Leena & Leena (No 3)
[2025] FedCFamC1F 254
•17 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Leena & Leena (No 3) [2025] FedCFamC1F 254
File number(s): PAC 2225 of 2023 Judgment of: ANDERSON J Date of judgment: 17 April 2025 Catchwords: FAMILY LAW – PARENTING – Where the mother asserts that the father presents a risk to the children – Where the elder child has been diagnosed with an Attention Deficit Hyperactivity Disorder, Autism Spectrum Disorder and a general Anxiety Disorder – Where the younger child has been diagnosed with Autism Spectrum Disorder, a sensory processing disorder, and an attention deficit hyperactivity Disorder – Where the mother asserts that the father is unable to provide the children with structure and routine in his household – Where the mother asserts that the father has failed to accept and is resistant to accepting medical advice and diagnoses for the children – Where the mother asserts that the father has failed to properly administer the children’s medications – Where the mother asserts that the father has an impaired parenting capacity by reason of family violence, alcohol use and mental health issues – Where the Court finds that the father does not present a risk to the children – Where the Court finds that the mother has caused the children psychological harm
FAMILY LAW – PROPERTY – Alteration of property interests – Where parties had a ten year relationship – Where wife asserts that her financial contributions were superior to the financial contributions of the husband – Where the wife has dissipated monies received from a compensation award and a part distribution from her late mother’s estate in the period subsequent to separation – Where the wife asserts that she owes her mother’s estate monies but failed to identify the terms of any loan – Where the wife asserts that the terms of her mother’s estate are the subject of challenge by family members but failed to provide disclosure to support such a conclusion – No matters of principle
Legislation: Family Law Act 1975 (Cth) ss 60CC, 75(2), 79(1), (2), (4) Cases cited: Bevan & Bevan (2013) 279 FLR 1
Biltoft & Biltoft (1995) FLC 92-614
NHC & RCH [2004] FamCA 633
Clauson & Clauson (1995) FLC 92-595
Dickons & Dickons (2012) 50 FamLR 244
Garrett & Garrett (1984) FLC 91-539
Hayne & Hayne (1977) FLC 90-265
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143
In the Marriage of Biltoft (1995) FLC 92-614
Kennon v Kennon (1997) FLC 92-757
Lambert & Jackson [2010] FamCA 357
Leena & Leena [2024] FedCFamC1F 135
Phillips & Phillips (2003) FLC 93-104
Rodgers v Rodgers (No 2) [2016] FamCAFC 104
Roverati and Roverati [2021] FamCAFC 89
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Trevi & Trevi [2018] FamCAFC 173
Wallace & Wallace [2022] FedCFamC1F 536
Wardman & Hudson (1978) FLC 90-466
Waterman & Waterman [2020] FamCA 369
Waters & Jurek (1995) FLC 92-635
Watson & Ling (2013) 49 Fam LR 303
Division: Division 1 First Instance Number of paragraphs: 349 Date of last submission/s: 14 February 2025 Date of hearing: 10-14 February 2025 Place: Parramatta Counsel for the Applicant: Mr Blackah Solicitor for the Applicant: Marsdens Law Group Counsel for the Respondent: Ms Giacomo Solicitor for the Respondent: Soden Legal Counsel for the Independent Children's Lawyer: Mr Blank Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
PAC 2225 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LEENA
Applicant
AND: MR LEENA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUSTICE ANDERSON
DATE OF ORDER:
17 APRIL 2025
THE COURT ORDERS THAT:
PARENTING
Parental Responsibility
1.All previous parenting orders in relation to the children, X born in 2015 and Y born in 2018 (“the children”) be discharged.
2.The parties have equal shared parental responsibility and joint decision-making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) (‘the Act’) affecting the children.
Children’s living arrangements
3.The children live with the mother.
4.The children spend time with the father during school term periods as follows:
(a)As and from the commencement of Term Two, 2025, in each alternate week from the conclusion of school on Friday (or 9.00am if school is not in session) to the commencement of school on Tuesday (or 9.00am if school is not in session);
(b)At such further or other times as agreed between the parties in writing.
5.That during school holiday periods, the children spend time with each of their parents as follows:
(a)During the Term One school holiday period in 2025:
(i)With the father pursuant to the terms of paragraph 4(a) herein; and
(ii)With the mother at all other times;
(b)During the Term Two school holiday period in 2025:
(i)With the father pursuant to the terms of paragraph 4(a) herein save that on one occasion only, the children’s time with the father shall be extended such that in lieu of 9.00am on Tuesday, such time be extended to 5.00pm on the following Wednesday NOTING it is the intention of this order that the rotation provided at paragraph 4(a) herein shall continue in any event; and
(ii)With the mother at all other times;
(c)During the Term Three school holiday period in 2025:
(i)With the father pursuant to the terms of paragraph 4(a) herein save that on one occasion only, the children’s time with the father shall be extended such that in lieu of 9.00am on Tuesday, such time be extended to 5.00pm on the following Thursday NOTING it is the intention of this order that the rotation provided at paragraph 4(a) herein shall continue in any event; and
(ii)With the mother at all other times;
(d)As and from the Christmas school holiday period in 2025/2026 and in each Christmas school holiday period thereafter, the children spend time with each of their parents on a week about basis at times as may be agreed between them in writing or in default of agreement as follows:
(i)With the father for one period of seven consecutive nights commencing on the Friday on which the children would ordinarily be in the care of the father pursuant to the terms of paragraph 4(a) herein and concluding at 5.00pm on the following Friday and in each alternate week thereafter;
(ii)With the mother at all other times save and except as expressly provided by these orders;
(e)As and from the Term One school holiday period in 2026 and in each short-term school holiday period thereafter, the children spend one half of each short school holiday period with each of their parents at times as may be agreed between them in writing or in default of agreement as follows:
(i)With the father for one period of eight consecutive nights commencing at 5.00pm on the Friday on which the children would ordinarily be in the care of the father pursuant to the terms of paragraph 4(a) herein and concluding at 5.00pm on the following Saturday (being eight nights later);
(ii)With the mother at all other times NOTING it is the intention of these orders that the rotation provided at paragraph 4(a) herein shall continue in any event.
Special occasions
6.The children spend time with each of their parents at times as may be agreed between them in writing but in default of agreement as follows:
(a)On the occasion of Christmas:
(i)With the mother in 2025 and in each alternate year thereafter from 3.00pm on Christmas Eve to 3.00pm on Christmas Day;
(ii)With the father in 2025 and in each alternate year thereafter from 3.00pm on Christmas Day to 3.00pm on Boxing Day;
(iii)With the father in 2026 and in each alternate year thereafter from 3.00pm on Christmas Eve to 3.00pm on Christmas Day;
(iv)With the mother in 2026 and in each alternate year thereafter from 3.00pm on Christmas Day to 3.00pm on Boxing Day;
(b)With the mother on the occasion of Mother’s Day from 9.00am to 5.00pm;
(c)With the father on the occasion of Father’s Day from 9.00am to 5.00pm.
(d)On the occasion of each child’s birthday:
(i)If the children are not otherwise in the care of the father then with the father as follows:
A.If a school day from the conclusion of school to 6.30pm;
B.If a non-school day, from 8.00am to 2.00pm;
(ii)If the children are not otherwise in the care of the mother then with the mother as follows:
A.If a school day from the conclusion of school to 6.30pm;
B.If a non-school day, from 8.00am to 2.00pm.
Changeovers
7.That handovers occur at the children’s school if school is in session and otherwise, at a fast food outlet located at F Street, Suburb G in the State of New South Wales.
Telephone communication
8.Each parent shall ensure that he/she facilitates telephone contact between the children and the other parent at any reasonable time that the children express a wish to communicate with the other parent.
Psychiatric review
9.Within fourteen (14) days of the date of these Orders, the parties do all acts and things necessary to make an appointment with Dr H, paediatrician, for the purposes of obtaining a referral to a paediatric psychiatrist in respect of the child, X, for review and to assess the need for psychotropic medication and for this purpose:
(a)Each parent is to attend all appointments with the paediatrician and psychiatrist;
(b)Each parent is to share one half of ‘out of pocket expenses’ after receiving any applicable rebate from Medicare and/or the National Disability Insurance Scheme;
(c)The parties shall provide Dr H and the psychiatrist engaged by them with a copy of the following:
(i)The report prepared by Dr J, specialist psychologist, dated 11 June 2024;
(ii)These parenting orders;
(d)The parties shall comply with the recommendations of the paediatric psychiatrist with respect to X’s ongoing treatment including recommendations made with respect to the provision of or cessation of medication.
Medical Issues and administration of medication
10.Each parent shall comply with all recommendations made by the children’s treating medical practitioners with respect to the provision of medication to the children (or either of them).
11.Within twenty-four (24) hours of a parent making an appointment for the children (or either of them) with a medical practitioner or allied health care professional, the relevant parent is to provide details of that appointment to the other parent in writing with such notice to include the date, time and location of the said appointment and thereafter, each parent is at liberty to attend the appointment subject to the discretion of the treating professional at all times.
12.Each parent shall advise the other parent as soon as practicable of any major medical issue affecting the children (or either of them) and each parent shall keep the other parent informed of any treatment or medication prescribed for the children (or either of them).
Extracurricular activities
13.Each parent shall facilitate the attendance of the children (or either of them) at all extracurricular activities in which they are enrolled whilst the children are in his/her care NOTING THAT the children are currently enrolled to attend an extracurricular activity.
14.Each parent is restrained, and injunction is granted restraining each of them from enrolling the children (or either of them) in any other extracurricular activities without the written consent of the other parent.
Authorities, Provision of Information and Communication between the parties
15.Each parent is:
(a)Permitted to communicate directly with the children’s school/s, sporting bodies, and medical practitioners to obtain any information and/or documentation about the children’s progress and this Order shall constitute sufficient authority for such communication;
(b)Permitted to attend at parent-teacher interviews for each of the children provided that each parent makes his/her own separate appointment;
(c)At liberty to attend at events to which parents are ordinarily invited such events to include but not be limited to assemblies, sports days, concerts and end of year presentation nights.
Communication and Notification of Details
16.The mother and the father communicate as follows in relation to the children:
(a)By telephone in the case of an emergency; and
(b)By the “Our Family Wizard App” in relation to any other matters relating to the parenting arrangements prescribed by these Orders or the health, welfare and development of the children.
17.The mother and the father keep each other advised of his/her residential address and telephone number and advise the other parent of any change to these details within 48 hours of such change.
Passports and overseas travel
18.Each parent do all acts and things and sign all documents necessary to obtain Australian passports for the children within fourteen (14) days of being requested to do so by the other parent with the costs of obtaining or renewing the children’s passport(s) to be at the joint and equal expense of the parties.
19.On receipt of the children’s passports, the parties shall cause the same to be delivered to the Parramatta Registry of the Federal Circuit and Family Court of Australia with such passport not to be released to either parent save and except on proof by the travelling parent of compliance with the terms of Order 20 herein.
20.Each parent is permitted to remove the children from the Commonwealth of Australia for up to twenty-one (21) days per annum or for any alternate duration as may be agreed between the parties in writing on the following conditions:
(a)The travelling parent shall provide the other parent no less than forty-two (42) days’ notice of the proposed travel;
(b)The travelling parent shall provide to the other parent an itinerary, which includes particulars of airline flights and accommodation whilst overseas;
(c)The travelling parent shall provide to the other parent a contact telephone number for the purposes of communication with the children during the period of any travel.
