Lavrenty & Signe - [2024] FedCFamC1F 131

Federal Circuit and Family Court of Australia (DIVISION 1)
FIRST INSTANCE

Lavrenty & Signe [2024] FedCFamC1F 131

File number:	SYC 6971 of 2021
Judgment of:	CAREW J
Date of judgment:	15 April 2024
Catchwords:	FAMILY LAW PROPERTY SETTLEMENT – s 90SB – Where the parties are in dispute as to the weight to be given to the applicant’s initial contribution, whether money owing to the respondent’s mother is a loan requiring repayment, whether the respondent’s outstanding employment income fees and a tax liability should be included in the balance sheet, and how issues relating to a self-managed superannuation fund should be resolved – Where the respondent’s outstanding fees and tax liability will be taken into account pursuant s90SF(3) but not included in the balance sheet – Where there is an absence of proof that the respondent’s mother made a loan to the applicant and respondent such that it should be deducted from the balance sheet – Where concession by the applicant that a payment was received by her will be treated as a contribution by the respondent – Where costs associated with the report about the self-managed superannuation fund and compliance with its recommendations will be borne equally by the parties – Where the property pool will be divided in the proportion of 67/33 in favour of the applicant. FAMILY LAW – CHILDREN – Where by the end of trial the parties had reached agreement on parental responsibility and that the child should live with the applicant – Where the parties are in dispute about how much time the child should spend with the respondent – Where there are concerns about the risk posed to the child by the respondent’s extended family – Where the respondent is now motivated to take any necessary steps to ensure the applicant has more confidence in his commitment to keeping the child safe – Where both parties impressed as being committed to the child and wanting what is best for her – Where the parenting order proposed by the ICL and adopted by the respondent meets the right balance between ensuring the child has a meaningful relationship with the respondent and creating obligations on the respondent to take certain steps to ensure any risk to the child is ameliorated – Where there will be a gradual increase to the child spending time with the respondent each alternate weekend.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4, 4AA, 4AB, 43, 44, 60B, 60CA, 60CC, 60CG, 61C, 61DA, 64B, 65D, 65DAA, 65DAC, 90SB, 90SF, 90SM, 121 Superannuation Industry (Supervision) Act 1993 (Cth) ss 17A, 42
Cases cited:	Baghti & Baghti and Ors [2015] FamCAFC 71 Banks & Banks (2015) FLC 93–637 Biltoft & Biltoft (1995) FLC 92–614 Clauson & Clauson (1995) FLC 92–595 Eastley & Eastley (2022) FLC 94–094Gao & Wang (2016) FLC 93–735 Hoffman & Hoffman (2014) FLC 93–591 Isles and Nelissen (2022) FLC 94-092 Jabour & Jabour (2019) FLC 93–898 Johnson & Page (2007) FLC 93–344 Lovine & Connor and Anor (2012) FLC 93-515 M v M (1988) 166 CLR 69 Mitchell & Mitchell (1995) FLC 92–601 N and S and the Separate Representative (1996) FLC 92–655 Stanford v Stanford (2012) 247 CLR 108
Number of paragraphs:	175
Date of last submission/s:	28 March 2024
Date of hearing:	5 – 9 February 2024
Place:	Sydney (delivered in Brisbane)
Counsel for the Applicant:	Mr Schonell
Solicitor for the Applicant:	Dowdle Doorey Lawyers Pty Ltd
Counsel for the Respondent:	Mr Dobbs (leave granted to withdraw on day 5 of trial)
Solicitor for the Respondent:	Moscardo Lawyers & Associates (and on day 5 of trial, Ms Moscardo as solicitor advocate)
Counsel for the Independent Children’s Lawyer:	Ms Stolier
Solicitor for the Independent Children’s Lawyer:	Brian Samuel & Associates

ORDER

SYC 6971 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS LAVRENTY Applicant
AND:	MR SIGNE Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	CAREW J
DATE OF ORDER:	15 april 2024

THE COURT ORDERS BY CONSENT THAT:

PARENTING

All previous parenting orders are discharged.

Parental Responsibility

Ms Lavrenty (“the applicant”) shall have sole parental responsibility for major long‑term issues (as defined in s 4 of the Family Law Act 1975 (Cth) (“the Act”)) for the child X born 2015 (“the child”).
Prior to making any major long-term parenting decisions for the child, the applicant shall first notify Mr Signe (“the respondent”) (collectively “the parents”) in writing and invite the respondent to provide his views in respect to any such decision and the respondent shall have 14 days to provide a response in writing to the applicant.
Prior to making any major long-term parenting decision for the child, the applicant shall take into account any views expressed by the respondent to the applicant in writing and she shall advise the respondent in writing of her decision.

Live with

The child shall live with the applicant.

Changeover

Unless changeover is to occur at the child’s school, changeover shall occur at a public venue as agreed to by the parents in writing and in the absence of such agreement at the petrol station at B Street, Suburb C.

Communication between the parents

Unless otherwise agreed in writing between the parents:
a.Subject to the following subparagraph, the parents shall communicate via email, with such communication to be limited to parenting matters, including changeover arrangements, with the parents required to keep each other informed of an email address for such communication;
b.Notwithstanding the preceding subparagraph, the parents may exchange pleasantries and communicate orally at changeovers and on other occasions when they are together in person, or in the case of emergency as provided for in paragraph 11 of this Order.

The child’s personal items

a.

Mutual restraints

a.On a WITHOUT ADMISSION basis both parents shall be restrained from:
b.Exposing the child to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the child, the applicant, the respondent, or any other member of either parent’s household;
c.Physically disciplining the child;
d.Denigrating the other parent or members of the other parent’s family in the presence or hearing of the child and each parent shall do all acts and things reasonably necessary to prevent any other person doing so;
e.Discussing these proceedings or any issues arising out of these proceedings with the child or permitting any third party to do so; and
f.Making critical or derogatory remarks on social media, such as Facebook or X (formerly Twitter), in relation to the other parent or referring in any way to the proceedings.

Communication

a.The applicant and respondent shall keep each other informed of the child’s health and any significant medical and health issues affecting the child.
b.In the event of an accident, hospitalisation, or emergency concerning the child, the parents shall notify the other as soon as reasonably practicable by telephone or text message and the parent with whom the child is not living at the time shall be at liberty to attend upon the child at any hospital or medical centre or facility with the parents required to keep each other informed of a telephone number for such contact.

International Travel

a.Within 14 days of the date of this Order, the parents shall do all acts and things necessary to obtain an Australian passport for the child and thereafter the parents shall do all acts and things and sign all documents, within 7 days of a request to do so from the other parent, to ensure the child’s Australian passport is renewed and has at least 6 months’ validity at all times, with the respondent to solely bear the costs of all applications and renewals of the passport.
b.The child’s passport shall be retained by the applicant at all other times when it is not in use in accordance with this Order.
c.For the purposes of s 65Y of the Act, the applicant shall be permitted to travel with the child out of the Commonwealth of Australia provided that:
d.So far as practical, the occasions on which the applicant takes the child out of Australia coincide with the child’s school holidays;
e.The applicant shall provide to the respondent no less than 1 calendar month’s written notice of her intention to travel with the child and the particulars of the said travel including the departure date of such proposed trip, a proposed itinerary, and proposed period of such trip;
f.Not less than 14 days prior to the proposed date of departure, the applicant shall provide to the respondent written notice confirming details of the travel, such notice including:
i.a written itinerary of travel sufficient to identify the place or places that will be visited;
ii.details of the accommodation that will be occupied during that travel; and
iii.a photocopy of all return airline and/or shipping tickets (which is satisfied by the provision of an online screenshot of any e-ticket) evidencing the child's proposed return to the Commonwealth of Australia.

iv.Should the period of overseas travel have caused the child to miss time with the respondent pursuant to this Order, the applicant shall facilitate the child spending make-up time with the respondent as soon as possible upon the child’s return to Australia.

Independent Children’s Lawyer’s Costs

The parents shall each pay one half of the costs of the independent children’s lawyer such amount being $8,750.50 payable by each parent and noting the following:
g.The total costs of the independent children’s lawyer up to the conclusion of these proceedings and inclusive of GST are $17,501.00; and
h.The above amounts shall be paid directly by the parents to Legal Aid NSW.

PROPERTY

Reimbursement

a.The respondent shall reimburse the applicant one half of the valuation fees and one half of the setting down fee for the trial in the amount of $5,550 in total.

It is further ordered THAT:

PARENTING

Spend time with

a.The respondent shall spend time with the child at all such times as may be agreed in writing between the parents and failing agreement as follows:
b.During New South Wales school terms as follows:
i.During school terms 2 and 3 in 2024, each alternate weekend from 4.00pm on Friday until 5.00pm on Saturday and during the off week on Thursday from 4.00pm until 7.00pm (being the Thursday immediately following the respondent’s weekend with the child);
ii.During school term 4 in 2024, each alternate weekend from 4.00pm on Friday until 5.00pm on Sunday;
iii.From the commencement of the 2025 school year and during all school terms thereafter, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday.

c.During New South Wales school holiday periods as follows:
i.During the term 1 school holiday period in 2024, each weekend from 10.00am on Sunday until 9.00am on Monday;
ii.During the term 2 school holiday period in 2024, from 10.00am on Saturday until 5.00pm on Sunday;
iii.During the term 3 school holiday period in 2024, on the second weekend of such school holiday period from 4.00pm on Friday until 5.00pm on Sunday;
iv.During the term 4 school holidays in 2024/2025 as follows:
A.From 5.00pm on Friday, 20 December 2024 until 5.00pm on Monday, 23 December 2024;
B.From 10.00am on Boxing Day 2024 until 10.00am on Friday, 27 December 2024;
C.From 10.00am on Thursday, 2 January 2025 until 10.00am on Monday, 6 January 2025; and
D.From 10.00am on Thursday, 16 January 2025 until 10.00am on Monday, 20 January 2025;

d.During all short school holiday periods commencing in 2025 and thereafter, for a period of 5 continuous nights on such days and at such times as agreed to by the parents in writing and in the absence of such agreement from 10.00am on the first Monday of such school holiday period until 10.00am on the Saturday immediately following;
e.During the 2025/2026 summer school holidays and each summer school holiday period thereafter, at such times as agreed to by the parents in writing and in the absence of such agreement as follows:
i.From 5.00pm on the first Friday of the school holidays until 5.00pm on the following Monday;
ii.For two block periods of 5 nights at dates and times agreed to by the parents in writing and in the absence of such agreement from 10.00am on 2 January until 10.00am on 7 January and from 10.00am on 16 January until 10.00am on 21 January each year;

f.On Father’s Day, from 10.00am until 5.00pm should such day not fall on a day when the child would otherwise spend time with the respondent pursuant to this Order;
g.During the Christmas period commencing in 2025, on days and times as agreed to by the parents in writing and in the absence of such agreement from 10.00am on Boxing Day until 10.00am on 27 December each year.

h.If Mother’s Day falls on a weekend when the child would otherwise spend time with the respondent pursuant to this Order, such time with the respondent shall be suspended from 10.00am on Mother’s Day.

