Marwah & Harvey - [2022] FedCFamC2F 88

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Marwah & Harvey [2022] FedCFamC2F 88

File number(s): SYC 793 of 2020

Judgment of: JUDGE BECKHOUSE

Date of judgment: 2 February 2022

Catchwords:
FAMILY LAW – PARENTING – Where the child has a diagnosis of a medical condition which requires regular therapy and ongoing medical care – where both parties have a history of illicit and prescription drug use – equal shared parental responsibility save for the mother to have sole parental responsibility in relation to health and education – child to live with mother.

FAMILY LAW – PROPERTY – Alteration of property interests – short marriage – modest asset pool – superannuation splitting order.

Legislation: Family Law Act 1975 (Cth), ss.60B(2), 60CA, 60CC(2), 60CC(3), 61DA, 65DAA, 65DAC, 75(2), 78, 79

Cases cited: G & G (1984) FLC 91-582
Hickey & Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143
Stanford v Stanford (2012) 247 CLR 108

Division: Division 2 Family Law

Number of paragraphs: 224

Date of last submission/s: 1 December 2021

Date of hearing: 5, 6, 7 and 11 October 2021

Place: Sydney

Counsel for the Applicant: Ms Kennedy

Solicitor for the Applicant: Tiyce and Lawyers

Counsel for the Respondent: Mr Givney

Solicitor for the Respondent: McGrath Dicembre & Company

Counsel for the Independent Children's Lawyer: Mr Hill

Solicitor for the Independent Children's Lawyer: Kathryn Renshall Lawyers
ORDERS

SYC 793 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MARWAH

Applicant

AND:
MS HARVEY

Respondent

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

2 FEBRUARY 2022

ON A FINAL BASIS THE COURT ORDERS THAT:
Parenting
1.All previous parenting Orders be discharged.
2.The Mother and Father have equal shared parental responsibility for the child X born in 2015 (“the child”) save for decisions in relation to the child’s health and education which will be the sole responsibility of the Mother.
3.The Mother shall, before making any long-term decision about the child’s health or education, notify the father of her intention to make a long-term decision, invite comments regarding the decision and notify the father of any decision that she makes.
4.The child live with the Mother.
5.The Mother shall remain residing with her parents for a period of two (2) years from the date of these Orders.
6.The child spend time with the Father as agreed between the parents in writing and failing agreement, as follows:
During school terms
(a)Each alternate week from after school each Friday until before school on Monday commencing from 2022 Term 1, Week 1 and recommencing in the first week of each school term thereafter.

School Holidays
(b)During the school holidays falling after Terms 1, 2, 3 and 4
(i)In odd numbered years in the first week from 10.00 am on the first Saturday to 10.00 am on the second Saturday of each holiday period.
(ii)In even numbered years in the second week from 10.00 am on the second Saturday to 10.00 am on the third Saturday of each holiday period.
(iii)During the School holidays falling after Term 4 for a three (3) week block in odd numbered years commencing from 10.00am on the fourth last Saturday of the school holidays until 10.00am on the last Saturday of the school holidays.
(iv)During the school holidays falling after Term 4 for a three (3) week block in even numbered years for the first three (3) weeks of the school holidays commencing from 10.00 am on the first Saturday of the school holidays until 10.00 am on the fourth Saturday of the school holidays.

(c)At all other times as agreed between the parties in writing.

7.For the purposes of the abovementioned Orders, school term means the school terms as gazetted for New South Wales Government Schools and school holidays mean the school holidays as gazetted for New South Wales Government Schools whether the child is attending a New South Wales Government school or not.
Special Occasions
8.Notwithstanding Order 6 above, on the following occasions of special significance the child shall spend additional time with the parties as agreed between the parties in writing and failing agreement as follows:
(a)Christmas Day with the parent the child is not spending time with in accordance with Order 6(b)(iv) from 2.00 pm Christmas Eve until 2.00 pm Christmas Day;
(b)With the Mother on Mother’s Day (if same falls during the Father’s time) from 9.00 am until 5.00 pm;
(c)With the Father on Father’s Day from 9.00 am until 5.00 pm;
(d)On the child’s birthday with the parent she is not living with on that day, from after school (or 3.00 pm on a non-school day) until 6.00 pm; and
(e)With the Father for the Diwali festival each year from after school or 5.00 pm if not a school day the day before Diwali to 5.00 pm the day after Diwali.

9.For the purposes of facilitating changeover other than on those occasions when either party collects or returns the child to or from school, changeover shall occur at the McDonalds Family Restaurant Suburb B, Street C, Suburb B.
10.The parties shall be at liberty to communicate with the child via telephone, Facetime, Skype or other telecommunication method at all reasonable times, and the parent with care of the child will encourage such communication with the child.
11.The child is at liberty to telephone any party whom they wish. The parent who is caring for the child is to make the telephone available to the child at their request.
12.The parties are to keep each other advised of their mobile number, email address and their current residential address. The parties are to notify each other within seven (7) days of any changes to these details.
13.Each parent will keep the other informed of the following at times the child is in their respective care:
(a)any medication that has been prescribed for the child;
(b)the names and addresses of any treating medical or other health practitioner who treats the child (and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the child); and
(c)any medical emergency, including but not limited to serious illness, accident or hospitalisation.

14.The parents authorise, by this Order, the school attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that parent’s cost).
15.The parties shall separately attend upon Ms D for therapy as to effective co-parenting for such duration and length of time that Ms D recommends.
16.For the purposes of Order 15 above, the parties shall provide Ms D a copy of the Single Expert Report prepared by Ms E dated 11 August 2021 and a copy of this judgment.
17.The parties are restrained from denigrating any member of the other’s household in the presence or hearing of the child or either of them or permitting or allowing any member of the parent’s household to do so.
18.The parents will communicate through the “My Family Wizard” App in relation to all parenting matters with the exception of emergencies, where the parties will communicate via text message.
19.Each party is restrained by injunction from consuming or being under the influence of illicit or prescription drugs unless in accordance with a prescription and the recommendations of a medical practitioner treating that party.
20.The parties agree that they will do all acts and sign any documents required to make an application to obtain and/or renew an Australian Passport (“Australian travel document”) for X born in 2015 at the expense of the party requesting the issuing or renewal.
21.The Mother shall hold the child’s passport when she is not travelling outside the Commonwealth of Australia with either parent.

Property
22.Within three (3) months from the date of these Orders the Father is to pay to the Mother the sum of $165,162.
23.Subject to compliance with Order 22 hereof, and in consideration of that payment, the Mother shall transfer to the Father all of her right, title and interest in respect to the property at F Street, Suburb G (“F Street, Suburb G property”).
24.Simultaneously with the said transfer of the F Street, Suburb G property the Father is to refinance the current joint loan attached to the property such that the loan is in the name of the Father solely.
25.Simultaneously upon compliance with Orders 22 to 24 the Father is to be declared the owner of the property situated at H Street, Suburb J, Queensland (“H Street, Suburb J property”) and the Mother is to have no further right, title, interest or claim in the said property.
26.If the Father is unable to pay the Mother $165,162 within 90 days, then the parties will do all acts and things and sign all necessary documents to list the F Street, Suburb G property for sale by public auction, the reserve price for the auction shall be as agreed between the parties and failing agreement as recommended by the agent and:
(a)The parties shall cooperate in every way with the agent including but not limited to:
(i)making the keys available to the agent;
(ii)allowing inspection of the property at all reasonable times requested by the agent;
(iii)doing or saying nothing to hinder or prevent a sale being effected;
(iv)ensuring the property, including the grounds, are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and
(v)signing all documents requested by the agent in relation to the listing for sale of the property except a contract or agreement for sale which has not been authorised by the solicitor.

(b)In the event that bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of the property at a price not more than 5% below the reserve.
(c)If the property remains unsold, the parties will do all acts and things and sign all documents necessary to immediately relist the property for sale by public auction the reserve price for the auction shall be as agreed between the parties and failing agreement as recommended by the agent.

27.Upon settlement of the sale of F Street, Suburb G the Father and Mother shall do all acts and things and sign all documents necessary to cause the payment of proceeds to be paid in the following order and priority:
(a)Payment of agent’s commissions, advertising expenses, legal expenses and Council rates, water rates and land tax of the sale.
(b)To discharge any mortgage on the property.
(c)To pay the Mother the sum of $165,162 and if less than that amount is available, the whole of the net amount remaining.
(d)Subject to there being sufficient monies in accordance with Order 27 (c), the balance remaining shall be paid to the Father.

28.In the event that the proceeds of sale from the F Street, Suburb G property are insufficient to pay the Mother the sum of $165,162 in accordance with Order 27(c), then the Father will do all acts and things and sign all necessary documents to list the H Street, Suburb J property for sale by public auction and the reserve price for the auction shall be as agreed between the parties and failing agreement as recommended by the agent and:
(a)In the event that bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of the property at a price not more than 5% below the reserve.
(b)If the property remains unsold, the Father will do all acts and things and sign all documents necessary to immediately relist the property for sale by public auction the reserve price for the auction shall be as agreed between the parties and failing agreement as recommended by the agent.

29.Upon settlement of the sale of H Street, Suburb J the Father and Mother shall do all acts and things and sign all documents necessary to cause the payment of proceeds to be paid in the following order and priority:
(a)Payment of agent’s commissions, advertising expenses, legal expenses and Council rates, water rates and land tax of the sale.
(b)To discharge any mortgage on the property.
(c)To pay the mother such amount as is necessary to make up a total payment of $165,162 when combined with the payment she received upon the sale of F Street, Suburb G in accordance with Order 27(c)
(d)The balance remaining shall be paid to the Father.

