Lainhart & Ellinson - [2023] FedCFamC2F 931

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lainhart & Ellinson [2023] FedCFamC2F 931

File number(s): SYC 4512 of 2018

Judgment of: JUDGE MORLEY

Date of judgment: 27 July 2023

Catchwords:
FAMILY LAW – parenting – family violence perpetrated by Father to Mother – unacceptable risk – Father to undergo course of therapy, therapist to provide report to Mother – time to be supervised until report provided.

FAMILY LAW – property – just and equitable to make an order under section 79.

Legislation:
Child Support (Assessment) Act 1989

Evidence Act 1995 (Cth) ss 50, 140

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DA, 65DAA, 65DAB, 65Y, 68B, 68C, 68L, 75, 79

Crimes (Domestic and Personal Violence) Act 2007 (NSW) pt 8

Cases cited:
A & A & The Child Representative [1998] FamCA 25

Bemert &Swallow [2009] FamCA 5

Briginshaw v Briginshaw (1938) 60 CLR 336

Clanton & Lachman [2022] FedCFamC2F 401

Grella & Jamieson [2017] FamCAFC 21

Harridge and Anor & Harridge and Anor [2010] FamCA 445

Jacks & Samson [2008] FamCAFC 173

Johnson & Page [2007] FamCA 1235

L & T [1999] FamCA 1699

M v M (1988) 166 CLR 69

Manifold & Alderton [2021] FamCAFC 61

Napier & Hepburn [2006] FamCA 1316

Oberlin & Infeld [2021] FamCAFC 66

Petrellis & Petrellis [2023] FedCFamC1A 104

Preston & Preston [2022] FedCFamC1A 157

W & W (Abuse Allegations: Unacceptable Risk) [2005] FamCA 892

Division: Division 2 Family Law

Number of paragraphs: 336

Date of hearing: 25-27 October 2021, 27 April 2022 and 21 June 2022

Place: Sydney

Counsel for the Applicant: Mr Schonell SC (25-27 October 2021) Mr Kearney SC (27 April 2022, 21 June 2022)

Solicitor for the Applicant: Broun Abrahams Burreket

Counsel for the Respondent: Mr Lethbridge SC

Solicitor for the Respondent: Ogge Law

Counsel for the Independent Children’s Lawyer: Ms Stolier

Solicitor for the Independent Children’s Lawyer: Mark Whelan Lawyer (25-27 October 2021), Kathryn Renshall Lawyers (27 April 2022, 21 June 2022)
ORDERS

SYC 4512 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS LAINHART

Applicant

AND:
MR ELLINSON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE MORLEY

DATE OF ORDER:

27 JULY 2023

THE COURT ORDERS:
Parenting
Parental Responsibility
1.That the Mother shall have sole parental responsibility for decisions pertaining to the long term care, welfare and development of the child, X born in 2017 (“the child”), including the child’s religious and cultural upbringing, the child’s health and the child’s education.
2.That the Mother will inform the Father promptly in relation to any decisions pertaining to the long-term care, welfare and development of the child including the child’s religious and cultural upbringing, the child’s health and the child’s education, in writing.

Live With
3.That X live with her Mother.

Spend Time With
4.X spend time with her Father as follows:
(a)Pending order 4(b) taking effect, the child shall spend supervised time with the Father (within the meaning of order 9 herein) on each Saturday for a period of 3 and a half (3.5) hours from 8:00AM to 11:30AM;
(b)Upon the Father engaging in a course of cognitive behavioural therapy with a qualified clinical psychologist and that Father’s therapist providing to the Mother a report confirming in the therapist’s view that:
(i)The father has understood and accepted that during and after their relationship he had significant anger management problems that led to him perpetrating physical and psychological family violence upon the Mother; and
(ii)The father has gained understanding of the need to manage his anger so as to eliminate any unacceptable risk to X of outbursts of anger by the father while she is in his care for any period of time

then for a period of 3 months, the Father shall spend time with X for a period of 4 hours every Saturday at a time to be agreed between the parties in writing and failing agreement from 9:00AM until 1:00PM.
(c)Thereafter, for a period of 3 months the Father shall spend time with X from 9:00AM until 5:00PM every Saturday.
(d)Thereafter, for a period of 3 months, the Father shall spend time with X each alternate weekend from 9:00AM on Saturday until 9:00AM on Sunday.
(e)Thereafter, for a period of 3 months, the Father shall spend time with X each alternate weekend from 9:00AM on Saturday until 5:00PM on Sunday.
(f)Thereafter, for a period of 3 months, the Father shall spend time with X each alternate weekend from after school on Friday (or 3:00PM if not a school day) until 5:00PM on Sunday.
(g)Thereafter, the Father shall spend time with X each alternate weekend from after school on Friday (or 3:00PM if not a school day) until before school on Monday (or 9:00AM if not a school day).

School Holidays
5.As and from the time when X commences school attendance, and on the condition that she has commenced spending unsupervised overnight time with her Father in accordance order 4(d), (e), (f), or (g) herein, X shall spend time with her Father during school holidays as follows:
(a)The time she spends with her Father pursuant to order 4 herein shall be suspended for the period of the school holiday;
(b)In the event that the first or second school holiday period X spends with her Father is a short school holiday period at the end of Term 1, 2, or 3, she shall spend three nights with her Father at a time to be agreed between the parties in writing, and failing agreement from 9:00AM on the first Monday until 9:00AM on the first Thursday of the school holiday period.
(c)In the event that the first or second school holiday period X spends with her Father is the long school holiday period at the end of Term 4, she shall spend three nights with her Father in the second, fourth, and sixth weeks of the holidays as agreed between the parties in writing, and failing agreement from 9:00AM on Monday until 9:00AM on Thursday in the second, fourth, and sixth weeks of the school holiday period.
(d)In the event that the third or fourth school holiday period X spends with her Father is a short school holiday period at the end of Term 1, 2, or 3, she shall spend five nights with her Father at a time to be agreed between the parties in writing, and failing agreement from 9:00AM on the second Monday of the school holidays until 9:00AM on the following Saturday.
(e)In the event that the third or fourth school holiday period X spends with her Father is the long school holiday period at the end of Term 4, she shall spend five nights during the first, third, and fifth weeks of the school holidays at times to be agreed between the parties in writing, and failing agreement from 9:00AM on Monday until 9:00AM on the following Saturday, with time commencing on the Monday in the first, third, and fifth weeks.
(f)From the fifth school holiday period X spends with her Father and thereafter, X shall spend half the school holidays with each of her parents as follows:
(i)For the school holidays at the end of Term 1 and Term 3:
A.In odd numbered years: the first half with her Father and the second half with her Mother
B.In even numbered years: the first half with her Mother and the second half with her Father

(ii)For the school holidays at the end of Term 2 and Term 4:
A.In holidays commencing in odd numbered years: the first half with her Mother and the second half with her Father
B.In holidays commencing in even numbered years: the first half with her Father and the second half with her Mother

Special Occasions
6.As and from X spending unsupervised time with her Father pursuant to order 4(c), (d), (e), (f), or (g), X spend time with each of her parents on special occasions as follows:
(a)On her birthday – with the parent in whose care she did not wake up, from after school until 5:00PM if a school day or from 2:00PM to 5:00PM if not a school day;
(b)On her Father’s birthday, and where X will not otherwise spend time with her Father on that day, from after school until 5:00PM if a school day or from 2:00PM to 5:00PM if not a school day;
(c)On her Mother’s birthday, and where X will not otherwise spend time with her Mother on that day, from after school until 5:00PM if a school day or from 2:00PM to 5:00PM if not a school day.

7.As and from X spending unsupervised overnight time with her Father pursuant to order 4(d), (e), (f), or (g), X spend time with each of her parents on the following special occasions:
(a)On Father’s Day, with her Father from 5:00PM on the Saturday before Father’s Day until 5:00PM on Father’s Day;
(b)On Mother’s Day, with her Mother from 5:00PM on the Saturday before Mother’s Day until 5:00PM on Mother’s Day;
(c)During Christmas:
(i)In odd numbered years, with her Father from 9:00AM on 24 December until 9:00AM on 25 December and with her Mother from 9:00AM on 25 December until 9:00AM on 26 December
(ii)In even numbered years with her Mother from 9:00AM on 24 December until 9:00AM on 25 December and with her Father from 9:00AM on 25 December until 9:00AM on 26 December

8.As and from X spending unsupervised overnight time with her Father pursuant to order 4(e), (f), or (g), X spend time with her parents during Easter as follows:
(a)In odd numbered years, with her Father from 9:00AM on Good Friday until 9:00AM on Easter Sunday and with her Mother from 9:00AM on Easter Sunday until before school (or 9:00AM if not a school attendance day) on Tuesday
(b)In even numbered years, with her Mother from 9:00AM on Good Friday until 9:00AM on Easter Sunday and with her Father from 9:00AM on Easter Sunday until before school (or 9:00AM if not a school attendance day) on Tuesday

9.That time in accordance with Order 4(a) herein shall be supervised by a professional supervision agency which supervision shall be at the sole expense of the Father and which agency shall be ‘C Contact Service’ provided that in the event that such agency is unwilling or unable to continue to provide the required supervision then:
(a)the Father shall nominate 3 other professional supervision agencies to the Mother in writing for consideration; and,
(b)within 14 days of such nomination, the Mother shall notify the Father in writing as to which of the 3 nominated agencies the Mother agrees to being appointed;

and forthwith thereafter the parties will do all things, including participating in all required assessments, and sign all documents necessary to facilitate time occurring in accordance with these Orders supervised by such agency.

