Radcliffe & Marsters - [2023] FedCFamC2F 611

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Radcliffe & Marsters [2023] FedCFamC2F 611

File number: LNC 590 of 2021

Judgment of: JUDGE TURNBULL

Date of judgment: 25 May 2023

Catchwords:
FAMILY LAW – CHILDREN – whether in best interests of child to order equal time arrangement; assessment of child’s views; whether parties' communicate effectively enough to make equal time practicable.

FAMILY LAW - PROPERTY –whether non-superannuation and superannuation assets considered in separate pools; the impact of sale of home upon Respondent’s income; whether the Applicant should receive all the superannuation assets so that the Respondent can retain the home; whether the parties' contributions should be assessed as equal; care of non-biological children; assessment of Respondent’s income earning capacity.

FAMILY LAW - SPOUSAL MAINTENANCE — whether Husband establishes a need for spousal maintenance; whether the Wife has the capacity to pay.

Legislation: Family Law Act 1975 (Cth) Part VII, ss 4AB, s 60CA, 60B, 61DA, 61DAB, 65D, 60CC, 65DAC, 65DAA, 79, 75,72, 74.

Cases cited:
Bant & Clayton [2019] FamCAFC 198

Beck & Beck (No 2) (1983) FLC 91-318 78

Bondelmonte & Bondelmonte (2017) 259 CLR 662

Briginshaw v Briginshaw (1938) 60 CLR 336

Clauson & Clauson (1995) FLC 92-595

Coghlan & Coghlan [2005] FamCA 429

Dovgan & Dovgan [2021] FamCA 306

Elder v Elder [2009] FamCAFC 224;

Farnham & Farnham [2021] FedCFamC2F 83

Godfrey & Sanders [2007] FamCA 102

Goode & Goode [2006] FamCA 1346

Habib and Habib [1988] FamCA 40

Hickey & Hickey [2003] FamCA 395

In the Marriage of Bevan & Bevan (1995) FLC 92-60

In the Marriage of Mitchell and Mitchell (1995) FLC 92-601

Isles & Nelissen [2022] FedCFamC1A 97

Jabour & Jabour [2019] FamCAFC 78

Jacobson & Jacobson (1989) FLC 92-003

Lotta & Lotta [2017] FamCA 50

Mallet & Mallet (1984) 156 CLR 605

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

M v M (1998) 166 CLR 69

MRR & GR (2010) 240 CLR 461

Myerthall & Myerthall [1977] FamCA 59

Nutting and Nutting (1978) FLC 90 – 420

Stanford & Stanford (2012) 247 CLR 108

Teal & Teal [2010] FamCAFC 120

Wilson and Wilson (1989/90) FLC 92-003

Withers & Russell [2016] FamCA 793

Division: Division 2 Family Law

Number of paragraphs: 196

Date of last submission/s: 24 February 2023

Date of hearing: 31 October – 2 November 2022 & 23 February – 24 February 2023

Place: Launceston

Counsel for the Applicant: Mr Williams

Solicitor for the Applicant: Glynn Williams Legal

Counsel for the Respondent: Mr Maguire

Solicitor for the Respondent: Bishops Barristers & Solicitors

Counsel for the Independent Children's Lawyer: Mr Verney

Solicitor for the Independent Children's Lawyer: Matthew Verney Barrister
ORDERS

LNC 590 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS RADCLIFFE

Applicant

AND:
MR MARSTERS

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE TURNBULL

DATE OF ORDER:

19 May 2023

THE COURT ORDERS THAT:
PARENTING:
1.The Applicant and Respondent have equal shared parental responsibility for the child X born 2009 (‘the child’).

Live with arrangements
2.The child live with the Applicant and the Respondent on a week about basis, including during the child’s school holidays, with the changeover occurring each Monday at 9:00 a.m. on a school day, or if not a school day at 5:00 p.m.

Time during special days and occasions
3.In even numbered years the child spend Christmas and Easter as follows:-
(a)With the Respondent from 2:00 p.m. Christmas Eve until 2:00 p.m. Christmas Day;
(b)With the Applicant from 2:00 p.m. Christmas Day until 2:00 p.m. Boxing day;
(c)With the Applicant from 2:00 p.m. Easter Saturday until 2:00 p.m. Easter Sunday; and
(d)With the Respondent from 2:00 p.m. Easter Sunday until 2:00 p.m. Easter Monday.

4.In odd numbered years the child spend Christmas and Easter as follows:-
(a)With the Applicant from 2:00 p.m. Christmas Eve until 2:00 p.m. Christmas Day;
(b)With the Respondent from 2:00 p.m. Christmas Day until 2:00 p.m. Boxing Day;
(c)With the Respondent from 2:00 p.m. Easter Saturday until 2:00 p.m. Easter Sunday; and
(d)With the Applicant from 2:00 p.m. Easter Sunday until 2:00 p.m. Easter Monday.

5.The child will spend time with the Applicant and Respondent for Mother’s Day and Father’s Day respectively as follows:-
(a)If the child is not already spending time with the Applicant on Mother’s Day, the child will spend time with the Applicant on that day from 9:00 a.m. to 5:00 p.m.; and
(b)If the child is not already spending time with the Respondent on Father’s Day, the child will spend time with the Respondent on that day from 9:00 a.m.to 5:00 p.m.

6.On the child’s birthday, the child will spend time with the parent in whose care he did not start the day, from 4:00 p.m. until 8:00 p.m.

Changeover arrangements
7.Changeovers take place at the child's school or the B Service Station Town C, on a non‑school day.

Communication
8.The parents will facilitate and not prevent the child from communicating, as he wishes, with the other parent when the child is in their care.
9.The parents will communicate with each other by email or text message, and for the purposes of doing so, will keep each other informed of each other’s email address and mobile telephone numbers.

Interstate travel
10.If either parent intends to travel outside of Tasmania during their time with the child, they must give no less than 14 days written notice to the other parent together with a copy of a travel itinerary.

Injunctive Orders
11.Both parents be restrained from denigrating each other to or within the presence of the child and each parent will immediately remove the child from the presence of anyone who is denigrating the other parent.
12.Save for these Orders, all extant parenting Orders are discharged and all extant parenting applications are dismissed.

THE COURT NOTES:
13.That pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

PROPERTY
14.(a) That within sixty (60) days of the making of this order the Respondent is to:
(i)Take all steps and do all acts and things and make all payments of principal and interest and costs necessary to obtain the discharge of the mortgage registered Account Number …, BSB … (“the mortgage”) held by NAB over the former matrimonial home situated at and known as D Street, Town E in the State of Tasmania and being the whole of the land contained in Certificate of Title Volume … Folio … (“the former matrimonial home”) as security for monies advanced under NAB Home Loan Account Number …95; and
(ii)Pay to the Applicant the sum of $140,481.40 by way of adjustment of property settlement.
(iii)Pay the Applicant the sum of $3, 740, being the Respondent’s share of the valuations fees.

(b)That immediately upon paragraph 14(a)(i) (ii) and (iii) having been complied with, the Applicant is to:
(i)Execute all documents necessary to allow the mortgage to be discharged; and
(ii)Execute all documents and do all things necessary to transfer the whole of her right, title and interest in the former matrimonial home to the Respondent.

(c)That in the event that the Respondent does not comply with 14(a)(i) (ii) and (iii) above, the Applicant and the Respondent are to:
(i)Immediately take all necessary steps and execute all necessary documents to cause the former matrimonial home to be sold by public auction and in particular:
A.Appoint a firm of solicitors as agreed between the Applicant and the Respondent to prepare the Contract for Sale of Land in respect of the former matrimonial home, or failing agreement, with a solicitor as appointed to act for the Applicant and the Respondent in the conveyance of the former matrimonial home by the then President of the Law Society of Tasmania;
B.Place the former matrimonial home with a licensed real estate agent as agreed between the Applicant and the Respondent, or failing agreement, with a licenced real estate agent as appointed by the then President of the Real Estate Institute of Tasmania (“the Agent/Auctioneer”) for the sale of the former matrimonial home by public auction at the earliest possible date;
C.Execute all documents requested by the Agent/Auctioneer for the sale of the property at a reserve price to be agreed between the Applicant and the Respondent, or failing agreement, at a price equivalent to the mean of two valuations by registered valuers, being members of the Australian Institute of Valuers, one obtained by and at the expense of the Applicant and one being obtained by and at the expense of the Respondent, such valuations to be made not more than two weeks apart from each other;
D.Pay equally to the Agent/Auctioneer any sums requested for commission and advertising expenses in relation to the auction;
E.Co-operate in every way with the Agent / Auctioneer in relation to the auction of the former matrimonial home; and
F.Attend at the auction sale and negotiate with the highest bidder in the event that the reserve price is not reached and accept the advice of the Agent / Auctioneer as to the acceptance of a price less than the reserve price.

(ii)Do all acts and things necessary to ensure that, upon the sale of the former matrimonial home, the proceeds of sale be paid in the following manner and priority:
A.In payment of the amount required to discharge the mortgage;
B.In payment of any outstanding council and/or utility rates;
C.In payment of the Agent/Auctioneer’s commission and auction expenses (if any) due on the sale;
D.In payment of legal costs on sale; and
E.In payment of the balance be held in trust to be distributed to the parties in accordance with the method set out in paragraph 14(d) of this order.

(d)That in the event that the former matrimonial home is sold and there is a balance to be distributed pursuant to paragraph 14(c) (ii) (E) of this Order, then there be a division of all property of the parties (excluding superannuation) in the proportion 45% to the Applicant and 55% to the Respondent, calculated as follows:-
(i)WHERE:
A.= the net assets retained by the Applicant — ($50,846);
B.= the net assets retained by the Respondent — ($151,494);
C.= the net proceeds of the sale of the former matrimonial home per sub-paragraph 14(c) (ii) (E) of this Order.

(ii)AND WHERE A+B+C= I;
A.the Applicant shall receive a sum equal to (I x 45%) plus $3,740 (for the valuation fees) – A, and
B.the Respondent shall receive a sum equal to (I x 55%) minus $3,740 (for the valuation fees) – B.

15.The parties' have liberty to apply in relation to the implementation of this Order, including in relation to the sale of the matrimonial home and calculation of the monies to be paid to each party from the sale proceeds.

