Leeson & Gosley (No 3) - [2022] FedCFamC1F 1032

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Leeson & Gosley (No 3) [2022] FedCFamC1F 1032

File number(s): MLC 12653 of 2020

Judgment of: HARTNETT J

Date of judgment: 23 December 2022

Catchwords:
FAMILY LAW – CHILDREN – Best interests – Where there are two children of the marriage and one of a former relationship of the mother – Family violence and allegations of sexual abuse – Where the allegations are unsubstantiated – Where the mother unilaterally withheld the children at times and made medical appointments without the father’s consent – Where the father poses no risk to the children – Where the mother poses a risk to the children’s emotional and psychological wellbeing – Where the parties are unable to effectively communicate – Sole parental responsibility to the father – The two children of the marriage to live with the father and spend time with the mother – Where the eldest child is to spend time with the father in accordance with her wishes.

FAMILY LAW – PROPERTY – Where the wife sought a child support assessment departure and spousal maintenance – Where the main asset is the former matrimonial home – Where the parties’ company was sold prior to the final hearing – Where the wife is unemployed and on Centrelink benefits – Where the husband has a higher earning capacity – Where the wife has the capacity to earn an income and gain employment – Where the wife’s parents have resided in the former matrimonial home rent free – Where the wife has no borrowing capacity – Where the children are to spend nine nights a fortnight with the husband and four nights a fortnight with the wife – Where the husband has adult children from a former marriage – Where there is to be no basis for a departure from the child support assessment – Where the husband is to pay spousal maintenance payment to the wife for period of one year – Sale of the former matrimonial home ordered – Division of 55 per cent in the wife’s favour.

Legislation:
Child Support (Assessment) Act 1989 ss 116, 117, 118, 124

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61DA, 67Z, 68P, 68Q, 72, 74, 75, 79, 80, 81, 90SM, 102NA, 106A, 114, Pt VII, Pt VIII

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Bell & Nahos [2016] FamCAFC 244

Blinko & Blinko [2015] FamCAFC 146

Dickons & Dickons (2012) 50 Fam LR 244

Hall & Hall (2016) 257 CLR 490

Isles & Nelissen (2022) 65 Fam LR 288

Kirkland and Granger [2007] FamCA 1471

M & M (1988) 166 CLR 69

Mallet v Mallet (1984) 156 CLR 605

Mitchell and Mitchell [1995] FamCA 32

Mulvany & Lane (2009) FLC 93-404

Re G: Children’s School (2000) FLC 93-025

R & C [1993] FamCA 62

Stanford v Stanford (2012) 247 CLR 108

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 1 First Instance

Number of paragraphs: 446

Date of last submission/s: 11 October 2022

Date of hearing: 9 - 13 May 2022; 22 - 24 August 2022; 6 - 7 September 2022; 9 September 2022; and 13 September 2022

Place: Melbourne

Counsel for the Applicant
(10-13 May 2022): Ms Smallwood SC

Counsel for the Applicant for cross-examination of the Respondent
(23 August 2022; 7 September 2022): Ms Devine

Solicitor for the Applicant
(10-13 May 2022): McDonald Slater And Lay

The Applicant (22-24 August; 6-7 September, 9 September; 13 September 2022): Litigant in person

Counsel for the Respondent: Ms Byrnes

Solicitor for the Respondent: Kennedy Partners

Counsel for the Independent Children's Lawyer: Mr Taghdir

Solicitor for the Independent Children's Lawyer: Creative Family Law Solutions
ORDERS

MLC 12653 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS LEESON

Applicant

AND:
MR GOSLEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HARTNETT J

DATE OF ORDER:

23 December 2022

THE COURT ORDERS THAT:
Final parenting orders
1.All previous parenting orders are dismissed.
2.The father have sole parental responsibility for Y (“Y”) born 2013 and Z (“Z”) born 2014 (collectively “the children”). Such sole parental responsibility is to include but not be limited to all decisions for medical issues (inclusive of allied health and psychology), all decisions in relation to the administration and management of the child Y National Disability Insurance Scheme plan, and all decisions in respect of the children’s education.
3.For the purpose of the father’s exercise of sole parental responsibility in accordance with Order 2 above, the father shall, as soon as practicable, do all acts and things as may be required to:
(a)keep the mother informed, by way of email and/or text message, of any and all decisions made by him, affecting the children’s medical care; and
(b)provide to the mother a copy of:
(i)any significant correspondence passing between the father and any medical practitioner or clinician treating the children, or one of them; and
(ii)any document provided to the father in the assessment, diagnosis and/or treatment of the children, or one of them, including referrals, reports, assessments, test results and prescriptions.

4.Within 28 days hereof, the father provide, or cause to be provided, a copy of these orders to each of the children’s current treating health care providers and/or clinicians (including allied health care professionals and psychologists, as applicable) and to FF School or any other school the father determines the children shall attend from time to time.

AND THE COURT NOTES THAT:
A.It is the intention of the father to enrol the children at FF School to commence at the beginning of Term 1 of the 2023 academic year.

AND THE COURT FURTHER ORDERS THAT:
5.The children live with the father.
6.The children spend time with the mother as follows:
(a)during all school term periods (and subject to Order 7 below):
(i)each alternate week from the conclusion of school (or 3.30pm) on Thursday until the commencement of school on Monday;
(ii)each other week (being a fortnightly occurrence) on a Wednesday from the conclusion of school (or 3.30pm) until the commencement of school on Thursday; and

(b)subject to Orders 6(d) and 10 hereafter, for one-half of all Term 1, 2 and 3 school holiday periods:
(i)in 2023, and in each alternate year thereafter, for the second half of the said holiday period;
(ii)in 2024, and in each alternate year thereafter, for the first half of the said holiday period; and

(c)subject to Orders 6(e) and 11 hereafter, for one-half of all Term 4 school holiday periods:
(i)in 2022, and in each alternate year thereafter, for the first half of the said holiday period;
(ii)in 2023, and in each alternate year thereafter, for the second half of the said holiday period; and

(d)each year during the Christian Easter period defined as commencing at 10.00am on Good Friday and concluding at 5.00pm on Easter Monday (“the Easter period”):
(i)in 2023, and in each alternate year thereafter, from 10.00am on Good Friday until 10.00am on Easter Sunday;
(ii)in 2024, an in each alternate year thereafter, from 10.00am on Easter Sunday until 7.30pm on Easter Monday; and

(e)each year during the Christmas period as defined as commencing at 10.00am on 24 December and concluding at 7.30pm on 26 December (“the Christmas period”):
(i)in 2022, and in each alternate year thereafter, from 10.00am on 24 December until 3.00pm on Christmas Day;
(ii)in 2023, and in each alternate year thereafter, from 3.00pm on Christmas Day until 7.30pm on 26 December; and

(f)each year on Mother’s Day, from 10.00am on that day, until the commencement of school (or 9.00am) on the Monday immediately following the Mother’s Day;
(g)each year on the mother’s birthday:
(i)if the mother’s birthday falls on a school day, from the conclusion of school, until 10.00am the following day;
(ii)if the mother’s birthday falls on a non-school day, from 10.00am until 7.30pm on that day; and

(h)at such other times as may be agreed between the parties in writing.

7.In the event of a public holiday or curriculum day immediately following the children’s time in a party’s care on a weekend, the children’s time in that party’s care will be extended to the commencement of school (or 9.00am) the following day.
8.The children’s time in the mother’s care pursuant to these orders be suspended and the children otherwise live with the father, as follows:
(a)each year on Father’s Day, from 10.00am on that day, until the commencement of school (or 9.00am) on the Monday immediately following Father’s Day; and
(b)each year on the father’s birthday:
(i)if the father’s birthday falls on a school day, from the conclusion of school, until 10.00am the following day; and
(ii)if the father’s birthday falls on a non-school day, from 10.00am until 7.30pm on that day.

9.For the purpose of celebrating the children’s respective birthdays in each year, the children spend time with each party, as follows:
(a)in the event that the relevant child’s birthday falls on a school day, with the parent in whose care they are not at that time, from the conclusion (or 3.30pm) until 7.30pm on that day, and otherwise, with the other parent; and
(b)in the event that the relevant child’s birthday falls on a non-school day, with the parent in whose care they are not at that time, from 10.00am until 3.00pm on that day, and otherwise, with the other parent.

10.For the purpose of the children’s time in each parties’ care during the Easter period:
(a)the relevant holiday period will be suspended (“the school holiday period suspension”), and the children will spend time, or live, with the parties (as the case may be), in accordance with the Easter period in Order 6(d) above; and
(b)upon conclusion of the Easter period, the relevant school holiday period will resume, and the parties will ensure, despite the school holiday period suspension, that the children spend time, and live, with the parties (as the case may be), on an equal basis.

11.For the purpose of the children’s time in the parties’ care during the Christmas period :
(a)the holiday period will be suspended (“the school holiday period suspension”) and the children will spend time, or live, with the parties (as the case may be), in accordance with the Christmas period in Order 6(e) above; and
(b)upon conclusion of the Christmas period, the school holiday period will resume, and the parties will ensure, despite the school holiday period suspension, that the children spend time, and live, with the parties (as the case may be), on an equal basis.

12.For the purpose of calculating and configuring the children’s time in each party’s care during school holiday periods:
(a)the school holiday period is deemed to:
(i)commence at the conclusion of school on the last day of term on which the children are required to attend school (whether remotely or in person); and
(ii)conclude at the commencement of school on the first day of term on which the children are required to attend school (whether remotely or in person); and

(b)at the conclusion of the school holiday periods, the school term arrangements continue in the same cycle as if the holiday period had not occurred.

AND THE COURT ORDERS, BY CONSENT, THAT:
13.The child, X born 2008 (“X”) spend time with the father from time to time in accordance with X’s expressed wishes and as may be agreed directly between X and the father.

AND THE COURT FURTHER ORDERS THAT:
14.Unless otherwise agreed between the parties in writing, for the purpose of the changeover of the children, the party who is to have the children in their care, will collect the children from the other party’s place of residence or the children’s school, on a school day.
15.Unless otherwise agreed between the parties in writing, the party in whose care the children are at the time, facilitate FaceTime communication between the children and the other parent, as follows:
(a)each alternate day between 5.00pm and 5.30pm with the parent in whose care the children are at the time, to make the necessary arrangements for the children’s communication with the other parent; and
(b)as may otherwise be reasonably requested by the children, or one of them, from time to time, and the party in whose care the children are, at the time, will not unreasonably restrict the children’s communication with the other party.

16.Each party be at liberty to travel interstate with the children during the children’s time in that party’s care upon giving the other party at least 14 days’ written notice of his or her intention to travel including a copy of the children’s return air tickets (if applicable) and contact and accommodation details.
17.The father to keep current passports for the children at his expense and such passports shall be retained in his possession.
18.Each party be at liberty to travel overseas with the children during the children’s time in that party’s care provided that such party gives the other party at least 42 days’ written notice of his or her intention to travel including:
(a)the proposed dates of travel;
(b)a copy of the children’s return air tickets (if applicable); and
(c)contact and accommodation details.

19.For the purpose of international travel:
(a)the father release the children’s passports to the mother upon receipt of prior consent in writing of each party; and
(b)within seven (7) days of the mother returning to Australia, the mother do all acts and things as may be required to deliver, or cause to be delivered, to the father, each child’s passport.

20.Each party keep the other informed of their mobile telephone, email address and residential address, and advise the other in writing, within 48 hours of any change to such details.
21.Except in the case of an emergency or otherwise agreed between the parties in writing, the parties communicate in respect of the day-to-day arrangements for the children and their welfare using such parenting software application as may be agreed by them, in writing and at their joint equal cost and expense.
22.Each party be required to forthwith provide, or cause to be provided, to the other party any and all written communications between him or her and the children’s school and in order to give effect to this order, each party forthwith give an irrevocable authority to the school, authorising the school to provide a copy of all correspondence to and from each party.
23.Each of the parties be and is hereby authorised to:
(a)Receive and/or obtain any information, notices, school reports, class lists, family contact details, school photographs, correspondence, and/or newsletters directly from any school and/or provider of extra-curricular or sporting activities attended by the children, or either of them;
(b)attend all events to which parents are usually invited and permitted to attend, including but not limited to open days, concerts, parent-teacher interviews, sports days and like events; and
(c)provide a copy of these orders to any school or extra-curricular activity provider attended upon by the children.

