Naiman & Naiman
[2024] FedCFamC1F 816
•29 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Naiman & Naiman [2024] FedCFamC1F 816
File number: SYC 6945 of 2018 Judgment of: HARTNETT J Date of judgment: 29 November 2024 Catchwords: FAMILY LAW – PARENTING – Where the mother sought sole parental responsibility – Where the father sought equal shared parental responsibility – Where the father experiences mental health difficulties and substance abuse issues – Where the children spend time with the father supervised by the paternal grandmother – Where the mother seeks supervised time continue indefinitely – Where the mother has relocated – Where there is a dispute as to the children’s schooling – The mother have sole parental responsibility – The children live with the mother – No orders made for supervised time – Where the father continue to undertake alcohol testing and engage in therapeutic support as a requirement to spend time with the children.
FAMILY LAW – PROPERTY – Where the husband seeks to retain the former matrimonial home – Where the wife has relocated over 30 kilometres away – Where the parties owe outstanding funds to the maternal grandparents trust – Where the husband has failed to provide financial disclosure – Where the husband earns a significant income to that of the wife – Sale of the former matrimonial home – Parties to repay the trust – Superannuation split – The husband receive 41 per cent and the wife receive 59 per cent of the asset pool.
Legislation: Australian Passports Act 2005 (Cth) s 11
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Parts VII, VIII, ss 60CA, 60CC, 61C, 61DA, 65DAA, 75, 79, 81, 90SM, 90XT, 106A
Family Law Amendment Act 2023 (Cth)
Cases cited: Bevan & Bevan (2013) FLC 93-545
Blandford & Esmore [2022] FedCFamC1A 67
Blinko & Blinko [2015] FamCAFC 146
Goode & Goode (2006) FLC 93-286
Lovine & Connor (2012) FLC 93-515
M & M (1988) 166 CLR 69
Mallet v Mallet (1984) 156 CLR 605
Mulvany & Lane (2009) FLC 93-404
Petruski v Balewa (2013) 49 Fam LR 116
R & C [1993] FamCA 62
Roverati & Roverati (2021) FLC 94-027
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Division: Division 1 First Instance Number of paragraphs: 293 Date of last submissions: 3 June 2024 Date of hearing: 5-8 September 2023; 26-28 February 2024 & 15 April 2024 Place: Heard in Sydney & Melbourne (via videolink), delivered in Melbourne Counsel for the Applicant: Mr Dura SC Solicitor for the Applicant: Consort Family Law Counsel for the Respondent: Ms Kennedy Solicitor for the Respondent: Barkus Doolan Winning Counsel for the Independent Children's Lawyer: Ms Shea Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 6945 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR NAIMAN
Applicant
AND: MS NAIMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
29 NOVEMBER 2024 AMENDED 2 DECEMBER 2024
THE COURT ORDERS THAT:
Parenting
1.All previous parenting orders be discharged.
2.The mother have sole parental responsibility for the children, X born 2012 and Y born 2013 (“the children”) to include the making of decisions in respect of education and health.
3.The mother, in the exercise of her sole parental responsibility, must:
(a)consult with the father in writing about any long-term decision that is to be made for the children, at least 7 days prior to making such decision, unless in an emergency;
(b)consider any written response provided by the father providing his input into the long-term decision to be made for the children; and
(c)inform the father in writing of the long-term decision made within 48 hours of such decision being made.
4.The children shall live with the mother.
5.The children shall spend time with the father prior to the commencement of the December/January 2024/2025 school holidays on each Sunday from 9.00am to 6.00pm.
6.Commencing in Term 1 of 2025, the children shall spend time with the father during school terms in a fortnightly cycle as follows:
(a)week one: Friday after school (or 3.00pm if the children are not in school) to Monday before school (or 9.00am if the children are not in school); and
(b)week two: Wednesday after school (or 3.00pm if the children are not in school) to before school on Thursday (or 9.00am if the children are not in school) with this time spent being subject to the father living within a vicinity of 30 kilometres from the children’s schools.
7.The children shall spend time with the father during school holiday periods as follows:
(a)during Terms 1, 2 and 3 holidays in 2025 for one period of four consecutive nights as agreed between the parties in writing, and failing agreement, from the conclusion of school or 3.00pm on the last day of school term to 6.00pm on the fifth day;
(b)during the December/January school holidays in 2024/2025 for no more than three periods of four consecutive nights and provided there is a one week gap between each period, with dates and times as agreed between the parties in writing and failing agreement, commencing at 10.00am on the first Saturday of the school holidays and concluding at 6.00pm on the fifth day, and thereafter as determined by the father;
(c)during Terms 1, 2 and 3 holidays commencing in 2026 for one half of all such holidays being the first half in 2026 and the second half in 2027 and alternating thereafter;
(d)during the December/January school holidays commencing in 2025/2026 for two consecutive weeks of such holidays being in the first half in 2025/2026 and the second half in 2026/ 2027 and alternating thereafter save that the children are to be returned to the residence of the mother by at least 10.00am two days prior to the commencement of the school year.
8.For the purposes of defining the school holidays, until Y commences high school in 2026, the time shall be calculated in accordance with D School’s calendar and thereafter shall be calculated in accordance with the children’s high school calendar.
9.Notwithstanding these orders, and unless otherwise agreed between the parties in writing, the children spend time with their parents on the following special occasions:
(a)with the mother on Mother’s Day each year from 10.00am to 5.00pm;
(b)with the father on Father’s Day each year from 10.00am to 5.00pm;
(c)with the father on Easter Sunday in 2025 from 10.00am to 5.00pm;
(d)with the mother from 9.00am on Good Friday until 4.00pm on Easter Monday commencing in 2026 and each alternate year thereafter;
(e)with the father from 3.00pm on Holy Thursday until 12.00pm on Easter Sunday commencing in 2027 and each alternate year thereafter;
(f)with the mother in 2024 from 20 December until 4 January;
(g)with the mother in 2025 from 20 December until 4 January and each alternate year thereafter;
(h)with the father in 2026 from 20 December until 4 January and each alternate year thereafter.
10.On the children’s birthdays and on the father’s birthday, the children spend time with the father if a school day from after school or 3.00pm until 8.30pm, and if the children are not in school, then from 10.00am to 5.00pm on the father’s birthday and 10.00am to 2.00pm on each of the children’s birthdays.
11.For the purposes of changeover, unless otherwise agreed between the parties in writing, the father or his nominated agent shall collect the children from their school on school days or the front entrance to the mother’s home on weekends or holidays at the commencement of time, and deliver the children to school or the front entrance to the mother’s home at the conclusion of time.
AND THE COURT ORDERS, BY CONSENT, THAT:
12.The time the children spend with the father pursuant to these Orders is conditional upon the following occurring and it is a condition of the father spending time with the children that he comply with this order at all times:
(a)the father is restrained from consuming alcohol to excess when the children are in his care, and for a period of 24 hours prior to the children coming into his care.
(b)the father shall continue to attend upon a treating psychologist and a treating psychiatrist at times, and with such frequency, as may be recommended and/or requested by his treating psychiatrist (including for review of all medications as may be taken, or recommended to be taken, by the father by his treating medical professionals).
(c)the father shall take all medications prescribed to him by his treating medical practitioners in accordance with their directions.
(d)for a period of 24 months following the date of the making of these orders, the father shall undertake blood testing for phosphatidylethanol (PEth testing) as arranged by Mr E monthly, and the father is required to return PEth test results for each test taking which evidence levels below 150 μg/L for each such test undertaken. The father shall do all acts and things and provide all necessary instructions and directions to cause Mr E to provide directly to the mother copies of all PEth test results issued within seven (7) days of the publication of same;
(e)subsequent to the father’s compliance with Order 12(d), and for a period of a further 24 months, the father shall undertake blood testing for phosphatidylethanol (PEth testing) as arranged by Mr E or another suitably qualified health practitioner on a quarter year basis, and the father is required to return PEth test results which evidence levels below 150 μg/L for each test taken. The father shall do all acts and things and provide all necessary instructions and directions to cause Mr E to provide directly to the mother copies of all PEth test results issued within seven (7) days of the publication of same; and
(f)for a period of six months following the date of these Orders, the father shall undertake alcohol breathalyser testing no more later than 90 minutes before the commencement of each time occasion with the children, and no more later than 30 minutes after the conclusion of time, on each occasion the children spend with him. Such testing shall be undertaken by using a breathalyser device that has the capacity of photo and/or video recording the time and date of each test that is undertaken by the father and transmitting such photo and/or video to the mother immediately after the father has undertaken the test.
13.In the event that the father fails to comply with any and/or all of the Orders referred to at 12(a)-(f) inclusive, or in the event that:
(a)the father fails a breathalyser test (which is defined to be reading which detects any alcohol); or
(b)the father returns a PEth test which a result over 150 μg/L, each of the following shall apply:
(i)all time the children spend with the father shall be suspended for a period of a minimum of 30 days from the date of non-compliance; and
(ii)the time the children spend with the father shall only recommence after such minimum 30 day period of suspension upon the father providing to the mother, personally or via Mr E or another suitably qualified health practitioner, a PEth test result which records a result less than 150 μg/L and the father recommencing his compliance with orders 12(a)-(f) inclusive; and
(iii)the time the children spend with the father shall only recommence after such minimum 30 days period of suspension following the father causing the mother to be furnished with a written report from his treating psychologist or psychiatrist, which such report shall include the professional opinion of the father's treating psychologist or psychiatrist as to the mental health status of the father at that time, and whether or not, in the opinion of the father’s treating professional psychologist or psychiatrist the father has the requisite capacity to care for the children and does not present an unacceptable risk to the children.
14.Forthwith upon the making of these orders, and for a period of two years following the date of these orders, the father shall irrevocably authorise and direct his treating psychiatrist to:
(a)forthwith notify the mother in the event that the father ceases ongoing treatment with him/ her against the recommendation of the father’s treating psychologist and/or psychiatrist and/or fails to attend consultations as requested and/or recommended; and
(b)forthwith notify the mother in the event that the father relapses into consuming alcohol to excess and/or consumes alcohol in breach of these orders.
15.The mother and father shall communicate about the children by email and text message and, only in the case of emergency, by telephone.
16.Both parents shall be at liberty to attend all official school functions and events to which parents are invited or are expected to attend along with all special event days in which the children, or any of them, may be involved or is participating.
17.Both parents shall be at liberty to attend all functions and events to which parents are invited or are expected to attend relating to each child’s participation in his/her extracurricular activities.
18.Without the written consent of the other parent first obtained in writing, each parent is restrained from enrolling the children, or any of them, in any sporting, music, or other extracurricular activity that requires or, may in the future require, the attendance of a child at times and on days when that child is in the care of the other parent.