Superannuation Splitting Order
16.THAT a base amount of $71,428.86 is allocated as required by section 90XT(4) of the Family Law Act 1975 to the Respondent out of the Applicant’s interest in the Superannuation Fund 1 (“the Fund”) of which F Pty Ltd (“Trustee”) is the Trustee, where the member number is …, in accordance with the following terms:
(a)That pursuant to Section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the Applicant’s interest in the Fund with member number … the Respondent is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there is a corresponding reduction to the entitlement of that person to whom the splittable payment would have been made but for these orders.
(b)That these orders have the effect from the operative time. That the operative time is the beginning of the fourth business day after the day on which an original certified copy of the final sealed orders is served on the Trustee of the Fund.
(c)That the Trustee shall do all such acts and things and sign all such documents as may be necessary to calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation Regulations) 2001, the entitlement for the Respondent created by paragraph 16(a) of these orders and pay the entitlement whenever the Trustee makes a splittable payment out of Applicant’s interest in the Fund.
(d)That after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”), the Applicant shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the Respondent’s request in accordance with the SIS Regulations, for the retention of the Respondent’s interest in the Respondent’s name in the Fund.
(e)The Court notes the value of the Respondent’s interest is calculated in accordance with the SIS Regulations; and any payments from the Applicant’s Fund made after the Trustee has created a new interest in the Respondent’s name in the Fund are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.
(f)Until the Trustee of the Fund has effected the splittable payment in favour of the Respondent, the Applicant or any person acting on his behalf are restrained from disposing of all or any of the payment to the Respondent and/or his personal representatives received by or held in trust for the benefits or him.
(g)A sealed copy of these orders is to be served by the Respondent’s solicitors upon the Trustee within fourteen (14) days or the making of this Order.
(h)Until such service occurs, the Applicant is restrained from withdrawing, encumbering or seeking to have invested in her, her superannuation entitlements with the Fund.

17.That the Respondent’s application for spousal maintenance is dismissed.
18.That, save for this Order, all extant property orders are discharged and all extant property and spousal maintenance proceedings are dismissed.
19.That pursuant to Section 81 of the Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

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

These are parenting, property proceedings, originally filed by Ms Radcliffe (‘the Applicant’) on 15 July 2021. Mr Marsters (‘the Respondent’) incorporated spousal maintenance into the proceedings in October 2022.[1] The Applicant is 50 years of age and employed as an educator in City GG. The Respondent is 52 years of age and is self-employed.[2]
[1] When discussing parenting issues the parties will still be referred to Applicant or Respondent.
[2] Trial affidavit of Mr Marsters 26 October 2022 [6], [8] (‘Respondent’s trial affidavit’).
The parenting aspects involve the child X, born 2009. X is 13 years of age and in Year 8 at G School. From all accounts X is a ‘friendly, articulate and intelligent individual,’[3] who enjoys participating in extracurricular activities. X has been diagnosed with Attention Deficit Hyperactivity Disorder (‘ADHD’) for which he takes medication, which has helped him to be less distracted, steadier and less impulsive.[4]
[3] Single Expert Report of Dr H, 6 June 2022, 26 (‘Single Expert Report’).
[4] Ibid 20.
The Applicant sought a week about arrangement during school terms and an even splitting of all school holidays with the parent who does not have X on Christmas Eve, to have the first half of the summer school holidays.[5] The Respondent sought orders which maintain the current arrangement whereby the Applicant spends time with X from Thursday until the following Monday fortnightly, a night for tea in the off week and a continuation of week about in the school holidays, from 3:00pm Fridays to 5:00pm the following Friday.[6]
[5] The position was confirmed during the trial. The Mother’s case outline proposed that for the summer holidays, she proposed a week about arrangement from Monday at 5:00pm until the following Monday, consistent with the pattern leading up to this time. At trial she sought a block period in the summer holidays.
[6] The position on holiday time was confirmed at trial.
In relation to property matters, the Applicant sought an equal division of the superannuation and non-superannuation assets. The Respondent proposed that the superannuation and non-superannuation assets be considered in a single pool, that he retain the matrimonial home, and that the Applicant keep all the superannuation assets. Alternatively, if a two pool approach is adopted, the Respondent sought an adjustment of 65% in his favour of both asset pools, and with the option for him to try and retain the matrimonial home — the Applicant agreed that the Respondent should be afforded that opportunity. The Respondent also sought spousal maintenance from the Applicant of up to $200 per week — particularly if a two pool approach is adopted by the Court.[7]
[7] In his Response he seeks $500 per week however during final submissions the Respondent reduced the amount sought to $50 per week – or such other amount as deemed appropriate.
Facts and chronology
The Applicant has a child from a previous relationship, Ms J, who is now 22 years of age.[8] Ms J moved with the Applicant to Tasmania.[9] The parties commenced their relationship in or about 2004,[10] and Ms J lived with the parties' for its duration. Ms J did not spend time with her father during this period, nor did the Applicant receive financial support to assist with her care.[11] The Respondent also has two sons from a previous relationship who, at times, lived with him before and during the relationship.
[8] Trial affidavit of Ms Radcliffe, 27 October 2022 [3] (‘Applicant’s trial affidavit’).
[9] Ibid.
[10] Respondent’s trial affidavit (n2) [2]: Respondent said commenced living together about mid 2005; Applicant’s trial affidavit (n8) [4]: The Applicant said the relationship began in 2004.
[11] Respondent’s trial affidavit (n2) [490]. Applicant’s trial affidavit (n8) [3]. Ms J had no contact with her Father until she was 14 years old when she and the Applicant travelled to meet him using the Applicant’s inheritance money. The Applicant agreed in cross examination that Ms J's Father does not help out.