21.The travelling parent shall return the children’s passports to the Parramatta Registry of the Federal Circuit and Family Court of Australia within fourteen (14) days of the children’s return to the Commonwealth of Australia.
Restraints
22.The parties be restrained and an injunction is hereby granted restraining each of them from:
(a)Facilitating the attendance of the children or either of them on Ms E;
(b)Denigrating the other parent to or in the presence or hearing of the children or allowing any third party to do so;
(c)Denigrating any member of the other parent’s family to or in the presence or hearing of the children or allowing any third party to do so; and
(d)Permitting the children to access or read any documents filed in these proceedings or any correspondence or reports prepared in relation to these proceedings.
Discharge of Independent Children’s Lawyer
23.The appointment of the Independent Children’s Lawyer be discharged.
Other
24.Pursuant to s 62B of the Family Law Act 1975 (Cth) (as amended), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
25.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth) (as amended), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
26.All other applications pursuant to Part VII of the Family Law Act 1975 (Cth) (as amended) are dismissed.
FINANCIAL APPLICATIONS
In full and final settlement of all claims for settlement of matrimonial property:
27.Within forty-two (42) days of the date of these Orders, the Applicant Wife (“the wife”) do pay to the Respondent Husband (“the husband”) a sum of $659,136.
28.Within forty-two (42) days of the date of these Orders, the wife do pay to the husband a sum of $5,500 being monies owed to the husband by the wife on account of the wife’s share of fees payable with respect to the preparation of a report by Dr J, specialist psychologist.
29.That contemporaneously with Order 27 herein, the husband do all acts and things and sign all documents as may be necessary to transfer to the wife all his right, title and interest in and to the property known as and situated at L Street, Suburb K in the State of New South Wales being the whole of the land contained within Certificate of Title Folio Identifier …/… (“the Suburb K property”).
30.That simultaneously with the transfer of the Suburb K property referred to at Order 29 herein, the wife shall at her own expense do all acts and things and sign all documents as may be necessary to refinance the mortgage secured over the Suburb K property into her sole name provided that the husband sign the appropriate discharge authorities within seven (7) days of the same being presented to him for his signature.
31.That contemporaneously with Order 27 herein, the husband do all acts and things and sign all documents as may be necessary to transfer to the wife all his right, title and interest in and to the property known as and situated at M Street, Town O in the State of New South Wales being the whole of the land contained within Certificate of Title Folio Identifier …/… (“the Town O property”).
32.That simultaneously with the transfer of the Town O property referred to at Order 31 herein, the wife shall at her own expense do all acts and things and sign all documents as may be necessary to refinance the mortgage secured over the Town O property into her sole name provided that the husband sign the appropriate discharge authorities within seven (7) days of the same being presented to him for his signature.
33.In the event that the wife fails to pay the sums referred to at Order 27 and/or Order 28 herein, and should such default continue for a period of thirty days or more, then:
(a)The wife shall pay interest on such sum as may be outstanding at the rate prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 from the date that payment of the sum was due until payment is made in full; and
(b)The Suburb K property shall be placed on the market for sale.
34.It is a condition of Order 33(b) herein that:
(a)The parties shall do all things necessary to appoint an agent to list for sale and sell the Suburb K property and failing such agreement as to the identity of the agent within 45 days of the default referred to at Order 33 herein, the parties shall appoint such agent as is nominated by the President of the Real Estate Institute of New South Wales upon the written request of either party;
(b)The parties shall do all acts and things necessary to appoint a solicitor or licensed conveyancers to act on the sale of the Suburb K property by agreement and failing such agreement within 45 days of the default referred to at Order 33 herein, the parties shall appoint such solicitor or conveyancer as is nominated by the President of the Law Society of New South Wales upon the written request of either party;
(c)The sale price at which the Suburb K property be listed be mutually agreed upon by the parties, or in the absence of agreement, as nominated by the agent appointed pursuant to these orders;
(d)The parties cooperate in every way with the agent appointed pursuant to these orders including but not limited to:
(i)Making the key available to the agents;
(ii)Allowing inspection of the Suburb K property at all reasonable times requested by the agent;
(iii)Ensuring the Suburb K property including its grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers;
(e)Neither party may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the Suburb K property or to any commission;
(f)Pending the sale of the Suburb K property the wife shall be solely responsible for maintaining the outgoings of the property including all mortgage payments.
35.In the event that the Suburb K property is not sold by public auction within three (3) months of the date of default, the parties are to do all acts and things and sign all documents necessary to relist the Suburb K property for sale by private treaty or public auction every six weeks on the same terms and conditions referred to at Order 34 herein save that, unless otherwise agreed, the sale or reserve price shall be reduced by five (5) percent at each auction until the property is sold.
36.On settlement of the sale of the Suburb K property, the proceeds of sale shall be applied in the following manner and priority:
(a)In discharge of the mortgage secured against the Suburb K property;
(b)All costs and expenses of sale including legal costs and disbursements, agents’ commission and auction expenses;
(c)The amounts required to pay all municipal rates, water rates or land tax due in respect of the property;
(d)Such sum as is necessary to satisfy the monies owing to the husband pursuant to Order 27 and Order 28 herein or such sum as is outstanding together with interest calculated pursuant to the terms of Order 33(a) herein;
(e)A sum of $5,500 to the husband being monies owed to the husband by the wife on account of the wife’s share of fees payable with respect to the preparation of a report by Dr J, child psychologist and child psychotherapist;
(f)The balance then remaining to the wife.
37.In the event that the net proceeds of sale are insufficient to satisfy the monies owing to the husband pursuant to Order 27 herein and/or Order 28 herein or such sum as is outstanding together with interest calculated pursuant to the terms of Order 33(a) herein and/or if the wife fails to comply with the terms of Order 33(b)herein then and in that event, the Town O property be placed on the market for sale on the same terms and conditions as Orders 33 and 34 herein and the net proceeds of sale shall be distributed in the same priority and manner as described at Order 36 herein.
38.The husband do all things and sign all documents as may be necessary to transfer ownership at law and in equity in respect of the following accounts to the wife:
(a)ANZ Account ending #46;
(b)P Investment Member Number ...
39.The wife is declared to be the sole owner in equity and at law to the exclusion of the husband to the following:
(a)Any funds standing to her credit in any account held by her with any financial institution;
(b)Motor Vehicle 1 Registration Number …;
(c)Motor Vehicle 2;
(d)P Investment;
(e)Any superannuation fund in which the wife has an interest;
(f)Any and all life insurance policies in the wife’s name;
(g)All and any annual leave or long service leave or other employment benefits or entitlements;
(h)Her interest in the Estate of the late Ms Q.
40.The husband is declared to be the sole owner in equity and at law to the exclusion of the wife to the following:
(a)Any funds standing to his credit in any account held by him with any financial institution;
(b)Leena Pty Ltd;
(c)Any superannuation fund in which the husband has an interest;
(d)Any and all life insurance policies in the husband’s name;
(e)All and any annual leave or long service leave or other employment benefits or entitlements.
41.Notwithstanding paragraph 29 above, the husband be permitted to attend at the Suburb K property on a date and at a time to be agreed between the parties or failing agreement on the second Saturday following the date of these Orders between 8.00am and 5.00pm to collect the following:
(a)The husband’s sports Jersey;
(b)All racking in the garage;
(c)Waste oil tank;
(d)The husband’s novelty item;
(e)The husband’s fishing rod;
(f)The husband’s box of magazines located in the garage; and
(g)The husband’s golf clubs.
42.The wife do indemnify and keep the husband forever indemnified in respect of any monies owing by the parties to Services Australia.
43.Unless otherwise provided:
(a)Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder and superannuation entitlements are deemed to be in the possession of the superannuant;
(b)Each party shall be solely liable for and shall indemnify the others against any and all debts attaching or relating to the property in their respective possession, and any debts in their respective sole names, including any individual liability for tax arising out of the sale by the parties of property pursuant to these orders.
44.In the event of any party refusing or neglecting to sign within seven (7) days of a written request to do so any document necessary to implement the terms of these orders a Registrar of Federal Circuit and Family Court of Australia is empowered to execute such documents on behalf of the parties pursuant to s 106A of the Family Law Act (Cth).
45.All outstanding applications are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Leena & Leena (No 3) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE ANDERSON:
These are proceedings between parties pursuant to Part VII and Part VIII of the Family Law Act 1975 (Cth) (“the Act”) following the breakdown of their marriage in 2022. Their relationship was one of ten years duration.
The Part VII proceedings involve the parties’ two female children. The eldest child is aged nine years, and the youngest child is aged six years.
The Part VIII proceedings relate to the division of a modest pool of assets.
This proceeding has an extraordinary history. The wife commenced proceedings in Division 2 of this Court on 5 May 2023 being five months after separation. Since that time:
(a)The parties have filed 178 documents;
(b)The competing applications have been the subject of 26 orders;
(c)The wife and the husband have between them filed 29 subpoenas;
(d)The affidavits of the parties alone, which were filed for the purposes of trial comprised 1,300 pages and the tender bundles were in excess of 2,000 pages;
(e)The wife’s legal fees and disbursements (both paid and unpaid) have accrued to just under $300,000 although the proceedings have been on foot for less than two years.[1] The husband’s legal fees and disbursements (both paid and unpaid) are almost in excess of $400,000. It follows that the proceedings have been financially ruinous for the parties.
[1] Costs Notice filed 13 February 2025.
On 17 August 2023, and with the consent of each party and the Independent Children’s Lawyer, the Court made an interim order to the following effect:
(a)That the parties have equal shared parental responsibility for the children;
(b)That the children live with the wife; and
(c)That the children spend time with the husband from the conclusion of school on Friday to the commencement of school on Monday in each alternate week.
It was the wife’s oral evidence that she was never satisfied with the terms of the August 2023 Orders and placed blame on her former solicitor for negotiating terms which were unsatisfactory to her. Despite the wife’s discomfort with the interim orders, she has never filed an application to discharge or vary the same.
Against this background, the parenting proceedings involve a dispute about whether:
(a)An order ought to be made allocating sole parental responsibility and sole decision-making authority to the wife;
(b)The children’s time with the husband ought to be reduced such that the children spend time with the husband on alternate Sundays from 9.00 am to 5.00 pm and on one afternoon per week subject to the children’s participation in extracurricular activities. The wife says that such an outcome will “minimise the risk of future harm to [the children]”;[2]
(c)The children’s time with the husband ought to be increased such that the children spend five nights per fortnight with the husband during school term in addition to half of all school holiday periods.
[2] Outline of Case Document filed 17 January 2025, Part C.
For her part, the Independent Children’s Lawyer and her counsel have since the commencement of the trial promoted orders that the children spend four nights per fortnight with their father in addition to half of all school holiday periods.
With respect to the competing financial applications, the issues that need to be determined are:
(a)An assessment of the parties’ respective contributions pursuant to s 79(4)(a), (b) and (c) of the Act in relation to non-superannuation and superannuation assets; and
(b)Whether an adjustment in favour of either party pursuant to s 79(4)(e) of the Act is warranted on account of s 75(2) factors.
The wife’s counsel submits that on account of contributions, the Court ought to make an order to the effect that the parties’ non-superannuation and superannuation assets be divided on a 70:30 basis in her favour on account of contributions made during the relationship and subsequently. The wife does not promote an adjustment in favour of either party on account of their prospective needs.
In contrast, the husband’s counsel invites me to make an order to the effect that the husband receive sixty percent of the non-superannuation and superannuation assets. He arrives at this submission on account of the following contentions:
(a)That the contributions of the parties ought to be determined as equal;
(b)That there ought to be a ten percent adjustment in his favour on account of prospective needs in circumstances where the wife is expecting to receive a substantial inheritance.[3]
[3] Husband’s Outline of Case Document, page 7 of 27.