Respondent’s obligation

a.

Miscellaneous

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

PROPERTY

Controlled Monies Account

a.If the payments required to be paid from the controlled monies account pursuant to paragraphs 46 and 47 of the Order made on 16 February 2023 have not been paid, then the following be paid forthwith:
b.To the Lavrenty-Signe Super Fund (or as advised by Mr D or such other expert appointed by the parties pursuant to paragraph 24 of this Order), the sum of $100,527.20 to be held in the trust account of the fund’s accountant F Financial Services (or such other account as advised by Mr D or such other expert appointed by the parties pursuant to paragraph 24 of this Order);
c.To Mr D, the sum of $9,900 in payment of his fees for his single expert report dated 1 February 2024.

d.The balance of the controlled monies account shall be paid as follows:
e.$262,278.27 to the applicant;
f.$5,550 to the applicant (by way of reimbursement of one half of the valuation fees and the setting down fee pursuant to paragraph 17 of this Order);
g.$1,038.73 to the respondent; and
h.Any additional interest received to be divided in the proportion 67/33 in favour of the applicant.

Lavrenty-Signe Super Fund

a.Within 14 days the applicant and respondent shall engage such superannuation expert as agreed in writing and, in the absence of agreement, Mr D of E Financial Services, to act on behalf of the Lavrenty-Signe Super Fund and on behalf of the applicant and respondent jointly (“the superannuation expert”).
b.The applicant and respondent shall instruct the superannuation expert to assist with the following steps:
c.Preparation of a notice to the Australian Taxation Office (“ATO”) by way of voluntary disclosure using the ATO form entitled ‘Early Engagement and Voluntary Disclosure’, including setting out a list of the contraventions identified by Mr D in his report and a plan on how to deal with the contraventions noting that the sum of $100,527.20 (at least) has been (or will be) repaid to the Lavrenty-Signe Super Fund;
d.Notify the Commissioner of Taxation in accordance with s 106A of the Superannuation Industry (Supervision) Act 1993 that a director has resigned and that the trustee corporation has been de-registered; and
e.Refer the entire matter to the Australian Securities Investment Commission (“ASIC”).

f.The applicant and respondent are to follow the recommendations of the superannuation expert in preparing documents referred to paragraph 25 of this Order and in the event the parties cannot agree on the form of any document required with the above, both the applicant and respondent be able to put in writing to the superannuation expert their proposed wording and the superannuation expert be authorised to settle the documents as seen fit after considering the basis of both instructions.
g.The applicant and respondent are restrained from dealing with the ATO, Commissioner of Taxation, and ASIC in relation to the actions in paragraphs 25 and 26 of this Order except through the superannuation expert’s office.

Real Properties

a.The applicant shall retain her interest in the property at H Street, Suburb G.
b.The respondent shall retain his interest in the property at J Street, Town K.

Balance of Property

a.From the date of this Order and unless otherwise specified in this Order and except for the purposes of enforcing payment of any money due under this Order:
b.Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at this date including any jewellery, furniture, furnishings, shares and motor vehicles;
c.Monies standing to the credit of the parties in any bank accounts are to be the property of the party in whose name such bank account is held;
d.Each party hereby foregoes any claims they may have to any superannuation benefits to or owned by the other. The party whose name any such policy of superannuation or insurance stands shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other;
e.Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which the party is entitled pursuant to this Order.

Execution of Order

a.Each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of this Order within 14 days of being requested to do so.
b.If either party refuses or neglects to sign or execute and return a document within 14 days of a written request to do so, then an authorised Registrar of the Sydney Registry of the Federal Circuit and Family Court of Australia (Division 1) is hereby appointed under s 106A of the Act to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.
c.Either party shall have liberty to apply as to implementation or enforcement of this Order upon the giving of seven days written notice to the other.

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

CAREW J:

The dispute between the applicant, Ms Lavrenty, and the respondent, Mr Signe involves parenting and property issues.

There have been allegations and counter allegations of the most serious nature. Each party has accused the other or, at the very least, made veiled suggestions of sexual impropriety involving a child. Neither party maintains those allegations and it seems they accept that the source of information for those allegations was unreliable.

By the end of the trial, the parties had reached agreement on several issues, including that the applicant should have sole parental responsibility for the only child of their relationship, X born 2015, and that the child should continue to live with the applicant. The precise terms of the agreement reached is set out in exhibit 15. The parties remain in dispute about how much time the respondent should spend with the child.

In the property dispute, the major areas of disagreement include the weight to be given to the applicant’s initial contribution, whether money allegedly owing to the respondent’s mother is a loan requiring repayment, whether the respondent’s outstanding professional fees and taxation liability should be included in the balance sheet, and how issues relating to a self‑managed superannuation fund should be resolved.

For the reasons which follow, the respondent will spend time with the child on alternate weekends from Friday to Monday commencing in 2025 (after a gradual increase in his time between now and then) and during school holidays. The net assets of $2,952,781 of the parties or either of them will be divided in the proportion 67/33 percent in favour of the applicant.

The applicant has incurred legal fees and disbursements in the vicinity of $350,000 and the respondent has incurred legal fees and disbursements in the vicinity of $267,000.

ISSUES

The parties have agreed that the significant issues remaining for my determination are as follows:

Parenting

a.Should the respondent’s time with the child be limited to one night per fortnight until she commences high school and then limited to two nights per fortnight and no school holiday time given the mother’s allegations of risk to the child by being exposed to dysfunction among the respondent’s extended family including any risk posed by Ms L’s mental health issues?
b.Given the history of conflict between the parents and the alleged lack of insight by one or both parents, can they co-parent to the extent necessary for the child to spend more than two nights a fortnight with the respondent?

Property

a.What financial contribution to the ongoing day to day expenses was made by the respondent during and after the relationship?
b.Should the applicant be solely responsible for any penalties and costs associated with the withdrawal of $100,000 from the Lavrenty-Signe Super Fund and any costs associated with undertaking the steps recommended by Mr D and any accounting costs associated therewith?
c.Is the $275,000 a loan owing to the respondent’s mother and if it is, should it be deducted from the balance sheet?
d.Should any adjustment be made in the applicant’s favour by reason of the earning disparity between the parties and the applicant’s greater care of the child?
e.Should the accounts receivable for the respondent’s employment as a professional and his Australian Taxation Office (“ATO”) tax liability be included in the balance sheet?

PROPOSALS OF EACH PARTY

The applicant proposes that the respondent should only spend one night a fortnight with the child until she commences high school and then two nights a fortnight and no school holiday time. The applicant seeks to limit the respondent’s time with the child to protect the child from exposure to what she contends is dysfunction in the respondent’s extended family, and in particular, his adult daughter, Ms L. The applicant contends that the net property of the parties or either of them (excluding the alleged loan to the respondent’s mother, his accounts receivable, and his tax liability) should be distributed in her favour in the proportion 80/20 based on a contribution assessment of 70/30 in her favour and an adjustment to her of ten percent. The precise terms of the order sought by the applicant are set out in exhibit 13.

The respondent adopts the proposal recommended by the independent children’s lawyer (“ICL”) in relation to the parenting issues. The respondent contends that the net property of the parties or either of them (including the loan to his mother, his accounts receivable, and his tax liability) should be distributed in the applicant’s favour in the proportion 60/40 based on a contribution assessment of 50/50 and no more than a two to five percent adjustment to the applicant. How one then arrives at a 60/40 distribution in favour of the applicant remains unclear. The precise terms of the order sought by the respondent are set out in exhibit 17.

The ICL recommends that the respondent commence spending one overnight per fortnight with the child and alternate Thursdays from 4.00pm to 7.00pm from term 2 in 2024, and then two nights per fortnight from term 4 in 2024, and then three nights per fortnight from 2025 and some school holiday time. The ICL recommends that the respondent take particular steps to protect the child from exposure to the respondent’s adult daughter, Ms L, in the event that Ms L is experiencing any acute mental illness symptoms. The precise terms of the order recommended by the ICL are set out in exhibit 14.

The parties tendered a list of agreed facts in relation to the property dispute (exhibit 12) which are, for convenience, set out at [19]-[55] in these reasons.

BACKGROUND

The applicant and respondent commenced a relationship in or about 2014. During the period 2014 to 2018, their relationship is perhaps best described as ‘on again, off again’ although the applicant contends the relationship was more off than on and the respondent contends the opposite. The parties cohabitated for periods of time, including around the birth of the child. It is common ground that the parties cohabited from March 2018 until their final separation on 22 September 2020.

The applicant was born in 1975 and is 49 years of age. The applicant is employed in the health sector and has not re-partnered. The applicant has health sector qualifications. The applicant and child live in Suburb G in a home owned by the applicant.

The respondent was born in 1972 and is 52 years of age. The respondent is a professional. The respondent lives with his current wife in a rental house in Suburb M.