19.Forthwith upon the making of these orders and continuously thereafter, the mother and father shall provide all authorities and give all necessary consents to ensure that all treating medical and health care practitioners for each child (including but not limited to general practitioner, paediatrician, specialists, counsellors and therapists) are authorised and directed to communicate with, and provide information and copies of documents directly to, the mother and the father upon either party’s respective request and at the requesting party’s own cost (including, but not limited to, each child’s treatment, diagnosis, prognosis, medications and test results).
20.Each party shall notify the other in writing of all serious injury and/or hospitalisation and/or medical treatment obtained for and/or involving the children or either of them as soon as reasonably practicable.
21.Forthwith upon the making of these orders and continuously thereafter, the mother and father shall provide all authorities and give all necessary consents to ensure that the principal and all staff at each child’s school are authorised and directed to communicate with and provide information and copies of documents directly to, the mother and the father upon either party’s respective request and at the requesting party’s own cost.
22.Each parent must notify the other as soon as practicable and within 24 hours of all changes to his/her landline telephone number and/or mobile telephone number and/or email address and each parent shall provide to the other the particulars of each new landline telephone number, mobile telephone number and email address.
23.Each parent must notify the other as soon as practicable and no later than six weeks prior to any changes to his/her residential address and each parent shall provide to the other the particulars of each new residential address.
24.The mother is at liberty to arrange and permit the children upon reaching the age of twelve, and each of them, to travel as unaccompanied minors on airlines which permit and allow unaccompanied minor travel.
25.Without admissions, neither party shall physically discipline (including smack) the children or either of them.
26.Each party is restrained from:
(a)denigrating and/or speaking negatively about the other party and/or members of the other party’s household in the presence or hearing of the children;
(b)engaging in discussions with the children, or either of them, about these proceedings save and except as is necessary to inform the children about the living arrangements resolved through the making of these orders, arrangements for communication in accordance with these orders, holiday and special event time arrangements, and matters related to the implementation of these orders;
(c)unreasonably questioning the children, or either of them, about the other parent or events that may have occurred while the children were in the care of the other parent; and
(d)showing or providing to the children, or either of them, originals or copies of any documents prepared for and/or used in connection with these proceedings.
27.The mother shall facilitate the attendance of the children upon a suitably qualified psychologist as agreed between the parties for the purposes of such psychologist providing to the children an age appropriate explanation as to the parenting arrangements prescribed by these orders and for the purposes of providing any therapeutic assistance to the children as may be deemed appropriate and/or necessary with such therapy to involve each of the parents at the request of the psychologist.
28.In the event the parties are in dispute about the implementation of these parenting orders or, notwithstanding proper consultation and discussion with each other, the parties remain in dispute about a substantive issue or issues involved in the parenting of the children, or any of them, then the parties shall first submit to mediation or Family Dispute Resolution to be conducted by a professional third party to be agreed between them (and failing agreement to be nominated by the father) before commencing further litigation in relation to parenting issues. The costs of the third party engaged by the parties shall be paid by the parties, as and when the same fall due and payable, in equal shares.
AND THE COURT ORDERS THAT:
29.For the purposes of s 11 of the Australian Passports Act 2005:
(a)it is noted that these orders allow the children, X born 2012 and Y born 2013, to travel internationally;
(b)each child is permitted to have an Australian passport or travel-related document provided the application for that document (or renewal) is made by the mother, Ms Naiman, who may sign any declaration on the application in the form approved by the relevant Minister, and the consent of the father, Mr Naiman, is not required;
(c)the father, Mr Naiman, is restrained from making an application for an Australian passport or other travel-related document for the child/ren;
(d)the children’s passports are to be released and held by the mother.
30.Within 7 days from the date of these Orders, the father shall return to the mother all original Australian passports for the children currently held in his possession.
31.The mother is permitted to temporarily take and send the children, and each of them individually, from the Commonwealth of Australia for the purpose of overseas travel and holidays and the mother shall notify the father in writing, no less than 14 days prior to travel (unless in the case of emergency and/or unexpected travel where such advance notice cannot be given in which case notice shall be provided as soon as reasonably practicable), of the dates of travel and details of the children’s accommodation and contact details when outside the Commonwealth of Australia.
32.The mother is at liberty to arrange the children, and each of them, to travel as unaccompanied minors on airlines which permit and allow unaccompanied minor travel.
33.Unless in the event of an emergency and/or unexpected travel, or otherwise agreed between the parties in writing, the children’s travel as provided for in Orders 31 and 32 shall not occur during times the children are in the care of the father pursuant to these orders.
34.Each of the mother and father (commencing in 2026) are permitted to take the children interstate during the school holidays and in that event they shall provide to the other parent at least 21 days prior to departure information as to the location at which the children shall be staying during the entirety of the trip and the names of any other persons accompanying them on the trip.
35.The father has liberty to apply for orders for him to travel overseas with the children after 1 January 2027.
36.Unless the mother has already done so, forthwith from the making of these orders, the mother shall facilitate the children attending upon a suitably qualified psychologist for the purpose of providing to the children an age-appropriate explanation as to the parenting arrangements and providing therapeutic assistance as may be required.
37.Each parent shall be at liberty to communicate with the children by telephone or video call between the hours of 4.30pm to 6.30pm on all days when they are in the care of the other parent AND IT IS NOTED THAT 4.30pm to 6.30pm is the time period where the call may take place but it is not intended that the call continue for in excess of 30 minutes.
38.The mother is to authorise the children’s school/s to communicate with the father and provide information and copies of documents such as school newsletters and school reports directly to the father and at the father’s expense.
39.Each parent is restrained from communicating with the children through any means other than as provided for in these orders including but not limited to Snapchat or Kids Messenger unless otherwise agreed between the parties in writing.
40.Each parent is restrained from speaking to the children about these Court proceedings other than to explain to the children the effect of these orders.
41.The father is restrained from making an application for the issue of any new or replacement firearms licence/permit in any State or Territory in the Commonwealth of Australia.
42.The father is restrained from possessing any firearms at any place at which the children spend time with him.
43.The parties are permitted to provide a copy of these orders to the children’s school and any medical or allied health professional engaged to treat the child/ren and/or father as provided for in these orders.
44.Within 28 days of the date of these orders, each party shall pay to Legal Aid NSW the sum of $10,985.33, being equal shares of the costs of the Independent Children’s Lawyer in the proceedings between the parties.
45.The Independent Children’s Lawyer is hereby discharged.
Property
46.By not later than 28 days from the date of these orders, the parties shall do all acts and things, sign all documents, and provide all necessary consents to cause the property situated at and known as F Street, Suburb G in the State of New South Wales (“the former matrimonial home”) to be listed for sale and to thereafter sell the former matrimonial home for the highest attainable price by private treaty or, if agreed between the parties, by public auction.
47.For the purposes of effecting a sale of the former matrimonial home, the following shall occur:
(a)within 21 days from the date of these orders, the parties shall retain a real estate agent as agreed between them to market and sell the former matrimonial home. In the event that the parties do not reach agreement as to the identity of a listing agent within 7 days from the date of these orders, the listing agent shall be H Real Estate.
(b)within 21 days from the date of these orders, the parties shall retain a solicitor in New South Wales who shall be instructed by them to prepare a Contract of Sale for the former matrimonial home and to act on their behalf as vendors of the former matrimonial home. In the event that the parties do not reach agreement as to a solicitor within 7 days from the date of these orders, the following will apply:
(i)the wife shall serve upon the husband’s solicitors the names and contact details of three solicitors she proposes be retained by the parties; and
(ii)within 7 days of service upon the husband, through his solicitors, of the written notice referred to at Order 45(b)(i) above, the husband shall select from the wife’s list the name of one solicitor, and he shall notify the wife of his selection, in writing, via the wife’s solicitors; and
(iii)within a further 7 days the parties shall do all acts and things, and sign all documents so as to enter into a retainer with the solicitor chosen by the husband from the wife’s list; and
(iv)if the husband fails to comply with Order 45(b)(ii) above, then the wife and/or her nominee shall be at liberty to select the solicitor and within a further 7 days of being notified of her selection, the husband and wife shall enter into retainer with the solicitor chosen by the wife.
(c)neither party shall confer on any agent without the consent of the other party first obtained in writing, or as otherwise required by these orders, any right to any sole or exclusive agency in respect of the former matrimonial home or as to any commission payable.
(d)the husband and wife shall cooperate in every way with the listing agent in order to present and market the former matrimonial home for sale including, but not limited to, the following and without limiting the generality of the following:
(i)making keys available to the listing agent to access all areas of the former matrimonial home;
(ii)allowing and permitting access to all areas of the former matrimonial home by all photographers and personnel involved in marketing the former matrimonial home for sale, at all reasonable times (including weekends) as may be requested by such persons;
(iii)allowing and permitted access to all areas of the former matrimonial home by prospective purchasers in the company of the listing agent at all reasonable times (including weekends) as requested by the listing agent;
(iv)doing or saying nothing to hinder or prevent a sale of the former matrimonial home being completed; and
(v)the husband shall keep the former matrimonial home and its gardens and yard in a neat and tidy condition at all times when prospective purchasers are inspecting the former matrimonial home.
(e)the husband and wife are each at liberty to request the listing agent acting on the sale of the former matrimonial home to defer payment of all advertising, marketing and auction expenses such that they be paid upon completion of the sale of the former matrimonial home from the sale proceeds. If, however, there are any upfront costs and expenses payable by the parties in relation to marketing, advertising, legal fees and/or auction expenses, the husband and wife shall each pay one half of all such costs and expenses as and when the same falls due and payable (and each party shall be reimbursed all such amounts paid by him/her from the proceeds of sale of the former matrimonial home as provided for by these orders).
(f)the sale price and listing price from time to time for the former matrimonial home (together with the reserve price if the former matrimonial home is being auctioned) shall be as mutually agreed between the parties in writing.
(g)in the event the parties are ever in dispute for more than 7 days as to listing price, sale price and/or reserve price for the former matrimonial home, the listing price, sale price and (where applicable) the reserve price shall be determined by Mr J, single expert valuer of M Valuers whose decision shall be final and binding upon the parties. For this purpose, the parties shall each pay, as and when the same falls due and payable, one half of the single expert’s reasonable costs and expenses for determining listing price, sale price and (where applicable) the reserve price.
(h)the parties shall each execute a Contract for Sale of the former matrimonial home in the form prepared by the solicitor having conduct of the sale at a price agreed between the parties, or in the absence of agreement, at such price as determined by the single expert real property valuer appointed pursuant to these orders.