By his Response to Initiating Application the husband also sought a departure order pursuant to Division 4 of the Child Support (Assessment) Act 1989 (Cth). That application was withdrawn at the commencement of trial.
In circumstances where each party seeks an order under s 79(1) of the Act for an alteration of interests in property, albeit to different effect, it is implicit that they concede it is just and equitable for the Court to do so, as required by s 79(2) of the Act. I agree that it is just and equitable for the Court to make an order under s 79 of the Act. Particularly, and as will become clear, there is not and will not be the common use of property by the husband and wife. Further, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the severance of the marital relationship.[4] The matters identified by the plurality of the High Court in Stanford v Stanford (2012) 247 CLR 108 at [42] apply in this case.
[4] Stanford v Stanford (2012) 247 CLR 108 at [42].
For the reasons identified below, I have determined that it is appropriate to divide the non-superannuation and superannuation assets on a 57:43 basis in favour of the husband on account of the significant monies, which the wife will receive from the estate of her late mother.
BACKGROUND
The wife is aged 40 years. The husband is aged 37 years. The parties commenced a relationship in 2012 and began living together in 2013.[5] Thereafter, the parties married in 2016 and separated on a final basis on 24 September 2022.[6] The parties lived separately under the same roof until the husband moved out in late 2022.[7]
[5] Wife’s affidavit filed 6 December 2024, paragraph 6; Husband’s affidavit filed 20 December 2024, paragraph 4.
[6] Wife’s affidavit filed 6 December 2024, paragraph 5.
[7] Husband’s affidavit filed 20 December 2024, paragraph 32.
Regrettably, the parties’ relationship was marked by a series of distressing events. The parties undertook multiple rounds of “IVF treatment”.[8] Regrettably, some embryos did not survive, and the wife had a number of miscarriages.[9] The parties also found themselves in dispute about how to dispose of succumbed embryos and this dispute was the subject of a judgment delivered by the Honourable Justice Riethmuller on 8 March 2024.[10]
[8] Wife’s affidavit filed 6 December 2024, paragraph 193.
[9] Husband’s affidavit filed 20 December 2024, paragraph 13.
[10] Leena & Leena [2024] FedCFamC1F 135.
Fortunately, and despite these difficulties, the parties have two female children who are the subject of these proceedings. Subsequent to the parties’ separation, the children lived primarily with the wife.
The elder child has been diagnosed with an Attention Deficit Hyperactivity Disorder, autism spectrum disorder and a general anxiety disorder. The wife says that consequently, the elder child “struggles with concentration and staying on tasks”.[11] She also says that the elder child “needs and requires routine and consistency as change or disruption to normal routine can cause dysregulation”.[12]
[11] Wife’s affidavit filed 6 December 2024, paragraph 44(a).
[12] Wife’s affidavit filed 6 December 2024, paragraph 44(a).
The younger child has been diagnosed with autism spectrum disorder, a sensory processing disorder, attention deficit hyperactivity disorder and eczema.[13] As a consequence of her diagnosis with a sensory processing disorder, the wife says that the younger child is “sensitive to certain sounds and her dislike of certain materials on her body and ultimately resulting in her crying and becoming distressed”.[14]
[13] Wife’s affidavit filed 6 December 2024, paragraph 44(b).
[14] Wife’s affidavit filed 6 December 2024, paragraph 44(b).
Subsequent to separation, and in December 2022, the parties attended a mediation. The parties agreed for the husband to spend unsupervised time with the children including on an overnight basis.[15] The husband complained that despite this agreement, the wife would cut short his time with the children on account of commitments with third parties and/or extracurricular activities.[16] Regrettably, in late February 2023, the parties found themselves in dispute as a consequence of the husband’s refusal to return the children to the mother so that the children might participate in sporting lessons. The husband says that the wife unilaterally arranged those lessons in his time with the children without consultation or his consent.[17] The wife’s solicitors then went into print and through her solicitors, the wife insisted that the children’s time with the father be supervised.[18] I will discuss this topic in further detail below. In any event, and after the wife insisted that the children’s time with the husband be supervised, the children did not spend any time with the husband for a period in excess of five months.
[15] Husband’s affidavit filed 20 December 2024, paragraph 39.
[16] Husband’s affidavit filed 20 December 2024, paragraphs 40 and 41.
[17] Husband’s affidavit filed 20 December 2024, paragraph 43.
[18] Husband’s affidavit filed 20 December 2024, paragraph 44.
On 17 August 2023, and with the consent of the parties and the Independent Children’s Lawyer, the Court made an Order to the effect that the children live with the wife and spend three nights per fortnight with their father. As discussed above, the wife’s oral evidence was that she was never satisfied with this arrangement. It is notable that notwithstanding the concerns expressed by her solicitor’s letter (supra), there was no requirement identified in the Orders of 17 August 2023 for the children’s time with their father to be supervised.
The husband has re-partnered and has been in a relationship with his new partner for a little over two years. They live together. His partner has a male child who is now aged ten years. That child lives with his biological father for about six nights per fortnight.[19] The husband’s partner provided oral and written evidence. The wife has also re-partnered. She has been in a relationship with her partner for a period of about seven months and she and her partner are expecting the birth of a child in the near future. The wife’s new partner did not provide any evidence nor was he called as a witness in these proceedings.
[19] Husband’s affidavit filed 20 December 2024, paragraph 7.
With respect to financial issues, the parties commenced cohabitation in a property owned by the husband at Suburb V in the State of New South Wales.[20] The wife says that she made various contributions to the Suburb V property in the form of various improvements[21]. Having regard to the improvements referred to by the wife, I do not consider that the contributions were so significant that an adjustment in favour of the wife is warranted. In any event, and notwithstanding any contribution made by the wife, it is the uncontested evidence of the husband that he was solely responsible for payment of the mortgage secured against the property together with statutory outgoings.[22]
[20] Wife’s affidavit filed 6 December 2024, paragraph 176.
[21] Wife’s affidavit filed 6 December 2024, paragraph 177.
[22] Husband’s affidavit filed 20 December 2024, paragraph 314.
At the time of cohabitation, the wife owned a property at Suburb S, which is also in New South Wales. Notwithstanding this, the wife at the time of cohabitation was the subject of a debt agreement pursuant to Part IX of the Bankruptcy Act 1966 (Cth).
Although neither party produced any evidence as to the quantum of his/her initial contributions at the time of trial, the parties’ written evidence identifies that:
(a)In August 2015, the wife sold the Suburb S property and received around $294,700 by way of sale proceeds;[23]
(b)In October 2016, the husband sold the Suburb V property and received a sum of around $283,200 in addition to a sum of $54,163 received from the deposit paid by the purchasers.[24]
[23] Wife’s affidavit filed 6 December 2024, paragraph 180.
[24] Husband’s affidavit filed 20 December 2024, paragraphs 329 and 330.
Each party asserts that he/she had chattels, superannuation and motor vehicles in addition to real property at the time of cohabitation but absent any retrospective valuation of those items, I am unable to bring them to account.
During their relationship, the wife worked on a full-time basis save and except when she took maternity leave following the birth of each child.[25] For his part, the husband established, with the assistance of the wife, his own business in 2016.[26] Whilst that business was successful, it was my impression that the husband became resentful of the number of hours worked by him suggesting during the course of his oral evidence that whatever he earned, it would never be enough for the wife. In the three years prior to commencing his own business, the husband worked on a full-time basis as a tradesman and for a short time, in a manual role.[27]
[25] Wife’s affidavit filed 6 December 2024, paragraph 8.
[26] Wife’s affidavit filed 6 December 2024, paragraph 9.
[27] Wife’s affidavit filed 6 December 2024, paragraph 184.
In March 2016, the parties purchased a land and house package at Suburb K.[28] The parties paid a deposit in equal amounts and the balance of the purchase price was funded by way of a mortgage.[29] The parties moved into that property in about early 2017. In February 2018, the parties purchased an investment property at Town O. That property was purchased by refinancing the mortgage secured over the Suburb K property.[30] The Town O property was rented to third parties from about 2019.
[28] Wife’s affidavit filed 6 December 2024, paragraph 191.
[29] Wife’s affidavit filed 6 December 2024, paragraph 191.
[30] Wife’s affidavit filed 6 December 2024, paragraph 195.
The parties had several windfalls during the relationship and subsequently. Particularly:
(a)In 2022, the husband received an inheritance of $10,000. Those monies were applied to the parties’ day to day expenses.[31] In the same year, the wife’s mother gifted her a sum of $50,000 to assist with expenses relating to the household and to the children;[32]
(b)In September 2024, the wife received what she describes as a “part-distribution of my inheritance from my mother’s estate in a sum of $352,280”. The wife says that to the best of her knowledge, her mother’s estate is yet to be finalised and she asserts that it is the subject of contest by her family members.[33] The monies received to date by the wife have been expended on repairs to the Suburb K property and on what the wife describes as “improvement of the children’s lives”.[34] She also says that she used the monies on:
(i)mortgage payments[35];
(ii)costs associated with the funeral of a friend’s relative;[36]
(iii)in vitro fertilisation treatments;[37]
(iv)a holiday to Tasmania and expenses associated with a planned vacation to the United States of America together with the children;[38] and
(v)Christmas presents for the children.[39]
[31] Wife’s affidavit filed 6 December 2024, paragraph 203.
[32] Wife’s affidavit filed 6 December 2024, paragraph 204.
[33] Wife’s affidavit filed 6 December 2024, paragraph 210.
[34] Wife’s affidavit filed 6 December 2024, paragraph 211.
[35] Wife’s affidavit filed 6 December 2024, paragraphs 215 and 216.
[36] Wife’s affidavit filed 6 December 2024, paragraph 216.
[37] Wife’s affidavit filed 6 December 2024, paragraph 216.
[38] Wife’s affidavit filed 6 December 2024, paragraph 216.
[39] Wife’s affidavit filed 6 December 2024, paragraph 216.
Additionally, in April 2024, the wife says that she received a sum of $290,600 as a result of a claim for medical negligence arising out of surgeries.[40] The husband disputes the amount and says that the true figure is $200,846 with the monies diminished on account of legal costs and disbursements with respect to the medical negligence claim.[41]
[40] Wife’s affidavit filed 6 December 2024, paragraph 209.
[41] Husband’s affidavit filed 20 December 2024, paragraph 377.
Those monies have now been expended on legal fees for the medical negligence claim and a loan, which the wife says she obtained to fund the family law proceedings.[42] Whatever the scenario, and in respect of the compensation monies, the husband calculated that at least $94,880 was spent on legal fees and disbursements in respect of these proceedings and the balance was totally expended by about June 2024.[43] The husband was not challenged with respect to his evidence and the wife confirmed in her oral evidence that at least “some” of the compensation monies were applied towards legal fees.
[42] Wife’s affidavit filed 6 December 2024, paragraph 209.
[43] Husband’s affidavit filed 20 December 2024, paragraph 378(d).
Subsequent to separation, the husband has continued operating the business. The wife has continued to work at a government department. She anticipates that she will take maternity leave from 2025[44] and be absent “from her employment “for several months following the birth of [her] third child”.[45]
[44] Wife’s affidavit filed 6 December 2024, paragraph 236.
[45] Wife’s affidavit filed 6 December 2024, paragraph 236.
It is against this background that the competing parenting and financial applications fall for determination.
