Middleton & Redmond - [2021] FCCA 316

FEDERAL CIRCUIT COURT OF AUSTRALIA
Middleton & Redmond [2021] FCCA 316

File number: MLC 11580 of 2017

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 23 February 2021

Catchwords: FAMILY LAW – Final property – self represented litigants – section 102NA –allegations of family violence – whether the ban on cross-examination applies – division of remaining asset – division of funds held on trust – small asset pool – two sides to duty of disclosure – problems determining where cash came from – efficiency of Courts subpoena section in COVID-19 times – section 75(2) adjustment.

Legislation:
Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB.

Evidence Act 1995 (Cth), ss 41, 101, 131(2), 140.

Family Law Act 1975 (Cth), ss 69ZT, 75(2), 79, 102NA.

Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 (Cth).

Sentencing Act 1991 (Vic), s 7.

Cases cited:
Briginshaw v Briginshaw (1938) 60 CLR 336

Bull v A-G (NSW) (1913) 17 CLR 370

Henry and Del Frate [2019] FCWA 207

Hickey and Hickey and the Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC ¶93-143

Mabb & Mabb and Anor

In the marriage of Kessey and Kessey

In the marriage of Rickaby and Rickaby

Owen & Owen [2020] FamCA 90

Pellegrino & Pellegrino

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355

Re: F: Litigants in Person Guidelines (2001) FLC ¶93 072

Stanford v Stanford (2012) FLC ¶93-518

Sinclair & Sinclair [2012] FamCA 388

DC Pearce and RS Geddes, Statutory Interpretation in Australia, (Lexis Nexis Butterworths, 8^th ed, 2014)

Number of paragraphs: 191

Date of last submissions: 15 October 2020

Dates of hearing: 12, 14 and 15 October 2020

Place: Melbourne

The Applicant: Appeared In Person

The Respondent: Appeared In Person
ORDERS

MLC 11580 of 2017

BETWEEN:
MS MIDDLETON

Applicant

AND:
MR REDMOND

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

23 FEBRUARY 2021

THE COURT ORDERS THAT:
1.The parties do all acts and things and execute any necessary documents to cause the proceeds of sale of the property known as the investment property at B Street, Suburb C, currently held on trust for the parties (‘the proceeds of sale’) be divided between them, sixty percentum (60%) to the Husband and forty percentum (40%) to the Wife.
2.Any costs or charges relating to the proceeds of sale being held on trust be borne by the parties in the same proportions.
3.Unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders.
(b)Monies standing to the credit of the parties in any join bank account, if any, are to be divided in the proportions described above.
(c)Each party retain any superannuation benefits belonging to or earned by that party.
(d)Insurance policies remain the sole property of the owner/beneficiary named thereon/in.
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

4.The applications of the Husband and the Wife seeking property division orders pursuant section 79 of the Family Law Act1975 (Cth) are otherwise dismissed.

AND THE COURT NOTES THAT:
A.The parties intend these orders shall as far as practicable finally determine the financial relationships between then and avoid further proceedings between them.

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 under the pseudonym Middleton & Redmond is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION

This decision concerns the division of the parties remaining undivided asset between the Applicant Wife, Ms Middleton (‘the Wife’) and the Respondent Husband, Mr Redmond (‘the Husband’), being the sum of $77,345 held on trust for the parties in a trust account pending agreement or determination by the court.
The Husband is a professional and is aged 28 years. The Wife works part time in administration and is aged 30 years. The Wife came to Australia as a student in 2009 and the Husband came to Australia as a student in 2014. The parties commenced cohabitation at marriage in 2016 (although the wedding reception or party was later, in 2016) and their daughter was born in 2016. The Husband is a citizen of Australia and the Wife is a permanent resident. The parties separated on 30 September 2017 or 1 October 2017. After separation the Wife suffered from poor mental health. The parties’ child lives with the Husband and now spends significant and substantial time with the Wife. Their daughter at the time of separation was 9 months old and at the time of the final property hearing was almost 4 years old. The parties were divorced on 23 June 2019. Although their relationship commenced prior to marriage the parties told me, and I accept, they did not really live together until marriage.
The Husband lives in Melbourne in accommodation provided by his parents and the Wife lives in shared rental accommodation in Melbourne.
PROCEDURAL HISTORY
These proceedings were commenced by the Wife by Initiating Application filed on 6 November 2017. The proceedings were first before the court on 20 November 2017. When the proceedings commenced the parties were each represented by solicitors, and usually by counsel for court events. A conciliation conference was held on 11 April 2018 when the parties were last represented.
On 28 September 2020, my Associate gave the parties notice that the proceedings, among others, would be called over on 5 October 2020 for the purpose of ascertaining whether the matter was ready to be fixed for final hearing. The parties sought that I list the matter for hearing as soon as possible and told me they were ready to proceed. I listed the matter for final hearing as a one-day matter on the following Monday, 12 October 2020. The matter then proceeded over the 12th, 14th and 15th of October 2020 including by sitting after 5.00pm on each of those days and I note my gratitude to the parties, the court staff and my Associates for uncomplaining accommodating longer days in hearing.
The Wife relied upon the documents set out in Schedule A and her court book and the Husband relied upon the documents set out in Schedule B and his court book. References in these reasons to page numbers ending in 159 are references to the Husband’s court book. References to page numbers ending in 171 are references to the Wife’s court book. I have taken into account all of those documents as well as the oral evidence of the parties. When completing these reasons and orders I have read the transcript of the proceedings available to the court. Statements of fact are findings of fact. The parties represented themselves and the entire hearing was conducted over Microsoft Teams. I asked many questions of the parties and additional time was necessarily involved as I followed Re: F: Litigants in Person Guidelines (2001) FLC ¶93 072 at [253].
The allegations of, and apparent practice of the parties and their parents and relatives of from time to time possessing and dealing in large amounts of cash, without contemporaneous or any at all or records of the source of the cash, have bedevilled the parties and these proceedings. The parties expect the Court to satisfactorily determine who gave who bundles of cash, and in what amounts, years ago.
Separation occurred when the Husband changed the locks on the former matrimonial home. He told me, and I accept, that contemporaneously with such an event he had arranged Airbnb accommodation for the Wife. It is common ground that shortly before separation the Husband's parents had taken the child, then a baby less than 9 months old, to Country D on what was then intended to be a trip of some weeks. It turned out to be of some months.
At the time of separation the Wife's circumstances were particularly vulnerable. She had come to Australia to study but before her studies were completed had become pregnant with the parties' child. She did not have permanent residency and the Husband had sponsored her Visa application for residence in Australia. So at separation the Husband's parents had the parties' baby in Country D and by unilaterally changing the locks the Husband had possession of the home where the parties had lived. The Wife came to believe that the Husband had contacted the Australian immigration authorities for the purpose of withdrawing his support for her immigration status which she feared would result in her deportation to Country D coinciding with what she expected would be the Husband's parents returning the child, still a baby, to Australia.
In 2016, days before the birth of their child, the parties had purchased an investment property that came to be registered in the sole name of the Husband. The Husband had effective control of the investment property following separation. The Husband had control of the home where they had lived, the investment property and the baby. The parties had little trust in the other and at some point in this stressful scenario the Wife's mental health deteriorated.
On the first return date 20 November 2017 the parties were represented by solicitors and counsel and orders were made by consent that included the usual directions for the filing of material and the matter was adjourned for final hearing to 25 February 2019 but with all applications adjourned to 2 March 2018 for mention. The Wife's vulnerability at that time is demonstrated by order two of those orders, orders of the court not consent orders, that “the Respondent Father shall ensure that the child be returned to Australia no later than 2 December 2017”. The child was not yet 12 months old. The child was returned to Australia and thereafter lived with the Husband and his parents.
On 2 March 2018 the matter was adjourned to 27 April 2018 for brief interim hearing and interim consent orders were made that the child live with the Wife for seven hours each Wednesday and Saturday and otherwise with the Husband. A family report and the appointment of an Independent Children’s Lawyer was ordered.
On the return of the matter to court on 27 April 2018, three days after the conciliation conference (settlement was not reached), the parents were unrepresented and the Independent Children’s Lawyer appeared by counsel. Orders were made by consent that the child live with the Husband and spend time with the Wife on two occasions each week being overnight from Friday evening until Saturday afternoon and overnight from Wednesday evening until Thursday morning each week.
The matter was next before the court on 20 August 2018 where the parents were again unrepresented. An order was made that, “the mother attend upon a psychologist nominated by the Independent Children's Lawyer for the purpose of obtaining a psychiatric profile” as well as an order requiring the Wife to do all things to remove the caveat she had lodged over the parties investment property to enable the settlement of the sale of that property to proceed and for each of the parents to be paid the sum of $10,000 from the deposit of the sale of the investment property with the remaining sum to be held on trust for the parties pending further hearing. At that time the matter still remained listed for final hearing on 25 February 2019.
On 7 November 2018 a further order was made that the Wife file and serve a report from her treating psychologist detailing any diagnosis and prognosis in relation to her mental health. The matter was still listed for final hearing on 25 February 2019.
On 15 January 2019 the trial listing of three days was vacated and the matter relisted for 13 - 15 March 2019. On 13 March 2019 the then extant property and children's proceedings were adjourned, with priority, to 16 April 2020. On 21 February 2020 the matter was called over by Chief Judge Alstergren and the matter was adjourned for final hearing on 29 and 30 June 2020. On 29 June 2020, with the assistance of counsel for the Independent Children’s Lawyer, final parenting orders were made by consent that provided that the child, now 3 and a half years, to live with the Husband and spend time with the Wife each Sunday overnight until Monday morning and each Thursday, and from June 2022, to spend time each alternative weekend from Friday evening until Sunday evening and each alternative Wednesday evening until the commencement of childcare the following day. Upon the child commencing school the Wife’s time is to be each alternative weekend from after school on Friday until before school on Monday and each alternative Wednesday evening from after school until the commencement of school the following day and for half of school holidays and special occasions. The remaining property proceedings were adjourned to a date to be fixed and further trial directions for the filing of trial material were made.
Thus it is unsurprising that when I called the matter over on 5 October 2020 the parties were keen for the matter to be listed as soon as possible. By happenstance space was available for a hearing the following week.
TWO SIDES TO THE DUTY OF DISCLOSURE OF FINANCIAL INFORMATION
At the call over I reminded the parties of the importance of complying with their duty of disclosure of all relevant financial information and documents concerning their financial position and the matters in dispute in the proceedings. I took the liberty of describing the potential price to be paid for the failure to comply with that duty as a “holy trinity” or “three leaf clover.” The first part being that the court may be more generous to the other party as a consequence of the nondisclosure, the second being the possible damage to a party's credibility when I had been told at the commencement of the case that all necessary documents and information had been provided and the third, consistent with the first, that the Court may infer that the reason that the documents or information had not been provided was because there was something about the documents or information that would not assist the non-disclosing parties’ case.
I also told the parties that there were two sides to the duty of disclosure and that experience shows that apart from what must be provided and was frequently sought by the other side, parties to litigation too frequently failed to sufficiently consider the documents and information that was necessary to disclose to the other side to prove or to scaffold or reinforce their own case. I told the parties in blunt terms that it too frequently transpired during the hearing that one or both parties then sought to produce and rely upon a document hitherto not disclosed and that they may require my permission to then rely upon such document.
I told the parties that a failure to disclose all relevant documents and information was sometimes borne of irritation with requests from the other side or simply because one or both the parties could not be bothered: but that there was no separate category for “couldn't be bothered” non-disclosure, there may only be non-disclosure. The parties at the call over undertook to provide to me and each other a “court book” of all necessary documents and bank statements that they intended to rely upon or use in the final hearing.
Notwithstanding the short notice, and very much to the credit of the parties, the Wife produced a court book of 171 pages including the affidavits she replied upon, for convenience the Husband's trial affidavit and 131 pages of various bank accounts. The Husband produced a court book of 159 pages of various bank statements. At relevant times the Husband and Wife had each conducted three bank accounts as well as two joint bank accounts (a note of those is at Schedule C).
Despite my exhortation to the parties to think seriously about their duty of financial disclosure and the necessity of disclosing documents to the other side that would reinforce or scaffold their own case, both parties during the running of the proceedings sought to disclose to me and to the other party for the first time documents which he or she said were important to prove their case. This included documents relating to matters in dispute where each would have known, had they reflected on it, that those documents would be relevant and would assist their own case.
Ultimately I was not asked to find any material non-disclosure by either party and I do not make such finding.
THE SECTION 102NA ISSUE
When the matter commenced it became apparent to me, but not to the parties until I raised it with them, that the provisions of section 102NA of the Family Law Act 1975 (Cth) (‘the Act’) may apply. When I asked both parties readily conceded that in the proceedings there had been allegations of family violence and by reference to the Notice of Risk filed in the proceedings in 2017 it was clear that there had been allegations of family violence within the description of that term in section 4AB of the Act. There was not a current family violence order in place, but there had been one, and the Husband had been charged with a breach of that order, pleaded guilty and was fined $750.
The Wife said that the Husband had been convicted of the offence of breach of a family violence order (an Intervention Order under Victorian legislation) but the Husband said that he believed he had been fined without conviction. It was clear that the parties had never considered whether such a circumstance, with or without conviction, would impact on the manner in which they conducted the property part of the proceedings.
The parties had nothing to say to me about the effect or meaning of sections 102NA and 102NB. But I had become aware that there had been a family violence order between the parties and that one party has been dealt with for breach of that family violence order. The Initiating Application annexed an application for an Intervention Order which is a family violence order. I also referred to the Notice of Risk filed at the commencement of the proceedings and the parties did not disagree with my characterisation of the allegations in that notice as constituting allegations of family violence.
The interim orders of the Court had included notations about section 102NA in the orders. The section 102NA notations of the interim orders were as follows:
If in any proceedings there are allegations of family violence and the provisions of sect ion 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
On 14 October 2020, the second day of hearing and before any cross examination was to occur, I ruled that the section 102NA mandatory ban on personal cross-examination did not apply, that the circumstances enlivened the discretion within section 102NA(1)(c)(iv) to order that personal cross examination must not occur but that I would not do so. I delivered a brief indication of why I had so ruled but reserved my reasons. These are those reasons. The following reasons relating to section 102NA were made without the benefit of a contradictor and without the benefit of the parties or counsel retained by them making any submissions to the court and need to be read in that context.