30.The Base Amount of $37,336 be allocated to the mother out of the interest of the Father in the K Super Fund (“the fund”), member number …86.
31.Pursuant to s 90XT(1)(a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable in respect of the Father’s interest in the fund, the Mother shall be entitled to be paid an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the Base Amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.
32.That Order 31 has effect from the operative time.
33.The operative time for the purposes of Order 31 of these Orders is four (4) business days after the date of service of these Orders upon the Trustee of the Fund.
34.The Mother serve a copy of these Orders on the Trustee of K Super Fund within seven (7) days of the date of these Orders by ordinary pre-paid post.
35.Subject to any other Order to the contrary, the Father be solely, legally and beneficially entitled to the exclusion of the Mother, to all other real and personal property of whatsoever nature and kind in his ownership, possession and/or control as at the date of these Orders including but not limited to:
(a)All monies held by him in any bank account(s) held in his name.
(b)Motor vehicles.
(c)The Father’s superannuation entitlements in any fund or funds.

36.Subject to any other Order to the contrary, the Mother be solely, legally and beneficially entitled to the exclusion of the Father, to all other real and personal property of whatsoever nature and kind in her ownership, possession and/or control as at the date of these Orders including but not limited to:
(a)All monies held by her in any bank account(s) held in her name.
(b)Motor vehicles.
(c)The Mother’s superannuation entitlements in any fund or funds.

37.Except as any paragraph comprising these Orders provide to the contrary:
(a)The Father will do all acts and things necessary to indemnify, and keep indemnified, the Mother from and against all liabilities including but not limited to all actions, claims, suits and demands of whatsoever nature arising out of, or in the connection with the Father’s interest in any real property, taxation, duties, credit cards and/or loans.
(b)The Mother will do all acts and things necessary to indemnify, and keep indemnified, the Father from and against all liabilities including but not limited to all actions, claims, suits and demands of whatsoever nature arising out of, or in the connection with the Father’s interest in any real property, taxation, duties, credit cards and/or loans.

38.The Father within 30 days shall return to the Mother any personal belongings currently in his possession either at his current residence or his parent’s residence at L Street, Suburb M or held in a storage facility at N Hire, Suburb O.
39.In the event that either party shall fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to s 106A of the Family Law Act 1975 (Cth), and upon verification of such default by way of affidavit evidence, the Registrar of the Federal Circuit and Family Court of Australia at the Sydney Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such defaulting party and to thereafter do all things and acts as necessary to give validity and operation to same, and the non-defaulting party shall be at liberty to make an application for costs arising in respect of the default.

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

These are proceedings with respect to both parenting and property following the separation of the Applicant Mr Marwah who is referred to as the father or Mr Marwah, and the Respondent Ms Harvey who is referred to as the mother or Ms Harvey.
The parties are in dispute about the parenting arrangements for their daughter X (“X”) who was born in 2015 and is now aged 6 years. Each party would love X to live with them.
The parties also seek orders about the adjustment of their property interests following the breakdown of their relationship.
ISSUES IN DISPUTE
The issues that require a judicial determination are:
(a)What parenting orders are in X’s best interests including:
(i)which parent she should live with;
(ii)what time she should spend with the parent she does not live with;
(iii)how parental responsibility should be allocated;
(iv)what school she should attend when she commences kindergarten in 2022;
(v)should she be permitted to travel outside of Australia with either party; and
(vi)whether any injunctions, restraints or other orders should be made.
(b)Whether orders should be made adjusting the parties’ interests in property and if so, what adjustment is just and equitable in the circumstances of this case?
EVIDENCE
The trial was conducted by Microsoft Teams. There were no significant technical issues. I am satisfied I was able to hear the evidence and submissions, and that each of the parties and their witnesses were able to provide their evidence electronically.
Both parties were legally represented at the hearing.
The Court was assisted by an Independent Children’s Lawyer (ICL).
Each of the parties filed Case Outline documents setting out the material relied upon.
The father relied upon:
(a)Initiating Application filed 7 February 2020
(b)Affidavit of Mr Marwah filed 29 September 2021
(c)Financial Statement filed 29 September 2021
(d)Affidavit of Mr P filed 23 September 2021
(e)Affidavit of Ms Q filed 29 September 2021
(f)Single Expert Report, Ms E, Clinical Psychologist dated 11 August 2021 (“Single Expert Report”)
(g)Affidavit of Mr Marwah filed 18 November 2021
(h)Written submissions filed 14 December 2021