At the commencement of the relationship the Respondent owned a half interest in a property at K Street, Suburb L (‘the K Street property’), with the other half owned by his then wife.[12] He also held a small amount of superannuation, several motor vehicles, tools and equipment and weaponry.[13] The interest held by his former wife in the K Street property was transferred to the Respondent prior to his marriage to Ms Radcliffe.[14]
[12] Respondent’s trial affidavit (n2) [411] – [412]: The Respondent said that he purchased the property but his wife was on the title and loan which was to buy property and secure a mortgage; [415]: The debt was said to have been approximately high forty-thousands to mid sixty-thousands; [417]: The Respondent borrowed approximately $10,000 - $12,000 against the property to pay his first wife.
[13] Respondent’s trial affidavit (n2) [414].
[14] Ibid [416].
Early in the relationship, the parties moved into the K Street property, and in 2007 the Applicant’s name was added to the title after the parties took out a joint mortgage secured against the property.[15] The Applicant said that the refinancing of the mortgage also funded the Respondent’s purchase Motor Vehicle 1 and renovations to the property.[16]
[15] Applicant’s trial affidavit (n8) [67].
[16] Ibid [27].
The parties married in mid-2007 and X was born 2009—all of which occurred while they were living at the K Street property.[17] At that time both were in paid employment — the Respondent in community work and the Applicant as an educator — to which she returned after X’s birth.[18] Both parties were actively involved in the care of X until the Applicant went back to work, when the Respondent became his primary carer.[19] The Respondent also engaged in some casual work from time to time, around his caring responsibilities,[20] as well as assisting with the care of Ms J.[21]
[17] Ibid [20].
[18] Ibid [10].
[19] Respondent’s trial affidavit (n2) [93]; Radcliffe & Marsters (Federal Circuit and Family Court of Australia, LNC590/2021), commenced 31 October 2022 (‘Trial’): The Applicant agreed under Cross examination that the Respondent was the primary carer of X for the first three years when she was working fulltime.
[20] Respondent’s trial affidavit (n2) [95].
[21] Ibid [96].
In 2010, the parties moved into the property at D Street, Town E (‘the D Street property’). The Applicant said that they used the equity in the K Street property to secure the 50% deposit needed for the purchase.[22] Both parties gave evidence that they contributed income into the joint account which serviced the mortgages and insurances.[23] The Applicant said that during this time, the Respondent continued to renovate the K Street property using their limited savings before being financially assisted by the Applicant’s father.[24] The Respondent said that most of his income, except cash from cash sales, went into the household, property and himself.[25]
[22] Applicant’s trial affidavit (n8) [69], [68].
[23] This was despite statement by the Applicant that she was solely responsible for the second mortgage loan. Applicant’s trial affidavit (n8) [69], [68]; Trial (n19): Cross examination of the Applicant.
[24] Applicant’s trial affidavit (n8) [69], [68].
[25] Trial (n19): In evidence in chief.
The Respondent described the D Street property as an “off-grid” property, without sewer or water connections, with a solar system set up with batteries and a generator and composting toilet.[26] The Applicant said the property was ‘substandard’ with no mains electricity, no flushing toilets, no recognised dwelling and ‘a humpy-like existence.’[27] In 2012, the parties placed a restrictive covenant on the D Street property.[28] They received E$70,000‑$75,000 as consideration[29] which went into a joint account. The monies were used to pay a $5,000 debt owing to the Respondent’s sister and the purchase of a large container and a fridge.[30] The K Street property was sold in 2019, with the proceeds put towards the purchase of machinery and additional parts for the machinery.[31]
[26] Respondent’s trial affidavit (n2) [17] [18].
[27] Applicant’s trial affidavit (n8) [72].
[28] Ibid [66].
[29] Case outline of Mr Marsters, 28 October 2022 [13] (‘Respondent’s case outline’).
[30] Applicant’s trial affidavit (n8) [66].
[31] Ibid [60].
The Respondent performed substantial renovations of the D Street property, including repairs and renovation to the kitchen, bathroom, driveway and veranda, particularly when X was young. He also attended to land clearing and cutting firewood.[32]
[32] Trial (n19): Agreed by the Applicant during cross examination.
In 2013 the Applicant started working and continued this employment on a permanent part‑time basis.[33] The Respondent worked two jobs, with earnings of approximately $30,000 p.a. He also earned approximately $12,000 p.a from employment with N Services.[34] The Respondent also earned money from his own business throughout the relationship, however, he was able to declare no taxable income for 6-7 years — using tax offsets.[35]
[33] Applicant’s trial affidavit (n8) [9].
[34] Ibid [9]: The Respondent’s employment ended with N Support Services in 2019.
[35] Trial (n19): Under cross-examination: The Respondent has paid zero tax for 6-7 years.
During the relationship and whilst living at the D Street property, both parties claim to have contributed to domestic duties and caring for children. The Applicant said that she was responsible for the majority of the housework including cleaning, cooking, washing and the gardening and mowing.[36] The Respondent said that his role was primarily looking after the children, even after the Applicant changed employment locations and was only home in the evenings:[37]
When [Ms Radcliffe] was absent I was responsible for providing all necessities for the children including preparing food, cleaning up after them, washing and generally taking care of them. Even when she was home I still undertook the vast majority of these tasks. [Ms Radcliffe] did start preparing the evening meal more regularly after [Ms J] went to Melbourne in the last few years of our relationship. Before that [Ms J] and I prepared them, with me doing most of them before [Ms J] was able to.[38]
[36] Applicant’s trial affidavit (n8) [18].
[37] Respondent’s trial affidavit (n2) [101] – [104].
[38] Ibid [100].
From 2012 – 2015, at differing times, the Respondent’s children from a previous relationship moved in with the parties. The Applicant claimed that she was also responsible for paying their school fees, uniforms as well as the family groceries, cooking and majority of domestic duties.[39]
[39] Applicant’s trial affidavit (n8) [16].
In 2016 the Respondent was contracted at a local property called “O Property”, working between 9:00am and 3:00pm, then moving on to a different property called “P Property”. The Respondent continues to work for both properties in a flexible arrangement.[40]
[40] Respondent’s trial affidavit (n2) [115] – [120].
In late 2018, the Applicant received an inheritance of $84,449.90 — received by instalments.[41] She said she used these funds to purchase Motor Vehicle 2 and pay out the previous loan on Motor Vehicle 3.[42] The Applicant claimed $19,000 was put into their offset account where it was agreed it would not be spent; yet the Respondent spent the funds.[43] Neither an add back nor a waste argument was pursued at trial in relation to that expenditure.
[41] Applicant’s trial affidavit (n8) [71].
[42] Ibid [64].
[43] Trial (n19): Cross examination.
In 2019, X was diagnosed with Attention Deficit Hyperactivity Disorder for which he takes medication, as prescribed by Paediatrician, Dr Q.[44] The Respondent stated that this medication has made a significant improvement to X’s schooling with a noticeable advancement in his reading abilities.[45]
[44] Respondent’s trial affidavit (n2) [46] – [48].
[45] Ibid [50] – [55].
Both parties made allegations of family violence against the other during the relationship, particularly towards its end. The Respondent said that ‘[Ms Radcliffe] would often have extreme outbursts of anger towards me where she would throw items of property around and yell and scream. [X] was often exposed to these outburst.’[46] The Applicant stated:
Towards the end of our relationship, the Respondent was becoming increasingly irrational, volatile and obsessive until I left out of concern for my safety and own mental health. These attitudes have continued and shape all interactions surrounding [X].[47]
[46] Ibid [262].
[47] Applicant’s trial affidavit (n8) [6].
The conflict between the parties culminated in an incident involving the Police. The Respondent alleged that in late 2020, the Applicant accelerated her car towards him when he was standing in the driveway and he felt he had to jump out of the way.[48] Later, when she returned home, the Applicant was ‘ranting about things in a way that did not make any sense to me.’[49] He called the police and reported these events, providing a statement to Town C Police the following day.[50]
[48] Respondent’s trial affidavit (n2) [131] – [136].
[49] Ibid [141].
[50] Ibid [148].
The Applicant gave a contrasting account of these events, stating that she found it threatening that the Respondent tried to stop her when she wanted to leave in her car. She said that she reversed the car away from him, and went a long and unsafe way to escape.[51] The Applicant was unaware that the Respondent had reported these events to the Police.
[51] Trial (n19) Cross examination.
In late 2020, the Police attended the matrimonial home in response to the Respondent’s complaint of family violence. X was in attendance during the police presence and also whilst they were speaking to the Applicant. After this discourse, the Applicant followed the police to the station in her own car. Her position is that it was ‘a deliberate act to both denigrate me in [X’s] eyes, and to gain leverage for his agenda to establish a status quo arrangement where he was the dominant live-with parent and [X] had minimal time with me.’[52] The Applicant said that she was unaware the Police were attending and was distressed that X was home at the time.[53] The Respondent said that he was unaware of what time the Police were attending and therefore could not have removed X.
[52] Applicant’s trial affidavit (n8) [20].
[53] Ibid [20]; Trial (n19): Cross examination.
Later this day, the Applicant returned to collect some items and moved out of the home.[54] She said that she asked X if he would like to go with her to his auntie’s house, to which he said ‘no’.[55] The Respondent stated that the Police, on instruction from the Applicant, asked him to tell X that she was moving out and whether he wanted to stay in the home. He also asked X if he would like to go or stay, to which he replied that he would stay.[56] The Respondent, after some hesitation, eventually acknowledged at trial that X must have felt pressure by being put in the positon where he needed to choose between his parents.[57]
[54] Applicant’s trial affidavit (n8) [4].
[55] Trial (n19): Cross examination
[56] Ibid.
[57] Ibid.
The Respondent sought a Family Violence Order against the Applicant but his application was ultimately unsuccessful. In his application he claimed that she had subjected him to abuse including economic abuse. The Applicant said that she was fearful of the Respondent after he had hit the car window with his hands whilst she was in the car.[58]
[58] Applicant’s trial affidavit (n8) [19]; Trial (n19): Cross examination.
The Applicant said that upon separation she left with only a limited amount of personal belongings but returned to collect other items on two occasions, including personal and household items. To establish a new life, the Applicant said she needed to purchase furniture, linen, kitchenware, white goods, clothes and toys.[59]
[59] Applicant’s trial affidavit (n8) [49].
In the period after the separation, the parties made attempts to communicate over the care of X, with varying degrees of success. On the 12 November 2020 the Applicant asked the Respondent, via text message, for a week-about parenting arrangement to be implemented. The Respondent refused, claiming it would not be in X’s best interests,[60] and proposed a fortnightly, Friday to Sunday and Wednesday evenings arrangement,[61] to which the Applicant agreed.[62] The Respondent said, ‘thereafter [Ms Radcliffe] and I were in regular communication with one another trying to work out arrangements for [X].’[63] Their accounts, however, evidenced a more complicated and conflict ridden process. The Applicant stated that ‘[c]ommunication with the Respondent has been difficult from the outset’ and that ‘[t]he parenting dispute is for me shaped by the Respondent’s ongoing refusal to enter into dialogue with me, refusal to establish shared and equal time and his avoidance or minimisation of communication.’[64] She said she had been excluded from appointments and the outcome of appointments, as well as school events[65] even though she informs the Respondent of appointments and communications with X’s school, dentist, paediatrician and the medical centre which she said went unanswered by the Respondent.[66]
[60] Respondent’s trial affidavit (n2) [172], [178].
[61] Ibid [181], [183].
[62] Ibid [192].
[63] Ibid [201].
[64] Applicant’s trial affidavit (n8) [24].
[65] Ibid [35].
[66] Ibid [40].
The Respondent also said he has trouble communicating with the Applicant — ‘[s]he doesn’t communicate in what I would consider an open or honest manner’[67] and that ‘[t]here are regular ‘digs’ in her communication which I find distressing or triggering.’[68] He explained under cross‑examination that he finds being in the Applicant's presence triggering, making him feel vulnerable and lacking in control — especially if he does not expect to see her. This feeling, he said, led him to ask the Applicant not to attend a school information evening for X. The Applicant did, however, attend the event, and upon her arrival he left with X before the event had started.[69]
[67] Respondent’s trial affidavit (n2) [244] – [245].
[68] Ibid [248].
[69] Trial (n19): Applicant’s evidence at trial.
On 15 July 2021 the Applicant filed an Application for Final Orders seeking an equal distribution of assets of the relationship and for X to live with both parents on an equal time basis.
On 20 October 2021, the parties reached an interim agreement that X was to live with the Respondent and spend four nights over the fortnight with the Applicant and one evening meal per week. This arrangement was modified at an Independent Children’s Lawyer (“ICL”) conference — the distinguishing feature being that X’s nights with the Applicant were in a single block rather than spread across the fortnight, commencing in 2022.[70] From this time X lived with the Respondent but spent time with the Applicant on alternative weeks from after school Thursday until the commencement of school Monday (or Tuesday if Monday is a Public Holiday) and each alternative Thursday from after school until approximately 9:00pm (when X finished an extracurricular activity).[71] X was also to spend time with the Applicant on special occasions.[72]
[70] Applicant’s trial affidavit (n8) [31] – [32].
[71] Respondent’s trial affidavit (n2) [26].
[72] Ibid [27].
The Respondent said that after the October 2021 arrangement came into effect, X began biting his nails again, and after the new parenting arrangements began in February 2022, X seemed less ‘smiley’ or affectionate and more withdrawn.[73] The Applicant said she has a loving relationship with X[74] and has her own concern about X’s emotional development and safety in spending prolonged or lengthy periods with the Respondent.[75] Both parties continue to hold concerns about the other’s ability to cater for X’s needs.
[73] Respondent’s trial affidavit (n2) [65] – [71].
[74] Applicant’s trial affidavit (n8) [28].
[75] Ibid [37].
The parties participated in a Single Expert Report interview with Dr H on 30 May 2022, with the Report being released on 6 June 2022.
On 8 August 2022 the Respondent filed an Application in a Proceeding for interlocutory orders seeking to dismiss all of the Applicant’s application/s, strike out the Family Report and dismiss the appointed ICL. This application was adjourned until the final hearing, where it was dismissed.
Both the parenting and property matters progressed to a trial on 31 October 2022 and continued on 1 November 2022 before adjourning part-heard. The Respondent was represented by Mr Maguire for that part of the trial.
Some final orders were made 1 November 2022 relating to special occasions, changeover arrangements, communication, interstate travel, injunctions and time on Christmas Day, Easter, Mother’s Day, Father’s Day and X's Birthday.
The trial continued on 23 and 24 of February 2023, at which time the Respondent represented himself. On 24 February 2023 a final Order was made for equal shared parental responsibility. This left the issue as to whether X should live in an equal time arrangement or keep to the existing regime of time. The Respondent submitted that an equal time arrangement is not practicable because of the parties' inability to effectively communicate. He described the communication as adequate but falling short of open communication,[76] which generally occurs via text or email.[77] Both parties raised concerns about the others communication via text messages. [78] Notwithstanding these stated concerns, it became apparent that both parties have, in fact, communicated effectively with each other in relation to important child related matters.
[76] Trial (n19): Cross examination.
[77] Respondent’s trial affidavit (n2) [242].
[78] Trial (n19): The Respondent conceded that the text he sent X in April 21 was not appropriate.
Some agreement was also reached in relation to the property matters, with an Order made on 2 November 2022, transferring Motor Vehicle 2 to the Applicant and Motor Vehicle 1 to the Respondent. Directions were also made to close a joint bank account and distribute the remaining funds to the Respondent.[79] On 24 February 2023 a further Order was made permitting the Applicant to access and retrieve the last of her belongings, including the items stored in shipping containers, from the matrimonial home and for each party to otherwise relinquish any claim to the others chattels.
[79] Order of Judge Turnbull, in Radcliffe & Marsters (Federal Circuit and Family Court of Australia, LNC590/2021, 2 November 2022) (‘Order of 2 November 2022’).
Current circumstances
The Applicant lives with her partner, Mr CC, and Ms J in rented accommodation.[80] The Applicant reported a close relationship between Ms J and X — with Ms J assisting the Applicant with his care if the need arises.[81] The Applicant continues her employment as an educator and she and her partner Mr CC contribute equally towards the household expenses and meals and that Ms J contributes towards electricity bills.[82] The Applicant has a total average weekly income of $1,827.15.[83]
[80] Applicant’s trial affidavit (n8) [45]: The Applicant and her partner have lived together since late 2021.
[81] Ibid [28].
[82] Ibid [46].
[83] Financial Statement of Ms Radcliffe, 26 October 2022 (‘Applicant’s financial statement’).
The Respondent is not in a relationship and lives in the D Street property with X.[84] He receives child support from the Applicant, Jobseeker and Family Tax Benefit payments as well as being self-employed. The Respondent has a total average weekly income of $1,340.[85] The Respondent is seeing a psychologist every 2-3 weeks at FF Service to deal with ‘the stress brought on by these proceedings, the fallout from my relationship with [Ms Radcliffe] and how I can better move forward with my relationships in the future.’[86] The Respondent has also been diagnosed with Adult ADHD.[87]
[84] Respondent’s trial affidavit (n2) [21].
[85] Financial Statement of Mr Marsters, 26 October 2022 (‘Respondent’s financial statement’).
[86] Ibid [22].
[87] Respondent trial affidavit (n2) [378].

