Marley & Ormonde
[2022] FedCFamC1F 23
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Marley & Ormonde [2022] FedCFamC1F 23
File number(s): SYC 3012 of 2018 Judgment of: CAMPTON J Date of judgment: 27 January 2022 Catchwords: FAMILY LAW – CHILDREN – Where the parties each sought an order as to equal shared parental responsibility – Finding made as to order for equal shared parental responsibility as to health not in best interests - Orders made as to equal shared parental responsibility except as to the medical treatment of and the health of the children – Orders to confer if possible as to these issues - Mother ordered to have sole parental responsibility for all decisions as to the medical treatment of and health of the children – Where the conflict between the parents and coercive and controlling conduct of the father renders an equal time arrangement inappropriate – Where orders are made for the children to live with the mother and spend significant and substantial time with the father – Where the children clearly have a close and loving relationship with both parents.
FAMILY LAW – PROPERTY – Final orders – Division of property following a de facto relationship of 23 years pursuant to s 90SM of the Family Law Act 1975 (Cth) – Where the father’s family made significant contributions to the parties’ property throughout the relationship on his behalf, all of which were not quantified, and where the mother made significant contributions post-separation – Where it is found that the parties’ contributions were on balance equal – Where the Court finds that the wife is entitled to a 15 per cent adjustment in her favour on the basis of s 90SF(3) factors – Where the father has a significant financial resource by way of a company – Where the father has not fulfilled his duties of disclosure – Where the mother seeks orders for the sale of the former matrimonial property – Where the father resists the sale and seeks to retain the property – Equitable interests – Where a third party to the marriage, the father’s brother, has been determined to have an beneficial interest by way of resulting trust in the former matrimonial property of the parties – Requirement of the third party to account in respect of the former matrimonial property – Where the prospects of the father being able to retain the property and meet his asserted liabilities are effectively nil – Order made for the sale of the property
Legislation: Family Law Act 1975 (Cth) ss 90SF, s 90SK, s 90SM,106B Cases cited: Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Bircher & Bircher and Anor (2016) FLC 93-721; [2016] FamCAFC 123
Black & Kellner (1992) FLC 92-287
Calverley v Green (1984) 155 CLR 81
Currie v Hamilton [1984] 1 NSWLR 687
Edgehill & Edgehill [2007] FamCA 1102
G & C [2006] FamCA 994
Gollings & Scott (2007) FLC 93-319; [2007] FamCA 397
Hall & Hall (2016) 257 CLR 490; [2016] HCA 23
Horrigan & Horrigan [2020] FamCAFC 25
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Kessey & Kessey (1994) FLC 92-495
Mallett v Mallet (1984) 156 CLR 605
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-45; [2009] FamCAFC 92
NHC & RCH (2004) FLC 93-204; [2004] FamCA 633
Pierce & Pierce (1999) FLC 92-844; [1998] FamCA 74
Singerson & Joans [2014] FamCAFC 238
Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52
Townsend & Townsend (1995) FLC 92-569
Weir & Weir (1993) FLC 92-338
Division: Division 1 First Instance Number of paragraphs: 364 Date of hearing: 22-23, 25-26 November and 1 December 2021 Place: Sydney Counsel for the Applicant: Mr Finch Solicitor for the Respondent: Litigant in person ORDERS
SYC 3012 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MARLEY
Applicant
AND: MR ORMONDE
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
27 JANUARY 2022
THE COURT ORDERS THAT:
PARENTING MATTERS
Parental Responsibility
1.The mother and father have equal shared parental responsibility for the children Y born 2010 (“Y”) and Z born 2016 (“Z”), (“the children”), save and except for the matters identified in Order 2.
2.The mother shall have sole parental responsibility as to the medical treatment and health considerations of the children.
3.In relation to the exercise of sole parental responsibility pursuant to Order 2, the mother shall:
(a)Advise the father in writing as soon as is practicable by email and text message of the decision intended to be made in respect of each child, the source and terms of any advice she has received on that subject matter, and the reasons for the proposed decision; and
(b)Take into account the father’s views about the issue, which he shall communicate to the mother in writing by email and text message as soon as is possible; and
(c)Notify the father in writing by email and text message as soon as is practicable as to the decision she has made pursuant to Order 2.
4.The mother shall advise the father in writing as to the identity of the general medical practice and/or medical practitioner that the children from time to time ordinarily attend and when the children are in the father’s care, in so far as practicable, he shall ensure that the children attend upon that general medical practice and/or medical practitioner.
Living Arrangements
5.The children shall live with the mother.
6.The children shall spend time with the father as agreed between the parties in writing, but failing agreement as follows:
(a)During the school terms on each alternate weekend from after school on Friday (or 9.00 am in the event of a non-school day) until the commencement of school on Tuesday (or 5.00 pm in the event of a non-school day), the first such weekend to occur on the first complete weekend after the resumption of school in each term and for each alternate weekend thereafter; and
(b)For the first half of each school holiday period commencing in even numbered years, and the second half of each school holiday period commencing in odd numbered years.
7.For the purpose of Order 6(b):
(a)The school holidays are deemed to commence after school on the last day of term and conclude on the morning of the first day of the next school term;
(b)The calculation of half school holidays shall be based on the number of nights in each school holiday period, and if there is an odd number of nights then the children will spend the extra night with the parent who is spending time with the children for the first half of the school holidays in that year;
(c)The parent with whom the children are spending time with in the first half of the school holidays shall collect them from school at the conclusion of the last day of the term and the parent with whom the children are spending time with in the second half of the school holidays shall deliver them to school at the commencement of the first day of the school term.
Special Occasions
8.Notwithstanding these orders and unless otherwise agreed between the parties in writing, over the Christmas period the children shall spend:
(a)From 4.00 pm on Christmas Eve until 4.00 pm on Christmas Day with the father in all even years, and with the mother in all odd years;
(b)From 4.00 pm on Christmas Day until 4.00 pm on Boxing Day with the mother in all even years, and with the father in all odd years.
9.Notwithstanding these orders and unless otherwise agreed between the parties in writing, over the Easter period the children shall spend from 4.00 pm on Good Friday until 4.00 pm on Easter Sunday with the father in all even years, and with the mother in all odd years.
10.On each of the children's birthdays, with both children, at all times as may be agreed between the parents in writing but otherwise as follows:
(a)If a school day and not a changeover day, then from after school until 6.00 pm with the parent who does not have the children in their care on that day;
(b)If a non-school day and not a changeover day, then from 10.00 am until 2.00 pm with the parent who does not have the children in their care on that day.
11.On Mother’s Day, in the event the children are not already in the mother’s care, from 5.00 pm on Saturday prior to Mother’s Day until 5.00 pm on Mother’s Day.
12.On Father’s Day, in the event the children are not already in the father’s care, from 5.00 pm on Saturday prior to Father’s Day until 5.00 pm on Father’s Day.
Telephone Time
13.The party in whose care the children are in shall facilitate telephone or FaceTime calls between the children and the other party from 6.30 pm until 7.00 pm on Tuesday, Thursday and Sunday, with such time to be extended at the request of one or both of the children, and with the parent in whose care the children are in to initial the call.
14.Each parent shall facilitate the children contacting the other parent by telephone, FaceTime or SMS at any other time reasonably requested by either or both of the children.
Overseas Travel
15.The parties shall each do all acts and things necessary to obtain and renew Australian passports for the children, and shall ensure that each child has a current Australian passport with not less than six (6) months until its expiry and the costs of the renewal/application shall be equally shared by the parents;
16.The mother and father are each permitted to take the children out of Australia for the purpose of overseas holiday and travel, provided that:
(a)The travel overseas is limited to all term school holiday periods when the children are otherwise spending time with the travelling parent and with the travelling parent electing in writing no more than once in each two (2) year period to extend such travel by either a week prior or a week after the school holiday period, except at the beginning of Term 1, unless otherwise agreed to by the parents in writing;
(b)The parent proposing overseas travel shall give to the non-traveling parent, at least five (5) weeks in advance of the proposed travel, written details of the arrival and departure dates and locations outside of the Commonwealth of Australia where it is proposed the Children will travel (being countries, cities and towns); and
(c)Not less than two (2) weeks in advance of the proposed travel, the parent proposing overseas travel for the Children must provide to the other non-traveling parent a photocopy of all return airline tickets; and
(d)The parent proposing overseas travel for the Children must ensure that they are covered by a valid personal/illness/injury and hospitalisation travel insurance policy for the duration of travel outside of the Commonwealth of Australia and provide the other parent with a copy of such insurance;
(e)The mother shall retain the Children’s passports and shall deliver the Children’s passports to the father upon his compliance with each part of this Order above and the father shall return the Children’s passports to the mother within fourteen (14) days of returning to Australia;
(f)The travelling parent shall ensure that their phone is set to international roaming;
(g)The travelling parent shall notify the other parent as soon as practicable of any emergency.
Exchange of Information
17.The mother and father shall do all things as are necessary to authorise and direct the children’s school to provide to the other parent all documents and information ordinarily made information to parents, including but not limited to school reports, school photographs, school newsletters, online portal passwords, but excluding any counselling notes in the event the counsellor expresses a view that it is in the child’s interest for the contents of the notes or the notes themselves to remain confidential from the parents or a parent, this order to operate as an authority from each parent as directed to the children’s school in the terms of this order.
18.The mother and father shall do all things as are necessary to authorise and direct the children’s ordinary medical practitioners as identified in Order 3 herein, and any medical practitioners that the children attend upon from time to time, to provide to the other documents and information ordinarily made available to parents, including but not limited to medical notes and information regarding the children’s health, medical prescriptions, diagnoses and recommendations made in respect of the children, this order to operate as an authority from each parent as directed to the children’s medical practitioners in the terms of this order.
19.The mother and father are each to keep the other informed in writing by email and by text message as soon as is reasonably practicable of:
(a)Any significant medical problems, illness or injury suffered by the children while in their care;
(b)The full particulars of any doctor, medical practitioner, or health service provider or institution attended upon by the children while in their care;
(c)Any medication that has been prescribed for either child while in their care;
(d)Any occasion the children are due to be hospitalised while in their care.
20.That each parent shall keep the other parent informed forthwith upon as to any proposed change to his or her residential address, email and mobile telephone number and notify the other parent in writing by email and by text message within seven (7) days of any change to such details.