The respondent has three adult children from a previous marriage; namely, Mr N aged 22 years, Mr O aged 20 years, and Ms L aged 18 years. Ms L has a history of mental illness and drug abuse. Ms L has undertaken rehabilitation courses and the respondent contends she is currently doing well and about to commence a course at TAFE. Ms L lives with the respondent.

In 2021, the respondent married Ms P (“the respondent’s wife”). The respondent’s wife is 51 years of age and works in two types of employment. The respondent’s wife has four children from a previous relationship; however, none of her children presently live with her and the respondent, although they spend time with them.

As already noted, the applicant and respondent have one child together. The child is in Year 3 at school and currently spends time with the respondent each alternate Sunday from 10.00am to 4.00pm.

The respondent did not spend any time with the child from the date of separation until April 2023, when he commenced spending supervised time with the child for three hours each alternate Sunday at a contact centre. From September 2023, the respondent spent unsupervised time with the child each alternate Sunday from 12.00pm to 4.00pm with time extended to 10.00am to 4.00pm after the initial four visits.

As at 4 November 2014, the applicant had the following assets and liabilities:

Q Street, Suburb R (“the Suburb R property”);
Mortgage secured against the Suburb R property with S Bank home loan account number …15 of $161,707.10;
Motor Vehicle 1;
Government debt (as at 20 October 2014) of $35,108.00; and
Super Fund 1 member benefit of an unknown amount.

In 2015, the applicant sold Motor Vehicle 1 for $8,000.

In late 2015, the respondent, and Ms T (“the respondent’s first wife”) purchased J Street, Town K for $840,000. The respondent and the respondent’s first wife obtained a home loan from Westpac (home loan account number …15) for the purchase.

The respondent has not disclosed the amount of the initial drawdown or statements for the account prior to 20 August 2020, but a financial statement sworn by the respondent on 27 November 2018 in proceedings before the Federal Circuit Court of Australia (as that court was then called) between him and the respondent’s first wife deposed to the mortgage being $790,000 at that date.

In early 2017, the applicant drew down $145,000 from her S Bank home loan account ending …15 secured over the Suburb R property to pay the ten percent deposit of $138,510 for the purchase of the property at H Street, Suburb G (“the Suburb G property”).

In mid-2017, the applicant settled on the purchase of the Suburb G property for $1,385,000, applying the proceeds of sale of the Suburb R property which settled on the same day for $1,485,000 (with net proceeds of $1,400,585). The balance of the proceeds of sale of the Suburb R property of $15,585 were deposited into a S Bank home loan account ending …15.

The applicant and the child then moved into the Suburb G property.

Prior to the parties commencing a relationship in 2014, the respondent owned a property at U Street, Suburb V (“the Suburb V property”) with the respondent’s first wife. Upon settlement of the sale of the Suburb V property in late 2017, net proceeds of sale of $515,550.18 were received by the respondent and the respondent’s first wife.

As at 25 March 2018, the applicant owned the following:

ASSETS
a.	H Street, Suburb G	Unknown
b.	S Bank account number …59 (being the balance as at 25 March 2018 less $42,000 deposited to that account by the respondent on 23 March 2018)	$13,546.81
c.	Westpac account number …32 (as at 25 March 2018)	$1,681.51
d.	Westpac account number …57 (as at 25 March 2018)	$2,124.31
e.	Westpac account number …23 (as at 25 March 2018)	$39.43
f.	Motor Vehicle 2	Unknown
g.	Furniture and personal effects	Unknown
LIABILITIES
h.	Mortgage to S Bank loan account number …15 secured against the Suburb G property (as at 25 March 2018)	($144,467.55)
i.	Government debt (as at 1 June 2018)	($37,629.34)
SUPERANNUATION
j.	Super Fund 2 (as at 30 June 2018)	$34,527.51

As at 25 March 2018, the respondent owned the following:

Superannuation; and
50 percent interest in J Street, Town K and Westpac mortgage secured against that property.

From June 2016, the applicant and respondent had an informal child support agreement wherein the respondent paid the applicant about $500 per week.

In or about July 2016, the applicant applied for an assessment through the Child Support Agency after the respondent’s payments towards the informal arrangement became sporadic.

Formal child support payments were paid by the respondent to the applicant pursuant to an assessment that ceased on 22 February 2018.

From March 2018, the respondent transferred to the applicant $1,100 each week, which then increased to $1,400 per week from May 2018 (noting the respondent had increased the payment in April 2018 to $1,400 before reverting to $1,100 for two more weeks). Most of these weekly transactions included a reference - “you me and [X]” or “[X], you and me”. Those payments continued until June 2018, after which the respondent made sporadic payments into the applicant’s account.

The respondent organised for the applicant to be paid $86,073.44 by way of lump sum salary as follows:

In July 2018, the respondent made two payments of $30,000 and $20,000 respectively into the applicant’s Westpac account number …23; and
On the same day, the respondent had a payment of $36,073.44 from a PEXA settlement for one of his clients for his professional work transferred into the applicant’s Westpac account number …23.

The applicant worked for the respondent from about March 2018 to early 2020 (on the basis she was paid in advance and did not receive additional salary payments thereafter). The respondent provided the applicant with a Group Certificate recording those funds as income. Also, in August 2019 the respondent wrote a letter to a company confirming the applicant was employed as his ‘[…] manager’ earning an annual salary of “$86,000 per annum exclusive of superannuation”.

In addition to working for the respondent, the applicant worked for about six weeks in 2019 at a clinic as a health professional.

The applicant transferred $81,000 from her Westpac account number …32, from which she then drew a bank cheque in that amount, in mid-2018 which she applied to the deposit for the purchase of W Street, Suburb C (“the Suburb C property”).

The respondent drew a cheque of $7,750 in mid-2018 which he applied to the deposit for the purchase of the Suburb C property.

In late 2018, the parties completed the purchase of the Suburb C property for $1,775,000 in joint names as tenants in common as to 95 percent to the applicant and 5 percent to the respondent. The respondent paid the balance of the deposit, being $7,750, and stamp duty. The balance of the purchase price was funded by way of mortgage granted to Westpac in the sum of $1,597,500.

The parties commenced living in the Suburb C property following completion of the purchase. The settlement statement records that the total due to the vendor was $1,690,305.27. The initial draw down of $1,597,500 from the Westpac home loan left a balance of $92,805.20 plus stamp duty of $83,135 payable, making a total of $175,940.20 as a shortfall. The respondent caused this to be paid.

In late 2018, $143,000 was deposited into the applicant’s S Bank account number …59. The respondent contends those funds were paid by his mother.

The parties resided together at the Suburb C property following the purchase in late 2018 until the applicant vacated the property on 22 September 2020 (excluding brief periods where the parties stayed at the respondent’s Town K property from April to June 2020).

The respondent continued living at the Suburb C property following the applicant vacating that property on 22 September 2020 until settlement of the sale of the Suburb C property in mid‑2023.

The respondent made all mortgage repayments for Westpac home loan account number …01. The initial drawdown in late 2018 was $1,597,500. The Suburb C property was sold for $2,200,000 with contracts exchanged in mid-2023 and settlement occurring a short time later. The net proceeds of sale were $680,087.13, which were applied as follows (pursuant to an order made by consent on 16 February 2023):

Payment to the applicant of $140,000.00;
Payment to the respondent of $140,000.00;
Payout of PP Bank loan secured against the applicant’s Motor Vehicle 2 in the amount of $15,923.18;
Payout of JJ Finance loan secured against the respondent’s Motor Vehicle 3 in the amount of $11,914.00; and
The balance to the applicant’s solicitor’s trust account in the amount of $372,249.95 to be deposited into an interest-bearing controlled monies account.

When the Suburb C property was sold in mid-2023, the amount paid to discharge the mortgage was $1,474,013.29. The total principal reduction paid by the respondent was $131,080. The total interest paid by the respondent as part of the required home loan repayments recorded on the Westpac statements was $277,298 (being $1,100.38 per week for the 252 weeks between settlement and sale).

A final property order was made on 31 October 2019 in the Federal Circuit Court of Australia. The order is in the name of ‘[Ms T]’ and ‘[Mr Signe]’, but the respondent has represented that this order is between himself and the respondent’s first wife. There is no evidence to corroborate this claim.

On 16 November 2021, the respondent commenced to pay to his mother the sum of $250 per week. There was an additional payment of $2,000 to his mother on 25 November 2022. The total payments made to his mother are $30,750.

As at early 2018, the respondent had the following tax debts:

Income Tax$149,970.04 DR
ATO Activity Statement $147,020.11 DR
Total Tax Debt: $296,990.15 DR

As at late 2020, the respondent had the following tax debts:

Income Tax$25,244.19 DR
ATO Activity Statement $423,574.23 DR
Total Tax Debt: $448,818.42 DR

As at early 2024, the respondent had the following tax debts:

Income Tax$0 DR
ATO Activity Statement $730,358.64 DR
Total Tax Debt: $730,358.64 DR

Between November 2020 and July 2021, the applicant withdrew $98,951.00 from the Y Pty Ltd Westpac account number …38 and $1,576.20 from Westpac account number …78, being a total of $100,527.20.

In mid-2021, the applicant opened Commonwealth Bank of Australia account number …74 and deposited $98,951 into that account. In late 2021, the applicant deposited a further amount of $1,576.20. Apart from an additional $0.20 on the deposit in late 2021, all funds in Commonwealth Bank of Australia account number …74 came from the funds withdrawn by the applicant from the Westpac accounts number …38 and …78. The applicant applied the funds deposited into Commonwealth Bank of Australia account number …74 as follows:

In mid-2021, paid $7,125.00 for strata levies for the Suburb C property;
In November 2021, paid $50,000.00 into the trust account of Z Lawyers & Associates for legal fees;
In early 2022, paid $24,000.00 for a Special Levy for the Suburb G property;
In early 2022, paid $13,599.08 to a service company for the relocation of an air-conditioner at the Suburb G property due to issues with strata that had resulted in action before the Department of Fair Trading;
A monthly $4.00 account keeping fee was debited by the bank for the seven months from December 2021 to June 2022, being a total of $28.00;
In 2022, the applicant transferred the balance of the account, being $5,775.12, to AA Lawyers.
Total: $100,527.20

The applicant worked for BB Company from late 2020 to mid-2022.

