becoming pregnant, Mr JJ “stays” at the Property five to six nights per week. At times, his daughter MM stays as so his parents. I do not accept that the mother is not “living” with Mr JJ in circumstances where he “stays” there five or six nights per week and has done so for the last at least ten months.
That said, the mother’s oral evidence was that she and Mr JJ maintain separate finances and no challenge was made to that. Section 75(2)(m) directs me to the financial circumstances of cohabitation, not cohabitation per se.
Taken together, a 10 per cent adjustment pursuant to s 75(2)(c) should be made in favour of the wife. An adjustment of 15 per cent pursuant to s 75(2)(a), (b), and (o) should be made in favour of the husband.
Should the wife be given an opportunity to retain the Property?
The answer is in the affirmative. The husband primarily seeks that the home be sold because he wishes to test the market value. The husband did not challenge the valuation evidence, as was open to him to do. Alternatively, he seeks to retain and pay the wife an adjustment but with no income past 2024, such a capacity is inherently unlikely.
On the other hand, the wife wishes to retain the home, has ongoing employment and may have the capacity to pay the necessary sum to the husband. The children will be living with her for the majority of the time and the home provides a point of stability for them. The wife will be given the first option to retain the Property given she positively wishes to retain it failing which it will be sold.
Distribution of jointly owned campervan and joint account
The husband shall retain the recreational vehicle. The evidence establishes that he has made significant improvements to the asset and makes regular use of it. The husband will also retain the balance of the joint account at M Bank No. …09 in the interests of simplicity.
CONCLUSION REGARDING PROPERTY
For the Reasons given, the husband shall retain 65 per cent of the net assets of the parties and the wife shall retain 35 per cent.
The available assets for distribution are valued at $1,689,381 of which 65 per cent equates to $1,098,098.
The husband will retain the assets and superannuation in his own name. He will retain the recreational vehicle valued at $7,000 and joint funds of $324. This totals $377,628. A cash adjustment of $720,470 is to be made to the husband from the value of the property if the wife retains it.
COSTS OF THE INDEPENDENT CHILDREN’S LAWYER
On the final day of the hearing, counsel for the Independent Children’s Lawyer made an Application for Costs against the parties in the sum of $6,090 each. The issue of costs is to be determined in accordance with s 117 of the Act. I must consider whether there is a justifying circumstance to make a costs order. Counsel for the Independent Children’s Lawyer did not identify such a circumstance. The Application is dismissed.

I certify that the preceding three hundred and sixty-nine) (369) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw.
Associate:
Dated: 22 May 2023

File number(s):	SYC 3722 of 2021
Judgment of:	JUDGE ELDERSHAW
Date of judgment:	22 May 2023
Catchwords:	FAMILY LAW – PARENTING – FINAL ORDERS – Best interests – Parental responsibility – With whom the children live – With whom the children spend time FAMILY LAW – PROPERTY – FINAL ORDERS – Where the husband receives a total and permanent disability payment – Where the father’s insurance payments have been co-mingled with the equity in the matrimonial home FAMILY LAW – COSTS – Where the Independent Children’s Lawyer seeks costs – Where no order for costs is made
Legislation:	Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 62B, 65DAA, 65DA, 65Y, 75, 79, 106A, 114, 117, 121 Firearms Act 1996 (NSW) s 79 Weapons Prohibition Act 1998 (NSW) s 38
Cases cited:	Adair & Adair [2019] FamCAFC 70 Aleksovski & Aleksovski (1996) FLC 92-705;[1996] FamCA 111 Beckett & Beckett [2017] FCCA 608 Clauson & Clauson (1995) FLC 92 – 595; [1995] FamCA 10 Jabbour & Jabbour (2019) FLC 93-898; [2019] FamCAFC 78 Norbis v Norbis (1986) 161 CLR 513 Perrin & Perrin (No 2) [2018] FamCAFC 122 Simons & Simons [2020] FamCAFC 128 Stanford v Stanford (2012) 247 CLR 108
Division:	Division 2 Family Law
Number of paragraphs:	369
Date of hearing:	24 & 26 – 28 April 2023
Place:	Sydney
The Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Ms Spain
Solicitor for the Respondent:	Vizzone Ruggero Twigg Lawyers
Counsel for the Independent Children's Lawyer:	Mr Reeves
Solicitor for the Independent Children's Lawyer:	Phillip A Wilkins & Associates

SYC 3722 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR HOWELL Applicant
AND:	MS HOWELL Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE ELDERSHAW
DATE OF ORDER:	22 MAY 2023

Received	9:55:47	No [Mr Howell] you or your family will not be given the option of minding the kids on my day if I need to go somewhere. In fact you better make sure your celebrations fall on your days as I am no longer being flexible, you are not having the kids for parties etc on my days. I think our parenting will need to go to court so I will sort before and school care out now!!!
Received	9:56:44	Things are very real now and I am not gonna make anything easy for you!!! If you are so well and can be looking after kids and taking them out, how can you be on permanent disability????
Sent	9:58:06	Why make things so difficult? Why can’t you just act in the interests of the kids? Is that really so hard?
Received	9:58:29	I saw the kids 6pm till bedtime, then 6.30am till 9 only that less than 5 hours, so no way am I wasting time calling u!!
Received	9.58.49	You have brought things to this point and you better be ready for what is to come
Sent	10.10.21	The kids are the most important thing to consider in this, you know that.

Owner	Assets	Value
Joint	F Street, Suburb G NSW	1,150,000
Joint	M Bank Account No. …09	324
Husband	M Bank Account No. …09	2,697
Husband	M Bank Account No. …09	89,140
Husband	CBA Account No. …27	831
Wife	CBA Account No. …51	17,000
Wife	WW Bank UK Account	149
Wife	Motor Vehicle 1	9,000
Husband	Motor Vehicle 2	21,000
Joint	Recreational vehicle	7,000
Husband	XX Company shares	5,104
Husband	Westpac shares	5,841
Husband	ANZ shares	11,122
Husband	Firearm collection	6,000
Non-Superannuation Assets:		1,325,208
Addbacks
~~Wife~~	~~“Benefit to Ms Howell of not paying mortgage since December 2018 (calculated at $1,459.36 per fortnight for the period 31/12/18 to 1/11/21)”~~	~~102,154~~
Total Addbacks		NIL
Superannuation
Owner	Description	Value
Wife	Superannuation Fund 1	135,604
Husband	Superannuation Fund 1	228,569
Total Superannuation:		364,173
Total Pool:		1,689,381