48.In the event that the former matrimonial home is not sold either by auction or by private treaty within three months from the date it is first listed for sale on the open market (which is deemed to be the date upon which the former matrimonial home is first advertised for sale on the internet), then:
(a)the parties shall list the former matrimonial home for sale by public auction with the listing agent;
(b)the reserve price for the purpose of the auction shall be such as the parties agree upon in writing not later than 7 days prior to the scheduled auction and, in the event the parties cannot agree on a reserve price, the reserve price shall be determined by Mr J, single expert valuer whose decision shall be final and binding on the parties;
(c)in the event that bidding at the auction does not reach the reserve price, the parties or such of them as attends the auction may negotiate with the highest bidder or any other interested person and effect a sale of the former matrimonial home at a price which is not more than 2.5 per cent below the reserve price or such other price as the parties agree in writing; and
(d)if the former matrimonial home remains unsold at the conclusion of the public auction, the parties shall forthwith do all acts and things and sign all documents necessary to relist the former matrimonial home for sale by private treaty for the highest attainable price and for the purposes of such sale on the terms prescribed by these orders.
49.Upon completion of the sale of the former matrimonial home, the proceeds of sale are to be applied and disbursed in the following manner and priority:
(a)in payment of real estate agent’s commission, advertising expenses and legal costs and expenses of the sale (including by way of reimbursement to the husband and/or the wife for any and all such expenses he/she may have paid prior to the completion of the sale);
(b)in payment sufficient to discharge in full all mortgages and encumbrances registered on title to the former matrimonial home;
(c)in payment to the trustee of the K Trust the amount of $1,068,634 by way of full and final repayment of all monies owed by the parties to the K Trust;
(d)in payment to the wife of 59 per cent of the balance then remaining plus $49,485.66; and
(e)in payment of the remaining balance
of 41 per centto the husband.
50.Pending completion of the sale of the former matrimonial home, and as between the parties, the following shall apply:
(a)the husband shall pay or cause to be paid all council rates, home building and contents insurances, and all utilities and outgoings (including water and electricity) relating to the former matrimonial home, and the husband shall indemnify and shall keep indemnified the wife in relation to same whenever and however arising;
(b)neither party shall redraw or do any act or thing to increase the balance owing to L Bank in relation to the mortgage registered on title to the former matrimonial home;
(c)neither party shall transfer or further encumber the legal title to the former matrimonial home; and
(d)in the event the husband fails to comply with Order 48(a) and any amount that should have been paid by the husband is deducted and paid from the net proceeds of sale of the former matrimonial home prior to distribution of each party’s share of the net proceeds of sale of the former matrimonial home, then all such amounts not paid by the husband in the first instance shall be added back to the net proceeds of sale of the former matrimonial home when calculating each party’s respective share of the net proceeds of sale of the former matrimonial home.
51.In accordance with s 90XT(4) of the Family Law Act 1975 (Cth), a base amount of $67,174 is allocated to the wife, Ms Naiman, out of the interest of the husband, Mr Naiman, in the Superannuation Fund 1 Member Number ….
52.In accordance with s 90XT(1)(a) of the Family Law Act 1975 (Cth):
(a)the wife is entitled to be paid, using the base amount calculated in Order 49, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(b)the entitlement of the husband, and the entitlement of such other person to whom a splittable payment may be made, to payments out of the husband’s interest in Superannuation Fund 1 Member Number … is correspondingly reduced by the force of this order.
53.The trustee of Superannuation Fund 1 (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act 1975 (Cth), and the Family Law (Superannuation) Regulations 2001 (Cth) the entitlement created for the wife by Orders 49 and 50 as at the operative time; and
(b)pay the entitlement when the Trustee makes a splittable payment out of the husband’s interest in Superannuation Fund 1.
54.This order has effect from the operative time and the operative time is the fourth business day after service of a certified copy of these sealed orders on the Trustee.
55.This order binds the Trustee of Superannuation Fund 1.
56.As between the parties, the wife shall retain sole legal and beneficial ownership of the following to the exclusion of the husband:
(a)the wife’s Motor Vehicle 1, registration …;
(b)all savings standing to the credit of the wife in bank accounts in her sole name;
(c)the wife’s jewellery items;
(d)all of the wife’s superannuation member benefit entitlements held with Superannuation Fund 2; and
(e)all items of furniture, contents and personal effects in the wife’s possession, custody or control as at the date of the making of these orders (including all remaining items at the former matrimonial home and all items which are owned by the wife at the property situated at N Street, Suburb D).
57.As between the parties, the husband shall retain sole legal and beneficial ownership of the following to the exclusion of the wife:
(a)the husband’s Motor Vehicle 2, registration …;
(b)any and all proceeds of any insurance claim received by the husband following the destruction, by fire, of the husband’s Motor Vehicle 3;
(c)any and all proceeds of sale, post separation, of shares formerly owned by the husband with P Ltd;
(d)all savings standing to the credit of the husband in bank accounts in his sole name;
(e)all remaining shares and equities held by the husband with P Ltd;
(f)all remaining (unvested) interests and awards held by the husband in P Ltd mandatory deferred shares pursuant to the P Ltd Mandatory Deferred Share Plan award scheme;
(g)all of the husband’s member benefit entitlements held with Superannuation Fund 1; and
(h)all items of furniture, contents and personal effects in the husband’s possession, custody or control as at the date of the making of these orders.
58.As between the parties, the husband shall be solely liable for the following, and he shall indemnify and forever keep the wife indemnified in respect of the same:
(a)all personal credit card debt;
(b)all monies owed by the husband to ANZ Bank Ltd by way of outstanding personal loan;
(c)all monies owed by the husband to Q Pty Ltd; and
(d)all current and future personal taxation liabilities and all other personal liabilities in the sole name of the husband however and whenever arising.
59.As between the parties, the wife shall be solely liable for the following, and she shall indemnify and forever keep the husband indemnified in respect of the same:
(a)all personal credit card debt;
(b)all current and future personal taxation liabilities of the husband however and whenever arising; and
(c)all current and future personal taxation liabilities and all other personal liabilities in the sole name of the wife however and whenever arising.
60.Except as any other provision of this orders provides to the contrary:
(a)the wife hereby indemnifies the husband from and in respect of all actions, claims, suits, and demands as may be made against the husband in relation to all liabilities in the name of the wife; and
(b)the husband hereby indemnifies the wife from and in respect of all actions, claims, suits, and demands as may be made against the wife in relation to all liabilities in the name of the husband.
61.Except as otherwise is provided for by any paragraph comprising these orders, each of the husband and the wife releases the other from all debts owing from one to the other.
62.The parties shall do all acts and things and execute all documents, deeds and instruments as are required of them to give effect to these orders in the time periods prescribed by these orders.
63.In the event that either party refuses or neglects to execute any deed, document, or instrument necessary to give effect to any or all of these Orders, then a Registrar of the Federal Circuit and Family Court of Australia (Division 1) is appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all such documents, deeds and instruments in the name of the refusing and/or neglecting party.
64.Each party has leave to provide a copy of these orders to each of the following:
(a)D School;
(b)any high school attended by the children, or either of them;
(c)Ms O (the paternal grandmother); and
(d)any mental health provider engaged to provide mental health support and/or treatment to the husband/father.
65.Otherwise all extant applications be dismissed and the matter removed from the list.
AND THE COURT NOTES THAT:
A.Pursuant to s 81 of the Family Law Act 1975 (Cth), these orders are intended to bring an end to all financial relationships between the parties and to avoid further proceedings between them.
B.These orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Naiman & Naiman has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
INTRODUCTION
The proceeding involved each of the parties seeking differing final parenting and property orders.
The parties engaged in a lengthy trial, and lengthy litigation, the proceeding first having commenced in October 2018 upon the filing by the applicant husband (“the husband” and referred to interchangeably as “the father”) of an Initiating Application for parenting orders pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”). By Response to Initiating Application filed by the respondent wife (“the wife” and referred to interchangeably as “the mother”), she too sought final parenting orders. The Independent Children’s Lawyer (“ICL”) was joined to the proceeding by orders made 5 March 2019. Property orders as sought by each of the parties were first contained in the husband’s Amended Application for Final Orders filed 4 March 2019 and the wife’s Amended Response to Final Orders filed 3 May 2019.
The central parenting orders issues in dispute at trial were whether the parties should have equal shared parental responsibility for the parties’ two children as sought by the husband, or whether the wife should have sole parental responsibility for the children as sought by her and the ICL; what secondary school the children should attend; whether the children should live equally between their parents as primarily sought by the husband, or whether they should live with the wife and spend only supervised time with the husband as sought by the wife; or whether they should spend unsupervised time with the husband as sought by the ICL and the husband; and whether the husband’s substance abuse issues and undermining of the wife’s parental authority posed a risk to the children. The central property orders issues in dispute at trial were the maternal grandparents and their family trust’s respective contributions to the property of the parties; the monies said to be owed by the parties to the maternal grandparents’ family trust; the characterisation of vested and unvested shares as received by the husband from his employer; a claim for add-backs as made by the wife; the husband’s desire to retain the former matrimonial home and the wife’s seeking that it be sold; and what percentage adjustment between the parties as to contributions and matters contained within s 75(2) of the Act matters resulted in orders that were appropriate and just and equitable.
Orders sought
The father sought orders pursuant to his Minute of Order ‘Annexure A’ annexed to his written submissions filed 27 May 2024.
The mother sought orders pursuant to her Minute of Proposed Final Orders ‘Annexure 1’ annexed to her written submissions filed 13 May 2024.
The ICL sought orders pursuant to their Minute of Final Parenting Orders annexed to her written submissions filed 29 April 2024.
MATERIAL RELIED UPON
The husband relied upon the following material:
(1)Minute of Order filed 27 May 2024;
(2)his trial affidavits of evidence filed 14 August 2023 and 15 February 2024;
(3)affidavit of Dr R filed 20 February 2024;
(4)affidavit of Ms O filed 23 August 2023;
(5)Financial Statement filed 28 August 2023;
(6)Child Dispute Conference Memorandum dated 31 January 2019;
(7)Updated Valuation Report of M Valuers dated 14 August 2023; and
(8)written submissions filed 27 May 2024.
The wife relied upon the following material:
(1)Further Amended Response to Initiating Application filed 3 May 2019;
(2)her trial affidavits of evidence filed 14 August 2023 and 22 February 2024;
(3)Financial Statement filed 14 August 2023;
(4)affidavit of Mr C filed 14 August 2023;
(5)affidavit of Ms C filed 14 August 2023;
(6)affidavit of Ms T filed 14 August 2023;
(7)Notice of Risk filed 6 December 2018; and
(8)written submissions filed 13 May 2024 and 3 June 2024.
The ICL relied upon the following material:
(1)Child Dispute Conference Memorandum dated 31 January 2019; and
(2)written submissions filed 29 April 2024.
All parties sought to rely upon the Single Expert Report of Dr S (“Dr S”) dated February 2022 and the Updated Report of Dr S dated February 2024.
Both the husband and the ICL sought to rely upon the Single Expert Report of Mr E dated January 2021 and the Updated Report of Mr E dated January 2024, filed a short time later in January 2024.
