Linke and Balstad

FEDERAL CIRCUIT COURT OF AUSTRALIA

LINKE & BALSTAD

[2018] FCCA 560

Catchwords:
FAMILY LAW – Parenting – best interests of child – property – de facto spouses – orders made.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DA, 65DAA, 79,

90SF, 90SM, 117

Cases cited:

In the Marriage of Harris (1991) 104 FLR 458
Dickons & Dickons [2012] FamCAFC 154

Applicant:

MS LINKE

Respondent:

MR BALSTAD

File Number:

PAC 759 of 2015

Judgment of:

Judge Newbrun

Hearing dates:

26, 27, 28 October 2016,

21, 22, 23 August 2017

Date of Last Submission:

17 April 2018

Delivered at:

Parramatta

Delivered on:

4 May 2018

REPRESENTATION

Counsel for the Applicant:

Ms De Vere

Solicitors for the Applicant:

Selvaggio Lawyers

The Respondent appeared in person

ORDERS

The parties shall have equal shared parental responsibility for the child [X], date of birth 2010.
The child shall live with the mother.
Subject to Orders 4, 7, 8, 9 and 10 herein, the child shall spend time with the father during non-school holiday periods as follows:
(a)Each alternate week from after school Friday until 5:00 pm Sunday, commencing on the first school Friday after the making of these Orders; and
(b)Each Wednesday from after school to 9:00 am the next day.
In relation to the arrangements prescribed in Order 3 (a) and (b) above:
(a)If for any reason the Father is unable to regularly care for the child on Wednesday then the Father shall make arrangements for the child to be placed in the school day care from 3:00 pm to 5:30 pm on that day;
(b)Order 3 shall be suspended during all of the child’s school holiday periods; and
(c)Such periods that the father shall spend with the child pursuant to Order 3 shall resume after the child’s school holiday period from the Saturday after the child’s return to school for the new school term.
In relation to the arrangements referred to in Order 3 (a) and (b) above, the parent who is receiving the child into their care will be responsible for collecting him form the appropriate location in the circumstances, whether it be the other parent’s residence, the child’s place of education or any other place mutually agreed between the parties, and when a parent’s care is about to conclude at the same or similar time to when the child is ordinarily in or about to be in day care or school, then that parent shall drop the child off at day care or school.
In the event that a parent is unable to collect or drop off the child then a nominated and mutually agreed person may do so on behalf of that parent.
In the event that during the time the child is in the father’s care the father is not able to personally supervise the child, then the father shall immediately contact the mother by telephone, notify her of the same and return the child to the mother’s care.
In the event that the father is not able to spend time with the child pursuant to these Orders, the father shall notify the mother by text message or email no less than 24 hours prior to the commencement of the said period he should have spent time with the child, and the child shall remain in the mother’s care.
Subject to Order 10 herein, the child is to spend time with the father during school holiday periods and on special occasions as follows:
(a)During the mid-year NSW school holiday periods as follows:
(i)Subject to Order 9 (e) and (f) herein, for a period of seven days from 9:00 am the Saturday to 5:00 pm the Friday of the first week of each mid-year school holiday period.
(b)Subject to Order 10, during the Christmas school holiday period as follows:
(i)During even numbered years, from 5:00 pm Christmas Eve for three nights inclusive, to 5:00 pm on 27 December; and in odd numbered years, from 9:00 am Christmas Day to 11:00 am Christmas Day;
(ii)From 9:00 am 7 January to 5:00 pm 13 January;
(iii)From 9:00 am 16 January to 5:00 pm 18 January;
(iv)From 9:00 am 23 January to the end of the school holidays in January.
(c)On Father’s Day of each year, and in the event that the father is not already spending time with the child pursuant to these Orders, then from 7:30 pm on the day preceding Father’s Day until 5:00 pm on Father’s Day.
(d)On the child’s birthday, in the event that the child is in the care of the mother, from 3:00 pm to 6:00 pm.
(e)In the event that the period from Good Friday to Easter Monday falls within the first week of the school holiday period, then the father’s time with the child shall start on Good Friday at 9:00 am and shall end at 5:00 pm on the following Thursday;
(f)At other times as may be mutually agreed between the parties in writing or by email.
Notwithstanding other Orders herein, the father’s time with the child shall be suspended during the following periods, during which the mother shall spend time with the child:
(a)On Christmas Day in even numbered years from 9:00 am Christmas Day to 11:00 am Christmas Day;
(b)On Mother’s Day each year in the event that the father is spending time with the child pursuant to these Orders, then the father shall return the child to the mother’s care at 7:30 pm on the day preceding Mother’s Day, and the child shall remain in her care until 5:00 pm on Mother’s Day; and
(c)On the child’s birthday, in the event that the Father is spending time with the child pursuant to these Orders, from 3:00 pm to 6:00 pm.
In relation to the arrangements referred to in Order 9 and 10 above, the father shall collect the child from the mother’s residence at the commencement of each such period, and the mother shall collect the child from the father’s residence at the end of each such period provided that the father remains residing in the Sydney Metropolitan area. In the event that the father is residing outside of the Sydney Metropolitan area, then at the end of each such period, the father shall return the child to the mother’s residence.
The child shall have liberal telephone communication with either parent, and each of the parents shall be at liberty to telephone the child once daily when the child is not in their care, provided that such telephone call takes place no earlier than 7:00 am and no later than 7:30 pm.
In the event that one of the parents intends taking the child on holiday or away overnight, that parent must notify the other parent of their intention to do so and the location of the holiday no less than fourteen days prior to leaving on the said holiday.
Each parent shall notify the other forthwith in the event of the child suffering a serious illness, accident or medical emergency, and that parent shall:
(a)Advise the other party of the name and location of any medical facility treating the child; and
(b)Provide all necessary authorities to any medical facility treating the child to discuss the progress with each parent.
The parties shall give all consents necessary to the child’s school for the school to forward to each of them a copy of all school reports, weekly notices, correspondence and applications for school photographs at the requesting party’s expense.
Each party shall be entitled to attend the child’s school, sporting and any other extracurricular activities that allow for parental presence at those events.
That within six (6) weeks from the date of these Orders the mother shall pay to the father the sum of $25,930 (“the sum”).
That within 28 days from the date of these Orders, the father collect the following items currently contained in the property at Property A, NSW (“the property”): barbecue, contents of the store room including camping gear, business material and bed frames.
That in the event the father fails to collect his items in accordance with the time specified in Order 18 above, he is deemed to have abandoned them and the mother is at liberty to dispose of them in any way she sees fit.
In default of the payment pursuant to Order 17 above, the mother do all things to list for sale and sell by public auction the property and from the proceeds of sale pay to the father the sum of $25,930, together with any interest as calculated pursuant to the Rules, from the date of the default until payment.
That subject to Orders 18, 19 and 20 above, each party be declared to be the absolute owner of all property both real and personal in their respective names, possession and control.
That each party be solely liable for all debts, liabilities or claims in their respective names or for which they are otherwise liable.
That each party do all acts and things and give all consents in authorities and execute all documents and writing as necessary to give effect of the Orders made herein.
That in the event of either party refusing or neglecting to sign any documents herein, including the necessary documents to give effect to these Orders, within seven (7) days of being requested by the other party, the Registrar of the Court, pursuant to section 106A of the Family Law Act 1975 (Cth), is hereby appointed and empowered to execute such documents in the name of the defaulting party and to do all acts and things necessary to give validity and operation to such documents, and the defaulting party shall pay the costs of the non-defaulting party simultaneously with the receipt of any monies to be received pursuant to these Orders.
That within six (6) weeks from the date of these Orders, the father shall pay to the mother the sum of $112 representing the mother’s solicitor’s costs for attending Court on 26 October 2016.

IT IS NOTED that publication of this judgment under the pseudonym Linke & Balstad is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 759 of 2015

MS LINKE

Applicant

And

MR BALSTAD

Respondent

REASONS FOR JUDGMENT

Introduction

This was the Final Hearing of parenting and property proceedings between the parties.
The Applicant de facto mother (“the mother”) was born on 1968. She is presently in full time employment as an (occupation omitted).
The Respondent de facto father (“the father”) was born on 1969 and is self-employed as a “(occupation omitted)”.
The parties commenced living together in 2009. There was no dispute between the parties that thereafter they lived in a de facto relationship as defined under the Family Law Act1975 (Cth) (“the Act”).
There is one child of the parties’ relationship, [X] born 2010 (“the child”). He lives with the mother and spends time with the father. He attends School A. The child was in Year 1 in 2017.
The parties separated in August 2013 and have not lived together since that time.
There are no interim parenting Orders in place regarding the care of the child.

The parties’ proposals

The mother’s proposals for both parenting and property were ultimately confirmed in her Written Submissions filed 13 September 2017, subject to one amendment to her proposed Orders for parenting, contained in paragraph 4 of her Submissions in Reply filed 8 November 2017, relating to an amendment to proposed parenting Order 3, and a further amendment, relating to Christmas and January school holidays, contained in the mother’s further written submission filed 17 April 2018.
Inter alia, subject to proposed Orders 4, 7, 8, 9 and 10 of her proposed parenting Orders, the mother seeks a parenting Order that the child spend time with the father during non-school holiday periods as follows:
a)Each alternate weekend from after school Friday until 5:00 pm Sunday commencing on the first school Friday after the making of these Orders; and
b)Each Wednesday from after school to 9:00 am the next day.
In relation to the mother’s proposed property Orders, she seeks Orders that would provide for no financial provision in favour of the father, and that each party retain all property, both real and personal, in their respective names, possession and control.
The father’s proposed orders for parenting and property are contained within Exhibit I, being a document headed “Fathers [sic] updated request for final orders as at 23 August 2017”, as amended by his proposed Minute of Order filed in Court on 17 April 2018.
Essentially, in relation to parenting, the father seeks final parenting Orders providing for a graduated increase in time to be spent by the child with himself, from three nights per fortnight and culminating in an equal time arrangement when the child reaches the age of 8.5 years and commences school in the new calendar year, together with discrete time to be spent by the child with himself during school holidays, long weekends, public holidays and other special occasions. He seeks other particular parenting Orders relating to a range of other matters.
In relation to property, the father, inter alia, seeks Orders that the mother pay him $190,000, following which the mother shall be declared to be the absolute owner of the real property at Property A, NSW (“the property”).