Neither party agitated those family violence allegations in their affidavits in the current property division part of the proceedings but neither party withdrew the allegations made at the commencement of the proceedings. Each party wished to cross examine the other and, having finally got to a hearing of the last part of the proceedings, wanted to get on with the hearing then and there rather than at a later time with the assistance of lawyers appointed by Victoria Legal Aid. However, the provisions of section 102NA are mandatory. If each of the three limbs apply then, without exception, section 102NA(2) applies which prohibits personal cross examination. The circumstance that neither of the parties wish to delay further their hearing rather than take advantage of the scheme does not create an exception or provide the court with a discretion.
Section 102NA(1) has three limbs, (a), (b) & (c) and the third limb, (c), has four branches. Each limb must be found to apply but any of the four branches of the third limb is sufficient for that limb to apply. The fourth branch of the third limb gives the court a discretion to order a ban on personal cross examination whether or not any of the other three (of the four branches) apply provided the first two limbs are satisfied. Section 102NB is a related back up provision. If sections 102NA(1) & (2) do not apply and a party intends to cross examine and there is an allegation of family violence then the court must ensure that during cross-examination there are appropriate protections for the party who is the alleged victim of family violence. Sections 102NA and 102NB provide a cascading scheme of provisions where there is an allegation of family violence and a party intends to cross examine another party personally. If the more stringent or serious conditions of 102NA(1) are met the ban on personal cross examination and the obligation for cross examination to be conducted by a legal practitioner is mandatory and at public expense. If the stringent conditions of section 102NA(1) are not met but there is an allegation of family violence and a party intends to cross examine another party then section 102NB provides that the court must still ensure there are appropriate protections for the party who is alleged to be the victim of family violence in every case.
Section 102NA is as follows:
(1)      If, in proceedings under this Act:
(a)a party (the examining party) intends to cross examine another party (the witness party); and
(b)there is an allegation of family violence between the examining party and the witness party; and
(c)       any of the following are satisfied:
(i)either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
(ii)a family violence order (other than an interim order) applies to both parties;
(iii)an injunction under section 68B or 114 for the personal protection of either party is directed against the other party;
(iv)the court makes an order that the requirements of subsection (2) are to apply to the cross examination;
then the requirements of subsection (2) apply to the cross examination.
(2)      Both of the following requirements apply to the cross examination:
(a)the examining party must not cross examine the witness party personally;
(b)the cross examination must be conducted by a legal practitioner acting on behalf of the examining party.
Note 1: This section applies both in the case where the examining party is the alleged perpetrator of the family violence and the witness party is the alleged victim, and in the case where the examining party is the alleged victim and the witness party is the alleged perpetrator.
Note 2: This section does not limit other laws that apply to protect the witness party (for example, section 101 requires the court to forbid the asking of offensive questions and section 41 of the Evidence Act 1995 requires the court to disallow certain questions, such as misleading questions).
Note 3: To avoid doubt, a reference to a party in this section includes a reference to a person who is a party because of the operation of a provision of this Act (for example, sections 92 and 92A, which are about intervening parties). This section only applies to an intervening party if the intervening party is involved in the allegation of family violence, whether as the alleged perpetrator or as the alleged victim.
(3)      The court may make an order under subparagraph (1)(c)(iv):
(a)       on its own initiative; or
(b)       on the application of:
(i)        the witness party; or
(ii)       the examining party; or
(iii)if an independent children’s lawyer has been appointed for a child in relation to the proceedings—that lawyer.
Section 102NA lives in Division 4 of Part XI of the Act with which was inserted by Act 159 of 2018, the Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 (Cth) (‘the Amending Act’) and effective from 10 March 2019. The Amending Act did not recite a purpose but it is largely self-evident from the terms of the legislation and the Explanatory Memorandum for the Amending Act. I have referred to the Explanatory Memorandum in accordance with section 15AB(1) and (2) of the Acts Interpretation Act 1901 (Cth). I have taken into account the whole of the Explanatory Memorandum but relevant parts include the following.
Paragraph 6 of the General Outline of the Explanatory Outline states:
6.It is important that any ban (on cross examination) balances the need to protect family violence victims from being re-traumatised during their court hearings, with the need for procedural fairness for parties.
Paragraph 13 Explanatory Memorandum under the heading Statement of Compatibility with Human Rights, states as follows:
13.The purpose of the Bill is to protect victims of family violence from the trauma of being cross examined personally by perpetrators and promote their access to justice. Personal cross examination potentially exposes victims to re-traumatisation and can affect their ability to give clear evidence. It can also be problematic for victims to cross examine their alleged perpetrator personally. Therefore prohibiting personal cross examination in family law proceedings where there are allegations of family violence promotes victims right to a fair hearing.
At paragraph 12 of the Explanatory Memorandum under that same heading it is stated:
12.What constitutes a fair hearing requires recognition of the interests of all parties in a civil proceeding. The procedures followed in a hearing should respect the principle of ‘equality of arms’, which requires that all parties to a proceeding must have a reasonable opportunity of presenting their case under conditions that do not disadvantage them as against other parties to the proceedings.
I also note in the context of this being a property case the following from paragraph 21 of the Explanatory Memorandum states:
21.Being personally cross examined by an alleged perpetrator can affect a victim's ability to give clear evidence. Being required to personally cross examine their alleged perpetrator can also affect a victim's ability to test or challenge evidence that is adverse to the case.
Section 15AA of the Acts Interpretation Act 1901 (Cth) commands that:
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
Section 15AB(1) of that Act commands that:
(1)Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
Section 15AB(2) provides for a list of material that is included as “material that may be considered”. That list at (e) refers to:
(e)any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted.
Section 15AB(3) is as follows:
(3)In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:
(a)the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and
(b)the need to avoid prolonging legal or other proceedings without compensating advantage.
First Limb: 102NA(1)(a)
The parties told me they each wished to cross-examine the other party and so the first limb, section 102NA(1)(a) applied.
Second Limb: 102NA(1)(b)
The words of section 102NA(1)(b) “there is an allegation of family violence…”, are not without competing potential interpretations. The word “is” ordinarily carries a sense of the present tense. In this case neither party made any allegation of family violence in the materials they relied upon before the court or which they found to be relevant to the remaining property issues. Hence do the words “there is an allegation” mean is there a live or current allegation of family violence? Or do those words mean “there is now or has been” an allegation of family violence? Or do those words mean an allegation once made thereafter “is”?
The Shorter Oxford English Dictionary, Oxford University Press, 6^th edition, defines the word “is”, as:
“That which exists, that which is; the fact or quality of existence”.
In regard to section 102NA(1)(b) and the words “there is an allegation” I was assisted by the Explanatory Memorandum to the Amending Act, paragraph 14 under the heading ‘Notes on Clauses’ states:
14.It is intended for this to capture all allegations of family violence made at any stage of the proceedings.
The provisions and the Explanatory Memorandum show that the provisions have multiple purposes including promoting procedural fairness between the alleged perpetrator and the alleged victim, promoting clear evidence, avoiding victims being re-traumatised by being cross-examined personally by the alleged perpetrators, avoiding victims being persuaded to settle their matter due to fear of being cross-examined personally by the alleged perpetrator. The victim may also fear themselves cross-examining the alleged perpetrator.
A significant focus on the scheme as set out in the Explanatory Memorandum is the potential continued impact on the victim of the scourge of family violence whenever that may have occurred. The Explanatory Memorandum explains how that impact on the victim may affect the judicial process by limiting the ability of the victim to challenge evidence or to participate in the legal process. It follows that impact may also effect the ability of a victim to present evidence. This is a property case but it is obvious that these matters would also ultimately impact upon the best interests of children.
I am assisted by the High Court of Australia in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 where the majority observed at [69]-[71], citations omitted:
[69]The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70]A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions…”
[71]Furthermore, a court construing the statutory provision must give meaning to every word of the provision…”
There is nothing in the provisions and no other reason to infer that the effect of family violence on the victim is only passing or is ameliorated merely by the passing of time. The purpose of the provisions is to deal with the effect upon the victim and the consequent impact upon procedural fairness and the ability to challenge or lead evidence. Hence taking the provisions as a whole and considering the Explanatory Memorandum and the purposes of the provisions and applying section 15AA of the Acts Interpretation Act 1901 (Cth), I find that the words “there is an allegation of family violence” means an allegation has been made, whenever made, and so exists and hence “is”. In doing so I am cognisant that this reading expands the scope of the legislation but this reading best achieves the purpose of the Amending Act. Such reading is also consistent with the literal meaning of “is”. It is unnecessary in these reasons to deal with the circumstances where an allegation has been withdrawn or proven to be false.
When looked at in this manner there is no ambiguity in the provision. In the event that I am wrong and the “is” provision of the second limb is ambiguous I am assisted by the canon of statutory interpretation relating to remedial or beneficial provisions: see DC Pearce and RS Geddes, Statutory Interpretation in Australia, (Lexis Nexis Butterworths, 8^th ed, 2014) at [9.2]. The Amending Act is and should be regarded as remedial or beneficial legislation and it is unnecessary to here set out why that is so. That canon provides, as set out by Isaacs J (dissenting) in Bull v A-G (NSW) (1913) 17 CLR 370 at 384:
In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially… This means, of course, not that the true significance of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow.
To so construe the words would be to interpret them in a manner favourable to those who are to benefit from the provisions: victims of family violence.
Third Limb, First Branch: 102NA(1)(c)(i)
As to the first branch or part of the third limb, that is subsection (c)(i), ‘either party has been convicted of, or is charged with, an offence involving violence, or threat of violence, to the other party’ it was common ground that the Husband had been dealt with for a breach of a previously extant family violence order for the protection of the Wife.
The Wife asserted that the Husband had been convicted and he asserted that he had not been convicted although he said he pleaded guilty to the offence. I requested that he ascertain from the court where he had been dealt with a record of the matter that would indicate whether or not he had been convicted.
I note section 7 of the Sentencing Act 1991 (Vic), reads as follows:
7. Sentences
(1)If a court finds a person guilty of an offence, it may, subject to any specific provision relating to the offence and subject to this Act—
(a)record a conviction and order that the offender serve a term of imprisonment; or
(aab)subject to Part 5, record a conviction and order that the offender be detained and treated in a designated mental health service as a security patient (Court Secure Treatment Order); or
(ac)record a conviction and make a drug treatment order in respect of the offender; or
(d)in the case of a young offender, record a conviction and order that the young offender be detained in a youth justice centre; or
(da)in the case of a young offender, record a conviction and order that the young offender be detained in a youth residential centre; or
(e)with or without recording a conviction, make a community correction order in respect of the offender; or
(f)with or without recording a conviction, order the offender to pay a fine; or
(g)record a conviction and order the release of the offender on the adjournment of the hearing on conditions; or
(h)record a conviction and order the discharge of the offender; or
(i)without recording a conviction, order the release of the offender on the adjournment of the hearing on conditions; or
(j)without recording a conviction, order the dismissal of the charge for the offence; or
(k)impose any other sentence or make any order that is authorised by this or any other Act.
(2)If the Magistrates' Court or County Court finds a person guilty of an offence, it may defer sentencing the person in accordance with section 83A.
(emphasis added)
It was common ground that the behaviour of the Husband that had led to his prosecution for the breach of the family violence order was to have sent text messages to the Wife asserting that the Wife was a neglectful mother and not interested in the welfare of the parties’ child. The Husband conceded very frankly to me that he had made the communications in anger. It was clear that the Wife had found these communications troubling and offensive and such behaviour may qualify as family violence pursuant to the very wide definition of section 4AB of the Act.
As to the words of that limb, ‘either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party' I note that paragraph 17 of the explanatory memorandum under the heading ‘Statement of Compatibility with Human Rights’ makes the following statement:
17.In circumstances where a party has been found guilty of an offence of violence against the other party, another court has made a finding of fact that violence occurred…
It is clear that “family violence” referred to in paragraph (b), the second limb, is intended to pick up the very wide definition of family violence in section 4AB of the Act. Subparagraph (c)(i) refers to an offence involving violence, or threat of violence to the other party and not to an offence involving family violence as defined in the Act.
The use of the word “violence” and not “family violence”, in the ordinary sense of the word, is clearly intentional.
Prior to determining whether or not the Husband had in fact been “convicted” of the breach of the intervention order I considered whether this particular breach of the intervention order was an offence involving violence or threat of violence to the other party. I found that the offence for which the Husband was fined, although it may have constituted family violence and actually was a breach of a family violence order, was not an offence of “violence” as required by the first branch of the third limb.