The affidavit evidence as relied upon by the wife of the maternal grandparents, and of Ms T, was admitted without challenge.
RELEVANT FACTUAL FINDINGS
In 1978, the husband was born in City U, Country V. He relocated to Australia in 1986 and is an Australian citizen. He was aged 45 years at trial. The husband is employed in the financial sector. He is in good health save for being diagnosed with a mental health disorder during the currency of the litigation. He also had, during the currency of the litigation, some substance abuse issues, with such issues said by the wife, and I find, to have been a feature of the parties’ relationship history.
In 1980, the wife was born in New Zealand. She was aged 43 years at trial and is in good health. She is a citizen of New Zealand. The wife is employed as an educator wherein she works casually.
In mid-1995, the maternal grandfather, Mr C, established the K Trust (referred to interchangeably as “the Trust”) in New Zealand. It was and is a discretionary family trust entity. He and the maternal grandmother, Ms C, were and remain appointors of the Trust. They were also co-trustees of the Trust with an independent third person. Mr and Ms C were and are the primary beneficiaries of the K Trust. The other discretionary beneficiaries of the Trust include the maternal grandparents’ four adult children (which include the wife) and nine grandchildren.
In or around late 2005, the parties commenced cohabitation in City W, United Kingdom where they were living and working at that time. The husband was employed as a finance professional at Z Company in City W, and the wife was employed as an educator.
In or around early 2008, the parties experienced financial difficulty and approached the maternal grandparents to obtain a loan. Such loan monies, NZD15,207.57, were advanced to the parties by the K Trust. No interest on the loan was charged. The parties repaid the sum of $11,730.21, leaving a running balance of NZD3,477.38 owing.
In or around mid-2010, the parties sought a further loan from the maternal grandparents. Again, the K Trust advanced loan monies to the parties in the further sum of NZD4,301.79.
In 2011, the husband’s employment with Z Company in City W was terminated. The parties decided to reside in Australia.
In mid-2011, the parties married in City BB, New Zealand. The maternal grandparents gifted the sum of NZD3,633 for the purchase of wedding photos.
In 2012, the parties relocated from the United Kingdom to Australia
In 2012, the child X (“X”) was born. He was aged 11 years at trial. The wife remained at home caring for the child as the primary caregiver. She remained in this role until around 2016.
In or around late 2012, the husband drank alcohol to excess after a friend’s wedding. Upon the parties returning home, the husband urinated on the child X’s empty cot.
In late 2012, the K Trust provided further financial assistance to the parties by way of funds advanced as a loan in the sum of NZD25,775. The parties had significant credit card debt accrued and had been assisted by the husband’s mother in repaying it. This further loan advance by the K Trust was to provide for a repayment of the monies advanced by the husband’s mother, acknowledging her modest means, and otherwise to reduce the parties’ credit card and other debt.
In 2013, the child Y (“Y”) was born. He was aged 10 years at trial.
In late 2013, the parties purchased the property known as and situate at F Street Suburb G (“the FMH”) in Sydney as joint tenants for a purchase price of $1,060,000. The property purchase, together with associated costs of purchase, was funded by way of an interest free loan from the K Trust in the total sum of $886,000, together with mortgage funds obtained by the parties from L Bank in the sum of $225,000.
In late 2013, the parties entered into a “Deed of Acknowledgment of Debt in Family Transaction” in relation to the loan advanced by the K Trust in the sum of $866,000 as applied to the purchase of the FMH. That Deed recorded that the sum was repayable upon settlement of the sale, or transfer of the FMH (which included a transfer of the proprietorship of the property from the mother to the father as sought by the father in this proceeding) or until written demand, but that such demand could not be made until both parties had died. The parties accepted that such loan remains outstanding and is required to be repaid by them to the Trust.
In or around late 2013, the husband threw a bottle at the wife, smashing a window. His mother (the paternal grandmother), deposed to being aware from that time that the father had an alcohol problem which she wished for him to address. That ultimately happened in 2015, when the paternal grandmother supported her son financially to attend upon a psychologist so that this issue did not adversely impact the children.
In May and November 2014, the parties repaid the K Trust a total sum of NZD10,000 in respect of monies loaned by the Trust to them between 2008 and 2012. Thereafter, the Trust did not pursue repayment of the balance of monies advanced to the parties between 2008 and 2012. That balance was NZD23,553.79.
In or around 2015, the husband threw a chair at the deck of the parties’ home, in a fit of rage.
In or around 2015, the husband whilst intoxicated, attempted to remove a fitness tracker which he gifted the wife by grabbing her wrist with force. When the wife resisted, the husband dragged her down the hallway with force until the fitness tracker ripped off her wrist.
In 2015, the husband commenced to be employed in the financial sector on a full time basis.
In 2016, the wife returned to work as an educator on a part-time basis.
In late 2016, the K Trust loaned the parties a further sum of $100,000 by way of a direct deposit of these funds into the L Bank of the parties.
In or around early 2017, the husband commenced to attend upon Ms AA, a psychologist, in an acknowledgment of the parties then relationship issues, and his excessive drinking.
In or around early 2017, the parties attempted marriage counselling and the wife also briefly attended upon a psychologist.
In early 2017, the trustees of the K Trust were replaced by a corporate trustee, K Ltd, established also in New Zealand, pursuant to the laws of New Zealand. The directors of the trustee company are the maternal grandparents, Mr CC and Mr DD (both of whom are finance professionals unrelated to the mother’s family). The position remained that the assets of the K Trust were not available to be distributed to the beneficiaries of the Trust unless the trustee of the Trust resolved otherwise. The discretionary beneficiaries (the wife and the parties’ children) were not able to call on the assets or income of the Trust.
During her lifetime to the point of trial, the wife had not received the benefit of any distributions of income or capital from the K Trust. It was her expectation that she will not receive any income or capital in the future. That evidence of the wife was supported by the evidence of the maternal grandparents. What the parties have received, either jointly or separately, are the benefits from the K Trust as outlined in these reasons together with other benefits such as family holidays as paid for by the Trust until 2019.
In May 2017, the wife received approximately $4,000 from the K Trust by way of direct deposit into her Commonwealth Bank Account. These funds were to be applied, and were so applied, to pay the costs of a tradesperson who undertook work at the FMH. These funds were advanced as a further loan to the parties from the K Trust.
In July 2017, the parties received $74,023.31 from the K Trust by way of direct deposit into their L Bank Account. Such monies were advanced by way of a further loan together with an additional advance of a loan of $350.
In mid-2017, the K Trust advanced to the parties by way of a further loan the sum of $1,760.
In or around October 2017, the parties separated.
In October 2017, the K Trust advanced to the parties by way of a further loan the sum of $1,250.
In late October 2017 to early November 2017, the husband moved into an apartment in Suburb EE, but stayed at the FMH on weekends, and Wednesday evenings for a time. The K Trust paid for the husband’s rent from November 2017 to September 2018 in the sum of $26,515 together with a bond payment of $2135. During this period, the maternal grandparents also contributed (up to March 2019) a further sum of $18,035 for various costs and expenses of the parties.
In November 2017, the K Trust advanced to the parties by way of further loan the sum of $1,250.
As at the end of 2017, the K Trust had loaned the parties (in the further loans described above), additional to that loaned in respect of the acquisition of the FMH, a total sum of $182,633.31. Such monies were advanced by the Trust to meet the costs of repair, maintenance and improvement works in respect of the FMH property. Whilst this was a subject of dispute during the trial, the husband ultimately conceded this further sum was owing to the K Trust. That concession resulted in an acknowledgment by the parties that the total sum as owed by them to the Trust was $1,068,6634. The Trust had not, and will not, levy any interest on such outstanding loan funds.
In late 2017, the husband was charged with a drink driving offence resulting in a licence suspension and an alcohol detection interlock device being fitted to his car for 24 months. The husband pleaded guilty to this offence.
In early 2018, the husband commenced taking antidepressants. He sold his Motor Vehicle 4 for negligible value.
In or around early 2018, the K Trust paid the total amount of $6,738 incurred by the wife in respect of her completing her tertiary studies at FF University.
In early 2018, the husband withdrew $25,000 from the parties’ joint L Bank home loan account. The withdrawal was without the wife’s prior knowledge. I accept the husband’s evidence that he applied these funds to pay the joint credit card debt of the parties of approximately $18,680 and otherwise acquired furniture and household belongings for his new home, having vacated the FMH to leave the mother and children in occupation.
In mid-2018, the husband was diagnosed by Ms AA with a major depressive disorder with anxious distress. She considered at that time, a further diagnosis of alcohol use disorder but determined the husband had not previously, and did not, meet the DSM-5 criteria.
In 2018, the wife was gifted Motor Vehicle 1 from the maternal grandparents.
In or around mid-2018, the husband commenced a new rental being a house at Suburb G which was proximate to the children’s school. He ceased to make payments in respect of the mortgage secured by the FMH.
In late 2018, the wife, concerned about the children in the husband’s care, drove to his home to check if anyone was home. She drove past the home and observed the curtains were drawn. The child X subsequently contacted the wife at approximately 6.37pm, informing her they had not eaten dinner and that their father was asleep. The wife then spoke with the husband, saying she would collect the children from him. The husband denied he had been asleep, and said he would call the Police if the wife attended upon his property. The wife then called the GG Police Station to explain what she was proposing to do. The wife attended the husband’s home to collect the children. The husband did not let her enter the home upon her arrival. The child X unlocked the door for his mother, and the wife removed the children from the home. The Police attended upon the home shortly after. The husband invited the Police officers into his home to indicate that plates of food were available for the children to eat.
Between September 2018 and February 2019, the K Trust paid monies toward the L Bank mortgage payments due in respect of the FMH in the sum of $6,585, and between March 2019 and July 2023, the Trust paid a further amount of $58,170.15 in monthly instalments of approximately $1,097.55 each month. The total contribution by the Trust was in the sum of $64,755. The mortgage was, in this way, paid out.
On 30 October 2018, the husband initiated the proceeding in the then Federal Circuit Court of Australia (now Federal Circuit and Family Court of Australia (Division 2)).
On 7 December 2018, orders were made by the Court including for the husband to undertake two carbohydrate-deficient transferrin (“CDT”) tests within three months as requested by the mother and within 7 days of such requests. Further parenting orders were made by consent, including, for the parties to have equal shared responsibility of the children; the children to live with the wife and for the children to spend time with the husband: each alternate weekend from after school Friday to 4.00pm Sunday, and each Wednesday from after school to 6.30pm, and otherwise during some of the school holidays. The parties were restrained from using illicit drugs or consuming alcohol to excess whilst the children were in their care, and for 24 hours prior thereto. At the commencement of the trial, the wife proposed essentially a continuation of this regime and that of the August 2019 orders on a final basis. The husband sought an equal time spent and live with arrangement.