Communication and Information
10.That all communication between the parties pursuant to these Orders shall occur by the use of the App referred to as Our Family Wizard App, except in the case of an immediate emergency affecting X’s welfare in which case the parties may communicate by mobile telephone, and each of the parties shall do all things necessary to maintain such subscription as is necessary to so communicate with the other by means of that App.
11.That each parent keep the other informed as to his or her mobile telephone number, and should that mobile telephone number change, then the party must notify the other party of the change and of their updated mobile telephone number within 24 hours of the change.
12.That each parent keep the other informed immediately of any medical emergencies involving the child, including the name, address and telephone number of the treating doctor/hospital.
13.That both parents be entitled to receive at their own request and expense any and all information in relation to health, education and welfare of the child including but not limited to details of any illness suffered by her and treatment required, school reports, newsletters, notifications of parent teacher interviews, photograph order forms and details of any disciplinary matters and that this Order shall constitute an authority to each of the child’s medical practitioners, allied health professionals and schools to provide that information at the cost of that parent.

Restraints
14.That, save as provided by these Orders or without the Mother’s prior consent in writing having been first obtained, the Father Mr Ellinson born in 1968 be and hereby is restrained from communicating with, contacting in any way including through social media, attending upon and/or approaching within 200 metres of:
(a)the Mother Ms Lainhart born in 1977;
(b)the child X born in 2017;
(c)the place of residence and/or employment of the Mother; and,
(d)the child’s day care, preschool, school and any place at which the child is engaged in any extra-curricular activity,

and this order is an order for the personal protection of the Mother born in 1977 and the child X born in 2017 pursuant to section 68B of the Family Law Act 1975 (Cth) for the purposes of section 68C of the Family Law Act 1975 (Cth), noting the emergency provisions of order 12.
15.That each of the parties be and hereby are restrained from:
(a)Doing any act or thing or causing or permitting any other person to do any act or thing that has as its intention or effect the abuse, belittling, demeaning, or denigrating of the other party, the other party’s family, or any member of the other party’s household, within the presence or within the hearing of X.
(b)Making enquiries of X about the personal life of the other parent.

Travel
16.That pursuant to section 65D of the Family Law Act 1975 (Cth) the Mother be permitted to take the child out of the Commonwealth of Australia for a period not exceeding four weeks in each calendar year upon providing the Father with three weeks’ prior notice of the intended travel and with an itinerary in respect of travel outside of the Commonwealth of Australia and during the period of any such travel the Father’s time with the child shall be suspended.
17.That the necessity for the consent of the Father to the issue and/or renewal of a passport or other travel document for X born in 2017 (X) be dispensed with and the Mother is solely permitted to do all acts and things and sign all documents as may be necessary to cause the issue of an Australian passport or other travel document to the child, X, including but not limited to solely signing any declaration on the application in the form approved by the relevant Minister to enable the child, X to leave the Commonwealth of Australia.
18.That for the purposes of section 11 of the Australian Passports Act 2005 (Cth) it is noted:
(a)X is permitted to have an Australian passport or travel-related document provided and the Mother may sign any declaration on the application in the form approved by the relevant Minister;
(b)X is permitted to travel internationally with the Mother; and,
(c)X is permitted to live with the Mother when she is outside the Commonwealth of Australia.

Name
19.It is declared that it is in X’s best interests that her name be changed to X Lainhart-Ellinson and the formal record of this should be made according to the laws and practice of each State.
20.That the Mother be and hereby is permitted and authorised to do all things, including signing all documents, necessary to change the child’s name to X Lainhart-Ellinson and, more particularly, the Mother is authorised to the apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales to change the name of the child X born in 2017, and it is requested that the Registrar of the Births, Deaths and Marriages for the State of New South Wales, upon the application of the Mother, give effect to this Order by doing all acts and things necessary to register the change of name of X to X Lainhart-Ellinson pursuant to Section 28 of the Births, Deaths and Marriages Registration Act 1995 (NSW) notwithstanding that the consent of the Father has not been obtained.
21.That except where changeover occurs at X’s school or day-care centre, changeover shall occur at a spot between the places of residence of the Mother and the Father as agreed between them in writing from time to time.

Property
22.Pursuant to section 79 of the Family Law Act 1975 (Cth), the Court orders that:
(a)That within 14 days of the date of these orders, the Husband and the Wife do all acts and things and sign all documents and authorities necessary to cause the funds held by Broun Abrahams Burreket Pty Limited Law Practice Trust Account, on behalf of the Husband and the Wife, to be paid to the Wife.
(b)That except as specifically provided for in these orders, the Wife is declared the sole owner of, and the Husband has no interest in:
(i)the Wife’s bank accounts;
(ii)the Wife’s motor vehicle;
(iii)the Wife’s shares;
(iv)the Wife’s superannuation entitlements; and
(v)all other assets of whatsoever nature and kind in the Wife’s possession, ownership and/or control as at the date of these orders.

(c)That except as specifically provided for in these orders, the Husband is declared the sole owner of, and the Wife has no interest in:
(i)the Husband’s bank accounts;
(ii)the Husband’s shareholding in D Pty Ltd;
(iii)the Husband’s motor vehicles;
(iv)the Husband’s superannuation entitlements; and
(v)all other assets of whatsoever nature and kind in the Husband’s possession, ownership and/or control as at the date of these Orders.

23.That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
24.Both the Husband and the Wife hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.

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 MORLEY:
INTRODUCTION

The applicant Mother, Ms Lainhart (“the Mother/the Wife”) and the respondent Father, Mr Ellinson (“the Father/the Husband”) met in 2006. They commenced a relationship in 2013 and cohabitation in 2014, on the Mother’s evidence, married in 2015, separated on 17 March 2018, and were divorced in 2019.