Restraints
21.Each parent is hereby restrained by injunction from:
(a)Denigrating the other parent and/or their family members and friends to the children or in the presence of the children, including making any negative, critical, belittling or derogatory comments in relation to the other parent and/or their family members and friends;
(b)Doing or saying anything to, or within the presence or hearing range of, any of the children which might reasonably cause, contribute or encourage either of the children to be fearful of the other parent and/or their family members and friends, or to feel unsafe in the company or care of the other parent;
(c)Passing information or messages through the children to the other parent; and
(d)Discussing these proceedings and/or their family law dispute with the children.
22.Each parent shall forthwith do all things reasonably necessary to remove the children from any environment in which the other parent and/or their friends or family are being denigrated in the presence of the children forthwith upon observing or hearing or becoming aware of such denigration.
PROPERTY
23.That within twenty-one (21) days of the date of these orders the mother and the father shall do all such things and sign all such documents as may be necessary to list for sale and sell by public auction within fifty-six (56) days from the date of these orders the property situate and known as E Street (“the Suburb F Property”) and for the purposes of that auction sale:
(a)The mother shall within seven (7) days of the date of these orders provide to the father the names of three proposed real estate agents together with their listing agreements and marketing programs for the property and the names of three proposed conveyancers to act on behalf of the parties on the sale of the Suburb F Property together with a fee agreements; and
(b)Within 7 days of the mother’s compliance with Order 21(a) the father shall select one real estate agent and one conveyancer from those nominated by the mother advising her of such selections in writing, with each so selected by him being appointed to act on the sale of the Suburb F Property. In the event the father fails or neglects to nominate such agent and/or conveyancer as prescribed by this order, the mother be at liberty to select one of her listed agents and/or conveyancers who shall be appointed to act on the sale, the mother to notify the father of her selections in writing.
(c)The parties do all such things as are necessary and shall comply with all reasonable requests of the conveyancer to prepare a contract for sale and shall do all such things and comply with all such reasonable requests of the agent to prepare, present and maintain the property for sale.
(d)The contract for sale unless otherwise agreed in writing between the parties will provide for a date of completion within forty-two (42) days after the date of the contract.
(e)Each party do all such things as are necessary to authorise the other to communicate with and obtain information from the listing agent, the conveyancer and the mortgagee for the purposes of facilitating the auction sale.
(f)Any marketing and advertising costs of the auction, conveyancers costs and disbursements, and the costs incurred in instructing the single real property expert valuer, shall be met in equal shares by the mother and the father and in the event either fails or neglects to pay his or her half share, and that half share is paid by the other, the paying party shall receive reimbursement from the non-paying party’s share of the proceeds of sale of the property.
(g)The reserve price for the auction shall be as agreed in writing between the mother and the father not less than 7 days prior to the scheduled auction and in the event no such agreement, they shall do all such things as are necessary to instruct the single real property valuation expert Mr RR who shall act as an expert and not an arbitrator and whose opinion shall be binding on the parties to appoint such reserve price for the purposes of the auction sale.
24.That in the event the property is not sold at the listed auction pursuant to Order 23, the mother and the father shall do all such things that are necessary to again list the property for auction and the following shall apply:
(a)Unless agreed in writing between the mother and the father, the same listing agent will list the property for auction and shall conduct the auction and the same conveyancer as selected pursuant to Order 21 shall act on the further auction.
(b)The reserve price of the property at the subsequent auction shall be as determined by the mother and the father in writing, or in the event agreement cannot be reached between them as to such further reserve price within seven (7) days prior to the second auction, they shall do all such things as are necessary to instruct the single real property valuation expert Mr RR to appoint such reserve price for the purposes of the auction and the parties shall accept any offer to sell the property at a price that is at least nighty-five (95) per cent of the agreed reserve price or the reserve as determined by Mr RR.
(c)The mother and the father will negotiate in good faith with the highest bidder at the subsequent auction in the event at least nighty-five (95) per cent of the reserve price is not achieved and shall further negotiate with the highest bidder and accept such sale price as recommended by Mr RR.
25.That upon completion of the sale of the Suburb F Property the parties shall do all things as are necessary to cause and direct, after adjustment for rates and other outgoings, the proceeds of the sale to be applied in the following priority:
(a)In payment of any unpaid real estate agent’s commission, auction expenses and other expenses in respect of marketing and sale of the property, unpaid conveyancing costs and disbursements and of any unpaid fees due to the single real property valuation expert;
(b)In reimbursement to the mother and father of any marketing and advertising costs of the auction, conveyancers costs and disbursements, and the costs incurred in instructing the single real property expert valuer, incurred pursuant to Order 23(f) and 24 hereof;
(c)In payment to the third respondent Mr C Ormonde of an amount equivalent to 32.34 per cent of the balance remaining, less the sum of $17,368.95;
(d)In payment of an amount sufficient to discharge the H Bank home loan mortgage secured upon the property together with any discharge fees subject to Order 24 hereof;
(e)In payment of the mother of 50.29 per cent of the balance then remaining; and
(f)In payment of balance to the father.
26.That from the date of these orders until completion of the sale of the Suburb F Property, the father shall be responsible for and shall pay as and when they fall due all outstanding instalments of principal and interest due in respect of the mortgage secured upon the property by H Bank, council rates, water rates and any other charges upon the property and shall indemnify the mother and the third respondent in relation to the same, such that any arrears of these payments that have accumulated from the date of these orders until the date of completion of the sale of the Suburb F Property shall be adjusted from the father’s share of the proceeds of sale as to 32.34 per cent of any arrears as to rates to the third respondent and thereafter as to the balance of arrears remaining
27.That pending completion of the sale of the Suburb F Property the father be restrained from doing act or thing to further encumber the Suburb F Property or to permit any further drawing on any mortgage secured upon the said property, save and except the written consent of the mother.
28.That pending completion of the sale of the Suburb F Property, the third respondent be restrained from doing any act or thing so as to hinder, frustrate or prevent its sale.
29.That the relief of the mother pursuant to s 106B of the Family Law Act1975 (Cth) to set aside the sale and consignment agreement of the first edition books in the father’s possession be dismissed.
30.That the father shall,
(a)Within fourteen (14) days from the date of these orders do all such things as are necessary to obtain the reconveyance and transfer from Mr TT to him of the first edition books identified in Schedule A to these orders sold by the father to Mr TT on 29 July 2020, and to obtain the rescission and termination of the consignment agreement made between him and Mr TT dated 26 July 2020; and
(b)Within twenty-one (21) days of the date of these orders do all things as are necessary to transfer and assign to the mother all his interest in the first edition books identified in Schedule A to these orders and cause them to be delivered in good order and condition to the mother at such address as nominated by the mother in writing; and
(c)Within fourteen (14) days of the date of these orders do all such things and sign all such document as are necessary to transfer to the mother all of his interest absence encumbrance in the Motor Vehicle 2 registered number … and deliver the vehicle together with its keys, log books and registration papers to such location as directed by the mother in writing.
31.That save and except as provided for by these orders, the mother and father shall each retain to the exclusion of the other all cash at bank held by them, items of furniture and personalty in their respective possession, shareholdings, and any superannuation interest they may hold.
32.That each of the mother and the father shall be solely responsible for and pay any liability to the Australian Taxation Office in their respective individual names and as to the father of and by K Pty Ltd, and shall indemnify the other in relation to same.
33.That each of the mother and the father serve a sealed copy of these reasons and orders on the Australian Taxation Office within fourteen (14) days of the date of these orders.
34.That the mother be granted leave to serve a copy of these reasons and orders on the Child Support Agency.
35.That in the event any party fails or neglects to execute any document to give effect to these orders a judicial registrar of the Sydney Registry of the Federal Circuit and Family Court of Australia shall be appointed pursuant to s 106A of the Family Law Act1975 (Cth) to execute such document on behalf of the party in default within forty-eight (48) hours of the date of such default upon the judicial registrar being satisfied by affidavit evidence of the said default, the party in default to meet the costs associated with the application for the judicial registrar to execute documents pursuant to this order.
36.That save and except as provided for in these orders and as to costs all outstanding Initiating Applications and Responses to Initiating Applications be dismissed.
SCHEDULE A
Various
Ian Fleming – Dr No
Ian Fleming – Dr No
Frank Herbert – Dune
Stephen King – Carrie
Arthur Conan Doyle – Hound of the Baskervilles
Arthur Conan Doyle – The Lost World
John Wyndham – Day of the Triffids
HG Wells – War of the Worlds
HG Wells – Island of Dispute Resolution Moreau
Dashiell Hammett – The Maltese Falcon
Samuel Beckett – Waiting for Godot
Rudyard Kipling – Jungle Book and Second Jungle Book
Douglas Adams
Hitchhikers Guide to the Galaxy
Restaurant at the End of the Universe
So Long and Thanks for All the Fish
Life the Universe and Everything
Mostly Harmless
Arthur Conan Doyle
The Memoirs of Sherlock Holmes
Iain Banks
Walking on Glass
Stonemouth
The Steep Approach to Garbadale
Dead Air
The Business
A Song of Stone
Whit
Complicity
The Crow road
Canal Dream
The Bridge
Wasp Factory
The Algebraist
Feersum Endjinn
Against a Dark Background
Surface Detail
Matter
Look to Windward
The State of the Art
Inversions
Excession
Use of Weapons
Consider Phiebas
Graham Greene
Our Man in Havana
The Honorary Consul
The Human Factor
Twenty One Stories
The End of the Affair
The Bomb Party
HG Wells
The First Men in the Moon
When the Sleeper Wakes
TS Elliott
Collected Poems
The Elder Statesman
Roald Dahl
Charlie and the Chocolate Factory
Frederick Forsyth
Odessa File
Day of the Jackal
Fourth Protocol
James Herbert
The Dark
The Survivor
Moon
The Rats
Protent
Sepulchre
Stephen King
Christine
Len Deighton
Ipcress File
Twinkle Twinkle Little Spy
Funeral in Berlin
An Expensive Place to Die
Declarations of War
City of Gold
Ian Fleming
You Only Live Twice
Man with the Golden Gun
Thunderball
For Your Eyes Only
CS Lewis
Return to Narnia
Clive Barker
Damnation Game
Imajica
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Marley & Ormonde has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J
INTRODUCTION
Ms Marley (“the mother”) and Mr Ormonde (“the father”) lived in a de facto relationship from 1994 until 2017. They have five children:
(a)V, born in 1995 and currently aged 26 years (“V”);
(b)W, born in 1997 and currently aged 24 years (“W”);
(c)X, born in 1999 and currently aged 22 years (“X”);
(d)Y, born in 2010 and currently aged 11 years (“Y”); and
(e)Z, born in 2016 and currently aged six years (“Z”).