In early 2023, the applicant commenced casual work as a worker for CC Pty Ltd.

The respondent has been self-employed since 2009, including from when the parties commenced a relationship in 2014 to date.

The respondent currently pays child support of $452 per week.

APPLICABLE LEGAL PRINCIPLES - Parenting

In parenting proceedings under the Family Law Act 1975 (Cth) (“the Act”), s 43 of the Act requires the Court to have regard to several matters including:

The need to protect the rights of children and to promote their welfare; and
The need to ensure protection from family violence.

Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.

A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:

The person or persons with whom a child is to live;
The time a child is to spend with another person or other persons;
The allocation of parental responsibility; and
The communication a child is to have with another person or persons.

The objects and principles of Part VII of the Act are set out in s 60B(1) and s 60B(2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).

The best interests of the child are determined by reference to primary considerations: the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child, and any other fact or circumstance considered relevant (s 60CC).

Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples of such behaviour include assault, stalking, repeated derogatory taunts, intentional damage, or destruction of property etc.

In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities, having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding” and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”. Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.

When assessing the nature and magnitude of a risk posed by a parent, all relevant evidence must be considered as part of the “matrix of evidence” to determine whether or not the risk of possible future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities on each piece of relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made. When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities. Whether a risk is found to be unacceptable is not determined according to the civil standard of proof i.e. on the balance of probabilities.

When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties. The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion” on each and every factual dispute.

Each parent has parental responsibility (i.e., all the powers, responsibilities, and authority which, by law, parents have in relation to a child) for a child subject to any order made by the Court (s 61C).

Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).

Section 65DAC makes it clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act, I have considered all sections as required when making my determination.

Should the respondent’s time with the child be limited to one night per fortnight until she commences high school and then limited to two nights per fortnight and no school holiday time given the mother’s allegations of risk to the child by being exposed to dysfunction among the respondent’s extended family INCLUDING ANY RISK POSED BY MS L'S HEALTH ISSUES?

It is not in contention that the respondent and the child have a good relationship.

Further, it is not in contention that during their relationship, the applicant and respondent had a difficult time on occasions dealing with the respondent’s first wife, who suffered from an addiction and mental illness, and that there were also occasions when they had a difficult time dealing with the respondent’s children from his first marriage. Sadly, Ms L has experienced quite significant mental illness, but both the applicant and respondent did all they could to help her. Unfortunately, after separation, Ms L appears to have played the applicant and respondent off against each other at times. It was not until the trial that both parties appeared to accept that Ms L may not have been an entirely reliable source of information. Ms L also has a history of drug abuse including illicit drugs.

The main issue the applicant appears to have with the child’s safety in the respondent’s household is that he will not inform her of issues as they arise.

The applicant relies on the following matters to support her contention that the child’s time with the father should be limited to no more than two nights per fortnight given the risk of her being exposed to dysfunction in the respondent’s extended family:

In late 2018, the respondent reported the respondent’s first wife, the respondent’s first wife’s mother (“[Ms DD]”), and his son Mr N to police for making threats against the applicant and the child;
In late 2018, a final protection order was made against the respondent’s first wife for the protection of the respondent, the applicant, the child, and Ms L (until varied in relation to Ms L in late 2019). The order, among other things, prohibited the respondent’s first wife from contacting the protected persons except through a lawyer and prohibited her from going to any place where the protected persons lived or worked. The order expired in late 2020;
In early 2019, a temporary protection order was made against Mr N for the protection of the same persons;
At the same time, a final protection order was made against Ms DD for the protection of the respondent, the applicant, Ms L, and the child;
On numerous occasions after separation, but particularly in the early months of 2022, the applicant received text messages from Ms L making various accusations against the respondent and indicating police involvement at the home;
The respondent continued to press for the child to spend time with him without informing the applicant of a significant deterioration in Ms L’s mental health;
Threats made on a number of occasions in 2022 by members of the respondent’s extended family and friends to sue the applicant over allegations made by the applicant which could only have come to their attention from the respondent, and at other times making allegations against the applicant which she regarded as baseless;
The preparedness of the respondent to jump to conclusions against the applicant e.g., accusing her of stealing mail from his mailbox;
The respondent’s recommencement of family violence proceedings against the applicant well after the alleged event in circumstances where the applicant contends it was the respondent who was the aggressor; and
The respondent’s alleged lack of insight into the impact of his decisions on others e.g., failure to inform the applicant if Ms L is experiencing an acute episode.

While there has been a long history of bitterness between the parties, I reject the contention that the respondent would not take all necessary steps to protect the child from any risks posed by his extended family, but particularly Ms L. The history relied upon by the applicant supports the finding that the respondent, at least during his relationship with the applicant, took all necessary steps to protect the applicant, himself, and the child.

The respondent should do better in future in keeping the applicant informed of any issues as they arise, but I see no reason to restrict the child’s relationship with the respondent as suggested by the applicant. The respondent has readily adopted the obligations to be imposed upon him as recommended by the ICL in the event of an issue involving Ms L. While Ms L appears to be doing well now, the respondent will need to be vigilant and ensure that he monitors her mental health to the best of his ability. It became apparent, during the evidence of the family report writer, that the respondent was not being fully informed by Ms L about her mental illness and treatment.

I accept the respondent’s evidence that he has gained a greater understanding of how his extended family’s issues have adversely affected the applicant and I accept he is now motivated to take any necessary steps to ensure the applicant has more confidence in his commitment to keeping the child safe.

Given the history of conflict between the parents and the alleged lack of insight by one or both of the parties, can they co-parent to the extent necessary for the child to spend more than two nights a fortnight with the father?

As already noted, there has been a considerable history of bitterness and conflict between the parents. They have each done and said things that they accept could have been approached in a more helpful way. They have both tended to jump to conclusions, often the wrong ones.

It is very apparent that the applicant is not yet at a stage where she feels she can trust the respondent and she views him as being unnecessarily confrontational. In my view, there has been fault on both sides, and I would encourage both parties to undertake some therapy to work on better communication and insight so that they may anticipate the other person’s reaction to things they say or do.

Both parties impressed as being committed to their daughter and wanting what is best for her and I am confident that, after these proceedings, they will do better in co-parenting her.

What parenting order should be made?

It has already been agreed that the child will continue to live primarily with the applicant and that the applicant will have sole parental responsibility for all major long-term issues and that is entirely appropriate.

I reject the applicant’s contention that it is in the child’s best interests for her time with the respondent to be restricted as proposed by the applicant.

In my view, the parenting order proposed by the ICL and adopted by the respondent meets the right balance between ensuring the child has a meaningful relationship with the respondent and creating obligations on the respondent to take certain steps to ensure any risk to the child is ameliorated.

The applicant should take heart from the many concessions made by the respondent during the trial. It augers well for the future.

APPLICABLE LEGAL PRINCIPLES – property

It is common ground that the Court has jurisdiction to make a property order in circumstances where there was a de facto relationship between the parties, and they had a child together (s 90SB of the Act). The proceedings were commenced within two years of the end of the de facto relationship (s 44(5)). Neither party sought a declaration as to the duration of the de facto relationship, it being acknowledged that the Court should focus on the contributions made by each party whether they were living in a de facto relationship for the entirety of their relationship or not. I note that despite the respondent being married to his first wife for part of the relationship this does not preclude the applicant and respondent living in a de facto relationship at the same time (s 4AA(5)(b)).

In property settlement proceedings, the Court may make such order as it considers appropriate, altering the interests of the parties to the de facto relationship in the property of the parties or either of them, including an order for a settlement of property in substitution for any interest in the property for the benefit of the parties, and an order requiring either or both of the parties to the de facto relationship to make, for the benefit of either or both of the parties, such settlement or transfer of property as the Court determines (s 90SM(1))

The Court cannot make an order unless it is satisfied that, in all of the circumstances, it is just and equitable to make the order (s 90SM(3)).

Section 90SM(4) of the Act prescribes matters that must be taken into account in considering what, if any, order is made under the section. Those matters are as follows:

The financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship to the acquisition, conservation or improvement of any property of the parties or either of them, whether or not that property still exists;
The contribution (other than financial) made directly or indirectly by or on behalf of a party to the de facto relationship to the acquisition, conservation or improvement of any property of the parties or either of them, whether or not that property still exists;
The contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties and any children, including any contribution made in the capacity of homemaker or parent;
The effect of any proposed order upon the earning capacity of either party;
The matters referred to in s 90SF(3) of the Act so far as relevant;
Any other order made under the Act affecting a party; and
Any child support under the Child Support (Assessment) Act 1989 (Cth) that a party has provided, is to provide, or might be liable to provide for a child of the de facto relationship.

The High Court of Australia in Stanford v Stanford identified certain principles to be applied in property settlement proceedings. Whilst Stanford v Stanford dealt with a property settlement application involving a married couple, the propositions discussed by the High Court of Australia apply with equal measure to a de facto couple. In particular, when considering whether it is just and equitable to make an order, it is firstly necessary to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. Secondly, the discretion as to whether or not to make a property settlement order, although extraordinarily wide, must nevertheless be exercised in a principled way. Thirdly, there is no presumption that the parties’ rights to or interests in property are or should be different from those that currently exist. The consideration of whether it is just and equitable to make an order should not be considered by reference only to the matters in s 90SM(4). It is necessary to separately consider s 90SM (3) and (4) and not to ‘conflate’ the two subsections.

Is It just and equitable to make an order?
Neither party submitted that it was not just and equitable to make an order. That position is understandable given that the applicant and respondent separated more than three years ago and “there is not and will not thereafter be the common use of property” by the parties. Additionally “the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the relationship”. In such cases, the “just and equitable requirement is readily satisfied” and I am satisfied in this case that it is just and equitable to make an order.