I have also have regard to and follow the decision of O’Brien J of the Family Court of Western Australia, in the matter of Henry and Del Frate [2019] FCWA 207 delivered on 18 September 2019, where in dealing with section 102NA(1)(c)(i) the Court observed at
[19]-[20] as follows:
[19]That purposive approach to statutory interpretation, bearing in mind the purpose and objects of the amending legislation which introduced section 102NA into the Act supports the conclusion section 102NA(1)(c)(i) should not be interpreted restrictively so as to refer only to conviction of an offence of which violence or threat of violence is an essential legal element. Rather, in my view the section should be interpreted more broadly, to include conviction of an offence where the actions on the part of the convicted person, which led to the relevant conviction, included violence or threats of violence towards the other party.
[20]By way of example, a conviction for breach of Family Violence Restraining Order where that breach itself did not involve any act of violence or threat of violence would not in my view trigger a mandatory ban. A conviction for breach of the family violence restraining order, where the action constituting the breach did involve either an act of violence or threat of violence towards the other party would in my view trigger a mandatory ban.
In that case the court found that notwithstanding that the offence of which the party was convicted was pursuant to the Road Traffic Act 1974 (WA) the manner of driving the motor vehicle as alleged was “inherently violent”.
On the evidence before me the txt messages made by the Husband, which constituted the breach of the family violence order, were not “inherently violent” or an act of violence in the ordinary sense of the word. Any breach of a family violence order is itself a criminal offence whether or not the behaviour involved was “violent” or “inherently violent”. But not every breach of a family violence order, although criminal, applies for the purpose of section 102NA(1)(c)(i).
In any event, after being requested to do so, the Husband tendered a certified extract of the record of the proceedings of the Magistrates Court of Victoria at Suburb E on 7 August 2018 which showed that the Husband did on 2 January 2018 commit a breach of a family violence final intervention order. The court order recorded was;
“Without conviction, fined $750.00…”
(emphasis added)
Hence whether or not the offence was an offence involving violence or threat of violence the Husband was not convicted of the offence as required by the plain words of section 102NA(c)(i).
As a general rule an indication of how serious the offending was, found to be by the sentencing court can be ascertained from whether or not a conviction is recorded against the perpetrator. Sentencing takes into account a multitude of matters but as a general rule a sentence without conviction is consistent with the offending being, in all the circumstances, less serious and a sentence with conviction is consistent with the offending being, in all the circumstances, more serious. Whether with or without conviction the offending is a criminal offence. It is clear that for the first branch of the third limb it is not any criminal behaviour involving the other party that will trigger this provision but behaviour where a conviction is recorded and behaviour that is violent or inherently violent.
Third Limb, Second Branch: 102NA(1)(c)(ii)
This branch requires an extant family violence order, other than an interim order. It was common ground that there was no extant family violence order notwithstanding that there had been one in the past.
Third Limb, Third Branch: 102NA(1)(c)(iii)
This branch requires an extant injunction under section 68B or 114 of the Act for the personal protection of a party. It was common ground that there was no such order.
Third Limb, Fourth Branch: 102NA(1)(c)(iv)
I also considered, and I follow, the decision of Gill J in Owen & Owen [2020] FamCA 90 (‘Owen & Owen’) delivered on 17 January 2020, where his Honour dealt extensively with the exercise of the discretion contained in the fourth branch of the third limb. In this case, because the first and second limb apply (described as “necessary precursors” by Gill J) I had a discretion as to whether to make an order that section 102NA (2) applies as the mechanism that would trigger the third limb and hence the then mandatory ban on personal cross-examination. This is so notwithstanding that none of the other three conditions of the third limb applied.
Owen & Owen sets out matters that following the mischief/purpose test may assist the exercise of the discretion. In this case the primary considerations I took and take into account were that;
(a)The parties wished to proceed with the hearing immediately and a section 102NA (2) order would necessitate substantial delay while the relevant legal aid authority organised representation for the parties.
(b)The behaviour of the Husband that had triggered the breach of the family violence order proceedings, although criminal, was not violent or inherently violent.
(c)The hearing was to take place by means of “Microsoft Teams” video conference and that this is one of the protections contemplated by section 102NB in any event.
(d)The provisions of sections 41 and 101 of the Evidence Act 1995 (Cth), by reason of section 69ZT of the Act, apply which prohibit the asking of offensive questions and prohibits questions that are unduly annoying, harassing, offensive, oppressive, humiliating or repetitive or are put to a witness in a manner or tone that is belittling, insulting or otherwise inappropriate.
In these circumstances as I indicated during the hearing I would not exercise my discretion to make an order pursuant to the fourth branch of the third limb of the provisions and hence section 102NA did not apply.
THE PROPERTY DIVISION DISPUTE
The significant factual dispute agitated by the parties was the source of substantial cash that had been applied for the parties benefit during the relationship and/or to the purchase and settlement and mortgage servicing of the parties investment property. Each ultimately acknowledged some cash had been provided by the parents of the other party but each asserted that the disputed cash had been provided by his or her parents, and not the others’, and for his or her benefit. This was clearly relevant to the assessment of contribution pursuant to Part VIII of the Act. Each party, pursuant to section 79 of the Act, sought an order for property settlement which could also be expressed as an order altering the property of the parties.
The Wife sought a division of 50/50 of the proceeds plus 50% of the “extra” real estate commission, that is more than 50%. The Husband sought that the Wife retain the $10,000 and otherwise he retains the funds in trust.
Relevant parts of sections 79(1) to (4) of the Act provide as follows:
79 Alteration of property interests
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them—altering the interests of the parties to the marriage in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage—altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)       an order requiring:
(i)        either or both of the parties to the marriage; or
(ii)       the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
(subsections (1A), (1B) and (1C) not reproduced)
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
By section 79(4)(e) the matters referred to in section 75(2) so that far as they are relevant must also be taken into account and are as follows:
75       Matters to be taken into consideration in relation to spousal maintenance
(2)      The matters to be so taken into account are:
(a)       the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)        himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)       the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party’s role as a parent; and
(m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)        the property of the parties; or
(ii)       vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)        a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
Stanford and Just and Equitable
In the High Court of Australia case of Stanford v Stanford (2012) FLC ¶93-518 (Stanford) at [37] the majority observed some fundamental propositions about section 79 proceedings. It must be noted that in Stanford the essential issue was whether it was just and equitable to make any property order at all, in circumstances where the consortium vitae or marriage relationship had not broken down by way of a separation in the ordinary course of events but the parties had become physically separated due to the ill-health of one of them and that party being in residential care and the other remaining in the matrimonial home. The proceedings for the party in ill-health were conducted by a case guardian who was also the beneficiary under the will of that party.
A Magistrate of the Family Court of Western Australia had made an order for a substantive property settlement that would have necessitated the sale of the former matrimonial home where the husband continued to reside. Prior to the wife moving to a nursing home, for 37 years the parties had made their matrimonial home in a suburb in Perth in a house registered in the husband's name.
The wife’s expenses in accommodation were being met and she had the benefit of a sum set aside in the event she needed anything further. It was the second marriage for both of the parties. The wife's case guardian was a daughter from her previous marriage. The husband appealed to the Full Court of the Family Court of Australia and before the conclusion of that appeal the wife died.
In the High Court the husband’s argument that there was no power in the circumstances to make a property settlement order was dismissed and the case turned on whether, considering section 79(2), it was just and equitable in to make a property settlement order at all and whether the circumstances of section 79(8) of the Act, which relates to the continuation of proceedings after the death of the parties, had been complied with.
The High Court varied the order of the Full Court and found that in the circumstances it was not just and equitable that a property settlement or property alteration order be made at all and that section 79(8) had not been complied with. This was so despite 37 years of marriage and contribution by the Wife. Section 79(4) contribution, even 37 years of it, was not to be conflated with the section 79(2) “just and equitable” requirement but should be considered separately and first. The result of the High Court's order was that the property settlement order as originally made was dismissed with costs.
Apart from the general observations about section 79 the High Court also observed that community of ownership arising from marriage has no place in the common law and that it should not be concluded that the making of an order is just and equitable only because of, or by reference to, the matters in section 79 without a separate consideration of section 79(2).
The majority observed at [37]:
First, it is necessary to begin consideration of 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… The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
The majority continued at [41]:
…The fundamental propositions that have been identified require a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interest during the continuance of the marriage.
At [42] the majority went on to observe as follows:
In many cases where an application is made for property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice by made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and the wife. No less importantly, the express implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship… And the assumption that any adjustment of those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
The Remaining $77,000 Held on Trust
In this case the asset that is in dispute is the balance the proceeds of sale of what I will describe as the parties investment property and is the sum of approximately $77,345 (the funds held on trust). The parties other assets are set out in more detail later. The funds held on trust derive from the sale of the real property situated in Suburb C, a suburb of Melbourne which was registered in the sole name of the Husband. Borrowings in the name of the Husband funded about 70% of the purchase price and the remaining funds were contributed by the parties and the proportions of those contributions are disputed. By the end of the case it was common ground that the larger part of that contribution had been with funds provided to the Husband by his parents and a smaller part of that contribution had been with funds provided to the Wife by her parents. Hence I find that the principal asset in dispute is the proceeds of sale of a property purchased during the marriage where the sole registered proprietor was the Husband but in which each party held equitable, but not equal or agreed, interests. Both parties had been involved in the actual purchase.
Although an investment property it is clear that in undefined ways the parties had intended at the time of purchase that there would thereafter be common (but not necessarily equal) use of the benefit of that property. There is not now, and there will not be, any common use of the benefit of that property. In these circumstances I find, and am readily satisfied, that it is just and equitable to make an order altering the ownership of the property of the parties.