On 7 January 2019, the wife requested the husband undertake a CDT test pursuant to the interim orders which also necessitated the provision of test results to the wife. No results were provided by the husband to the wife.
Approximately one week later, the wife again sought the CDT testing results to no avail.
In or around early 2019, the husband had an alcohol detecting interlock device fitted to his newly acquired vehicle.
On 1 February 2019, at a Child Dispute Conference, the husband told the Family Consultant during his interview that he sought appropriate treatment and support for his struggle with alcohol through counselling and through a day program at a private rehabilitation facility. He also stated that he had yelled at, and pushed, the wife while drinking alcohol, and that such behaviours occurred on more than one occasion. He reiterated that he had behaved in such manner at trial.
On 20 February 2019, the husband’s solicitors provided two CDT testing results to the wife, the results indicating “probable recent or ongoing excessive alcohol intake” by the husband.[1]
[1] Mother’s affidavit filed 14 August 2023, paragraph 165.
On 5 March 2019, orders were made appointing an Independent Children’s Lawyer and requiring the husband to undertake two CDT tests pursuant to requests from the ICL (and within seven days of such requests) with the results to be provided by the husband to the ICL and the wife’s solicitor within seven days of his receiving of the same.
In or around early 2019, the children disclosed to the wife that the husband’s car would not start because of the interlock device.
In August 2019, the wife was provided with a motor vehicle as paid for by the K Trust at a cost of $17,300. It was a gift to her.
On 20 August 2019, the Court made further orders including that, within 48 hours of a request by the ICL, the husband undertake a liver function test and CDT test; the children live with the wife; the children spend time with the husband in week one from after school on Thursday until before school Friday and in week two from after school on Thursday to 4.00pm on Sunday, together with half school holidays and special occasion time. The husband’s time was conditional upon him continuing to attend upon his treating psychologist and complying with the orders for alcohol testing. The paternal grandmother was to be substantially present when the children were spending more than three nights with the husband. The husband was to notify the wife and the ICL if the interlock device on his vehicle prevented the vehicle from starting. The husband was otherwise restrained from consuming any alcohol when the children were in his care and for 24 hours prior. Each of the parents were at liberty to communicate with the children when in the care of the other parent between 4.30pm and 6.30pm each day, and the parents travel with the children required the prior written consent of the other parent.
In or around May 2020, the paternal grandmother relocated from her home in Perth to live with the husband in his home in Sydney. She had earlier travelled to assist the husband in his care of the children and to be ‘substantially present’ when required pursuant to Court order.
On 3 June 2020, X complained to the husband of the wife’s rough handling of him, including that as a consequence, he hit his head on the floor.
In July 2020, the K Trust sent a letter to the parties stating the amount then owing by the parties to the Trust was $1,069,883.
In September 2020, the wife informed the husband that she would like to enrol the children in water sports during the coming summer. The wife was polite in her seeking agreement from the husband. The husband’s response was rude, and irascible. It was oppositional. It typified his communications with the wife since at least the separation of the parties.
In or around early 2021, the wife commenced her relationship with Mr HH.
In January 2021, the single expert witness, Mr E, produced his report. He recommended amongst other things that the husband undergo monthly alcohol testing for 12 months.
In May 2021, the maternal grandmother and the wife entered into a written loan agreement for the maternal grandmother to make monies available to the wife to meet the cost of a renovation at the FMH, where the wife had been residing since late 2017. The husband was not a party to this loan. The money was said to be a loan to be repaid once the property settlement of sale, or transfer, was completed. The maternal grandparents deposed that they would seek repayment from the parties, by deduction from the sale proceeds, for the cost of these maintenance/improvement works to the FMH. The quantum of the loan was $13,844.
On 25 May 2021, the husband filed an urgent Application in a Proceeding seeking to reduce his periodic child support liability. The husband stated his financial circumstances were dire and that he could not afford to pay child support at the assessed rate. The Application was subsequently abandoned by him.
In July 2021, the children returned from the husband’s home and informed their mother they were hungry; that the husband was “sleeping a lot this weekend”; “the paternal grandmother spent most of the weekend in her room”; and that the husband told them “She’s slowly dying”.[2]
[2] Mother’s affidavit filed 14 August 2023, paragraph 129.
The next day, the wife requested the husband undertake CDT testing and a Phosphatidyl ethanol (“PEth”) alcohol detecting test within 24 to 48 hours.
In August 2021, the husband raised with the wife by email correspondence the question of the children’s high school enrolment.
In mid-2021, a divorce order was made.
On 21 September 2021, the matter was transferred to the Federal Circuit and Family Court of Australia (Division 1).
In November 2021, the husband again initiated with the wife a discussion about the children’s secondary schooling.
A few days later, the wife responded, stating she could not afford private school fees. Given the husband’s financial position at the time, it appeared to the wife that the husband could not meet any such fees.
In early 2022, the husband invited the wife to attend open days at various high schools as selected by him, including JJ School, a private school.
In early 2022, the wife conveyed to the husband her objection to the children attending with the husband upon any open school days as proposed by him, given the parties lack of agreement. She was concerned that the children would become confused and invested in a particular school, and then have their hopes dashed. Despite the wife’s views, the husband took X out of school and had him accompany the husband to JJ School open day. Further, the husband took both boys out of before school care, where their mother had just placed them, to have them attend with him on other schools as selected by him that were having open days. He did not notify the wife that he was removing the children from the school grounds on either occasion, or thereafter advise her directly, that he had taken the children to open days contrary to her express wishes.
Around 8 March 2022, the husband sought child support departure orders and, among other parenting orders, an increase in the time the children were spending with him to be an equal time arrangement or, in the alternative, a staged increase to five then six nights a fortnight with the husband.
In March 2022, the husband’s treating psychologist, Ms AA, noted the husband to be distressed and worried about his sons. The husband was verbally aggressive and seemed angry and confused. Ms AA asked him whether he had been drinking alcohol. The husband, on three occasions, denied that he had been drinking. His behaviour was such that Ms AA determined that she would no longer treat him.
In 10 June 2022, over two months later, the husband began to attend upon another psychologist, Mr KK. The husband had obtained that referral from his general practitioner. The husband did not tell the wife or the ICL that he was no longer attending upon Ms AA, nor that he was commencing to attend upon Mr KK. It was a condition of his spending time with the children that he continuously attended upon his psychologist. He had approximately 10 sessions with Mr KK.
In August 2022, the wife informed the husband of her intention to move with the children from the FMH to another area of Sydney.
In September 2022, at around 4.00pm, the wife was in the car with the children and the husband called. The husband was “slurring his words” and asking the children “about it being their bedtime”.[3] The children expressed discomfort and tried to get off the phone as soon as possible. The wife asked the children “Have you ever seen your dad like that?”,[4] to which the child Y responded “He has been a bit like that lately. He vomited red stuff up last week”.[5] It was the wife’s evidence that the extent of the children’s knowledge of what it meant to be drunk was their father ‘vomiting up red stuff’.
[3] Transcript 28 February 2024, p.401 lines 17-18.
[4] Transcript 28 February 2024, p.401 lines 46-47.
[5] Transcript 28 February 2024, p.402 lines 7-8.
In late 2022, the husband failed to deliver the children to school.
A few days later, the husband removed the child X from his before school care without the knowledge or consent of the wife and retained him for the balance of the school day.
In September 2022, the children disclosed to the wife that the husband had “been vomiting lots lately”.[6] The husband again telephoned the children whilst in the car with the wife and sounded to the wife to be drunk and nonsensical.
[6] Mother’s affidavit filed 14 August 2023, paragraph 141.
On 20 September 2022, the ICL and the wife’s solicitors requested that the husband undertake CDT testing within 48 hours, in accordance with the orders of 20 August 2019.
A short time later, the husband produced his highest CDT test result. The husband failed to disclose this test result, and a series of test results in September 2022, which indicated excessive alcohol use, or the fact that he had taken the tests, to either of the wife or the ICL as required by earlier Court order. The husband had also not provided the results to Mr E, nor to his treating psychologist. He conceded the test result on the second day of the trial, when it was put to him as discovered from material produced under subpoena (in relation to which leave was granted to the wife’s solicitors to issue on the day prior). The husband also conceded he had been untruthful in the witness box in respect of this testing. Thereafter, the husband’s consumption of alcohol had reduced with the results indicating a decline over a period of about two weeks, and a further two weeks later. As a result of this evidence, and the husband’s concerning non‑disclosure and untruthfulness, the children’s time with the husband was varied at trial in September 2023 to twice each week, daytime only, and supervised by the paternal grandmother.
In or around late 2022, the maternal grandparents settled their purchase of, in the name of one of the wife’s sisters, Ms T, the property known as and situate at N Street, Suburb D (“the Suburb P property”) in Sydney for $2,500,000 plus associated costs and duty of $126,542. This property is registered in the sole name of Ms T (who is a permanent resident of Australia) but is beneficially owned by the maternal grandparents. Ms T lives in Melbourne, and it is her unchallenged evidence that she does not treat the property as her own. The wife resides in this property rent free with the children, and all outgoings of any kind are paid by the maternal grandparents. The property is situated next door to the wife’s partner’s home. The arrangement is that the wife and children can live in this home rent free and expenses free for a period of three years concluding in October 2025. To make the property habitable, the maternal grandparents gifted to the wife a sum of approximately $60,926 in furniture, furnishings, shutters, and curtains, and in the erection of a shed on the property.
In late 2022, the wife partially relocated and began to live between the FMH and the Suburb D property. The wife did not have any discussion with the children as to whether they would be residing in the Suburb D property on a more permanent basis. It was her evidence the children lived during the week in the FMH and on the weekends, they spent time in Suburb D. The children commenced spending six nights a fortnight in the Suburb D property and travelled from there to and from school in Suburb GG, near the FMH. They continued to spend time with the husband each alternate weekend and alternate week in accordance with the August 2019 orders.
In October 2022, the husband underwent CDT testing as requested by the ICL. He failed to provide the test result until over three months later.
In late 2022, X was interviewed at JJ School. He thereafter received an offer to attend the school for his secondary schooling. The husband paid the enrolment acceptance fee of $5,000. He did not tell the wife of the interview or his payment. She became aware of the interview through X telling her about it.
In late 2022, the husband submitted a Firearms Licence application to NSW Police. In his application he denied that he had been, in the preceding 12 months, referred or treated for alcoholism or mental or nervous disorder or illness.
In early 2023, the husband received a letter from NSW Police approving the issue of the husband’s Firearms Licence. The husband was to attend a Service NSW Centre to collect his Firearms Licence for proof of identification.
In early 2023, the husband was issued a Firearms Licence. The Licence was set to expire in early 2025.