The mother relied upon:
(a)Further Amended Response filed 24 September 2021
(b)Affidavit of Ms Harvey filed 30 September 2021
(c)Affidavit of Mr R filed 29 September 2021
(d)Affidavit of Ms S filed 29 September 2021
(e)Amended Financial Statement filed 24 September 2021
(f)Single Expert Report
(g)Orders dated 26 February 2020 by Judge Boyle
(h)Orders dated 30 July 2020 by Judge Boyle
(i)Orders dated 25 September 2020 by Judge Boyle
(j)Orders dated 9 June 2021 by Judge Boyle
(k)Written submissions filed 24 November 2021
The ICL relied upon the Single Expert Report by Ms E (“the Single Expert”) dated 11 August 2021 and written submissions filed 7 December 2021.
I have also had regard to the joint consolidated tender bundle prepared by the parties.
Following the admission of the affidavit of the father filed 18 November 2021 the mother and ICL filed written submissions.
The witnesses called were the parties, the paternal grandparents, maternal grandfather and the Single Expert.
I do not propose making any global findings with respect to credit. Both parties gave evidence from their own perspective. On some issues both parties gave evidence that was unreliable. As a result, I have assessed the evidence they gave on particular issues and where in conflict, have preferred one version to another.
The Single Expert gave evidence and was cross-examined. I accept her evidence and her credibility as an expert. There were some aspects of her report that were challenged by the father and these are assessed later.
It has not been possible to refer to every aspect of each of the parties’ evidence. However, I have taken all the evidence into account.
There were some factual matters in dispute that I have had to determine. Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings as the balance of probabilities and in what follows, statements of fact constitute findings of fact.
BACKGROUND
The father was born in 1986 and is aged 35 years.
The mother was born in 1986 and is aged 35 years.
The parties commenced a relationship in 2013 and maintained a long distance relationship until X’s birth. The mother lived and worked in Country T as an educator while the father lived in Sydney working as a health care professional.
The parties were married in 2015.
The parties’ only child X was born in 2015.
After X’s birth, the parties moved in with the maternal grandparents for approximately one month.
In September 2015 the parties purchased, as tenants in common, a unit located at F Street, Suburb G NSW (“F Street, Suburb G property”) for $960,000.[1] The father deposes that the entirety of the deposit for the property came from savings he had accumulated two years prior to the parties’ marriage. The mother disputes this and claims that she contributed to the purchase using a substantial part of her $30,000 in savings.
[1] Affidavit of Mr Marwah filed 29 September 2021, p.122 (“Father’s Affidavit’).
The parties moved into the F Street, Suburb G property in November 2015.
In January 2016 the parties relocated to Suburb U, Queensland after the father was offered a job at Employer V.
In October 2016 the father purchased, in his sole name, a unit at H Street, Suburb J, Queensland (“H Street, Suburb J property”). He deposes that the 5% deposit was paid using $10,000 received from his 2015 income tax refund and $17,000 from his W bank account. The balance of the purchase was covered by way of a Westpac mortgage in his sole name. His parents gifted the parties $10,000 to cover legal fees and stamp duty for the property. The mother alleges that it was around this time that the father began prescribing her drugs.
In December 2017 the parties moved to Suburb Y, Queensland. The mother alleges that the father brought home methamphetamine which she began to inject.
In February 2018 the father commenced a 12 month contract as a health care professional at Employer Z.
The mother says she became addicted to methamphetamine in or around March/April 2018.
On 11 May 2018 the father received notification from the Australian Health Practitioner Regulation Agency (AHPRA) that he was being investigated for possible impairment and substance abuse. The letter states that “on 27 March 2018, the Queensland Triage and Assessment Committee of the Medical Board Australia (the Committee) formed the belief that a health issue may be impairing [the father’s] capacity to practise safely.”[2] The Committee based this finding on allegations including “fraudulent prescriptions, possible self-administration or diversion.”[3] Notably they allege that the father wrote 23 prescriptions for the mother for alprazolam, dexamphetamines, endone and naloxone without a treatment plan.
[2] Affidavit of Ms Harvey filed 30 September 2021, page 38 (“Mother’s Affidavit”).
[3] Ibid, page 39.
Around this time the father rang the maternal grandparents and asked them to come to Queensland to take delivery of X. The maternal grandfather deposes that the mother was not home and the father “appeared to be…in a drug induced state” when they collected X.[4]
[4] Affidavit of Mr R filed 29 September 2021, paragraph 22.
The parties separated on a final basis in May 2018.
X remained in the full-time care of the maternal grandparents for three weeks. After that the father put in place a new arrangement where her care was shared with the paternal grandparents. X spent Monday to Friday with her paternal grandparents and Friday to Sunday with her maternal grandparents. The father says that he travelled regularly to Sydney from Queensland to spend time with her. This arrangement remained in place until the father returned to Sydney on a permanent basis in September 2019.
In October 2018 the father was charged with offences relating to the alteration of a prescription. He pleaded guilty to three counts of utterance and received a fine but no conviction. Restrictions were then placed on his practise of medicine and his employment at Employer Z was suspended.
Between 2018 and 2019 the mother was charged with a range of offences by Queensland Police. These included possessing dangerous drugs, possessing utensils or pipes for use, fraud and obtaining or dealing with identification information. The mother was also present at the home of her then partner, Mr AA (“Mr AA”), when it was raided by a “SWAT team”.
In 2020 the mother plead guilty and was convicted in the Brisbane Magistrates Court of fraud, obtaining or dealing with identification information and supplying dangerous drugs. She was sentenced to six months imprisonment to be suspended for 15 months.
Between 2018 and 2019 the mother’s time with X was sporadic. She deposes that she travelled to Sydney on several occasions to spend time with X under the supervision of either the paternal or maternal grandparents.
In May 2019 the father returned to Sydney and moved into the parental grandparents’ home in Suburb BB. He continued to travel to Queensland for work one day a week.
In October 2019 the mother moved in with her parents in Suburb CC, Sydney before commencing a four week in patient drug rehabilitation program at DD Hospital. The mother was discharged from the program approximately one week prior to completion after using heroin. Under cross-examination the mother confirmed that she moved into an Airbnb in Suburb EE with Mr AA following her discharge.[5]
[5] Also see page 8 of Joint Consolidated Tender Bundle (“Tender Bundle”).
On 29 December 2019 the father took the mother and X to Suburb FF. The mother suffered a withdrawal seizure which resulted in severe fractures to her face. She was admitted to GG Hospital for treatment and discharged on 16 January 2020.
The mother attributes the cause of her seizure to the father’s conduct towards her in the days prior. She deposes that on 27 December 2019 the father took her to a motel in Suburb HH following an argument she had with the paternal grandparents. On 28 December 2019 the father took the mother to a different motel. She states that the father left her there and refused to bring her prescription medication or any food. She states that by this time she had not eaten for two days as she did not have any money to buy food. The mother claims that doctors at GG Hospital advised her that her seizure was likely caused as a result of not having taken her prescription medication, lack of food, heat exhaustion and anxiety.
Under cross-examination the mother further alleged that the seizure occurred as a result of a spiked drink provided by the father. In his written submissions the father contends that the allegation is demonstrative of the mother’s commitment to a “negative campaign” against him and an unwillingness to acknowledge her own behaviour.[6]
[6] Father’s written submissions filed 11 October 2021, p.26.
The mother claims the father did not facilitate time with X while she was in hospital. However, she also conceded in cross-examination that she told nursing staff not to let the father in as she did not want to see him. The father gave evidence that he took X to visit the mother on three or four occasions.
The maternal grandfather expressed concerns to nursing staff about the mother using drugs while on “gate leave” after he found a hash pipe in her belongings. GG Hospital notes also record that “[n]ursing staff reported [the mother] had allegedly taken heroin whilst on the ward”.[7]
[7] Tender Bundle, p.277.
The father initiated proceedings on 7 February 2020 in the Federal Circuit Court seeking sole parental responsibility, that X live with him and spend time with the mother pending urinalysis and hair follicle testing.
On 26 February 2020 interim consent orders were made by Judge Boyle for X to live with the father until the next return date and spend supervised time with the mother conditional upon the return of negative drug and urinalysis tests. An ICL was also appointed.
On 28 March 2020 the mother was admitted to an intensive rehabilitation program at DD Hospital. Her discharge summary dated 7 April 2020 notes that she attended “daily intensive group therapy and psychoeducational lectures and workshops addressing trauma, co-occurring disorders and relationship issues.”[8] It further notes that she “[e]ngaged well with program with DD Hospital and progressed well.”[9]
[8] Mother’s Affidavit, page 77
[9] Ibid.
On 18 May 2020 interim orders were made by Judge Boyle for X to live with the father.
On 30 July 2020 further interim consent orders were made by Judge Boyle for X to spend time with the mother supervised by the either of the maternal grandparents each alternate weekend and every Wednesday.
Following an interim hearing, orders were made on 25 September 2020 by Judge Boyle for X to live with the father and spend time with the mother each alternate week from Wednesday to Tuesday, and at other times as agreed, with all overnight time to occur at the home of or in the presence of the maternal grandparents.
On 31 March 2021 the father filed an interim application seeking sole parental responsibility concerning decisions relating to X’s engagement with the National Disability Insurance Scheme (NDIS) and attendance upon therapists.
On 9 June 2021 orders were made by Judge Boyle for a three day final hearing with respect to both parenting and property.
A Single Expert Report was prepared on 11 August 2021 by Ms E.
The matter proceeded over four days on 5, 6, 7 and 11 October 2021. A fourth day was added to allow for further evidence to be adduced in circumstances where the COVID-19 restrictions hindered the parties’ access to hardcopy subpoena material.
On 18 November 2021 the father filed an Application in a Proceeding seeking to re-open evidence in the final proceedings for the purpose of admitting the affidavit of the father sworn 18 November 2021.
The parties agreed to admit the evidence and each filed additional written submissions.
At the time evidence closed:
(a)The mother was living with her parents in Suburb CC. She intends to remain living with them long term.
(b)The mother has not re-partnered. She is not currently in employment.
(c)The father has recently moved to the parties jointly owned apartment in F Street, Suburb G.
(d)He was working as a health care professional at Employer JJ and tutoring at University. In 2021 he entered into a 6 month contract with a medical practice located in Suburb KK where he will commence work in early 2022.
(e)The father has not re-partnered.
PARENTING
Proposals
The mother’s proposal is contained in her Case Outline and be summarised follows:
(a)That X live with her.
(b)That the mother have sole parental responsibility for X.
(c)That X spend time with the father:
(i)each alternate week from after School on a Friday until 4.30 pm on Sunday;
(ii)one half of all school holiday periods; and
(iii)special occasions.
(d)Communication orders.
(e)That X be placed on the Family Law Watchlist and both parents be restrained from removing her from Australia.
(f)Injunctions on conduct in X’s presence.
(g)That the father attend upon a clinical psychologist for therapy for at least 15 sessions over a 12 month period to unpack the Circle of Security course and address his historical substance use.
The father’s proposal is contained in his Case Outline and can be summarised as follows:
(a)That X live with him.
(b)That the mother and father share parental responsibility for X save for decisions in relation to her health and therapy which will be the sole responsibility of the father.
(c)That X spend time with her mother:
(i)each Tuesday from 3.00 pm until Wednesday at 7.30 pm;
(ii)each alternate weekend from Friday after school until Sunday at
7.30 pm;
(iii)one half of all school holiday periods; and
(iv)special occasions.
(d)That X attend LL School if a place is available and in the event no place is available she shall attend MM School with the father to be responsible for paying the school fees and associated expenses.
(e)Injunctions restraining both parties from consuming illicit or prescription medication unless in accordance with a prescription and on recommendation of a medical practitioner.
(f)Random drug urinalysis once each month and random hair follicle testing on three occasions each year.
(g)Communication orders.
(h)The ability for both parties to travel interstate and overseas with X.
The ICL prepared a Minute of Order after evidence had closed. The ICL proposed the following parenting orders:
(a)That the mother have sole parental responsibility for X provided that she notify the father of her intention to make a long-term decision and invite comments regarding the decision and notify the father of any outcome.
(b)That X live with the mother.
(c)That X spend time with the father as agreed between the parents in writing and failing agreement, as follows:
(i)Each alternate week from after school on a Friday until 4:30 pm on Sunday commencing from 2022 Term 1, Week 1 and recommencing in the first week of each school term thereafter.
(ii)For one half of each school holiday period.
(iii)On special occasions.
(d)Communication and non-denigration orders.
(e)That the parties attend upon Ms D for therapy as to effective co-parenting.
X
Before applying the law information as to X, who is the child in these proceedings, needs to be captured.
The father describes X as “being very empathic and said she feels other people’s pain or joy.”[10] He also said she is “very loving and caring and friendly” and also “a bit mischievous and playful.”[11]
[10] Single Expert Report dated 11 August 2021, paragraph 53.
[11] Ibid.
The mother describes X as “a warrior”,[12] the “star of the home”,[13] and her “source of joy”.[14]
[12] Ibid, paragraph 114.
[13] Ibid, paragraph 117.
[14] Ibid.
X was diagnosed with a medical condition (a rare medical disorder) and developmental delay at eight months of age. She has high blood pressure, low iron, issues with muscle tone and fine motor skills, she has had moderate to severe speech delay and one kidney.
Her treatment includes regular speech therapy, physiotherapy, occupational therapy, blood pressure medication, and attendance at early intervention and school readiness classes.
A report by X’s physiotherapist dated 11 February 2021 notes that she has “made some nice progress with her motor skills over the last 12 months…[but] she continues to present with motor delays consistent with her diagnoses.”[15] Continued weekly physiotherapy, home exercise and engagement in extra-curricular activities were recommended.
[15] Father’s Affidavit, page 69.
X’s paediatrician Dr NN reported to the Single Expert that on his last review of her in April 2021 she was “stable”.[16] He suggested to the Single Expert that given her diagnoses he expected X to have “some difficulties with cognition and learning”.[17]
[16] Single Expert Report, paragraph 161.
[17] Ibid.
Ms OO, Assistant Principal at PP School reported to the Single Expert that X is “more school ready” than she was the previous year but that she should continue attending early intervention classes. She suggested that X would “cope with Kindergarten if she is offered appropriate orientation.”[18]
[18] Ibid, paragraph 162.
X’s first NDIS plan dated 13 May 2019 was managed by the father. As part of the father’s management of X’s needs he set up the following therapies/interventions:
(a)Occupational therapy;
(b)Speech therapy;
(c)Physiotherapy; and
(d)School readiness.
X’s therapies are agency managed through an NDIS plan. On 12 July 2021 the father made enquiries to change X’s NDIS plan to ensure the cost of all her current therapies would be covered. On 14 July 2021 the father received a response from the NDIS reviews branch indicating that the mother had not consented to changing X’s NDIS plan.[19] The mother gave evidence that she asked for the father’s request to be put on hold.[20] The mother asserts that the father intends to “maintain full control over X’s NDIS budget and disadvantage me.”[21]
[19] Father’s Affidavit, page 90.
[20] Transcript dated 7 October 2021, p.171 lines 3-4.
[21] Mother’s Affidavit, paragraph 160.
At the time of the hearing X’s weekly routine of therapy, care and education is as follows:
(a)Early intervention classes three times a week at PP School, Suburb QQ.
(b)Bi weekly 30 minute speech therapy sessions at Region RR Speech Therapy, Suburb SS.
(c)Weekly physiotherapy in Suburb O.
(d)Weekly school readiness classes at Region RR Learning Centre, Suburb O.
(e)Pursuant to the orders made by Judge Boyle on 25 September 2020, X lives with the father and spends time with the mother from 11.00 am on Wednesdays until 9.00 am on Tuesdays each alternate week.
The Single Expert conducted interviews on 3 June, 29 June and 16 July 2021. The majority of the assessment was conducted in person at the Single Expert’s consulting rooms on 3 June 2021. X was observed with both her parents in person and with the paternal grandparents via Zoom.
The Single Expert made the following observations as to X:
(a)She presented in a happy mood and “appeared to have a gregarious personality”.[22]
(b)She appeared “very relaxed and comfortable with her mother”. “The emotional atmosphere was fun and happy”.[23]
(c)She appeared “stiff and somewhat uncomfortable” with the father and while she “seemed happy enough, the emotional atmosphere was neutral, stiff, and not fun.”[24]
(d)She appeared “more comfortable” with the paternal grandparents when observed by Zoom at their home, “as evidenced by her chatting and exploring games/play.”[25]
(e)Her “strongest emotional connection is to her mother out of all family members, and…their relationship is comfortable and warm. Her relationship with Mr Marwah appeared lacking in emotional connection and/or affection.”[26]
[22]Single Expert Report, paragraph 141.
[23] Ibid, paragraph 147.
[24] Ibid.
[25] Ibid.
[26] Ibid.