The High Court did not go on to comment upon how, in the ordinary run of cases, section 79(4) should be applied where it was just and equitable that a property alteration or settlement order be made. Stanford was not concerned with the nuts and bolts of how section 79(4) was to be applied in the ordinary run of cases, to the extent there is such a thing.
Hence as I have determined that it is just and equitable to make a property alteration order pursuant to section 79, I have regard to the otherwise settled law of what has been referred to as the preferred approach to the determination of an application made pursuant to section 79 of the Act. That preferred approach (and it is preferred, not compulsory, as it is not mandated by the legislation but good reason should be shown if it is not to be followed) is as set out at [39] of Hickey and Hickey and the Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC ¶93-143 which provides as follows (citations omitted):
[39]The case law reveals that there is a preferred approach to the determination of an application book pursuant to the provisions of section 79. That approach involves four interrelated steps. Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of hearing. Secondly the court should identify and assess the contributions of the parties within the meaning of section 79 for ABC and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly the court should identify and assess the relevant matters referred to in section 79(4) (d), (e), (f) & (g) (“the other factors”) including, because of section 79(4), the matters referred to in section 75(2) so far as they are relevant and determine the adjustment study (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
To the extent that there may be perceived to be a conflict between the High Court at paragraphs [39] and [41], with the High Court’s disavowal of “entitlement” to a section 79 order by mere separation and/or section 79(4) contribution on the one hand, and the use of the word “entitlements” in the passage above I regard the use of that word in the above context as synonymous with “assessment” and I will have regard to what I find to be the contribution based assessment rather than entitlement.
Experience teaches family lawyers that failing to have regard to the preferred approach in negotiations, mediation or litigation (including submissions) is likely to widen the areas of dispute and make resolution by agreement more difficult and often results in a party merely seeking what he or she simply wants or regards as fair from his or her point of view.
The preferred approach assists me in making a principled and orderly determination of the parties’ property dispute. This is particularly so where the parties identified and concentrated on the matters in dispute that he or she regarded as most important. The parties regarded the proportions in which the money from each set of parents had contributed to the purchase of the investment property and the expenses of their relationship as being determinative of the dispute. The matters that they identified and sought to convince me about are important to the section 79(4) determination but they are not the only matters that the law requires me to take into account. The preferred approach assists me take all of those matters into account.
Credibility and Reliability of Evidence
Entries in the Husband’s bank statements where he had contrived to make a payment received from his mother to assist with babysitting expenses appear as a payment of salary from a business demonstrated his capacity for, or at least contemplation of, calculated dishonesty. The entries are persuasively described in the Husband’s Commonwealth Bank account #...61 as “Direct credit F Payroll $1,509.69”. This caused me to look at his evidence very carefully.
On the other hand the Husband’s demeanour when giving evidence was frank and he readily made concessions from time to time. The Husband did not suggest to me that the Wife was lying but rather he said that she was confused when she asserted that money had come from her parents which she had deposited in a bank account when the Husband asserted that the money had come from his parents. In oral evidence the Husband volunteered a contribution by the Wife, and by inference from her family, of $5,000 that the Wife did not claim (for other reasons I did not include this as a contribution).
The Wife’s demeanour when giving evidence was frank and she readily made concessions from time to time. In her affidavit filed 5 June 2020 at [13] the Wife asserted that at separation the Husband had retained the funds of the joint account in the sum of $7,000 and she had only been left with only $200. This was an exaggeration and only part of reality at that time. The Wife had in fact had available to her the sum of $28,819 in Commonwealth Bank account #...31, (see: p120/159 of the Husband’s court book), albeit she asserts, and it was not contested and I accept, it was her mother’s money.
The history was that the Wife was able to draw on her Mother’s funds, including for living expenses, when she needed to and her Mother’s evidence was to this effect. Hence the statement at [13] was far from an accurate account of her after separation financial circumstances. As a result I examined the Wife’s evidence very carefully.
Each party made small qualifications or provided additional details to assertions previously made when confronted with specific details.
It is the source of the funds to purchase the investment property which is the most substantial factual dispute between the parties. It is common ground that the parents of each of the parties provide substantial funds to their son or daughter prior to and during the relationship.
Summary of Contentions of the Parties
The Wife’s case is the total of $145,600 had been contributed by her with funds she obtained from her parents and/or relatives towards the purchase of the property and that the Husband had contributed $192,000 towards the purchase of the property. It was also the Wife’s case that the real estate agent that the Husband had retained contrary to a court order and without her consent had resulted in $9,520 being spent unnecessarily on agent’s fees. The Wife also complained that the Husband had kept funds that were joint savings at separation and that that should be taken into account.
The Husband’s case is that he had contributed by contributions from his parents a total of $382,500 from July 2013 up until August 2017 (see: paragraph 43 of his affidavit filed 16 June 2020). Hence apart from the disputed $71,000 (Husband’s version) or $76,000 (Wife’s version) there remains another $119,000 that the Husband seeks I take into account that the Wife does not.
Within those disputes there are further disputes. The Wife’s case as that the $145,000 contributed was made up of the $99,000 applied, she said, to the deposit, and $46,000 received from her parents and applied to the parties’ joint account between 28 November 2016 and 23 April 2017. A second annexure 4 which is annexed to the Wife’s affidavit filed 14 August 2020, at page 17 of 25, set out the eight deposits said to constitute the $46,600. The Husband asserted that some of those deposits were actually made with cash from his parents not the Wife’s parents.
The investment property was purchased for $1,007,000 on or about 19 December 2016 and $725,000 was borrowed and secured by mortgage to assist the funding of the purchase. From pages 96 to 113 of the Husband’s court book being the statements of the Westpac mortgage account in the Husband’s name a number of things can be ascertained. These pages show $722,583 of borrowed money was applied at settlement of the purchase on or about 4 August 2017, that the interest charged to that mortgage account was in the order of $2770-$2856 per month and that the rental income received from a non-related tenant was in the order of $1667 per month. I have no evidence as to the extent to which that taxable loss was able to reduce taxation otherwise payable on the Husband’s income. But the property ran at a loss. When the property was sold the amount to discharge the mortgage loan on or about 23 November 2018 was $728,470.
The first annexure 4 of the Wife’s affidavit filed 5 June 2020 is the receipt for the payment of the deposit of $99,000 which was issued to the Wife and records:
Receipt from: Ms Middleton (the Wife)
Purchaser name: Ms Middleton
The annexure 6 of the Wife’s affidavit filed 5 June 2020 shows that the investment property was sold for $850,000 on or about 23 November 2018 and after agents commission of $28,269, conveyancing and contract costs of $1630, adjustment of rates between vendors and purchaser and the payment necessary to discharge the mortgage to Westpac Bank at settlement of $728,470 there was left for the parties, $97,345. There are now remains $77,345 plus interest earned, if any, to be divided between the parties. This case demonstrates that Melbourne property is not always re-sold at a profit.
The Husband’s affidavit filed 16 June 2020 at [43] set out what was asserted to be particulars of $382,500 contributed by him with funds from his parents. This sum is made up of 15 identified transfers or deposits into bank accounts totalling $239,900, a $34,600 notional payment relating to interest and outgoings of the parents apartment with a parties lived rent-free for 17 months, a $48,000 gift from his parents, $60,000 (“…from my parents before the wedding, we spent $40,000 on three items of jewellery for the Wife for the wedding an remaining went towards living expenses), $23,000 (“…as a wedding gift in the form of cash as per Country D tradition…”). And $1500 per month to cover the cost of the nanny over seven months in 2017.