In January 2023, the ICL requested the husband undertake a CDT test within 48 hours. This result was an indicator of excessive alcohol use at the lower range.
On 10 February 2023, the husband’s solicitors forwarded to the ICL and the wife’s solicitors a copy of his results from his CDT test in October 2022. That result was not a problematic reading.
In early 2023, the husband removed the children from before school care without the knowledge and consent of the mother. He took the children to attend an interview at another school. Both children received offers to attend the high school. The wife, upon hearing through the children what the husband had done, requested through her solicitors the husband sign an undertaking not to remove the children from before or after school care. The husband through his solicitors refused to sign such undertaking claiming that any undertakings were not necessary.
In April 2023, the husband provided to the wife and the ICL further acceptable results of CDT testing referable to testing completed by him in February 2023.
In May 2023, the husband attended upon the FMH with the children and a locksmith. He had observed that it appeared to have been abandoned by the wife, and claimed there were only some items of property in the shed. There were in fact some remaining items of property belonging to the wife and children in the home. The husband’s evidence was that he was “extremely horrified” at the prospect of the wife having departed the home, taking the children with her,[7] to take up residence in the another area. The husband proceeded to remove the CCTV cameras attached to the home. The husband and the locksmith then attempted to enter the home but were unsuccessful. The husband claimed the child X offered to assist him in gaining entry to the home by X climbing through an unlocked window of the FMH in order to find a key to open the front door. The husband encouraged the child to do so. The child was unable to find a key. The husband, the children and the locksmith had no choice but to depart the property that day.
[7] Transcript 6 September 2023, p.95 line 7.
In May 2023, the husband and locksmith again attended at the FMH, and the locksmith changed the locks to the property. At approximately 3.30pm, the wife arrived at the FMH and discovered the locks had been changed, and the CCTV security cameras had been removed. The wife called the Police to attend the FMH. The children had not told their mother what had occurred the day before as they were staying with the husband that weekend. The wife was attending at the FMH for changeover of the children and to stay the night there with the children. At approximately 3.50pm, the husband delivered the children to the property with the paternal grandmother in attendance. An altercation ensued between the wife and the paternal grandmother, with the paternal grandmother and husband alleging the wife pushed the paternal grandmother and verbally abused her whilst the children were present. I accept that the wife was verbally abusive on that occasion but make no finding on the available evidence as to whether any physical altercation as described by the husband and his mother occurred. The paternal grandmother claimed the wife walked over to her and said “You and [the father] are horrible people” in front of the children. The wife I find did indicate to the children that their “grandmother and your father are horrible people, they have locked us out of the house”.[8] The wife screamed at the grandmother to “get off my property”.[9] The father walked toward both the paternal grandmother and the mother and allegedly told the mother “Do not yell or touch my mother”.[10] The scene was a most unedifying one by all adult participants which occurred in front of the children. At approximately 4.10pm, the Police attended upon the scene. The husband had also called them to attend. The wife was permitted to enter the FMH to retrieve a small number of personal items. The paternal grandmother informed the Police officer that the mother had yelled and screamed at her, to which the officer responded that she should make a statement. The paternal grandmother began to cry to which the Police officer informed her “You are too distraught. You do not have to provide a statement today. I suggest you do it tomorrow at the police station”.[11] The paternal grandmother followed the officer’s advice and attended the Police station the next day. The Police investigated the matter and laid no charges noting it as a verbal dispute with no offence occurring. The episode did no credit to the parents who placed the children in the midst of this dispute. Its genesis was the wife’s moving the place of residence of the children without providing reasonable and proper notice to the husband, and the husband’s involvement of the children in trying to break into the FMH without simply speaking with the wife.
[8] Affidavit of Ms O filed 23 August 2023, paragraph 69.
[9] Mother’s affidavit filed 14 August 2023, paragraph 259.
[10] Affidavit of Ms O filed 23 August 2023, paragraph 73.
[11] Affidavit of Ms O filed 23 August 2023, paragraph 78.
In mid-2023, the wife submitted applications for enrolment of the children at D School without the husband’s consent. The children were then continuing to attend attending LL School in Sydney, near the FMH.
On 10 May 2023, the husband’s solicitor requested the wife’s undertaking not to change the children’s school and residence. She would not give such undertaking.
In mid-2023, the wife enrolled the children at D School. She did not place the father’s name on the enrolment form as, she claimed, at the time of completing the form she did not have the husband’s consent to complete the children’s enrolment. The wife provided her details, the details of Mr HH as a ‘step-parent’ (albeit in this proceeding she is very careful to make clear that they do not cohabitate and nor does he provide any financial support to her) and the details of the paternal grandmother. Her omission of the husband’s name as a parent of the children was, I find deliberate, and not a mistake as claimed by her.
Around this time, the wife completed her move from the FMH to Suburb D with the children.
On 17 May 2023, orders were made, relevantly that: the husband complete the children’s passport applications; the wife be permitted to travel overseas with the children; the wife to have sole use and occupation of the FMH to the exclusion of the husband and the husband to be restrained by way of injunction from entering upon the FMH; and that the wife was to facilitate the ongoing attendance of the children at LL School pending the final hearing of the proceeding.
In mid-July 2023, the husband spent $1,183 on alcohol purchases.
A week later, the husband purchased further alcohol.
On 24 July, the ICL requested an alcohol test from the husband. On 26 July 2023, the husband produced a CDT test result. He did not provide this to the ICL nor otherwise disclose it to the wife and at trial denied that he had undertaken a test at that time.
On 21 August 2023, the husband produced a lower CDT test result.
In August 2023, the wife was suspended from driving for a period subject to her election to be of good behaviour for a period of 12 months. She intended to make that election. She had been, a few months earlier, using her mobile device in the car whilst driving with the children.
On 5 September 2023, the trial commenced.
On 7 September 2023, the husband attended upon Dr MM who recommended he contact a local community drug and alcohol team for ongoing support. The husband did not do so.
On 8 September 2023, interim parenting and property orders were made with the proceeding being adjourned part-heard to 26 February 2024, being a date suitable to all counsel and the Court. Orders for the children’s time spent with the husband were relevantly made and that time was conditional upon:
…
9.1the Father undertaking two hair follicle drug and alcohol tests in accordance with Order 14 below, with the first test to be undertaken no later than Monday 11 September 2023 and the second test to be undertaken between 11 – 13 weeks thereafter;
9.2the Father complying with Order 3 of the Orders made on 20 August 2019 in relation to liver function and CDT testing, such testing to be conducted by NN Pathology;
9.3the Father undertaking PEth testing once per month commencing with the first test to be undertaken by 15 September 2023 or such other time as shortly thereafter upon the Father obtaining the first available appointment with Mr E for a referral for a PEth test, and
9.4the Father undertaking alcohol breathalyser testing no less than 30 minutes before the commencement of time, and no less than 30 minutes after the conclusion of time, on each occasion the children spend time with him in accordance with Order 8 above, such testing to be undertaken by using a breathalyser device that has the capacity of photo and/or video recording the time and date of each test that is undertaken by the Father and transmitting such photo and/or video to the Mother immediately after the Father has undertaken the test.
10.The Father’s time with the children be further conditional on the Father:
10.1advising the ICL of the name of the laboratory/pathology and the day of any PEth and CDT tests taken within 48 hours.
10.2the Father engaging in therapy with a psychiatrist at a frequency recommended by the psychiatrist.
10.3advising the ICL of the dates of his appointments, and any changes to the appointments with his treating psychiatrist within 48 hours of the making of the appointment or any changes to it, or being notified of any changes to scheduled appointments.
10.4furnishing the ICL and the Solicitor for the Mother with all and any reports by his treating psychiatrist within 48 hours of their receipt.
10.5the Father notifying the ICL and the Solicitor for the Mother of any changes of his treating psychiatrist within 48 hours of any change taking place.
Otherwise, the children are enjoying their new residence with their mother, and their new surrounds and school. They are becoming accustomed to a reliable and non-confrontational living environment.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long‑term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child
The mother remains in her historic and ongoing role as the children’s primary care giver. She has made long term decisions concerning the children’s advancement and now she and the husband are at odds about such matters. The husband’s approach is not one which is decision‑making by a parent in a considered, independent and authoritative manner. It is not one which produces compromise with the mother in the context of advancing the children’s best interests. His approach is one that seeks to involve the children endlessly in the conflictual parental decision-making. This is not a situation of failure to be involved in the opportunities described above. It is, rather, the disastrous way such involvement occurs.
The father conceded that he took the children out of school to attend multiple school interviews without the mother’s consent. The father stated that he “didn’t believe [he] had a choice…with not being able to see if there were options available for our children’s high school education”.[75] The father stated that he did not tell the mother as there “was no other option available to [him]” and that “she had clearly indicated that she was opposed to me showing any interest in those schools”.[76] The father reflected that, in hindsight, he should have “been more – even more communicative about [his] intentions and desires for the children”.[77] The father persisted in his desire for the children to attend JJ School as opposed by the mother, despite its distance from where the children reside, and his uncertain capacity to afford such attendance into the future. The maternal grandparents’ evidence was clear; they would not fund private school fees for their grandchildren. The mother’s evidence was clear that she could not afford to meet the cost of private school fees. Each of the mother and the father indicated some favourable inclination toward the children attending PP School and indeed the father sought this as an alternative order. It will be for the mother to make that decision.
[75] Transcript 5 September 2023, p.47 lines 35-37.
[76] Transcript 5 September 2023, p.48 lines 17-18.
[77] Transcript 5 September 2023, p.50 lines 37-38.
The co-parenting relationship between the parties is largely non-existent. The parties are not flexible in terms of their co-parenting and do not have the ability to get along, cooperate, communicate with or trust each other. The parents have communicated between their solicitors for the past five years over the children’s schooling, extracurricular activities, change of residence and more. There is conflict during changeovers – as one example the mother arrived to pick up the children from the father’s home earlier than anticipated on one occasion. The father ‘yelled through the door’ for her to go away. The mother reflected she should not have arrived early and has not since then. The father reflected he should have allowed the children to leave early.
Section 60CC (3) (ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The mother provides financially for the children to the best of her ability. As does the father, although he has sought on several occasions to reduce his child support assessed payments to the mother. The father is a high-income earner and should continue his obligations to support his children. There is a possibility but not a probability that he may not do so. It would be detrimental to the children’s welfare were he to avoid this responsibility.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances
The children had been spending time with the father in accordance with the orders of 20 August 2019 at the time the final hearing commenced in September 2023. The children’s time with the father was significantly changed following the evidence adduced during the father’s cross-examination at the final hearing.
Following the September 2023 hearing, the time that the children spent with the father was reduced to daytime periods only and supervised by the paternal grandmother. The paternal grandmother was required to be the supervisor and designated driver of the children when spending time with their father. The mother expressed a great deal of faith in the paternal grandmother being a safety net for the children.