Balance Sheet

The parties tendered a balance sheet (exhibit 11) which is largely agreed upon. The balance sheet sets out the existing legal and equitable property interests of the parties. The only items about which the parties are in dispute are the following:

Item 12 – Whether the respondent’s outstanding income of $384,657 should be included in the balance sheet, with the applicant seeking to have them excluded and the respondent seeking to have them included;
Item 34 – Whether there is a debt owing by the respondent to his mother in the sum of $275,000, as alleged by him and his mother, and if there is, whether it should be included as a liability in the balance sheet. The applicant disputes the debt;
Item 35 – Whether the respondent’s tax liability of $730,358 should be included as a liability in the balance sheet, with the applicant seeking to exclude it and the respondent seeking to include it.

ASSETS
Ownership	Description	Applicant Value	Respondent Value
1	Applicant	H Street, Suburb G	1,675,000	1,675,000
2	Respondent	J Street, Town K, South Australia	1,460,000	1,460,000
3	Respondent	Westpac account number …93	-4,962	-4,962
4	Respondent	Westpac account number …90	38,658	38,658
5	Respondent	National Australia Bank account number …97	0	0
6	(excluded, was duplicate of Item 3)
7	Respondent	QQ Company card ending …05	191	191
8	Applicant	S Bank account number …59	816	816
9	Applicant	Westpac account number …32	1,479	1,479
10	Joint	PP Bank account number …62 held by Dowdle Doorey Lawyers on behalf of the parties (being the balance after payments of $100,527 and $9,900 pursuant to the order dated 16 February 2023)	268,867	268,867
11	Applicant	Funds held in Dowdle Doorey Trust Account	53,657	53,657
12	Respondent	Accounts receivable	Exclude	384,657
13	Respondent	RR Company loan	23,770	23,770
14	Respondent	Motor Vehicle 4	49,000	49,000
15	Respondent	Motor Vehicle 3	15,000	15,000
16	Respondent	Motor Vehicle 5	25,000	25,000
17	Respondent	Motor Vehicle 6	Exclude	0
18	Respondent	Motor Vehicle 7	Exclude	0
19	Respondent	Motor Vehicle 8	6,000	6,000
20	Applicant	Motor Vehicle 9	28,000	28,000
21	Respondent	Cash	7,000	7,000
22	Applicant	Household items	1,000	1,000
23	Respondent	Household items	10,000	10,000
24	Applicant	Partial property settlement	81,843	81,843
24	Respondent	Partial property settlement	140,000	140,000
Total assets	$3,880,319	$4,264,976
ADDBACKS
Ownership	Description	Applicant Value	Respondent Value
25	Applicant	Legal fees from $140,000	55,775	55,775
26	Applicant	Legal fees from S Bank account ending …15	50,339	50,339
Total Addbacks	$106,114	$106,114
LIABILITIES
Ownership	Description	Applicant Value	Respondent Value
28	Applicant	S Bank loan account number …15 (secured against Suburb G)	222,137	222,137
29	Respondent	Westpac loan account number …15 (secured against the Town K property) (joint with the respondent’s first wife who is indemnified)	726,392	726,392
30	Applicant	Government debt	32,467	32,467
31	Applicant	Westpac credit card ending …11	5,812	5,812
32	Applicant	Motor vehicle loan	31,500	31,500
33	Applicant	Loan from Ms FF	0	0
34	Respondent	Loan to Ms GG	Nil	275,000
35	Respondent	ATO liability	Exclude	730,358
36	Respondent	QQ Company card ending …08 (Respondent now contends this item to be 'QQ Company card ending …07 - $3,802; QQ Company account number …01- $11,417, QQ Company account number …03- $10,909')	19,403	19,403
37	Respondent	Commonwealth Bank of Australia account ending …39 (formerly credit cards ending …00 and …12)	30,552	30,552
38	Respondent	National Australia Bank card account ending …32 (formerly credit cards ending …96 and …01)	24,383	24,383
39	Respondent	HH Bank ending …76	Exclude	0
40	Respondent	HH Bank ending …32	Exclude	0
41	Respondent	JJ Loan account number …45	51,098	51,098
Total Liabilities	$1,143,744	$2,149,102
SUPERANNUATION
Member	Description	Applicant Value	Respondent Value
42	Respondent	Signe Super Fund	50,000	50,000
43	Joint	Lavrenty-Signe Super Fund	100,527	100,527
44	Applicant	Super Fund 2	53,497	53,497
45	Applicant	Super Fund 1	6,595	6,595
Total Superannuation	$210,619	$210,619
FINANCIAL RESOURCES
Ownership	Description	Applicant Value	Respondent Value
46
Total Financial Resources	0	0
SUMMARY	Applicant Value	Respondent Value
Assets	3,880,319	4,264,976
Addbacks	106,114	106,114
Liabilities	1,143,744	2,149,102
Superannuation	210,619	210,619
Financial Resources	0	0
Net Assets (excluding superannuation)	2,842,689	2,221,988
Net Assets (including superannuation)	$3,053,308	$2,432,607

Should the accounts receivable for the respondent’s professional employment and his tax liability be included in the balance sheet?

There is no dispute that as at the date of trial the respondent had fees outstanding from his professional employment of $384,657 and a tax liability of $730,358.

However, the applicant submits that to include those items in the balance sheet would be to visit a significant injustice upon her in circumstances where after separation but before the trial, the respondent was in a net positive financial position as regards his outstanding fees and tax liability. In his financial statement filed on 27 October 2021 (which forms part of exhibit 10), the respondent’s outstanding fees were $679,000 and his tax liability was $612,000.

I note that in the agreed facts the respondent had a tax liability $296,990 in March 2018 and $448,818 on 22 September 2020 (date of separation). There is no evidence as to what, if any, outstanding fees the respondent had at separation. No submissions were made as to the significance, if any, of the tax liability as at the date of separation in the absence of evidence as to outstanding fees as at that date.

Neither party referred to any authority where a professional’s outstanding fees and taxation liability were considered in property settlement proceedings, but I note that the Full Court in Mitchell & Mitchell (“Mitchell”) held that fees outstanding to a professional were debts due to the professional and should be treated as property particularly where there was no question about their recoverability. The tax liability was also included in the balance sheet in that case but in circumstances where the parties had jointly benefited from the income.

In the absence of evidence from which I could discern the respondent’s position as at separation in relation to both outstanding fees and tax liability, and where the respondent was in a net positive position as regards his outstanding fees and tax liability as at 27 October 2021, it does not seem to be just or appropriate to include either the outstanding fees or the tax liability or both in the balance sheet. The facts of Mitchell case are distinguishable from the current case.

I will nevertheless take into account the respondent’s outstanding fees and tax liability as at the date of trial when considering the other factors under s 90SF(3).

Is the $275,000 a loan owing to the respondent’s mother and if it is should it be deducted from the balance sheet?

The respondent contends that he owes his mother $275,000. The respondent further contends that his mother lent him $300,000; $200,000 of which was used to assist in the purchase of the Suburb C property and $100,000 to pay debts.

The respondent’s mother contends that she lent the applicant and respondent $300,000 to assist in the purchase of the Suburb C property and that she withdrew $300,000 from her bank account and paid “approximately $143,000” to the applicant’s bank account and provided the balance to the respondent.

The applicant disputes the loan. The applicant does not dispute that the respondent received some money from his mother at the end of 2018 but not the sum claimed and not by way of loan.

A loan agreement dated September 2018 is annexed to the respondent’s mother’s affidavit. The deed of loan is between the respondent and his mother and records the advance of a principal sum of $300,000 by way of loan with a “drawdown date up to 10 September 2018” and with an “interest rate of 4% per annum calculated from 12 September 2018”. The deed was signed by the respondent in September 2018. The “due date” is set out in the “first schedule” and stated to be October 2028. Also annexed to the respondent’s mother’s affidavit is a customer receipt from “HH Bank” dated September 2018. It is not clear to me what this receipt proves. It certainly does not prove that $143,000 was paid to the applicant’s bank account and the balance to the respondent.

The respondent’s mother agreed during cross-examination that she had not produced any documents evidencing the transfer of $300,000 to the respondent and/or the applicant.

In the respondent’s financial statement sworn and filed on 23 January 2024, he states that the debt due to his mother is $271,000. It is unclear why the sum claimed to be owing by the respondent to his mother is said to be $275,000 in the balance sheet.

It is an agreed fact that commencing from 16 November 2021 the respondent paid to his mother 115 payments of $250 and one payment of $2,000 making a total of $30,750. The respondent contends that all payments were made to reduce the principal of the alleged loan. The respondent’s mother contends that the payments of $250 were paid weekly to reduce the principal only. There is no mention of the $2,000 sum in her affidavit and on what basis it was paid. If all payments were to reduce the principal (as claimed by the respondent), the sum owing would be $269,250.

In his trial affidavit, the respondent relevantly deposes as follows:

163. … When the [Suburb C] property was purchased I borrowed money from my mother to assist and I recall having conversations with [the applicant] to the effect:
Me: I have borrowed $300,000 from my mum to assist and there is a loan agreement. We will have to pay back the $200,000 for the stamp duty, balance of deposit, painting an[d] maintenance work and other incident when we sell. The other $100,000 will also need to be repaid and is being applied to other debts. Are you ok with this? I want this document as a loan because the money is not a gift and it (sic) part of my mum (sic) superannuation that she requires to live on.
[The applicant]: I agree. The loan should be documented. I understand the terms. You can have your mum put the money in my [S Bank] account.
From a review of disclosure documents I can determine that $143,000 was paid by my mother of the $300,000 to [the applicant’s] bank accounts. The rest was paid to me.

If there are documents contended to support the payment of $143,000 by the respondent’s mother to the applicant, they are not before me.

The applicant nevertheless concedes that in September 2018, a sum of $143,000 was deposited into her account but does not admit the source of the funds was the respondent’s mother. The applicant says she simply does not know the source but thought the deposit was made by the respondent. The applicant submits that the sum could not have been used to purchase the Suburb C property because settlement of the purchase occurred at a different time in late 2018.