Material relied upon

The mother relied upon the following documents:
a)Further Amended Initiating Application filed 14 October 2016;
b)Affidavits of Ms Linke filed 28 September 2016, 20 October 2016 and 9 December 2016;
c)Financial Statement of Ms Linke filed 28 September 2016;
d)Case Outline filed 20 October 2016;
e)The mother’s Written Submissions filed 13 September 2017, 8 November 2017, and 17 April 2018.
The father relied upon the following documents:
a)Affidavits of Mr Balstad filed 27 October 2016, 5 October 2016, 27 October 2016, 18 November 2016 and 10 May 2017;
b)His Financial Statements filed 12 May 2015 and 22 September 2016;
c)His Case Outline filed 19 October 2016;
d)His Written Submissions filed 4 October 2017, and his amended proposals for “school holidays, long weekends and public holidays” contained in his proposed Minute of Order filed in Court on 17 April 2018.
A Joint Chronology was filed on 18 October 2016.
A Joint Balance Sheet was filed on 21 October 2016, which contained, in some respects, different contentions of the parties.
The following exhibits were relied upon:
a)Family Report of Ms A dated 11 October 2016 (Exhibit A);
b)Children and Parents Issues Assessment, Ms B (“the family consultant”) dated 31 August 2015 (Exhibit B);
c)Objection document (Exhibit C);
d)Respondent Father’s evidence submitted at final hearing (Exhibit D);
e)Emails between the parties dated 29 September 2016 (Exhibit E);
f)Valuation of (omitted) Valuers, (Exhibit F);
g)Bundle of email exchanges regarding Ms Poleti, solicitor, attending Court as a witness for the Respondent father (Exhibit G);
h)Email from Respondent father to Applicant mother regarding legal representation and fees (Exhibit H);
i)Father’s Updated Request for Final Orders as at 23 August 2017 (Exhibit I);
j)ASIC Current and Historical Organisation Extract regarding (business omitted) Pty Ltd (Exhibit J);
k)Notice of sale re: Property B NSW (Exhibit K);
l)Applicant mother’s notes regarding child titled ‘Detail – Factual Document Only’ (Exhibit L);
m)Bundle of text messages and emails titled: ‘Recent Parent Communication’, pages 1-9 only (Exhibit M);
n)Bundle of text messages titled: ‘Various Parent Communication’, 11 pages (Exhibit N).

Credit

The mother was an impressive witness, and gave her evidence in a straightforward manner. The father, on the other hand, was often evasive in cross-examination, and failed to make concessions or directly respond to straightforward questions; in this context, the Court refers, for example, to the father’s often stated response to such questions in cross-examination, “That may have been the case.” Further, the Court has regard to the father’s failure to make timely financial disclosure (discussed later in these Reasons). Where the parties’ evidence conflicts, the Court prefers the mother’s evidence unless otherwise stated.

Evidence: parenting

Following the child’s birth, the mother was primarily responsible for his care. The mother took twelve months’ maternity leave and was on paid maternity leave for three months, then unpaid leave for nine months. The mother performed household tasks, including cleaning, cooking, washing and ironing, grocery shopping, and all household administrative tasks. The father was working long hours.
From 2011 the mother returned to work three days per week. The father continued to work long hours. The parties shared the responsibility of dropping off and collecting the child from his day care centre.
At times during the relationship, the father did drop the child off at day care in the morning on the days the child attended day care. This was during periods when the mother was working three days per week. Otherwise the mother cared for the child. The father worked full time and rarely stayed home and cared for the child. The father rarely collected the child from day care, nor did he regularly perform any domestic duties.
Following the child’s birth, the father continued to go on weekends away to Region D by himself to visit his family on average one weekend per month, leaving the child and the mother behind at home.
During the relationship, the father, in 2011, went on two camping trips totalling ten days. In 2012 the father went on a five day camping trip and a three day trip to Region D. In 2013 at Easter the father went away on a four day trip.
Before separation, there were incidents of verbal abuse and physical violence perpetrated by the father against the mother. For example, following the mother asking the father questions about moving forward as a couple, the father would put his face close to the mother’s face and say words to the effect, “All you do is put me down!” and “I’m out there having a go!”
A further example occurred in about 2012 when the father became very angry and physically violent towards the mother; during an argument the father pushed the mother’s chest, causing her to fall backwards onto the dining room table.
At separation in August 2013, the father left the parties’ residence in Suburb 3 (a home unit) to reside in rental accommodation. By that time the mother had returned to work on a part-time basis, being three days per week. On those days the child attended day care. The mother continued to be the child’s primary carer.
Following separation, the father collected the child from day care each Thursday afternoon and spent time with the child at the mother’s residence for a few hours. On Sunday the father also collected the child from his morning swim lessons and then spent time with him for either a few hours or the day. During this period the child did not spend any overnight time with the father.
In October 2013, the father obtained rental accommodation at Suburb 4 being a shared four bedroom apartment located beneath a family home (this latter home is situated on a five acre property). He shares those premises with a 76 year old man, Mr B. The father has the use of one bedroom and Mr B sleeps in one of the other bedrooms. The father uses the third bedroom as a home office. Within that home office, in a corner of the room, the child has a bed where he sleeps when staying at the father’s residence. The child has said to the mother numerous times: “I don’t like sleeping in Dad’s office.” The child has also asked the mother: “Can you tell Dad that I don’t like it?”
In about November 2013, the child began to spend one night per week and sometimes Sundays with the father.
After the mother returned to full time work in 2014, the father looked after the child each Wednesday and took the child to day care on one of the other mornings each week.
From about 30 January 2014 until about March 2014 the child spent each Tuesday night with the father. The father then spent the day with the child each Wednesday. He also spent time with the child each alternate weekend from 9:00 am Saturday until 5:00 pm Sunday.

From March 2014 until February 2016, the father picked up the child at 8:00 am each Wednesday and the child spent Wednesday night with the father. The father also spent time with the child each alternate weekend from 9:00 am Saturday until 5:00 pm Sunday.
From February 2016, the father collected the child from school at 3:00 pm each Wednesday and the child stayed overnight with the father each Wednesday night. The father then took the child to school each Thursday morning. Each alternate Friday the father collected the child from school at 3:00 pm and returned him to the mother at 6:00 pm. The father also spent time with the child each alternate weekend from 9:00 am Saturday until 5:00 pm Sunday.
The father has often cancelled or rescheduled his time with the child. Further, the father did not appear to be interested in spending extra time with the child whenever the mother offered it to him. The mother sets out in Annexure F to Exhibit L a list of occasions outlining the changes the father requested from the mother regarding his scheduled time with the child for the period from August 2013 to July 2016.
Over the past three years, the father has been late to pick up the child on average two times per month on the days he is scheduled to spend time with the child. When the child attended day care, this caused the mother to be late for work in the morning on those occasions. Further, the father has often arranged for the child to be returned home to the mother early on Sundays.
The mother has observed the child to be adversely affected by these often last-minute changes.
The mother has facilitated the father spending more time with the child. Whenever the father has been unable to spend time with the child as agreed, the mother has been flexible in arranging alternate times for the father to spend time with the child.
The father has not shown any interest in attending the child’s medical appointments, and has missed medical appointments in 2013, 2014, 2015 and 2016.
On a number of occasions the father threatened not to return the child to the mother as previously arranged. For example, in late December 2015 the mother was expecting the father to return the child home to the mother at 6:00 pm after he had taken the child to Region D for the weekend. The father refused to return the child at this time. The mother picked up the child the following day after she finished work.
The father has often verbally abused the mother in the presence or hearing of the child at changeovers. For example, in early September 2015, the father attended the mother’s residence to collect the child. The father said to the mother that he was not happy with what the mother had said in the Family Report. The mother responded by stating that she had been honest in her responses. The father said to the mother that she was lying to herself and everyone else, and denigrating the father. He referred to her as a “fucking bitch”.
The father has a daughter, [A], who lives in Region D with her mother. [A] was born on 2005. The father spends weekends with [A] about every four to five weeks or so. The father usually stays at the paternal grandmother’s home on these occasions.
The child appears to have a positive relationship with [A] and the paternal grandmother. The mother stated that she understood that they played well together.
The child has a positive relationship with the maternal grandparents.
The father believes the mother is generally a good mother for the child.
The father agreed that he and the mother had different parenting styles.
The child started primary school in 2016, in kindergarten. He attends School 1.
The mother gave oral evidence and was cross-examined.
The mother confirmed her proposals made to the Family Report writer that the child live with her and spend time with the father from after school Friday until Sunday afternoon on alternate weekends, and every week from after school Wednesday until before school Thursday. She confirmed further her proposal to the family consultant that the child spend half the term holidays with the father and two weeks with him during the summer holidays, with special occasions being spent with each parent in alternate years. In re-examination, the mother confirmed that she was not proposing that the child spend time with the father in a four night block each fortnight, nor would she be comfortable with such an arrangement.
As to the father’s parenting proposal, in paragraph 2.5 of Exhibit I, that the child spend five nights per fortnight with the father upon the child attaining the age of seven and a half years, the mother was of the view that such a proposal would be disruptive to the child’s school week and to the child himself, and she was concerned that the father would not meet this commitment.
Nor was the mother convinced, in relation to the father’s proposal in paragraph 2.6 of Exhibit I, that the child should spend seven nights per fortnight with him, or that the father would make this commitment. She believed that such an equal time arrangement would be incredibly disruptive to a primary school child.
The mother was of the view that an equal time arrangement would be extremely problematic for the child and she was not satisfied that consistency would prevail. She was of the view that the child would not respond well to changeovers in this context.
The mother was confident, on her part, of being able to communicate with the father without conflict for the well-being of the child, and believed that the parties had moved on since the incident of 20 December 2015. However, she harboured doubts as to whether the father would be able to communicate with her in an appropriate non-conflictual manner. She gave a recent example of a conversation that she had had with the father when the child was due to spend Wednesday overnight with the father. The mother had asked the father what was happening with the child’s pick up on the Wednesday, and the father had told her that, “I have made arrangements.” The father did not inform the mother of those arrangements, who would be picking up the child, and who would be returning the child to school.
The mother’s working hours are 8:30 am to 5:00 pm each Monday to Friday. Each Monday, Tuesday, Wednesday and Friday at 8:05 am, she drops the child off at before school care at his school. She collects the child each Monday and Tuesday from after school care at 5:20 pm, every Thursday at 3:00 pm, and every second Friday at 3:00 pm.
The mother lives with the child in the property, which has two bedrooms. The child has his own bedroom and playroom.
It is difficult for the mother to communicate with the father, and the mother contends that the father does not listen to her.
The child does not respond well to extended periods of time away from the mother; his behaviour, nutrition and toileting are adversely affected. He is clingy upon return to the mother’s care from the father. He is quite young for his age, and is unable to self-supervise. Further, the child’s sleep is affected, inter alia, when spending long periods of time with the father.
On 21 August 2017, it was common ground between the parties that a recent parent-teacher interview had taken place with the parties present; that the parties had attended the child’s behavioural specialist, Dr C, about one and a half weeks earlier; and that the father had requested a mental health care plan (for the child).
In relation to the mental health care plan, the mother had not been informed by the father of his intention to obtain the plan.
The father gave oral evidence and was cross-examined.
The mother had asked the father for details of the child’s sleeping arrangements and he had responded with a short “no”. The father confirmed that the child had slept at other places and he had not informed the mother.
The father stated that it was not required that he inform the mother where the child would be staying when he was in the father’s care.
The father agreed that he had requested at least six changes to the child’s spend time arrangements from 28 October 2016 to 31 December 2016; he stated that they were changes to meet his needs and the needs of the child.
The father agreed that he had changed the spend time arrangements to go to (location omitted) in early January 2017.
The father agreed that on about 3 February 2017, there had been an arrangement for the mother to pick up the child from an (location omitted) from the father’s care. The father agreed that sixteen minutes before the mother was due to pick up the child, the father requested to change the venue of the pickup location. In response to the Court’s question to the father, that sixteen minutes was not much notice, the father ultimately agreed it was not a preferable course.
The father agreed that on about 9 February 2017 he had requested the mother to agree to a proposed change to the spend time arrangements to enable the father to spend time with his old school friends.
The father, on Friday 9 June 2017 at about 10.05 a.m., told the mother that his work commitments might prevent him from picking up the child.
The father agreed that on Saturday, 22 July 2017, when the child was due to spend time with the father, he told the child that the child was too “grumpy” to spend time with the father and was too “grumpy” for his flatmate, Mr B.
The father did not attend the recommended parenting program (recommended by the family consultant on 31 August 2015 in her Children and Parents Issues Assessment: Exhibit B; see below) focused on understanding the developmental needs of children.
The father confirmed that he continues to say to the child that [A] is his daughter.
It was not disputed by the father that the mother’s employer closes its office for the first two weeks of the Christmas/January school holidays.