24.The mother and father, their servants and agents, be and are hereby restrained from:
(a)making derogatory or denigrating comments about the other parent, a partner (if any) or a member of the other parent’s family, in the presence or hearing of the children and/or X and/or any other person, or allowing a third party to do so; and/or
(b)discussing these proceedings with the children and/or X, or in their presence or hearing, or allowing the children and/or X to remain in the presence of anyone discussing these proceedings.

25.Pursuant to s 68P(2)(a) of the Family Law Act 1975 (“the Act”), to the extent that these orders herein may be inconsistent with the interim intervention order that has been made by a Magistrates’ Court (“the intervention order”):
(a)these orders herein shall prevail over such order and operate according to its terms; and
(b)the intervention order is invalid, by force of s 68Q(1) of the Act.

26.The Independent Children’s Lawyer is hereby discharged.

Final property orders
27.Each party forthwith do all acts and things and sign all such documents as may be required to within 30 days hereof place on the market for sale (“the sale”), the property known as and situated at B Street, Suburb C in the State of Victoria, being the whole of the land more particularly described in Certificate of Title Volume …, Folio … (“the property”) on the following terms and conditions:
(a)GG Real Estate & HH Real Estate in Suburb C be appointed the selling agent (“the selling agent”);
(b)the listing price range and reserve price (as applicable) be nominated by the selling agent but be a figure of no less than $4.4 million unless agreed in writing between the parties after taking advice from the selling agent;
(c)a conveyancer solicitor be appointed by the husband to undertake the conveyance of the sale; and
(d)the method of sale be by private sale.

28.Liberty be reserved to either party to apply with respect to the terms and conditions of sale.
29.In the event that the parties agree, or the selling agent recommends (regardless of whether or not the parties agree), that certain action be taken by, or on behalf of the parties to prepare the property for sale (including but not limited to maintenance, repairs, hired furnishings and/or styling), the parties forthwith give effect to such agreement or recommendation, at their joint equal expense, and in the event that only one of the parties meets the cost of said maintenance, repairs, hired furnishings and/or styling, or the parties each make an unequal contribution to the said maintenance, repairs, hired furnishings and/or styling, then Order 33(g) below, will apply.
30.The wife do all acts and things and sign all such documents as may be required to co-operate with the selling agent, and without limiting the generality of the foregoing, to include:
(a)making the property readily available for inspection on dates and at times as may be reasonably requested by the selling agent from time to time, subject to compliance with COVID-19 restrictions, if any;
(b)not interfering with the presentation, inspections and negotiations conducted by the selling agent; and
(c)ensuring the property, including the grounds, are maintained in a neat, clean and presentable condition at the time of inspection by the selling agent and/or prospective buyers.

31.In the event that the wife fails to comply with the request and recommendations of the agent or the solicitor for the purposes of the sale, the husband forthwith be appointed as sole trustee for the purposes of the sale of the property.
32.For the purposes of completing the sale of the property, the husband be appointed pursuant to s 106A(1) of the Act to:
(a)execute any necessary instrument or deed associated with the sale;
(b)sign any documents required to withdraw any caveats lodged over the property;
(c)sign any documents required on behalf of either or both parties to complete the sale;

(d)do any such other acts or things required to complete the sale;
(e)the husband may elect to have the property transferred to him on trust for the sale;
(f)the husband be at liberty to provide a sealed copy of these orders to any authority or organisation involved with the sale of the property as evidence of his authority outlined above.

33.Upon settlement of the sale of the property, the proceeds of sale be disbursed in the following manner and order of priority:
(a)first, in payment of all costs and expense of, and incidental to, the sale including but not limited to costs and the selling agent’s commission;
(b)secondly, in adjustment of rates and taxes outstanding with respect to the property in favour of the purchaser (if any);
(c)thirdly, in payment and discharge of the following loans secured by way of Mortgage Dealing No…. in favour of NN Bank
(i)account no. ending in …75;
(ii)account no. ending in …51; and
(iii)account no. ending in …69;

(d)fourthly, in payment and discharge of the ANZ personal loan (account no. ending in …83) save that the husband shall solely contribute the sum of $28,689 to this payment and discharge;
(e)fifthly, in payment of the JJ Bank Overdraft (Contract no. …);
(f)sixthly, in payment of amounts payable and outstanding to the builder, KK Pty Ltd, in the approximate sum of $20,400;
(g)seventhly, and to the extent not addressed by Order 29 above, in reimbursement to a party, for an expense, or a proportion of an expense met by him or her of the nature contemplated in Order 29 above;
(h)eighthly, in payment of BB School fees for Y, Z and X up to, and including, the conclusion of Term 4 of the 2022 academic year (including the fees for Terms 1 and 2 of the academic year to the extent that they have not been paid in accordance with Order 1 of the orders made on 21 January 2022) and Order 1 of the orders made on 21 January 2022 be, and is hereby, discharged;
(i)ninthly, sums owing to Suburb H Shire in outstanding rates for the property;
(j)tenth, the total sum of $8,487 owing to the water company, the electricity company and the gas company;
(k)eleventh, the sum of $106,000 to Ms LL (the wife’s mother) in repayment of the balance of funds owing to her; and
(l)the balance then remaining in proportions of fifty-five per cent (55%) to the wife and forty-five per cent (45%) to the husband, save that from each of the parties share, before payment out to each of them, shall be deducted the following:
(i)from the husband’s share:
A.the sum of $7,706.50 payable to the wife;
B.any and all outstanding costs orders (if any) made against the husband from his share payable to the wife.

(ii)from the wife’s share:
A.any and all outstanding costs orders made against the wife payable to the husband.

34.The wife be liable for any and all expenses and debt (including any arrears outstanding in respect of these expenses) in respect of water and sewerage, gas and electricity and any and all utilities in respect of the property from 1 April 2022.
35.Pending settlement of the sale of the property:
(a)the wife have sole use and occupation of the property save that the husband be permitted to attend at the property, by prior arrangement between the parties in writing, to prepare it for sale;
(b)the parties hold their respective interests in the property in trust pursuant to the terms of these orders; and
(c)save and except for the purpose of implementing the terms of these orders, pending completion of the sale and pursuant to s 114 of the Act, each party, by themselves, their servants and/or agents, be and are hereby restrained from:
(i)selling, alienating, encumbering, further encumbering or dealing with the property in any manner whatsoever, without the prior consent in writing of the other party (via each party’s solicitors) or order of the Court; and/or
(ii)withdrawing or dealing with, in any manner whatsoever, the funds (if any) in the mortgage offset accounts held with NN Bank.

36.The parties do all acts and things as may be necessary, including the signing of documents (including but not limited to any discharge authority or PEXA authorisation form) to give full force and effect to the provisions of these orders, and in the event that either party refuses or neglects to sign any document required to give effect to these orders within 14 days of being requested to do so, or as may be required to comply with the party’s obligations pursuant to these orders, then pursuant to s 106A of the Act, an officer of the Federal Circuit and Family Court of Australia (Division 1) with the requisite power, be and is hereby authorised to sign on behalf of the defaulting party upon the request of the non-defaulting party, in writing.
37.The wife forthwith do all acts and things and sign all such documents as may be required to complete, execute and lodge with the Australian Taxation Office, the tax returns for M2 Pty Ltd (ACN …) and O Pty Ltd (ACN …) (“the trading entities”) for the financial years ending 30 June 2020, 2021 (and 2022, when required).
38.Any cash sum resulting from the sale of the M Group shall be applied in payment of all and any CGT and other taxation liabilities of the M Group together with all and any associated accounting fees outstanding and thereafter in payment to each of the parties in equal shares. Any loss resulting from the sale of the M Group, together with any taxation liabilities, and all and any associated accounting fees outstanding and incurred by the M Group in respect of the sale shall be borne equally by the parties.
39.Each party forthwith do all acts and things and sign all such documents as may be required to close all accounts in their join names (save and except for the mortgage off-set accounts with NN Bank which will be adjusted at the time of settlement of the sale of the property) and in the case of any other debit account, adjust the net proceeds in such account after payment of bank fees and charges (if any), on an equal basis.
40.The husband pay or cause to be paid into a bank account as nominated by the wife a monthly sum of $4,166 for 12 months by way of spousal maintenance to commence 1 January 2023.
41.The wife retain, to the exclusion of, and free from any claim by the husband, and for her sole use and benefit, the following assets:
(a)cash standing to the credit of the wife in any bank account recorded in her name, whether solely or with an individual other than the husband, and/or in which she otherwise has a legal or beneficial interest and/or entitlement;
(b)Motor Vehicle 1, unencumbered;
(c)the furniture and chattels in the wife’s possession;
(d)superannuation entitlements and accrued employee entitlements and benefits (if any) in her name or otherwise earned by her.

42.Unless otherwise provided for in these orders, the wife be liable for, and indemnify the respondent, for all time, in respect of any and all loans, liabilities, debts and/or payments in her personal name (and/or for which she is otherwise responsible and/or liable), past, present and future, including but not limited to:
(a)credit card liability for any credit card account recorded in her name (and/or for which she is otherwise liable);
(b)past, current and future personal taxation liabilities, including but not limited for the financial years ending 30 June 2021 and 2022; and
(c)personal and other loans.

43.The husband retain, to the exclusion of, and free from any claim by the wife, and for his sole use and benefit, the following assets:
(a)the following motor vehicles:
(i)Motor Vehicle 2 (and with the wife to do all acts and things as may be required to make available for collection by the respondent, or on his behalf, at his expense and in good order and repair, the car seat that was acquired with the Motor Vehicle 2); and
(ii)the old Motor Vehicle 3.

(b)cash standing to the credit of the husband in any bank account recorded in his name, whether solely or with an individual other than the wife, and/or in which he otherwise has a legal or beneficial interest and/or entitlement; and
(c)superannuation entitlements and accrued employee entitlements and benefits (if any) in his name or otherwise earned by him.

44.Unless otherwise provided for in these orders, the husband be liable for, and indemnify the wife, for all time, in respect of any and all loans, liabilities, debts and/or payments in his personal name (and/or for which he is otherwise responsible and/or liable), past, present and future, including but not limited to:
(a)credit card liability for any credit card account recorded in his name (and/or for which he is otherwise liable);
(b)past, current and future personal taxation liabilities, including but not limited for the financial years ending 30 June 2021 and 2022; and
(c)personal and other loans.

45.That save and except as otherwise provided for in these orders:
(a)each party be solely entitled to the exclusion of the other to all property owned by or in the possession of that party as at the date of these orders;
(b)each party be solely liable for and indemnify the other against any liability in that party’s sole name or encumbering any item of property to which that party is entitled pursuant to these orders;
(c)insurance policies remain the sole property of the owner named thereon;
(d)each party retain their superannuation entitlements and other employment related entitlements and the other party forgo any claim she or he may have to any superannuation benefits or employee related entitlement belonging to, or eared by, the other; and
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

46.The wife’s application for a departure order from the child support assessment is dismissed.
47.Otherwise, all extant applications are dismissed and the matter removed from the list.

AND THE COURT NOTES THAT:
B.Pursuant to s 81 of the Act, the Court intends that these orders shall, as far as practicable, finally determine the financial relationships between the parties to the marriage, including a final determination in relation to any of the entities of the M Group including the sale of the M Group, and avoid further proceedings between them.