The applicant deposes to a conversation she alleges she and the respondent had about the alleged loan in her trial affidavit as follows:

43. I am aware that [the respondent] asserts he loaned $300,000 from his Mother… [in] or about […] September 2018. While I am aware [the respondent] received some money from his mother in late 2018, I do not accept that the sum paid was $300,000 or that the funds paid were by way of a repayable loan. My understanding based on discussions [the respondent] had with me during our relationship is as follows:
a. [The respondent’s mother] previously owned the property at [1 KK Street], [Suburb LL]. [The respondent’s mother] lives in the property next door at [2 KK Street], which she also owns.
b. By agreement, [the respondent] and [the respondent’s first wife] lived at the [1 KK Street] property during their marriage for about 4 years after relocating back to Adelaide from [Suburb MM] in about 2011. After moving to Adelaide [the respondent] and [the respondent’s first wife] sold their home at [NN Street], [Suburb MM] shortly after for $845,000 in 2012.
c. [The respondent] paid for renovations to the [1 KK Street] property to convert the dwelling from a building with multiple separate dwellings into one residence with an office at the front of the property, from which he [worked].
d. After [the respondent] and [the respondent’s first wife] separated, [the respondent] vacated the [1 KK Street] property and [the respondent’s first wife] remained at the property with the children.

…
g. In about [late] 2015 [the respondent] and [the respondent’s first wife] jointly purchased the property at [J Street], [Town K] for $840,000 for [the respondent’s first wife] and the children to reside in.
h. In [late] 2017 or [early] 2018, [the respondent’s mother] sold the [1 KK Street] property for $1,325,000, retaining the proceeds. [The respondent] was furious when he discovered she had sold the property, as he told me that he had applied part of his sale proceeds from the [Suburb MM] property in paying for the renovations to the [1 KK Street] property and he said [the respondent’s mother] had told him he would inherit the property, such that he felt comfortable paying a large amount of his personal funds to improving the property, saying “I put all my money from the safe of [Suburb MM] into [KK Street]. It had been discussed between us that [Mr EE] will inherit the farm and I will inherit [KK Street], because I have a special connection with it, being a generational property”.
i. When [the respondent] and I were discussing potentially buying a property in early 2018, [the respondent] said to me "I'm going to sue her. She has done me out of the rise in the Sydney market and now the Adelaide market. I will get money out of her to buy into the Sydney market or I'll sue her. The bitch owes me".
j. In about mid-2018 [the respondent] said to me “I spoke to mum. She has agreed to put some money towards us purchasing a property here”.
k. [The respondent] later said to me “My mother and I are entering into a loan agreement to stop [his first wife] getting any money. If her lawyers were any good, they would have set aside the loan”, referring to the family law property settlement proceedings which were ongoing between [the respondent] and [the respondent’s first wife] at the time.

The applicant contended during cross-examination that the respondent told the applicant he was “trying to get money back from his mother”; “he had told me that he wanted to recoup the money from the previous property that his mother had sold that he felt he had put money into”, and that “[he told me] his mother owed him money”.

The respondent conceded during cross-examination that when he had lived at 1 KK Street, he had paid for renovations to the property including the installation of a new kitchen. The respondent denied that he had been angry with his mother over her sale of 1 KK Street but conceded he had been hurt. The respondent further contended that his mother had reimbursed him for the renovations to 1 KK Street in the sum of about $50,000 which he had used for the stamp duty on the purchase of the Town K property (which I note was purchased in late 2015). The respondent said he was unable to produce any document to corroborate these assertions. There is no evidence of what, if any, steps were taken by the respondent to obtain documentation to corroborate his receipt of $50,000 from his mother and the use of those funds.

When asked in cross-examination whether he had told the applicant that he was entering into a loan agreement to stop his first wife getting any money, the respondent refused to answer in circumstances where the respondent asked counsel for the applicant whether he was alleging a fraud, and the question was not pressed.

During cross-examination, the respondent contended that $57,000 of the $300,000 loan from his mother was deposited into the Suburb C home loan account number …01 and used to purchase “all the internal wardrobes … all of the repainting and maintenance costs before we moved in, and there’s also a $5,000 penalty because our settlement was delayed by Westpac. $100,000 came to me and I used that to reduce other liabilities that I had incurred during the course of the relationship”. No document to corroborate this evidence is before me.

I note that in the context of what contributions were made by him to Suburb C, the respondent deposes in his trial affidavit – “I paid for the installation of wardrobes in the main bedroom …”. In the context of the loan from his mother, the respondent deposes - “I paid for all of the stamp duty in relation to the [Suburb C] property from monies I borrowed from my mother”. The apparent discrepancy between the respondent’s affidavit and oral evidence about the payment for wardrobes was not explained, nor how he could have paid for the stamp duty (prior to settlement in late 2018) from money received from his mother if it was not received, if at all, until September 2018.

The respondent contended during cross-examination that when he was specifically requested in a letter from the applicant’s solicitor dated 22 May 2023 to provide all relevant bank statements evidencing the sums advanced to him from his mother, he complied with that request. The call for that response and all relevant bank statements was made on day four of the trial.

The respondent purported to answer the call by providing a USB about 15 minutes prior to the commencement of the applicant’s submissions on day five. No explanation was provided by the respondent for the late answer to the call, given that during his evidence the respondent said that he had the bank statements on his laptop and would just have to print them off. Further, there was no explanation as to why the call for the response to the solicitor’s letter dated 22 May 2023 was answered so late. The applicant did not have the opportunity to peruse the documents.

No application was made by the respondent to reopen his case in order to tender any documents proving the receipt by him of money advanced to him by his mother as alleged.

In the absence of documentation establishing the payment by the respondent’s mother of $143,000 to the applicant and $157,000 to the respondent I cannot be satisfied that the funds were advanced as claimed. At best, the evidence might suggest that the funds were advanced (if at all) after the completion of the purchase of the Suburb C property, which is contrary to the alleged purpose of the loan. The respondent has provided conflicting evidence about the use of the funds, and the timing of alleged repayments well after separation seems somewhat convenient in circumstances where the due date for repayment of the loan was not until late 2028. There are also inconsistences as to the alleged balance owing. The loan agreement of itself is insufficient to establish that the alleged debt is one that should be included as a liability in the balance sheet. In my view, the existence of the debt remains uncertain and accordingly, I do not propose to deduct $275,000 from the balance sheet.

Nevertheless, the concession by the applicant that $143,000 was paid into her account will be treated as a contribution by or on behalf of the respondent.

What financial contribution to the ongoing day to day expenses was made by the respondent during and subsequent to the relationship?

The following matters are agreed:

The respondent worked as a professional throughout the relationship;
After the child’s birth in 2015, the applicant was not employed during the relationship, other than in the respondent’s business as manager from about early 2018 to early 2020 and for about six weeks in 2019 as a health professional in a clinic;
The respondent paid informal child support of about $500 per week to the applicant from about June 2016 for a short period;
The applicant obtained a child support assessment in or about July 2016 and the respondent paid child support pursuant to the assessment until 22 February 2018;
As manager, the applicant was paid an salary of $86,000 per annum exclusive of superannuation and was paid by three payments on 16 July 2018 being $30,000, $20,000 and $36,073;
From 14 March 2018, the respondent transferred to the applicant $1,100 per week which increased on 9 May 2018 to $1,400 per week before reverting back to $1,100 for two more weeks and thereafter the respondent made sporadic deposits to the applicant’s account;
The respondent made all mortgage payments on the Suburb C property until it was sold in mid-2023, being a total sum of $277,298;
The repayments reduced the principal owing by $131,080; and
The respondent pays child support of $452 per week.

It does not seem to be in dispute that the respondent paid all mortgage repayments and outgoings on the Town K property and that he paid the outgoings for Suburb C as well as the mortgage repayments.

No specific submissions were made about this issue.

Should the applicant be solely responsible for any penalties and costs associated with the withdrawal of $100,000 from the LAVRENTY-SIGNE SUPER FUND AND ANY COSTS ASSOCIATED WITH UNDERTAKING the STEPS RECOVERED BY MR D AND ANY ACCOUNTING COSTS ASSOCiATED THEReWITH?

The parties established a self-managed superannuation fund during their relationship. It was called the Lavrenty-Signe Super Fund (“the fund”). The trustee of the fund when established was Y Pty Ltd. Initially, both parties were directors of the trustee corporation as it is necessary for all directors of a corporate trustee to be members of the fund and for all members to be directors. Pursuant to a letter from the ATO dated 19 March 2019, the fund was confirmed as a complying superannuation fund for the financial year 1 July 2018 to 30 June 2019.

It seems to be common ground that most if not all the contributions to the fund were made by the respondent, although it does not appear that the applicant concedes that the main source of the contributions was a rollover from a previous fund held by the respondent. A deposit of $50,000 was made into account number …38 in September 2019 and a deposit of $35,421 was made in November 2019. In addition, there was a transfer to account number …38 in November 2020 of contributions incorrectly made to account number …78 in the sum of $7,500 being contributions made on behalf of both the applicant and the respondent.

The value of the fund as at 30 June 2021 was $112,786. It seems to be common ground that the fund has now been depleted in full given that the only value attributed to the fund in the balance sheet is the $100,527.20 withdrawn by the applicant. What became of the balance of the fund which was represented by a car or the proceeds of sale of a car is unclear, but there is no suggestion that the applicant withdrew the balance.

The parties jointly appointed Mr D to advise on two matters. No mention was made of the second matter in the proceedings. The first matter was as follows:

a. Whether the [Lavrenty-Signe Super Fund] (the Fund) is a properly established self-managed superannuation fund and, if so, what steps need to be taken to make the Fund compliant (including the reimbursement of any funds).

Mr D’s report is dated 1 February 2024 and is exhibit 9 in the proceedings.

In his report, Mr D refers to competing contentions by the parties in relation to monies held in a Westpac Bank account ending …38 in the name of Y Pty Ltd as trustee for the fund, with the applicant contending the monies were not assets of the fund and the respondent contending they were.