The mother and father are at issue concerning the division of their property and the parenting arrangements for the youngest two of their five children, Y and Z (“the children”), the remaining three being adults at the time of the hearing.
THE RELATIONSHIP
The father was born in the United States in 1968 and is aged 54. He works for K Pty Ltd (“KPL”). He is the sole shareholder and director of KPL. He resides in the parties’ former family home at E Street, Suburb F in the State of New South Wales (“the Suburb F Property”). He is the sole registered proprietor of that property.
The mother was born in the United Kingdom (“UK”) in 1973 and is aged 48. She works part-time in administration. She resides in a rental property in Suburb G. Since separation she has commenced a relationship with Mr D. They do not live together.
The parents met in the UK and began a relationship in January 1994. They commenced cohabitation in October 1994. They did not marry.
In about August 2003, the mother and father relocated to Australia with their three older children. Y and Z were both born in Australia.
Prior to relocating to Australia, the father established a successful enterprise in the UK (“the UK business”). He continued to operate that UK business from Australia until 2016. He established an Australian enterprise that traded through KPL.
The parents separated in February 2017. They remained living together in the Suburb F Property.
On 12 December 2017, the mother vacated the Suburb F Property and has since resided in rented accommodation with the parties’ two youngest children. The older three children continued to live with their father.
THE PROCEEDINGS
On 14 May 2018 the mother commenced proceedings in the Federal Circuit Court (as it was then known) seeking interim and final property orders, and orders for urgent de facto spouse maintenance. The father filed a response opposing any orders as to financial adjustment or maintenance on 25 May 2018.
Consent orders were made on 28 May 2018 permitting the mother to sell items in her possession, being two first edition books, and items of crystal glass and jewellery. The consent orders provided that she retain the proceeds of sale, and that the father pay to the mother the sum of $5,000 within three days, with the categorisation of such sum being reserved for trial.
By her Amended Initiating Application filed on 15 June 2018 the mother sought different adjustive property orders pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”) and relief pursuant to s 106B of the Act to set aside a series of deeds and agreements between the father and his mother and/or his brother.
On 4 December 2018 the matter was transferred to the Family Court of Australia (as it was then known).
On 26 March 2019 the father filed an Amended Response to the Amended Initiating Application seeking orders as to the parenting of the children.
On 4 April 2019 the father’s mother, Ms Ormonde (“Ms Ormonde”), filed a Response to the amended Initiating Application claiming an equitable or beneficial interest in the Suburb F Property or in the alternative recovery of loaned funds.
On 5 April 2019 the father’s brother, Mr C Ormonde (“the third respondent”), filed a Response to the Amended Initiating Application claiming an unspecified interest in the Suburb F Property. He filed an Amended Response on 9 August 2019, claiming an equal beneficial interest in the Suburb F Property and an order for repayment of $50,000 purportedly loaned by him to the father in 2009 to assist in the purchase of Motor Vehicle 1.
On 8 April 2019 Senior Registrar Campbell (as he was then) after a defended interim hearing made orders for the interim parenting arrangements of the children as follows:
1.The children Y (‘Y’) born 2010 and Z born 2016 (‘Z’) shall spend time with the Father as follows:
1.1 In relation to Y in a fortnightly cycle as follows:
1.1.1In week 1, from 11am on Sunday and until the commencement of school on the following Wednesday; and
1.1.2In week 2, from the conclusion of school on Friday until the commencement of school on the following Monday.
1.2 In relation to Z in a fortnightly cycle as follows:
1.2.1 In week 1, from 11am on Sunday until 7pm on Tuesday; and
1.2.2 In week 2, from 9am on Friday until 7pm on Sunday.
2.To facilitate the commencement and conclusion of the time the children spend with the Father the following provisions shall apply:
2.1In week 1 of the same two week cycle as provided by orders 1.1.1 and 1.2.1 herein:
2.1.1The Father shall collect the children from the Mother’s residence on Sunday, at the commencement of the children’s time with the Father;
2.1.2The Father shall deliver Y to school on Wednesday at the conclusion of her time with the Father;
2.1.3The Mother shall collect Z on Tuesday at the conclusion of the Z’s time with the Father;
2.2In week 2 of the same two week cycle as provided by orders 1.1.2 and 1.2.2 herein:
2.2.1The Father shall collect Z from the Mother’s residence at the commencement of Z’s time with the Father on Friday;
2.2.2The Father collect Y from school on Friday at the commencement of Y’s time with the Father;
2.2.3The Mother shall collect Z from the Father’s residence on Sunday at the conclusion of Z’s time with the Father; and
2.2.4The Father shall deliver Y to school on Monday at the conclusion of Y’s time with the Father.
On 3 July 2019 Henderson J made orders for the sale of the Suburb F Property, with the proceeds to be applied discharging the mortgage on the property, to pay both the mother and the father’s debts to the Australian Tax Office (“ATO”), for the mother to receive $100,000 by way of interim property distribution and for the remaining balance to be held in a controlled monies account of which $1,117,000 was to be held for the second and third respondents.
On 25 July 2019 the father filed a Notice of Appeal from the 3 July 2019 orders and an Application in a Case seeking a stay of those orders.
On 9 August 2019 orders were made staying the sale of the Suburb F Property on condition that the father pay to the mother the sum of $117,000 by way of interim property adjustment, restraining the father from permitting the Suburb F Property to be used as security for any borrowings or extending the line of credit secured upon the property or from increasing the debt on the property, requiring him to fulfil his obligations of disclosure and requiring he obtain the mother’s consent before selling any motor vehicle.
The father transferred $70,000 on 23 August 2019 and $47,000 on 27 August 2019 to the trust account of the mother’s solicitors to meet the payment of $117,000.
On 3 March 2020, the Full Court allowed the father’s appeal and the second and third respondent’s cross-appeal from the orders of 3 July 2021. The mother did not oppose the appeal or the cross-appeal. The orders of 3 July 2019 were set aside in their entirety. The Suburb F Property was not sold.
On 11 March 2021 McClelland DCJ delivered reasons for judgment on the hearing of a number of discrete issues being:
(a)Whether either the second and/or third respondent, had an interest in the Suburb F Property;
(b)As to whether monies were owed by way of funds advanced by each of the second and third respondents to the father.
There was no challenge to the findings recorded in the 11 March 2021 judgment. Those findings included that:
(a)Ms Ormonde did not hold any interest in the Suburb F Property.
(b)The sum of $112,000 advanced by Ms Ormonde in September 2012 to pay for the stamp duty on the acquisition of the Suburb F Property was repaid to Ms Ormonde in November 2012.
(c)Ms Ormonde identified differing amounts as the sum she contended to be advanced and sought to be recovered by way of loan. It was “unclear how the claimed amount of $226,000 has been calculated.” The sum of monies she claimed as deposited in the father’s personal account, or paid in cash, or deposited to the account of KPL was unquantified. A finding was made that withdrawals from accounts of the parties, or either of them, or from KPL, in other amounts, that also could not be quantified, had been paid to Ms Ormonde or payments made on her behalf for her rent or living expenses.
(d)Ms Ormonde had failed to discharge the onus of proof resting on her to satisfy the Court as to the quantum of money she contended she had paid to the father for which she sought repayment.
(e)Ms Ormonde had provided some monies to the father for the purpose of assisting the father and the family, but no finding of fact was made as to the amount advanced, or as to the father and/or the mother being indebted to Ms Ormonde.
(f)The third respondent holds an interest in the Suburb F Property on resulting trust in proportion to the amount that the third respondent brother had contributed to the purchase price subject to any equitable accounting between the third respondent brother and the father in respect of the mortgage debt which has been paid by the mother and father subsequent to the acquisition of the property and in respect to any improvements made by the mother and father to the property.
(g)The third respondent contributed $780,000 to the purchase of the Suburb F Property, equating to 33.94 per cent of the property, being beneficially held by the father on his behalf subject to any such adjustments.
(h)The mother’s contention that the $780,000 paid by the third respondent used to fund in part the Suburb F acquisition being in reality the father’s monies was rejected.
(i)The third respondent advanced to the father a sum of $50,000 to assist in the purchase of Motor Vehicle 1, and that the father was not legally obliged to repay that sum.
Prayer 4 of the mother’s Amended Initiating Application seeking relief pursuant to s 106B of the Act to set aside the deeds asserted by the father in favour of the second and third respondent was dismissed. The findings made rendered that relief otiose.
THE SECOND AND THIRD RESPONDENTS
At the commencement of the trial, on her application, Ms Ormonde was removed as a party to the proceedings, with the consent of each of the mother and the father.
The third respondent, the father’s brother, has not participated in the proceedings subsequent to the delivery of the reasons for judgment and orders made on 11 March 2021. The father contends an estrangement between him and his brother arising from his brother’s participation in the proceedings.
An email sent by the third respondent to the father at his KPL email address on 8 November 2021 confirmed that:
(a)the third respondent was aware of the content of the reasons for judgment and orders of 11 March 2021; and
(b)he had received and understood the trial directions made on 2 November 2021; and
(c)he sought to be removed as a party from the proceedings; and
(d)he would not be participating as a party in the trial listed to commence on 22 November 2021; but
(e)he “intended to rely on the judgment of Deputy Chief Justice McClelland”.
I am satisfied that the third respondent:
(a)had notice of the fact of the proceedings being listed for final trial commencing on 22 November 2021; and
(b)was aware that his interest in the Suburb F Property may be affected by orders made at trial, including an order for sale as sought in the mother’s Amended Initiating Application filed 15 June 2018; and
(c)did not wish to be heard on any subject matter listed for determination.
The matter is determined on an undefended basis as against the third respondent.
THE EVIDENCE
The mother read and relied upon the following documents
·Amended Initiating Application filed 15 July 2018;
·Affidavit of the mother filed 22 October 2021;
·Financial Statement of the mother filed 22 October 2021;
·Affidavit of Ms OO filed 22 October 2021;
·Affidavit of Ms UU filed 22 October 2021;
·Affidavit of Ms VV filed 3 April 2019;
·Affidavit of Mr D filed 1 June 2019;
·Affidavit of Mr D filed 19 June 2021.
The mother had filed an affidavit by Ms WW on 22 October 2021. Ms WW was unavailable for cross-examination at trial, and her affidavit was not read by the mother.