The mother proposed a continuation of the September 2023 orders regime. She remained concerned about the way she would be portrayed to the children by the father, along with her concern as to his alcohol consumption. She has, however, now had a period of over one year where her influence has dominated. The children have grown older. She has housed them in the location of her choice, next door to her partner. That appears to have been a happy move for the children who are enjoying their new surrounds and school. It would not be in their best interests to alter the children’s place of residence, and the likely effect would be further confusion for the children and de-stabilisation.
The likely effect of the children being now afforded increased and more normalized time with their father, however, would be a positive one for the children and on the evidence does strike the right balance between the two sources of risk identified above. Such change would promote the children’s best interests. There is, in the form of the orders and the orders themselves, adequate mitigation of the risks. If there were no change to the current regime and supervision and limited time spent prevailed, the likely effect would be one that did not promote the children’s best interests.
The children, since the first Family Report, have repeatedly asked for more time with their father. A failure to normalise that time now and provide them with more structured time with their father, would negatively impact the children’s relationship with their mother, and fail to afford them a wish which is important to them, as well as fail to facilitate the development of a meaningful relationship with their father. They would also continue to worry about him.
Section 60CC(3)(f) the capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
Each of the parents have capacity to provide for the intellectual needs of the children and, indeed, the father was very engaged in the curriculum and musical education of the children prior to September 2023. The father also was heavily engaged in the children’s sporting activities.
The mother has an increased capacity (than that of the father) to provide for the emotional needs of the children as addressed elsewhere in these reasons. She has considerable insight into the children’s needs. The father does not. The father, during cross-examination, himself conceded that drinking an unhealthy amount of alcohol had made him emotionally unavailable to the children. Following the father reducing his drinking significantly, he observed “my mind is not clouded. I’m able to make better decisions for them because I’m not thinking about myself and impaired by alcohol”.[78] The father expressed regret at his interactions with the children when he was under the influence of alcohol, and regret in respect of his behaviour towards the mother pre-separation. The father stated that he regretted “not being more patient”.[79] The father conceded that his drinking resulted in a strain upon his marriage and his own wellbeing.
[78] Transcript 5 September 2023, p.42 lines 30-31.
[79] Transcript 5 September 2023, p.42 line 45.
Dr S opined that the father did not find exercising parental responsibility authority easy. He behaved more like an adult who was happy to interact with the children at their level. It was noticeably different from the mother’s interaction. The mother understood her responsibilities as a parent. The father did not, and one example of that was his pressuring of the children to respond to his needs, such as Y being required to present his art to his father on each occasion that he saw him. This ultimately caused much distress to Y.
Section 60CC(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The parties have been in litigation for a very long time. The orders made by the Court and by consent of the parties are orders which should end the ongoing litigation, it being destructive to the parties financially and emotionally. The orders made on the evidence promote the best interests of the children and otherwise provide for an appropriate and just and equitable alteration of the parties’ property interests.
It was the view of all parties that the children should attend upon non-reportable counselling so that the children have the freedom and space to unpack with an independent person “things they may have been holding onto, through loyalty to their father”.[80] That is an order encouraging of remaining outside the litigation process.
[80] Transcript 8 September 2023, p.179 lines 13-14.
Dr S recommended a gradual increase in the children’s time with the father to an arrangement whereby the children would spend alternate weekends from Friday to Sunday with the father, and overnight in the other week. That evidence has been relied upon.
Finally, the ICL sought a costs order in the proceeding to which the mother consented. The father’s position was unclear. The father was represented by senior counsel at the hearing and made no submissions as to why the application for a costs contribution should be opposed. I shall make the order sought.
PROPERTY
Legal Principles
Section 79(1) of the Act provides that the Court may make such orders as it considers appropriate altering the interests of the parties in property. Section 79(2) of the Act provides as follows:
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.
If the Court is so satisfied that it is just and equitable to make an order altering the interests of the parties in property, s 79(4) of the Act sets out the matters which the Court must take into account when considering what order (if any) should be made.
The High Court of Australia (the “High Court”) in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) revisited the process for trial judges in altering property interests of parties pursuant to s 79 of the Act. The High Court emphasised the requirement for the Court to establish firstly, that it be just and equitable in the particular circumstances of the case to make any alteration of property interests. In this process, the question presented by s 79(2) of the Act, namely, “whether, having regard to those existing interests, the Court is satisfied that it is just and equitable to make a property settlement order,”[81] must not be merged with, or supplanted by the inquiries under s 79(4) of the Act.[82] In determining whether it is just and equitable to make an order, the matters which can be taken into account do “not admit of exhaustive definition.”[83] However, there must be a “principled reason for interfering with the existing legal and equitable interests of the parties to the marriage.”[84]
[81] Stanford v Stanford (2012) 247 CLR 108 at [37] (“Stanford”).
[82] Stanford at [51].
[83] Stanford at [36] referring to Mallet v Mallet (1984) 156 CLR 605, 608 per Gibbs CJ.
[84] Stanford at [41].
The High Court further held that:
42.In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice 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 wife. No less importantly, the express and 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. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship.
Whilst I have considered as a precondition to making an order for property settlement whether it is just and equitable in all the circumstances of the particular case to make such an order, the Full Court of the then Family Court of Australia, now Federal Circuit and Family Court of Australia (Division 1) in Bevan & Bevan (2013) FLC 93-545 at [86] made clear that the just and equitable consideration is one that “permeat[es] the entire process”.
It has been determined that, in undertaking the task of considering the totality of the parties’ contributions in a holistic manner, it is inappropriate for a trial judge to adopt an ‘accounting’ or ‘scoring’ approach to each separate contribution. As explained by the Full Court in Blandford & Esmore [2022] FedCFamC1A 67 at [14], adopting such an approach is flawed because it “would not only require detailed actuarial calculations with respect to financial contributions (which would rarely be possible on the evidence generally available in property settlement cases), but it would still leave the significant problem of how to convert the qualitative factors in s 90SM(4)(b) [s 79(4)(b)] and s 90SM(4)(c) [s 79(4)(c)] of the [Act]”.
When considering the parties competing contributions, a broad discretion is bestowed upon the Court pursuant to s 79 of the Act which “‘inevitably involves value judgments and matters of impression’, and accordingly cannot be treated as ‘a mathematical exercise’”.[85] It is often stated that there is an inevitable ‘leap’ from the evaluation of the parties’ contributions to declaring the “quantitative reflection of such an evaluation”.[86]
[85] Petruski v Balewa (2013) 49 Fam LR 116 at [49], citing Lovine & Connor (2012) FLC 93-515 at [40]–[41].
[86] Coleman J in Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234], cited with approval in Roverati & Roverati (2021) FLC 94-027 at [38].
I am satisfied that in all the circumstances of this case it is just and equitable to make orders adjusting the parties’ property interests. Indeed, the parties ask the Court to do so in circumstances where they have been unable to agree on what that adjustment should be.
The parties shall hereafter be referred to as the husband and the wife.
The asset pool
Asset
Ownership
Value
F Street, Suburb G NSW (“the FMH”)
Joint
$1,850,000 (pursuant to valuation by M Valuers in August 2023)
Motor Vehicle 1
Wife
$16,500
Motor Vehicle 2
Husband
$1,150
P Ltd Deferred Share Plan Awards: 1,308 P Ltd shares that vested in late 2023; and 1,490 P Ltd shares that vested late 2023.
Husband
$99,224
Assets subtotal
$1,966,874
Liabilities
Ownership
Value
Monies owed by the parties to the K Trust (Agreed)
Joint
$1,068,634
Liabilities subtotal
$1,068,634
Net asset pool
$898,240
Superannuation
Ownership
Value
Superannuation Fund 2
Wife
$59,502
Superannuation Fund 1
Husband
$193,850
Superannuation subtotal
$253,352
Notes as to the asset pool
Given the period of time that had elapsed since the parties’ separation in 2017, the parties agreed that each of their respective savings’ accounts as operated independently by them, and of no material value, should not be included in the above table. Likewise, each of their credit card debt and any personal loans obtained by them post-separation should be excluded from the above table, save the wife seeks that a loan to her from the maternal grandmother, Ms C, be included. That loan was in the sum of $13,844 and the wife and her mother entered into a loan agreement with respect to it. I have determined to exclude that loan as one divisible between the parties in circumstances where the husband was not a party to the loan agreement and did not seek advancement of the loan. It was a loan sought and obtained by the wife post the parties’ separation. The maternal grandmother intended, she claimed, for those monies to come out of the proceeds of sale of the FMH as a priority payment. She did not, however, consult the husband about her demand, nor her categorisation of the monies advanced by her as a loan for which he, with the wife, would bear the responsibility of repayment. Despite the assertion of a further loan with an accompanying agreement, the monies advanced in all probability are better described as a gift (being to the wife only) that went to the maintenance and improvement of the FMH as described earlier in these reasons. In that context, I have determined to consider those monies as advanced as a post-separation contribution made on behalf of the wife.
A significant loan obtained by the husband post separation was a loan that remains owing to Q Pty Ltd in the sum of $100,000. In most part, these borrowings have gone to the husband’s payment of his legal costs and are not included in the asset pool. I refer to this loan hereafter in a s 75(2)(o) of the Act matters consideration.
Each of the parties took furniture and household contents from the FMH which they estimate as to that in the husband’s possession having a value of $1,000, and in the possession of the wife as having a value of $2,000. The wife had the primary care of the children upon separation and would have needed a greater share of this very modest furniture value. The parties divided their furniture as they saw fit many years ago and, accordingly, I have not included this furniture as an asset in the table above because it is immaterial. The wife has, further, in her Suburb D home an estimated $22,500 or more of furniture and household contents as used by the children and her. This furniture, and the household contents, I have also not included in the table above for division between the parties. The purchase of these items was by the maternal grandparents as gifted to the wife some five years following the parties’ separation.
The wife’s jewellery is personal to her and has no significant value ($885). It shall be retained by her and not be an item available for division between the parties as determined by me when considering the justice and equity of any adjustment of property between the parties.
I note that the wife included in the asset pool her Motor Vehicle 1 as gifted to her post‑separation. That is a post-separation contribution made by the maternal grandparents on behalf of the wife in the circumstances of the vehicle’s inclusion in the asset pool.