There is one child of the parties’ relationship, X born in 2017 (“X”). Following the parties’ separation, X has resided with her Mother and has spent limited time with her Father. The interests of X in the proceedings were represented by Mr Whelan (as his Honour then was) for the first three days of the hearing, and then by Kathryn Renshall Lawyers for the latter two days as Independent Child’s Lawyer (“ICL”).
The Father has a daughter, Ms E born in 2005, from his previous marriage to Ms F.
On 16 July 2018 the Mother commenced these proceedings by filing an Initiating Application seeking orders relating to both parenting issues for X and alteration of property between the parties. The final hearing took place on 25 to 28 October 2021, 27 April 2022 and 21 June 2022. The Father was represented at final hearing by Mr Lethbridge of Senior Counsel. The Mother was represented initially by Mr Schonell of Senior Counsel and then following his Honour’s appointment to Division 1 of the Court, by Mr Kearney of Senior Counsel. The ICL was represented by Ms Stolier of Counsel.
At the time the final hearing concluded the Mother was 44 years of age, the Father was 53 years of age and X was 4 years. The Mother is in full-time employment as a professional, and the Father is self employed as a professional on a full-time basis.
It was mutual in the case as put before the Court by each of the parties that the marital relationship between the parties had broken down irretrievably and that there could no longer be any mutual enjoyment of property, and that therefore it was just and equitable to make an order altering the interests of the parties in “the property” (as that phrase is used in section 79 of the Family Law Act 1975 (Cth) (“the Act”).
The Mother’s case as to what parenting orders are proper to be made in X’s best interests, with her interests as the paramount consideration, was based on her assertion that the Father presents a risk to X due to his inability to manage his anger and his propensity to violence when angry and that such risk could only be addressed and mitigated by the making of parenting orders that provide for any time the Father spends with X to be supervised and to be limited to one four hour occasion each month.
The Father’s case on parenting denied that there was any such risk and proposed that his time with X graduate through age appropriate steps to alternate weekends, half of each school holidays and specific time on special occasions.
By an order made by consent on 15 January 2019, Dr B was appointed as a Single Expert Witness and his report dated 8 April 2019 was in evidence at the hearing.
The materials relied upon by the parties and the ICL
The Mother relied upon the following materials:
(a)Outline of Case Document prepared by Mr Schonell SC and dated 13 October 2021;
(b)Amended Initiating Application filed 7 August 2020;
(c)Minute of Orders sought by the Mother – Exhibit A12;
(d)Notice Disputing a Fact or Document dated 20 October 2021 – Exhibit R 2;
(e)Affidavit of the Mother sworn and filed 5 October 2021;
(f)Affidavit of the Mother sworn and filed 26 April 2022 (with leave of the Court granted on 27 April 2022);
(g)Financial Statement of the Mother sworn or affirmed and filed 5 October 2021;
(h)Affidavit of Ms G (the maternal grandmother) sworn or affirmed 30 September 2021 and filed 5 October 2021;
(i)Affidavit of Ms F affirmed for October and filed 5 October 2021;
(j)Affidavit of Ms H sworn and filed 1 October 2021;
(k)Affidavit of Mr J sworn and filed 1 October 2021;
(l)Affidavit of Mr K affirmed 9 July and filed 11 July 2019; and
(m)Affidavit of Ms L sworn and filed 11 July 2019.
The Father relied upon the following materials:
(a)Case Outline Document prepared by Mr Lethbridge SC and filed 22 October 2021;
(b)Notice of Risk filed 23 July 2018;
(c)Further Amended Response filed 4 December 2020;
(d)Notice to Admit dated 7 October 2021 – Exhibit R1;
(e)Affidavit of the Father affirmed and filed 5 October 2021;
(f)Affidavit of the Father sworn or affirmed and filed 23 April 2022 (with leave of the Court granted on 27 April 2022);
(g)Financial Statement of the Father sworn or affirmed and filed 5 October 2021; and
(h)Affidavit of Ms M (the paternal grandmother) affirmed and filed 5 October 2021.
The ICL relied upon and Outline of Case Document prepared by Ms Stolier and filed 22 October 2021.
The Mother was cross examined, as were her lay witnesses Ms G and Ms F. The Mother’s other lay witnesses – Ms H, Mr J, Mr K and Ms L – were not required for cross examination. The Father was cross examined. Dr B was cross examined for the ICL, the Mother and the Father.
The following exhibits are in evidence in addition to exhibits A12, R1 and R2 refer to above:
(a)Exhibit A1 – being a five page statement for a Commonwealth Private Bank account with the Commonwealth Bank in the name of D Pty Ltd for June 2020;
(b)Exhibit A2 – being a N Contact Service Supervised Contact Report for 1 September 2018;
(c)Exhibit A3 – being a N Contact Service Supervised Contact Report for 11 April 2020;
(d)Exhibit A4 – being the Minute of Orders Sought by the Applicant Mother (superseded by Exhibit A12);
(e)Exhibit A5 – being 17 pages of various correspondence between O Law Firm, P Law Firm and Ogge Law between 24 April 2019 and 31 October 2019;
(f)Exhibit A6 – being two letters to the Mother dated 22 October 2021 and a Notice of Decision under Part 6A of the Child Support (Assessment) Act 1989 dated 21 October 2021 from Australian Government Services Australia Child Support;
(g)Exhibit A7 – being a 19 page bundle of documents regarding AUD to USD daily exchange rates in 2014, being a two-page printed Excel Spreadsheet entitled “Reserve Bank of Australia” featuring daily AUD to USD exchange rates in 2014 and 17 page document printed from Exchangerates.org.au website detailing 2014 USD to AUD exchange-rate history;
(h)Exhibit A8 – being the Notice of Risk filed for the Mother on 16 July 2018;
(i)Exhibit A9 – being a letter dated 4 September 2018 from Broun Abrams Abrahams Burreket Family Lawyers with enclosures to Ogge Law and a letter dated 11 September 2018 from Broun Abrams Abrahams Burreket Family Lawyers to Ogge Law;
(j)Exhibit A10 – being COPS records from the NSW Police Force for mid-2018 with paginated page numbers 432 to 443 and 16 pages of records detailing offences paginated as pages 510 to 526;
(k)Exhibit A11 – being N Contact Service Supervised Contact Reports dated 9 February 2019, 22 June 2019, 29 February 2020, 25 April 2020, 25 December 2020, 13 February; 2021, 12 June 2021, 7 August 2021, and 21 August 2021;
(l)Exhibit R3 – being the transcript of the hearing in the Local Court City Q in late 2018 of charges against the Father;
(m)Exhibit R4 – being a N Contact Service Supervised Contact Report for 13 June 2020;
(n)Exhibit R5 – being a N Contact Service Supervised Contact Report for 1 November 2020;
(o)Exhibit R6 – being a N Contact Service Supervised Contact Report for 6 March 2021;
(p)Exhibit R7 – being a N Contact Service Supervised Contact Report for 24 April 2021;
(q)Exhibit R8 – being 15 N Contact Service Supervised Contact Reports for 29 March 2020, 4, 11 and 18 July, 14, 21 and 28 November 2020, 9 January 2021, 20 February 2021, 10 April 2021, 22 May 2021, 5 and 19 June, and 11 September 2021;
(r)Exhibit R9 – being NSW Police COPS reports for 2015, and early 2017;
(s)Exhibit R10 – being five N Contact Service Supervised Contact Reports for 13 June and 1 November 2020, 6 March, 24 April and 22 May 2021;
(t)Exhibit R11 – being a letter dated 22 October 2021 from Ogge Law to Broun Abrahams Burreket and Mr R;
(u)Exhibit R12 – being a four page submission dated 22 June 2020 from S School in relation to X and a photocopy of the Birth Certificate of X;
(v)Exhibit R13 – being a screenshot of a bank transfer receipt number … authorised by the Father to S School in a sum of $1776;
(w)Exhibit R14 – being a C Contact Service Contact Visitation Observational Report for 11 June 2022;
(x)Exhibit ICL1 – being the Child Dispute Conference Memorandum to Court dated 24 July 2018;
(y)Exhibit ICL2 – being the Expert’s Report by Dr B dated 8 April 2019;
(z)Exhibit ICL3 – being the N Contact Service Supervised Contact Reports for 26 October and 9 November 2019, 29 February 2020 and 16 October 2021; and
(aa)Exhibit ICL3 – being the estimate of the costs of the ICL in the proceedings on letterhead of R Law Firm.
For preparation of these Reasons I have considered all of the material relied upon by the parties and the ICL including all of the exhibits and the transcripts of all of the oral evidence and the oral submissions made for the parties and the ICL.
The competing proposals of the parties and the ICL
The Mother sought the following orders, as set out in her Minute of Orders (Exhibit A12):
Financial Orders
1.That within 14 days of the date of these Orders, the Respondent Husband and the Applicant Wife do all acts and things and sign all documents and authorities necessary to cause the funds held by Broun Abrahams Burreket Pty Limited Law Practice Trust Account, on behalf of the Respondent Husband and the Applicant Wife, to be paid to the Applicant Wife.