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

The proceeding involved competing parenting orders as sought under Part VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of the two children of the applicant wife (“the wife”) and the respondent husband (“the husband”), and in respect of the wife’s eldest child, who resided with the parties throughout their marriage. Additionally, each of the wife and the husband sought competing property orders under Part VIII of the Act. The wife also sought a departure from the existing administrative child support assessment, and spousal maintenance. The proceeding has been highly litigious since commencing on 18 November 2020, and had a number of applications filed in the last six months of the litigation.
On 10 November 2021, the matter was set down for trial as a five day matter commencing on 9 May 2022.
On 13 May 2022, the Court made orders adjourning the proceeding, part-heard, to the 22 August 2022 for a further five days. Subsequently, it became apparent that the consultant clinical psychologist, Dr E (“Dr E”), would not be available during those five days and accordingly the matter was listed to a part-heard final hearing to commence 22 August 2022 for four days, and thereafter for a single day on 9 September 2022.
On 17 June 2022, the wife filed a Notice of Address for Service as a litigant in person. As a result, the Court on 6 July 2022, on its own motion, listed the matter for mention in view of the wife continuing the litigation as a litigant in person. On that day, a s 102NA(2) of the Act order was made on a discretionary basis, making provision for the wife to obtain legal representation from Victoria Legal Aid (“VLA”) to the extent of that representation being obtained for the balance of the proceeding, or for the purpose of cross-examining the husband only, at the discretion of VLA.
On 14 July 2022, the wife filed an Application in a Proceeding and subsequently on 20 July 2022 an Amended Application in a Proceeding seeking an adjournment of the proceeding and a raft of other orders. That matter was heard on 22 July 2022 and orders were made that day, which were followed by reasons for judgment not delivered until 22 August 2022 due to a leave absence taken by me immediately following the 22 July 2022 hearing. The orders were relevantly as follows:
THE COURT ORDERS, BY CONSENT, THAT:
1.The applicant wife be, and is, at liberty to file and serve, on or before 4.00pm on 8 August 2022, a sworn valuation of the real property situated at, and known as, [B Street], [Suburb C] in the State of Victoria, and is thereafter at liberty to rely on that evidence, if she so wishes.
…
AND THE COURT ORDERS THAT:
3.Leave be granted to the applicant wife to issue a subpoena to [Dr E] for production of notes taken by him in the course of his involvement with the parties and the children, [X] born […] 2018, [Y] born […] 2013, and [Z] born […] 2014, and such notes produced on subpoena are able to be inspected by the parties and their legal representatives/counsel, and are not to be photocopied other than by the Independent Children’s Lawyer, nor the contents of such notes to be conveyed or disseminated to any person other than to the parties in these proceedings.
4.The costs of the respondent husband and Independent Children’s Lawyer be reserved.
AND IT IS FURTHER ORDERED, BY CONSENT, THAT:
5.That forthwith, each party do all acts and things and sign all such documents as may be required to formally engage [Ms D], Psychologist of [F Psychologists], located [G Street], [Suburb H] in the State of Victoria (the engagement) as treating psychologist for the parties’ child, [Z], born […] 2014 (Z).
6. That for the purpose of the engagement:
(a)Within seven (7) days, the Independent Children’s Lawyer send to [Ms D] by way of email:
(i)The proposed letter prepared by the Independent Children’s Lawyer annexed to these orders and marked as Annexure A;
(ii)The recommendation letter from [J Health Service] ([J Health Service]) dated 28 June 2022;
(iii)The Case Outline of the Independent Children’s Lawyer filed in these proceedings on 8 May 2022.
(b)In the event that [Ms D] requests provision of any and/or all of the expert reports of [Dr K], Psychiatrist, and/or [Dr E], Psychologist and Family Report Writer, and/or the DFFH report(s) to the court dated 4 March 2022 and 7 February 2022 filed in these proceedings, the Independent Children’s Lawyer forthwith provide her with a copy of the reports so requested;
(c)The applicant and respondent each follow and adopt in a timely manner, all reasonable recommendations of [Ms D] including but not limited to:
(i)The frequency, duration and mode of appointments for [Z] (including but not limited to the extent of parental participation, if any); and
(ii)Assessments, tests, therapy and/or treatment including a sensory assessment if considered necessary;
(d)The party in whose care [Z] is at the time of the appointment(s) with [Ms D] ensure that [Z] attends at the appointment as scheduled; and
(e)All written communications between the applicant and/or respondent with [Ms D] be copied to the other party contemporaneously, by way of email.
7.That [Ms D] be at liberty to contact, and communicate with, any and all relevant staff members at the school at which [Z] attends from time to time, in relation to any and all matters which, in her professional opinion, are relevant to [Z], including but not limited in relation to [Z’s] academic, social and/or other progress and development.
8.That each party be liable for, and pay, one half (50%) of any and all out of pocket costs and expenses associate with [Z’s] attendance on [Ms D], including but not limited to consultations with her, tests, assessments, therapy and/or treatment as recommended by her, as and when such costs become due and payable.
AND THE COURT FURTHER ORDERS THAT:
9.The applicant wife’s Amended Application in a Proceeding filed 20 July 2022 be and is hereby dismissed.
…
Subsequently, correspondence was received by chambers from VLA that they were unable to facilitate the s 102NA of the Act request. On 17 August 2022, of its own motion, the Court made the following orders in the nature of a request for the appointment of a pro bono barrister for the wife:
1.The Federal Circuit and Family Court of Australia’s National Pro Bono Scheme Coordinators lodge a request with Victorian Bar Pro Bono Barristers Court Referral Scheme (“the Scheme”) for assistance to the Applicant.
2.The purpose of the request to the Scheme is to assist the Applicant (‘the unrepresented party’) by cross-examining the husband at the part heard final hearing.
3.The request to the Scheme is limited to providing the assistance as specified in order 2 of these orders, unless the accepting member of the Scheme privately agrees to extend the assistance provided, or a further order of the Court is made.
…
(Emphasis added)
An independent barrister thereafter agreed to act on a pro bono basis for the wife for the purpose of cross-examining the husband. On 22 August 2022, being the resumption of the part-heard trial, the Court relevantly made orders that:
…
2.The transcript for the part-heard final hearing wherein the applicant is cross-examined, namely on the 10-13 May 2022 and 22 August 2022 up until the commencement of the evidence of [Mr U] but not including that evidence, be made available for inspection by the wife’s pro bono Counsel, Ms Devine, in the Melbourne Registry as soon as is practicable and the transcript to be returned to the possession of the Court once Counsel has no need for the transcript.
3.Liberty be granted to Ms Devine to inspect the transcripts in preparation for the cross-examination of the husband.
AND THE COURT NOTES:
A.That such cross-examination is occurring following the making of a section 102NA of the Family Law Act 1975 (Cth) order and that such transcript is not to be copied, nor provided or disseminated to the wife and/or any other party.
At the trial on 24 August 2022, the Court relevantly made orders that:
…
2.The respondent’s amended application in a case filed 17 August 2022 and any amended response filed by the applicant is adjourned for hearing to 6 September 2022 at 10.00am
3.The applicant file and serve any amended response and affidavit in support on or before 31 August 2022 at 4.00pm.
4.The applicant is not at liberty to rely upon her affidavit filed 19 August 2022 as the affidavit referred to in the order above is in substitution.
5.The question of the costs of the respondent and of the ICL as reserved in respect of the hearing on 22 July 2022 is adjourned for hearing to 6 September 2022 at 10.00am.
6.The question of payment of the monies of the witness expenses of [Dr W] and [Dr K] to be heard on 6 September 2022 at 10.00am.
AND THE COURT NOTES THAT:
A.The respondent on 19 August 2022 provided to the applicant the costs schedule and a copy of the costs agreement as required under the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 and in relation to Order 5 above.
B.On 6 September 2022 the Court will have before it in evidence the claimed costs of [Dr K].
C.The costs of [Dr W] as claimed by her for her attendance pursuant to a subpoena issued 2 May 2022 date by the Independent Children’s Lawyer on behalf of the applicant are fixed to the sum of $1,200 and reserved as is the quantum of which party/parties shall make payment of those costs.