The husband has deferred share entitlements with P Ltd accessible to him on ‘available dates’. He can retain the shares or liquidate them. The shares referred to in the asset pool above have been liquidated by the husband following vesting. The circumstances around inclusion are that, as the proceeding was part-heard and between September 2023 and February 2024, two tranches of the husband’s shares became available to him in late 2023. The husband failed to make proper disclosure to the wife about the existence of his shareholding, or the fact that he had sold such shares as became available to him, receiving a sale price of $99,224 in late 2023 ($35.46 a share with 2,798 shares). This came to light during the cross-examination of the husband in February 2024 when he conceded, upon a review of ANZ bank documents as subpoenaed and put to him by counsel for the wife, that he had received such funds. Additional to the husband’s receipt of such funds was his claimed expenditure of such funds on a personal loan owing, personal credit card expenditure, and payment towards legal costs. He provided no compelling corroborative evidence as to any expenditure of the funds. In these circumstances, such monies are included in the asset pool, noting and taking into account that the contribution of them to the parties’ assets was one made solely by the husband. Further, P Ltd deferred shares, as owned by the husband, were anticipated to vest in late 2024 and late 2025. They are a financial resource available to the husband upon vesting. They are not included in the asset pool of property available for division between the parties. The wife anticipated the value of such shareholding by reference to the value of the shares in early 2024 at $28.21 a share. That would be a sum of approximately $120,908.06 at that value. Of course, the share price may differ in late 2024 and again in late 2025 upon vesting, and again upon liquidation.
The husband sought to add to the asset pool an estimated tax liability for his P Ltd share sales in the event same were included in the asset pool. The husband placed no evidence before the Court that would lead the Court to be satisfied on the balance of probabilities that any precisely quantified amount should be placed in the liabilities section of the asset pool, or that any liability currently existed. I accept the submissions of the husband that, ordinarily, it is proper, just and equitable to also bring to account the realisation costs and taxes associated with the husband having liquidated the shares that vested in late 2023. It is a matter I can only generally consider.
In the exercise of my discretion, I did not add-back to the asset pool a sum of $2,180.64 (a quantum asserted by the wife) for shares realised by the husband post separation as urged by the wife. The husband again made no disclosure of his receipt of shares as then sold by him in late 2018 and 2019. The husband was in some financial difficulty at that time, and in all probability needed the monies to meet his and the parties’ commitments that then remained. The asserted quantum is not material in the context of an add-back.
Finally, the wife agitated for an add-back of the sum of $25,000 as taken by the husband from the parties L Bank mortgage account. The application of the funds is described in [50] above and I do not consider such sum as appropriate to add-back to the asset pool.
Preliminary
The property dispute between the parties arises essentially in relation to the FMH and the vesting of the husband’s P Ltd Deferred Share Plan Awards shares. The dispute in respect of the FMH was partially lessened in the parties being able to ultimately reach a consensus as to the monies owed by the parties to the K Trust, being the sum of $1,068,634. The quantum of those borrowings, and the clear basis on which such monies were advanced to the parties, namely by interest free loan, was established on the evidence. The husband refused over a long period of time in the litigation to concede the quantum of monies owed by the parties to the K Trust, a quantum consistently contended by the wife. The wife’s parents were required to put before the Court detailed evidence and documents to support that which the wife asserted and which the husband steadfastly refused to accept.
Acknowledging that the mother is a beneficiary of the K Trust, the factual matters otherwise pertaining to the Trust as set out above include that the mother has no control over the Trust. While the K Trust has amassed considerable wealth, in the vicinity of NZD318 million, the quantum of that wealth is, I find, not relevant to a determination of the net asset pool of the parties as available for division between them in this proceeding. Further, the husband’s assertions that the wife has available to her as a financial resource the Trust’s funds and/or assets is not accepted by the Court and is made very clear in the unchallenged evidence of the maternal grandfather, which I accept. That evidence, along with the evidence, unchallenged, of the wife’s mother and of her sister, Ms T, also makes clear that the wife’s occupation of the Suburb D property is a benefit provided to her from her parents personally. Further, that the wife’s occupation is ongoing until late 2025, after which time the position will be reviewed. That review will not result in a gift of that property to the wife as deposed to by the wife’s father, and there is no room for any inference that that might be the case. I am mindful however, of the ongoing generosity of the wife’s parents in their personal capacity to the wife and the children over many years, and the probability that it will continue.
Contributions
Initial contributions
It was common ground that neither party entered the relationship with assets and/or liabilities of any significance.
Contributions during the relationship
The husband was the primary income earner and made the greater direct financial contribution throughout the cohabitation of the parties. The husband conceded that, during the periods that the wife was employed as an educator for initially three days, and then five days each week, approximately four years after the children’s births, she also applied her income to the benefit of the family.
The wife was the primary homemaker and parent of the children following their births. She was responsible for all homemaking tasks. The husband also made homemaker and parent contributions during the relationship. He also undertook works and improvements to the FMH.
The parties had the benefit of funds advanced by the K Trust, being interest-free loans, the most significant of which was the loan which enabled the parties to acquire the FMH in 2013, and which remains owing. Otherwise, the K Trust forgave the parties loans advanced by the Trust in the sum of NZD23,553.79 between 2008 and 2012.
Contributions post-separation
After separation, the wife had the benefit of occupation of the FMH to the exclusion of the husband until October 2023. The wife caused the mortgage secured over the property to be paid, primarily sourcing this from her parents. The total sum paid by the wife’s parents in reduction and paying out of the mortgage owing was $64,755.45. By July 2023, the FMH was unencumbered by a mortgage (though the discharge of mortgage documents had not been signed and lodged) and when the husband resumed occupation of it in October 2023, pursuant to Orders made 8 September 2023, he had mortgage and rent-free occupation. Since then, the husband has been otherwise solely liable for all expenses, including insurance, utility and outgoings in respect of the FMH.
After separation, the K Trust paid $26,515 plus bond monies of $2,135 for the husband’s rental accommodation between November 2017 and September 2018. During this time, the husband continued to make some contribution to the parties’ mortgage repayments due in respect of the FMH. In August 2018, the husband ceased all payments.
Otherwise, the maternal grandparents paid $18,033 toward the living expenses and other costs of the parties and children and further paid for the purchase of a motor vehicle for the wife in the sum of approximately $17,000.
The maternal grandmother gifted to the wife the sum of $13,843.90 for the purposes of the FMH deck removal and replacement as described above.
The wife received an ongoing significant benefit from the maternal grandparents in the rent free and all outgoings paid provision of the Suburb D property where she and the children presently live. This has indirectly benefitted the husband since October 2023, when he has been able to reside in the unencumbered FMH.
The husband made a sole contribution in the continuation of his employment and acquisition of deferred shares post-separation which have subsequently vested and are included in the asset pool but in relation to which it is probable he shall have some tax liability.
Each of the husband and wife contributed to the ongoing care of the children, the wife more so because of the husband’s alcohol misuse. The husband and wife each contributed to the support of the children.
Conclusion as contributions
The contributions as made by the K Trust and the maternal grandparents are contributions made on behalf of the wife.
I conclude that the wife’s contributions based entitlement is 54 per cent and the husband’s is 46 per cent.
Section 75(2) of the Act Matters
Each of the parties are employed, the wife at trial on a casual basis but with a capacity to be employed full-time and earn a reasonable income. It was undisputed that the husband has a greater income and earning capacity than that of the wife. Included in the husband’s income is periodic salary payments, potential yearly bonuses, and deferred share awards.
The wife will have the primary care of the children throughout their secondary school years.
The husband will pay significant child support payments although his attempts in the past to reduce that amount suggest his approach may be problematic.
The husband has not re-partnered and resides with his mother but is not required to financially support her. Her financial circumstances are not those of the maternal grandparents, however. Rather, they are very modest.
The wife has re-partnered and resides next door to her partner. Her partner provides her with no financial support, nor is there any intermingling of their respective finances. The wife lives in rent-free accommodation and pays for none of the outgoings on the property. The husband will have to seek out rental accommodation or secure a property most probably with a not insignificant mortgage and meet all his outgoings and living expenses without assistance from family members.
The wife’s legal costs of over $600,000 have been funded by her parents and there is no requirement for her to repay to her parents any of these monies. It is another example of the considerable generosity historically extended by the maternal grandparents to their daughter and grandchildren, and it is probable that that generosity will continue.
The husband’s legal costs of approximately $500,000 have been met by him to the extent that they have through income and personal loans, and by an advance of $100,000 from a school friend who resides in Perth. The loan is secured by a written loan agreement. The loan will mature in September 2025. It is secured over the husband’s share entitlements. It will be required to be repaid by him together with the balance of his legal costs. His financial resource in the form of vested shares at that time will in all probability be applied to repayment of that debt, or repayment of other debt obtained to repay the $100,000 debt.
Each of the parties agree that their superannuation entitlements should be divided equally between them. Of a total of $253,352, that is $126,676. In my view, in the circumstances of the case, it is just and equitable that there be a division of equality in respect of the parties’ superannuation entitlements in any event. The husband has acquired a greater entitlement over time than the wife, by virtue of his remaining in the workplace consistently. He does not cavil with the apportionment being one of equality and there is no justice and equity in the wife receiving a greater entitlement than the husband.
The husband deposed in his financial statement sworn August 2023 that his weekly income was $4,790, equating to a yearly income of $249,080. Pursuant to ANZ bank statements produced on subpoenas issued by the wife’s solicitors, the husband’s income in the financial year up to 28 June 2023 was, in fact, a gross total of $321,796, as ultimately conceded by him. This was a weekly gross income of $6,188. When put to the husband in cross-examination that he had under-disclosed his income in his financial statement by approximately $1,000 a week, the husband responded by saying that he received “discretionary bonuses which can fluctuate”, and that what was disclosed in his financial statement was “based off [his] base salary”.[87] He further claimed that the cash bonuses he had received were “varied and they’re not guaranteed”.[88] The husband had in fact received cash bonuses and/or share entitlements over many years, in each year.
[87] Transcript 6 September 2023, p.109 line 18.
[88] Transcript 6 September 2023, p.111 lines 2-3.
The husband further did not disclose in his material his employee share scheme which he conceded in cross-examination, nor his receipt of deferred shares.
The husband’s failure to make full and frank disclosure about these matters went to the husband’s credit. Ultimately though, the Court could establish the true nature of the husband’s financial position. He continued to be an employee and his financial position in respect of that employment was easily and readily identified from the documents and the husband’s financial statement as submitted by his senior counsel.
I consider that in respect of the s 75(2) of the Act matters, that there should be a further adjustment in the wife’s favour of 5 per cent.
Conclusion
It is appropriate, just and equitable for there to be a sale of the FMH. Both parties will be at liberty to purchase the home. The husband wishes to buy out the wife’s interest in the FMH but provided no compelling evidence to the Court as to his capacity to do so, and in what time frame.
The wife will receive 59 per cent of the net asset pool excluding superannuation. This is a sum of $529,961.60.
The husband will receive 41 per cent of the net asset pool excluding superannuation. This is a sum of $368,278.40. A sum $161,683.20 less than that of the wife.
The parties will each have superannuation benefits, after adjustment, of $126,676.
In my view, such alteration of the parties’ interest in property is just and equitable.
I certify that the preceding two hundred and ninety-three (293) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 29 November 2024
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