Family consultant Ms B

The family consultant prepared a Children and Parents Issues Assessment document on 31 August 2015, having interviewed the parties and the child on 6 August 2015; the document became Exhibit B. There was no cross-examination of the family consultant.
The family consultant stated that the mother claimed that the father regularly cancelled the time or collected the child very late, and the father claimed that the mother was inflexible and refused to make the child available for make-up time.
The child (then aged five years and two months) presented to the family consultant as strongly desiring a relationship with both parents. The child stated that he would like to have more nights with the father, but also indicated that, when he spent time with the father, the father did not play with him much. He did state that the father took him swimming and playgroup. The child reported that the father was regularly late, and was observed to open his arms wide to indicate the father was late “a lot.”
The child stated that he liked to spend time with the paternal grandmother in Region D and also with his sister [A].
The mother presented to the family consultant as a somewhat anxious parent.
The mother stated that she had commenced proceedings because she was tormented by the father seeking additional nights, “yet he doesn’t make the most of the time (he already has available to him)”. The mother maintained that the father regularly turned up hours or whole days late or cancelled the time, then sought make up time.
The mother told the family consultant that the father works for himself but would make the excuse that he was working as to why he needed to change the spend time arrangements. She claimed that the father’s repeated lateness made her late for work and that he also got the child late to day care. She declared that the father had refused to take seriously her concerns that the child be provided with a routine, and claimed that the father had told her he did not believe this was important to a child of the child’s age. When asked what she thought was the impact on the child of the father’s alleged behaviour, the mother stated that he felt “confused”.
The mother told the family consultant that the father had informed her that he gave $60 per week to [A]’s mother to support [A] financially, but he paid no child support or fees for any of the child’s activities.
The father presented to the family consultant as a somewhat self-focused person. The father was asked by the family consultant about whether he had taken up the time currently available to spend with the child and he presented as evasive. He denied that he made constant changes to the child’s arrangements.
The father was asked by the family consultant if he had made any financial contribution to the child’s upbringing, and he stated, “No, not at the moment.” The father claimed that he had not been asked to do so. The father remarked that the mother “has $20,000 in an offset account that should be funding things.”
The father confirmed that [A] was aware that he was not her biological father but stated that she saw him as her father. The father indicated that [A] lived at Region D, near the paternal grandmother, and reported that he saw her about every four to six weeks and spoke to her on the telephone one to two times per week. The father admitted that the child did not yet know that [A] was not his biological child.
The father described the mother as “special”, and when asked what was meant by this, he stated that she was a “peculiar” person who “likes to get her own way”. He indicated that the mother had little capacity to communicate or cooperate with him.
Under the heading “Evaluation”, the family consultant stated, inter alia, that the parties appeared to have an acrimonious post-separation parenting relationship with very poor communication about the child and his needs. The parents’ presentation suggested that they had very different attitudes to parenting with regard to matters of routine and very different communication styles. The parental differences impressed on the family consultant as being personality-related; she stated that if this was the case, it was likely that the parties would continue to struggle to communicate effectively and cooperate for the child’s best interests.
The family consultant stated that the father was advised to immediately commence having conversations with the child about the truth of [A]’s biological origins.
The father was advised by the family consultant that it would be better for him to seek spend time Orders that he could regularly and practically take up and commit to, so as to demonstrate to the child that this time was prioritised, rather than seek longer periods of time but then readily cancel the time. The father was advised that if he regularly cancelled spend time visits or changed the time, the child would likely experience this as a rejection of him.
The family consultant stated that if the father was to frequently change the spend time arrangements or turn up late, the mother’s household routine would likely be negatively affected.
The family consultant stated that the father would likely benefit from completing a parenting program that focused on understanding the developmental needs of children.
The Court accepts the evidence and recommendations of the family consultant.

Family Report writer

Ms A (the Family Report writer) prepared her Family Report dated 11 October 2016. She had interviewed the parties and the child on 4 October 2016.
The Family Report writer stated that it might assist the Court if her Family Report was read in conjunction with the Children and Parents Issues Assessment, dated 31 August 2015, of Ms B.
The mother told the Family Report writer that she usually worked full time from 8:30 am until 5:30 pm, but was able to leave work early on some days.
The father told the Family Report writer that he was self-employed and worked about 50 hours per week, and that his work sometimes included weekend work.
The mother told the Family Report writer that she had been as flexible in changing arrangements (as requested by the father) as she could be, but she said that the child became disappointed when changes were made. The mother stated that she wanted the child to feel like he was a priority for the father, and it was hard to explain to the child why the father kept changing the arrangements.
The mother stated that, when the child spent time with the father on the Friday afternoons, he did not stay overnight because the father would attend (location omitted) on Friday nights for his (hobby).
The mother told the Family Report writer that the parties had poor communication because she tried to avoid conflict with the father. She clarified that these issues had recently improved but had not stopped completely.
The mother reported that the father had never paid any child support. The father confirmed that he did not pay any child support to the mother. When asked by the Family Report writer more about this, the father stated that he would not be answering the question.
The child presented to the Family Report writer as a child younger than his age and stage of development.
The child said that there was nothing he did not like about spending time with the father.
The child said that he did not think that the parents were friends with each other because they “get in trouble with each other.” When asked how he knew this, he said that he hears them.
Under the heading “Evaluation”, the Family Report writer stated, inter alia, that the child appeared to have established and positive relationships with the parents.
The Family Report writer stated that given the child’s young age and his presentation, it was not recommended that the Court place any weight on his views.
The Family Report writer stated that the father had presented as highly evasive in relation to the issue of child support. She stated that this was of significant concern as it demonstrated a poor attitude regarding his responsibilities towards parenting and was likely to contribute to a poor co-parenting relationship.
The Family Report writer confirmed that the mother’s main concern regarding the father appeared to be his reported repeated inconsistency and changing or cancelling of arrangements. It was noted that the father denied these allegations. The Family Report writer stated that it would be concerning if the father regularly prioritised his own needs for social activities above the child’s needs to spend consistent, regular time with him.
The Family Report writer considered it important that the child experience arrangements in a consistent and predictable manner and that changes only be made on rare occasions for exceptional circumstances.
The Family Report writer stated that if changes were constantly made, it would not only affect the child’s sense of routine, but the child could also experience this as rejection and think that his parent does not prioritise him.
In addition, the Family Report writer stated that constant changes from one parent would mean that the other parent would be required to constantly fit in and change his or her own schedule, which would be likely to cause frustration and result in conflict.
The Family Report writer stated that given that the parties’ co-parenting relationship and communication was not optimal, an equal time arrangement could not be recommended. She stated that if the Court finds that the father is able to maintain a consistent spend time arrangement the majority of the time, it may be in the child’s best interests that he spend time with the father on alternate weekends and one night during the intervening week.
Under the heading “Recommendations”, the Family Report writer stated that if the Court found that the father was able to be consistent, it would be recommended that the child live with the mother and spend four nights per fortnight with the father (Saturday morning until before school Tuesday on alternate weekends, and from after school Wednesday to before school Thursday in the intervening week).
The Family Report writer recommended that if the father was found to be unable to be consistent, it would be recommended that the child live with the mother and spend reduced time with the father to what he could consistently manage.