On 6 September 2022, the interim applications were heard and judgment reserved with otherwise orders made, relevantly, as follows:
1.Each of the applicant and respondent pay one half of the costs of [Dr W’s] attendance at the trial such that each party pay to [Dr W] within 30 days hereof the sum of $600.
2.That the respondent wife pay the witness expenses of [Dr K] for his attendance at the trial in the sum of $1,650. She shall be solely responsible for such payment and make payment within 30 days hereof.
On 9 September 2022, the trial continued with the cross-examination of Dr E, and subsequently the part-heard trial was adjourned to 13 September 2022 for the conclusion of the cross‑examination of the husband.
At the conclusion of the hearing on 13 September 2022, orders were made for the parties to file written closing submissions, which the Independent Children’s Lawyer (“ICL”) filed on 27 September 2022, the husband on 4 October 2022 and the wife on 11 October 2022. In addition, orders were made dismissing paragraph 2 of the orders sought by the wife in her Amended Response to an Application in a Proceeding filed 31 August 2022. That orders as sought was:
2.That the Honourable Court determine the value of the FMH by either adopting the last jointly appointed single expert by [P Valuers] on […] 2021 in the amount of $3mil or, in the alternative, order that the President of the Real Estate and Stock Institute (RESI), or such other comparable body, appoint two sworn valuers to swear the value of the FMH as soon as practicable with the costs shared equally by the parties, and for the average of those two valuations to be used in the matrimonial balance sheet for a just and equitable division of the net assets.
Before proceeding to the factual background to this matter, I would like to acknowledge the pro bono work of Ms Devine of counsel who provided much assistance to the wife for which I thank her. That assistance included eight days of preparation and participation in one day of the trial for the cross-examination of the husband. The matter was complex. The material voluminous, as provided to Ms Devine, by the wife. The preparation effort was extraordinary. The conscientious work done by Ms Devine was a great tribute to the Victorian Bar Pro Bono Barristers Court Referral Scheme.
BACKGROUND
The following relevant factual background, in essence as to the parenting orders part of the proceeding, is enlarged upon in a discussion of the evidence hereafter.
The husband was born in 1965 in New Zealand and was 57 at trial. The husband is a permanent resident of Australia and has lived in Australia since early 1992. The husband has four adult children aged between 29 and 24 years of age with his former wife from whom he separated with on 9 October 2007. The husband is in good health and works as a medical professional.
The wife was born in 1974 and was 48 at trial. The wife is in good health. The wife is a professional. At trial the wife was unemployed, pending the outcome of an employment opportunity at BP University in a research capacity.
The wife and the husband commenced cohabitation in 2010, were married in late 2011, separated 20 July 2020, and divorced in early 2022.
There are two children of the marriage, Y (“Y”) born 2013 and aged 9 years, and Z (“Z”) born 2014 and aged 8 years (“the children”).
There is another child of the wife who was in the household of the husband and wife, X, born 2008 and aged 14 years (“X”). X is the biological child of the wife and her former partner, Mr MM (“Mr MM”). The wife and Mr MM separated in 2009.
X had her surname changed twice. In late 2010, from MM to Leeson, and in 2015, from Leeson to Gosley; with Mr MM giving consent to the second name change. Mr MM moved to Sydney in early 2011 and since that time X has had limited contact with her biological father and only via telephone. In August 2011, consent orders were made between the wife and Mr MM for the wife to have sole parental responsibility. X has lived with the husband since she was two years of age.
In 2020, aged 7 years, Y was first diagnosed by Dr AU, psychologist, with Autism Spectrum Disorder (“ASD”). Y receives National Disability Insurance Scheme (“NDIS”) support for speech and occupational therapy.
Following an incident between the parties in early 2020, Victoria Police issued a Family Violence Safety Notice listing the wife as a protected person and the husband as the respondent. Victoria Police recorded both the husband and the wife as being intoxicated. The arising proceeding was subsequently dismissed by the Suburb OO Court in early 2020 following the non-attendance of the wife at court, and Victoria Police seeking to withdraw the application. The Department of Family, Fairness and Housing (“DFFH”) (formerly the Department of Health and Human Services) s 67 Response notes that no Intervention Order (“IVO”) was granted as the wife issued a statement of no complaint.
In early 2020, the husband obtained a referral for Y to see Dr PP (“Dr PP”), paediatrician, to diagnose and if necessary, assist with Y on an ongoing basis. Dr PP met with Y and the wife face-to-face, with the husband on the phone. In mid-2020, Dr PP provided a letter confirming Y’s diagnosis of ASD. It was at that time, the husband accepted the diagnosis, he being satisfied that the proper assessment procedure had been undertaken, and not so satisfied with the earlier diagnosis assessment procedure.
In mid-2020, Y commenced seeing Ms QQ (“Ms QQ”) and Ms RR, both speech therapists from SS Health Service, fortnightly.
In mid-2020, the parties attended marriage counselling with Ms TT (“Ms TT”). Due to the wife not feeling comfortable with Ms TT, the parties commenced seeing a psychologist, as chosen by the wife, being a psychologist whose speciality was in autism. The wife asserted the psychologist advised her to obtain an IVO and contact AT Family Services.[1]
[1] Affidavit of Dr K filed 9 June 2021, p. 12, 15.
In mid-2020, the wife vacated the former matrimonial home, B Street, Suburb C (“the FMH”) taking the children with her. She and the children commenced to reside in the maternal grandparents’ home.
In mid-2020, the wife applied for a Family Violence IVO against the husband listing herself and the three children as affected family members. Some days later, in 2020, a limited interim IVO was granted ex parte, listing the wife and the children as protected persons. The Magistrate did not order the husband to vacate the FMH. The application was adjourned for mention to late 2020. The husband was permitted to spend time with the children in accordance with Court orders or as agreed in writing, assumedly via negotiations between the parties’ solicitors.
Between 20 July 2020 and 27 August 2020 (some 38 days), the children spent no time with the husband. That is, the wife withheld them from contact with their father.
In or around 22 August 2020, the husband relocated from the main residence at the FMH into the studio and garage space across the driveway (“the studio”). He remained in that accommodation, which was suitable accommodation for himself and the children, until early 2022.
In mid-2020, the wife and children returned to the FMH. It was the husband’s evidence that the wife returned following a successful family dispute resolution (“FDR”). It is unclear and disputed between the parties what time the children spent with the husband upon their return to the FMH.
In late 2020, the maternal grandparents moved into the main residence of the FMH. They remained in occupation, without any prior consultation with the husband, and certainly not with his consent, for an unknown amount of time.
In or around late 2020, the parties attended FDR and reached an agreement regarding the children spending weekend time with the husband.
In late 2020, Victoria Police made an application to add to the existing IVO conditions, as they believed the behaviour between the parties would cause harm to the three children’s mental health and emotional wellbeing.
In or around late 2020, the wife filed a further IVO application in the Suburb OO Court.
On 18 November 2020, the wife filed an Initiating Application in the Court seeking orders for a property settlement.
In late 2020, the parties commenced reportable family therapy with Dr E.
In or around late 2020, some six months following separation, X stopped regularly communicating with and spending time with the husband. This caused the husband considerable distress, he having a close bond with X.
In late 2020, the IVO of mid-2020, obtained ex parte, was varied by Victoria Police, although what those variations were are unknown to the Court. The hearing at the Suburb OO Court was otherwise adjourned to early 2021. That hearing was further adjourned to mid-2021.
On 11 December 2020, the husband filed a Response to Final Orders seeking property orders only.
On 14 January 2021, the husband filed an Amended Response to Final Orders seeking both parenting and property orders.
From the commencement of Term 1 in January 2021, the children commenced spending time with the husband each Wednesday for dinner from 3.30pm to 6.30pm and each alternate weekend from after school Friday to 6.30pm on Sunday. The parties disputed what time between 27 August 2020 and January 2021, the children spent with the husband.
On 3 February 2021, a Registrar made interim orders by consent for the parties to continue reportable family therapy and failing a parenting agreement, for Dr E to prepare a Family Report and for each of the parties to engage with Dr K (“Dr K”) to undertake a psychiatric assessment and report.
In early 2021, X commenced seeing psychologist Dr UU (“Dr UU”) as arranged by the wife solely. The husband was not aware of the psychologist’s name, nor provided with any information about X’s need for attendance nor progress.
In early 2021, Dr E terminated the family therapy between the parties.
In or around early 2021, the wife and children again moved to reside in the maternal grandparents’ home and the maternal grandparents moved into the FMH until they returned to their own home prior to its sale. Again, the maternal grandparents did so without the prior consent or knowledge of the husband.
The wife did not facilitate the children’s time with the husband during the Term 1, 2021 school holidays.
In mid-2021, Victoria Police were removed as the applicant in the IVO application and the wife was substituted as the applicant. The IVO matter was otherwise adjourned to late 2021, a period of over a year elapsing from the wife’s obtaining of an IVO ex parte order without a hearing on the evidence of both parties having been held.
On 24 May 2021, Dr K provided his psychiatric assessment and report. He did not consider the husband to be a risk to the children nor X but was of the opinion that the wife’s behaviours constituted a risk to the relationship between the husband and the children.
On 6 June 2021, the wife deposed to the first drawings of Z (“the first drawings”) being shown to her. The wife considered such drawings to be sexual in nature and disturbing. The wife again suspended the children’s time with the husband. By 23 June 2021, the children had resumed spending time with the husband.
In mid-2021, General Practitioner, Dr VV (“Dr VV”) was shown Z’s drawings by the wife. Dr VV made a report to the Sexual Offences and Child Abuse Investigation Unit (“SOCIT”) of the DFFH. Z was subsequently interviewed by SOCIT. Whilst the DFFH closed the report at the intake phase on 8 July 2021, it referred Z, without basis or explanation, to the WW Centre (“WW Centre”) for counselling.
In or about Term 3, 2021, Y commenced attending a weekly social skills group run by Ms QQ, one of her speech therapists, to improve her conversational skills, and ability to interpret language, and handle bullying.
In mid-2021, the DFFH received a report alleging the husband was reluctant to have Z assessed for learning difficulties, and further that X had made disclosures about physical abuse by the husband towards the wife and children. SOCIT indicated there was no action required, the matter had been previously investigated and there was no timeline for the husband allegedly pulling Y by her hair. The report was closed in mid-2021.
In late 2021, a final IVO order was made against the husband by consent without admissions. The protected persons continued to be the wife and the children. The IVO order expired in early 2022. Victoria Police records noted that the order had only basic conditions in place. The IVO order allowed the children to spend time with the husband in accordance with Court orders.
In late 2021, the wife and children returned to the FMH. The maternal grandparents had been living in the FMH, for the second time, for five months at that time. The husband was in occupation of the studio.
On 17 September 2021, Dr E provided his first Family Report and recommended that one of the parties should relocate from the FMH property.
On 10 November 2021, the matter was listed for a five day final hearing commencing 9 May 2022.
On 17 November 2021, the wife deposed to a second series of drawings by Z which concerned her (“the second drawings”).
In late 2021, the wife consulted Dr XX (“Dr XX”) regarding Z’s drawings. On 24 November 2021, the wife’s solicitors emailed the husband’s solicitors advising that the wife had attended upon Dr XX for the purpose of seeking a referral to a psychologist for Z; one of the psychologists recommended being Dr W (“Dr W”). In fact, the wife had already seen Dr W.
In late 2021, the wife attended upon Dr W. In late 2021, Dr W made a report to DFFH.
On 24 November 2021, the wife suspended the children’s time with the husband, ultimately until February 2022.
A short time after the first visit, in 2021, the wife again attended upon Dr W and obtained a letter to ‘who it may concern’, which briefly set out a description of Z’s drawings as raised in the initial consultation between Dr W and the wife.
On 30 November 2021, Dr E prepared a letter to the parties’ solicitors following discussions with the parties’ solicitors on 29 November 2021 and in response to Z’s drawings and Dr W’s letter. He recommended that time between the husband and the children re-commence immediately.
In late 2021, Dr XX referred Z to see Dr YY, paediatrician (“Dr YY”). The husband had no input into the referral of Z to Dr YY and was not comfortable with such referral at that time.
On 7 December 2021, the husband filed an Application in a Proceeding seeking orders that the children reside with him.
On 8 December 2021, Dr E in a letter in response to the parties’ solicitors noted that the wife was seeing psychologist Dr ZZ (“Dr ZZ”), every two to three weeks. Between early 2020 and late 2021 the wife attended 53 sessions with Dr ZZ. The wife placed no evidence of Dr ZZ before the Court.
In late 2021, the husband, with the wife’s consent, obtained a referral from Dr BV (“Dr BV”) to Dr YY. Z subsequently attend upon Dr YY in late 2021.
In late 2021, Dr YY wrote a referral letter to the parties suggesting that Z be assessed and treated by the AB Health Service or J Health Service (“J Health Service”). This referral to J Health Service was recommended by Dr E in his Family Report dated 30 November 2021.
In early 2022, the wife made an application to extend the final IVO. An interim IVO order was granted, again, ex parte, which the husband, when brought to his attention, opposed. He considered there to be no basis for it. The matter remains outstanding, again awaiting a final hearing.
On 13 January 2022, the DFFH in their s 67Z Response indicated that the intake regarding Z’s drawings had been closed.
On 19 January 2022, the wife filed a Notice of Child Abuse, Family Violence or Risk naming the husband as the person alleged to have subjected or exposed the children to family violence, psychological and physical abuse, and Z to sexual abuse.
On 21 January 2022, a Senior Judicial Registrar made interim consent orders for Z to attend J Health Service; and for Y to commence attending upon Dr AC (“Dr AC”) (clinical psychologist), and to continue attending upon Dr AD (“Dr AD”) (occupational therapist), Dr PP (paediatrician), and Ms QQ (speech therapist), together with any other allied health practitioners as recommended by Y’s then current practitioners. Y had not seen Dr AC at that time, despite the first appointment having been scheduled. This occurred in mid-2022.
On 15 February 2022, a Senior Judicial Registrar made interim consent orders providing for the children to live with the wife and spend time with the husband each Wednesday for dinner; each alternate weekend from the conclusion of school Friday until 6.30pm on Sunday, and for three overnight stays during the April school holidays. These orders did not provide for X to spend time with the husband. The orders also provided for an ICL to be appointed, who was subsequently appointed on 22 April 2022.
In early 2022, the wife made a report to Victoria Police that she and the children were being kept under surveillance by the husband.
On 4 March 2022, a further DFFH s 67Z Responses indicated X and Z had been interviewed and from those interviews, the DFFH recommended the parties no longer reside on the same property, and have no communication with one another. The DFFH otherwise recommended Z see a paediatrician and both Z and Y each see a child psychologist specialising in child trauma.
In early 2022, the wife made a further report to Victoria Police making complain about the husband’s actions as discussed in [216] hereafter.
In early 2022, the husband left the FMH property and temporarily moved into a friend’s holiday home in AE Town.
A short time later, in 2022, the husband moved into rental accommodation at AF Street, Suburb C. The wife and children continued in their occupation of the FMH. The wife’s parents again took up residence in the FMH on 30 June 2022, and remain in residence, having sold their own property. The husband has not been consulted, nor consented to this arrangement.
On 2 May 2022, Dr E’s updated Family Report was released stating he viewed the children to be at risk in the current parenting arrangements. On 3 May 2022, the parties made a joint request for Dr E to answer questions in relation to the report. On 5 May 2022, Dr E provided responses to those questions.
MATERIAL RELIED UPON
At the commencement of the final hearing leave was granted to each of the parties to file material out of time, being the affidavit of Mr AA (“Mr AA”), the affidavits of the CEO of the M Group and of the accountant to the M Group, and the latest valuation by P Valuers as prepared by Mr U (“Mr U”).
The wife relied upon:
(1)an Amended Initiating Application filed 1 April 2022;
(2)a Response to an Application in a Proceeding filed 31 August 2022;
(3)her trial affidavit filed 1 April 2022;
(4)her Financial Statement filed 1 April 2022;
(5)her affidavit filed 29 April 2022 in response to Mr MM’s and Ms AG’s (“Ms AG”) affidavits;
(6)her affidavit in reply filed 29 April 2022;
(7)her case summary document filed 5 May 2022;
(8)affidavit of Mr U, valuer, filed 9 November 2021;
(9)affidavit of Mr AA, accountant, filed 10 May 2022;
(10)Costs Notice filed 19 August 2022;
(11)Balance Sheet dated 13 September 2022; and
(12)her written submissions filed 11 October 2022.
The orders made 22 July 2022 permitted the wife to file and serve an affidavit from a valuer as chosen by her, in relation to the valuation of the FMH. This was an order that gave the wife considerable latitude. At the resumption of the trial on 22 August 2022, the wife stated that she had not “filed that valuation because of the bias that was inherent in that report”.[2] The wife subsequently, and extraordinarily, during the course of the hearing on 22 August 2022, sought to rely on that unfiled and unserved affidavit. No leave was granted.
[2] Transcript 22 August 2022, p.5 lines 30-31.