In her trial affidavit, the applicant contended that as she was unsophisticated in commercial matters, and she needed the money, the consequences for her unilateral withdrawal should not be met my her alone but rather by the parties equally. The applicant also contended that she thought that the money was owned by the company in its own right and not the fund. The applicant also pointed to her observation that the respondent had withdrawn sums from the fund’s bank account to purchase a car and pay storage fees and accordingly she considered it to be appropriate for her to access funds.

The applicant is correct that the respondent withdrew $10,932 in October 2019 from the fund’s account ending …38 for the purchase of a motor vehicle from OO Pty Ltd and that storage fees were paid for the vehicle. However, Mr D opines that a motor vehicle falls under the investment class “collectible and personal use assets” in s 62A of the Superannuation Industry (Supervision) Act 1993 (Cth) and is subject to a number of restrictions e.g. the car cannot be leased to a related party, cannot be stored privately, a decision on storage must be documented etc. In Mr D’s view, the information with which he was provided by the parties is consistent with the motor vehicle being purchased as an investment.

Mr D concluded that as account ending …38 was styled as an account held by the trustee corporation on trust for the fund, the monies ($100,527.20) were wrongfully withdrawn. The parties seem to accept Mr D’s conclusions as he was not required for cross-examination.

It is common ground that the applicant used the funds she wrongly withdrew for the purposes set out in [51] of these Reasons. Of the funds withdrawn, $55,775.12 was used by the applicant towards her legal costs. The balance of the funds wrongfully withdrawn was used by the applicant to pay for expenses relating to the Suburb C property and the Suburb G property. I note that a notional add back of legal fees (other than those sourced from the $140,000 partial property settlement) of $50,339 has been agreed to be added back as against the applicant and that a balance in the applicant’s solicitor’s trust account of $53,657 is included in the balance sheet. Accordingly, it appears that of the funds withdrawn, $55,775.12 (at least) are already included in the balance sheet.

The order made on 16 February 2023 made provision for the repayment of the $100,527.20 from the controlled monies account i.e. from a source in which the applicant has an interest as a joint owner with the respondent.

After setting out the history of the fund, Mr D concludes as follows:

The history of the establishment of the fund was taken out in the right order. A deed was obtained in August 2018. An Australian business number (“ABN”) was applied for and received in August 2018. No further steps were taken until September 2019;
In September 2019, a bank account was opened, and the fund established. At that time, the fund met the definition of being a self-managed superannuation fund. The regulator issued a notice in March 2019 confirming that the fund was a complying fund;
However, since that time the fund has had a very troubled path:
iii.The ABN for the trustee corporation was cancelled as from the date it was approved i.e. August 2018;
iv.The applicant resigned her directorship of the trustee corporation in October 2021;
v.There have been a number of serious contraventions arising from the removal of superannuation monies including contraventions under s 62 (sole purpose test), s 65 (loans to members), s 71 (in house assets), s 106A (failure to inform the Commissioner of the resignation of a director) and s 109 (failure to deal at arm’s length) Superannuation Industry (Supervision) Act 1993 (Cth);
vi.ASIC de-registered the trustee corporation with effect from early 2022; and
The fund would not be considered to be either a self-managed superannuation fund or a complying superannuation fund and in Mr D’s opinion this cannot be corrected.

Mr D opines that if the fund is declared a non-complying fund, which is consistent with his conclusion, the taxation consequences may be quite severe. By way of example, Mr D opines that as the value of the fund as at 30 June 2021 was $112,786, the tax penalty could be 45 percent of that i.e. $50,753.

In addition, Mr D opines that there may also be other penalties, the quantum of which he was unable to predict with any certainty. However, the example he provides suggests a further penalty of 42 percent, i.e. $47,370, is possible.

However, Mr D seems to suggest that when the regulator is determining an appropriate penalty, consideration would be given to the different roles and actions of each of the parties in the contraventions e.g. s 42(1A) Superannuation Industry (Supervision) Act 1993 (Cth) which references whether each member was “in any way directly or indirectly knowingly concerned in, or party to, the contravention”.

In those circumstances, it seems to me that it is a matter for the regulator to determine whether a member is “innocent” in the sense described in s 42(1A) and how any proposed penalty would affect that party. In that context, I note that there is no evidence before me of the (notional) member benefits balances in the fund.

Mr D recommends that certain steps be taken including:

Prepare a notice to the ATO by way of voluntary disclosure;
Repay the monies improperly withdrawn;
Notify the ATO that a director has resigned from the trustee corporation; and
Refer the entire matter to ASIC.

These recommendations appear to be accepted by the parties.

As neither party made submissions on the impact of the regulator’s role in determining any penalty and who might be considered as an “innocent party”, on 19 March 2024 the parties were invited to respond to an email sent to them jointly from my Chambers in the following terms:

Proposition 1: In view of [Mr D’s] opinion at [73] of his report dated 1 February 2024, that when the regulator is assessing any penalty, “consideration would be given to the different roles and actions of each of the parties” in the commission of any contraventions of the Superannuation Industry (Supervisory) Act 1993, do the parties agree that the determination of the question posed by the parties in relation to penalties (not costs) is not a matter for the determination of the Court but rather a matter to be determined by the regulator?
Proposition 2: As it appears that any penalties imposed will be met from the [Lavrenty-Signe Super Fund] (given that the $100,527 has been repaid pursuant to the order dated 16 February 2023), do the parties agree that Her Honour should assume that if any funds are to be received by either party from the fund (after payment of the penalties) it will be a de minimis sum?

While both parties agreed with the propositions put to them, they each exceeded the request and provided further submissions, some of which appeared to be inconsistent with the affirmative response to the propositions.

The matter was listed for further mention on 28 March 2024, when the parties were given the opportunity to clarify their respective positions to the two propositions set out above. Both parties indicated their agreement to the propositions. The parties jointly informed the Court that the $100,527 had not yet been repaid as required by the order made on 16 February 2023, and the parties intended to seek further advice from Mr D on what account should receive the monies.

Accordingly, it is common ground that the issue of responsibility for any penalties is a matter to be determined by the regulator and not this Court, and that for the purposes of these proceedings, I should proceed on the basis that any funds to be received by either party from the fund after the payment of penalties will be de minimis.

As to who should be responsible for the costs associated with undertaking the steps recommended by Mr D and any accounting costs associated therewith, it is apparent that there were irregularities with the fund other than the wrongful withdrawal by the applicant, e.g. the withdrawal of the balance of the fund (if that has occurred), the failure to take any action when the ABN for the trustee corporation was cancelled, and the failure to take any action when the trustee corporation was deregistered. Accordingly, as it will be to the joint benefit of the parties to resolve the issues with the fund as expeditiously and cost effectively as possible, any such costs should be borne equally.

The ultimate responsibility for the payment of Mr D's fees of $9,900 for his report dated 1 February 2024 remains for my determination pursuant to paragraph 46 of the order made on 16 February 2023. In my view, as Mr D’s advice related to matters other than the withdrawal of the monies by the applicant, the parties should bear equal responsibility for his fees.

Should any adjustment be made in the applicant’s favour by reason of the earning disparity between the parties and the APPLICANT’s greater care of the child?

The applicant submits that by reason of the earning disparity between herself and the respondent and her ongoing primary care of the child, an adjustment should be made in her favour of ten percent.

The respondent concedes that an adjustment is appropriate given the disparity between the parties’ incomes but submits the adjustment should be limited to three to five percent. The respondent submits that no adjustment is warranted for the applicant having the ongoing primary care of the child because the respondent is paying and will continue to pay child support. However, despite those submissions, the respondent made a further concession during oral submissions that the percentage distribution overall should favour the applicant 60/40 i.e. an adjustment of ten percent to the applicant. (I note the respondent’s submission that contributions as at the date of trial should be assessed as equal).

The respondent’s total average income is $12,500 per week ($650,000 per annum). Although the respondent is qualified as a health professional, she currently works casually in the health sector and earns about $577 per week ($30,000 per annum). The applicant’s employment is flexible, and she works about sixteen hours across the week. The flexibility has suited the applicant because of her care for the child but also in the lead up to the trial. The applicant intends to increase her hours either in her current position to make it part-time or to obtain a permanent position. There is no evidence of what the applicant is likely to earn but even if she tripled her current income there would remain a considerable earning disparity. In taking the earning disparity into account, I am conscious of this being a short relationship, on any view, and that an earning disparity, while a factor to consider pursuant to s 90SF(3), is not an invitation to engage in social engineering.

The parties have agreed that the child will continue to live primarily with the applicant. Pursuant to s 90SF(3)(l), I must take into account the need to protect a party who wishes to continue that party’s role as a parent and the consequent impact that primary role may have on future earning capacity. It is not a matter of offsetting that primary role with the payment by the respondent of child support.

In my view, an adjustment in favour of the applicant should be made but what percentage or monetary adjustment is appropriate will be determined after my assessment of contributions and as part of the overall conclusion as to what order is just and equitable.

What property order is appropriate

In considering what property order is appropriate, it must be remembered that the assessment of contributions is not a mathematical exercise. The Court is required to consider the “myriad of contributions” made by the parties throughout their relationship whether that be direct or indirect financial contributions to the acquisition, conservation or improvement of any property, the contributions other than financial contributions to the acquisition, conservation or improvement of any property, and contributions to the welfare of the family.

At the commencement of the relationship in 2014, the applicant owned the Suburb R property which she sold in mid-2017. The net proceeds of sale were $1,400,585. From those proceeds, the applicant purchased the Suburb G property for $1,385,000 and the balance proceeds of $15,585 were deposited into a bank account in the applicant’s sole name.

At the commencement of the relationship in 2014, the respondent jointly owned the Suburb V property with the respondent’s first wife and when it was sold in late 2017, the net proceeds were $515,550. In late 2015, the respondent and the respondent’s first wife jointly purchased the Town K property for $840,000 with a mortgage debt as at late 2018 of $790,000. The respondent contends that he and the respondent’s first wife finalised their property settlement in 2019 but I was not taken to any evidence of the value of any property retained by the respondent.