The Single Expert made the following recommendations at page 63 of her report:
(a)Ms Harvey should have sole parental responsibility for X’s health and education;
(b)X should live primarily with Ms Harvey;
(c)Ms Harvey should continue to live with her parents for the next two years;
(d)Ms Harvey should continue to attend upon Mr TT (psychologist) for the next two years to provide monitoring and support. The frequency should be determined by Mr TT;
(e)Ms Harvey should ensure that X continues to attend upon suitable practitioners for speech therapy, occupational therapy and physiotherapy, and that she engages in early intervention and pre-school;
(f)X should attend upon a GP or paediatrician regularly who could take the role of managing her care, referrals and treatments. The parties be restrained from taking X to any practitioner or therapist without prior approval from that GP or paediatrician;
(g)Both parties should submit to HFT testing for the next 12 months, and the parties should authorise their GP to provide a copy to the other party;
(h)Both parties should continue to attend NA meetings;
(i)The parties should communicate primarily through Our Family Wizard unless it is an emergency, in which the other party should be telephoned;
(j)Mr Marwah should complete a Circle of Security course, frequently run through UU Families or VV Counsellors;
(k)Mr Marwah should also attend upon a clinical psychologist to unpack the Circle of Security course and apply the material to his parenting and his emotional connection to X. Therapy should also address his historical substance use, the reasons behind this, and relapse prevention strategies. He should attend at least 15 sessions of therapy over 12 months. The psychologist should be provided with a copy of the report;
(l)If Mr Marwah is able to ensure he can be available to care for X, X should spend time with him every second weekend for three night blocks (eg. Thursday to Monday or Friday to Tuesday) as well as time after school one afternoon in the off-week (eg. On a Thursday from 3pm to 6pm in the local area) and blocks of one week (or more if he has leave from work) each of the school holidays;
(m)Changeovers should be at school or in a public setting;
(n)The parties and all grandparents should be restrained from using physical forms of punishment.
The Single Expert was concerned that the father gave a very different story to her about his drug use, involvement in using another doctor’s prescription number and the professional and legal consequences. While he devoted extensive time in his affidavit to challenging many aspects of the report, the discrepancies in the father’s account of his drug use and consequences were not significantly challenged.
The law
Part VII of the Family Law Act 1975 (Cth) (“the Act”) guides the process in relation to the making of parenting orders. I am guided by the objects of the Act as set out in s 60B which provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Pursuant to s 60CA of the Act, the Court must regard the best interests of the child as the paramount consideration when making a parenting order.
Section 60CC(2) and (3) sets out the particular matters that I must take into account when determining the child’s best interests.
There are two primary considerations. As stated in s 60B, the best interests of the child are met by ensuring they benefit from both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests, and protecting them from physical or psychological harm, and from being subjected to or exposed to abuse, neglect or family violence.
The Court must balance the benefit to X of having a meaningful relationship with each parent with the primary consideration of protecting her from physical or psychological harm, from being subjected or exposed to abuse, neglect or family violence.
There are 13 additional considerations for determining what is in a child’s best interest, which are set out in s 60CC(3). I will address those which are relevant later in this judgment.
Parental responsibility comprises all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The scope is broad and includes decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4).
There is a rebuttable presumption in the Act that a child’s best interests are served by an order allocating equal shared parental responsibility to the parents of a child (s 61DA). However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)). The presumption may also be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)).
If an order is made allocating equal shared parental responsibility, the Court must consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in another way, then the Court has the discretion to make whatever orders it considers are in the child’s best interests.
Primary Considerations
Section 60CC(2)(a) of the Act requires me to consider the importance of X having a meaningful relationship with each of her parents. On the other hand, I must consider the issue of the risk associated with her being exposed to harm or abuse in the care of either of her parents.
There is no doubt that both parents enjoy a meaningful relationship with X and will continue to do so. They have played significant roles in her care and development since her birth apart from periods where she was in the care of her grandparents. The maternal and paternal grandparents have also played a significant role in her care when the parents were unable to. Since late 2018 the grandparents have been enormously supportive of the parents as they have each addressed their substance abuse issues. The parents should be enormously grateful for the care and love both sets of grandparents have given to X. X will benefit from the continuation of this.
The Court must also consider whether both parents are capable of sustaining a meaningful relationship with X in a manner that is in X’s best interests and without risk.
Given each party’s history of illicit and prescription drug use, there is a risk of relapse which potentially may lead to the risk of X being neglected in their respective care. The Single Expert concluded that “[i]f the parties accounts are accurate, then Mr Marwah has been abstinent since May 2018 and Ms Harvey has been abstinent since December 2019, suggesting a low risk of relapse for Mr Marwah and a moderate risk of relapse for Ms Harvey.”[27]
[27] Single Expert Report, paragraph 182(f).
Accepting the moderate risk of relapse by the mother, the Court is satisfied that at the time of the hearing this risk was low. This was based on a number of factors:
(a)Whilst the mother was cross-examined at length about the prescriptions for Modafinil that she had filled in late 2020 over a period of four months, there was no compelling evidence that could lead to the conclusion that her use of Modafinil was excessive and inconsistent with her treatment plan.
(b)The father alleged that the mother had cut and dyed her hair (to avoid hair follicle testing) and that she was not strictly complaint with the ordered drug testing regime. I was satisfied on the evidence that there was no indication of deliberate and wilful non-compliance by the mother and observe that every test undertaken by her has returned a negative result.
(c)The mother plays an active role in Narcotics Anonymous and All Addictions Anonymous, a support program offered to patients discharged from DD Hospital.
(d)The mother sees her psychologist, Mr TT, every two weeks who she was referred to following her treatment at DD Hospital.
(e)The mother lives with her parents, has immersed herself into her local community and appears to be both well scrutinised and supported.
The parties also complained about the medical attention received by X whilst in each other’s care. The mother holds a concern that the father over prescribes medication for X. She alleges that the father suffers from Munchausen by proxy. The mother believes the father has mismanaged and will continue to mismanage (on a clinical scale) X’s health needs. The father alleges that the mother interferes with X’s therapy and education. Some of the trial was dedicated to evidence on the mother’s administration of X’s blood pressure medication. There was no evidence that would allow me to draw the conclusion that X’s medication or medical condition has been mismanaged by either party. Nor do I identify this as a risk that needs to be mitigated against in a particular way.
The Court also needs to consider whether X needs to be protected from physical or psychological harm that she might be exposed to in either household. Whilst there is no doubt that X in her short life has been exposed to risks in the care of both parties, neither parties nor the ICL raised a concern that X will be exposed or subjected to abuse or family violence in either parent’s care.
However, the mother raised the following risk issues in relation to the paternal grandfather:
(a)The mother first mentioned her “concern” that X was being sexually abused, to the Single Expert.
(b)Some of this concern arose due to an incident where X became very distressed when the paternal grandfather attempted to collect her at a changeover. X’s reluctance to leave with the grandfather was also observed by childcare workers.
(c)The Single Expert observed that:
On the basis of the assessment, I have some concerns about X’s emotional reaction to Mr Marwah Snr, especially on the basis of her alleged disclosures to Ms Harvey about being smacked by the paternal grandparents and her vague disclosure (and her recanting) of being physically harmed by Mr Marwah Snr. I also have some concerns about whether she is appropriately supervised in the paternal home, given that Mr Marwah Snr suggested she spends time with the people he tutors. To that end, my opinion is that the paternal grandparents sign undertakings not to use physical discipline and not to allow X to spend time with other people unless she is supervised. This should reduce any risk of physical or sexual harm.[28]
(d)The mother did not particularise the basis of her concern about the paternal grandfather in her affidavit. She did not seek an injunction restraining the child being left alone with the paternal grandfather.
(e)The mother was pressed on the issue under cross-examination. She said “I am worried that the – the paternal grandfather is doing something to her, physically, and I can’t put my hand on it.”[29]
[28] Ibid, paragraph 182(a).
[29] Transcript dated 6 October 2021, p.120 lines 45-46.
The mother was brutally honest about her feelings on the topic. However, there was no evidence that would at its highest allow any findings to be made, or even support orders being made to restrain the paternal grandfather’s contact with X.
By the time of the final hearing X was no longer being left in the sole care of the paternal grandfather.
For the purposes of s 60CC(2)(b) of the Act, the evidence did not establish that X is at risk of any form of harm in either party’s household by reason of subjection or exposure to neglect, abuse, or family violence.
There is a positive benefit to X having a relationship with both of her parents. Therefore, the Court now needs to consider the relevant sections of 60CC(3) of the Act. This part of the Act sets out some additional considerations for determining what is in a child’s best interest. Not every consideration was the subject of evidence so only those relevant are the subject of discussion.
Additional Considerations
At the time of the preparation of the Single Expert Report X was almost six years old.
The Single Expert spoke very positively about the interaction and bond she observed between X and the mother. She observed a different dynamic and lack of engagement by X with the father and the paternal grandparents.[30]
[30] Single Expert Report, paragraph 144 and 145.
The father was critical of the Single Expert’s conclusions that X primarily identifies with her mother. He argued that they were made after a 15 minute interview with the child plus observations. He also argued that, in terms of the Single Expert’s assessment of the relationship between X and her parents, it is arguable there may have been a different outcome if the father had been assessed first. His presentation during the first AVL assessment the Single Expert agreed, was more relaxed. For this reason, the father asks that the Court be cautious about placing too much weight on the Single Expert’s assessment of the parents’ relationship with X.
Of note, the Single Expert also had discussions with WW Pre-School. She spoke with the Director, Ms XX and X’s teacher Ms YY for in excess of 40 minutes. She also interviewed Dr NN (Paediatrician) and Ms ZZ (Speech Therapist) as well as Ms OO (Assistant Principal at PP School, Early Intervention Class). These people gave their perspectives on the father and paternal family’s interaction with X. In cross-examination the Single Expert observed that they all had a fairly similar view: “X was more relaxed and comfortable with her mother, and that they had a – more of a warm and loving relationship than with – than between X and her father.”[31]
[31] Transcript dated 7 October 2021, p.201 lines 26-28.
X does have a close and loving relationship with her father. Notwithstanding that X has been in his physical care for a longer period in recent years when compared to the mother, her primary attachment is not with him. The Single Expert opined that this stemmed from the father’s absence, leading her to conclude that there was a “disparity between the image he portrays and the role he actually takes in X’s life”.[32] This opinion was supported by other evidence.
[32] Single Expert Report, paragraph 182(c).
At the time of the hearing X was in the care of the mother six days out of 14 but it was observed that she had transferred her attachment back to the mother. For this reason the Single Expert expressed the view that it would be preferable for her to live primarily with her mother.
The maternal grandparents are tremendous supports to both the mother and X, and they intend to continue living in the same household as the mother and X. However, the maternal grandfather’s focus on ensuring that the father is appropriately punished for his actions demonstrated a fixed and negative view of the father. Given the mother intends to remain living with her parents and X, there is a risk that this negative view filters down to X.
The relationship that X has with the paternal grandfather is complicated. The following observations were made:
(a)The Single Expert spoke to the Director of WW Pre-School who said she was “worried about the emotional well-being of X with the paternal family because [the father] is "not there" for X emotionally and the grandfather is not there at all".[33] She raised no child protection concerns.
(b)The Single Expert spoke to the Assistant Principal at PP School. She described a recent incident where the paternal grandfather picked X up from school and X was reportedly hitting and slapping him.
(c)In cross-examination the mother expressed the view that the paternal grandfather is a risk to X. She admitted that she had no evidence to support her belief.
[33] Ibid, paragraph 157.
The Single Expert concluded that X’s relationship with the paternal grandfather is more complex, “given her high level of distress when transferring to his care, and his apparent inability to empathise or soothe her. When played out on a day to day level over her childhood, this would lead to significant stress and problems in psycho-social functioning”.[34]
[34] Ibid, paragraph 182(c).
By the time of the hearing the father appeared to have taken steps to remove the paternal grandfather from the day to day care of X. The paternal grandmother gave evidence that she only provided assistance on Friday nights when X stayed over to allow the father to work a night shift. She has now returned to operating a business and does not have the availability she did during the COVID-19 lockdown restrictions. While the father gave evidence that he was now taking full-time responsibility for the day to day care of X, the Court was left unclear as to who was now, or would support him longer term.
In his affidavit of 18 November 2021 the father says that once he commences work in Suburb KK he will not be dependent upon his parents and he will be available to care for X before and after school. The mother does not work and is available to care for X on a full-time basis.
Both parties abused prescription and prohibited drugs over a number of years. Their drug usage appears to have increased after the birth of X. This affected their parenting capacity and their responsibility as parents.
The father took steps to address his drug abuse much sooner than the mother and has not used illicit or prescription drugs since May 2018. He removed X from the risks and organised childcare and early intervention and therapeutic services. He travelled to Sydney regularly to spend time with X.
When the parties separated in May 2018 the mother remained living in Queensland and did not address her serious drug addiction. In 2018 she was charged by Queensland Police with two counts of possession of dangerous drugs. In 2019 she was charged with fraud, obtaining or dealing with identification information, supplying drugs, possessing drugs, possessing property suspected of being used in connection with the commission of a drug offence, and failing to take reasonable care and precautions in respect to a needle or syringe.
During this period she was in a de facto relationship with Mr AA which can best be described as problematic. There were several police raids on their home.
She visited X in Sydney on only two occasions in 2018.
While she initially sought rehabilitation in October 2019 this was unsuccessful and she appeared to have continued to engage in drug use. As a result, on 26 February 2020 orders were made by consent for her to have limited supervised time with X.
Since then, the mother has completed an impatient rehabilitation program in respect of drug addiction disorder. She has taken the opportunity to play a significant role in X’s care.
The father managed medical appointments and day care for X between May 2018 and his return to Sydney in March 2019. During this time responsibility for her physical care fell to the paternal grandparents although the maternal grandparents had considerable involvement in X’s life.