The husband relied upon:
(1)a Further Amended Response filed 22 April 2022;
(2)an Amended Application in a Proceeding filed 17 August 2022;
(3)his trial affidavit filed 22 April 2022;
(4)his Financial Statement filed 22 April 2022 and Updated Financial Statement filed 22 August 2022;
(5)his case summary document filed 6 May 2022;
(6)affidavit of Mr MM filed 22 April 2022;
(7)affidavit of Ms AG filed 20 January 2022;
(8)affidavit of Mr AH, the accountant to the M Group, filed 26 April 2022;
(9)affidavit of Mr S, the CEO of the M Group, filed 26 April 2022;
(10)Notice to Admit filed 26 April 2022;
(11)affidavit of Mr R, N Pty Ltd valuation of the M Pty Ltd as trustee of the M Group Trust, filed 10 September 2021;
(12)affidavit of Mr U, valuer, filed 5 May 2022;
(13)Notice to Produce served 4 May 2022 (not filed);
(14)Notice disputing Facts served 4 May 2022 (not filed); and
(15)his written submissions filed 4 October 2022.
The ICL relied upon:
(1)the section 67Z Response filed 7 February 2022;
(2)the section 67Z Response filed 4 March 2022;
(3)the ICL’s case summary document filed 8 May 2022;
(4)affidavit of Dr E filed 6 May 2022 containing an updated Family Report dated 2 May 2022 and his responses dated 5 May 2022 to questions received from the parties’ legal practitioners; and
(5)written submissions filed 27 September 2022.
Both the ICL and husband relied upon the following affidavits of Dr E, clinical psychologist and the single expert:
(1)affidavit filed 3 November 2021 containing the first Family Report dated 17 September 2021;
(2)affidavit 9 November 2021 containing his responses dated 4 November 2021 to correspondence received from the husband’s solicitors;
(3)affidavit filed 3 December 2021 containing a further recommendations dated 30 November 2011; and
(4)affidavit filed 18 January 2022 containing his response dated 13 December 2021 to a letter from the wife’s solicitors.
In addition to the above, both the ICL and the husband relied upon the affidavit of Dr K, psychiatrist, filed 9 June 2021.
Tender bundles of documents were marked for identification and referred to at various times throughout the trial, but only the documents actually referred to were extracted and tendered in evidence as exhibits.
Further relevant background – Dr E’s evidence
The wife sought, on 22 July 2022, being an interim defended hearing in the middle of the part‑heard final hearing, that the evidence of Dr E be struck out and an order that Dr E produce his notes. As set out in my reasons for judgment delivered 24 August 2022, “the wife did not oppose Dr E proceeding to the preparation of a second Family Report following his first Family Report being prepared and dated 17 September 2021. Dr E has been considerably involved over a lengthy period of time in the parenting orders aspect of this trial and is a vastly experienced Clinical Psychologist who was appointed jointly as a single expert. The wife of course has an opportunity to cross-examine Dr E on his evidence”.[3] Her application that the evidence of Dr E be struck out was dismissed. The wife did cross-examine Dr E on his evidence. In relation to his notes, an order was made for the wife to file a subpoena for him to produce his notes. Those notes were produced and the wife availed herself of that production.
[3] Reasons for judgment delivered 24 August 2022, paragraph 46.
The wife indicated to the Court at that time that she had submitted a complaint against Dr E, with the Australian Health Practitioner Regulation Agency (“AHPRA”). There was no evidence before the Court as to any outcome of that complaint. Dr E only became aware of that complaint during cross-examination upon such information being provided to him by the ICL.
In her closing submissions of 11 October 2022, the wife sought that the expert evidence of both Dr E and Dr K, psychiatrist, be struck out. The wife submitted that:[4]
…neither [Dr K] nor [Dr E] are trained in family violence and this did not factor into their consideration. [Dr K’s] evidence was tested and found to be unreliable, and the weight applied to his assessment report should be minimal. The mother submits that [Dr E’s] updated family report, which is heavily based on [Dr K’s] opinions, should be struck out of evidence. [Dr E] failed on his mandatory and legal obligations to report [Z’s] drawings and behavioural disturbances and an APHRA investigation is underway.
[4] Wife’s written submissions filed 11 October 2022, paragraph 6.1.
The evidence of both experts was before the Court. The Court accepted the veracity of, and was much assisted by, this evidence as is discussed hereafter.
LEGAL PRINCIPLES
Pursuant to s 60CA of the Act:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child, contained in s 61DA of the Act, does not apply in certain circumstances.[5] If the presumption of equal shared parental responsibility does apply, or the Court is otherwise satisfied on the evidence that it is in a child’s best interests to make an order for equal shared parental responsibility, then the Court must consider whether it is in a child’s best interests and reasonably practical to spend equal time with each parent or, if not equal time, whether it is in a child’s best interests and reasonably practical for a child to spend substantial and significant time with each parent.
[5] Family Law Act 1975 (Cth) ss 61DA, 61DA(2).
Where there are reasonable grounds to believe that a parent has abused a child the subject of the proceeding or another child of that parent’s singular household at the time or engaged in ‘family violence’, as defined in s 4AB of the Act, the presumption is rebutted.[6] Further, the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility.[7]
[6] Family Law Act 1975 (Cth) s 61DA(2).
[7] Family Law Act 1975 (Cth) s 61DA(4).
To determine the best interests of the child, “the Court must consider the matters set out in subsections (2) and (3)” of s 60CC of the Act.[8] Sections 60CC(2) and 60CC(2A) of the Act set out the primary considerations as follows:
[8] Family Law Act 1975 (Cth) s 60CC(1).
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Section 60CC(2)(a) of the Act requires the Court to weigh up the benefit to the child of having a relationship with both parents. In doing so, the Court must give primary consideration as to whether there is an unacceptable risk of physical and/or psychological harm to the child in spending time with either parent.[9] The High Court of Australia (the “High Court”) considered in M & M (1988) 166 CLR 69 what magnitude of risk would justify a Court denying a parent access to a child and held that the test was best expressed as to whether there was an unacceptable risk, in that case of sexual abuse, to the child:[10]
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[9] M & M (1988) 166 CLR 69 at [25].
[10] M & M (1988) 166 CLR 69 at [25].
In the recent case of Isles & Nelissen(2022) 65 Fam LR 288 the Full Court of the Federal Circuit and Family Court (Division 1) Appellate Jurisdiction relevantly observed:
50In Fitzwater, Austin J rejected the proposition that a finding of unacceptable risk needs to be made according to the civil standard of proof, saying:
…
134.It must be borne in mind that proceedings in respect of children under Part VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at 76; ZP v PS (1994) 181 CLR 639 at 647). The paramount consideration in Part VII proceedings is the child’s best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests, which gives the proceedings a different character (CDJ v VAJ at 188-189). The resultant orders represent the court’s discretionary judgment about how the child’s interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at 231).
135.The conclusion reached by a court in Part VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 (“Malec”)).
136. In Malec, Brennan and Dawson JJ said (at 639-640):
…facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities…the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history…the court must form an estimate of the likelihood that the possibility will occur…
…
…To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation…
and Deane, Gaudron and McHugh JJ said (at 643):
…The future may be predicted and the hypothetical may be conjectured… Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring…
137.The High Court was there referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, but the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction (see Oswald & Karrington (2016) FLC 93-726 at [60]; Bant & Clayton (2015) 53 Fam LR 621 at [99], [107], [171], [172]). Such application of principle is consistent with M v M.
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
…
142.As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
51We agree with and adopt that commentary as being a correct statement of the law.
The principles enunciated in the above cases are applicable in determining whether in the circumstances of the proceeding before me three children or any of them would be at risk of unacceptable harm within the context of s 60CC(2)(b) of the Act. Upon establishing the existence of an unacceptable risk, the Court must then determine whether that risk “is able to be sufficiently managed or ameliorated”.[11]
[11] Blinko & Blinko [2015] FamCAFC 146 at [83] referring to R & C [1993] FamCA 62.
The Court must also consider the additional considerations under s 60CC(3) of the Act, as far as they are relevant to this proceeding.
In Mulvany & Lane (2009) FLC 93-404 it was observed by Finn, May and Thackray JJ that:
76. It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis added)
Whilst the additional considerations as set out in s 60CC(3) must be considered by the Court, specific reference to each and every of those considerations is unnecessary in these reasons.[12]
[12] Mulvany & Lane (2009) FLC 93-404 at [77].
EVIDENCE
Statements of fact in these reasons are findings of fact on the balance of probabilities.[13] It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. Nor have I done so where I have considered such evidence not particularly relevant and/or helpful in determining the matters that I must. For instance, the evidence of Mr MM and Ms AG was not particularly relevant and was not evidence to which I could give any significant weight. Nor in my view, could I give any significant weight to the allegations, which were denied by the husband, as contained in the then Department of Health and Human Services subpoenaed material pertaining to the husband’s earlier marriage and Child Protection issues. I have taken into account however there were such issues and that some of the children of the husband’s earlier marriage had special needs and mental health issues. Likewise, I could give little weight to the allegations made of the wife’s alienation of X from her biological father. Every piece of evidence relied upon by the parties has been read and carefully considered by me before my forming any view as to such evidence.[14]
[13] Evidence Act 1995 (Cth) s 140
[14] Bell & Nahos [2016] FamCAFC 244 at [28]; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62].
I found the husband to be a measured and reliable witness. He made concessions where appropriate and did not seek to embellish his responses, nor was there any significant inconsistency in them.
I found the wife to be, in the giving of some of her evidence, not a credible witness and where the parties’ evidence differed, I preferred that of the husband. The wife exaggerated some matters and was unresponsive in respect of others. She denied having ever accused the husband of sexually abusing Z, a denial that was untruthful. The wife sought, and continues to seek, a delay in the proceedings finalisation, submitting in her closing submissions that “the judgment be reserved until after February 2023 to allow [Z] to have eight individual therapy sessions with [Ms D] (“[Ms D]”) and give him the opportunity to disclose and for parenting arrangements to remain unchanged during this period.”[15] Both Dr K and Dr E found the wife to be unreliable and inconsistent in her account of relevant occurrences, and I also accept their evidence, including their observations and assessments, finding them reliable expert witnesses.
[15] Wife’s written submissions filed 11 October 2022, p.9.
PARENTING
For the purposes of my consideration of what parenting orders are in the best interests of the children and X, I shall refer to the parties as the children’s father and mother (not husband and wife).
The parties agreed that the mother shall retain sole parental responsibility of X pursuant to final orders as arranged between the mother and Mr MM. In addition, the parties agreed that X shall spend time with the father in accordance with her wishes and a consent order will be made to that effect. These reasons are therefore mostly addressed to what parenting orders promote the best interests of Y and Z.
At the commencement of the trial, each of the parties sought orders as set out in their respective case outlines. The mother during the final hearing changed her position and no longer sought sole parental responsibility and instead sought that the parties have equal shared parental responsibility. In addition, the mother proposed an increase in the number of nights the children spent with the father from three nights a fortnight and a dinner (as per her Outline of Case) to four nights a fortnight (in accordance with her written submissions filed 11 October 2022). Otherwise, the mother proposed the children continue to attend BB School. The remaining proposals of the mother are set out elsewhere or made as orders of the Court.
The father sought sole parental responsibility and at the conclusion of the trial, adopted Dr E’s recommendation and sought orders that the children spend ten nights in his care and four nights in the mother’s care, instead of a week about arrangement. The father proposed that the children spend from after school Friday to Monday morning each alternate week and Wednesday overnight in the other week with the mother. The father also sought orders that communication between the parties be conducted via a parenting software application, except where an emergency, and that the children be enrolled at FF School.