During oral submissions, the respondent conceded that contributions favoured the applicant in the proportion 70/30 at the commencement of the relationship. However, the respondent submits that by the date of trial, contributions should be assessed as equal when regard is had to the respondent’s greater contribution to the purchase of the Suburb C property, the payment of the mortgage and outgoings, and his contribution to day to day living expenses.

The applicant contributed $81,000 to the purchase of the Suburb C property for $1,775,000 in late 2018. The respondent contributed $183,690 to the purchase. The parties jointly obtained a loan for the balance purchase price of $1,597,500.

A sum of $143,000 was deposited into the applicant’s bank account shortly after the settlement of the purchase of the Suburb C property, which I propose to treat as a contribution by or on behalf of the respondent.

The respondent practised as a professional throughout the relationship and provided child support to the applicant on an informal basis in June and July 2016 and formally as assessed by the Child Support Agency from July 2016 until 22 February 2018. The respondent made direct weekly payments to the applicant from 14 March 2018 to 28 June 2018 for joint living expenses and thereafter made sporadic payments to the applicant. When the parties lived in the same residence, the respondent either paid the rent or paid the mortgage repayments and other outgoings. The respondent met lease payments for the applicant’s motor vehicle at times.

The parties lived together at the Suburb G property from early 2018 until late 2018. They then lived together at the Suburb C property from the date of its purchase in late 2018 until their separation on 22 September 2020 when the applicant left with the child. The respondent had the benefit of living in the Suburb C property until it was sold in mid-2023, but continued to pay all mortgage repayments and outgoings, as he had done since its purchase. The total interest paid on the loan by the respondent was $277,298 with a reduction in the principal loan of $131,080 by the time of sale. The applicant rented a property for herself and the child after separation save for about six months when she lived in the Suburb G property.

Each of the parties received $140,000 from the sale proceeds of the Suburb C property and their car loans were paid out. The balance sale proceeds of about $379,000 is held on trust for them jointly in what has been referred to in the proceedings as the ‘controlled monies account’. The balance sheet item for the controlled monies account reflects the reduced balance after payment of Mr D’s fees of $9,900 and the repayment of $100,527.20 to the fund, as required by the order made on 16 February 2023.

The respondent has a current tax liability of $730,358 and outstanding fees from his employment income of $384,657.

The respondent currently pays child support of $452 per week.

It is unknown what, if anything, will remain in the fund after the payment of penalties yet to be assessed but the parties agree that I should treat the member balances as de minimis for the purpose of the proceedings and it will not be included in the property to be retained by either party.

Considering the myriad of contributions made by the parties throughout their relationship and subsequent thereto, I assess contributions as favouring the applicant over the respondent in the proportion 60/40 i.e. a 20 percent differential in the applicant’s favour.

It is common ground that the applicant will retain the following property:

ASSETS
Ownership	Description	Value
1	Applicant	H Street, Suburb G	1,675,000
8	Applicant	S Bank account number …59	816
9	Applicant	Westpac account number …32	1,479
11	Applicant	Funds held in Dowdle Doorey Trust Account	53,657
20	Applicant	Motor Vehicle 9	28,000
22	Applicant	Household items	1,000
24	Applicant	Partial property settlement	81,843
Total Assets	$1,841,795
ADDBACKS
Ownership	Description	Value
25	Applicant	Legal fees from $140,000	55,775
26	Applicant	Legal fees from S Bank account ending …15	50,339
Total Addbacks	$106,114
LIABILITIES
Ownership	Description	Value
28	Applicant	S Bank loan account number …15 (secured against the Suburb G property)	222,137
30	Applicant	Government debt	32,467
31	Applicant	Westpac credit card ending …11	5,812
32	Applicant	Motor vehicle loan	31,500
33	Applicant	Loan from Ms FF	0
Total Liabilities	$291,916
SUPERANNUATION
Membership	Description	Value
44	Applicant	Super Fund 2	53,497
45	Applicant	Super Fund 1	6,595
Total Superannuation	$60,092
SUMMARY	Value
Assets	1,841,795
Addbacks	106,114
Liabilities	291,916
Superannuation	60,092
Net Assets (excluding superannuation)	1,655,993
Net Assets (including superannuation)	$1,716,085

It is common ground that the respondent will retain the following property:

ASSETS
Ownership	Description	Value
2	Respondent	J Street, Town K, South Australia	1,460,000
3	Respondent	Westpac account number …93	-4,962
4	Respondent	Westpac account number …90	38,658
5	Respondent	National Australia Bank account number …97	0
7	Respondent	QQ Company card ending …05	191
13	Respondent	RR Limited Loan	23,770
14	Respondent	Motor Vehicle 4	49,000
15	Respondent	Motor Vehicle 3	15,000
16	Respondent	Motor Vehicle 5	25,000
19	Respondent	Motor Vehicle 8	6,000
21	Respondent	Cash	7,000
23	Respondent	Household items	10,000
24	Respondent	Partial property settlement	140,000
Total Assets	$1,769,657
LIABILITIES
Ownership	Description	Value
29	Respondent	Westpac account number …15 (secured against Town K property) (joint with the respondent’s first wife who is indemnified)	726,392
36	Respondent	QQ Company card ending …08 (Respondent now contends this item to be QQ Company card ending …07 - $3,802; QQ Company card account number …01- $11,417, QQ Company Awards account number …09)	19,403
37	Respondent	Commonwealth Bank of Australia account ending …39 (formerly credit cards ending …00 and …12)	30,552
38	Respondent	National Australia Bank credit card …32 (formerly credit cards ending …96 and …01)	24,383
41	Respondent	JJ Finance account number …45	51,098
Total Liabilities	$851,828
SUPERANNUATION
Member	Description	Value
42	Respondent	Signe Super Fund	50,000
Total Superannuation	$50,000
SUMMARY	Value
Assets	1,769,657
Liabilities	851,828
Superannuation	50,000
Net Assets (excluding superannuation)	917,829
Net Assets (including superannuation)	$967,829

The balance in the controlled monies account will be $268,867 (after deduction of the sums required to be paid pursuant to the order made on 16 February 2023).

The net assets of the parties or either of them including what it is agreed they will each retain, the balance of the controlled monies account, and superannuation (other than the balance, if any, in the fund) are $2,952,781.

Considering the various matters in s 90SF(3), including the respective incomes and earning capacities of the parties, the primary care of the child by the applicant, the duration of the relationship, the ongoing child support payable by the respondent, and the respondent’s tax liability and outstanding fees, I consider an adjustment to the applicant of seven percent, i.e. $206,695, to be appropriate.

The net assets of $2,952,781 will be divided in the proportion 67/33 percent in favour of the applicant. The applicant will be entitled to net assets of $1,978,363.27 and the respondent $974,417,73. As the applicant will retain net assets including superannuation of $1,716,085 as set out in the table at [164], the applicant will also retain $262,278.27 from the controlled monies and $6,588.73 will be paid to the respondent from which he will reimburse the applicant $5,550 being one half of the valuation fees and setting down fee (which was agreed). Any interest received on the controlled monies account since the end of the trial should be divided in the same proportion i.e. 67/33 in favour of the applicant.

Miscellaneous

Quarantining funds

During submissions, the applicant proposed that an order be made for $100,000 of the controlled monies account to be quarantined pending assessment of the penalties and costs associated with addressing the issues raised by Mr D in his report dated 1 February 2024. The rationale seemed to be that the fund may be insufficient to meet the penalties and costs. The respondent did not address this proposal. In the absence of evidence justifying the need for the quarantine of the funds, I am not inclined to make such an order.

Distribution of controlled funds other than as ordered on 16 February 2023

The respondent’s proposed order (exhibit 17) included a provision that the controlled monies account be distributed in a way that is contrary to the order made on 16 February 2023. Despite numerous opportunities to seek leave to make an oral application to discharge paragraph 47 of the order made on 16 February 2023, the respondent did not do so. There is therefore no application for me to consider.

Section 121 order

The respondent’s proposed order also seeks the following:

Leave pursuant to s 121 of the [Act] to adduce evidence in these proceedings for other proceedings based on the allegations proffered by [AA Lawyers] as to sexual assault and paedophilia as against the respondent including:
(a) A copy of the judgment delivered by this Court;
(b)The letter from [AA Lawyers] written by […] dated 11 April 2022 making the allegations;
(c)A copy of all correspondence from Moscardo Lawyers to [AA Lawyers] rejecting such allegations above;
(d)A copy of any other correspondence from [AA Lawyers] to Moscardo Lawyers or from Moscardo Lawyers to [AA Lawyers] concerning the maintaining of the above allegations in this proceeding.

Section 121 of the Act restricts the publication of any account of any proceedings in this Court with certain exceptions. Relevantly, s 121 provides as follows:

(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b)a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

(c)       a witness in the proceedings;
commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
…
(3)  Without limiting the generality of subsection   (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if:
(a)       it contains any particulars of:
(i)        the name, title, pseudonym or alias of the person;
(ii)  the address of any premises at which the person resides or works, or the locality in which any such premises are situated;

(iii)       the physical description or the style of dress of the person;
(iv)  any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;
(v) the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;
(vi)  the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or
(vii)  any real or personal property in which the person has an interest or with which the person is otherwise associated;

being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;

…
(9) The preceding provisions of this section do not apply to or in relation to:
(a)the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or

…
(b) the communication of any pleading, transcript of evidence or other document to:
(i) a body that is responsible for disciplining members of the legal profession in a State or Territory; or
(ii) persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or

…
(g) publication of accounts of proceedings, where those accounts have been approved by the court.

While it was apparent during the trial that the respondent took umbrage at certain statements made by the applicant’s previous lawyers which he perceived to be defamatory, I am unaware of what “other proceedings” the respondent may be referring to in his application.

It may be, given the exemptions in s 121(9), that leave is not required pursuant to s 121 but as no submissions were made in support of the respondent’s application, I do not propose to make any order.

I certify that the preceding one hundred and seventy-five (175) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew.

Associate:

Dated: 15 April 2024