There were short periods of time between March 2019 and February 2020 when the mother lived at the home of the paternal grandparents. However, it is unclear what her day to day involvement in X’s life was.
From February 2020 the mother began to have a more regular and structured involvement in X’s life, initially under supervision. When her time was extended in September 2020 it would appear that she began to have more involvement in her activities because the orders allowed the mother to come into contact with her therapists and day care workers.
There was considerable evidence that the father did not consistently take responsibility for X’s physical day to day care, and that it was more likely that her needs were attended to by the paternal grandparents.
For example, due to COVID-19 the father was required to work in Queensland for the period 19 August 2020 to 2 October 2020. He did not advise the mother that he would be absent from Sydney and that X would be in the full-time care of his parents. He filed an extensive affidavit for the purposes of interim proceedings on 18 September 2020 and made no reference to his physical absence from Sydney. Nor did he advise the Court of this when the matter came before Judge Boyle for interim hearing on 25 September 2020.[35]
[35] Transcript dated 5 October 2021, p.14 lines 39-44.
Arguably this non-disclosure was made more dishonest by the sign-in arrangements for X at WW Pre-School, Suburb O. On drop off and collection she is required to be signed in and out by the person who delivers and collects her. However, the records for this period indicated it was the father who personally delivered and collected her. The mother was only alerted to the issue when the staff at WW Pre-School asked after the father who they said had not been seen for some time. She then confronted the father about it.
In his affidavit filed 29 September 2021 the father disclosed the details of his absence from Sydney. He was also critical of the mother’s 24 attempts to speak to him on 13 September 2020 after she had been alerted to his absence by the childcare centre. Under cross-examination he was asked about it. He agreed that the affidavit he filed with the Court on 18 September 2020 did not tell the Court he was required to stay on the Region AAA, which he accepted was required of him. In response to a question about why he did not inform the mother he was living out of Sydney in 2020 he stated: “I was scared that if it was found that I wasn’t in Sydney, that I would lose time with my daughter”.[36] When asked if he thought this was respectful to the mother, he responded “it was dishonest”.[37] Whilst I accept that his answer to this question was genuine, his conduct when dealing with the mother, the Court and the Single Expert, was not always honest and indeed at times disingenuous.
[36] Transcript dated 5 October 2021, p.15 line 35.
[37] Transcript dated 5 October 2021, p.15 line 40.
Similarly, the father gave inconsistent accounts of his working arrangements and the impact that this had on the time that X spent in his care.
(a)The father deposed that he “assumed full-time care of X” from March 2019.[38]
(b)The father told the Single Expert that he took X to her therapeutic appointments which were occurring sometimes twice each day. He admitted to having some help from his parents. She observed that:
This account did not accord with that of the therapists or pre-schools. Both pre-schools indicated that they rarely see Mr Marwah, and that Mr Marwah Snr collects and drops off X 90% of the time. Similarly, the speech therapist indicated that Mr Marwah Snr has been more involved than Mr Marwah in pick ups and drop-offs.[39]
(c)He told the Single Expert that he worked a mixture of day and night shifts, and claimed that he can organise his work around when he does not have X in his care. When the Single Expert met with his parents for their interview a few weeks later she noted they advised that the father had moved out of home and that he was also working at the practice each Saturday.
(d)There was no explanation given for why X had not attended WW Pre-School since August 2021. At the date of the hearing, the father had moved with X to F Street, Suburb G. F Street, Suburb G is approximately 40 minutes from Suburb BB. His mother said that they had only assisted in X’s care on Saturday mornings. There was no explanation for who was caring for her when the father was at work on other days that she was not at WW Pre-School. It is unclear whether he has taken leave, engaged the services of a nanny or re-enrolled her in a centre closer the home, and the mother does not know. There was a general evasiveness about his evidence on this.
[38] Father’s Affidavit, paragraph 31.
[39] Single Expert Report, paragraph 47.
Since February 2021 the father has leased accommodation in F Street, Suburb G. He says that X stayed with him at the home of the paternal grandparents during the week (5 days per fortnight) and in his sole care each alternate weekend in F Street, Suburb G (3 days per fortnight) and with the mother for the rest of the time (6 days per fortnight).
I find that the paternal grandparents were heavily involved in X’s care and generally more available than the father to attend changeovers and to deliver and return X to and from day care facilities. There is no need for a finding to be made on the percentage of care they provided. However, since February 2021 the mother seems to have been the most constant adult present in X’s life, consistent with the observations of attachment made by the Single Expert.
X is a child of Indian and Anglo-Saxon descent. She has lived in an Indian household since separation at the age of 2 years and 9 months old, and any orders made should ensure that she continues to take part in Indian culture and tradition.
Since X was diagnosed with a medical condition at 8 months of age, the father has been the parent who generally organised her medical and therapeutic treatment, educational requirements and managed the NDIS process. He is to be commended for his diligent approach, commitment and planning on these issues.
The mother complains that she felt excluded from X’s treatment and development during the marriage and post separation. Clearly from around February 2020 the mother began to seek a more active role. This has been a source of tension between the parties from this time onwards, especially when the mother set up a “parallel system” with therapists in 2021. This now leads to their competing applications for parental responsibility which will be addressed later.
The mother has made no direct financial contribution to the maintenance of X to the father. The father has met medical and therapeutic costs that are outside the NDIS scheme as well as considerable childcare fees.
In 2021 when the mother arranged for X to see a range of therapists closer to her home, she (or more likely the maternal grandparents) paid for all of those sessions as they were not included on the NDIS plan.
The father cancelled the family Private Health Insurance Policy in June 2019 and since August 2019 she and X have been covered under a policy paid for by the maternal grandparents. This appears to be a reckless action on the part of the father given X’s medical condition and special needs.
In terms of the likely effect of any changes in the child’s circumstances, from around June 2018 until recently, the paternal grandparent’s family home in Suburb BB has been the place of residence for X. Just prior to the hearing she moved to F Street, Suburb G with the father on a full-time basis and shortly after the hearing she again moved to the apartment jointly owned by the parties in F Street, Suburb G.
X commences school in 2022. The parties are in disagreement about the school that she will attend. X attends upon a range of therapists including occupational therapy, physiotherapy, and speech therapy. The father now proposes that they change the therapists X is engaged with so they are closer to home.
In short, X is about the face a range of changes in her life brought about by these events. Whilst the Court needs to decide with which parent she will reside, there is nothing to suggest that she will not continue to enjoy a close and loving relationship with both parents, wherever she lives.
The father lives at F Street, Suburb G. The mother lives at Suburb CC. The mother says that her parents will build a granny flat on their property and she plans to remain living there long term.
The mother is available to transport X to and from school and therapeutic appointments. However, she is concerned about the impact of the travelling time on X due to her medical needs.
To overcome practical difficulties, the father’s preference is for X to commence kindergarten at LL School this year. In addition to staff ratios, he is attracted to the ability of X’s therapists to provide therapy to X at school.
The journey from Suburb CC to Suburb LL is in excess of one hour. However, the journey from F Street, Suburb G to Suburb LL is shorter and can be undertaken in around 30 minutes.
The father has secured employment in Suburb KK from February 2022. His contract of employment requires him to work a 28 hour week including Monday to Friday between 8.00 am and 6.00 pm as well as each Saturday between 8.00 am and 1.00 pm.
The respective capacity of each parent to provide for the needs of X must be considered. It is clear that both parents have worked hard to address, in an appropriate fashion, the drug issues that impacted on their capacity to parent X. They both intend to remain actively engaged with and support X in the future. However, they each raised concerns about each other’s parental capacity that need to be considered.
While the father has displayed his ability to put in place and manage the physical needs of X, the Single Expert concluded that this did not “translate to him being present and available, and/or responsive to her needs”.[40] She concluded that he had “several serious deficits in his parenting capacity”.[41]
[40] Ibid, paragraph 174.
[41] Ibid, paragraph 173.
As highlighted above, throughout the proceedings (including with the Single Expert) the father’s evidence about his physical care of X from separation to the trial at times lacked candour. He gave a skewed account of his parent’s involvement in the care of X and his own availability. He was dishonest about his absence from NSW in August 2020. The Court is not satisfied that he has provided a full account of X’s day to day care arrangements. While he presented a very comprehensive and well-conceived plan for X’s physical care into the future, the Court was left concerned that he may not be physically present to meet X’s needs.
The father also demonstrated that he was prepared to manipulate situations and events to his advantage. During the marriage he used his position as a health care professional to prescribe an array of drugs for the mother without a treatment plan. He was charged with altering prescriptions which led to restrictions being placed on his practice of medicine and his employment being suspended. The Single Expert was critical of the discrepancies in the father’s account of his drug use to her. The Court heard evidence about the mother’s approach in 2020 to have X enrolled at BBB School, where she is an “old girl”. Within days of the mother appropriately raising the issue with the father, he directly contacted the school and somewhat unnecessarily provided them with a copy of the interim orders and a range of reports from therapists. His communication with the school prompted them to withdraw their offer of a place to X. It also left the mother embarrassed as she felt that he had unnecessarily highlighted her substance abuse difficulties. Notwithstanding the father’s explanation for his actions, they highlighted a lack of care towards the mother, her reputation and her decision making. His actions effectively closed the door on what might have been a reasonable schooling option for X.
The Single Expert raised concerns about the lack of warmth or emotional connections between the father and X. The father’s lack of “emotional attunement”, [42] as described by the Single Expert, was also observed during the proceedings. The father for example displayed little empathy for X nor insight into the impact of his behaviour on her or the mother. An example of this was when X fell ill over the Mother’s Day weekend in 2021, yet the father insisted that she be taken on the one hour car journey to childcare, and be delivered to the classroom.
[42] Ibid, paragraph 175.
The father argued that an important issue for the Court to consider is which party is best trusted to oversee X’s treatment regime. He contends the mother has not demonstrated an appropriate attitude to parenting and specifically to meeting the health needs of X. To support this he directed the Court to the following:
(a)Her “parallel” therapy system meant X received one session of speech therapy, early intervention and physiotherapy less than was recommended, (despite acknowledging that such intervention was crucial for X).
(b)The mother’s failure to communicate with certainty her understanding of the administration of X’s blood pressure medication.
(c)The mother’s approximate six week delay in providing the father with details of X’s speech therapist.
(d)The mother’s failure to include the father’s details on an enrolment application for CCC Preschool on 11 November 2020.
Ultimately there was no evidence to suggest that any of this had a negative impact on X. The father did not consent to X attending CCC Preschool. The parallel treatment regime reduced the 3 hours of travel for X for each therapy session. Evidence was tendered from the physiotherapist and occupational therapist who supported the mother’s decision. The occupational therapist observed: “I do not feel it is in any child’s best interests to be driving that far for a therapy appointment…”[43]
[43] Mother’s Affidavit, page 98.
The mother gave frank evidence about these matters and there was nothing to suggest that she would take steps to jeopardise her daughter’s health. I cannot make a finding that the mother has failed to make sound and responsible decisions for X since her successful completion of the drug rehabilitation program.
However, the issues raised by the father are perhaps indicative of the mother’s disregard for him and their poor communication. At times in her evidence the mother displayed contempt for the father and the Court was left with a concern that this might lead to X’s exposure to the parental conflict in later years and/or her limiting the father’s involvement in her life.
The mother and the maternal grandfather were strident in their desire to see the father suitably (and further) punished by his professional body AHPRA, even if the potential consequences might impact upon his livelihood. The mother was somewhat dismissive of this, saying that she did not want him to be deregistered but that assistance through AHPRA “will make him a better person and a better father”.[44]
[44] Transcript dated 6 October 2021, p.133 lines 35-41.
The concerns she expressed about the paternal grandfather also left the Court to question what impact this might have on her capacity as a parent and her willingness and ability to facilitate a relationship with the father and his family. When she was asked about this by counsel for the ICL she gave a considered and appropriate response along the lines that she seeks stability for X and does not seek to exclude the father from her life.
Conclusion as to parenting Orders
Parental responsibility
The mother seeks an order for sole parental responsibility to avoid further conflict over decision making and the father seeks to exercise sole parental responsibility for decisions about X’s health for similar reasons.
The presumption of equal shared parental responsibility is not rebutted by any findings about the existence of family violence. However, it is rebutted because it is not practical for the Court to make an order for equal parental responsibility on all aspects of decision making for X and an order to that effect would not be in X’s best interests.
The parties’ relationship is acrimonious. They agree they do not communicate well. They have little trust in the decisions the other makes. They have demonstrated an inability to make joint decisions to best meet X’s needs. I am satisfied they lack the capacity to communicate in a respectful or meaningful way.
In the circumstances, I could not be satisfied the parties could appropriately consult each other and make a genuine effort to come to a joint decision regarding X’s long term care, welfare and development. This was the consistent view of the mother, the ICL, and the Single Expert. Consequently, s 65DAA of the Act is not engaged and may be disregarded.
X is a child with special medical needs. Her medical condition needs to be managed in a way that supports her to thrive. Issues such as distance between therapists and X’s home and school will be critically important. As will the establishment of one plan for her treatment and therapy, as opposed to parallel systems.
The Court is faced with a difficult decision. If parental responsibility was placed with the father I am satisfied that he would make informed decisions about X’s health, because he is a qualified health care professional and wants what is best for X. The father has done an excellent job to date in setting up an appropriate regime to manage X’s medical needs.
However, the decisions he has made to date have tended to exclude the mother’s involvement and had little regard for the practicality of the mother’s physical involvement. The decisions he has made have also been influenced by the father’s convenience (and that of his family members involved in X’s care) because of the need for manageable care arrangements, as opposed to what might be best for X.
For the past two years the mother has shown herself to be the parent who is more involved in the day to day aspects of X’s life. She is the more familiar parent to X’s educators and therapists. She has made good and informed decisions for X and they have been more focussed on what is in X’s best interests.
There is a risk that the father, if allocated parental responsibility, would disregard the mother’s views. It is possible that he would place his needs over X’s best interests. Alternatively, if parental responsibility was shared, that he might manipulate outcomes that he prefers, as demonstrated by his conduct with BBB School which led to the withdrawal of an offer of a place at the school for X.
The Court is required to make orders that are least likely to lead to further proceedings and for that reason, an order for sole parental responsibility is an appropriate one to consider. I also have to consider whether this should only be for some aspects of long term decision making or for all of them.
The parents come before the Court at odds over issues regarding the medical and therapeutic treatments for X as well as her future schooling. There needs to be a mechanism to resolve impasses in decision making about these issues. I propose to order that the parents have equal shared parental responsibility about major long term issues other than health and education. While a joint decision will be required about other major long term issues, I consider the likelihood of dispute about such matters to be less likely, and in this way the father is not excluded from the decision making process.
The mother and the ICL sought an order for sole parental responsibility to the mother on the basis that the mother shall, before making a long-term decision, notify the father of her intention to do so, invite feedback and notify the father of any outcome. I will make an order to that effect.
The effect of such an order is that, in the event that there continues to be an impasse, the mother will make the final decision about the school that X is to attend commencing 2022.