The wife’s evidence was that prior to separation, approximately $325,000 was in the parties’ joint account. She made two withdrawals in the combined sum of $200,000 to repay her mother monies owed by the parties to her, with a further approximate $60,000 being withdrawn by her on 22 July. It was her evidence that she effected such transfers with the husband’s consent and knowledge. The husband’s evidence was that between 9 July 2022 and 23 July 2022, the wife withdrew $321,000 from their joint account. The wife informed him of her intention to withdraw $200,000 to repay her mother some of the debt owed by the parties to her, and this was agreed to by the husband. The wife did not, however, inform him nor have his consent to withdraw any further funds. I find the wife did remove monies from the parties’ joint bank account at separation, rendering the husband unable to meet the parties’ taxation payment obligations without recourse to these borrowings. In my view, the NAB overdraft is a joint liability.
Loans from family and friends
The husband’s evidence was that the paternal grandfather is owed $75,000. The wife denied there was a debt owing, her evidence being that there was no formal loan agreement entered into between the parties and the paternal grandfather, and that a proper description of the monies advanced, which she conceded, but in the sum of $77,362, was that such monies were a gift to the parties by the husband’s mother to be applied toward the deposit on their purchase of the FMH. The husband conceded that no formal loan agreement existed between his father and the parties but described the advance as a loan. The husband in the Notice to Admit dated 26 April 2022 stated that the $75,000 from the paternal grandfather was put to the renovations of the FMH. In my view that advance is better characterised as a direct financial contribution on behalf of the husband during the parties’ marriage which contribution was applied toward improvements or deposit to the FMH.
The husband also gave evidence that the following monies had been loaned to him:
·BE Fund $61,000;
·BG Group $135,000;
·Mr BH $25,000;
·Mr BJ $10,440; and
·Mr AL $83,978.
The husband applied the above funds toward payment of his legal fees. These loans are post‑separation liabilities of the husband solely.
The wife’s evidence is that since separation the maternal grandparents have loaned her a substantial amount of money to fund her legal fees (owes $303,000). The husband conceded during cross-examination that during the course of their relationship the maternal grandmother loaned monies to the parties of which the sum of $106,000 remains outstanding. I accept that amount as being a joint matrimonial liability. I otherwise find that any further loans by the maternal grandparents to the wife are post-separation liabilities of the wife solely.
Other outstanding debt
At the commencement of the final hearing in May 2022, when both parties still resided in the FMH, $8,487.27 was owing in electricity ($4,760), gas ($329), and water ($3,397) as conceded by the parties. The husband did not dispute these amounts, but did not accept these to solely be a matrimonial liability as the maternal grandparents had been living in the FMH. No probative evidence was otherwise before the Court as to the quantum of any current outstanding amounts for electricity, gas and water including the period since mid-2022 when the maternal grandparents have, again, taken up occupation of the home. I find that the parties are jointly liable for the agreed sum of $8,487 and that the wife is liable for any electricity, gas and water bills incurred following 1 April 2022, that being the date the husband departed from the FMH and noting the maternal grandparents ongoing occupation of the property.
As at 2021, the parties agreed that council rates due were $8,154 (being an amount due in arrears in 2022). The husband’s evidence, however, was that the 2022 rates in the undisputed sum of $4,503.90 were not a matrimonial liability as the wife’s parents had resided in the FMH during this period. The payment of rates goes with the ownership of the home, and the husband lived in the home until 1 April 2022. The total sum of $12,658.10 is, I find, a joint liability of the parties.
During the trial, the wife asserted that further debts of the parties were outstanding. The wife claimed that $1,592 was owing to BK Consultants, now BL Pty Ltd. The statement for $1,592 was addressed to AJ Pty Ltd (a company which has ceased to exist) and was dated 30 April 2022, but was in respect of works conducted in mid-2020 and early 2021. The husband agreed that the parties historically engaged BK Consultants to conduct work at the FMH but was otherwise unaware of the statement of 30 April 2022. He accepted that the monies are owing if they have not been paid. He has not paid them. It would appear the wife has not paid. It is a joint liability.
Unpaid school fees
It was the husband’s evidence that by the end of 2020, BB School was owed $25,353 in school fees. In late 2021, the husband wrote to the school withdrawing his consent for the children, Y and Z, to continue to attend BB School and stating that the wife would be responsible for the children’s school fees going forward. It was his evidence that at the end of 2021, the school fee payments were in arrears in the sum of approximately $40,000.
It was common ground that the parties, during the course of the ongoing litigation, in 2022, agreed to jointly pay the outstanding arrears owing and pay the school fees in respect of the children’s and X’s attendance at the school up to June 2022. The M Group made such payments. There was otherwise no agreement between the parties as to the payment of ongoing school fees for the remainder of 2022 (being Term 3 and 4). The husband’s position was that the children should attend a government school. The wife continued their enrolment at BB School.
The wife’s evidence was that there were unpaid school fees for Term 3, 2022 in the sum of $16,643. The husband had not received a copy of the invoice; the invoice being addressed to the wife. It was the husband’s evidence that he would not have been able to gain a copy of the invoice, as any documents regarding X, who was named on the invoice (having also attended BB School), were restricted from him by the school upon the instruction of the wife (see [261] herein). The husband, however, did not dispute the amount on the invoice as claimed by the wife. The parties had not reached any agreement as to payment of the Term 4 school fees. It is clear on the evidence that the parties do not agree as to the education of the children and that whilst the wife seeks to have the children’s education undertaken at a private school the husband seeks such education occur, at least during the primary school years, in the public system. The parties have not paid school fees in the time frames as sought by the school since 2020, and their habit of being in arrears, shows no sign of abating. The Term 4 school fees must also be paid and those funds shall come out of the proceeds of sale of the FMH and be a liability of the parties jointly.
Add-backs
At the commencement of the final hearing, the husband sought to add back $60,000, being monies that the wife removed from the parties’ joint bank account. The wife conceded her accessing $60,000. At the re-commencement of the part-heard hearing on 22 August 2022, the husband no longer sought such add back.
During the course of the final hearing, the wife sought that $106,219 removed by the husband from his superannuation and allegedly rolled into an undisclosed superannuation fund, be added back. It was the husband’s evidence that he accumulated superannuation with Superannuation Fund 2, now Superannuation Fund 3, and Superannuation Fund 4, and that there were no undisclosed superannuation funds. I accept that evidence. Further, in relation to any withdrawals, as were made by him, whilst the husband could not recall all the withdrawal transactions put to him by the wife’s pro bono counsel, it was his evidence that the parties had at times made mutual withdrawals from their superannuation funds to fund renovations on the FMH, and that additionally he may have made a withdrawal during the COVID-19 lockdowns as permitted by legislation. I am satisfied that any withdrawals made in this manner were applied toward the renovations and the family’s necessary expenses. I do not propose to add-back these monies.
The asset pool
The following table outlines the legal and equitable interests of the parties as determined by the Court including superannuation:

ASSET

OWNERSHIP

TOTAL VALUE

The FMH – B Street, Suburb C

Joint

$4,400,000

M Group

Husband

NIL

NN Bank Account …50

Joint

$104

National Australia Bank Account …75

Joint

NIL

NAB account …61

Wife

N/K

CBA account …10

Husband

$411

ANZ account …88

Husband

$1,563

EE Trust

Husband

$50,000

Motor Vehicle 2

Husband

$45,000

Motor Vehicle 3

Husband

$500

Motor Vehicle 1 (received by the wife from the M Group)

Wife

$15,000

TOTAL NET ASSETS

$4,512,578

LIABLITIES

OWNERSHIP

VALUE

Mortgage Accounts ending …75 with NN Bank

Joint

$1,475,238

Mortgage Accounts ending …51 with NN Bank and …69 - $256,427)

Joint

$786,119

Mortgage Accounts ending …69 with NN Bank

Joint

$256,427

Unsecured ANZ personal loan

Husband

$435,000

Loan from Ms LL

Joint

$106,000

KK Pty Ltd (monies still owing to the parties builder of the FMH)

Joint

$20,400

Unpaid Rates

Joint

$12,658

Water, gas, and electricity

Joint

$8,487

Unpaid school fees (Term 3 & 4 of 2022)

Joint

Unknown

NAB overdraft

Husband

$93,542

TOTAL NET LIABILITES

$3,193,871

SUPERANNUATION

OWNERSHIP

VALUE

Superanuuation Fund 1 (at 4 May 2022)

Wife

$422,392[185]

Superannuation Fund 3 (formerly known as Superannuation Fund 2)

Husband

$222,086[186]

Superannuation Fund 4

Husband

$142,160

Husband’s Total Superannuation

$364,246

TOTAL NET ASSETS (EXCLUDING SUPERANNUATION)

$1,318,707

[185] Wife’s financial statement filed 1 April 2022.
[186] Husband’s financial statement filed 22 August 2022.