The Family Report writer gave oral evidence.
The Family Report writer was asked what the effect upon the child might be if it was determined that the father was not concerned about the effect of making changes to the spend time arrangements. She stated that the child might start to feel that the father did not prioritise his time with him; it might affect his self-esteem and relationship with the father; and the child might experience anxiety if he was constantly not aware of what would happen, or disappointed.
The Family Report writer’s attention was drawn to the father’s proposed spend time arrangements in Exhibit I. She observed that in a period of fourteen days, there were a lot of changes for the child. She observed that spend time arrangements changing for each fortnightly week could be confusing for the child. She did not recommend the father’s proposed spend time arrangements.
The Family Report writer stated that the current spend time arrangements were more suited to a child younger than the child and were not in his best interests; she stated that there were presently too many changeovers and too much going back and forth.
The Family Report writer stated that for parties that did have a good co-parenting relationship, three to four changeovers each fortnight could be appropriate.
The Family Report writer stated that, regarding school holiday time, the child could manage one week with the non-live with parent.
The Court accepts the evidence of the Family Report Writer.

Relevant legal principles: parenting

Section 60B of the Act sets out the objects of Part 7 of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, the Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA(3).
If the presumption of equal shared parental responsibility in relation to the child applies and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an Order that the child spend substantial and significant time (as defined in section 65DAA(3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such Orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC and 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration

The child has a meaningful relationship with both parents and would benefit from a continuance of those relationships.
The Court is of the view that an equal time arrangement would not be in the best interests of the child, and this is discussed further below.
The Court accepts the mother’s evidence as to the father’s post-separation history of requesting the mother to change the child’s spend time arrangements with the father and his inability to consistently comply with these arrangements.
In relation to spend time arrangements, the Court accepts the mother’s submission that historically, post-separation, the father has often placed his own needs above the child’s needs for consistency and predictability.
For example, the Court refers to the father’s requests to change the existing spend time arrangements to accommodate his Region D trips, and to spend time with friends.
It is not without importance that such requests by the father were made by him in the context of a parenting arrangement for the child that involved a significant number of changeovers on a fortnightly basis. This arrangement was observed by the Family Report writer to be more suited to a child younger than the subject child, and involved excessive changeovers for him.
Should the child spend time with the father, during school term times, each alternate weekend from after school Friday until 5:00 pm Sunday and each Wednesday from after school to 9:00 am the next day, such time would enable the child to spend both recreational weekend time with him and enable the father to be involved with the child’s schooling. The Court is of the view that the father should be able to manage and comply with such parenting Orders, in particular by reason of there being fewer changeovers compared to the current parenting arrangements.
The Court is of the view that parenting Orders in excess of such above proposed fortnightly school term time, that is, in excess of a total of four nights each fortnight during school term times, would carry the significant risk of the child suffering emotional detriment, and place in jeopardy the maintenance of his meaningful relationship with the father, flowing from the significant prospect of the father being unable to reliably comply with such parenting Orders.
Should the child spend a total of four nights per fortnight with the father during school term times, together with significant periods during school holidays (see the court’s Orders proposed below), the child’s meaningful relationship with the father should be able to be maintained, and the child’s meaningful relationship with the mother should not be detrimentally affected. Again, the father should be able to manage and comply with such parenting Orders.
In the view of the Court, the father’s proposals for school holiday time involve too many changeovers, carry the significant risk of disruption for the child, and would not allow either parent a sufficiently extended holiday period with the child.
As to the mother’s proposals for school holiday time, the Court is not persuaded that the proposed extensions of the time periods to be spent by the child with the father from 5 to 7 days, dependent on whether the father takes the child to Region D and the paternal grandmother is present during the entire period, are in the best interests of the child. Similarly, the mother’s proposals for Easter should not be so potentially limited.
The evidence of the family consultant and Family Report writer are consistent with the above views.
The Court gives significant weight to this meaningful relationship primary consideration.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

Not applicable, subject to the Court’s discussion above under the meaningful relationship primary consideration, relating to emotional detriment to the child if the father is unable to reliably comply with “time with” parenting Orders.

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

The Court, consistent with the evidence of the Family Report writer, noting the child’s emotional immaturity (acknowledged by the mother, for example, in exhibit L, page 39) places no weight on the child’s views.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

The child also has positive relationships with the child [A], the paternal grandmother and the maternal grandparents.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

Subject to the Court’s discussion above under the meaningful relationship primary consideration, both parents have taken such opportunities.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

The mother has fulfilled such obligations. The father, post-separation, has failed to pay adequate child support to the mother.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

The Court refers to its discussion above under the meaningful relationship primary consideration.

(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

The parents presently live in close proximity to each other. Whilst the Court notes that the property where the father resides (again, the father only resides in part of that property) was sold in about August 2017 (Exhibit K), there is no persuasive evidence that the father is likely to be required to move from that residence in the near future.

(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

The mother has such capacities.
As to the father, the Court refers to its discussion above under the meaningful relationship primary consideration, particularly in relation to the father’s inconsistent compliance with spend time arrangements post-separation.
The father failed to heed the recommendations of the family consultant relating to adequately informing the child of the child’s non-biological relationship to [A].
Whilst the evidence does indicate other discrete occasions when the father probably did not meet the child’s emotional needs (for example, the soccer incident involving the father disciplining the child in July 2017), the father usually demonstrates that he has such capacities.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

The Court refers to its discussion above, in relation to the additional consideration to “the views of the child”: section 60CC (3)(a). Further, the Court refers to the family consultant and Family Report writers’ assessments of the parties’ respective presentations to each of them, which the Court accepts.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right.

Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

The mother has demonstrated appropriate attitudes in these respects.
The father has failed to pay adequate child support post-separation. The Court refers to its discussion above under the meaningful relationship primary consideration, in relation to the father’s inconsistent compliance with spend time arrangements post-separation. The Court accepts the mother’s evidence that on occasions the father has verbally abused her in the presence of the child.

(j) Any family violence involving the child or a member of the child's family.

The father perpetrated family violence against the mother such as when he pushed her, as discussed in the evidence above.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.

Not applicable.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

The Court is of the view that should it make the parenting Orders discussed under the meaningful relationship primary consideration above, as opposed to the father’s proposed parenting Orders, such parenting Orders as proposed by the Court would be least likely to lead to the institution of further proceedings in relation to the child.

(m) Any other fact or circumstance that the court thinks is relevant

In relation to the Christmas/January school holiday periods, the Court proposes that the child spend significant periods of time with the father. In this context, the Court takes into account the shutdown of the mother’s work office for the first two weeks of this school holiday period, and the importance, for the maintenance of the child’s meaningful relationship with the mother, of her being able to spend an extended holiday period with the child at this time. The Court’s proposals in this context have also sought to accommodate the father’s desire to have the child spend some consecutive nights with the child [A] in (omitted), noting that [A]’s birthday is (omitted).

Equal time

Both parties formally propose an Order that they have equal shared parental responsibility for the child. The Court is of the view that such an Order will be in the best interests of the child, as the parties are probably able to sufficiently communicate and reach agreement in relation to major long-term issues affecting the child.
Again, the Court is of the view that an equal time arrangement would not be in the best interests of the child. The Court refers to its discussion above under the meaningful relationship primary consideration, in particular relating to the father’s historical failure to consistently comply with existing parenting arrangements. Further, the quality of the parties’ co-parenting relationship is insufficient to enable an equal time arrangement to operate in the best interests of the child; the Court accepts the mother’s evidence in this context together with the evidence of the family consultant and Family Report writer.
The mother’s parenting proposals relating to school term times, as discussed above under the meaningful relationship primary consideration, will probably constitute substantial and significant time under section 65 DAA of the Act.

Court’s proposed Orders by reference to section 60CC factors

Evaluating the primary and additional considerations under section 60CC of the Act, as discussed above, the Court is of the view that it will be in the best interests of the child to make final parenting Orders as follows:
(1)The parties shall have equal shared parental responsibility for the child [X], date of birth 2010.
(2)The child shall live with the mother.
(3)Subject to Orders 4, 7, 8, 9 and 10 herein, the child shall spend time with the father during non-school holiday periods as follows:
(a)Each alternate week from after school Friday until 5:00 pm Sunday, commencing on the first school Friday after the making of these Orders; and
(b)Each Wednesday from after school to 9:00 am the next day.
(4)In relation to the arrangements prescribed in Order 3 (a) and (b) above:
(a)If for any reason the Father is unable to regularly care for the child on Wednesday then the Father shall make arrangements for the child to be placed in the school day care from 3:00 pm to 5:30 pm on that day;
(b)Order 3 shall be suspended during all of the child’s school holiday periods; and
(c)Such periods that the father shall spend with the child pursuant to Order 3 shall resume after the child’s school holiday period from the Saturday after the child’s return to school for the new school term.
(5)In relation to the arrangements referred to in Order 3 (a) and (b) above, the parent who is receiving the child into their care will be responsible for collecting him form the appropriate location in the circumstances, whether it be the other parent’s residence, the child’s place of education or any other place mutually agreed between the parties, and when a parent’s care is about to conclude at the same or similar time to when the child is ordinarily in or about to be in day care or school, then that parent shall drop the child off at day care or school.
(6)In the event that a parent is unable to collect or drop off the child then a nominated and mutually agreed person may do so on behalf of that parent.
(7)In the event that during the time the child is in the father’s care the father is not able to personally supervise the child, then the father shall immediately contact the mother by telephone, notify her of the same and return the child to the mother’s care.
(8)In the event that the father is not able to spend time with the child pursuant to these Orders, the father shall notify the mother by text message or email no less than 24 hours prior to the commencement of the said period he should have spent time with the child, and the child shall remain in the mother’s care.
(9)Subject to Order 10 herein, the child is to spend time with the father during school holiday periods and on special occasions as follows:
(a)During the mid-year NSW school holiday periods as follows:
(i)          Subject to Order 9 (e) and (f) herein, for a period of seven days from 9:00 am the Saturday to 5:00 pm the Friday of the first week of each mid-year school holiday period.
(b)Subject to Order 10, during the Christmas school holiday period as follows:
(i)     During even numbered years, from 5:00 pm Christmas Eve for three nights inclusive, to 5:00 pm on 27 December; and in odd numbered years, from 9:00 am Christmas Day to 11:00 am Christmas Day;
(ii)     From 9:00 am 7 January to 5:00 pm 13 January;
(iii)   From 9:00 am 16 January to 5:00 pm 18 January;
(iv)    From 9:00 am 23 January to the end of the school holidays in January.
(c)On Father’s Day of each year, and in the event that the father is not already spending time with the child pursuant to these Orders, then from 7:30 pm on the day preceding Father’s Day until 5:00 pm on Father’s Day.
(d)On the child’s birthday, in the event that the child is in the care of the mother, from 3:00 pm to 6:00 pm.
(e)In the event that the period from Good Friday to Easter Monday falls within the first week of the school holiday period, then the father’s time with the child shall start on Good Friday at 9:00 am and shall end at 5:00 pm on the following Thursday;
(f)At other times as may be mutually agreed between the parties in writing or by email.
(10)Notwithstanding other Orders herein, the father’s time with the child shall be suspended during the following periods, during which the mother shall spend time with the child:
(a)On Christmas Day in even numbered years from 9:00 am Christmas Day to 11:00 am Christmas Day;
(b)On Mother’s Day each year in the event that the father is spending time with the child pursuant to these Orders, then the father shall return the child to the mother’s care at 7:30 pm on the day preceding Mother’s Day, and the child shall remain in her care until 5:00 pm on Mother’s Day; and
(c)On the child’s birthday, in the event that the Father is spending time with the child pursuant to these Orders, from 3:00 pm to 6:00 pm.
(11)In relation to the arrangements referred to in Order 9 and 10 above, the father shall collect the child from the mother’s residence at the commencement of each such period, and the mother shall collect the child from the father’s residence at the end of each such period provided that the father remains residing in the Sydney Metropolitan area. In the event that the father is residing outside of the Sydney Metropolitan area, then at the end of each such period, the father shall return the child to the mother’s residence.
(12)The child shall have liberal telephone communication with either parent, and each of the parents shall be at liberty to telephone the child once daily when the child is not in their care, provided that such telephone call takes place no earlier than 7:00 am and no later than 7:30 pm.
(13)In the event that one of the parents intends taking the child on holiday or away overnight, that parent must notify the other parent of their intention to do so and the location of the holiday no less than fourteen days prior to leaving on the said holiday.
(14)Each parent shall notify the other forthwith in the event of the child suffering a serious illness, accident or medical emergency, and that parent shall:
(a)Advise the other party of the name and location of any medical facility treating the child; and
(b)Provide all necessary authorities to any medical facility treating the child to discuss the progress with each parent.
(15)The parties shall give all consents necessary to the child’s school for the school to forward to each of them a copy of all school reports, weekly notices, correspondence and applications for school photographs at the requesting party’s expense.
(16)Each party shall be entitled to attend the child’s school, sporting and any other extracurricular activities that allow for parental presence at those events.