The father read and relied upon the following documents
·Amended Response to Initiating Application filed 26 March 2019;
·Financial Statement of the father dated 24 October 2021;
·Affidavit of the father dated 24 October 2021;
·Affidavit of Ms Ormonde filed 26 September 2020;
·Affidavit of Ms Ormonde filed 24 October 2021;
·Reasons for judgment of McClelland DCJ dated 11 March 2021.
There were a number of objections to the parts of each affidavit relied upon and determined at the commencement of the hearing.
The expert evidence as to valuations
The affidavit of the single real property valuation expert Mr RR filed on 21 November 2021 exhibited his report dated 12 November 2021 as to the value of the Suburb F Property, opined at $4 million. Mr RR was cross-examined by counsel for the mother and by the father. In submissions they agreed to adopt Mr RR’s opinion. I find that the Suburb F Property is valued at $4 million.
The affidavit of the single motor vehicle valuation expert Mr SS filed on 18 November 2021 exhibited his report dated 15 November 2021 as to the value of the father’s Motor Vehicle 1, opining that the vehicle was in poor condition and had a current value of $113,700. Mr SS is also a qualified mechanic. The expert was cross-examined by counsel for the mother and by the father over two different periods during the course of the hearing subsequent to some difficulties with the Microsoft Teams format connection.
The father put a number of propositions as to a range of repairs and other works to the vehicle to Mr SS to undermine the value he opined of the Motor Vehicle 1. Their import was that the expert had not sufficiently taken these matters into account in concluding his opinion as to the value of the vehicle. The expert was not shaken in his evidence. He confirmed that he had taken into account a cost of $50,000 to $60,000 to cause the vehicle to be restored to “good condition”. He said that if a presentation of good condition of the vehicle was achieved, a value in the range of $170,000 or more would be a “fair and reasonable price” on the “open market”. The father during submissions tendered quotes for repairs to Motor Vehicle 1 ranging in date from 19 April 2018 to 24 November 2021. The documents or their content were not put to Mr SS. They are not inconsistent with the expert’s opinion as to the costs of improving the condition of the vehicle from poor to good. I accept the evidence of Mr SS and find the father’s Motor Vehicle 1 valued at $113,700.
Exhibits
The documents marked as Exhibits over the course of the hearing are as follows:
Court Exhibit 1 – Family Report of Ms XX (“the Court Child Expert”) dated 17 May 2021 (“the family report”)
Court Exhibit 2 – Updated Joint Balance Sheet dated 22 November 2021
Court Exhibit 2A – Final Updated Joint Balance Sheet dated 23 November 2021
Court Exhibit 3 – Updated Consent Orders as to Parenting (26 November 2021)
Court Exhibit 4 – Further Updated Consent Orders as to Parenting (26 November 2021)
Court Exhibit 5 – Final Updated Consent Orders as to Parenting
Exhibit A – Mother’s case outline and Minute of Order dated 22 November 2021
Exhibit B – Father’s case outline dated 22 November 2021
Exhibit C – Undertaking as to disclosure by the mother
Exhibit D – Undertaking as to disclosure by the father
Exhibit E – Mother’s updated Minute of Order as to parenting and financial adjustment
Exhibit F – Father’s updated Minute of Order(s) as to parenting and financial adjustment
Exhibit G – Invoice Ms YY dated 9 May 2016
Exhibit H – Father’s costs notice dated 23 November 2021
Exhibit I – Electricity Account Summary for Suburb F Property from 2015 to 2020
Exhibit J – Email from CH Accountants to mother dated 8 April 2016
Exhibit K – Bankruptcy Notice to both parents issued 18 August 2017
Exhibit L – Father’s T Bank Platinum statement for the period 20 March 2017 to 18 April 2017
Exhibit M – Email dated 23 October 2020 recording rates paid in relation to Suburb F Property
Exhibit N – Father’s J Bank mortgage statements for the period 25 July 2017 to 28 June 2018
Exhibit O – Father’s H Bank mortgage statements for the 5 October 2021 to 28 June 2019
Exhibit P – KPL T Bank account ending …54 statements for the period 14 November 2017 to 14 December 2017
Exhibit Q – T Bank joint account ending …72 statements for the period 14 November 2017 to 14 December 2017
Exhibit R – Personal Taxation Returns and Notices of Assessment of the father for the financial years ending 30 June 2018 to 30 June 2021
Exhibit S – Company Taxation Returns, Balance Sheets and Profit and Loss Statements for KPL for the financial years ending 30 June 2018 to 30 June 2021
Exhibit T – Division 7A Loan Agreements between KPL and the father dated 30 June 2019, 30 June 2020, and 30 June 2021
Exhibit U – Agreement for sale of listed ‘first edition books’ and Consignment Agreement dated 26 July 2020 between the father and Mr TT (“Mr TT”)
Exhibit V – Administrative Appeals Tribunal child support determination dated 21 January 2021
Exhibit W – Mother’s updated costs notice dated 25 November 2021
Exhibit X – Page 5 of Statement number 53 for the KPL T Bank account ending …54 for the period 10 July 2020 to 9 August 2020
Exhibit Y – not marked
Exhibit Z – Invoices of CP Company & CQ Company
Exhibit AA – Taxation Returns and Notices of Assessment of the mother for the financial years ending 30 June 2018 – 30 June 2020, and PAYG Income Statement for the financial year ending 30 June 2021
Exhibit AB – Email from Mr BA, Director of BC Company, to the father dated 30 November 2021
Exhibit AC – Document entitled Independent Consultancy between BD Company and BE Pty Ltd for the period 1 April 2018 to 31 December 2018, executed by the third respondent, Mr C Ormonde, on 4 May 2018, together with Certificate of Registration for BE Pty Ltd
Exhibit AD – Counterpart Documents Entitled ‘Loan Agreement’ between BC Company and K Pty Ltd executed 12 July 2018
Exhibit AE – Document entitled ‘BF Dropbox’ recording the list of folders provided by the father to the mother by way of Disclosure
Exhibit AF – Three documents as to Motor Vehicle 1 commencing 19 April 2018 and concluding 24 November 2021
Exhibit AG – Bundle of documents Email from BG Company dated 9 April 2018 attaching receipt dated 28 August 2009, Email from BH Company dated 13 October 2020 attaching a receipt dated 28 August 2009, Email from BI Company directed to the father together attaching receipts for the purchase of goods in 2015, 2018, 2019
At the commencement of the trial a direction was made that no document in the exhibits to affidavits or in a tender bundle which sought to prove a fact or inference adverse to the case of the other party would form part of the evidence unless the fact or inference in the relevant document was put to the other party in cross-examination or was identified during the course of the hearing or in submissions.
FINAL RELIEF SOUGHT BY EACH PARENT
The mother’s final relief was contained in a Minute of Order produced during the trial marked as Exhibit E. She sought:
(a)In respect of the parenting matters:
(i)That the mother have sole parental responsibility for all long term decisions regarding the children, other than those made in relation to their health and education;
(ii)That the children live with the mother and spend time with the father for four nights on each alternate weekend, and for half of each school holiday period;
(iii)That changeover take place at school or at a McDonald’s selected by the mother in the event the children are not at school;
(iv)That Y be enrolled in counselling and that the counsellor be given a copy of the family report;
(v)That the children spend from 5.00 pm on the day prior to mother’s and father’s day until 5.00 pm on Mother’s or Father’s day with the relevant parent;
(vi)Additional orders as to telephone contact, international travel, exchange of information and restraints.
(b)In respect of the property matters:
(i)That the Suburb F Property be sold and the proceeds be divided such as to effect a 70 per cent split of the parties’ total property pool in favour of the mother;
(ii)That pursuant to s 106B of the Act, any agreement in respect of the first edition books be set aside;
(iii)That the first edition books be sold, and that the mother be appointed trustee for the sale, with any proceeds of sale to be split between the parties in the proportion of 70 per cent to the mother and 30 per cent to the father;
(iv)That the father transfer to the mother the Motor Vehicle 2, registration …, (“the Motor Vehicle 2”);
(v)That each party otherwise retain sole legal and beneficial ownership of all property and effects in their possession or control;
(vi)That each party otherwise be solely liable for and indemnify the other against all liabilities in their sole name.
The father’s final relief sought was contained in his Minute of Order produced to the Court at trial marked as Exhibit F.
(a)In respect of parenting matters, he:
(i)Sought that the parties share in the parental responsibility for the children for all decisions relating to their care, welfare and development;
(ii)Sought that the children live between the parties on a week-about basis during the school term and for half of each school holiday period;
(iii)Sought that changeover take place at school or at either of the parties’ homes;
(iv)Disagreed with the terms of the mother’s orders as to special days and telephone contact, seeking that the children spend time with their mother or father on Mother’s and Father’s Days from 9.00 am to 6.00 pm but not overnight, and that the parents facilitate telephone time between the children and the other parent at any time reasonably requested by them.
(v)Opposed the making of any orders as to international travel, counselling for Y, the exchange of information and restraints.
(b)In respect of the property matters, he:
(i)Opposed the sale of the Suburb F Property;
(ii)Sought declarations that each party should retain sole legal and beneficial ownership of all property and effects in their possession or control, and be solely liable for and indemnify the other against all liabilities in their sole name (noting that the Suburb F Property is registered in his sole name);
(iii)Sought that all outstanding applications be dismissed; and
(iv)Sought costs.
No orders were sought by the third respondent.
REFINEMENT OF SOME ISSUES
Parenting
The parents agreed at the commencement of the trial that:
(a)The parenting regime by way of the 2019 interim orders made were chaotic, reinforced a misalignment of the children’s living schedules and did not promote the best interests of the children; and
(b)The number of changeovers each week caused the children confusion and stress; and
(c)Any future living arrangements for the children on a final basis should be synchronised for both children.
It is symptomatic of the ingrained dysfunction in their relationship as parents, characterised by intense conflict and mistrust over the period since separation, that notwithstanding;
(a)both parties being in agreement on these matters, and
(b)they having had the benefit of the family report since late May 2021,
they could not achieve a single compromise or resolution of any parenting dispute prior to the commencement of the trial.
That said, after the trial commenced, the parties conferred and reduced the scope of the parenting dispute. Further incremental reductions followed over a number of days. Their final proposed agreed orders were contained in Court Exhibit 5 - “Updated Consent Orders as to Parenting”. A copy is Schedule 1 to these reasons. It included proposed consent orders as to equal shared parental responsibility, regulating an equal sharing of holiday time between the parents, providing for some time spent on some special days such as Christmas and Easter, a process to commence a pathway for therapy for Y, some aspects of international travel, and information exchange.