2.That except as specifically provided for in these Orders, the Applicant Wife is declared the sole owner of, and the Respondent Husband has no interest in:
2.1.the Wife’s bank accounts;
2.2.the Wife’s motor vehicle;
2.3.the Wife’s shares;
2.4.the Wife’s superannuation entitlements; and
2.5.all other assets of whatsoever nature and kind in the Wife’s possession, ownership and/or control as at the date of these Orders.
3.That except as specifically provided for in these Orders, the Respondent Husband is declared the sole owner of, and the Applicant Wife has no interest in:
3.1.the Husband’s bank accounts;
3.2.the Husband’s business, [D Pty Ltd];
3.3.the Husband’s motor vehicles;
3.4.the Husband’s superannuation entitlements; and
3.5.all other assets of whatsoever nature and kind in the Husband’s possession, ownership and/or control as at the date of these Orders.
4.That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
5.Both the Respondent Husband and the Applicant Wife hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
Parenting orders
Parental responsibility
6.That the Mother shall have sole parental responsibility for decisions pertaining to the long term care, welfare and development of the child, [X] born [in] 2017 (“the child”), including the child’s religious and cultural upbringing, the child’s health and the child’s education.
7.That the Mother will inform the Father promptly in relation to any decisions pertaining to the long-term care, welfare and development of the child including the child’s religious and cultural upbringing, the child’s health and the child’s education in writing.
Live with and time
8.That the child shall live with the Mother.
9.That subject to Orders 10 and 11, the child shall spend supervised time with the Father on the first Sunday of each month for a period of up to 4 hours as agreed and failing agreement from 1pm to 5pm.
10.That time in accordance with Order 9 herein shall be supervised by a professional supervision agency which supervision shall be at the sole expense of the Father and which agency shall be ‘[C Contact Service]’ provided that in the event that such agency is unwilling or unable to continue to provide the required supervision then:
10.1.the Father shall nominate 3 other professional supervision agencies to the Mother in writing for consideration; and,
10.2.within 14 days of such nomination, the Mother shall notify the Father in writing as to which of the 3 nominated agencies the Mother agrees to being appointed;
and forthwith thereafter the parties will do all things, including participating in all required assessments, and sign all documents necessary to facilitate time occurring in accordance with these Orders supervised by such agency.
11.That within 14 days, the Father is to enrol in a Men’s Behaviour Change Programme and shall:
11.1.provide to the Mother in writing confirmation of his enrolment in such Programme and details as to the duration of and required attendance for the Programme; and,
11.2.forthwith upon completion of such Programme provide to the Mother in writing confirmation from the Programme as to the Father’s attendance upon, participation in and completion of such Programme.
10.That time in accordance with Order 9 herein shall be supervised by a professional supervision agency which supervision shall be at the sole expense of the Father and which agency shall be ‘[C Contact Service]’ provided that in the event that such agency is unwilling or unable to continue to provide the required supervision then:
10.1.the Father shall nominate 3 other professional supervision agencies to the Mother in writing for consideration; and,
10.2.within 14 days of such nomination, the Mother shall notify the Father in writing as to which of the 3 nominated agencies the Mother agrees to being appointed and forthwith thereafter the parties will do all things, including participating in all required assessments, and sign all documents necessary to facilitate time occurring in accordance with these Orders supervised by such agency.
11.That within 14 days, the Father is to enrol in a Men’s Behaviour Change Programme and shall:
11.1.provide to the Mother in writing confirmation of his enrolment in such Programme and details as to the duration of and required attendance for the Programme; and,
11.2.forthwith upon completion of such Programme provide to the Mother in writing confirmation from the Programme as to the Father’s attendance upon, participation in and completion of such Programme.
Communication
12.That all communication between the parties pursuant to these Orders shall occur by the use of the App referred to as Our Family Wizard App and by no other means and each of the parties shall do all things necessary to maintain such subscription as is necessary to so communicate with the other by means of that App.
Injunctions
13.That, save as provided by these Orders or without the Mother’s prior consent in writing having been first obtained, the Father be and hereby is restrained from communicating with, contacting in any way including through social media, attending upon and/or approaching within 200 metres of:
13.1.the Mother;
13.2.the child;
13.3.the place of residence and/or employment of the Mother; and,
13.4.the child’s day care, preschool, school and any place at which the child is engaged in any extra-curricular activity.
14.That each of the parties be and hereby are restrained from doing any act or thing or causing or permitting any other person to do any act or thing that has as its intention or effect abusing, belittling, demeaning or in any way denigrating of the other party or the party’s family within the presence or hearing of the child or from making enquiries of the child about the personal life of the other parent.
Overseas travel
15.That pursuant to Section 65Y of the Family Law Act 1975 (Cth) the Mother be permitted to take the child out of the Commonwealth of Australia for a period not exceeding 4 weeks in each calendar year upon providing the Father with 3 weeks’ prior notice of the intended travel and with an itinerary in respect of travel outside of the Commonwealth of Australia and during the period of any such travel the Father’s time with the child shall be suspended.
16.That notwithstanding and in addition to Order 15, pursuant to Section 65Y of the Family Law Act 1975 (Cth) the Mother be and hereby is permitted to take the child out of the Commonwealth of Australia to [Country T] for the period [in mid] 2022.
Passport
17.That the necessity for the consent of the Father to the issue and/or renewal of a passport or other travel document for [X] born [in] 2017 ([X]) be dispensed with and the Mother is solely permitted to do all acts and things and sign all documents as may be necessary to cause the issue of an Australian passport or other travel document to the child, [X], including but not limited to solely signing any declaration on the application in the form approved by the relevant Minister to enable the child, [X] to leave the Commonwealth of Australia.
18.That for the purposes of section 11 of the Australian Passports Act 2005 (Cth) it is noted:
18.1.[X] is permitted to have an Australian passport or travel-related document provided and the Mother may sign any declaration on the application in the form approved by the relevant Minister;
18.2.[X] is permitted to travel internationally with the Mother; and,
18.3.[X] is permitted to live with the Mother when she is outside the Commonwealth of Australia.
Change of Name
19.It is declared that it is in [X]’s best interests that her name be changed to [X Lainhart-Ellinson] and the formal record of this should be made according to the laws and practice of each State.
20.That the Mother be and hereby is permitted and authorised to do all things, including signing all documents, necessary to change the child’s name to [X Lainhart-Ellinson] and, more particularly, the Mother is authorised to the apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales to change the name of the child [X] born [in] 2017, and it is requested that the Registrar of the Births, Deaths and Marriages for the State of New South Wales, upon the application of the Mother, give effect to this Order by doing all acts and things necessary to register the change of name of [X] to [X Lainhart-Ellinson] pursuant to Section 28 of the Births, Deaths and Marriages Registration Act 1995 (NSW) notwithstanding that the consent of the Father has not been obtained.
Other orders
21.That save as otherwise provided herein, all outstanding applications be dismissed.
22.That the Father pay the costs of the Mother of these proceedings.
The Father sought the following orders, as set out in Part C of his Case Outline Document filed 22 October 2021:
Parenting
1.That the parents have equal shared parental responsibility for the child [X Lainhart-Ellinson] born [in] 2017.
2.That each parent be responsible for the day to day care, welfare and development of the child whilst she is in the care of that parent.