DOCUMENTS RELIED UPON
The wife relied on the following documents:
(a)A Further Amended Initiating Application filed on 6 December 2024;
(b)The wife’s Affidavit filed on 6 December 2024;
(c)A Financial Statement filed on 6 December 2024;
(d)An Affidavit in the name of the children’s treating “autism specialist” filed on 6 December 2024;
(e)An Affidavit in the name of the children’s treating paediatrician filed on 6 December 2024. With the consent of the husband and the Independent Children’s Lawyer, that Affidavit was admitted into evidence absent any cross-examination of the paediatrician;
(f)An Affidavit in the name of a shadow expert appointed by the wife to prepare valuations in respect of three motor vehicles. The shadow expert was not called to give evidence and ultimately, the parties were able to agree the value of the motor vehicles the subject of the single expert’s report dated 3 January 2025; and
(g)Tendered documents.[46]
[46] W1 toW27 and documents referred to by the husband in MFI 3.
The husband relied on the following documents:
(a)An Amended Response to Initiating Application filed on 26 November 2024;
(b)The husband’s Affidavit filed on 20 December 2024;
(c)An Affidavit in the name of the husband’s partner filed on 20 December 2024; and
(d)Tendered Documents.[47]
[47] Exhibits H1 to H49 and other documents referred to in MFI 3.
The Independent Children’s Lawyer relied on the report of a single expert, namely, a report prepared by a clinical psychologist and child psychotherapist dated 11 June 2024. The Independent Children’s Lawyer also relied on some tendered documents.[48]
[48] Referred to in MFI 2.
The parties filed a Joint Balance Sheet filed in accordance with an Order made by the Honourable Justice Riethmuller on 16 September 2024. The Balance Sheet provided me with no assistance whatsoever and it was not until the sixth day of trial that I was provided with a settled document.[49]
[49] Exhibit W28.
At the commencement of the trial, I advised counsel that I would exclude all annexures to each party’s Affidavit having regard to r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). I advised counsel that annexures to affidavits and documents referred to in tender bundles would not be considered by me until the relevance and probative value of each document was established during evidence-in-chief and/or cross-examination of the parties. My ruling was in part ignored by counsel and accordingly, I was provided with a list of documents by each counsel, which were marked for identification and referred to in the footnotes of this judgment.
COMPETING PROPOSALS FOR PARENTING ORDERS
For the purposes of my discussion about the competing parenting applications, I will refer to the parties as the mother and the father.
The mother, by her Outline of Case Document, asserts that “there are risk issues relating to the father that adversely impact upon the children”.[50] Having regard to this asserted risk, the mother seeks an order that the children’s time with the father be reduced such that the children spend time with the father on alternate Sundays from 9.00 am to 5.00 pm and on one afternoon per week subject to the children’s participation in extracurricular activities. It is the mother’s opinion as expressed by her counsel that her proposed orders will “minimise the risk of future harm to [the children]”.[51] On the mother’s proposal, the children will never spend more than five daytime periods with the father during short term school holidays or fifteen daytime periods with the father during Christmas school holiday periods.
[50] Outline of Case Document filed 17 January 2025, Part C.
[51] Outline of Case Document filed 17 January 2025, Part C.
The mother also sought a range of other orders including:
(a)An order for sole parental responsibility and sole decision-making authority in relation to major long-term issues concerning the children;
(b)Orders regulating communication between the children and each parent;
(c)Orders regulating communication between the parties themselves;
(d)Orders for changeovers. Specifically, the mother proposed that handovers, which do not occur at school occur at a police station;
(e)Injunctive orders restraining the father from attending any appointments between the children and any medical practitioner or other health professional;
(f)An order requiring the father to forfeit time with the children in the event that he cannot personally care for the children as well as an injunctive order restraining the father from leaving the children in the care of any third party;
(g)Orders regulating the attendance of the children at extracurricular activities;
(h)An order requiring the father to administer medications prescribed for the children by their treating medical practitioners;
(i)Orders requiring the father to undertake a parenting course and an additional course related to parenting children with an autism spectrum disorder and/or an attention deficit hyperactivity disorder;
(j)An order requiring the father to comply with directions made by his medical practitioner in relation to “his mental health issues” and/or attention deficit hyperactivity disorder; and
(k)Orders regulating overseas travel.
In contrast, the father sought orders in the following terms:
(a)An order that the parties have equal shared parental responsibility for the children and joint decision-making responsibility;
(b)An order that the children spend time with him for five nights per fortnight;
(c)An order that the children spend half of all school holiday periods with him.
In a manner similar to the mother, the husband sought a range of ancillary orders, which I discuss below.
For her part, the Independent Children’s Lawyer promoted orders in the following terms:[52]
(a)An order for the parties to have equal shared parental responsibility for the children;
(b)An order that the children live with the mother;
(c)An order that the children spend four nights per fortnight with their father as well as one half of each school holiday period (albeit the Independent Children’s Lawyer suggested that such arrangements only be implemented after a period of gradually increased time between the children and their father).
CREDIT AND OBSERVATIONS OF THE MOTHER AND THE FATHER
[52] MFI 1.
Evidence of the mother
The mother was cross-examined by the father’s counsel in a very polite, considered and calm manner. Despite the professional and calm way in which the father’s counsel cross-examined the mother, it was my observation from the commencement of the hearing that the mother was combative and defensive. It was also my observation that the mother was dogmatic with respect to the opinions held by her and further, the mother was only prepared to accept her version of events with respect to differences in the parties’ written and oral evidence. Counsel for the Independent Children’s Lawyer at one juncture during his cross-examination of the mother, described her as “arrogant”. Whilst the mother may have considered this criticism to be unfair and unpleasant, it was equally my impression that the mother’s evidence was characterised by a conceited assertiveness and dogmatism.
Having listened to the mother’s evidence over an extended period, I suggested that the father could never hold a candle to her parenting of the children. I explained to the mother that it is not the purpose of the Act nor the Court to remedy every imperfection, which the mother has identified with respect to the father’s parenting of the children. Instead, I explained that when determining the children’s best interests, I must consider arrangements which will promote the children’s safety including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm. The mother at one stage suggested that neither I nor the Independent Children’s Lawyer understood the difficulties, which she says she experienced as a result of the father’s conduct. This perception no doubt gave rise to the mother making a recusal application, which I heard and determined on 11 February 2025.[53]
[53] Leena & Leena (No 2) [2025] FedCFamC1F 97.
Whatever the scenario, the mother took every opportunity during her oral evidence to criticise the father and his parenting capacity. On occasion, the mother took those opportunities even when her commentary about the father was entirely irrelevant to the question she was being asked. I agree with the submission made by the father’s counsel that the mother’s behaviour could only lead a fair-minded observer to one conclusion. That is, the mother was either unable or unwilling to make any concession, which might cause the father to be viewed in a “positive light” because such a concession would be antithetical to the outcome, which the mother desired to achieve – namely, a significant reduction in the children’s time with the father such that they spend one day per fortnight with him only.
Evidence of the father
The father also presented as combative and defensive. However, it was my impression that the father presented in this manner in circumstances where he was displeased with the criticisms levelled at him by the mother and annoyed that the parties were engaged in stressful litigation in this Court.
At one juncture during his cross-examination by the mother’s counsel, the father simply “shut down” and declined to answer any question put to him in a sensible manner. At that time, the father answered every question with “I don’t know”. Rather than being evasive, it was my impression that the father is simply worn down by this litigation and incensed that his parenting of the children was being so closely scrutinised by the Court and by the mother. Having listened to the parties’ evidence, my impression is that the father’s parenting of the children will never be good enough by reference to the standards set by the mother. Whilst that might be so, the task, which falls to me pursuant to the terms of Part VII of the Act, is to consider the children’s best interests having regard to the criteria referred to in the Act as opposed to the mother’s subjective standard.
PARENTING ISSUES TO BE DETERMINED
The mother identified the following risk factors by way of her Outline of Case Document:
(a)Conflict between the father and the elder child;
(b)The inability of the parties to provide structure and routine “that is consistent in both of their homes as recommended by the children’s treating medical practitioners”;
(c)The father’s “failure to accept and resistance to accepting medical advice and diagnoses for the children”;
(d)The father’s “failure to properly administer the children’s medications during their time with him” and failure to ensure that the children eat lactose free foods;
(e)The father’s “impaired parenting capacity by reason of family violence, alcohol use and mental health issues”; and
(f)Denigration of the mother by the father.[54]
[54] Outline of Case Document filed 17 January 2025, Part C.
The father identifies that in the post-separation period, the mother has:
(a)Restricted his time with the children;
(b)Made unilateral decisions for the children without consulting him or obtaining his consent;
(c)Been overly critical of his care of the children;
(d)Denigrated the father and/or criticised his parenting of the children to educational and health service providers;
(e)Restricted the father’s ability to engage with the children’s treating medical practitioners and other health professionals.[55]
[55] Husband’s Outline of Case Document filed 17 January 2025, pages 2 and 3 of 27.
I will discuss the father’s contentions under the heading “Analysis of the mother’s behaviour”. At first instance, however, I will consider each of the mother’s contentions as advanced by her counsel’s Outline of Case document.
Does the father represent a risk to the children on account of conflict between the father and the elder child?
The principal ground relied upon by the mother to support a conclusion that there is conflict between the elder child and the father relate to events, which occurred in September 2024. With respect to the events in September 2024, the mother in her written evidence says as follows:
To the best of my knowledge and understanding, an argument occurred between [the father and the elder child] which resulted in [the elder child] fleeing [the father’s] home and running around the block. To the best of my knowledge, [the elder child] was running away, had no shoes on which caused the neighbours concerns. I understand that it was a neighbour who had reported a suspected kidnapping to the police. [The father] was apprehended by […] policemen and […] police cars as he was heading home with [the elder child].[56]
[56] Mother’s affidavit filed 6 December 2024, paragraph 110.
The father’s written evidence is in less emotive terms. He says that on an evening in September 2024, the children had been watching a movie when they began arguing about a make-up case, which they had received as a gift from a paternal family member. The elder child did not wish to share the make-up case with her sister, and the father says that after telling the elder child to go to “time out”, he tried to grab the make-up bag from her. The father says that when the elder child refused to give the make-up bag to him, he threatened to take the elder child back to the mother’s residence. The father was criticised on cross-examination by the mother’s counsel for making such a threat. I agree that the father ought not have done so. Thereafter, the father says that the following occurred:
I started walking to the [motor vehicle] and realised I forgot the keys inside. It was not my intention to take her home, I planned to take her to the petrol station to get a drink and calm down. I went back inside to get the keys whilst [the elder child] stood at the [motor vehicle] waiting to get in. By the time I got the keys, [the elder child] had walked two houses up. I got in the [motor vehicle] and drove up to her. She turned around and started walking in the other direction. I stopped the [motor vehicle] and got out. At this point, [the elder child] started running back towards the house. I had to run a few paces to catch her. When I caught up to her, I picked her up and put her in the [motor vehicle].[57]
[57] Father’s affidavit filed 20 December 2024, paragraph 61.
I suspect it was this event, which caused a neighbour to contact police. In any event, the father says that he took the elder child to a service station where they shared a cold drink and chips “and talked”. On calming down, the father says that he started driving back towards his house at which time he was surrounded by police cars. The police had acted on an assumption that a kidnapping had occurred but on learning of the father’s identity, the attending officers agreed that the ordeal was based on a complete misunderstanding.[58]
[58] Father’s affidavit filed 20 December 2024, paragraph 62.