An issue that loomed large during the trial, as clearly identified in and strongly recommended by the Court Child Expert in her report, was the urgent requirement for Y to obtain therapeutic support. Adverse to Y’s interests, the father obstructed this treatment and assistance for a period of five months. On the second last day of the hearing, after the completion of the oral evidence of the Court Child Expert, I requested submissions from each parent as to an interim order requiring the authorisation of and facilitation of Y’s immediate attendance on a counsellor. On 1 December 2021, a consent order was made directing the parents to authorise and to facilitate Y attending upon the school counsellor as identified by her teacher, Ms BK, and that each of the parents be granted leave to provide to the school counsellor a copy of the family report.
The Motor Vehicle 2
The parties purchased the Motor Vehicle 2 in 2014 funded by joint savings. The vehicle is registered in the father’s name. The mother sought an order that the father transfer to her his interest in the Motor Vehicle 2. The mother drove this vehicle during the relationship. Upon separation, she sought to retain it but said she was unable to afford to do so. She then did not have a motor vehicle. She obtained the use of a vehicle from her friend Ms BL without charge to the mother save for running costs from December 2018. She continues to use this vehicle.
The father said in cross-examination “[the Motor Vehicle 2] doesn’t get driven very much. I have lent it to a friend in Queensland for the time being”. It emerged that the father had provided the Motor Vehicle 2 at no cost to that friend 12 months ago. He conceded that he had not disclosed this fact to the mother and that he knew she wished to retain the vehicle. He said the vehicle was in poor condition and that he could recover it in a short period of about a week (subject to COVID-19 restrictions). The parties agreed that the vehicle is valued at $4,000.
Late in the trial, the father agreed to transfer all of his right, entitlement and interest in the Motor Vehicle 2 to the mother and that he would ensure that the vehicle was maintained in its current state and condition, pending the delivery of the vehicle to the mother. I will so order.
The First Edition Books
Throughout their relationship, the parties acquired a collection of first edition books. The mother gave evidence in paragraph 79 of her affidavit as the collection being acquired by the father for the sum of 42,000 GBP or 27,351 GBP between 2010 and 2016. A list of the first edition books in the father’s possession and control at the time of the trial is found as part of Exhibit U (“the first edition books”). The list is Schedule 2 of this judgment.
The mother conceded that she retains possession of two books from the collection, being Sinbad the Sailor and Alice in Wonderland. She did not sell them notwithstanding the orders made on 28 May 2018 permitted her to do so.
The father said in his affidavit filed on 24 October 2021:
137(d)First Edition Books – all books were sold to Mr TT for $3,800 under an agreement that I would seek to sell the same on his behalf on consignment with a fee of 5% of [the] sale price to be paid to me upon sale of any item. No consignment sales of any item have occurred as yet.
The sale and consignment agreement between the father and Mr TT dated 26 July 2020 formed part of Exhibit U. The father had elected not to exhibit these documents to his affidavit.
The late disclosure of the sale and consignment by the father of the first edition books generated the belated s 106B relief of the mother to set aside the sale and consignment agreement between the father and Mr TT dated 26 July 2020 as contained in Exhibit E.
The father’s oral evidence was that Mr TT was a friend in Queensland who he had known for a few years. He said Mr TT paid $3,800 in cash for the books and that some of the cash was deposited into a T Bank account of KPL. He identified a T Bank KPL bank statement, Exhibit X, recording a cash deposit of $3,200 on 29 July 2020.
The father said that Mr TT had no interest in first edition books. He had purchased them “as a favour… to help [the father] out”. In contrast to his affidavit evidence as to his commission rate, Exhibit U recorded that the father would achieve commission rate on the sale of the books of ten per cent. The father’s unsatisfactory evidence as to the commission he would achieve on sale was absent explanation.
The books have not left the possession of the father since his entry into the sale and consignment agreements approaching 15 months ago. He gave evidence of advertising for sale some of the books on an internet book site, with single books listed for up to 6,800 USD. Other books of contended greater value, such as The Memoires of Sherlock Holmes, were not listed for sale on the website. The father confirmed that as at the trial he had still not sold any of the books.
The fact of the father disposing of the books, but them not physically leaving his possession, coupled with the circumstances of him then listing them for sale on consignment at substantially increased values than he achieved on their disposal, confounded common sense and ordinary life experience. I find that from July 2020 the father secreted from the mother the fact of his disposal of the books and his entry into the consignment agreement. He first disclosed each of these facts relevant to his financial circumstances in his trial affidavit filed on 24 October 2021.
The father agreed during the course of the trial that:
(a)In the event he paid to Mr TT the sum of $3,800, he would be able to obtain a re-conveyance of the ownership of the books in his favour from Mr TT and a recession of and release from obligations arising from the consignment agreement. He said that Mr TT would also agree to this course; and
(b)He would agree to an order transferring all of his re conveyed legal interest in the first edition books recorded in Exhibit U to the mother; and
(c)He could make the books available to the mother in pristine order and condition; and
(d)An order could be made adjusting property whereby subsequent to the return of the legal interest in the books to him, all of his right entitlement and interest in the first edition books could be transferred and assigned to the mother.
I will so order. The parties agreed as to the first edition books having a value of $3,800. The mother’s deficient relief pursuant to s 106B of the Act to set aside the disposal of the books to Mr TT, and for her to be appointed trustee for sale of the first edition books will be dismissed.
Another matter as to relief sought – Motor Vehicle 1
The parameters of the orders or declarations pertaining to Motor Vehicle 1 were defined by the mother’s Initiating Application, the father’s Response, and then in each of Exhibits E and F. The litigation and then the trial was conducted by each party on the basis that the father would retain the vehicle in specie.
In his submissions in response to those of the mother on the final day of hearing, the father said that he would transfer the vehicle to the mother for the sum opined by the single expert of $113,000, or would consent to the vehicle being sold and the proceeds being divided between the parties. The mother opposed both informal invitations. The father did not make an oral application to amend his relief sought as to Motor Vehicle 1. It will be a matter for the father as to whether he retains or disposes of the vehicle.
THE ISSUES
The material disputes between the parties by the end of the trial were:
(a)Sole parental responsibility for decisions relating to the health and medical treatment of the children, such issue being raised by me;
(b)The configuration of the parenting arrangements during term-time and time-spent on some special days, including Mother’s and Father’s day;
(c)The frequency of telephone communication between the children and the parent whose care they are not in, the mother seeking that such contact occur for a half-hour period on three occasions per week, and at all other reasonable times, and the father seeking that the parents facilitate the children contacting the other parent at all reasonable times requested by the children.
(d)The location of changeovers on non-school days, being either at a McDonald’s (as proposed by the mother) or at each of the parents’ homes (as proposed by the father);
(e)The necessity of injunctive orders restraining each parent from making derogatory comments about the other to, or in the presence of, the children;
(f)The identity and value of some of the assets and liabilities forming the balance sheet of the property of the parties, including the value of the third respondent’s interest in the Suburb F Property and as to notional add-backs of property arising from the father’s use and application of the proceeds of sale of the UK “BW Street Property” and his use and application of the surplus funds produced on the refinance of the Suburb F mortgage in June 2019. The working joint balance sheet was Court Exhibit 2. Agreed adjustments were made to it in submissions. The final agreed version of this document is reproduced at paragraph 241 of these reasons save as to items 1(a) and 37(a). Each of these items are inserted for the reasons set out in this judgment;
(g)The fact and extent of each of the parties financial, non-financial and homemaker and parenting contributions during their relationship and subsequent to their separation;
(h)The fact and extent of direct financial contributions made by or on behalf of a party;
(i)The current and future income earning capacity of the father.
(j)The financial resources of each party, the father by way of his family and other associations, and the mother by way of her partner;
(k)Whether the father had complied with his obligations as to a full and frank disclosure of all of his relevant financial circumstances, and the consequential impact if established that he had not;
(l)The father’s capacity to retain the Suburb F Property.
The mother’s oral evidence
The mother presented as straightforward in her oral evidence. She did her best to respond directly to the questions put to her in cross-examination. Her oral evidence was reasonably consistent over an extended period of cross-examination with her affidavit evidence.
The cross-examination of the mother by the father on the first day of the trial focused on financial matters in the UK prior to 2003, and as to the conduct of the business enterprises until 2010. Each of these subject matters was largely not, having regard to the affidavit evidence, controversial.
The cross-examination of the mother on the second day of the trial focussed on seeking concessions as to the appropriate use and application by the father of the $328,080.56 being the proceeds of sale of the BW Street Property. Many of the questions put to the mother on this topic identified documents the father said he had disclosed by way of dropbox links being Exhibit AE. The mother said that she had received dropbox links containing hundreds of folders with many thousands of documents.
Mr D
Mr D, the mother’s partner, gave evidence of his oral agreement with the mother providing her funds by way of loan commencing from 22 June 2018 and up until the date of the hearing. The total provided by way of loan repayable on the mother receiving any property settlement as at the date of the hearing was $129,460. All of the funds advanced were paid directly to lawyers for fees in the proceedings or to single experts except for $3,600 being paid to meet the first two weeks of rent and a rental bond for the mother at premises at Suburb G. Mr D’s evidence was not shaken during his cross-examination. I accept his evidence.
Ms BM
Ms BM gave evidence in the mother’s case about the father arriving with Y one hour late for a two-hour birthday event for her daughter, a close friend of Y, on 3 March 2019. Her evidence was that Y said to her “sorry we were late, daddy was asleep in the car for one hour”. She observed Y to be flustered. She said the father was late in collecting Y from the event. The father cross-examined the witness, but not on the subject matter of her affidavit. I accept the evidence given in her affidavit.
Ms OO
Ms OO swore an affidavit in the mother’s case as to her child and Y playing in the same soccer team in 2018 and 2019. She said that over these two seasons, she observed the mother bringing Y to practice and games, and at times when Y was in the father’s care she would “miss games and training regularly”. She observed an event at the end of school on 7 December 2020 when Y told her “daddy hasn’t come to pick me up from school and I don’t know where he is”. She telephoned the mother who later relayed to the witness that she had spoken to X who understood the father was asleep. The father collected Y from school some 30 minutes later. No meaningful challenge was achieved to her evidence in cross-examination and I accept it.