3.Save for the special days as provided in these Orders, the child live with the Mother and spend time with the Father as follows:
(i)Each Saturday from 9.00 am to 5.00 pm for a period of three (3) months with the first 30 minutes and the last 30 minutes to be supervised by [N Contact Service].
(ii)After three (3) months, increasing to each alternate weekend from 9.00am to 5.00 pm on Saturday and 9.00 am to 5.00 pm on Sunday for a period of three (3) months;
(iii)After three (3) months, increasing to each alternate weekend from 9.00am Saturday to 5.00 pm on Sunday; and
(iv)From the commencement of [X]’s first school year and each year thereafter, from after school on Friday to before school on Monday during term time at each school at which the child from time-to-time attends.
4.The child shall spend time with the parents at Christmas as follows:
(i)In even numbered years, with the Father from 2.00 pm on Christmas Eve to 2.00 pm on Christmas Day and with the Mother from 22.00 pm on Christmas Day to 2.00 pm on Boxing Day; and
(ii)In odd numbered years, with the Mother from 2.00 pm on Christmas Eve to 2.00 pm on Christmas Day and with the Father from 2.00 pm on Christmas Day to 2.00 pm on Boxing Day.
5.        Father’s Day and Mother’s Day:
(i)If the child is not in the care of the Father on Father’s Day, she shall spend time with the Father 9.00 am to 5.00 pm on Father’s Day.
(ii)If the child is not in the care of the Mother on Mother’s Day, she shall spend time with the Mother from 9.00 am to 5.00 pm on Mother’s Day.
6.        Birthdays: the child shall spend time with her parents for birthdays as follows:
(i)If the child is with the Mother on her birthday, the child shall spend time with the Father on her birthday from after school (or 3.00 pm) to 6.00 pm if the birthday falls on a school day and from 9.00 am to 2.00pm on that day if not a school day;
(ii)If the child is with the Father on her birthday, the child shall spend time with the Mother from after school (or 3.00 pm) to 6.00 pm if the birthday falls on a school day and from 9.00 am to 2.00 pm on that day if not a school day;
(iii)On either the Mother’s birthday or the Father’s birthday, the child shall spend the day with the respective parent from 10.00 am on the birthday to 10.00 am on the following day if it is not a school day and from after school on the birthday to before school the following day, if it is a school day.
7.During school holiday periods at each school attended by [X] and during her attendance at that school commencing once the child commences school, the child shall spend half of each school holidays with each Parent, with the Mother having the first half of each holiday period in even numbered years and the Father having the first half of each holiday period in odd numbered years;
provided that each party must facilitate the child’s spending time with the other party if required by the provisions of Orders 4, 5 and 6 above.
8.Once the child commences school, the child shall holiday with the parents during their respective holiday period within Australia during the school holidays provided that the parent wishing to holiday, notifies the other parent and provides to that parent at least two (2) weeks prior to travel, a travel itinerary and details about where the child shall be staying.
9.That both parents do all things necessary and sign all necessary documents to ensure that the child holds a current passport and for that passport to be held by the Mother.
10.Once the child commences school, the child shall holiday with the parents overseas, provided that the parent wishing to holiday notifies the other parent and provides to that parent at least one (1) month prior to travel, a travel flight and accommodation itinerary and contact numbers for during the holiday period.
11.In addition to the days and times set out in these orders the child shall spend time with and communicate with each parent at such other or additional times as agreed by the Mother and the Father in writing including but not limited to special occasions.
12.Change overs for all visits shall take place at school/day care during the school year or if it is not a school day, change overs shall take place outside the [Suburb U] Library.
Telephone Communication
13.That each parent be at liberty to telephone the child each alternate day at 6.00pm and that the child be at liberty to telephone the other parent at all reasonable times upon her request.
Other Matters
14.That both parents be restrained from speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child.
15.That both parents take all reasonable steps to prevent any person from speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or the hearing of the child.
16.That neither parent shall discuss any proposed changes to the parenting arrangements directly with the child or in the child’s presence having negotiated the changes with the other parent.
17.That neither parent discuss adult issues with the children or question the child about the other parent’s private life.
18.That each parent keep the other informed as to his or her residential address, residential telephone number, email address and mobile number and any changes be notified to the other party within 24 hours of the change.
19.That each parent keep the other informed within a reasonable period of time of any ongoing illness or injury that requires medical attention (i.e. not an emergency) suffered by the child.
20.That each parent keep the other informed immediately of any medical emergencies involving the child, including the name, address and telephone number of the treating doctor/hospital.
21.That both parents be entitled to receive at their own request and expense any and all information in relation to health, education and welfare of the child including but not limited to details of any illness suffered by her and treatment required, school reports, newsletters, notifications of parent teacher interviews, photograph order forms and details of any disciplinary matters and that this Order shall constitute an authority to each of the child’s medical practitioners, allied health professionals and schools to provide that information at the cost of that parent.
22.That both parents be entitled to attend any day care, school or extra- curricular activities to which parents are invited, including but not limited to assemblies, excursions, concerts and sports days.
Property
23.That the sale proceeds held in the trust account of Broun Abrahams Burreket, Lawyers, be divided as to 60% to the Wife and 40% to the Husband.
24.That the Husband retain the following:
(i)        Motor vehicles in his possession;
(ii)       All his interest in [D] Pty Ltd;
(iii)      All bank accounts in his sole name;
(iv)      His personal possessions and belongings in his possession;
(v)       His superannuation interest;
as his property absolutely and the Wife shall relinquish and abandon any claim or interest therein.
25.That the Husband be solely responsible for and indemnify the Wife against any liability in his sole name.
26.That the Wife shall retain the following:
(i)        All bank accounts in her name;
(ii)       Her personal possessions and belongings in her possession;
(iii)      Her superannuation entitlement;
(iv)      [Motor Vehicle 1]; and
(v)       [V Company Shares];
as her property absolutely and the Husband shall relinquish and abandon any claim or interest therein.
27.That the Wife shall be solely responsible for and shall indemnify the Husband against any liability in her name.
28.That except as hereinbefore provided, the parties agree to indemnify each other in relation to any debts, liabilities, taxes or otherwise that may have been in existence at the time of separation in their own names whether known or unknown and in the future, and a further declaration that they otherwise own whatever it is in their care and control as at the making of these Orders.
29.That the parties shall do all acts and things and give all consents and execute all documents and writings necessary to give effect to these Orders.
30.That in the event that either party refuses, neglects or fails to execute any deed or instrument, the Registrar of the Court be appointed pursuant to s.106A of the Family Law Act 1975 to execute such deed or instrument in the name of such party and to do all acts and things to give validity to the operation of the deed or instrument.
31.That unless otherwise specified in these Orders and expect for the purposes of enforcing the payment of any monies under this or any subsequent Orders:
(i)Each party shall be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these Orders;
(ii)Any money standing to the credit of either party in a bank account is to be retained by the party in whose name the account appears;
(iii)Each party foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these Orders;
(iv)All insurance policies are to become the sole property of the owner named hereon;
(v)Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders and in their own names.
32.The extent to which the Court should treat separately assets acquired by each of the parties after the date of separation.