Despite lengthy cross-examination of the father on this topic, I reject any suggestion by the mother that he was responsible for the attendance of police cars on the evening in question. Further, the criticism of the father ignores the following:
(a)The mother in Term One, 2024 expressed concern to school staff about the elder child having run on to the road whilst at school and expressed concern about the perimeter fence of the school.[59] The mother conceded in her oral evidence that the elder child ran away from after school hours care in February 2024;
(b)In February 2024, the elder child’s treating paediatrician advised her general practitioner as follows:
[The mother] reported that [the elder child] continues to show features of anxiety and has tried to “runaway” from school/after school care when feeling overwhelmed. She continues to have some obsessive behaviours […] and shows “emotional reactivity” to changes in school (new classroom, new peer situations etc)”.[60]
[59] Family Report dated 11 June 2024, lines 1146 to 1147.
[60] Exhibit H17.
On cross-examination, the mother conceded that:
(a)When she met with the elder child’s treating paediatrician in February 2024, she expressed concern that the elder child tried to run away from school and after school hours care on becoming anxious;
(b)She sought an increase in the elder child’s medication in February 2024 on account of the child’s alleged anxiety;
(c)She discussed the issue of the child’s propensity to “runaway” on occasions when she feels overwhelmed with the elder child’s “autism specialist” who extended at least one session with the elder child in an attempt to address the same.
It follows that the mother herself was concerned about the propensity of the elder child to “runaway” on occasions when she felt overwhelmed. Further, and given that the occasions referred to by the mother occurred when the elder child was in the mother’s care, it is difficult to understand how the mother can be critical of the father’s conduct in September 2024.
The mother also says that in October 2024, the elder child expressed a view to the father and his partner that she did not want to visit their residence anymore. Particularly, and having expressed that view, the mother says that:
(a)The father’s partner advised the elder child that she was “hurting” her father’s feelings;
(b)The elder child advised the father’s partner that she did not “feel safe”. In response, the father’s partner allegedly told the elder child that she could “get out [of the house]”; and
(c)After further disputation, the father advised the elder child that she had hurt his partner’s feelings and would accordingly need to go to a store and buy gifts for the father’s partner using the elder child’s money.[61]
[61] Mother’s affidavit filed 6 December 2024, paragraph 39.
The father denies the mother’s assertion and says that in fact, the elder child asked him to buy a gift on her behalf so that she might give it to the father’s partner to “say sorry”.[62]
[62] Father’s affidavit filed 20 December 2024, paragraph 283.
Whatever the tension between the elder child and her father and/or the father’s partner, observations of interactions between the elder child and the father by the single expert demonstrated a loving relationship. Particularly, the single expert recorded the following:
On arriving in the consultation room, [the elder child] moved to hug the father, and immediately sat beside him, having brought along a word search book she busied herself with. She leaned into the father, and they appeared comfortable together.
…
All three [namely, the father and the children] proceeded to make love hearts, and [the elder child] had a specific idea of which love heart was for whom, she included the father’s partner as a recipient of one of the love hearts but appeared to put more effort into the heart she was making for the mother, although it was hard to see exactly what she was doing.[63]
[63] Family Report dated 11 June 2024, lines 113 to 136.
For these reasons, I reject the mother’s assertion that the father presents a risk to the children on account of alleged conflict between the father and the elder child.
Failure to properly administer the children’s medication
The mother explains by her affidavit that the elder child is prescribed clonidine, concerta and fluoxetine.[64] I understand that the first two medications treat symptoms associated with attention deficit hyperactivity disorder whilst the last medication treats anxiety. The mother also says that the elder child is prescribed melatonin on an as needs basis and OsmoLax powder as required to treat constipation. The younger child takes melatonin and is otherwise prescribed creams for her eczema. The mother gives examples of occasions in early 2023 when she says that the father refused to provide the elder child with her prescribed medication and/or refused to administer the younger child’s creams for the treatment of eczema.[65] The father acknowledged by his affidavit filed on 20 December 2024 that the younger child is prescribed with cream to treat her eczema.[66] He also says that although he does not observe the younger’s child’s eczema to flare up whilst in his household, the younger child does sometimes ask him to apply the cream.[67] Given the children’s knowledge of their conditions as expressed by each party in his/her affidavit material, I do not consider this to be surprising.
[64] Mother’s affidavit filed 6 December 2024, paragraph 4.5
[65] Mother’s affidavit filed 6 December 2024, paragraphs 52 and 53.
[66] Father’s affidavit filed 20 December 2024, paragraph 73.
[67] Father’s affidavit filed 20 December 2024, paragraph 133.
The administration of medication appears to have become a contentious issue between the parties when the children commenced spending overnight time with the father. The father explains that at this juncture, the mother would send the children with their medication in “unmarked clear Ziplock sandwich bags…without any directions for administration”.[68]
[68] Father’s affidavit filed 20 December 2024, paragraph 85.
The mother also complained by her affidavit filed on 6 December 2024 that the father’s partner administered melatonin to the younger child in early September 2023. Having become aware of the same, and on 18 September 2023, the mother’s solicitor sent the father’s solicitor a letter asserting that the father was “struggling with the children’s basic needs to the extent that he had his partner administer medication to [the younger child]”.[69] The same proposition was put to the father in cross-examination by the mother’s counsel.
[69] Exhibit H11.
The father explained by his written evidence that on the weekend prior to receipt of the correspondence dated 18 September 2023, he had taken the younger child’s melatonin out of its bottle and at the same time, he had prepared the elder child’s medication “ready on the bench to give to her”. The father says that whilst he was giving the elder child her medication, his partner picked up the younger child’s medication from the bench and gave it to her.[70] At the time that the father’s partner did so, he had been in a relationship with her for about twelve months.
[70] Father’s affidavit filed 20 December 2024, paragraph 83.
I had the opportunity to observe the father’s partner during cross-examination. She presented as a sensible and honest person. By her written evidence, the father’s partner said as follows with respect to the administration of medication to the younger child:
On the weekend of 16 September 2023, I saw that [the father] was preparing to give [the children] their medication. As the father gave [the elder child] her medication, I picked up [the younger child’s] melatonin that [the father] had prepared and gave it to [the younger child]. This was the only occasion I have given the children their medication. On all other occasions, their medication has been administered by [the father].[71]
[71] Affidavit of the father’s partner filed 20 December 2024, paragraph 23.
It was my impression that the father’s partner is a person who cares not only for the father but also for his children. She has her own child, namely, a ten-year-old son who lives in her primary care. She is engaged in employment, and it was my impression based on the written and oral evidence of the father and his partner that she is a supportive partner. Having heard the evidence of each of them, I have no concern whatsoever about the ability of the father or his partner to properly administer the children’s medication.
I am concerned, however, that the mother will utilise any opportunity to criticise the father’s parenting abilities when conversely, she will always find a justification for her own actions. This is highlighted by the mother’s evidence that despite the father’s partner knowing the children for twelve months at the time of the administration of melatonin to the younger child, she was still a stranger to them and that “teaching children to take medication from a stranger…is sending a wrong message”. It was her position that the children going without their medication was better than them being administered it by the father’s partner. However, the mother showed no insight when asked if she thought it was appropriate to leave the younger child in the care of a new boyfriend whom she had only been dating for a week. Unsurprisingly, it was the mother’s evidence that her partner, unlike the father’s partner, was not a stranger and that she had to do so as there was no one else available to care for the child. It needs to be noted that at this time the mother did not seek help from the father and instead advertised for assistance via Facebook.[72]
[72] Exhibit H41.
Further, I do not need to consider the merit of the mother’s complaint about the administration of medication because on 1 March 2024 orders were made with the consent of the parties to do all things necessary for the children’s medication to be administered by a Webster pack and for that item to “travel with the children at changeover”.[73] The single expert also recorded that the Webster packs are “pre-filled by the mother who gives them to the father via the children”.[74] The oral evidence of each party was to the effect that the institution of the Webster pack had resolved any difficulties associated with the administration of prescription medication to the children. Further, the mother advised the children’s psychologist, Ms R, that any issue associated with the administration of medication had been resolved by the use of the Webster pack.[75] I also bring to account the findings of the single expert in the following terms:
The father, by virtue of having medications supplied in the dispensing boxes, would seem to be administering the medications as required and any significant interruptions to this would be expected to be reflected at school or in…appointments [with the children’s autism specialist] …but this does not appear to be the case.[76]
[73] Order 1 of the Orders made on 1 March 2024.
[74] Family Report dated 11 June 2024, lines 850 to 852.
[75] Exhibit H15.
[76] Family Report dated 11 June 2024, lines 1234 to 1237.
With respect to the use of melatonin, the mother makes no complaint that the younger child is tired after spending time with the father. This being so, and irrespective of whether the father provides the younger child with the same, I am able to find that the child sleeps adequately at her father’s home. Indeed, and in September 2024, the younger child advised her teacher that it only takes her “two minutes to fall asleep” at her father’s residence.[77]
[77] Exhibit H21.
For these reasons, I reject the mother’s assertion that the father presents a risk to the children on account of his alleged failure to properly administer the children’s medication.
Father’s resistance and failure to accept medical advice and diagnoses for the children
The father by his affidavit filed on 20 December 2024 accepted that the elder child has a diagnosis of ADHD and an Autism Spectrum Disorder. He accepted the same diagnosis with respect to the younger child.[78]
[78] Father’s affidavit filed 20 December 2024, paragraphs 72 and 73.
On interview by the single expert, however, the father did say that he did not agree with the level of diagnosis with respect to autism.[79] The single expert expressed an opinion that as a consequence, the father’s “capacity and willingness to participate in long-term decisions related to [the children’s] diagnoses may be impacted”.[80]
[79] Family Report dated 11 June 2024, lines 874 to 875 and 1301.
[80] Family Report dated 11 June 2024, line 1301 to 1302.
The single expert’s initial opinion must be seen against the following background:
(a)It was the single expert’s view that the level of diagnosis of autism was “surprising” given feedback from the children’s school “in terms of how the children fare” and the expert’s own observations for the report;[81]
(b)On cross-examination by the father’s counsel, the single expert agreed that he had “a question mark about [the level of diagnosis]”;
(c)In 2022, a medical practitioner at the Child and Adolescent Mental Health Service expressed a view that the elder child did not meet the diagnostic criteria for an autism spectrum disorder.[82] The single expert considered that the level of diagnosis “would have been readily evident” at that time if the behaviours referred to in the relevant criterium had been exhibited;[83]
(d)The children’s school reported to the single expert that whatever the children’s level of difficulty, it “did not necessarily transfer to the learning environment to a significant degree”;[84] and
(e)On cross-examination by the father’s counsel, the single expert agreed that to the extent that the father had expressed concern about the children’s level of diagnosis, such concerns were “not necessarily unjustified concerns”.
[81] Family Report dated 11 June 2024, lines 1601 to 1605.
[82] Family Report dated 11 June 2024, lines 1608 to 1611.
[83] Family Report dated 11 June 2024, lines 1610 to 1611.
[84] Family Report dated 11 June 2024, lines 1620 to 1621.
I also acknowledge that the father was not involved in the assessment process. To this extent, the father’s assessment of the children’s individual characteristics, strengths and skills in areas like daily living skills, communication and thinking was not taken into account.
For these reasons, I reject the submission made by the mother’s counsel that the father’s concern about the children’s level of diagnosis is indicative of some greater reluctance to accept medical advice. When rejecting the submission, I also place some weight on the single expert’s opinion that he too had “a question mark about [the level of diagnosis];” (supra).