The Applicant concedes that her current income is higher, on paper, but that the Respondent’s total income equals hers once you add his income to his ability to write off all of his expenses[88] — a position relevant to both the property and spousal maintenance applications.
[88] Trial (n19): Under cross examination.
DOCUMENTS TO BE RELIED UPON AND EVIDENCE
The Applicant relied upon:
·Her Initiating Application filed 15 July 2021;
·Her affidavit filed 27 October 2022;
·Her Financial Statement filed 26 October 2022; and
·Report of Dr H dated 6 June 2022.
The Applicant was a convincing witness, answering questions put to her directly and making appropriate concessions. It was apparent that she remains impacted by the events leading to the breakdown of her relationship with the Respondent and she has no desire to communicate directly with the Respondent at this time, save for maintaining communication about X. I generally accept her evidence.
The Respondent relied upon:
·His Response to Initiating Application filed 26 October 2022;
·His Affidavit filed 26 October 2022;
·His Financial Statement filed 26 October 2022;
·Subpoena Documents returned by Department of Education;
·His Tender Bundle; and
·Report of Dr H dated 6 June 2022.
The Respondent gave his evidence cautiously and, at times, failed to answer questions put to him directly. He presented as a man deeply impacted by events leading to the marital breakdown and carrying a level of resentment towards the Applicant that has led him to make some decisions that did not reflect well upon him. He is, however, clearly committed to his son.
The final witness was the Court Expert, Dr H, whose report and evidence the Independent Children’s Lawyer substantially relied upon.
Dr H provided a comprehensive report, and gave her evidence in a calm logical fashion under cross-examination, adhering to her opinions and recommendations. Dr H ultimately opined that X’s best interests would be served if he lived with his parents in a shared care/week about arrangement. Dr H properly considered the impact of the parties' poor relationship upon the practical workability of an equal time arrangement and concluded that the reasonable manner in which the parties' communicated, together with their largely shared values and the use of the school as the changeover point (save for holiday times), left her with little doubt that such an arrangement was reasonably practicable:
Given that [X] has a close relationship with both parents and considering that both parents present as being highly motivated and capable of meeting [X’s] needs, it is recommended that [X] has the opportunity to spend equal amounts of time in both homes. Given the parents’ commitment to providing [X] with the stability, routine and structure that is necessary for him to thrive, it is expected that [X] is likely to have the capacity to transition to an equal shared care arrangement. His ADHD symptoms are currently very well managed with the use of medication and adherence to the routines and strategies that are implemented within both homes.[89]
[89] Single Expert Report (n3) 39 – 40.
For the purposes of her report, Dr H carried out Personality Assessment Inventory (PAI), self‑report assessments of the parties' to compare their psychological functioning against clinical normative samples on a variety of constructs relevant to the assessment of personality and psychopathology consistent with the Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-V) Guidelines.[90]
[90] Ibid 10.
Summary of Dr H PAI results for Ms Radcliffe
The Applicant’s results were entirely within normal limits with no indications of significant psychopathology in the areas tapped by the clinical scales. The Applicant self-reported no significant problems in the many areas assessed which included (but were not limited to): unusual thoughts, antisocial behaviour, problems with empathy, elevated mood and marked anxiety. Dr H opined that the Applicant may be inwardly troubled by self-doubt but outwardly appears to have reasonable self-esteem. Dr H described the Applicant interpersonal style as ‘modest, unpretentious, and retiring’ but recognised that others may view the Applicant as ‘passive, humble and unassuming’. The Applicant reported no alcohol or drug use problems and this was reflected in the Alcohol Use Disorders Identification Test and Drug Abuse Screening Test. The Applicant reports a level of stresses comparable to normal adults with a large number of individuals she can readily turn to for support. Dr H opined ‘The combination of a highly developed system of social supports with a reasonably low stress environment is a favourable prognostic sign for future adjustment.’[91]
[91] Ibid 11 – 12.
Summary of Dr H PAI results for Mr Marsters
The Respondent’s response style indicated that he may not have answered forthrightly or that the nature of his responses might lead the evaluator to form a somewhat inaccurate impression of him —‘[Mr Marsters’] response patterns are unusual in that they indicate a defensiveness about particular personal shortcomings as well as an exaggeration of certain problems.’ Dr H issued caution to the interpretive hypotheses in her report given the tendency of the Respondent to repress undesirable characteristics. Despite this, she said that the Respondent described problems of greater intensity than is typical of defensive respondents including: suspiciousness, unsupportive family or friends, history of antisocial behaviour, stress in the environment and alcohol abuse or dependency. Dr H also expressed that the report should be viewed with the consideration that the Respondent presented with patterns or features that are atypical in clinical populations but common among those feigning mental disorders — potentially affecting the test findings in certain areas.[92]
[92] Ibid 23.
The Respondent’s results did not indicate the presence of clinical psychopathology although his tendency not to admit dysfunction or problems, Dr H opined, is likely to be responsible for this self-report. The Respondent presented a generally positive and stable self-evaluation with occasional self-doubt or pessimism. Dr H also described the Respondent’s interpersonal style as ‘modest, unpretentious, and retiring’ which is likely to be viewed by others as ‘passive, humble, and unassuming.’ The Respondent’s social supports indicated his level of social support as being lower than the average adult.[93] The DSM-5 diagnostic possibilities suggested by the configuration of PAI scale scores, highlighted the diagnostic considerations of relational problems and unspecified personality disorder with paranoid features for the Respondent.[94]
[93] Ibid 24.
[94] Ibid 24 – 25.
No drug abuse was reported on the Drug Abuse Screening Test. The Alcohol Use Disorders Identification Test placed the Respondent in the medium category for problems associated with alcohol use. Dr H opined that simple advice focusing on the reduction of hazardous drinking is likely to be the most appropriate course of action for the Respondent.[95]
[95] Ibid 25.
Dr H’s general observations
Dr H made the following observation about the Applicant:
[Ms Radcliffe] presented as being an open and honest individual who expressed herself articulately and intelligently. She expressed an adequate understanding of the current assessment.[96]
[96] Ibid 3.
Dr H’s observations of the Respondent were:
[Mr Marsters] presented as being an open, talkative and friendly individual. He presented as having a good understanding of the purpose of the current assessment, indicating he has previously been involved in other family law matters. During the interview, it was observed that [Mr Marsters] frequently digressed from the initial point of conversation, with him typically directing the conversation to discussions around [Ms Radcliffe’s] various alleged shortcomings and parenting deficiencies.[97]
[97] Ibid 12.
Dr H’s summary of each party’s presentation accords with my own observations of the parties during the trial. Dr H’s observations of X were also informative:
[X] presented as being a friendly, articulate and intelligent individual. Despite being reassured that [X] could speak openly and honestly, it was observed that there was a general reluctance to provide any information that could potentially portray either of his parents in a less than favourable light. [X] presented as being intensely loyal to both his parents and it was clear that he cared very much about their feelings. He presented as being somewhat guarded when any issues were raised that related to any concerns that he may have in relation to his current and / or future care arrangements.[98]
[98] Ibid 26.
Dr H’s evidence was thorough and considered and I accept the opinions contained in her report and expressed in Court.
Matters agreed
The parties agreed upon a number of Orders with respect to parenting on 31 October 2022 and on 1 November 2022, which shall be incorporated into the final suite of Orders to be made once I determine the matters remaining in dispute. In effect, those Orders provide for equal shared parental responsibility,[99] changeover,[100] Christmas and Easter arrangements,[101] Mother’s Day and Father’s Day in each year,[102] communication between themselves by email and telephone, injunctions against denigration and discussing this litigation in X’s presence or hearing. The parties' also agreed to an equal splitting of the school holidays but diverge on how this is to be achieved.
[99] Case outline of Independent Children’s Lawyer, 27 October 2022, 7 [1] (‘ICL Case Outline’).
[100] Ibid 7 [3].
[101] Ibid 7 [4(a)-(b)]–[5(a)-(b)].
[102] Response to Application in a Proceeding of Mr Marsters, 26 October 2022 [9] (‘Respondent’s response’).
As for property, the parties' agreed to a balance sheet exhibited as J1. They also entered into final Orders confirming that Motor Vehicle 2 will be transferred to the Applicant and Motor Vehicle 1 will be transferred to the Respondent.[103] The Respondent will also retain the plant and equipment, the $60 held in the NAB joint account and the $804 in the combined accounts.[104] The Applicant will otherwise retain her R Bank shares, monies in her bank account, her furniture and effects and her Westpac shares.
[103] Order of 2 November 2022 (n79).
[104] See notations in Order of Judge Turnbull, in Radcliffe & Marsters (Federal Circuit and Family Court of Australia, LNC590/2021, 1 November 2022.
J1 – The joint agreed balance sheet is set out below:[105]
[105] Note: following the trial I asked the parties' to confirm whether an amount of $27,000 being a loan to V Finance, should remain in J1, because motor vehicle was not included in the assets. Both parties' agreed that the $27,000 amount should be removed and J1 as extracted does not include that figure. The extracted document has also been altered to show which party is retaining which asset or liability.