Evidence: property

The mother was in full time employment as an (occupation omitted), earning about $73,000 gross per annum, when the parties commenced living together in 2009. The father was self-employed in a family company called (business omitted); he worked from home earning about $35,000 gross for the financial year ending 30 June 2010.
At the commencement of cohabitation, the mother had savings of about $83,000, a (omitted) Investment valued at about $37,000, and superannuation entitlements of about $52,000. She had modest furniture and a car. The mother later withdrew about $40,000 from her (omitted) investment for legal fees. The father had made no contribution to this investment of the mother.
At the commencement of cohabitation, by reference to the admissible evidence before the Court, the father had a car, savings of about $1,117, and an entitlement in a self-managed superannuation fund of about $74,000. The father was unable to establish, by reference to admissible evidence, the value of his interest in (business omitted) Pty Ltd or the Balstad Family Trust (the father has received income from this trust) at cohabitation. The above company as at 30 June 2010 had accumulated losses of about $160,000, according to its financial statements for the year ended 30 June 2011. (See the Court’s discussion under “Disclosure” later in these Reasons.)
Throughout the parties’ relationship the mother earned significantly more than the father overall. The mother earned a total sum of about $45,000 net more than the father during their four year relationship from about 2009 to August 2013, by reference to the parties’ income tax returns. The parties also maintained their own respective bank accounts.
The parties, when living in rental accommodation in Suburb 5, shared the payment of rent, groceries and household utility expenses.
The mother worked full time until one month prior to the child’s birth.
In about 2010 the mother purchased the property. The child was born in 2010.
The purchase price of the property was $460,000. The mother utilised her savings of about $68,000 and a sum of $20,000 from her father. She received a first home buyers’ grant of $7,000. The balance of the purchase price was taken by way of mortgage loan from Bank 1 in the sum of $368,000 in the mother’s sole name. She paid about $2,700 for associated fees and legal costs from her own income and savings.
In 2010, after the mother had obtained a mortgage from Bank 1 for the property, she also opened an offset account with Bank 1. The offset account was used, inter alia, for the mortgage repayments and payment of the parties’ household expenses.
In about 2011 the parties and the child commenced living together in the property.
Throughout the parties’ relationship the mother deposited on average about two thirds of her net income into the Bank 1 account each month. For the period between 10 June 2010 to 19 August 2013 (when the parties separated), the mother made total deposits of about $138,205. The father made deposits totalling about $72,840 (which included a lump sum of $30,000 deposited by the father in July 2010).
In addition to the monies the mother deposited into the Bank 1 offset account throughout the relationship, the mother also used some of the balance of her income and her savings in her personal bank account with Bank 2 to pay for the vast majority of the expenses relating to the child, as well as to pay for holidays for the parties and the child. The mother paid for these costs from her personal bank account because during the relationship the father often told the mother that he was struggling for cash flow.
The property was purchased in the mother’s name so that the mother would be eligible for the first home owner’s grant and stamp duty concessions. During the parties’ relationship the mother maintained the property by cleaning it and arranging for any repairs. She also cooked for the entire family.
Several months before the child was born, the mother asked the father if she would be able to use the second bedroom for the child. The father agreed. Thereafter, in about 2010, the father obtained and rented a serviced office in Suburb 1.
In about 2010 the mother informed the father that she wanted to put some money aside for the child’s future, and that she had opened up a bank account and put some of her money in it for the child. The bank account was a Bank 2 Savings account in the name of the child; the mother had received monies in 2012 from a work redundancy which she chose to give to the child for him to access when he is eighteen years old for educational purposes. The balance of that account at separation was about $34,000.
In about 2011 the mother used some of her savings in the sum of about $8,000 to make improvements to the property and buy new furniture for it, including a built-in wardrobe, TV unit and book shelving.
In about 2011 the maternal grandfather gifted the mother a further sum of $10,000, and the mother deposited this amount directly into the offset account. It was used for mortgage payments and living expenses as well as some improvements to the property. (This sum is included in the above-mentioned sum of $138,205.)
The parties equally contributed to the painting of the property and floorboards in about 2012; they each paid about $2,000 to finance such improvements. A sum of about $1,133 from the Bank 1 offset account was also applied to the improvements.
In about 2012, the father paid about $6,000 to fix the ‘Balstad family boat’. The father asserts that the boat belongs to his mother. After that, the father only had about $5,000 left in his personal bank account, and initially no ready access to any other funds.
In about mid-2013 the father was continuing to (employment omitted) and work with (business omitted).
In about 2013, the father’s contract as (occupation omitted) at (employer omitted) ceased. He had earlier commenced working there in about 2013.
At separation, the balance of funds in the Bank 1 offset account was about $20,000. The mother asserted that as at 21 August 2017, the balance in the Bank 1 offset account was $38,000.
Since separation, the mother has been solely contributing to the Bank 1 offset account, and she uses the account for necessary expenses for the child as well as making all of the mortgage repayments for the property.
After the parties’ separation in August 2013, the father moved out of the property and into rented accommodation in Suburb 2. The mother continued to live in the property with the child, made all of the mortgage repayments, and paid all rates and utilities in relation to the property.
In November 2013 the mother gave $1,000 to the father after the father requested a refund of $1,000 from the Bank 1 offset account.
In 2014 the mother returned to work on a full time basis and has continued to work full time since then.
The mother confirmed that as at 26 October 2016 the balance in the Bank 1 offset account was $19,176. Her Financial Statement filed 28 September 2016 stated that the balance on that account had been $45,451.98. She stated that the difference between the two amounts related to her spending a lot of monies for legal costs in these proceedings.
As at 28 September 2016 the father was assessed to pay nil child support “due to the contents of his taxable income in being self-employed through (business omitted) Pty Ltd.”
The father has not contributed to any of the child’s educational or medical costs.
The mother has requested on several occasions that the father reimburse the costs of rescheduling and cancelling the child’s childcare and (hobby) lessons, which the mother incurred in order to facilitate the father’s spending time with the child. The father has failed to pay the majority of these costs.
The father asserts that he works as a (occupation omitted) and business person, and (employment omitted). He has previously been (occupation omitted) and/or (occupation omitted) of three public companies, being two (companies omitted) of some (industries omitted). He has a (qualifications omitted).
The father’s asserted taxable income in the 2014 financial year was about $22,000; for 2015 it was about $27,000; and for 2016 it was about $21,000.
As at separation, the father’s Bank 3 account had a balance of about $384. His Bank 3 Savings account had a balance of about $330.
The father asserts that his superannuation as at 30 June 2013 was $70,268. (See paragraph 40.6 of his Affidavit filed 18 November 2016.)
The father asserts that he presently pays rent of $350 per week.
The father, from August 2016 to October 2016, was paying $40 per month to [A] through a direct debit on his Bank 3 account. The mother asserts that the father does not have any legal obligation to support this child.
The father agreed that he did not pay child support, school expenses or health fund expenses.
The father asserted that post-separation, he had had no capacity to contribute towards mortgage repayments for the property, including maintenance and strata levies, as he was living on the poverty line.
The father agreed that during the relationship the mother usually performed, and was primarily responsible for, the domestic duties including shopping, cooking, cleaning and general housework.
The father asserted that during the relationship he had sought to build two businesses, and that he wanted to provide for the family.
The father agreed that he had stored some of his belongings, including documents, in the basement at the property, and he understood that the mother wanted him to remove them. The father stated that he would do this soon.
The father stated that the mother’s mortgage repayment of $325 per week equated to the rent he was paying of some $350 per week.