Additionally, the mother makes complaint that the father has refused to accept medical advice to the effect that the children are lactose intolerant.[85] The father’s response is that the children have not been formally diagnosed and/or that their physical symptoms do “not line up” with such a diagnosis.[86] Particularly, the father by his written evidence and his partner by her written[87] and oral evidence, say that the children “eat ice creams, milk, cheese and dairy” when with the father absent side effects. The children have also reported to their father that they eat dairy treats in the mother’s household.[88] Whatever the scenario, the evidence is not sufficiently strong to enable me to find that the children have been diagnosed as lactose intolerant and/or are being harmed by the diet in their father’s household even if such a diagnosis has been made.
[85] Mother’s affidavit filed 6 December 2024, paragraph 133.
[86] Father’s affidavit filed 20 December 2024, paragraph 74.
[87] Affidavit of the father’s partner filed 20 December 2024, paragraph 35.
[88] Father’s affidavit filed 20 December 2024, paragraph 74.
For all these reasons, I reject the mother’s assertion that the father presents a risk to the children on account of his alleged failure to accept medical advice and diagnoses for the children.
Father’s failure to take the children to an extracurricular activity
The parties agree that as at 2023, the children attended an extracurricular activity each Tuesday, Thursday and Saturday.[89]
[89] Mother’s affidavit filed 6 December 2024, paragraph 80; Father’s affidavit filed 20 December 2024, paragraph 144.
In or around November 2023, the mother sought to re-enrol the children in the extracurricular activity for 2024. The father did not consent to the mother re-enrolling the children in the extracurricular activity on Saturday mornings and communicated this to her via his solicitors. It is the father’s evidence that he did not consent on the basis that he would rather be spending meaningful time with the children on the Saturday rather than spending the time commuting to and from the site of the extracurricular activity, which he says consumed the majority of the day.[90] It needs to be noted that at this juncture, the children’s time with the father was limited. Despite the father’s communication and an interim order made with the consent of the parties on 17 August 2023, which restricted the mother from enrolling the children in any extracurricular activity during the father’s time with the children without his consent, the mother re-enrolled the children in their Saturday classes in 2024.[91] It is the mother’s view that:
…[the extracurricular activity] assists with expanding [the children’s] social and cultural interactions. I also believe the children feel at ease with their […] friends and that the [activity] is an opportunity for the children to build a sense of community and belonging with their peers who share similar interests.[92]
[90] Father’s affidavit filed 20 December 2024, paragraph 200.
[91] Father’s affidavit filed 20 December 2024, paragraphs 197-199.
[92] Mother’s affidavit filed 6 December 2024, paragraph 84.
In his affidavit, the father says that he continued to facilitate the children's attendance at the extracurricular activity up until the commencement of the new term in 2024.[93] He concedes that “since this time, [he has] not been facilitating the children's attendance at their [extracurricular activity] on the Saturday mornings when they are in [his] care”.[94] The mother says that the father’s actions were against the wishes of the children and the children expressed to her on multiple occasions that they wished to attend. The children also expressed this view to the single expert.
[93] Father’s affidavit filed 20 December 2024, paragraph 202.
[94] Father’s affidavit filed 20 December 2024, paragraph 202.
It was the single expert’s oral evidence that the children attending the extracurricular activity on a Saturday is:
…an interesting issue. I think, at this stage, given the children’s age, they – as I understand it, they’re afforded opportunities to go to [the extracurricular activity] in the fortnightly cycle many other times, and assuming that’s still the case, then I think – I don’t think they’re missing out on a whole lot on not going – sorry – not being able to go to [the activity] when with the father on the second Saturday. I think it’s likely to become an issue when they get older, and [the activity] remains very important for them. They’re likely to see the father as thwarting their interests. I suspect, at their ages now, they’re able to get on with the other opportunities that are afforded to them when with the father on the alternate weekends in lieu of [participating in the activity]. That may well change, but right now, I would imagine it’s not such a contentious issue.
Further, the single expert said:
It would be a good idea if they could continue [the extracurricular activity on Saturday] if [the father] had more time with the children, so that that time was better spent with [him], and they could build a better relationship with [him]…. not going with the father at this age doesn’t seem a significant hindrance. It may become so but not now”.
At some stage after 1 July 2024 but on dates not particularised by the husband, he borrowed additional monies of $169,003 increasing the quantum of monies allegedly owed by the husband to his parents to a sum of $306,191. These additional monies are not the subject of any loan agreement. Given that the terms of any additional loan between the husband and his parents with respect to the additional monies are uncertain, I decline to characterise those monies as being the subject of a loan. Simply, the terms are too vague.[217]
[217] See also Lambert & Jackson [2010] FamCA 357.
The wife owes a litigation funder a sum of $64,568.95.[218] She has otherwise expended a sum of $151,908.[219] That is slightly less than the sum identified by the husband noting he estimates that during the period 17 May 2022 to 16 November 2024, the wife expended a sum of $155,681. As discussed above, the wife also says that she owes the estate of her late mother a sum of $146,015. On the wife’s evidence, therefore, she owes a litigation funder and her late mother’s estate a sum of $210,673.
[218] Exhibit W27.
[219] Costs Notice filed by the Wife on 13 February 2025.
As discussed above, the husband has calculated that in respect of monies received as a consequence of her medical negligence claim, the wife has expended a sum quantified at $94,880 on legal fees.[220] The wife’s oral evidence was to the effect that she did spend some of the monies on legal fees although she had not made any calculation as to the quantum of the same. At paragraph 378(d) of his affidavit filed on 20 December 2024, the husband set out with precision the monies spent by the wife on litigation funding and legal fees and disbursements for these proceedings.
[220] Husband’s affidavit filed 20 December 2024, paragraph 378(d).
In NHC & RCH the Full Court said as follows with respect to the payment of legal fees:
In summary, we consider that the above mentioned decisions of the Full Court establish that, while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial Judge, in determining how to exercise that discretion, regard should be had to the source of the funds. If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them. If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.[221]
[221] Chorn & Hopkins [2004] FamCA 633 at [56].
In Trevi & Trevi, Murphy J said that the delineations referred to in NHC & RCH such as “the funds used existed at separation…such that both parties can be seen as having an interest in them” or “funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours” cannot be seen as determinative in the exercise of discretion but, rather as informing it. His Honour also referred to the reason why paid legal fees “occupy a particular position in the consideration of addbacks” being the presence of section 117(1) of the Act which means that a failure to add back legal costs will amount to a pre-emptive decision about one party paying the other party’s legal costs where it is appropriate in all the circumstances for such an addback to be made.[222]
[222] Trevi & Trevi [2018] FamCAFC 173 at [84]; Waterman & Waterman [2020] FamCA 369 at [118].
Ordinarily, I would be inclined to add back the amount of $94,880 spent by the wife on legal fees. In my view, however, it is not necessary to add back the amount to achieve justice and equity in relation to the property division under consideration. Equally, I have concluded that it is not necessary to include the alleged loan from the husband’s parents in the balance sheet. This is because:
(a)Each party has liabilities in respect of legal fees;
(b)Although the husband’s outstanding liability is greater than the wife’s liability, I have determined for the reasons discussed below that I will not provide any party with an adjustment in his/her favour on account of contributions during or subsequent to the relationship.
Outstanding superannuation guarantees payable by the business
The business had a liability for superannuation of $43,424 as at 30 June 2023. In respect of that sum:
(a)$31,344 was attributable to the husband on a before tax basis;[223]
(b)A sum of $12,000 was paid to an apprentice subsequent to 30 June 2023.
[223] Affidavit of the single expert forensic accountant filed 19 December 2024, page 10 of 34.
I accept the advice of the single expert that the liability of the company with respect to superannuation must be paid and that otherwise, the sum of $31,344 ought to be taken into account when considering the value of the husband’s superannuation interests.[224]
[224] Affidavit of the single expert forensic accountant filed 19 December 2024, page 10 of 34.
It appears, however, that the liability of the business to the husband has already been taken into account when determining the value of the company[225]. This being so, I will not include the sum of $31,344 as a liability of the parties as sought by counsel because to do so would be erroneous when the single expert has factored it into the value of the corporate entity. I do agree, however, that it is appropriate for me to refer to the unpaid superannuation as a financial resource of the husband.
[225] Affidavit of the single expert forensic accountant filed 19 December 2024, page 24 of 34, Schedule D1.
ASSESSMENT OF CONTRIBUTIONS
The various and different contributions of the parties must be assessed and weighed against the background of the relationship of ten years in duration, which produced two children who are still under the age of majority.
The wife moved into the husband’s Suburb V property in 2012. The husband contends that on doing so, the wife rented out the Suburb S property and used the rental income to service her debts.[226] He says that he otherwise paid the mortgage on the Suburb V property and that the parties shared utilities and other household expenses.[227] The wife agrees that the rental income from the Suburb S property was applied towards the mortgage secured over the same and says that any residual monies from the rental income was applied to household expenses.[228]
[226] Husband’s affidavit filed 20 December 2024, paragraph 312.
[227] Husband’s affidavit filed 20 December 2024, paragraph 314.
[228] Wife’s affidavit filed 6 December 2024, paragraph 182.
Although each party failed to obtain any historical valuation of their interests at the time of cohabitation, I am able to find that save for her interest in the Suburb S property, the wife’s financial position was parlous. I can make that finding by reference to a letter from DD Company Debt Relief to the wife dated 20 October 2014 wherein DD Company Debt Relief says as follows:
We refer to previous correspondence and confirm receipt of $31,616.
We advise that the final dividends have been distributed to the creditors listed in your Statement of Affairs in accordance with your Part IX Debt Agreement Proposal.
We have also written to AFSA [Australian Financial Security Authority] advising that you have discharged your obligations pursuant to the Part IX Debt Agreement and you will shortly be receiving a written confirmation from AFSA to that effect.[229]
[229] Exhibit H30.
It follows that at the time of cohabitation, the wife was the subject of a debt agreement under Part IX of the Bankruptcy Act 1966 (Cth). To the extent that I need to do so, and because the wife was able to rent the Suburb S property to third parties, I find that there is merit to the husband’s assertion that the parties’ financial arrangements at the time of cohabitation assisted the wife to satisfy her debts.
The husband says that he undertook renovations to the Suburb V property prior to its sale in October 2016.[230] He also says that he undertook works to the Suburb S property, which the wife sold in August 2015.[231] As might be expected, the wife also says that she paid for improvements to the Suburb V property prior to its sale.[232] Absent any information as to whether or not the works performed by either party improved the value of either property, I find that each party was working to advance their joint financial position to the best of his/her ability.
[230] Husband’s affidavit filed 20 December 2024, paragraph 315.
[231] Husband’s affidavit filed 20 December 2024, paragraphs 318 and 319.
[232] Wife’s affidavit filed 6 December 2024, paragraph 177.
The elder child was born in 2015, and the Suburb S property was sold in August 2015. It is an agreed fact that the wife received $293,743 from the sale of the Suburb S property.[233] The wife’s oral evidence is that she was not required to pay capital gains tax although an email sent by the wife to a broker in December 2015 contradicts this assertion.[234] For the purposes of my assessment of contributions, I will accept the wife’s oral evidence that she obtained an exemption from the payment of capital gains tax. I do so in circumstances where I do not consider that the payment of the tax (if such payment occurred) will alter my assessment of the parties’ contributions during the relationship.
[233] Wife’s affidavit filed 6 December 2024, paragraph 180; Husband’s affidavit filed 20 December 2024, paragraph 319.
[234] Exhibit H31.