ASSETS

Ownership

Description

Applicants Value

Respondent’s Value

Joint

D Street Town E, Tasmania

$350, 000

$350, 000

Respondent

Plant and Equipment

$152, 630

$152, 630

Applicant

Motor Vehicle 2

$23, 950

$23, 950

Applicant

R Bank Shares

$6, 223

$6, 223

Applicant

S Insurance

$10, 949

$10, 949

Respondent

NAB Account Number …19

$60

$60

Applicant

Combined Bank Accounts

$3, 493

$3, 493

Respondent

Combined Bank Accounts

$804

$804

Applicant

Furniture & Effects

$3, 450

$3, 450

Applicant

Westpac Shares

$2,781

$2,781

TOTAL

$554, 340

The Liabilities are:

LIABILITIES

Ownership

Description

Applicant’s Value

Respondent’s Value

Joint

NAB Mortgage

$127, 168

$127, 168

Respondent

T Financial Services

$2,000

$2,000

Respondent

HH Lawyers (post-separation – legal costs)

Nil

Nil

Respondent

Ms U (post-separation – legal costs)

Nil

Nil

TOTAL

$129,168

NET TOTAL - $425,172

The Superannuation interests are:

Superannuation

Applicant

Superannuation Fund 1 Super Account …

Accumulation Interest

$153, 781.10 (as at 30 June 2022)

$153, 781.10 (as at 30 June 2022)

Applicant

Superannuation Fund 2

Accumulation Interest

$36, 888.83 (as at 30 June 2022)

$36, 888.83 (as at 30 June 2022)

Respondent

Superannuation Fund 3

Accumulation Interest

$47, 812.21 (as at 30 June 2021)

$47, 812.21 (as at 30 June 2021)

TOTAL

$238, 482.14

Financial Resources:

Financial Resources

Ownership

Description

Applicant’s value

Respondent’s value

Applicant

Long Service Leave Entitlements (employer)

E$28, 493

E$28, 493 (gross)

TOTAL

E$28, 493

Notes: The Applicant paid the entirety of the Valuation costs upfront consisting of:
(1) W Valuers – Valuation D Street – Total $4, 400.00
(2) Z Valuers and Auctioneers – Valuation Chattels – Total $3, 080.00

The Respondent is to pay 50% of these costs, totalling $3,740.00 and it is agreed such payment will be made on the happening of either the refinance of the mortgage and transfer of the D Street property to the Respondent, or the sale of the property and in the event of the latter such repayment to be made before balance sale proceeds are distributed between the parties.

The net non-superannuation pool (assets minus liabilities) is $425,172 and of that amount the Applicant will retain net assets (not including D Street or its mortgage) valued at $50,846 and the Respondent $151,494.
The total superannuation pool has a value of $238,482.14. Of that amount the Applicant holds superannuation valued at $190,669.93 and the Respondent $47,812.21.
Issues for determination
Issue 1: X’s time with his parents during school terms and school holidays
The Respondent’s position was that the current arrangements should remain in place — that X spends time with the Applicant, during school terms, each alternate week from Thursday to Monday (or Tuesday if Monday is a Public Holiday). The Respondent sought a week about arrangement in the school holidays from 3:00pm Fridays to 5:00pm the following Friday. The Respondent said that X had expressed to him that he wanted to retain his current living arrangements. The Respondent believes that maintaining the current arrangement, or status quo as he put it, is less disruptive to X — with the current arrangement already meeting his needs and allowing him to maintain a good relationship with the Applicant and his sister. In final submissions he described the current arrangement as ‘stable, secure, safe, established and adequate’ and a significant change to X living arrangements, he said, would not be in his best interests.[106]
[106] Respondent’s trial affidavit (n2) [399].
The Applicant's position is that there be a week on/week off, Monday–Monday arrangement, during school terms. For school holidays, the Applicant sought an equal splitting of all school holidays with the parent who does not have X on Christmas Eve, to have the first half of the summer school holidays. The Applicant said ‘[I have] grave concerns as to [X’s] emotional development and safety should he continue to spend lengthy and extended periods of time in the Respondent’s care as he moves into the more challenging stage, that I am familiar with, where teenagers typically exert their individual identity and begin to questions and challenge parental values and boundaries.’[107] She submitted that the implementation of an equal time arrangement will help address these concerns.
[107] Applicant’s trial affidavit (n8) [37].
The Independent Children’s Lawyer (‘ICL’) supported the Applicant’s position, proposing that X live with his parents on a week-about basis from each Monday at 9:00am on school days or, if not a school day, at 5:00pm.[108] The ICL submitted that such an arrangement offers X simplicity as he heads into his teenage years. The ICL did not support any interruption to either parents’ week with tea on one evening at the alternate parents’ house. The ICL submitted that the parties' were capable of implementing this arrangement as they are already travelling roughly equal distance to the current change-over point, and their ability to communicate about parenting matters had significantly improved. The ICL urged the Court to accept the evidence of Dr H — who clearly favoured an equal time arrangement for X — an opinion bolstered by X’s enthusiasm for such an arrangement, as evidenced by his ‘thumbs up’ motion when she put the concept to him. In relation to school holidays, the ICL does not support the Mother’s position during the summer holidays as he was concerned that he parties may not be able to agree upon the actual date for changeover. Consequently, he promoted a continuation of the school term arrangement throughout the school holidays — thus maintaining stability and certainty year-round.
[108] ICL Case outline (n99) 7 [2].
Issue 2: whether the parties' superannuation interests should be dealt with in a separate pool?
The Respondent’s proposed Order results in the Applicant retaining all of the parties' superannuation interest, including his full entitlement — valued at $47,812.21 — and that there be no cash adjustment to her. He submitted that such orders will allow him to retain the D Street property, as he will then only have to re-finance the NAB mortgage, which he believes he can manage. The Respondent also submitted that if the D Street property is sold, he will not be able to keep plant and material or his animals nor retain the ability to tax deduct all of his expenses — all of which supplement his income. The Respondent did not produce any evidence that he has finance approved to assume responsibility for the mortgage.
The Applicant submitted that the superannuation and non-superannuation assets should be considered in two separate pools, and there should be a payment to the Respondent’s superannuation fund of an amount from her fund. In her trial affidavit the Applicant said that the Respondent’s superannuation would be significantly higher if he had not made three withdrawals between 2020 and 2021, totalling approximately $27,000. She initially asked for this to be taken into consideration when determining the distribution of superannuation,[109] however, in closing submissions, she sought a division of the current superannuation pool — resulting in a split to the Respondent’s superannuation account of $56,428.
[109] Ibid [54].
The Applicant submitted that it would be neither just nor equitable for her to only receive an asset that it is not possible to access, when she requires cash to build her financial future. The approach to determining property cases involving superannuation interests and whether a Court should consider the parties' superannuation interests in a separate pool was considered in Coghlan & Coghlan [2005] FamCA 429 where the Full Court stated that:
In summary, then, the trial Judge has a discretion as to how superannuation interests will be treated in a particular case. If superannuation is not included in the list of property but rather made the subject of a separate pool, it will be necessary where a splitting order is sought, or extremely prudent where no such splitting order is sought (in order to ensure that justice and equity is achieved) to:
(a) value the superannuation interest (according to the Regulations if an order under Part VIIIB is sought or according to the Regulations or otherwise if no order is sought);
(b) consider and make findings about the types of contributions referred to in s 79(4)(a), (b) and (c) which have been made by the parties to the superannuation interests on either a global approach or an asset by asset approach depending on the circumstances;
(c) consider the other factors in s 79(4) being the matters in s 79(4)(d), (e), (f) and (g); and
(d) ensure that pursuant to s 79(2) the orders in relation to the parties' property, and any order under Part VIIIB in relation to superannuation interests are just and equitable.
In the context of a consideration of the matters referred to in sub-paragraph (b) and (c) of the last paragraph, the following matters may well be relevant: the relationship between years of fund membership and cohabitation; actual contributions made by the fund member at the commencement of the cohabitation (if applicable), at separation and at the date of hearing; preserved and non-preserved resignation entitlements at those times; and any factors peculiar to the fund or to the spouse's present and/or future entitlements under the fund.[110]
[110] Coghlan & Coghlan [2005] FamCA 429 [65] – [66].