Ms UU
Ms UU swore an affidavit in the mother’s case, giving evidence of observing Y hanging from a tree after school in 2019, slipping to the ground and landing “badly”. It was her evidence that she and the mother were standing a short distance from Y at the time, and that Y became very distressed and cried while holding her arm. The import of her evidence was that the injury to Y’s arm was a simple misadventure. Her evidence was not challenged in cross-examination. I accept it.
The Father’s Oral Evidence
The father’s presentation in the witness box was similar to that identified by Court Child Expert in paragraph 36 of her report. He was polite and generally compliant, presenting as articulate and intelligent. On some issues and topics he was appropriately concessional and candid. On others, he encountered difficulties in responding to questions put to him, preferring to provide his own narrative on that topic.
It was his case that he had been a meticulous and careful steward of monies post-separation.
Ms Ormonde
Ms Ormonde in cross-examination presented as argumentative and determined to provide her own narrative to the proceedings.
Ms Ormonde said that the cars provided to the father and mother in the UK were by way of “loan”. She agreed that:
(a)The cars provided more than 20 years ago were purchased in the names of the parties; and
(b)The father sold each of the cars and retained the proceeds of each sale; and
(c)The father had never repaid any of the proceeds of sale monies
I reject Ms Ormonde’s evidence as to the monies for the purchase of the acquisition of the cars as being by way of loan. She did not give evidence as to making any call for the loans for the cars to be repaid until after the proceedings had commenced. Her evidence juxtaposed the evidence given by the father and the case of the mother as to the funds for the purchase of the cars being gifted. I prefer the father’s evidence on this topic.
Ms Ormonde said she and her husband handed the father cash sums of “several more thousand pounds” for school fees. She gave further evidence as to paying 25,000 GBP into a bank account held “by [the father] and [the mother] in the UK as I had no current bank account of my own”. She did not say that the parties retained these monies.
In her oral evidence Ms Ormonde said that the bond and a month of rental payments upon the arrival in Sydney in 2003 advanced by her were “always to be repaid”. Her evidence sits in direct contrast to that of both the mother and father. Her evidence as to the funds being provided by way of loan is not accepted. She conceded that no repayments of the asserted “loan” made 18 years ago have been made by the parties, and no demand had been made for repayment of the funds. I prefer the evidence of the parties on this subject matter.
Neither series of now antique advances for the purchase of the cars in the UK nor the 2003 payment of a bond and rent formed part of the loans Ms Ormonde sought to recover in the discrete issues judgment delivered 11 March 2021. Ms Ormonde was unsuccessful in the determinations made 11 March 2021 the recovery of contented outstanding loan funds of $112,010 paid on 26 September 2012 for the stamp duty payment of the acquisition of the Suburb F Property and as to recovery of further contended outstanding loan funds to the father between May 2016 and November 2017. She did not explain why the contended loaned monies for the car and rental expenses were not also the subject matter of recovery in the discrete proceedings.
The father relied on an affidavit of his mother filed on 24 October 2021. That affidavit exhibited 77 pages of bank statements. No entry on any of the bank statements was identified in the course of the oral evidence. The father in submissions contended that these bank statements illustrated an ability of his mother to support herself with adequate funds and that they demonstrated the transfer of funds between her accounts to get a high-interest rate.
Ms Ormonde was cross-examined on the frequency at which she attended the father’s home. She said that she attended on three occasions each week to “feed the animals”. I found that aspect of her evidence to be unconvincing. It is counterintuitive for her to attend the home to feed animals in circumstances where the father and the three older children of the marriage lived in the home and the two younger children were in the home at various times during the week and weekends. I find that she attempted to minimise the frequency of her attendances at the home to assist the father with the children including by taking them to school. It was the father’s evidence in cross-examination that his mother has assisted him in delivering the children to school approximately four times over five years. I find that his mother attends the home to assist the father with the care of children, especially in the morning taking them to school, at greater frequency than she and the father concede, but am unable to find specifically as to such frequency. This finding is supported by the evidence given by V and X to the Court Child Expert.
The Written Evidence of the Court Child Expert
The Court Child Expert identified clearly throughout her report, and I find, that one of the primary issues in these proceedings was the “entrenched conflict” between the parents and their inability to protect the children from exposure to such conflict. I find that:
This is a matter in which there has been an adversarial property and financial dispute that has driven considerable parental conflict and, unfortunately, the subject children and their adult siblings appear to have experienced the full force of this.
(Family report, paragraph 11)
The Court Child Expert expressed in the family report that:
105.Sadly, for Y and Z (and their elder siblings), the parents appear to have prioritised their energy following their separation facilitating a bitter property and financial dispute. This has ultimately progressed to a power struggle about Y’s and Z’s care and living arrangements, of which Y, Z, V and X are unfortunately well aware. This is most concerning.
Notwithstanding her criticism, the Court Child Expert observed that both the mother and father are “motivated and loving parents who both have much to offer their children” and who have “loving and close relationships” with the children. That is not contested by either parent and I so find.
The parties’ eldest son, V, engaged in interviews for the purpose of the preparation of the family report. In paragraph 53 of the report he is recorded to have informed the Court Child Expert that he was:
…clearly frustrated by way of his involvement within this parenting dispute, which he referred to as “ridiculous” and “petty”. He said that he understood the limitations of confidentiality as explained to him by the Family Consultant.
He acknowledged to the Court Child Expert that he had a positive relationship with both his parents during his childhood but he became an angry teenager and he had confrontations with his parents during his adolescent years.
The Court Child Expert recorded when she asked V to comment on his parent’s parenting style, V said:
56.“Mum is definitely more strict”. He said that he appreciates as an adult, however, that “she really just needed things to be done”. V said that [the mother] was the “disciplinarian and would enforce rules, whereas Dad didn’t discipline”.
57.V said that “deep down” he knew that his parents “didn’t always get along” and that their financial problems, which were reportedly sometimes discussed in his presence, would “come to a head”. He said that [the mother] remained living at the former marital residence for a period after his parents separated. He portrayed this period as stressful. He said that the parents seemingly shared the care of Y and Z as arranged between them at this time.
58.V said that [the father] has discussed the parenting arrangements and [the mother] with him “many times”, reportedly including within earshot of Y and Z. He said that [the father] has complained to him that Y and Z’s current parenting regime is “bullshit or rubbish” because he perceives it is “disjointed”. He said that [the father] “wanted fifty-fifty but now it seems like he’s trying to have them primarily”. V said that he does not agree with [the father] that Y and Z’s needs would be best met by living mainly with him ([the father]). When invited to tell the Family Consultant more about this, V was initially resistant to comment and he made some comments which would suggest that he is concerned about [the father’s] potential response to same. V then commented, “Because he [the father] doesn’t spend much time with them. He was the same with me when I was growing up”.
59.When invited to elaborate on any other concerns he has for Y and Z, V opined that it is not “healthy” for Y and Z to observe [the father] in “multiple relationships” because it “creates the wrong impression” and in his opinion is poor role-modelling. He said that [the father] is currently in a relationship with “Ms BN, who is very nice, and then there’s Ms BP” who reportedly “come over separately”. V said that he does not know “Mr D” well, but that he has no reason to believe there would be concern for Y and Z being brought in to contact with him. V said that [the father] does not “appreciate that he [Mr D] is around and says negative things” (about Mr D), including within ear-shot of Y and Z.
60.According to V “Mum did most things for us and looked after us” during his childhood. He said that “sometimes” [the father] assisted him with his maths homework, “but that was very rare”. V said that during his parents’ relationship, he observed that [the mother] completed a majority of the parenting tasks for Y and Z and [the father]’s involvement in domestic tasks and “hands on stuff” was nominal. V noted that [the father] took Y bike riding recently, but this is reportedly not a regular occurrence. V said that he has observed Y and Z spend considerable periods on electronic devices at the paternal residence and he lamented, “I think he [the father] has a bit of trouble there maintaining limits of electronics”. He said that Z has been left by [the father] to play on an electronic device “until he peed himself”. V said that Y and Z are permitted to use electronic devices at the maternal residence “sometimes”, which is facilitated and monitored by [the mother].
61.V said that [the father] has attempted to “convince the little one’s his [parenting] proposal is best for them” and reportedly prepared Y “to go with his proposal” for the purpose of this family assessment. V acknowledged that [the father] potentially “truly believes his idea is better”. He said that, on the other hand, [the father]’s “other motive” may be to restrict [the mother]’s time with Y and Z.
62.V said that he was an adult when his parents separated and he did not experience living between two households. He said that an equal time arrangement would potentially be suitable for Y and Z, but that “I’m not sure whether Z would cope with that”. V suggested that it would possibly be more suitable for Y and Z to spend week days at the maternal residence because [the father] “is out on the road or working and the rest”. According to V, “my grandmother looks after them [Y and Z] a lot” and reportedly sometimes delivers and/or picks them up from school.
64.V referred to the conflict between the parents as “super bad” and “born out of the excruciating circumstances with Court”. He lamented that “hearing the negative things that Dad would say about Mum, and it was a lot, it really wears you down”. V said that [the father] continues to disparage [the mother] to him, W and X, reportedly sometimes within earshot of Y and Z. He said that he is uncertain whether [the father] has made inappropriate comments about [the mother] directly to Y and Z. V despaired that these legal proceedings have been experienced by all family members as “draining and it has taken up everyone’s energy”. He said that he has attempted to persuade [the father] “please do not go ahead with this” (family assessment) and please let her have the kids. Focus on building your business”. V strenuously asserted that he and his siblings “need it to end”. He made many comments which would suggest that he considers the parents taking these proceedings further would be an unforgiveable circumstance of their separation.
65.At the conclusion of V’s interview he stressed that [the father] “is a good person and father”. He said [the father] perhaps struggles with “the idea of what it means to be a parent” and should focus his attention on “quality” of time as opposed to how much time Y spend in his care, and “getting his social life and business in order”. V reiterated his concern about his father’s response to his comments, but he considers it necessary that both of his parents understand “what’s happening has destroyed our family”. V said that he “needed to say something because otherwise its one person’s word against the other and you won’t know what’s really going on for them [Y and Z]”.
X also engaged in interviews and provided his evidence to the Court Child Expert. Her report records:
69.When invited to describe his parents individual parenting styles, X said that [the mother] “was the disciplinarian and did the parenting”. He said that as a young person, he perceived his mother was “strict” and there were reportedly some periods when this caused conflict and tension between [the mother] and the older children. X said that he has reflected on this and now appreciates “nothing would have been done though if she wasn’t telling us to do what she did”. X made some comments which would suggest that he does not think [the father] was supportive of [the mother] in her attempts to discipline him and his older siblings and he reportedly “let us get away with anything”.