In 2016 and in the same month that the parties married, the husband commenced his business.[235] The business was operated through a proprietary limited company. The husband contends that the wife’s involvement in the business was infrequent whereas the wife says that the wife “took on the role of bookkeeper” and attended to administrative tasks.[236] Again, I do not consider that any distinction with respect to the allocation of tasks will assist me to determine an appropriate adjustment of the parties’ financial interests. Instead, I find that each party was working to the best of his/her ability to advance their joint financial interests.
[235] Husband’s affidavit filed 20 December 2024, paragraph 325.
[236] Wife’s affidavit filed 6 December 2024, paragraph 190.
The parties purchased a house and land package at L Street, Suburb K in March 2016 for around $509,000. The husband and wife contributed equally to the deposit of $49,000 and obtained a mortgage for the balance.[237] The husband sold the Suburb V property in 2016 and received proceeds of sale of $337,428.93.[238] The husband says that he applied these monies to works at the Suburb K property.[239] The wife says that she also contributed financially to improvements to the property.[240] Again, I find that each party made financial contributions to the best of his/her ability through employment and the use of monies received by them on the sale of their respective properties.
[237] Wife’s affidavit filed 6 December 2024, paragraph 191; Husband’s affidavit filed 20 December 2024, paragraph 327.
[238] Husband’s affidavit filed 20 December 2024, paragraph 330.
[239] Husband’s affidavit filed 20 December 2024, paragraph 333.
[240] Wife’s affidavit filed 6 December 2024, paragraph 192.
On 18 February 2019, the parties purchased an investment property at M Street, Town O for a sum $465,000. The parties refinanced the mortgage over the Suburb K property to finance the purchase. The property was rented to third parties, and the rental income was applied to the mortgage secured over the Suburb K property.[241]
[241] Wife’s affidavit filed 6 December 2024, paragraph 195; Husband’s affidavit filed 20 December 2024, paragraphs 334 and 335.
In 2022, the wife’s mother gave her a sum of $50,000. The wife says that these monies were applied towards the children and the household.[242] For his part, and in 2022, the husband received a sum of $10,000 by way of an inheritance, which he says was applied towards joint expenses and the payment of a loan, which the parties obtained to construct a pool at the Suburb K property.[243]
[242] Wife’s affidavit filed 6 December 2024, paragraph 204.
[243] Husband’s affidavit filed 20 December 2024, paragraph 346.
The husband left the former matrimonial home in October 2022 and lived with his brother for a short time prior to renting a property.
The husband has continued to work in the parties’ business in the period subsequent to separation and by doing so, he has facilitated a partial payment of Division 7A loans. I discuss this in further detail below. For her part, the wife had the primary care of the children and paid the mortgage secured over the Suburb K property.[244] In part, and as discussed below, the wife met the payment of the mortgage from an inheritance received by her.
[244] Wife’s affidavit filed 6 December 2024, paragraph 206.
The wife asserts by her affidavit filed on 6 December 2024 that in the post-separation period, the husband withdrew monies from joint accounts and applied them for his own purposes. This was not a feature of cross-examination of the husband by the wife’s counsel nor was it a matter referred to by him during closing submissions. For the reasons discussed below, I do not consider this topic to be a significant factor in determining the appropriate division of assets.
In 2024, the wife received a sum of $200,846 in compensation as a result of a medical negligence claim. The conduct giving rise to that claim occurred in 2018 when the wife underwent two procedures.[245] The wife provided no documentation to enable me to determine whether the compensation was in respect of non-economic loss or economic loss or some other head of damage. The monies have now been dissipated in their entirety. In part, the wife spent the monies on legal fees for these proceedings, which the husband quantifies at $94,880.[246] The husband prepared a schedule pursuant to section 50 of the Evidence Act 1995 (Cth) to identify the fees expended by the wife.[247] Her oral evidence was to the effect that she did spend some of the monies on legal fees although she had not made any calculation as to the quantum of the same. The Costs’ Notice filed by the wife’s solicitor on 13 February 2025 is deficient in that it does not identify with precision the source of funds used by the wife to date to satisfy her legal expenses.
[245] Husband’s affidavit filed 20 December 2024, paragraph 16.
[246] Husband’s affidavit filed 20 December 2024, paragraph 378(d).
[247] Exhibit H32.
On 18 September 2024, the wife received an interim distribution of $352,280 from the estate of her late mother.[248] These monies have been expended by the wife. She says that the monies have been expended on:
(a)Repairs to the Suburb K property and the purchase of furniture;
(b)Accommodation whilst works were undertaken at the Suburb K property;
(c)The mortgage secured over the Suburb K property;
(d)Further in vitro fertilisation treatments;
(e)The purchase of Christmas presents for the children;
(f)Payments for the funeral of a friend’s relative;
(g)A proposed holiday to the United States of America;
(h)In partial satisfaction of legal fees incurred for the purposes of these proceedings.[249]
[248] Husband’s affidavit filed 20 December 2024, paragraph 383; Wife’s affidavit filed 6 December 2024, paragraph 210.
[249] Wife’s affidavit filed 6 December 2024, paragraphs 212 to 217.
The wife asserts that to the conclusion of the parties’ relationship and taking into account contributions made by her subsequent to separation, the assets of the parties ought to be divided on a 70:30 basis in her favour. For his part, the husband says that the parties’ contributions ought to be assessed on an equal basis.
As discussed above, the husband was likely ahead of the wife in terms of the quantum of his initial contribution noting that at the time he sold the Suburb V property in 2016, he received proceeds of sale of $337,428 whereas for her part, and in 2015, the wife received a sum of $293,743 from the sale of the Suburb S property. The other assets owned by the parties such as motor vehicles were not the subject of valuation.
The monies realised on the sale of the Suburb V and Suburb S properties were applied towards works at the Suburb K property as well as the parties’ general expenditure. On balance, and absent any additional assistance from the parties with respect to the precise value of their initial contributions, I am not inclined to make an adjustment in favour of either party on account of their initial contributions. Similarly, I am not inclined to make an adjustment in the wife’s favour for the fact that she received $50,000 by way of an inheritance during the relationship whereas the husband only received $10,000 by way of an inheritance (supra). To the extent of any disparity, it is my view that the greater sum received by the wife is matched by the greater initial contributions of the husband.
With respect to the parties’ financial contributions during the relationship, a holistic approach to the parties’ respective financial contributions is to be taken.[250] The wife by her trial affidavit included several paragraphs with respect to financial contributions made by her during the relationship but I reject that when assessing contributions made over the course of a ten year relationship I am obliged to undertake a meticulous mathematical exercise.
[250] Hayne & Hayne (1977) FLC 90-265; Garrett & Garrett (1984) FLC 91-539.
The husband readily conceded during cross-examination that he was not a “hands on” father during the relationship in circumstances where he was often working seven days per week. This being so, I find that the wife was the primary homemaker and carer of the children.
In every sense, the parties in these proceedings created a personal and commercial union. It was a partnership. As highlighted by Justice Strum in Wallace & Wallace [2022] FedCFamC1F 536, there has been some judicial debate, over the years, as to the concept and role of "partnership" within the assessment of contributions for the purposes of s 79(4)(a) - (c) of the Act.[251]
[251] Wallace & Wallace [2022] FedCFamC1F 536 at [74].
In Waters & Jurek (1995) FLC 92-635 (Full Court) at 82,379, Fogarty J said:
In most marriages, there is a division of roles, duties and responsibilities between the parties. As part of their union, the parties choose to live in a way which will advance their interests - as individuals and as a partnership.
…
On separation, the partnership, and the division of roles and responsibilities which it produced, come to an end.
Similarly, in Kennon v Kennon (1997) FLC 92-757 (Full Court) at 84,300, Fogarty and Lindenmayer JJ said:
The reality is that the parties lived their married life together, they brought to that marriage qualities which each saw as attractive. Within the s 79 context each party contributed as best they could the qualities which each brought to the marriage. In the husband's case it included the quality of being very wealthy. In the wife's case the qualities were less tangible.
For the reasons set out above, I find that each party contributed as best they could to the marriage and to the acquisition of their joint wealth. I decline to make any adjustment in favour of either party on account of contributions made by either of them during the relationship.
The wife’s contributions in the post-separation period warrant careful consideration due to the wife’s assertion that she has “solely serviced the loans, repairs, renovations and maintenance costs in respect of the [Suburb K] and [Town O] properties, all rates, property related bills and the children’s health insurance and bills with the assistance of money lent…by the maternal grandmother”.[252]
[252] Wife’s Outline of Case Document filed 17 January 2025, page 13 of 16.
I have difficulty with the wife’s assertion that an adjustment in her favour on account of post-separation contributions is warranted. Particularly, I note the following:
(a)Although the wife’s evidence is that for a short period, the husband diverted the rental income received from the Town O property, her evidence is to the effect that this was quickly resolved;[253]
(b)The wife says that in about November 2022, the parties agreed to meet household bills equally;[254]
(c)In July 2024, the Suburb K property was valued at $1.45 million.[255] The property was valued again on 9 December 2024. For the purposes of the revised report, the single expert valuer was asked to consider the value of the property if renovation works had not been performed and conversely, the value of the property if renovation works had been performed. On the final day of trial, counsel for the wife and the husband advised me that the parties had adopted the figure, which would apply if the renovation works had not been performed, namely, a figure of $1,480,000. Assuming the renovation works are completed, the single expert valuer placed a value on the property of $1,510,000.[256] Given that the wife on her own evidence made improvements to the property after she received a part-distribution from her mother’s estate on 18 September 2024[257], it follows that the wife ought not receive any adjustment in her favour on account of utilising monies from her mother’s estate because the wife has adopted the lower figure identified by the single expert valuer;
(d)Insofar as the wife used the monies received by her as a consequence of the medical negligence claim for daily living expenses and household expenses,[258] the wife was employed on a full-time basis by a government department. In addition to monies received from that employment, which the wife says is $157,716 gross per annum,[259] the wife has dissipated in their entirety, the monies received by her from her mother’s estate and the monies received by way of compensation. On my calculation, this means that in the period 8 April 2024 to date, the wife has expended a sum of $642,800 in addition to monies received from her employment.
[253] Wife’s affidavit filed 6 December 2024, paragraph 207.
[254] Wife’s affidavit filed 6 December 2024, paragraph 208.
[255] Affidavit of the single expert valuer filed 16 December 2024, page 39 of 49.
[256] Affidavit of the single expert valuer filed 16 December 2024, page 42 of 49.
[257] Wife’s affidavit filed 6 December 2024, paragraph 211.
[258] Wife’s affidavit filed 6 December 2024, paragraph 209.
[259] Wife’s affidavit filed 6 December 2024, paragraph 234.
For his part, the husband has continued to operate the business and as discussed, has satisfied some of the Division 7A loans.
As the Full Court in Roverati and Roverati [2021] FamCAFC 89 at [33] restated (citing Dickons & Dickons (2012) 50 FamLR 244 at [23] - [26]:
[33]…the assessment of contributions is not a mathematical or accounting exercise, and even more importantly, it is an holistic undertaking with all of the contributions of the parties of whatsoever nature being taken into account.
Bearing in mind all these circumstances, I assess the parties’ overall contributions as being equal. The outcome, of course, would have been different had the wife not dissipated the entirety of monies received by her in various forms in the period subsequent to separation.
SECTION 75(2) – THE PROSPECTIVE NEEDS OF THE PARTIES
The wife sought an adjustment of twenty per cent in her favour on account of contributions such that the combined non-superannuation and superannuation asset pool be divided on a 70:30 basis in her favour. Assuming that the wife was the beneficiary of such an order, the wife submitted by her counsel’s Case Outline that “the future needs factors are finely balance and…no adjustment is warranted by reason of them”.[260]
[260] Wife’s Outline of Case Document filed 17 January 2025, page 13.