I will consider this issue once I determine whether it is just and equitable to make a property order.
Issue 3: whether the parties' contributions to the non-superannuation pool should be regarded as equal
The Applicant submitted that the parties' financial and non-financial contributions should be regarded as equal. It was submitted that, although her financial and domestic contributions were higher than the Respondent’s, his contributions financially and to the care of the children, over a long relationship, should be given weight. The Applicant initially asserted that the Respondent did not disclose all of his gross income from his sub-contracting to properties — approximately $30, 000 annually for the past 3 years — which was not contributed towards the household and daily living expenses.[111] This argument was not maintained during closing submissions. The Applicant argued that her inherited monies were contributed to the relationship and that this contribution equalled the impact of the Respondent’s introduction of the K Street property to the relationship.
[111] Applicant’s trial affidavit (n8) [56].
The Respondent submitted that his introduction of the K Street property was a significant contribution that was not offset by the myriad of contributions made by the Applicant — including the introduction of inherited monies, which were not all devoted to the relationship. The Respondent argued that his role as a parent as well as his financial contributions from income, and should be afforded significant weight. Ultimately, the Respondent sought 65% of the total net assets — an outcome that should enable him to retain the D Street property — even if a two pool approach is adopted.
Issue 4: whether there should be an adjustment in percentage terms to the Respondent for matters set out in s 75(2)?
The Respondent claimed that he has an inferior income earning capacity to the Applicant, and that, coupled with his role as the primary carer for X and his care of Ms J during the relationship, should lead to a significant adjustment in his favour, thus enabling him to achieve his desired outcome of 65%.
The Applicant submitted that the real net income of the parties, particularly if the Respondent earns to his potential, should result in a finding that there is little disparity between the parties' incomes. Assuming that X will live in an equal time arrangement and noting her care and contribution towards the Respondent’s children during the relationship, there should be no adjustment for s 75(2) factors.
Issue 5: whether the Applicant should pay the Respondent spousal maintenance?
The Respondent was unsure as to whether he should maintain his application for $200 spousal maintenance per week, by the time of final submissions. He qualified his position submitting that only he felt a need for maintenance if he was required to pay the Applicant a cash sum, for which he would have to obtain finance. His original application was for $500 per week[112] but that amount reduced during the trial, and by the time of final submissions he was unsure if the amount he sought was $200 per week or a lesser sum. He argued that the Applicant has surplus income available to meet a payment of maintenance and that his expenses exceeded his income.[113] The Applicant countered that the Respondent, in reality, has the capacity to meet his necessary expenses from his income — if he works to his potential. Further, she has no money to pay spousal maintenance even if it is established that the Respondent has a need.
Issue 6: should orders be made to ensure that the Respondent retains the property at D Street, Town E?
[112] Respondent’s response (n102) [6].
[113] Family Law Act 1975 (Cth) s75(3) (‘FLA’): In exercising its jurisdiction under s74, a Court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance, or benefit; Elder v Elder [2009] FamCAFC 224 [50]: The entitlement or receiving of a pension cannot be taken into account in determining whether the party to receive a maintenance is unable to support themselves; The Centrelink payments received by the Respondent therefore, cannot be taken into consideration when making this assessment for maintenance and whether he is able to support himself.
The Respondent argued that it is just and equitable that he retain the D Street property with its mortgage. He did not, however, adduce any evidence to establish that he can obtain a loan to re-finance the NAB mortgage, although the Applicant agreed for the Respondent to have 60 days to try and refinance the mortgage and pay her what she is owed —failing which the property should be sold. The Respondent argued that the property is an income producing asset that provides him with tax advantages which will be lost if the property is sold, reducing his available income. He submitted that he has rarely worked fulltime and has limited ability to convince a financial institution to provide him with a large loan. He submitted that he has a special affiliation with the property and that he will be personally impacted, as would X, if it had to be sold. He argued that the Applicant has re-partnered, has a strong income, and will be able to buy another house and maintain a good standard of living, even if she receives no actual cash from the property settlement.
The Applicant submitted that the only way to ensure a just and equitable outcome is to sell the D Street property. The Respondent’s primary proposition — that the Applicant retain all of the superannuation assets — would deprive her of being able to access funds now to rehouse and otherwise improve her financial circumstances. Her superannuation is not accessible for many years and she would be significantly disadvantaged by such an outcome.
Standard of proof
I note briefly, before continuing, that all facts in issue in these proceedings must be proved on the balance of probabilities. Dixon J, as he then was, remarked upon the standard of proof for civil proceedings in Briginshaw v Briginshaw (1938) 60 CLR 336, which remain relevant and authoritative:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
A fact in issue is 'proved' if I am reasonably satisfied, on the evidence, that it is more likely than not that the fact existed or occurred in the manner ultimately determined.[114]
PARENTING
[114] Evidence Act 1995 (Cth) s 140.
Parenting orders: the law
This Court must craft and consider the terms of a parenting order with regard to X’s best interests as a paramount consideration.[115] I am not bound by the terms proposed by the parties and — subject to the pathway set out in the Family Law Act 1975 (Cth) (“The Act”) Part VII, and particularly ss 61DA and 61DAB — may create parenting orders as I think are proper in the circumstances.[116] What, however, guides the assessment of X’s best interests? How, once his best interests are ascertained, does the Act ensure that parenting orders reflect them as a paramount consideration?
[115] FLA (n113) s 60CA.
[116] Ibid s 65D(1).
The objects of Part VII of the Act, and the principles underlying these objects, indicate the Act’s aspirations with respect to X’s best interests. Crucially, and as touched upon at trial, the underlying principles reflect and seek to enforce X’s human rights.[117] Part VII of the Act, to give effect to a child or children’s best interests, carves a legislative pathway. The pathway has a number of substantive stepping-stones which may be legitimately and properly followed in various forms.[118] I will follow the path set out in MRR & GR (2010) 240 CLR 461, which remains authoritative.[119]
[117] Ibid s 60B(1),(2),(4), noting the expression of responsibility at subs (1), the expression of the child or children’s rights at subs (2), and the additional object at subs (4) to give effect to the Convention on the Rights of the Child.
[118] Withers & Russell [2016] FamCA 793, [315]-[318] at which Watts J confirms that there is no preferred approach, there being ‘more than one suggested pathway through the legislature’.
[119] MRR & GR (2010) 240 CLR 461, [6]-[9] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
X’s best interests: the s 60CC factors
The Act sets out two mandatory considerations at s 60CC(2). It is noted that s 60CC(2)(b) is to be given greater weight than s 60CC(2)(a). This means that the need to protect a child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect, or family violence outweighs the benefit to a child of having a meaningful relationship with both of their parents. The Act also includes a number of additional considerations under s 60CC(3), which will be considered insofar as they are relevant to this matter.
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child's parents
The Act does not define ‘meaningful’. Characterising a meaningful relationship between a child and their parent is, necessarily, an individualised assessment.
The Full Court in McCall & Clark [2009] FamCAFC 92 endorsed the explanation of ‘meaningful relationship’ as given by Brown J in Mazorski & Albright [2007] FamCA 520:
What these definitions convey is that "meaningful", when used in the context of "meaningful relationship", is synonymous with "significant" which, in turn, is generally used as a synonym for "important" or "of consequence". I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.[120]
[120] Mazorski & Albright [2007] FamCA 520, [26]; McCall & Clark [2009] FamCAFC 92, [115].
A ‘meaningful relationship’ does not, however, have to be an ‘optimal relationship’. Kay J’s remarks in Godfrey & Sanders [2007] FamCA 102 more fully state this position:
It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their Father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.[121]
[121] Godfrey & Sanders [2007] FamCA 102, [36].
As observed by Dr H, X has a close relationship and loving relationship with both of his parents:
[X] presents as having a close bond and relationship with both his parents. [X] clearly enjoys spending time in both homes and he presents as having only positive feelings around his relationships and the level of connection he has established with the family members in both homes.[122]
[122] Single Expert Report (n3) 38.
Although the Respondent tended to down play the nature of the relationship X has with the Applicant, he ultimately conceded that X has a loving relationship with her and the Applicant made the same concession regarding the Respondent.[123] I have no doubt that X has a meaningful relationship with both of his parents and that those relationships are beneficial to him.
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[123] Both parties made these concessions under cross-examination.
Neither party argued that the other posed an unacceptable risk to X. There was some attention paid to the behaviour of each party at the time of separation, which involved the attendance of police at the matrimonial home, in the presence of X. This incident still resonates with the Applicant, and I hold concern that the Respondent lacks insight as to the impact upon X of involving police to remove the Applicant from her home at that time. The Applicant also expressed concern about the Respondent involving X in his parent’s dispute at other times. I accept that the Respondent has burdened X with adult matters and pressured him to choose between his parents. The Applicant argued that an equal time arrangement will reduce X’s exposure to the Respondent's poor attitude towards her:
This will give [X] the greatest opportunity to maintain meaningful relationships with the parents and provide him with the greatest protection from the conflict and negative dynamic advanced by the Father. The Father, to cope with week about, will require engagement with intensive targeted family therapy and restrictions on his communications about his own negative and hostile thoughts to enable him to rebuild positive attitudes to the Mother's parenting.[124]
[124] Case outline of Ms Radcliffe, filed 27 October 2022 5 (‘Applicants case outline’).
The Respondent said that he still finds it difficult to interact with the Applicant, and although he is improving, he has ongoing therapy and proposes that he not be un-expectantly brought into contact with her, given its triggering effect.
Notwithstanding the unsavoury incident occurring at separation, the parties' have largely remained conflict free since separation. I was impressed with the parties' ability to communicate with each other regarding parenting matters. The Respondent gave examples of good communication under cross-examination, including the ability to make alternate contact arrangements when necessary and to act collaboratively and flexibly when X contracted Covid‑19. The parties' have also been able to ensure that changeovers have been incident free. I am satisfied that neither party poses an unacceptable risk of harm to X.
Section 60CC(3)(a): any views expressed by the child, and the weight to be accorded to those views given their age and level of maturity
There is no universal rule for weight to be afforded to the views of a child. It is a matter of discretion and, ultimately, this factor is one of several in the overall assessment of best interests. Importantly, as stated in Bondelmonte & Bondelmonte (2017) 259 CLR 662:
The terms of s60CC(3)(a) itself may be taken to recognise that, whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed. Children may not, for example, appreciate the long term implications of separation from one parent or the child’s siblings. Section 60CC requires that attention be given by the Court to these matters.[125]
[125] Bondelmonte & Bondelmonte (2017) 259 CLR 662, 673-674.
The Respondent was adamant that X had expressed a clear view to him that he did not want to change his existing living arrangements. Honouring this wish was a prime motivating factor for the Respondent to oppose the Applicant's application.
He maintained under cross-examination that X was not just telling him what he wanted to hear in expressing such views. He said X was clear that he did not want to live in an equal time arrangement.
Dr H interviewed X for the purpose of her report stating:
Towards the end of the appointment, once [X] presented as feeling more comfortable and less guarded, I asked [X] to consider how he would feel if it was decided that he could spend equal amounts of time with his Mum and Dad, he said “okay”. When asked to consider how he would feel if it was decided that his current living arrangements would not change, he said, “okay”. [X] appeared to be genuinely nonplussed when considered both these options. Although he could not provide further reasoning or information in relation to this issue, his body language (smiling, thumbs up) indicated that he appeared to be relaxed and comfortable when considering either of these options for his living arrangements.[126]
[126] Single Expert Report (n3) 29-30.
Under cross-examination Dr H expanded on her observations, stating that she felt confident that X preferred to spend an equal time with his parents, when he gave her a ‘thumbs-up’ when the concept was put to him. She said that X was intelligent and well able to adapt to any change in and to his current living arrangements, and although he would cope if the arrangements did not change, his preference was clearly to spend more time in the Applicant’s care.
I have no hesitation in accepting Dr H’s thoughtful evidence in relation to X’s view that he would prefer and adapt easily to an equal time arrangement. X is 13 years age. He is a thoughtful, mature and intelligent young man, and I give weight to his views, as expressed and indicated to Dr H.
Section 60CC(3)(b): the nature of the relationship of the child with each of their parents
As stated, X has a loving and strong relationship with both of his parents. Dr H commented upon his ability to navigate the differences in each parties' home and cater for his parent’s attitude towards each other. She opined that he has coped well with his parents’ separation and the Respondent's more intensive parenting style. She is confident that he will adapt and thrive in an equal time arrangement.
Section 60CC(3)(c): the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child
Both parents have been actively involved in major decisions relating to X. The Applicant was critical of the Respondent for excluding her from involvement in a school meeting, however, since then, the parties' have generally been able to communicate effectively about X’s educational and medical issues.
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 Applicant has been assessed to pay the Respondent Child Support in the amount of $760.62 per month.[127] The Applicant has also met the cost of X’s specialist appointments and medication. It is in X’s best interests for both of his parents to meet his essential costs if they are able — it is hoped that the Respondent will make a greater contribution to such expenses in the future.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect to the child from any separation from either of their parents
[127] Applicant’s financial statement (n83) [31].
The Respondent submitted that there will be a negative impact upon X if his current living arrangements change. He said that X does not want the arrangements to change and he is likely to be upset if they do. Dr H opined that X would adapt well to an equal time arrangement, which, in her view, he preferred.