I might also add that this conclusion does not act to remove the father’s involvement in X’s health and education. He will still be free to attend all appointments and events and receive information about X’s progress. An order will be made to this effect.
Live with
Flowing from this, the Court has decided that it is X’s best interests to live primarily with her mother. This is consistent with the position of the mother, the ICL and the Single Expert. It is with the caveat that the mother remain living with her parents for the next two years on the basis that they will continue to provide excellent support and stability to the mother and X. The mother consents to this.
I find that the mother is the parent best placed to care for X on a full-time basis. While the father has actively sought out employment that allows him to manage X’s educational and health needs, his proposal still results in X spending long periods of time in the care of others, and presumably before and after school providers.
The mother has the capacity to attend to X’s special medical needs and has shown herself to be committed to doing so. I am also satisfied that the mother will ensure that X is raised in a loving and secure environment with the support of her grandparents but with regular exposure to the father.
In arriving at this decision I have considered the attitude displayed by the mother (and the maternal grandfather) towards the father and the impact this might have on X in the future. The mother values the father’s role in X’s life and I hope that once these proceedings are at an end she will continue to support X having a close and loving relationship with the father. I will in addition require the parties to separately attend upon Ms D for therapy as to effective co-parenting. Such therapy should be for such duration and length of time that Ms D recommends.
Spend time with
The ICL and the mother proposed that the father spend time with X each alternate weekend from after school on Friday until Sunday afternoon. This proposal was put forward prior to new evidence being received about the father’s new employment arrangements.
The father’s new employment contract requires him to work 28 hours each week, and presumably he will be rostered to work between the following hours: Monday to Friday between 8.00 am and 6.00 pm and on Saturday mornings between 9.00 am and 1.00 pm.
His new working arrangements will presumably afford him more time to spend with X as both his contract hours and travel hours appear to have reduced.
The father did not put before the Court an alternative position in the event that his application for X to live with him was unsuccessful. While the new evidence indicated his increased capacity to be physically present when X is in his care, the Court was left uncertain about his flexibility and any other employment and training commitments. Similarly, X is about the start school and the father’s availability to spend time with her during the week will be impacted by both his work hours, the school she attends and the ease of her transition to school.
There is no reason why he should not be spending at least each alternate weekend with X as well as one half of each school holiday period. In addition, the orders will allow the parties to reach agreement about additional periods of time the father may spend with X by agreement. No orders about mid-week time could be made in circumstances where there was no evidence on what arrangements would be workable for the parties and in X’s best interests.
Orders will also be made to ensure that both parents are able to spend days of special significance with X.
Education
The mother has applied for X to attend DDD School. The father has enrolled X in MM School in Suburb G. X will have the assistance of a teacher’s aide in the public system but this resource will be shared with other students.
The father had dedicated time to making enquiries about other options for X’s schooling. He proposes that X commence kindergarten at LL School in 2022. It is in close proximity to his residence in F Street, Suburb G and employment in Suburb KK. X would also receive her therapeutic interventions at the school.
The difficulty in arriving at a conclusion now is that it is not clear what impact X’s medical condition will have on her ability to travel independently and participate in mainstream schooling in the long-term. This will become clearer over the next few years. The Single Expert indicated a preference for X’s school to be closer to the parent she lived with on a full-time basis. She observed that “I would have concerns about X having to travel extensively if she was in a relatively equal shared care arrangement, because that puts a lot of burden of travel on her, particularly as a young girl…with additional needs”.[45] It is a 33km journey between Suburb CC and Suburb LL, and without traffic events it is realistically a two hour round trip. For now this outcome may not be in X’s best interests, and I therefore decline to make such an order. This does not mean that X will not at some stage in her schooling attend LL School. Perhaps the mother has been persuaded that it is an excellent future option. However, it is for the mother to exercise parental responsibility in consultation with the father to arrive at a final decision on schooling.
[45] Transcript dated 7 October 2021, p.208 lines 5-8.
Ancillary parenting orders
The ICL proposed a range of additional orders, including restraints from denigrating any member of the other’s household and consuming or being under the influence of illicit or prescription drugs unless in accordance with a prescription and the recommendations of a medical practitioner treating that party. These orders are appropriate and will be made.
The father additionally sought a further regime of drug testing. I have not made such an order because it seems unnecessary, costly and invasive. The parties have now been abstinent for over two years, and have a range of supports available to them.
There was also a range of orders sought about the matters the parties should communicate on including that the parents will communicate through the “My Family Wizard” App. The orders were not controversial and will be made.
The father seeks an order that the parties be permitted to travel internationally with X. These orders were opposed by the mother, who seeks an order for X to remain on the Family Law Watchlist.
There is no evidence to suggest that the father is a flight risk or that a watchlist order is necessary. It was conceded by counsel for the father that if no order is made in respect of international travel the parties can negotiate this between themselves or make an application if they seek to travel. Both parties should equally enjoy the opportunity to travel on an overseas holiday with X in the future. An order will therefore be made permitting a passport for X to issue at the requesting parties’ expense and the mother shall hold the passport when X is not travelling.
While the mother sought a general injunction for the protection of X there was insufficient evidence before me to warrant such a restraint, and this ultimately was conceded by counsel for the mother.
PROPERTY
Almost no time was spent in the course of the hearing on the areas of dispute between the parties in terms of the division of the matrimonial property. Perhaps this should not be surprising due to the minimal value of the net assets in dispute.
Proposals
The mother proposes that:
(a)She be paid the sum of $240,000.
(b)Upon payment of that sum she transfers her interest in F Street, Suburb G, NSW (“F Street, Suburb G property”) to the father.
(c)The father be declared the owner of the property situated at H Street, Suburb J, QLD (“H Street, Suburb J property”).
(d)The father return to her all her personal belongings currently in the possession of the father including clothing, personal records and documentation including original University Degrees, Australia Passport and items of jewellery currently in the father’s control and/or possession.
(e)That the parties retain all other real and personal property in their ownership or possession including their superannuation entitlements.
The father proposes that:
(a)He pay the mother the sum of $50,000 over a three (3) month period and then the mother transfers her interest in the F Street, Suburb G property to him.
(b)A super splitting order in the mother’s favour in the sum of $50,000.
(c)The parties retain all other real and personal property in their ownership or possession including their superannuation entitlements.
The law
Four step approach
In determining property matters consideration must be had to Part VIII of the Act and in particular ss 75, 78 and 79. The alteration of property interests between two parties to a marriage is governed primarily by s 79 of the Act.
The first question that must be asked as articulated by the High Court in Stanford v Stanford (2012) 247 CLR 108 at [37] is whether “it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.”
In considering what orders are appropriate to be made I will follow the four step process in accordance with the Full Court decision of Hickey & Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143 at [39] which is summarised as follows:
(a)Identify and value, as at the date of hearing, the parties’ property, liabilities and financial resources;
(b)Identify and assess the parties contributions pursuant to s 79;
(c)Identify and assess the parties ongoing needs taking into account the relevant factors relevant under ss 79 and 75(2); and
(d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances of the case.
I must also consider s 81 of the Act which has the practical effect of requiring the Court to endeavour to make orders that finalise the financial relationship between the parties.
It is important to also note that I am not required to adopt a strictly mathematical approach in determining the alteration of property interests, as discussed by Nygh J in G & G (1984) FLC 91-582.
Preliminary issues
I find that this is a matter where it is just and equitable to determine a property division. The parties have been separated since 2019 and both request a property division. There will no longer be any common property available for shared use by the parties.
Assets and liabilities
The parties submitted a Joint Balance Sheet. The Joint Balance Sheet identified a range of assets and liabilities existing at the date of the hearing. There was agreement that some of the assets and liabilities contained in the Joint Balance Sheet should be disregarded because they arose post separation.