The Husband did not in outline of case or affidavit actually concede any funds contributed by the Wife from her family but at [45] of his affidavit of 16 June 2020 stated:
“However I only see $48,300 deposited in Cheque which could have contributed to the initial deposit the purchase of the B Street, Suburb C Property”.
By the middle of the case the fact that the Wife had contributed $48,300 from the return of the deposit she had paid, pre-marriage, for an “off the plan” apartment was not disputed.
Although the receipt for the payment of the balance of the deposit of $99,000 was in the Wife’s name, it was the Husband’s case that at least $71,000 of that came from cash deposited by the Wife from his parents. At [44] of his filed 16 June 2020 affidavit he deposed:
“Adding the $23,000 to the $48,000, it means my parents and relative had gifted to me a total of $71,000, a figure that was already given in the previous affidavits. (The Wife) did enter Suburb G Commonwealth bank branch with the money on second of May while my parents were told to wait outside.”
The Wife’s case was that the $76,000 deposit (see p152/159) was the cash she said her parents and family gave her close to the time of the wedding.
The Husband’s case was that the $76,000 deposit (see p152/159) was the cash being the combined “$48,000 gift from my parents” and “My side’s relatives and friends contributed $23,000 in total as a wedding gift”, a total of $71,000. He gave no evidence or assertion as to the difference between the $76,000 in the $71,000 but, by inference, asserted his parents and friends gifts of $71,000 made up the bulk of the $76,000.
THE EVIDENCE
The parties relied upon the affidavits and court books to which I have earlier referred. In making findings I apply section 140 of the Evidence Act 1995 (Cth) that provides:
140     Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject‑matter of the proceeding; and
(c)       the gravity of the matters alleged.
Section 140(2) is sometimes referred to as the “Briginshaw” test (Briginshaw v Briginshaw (1938) 60 CLR 336) but it is not. It is the test of section 140 although section 140 is entirely consistent with the oft quoted statement of Dixon CJ in Briginshaw.
The $76,000, “that cash was from my parents”, dispute
As to the $99,000 deposit paid allegation the Wife pointed to bank statements regarding Commonwealth Bank account #...31 (see p116-118/171) and Commonwealth Bank account #...66 (see p139/171) that demonstrated the following transactions:
·A deposit of $76,000 in cash on 2 May 2016 at Suburb G Centre to #...31 (152/159);
·A deposit by cheque on $48,300 on 28 Sep 2016 at Suburb H to #...66 (139/171);
·A transfer on 3 Oct 2016 from her #...66 to her #...31 of $48,300 (balance then $111,335) (139/171);
·A transfer on 14 Dec 2016 from #...31 to #...66 of $99,100 (134/158); and
·A transfer on 14 Dec 2016 to another bank account, the real estate agent’s account, of $99,000 (134/158) and this transaction fits with the first 4 receipt to the Wife.
At first glance it may seem like a lot of trouble and time to examine the evidence of the difference between an alleged gift of $70,000 or $71,000 or $76,000. It is. A central factual dispute between the parties is whose parents/relatives provided the $76,000. The different and slightly shifting accounts of each party of the gift or gifts resulting in the deposit of $76,000 is relevant to the reliability of each parties account. Within this dispute is the Wife’s allegation that the Husband’s account of the $48,000 only arose after she had provided a bank statement that showed the existence of a $48,000 deposit to a bank account and that he has opportunistically adopted that deposit to allege a $48,000 gift from his parents.
The Wife alleged the Husband lied in his evidence about this and the Husband alleged the Wife was mistaken but not lying. The Husband did not file evidence from his parents or any person he said made the gifts of the $23,000 and the $48,000 that, he said, should be taken together and were the source of the cash for the 2 May 2016 $76,000 deposit.
The Wife’s affidavit filed 5 June 2020 annexed a statutory declaration (the marked as the first 3) from her mother, Ms J. The Wife arranged for her mother to be available for cross examination by video link from Country D. Ms J’s evidence was interposed first while the section 102NA issue was pending and because sensible arrangements had been made for her to be available that day.
The statutory declaration had been made on 29 October 2017 by Ms J in Melbourne. The first three paragraphs were relevant to the financial dispute.
The first paragraph deposed that between 12 December 2014 and 27 February 2015 Ms J and her husband Mr K had transferred a total of AUD $183,970 into the personal bank account of the Wife (i.e. before the relationship). From these funds, it was the Wife’s case, that the $48,300 deposit for the off the plan apartment had been paid.
The second paragraph asserted:
[2]In late April 2016, I and some relatives came to Melbourne together to attend the wedding ceremony of Ms Middleton. A total of AUD70,000 was brought to Ms Middleton for purchasing a property.
The third paragraph asserted that in early December 2016 the Wife had told her and her Husband that they intended to purchase the investment property, that they did not have sufficient funds to do so, and that the Wife was then permitted to use some of the funds advanced for investment (and referred to in the first paragraph of the affidavit) and that the funds so advanced were a loan to be repaid when the property was sold. The allegation of a loan was not pursued in the Wife’s case notwithstanding that the whole of the statutory declaration was relied upon.
The Husband cross examined Ms J. Ms J required an interpreter. The interpreter was sworn and appeared by video link from Melbourne. The Husband was not familiar or experienced in the process of cross examination but it was evident that he had given some thought to the matters he wished to question the Wife and Ms J about. However it was clear to me that he found cross examining, and cross examining with an interpreter, difficult.
The Husband asked Ms J questions about how much money or assets was held in the share account in the Wife’s name, said by her to be held for her mother, as at October 2017 and what proceeds of share sales or dividends were received and about Ms J’s assertion in paragraph one of her statutory declaration that money was provided to the Wife for “share investments”. The Husband attempted to question Ms J about documents that were included in the Wife’s Court book that he suggested related to Ms J’s assertion of monies transferred for share investments. Ms J’s evidence was that she didn’t know how the share trading was conducted.
The Husband concluded his cross examination by asking whether the Wife was permitted to use the money transferred from Ms J for her own use. Ms J said, “Yes she can. She can use it for accommodation, study, like fees for her study. And now also personal use.”
Ms J was not asked any questions about her assertion at paragraph 2 of the statutory declaration that she and some relatives had come to Melbourne to attend the wedding ceremony and that AUD$70,000 was brought to the Wife for purchasing a property. This evidence was not contradicted, challenged or qualified in any way by the Husband. However I must take into account that the Husband is a litigant in person and clearly inexperienced in litigation and may not be aware of the consequences or not cross examining upon a topic or piece of evidence. That this evidence was disputed was dear to the Wife.
I asked Ms J some questions including whether there was ever any accounting between Ms J and the Wife that is, “did you ever go back and work out what money is hers, what money is yours, what investments were done? What was the end result of those investments? Ms J said that the Wife did not tell her all the details or accurate details but said that she was told that the Wife had bought a unit for $50,000 and that she used the money for her living expenses and study expenses.
I asked Ms J some questions about her assertion that, “A total of AUD $70,000 was brought to the Wife for purchasing a property”. Ms J answered, “That was in 2016 and then there were five of us in total. And then we brought $76,000 in total and it was declared”. This was the first time that Ms J or the Wife had mentioned a figure of $76,000 rather than $70,000.
I pointed out to Ms J that the document she had declared in Australia on 29 October 2017 said the figure was AUD $70,000 and that she had volunteered to me the amount of AUD $76,000 and I asked why the difference. Ms J answered that, “Because I’ve checked all my accounts and the amount was 76,000” (meaning AUD $76,000). I asked Ms J why she gave the Wife cash when she had previously transferred money directly to her bank account, and she answered, “Because there are five of us coming together coming to Australia”. Ms J also said that she now knew the actual amount was $76,000 because the bank records of her and the relatives making the gifts showed a total of $76,000 and she had sent these records to the Wife. Records that show or corroborate Ms J’s assertion that she changed from AUD$71,000 to AUD$76,000 because of checking the donors bank records were not put in evidence or otherwise referred to. I find that if such records existed and were sent to the Wife she would have put them in evidence. When given the opportunity to ask any questions about that evidence (of Ms J) the Husband did not wish to do so.