I have made orders that X will live in a week on/week off equal time arrangement. Given X’s age and the fortnightly care arrangements, there is nothing preventing either party from undertaking full time employment, at least in the week when X is in the other party’s care.
Section 75(2)(m): if either party is cohabiting with another person—the financial circumstances relating to the cohabitation
The Applicant is living with her partner Mr CC who works full time and earns $1,692 per week.[170] The Applicant’s partner is employed and able to contribute to her costs of living expenses as is Ms J who lives with her and earns an income. The Respondent is not cohabiting with any other person at this time.
Section 75(2)(n): the terms of any order made or proposed to be made under section 79 in relation to the property of the parties
[170] Applicant’s Financial Statement (n83) 4.
I have determined that the parties' made equal contributions to the non-superannuation pool, resulting in them each being entitled to net assets worth $212,586. The Respondent currently holds net assets valued at $50,846 and the Respondent $151,494.
Section 75(2)(na): any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
The Applicant is currently assessed to pay the Respondent $226.23 per week in child support. This may reduce given the change to X’s living arrangements.
Section 75(2)(o): any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account
Both parties will likely use the monies that they will obtain from this property settlement to re‑house themselves. The Applicant is advantaged by the fact that she is currently living in rented accommodation with her partner, whilst the Respondent will need to meet the expense of moving from the property in the event that he is unable to retain it. That said, the Applicant had to meet those costs when she was removed from the property at the time of separation.
The Respondent provided substantial care for Ms J during the relationship. The Applicant did not receive financial assistance from Ms J's Father nor did he take a caring role. This was an important contribution that I will take into account having regard to the decision in Robb & Robb [1994] FamCA 136 where the Full Court at stated:
In considering whether the justice of a case requires some act done by a party to be taken into account under s.75(2)(o), the Court should, we think, have regard primarily to the existence or otherwise of any legal obligations, as between the parties, in relation to the doing of that act, and also, perhaps, to ordinary notions of justice and equity between the parties.
In this case, the Applicant had a legal duty to maintain the children of her prior marriage, which duty had primacy over the duty of any other person, other than the children's Respondent, to so maintain them: ss.66A and 66B of the Act. The Respondent, on the other hand, had no legal duty to maintain these children at any time during the marriage because, by s.66G, a step-parent has such a duty only if he or she is a guardian of the child, or has custody of the child by an order of a Court, or a Court having jurisdiction under Part VII of the Act by order determines that it is proper for the step-parent to have that duty. None of those pre-conditions existed in this case.
Accordingly, in contributing to the support of these children the Applicant was merely honouring a legal obligation which she owed to the children, whilst the Respondent, in making his contribution, was acting essentially as a volunteer assisting the Applicant in the discharge of her legal obligations. Upon that basis, whilst we consider the justice of the case clearly required the Respondent's contribution to be taken into account under s 75(2)(o), the same cannot be said of the Applicant's contribution. In making that contribution the Applicant was in no way discharging or assisting to discharge any legal obligation of the Respondent.”[171]
[171] Robb & Robb [1994] FamCA 136 [65] – [67] (Lindenmayer, Finn and Joske JJ).
The Applicant also provided care for the Respondent’s biological children during the relationship. They were, however, spending time with their mother during this period. The Applicant said that she contributed to expenses for the Respondent’s children including school fees. Both parties' have made contributions in this regard but the Respondent’s care and assistance with Ms J was greater than the Applicant’s contribution toward the Respondent’s children.
Section 75(2)(p): the terms of any financial agreement that is binding on the parties to the marriage
This is not a relevant consideration.
Section 75(2)(q): the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage
This is not a relevant consideration.
Section 79(4)(f): any order made under this Act affecting a party to the marriage or a child of the marriage
I have determined that X will live in an equal time arrangement.
Section 79(4)(g): any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
The Applicant is currently assessed to pay the Respondent child support but this may change with the change to X’s parenting arrangements.
Conclusion regarding the matters referred to in s 79(4)(d)–(g)
Taking into account the Applicant’s more settled employment, the Respondent’s care of Ms J during the relationship (noting the Applicant’s care and contribution towards the Respondent’s children), the fact that the Applicant has re-partnered, and the financial resource in her long service leave benefits, there should be an adjustment in favour of the Respondent of 5%.
This results in there being a 55/45 division of the non-superannuation assets in the Respondent’s favour. The non-superannuation asset pool is valued at $425,172 — 55% of that figure is $233,844.60 and 45% is $191,327.40 — a differential of $42,517.20. The Applicant currently holds net assets valued at $50,846 and the Respondent $151,494. If the Respondent retains the home then he will retain net assets valued at $374,326 and will therefore need to pay the Applicant $140,481.40 for her to receive her 45% entitlement.
If the Respondent is unable to refinance the total sum of $267,649.40, being the mortgage and the amount needed to pay the Applicant, within 60 days of the date of this Order, then the D Street property will be sold and the proceeds of sale will be divided in such proportion so as to ensure that there is a 55/45 division of the parties’ non-superannuation assets, in the Respondent’s favour. Assuming the property nets its agreed value of $350,000,[172] and noting its mortgage of $127,168, the Applicant will receive $140,481.40 from the proceeds of sale and the Respondent $82,350.60.
[172] After commissions and costs.
Superannuation
As stated, the Applicant seeks an equalisation of the parties’ superannuation assets whilst the Respondent seeks 65% of the total superannuation pool — valued at $238,482.14. Both parties agree that there should be an alteration of the parties’ superannuation entitlements. As stated at paragraph 128 of these Reason’s, I agree that it is just and equitable that there be an Order altering the parties’ superannuation assets.
Section 79(4)(a)-(c) — contributions
Section 79(4)(a) — direct or indirect financial contributions
When the parties commenced their relationship the Applicant had her Superannuation Fund 3 (now Superannuation Fund 2) that currently holds $36,888.[173] The Respondent held a small amount of superannuation.[174] The Applicant made significantly greater contributions than the Respondent to the superannuation pool during the relationship and post-separation. As shown, she currently holds 79% of the total superannuation pool.[175] The Applicant maintained steady employment during and post the relationship whilst the Respondent worked as a sole contractor and did not contribute significantly to his superannuation fund. He also accepted that he withdrew money from his superannuation account which he said was used to pay bills.[176]
[173] Applicant trial affidavit (n8) [74].
[174] Respondent trial affidavit (n2) [414].
[175] See paragraph 125 of these Reason’s.
[176] Cross examination of the respondent.
Section 79(4)(b) — direct or indirect non-financial contributions
I repeat my findings at paragraph 134, noting that the Respondent’s contributions to renovations, at times, occurred whilst the Applicant was working, and therefore contributing to her superannuation.
Section 79(4)(c) — contributions to the welfare of the family, including contributions as homemaker or parent
I repeat my findings at paragraphs 135 and 136 of these Reasons. The Respondent made a greater contribution to parenting after X was born and post separation, although the Applicant was heavily involved in his parenting outside of work hours, and during school holidays. I repeat my findings regarding homemaking contributions.
Conclusion regarding the parties’ contributions
I conclude that the Applicant’s contributions to superannuation were higher than the Respondent’s. I assess their contributions to superannuation be 55/45 in favour of the Applicant. This results in her being entitled to $131,165.17 in superannuation and the Respondent $107,316.97 — a differential of $23,848.20.
Section 79(4)(d)-(g), including s 75(2) — other factors
I repeat my findings at paragraphs 138 - 170 of these Reasons so far as they apply to the parties’ ability to accumulate superannuation. I note that the parties' have a similar earning capacity and they will now share the care of X. The Respondent is a contractor and, therefore, does not have the benefit of his employer making superannuation contributions, although he has the ability to divert some of his income to his superannuation fund. The Applicant is in a more advantageous position to build her superannuation balance into the future. The Respondent did withdraw money from his superannuation, however, he had primary care of X during this period and the monies were likely spent on necessary expenses. I find that there should be a 5% adjustment to the Respondent for s 75(2) factors.
Conclusion regarding the parties' superannuation entitlements
I have determined that the parties' combined superannuation entitlements, valued at $238,482.14, will be divided equally. Each party is therefore entitled to superannuation in the amount of $119,241.07. The Applicant holds superannuation valued at $190,669.93 and the Respondent $47,812.The Respondent, therefore, requires a split to his fund of $71,428.86 from the Applicant’s superannuation fund to ensure equality. I am satisfied that the Trustee of the Applicant’s superannuation fund has been provided with procedural notice of the Applicant’s proposed superannuation splitting order, which I will incorporate into the final order, with the base amount being amended.
Final assessment: a just and equitable exercise of discretion?
After assessing contributions and other factors this Court must consider whether, in light of those assessments and the actual property to be divided, the proposed exercise of the discretion under s 79 is just and equitable. In Clauson & Clauson, the Full Court said the following:
… that exercise is not done in isolation; it is done against the background of conclusions already arrived at on contributions, the consequence of which will be in some cases to intrude into the s 75(2) exercise because of the dimension of the former conclusion and the total pool.
It is largely for that reason that it is ultimately necessary to stand back from the process and reach a conclusion which appears overall to be a just and equitable exercise of the discretion.[177]
[177] Clauson & Clauson (n158) 81,911–81,912.
The Respondent submitted that orders should be crafted so as to provide him with the best opportunity to retain the D Street property. For this reason he was prepared to provide the Applicant with all the parties' superannuation assets, to reduce the cash amount he was required to pay the Applicant. He claimed that he has a special connection to the D Street property and that he will be prevented from building his business ventures, earning income and using the property to defray tax, if he cannot retain the same. I have already commented on the supposed income earning potential of the property. The Respondent has also failed to produce any evidence to establish that he can refinance the existing mortgage. As I have stated I hold considerable doubt that a financial institution will lend him an amount to refinance the existing mortgage and the pay the Applicant the amount she is owed.
I am, however, satisfied that the Respondent ought to be given 60 days to try and obtain such finance and the Applicant agrees to provide him with that time. In the event that he is unsuccessful, the property will be sold and the proceeds divided so as to ensure that the parties' non-superannuation assets are divided 55/45 in the Respondent’s favour.
Standing back, I am satisfied that the outcome set out above, in relation to the parties' non-superannuation and superannuation assets, is just and equitable.
SPOUSAL MAINTENANCE
The Respondent seeks an order for $200 per week spousal maintenance — or such other amount as the Court deems appropriate.
Spousal maintenance: the law
The Full Court in Habib and Habib [1988] FamCA 40 at 26 confirmed that the question of spousal maintenance is to be considered after the determination of proceedings under s79:
In Lee Steere and Lee Steere (1985) FLC 91-626 the Court viewed the exercise that is required in proceedings under sec. 79 as incorporating two steps. Firstly the ascertainment of contribution and then the consideration of the relevant matters set out in sec. 75(2). It is the combined application of the past contributions and the sec. 75(2) elements that bring a Court to make an order that is just and equitable within the meaning of sec. 79. An order for maintenance, be it periodic or by way of lump sum, which is intended to be caught by the provisions of sec. 66L, 77A and 87A is something that is looked at generally after the sec. 79 matters have been attended to. It may require an additional transfer of property or payment of lump sum over and above the proposed order which has already been arrived at by the application of sec. 79 principles. (emphasis added)
It must be borne in mind though, that a property adjustment does not disqualify a party from a maintenance order. In Mitchell & Mitchell (1995) FLC 92-601[178] the Full Court held that ‘It appears to us to be beyond controversy that the amount which the Applicant in this case is to receive from the property order would not disqualify her from obtaining maintenance.’ As in Mitchell & Mitchell, the terms of any property order or proposed order, are to taken into consideration under s 75(2) when assessing whether to make a spousal maintenance order.
[178] In the Marriage of Mitchell and Mitchell (1995) FLC 92-601, 15 (Nicholson CJ, Fogarty, Jordan JJ).
Section 74 of the Act states that the Court may make such provision for spousal maintenance ‘as it considers proper’. A right to spousal maintenance is embodied in s 72 which states:
A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately… (a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years; (b) by reason of age or physical or mental incapacity for appropriate gainful employment, or (c) for any other adequate reason;
These consideration are to be assessed with regard to any of the relevant matters under s 75(2). I have already made extensive findings in relation to s 75(2) of the Act at paragraphs 145 – 168 of these Reason’s.
The Full Court in In the Marriage of Mitchell and Mitchell provides guidance as to the interpretation of this provision, confirming that s72 establishes a threshold question before the power of s74 can be exercised.[179]
That threshold is whether the applicant “is unable to support herself or himself adequately” by reason of the matters set out in (a), (b), or (c) of that section, but having regard to any relevant matter referred to in sub-section 75(2).
Thus, the question of whether the applicant can support herself “adequately” is not to be determined by reference to any fixed or absolute standard but having regard to the matters referred to in s 75(2) and more specifically the paragraphs of that sub-section identified above.
Nor is that question to be determined upon a “subsistence” level, as earlier cases under State maintenance legislation suggested. In Nutting and Nutting (1978) FLC 90-410 at 77, 094 Lindenmayer J said:-
“By sec. 72 of the Act, the Respondent is liable to maintain the Applicant only to the extent that she is incapable of supporting herself adequately, and again ‘adequately’ imports a standard of living which is reasonable in the circumstances, including the circumstances that the parties are no longer husband and wife and that the assets and resources which were formerly available to them both in common have now been divided between them.” (emphasis added)
[179] Ibid 15.
In the Marriage of Bevan & Bevan (1995) FLC 92-60, the Full Court confirmed that an award of spousal maintenance, should not be at a subsistence level but should pay proper regard to the factors in s 75(2).[180] Nor does a party seeking a maintenance order need to deplete their resources before satisfying the threshold question. The Full Court in In the Marriage of Bevan & Bevan succinctly summarised the law regarding an award of spousal maintenance as:
1. a threshold finding under s72;
2. consideration of s74 and s75(2);
3.no fettering principles that pre-separation standard of living must automatically be awarded where the respondent’s means permit; and
4.discretion exercised in accordance with the provisions of s 74 with “reasonableness in the circumstances” as the guiding principle.[181]
[180] In the Marriage of Bevan and Bevan (1995) FLC 92 – 600. (Nicolson CJ, Lindenmayer & McGovern JJ).
[181] Ibid 7.
A Court exercising jurisdiction under s 74 of the Act, ‘shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance, or benefit’.[182] This was interpreted by the Full Court in Elder v Elder [2009] FamCAFC 224 [50] to mean that the entitlement or receipt of a pension cannot be taken into account in determining whether the party to receive a maintenance is unable to support themselves. The Jobseeker and Family Tax Benefit payments received by the Respondent in this case cannot be considered when making an assessment as to whether he is able to support himself.
[182] FLA (n113) s 75(3).
Is the Respondent unable to support himself adequately?
The Respondent is self-employed, trading under the name of BB Business. According to his Financial Statement, he has an estimated weekly income of $650 from this business. With government benefits and child support he earns $1340 per week. I have found, however, that his income earning capacity is at least approximately $2,100 per fortnight or $1,050 per week, not including child support or benefits.[183] It could be higher if he worked fulltime each week, which is possible given X’s age and new living arrangements. I note that his child support and government benefits are likely to reduce, if not end, now that the parties' share X’s care. The Respondent will receive a cash payment of approximately $82,350.60 if the property sells for $350,000. He will also retain other valuable assets. He will of course have a significant mortgage if he retains the property, but then he will also retain the ability to reduce his taxable income, using the same tax deductions he currently utilizes.
[183] Paragraph 140 - 141 of these Reasons.