70.X referred to the conflict between his parents and these legal proceedings as “total shit and it’s been the worst time of my life”. When asked if he had a message for his parents, X said “just be reasonable”. When asked if he has ever heard his parents make disparaging comments about one another, including in the presence of Y and Z, X did not respond for a period and it seemed he was extremely cautious when considering his response. X eventually commented, “Only when they have arguments”.
71.When asked his opinion of Y’s and Z’s parenting regime, X said that [the father] “works a lot and he works late, and couldn’t really look after them if they lived with him or even half the time”. According to X, the paternal grandmother “is there every morning to help, doing jobs around the house and keeping things in order”. The Family Consultant asked X who takes Y and Z to school, and X paused cautiously then commented, “I’m not usually there. I don’t know”. X said that he thinks Y and Z are loved and safe in both residences. He opined that “where one goes the other should as well” and that Y and Z should have the same parenting plan.
The father’s chronic child support failures accumulating arrears of $41,038 and failing to pay periodic child support since November 2019 weighs in the mother’s favour.
Post-separation the contribution findings significantly favoured the mother over the father
No presumption as to a finding of equality of contribution ought to be made merely because a marriage or de facto relationship is of longstanding duration. Justice Mason in Mallet v Mallet (1984) 156 CLR 605 stressed that the analysis as to the contribution finding is to be sourced in the evidence rather than inferred in an absence of evidence.
It was a focus of the father’s case was that there was no nexus as to the mother’s contributions and the acquisition of, and current value of, the Suburb F Property. It was his contention that this item in the balance sheet was a function of the direct contributions of his parents, his brother and his income, and the increase in its value from the time of acquisition was in reality a product of market improvements over time. I am unable to find favour with that submission. The fails to give consideration to the earlier determinations made in the judgment of 11 March 2021 and the findings made in these reasons, including as to the post-separation period. I am mindful of what the Full Court said in Singerson & Joans [2014] FamCAFC 238 at [66] that for the purposes of s 90SM of the Act there is nothing to suggest that any category of contribution needs to be quarantined and applied solely to particular assets. In my view the authorities required evaluation of all contributions to the property of the parties, notwithstanding they may be different to categories of that property.
The Full Court in Jabour & Jabour (2019) FLC 93-898 found that a primary judge had erred in seeking a nexus between contributions and particular items of property when assessing contributions globally and holistically over a long relationship. That guidance applies in this matter. The Full Court recorded at [43] that there can be an overstated importance as to the increase in the value of a piece of property at the expense of “the myriad of other contributions that each of the parties has made during the course of the relationship”.
The Full Court as recently as Horrigan & Horrigan [2020] FamCAFC 25 emphasised and reinforced that the proper approach to the assessment of contributions is:
35.…well established that an assessment of contributions is not a mathematical exercise, but rather involves the identification and assessment of all of the parties respective contributions, in a holistic way across the course of the relationship and in the post-separation period to the point of assessment
Both parties contended a global assessment as to contribution. The mother contended a contribution finding in her favour by way of equality up to the date of separation, and as to 65 per cent in her favour up to hearing. The father contended a contribution of 70 per cent in his favour and 30 per cent to the mother to the date of the hearing.
The requirements of s 90SM are met in this matter by approaching the assessment of contributions holistically, and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 90SM applies, and, in turn, analysing the nature, form, and extent of the contributions (of all types) contemplated by s 90SM. That task is also undertaken by reference to the nature and form manifested by the circumstances of this particular relationship. I am left with little doubt that, on the evidence, that each party to this relationship contributed differing qualities, to the maximum of their respective capacities and abilities, within their various roles that evolved over their 23-year relationship up to the date of separation in February 2017. Taking the myriad of contributions made by both parties into account, both during the relationship and post-separation, I conclude that the property of the parties should be divided equally based on contributions.
This will see no disparity between the parties on a contribution basis. In dollar terms, this equates to them each receiving $486,559.
Adjustment to the Contribution Findings
The father is 54 years of age. He is in good health. He does not assert any incapacity for employment in the future.
The mother is 48 years of age. She is in good health and does not assert any incapacity for employment in the future.
I find that the parties both have a future income earning capacity by application of their own physical efforts and labours.
The tax returns of the mother for 2018 through to 2020 record an increasing income from personal exertion of nil, $15,778 and $25,768 respectively. Her PAY-G statement for 30 June 2021 records a personal exertion income of $25,696. I find that her future income earning capacity will be not dissimilar to her current income of $525 per week or in the range of $27,375 per annum.
I find that the mother has a resource by way of Mr D should she require his financial assistance in the future.
The father’s taxation returns record that he received a taxable income of $43,143 in 2018, $6,716 in 2019, $10,000 in 2020 and $18,200 in 2021. His financial statement records his current income as $288 per week or $15,017 per annum.
The AAT on review determined the father’s actual income and financial resources historically exceeded what he recorded in his taxation returns. I accept on the evidence and I find that the AAT determination is echoed in these proceedings. The AAT determined that the father’s child support income until 31 October 2020 is $157,600 per annum. The father represented to H Bank on the refinance of the Suburb F Property in June 2019 that his income was $235,000 per annum plus $40,000 in director’s fees.
The father has three tertiary degrees. He has held himself out to be a legal professional. I find from the evidence that the father caused a company to be incorporated called CO Proprietary Limited with his pensioner mother as the sole legal shareholder of this company. He said this entity has not traded. The entity records as its registered office, the offices of KPL.
The father has operated successful business enterprises for 25 years.
The father conceded a five per cent adjustment in favour of the mother grounded from his superior income earning capacity.
In the circumstances of the disclosure failures identified in these reasons, I am unable to make a reliable finding as to the father’s current income property and resources or his future income earning capacity. I can be robust arising from his disclosure failures in weighing this factor materially in favour of the mother.
The father has significant financial resources available to him by way of BEL.
I take into account that the mother has an obligation to repay the loans to Mr D, Ms YY, Mr Marley and Ms CE for legal fees and the value of her unpaid legal fees. She will have to meet her unpaid taxation obligations. The Child Support Agency may be successful in recovering the arrears payable to her from the father’s liability owing to the ATO.
I take into account the father’s obligation to pay his unpaid legal fees, his debt to the ATO and the deferred obligation of KPL to pay BCC. As to the KPL liability to BCC, the father gave oral evidence that “I’m very confident I will be able to persuade them to wait until I’m back on my feet.” The evidence records that the father now has the benefit of the accommodation of BCC deferring any requirement from KPL to repay monies it has advanced.
In the circumstances of my findings I attach no weight to the father’s contended VAT liability on the BW Street UK sale and the monies he contends are due to this mother or to his contended loans from W, V and X. As to the KPL loan from BEL, the father contended that he had discussions with the third respondent and X whereby the he was left “confident that [the loan repayment] wouldn’t be something that couldn’t be negotiated so that it allowed me to concentrate on expanding the business and getting things back to where they should be”.
I am satisfied that the ATO as a creditor of each of the parents can be paid from each of their respective adjusted property. So as to ensure that the recovery of the current assessed taxation liabilities of each of the parents due to the ATO is not prejudiced, I will order that each parent serve upon the ATO a copy of these reasons and the orders made. I am satisfied that the evidence in the father’s case establishes that both BCC and BEL are aware of the fact and nature of these proceedings, and as creditors of KPL have sufficient notice as to the making of any orders that may prejudice their recovery of funds.
By way of the parenting orders, the mother will have the primary care of the children in the future.
Both parents will have relevant commitments for their own self-support.
I find that the father is likely to avoid paying continuing period child support and will make applications in the future by way of review and objection. To facilitate the recovery of the current child support arrears the mother has leave to provide a copy of these reasons and orders to the Child Support Agency.
A consideration of the matters contained in s 90SM(4)(d-g) of the Act favours the mother. I find that a consideration holistically of these factors warrants an adjustment from the contribution findings in her favour of 15 per cent.
By way of cross-check, the value of this adjustment in money terms is $145,969 and a differential of $291,935.
Justice and equity
It is considered not only open, but sometimes necessary and proper, to stand back and consider the effect of those findings and determinations and resolving what award is just and equitable in all the circumstances. In other words, consideration ought not be given only to the percentage division of the property and its consequences after considering and weighing all relevant matters, but consideration ought also be given to the real dollar value and the monetary consequences of the proposed division.
The father has an overall entitlement of 35 per cent of the pool of property identified in the adjusted Balance Sheet. This equates to a sum of $340,591.
By way of the orders the father shall retain:
(a)Items 9 and 10, being cash held across his bank accounts in the sum of $482;
(b)Item 11, being Motor Vehicle 1 valued at $113,700;
(c)The retained monies of the refinance of the Suburb F Property in the sum of $45,000.
Total being $152,182.
He shall be liable for:
(a)Item 28, being his unpaid tax liability owing to the ATO in the sum of $392,717; and
(b)Item 37A, being the $3,800 to be paid to Mr TT for the recovery of the First Edition Books.
Total being -$396,517.
His net position being $237,335.
Before considering the adjustment of the equity of the parents in the Suburb F Property, the father requires $577,926 to achieve 35 per cent, or the value of $340,591 of the property of the parents.
The gross equity in the parties’ interest in the Suburb F Property is $2,706,400, plus $17,369 being what the third respondent is required to account less the mortgage of $1,561,193 = $1,162,576.
So as to achieve $340,591, the father ought to receive $577,926 from the proceeds of sale after discharge of the mortgage, and hence 49.71 per cent of the proceeds.
The mother has in her possession or will receive by way of adjustment the following
(a)Item 2, being cash held across her bank accounts in the sum of $606;
(b)Item 6, being Sinbad and Alice in Wonderland First Edition Books in the sum of $750;
(c)Item 8, being the balance of the First Edition Book collection, valued at $3,800;
(d)Item 12, being the Motor Vehicle 2 valued at $4,000;
(e)Item 7, being her Jewellery valued at $10,000;
(f)Item 17, being the interim property settlement in the sum of $117,000.
Total being $136,156.
She shall be liable for:
(a)Item 21, being her unpaid tax liability owing to the ATO in the sum of $88,152; and
(b)Item 22, being her personal loan owing to Ms CB in the sum of $6,000.
Total being $94,152.
Before considering the equity in the Suburb F Property, the mother requires $584,650 to achieve 65 per cent, or the value of $632,537 of the property of the parties.