The ICL did not present a minute of orders, but Ms Stolier made it abundantly clear in her oral submissions at the end of the hearing that the ICL’s position was that time spent by X with her Father would need to be supervised on an ongoing basis, and though not on an indefinite basis, the ICL was unable to submit an appropriate age for X when such supervision could cease. The ICL submitted that:
Until the Father take some steps, which he has not done, to address [the] glaring deficit in his understanding and acceptance [of his role in family violence] it is not safe for [X] to spend time with her Father,[1]
and that such understanding and acceptance must start with the Father completing a Men’s Behaviour Change course. In a practical sense, the ICL adopted the Mother’s minute of order in Exhibit A12.[2]
[1] Transcript 21 June 2022 pages 7 and 8.
[2] Transcript 21 June 2022 line 41.
THE PROCEEDINGS
The Mother commenced the proceedings by filing her Initiating Application seeking both parenting and alteration of property orders on 16 July 2018. The Father filed his Response on 23 July 2018. At the first return date of the matter before Judge Harper (as His Honour then was) on 24 July 2018 an order was made under section 68L appointing an ICL to represent the interests of X in the proceedings and interim orders were made for X to live with her Mother and spend time with her Father each Saturday for up to two and a half hours supervised by a children’s contact centre near Suburb U.
On 25 September 2018, orders were made for the proceeds of sale of W Street, Suburb Y (“the former matrimonial home”) to be held in the trust account of the Mother’s solicitors. On 15 January 2019, orders were made by consent appointing Dr B as Single Court Expert to prepare an Expert’s Report for the assistance of the Court at the cost of the parties, including as to any cost for Dr B’s attendance to give evidence. The interviews for that report took place on 1 and 2 April 2019.
On 29 May 2019 the parties attended a Conciliation Conference with a Registrar in relation to the financial issues and the matter was not settled. At a Call-Over on 26 September 2019 the matter was listed for a final hearing for four days beginning 15 June 2020. Those hearing dates were vacated on 7 May 2020 and the parties were ordered to attend mediation and to undergo either family counselling or family therapy as nominated by the ICL.
On 7 August 2020 interim orders in relation to X’s time with the Father were varied so as to provide for the time to occur each Saturday for three hours between 8:00AM and 11:00AM to 12 weeks and then for three and a half hours between 8:00AM and 11:30AM supervised by the commercial contact supervision service N Contact Service at the Father’s cost.
The matter was again set down for final hearing to take place from 23 to 26 August 2021. That date was later vacated and the final hearing was set down for 25 to 28 October 2021.
On the sixth day of the final hearing on 21 June 2022, orders were made by consent under section 65Y of the Act allowing the Mother to take X on a trip to Country T in mid-2022, and on that day judgment was reserved following the completion of oral submissions.
THE EVIDENCE
On 13 January 2020 the Mother caused to be served on the Father a Notice to Admit Facts relating to various factual matters in relation to the property part of the proceedings. No Notice Disputing a Fact or Document was served on the Mother by the Father in relation to her Notice to Admit Facts. I find that the facts contained in the Mother’s Notice to Admit Facts are proven and that the documents asserted in the Mother’s notice are genuine.
Exhibit R1 is a Notice to Admit Facts dated 7 October 2021 served by the Father on the Mother asserting facts in relation to both the parenting and alteration of property aspects of the proceedings, in relation to which the Mother served a Notice Disputing a Fact or Document dated 20 October 2021 on the Father. I find the facts asserted by the Father and admitted by the Mother are proven. I find that the documents asserted to be authentic and admitted as such by the Mother are genuine. In relation to documents admitted by the Mother to be genuine that are copies of correspondence between the legal practitioners, the Mother adds in paragraph 64 of her Notice Disputing a Fact or Document the words, “however the Applicant does not admit the authenticity of the contents of each document listed.” An admission of the genuineness of a document does not of itself admit any of the facts contained in the document when applied to documents such as correspondence.
Accordingly, the facts and genuineness of documents proven in the Mother’s Notice to Admit Facts, and the facts and genuineness of documents admitted by the Mother’s Notice Disputing a Fact or Document in response to the Father’s Notice to Admit must all be fitted into the findings on fact arising from the parties’ evidence in chief and oral evidence in cross examination.
As stated above, I have considered carefully all of the evidence relied upon by the parties and the ICL in these proceedings, including all of the evidence in chief, the oral evidence at the hearing and the exhibits, and facts admitted through the Notices to Admit Facts, and I have also carefully considered the submissions, both written and oral, made by Counsel on behalf of the parties and the ICL Included in those materials are the audio recordings and the transcripts thereof referred to in paragraph 230 of the Mother’s affidavit.
The Mother asserts in her evidence in chief that she was the victim of family violence by the Father, including physical assaults and repeated derogatory taunts and intentional damaging or destroying property. The Mother gives detailed evidence of the occasions when she asserts she was a victim of family violence perpetrated by the Father.
The Father denies the Mother’s evidence in his evidence in chief at paragraphs 55 and 56 of his trial affidavit:
I have read all of [Ms Lainhart]’s allegations of violence by me against her during our relationship. I refute all allegations made by [Ms Lainhart]…
And in paragraph 91, he refers to the Mother’s allegations that he perpetrated family violence of which the Mother was the victim:
I deny all allegations.
And in paragraph 93:
I strenuously deny any violence towards [Ms Lainhart] and say that she was the instigator of most of our conflict. Most times, when [Ms Lainhart] became aggressive during our relationship, I was trying to hold her away from me restrain her so she would not hurt herself.
The Mother provides evidence referred to in paragraph 230 of her trial affidavit by way of sound recordings and transcripts made of those sound recordings of interactions between the parties that include violence toward the Mother by the Father. I note that not all of the transcripts exhibited to the Mother’s trial affidavit pair with sound recordings in evidence. I have paid no regard to any transcripts that are not paired with a sound recording.
The Father annexes at “E3” to his trial affidavit purported transcripts of sound recordings of interaction between the parties where he asserts the Mother is violent to him and the Mother asserts he has been violent to her, and a transcript of an asserted 000 emergency call to police by the Father in early 2018. However, the only sound recording put into evidence by the Father does not pair with any of the transcripts annexed to his affidavit, but is another copy of the sound recording made in late 2017 that was put into evidence by the Mother and transcribed from page 229 to page 234 of the exhibits to the Mother’s trial affidavit. This sound recording clearly opens with an occasion of violence perpetrated by the Father towards the Mother, with five more such occasions occurring in the course of that sound recording.
Based upon my consideration of all of the evidence including the sound recordings forming part of the Mother’s evidence in chief as referred to in paragraph 230 of her trial affidavit, and most particularly, the cross examinations of the Father about the Mother’s allegations that he perpetrated family violence and the cross examinations of the Mother on the issue of family violence, I find that I accept the evidence of the Mother over that of the Father on issues of perpetration of family violence.
The following summary of the evidence constitutes my findings of fact unless indicated otherwise therein.
I read the evidence of Ms F and I accept that the Father has had minimal involvement in the life of his daughter, Ms E born in 2005, despite having opportunity to involve himself, even given Ms E living with her Mother in Country Z between 2006 and sometime in 2013 or 2014.
The parties were both residing in City AA, USA in 2013, which is when the Father says the parties commenced their “relationship”, though he does not say the parties started their cohabitation. The Mother says the parties started a non-cohabitive dating relationship at this time. At that time the Mother was employed as a professional and the Father was employed as a professional with CC Company. Both parties earnt approximately $180,000 (USD) per year base salary, though in 2013 the Father’s employment with CC Company was terminated and he received severance pay of $51,975.
The Mother says that the parties commenced cohabitation in 2014 when they both relocated to live in Sydney. At that time the Mother was still in her employment with DD Company as a professional, still on an annual salary of $180,000, and the Husband was unemployed, having been terminated from his employment in late 2013, and remained unemployed until late 2014. The Mother says that she funded the costs of the parties’ relocation from City AA to Sydney without contribution for the Father, despite the Father having received a financial severance package on the termination of his employment with CC Company of $51,975. The Mother says she utilised $49,726 from a payment to her of $50,000 from her employer, DD Company, to assist with the financial cost of the relocation.