The Court notes that the mortgage liability may have increased from the figure available at trial due to the evidence of the wife that full mortgage repayments of principal and interest were to resume on 19 October 2022 in the sum of $11,536 per month.
The total net asset pool of $1,318,707 is a sum from which must be deducted the outstanding school fees in respect of all three children for Terms 3 and 4 of 2022. The evidence does not allow me to precisely determine what those outstanding fees are. However, they would be unlikely to exceed $35,000. For the purposes of my calculation as to a percentage adjustment and how that is reflected in a dollar sum, I propose to notionally deduct a further $35,000 so that the net asset pool shall become $1,353,707.
The Court relies on the sworn evidence of the wife as to her superannuation monies being in the sum as deposed to by her in her Financial Statement. Her insertion of a lesser sum, $387,884 in her Amended Balance Sheet dated 13 September 2022 was not explained nor was any probative evidence placed before the Court by the wife as to why the balance was reduced. In those circumstances, I rely upon the sworn evidence before me and reject the Balance Sheet sum.
It was undisputed that the husband had $142,160 in Superannuation Fund 4.[187] At the commencement of the trial, the parties agreed the husband had $233,435 in Superannuation Fund 3 and that between them, the parties had a total of $764,873 in superannuation. The wife subsequently, in her Amended Balance Sheet, asserted that the husband had $242,634 in Superannuation Fund 3. I note that the husband’s concession was that his Superannuation Fund 3 balance had increased to that sum but as at 31 December 2021. However, the husband in his updated Financial Statement filed 22 August 2022 swore the balance as at August 2022 had dropped to a current sum of $222,086. I accept the most recent sworn evidence of the husband as being an accurate figure and reject the sum inserted by the wife in her Amended Balance Sheet, it being an outdated figure. Relevantly, I accept the husband’s evidence that the parties’ total superannuation, at the conclusion of the trial, was $797,987 – being $33,114 more than the agreed figure at the commencement of the trial.
[187] Husband’s financial statement filed 22 August 2022; Exhibit AM6.
Post Separation Liabilities of the Parties
Additional to the loans taken out by the husband as described at [369], above which total $315,418, there exist further borrowings of the husband to meet his legal costs in the sum of $246,474.
There is also an unpaid taxation liability of the husband for the financial year ending 30 June 2021 in the sum of $49,264 together with an estimated unpaid tax liability for the financial year ending 30 June 2022 of $63,192.
Additionally, the husband has a credit card ending in …13 with a debit of $38,374.
Each of the above are debts personal to the husband which shall not form part of the asset pool, but which are referrable to a consideration of property and spousal maintenance matters.
Likewise, the wife has post separation debt personal to her which involves approximately $303,000 of monies borrowed from her parents to pay her legal costs. Otherwise the wife has paid home insurance on the FMH in 2020, 2021 and 2022. These sums are respectively $3,828; $4,785; and a further claimed amount as paid by her parents of $6,800. A total of $15,413. The husband should reimburse to the wife out of his share of the net sale proceeds of the FMH one half of this amount being $7706.50, my finding is that this is a joint liability.
Stanford consideration
I am satisfied that in all of the circumstances of this case it is just and equitable to make orders adjusting the parties’ property interests. Each of the parties seek that I make such adjustment and can reach no agreement as to how that should occur. There is no common use of the parties’ property. The implicit and express assumptions the parties may have had as to the arrangements made by them concerning their property interests were brought to an end at separation and thereafter.
Whilst I have considered as a precondition to making an order for property settlement whether it is just and equitable in all the circumstances of the particular case to make such an order, the Full Court of the Family Court of Australia in Bevan & Bevan (2013) FLC 93-545 at [86] made clear that the just and equitable consideration is one that “permeat[es] the entire process”.
I will now turn to the contributions of the parties.
Contributions
An assessment of contributions is “holistic” in nature.[188] It is nevertheless of assistance to consider that evidence of contributions in the manner as set out below to provide some structure to the process.
[188] Dickons & Dickons (2012) 50 Fam LR 244 at [24].
Commencement of cohabitation
The wife owned a property at BM Street, Suburb BN (“BM Street”), some superannuation (not quantified by the wife) and a car. In late 2011, just prior to marriage, the wife sold BM Street in late 2011 for $1,130,000. The wife’s evidence was that she received $659,000 in net sale proceeds which were put into a high interest term deposit account for the first 18 months of the parties’ relationship and that, otherwise, she paid her parents the debt she owed them, of $157,635, leaving her with $539,518 in net sale proceeds. It was the husband’s evidence that from that sale price of $1,130,000 the mortgage was paid out; selling costs were paid; and the sum of $205,000 was repaid to the wife’s parents, leaving the wife with a net sale profit of $454,000.[189] It was further the husband’s evidence that the wife lost $350,000 of those net proceeds of sale in a failed business venture commenced by her in early 2012. It was the wife’s evidence that she used M2 Pty Ltd to start her own business, and that she applied most of the net proceeds of the sale to start the business. It was her evidence that the business was profitable. She denied the loss as asserted by the husband. However, the wife subsequently conceded losses in each of the financial years ended 2012 to 2014. There was otherwise no corroborative evidence placed before the Court by the wife to ascertain the profitability or otherwise of the wife’s business venture and the wife’s claim, that she was repaid the contribution once the business was profitable was not supported by the evidence. The wife conceded that the debt to her parents was $205,000 as asserted by the husband. I find the wife had a total of $454,000 approximately in net sale proceeds at the commencement of cohabitation and that such monies were applied by her to establish a business which ultimately provided no equity to the parties.
[189] Husband’s affidavit filed 22 April 2022, paragraph 264.
At the commencement of cohabitation, the husband had been residing in rental accommodation in Suburb BO; had superannuation in the sum of $110,000; and owned the M Group which held intellectual property developed by the husband.[190] The husband entered into orders in what was then the Family Court of Australia (now the Federal Circuit and Family Court of Australia (Division 1)) on 13 October 2008 (“the 2008 Orders”) by which he was to pay his former wife monthly sums until 1 January 2019 in the total sum of about $564,000 (if the 2008 Orders were followed). His obligations under the 2008 Orders were by way of child support, spousal maintenance and a property division. The fact that there was a Binding Child Support Agreement and Binding Financial Agreement supported the husband’s evidence. The husband’s obligations under the 2008 Orders continued up until 2019. The husband’s income was thus reduced by the extent of his obligation for each of the relevant years. The wife was aware of the 2008 Orders, and the husband’s obligations under them, at the time of cohabitation.
[190] Husband’s affidavit filed 22 April 2022, paragraph 262.
The husband, otherwise, was earning $363,000 gross per annum and working in the M Group.[191] The wife was working full-time for BQ Pty Ltd (“BQ Pty Ltd”), earning approximately $203,000 gross (including nine per cent super).[192] The wife was providing solely for the financial support of her daughter X.
[191] Husband’s affidavit filed 22 April 2022, paragraph 260.1.
[192] Husband’s affidavit filed 22 April 2022, paragraph 260.2.
During cohabitation
The husband continued to work in the M Group during the parties’ marriage. The wife commenced working in the M Group in early 2011, a day prior to the parties’ marriage, following her resignation from BQ Pty Ltd.
In early 2012, the wife commenced her own business “BY Company” as discussed at [393] using approximately $350,000 of the BM Street net sale profits. The wife commenced in or around 2012 to work full-time in the business. There was little or no financial reward from the operation of this business and it ceased to operate. The husband, at this time, commenced to assist the wife with caring for the children, as he was then working part-time.[193]
[193] Husband’s affidavit filed 22 April 2022, paragraph 272-273.
The wife primarily worked from home when working for the M Group. By 2013, when Y was born, the wife was working from home on a part-time basis. Following Z’s birth in 2014, the parties hired au pairs to assist with the care of the children as well as household chores while the parties worked. The wife worked three days each week.
In 2013, the husband joined the DD Trust. During the parties’ marriage, his four point seven per cent units in that trust were assigned to the M Group Trust.[194] The husband derived some of his income from the DD Trust.
[194] Husband’s affidavit filed 22 April 2022, paragraph 266.

In early 2013, the parties purchased the FMH for over $1.2 million plus costs. As referred to at [368] the husband’s parents made a contribution in the sum of approximately $77,362. Additionally, the wife put some small sum of monies from the sale of her BM Street property into the deposit and/or purchase.
The parties primarily derived their household income from the husband’s income. The wife was engaged to a greater extent than the husband in the care of the children and X. The husband’s taxable income significantly varied over the parties’ marriage ranging from $317,000 in 2011 to at its highest $702,000 in 2016, before returning in decreasing income amounts to $336,000 in 2020.[195]
[195] Husband’s affidavit filed 22 April 2022, paragraph 267.
In 2017, the parties commenced renovations on the FMH. Additional to income earnt by the husband personally, funds were secured from the M Group.
In 2017, the husband taxable income was $672,210. The wife’s taxable income was recorded on the husband’s tax return as being $129,096 in that year.
The husband’s higher income in 2016 and 2017 was due to his working more shifts to assist the DD Trust following the retirement or loss of staff in that group. Following the DD Trust finding replacements, the husband reduced his work back to 5 to 6 half days per week.[196]
[196] Husband’s affidavit filed 22 April 2022, paragraph 268.
In 2018, the husband’s taxable income was $579,464. The wife’s taxable income was recorded on the husband’s tax return as being $114,720.
In 2019, the husband’s taxable income was $283,078. The wife’s income was $24,070. The husband’s tax return for 2019 notes that his expenses were $290,866, which was higher than previous years. It was the husband’s evidence that the business was renovated in that year and accordingly his share of such expense was recorded, and formed the major part of his expenses (the husband was one of 25 who shared this cost).
In 2019, the wife assert the parties secured a loan from the maternal grandmother for $350,000 at one point five percent interest per annum. The husband conceded such borrowings. The parties agreed at trial that $106,000 of that loan remained outstanding.
In 2020, the parties increased the FMH mortgage in the amount of $423,000, which was paid into the parties’ joint account.
In 2020, the husband’s taxable income was $336,659. In mid-2020, the wife ceased working for the M Group. She recommenced part-time until late 2021. She then took personal leave but drew income of $5,000 net of tax each month.
All of the husband’s income went to the support of the family and the maintence and improvements made to the FMH, save those monies which were paid toward child support of the children of his earlier marriage. It was the husband’s evidence that by mid-2020, the parties had spent approximately $5,232,000 on the FMH’s acquisition and renovations.[197] Some rooms were rebuilt. The wife conceded in her Response to the Notice to Admit, that the capital expenditure on the FMH by the parties totalled nearly $4 million.
[197] Husband’s affidavit filed 22 April 2022, paragraph 282.
The wife’s ex-partner, Mr MM, did not pay child support to the wife. The husband’s income was used to meet all of X’s needs including childcare, day-to-day expenses and private school fees at BB School from early 2017 until mid-2022, and pursuant to orders the Court shall make until December 2022.
Post Separation
In 2021, the husband’s taxable income was $247,765. The wife did not declare an income in 2021. Between November 2020, and February 2021, the husband paid $130 a month in child support. The husband conceded he knew this amount was wrongly calculated by the Child Support Agency, and that he had to make additional payments for that period. The husband also conceded that he had told the Child Support Agency that the wife had a capacity to earn $250,000 – something which was not demonstrated on the husband’s own tax returns – which was inaccurate.
Since separation, the wife has paid the home insurance in the sum of $3,828 in 2020, $4,785.01 in 2021 and $6,835.73 in 2022. The wife asserted that the last payment was made by the maternal grandparents, which I accept. The total of these amounts is $15,449. This was a joint expense of the parties to which the husband should have contributed. I propose that half should be paid by each of the parties.
The husband paid the gas and electricity in 2021. I note that in 2022 the husband was removed from the accounts (by the wife) and was unaware of any bills owing thereafter.
The wife was in receipt of approximately $60,000 from the M Group ($5,000 a month) for her part-time employment. In addition, the wife drove Motor Vehicle 1, owned by the M Group, with all expenses paid by the M Group. The M Group also paid the wife’s use of a mobile phone. The wife had access to a credit card for expenses while employed by the M Group. The wife was also in receipt of the Family Tax Benefit A and B during this period. I find all of her income was applied toward the benefit of the family, save that amount that she retained in her bank accounts and paid ultimately to her legal costs as conceded by her.
The husband has been required to rent alternate accommodation since 1 April 2022 for which he pays rent of $3,696 per month (approximately $852 a week).
The parties’ non-payment on arranged reduced payments in respect of their mortgages and unsecured debt has exceeded the facility limit credit of $2,319,690.
The wife’s Financial Statement filed 1 April 2022 shows that the husband was paying child support to her in the sum of $644 per week. The husband’s Updated Financial Statement filed 22 August 2022 indicates those payments were reduced to $615 per week (approximately $31,980 per annum).
Conclusions as to contributions
I am satisfied in all the circumstances that the myriad of contributions by each of the parties should be assessed as equal.
Relevant section 75(2) matters
It is not disputed that the husband has a greater income than the wife.
The husband has also, I find, a greater earning capacity than the wife in the immediate years to come. Thereafter, however, that is not so certain. The wife is a professional. It was the wife’s evidence that she wishes to retrain, as she has not worked in her field in over 20 years. Such retraining would likely require at least one of year of study. If she were to gain a full time provisional/training wage position, being a 12 month position her evidence was that she would likely receive approximately $70,000 per annum. In the last twenty years, the wife has worked in research, and in the M Group the wife worked additionally in various roles.[198] In addition, the wife has worked in financial services for several years. At the conclusion of the final hearing, the wife was waiting on a contract for a position at BP University with a salary of $50,000 - $60,000 per annum and until that positon was confirmed, it was her evidence that she would continue to receive Centrelink benefits. The wife is an intelligent woman and has the capacity to earn a significant income.
[198] Transcript 10 May 2022, p.19 line 44 to p.20 lines 6-7.
The husband is aged 57 years. The wife is aged 48 years. The wife has the capacity to work for many more years that the husband, has probably limited years of work ahead. During the wife’s working life, she can significantly increase her receipt of income.
The wife had paid a total of $448,926 in legal fees as at 19 August 2022 consisting of: $112,803 in legal fees to L Lawyers, $142,376 to Q Lawyers; $84,547 to V Lawyers; and $109,200 in counsel fees. There was approximately $68,945 in legal fees outstanding. The wife’s evidence was that money for her legal costs came from her bank accounts until she ran out of funds in early 2021. That included the further $60,000 that the wife withdrew at separation which the husband is not pursing. The wife’s parents have also contributed to paying the wife’s legal fees.
The husband has paid a total of $483,755.06 in legal fees as at 22 August 2022 with approximately $356,473 owing to Kennedy Partners. As referred at [369] the husband has borrowed these monies from family and friends as well as used some of his income.
The husband commenced paying one of his adult daughter’s $600 a week following separation from the wife, in circumstances where his adult daughter was unemployed. In addition, the husband continues to pay for the private health insurance of his adult child, Ms BS, which has enabled her to undergo a necessary program, not available to her without private health insurance. These are expenses of the husband which he volunteered to pay despite the mounting and chaotic debt positions of the parties who adopt an approach that creditors can wait, or be ignored.
Further, it is the wife’s evidence that BB School is a private school and fees for X, in senior school, are $30,000 per annum and for Z and Y, in junior school, do not exceed $20,000 per annum each. The parties cannot afford this expense ongoing at the present time, in their present circumstances.
The husband did not propose any adjustment pursuant to s 75(2) matters. The wife sought a ten per cent adjustment in her favour.
I propose to allow a five per cent adjustment in the wife’s favour, taking into account the above considerations and additionally the below discussion as to spousal maintenance, which will result in an order in favour of the wife.
Spousal Maintenance
The wife sought that the husband pay her $50,000 per annum for three years by way of spousal maintenance.
Pursuant to the Act, the wife must establish that she is unable to support herself adequately.[199] If proven, she must prove that the husband has the capacity to be able to pay her spousal maintenance.[200] The wife bears the onus of proof on the civil standard.[201]
[199] Family Law Act 1975 (Cth) s 72.
[200] Family Law Act 1975 (Cth) ss 74, 75(2).
[201] Mitchell and Mitchell [1995] FamCA 32; Hall & Hall (2016) 257 CLR 490.
I am satisfied in all the circumstances that the wife will be able to support herself to a reasonable standard of living within a year’s time. The evidence is that she is highly qualified and highly experienced in the areas she has been working. She remains relatively young. Her care of the children will not hinder her ability to be gainfully employed and in a significant role. While it was the husband’s evidence that he will not have the capacity to pay the wife spousal maintenance, I do not accept that evidence given his income and earning capacity, and given the limited time in relation to which this order shall operate. I find the husband is reasonably able to pay a monthly sum to the wife of $4,166 for a period of twelve months. This figure is calculated having regard to the wife’s need to rehouse herself, which may include a weekly rental sum not dissimilar to that of the husband. I find the wife shall then be in position to support herself adequately.
Child Support
The wife sought a departure order for a periodic sum of by way of $1,833.33 per month (adjusted annually to the Consumer Price Index on 1 July). In addition she sought that the husband pay non-period payments for the children’s BB School fees; private health insurance at the current level; and all medical and dental payments not covered by private health insurance, for a period of five years. The husband sought no orders in this regard.
Sections 116 and 118 of the Child Support (Assessment) Act 1989 (“the CSA Act”) provide for the Court to make an order for a departure from the administrative child support assessment in relation to the children.
The Court must be satisfied that there are special circumstances in the case, as set out in s 117(2) of the CSA Act, which warrant a departure order and that it would be just and equitable, and otherwise proper for the Court to make an order.
In relation to non-periodic payments, the Court must be satisfied that it would be just and equitable, and otherwise proper to make an order that the husband provide child support for the children otherwise than in the form of periodic amounts.[202] Section 124(2) of the CSA Act is as follows:
(2) In determining the application, the court must have regard to:
(a)the administrative assessment in force in relation to the child, the carer entitled to child support and the liable parent; and
(aa)any determination in force under Part 6A (departure determinations) in relation to the child, the carer entitled to child support and the liable parent; and
(b)any order in force under Division 4 (departure orders) in relation to the child, the carer entitled to child support and the liable parent; and
(c)whether the carer entitled to child support is in receipt of an income tested pension, allowance or benefit or, if the carer entitled to child support is not in receipt of such a pension, allowance or benefit, whether the circumstances of the carer are such that, taking into account the effect of the order proposed to be made by the court, the carer would be unable to support himself or herself without an income tested pension, allowance or benefit.
[202] Child Support (Assessment) Act 1989 s 124(1).
At trial, the child support assessment provided that the husband’s provisional income was $346,085 and the husband was assessed to pay $2,792.33 per month ($33,507.96 per annum).
The husband relied on his Financial Statement filed 22 August 2022 and deposed to an income of $201,916 comprised of his gross fees less practice expenses and distributions from the DD Trust. Counsel for the husband submitted that:
After payment of past tax liabilities pursuant to his ATO payment plan, minimal payments to his daughter for her day-to-day living support, legal expenses and interest on loans (not taking into account his own living expenses), he [claimed he did] not have the income to meet the assessed child support plus school fees and medical/dental expenses.
The husband’s 2021 Notice of Assessment indicated his taxable income was $247,765.[203] As referred to earlier, the husband’s evidence was that the COVID-19 pandemic had impacted on his business. This reduced the husband’s business by 30 per cent. The wife agreed with the 2019-2021 assessed taxable income for the husband. The husband’s evidence was he will attempt to find further work but is uncertain as to what his income for the financial year ending 30 June 2023 will be. The wife is expecting to be offered employment with BP University.
[203] Exhibit RF20.
The husband will have the care of the children for nine nights a fortnight during school terms and the wife will have such care for five nights. Otherwise the parties will equally have the care of the children. This care arrangement will see most of the children’s financial needs being met by the husband.
It is clear on the evidence that neither party has the capacity to pay for private school fees in their current circumstances. I am satisfied otherwise that there are no special circumstances in the case and it would not be just and equitable, nor otherwise proper for the Court to make a departure order.
Conclusion
The wife shall receive fifty-five percent of the net asset pool (after the notional addition of the school fees outstanding) being in the sum of $1,353,707 which is an amount of $744,538.85. The husband shall receive forty-five percent which is an amount of $609,168.15. The differential in these sums is $135,370.70. I am satisfied in all the circumstances that this per cent division, and the result it produces in dollar terms, is a just and equitable outcome. Of course the parties will take into account in that division the value of assets owned and to be retained by them.
The wife sought a superannuation split order. The husband did not. I do not propose to make a superannuation splitting order in these circumstances. I accept the submissions of counsel for the husband that “if the husband’s entitlement is paid by way of a superannuation split, he will have no capital with which to re-establish himself.”[204] This would not produce a just and equitable outcome for the husband. There is no evidence to show that the wife can borrow the further funds that would be necessary to pay out the husband’s entitlement.
[204] Husband’s written submissions filed 4 October 2022, paragraph 13.1.3.
The wife has greater superannuation entitlements than the husband at present, a benefit to the wife of $58,146. I do not propose, as part of the overall property settlement adjustment orders to alter that discrepancy, which is in favour of the wife. Rather, I consider it just and equitable that the wife have that benefit retained, given the wife’s lesser earner capacity and the time that will pass before she is able to access her superannuation entitlements, being a period considerably longer than the husband.
Section 81 of the Act provides that the Court “shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.”
Counsel for the husband submitted that:
17.2The Wife conceded in her evidence that she sought to have a clause in the Deed of Release with the purchaser of [M2 Pty Ltd] to exclude action against the Husband in these proceedings and as a director of that company. The inclusion of the later suggests the Wife wishes to reserve her right to further litigate against the Husband in his capacity as a director.
The husband sought that s 81 of the Act notation include that “the orders made by the court are in full and final settlement of all financial disputes between the parties of whatsoever nature, including those in relation to any of the entities of the [M Group] including the sale of the [M Group].” I shall add such notation.