AUD

Husband’s evidence

Court’s finding

1.

$31,209

$15,000 Transferred in 2013 July from my father, always kept in saving account, never spent a single dollar – transferred with other savings from old ANZ account.

Should be regarded as $31,209 as three items transferred from Husband’s pre marriage savings and funds from his father, see p80/159 of Husband’s court book.

2.

$10,000 28^th of November 2016 from parents, deposited to account ending ...39.

A disputed cash deposit item shown at p76/171 of Wife’s court book. I cannot determine on the balance of probabilities whose parents contributed this amount.

3.

$1,500

28^th December 2016 from parents, deposited to account ending ...61.

Not in dispute and shown ($1,509) at p160/171 of Wife’s court book.

4.

10,000 6^th January 2017 from parents, deposited to account ending ...39.

A disputed cash deposit item and shown at 83/171. I cannot determine on the balance of probabilities whose parents contributed this amount.

5.

$1,500

6^th January 2017 from parents, deposited to account ending ...61.

Not in dispute and shown ($1,509) at p160/171 of Wife’s court book.

6.

$120,000

23^rd of January 2017, from parents, deposited to account ending ...61.

Not in dispute and shown at p154/171 of Wife’s court book and then together with other funds transferred on 1/3/2017 to Commonwealth Bank account #...39 and then in three tranches transferred to WBC #...96 (161/171) and then 16/03/17 $240,460 to settlement of investment property

7.

$1,500

23^rd of January 2017, deposited to account ending ...61

Not in dispute and shown ($1,509) at p155/171 of the Wife’s court book.

8.

$900

25^th of January 2017, deposited to account ending ...61.

Not in dispute

9.

$10,000

7^th of March 2017 from sister, deposited to account ending ...96.

Not in dispute also shown in WBC #...96 at p161/171 of Wife’s court book.

10.

$5,000

7^th of March 2017 from parents, deposited to account ending ...96.

Not in dispute also shown in WBC #...96 at p161/171 of Wife’s court book.

11.

$35,000

8^th of March 2017 from sister, deposited to account ending ...96.

Not in dispute also shown in WBC #...96 at p161/171 of Wife’s court book.

12.

$5,000

9^th of March 2017 from sister, deposited to account ending ...96.

Not in dispute also shown in WBC #...96 at p161/171 of Wife’s court book.

13.

$20,000

9^th March 2017 from parents, deposited to account ending ...96.

Not in dispute also shown in WBC #...96 at p161/171 of Wife’s court book.

14.

$2,000

10^th of March 2017 from parents, deposited to account ending ...96.

Not in dispute also shown in WBC #...96 at p161/171 of Wife’s court book.

15.

$2,500

30^th of March 2017 from parents, deposited to account ending ...96.

Not in dispute also shown in WBC #...96 at p161/171 of Wife’s court book.

16.

$34,600 for the interest payment plus outgoings of apartment at N Street, Suburb O, as we were living there rent free for 17 months.

Not in dispute, but to be taken into account but not as a direct contribution of this sum.

17.

$48,000 gift from parents

Disputed and asserted to be part of the $76,000. Not accepted on balance of probabilities.

18.

$60,000 from my parents before the wedding, we spent $40,000 on three items jewellery for Ms Middleton for the wedding, remaining went towards living expenses.

Disputed, not included in Wife’s conceded $192,000 or later $228,000. This item was not pressed by the Husband and he was not cross examined about it. It was not included in H6 the conciliation conference document. The Court is not satisfied on the balance of probabilities that this gift was made.

19.

My side’s relatives and friends contributed $23,000 in total as a wedding gift, in the form of cash as per Country D tradition in front of Wife’s family to show respect to them.

Disputed. It was not included in exhibit H6 the conciliation conference document. The Court is not satisfied on the balance of probabilities that this gift was made.

20.

$9,000

$1,500 each month as per Statutory Declaration to cover part of cost for nanny, from February 2017 to August 2017.

Not in dispute and can be quantified as about $9,000 being about 6 months at $1,500 per month.

21

$245,109

Total of contributions found to be from Husband’s parents

Hence I find that the funds contributed by the Husband parents total at least about $245,109.
As to the contributions from the Wife’s parents I find on the balance of probabilities that the Wife’s family contributed $70,000 of the $76,000 and the $48,300 from the return of the deposit on the off the plan purchase a total of $118,300 (not merely the $99,000 that was applied towards the deposit). In addition from the allegations of a further $46,600 in addition to $99,000 I find as set out above, contributions from the Wife’s parents of a further $13,600. Hence I find that the contributions from the Wife’s parents and family is at least $131,900 ($118,300+$13,600).
Hence there are deposits of $26,000 ($10,000+$10,000+$6,000) that the Court is unable to determine whether the funds came from the Wife’s or the Husband’s parents and some further funds likely from the Wife’s Mother applied to University and Department of Immigration fees of the Wife that the parties did not address.
Other adjustments sought by the Wife
The Wife seeks that I adjust or add back what she says is the unnecessary commission incurred by the Husband, she says in breach of a Court order, of the sale of the investment property. The Wife’s calculations assume that what the real estate agent received was only commission and did not take account of what part was advertising expense and what part actual commission. I am not satisfied that the Husband incurred any unnecessary or unreasonable commission on the sale.
The Wife sought further adjustment based on what she said was the retention by the Husband of the bulk of the joint account at separation. The division of the funds from the joint account of about $12,000 is not sufficiently clear to me to enable a finding sufficient to justify adjustment as this time years later one way or the other.
The bank statements in the court book show other frequent withdrawals from what was said to be the Wife’s mother’s investments paid to the Wife’s accounts and including Commonwealth Bank account #...66 in substantial amounts. The parties did not refer to or agitate those transactions. I have not attempted to undertake an examination or total up of those transactions where the parties have not referred to them or attempted that exercise but the total would be substantial and more than $20,000 during the relationship. Neither the parties or I have taken these funds into account as a contribution to the investment property but they are a contribution by the Wife.
It must also be noted that the parties did not seek to identify extrinsic expenses either. Pages 135, 138 and 144 of the Wife’s court book show transfers for the Wife’s University fees totalling $30,983 and Department of Immigration fees of $6,865 paid from the Wife’s Commonwealth Bank account #...66.
I take into account that the Wife completed her studies during the relationship and that in ways not identified by the parties the Wife’s mother’s money was a substantial contribution to this as well as the Wife’s income from employment. I find that give or take some thousands those contributions and extrinsic expenses roughly balance out although not necessarily exactly.
To those findings I now apply the preferred approach referred to above.
Step One: Identify the parties assets at the time of the hearing
The parties’ financial statements had been filed in 2017. Each party provided me with the current details of their assets and liabilities and I marked up the 2017 financial statements in red with the current figures as the parties told them to me and made those documents exhibits. Neither party challenged what the other said in the updating of the financial statements.
I find the assets and liabilities of the parties at the time of the hearing are as follows:

166 Non superannuation assets of the Husband:

167 Value:

Commonwealth Bank account #...57

$1,400

Motor Vehicle 1

$9,000

Credit card

($6,000)

Total of Husband:

$4,400

Non-superannuation assets of the Wife

Commonwealth Bank account #...66

$852

Motor Vehicle 2

$6,000

Total of the Wife:

$6,852

Other assets:

Funds held on trust

77,345

Superannuation:

Husband’s superannuation

$29,757

Wife’s superannuation

$2,700

I take into account the nature, form and characteristics of the parties’ assets and liabilities. Apart from the funds held on trust the bulk of the parties assets are in the form of superannuation and it will be many years before the parties are able to access the superannuation. Otherwise they hold small savings and a motorcar each.
I do not find that the $10,000 that each party received from the proceeds of sale is or should be treated as an asset in the parties’ hands. They no longer have that money. There was no agreement or order that it be regarded as part property settlement. I have little information as to how it was applied and the extent if any that it is represented in the current modest savings of each party. I do not find it just and equitable to regard that sum as an asset. I do take it into account as actually received pursuant to section 75(2)(o).
The Second Step: Contributions
The parties did not refer to the authority of In the marriage of Kessey and Kessey (Kessey) but they conducted the litigation entirely in accordance with the principles set out therein.
In Kessey, the Full Court of the Family Court of Australia observed at 81,150:
“In other words, a contribution by a parent of a party to a marriage to the property of the marriage will be taken to be a contribution made by or on behalf of the party who is the child of the parent unless there is evidence which establishes it was not the intention of the parent to benefit only his or her child.”
In Mabb & Mabb and Anor , the Full Court referred to the principles of Kessey as a presumption but also “no more than an evidentiary device”. In that case the title, having been transferred by the parents to the parties jointly by one parties’ parents, and other circumstances displaced the presumption to the extent it applied in the circumstances of that case.
In this case the parties conducted the litigation on the basis that a gift from his or her parents should be regarded as a contribution by the child and it is proper that I do so.
It was not disputed that the parties resided in rent free accommodation provided by the Husband’s parents. It is settled law that such can be regarded as a contribution on behalf of the child of the provider of the rent free accommodation, see Pellegrino &Pellegrino and In the marriage of Rickaby andRickaby . I regard this as a small section 79(4) contribution by the Husband.
I also take into account that until the sale of the investment property the Husband, from his post separation earnings, by and large, met the gap between the rent received and the mortgage expense on the home. I regard this as a section 79(4) contribution by him. I regard other contributions during the short marriage as about equal. Both worked hard in different roles.
Since separation the Husband has, with the assistance of his parents, provided the care and financial support for the parties’ child. The Wife’s circumstances were that until recently she was unable to assist in any significant way. I regard this as a section 79(4) contribution by him.
The most significant contributions of both parties are the direct financial contributions each has made by the application of funds from his or her parents.
I now apply my findings. The direct financial contributions are approximately in the proportions of about $245,109 by the Husband (from his parents and relatives) and $131,900 by the Wife (from her parents and relatives) or of the total of about $377,009 (that I have found contributed directly by the one or other of the parties) or about 35% by the Wife and 65% by the Husband.
In Sinclair &Sinclair[2012] FamCA 388, a case concerning a disparity of direct financial contributions, Cronin J observed at [23] to the effect that concentration on or quarantining of direct financial contributions must be done cautiously so that “important contributions to the family in particular are not ignored”. I heed that wisdom and application of the principles of section 79(4)(a), (b) and (c) of the Act.
Hence the other contributions of the parties must be recognised including the rent free accommodation and the post separation contributions of the Husband including as home maker and parent and to his superannuation from his post separation earnings. When I take those contributions into account as well as the direct financial contributions of the parties I find that overall the Husband should be regarded as, and I find, in the section 79(4) (a), (b) & (c) sense as contributing about 75% and the Wife 25%.
Step Three: Section 79(4) (d), (e) (hence section 75(2) factors), (f) & (g).
Sections 79(4)(g) and section 75(2)(na) concerning child support entirely overlap. The orders proposed by either party do not effect either parties’ earning capacity and orders provide for the young child to live with the Husband and spend substantial and significant time with the Wife.
The most significant section 75(2) factors are the earning, income, health and general financial circumstances disparity between the parties. The parties were during the marriage, and still continue to be, by general community standards, remarkably frugal.
The Wife has suffered significant mental health issues. No expert or treating doctor evidence was led. The Wife has significant tertiary qualifications but has never worked in the field of her training. She regards that as unlikely and I so find. The Wife works in poorly paid part time employment for a total of about $300 per week. She lives in shared rental accommodation. She does not buy new clothes or footwear and the other accoutrements of modern living. She does not insure her car, and I find, simply from lack of funds. Remarkably, by dint of simply going without, she has during these COVID-19 times and her recent employment managed to save about $50 per week. She has paid and will only pay minimal child support for the immediately foreseeable future.
The Wife may be able to draw again on the generosity of her Mother but that is not certain. The Wife’s current circumstances are very modest. Were it not for her diligence, frugality and discipline as to spending her circumstances would be parlous.
The Husband is also frugal and disciplined in his expenditure. He and the parties’ child live with his parents or his mother in accommodation provided by his parents or mother. He is fortunate to have generous parents. The Husband has significant tertiary qualifications and is employed in a related field. He has a career and prospects, although uncertain, ahead of him. His current salary package including superannuation is $58,000, modest by community standards, but vastly superior to the Wife. He receives social security payments that would take into account his care of the child and modest income of a total of $1,000 per fortnight.
By dint of going without, government benefits, his mother’s generosity and his income from his career he manages to save or have left over about $230 per week at this time. He is in good health. He supports the child without any substantial child support. That is likely to continue for some time. If the Wife is able to advance her earning capacity, whether by use of her degree or otherwise, she will have a much better income and the Husband will receive proper child support but that appears unlikely at this time.
I also take into account that each has already received $10,000 from the proceeds of sale and that a further $26,000 was contributed directly from parents but I cannot ascertain whose on the balance of probability. The parties’ capacity for frugality and financial discipline is an advantage that may advance them in life. Although incapable of following his own advice, the Charles Dickens character in the novel David Copperfield, Wilkins Micawber, observed correctly:
“Annual income twenty pounds, annual expenditure nineteen (pounds) nineteen (shillings) and six (pence), result happiness. Annual income twenty pounds, annual expenditure twenty pound nought (shillings) and six (pence), result misery.”
The Husband has to earn a living and support the child while caring for the child, with his mother’s assistance, and this must and will to an unknown degree impede his earning capacity and career.
Overall the Husband is in a vastly superior financial position. The Husband’s weekly savings or what he has left over is two thirds of the Wife’s current income. The government benefits he receives are more than the Wife’s income. The total of non-superannuation assets to be considered is only about 1.5 years of the Husband’s gross income. Most often, and indeed usually, the circumstance of the Husband’s care of the child and absence of real child support would call for and result in a third step adjustment in his favour. I will also take into account the actual dollar value of the third step or section 75(2) adjustment I propose to make.
It is just and equitable and reflective of the parties’ contribution if superannuation remains as it is. No superannuation payment splitting order is sought and the Husband will have more superannuation than the Wife but that will likely be preserved for many years.
In this case and considering all of the evidence and the matters to be considered at this step of the preferred approach I find that there should an adjustment in the Wife’s favour of 15% or about $11,550 and which is a disparity on account of section 75(2) of $23,100. The Husband, by frugality, currently saves about $12,000 per annum and receives government benefits of about $26,000 per annum. Hence that is an end result that the assets be divided 60% to the Husband and 40% to the Wife.
Step Four: Conclusion & again consider are the consequent orders just and equitable
Any order I make must be just and equitable. I will only make orders dealing with the proceeds of sale held on trust. It is just and equitable that the parties retain their modest superannuation, motor cars and savings without adjustment. The funds originally deposited on trust were $97,345 but are now less the two distributions of $10,000 leaving $77,345 plus interest if any. The end result is that of the funds available the Husband will receive about $46,407 or 1 ½ time what the Wife receives and the Wife will receive about $30,938. I find that orders to this affect are just and equitable in all the circumstances of this case and I so order.
I urge the Wife to immediately get her motor car insured.