At commencement of cohabitation the Mother had a half interest in an apartment in Suburb EE, City AA, savings of $70,189.24, furniture, shareholdings in DD Pty Ltd valued at $38,452, superannuation income and entitlements valued at $96,041, and a liability being one half of a loan account debt secured on the Suburb EE apartment. The Father had savings of $43,478, superannuation entitlements in the United States of America with FF Company valued at $73,367 and a liability being a credit card debit account owing $3723. The Father asserted in his trial affidavit that on 8 September 2015 (nearly two years after the date he asserts the parties commenced cohabitation and 18 months after the date the Mother asserts the parties commenced cohabitation), he had Super Fund 1 entitlements valued at $68,652.54, though it would seem that on that date he rolled those funds over into the “Super Fund 3”, the Father’s self-managed superannuation fund at the time of the final hearing.
The Father asserted in paragraph 134 of his trial affidavit that “at the commencement of the relationship” he had savings with GG Bank of about USD $65,000, but he presented no evidence to substantiate that claim. Whereas the Mother asserts that her figure for the Father’s savings “at the commencement of their cohabitation” of $43,478 in the GG Bank account ending #...21 was derived from disclosure of relevant bank statements made by the Father in May 2020. I accept the evidence of the Mother in this regard over that of the Father.
The Mother paid the parties’ living expenses, including accommodation expenses, from their relocation to Sydney until the Father obtained employment at HH Company in 2014 and the Mother says that continuing thereafter, she was responsible for the payment of significantly more of the parties’ joint expenses than the Father. Paragraphs 11, 12 and 13 of the Notice to Admit Facts dated 13 January 2022 served by the Mother on the Father and not responded to by the Father are relevant to my acceptance of the Mother’s evidence in this regard. The Mother sets out her evidence of the imbalance in contribution towards living expenses, purchase of furniture and household goods, and the parties’ wedding costs in paragraphs 372 to 395 of her trial affidavit in precise monetary detail.
For his part, at paragraphs 144 to 146 of his trial affidavit, the Father asserts that the parties contributed equally towards all nature of their expenses during their cohabitation, including relating to X:
We shed matrimonial expenses equally including but not limited to our wedding, holidays, mortgage etc. We have always held individual bank accounts and contributed to a joint account for living expenses. I was not privy to the balances in [Ms Lainhart]’s bank accounts or her personal expenditure but it was our agreement that matrimonial expenses were equally paid for.
In substantiation of this claim, the Father attaches at annexure “7” to his trial affidavit five pages of a summary of expenditures by him between 29 September 2015 and 4 November 2018 by way of a summary of voluminous documents under section 50 of the Evidence Act 1995 (Cth). However, even if taken as a correct summary, and no objection was made thereto at hearing, it does not stand as evidence that such payments constituted an equal sharing of “matrimonial expenses”.
In 2014 the Mother and her former Husband sold the Suburb EE, City AA property and in late 2014 the Mother received USD$481,239.48 into her JJ Bank USA bank account as her share of the net proceeds of sale. In late 2014 the Mother transferred these monies to her JJ Bank Australia account together with other monies from her USA account to a combined total of $526,847.83.
In late 2014 the parties exchanged contracts on their purchase as joint tenants of W Street, Suburb Y, the former matrimonial home, for a purchase price of $2,100,000. The Mother paid the deposit of $225,000 in late 2014 and stamp duty of $42,000 on the purchase in late 2014 from her funds in her JJ Bank Australia account. Subsequently, in 2015 the Father paid $46,135 to the Mother towards “his half share” of the deposit payable on purchase of the former matrimonial home. The Father says in paragraph 152 of his trial affidavit that he contributed $50,000 from his savings at the time of purchase “towards purchase costs” and that subsequent to purchase he repaid the Mother “the sum of $55,000 which was part of half of my share of the deposit as agreed between us.” I accept the Mother’s evidence over that of the Father in relation to the source of funds for purchase of the former matrimonial home.
Though it is not made explicit in the evidence I assume by implication that the parties borrowed the balance of the purchase price for the former matrimonial home on a loan account secured on that property and between purchase and separation in March 2018 parties made equal contribution to the repayments on that loan account.
In late 2014, the Father commenced employment at HH Company on a salary of $300,000 per year. The Husband also received a performance bonus of $50,000. The Father’s employment was terminated in 2015 and he received a termination payment in 2016 in a sum of $114,222. The Father asserts that he applied these funds “for living expenses”.
In 2015 the Mother changed her employment from DD Company to KK Company on a salary of $235,000 per year and remained in that employment until she commenced maternity leave in 2017 for the birth of X. As she had left DD Company within two years of receiving the $50,000 relocation assistance she was required to repay to DD Company $25,000, and did so from her accumulated savings in her JJ Bank Australia account in mid-2015.
The parties were married in 2015.
Between 2015 and 2017 the Mother received bonus payments in addition to her salary from KK Company totalling $116,347.47.
After leaving HH Company in 2015 the Father engaged in occasional contract work for LL Company and then in early 2016 set up a corporation, D Pty Ltd, of which the Father is sole director. The sole shareholder of D Pty Ltd is MM Company of which the Father is sole director and sole shareholder. D Pty Ltd commenced a consulting business in 2016, originally trading as D Pty Ltd, later renamed as NN Company. The Father received his first income from the company conducting that business in 2017. The Mother says that she contributed to the business by providing administrative assistance to the Father, including with the preparation of his business submissions.
X was born in 2017.
There is no issue between the parties that they separated on 17 March 2018 when the Mother left the former matrimonial home at Suburb Y with X. At the time of separation the Mother was still on maternity leave and not in receipt of an income from employment and immediately after separation she was made redundant from KK Company and received a redundancy payout of $94,047 in 2018.
The Mother asserts that she had been staying principally at the parties’ investment property at OO Street, Suburb PP (“the Suburb PP property”) since late 2017 leading up to irretrievable breakdown of the marital relationship on 17 March 2018. The Mother continued to reside at the Suburb PP property for three and a half years at a rental cost to her of $4562 per month until August 2021 and then $4345 per month until moving with X into a three bedroom rental house in the same area in August 2021 at a cost of $5649 per month, where they have remained residing up to the final hearing.
After separation and while no longer residing at the former matrimonial home, the Mother made some further payments of $3500 each towards the loan account secured by mortgage on the property in March and May 2018, whilst the Father, despite having sole occupation of the former matrimonial home as between himself and the Mother from separation on 17 March 2018 until sale of the property in late 2018, made no payments to the said loan account, causing arrears on the loan account of $26,882.13. During the period between separation and sale of the property the Father did not make any payments for council rates or water rates, the Mother contending in her evidence that this caused an arrears of council rates of $9468.40 and an arrears of water rates of $402.58 at settlement of the sale in late 2018.
The evidence presented by the Mother in relation to the asserted arrears is the “Final Statement of Account” from the solicitors acting for the parties on the sale of the former matrimonial home as at late 2018, which refers to “QQ Council – outstanding council rates – $9468.40” and “QQ Council – outstanding water rates – $402.58”. However, there is no way of asserting from that evidence if the amounts stated were pure arrears payable but outstanding as at the date of settlement of the sale or relate to the well-known “adjustment of rates on settlement” as between vendors and purchasers. The point is only relevant when it comes to consideration of whether or not there should be any adjustment between the parties for “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account” pursuant to section 75(2)(o), as no add back in relation to any such arrears is asserted in the Joint Balance Sheet.
During March and April 2018 the Mother applied funds from her savings and her redundancy payment toward the purchase of furniture and household items for herself and X in residing in the parties’ Suburb PP property.
Since separation, the Mother has funded from her savings and her income all of X’s costs not covered by the child support payments made by the Father, including for day care whilst the Mother attends her employment.
In mid-2018 the Mother obtained employment as a professional at RR Company on a salary of $255,000 per year plus superannuation and any bonuses. She commenced working five days per week and then reduced to four days per week in late 2018 causing a reduction her salary to $204,000 per year plus super and any bonuses. In early 2021 the Mother resumed working five days per week and reverted to the salary of $255,000 per year plus superannuation and any bonuses and in mid-2021 her standard salary increased to $280,000 per year plus superannuation and any bonuses. The Mother is able to work from home on a regular basis.