Disclosure

The father is the sole director and shareholder of (business omitted) Pty Ltd.
The father is listed as a director of (business omitted). He is the sole director.
The father is listed as a director, secretary and shareholder of (business omitted) Pty Limited.
The father is listed as a director and shareholder of (business omitted) Pty Ltd, together with his brother-in-law and sister-in-law. This company is a shareholder of (business omitted) Pty Ltd. The father also asserts that this company is the trustee for the Balstad Superannuation Fund, and he asserts that this company does not trade in its own right.
The mother contends that the father has received income from a trust called the Balstad Family Trust. (omitted) Pty Ltd is the trustee.
The father asserts that the taxable income of (business omitted) Pty Ltd during the parties’ cohabitation and since has been: for the financial year 2010, a loss of about $49,000; for 2011, nil; for 2012, nil, for 2013, nil; for 2014, a loss of about $2,000; and for 2015, a loss of about $9,000.
The father asserts that the taxable income of the Balstad Family Trust during cohabitation and since has been: for the 2010 financial year, about $14,000; for 2011, about $16,000; for 2012, about $14,000; for 2013, about $11,000; for 2014, about $8,000; and for 2015, about $15,000. The father asserts that he has not been the beneficiary of the vast majority of any trust income.
In relation to the (business omitted) Family Trust, the father asserted that his brother sends relevant documents to the Australian Taxation Office. He accepted that there had been distributions through the family trust to the child and [A]. When it was put to the father that he had not paid the amount of any such distribution to the child or to the mother, the father responded by stating that he did not get the benefit of the distribution either. Later, the father agreed that such distributions through the trust to the child had never actually been paid to the child.
In about 2009 the father told the mother he was establishing a business called the (business omitted), involving the (businesses omitted). The father asserts that the taxable income of (business omitted) Pty Ltd during cohabitation and since has been: for the financial year 2010, a loss of $212; for 2011, a loss of about $71,000; for 2012, a loss of about $58,000; for 2013, a loss of about $29,000; for 2014, a loss of about $5,000; and for 2015, nil.
In about August or September 2010, the father invested “quite some $10,000’s” in setting up (business omitted) Pty Ltd.
The father states in relation to the entity (business omitted) Pty Ltd, in paragraph 256 of his Affidavit filed 5 October 2016, that the global financial crisis and consequent fallout was much worse “than we anticipated”. Consequently, this company’s rental income barely covered costs and interest repayments from 2010 to 2016. The mother states in response that she was not aware of the father’s alleged investment in that company at that time.
In about 2010, the father and his brother Mr D created a business called the (business omitted) (based around using (products omitted)). The father asserts that the taxable income of (business omitted) Pty Ltd during cohabitation and since has been: for the financial year 2011, a loss of about $3,000; 2012, nil; 2013, nil; for 2014, a loss of about $1,000; and for 2015, $391.
In about late May or early June 2010, the father invested $15,000 in (business omitted) Pty Ltd, with the goal of achieving income streams and building a future saleable asset. The father agreed that he had not disclosed details of the bank account into which he had invested $15,000 for the business (business omitted) Pty Ltd in about late May or early June 2010. The father conceded that the $15,000 did not come out of his income.
The father stated that he had put in tens of thousands of dollars from his money towards the business (business omitted) Pty Ltd. When it was suggested to him that he had never provided a bank statement in his name to show that he had tens of thousands of dollars of his money, the father replied, “That may be the case.”
Until about August or September 2016, the mother was not provided with a copy of the father’s taxation returns, and the taxation returns and financial statements of the following entities:
·(business omitted) Pty Ltd
·(business omitted) Pty Ltd
·(business omitted) Pty Ltd
·Balstad Family Trust
Further, in the case of the above trust, the mother was only given a copy of the Trust Deed on 23 September 2016.
As a consequence of such non-disclosure by the father, as at the filing of the mother’s Affidavit on 28 September 2016, she did not have the opportunity to have the father’s interest in the above entities valued for the purposes of the proceedings.
The financial statements of (business omitted) Pty Ltd, and other entities in which the father has an interest, do not provide exact information as to who prepared the financial returns of each of those entities. However, the 2010 company taxation return of (business omitted) Pty Ltd shows the postal address as (address omitted).
As at the date of filing of the mother’s Affidavit on 28 September 2016, the father had not disclosed to the mother his source of income from (omitted) work that he carries out. The father conceded that his cash income from (omitted employment) was not referred to in his Financial Statement. He did state that some of this cash income was “put through (business omitted) Pty Ltd”. He stated that he provides (employment omitted) each week at $50 per hour.
The father, on 18 August 2016, received about $918 by way of a Centrelink Newstart Allowance. The father failed to disclose his receipt of such government benefits prior to his Affidavit filed 18 November 2016. The father agreed that he had been receiving government benefits at least for the financial years 2015 and 2016.
From August 2016 to October 2016, the entities (business omitted) Pty Ltd and (business omitted) Pty Ltd were depositing monies into the Bank 3 account of (business omitted) Pty Ltd.
The father paid certain amounts for “Rent Suburb 3” from the Bank 3 bank account in the name of (business omitted) Pty Ltd, cheque account (omitted), as referred to at pages 7 and 8 of the mother’s Affidavit filed 9 December 2016.
Paragraph 5 of the mother’s Affidavit filed 9 December 2016 states, inter alia, in relation to the above entities that:
a)The financial statements in which the father has an interest do not provide exact information as to who prepared the financial returns of each of those entities.
b)The 2010 company taxation return of (business omitted) Pty Ltd shows the postal address as (address omitted). (business omitted) Pty Ltd is a company in which the father, his brother-in-law and sister-in-law are sole directors and shareholders. The taxation agent is Mr D.
c)The financial returns and the taxation returns prepared in relation to all of the entities in which the father has an interest appear to have been prepared either by the father or with his brother’s assistance, and not an independent accountant.
d)In relation to the Balstad Family Trust, the mother has not received any credible source documents from the father to verify the alleged loan owed to the father or whether any such loan has been repaid to the father since then.
e)The mother refers to Annexure X, forming part of the father’s Affidavit filed 18 November 2016, and being a bank statement for (business omitted) Pty Ltd for the period from August to October 2016, and which shows credit deposit entries from the entity (business omitted) Pty Ltd and, the Court interpolates, from the entity (business omitted).
The Court refers to the oral evidence of the father in cross-examination, in relation to the (business omitted) Family Trust, that his brother had sent relevant documents to the Australian Taxation Office.
There is force to the mother’s submission, which the Court accepts, that the failure of the father to adduce evidence from his brother Mr D enables the Court to draw an inference that the brother’s evidence would not have assisted the father in this case; the Court draws such an inference.
In the view of the Court, the father has failed to make full financial disclosure in relation to the entities (business omitted) Pty Ltd, (business omitted) Pty Ltd, (business omitted) Pty Ltd, and the Balstad Family Trust, resulting in those entities being unable to be valued in a timely fashion.
The father asserted that the value of his interest in (business omitted) Pty Ltd was $8,000, and that his interest in the other above entities was nil. As discussed below, the Court finds, in relation to the Court’s final Balance Sheet, that it is unable to ascribe a value to these entities.
There was quite limited admissible evidence before the Court relating to these entities’ financial history to trial date. Such limited evidence did not tend to suggest that these entities had significant value historically. For example, the mother herself, in her Affidavit filed 28 September 2016, paragraph 58, refers to the Financial Statement of (business omitted) Pty Ltd for the financial year ended 30 June 2011, which indicates no equity but rather accumulated losses of about $160,000.
The mother did not adduce direct evidence that the father had access to specific undisclosed funds relating to these entities.
However, ultimately the mother did submit that, in the circumstances of the father’s financial non-disclosure in relation to these entities, she was simply unable to know the value of these entities at trial date, and thereby the extent of the father’s interest in them. There is force to this submission and which the court accepts.
There was quite limited source documentation produced by the father in relation to these entities, including bank records. Some bank account records, belatedly disclosed by him in cross-examination, were not produced at all. His evidence relating to his injection of monies into these entities during the relationship was scant. Again, no evidence was adduced by the father from his brother who, it appeared, played some role in preparation of financial records for these entities but was not an independent accountant. The father presently maintains his connections with these entities.

In the circumstances, the Court will take into account, for the purposes of section 90SF(3)(r), the father’s non-disclosure in relation to these entities.

Relevant legal principles: property adjustment

Pursuant to section 90SM(1)(a) of the Act, in property settlement proceedings, the Court may make such Order as it considers appropriate, in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them, altering the interests of the parties to the de facto relationship in the property. Such Order may include an Order requiring either or both of the parties to make, for the benefit of either or both of the parties, a transfer of property as the Court determines.
The Court, in determining property proceedings, should firstly identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property that is available for distribution between them. The Court should then determine whether it is just and equitable to make an Order altering the parties’ interests in such property. If the Court is satisfied that it is so just and equitable, the Court should then consider the contributions made by each of the parties pursuant to section 90SM(4) of the Act before looking at their future needs by reference to the factors set out under section 90SF(3) of the Act.

Balance Sheet: the parties’ contentions

The parties’ Joint Balance Sheet filed 21 October 2016 provided as follows:
Assets:

Ownership Item Mother / de facto partner’s value Father / de facto partner’s value

1. M Property A, (Agreed) $     750,000.00 $     750,000.00

2. M Bank 1 Account (as at 30.06.2016) $      45,451.98 $       45,451.98

3. M Bank 2 Savings Account (as at 26.08.2015) $        2,516.01 $         2,516.01

4. M Bank 2 Account (in [X]’s name) $               N/A $       34,124.72

5. M Furniture in the home $     5,000.00 E $         5,000.00

6. M (omitted) Super Fund (remaining balance) $      28,157.20 $       68,157.20

7. F Bank 3 Account (suburb omitted) $               N/K $  84

8. F Bank 3 Account (Sydney) $               N/K $                   Nil

9. M Vehicle 1 vehicle $     3,000.00 E $      4,500.00 E

10. F (business omitted) Pty Ltd $              N/K $         8,000.00

11. F (business omitted) Pty Ltd $               N/K $ Nil

12. F (business omitted) Pty Ltd $               N/K $ Nil

13. F (business omitted) Pty Ltd $               N/K $ Nil

14. F Interest in The Balstad Family Trust $               N/K $ Nil

Total $  0 $                   0

Liabilities:

17. M Bank 1 $ 368,000.00 $ 368,000.00

18. $ $

19. $ $

TOTAL $ 0 $ 0

Superannuation:

Member Name of Fund Type of Interest Mother / de facto partner’s value Father / de facto partner’s value

20. M (omitted Super Fund) Accumulation $ 119,604.00 $

21. F Balstad Super Fund Self-Managed $ N/K $ 68,622.00

The Court will now resolve the disputed items in the Joint Balance Sheet.