I certify that the preceding four hundred and forty-six (446) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett.
Associate:
Dated: 23 December 2022

File number(s):	MLC 12653 of 2020
Judgment of:	HARTNETT J
Date of judgment:	23 December 2022
Catchwords:	FAMILY LAW – CHILDREN – Best interests – Where there are two children of the marriage and one of a former relationship of the mother – Family violence and allegations of sexual abuse – Where the allegations are unsubstantiated – Where the mother unilaterally withheld the children at times and made medical appointments without the father’s consent – Where the father poses no risk to the children – Where the mother poses a risk to the children’s emotional and psychological wellbeing – Where the parties are unable to effectively communicate – Sole parental responsibility to the father – The two children of the marriage to live with the father and spend time with the mother – Where the eldest child is to spend time with the father in accordance with her wishes. FAMILY LAW – PROPERTY – Where the wife sought a child support assessment departure and spousal maintenance – Where the main asset is the former matrimonial home – Where the parties’ company was sold prior to the final hearing – Where the wife is unemployed and on Centrelink benefits – Where the husband has a higher earning capacity – Where the wife has the capacity to earn an income and gain employment – Where the wife’s parents have resided in the former matrimonial home rent free – Where the wife has no borrowing capacity – Where the children are to spend nine nights a fortnight with the husband and four nights a fortnight with the wife – Where the husband has adult children from a former marriage – Where there is to be no basis for a departure from the child support assessment – Where the husband is to pay spousal maintenance payment to the wife for period of one year – Sale of the former matrimonial home ordered – Division of 55 per cent in the wife’s favour.
Legislation:	Child Support (Assessment) Act 1989 ss 116, 117, 118, 124 Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61DA, 67Z, 68P, 68Q, 72, 74, 75, 79, 80, 81, 90SM, 102NA, 106A, 114, Pt VII, Pt VIII Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:	Bell & Nahos [2016] FamCAFC 244 Blinko & Blinko [2015] FamCAFC 146 Dickons & Dickons (2012) 50 Fam LR 244 Hall & Hall (2016) 257 CLR 490 Isles & Nelissen (2022) 65 Fam LR 288 Kirkland and Granger [2007] FamCA 1471 M & M (1988) 166 CLR 69 Mallet v Mallet (1984) 156 CLR 605 Mitchell and Mitchell [1995] FamCA 32 Mulvany & Lane (2009) FLC 93-404 Re G: Children’s School (2000) FLC 93-025 R & C [1993] FamCA 62 Stanford v Stanford (2012) 247 CLR 108 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division:	Division 1 First Instance
Number of paragraphs:	446
Date of last submission/s:	11 October 2022
Date of hearing:	9 - 13 May 2022; 22 - 24 August 2022; 6 - 7 September 2022; 9 September 2022; and 13 September 2022
Place:	Melbourne
Counsel for the Applicant (10-13 May 2022):	Ms Smallwood SC
Counsel for the Applicant for cross-examination of the Respondent (23 August 2022; 7 September 2022):	Ms Devine
Solicitor for the Applicant (10-13 May 2022):	McDonald Slater And Lay
The Applicant (22-24 August; 6-7 September, 9 September; 13 September 2022):	Litigant in person
Counsel for the Respondent:	Ms Byrnes
Solicitor for the Respondent:	Kennedy Partners
Counsel for the Independent Children's Lawyer:	Mr Taghdir
Solicitor for the Independent Children's Lawyer:	Creative Family Law Solutions

MLC 12653 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS LEESON Applicant
AND:	MR GOSLEY Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	HARTNETT J
DATE OF ORDER:	23 December 2022

ASSET	OWNERSHIP	TOTAL VALUE
The FMH – B Street, Suburb C	Joint	$4,400,000
M Group	Husband	NIL
NN Bank Account …50	Joint	$104
National Australia Bank Account …75	Joint	NIL
NAB account …61	Wife	N/K
CBA account …10	Husband	$411
ANZ account …88	Husband	$1,563
EE Trust	Husband	$50,000
Motor Vehicle 2	Husband	$45,000
Motor Vehicle 3	Husband	$500
Motor Vehicle 1 (received by the wife from the M Group)	Wife	$15,000
TOTAL NET ASSETS		$4,512,578
LIABLITIES	OWNERSHIP	VALUE
Mortgage Accounts ending …75 with NN Bank	Joint	$1,475,238
Mortgage Accounts ending …51 with NN Bank and …69 - $256,427)	Joint	$786,119
Mortgage Accounts ending …69 with NN Bank	Joint	$256,427
Unsecured ANZ personal loan	Husband	$435,000
Loan from Ms LL	Joint	$106,000
KK Pty Ltd (monies still owing to the parties builder of the FMH)	Joint	$20,400
Unpaid Rates	Joint	$12,658
Water, gas, and electricity	Joint	$8,487
Unpaid school fees (Term 3 & 4 of 2022)	Joint	Unknown
NAB overdraft	Husband	$93,542
TOTAL NET LIABILITES		$3,193,871
SUPERANNUATION	OWNERSHIP	VALUE
Superanuuation Fund 1 (at 4 May 2022)	Wife	$422,392[185]
Superannuation Fund 3 (formerly known as Superannuation Fund 2)	Husband	$222,086[186]
Superannuation Fund 4	Husband	$142,160
Husband’s Total Superannuation		$364,246
TOTAL NET ASSETS (EXCLUDING SUPERANNUATION)		$1,318,707