The net property is $2,094,234.52 with the superannuation entitlements or $1,308,805.52 without the superannuation entitlements.
The parties’ marital relationship broke down irretrievably on 17 March 2018 with their separation and they have lived separately and apart since that time. There is no prospect whatsoever of their joint use and enjoyment of property.
The principal asset forming part of the property is the sum of $732,000.52 being the proceeds of sale of the Suburb Y property held upon trust for the parties jointly by the Wife’s solicitors.
There has plainly been an inequality of contributions of the parties from the commencement of cohabitation until hearing, particularly in relation to the considerable initial contribution provided by the Wife by her interest in a City AA apartment.
I find that it is patently just and equitable to proceed with the making of orders altering the interests of the parties in the property.

§ Contributions

I am required to holistically weigh the entirety of the parties’ financial and non-financial contributions according to the particular facts of this matter.[44]
[44] Preston & Preston [2022] FedCFamC1A 157, [29].
The Wife funded the parties’ relocation from City AA to Sydney from funds granted her by her then-employers for that purpose. Ultimately, she had to repay half of the amount provided, which she did from her own income.
At the commencement of cohabitation, the Wife contributed her interest in the apartment in City AA. The sale of the apartment – which took place in 2014, either two or six months after the commencement of cohabitation depending on the date asserted by the Wife or the Husband – netted the Wife $481,239.48. The Wife also had savings of $70,189.24, shareholding valued at $38,452, superannuation entitlements valued at $96,041, and furniture.
At the commencement of cohabitation, the Husband had savings of $43,478, superannuation entitlements of $73,367 in a US fund, and superannuation entitlements with Super Fund 1 that, at 18 months after the commencement of cohabitation, had a value of $68,652.54, and a credit card liability of $3,723.
The Husband was out of employment from about the commencement of cohabitation until late 2014, but received a severance payout of $51,975 in about late 2013. The Husband regained employment in late 2014 until late 2015 and received a termination payment in a sum of $114,222 during the first half of 2016.
In early 2016, the Husband set up his corporate vehicle D Pty Ltd and derived his income through the D Pty Ltd business conducted by that corporation trading as D Pty Ltd, and then as NN Company. He did not receive income from the business until April 2017.
The Wife was in employment from the commencement of cohabitation until she commenced maternity leave in 2017 for the birth of X. The Wife provided unpaid contributions to the business conducted by D Pty Ltd in an administrative assistance role, including the preparation of business submissions for the corporation. The Mother was made redundant from her employment whilst on maternity leave at about the time of separation and in early 2018 received a redundancy payment of $94,047.
The parties purchased the Suburb Y property in late 2014 for $2,000,000, utilising funds provided by the Wife from her accumulated savings including that net proceeds of sale of her City AA apartment. They paid $225,000 as a deposit and $42,000 towards stamp duty. The Husband contributed $50,000 from his accumulated savings the time of the purchase and subsequently paid to the Wife $55,000 as:
part of half of my share of the deposit as agreed between us
The balance of purchase funds were borrowed with a loan account secured on the Suburb Y property. The parties each made contributions to repayment of that loan account until a few months after separation, when the Wife ceased making the payments as she was living in rental accommodation and was solely responsible as between herself and the Husband for payment of that rent.
The Husband continued in occupation of the Suburb Y property until its sale in 2018 and made no payments for the loan account during that time, causing an arrears on the loan account of $26,882.13. He also did not make payments toward the council rates or water rates on the property, though I note that those costs go to ownership and not occupation, and there is no evidence that the Wife made payments toward those rates post separation.
The Wife was primary carer for X from the time of her birth until separation when she was eight months of age. During those eight months, the Wife was on maternity leave and the Husband was engaged with the operation of the business conducted by D Pty Ltd.
I find that the Mother was principally responsible for the homemaker role between the parties throughout the period of their cohabitation.
Following separation, the Mother was solely responsible for the day-to-day care of X as between herself and the Husband and she has been responsible for X’s financial support beyond what is covered by the child support paid by the Husband as assessed under the relevant legislation.
On all of the evidence in the matter, I find that in relation to the non-superannuation property, contributions favour the Wife as to 55%, the Husband’s contribution being assessed at 45%. I find that in relation to the superannuation entitlements of the parties, contributions favour the Wife as to 53%, the Husband’s contributions being assessed at 47%.
CONSIDERATION OF ANY ADJUSTMENT BETWEEN THE PARTIES – SECTION 75(2)
At hearing, the Husband was 54 years of age and the Wife was 44 years of age. On that basis, it is probable of the Wife will have a longer period of income generation than the Husband.
On the basis of the parties’ evidence in chief in their respective Financial Statements, the Wife’s annual income (not including child support from the Husband or her employer’s superannuation contributions) is about $300,000 and the Husband’s is about $200,000.
The Wife continues as a professional and the Husband operates his business through his corporate vehicle D Pty Ltd. However, the cross-examination of the Husband by Mr Schonell SC made plain that his evidence as to income in Part D of his Financial Statement understated the income actually available to him and actually drawn by him through D Pty Ltd. I find that there is no real difference between the income positions of the parties.
Each of the parties enjoys good health and each is physically and mentally capable of engaging an appropriate gainful employment and each continues to do so.
The property of each of the parties and their superannuation is as set out above in the identification of the property for the purposes of section 79.
The Wife’s will have primary care of X, on the basis of the parenting orders that I have found are proper to be made in the best interests of X with her interests as the paramount consideration. Even taking into account payment of child support by the Husband as assessed, the Wife will bear the principal responsibility for financially supporting X until she reaches 18 years of age.
I find that this consideration is in favour of an adjustment between the parties in favour of the Wife.
The commitments of each of the parties necessary to enable each to support themselves and to support X – on the Husband’s part to pay child support, and on the Wife’s part to meet the balance of X’s financial needs beyond the child support – are as set out in the Financial Statements of the parties.
Neither of the parties is cohabiting with any other person and neither party is responsible for the support of any other person other than X.
Neither party is eligible for a pension, allowance, or benefit under the law of the Commonwealth or other State or Territory or of any other country or pursuant to any superannuation fund or scheme inside or outside Australia.
Each of the parties is able to achieve a standard of living comparable with that enjoyed by the family unit prior to separation, given the level of income of each of the parties.
None of the orders proposed by either of the parties would have any effect upon the ability of any of the creditors of the parties to recover that creditor’s debt.
A factor listed for consideration in section 75(2)(j) is:
the extent to which the parties maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party
While consideration of such goes to the assessment of contributions, it can also be considered when assessing any adjustment between the parties under section 79(4)(e) in consequence of any such contributions’ effect upon the future income, earning capacity, property, and financial resources of a party past the making of final orders.
In that sense, it may be said that the Wife contributed to the Husband in that regard through her financial support of the family unit in the period from the Husband ceasing his employment with HH Company in 2015 and receiving his first income from D Pty Ltd in April 2017. Having said this, such support must be seen against accepted evidence that the Husband received a termination payment in the first half of 2016 of $114,222. Though I have taken notice of the consideration, I do not consider that it finds in favour of an adjustment in favour of the Wife.
There is no evidence to support any contention that the period of the Wife’s maternity leave during the parties’ cohabitation affected her earning capacity, given a comparison of her evidence of her income prior to commencing maternity leave and currently.
The Wife continues her role as full-time parenting carer for X, and I do not consider that there is any financial adjustment between the parties justified by any need to protect a continued role as X’s parent beyond a consideration of the adjustment I have already referred to for her future care and control of X and principal financial support for X until X reaches 18 years of age.
I will now consider whether there are any other facts or circumstances which the justice of the case requires to be taken into account when considering any financial adjustment between the parties of the contributions determination.
I referred earlier in these Reasons to the evidence from the parties in relation to the Husband’s failure to make payments required on the loan account secured by mortgage on the Suburb Y property whilst he had sole use of that property as between himself and the Wife from 17 March 2018 until its sale in late 2018, causing an accrual of arrears on the loan account.
I find that such circumstance and its effect upon the net proceeds of sale of the property of which he had that benefit, while the Wife had no benefit from the property and was self-funding rental accommodation, is a consideration in favour of adjustment in favour of the Wife.
I make the same finding and on the same basis in relation to the Husband’s failure to pay any water rates during the relevant period, as water rates go to a combination of ownership benefit and occupant benefit.
I do not make that finding in relation to the Husband’s failure to pay council rates during the relevant period, as payment of council rates goes to ownership, not occupation, and there is no evidence that the Wife was making payments on the council rates during the relevant period either.
On the evidence, the Wife is the beneficiary of an employee share scheme that may come to be of some considerable value to her in the future, and may well be a financial resource in terms of section 75(2)(b) of the Act. Though I have evidence of the amount of a loan taken by the Wife from her employer to fund the investment in late 2018, I do not have detail of the scheme itself, such as how and when such shares became or will become the property of the Wife and any value thereof at the date of hearing or in the future.
I find that it is not a matter that will be taken into account in determining whether there should be any adjustment between the parties or the amount of any such adjustment.
The personal liabilities of the parties reflect on the balance sheet that are not take into account in calculation and identification of the property available for orders altering the interests of the parties or other debts relating to legal fees or income tax debts and I do not take them into account in assessing whether there should be any adjustment between the parties.
I do not consider that the making of any of the orders proposed by either of the parties would have any effect upon the earning capacity of either the parties.
I find that an appropriate adjustment between the parties that relates only to the non‑superannuation property is an adjustment in favour of the Wife of 5.5%, which is equal to $71,984.30.
I find that an appropriate adjustment between the parties that relates only to the non‑superannuation property is an adjustment in favour of the wife of 5.5%, which is equal to $71,992.33. In applying the adjustment to one pool and not the other I must state my reason.[45] I do not find that there should be the same adjustment between the parties in favour of the Wife relating to the superannuation assets, as the factors that I have found are in favour of the adjustment relating to the non-superannuation assets are not relevant to the superannuation assets. By the time either of the parties are entitled to take actual benefit of those superannuation entitlements by qualifying under the relevant legislation, their circumstances will be no longer those I have considered in making the finding of adjustment relating to the non-superannuation assets.
CONCLUSION IN RELATION TO THE APPROPRIATE ORDERS ALTERING THE INTERESTS OF THE PARTIES IN THE PROPERTY
[45] Petrellis & Petrellis [2023] FedCFamC1A 104.
I find that it is just and equitable that in making orders altering the interests of the parties in the property, the property is dealt with on a “two-pool basis”, one pool being the non-superannuation property and the other pool being the superannuation property.
It is just and equitable that orders be made that order the interests of the parties in the property such that the Wife has 60.5% of the net non-superannuation property and Husband 39.5% thereof, and that the Wife has 53% of the pool of superannuation entitlements and the Husband 47% thereof.
On the basis of what I have determined to be the property, the Husband has in his power possession or control, not including the monies held in trust by the Wife’s solicitors, property to the value of $517,949 or 39.6% of the non-superannuation property, and 46.8% of superannuation entitlements.
The Wife has in her power possession or control, not including monies held in trust by the Wife’s solicitors, property to the value of $58,856 or 4.5% of the non-superannuation property, and 53.2% of the superannuation entitlements. If the Wife retains the whole of the monies held on trust for the parties by her solicitors, $732,000.52, she will have $790,856.52 worth of the non-superannuation property or 60.4% thereof.
Accordingly, the appropriate orders to be made altering the interests of the parties in the property are those proposed by the Wife in her Minute of Orders (Exhibit A12), and I will make those orders.
I make the parenting and alteration of property orders set out at the beginning of these Reasons.

I certify that the preceding three hundred and thirty-six (336) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley.
Associate:
Dated: 27 July 2023

File number(s):	SYC 4512 of 2018
Judgment of:	JUDGE MORLEY
Date of judgment:	27 July 2023
Catchwords:	FAMILY LAW – parenting – family violence perpetrated by Father to Mother – unacceptable risk – Father to undergo course of therapy, therapist to provide report to Mother – time to be supervised until report provided. FAMILY LAW – property – just and equitable to make an order under section 79.
Legislation:	Child Support (Assessment) Act 1989 Evidence Act 1995 (Cth) ss 50, 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DA, 65DAA, 65DAB, 65Y, 68B, 68C, 68L, 75, 79 Crimes (Domestic and Personal Violence) Act 2007 (NSW) pt 8
Cases cited:	A & A & The Child Representative [1998] FamCA 25 Bemert &Swallow [2009] FamCA 5 Briginshaw v Briginshaw (1938) 60 CLR 336 Clanton & Lachman [2022] FedCFamC2F 401 Grella & Jamieson [2017] FamCAFC 21 Harridge and Anor & Harridge and Anor [2010] FamCA 445 Jacks & Samson [2008] FamCAFC 173 Johnson & Page [2007] FamCA 1235 L & T [1999] FamCA 1699 M v M (1988) 166 CLR 69 Manifold & Alderton [2021] FamCAFC 61 Napier & Hepburn [2006] FamCA 1316 Oberlin & Infeld [2021] FamCAFC 66 Petrellis & Petrellis [2023] FedCFamC1A 104 Preston & Preston [2022] FedCFamC1A 157 W & W (Abuse Allegations: Unacceptable Risk) [2005] FamCA 892
Division:	Division 2 Family Law
Number of paragraphs:	336
Date of hearing:	25-27 October 2021, 27 April 2022 and 21 June 2022
Place:	Sydney
Counsel for the Applicant:	Mr Schonell SC (25-27 October 2021) Mr Kearney SC (27 April 2022, 21 June 2022)
Solicitor for the Applicant:	Broun Abrahams Burreket
Counsel for the Respondent:	Mr Lethbridge SC
Solicitor for the Respondent:	Ogge Law
Counsel for the Independent Children’s Lawyer:	Ms Stolier
Solicitor for the Independent Children’s Lawyer:	Mark Whelan Lawyer (25-27 October 2021), Kathryn Renshall Lawyers (27 April 2022, 21 June 2022)

SYC 4512 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS LAINHART Applicant
AND:	MR ELLINSON Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE MORLEY
DATE OF ORDER:	27 JULY 2023