Item 1: Value of property

The parties ultimately agreed that the current value was $830,000 which amount shall go into the Balance Sheet.

Item 2: Bank 1 Account

At separation, the Bank 1 offset account had a balance of about $20,000.
At trial, the mother’s final oral evidence on this issue was that the latest balance in the Bank 1 offset account was $38,000.
The father did not seek to challenge this evidence. The amount of $38,000 will go into the Balance Sheet for Item 2.

Item 4: Bank 2 Account (in name of child)

The mother seeks to include no sum in the Balance Sheet in relation to what she ultimately asserted in her oral evidence was a balance of $3,000 in this bank account in the name of the child.
The father seeks to include the sum of $34,124.72.
The mother’s evidence was that this account in the name of the child comprised monies that the mother had received pursuant to her redundancy in 2012. She had chosen to give these monies to the child for him to access when he is eighteen years old for educational purposes.
The mother’s evidence was that the balance of the child’s account as at separation was some $34,124.
In the mother’s Financial Statement filed 28 September 2016 she refers to the above account in the name of the child having a current balance of some $34,124.
In the mother’s Affidavit filed 28 September 2016, paragraph 100(o), she states that she has solely contributed to this account in name of the child, which is to assist the child financially in his future.
There is no persuasive evidence that the father made any relevant contribution towards the mother’s redundancy payment received by her in 2012. It is noted that such redundancy payment comprised the source of the funds paid by the mother into the bank account in the name of the child. Accordingly, the Bank 2 account in the name of the child will be taken out of the Balance Sheet.

Item 6: (omitted) Super Fund

This investment of the mother was owned by her prior to the commencement of the parties’ relationship. As at cohabitation, the investment had a value of some $36,841. As at separation, the investment had a value of some $50,763. The mother’s evidence was that she did not make any further contributions during the relationship to this investment and neither did the father. Her evidence was that in August 2016 she was obliged to sell a part of this investment to pay for legal fees in the current proceedings; she withdrew $40,000 from the portfolio and applied it for legal fees.
The mother’s Financial Statement filed 28 September 2016 indicates that this investment had a value of some $28,157 at that time.
Ultimately, the mother’s evidence at trial was that the balance in the portfolio was $8,000.
There being no persuasive evidence that the father contributed to this investment of the mother, the sum of $8,000 will go into the Balance Sheet.

Items 7 and 8: the father’s two Bank 3 bank accounts

These two bank accounts of the father are referred to in his Financial Statement filed 22 September 2016; the Item 7 bank account is stated to have a balance of $84 and the item 8 bank account a nil balance.
The mother contends that the father has not provided full and frank disclosure in relation to these two bank accounts.
The father, in his Affidavit filed 18 November 2016, Annexure A, annexes a bank statement for the Item 7 Bank 3 bank account, number (omitted), with a stated balance of $1,177 as at 25 June 2009. Annexure Q, being another bank statement for the Item 7 account, shows a balance of $384 as at separation in August 2013. Annexure R, being a bank statement for the item 8 bank account, shows a balance of some $330 as at separation date.
The father in his Affidavit filed 18 November 2016, Annexure W, being a bank statement from his Item 7 bank account, shows a closing balance of debit $3.30 as at 4 October 2016.
The father contends in the Joint Balance Sheet filed 21 October 2016 that the Item 7 bank account has a balance of $84.
The Court notes that the mother’s solicitors caused a subpoena to produce documents to be issued against the Bank 3 on 11 August 2016 relating to the father’s bank accounts; no documents were sought to be tendered in evidence at trial in relation to the father’s bank accounts with the Bank 3.
The sum of $84 shall go into the sheet for the Item 7 bank account.
As to the Item 8 bank account (number (omitted)), there shall be a nil balance inserted in the Balance Sheet.

Item 9: Vehicle 1 car

The mother’s Financial Statement filed 28 September 2016 states the car’s value at $3,000.
There being no persuasive evidence as to the father’s contended value of $4,500, the mother’s contended value of $3,000 shall go into the Balance Sheet.

Items 10 to 14: (business omitted) Pty Ltd, (business omitted) Pty Ltd, Pty Ltd, (business omitted) Pty Ltd, Balstad Family Trust

The Court refers to its discussion above under “Disclosure”. The Court is unable to ascribe any value to these entities for the purposes of the Balance Sheet.

Item 21: the father’s Balstad Super Fund interest

The father contends in the filed Joint Balance Sheet a value of $68,622. This figure is now agreed by the mother (see her final contended Balance Sheet in her Written Submissions).
The Court’s final Balance Sheet is as follows:

Ownership Description Value

1. M Property A $830,000

2. M Bank 1 Account $38,000

3. M Bank 2 Savings Account (as at 26.08.2015) $2,516

5. M Furniture in the home $5,000

6. M (omitted) Super Fund $8,000

7. F Bank 3 Bank Account (suburb omitted) $84

8. F Bank 3 Bank Account (Sydney) Nil

9. M Vehicle 1 motor vehicle $3,000

10. F (business omitted) Pty Ltd Not Known

11. F (business omitted) Pty Ltd Not Known

12. F (business omitted) Pty Ltd Not Known

13. F (business omitted) Pty Ltd Not Known

14. F Interest in The Balstad Family Trust Not Known

Not less than $ 886,600

Liabilities

15. M Bank 1 $368,000

Net $518,600

Superannuation

16. M (omitted Super Fund) $119,604

17. F Balstad Super Fund (Self-Managed) $68,622

At trial date, the Court finds that the parties had the following assets and liabilities:
a)Net non-superannuation assets: $518,600.
b)The parties’ superannuation entitlements are:
i)Father: $68,622.
ii)Mother: $119,604.

Section 90SM(3) of the Act

The mother submits that the Court would not be satisfied that it would be just and equitable to make any Order altering the existing property interests of the parties.
The significant asset in these proceedings is the property, in which the parties resided with the child from about 2011 to about August 2013, when the parties separated and the father left the property to live elsewhere.
The Court refers to the relevant contributions of the father, pursuant to section 79 of the Act, discussed below.
The Court is not persuaded that it is not just and equitable to make any Order altering the existing property interests of the parties.
The Court is satisfied that it is appropriate in this case to make property adjustment Orders between the parties in light of, inter alia, their respective contributions (discussed below), the breakdown of their relationship and consequential separation.

Contributions

The Court will adopt a two pool approach, one for non-superannuation assets, and another for superannuation assets.
The parties’ relationship was relatively short, spanning the period from about 2009 to August 2013.
The Court refers to the case law dicta below, relating to section 79 property proceedings, which is relevant to these property proceedings between a former de facto couple.
In In the Marriage of Harris (1991) 104 FLR 458, the Full Court said that when assessing contributions:
The task of the court in proceedings under section 79 is not akin to an accounting exercise. To borrow a phrase used by McClelland J in Davey v Lee (1990) DFC 95-084; (1990) 13 Fam LR 688 at 689 in relation to section 20 of the De Facto Relationships Act 1984 (NSW):
...
the Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind.
More recently in Dickons & Dickons [2012] FamCAFC 154, the Full Court said:
23.We wish also to refer to the approach of the Federal Magistrate in attributing percentages to differing periods within the relationship, or types of contribution made. There is in our view little to be gained, and much to be said against, approaching the task of assessing contributions by attaching percentages to components of it. (The same, it might be said, applies to attributing a percentage to each of the relevant s 75(2) factors).
24.There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
25.Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “...giving over-zealous attention to the ascertainment of the parties’ contributions...” (Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 524) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
26.The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.”
At the commencement of cohabitation, the mother had savings of about $83,000, a (omitted) Investment valued at about $37,000, and superannuation entitlements of about $52,000. She had modest furniture and a car.
At the commencement of cohabitation, by reference to the admissible evidence before the Court, the father had a car, savings of about $1,117, and an entitlement in a self-managed superannuation fund of about $74,000.
Whilst the parties lived in rented accommodation in Suburb 5, from the commencement of their relationship, the parties shared equally the payment of rental and other household expenses.
During the parties’ relationship, apart from the Bank 1 offset account, referred to below, the parties maintained separate bank accounts.
The property was purchased by the mother in about 2010. The purchase price was $460,000. The mother utilised her savings of about $68,000, together with a sum of $20,000 from her father and a first home buyers’ grant of $7,000, and applied such sums towards the purchase price of the property. The mortgage was taken out from Bank 1 in the sum of $368,000 in the mother’s sole name. She paid about $2,700 for associated fees and legal costs from her own income and savings. These financial contributions from the mother (including the $20,000 from her father) were a significant contribution by her.
In about 2011 the mother used some of her savings with Bank 2 in the sum of about $8,000 to make improvements to the property, including built-in furniture.
In about 2012 the parties each paid about $2,000 for painting and floorboards work at the property.
The offset bank account with Bank 1 account was opened by the mother and during the relationship credit balances in this account were used for mortgage repayments on the property and payments of the parties’ household expenses, including expenses for the child. The mother made superior total deposits of about $138,205 during the relationship, in contrast to the father’s total deposits of about $72,840.
In addition to the monies the mother deposited into the Bank 1 offset account throughout the relationship, the mother also used some of the balance of her income in savings in her personal bank account with Bank 2, in order to pay for the vast majority of the expenses relating to the child, as well as to pay for holidays for the family.
The Court takes into account the mother’s sole direct financial contributions to the outgoings and mortgage repayments on the property post-separation and to date. These contributions of substance of the mother are offset to a not insignificant extent by her occupation of the property since separation, being August 2013. (The father has paid rental post-separation of $350.)
The mother’s contribution to the welfare of the family, including her contribution made in the capacity of homemaker and parent, was superior to that of the father; the mother was the primary carer of the child, she cleaned the property and cooked for the family. She has continued to be the primary carer of the child and has maintained the property post-separation. The mother has solely financially maintained the child post-separation; the father has paid no significant child support.
There is no persuasive evidence that the father made significant contributions to the mother’s Bank 2 savings account, valued at $2,516 (as at 26 August 2015), the (omitted) Super Fund ($8,000 remaining), or the mother’s Vehicle 1, valued at $3,000.
The Bank 1 offset account, at separation, had a balance of about $20,000. At trial, the mother’s final oral evidence on this issue was that the balance was some $38,000, however the father did not contribute post-separation to this account.
Again, the mother submitted that it is not just and equitable to make any Order “which alters the interests of the parties as currently held.”
The Court takes into account the father’s payment for repairs and work to the mother’s car in about early 2013 in the sum of about $3,750.
The father submitted, in his Written Submissions after the final hearing, that a property adjustment Order should be made “in the upper range”, 40% to 45%, to himself.
The Court finds that the greater contributions of the mother should warrant a division of non-superannuation property of 80% in favour of the mother and 20% to the father.
There is no persuasive evidence that either party made relevant contributions to the other’s superannuation entitlements. The parties sought no specific Order relating to each other’s respective superannuation interests. No Orders will be made in relation to such superannuation interests.
The Court notes that the father paid about $6,000 for boat repairs towards the Balstad family boat during cohabitation, however this boat does not form part of the court’s final balance sheet and it would appear to be an item of personalty that the father remains able to use himself.
The father contends that he paid office rental during the relationship which should be taken into account. The Court does not accept that such rent should be taken into account. The Court accepts the mother’s evidence and contentions in this context; inter alia, the Court refers to the mother’s Affidavit filed 9 December 2016, paragraphs (14.9), (14.9.1.1), (14.9.1.2), (14.9.2), (15), on pages 7 and 8 of that Affidavit. The Court also refers to its discussion and findings relating to the father’s financial non-disclosure.