The Respondent pays $183 weekly in mortgage repayments and an average of $12 weekly on rates.[184] He has a life insurance policy with DD Insurance which he pays $35 weekly towards and an EE Insurance policy which costs him $152 a week. He pays towards motor vehicle registrations[185] and is under a loan repayment scheme with V Finance for Motor Vehicle 1.[186] His stated average weekly expenses for himself are $743[187] or $1073 if one includes expenses related to X. His total of all expenses is $1,685.00. His income, even if he maintains a level of child support, does not meet the full extent of his expenses. Whether his expenses are accurate was not explored at trial. Some of those stated expenses relate to the agricultural business operation (EE Insurance $152 pw and feed and adjustment ($173 pw), which will not remain as expenses if the property is sold. Further, the expenses for X should now reduce given the equal time arrangement. Given the above, it appears to be likely that the Respondent’s income is just capable of meeting his expenses. He may have a small shortfall but I am not convinced that the shortfall cannot be met by the Respondent working fulltime each week, which is possible given X’s age and living arrangements. Although his financial position is tight I am not satisfied that he meets the threshold set out in s 72 of the Act — that the Respondent is unable to adequately support himself from his income and resources.
[184] Respondent’s financial statement (n85).
[185] $42 weekly.
[186] $188 weekly.
[187] With expenses included for X, he provides the figure of $1,073.
Is the Applicant reasonably able to pay maintenance?
Even if the Respondent did meet the threshold, by virtue of my findings at paragraphs 146, 147 and 150 of these Reasons, I am not satisfied, that the Applicant has the capacity to make a payment of maintenance to the Respondent. The Applicant’s income is exhausted by her expenses, particularly given her legal costs.[188] I accept her evidence that the financial burden of the ongoing legal costs associated with settling this matter has had a ‘significant impact on my ability to meet expense’.[189]
[188] Applicants costs notice dated 31 October 2022 evidenced that she had incurred costs of $23, 437.20 with a total estimated costs to the commencement of the first day of the Court hearing to be $54, 237. The Respondent’s cost notice dated 23 May 2022 evidenced costs owing of $6, 676.35 and future costs to the trial of $10, 500.00.
[189] Applicant’s trial affidavit (n8) [50].
Having regard to the matters mentioned and my findings generally in relation to s 75(2) factors, I will dismiss the Respondent’s application for spousal maintenance.

I certify that the preceding one hundred and ninety-six (196) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull.
Associate:
Dated: 25 May 2023

File number:	LNC 590 of 2021
Judgment of:	JUDGE TURNBULL
Date of judgment:	25 May 2023
Catchwords:	FAMILY LAW – CHILDREN – whether in best interests of child to order equal time arrangement; assessment of child’s views; whether parties' communicate effectively enough to make equal time practicable. FAMILY LAW - PROPERTY –whether non-superannuation and superannuation assets considered in separate pools; the impact of sale of home upon Respondent’s income; whether the Applicant should receive all the superannuation assets so that the Respondent can retain the home; whether the parties' contributions should be assessed as equal; care of non-biological children; assessment of Respondent’s income earning capacity. FAMILY LAW - SPOUSAL MAINTENANCE — whether Husband establishes a need for spousal maintenance; whether the Wife has the capacity to pay.
Legislation:	Family Law Act 1975 (Cth) Part VII, ss 4AB, s 60CA, 60B, 61DA, 61DAB, 65D, 60CC, 65DAC, 65DAA, 79, 75,72, 74.
Cases cited:	Bant & Clayton [2019] FamCAFC 198 Beck & Beck (No 2) (1983) FLC 91-318 78 Bondelmonte & Bondelmonte (2017) 259 CLR 662 Briginshaw v Briginshaw (1938) 60 CLR 336 Clauson & Clauson (1995) FLC 92-595 Coghlan & Coghlan [2005] FamCA 429 Dovgan & Dovgan [2021] FamCA 306 Elder v Elder [2009] FamCAFC 224; Farnham & Farnham [2021] FedCFamC2F 83 Godfrey & Sanders [2007] FamCA 102 Goode & Goode [2006] FamCA 1346 Habib and Habib [1988] FamCA 40 Hickey & Hickey [2003] FamCA 395 In the Marriage of Bevan & Bevan (1995) FLC 92-60 In the Marriage of Mitchell and Mitchell (1995) FLC 92-601 Isles & Nelissen [2022] FedCFamC1A 97 Jabour & Jabour [2019] FamCAFC 78 Jacobson & Jacobson (1989) FLC 92-003 Lotta & Lotta [2017] FamCA 50 Mallet & Mallet (1984) 156 CLR 605 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 M v M (1998) 166 CLR 69 MRR & GR (2010) 240 CLR 461 Myerthall & Myerthall [1977] FamCA 59 Nutting and Nutting (1978) FLC 90 – 420 Stanford & Stanford (2012) 247 CLR 108 Teal & Teal [2010] FamCAFC 120 Wilson and Wilson (1989/90) FLC 92-003 Withers & Russell [2016] FamCA 793
Division:	Division 2 Family Law
Number of paragraphs:	196
Date of last submission/s:	24 February 2023
Date of hearing:	31 October – 2 November 2022 & 23 February – 24 February 2023
Place:	Launceston
Counsel for the Applicant:	Mr Williams
Solicitor for the Applicant:	Glynn Williams Legal
Counsel for the Respondent:	Mr Maguire
Solicitor for the Respondent:	Bishops Barristers & Solicitors
Counsel for the Independent Children's Lawyer:	Mr Verney
Solicitor for the Independent Children's Lawyer:	Matthew Verney Barrister

LNC 590 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS RADCLIFFE Applicant
AND:	MR MARSTERS Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE TURNBULL
DATE OF ORDER:	19 May 2023

ASSETS
Ownership	Description	Applicants Value	Respondent’s Value
Joint	D Street Town E, Tasmania	$350, 000	$350, 000
Respondent	Plant and Equipment	$152, 630	$152, 630
Applicant	Motor Vehicle 2	$23, 950	$23, 950
Applicant	R Bank Shares	$6, 223	$6, 223
Applicant	S Insurance	$10, 949	$10, 949
Respondent	NAB Account Number …19	$60	$60
Applicant	Combined Bank Accounts	$3, 493	$3, 493
Respondent	Combined Bank Accounts	$804	$804
Applicant	Furniture & Effects	$3, 450	$3, 450
Applicant	Westpac Shares	$2,781	$2,781
TOTAL	$554, 340

LIABILITIES
Ownership	Description	Applicant’s Value	Respondent’s Value
Joint	NAB Mortgage	$127, 168	$127, 168
Respondent	T Financial Services	$2,000	$2,000
Respondent	HH Lawyers (post-separation – legal costs)	Nil	Nil
Respondent	Ms U (post-separation – legal costs)	Nil	Nil
TOTAL	$129,168

Superannuation
Applicant	Superannuation Fund 1 Super Account …	Accumulation Interest	$153, 781.10 (as at 30 June 2022)	$153, 781.10 (as at 30 June 2022)
Applicant	Superannuation Fund 2	Accumulation Interest	$36, 888.83 (as at 30 June 2022)	$36, 888.83 (as at 30 June 2022)
Respondent	Superannuation Fund 3	Accumulation Interest	$47, 812.21 (as at 30 June 2021)	$47, 812.21 (as at 30 June 2021)
TOTAL	$238, 482.14

Financial Resources
Ownership	Description	Applicant’s value	Respondent’s value
Applicant	Long Service Leave Entitlements (employer)	E$28, 493	E$28, 493 (gross)
TOTAL	E$28, 493