For his part, the husband asserted that the wife has a significant further financial resource in the estate of her mother and that this being so, there ought to be an adjustment in his favour in the order of ten percent.[261] The wife says that her interest in her mother’s estate “cannot presently be quantified”.[262] For the reasons discussed below, I reject that assertion.
[261] Husband’s Outline of Case Document filed 17 January 2025, paragraph 6.43.
[262] Wife’s Outline of Case Document filed 17 January 2025, page 13.
The husband alleges non-disclosure in relation to the estate of the wife's mother. The wife asserts that she has provided the best disclosure that she is able to, and that in any event, the husband has made no contribution to the wife's inheritance and the undistributed portion of it should be characterised as a financial resource of the wife to which the court would have regard under s 75(2)(b) of the Act.[263]
[263] Wife’s Outline of Case Document, page 12.
The evidence enables me to find that:
(a)Pursuant to the Will of the wife’s late mother[264], the wife and her brother are jointly, executors and trustees of the Will; and
(b)The Estate of the wife’s mother is to be divided in three equal parts between the wife, her brother and the wife’s sister.
[264] Exhibit H36,
The Probate of Will granted in early 2024, identifies that the value of the Estate is $3,375,727.58.[265] Assuming that the wife will receive a third of the said sum, the wife stands to receive a sum of $1,125,242.53. In respect of this sum:
(a)The wife says that she owes the Estate a sum of $146,015. As discussed above, I consider that the terms of the alleged loan were vague or uncertain; and
(b)The wife says that she has received a part distribution from her mother’s estate in a sum of $352,280.
[265] Exhibit H37.
If I am wrong with respect to the matters referred to in sub-paragraph (a) above, then the sum, which the wife will receive from her mother’s estate is $626,947. If I am correct, the sum, which the wife will receive from her mother’s estate is $772,962. Either way, it is a significant sum.
There is simply no evidence whatsoever to support a conclusion that the Will is the subject of a challenge by family members.[266] If it is the subject of a challenge, the wife could have led evidence in respect of the same. As an executor, the wife was in a position to produce information with respect to any challenge. She did not do so. As a consequence, I find that at the very least, the wife will receive an additional $626,947 from her mother’s estate. For the reasons discussed above, that sum could be $772,962.
[266] Mother’s affidavit filed 6 December 2024, paragraph 210.
In relation to the demands upon her finances, the wife:
(a)Deposes to the quantum of the children’s NDIS plans as being in the order of $72,264 for the period August 2023 to August 2025 albeit the plans are due to expire in August 2025;[267]
(b)The children’s NDIS plans do not cover their regular medication costs of about $50 per month.[268] The mother produced no evidence in support of that assertion;
(c)Says that she has ongoing medical needs as a consequence of surgeries in 2015 and 2018 and the consequent medical negligence claim. The wife did not call any expert to give evidence as to the surgeries required or the expense associated with the surgeries;[269]
(d)The mother says that due to a medical condition, she has been “advised by several doctors of my reduced future working capacity”.[270] The only document produced in support of this assertion is correspondence authored by the mother’s medical professional dated 14 September 2015 and 8 November 2018.[271] That correspondence confirms that the mother may require surgery to correct a medical condition. No additional information with respect to the impact of the wife’s back condition on her capacity for gainful employment was produced;
(e)The wife anticipates taking maternity leave for “several months” following the birth of her third child.[272]
[267] Mother’s affidavit filed 6 December 2024, paragraph 219.
[268] Mother’s affidavit filed 6 December 2024, paragraph 220.
[269] Mother’s affidavit filed 6 December 2024, paragraph 230.
[270] Mother’s affidavit filed 6 December 2024, paragraph 231.
[271] Exhibit W26.
[272] Mother’s affidavit filed 6 December 2024, paragraph 236.
For his part, the husband says that he wishes for his business to be sold as he is not confident that he will receive the sum placed on the business by the single expert valuer.[273] Whilst that is the husband’s contention, I will bring the business to account as an asset of the husband at the value identified by the single expert. I will also bring to account the liabilities of the business. The husband as the sole director and shareholder can then decide the manner in which he wishes to sell the business and when he wishes to do so. There was no challenge to the single expert’s valuation and as such, there is no impediment to proceeding in the manner described.
[273] Father’s affidavit filed 20 December 2024, paragraph 466.
I also note that as at 30 June 2024, the business made a gross profit from trading in a sum of $342,776 and a profit after income tax of $97,939.[274] Accordingly, the husband as the sole director and shareholder is in control of a business, which generates a profit after income tax of about $100,000. This is comparable to the monies, which the wife receives in the course of her employment by a government department and income received from the rental of the Town O property. The wife wishes to retain that property.
[274] Exhibit H27.
By reason of the parenting orders to be made by me, the wife will retain financial responsibility for the parties’ children for the foreseeable future. This is a major factor, which favours her. Also, and keeping in mind that the wife is soon to give birth to her third child, I find her employment opportunities to be more circumscribed than those of the husband.
For his part, the husband will be left with a profitable business. He will also be liable for the payment of child support. In Clauson & Clauson[275] the Full Court said as follows:
The weight to be attached to a child support assessment will vary with the circumstances of each case, including the amount of the assessment, the financial circumstances of the parties, the needs of the children, whether the assessment is being paid regularly, and whether it is likely that it will continue to be paid at a regular and adequate rate in the future.
[275] Clauson & Clauson (1995) FLC92-595 at 81,911.
In this case, the Child Support Agency and the husband had been in dispute with respect to the child support payable by him given that the Director’s Loans impact his child support assessments. Nonetheless, the tenor of the husband’s affidavit is that prior to a change of assessment in August 2024, he was consistent with respect to the payment of child support and was not in any arrears.[276]
[276] Husband’s affidavit filed 20 December 2024, paragraph 445.
If the husband remains self-employed in some capacity, it is likely that the parties will continue to be in disputation about child support. However, I consider it more likely than not that the wife will receive a regular and adequate supply of child support from the husband until the children attain the age of eighteen years.
As discussed above, the wife’s interest in her mother’s Estate will result in the wife receiving additional assets in the order of $626,947 to $772,962. The fact that the wife will do so and yet denied that she would receive the sum is a matter that weighs on me. Similarly, the fact that the wife will bear financial responsibility for the parties’ children for the foreseeable future is a matter, which weighs on me.
I propose to allow the husband seven percent as a consequence of the financial resource, which will fall to the wife pursuant to the terms of her mother’s will.
THE FORM OF ORDERS
In Steinbrenner & Steinbrenner,[277] Coleman J observed as follows at [234]:
[234]Given that the evaluation of contribution-based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case.
[277] See Steinbrenner & Steinbrenner [2008] FamCAFC 193.
I must now make a leap and turn to the topic of what each party will receive, particularly how and in what form. This leap from abstraction to the concrete must be undertaken in terms of what is just and equitable to each of the parties concerned.
I have come to a conclusion that it is just and equitable to divide the parties’ pool of assets 57:43 per cent in the husband’s favour. I note that the wife will be the primary carer of the parties’ two children, however, I believe that this factor is outweighed by the significant financial resource available to the wife in the form of monies which will be distributed to her from her mother’s estate.
Retention of property by the Wife
Having regard to the parties’ existing property interests and the interests to be retained by the wife by agreement, the wife will retain non-superannuation assets with a net value of $1,093,280 calculated as follows:
Description
Value
L Street, Suburb K
1,480,000
M Street, Town O
700,000
ANZ account (ending 46)[278]
2,919
W Bank account (ending 01)
1,729
W Bank Account (ending 26)
2,509
W Bank Incentive Saver account (ending 26) held on behalf of the elder child
1,836
W Bank Account (ending 62)
1,837
Shareholding in Z Ltd
483
P Investment
6,673
Motor Vehicle 1
24,000
Motor Vehicle 2
4,500
Sub-Total:
2,226,486
Less ANZ Home Loan (ending 11) secured over the Suburb K property
-743,270
Less ANZ Loan (ending 38) secured over the Town O property
-380,582
Less Centrelink CCS Debt
-6,845
Total:
1,093,280
[278] The account is to be transferred to the wife pursuant to these orders
In addition, the wife will retain:
(a)The wife’s interest in Super Fund 1, which has a value of $229,726;
(b)The wife’s interest in her mother’s Estate, which as discussed will result in the wife receiving additional assets in the order of $626,947 to $772,962.
Excluding the entirety of the wife’s interest in her mother’s Estate, the wife will have the benefit of non-superannuation and superannuation assets in the order of $1,323,006.
Retention of property by the Husband
Having regard to the parties’ existing property interests and the interests to be retained by the husband by agreement, the husband will retain non-superannuation assets with a value of $114,916 calculated as follows:
Description
Value
CBA Account (ending 26)
1,843
CBA Account (ending 16)
32,487
Leena Pty Ltd
247,000
Motor Vehicle 4
15,250
Motor Vehicle 5
33,250
Motor Vehicle 6
23,750
Sub-Total:
353,580
Less 2021 Division 7A Loan
-41,641
Less 2022 Division 7A Loan
-93,126
Less 2024 Division 7A Loan
-13,902
Less anticipated taxation liability arising from repayment of the 2021 Division 7A Loan and 2022 Division 7A Loan by way of declaring dividends
-89,995
Total:
114,916
In addition, the husband will retain his interest in Super Fund 2, which has a value of $105,961.
The parties have invited me to adopt a global approach to the assessment of the Joint Balance Sheet. Accordingly, and by reference to the calculations referred to above and without any adjustment, the parties would have the benefit of the following assets:
Non-Superannuation and Superannuation Assets in the Wife’s name
1,323,006
Non-Superannuation and Superannuation Assets in the Husband’s name
220,877
In addition, and as discussed above:
(a)The wife’s retains her remaining interest in her mother’s Estate, which will result in the wife receiving additional assets in the order of $626,947 to $772,962;
(b)The husband has superannuation owing to him by the business in a sum of $38,122.
In order to effect a 57:43 adjustment of the non-superannuation and superannuation assets in the husband’s favour, it will be necessary for the wife to pay to the husband a sum of $659,136 calculated as follows:
57 percent x the net non-superannuation assets and superannuation assets
(being $1,543,883)880,013
Less non-superannuation and superannuation assets in the husband’s possession
-220,877
Total:
659,136
In the event of default, I have calculated that it may be necessary for the wife to sell each of the properties, which she wishes to retain. I will draft orders accordingly.
The wife seeks an order that if either property does not sell at auction, then the property be relisted for sale with the parties able to negotiate with the highest bidder and accept an offer at no less than 98.5 percent of the reserve price. The husband seeks an order that the relevant property be relisted for public auction every six weeks on the basis that the sale or reserve price shall be reduced by five percent at each auction until the property is sold. The parties did not address me as to the reasons for the differences in their proposals.
I find that the parties will incur unreasonable expense if I make orders implementing the nominal reduction proposed by the wife. Accordingly, I will make orders in terms similar to those orders promoted by the husband.
CONCLUSION
The outcome means that overall and including the inheritance to be received by the wife from the estate of her mother, the wife will retain assets with a value of between $1,290,817 and $1,436,832.
The husband will retain assets of $880,013. I am satisfied that overall, this is a just and equitable outcome of these proceedings. The orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding three hundred and forty-nine (349) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson. Associate:
Dated: 17 April 2025
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