Section 90SF(3) factors

The parties are both aged 49 years.
The parties are in good health.
The mother is in full time gainful employment as an (occupation omitted).
The father works as a (occupation omitted) and business person. He has previously been (occupation omitted) and/or Chairman of three public companies, being two (companies omitted) and a (company omitted) of 770 shareholders. The Court notes his work at the (employer omitted) in 2013. He has a (qualifications omitted) degree.
During the relationship, the father chose to concentrate his work efforts in relation to (business omitted) Pty Ltd, (business omitted) Pty Ltd and (business omitted) Pty Ltd, including (omitted) work. There was no persuasive evidence adduced that the father is unable to exercise his earning capacity and obtain employment on the open market in some capacity.

The Court is not satisfied that there is any significant disparity between the parties’ respective earning capacities.
The father has a superannuation entitlement in a self-managed fund valued at $68,622. The mother’s superannuation entitlement is $119,604. Again, the parties have not sought a splitting Order. The Court does not propose to disturb those entitlements. The parties will not have access to the superannuation funds for some time.
The mother will have the primary care of the child, presently only aged seven years, until the child reaches eighteen years.
The father’s post-separation financial child support has been negligible to date, and there is a significant doubt as to whether he will prospectively pay any adequate child support to the mother. Historically, neither the child, nor the mother on the child’s behalf, has been the recipient of any trust distributions from the Balstad Family Trust.
The Court takes into account the father’s financial non-disclosure in relation to the entities discussed above under “Disclosure”.
In Written Submissions after the final hearing, the mother contended (in the alternative it would appear) that a 20% adjustment under section 90SF(3) of the Act should be made in the mother’s favour.
In the above circumstances, there should be an adjustment in favour of the mother of 15% which will be appropriate.
In those circumstances, the mother will receive 95% of the net non-superannuation assets, equating to $492,670, with the husband to receive 5% of such assets being $25,930. The Court considers this to be an appropriate outcome.

Justice and equity

The mother seeks to retain the former matrimonial home with its associated debt. The mortgage debt on that home is $368,000. The mother’s weekly income just covers her weekly expenditure, by reference to her Financial Statement filed 28 September 2016.
Should the Court Order that the mother retain her sole interest in the property, the mother will be able to remain living with the child in the property, being their longstanding residence, servicing the mortgage loan relating to that property while she continues to work in her employment. She will have access to the Bank 1 offset account (balance $38,000) to pay the father the sum of $25,930.
The father will be able to continue his chosen work activities, whilst noting the court’s discussion above under section 90SF(3) relating to the father’s income earning capacity. The father does not assert any significant financial liabilities.
Neither party sought a superannuation splitting Order.
In the circumstances of this case, and for all the reasons set out above, the Court considers that the Orders proposed to be made are just and equitable, as between the parties and are appropriate.

Subpoena to the mother’s solicitor

The mother seeks costs in relation to the father having issued a subpoena to attend and give evidence to her solicitor.
On 12 October 2016, the father issued a subpoena to give evidence directed to the mother’s solicitor, requiring her to attend Court on 26 October 2016.
An email exchange between the mother’s solicitor and the father then ensued.
The mother’s solicitor, prior to 26 October 2016, informed the father that the solicitors’ fees and fees for attending Court were $480 per hour plus GST, plus travelling fees. The father’s response to this information was dismissive.
The mother’s solicitor then informed the father, inter alia, that before the father could expect the mother’s solicitor to comply with the subpoenae, he needed to comply with “the Rules” for issuing a subpoena and requiring the attendance of a person, such as the mother’s solicitor, to attend Court and be cross-examined.
The father then informed the mother’s solicitor, inter alia, that should the mother’s solicitor not attend Court as required by the subpoenae, he would be raising the matter with the Court. He refuted the claim that the mother’s solicitor would incur financial loss because she was able to work alternate hours. He repeated his offer to pay $25 towards the mother’s solicitors’ conduct money.
On the same day, the mother’s solicitor informed the father that given his insistence she would attend Court, but would press payment of her fees for her travelling time to and from Court, as well as the time that she was at Court.
The mother’s solicitor attended Court on 26 October 2016. However, the father decided, at about 11:25am, not to require the mother’s solicitor to give evidence pursuant to the subpoenae.
Pursuant to Rule 15A.11 of this Court’s Rules, the father should pay the costs of the mother’s solicitor; he was put on notice of the solicitor’s expense in attending Court under the subpoena and the Court is satisfied that expense has been incurred by the solicitor in being absent from her professional duties for some two hours.
Pursuant to the above Rule (and see allowances to solicitors under Schedule G to the Supreme Court Rules 1970) the father should pay the solicitor’s costs calculated at $112 for two hours of attendance.

Costs

The mother sought an Order for costs (for two days of hearing) arising out of her successful objections to certain affidavit material relied upon by the father. She asserted that about two days of hearing were wasted in the Court dealing with the mother’s successful objections.
Rule 15.29 (2) of this Court’s Rules (relating to the Court’s power to strike out objectionable material) provides:
(2) Unless the Court or a Registrar otherwise directs, any costs caused by the material struck out must be paid by the party who filed the affidavit.
In the view of the Court, and with due respect to the father, being an unrepresented litigant, the successful objections to the father’s material would appear to have largely arisen out of the father’s ignorance as to the relevant rules of evidence applicable to affidavits (in both parenting and property proceedings), being rules not without some complexity. The Court gives significant weight to this consideration.
The Court declines to make an Order for costs as sought by the mother.

I certify that the preceding three hundred and thirty two (332) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 5 May 2018

[2018] FCCA 560

4 May 2018

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Costs

Remedies

Statutory Construction

Ownership		Item	Mother / de facto partner’s value	Father / de facto partner’s value
1.	M	Property A, (Agreed)	$ 750,000.00	$ 750,000.00
2.	M	Bank 1 Account (as at 30.06.2016)	$ 45,451.98	$ 45,451.98
3.	M	Bank 2 Savings Account (as at 26.08.2015)	$ 2,516.01	$ 2,516.01
4.	M	Bank 2 Account (in [X]’s name)	$ N/A	$ 34,124.72
5.	M	Furniture in the home	$ 5,000.00 E	$ 5,000.00
6.	M	(omitted) Super Fund (remaining balance)	$ 28,157.20	$ 68,157.20
7.	F	Bank 3 Account (suburb omitted)	$ N/K	$ 84
8.	F	Bank 3 Account (Sydney)	$ N/K	$ Nil
9.	M	Vehicle 1 vehicle	$ 3,000.00 E	$ 4,500.00 E
10.	F	(business omitted) Pty Ltd	$ N/K	$ 8,000.00
11.	F	(business omitted) Pty Ltd	$ N/K	$ Nil
12.	F	(business omitted) Pty Ltd	$ N/K	$ Nil
13.	F	(business omitted) Pty Ltd	$ N/K	$ Nil
14.	F	Interest in The Balstad Family Trust	$ N/K	$ Nil
Total		$ 0	$ 0

17.	M	Bank 1	$ 368,000.00	$ 368,000.00
18.	$	$
19.	$	$
TOTAL		$ 0	$ 0

Member		Name of Fund	Type of Interest	Mother / de facto partner’s value	Father / de facto partner’s value
20.	M	(omitted Super Fund)	Accumulation	$ 119,604.00	$
21.	F	Balstad Super Fund	Self-Managed	$ N/K	$ 68,622.00

Ownership	Description	Value
1.	M	Property A	$830,000
2.	M	Bank 1 Account	$38,000
3.	M	Bank 2 Savings Account (as at 26.08.2015)	$2,516
5.	M	Furniture in the home	$5,000
6.	M	(omitted) Super Fund	$8,000
7.	F	Bank 3 Bank Account (suburb omitted)	$84
8.	F	Bank 3 Bank Account (Sydney)	Nil
9.	M	Vehicle 1 motor vehicle	$3,000
10.	F	(business omitted) Pty Ltd	Not Known
11.	F	(business omitted) Pty Ltd	Not Known
12.	F	(business omitted) Pty Ltd	Not Known
13.	F	(business omitted) Pty Ltd	Not Known
14.	F	Interest in The Balstad Family Trust	Not Known
Not less than	$ 886,600
Liabilities
15.	M	Bank 1	$368,000
Net	$518,600
Superannuation
16.	M	(omitted Super Fund)	$119,604
17.	F	Balstad Super Fund (Self-Managed)	$68,622