I certify that the preceding one hundred and ninety-one (191) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.
Associate:
Dated: 23 February 2021
SCHEDULE A: WIFE’S DOCUMENTS
(1)Initiating Application filed 6 November 2017;
(2)Affidavit of Ms Middleton filed on 5 June 2020;
(3)Affidavit of Ms Middleton on filed 16 June 2020;
(4)Affidavit of Ms Middleton on filed 14 August 2020;
(5)Court book containing:
(a)Bank Statement for joint CBA Account;
(b)Bank Statement for Ms Middleton CBA Account;
(c)Bank Statement for Mr Redmond CBA Account;
(d)Bank Statement for Westpac Mortgage;
(e)P Shares Report dated 29 September 2017;
(f)Currency exchange transaction.

(6)Exhibits marked ‘W’

SCHEDULE B: HUSBAND’S DOCUMENTS
(1)Response filed 21 November 2017;
(2)Affidavit of Mr Redmond filed on 16 June 2020;
(3)Court book containing:
(a)Bank Statement for joint CBA Account;
(b)Bank Statement for Mr Redmond Westpac Loan Account;
(c)Bank Statement for Ms Middleton CBA Account

(4)Exhibits marked ‘H’

SCHEDULE C: PARTIES’ BANK ACCOUNTS REFERRED TO

Applicant Wife’s Bank Accounts

CBA Account #...31

CBA Account #...66

CBA Account #...72

Joint Bank Accounts

CBA Account #...47

CBA Account #...39

Respondent Husband Bank Accounts

CBA Account #...61

WBC Account #...96

WBC Account #...86

ANZ Account #...64

SCHEDULE D: LIST OF EXHIBITS TENDERED AT TRIAL

Exhibit No:

Description:

C1

Statutory Declaration of Accountant Ms J dated 29 October 2017

C2

Certified extract from Suburb E Magistrates Court regarding court hearing of the Husband 7 August 2018

C3

Email from Wife – providing her current address not to be disclosed to the Husband

H1

Financial statement of Husband 17 November 2017

H2

Summary of Case – Property

H3

2 February 2018 letter and bundle of documents

H4

Letter from Kenna Teasdale Lawyers 21 March 2018

H5

Letter from Kenna Teasdale Lawyers 9 April 2018

H6

Husband’s Conciliation Conference Position Paper

H7

Photograph of envelopes that contained cash

H8

Spreadsheet

W1

Financial statement of Wife 6 November 2017

W2

Summary of Case

W3

Application for Intervention Order

W4

Notice of Risk filed by Wife 6 November 2017

W5

Bundle of conveyancing documents as to deposit of $48,300 for lot ....

File number:	MLC 11580 of 2017
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	23 February 2021
Catchwords:	FAMILY LAW – Final property – self represented litigants – section 102NA –allegations of family violence – whether the ban on cross-examination applies – division of remaining asset – division of funds held on trust – small asset pool – two sides to duty of disclosure – problems determining where cash came from – efficiency of Courts subpoena section in COVID-19 times – section 75(2) adjustment.
Legislation:	Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB. Evidence Act 1995 (Cth), ss 41, 101, 131(2), 140. Family Law Act 1975 (Cth), ss 69ZT, 75(2), 79, 102NA. Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 (Cth). Sentencing Act 1991 (Vic), s 7.
Cases cited:	Briginshaw v Briginshaw (1938) 60 CLR 336 Bull v A-G (NSW) (1913) 17 CLR 370 Henry and Del Frate [2019] FCWA 207 Hickey and Hickey and the Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC ¶93-143 Mabb & Mabb and Anor In the marriage of Kessey and Kessey In the marriage of Rickaby and Rickaby Owen & Owen [2020] FamCA 90 Pellegrino & Pellegrino Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Re: F: Litigants in Person Guidelines (2001) FLC ¶93 072 Stanford v Stanford (2012) FLC ¶93-518 Sinclair & Sinclair [2012] FamCA 388 DC Pearce and RS Geddes, Statutory Interpretation in Australia, (Lexis Nexis Butterworths, 8^th ed, 2014)
Number of paragraphs:	191
Date of last submissions:	15 October 2020
Dates of hearing:	12, 14 and 15 October 2020
Place:	Melbourne
The Applicant:	Appeared In Person
The Respondent:	Appeared In Person

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	23 FEBRUARY 2021

AUD	Husband’s evidence	Court’s finding
1.	$31,209	$15,000 Transferred in 2013 July from my father, always kept in saving account, never spent a single dollar – transferred with other savings from old ANZ account.	Should be regarded as $31,209 as three items transferred from Husband’s pre marriage savings and funds from his father, see p80/159 of Husband’s court book.
2.	$10,000 28^th of November 2016 from parents, deposited to account ending ...39.	A disputed cash deposit item shown at p76/171 of Wife’s court book. I cannot determine on the balance of probabilities whose parents contributed this amount.
3.	$1,500	28^th December 2016 from parents, deposited to account ending ...61.	Not in dispute and shown ($1,509) at p160/171 of Wife’s court book.
4.	10,000 6^th January 2017 from parents, deposited to account ending ...39.	A disputed cash deposit item and shown at 83/171. I cannot determine on the balance of probabilities whose parents contributed this amount.
5.	$1,500	6^th January 2017 from parents, deposited to account ending ...61.	Not in dispute and shown ($1,509) at p160/171 of Wife’s court book.
6.	$120,000	23^rd of January 2017, from parents, deposited to account ending ...61.	Not in dispute and shown at p154/171 of Wife’s court book and then together with other funds transferred on 1/3/2017 to Commonwealth Bank account #...39 and then in three tranches transferred to WBC #...96 (161/171) and then 16/03/17 $240,460 to settlement of investment property
7.	$1,500	23^rd of January 2017, deposited to account ending ...61	Not in dispute and shown ($1,509) at p155/171 of the Wife’s court book.
8.	$900	25^th of January 2017, deposited to account ending ...61.	Not in dispute
9.	$10,000	7^th of March 2017 from sister, deposited to account ending ...96.	Not in dispute also shown in WBC #...96 at p161/171 of Wife’s court book.
10.	$5,000	7^th of March 2017 from parents, deposited to account ending ...96.	Not in dispute also shown in WBC #...96 at p161/171 of Wife’s court book.
11.	$35,000	8^th of March 2017 from sister, deposited to account ending ...96.	Not in dispute also shown in WBC #...96 at p161/171 of Wife’s court book.
12.	$5,000	9^th of March 2017 from sister, deposited to account ending ...96.	Not in dispute also shown in WBC #...96 at p161/171 of Wife’s court book.
13.	$20,000	9^th March 2017 from parents, deposited to account ending ...96.	Not in dispute also shown in WBC #...96 at p161/171 of Wife’s court book.
14.	$2,000	10^th of March 2017 from parents, deposited to account ending ...96.	Not in dispute also shown in WBC #...96 at p161/171 of Wife’s court book.
15.	$2,500	30^th of March 2017 from parents, deposited to account ending ...96.	Not in dispute also shown in WBC #...96 at p161/171 of Wife’s court book.
16.	$34,600 for the interest payment plus outgoings of apartment at N Street, Suburb O, as we were living there rent free for 17 months.	Not in dispute, but to be taken into account but not as a direct contribution of this sum.
17.	$48,000 gift from parents	Disputed and asserted to be part of the $76,000. Not accepted on balance of probabilities.
18.	$60,000 from my parents before the wedding, we spent $40,000 on three items jewellery for Ms Middleton for the wedding, remaining went towards living expenses.	Disputed, not included in Wife’s conceded $192,000 or later $228,000. This item was not pressed by the Husband and he was not cross examined about it. It was not included in H6 the conciliation conference document. The Court is not satisfied on the balance of probabilities that this gift was made.
19.	My side’s relatives and friends contributed $23,000 in total as a wedding gift, in the form of cash as per Country D tradition in front of Wife’s family to show respect to them.	Disputed. It was not included in exhibit H6 the conciliation conference document. The Court is not satisfied on the balance of probabilities that this gift was made.
20.	$9,000	$1,500 each month as per Statutory Declaration to cover part of cost for nanny, from February 2017 to August 2017.	Not in dispute and can be quantified as about $9,000 being about 6 months at $1,500 per month.
21	$245,109	Total of contributions found to be from Husband’s parents

166 Non superannuation assets of the Husband:	167 Value:
Commonwealth Bank account #...57	$1,400
Motor Vehicle 1	$9,000
Credit card	($6,000)
Total of Husband:	*$4,400*
Non-superannuation assets of the Wife
Commonwealth Bank account #...66	$852
Motor Vehicle 2	$6,000
Total of the Wife:	*$6,852*
Other assets:
Funds held on trust	*77,345*
Superannuation:
Husband’s superannuation	$29,757
Wife’s superannuation	$2,700

Exhibit No:	Description:
C1	Statutory Declaration of Accountant Ms J dated 29 October 2017
C2	Certified extract from Suburb E Magistrates Court regarding court hearing of the Husband 7 August 2018
C3	Email from Wife – providing her current address not to be disclosed to the Husband
H1	Financial statement of Husband 17 November 2017
H2	Summary of Case – Property
H3	2 February 2018 letter and bundle of documents
H4	Letter from Kenna Teasdale Lawyers 21 March 2018
H5	Letter from Kenna Teasdale Lawyers 9 April 2018
H6	Husband’s Conciliation Conference Position Paper
H7	Photograph of envelopes that contained cash
H8	Spreadsheet
W1	Financial statement of Wife 6 November 2017
W2	Summary of Case
W3	Application for Intervention Order
W4	Notice of Risk filed by Wife 6 November 2017
W5	Bundle of conveyancing documents as to deposit of $48,300 for lot ....