So as to achieve $632,527, the mother ought to receive $584,650 from the proceeds of sale after discharge of the mortgage, and hence 50.29 per cent of the proceeds.
Should an order be made for the sale of the Suburb F Property and in what terms?
The father sought to retain the Suburb F Property. For the reasons that follow, I find that he is unable to do so.
He was unable to explain how he would be in a position to generate income in the future to
(a)Pay the current mortgage instalments of $6,830 per month;
(b)Source funds to pay any s 90SM adjusting payment to the mother;
(c)To pay his ATO debt of $392,717;
(d)Pay his child support arrears of $41,038.
(e)Source funds to meet any moral obligation he contends in favour of his brother or mother;
(f)To pay his outstanding legal fees in the sum of $98,125.
(g)On his case, he additionally would have to pay the outstanding Division 7A loan due by him in favour of KPL in the sum of $382,862.
On enquiry in cross-examination how he proposed to improve his income from the current $288 he would receive per week to pay a mortgage instalment in excess of $6800 per month and to otherwise meet the cost of he and the children, he said “I have no idea how to go from here”.
He was reluctant to concede his prior representations made in earlier affidavit evidence as to an intention to “build the business” were reliable. I formed the view that in distancing himself from his earlier evidence he was anxious to ensure that no finding would be made as to he having a significant future income earning capacity. There is simply no evidentiary foundation for the contention that he will be able to “build the business” to obtain sufficient funds to maintain the property and pay each of the above liabilities and an adjusting sum to the mother.
He had not made any enquiries as to the availability of further finance secured upon the Suburb F Property.
In the circumstances, I find that it is appropriate to make orders for the sale of the Suburb F Property as soon as is practicable to preserve the property of the parties. I will not make orders that the mother be appointed as trustee for the father and the third respondent on the sale but will craft a process of orders by way of auction to achieve the expeditious disposal of the property at the best value achieved.
The sale of the property will go some way to ensuring payment to the third respondent of his interest in the Suburb F Property, mitigating the friction in the father’s relationship with his brother arising from the proceedings. It will be a matter for the third respondent to return in favour of the ATO any taxation liability by way of any capital gain he achieves on the disposal of his interest in the Suburb F property.
The mother and third respondent ought not be disadvantaged by the father’s continued occupation of the Suburb F Property subsequent to the date of the delivery of these reasons. I find it equitable in the circumstances for the father to be responsible for and to meet the mortgage repayments and other outgoings in respect of the property pending the completion of its sale by auction pursuant to these orders.
The mother is at liberty to exercise her rights to apply through the Child Support Agency to secure payment of outstanding arrears from the father’s share of the proceeds of sale.
Standing back, I find that the distribution of the property of the parties in the terms identified above is appropriate and otherwise just and equitable.
I will order accordingly.
I certify that the preceding three hundred and sixty-four (364) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 27 January 2022
SCHEDULE 1 - COURT EXHIBIT 5 - “UPDATED CONSENT ORDERS AS TO PARENTING”
IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
AT: SYDNEY
File number: SYC 3012/2018 MS MARLEY
Applicant Mother
MR ORMONDE
Respondent Father
UPDATED CONSENT ORDERS AS TO PARENTING
1.That all previous Orders in respect of the children Y born 2010 (“Y”) and Z born 2016 (“Z”) be discharged.
Parental Responsibility
2.That the mother and father have equal shared parental responsibility for all major long term decisions in relation to the children Y born 2010 (“Y”) and Z born 2016 (“Z”)
3.Before making any decisions about major long term issues in relation to either Y and Z, both parents shall consult with each other as follows:-
a.Advise the other parent in writing not less than twenty-one (21) days in advance of any decision on major long-term issues in relation to either of the children proposed by that parent;
b.Provide the other parent with all relevant information relating to the major long term issue which is in the possession of that parent;
c.Provide any necessary authorities to enable the other parent to obtain any additional information;
d.Consider any response from the other parent; and
e.Both parents will make a genuine attempt to agree to such decisions.
4.That the mother and the father each have sole responsibility for making decisions about the day to day care, welfare and development of Y and Z during those periods that Y and Z are living with them or spending time with them.
Christmas
5.For the purpose of Christmas the following shall apply:
a.From 2022 and continuing in all even numbered years thereafter, the children shall spend time with the father from 4pm on Christmas Eve until 4pm on Christmas Day and the children shall spend time with the mother from 4pm on Christmas Day until 4pm on Boxing Day.
b.From 2021 and continuing in all odd numbered years thereafter, the children shall spend time with the mother from 4pm on Christmas Eve until 4pm on Christmas Day and the children shall spend time with the father from 4pm on Christmas Day until 4pm on Boxing Day;
Easter
6.For the purpose of Easter, the children shall spend time with the parents as follows:
a.With the father over the Easter long weekend commencing from 4pm on Good Friday until 4pm on Easter Sunday in all even numbered years commencing from 2022.
b.With the mother over the Easter long weekend commencing from 4pm on Good Friday until 4pm on Easter Sunday in all in all odd numbered years commencing from 2023; and
Special Occasions
7.On each of the children’s birthday at times to be agreed between the parents and if not agreed then the children shall spend time with the parent that they do not wake up with on each of their birthdays from the conclusion of school or otherwise from the conclusion of school until 6:00pm and in the event the children’s birthday’s take place on a non-school day the children 10:00am until 2:00pm.
Therapy
8.That within twenty-eight (28) days of the date of these Orders, the mother and father are to do all acts and things reasonably necessary to arrange counselling for Y for as long as the Counsellor recommends.
9.That leave be granted for the parties to provide the Counsellor with a copy of the family report of Ms XX dated 17 May 2021, together with a copy of these Orders.
Overseas Travel
10.The parties shall each do all acts and things, sign all documents necessary, attend at all Government offices, and equally pay all such necessary fees so as to obtain and renew each of the Children’s passports as required so as to ensure that the Children have a current Australian passport with not less than 6 months until its expiry.
11.That pursuant to Section 65Y(2) of the Family Law Act 1975 (Cth), both parents are permitted to temporarily remove the Children from the Commonwealth of Australia for the purposes of overseas holiday and travel provided that:
a.That travel overseas is limited to all term school holiday periods when the children are otherwise spending time with the travelling parent and with the travelling parent electing in writing no more than once in each two year period such travel to extend either a week prior or a week after the school holiday period, except at the beginning of Term 1, unless otherwise agreed to by the parents in writing.
b.the parent proposing overseas travel shall give to the non-traveling parent, at least 5 weeks in advance of the proposed travel, written details of the arrival and departure dates and locations outside of the Commonwealth of Australia where it is proposed the Children will travel (being countries, cities and towns); and
c.not less than two (2) weeks in advance of the proposed travel, the parent proposing overseas travel for the Children must provide to the other non-traveling party a photocopy of all return airline tickets; and
d.the parent proposing overseas travel for the Children must ensure that they are covered by a valid personal / illness/ injury and hospitalisation travel insurance policy for the duration of travel outside of the Commonwealth of Australia and provide the other parent with a copy of such insurance.
e.The mother shall retain the Children’s passports and shall deliver the Children’s passport to the father upon his compliance with each part of this Order above and the father shall return the Children’s passports to the mother within 14 days of returning to Australia.
f.The travelling parent shall ensure that their phone is set to international roaming.
g.That the travelling parent shall notify the other parent as soon as practicable of any emergency.
Exchange of Information
12.That the mother and father will keep each other informed as soon as is reasonably practicable of:-
a.Any significant medical problems, illness or injury suffered by Y and Z while in their respective care;
b.The full particulars of any doctor, medical practitioner, or health service provider or institution attended upon by Y and Z while in their respective care;
c.Any medication that has been prescribed for either Y and Z while in their respective care;
d.Any occasion that Y and Z are due to be hospitalised while in their respective care.
13.This order operates as authority for the children’s school to provide information to each parent including but not limited to school reports, school photographs, school newsletters, online portal passwords and any other information related to the children’s welfare.
14.That these orders operate as authority for the children’s health practitioners to release all information to each parent including but not limited to medical notes and information regarding health, medical prescriptions and any recommendations made.
15.That each parent keep the other parent informed as to his or her residential address and telephone number and notify the other parent within 7 days of any change to such details.
SCHEDULE 2 - EXHIBIT U (“THE FIRST EDITION BOOKS”)
Various
Ian Fleming – Dr No
Ian Fleming – Dr No
Frank Herbert – Dune
Stephen King – Carrie
Arthur Conan Doyle – Hound of the Baskervilles
Arthur Conan Doyle – The Lost World
John Wyndham – Day of the Triffids
HG Wells – War of the Worlds
HG Wells – Island of Dispute Resolution Moreau
Dashiell Hammett – The Maltese Falcon
Samuel Beckett – Waiting for Godot
Rudyard Kipling – Jungle Book and Second Jungle Book
Douglas Adams
Hitchhikers Guide to the Galaxy
Restaurant at the End of the Universe
So Long and Thanks for All the Fish
Life the Universe and Everything
Mostly Harmless
Arthur Conan Doyle
The Memoirs of Sherlock Holmes
Iain Banks
Walking on Glass
Stonemouth
The Steep Approach to Garbadale
Dead Air
The Business
A Song of Stone
Whit
Complicity
The Crow road
Canal Dream
The Bridge
Wasp Factory
The Algebraist
Feersum Endjinn
Against a Dark Background
Surface Detail
Matter
Look to Windward
The State of the Art
Inversions
Excession
Use of Weapons
Consider Phiebas
Graham Greene
Our Man in Havana
The Honorary Consul
The Human Factor
Twenty One Stories
The End of the Affair
The Bomb Party
HG Wells
The First Men in the Moon
When the Sleeper Wakes
TS Elliott
Collected Poems
The Elder Statesman
Roald Dahl
Charlie and the Chocolate Factory
Frederick Forsyth
Odessa File
Day of the Jackal
Fourth Protocol
James Herbert
The Dark
The Survivor
Moon
The Rats
Protent
Sepulchre
Stephen King
Christine
Len Deighton
Ipcress File
Twinkle Twinkle Little Spy
Funeral in Berlin
An Expensive Place to Die
Declarations of War
City of Gold
Ian Fleming
You Only Live Twice
Man with the Golden Gun
Thunderball
For Your Eyes Only
CS Lewis
Return to Narnia
Clive Barker
Damnation Game
Imajica
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3
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