195 Ownership

Description

Father’s value

Mother’s value

Assets

1 H H Street, Suburb J QLD (“H Street, Suburb J”) $550,000 $550,000

2 J
F Street, Suburb G NSW (TIC in equal

shares) (“F Street, Suburb G”)
$1,100,000 $1,100,000

3 H Westpac Choice account number …52 $2,333 $2,333

4 H
Westpac Home loan offset account # …52

(H Street, Suburb J)
$1,041 $1,041

5 W Sale of Motor Vehicle 1 to wife’s father (not yet paid to wife) $8,200 $8,200

6 H Sale of Motor Vehicle 2 (disposed of 21/12/2009) $10,000 $10,000

7 W Indian wedding jewellery $3,000 $nominal

8 W Engagement Ring $15,400 $Nil with Father

9 W Westpac Choice Account (…84) nom nom

10 W W Bank $47

Total $1,689,974 $1,671,574

Addbacks

11 H Withdrawal from K super 8.7.2020 $10,000 $10,000

12 W Withdrawal from EEE Super 1.11.2019 $6,055 $6,055

Total $16,055 $16,055

Liabilities

13 W Outstanding legal fees for criminal matters $10,163 $20,000

14 H W Bank Visa card #...66 $8,560 $8,560

15 H Westpac Low rate MC #...49 $9,354 $9,354

16 H Westpac Home loan account# …88- H Street, Suburb J $505,246 $505,246

17 J W Bank Home loan account 2700 $869,483 $869,483

18 H Loan from parents (no adjustment sought) $85,500 $Nil, Disputed

19 H Tax Liability FYE 2021 $21,168
No disclosure

provided

20 H Tax Liability FYE 2020 $7,334
No disclosure

provided

21

Total $1,516,808 $1,412,643

Superannuation

Member
Name of Fund Type of Interest Father’s value Mother’s value

22 H K Super Accumulation $76,342 $76,342

23 H FFF Super Accumulation $17,000 $17,000

24 W EEE Super Accumulation NK $Nil

Ownership Description Father’s value Mother’s value

Total
$93,342 $93,342

Following some concessions made by the legal representatives for the parties on the final day of the hearing, agreement was reached that the assets and liabilities that should be included in the matrimonial pool for division related only to the real estate and superannuation entitlements.
The parties therefore accepted that the pool available for distribution was:

Assets $ Value

H Street, Suburb J Qld (“H Street, Suburb J”) $550,000

F Street, Suburb G NSW (“F Street, Suburb G”) $1,100,000

Total $1,650,000

Liabilities $ Value

Mortgage over H Street, Suburb J $505,246

Mortgage over F Street, Suburb G $869,483

Total $1,374,729

TOTAL NON SUPERANNUATION ASSETS $275,271

Superannuation assets $ Value

Father’s K Super $76,342

Father’s FFF Super $17,000

Total $93,342

TOTAL MATRIMONIAL POOL $368,613

Contributions

At the time of the marriage the parties were both employed on a full-time basis and earned similar incomes.
The father states that his initial contributions consisted of up to $50,000 in superannuation entitlements and savings of up to $160,000 plus an Motor Vehicle 2 which was disposed of post separation.
The mother states that when the parties commenced living together she had savings of $30,000. She says she used a substantial part of those savings to contribute towards the purchase of F Street, Suburb G in November 2015. The mother provided no corroborative evidence to support this.
This was challenged by the father who said that the $30,000 she referred to was her Country T superannuation entitlements which became available to her sometime in 2015 and then these funds were used towards cosmetic surgery and procedures to her face and arm.
F Street, Suburb G was purchased jointly by the parties in September 2015 for $960,000. The father argues that he paid the deposit, stamp duty, and legal fees from his Commonwealth Bank account. He evidences this with a bank statement showing the payment of the stamp duty and legal fees together with the settlement statement from the conveyancer.
He says the deposit (in its entirety) came from his savings which was sitting in his parents’ bank account that had accumulated in the two years before marriage.
Due to the complex accounting method of the father it is difficult to ascertain what savings he brought into the marriage. I accept the father’s evidence that he made the greater initial contribution towards the purchase of F Street, Suburb G and accept that some of the savings were acquired during the marriage. Ultimately, in circumstances where the father was unable to accurately quantify his actual pre marriage contribution, it is not for the Court to do this for him.
It is necessary to weigh and assess all of the contributions made by each of the parties and translate this into a percentage of the overall property of the parties.
The mother argues that the parties’ contributions are equal in circumstances where there was a short relationship and neither made a substantial initial contribution. Therefore a 50% assessment of contributions is warranted.
The father argues that he made the greater financial contribution at the commencement of the relationship, has consistently worked on a full-time basis and has also managed and maintained both of the properties since they were acquired. In addition, he argues that X has primarily been in his care since 2019 and he has been responsible for her needs. He therefore argues that his contribution based entitlement is 80% to the mother’s 20%.
Having regard to the evidence, the contributions of each party are properly reflected by making an adjustment of 40% in favour of the mother and 60% in favour of the father.
Future needs
The parties are each 35 years of age and are now in good health.
The father is in full-time employment as a health care professional. The mother has not been in full-time paid employment since X was born. Her capacity for full-time employment is more limited now that X will be in her full-time care.
The father has greater superannuation entitlements (albeit modest).
The mother seeks a 50% adjustment in her favour for the following reasons:
(a)The father is a high-income earner and his income will likely increase significantly as his career progresses.
(b)The father will be able to make significant contributions to his superannuation.
(c)The effect of the parties’ marriage was that the mother gave away her career in Country T.
(d)X has special needs and it is likely that the mother will remain outside of the workforce except for casual low paid income for many years.
(e)The equity in the non-superannuation pool is low.
The father conceded there should be an adjustment in favour of the mother of up to 20%. He argued that it should be limited because he has significant liabilities arising from a debt to his parents, tax liabilities for 2020 and 2021 and credit card debts.
When the above matters are considered, the factors under s 75(2) of the Act warrant an adjustment being made in favour of the mother on the following basis:
(a)She will be X’s primary carer for another 12 years.
(b)X’s special needs require intervention and support which the mother will provide but in doing so will compromise her earning capacity.
(c)The father will continue to work towards re-establishing himself and has sufficient working years to accumulate more superannuation for his future security.
An allowance of 20% will be made in the mother’s favour considering those matters set out above.
This will provide the mother with a division of 60% and the father with a division of 40% of the matrimonial asset pool.
Superannuation
The parties did not make submissions as to whether their superannuation entitlements should be treated separately from assets. The father gave evidence that he had brought into the marriage $50,000 of superannuation of which $10,000 was recently released to him. No evidence to contradict this was led.
I find it is appropriate for the superannuation interests of the father to be differentiated from other matrimonial assets and instead divided in a ratio of 60% to the father and 40% to the mother. In doing so the Court has regard for the greater initial and post separation contributions to the superannuation by the father, but is not placing as much emphasis on the future needs of the mother as it will be many years before she can access her entitlement.
That finding necessitates a superannuation splitting order from the father’s K Super. The mother is therefore entitled to superannuation of $37,336. A super splitting order will be made requiring the father to transfer to her superannuation to the total value of $37,336.
Conclusions on property
It is appropriate to step back and consider the proposed orders as a whole in the circumstances of the case. I am satisfied they are just and equitable.

I find that a division of 60% to the mother and 40% to the father is a just and equitable division of the matrimonial property pool.
The issue then is how that is to be achieved. There is a property pool of $275,271 for distribution. Should the father wish to retain the F Street, Suburb G property he will need to pay the mother the sum of $165,162.00. In the event that he is unable to refinance F Street, Suburb G, I will make an order for the property to be sold and for the mother to receive this amount on settlement of the sale. In addition, should the net proceeds of sale of F Street, Suburb G be insufficient to pay out the mother, H Street, Suburb J will be listed for sale.
The mother sought an order that the father return to her a range of personal belongings she says are in his possession and control. No evidence was led as to the existence of these items or their current whereabouts. I will make an order that the parties return to each other any personal items in their possession and control but other than that, they will each retain all other real and personal property in their ownership.
Accordingly, I make the property orders as set out at the start of these reasons.

I certify that the preceding two hundred and twenty-four (224) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse.
Associate:
Dated: 2 February 2022

File number(s):	SYC 793 of 2020
Judgment of:	JUDGE BECKHOUSE
Date of judgment:	2 February 2022
Catchwords:	FAMILY LAW – PARENTING – Where the child has a diagnosis of a medical condition which requires regular therapy and ongoing medical care – where both parties have a history of illicit and prescription drug use – equal shared parental responsibility save for the mother to have sole parental responsibility in relation to health and education – child to live with mother. FAMILY LAW – PROPERTY – Alteration of property interests – short marriage – modest asset pool – superannuation splitting order.
Legislation:	Family Law Act 1975 (Cth), ss.60B(2), 60CA, 60CC(2), 60CC(3), 61DA, 65DAA, 65DAC, 75(2), 78, 79
Cases cited:	G & G (1984) FLC 91-582 Hickey & Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143 Stanford v Stanford (2012) 247 CLR 108
Division:	Division 2 Family Law
Number of paragraphs:	224
Date of last submission/s:	1 December 2021
Date of hearing:	5, 6, 7 and 11 October 2021
Place:	Sydney
Counsel for the Applicant:	Ms Kennedy
Solicitor for the Applicant:	Tiyce and Lawyers
Counsel for the Respondent:	Mr Givney
Solicitor for the Respondent:	McGrath Dicembre & Company
Counsel for the Independent Children's Lawyer:	Mr Hill
Solicitor for the Independent Children's Lawyer:	Kathryn Renshall Lawyers

SYC 793 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR MARWAH Applicant
AND:	MS HARVEY Respondent

ORDER MADE BY:	JUDGE BECKHOUSE
DATE OF ORDER:	2 FEBRUARY 2022

195 Ownership		Description		Father’s value	Mother’s value
Assets
1	H	H Street, Suburb J QLD (“H Street, Suburb J”)		$550,000	$550,000
2	J	F Street, Suburb G NSW (TIC in equal shares) (“F Street, Suburb G”)		$1,100,000	$1,100,000
3	H	Westpac Choice account number …52		$2,333	$2,333
4	H	Westpac Home loan offset account # …52 (H Street, Suburb J)		$1,041	$1,041
5	W	Sale of Motor Vehicle 1 to wife’s father (not yet paid to wife)		$8,200	$8,200
6	H	Sale of Motor Vehicle 2 (disposed of 21/12/2009)		$10,000	$10,000
7	W	Indian wedding jewellery		$3,000	$nominal
8	W	Engagement Ring		$15,400	$Nil with Father
9	W	Westpac Choice Account (…84)		nom	nom
10	W	W Bank		$47
Total		$1,689,974	$1,671,574
Addbacks
11	H	Withdrawal from K super 8.7.2020		$10,000	$10,000
12	W	Withdrawal from EEE Super 1.11.2019		$6,055	$6,055
Total		$16,055	$16,055
Liabilities
13	W	Outstanding legal fees for criminal matters		$10,163	$20,000
14	H	W Bank Visa card #...66		$8,560	$8,560
15	H	Westpac Low rate MC #...49		$9,354	$9,354
16	H	Westpac Home loan account# …88- H Street, Suburb J		$505,246	$505,246
17	J	W Bank Home loan account 2700		$869,483	$869,483
18	H	Loan from parents (no adjustment sought)		$85,500	$Nil, Disputed
19	H	Tax Liability FYE 2021		$21,168	No disclosure provided
20	H	Tax Liability FYE 2020		$7,334	No disclosure provided
21
Total		$1,516,808	$1,412,643
Superannuation
Member		Name of Fund	Type of Interest	Father’s value	Mother’s value
22	H	K Super	Accumulation	$76,342	$76,342
23	H	FFF Super	Accumulation	$17,000	$17,000
24	W	EEE Super	Accumulation	NK	$Nil
Ownership		Description		Father’s value	Mother’s value
Total		$93,342	$93,342

Assets	$ Value
H Street, Suburb J Qld (“H Street, Suburb J”)	$550,000
F Street, Suburb G NSW (“F Street, Suburb G”)	$1,100,000
Total	$1,650,000
Liabilities	$ Value
Mortgage over H Street, Suburb J	$505,246
Mortgage over F Street, Suburb G	$869,483
Total	$1,374,729
TOTAL NON SUPERANNUATION ASSETS	$275,271
Superannuation assets	$ Value
Father’s K Super	$76,342
Father’s FFF Super	$17,000
Total	$93,342
TOTAL MATRIMONIAL POOL	$368,613