Rahal & Rahal (No 5)
[2025] FedCFamC1F 141
•6 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rahal & Rahal (No 5) [2025] FedCFamC1F 141
File number(s): SYC 7908 of 2020 Judgment of: ALTOBELLI J Date of judgment: 6 March 2025 Catchwords: FAMILY LAW – PARENTING – Where the Court is asked to make orders in respect of decision making authority in respect of major long term decisions, spend time with arrangements, drug testing regimes and other incidental parenting orders – Where the Court allocated sole decision making authority in respect of major long term decisions to the mother – Where the father receives significant weekday, weekend and holiday time with the children – Where detailed consideration is provided regarding the special occasion time the children are to spend with each parent – Where the Court orders the imposition of a drug testing regime and related restraints.
FAMILY LAW – PROPERTY – Where the Court is asked to make final property adjustment orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) – Where the Court assesses the parents contributions across the duration of the marriage as 60/40 in favour of the father – Where a 20% adjustment is made in favour of the mother pursuant to s 75(2) of the Act – Where the total property adjustment favours the mother 60/40.
FAMILY LAW – PROPERTY – Where the Court is asked to make orders for interim property distribution – Where the mother seeks $250,000 – Where the father does not oppose the mother’s request – Where the father seeks $250,000 – Where the mother opposes the father’s request on the basis that her final property proposal invites the Court to allocate all of the matrimonial cash to her – Where the Court determines that the principle of reversibility applies – Where the mother receives $250,000 by way of interim property distribution – Where the father’s application fails.
FAMILY LAW – EVIDENCE – Where the Court considers if a transcript from an Independent Commission Against Corruption Commission hearing should be admitted into evidence – Where submissions were made that the transcript would offend the rules against hearsay – Where submissions were made that there was a non-hearsay purpose – Where the Court ruled that that the material was inadmissible hearsay evidence – Where the Court ruled that the non-hearsay purpose was not relevant pursuant to s 55 of the Evidence Act 1995 (Cth).
FAMILY LAW – PROCEEDURE – Where the Court determines whether leave should be granted for the mother to give her evidence via electronic communications – Where submissions were made that electronic cross-examination would result in an unfair procedural burden on the father – Where submissions were made that in person cross-examination might trigger the mental afflictions of the mother – Where the Court accepts the application to appear via electronic communication on the basis that any procedural delay is outweighed by the potential substantive disadvantage to the mother of giving evidence in front of her alleged perpetrator.
Legislation: Evidence Act 1995 (Cth) ss 50, 55, 63, 64, 67, 82, 129, 140, 157, 178
Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 601D, 601DA, 61DAA, 61DAB, 68B, 75, 79 90MT
Family Law Amendment Act 2024 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.01, 15.15, 15.16
Cases cited: Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232
Addenbrooke Pty Ltd v Duncan (No 5) [2014] FCA 625
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Baghti & Baghti and Ors [2015] FamCAFC 71
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Black and Kellner (1992) FLC 92-287; [1992] FamCA 2
Boulton & Boulton (2024) FLC 94-202; [2024] FedCFamC1A 132
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Carter & Wilson (2023) FLC 94-129; [2023] FedCFamC1A 9
Cvetkovic v The Queen [2010] NSWCCA 329
Edinger & Duy (2023) 68 Fam LR 55; [2023] FedCFamC1A 194
F v M [2021] EWFC 4
Guo v Gao [2022] NSWSC 1379
Harris & Harris (1993) FLC 92-378; [1993] FamCA 49
Hartley & Hartley [2021] FedCFamC1F 178
Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Illgen & Yike [2018] FamCA 17
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Leventis & Leventis (2024) FLC 94-204; [2024] FedCFamC1A 141
Macarthur & Macarthur (No 4) [2023] FedCFamC1F 852
Pickford & Pickford [2024] FedCFamC1A 249
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Ramzi & Moussa [2022] FedCFamC2F 1473
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Strahan &Strahan (2011) FLC 93-466; [2009] FamCAFC 166
Wallaby Grip Ltd v QBE Insurance (Australia) Ltd (2010) 240 CLR 444; [2010] HCA 9
Wei & Xia (2024) FLC 94-186; [2024] FedCFamC1A 65
Weir& Weir (1993) FLC 92-338; [1992] FamCA 69
Division: Division 1 First Instance Number of paragraphs: 295 Date of hearing: 25 November–3 December 2024 Place: Sydney Counsel for the Applicant: Mr Cummings SC Solicitor for the Applicant: Barkus Doolan Winning Counsel for the Respondent: Mr Dickson KC Counsel for the Respondent: Mr Springthorpe Solicitor for the Respondent: Broun Abrahams Burreket Counsel for the Independent Children's Lawyer: Mr Scarlett Solicitor for the Independent Children's Lawyer: Christina Lam & Associates ORDERS
SYC 7908 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS RAHAL
Applicant
AND: MR RAHAL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
6 MARCH 2025
THE COURT ORDERS THAT:
PARENTING
Live with
1.X, born 2011 and Y, born 2012 (“the children”), live with the Applicant mother (“the mother”).
Parental responsibility
2.The Applicant mother shall have parental responsibility for the children and sole decision-making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) (“the Act”) affecting the children.
3.The mother shall solely make decisions in relation to all major long-term decisions in relation to the children and notify the Respondent father (“the father”) in writing within 14 days prior to any decision, and within 7 days thereafter the father is to provide to the mother one response in writing his views and upon receiving the father’s views the mother is to consider the same in before making any decision.
School term time
4.The children spend time with the father as agreed in writing between the parents, and failing agreement with the father as follows:
(a)In each two-week cycle:
(i)In Week 1 from cessation of school or 3:00 pm Friday until commencement of school or 9:00 am Monday extending to 9:00 am Tuesday if Monday is a public holiday; and,
(ii)In Week 2 from cession of school or 3:00pm Wednesday until commencement of school or 9:00 am Friday.
School holiday time
5.For one half of all school holidays as agreed in writing between the parties and failing agreement:
(a)In odd years, for the first half of the school holiday periods; and,
(b)In even years, for the second half of the school holiday periods unless otherwise agreed in writing.
Special occasion time
6.Notwithstanding any other Order to the contrary, unless agreed between the parties in writing, the children will spend time with the parties:
(a)On Christmas:
(i)In even years:
A.With the mother from 10:00 am on Christmas Eve to 10:00 am on Christmas Day; and,
B.With the father from 10:00 am on Christmas Day to 10:00 am on Boxing Day.
(ii)In odd years:
A.With the mother from 10am on Christmas Day to 10:00 am on Boxing Day; and,
B.With the father from 10am on Christmas Eve to 10:00 am on Christmas Day.
(b)On New Years Eve:
(i)On even years, with the mother from 10:00 am on New Years Eve to 10:00 am on 2 January; and,
(ii)In odd years, with the father from 10:00 am on New Years Eve to 10:00 am on 2 January
(c)On Orthodox Easter:
(i)With the father, from 5:00 pm on Orthodox Good Friday to 10:00 am on Orthodox Easter Sunday in odd numbered years; and
(ii)With the mother, from 5:00 pm on Orthodox Good Friday to 10:00 am on Orthodox Easter Sunday in odd numbered years.
(d)On Easter:
(i)In even years:
A.With the mother from 10.00 am on Good Friday until 10.00 am on Easter Sunday; and,
B.With the father from 10.00 am on Easter Sunday until 10.00 am on Easter Monday.
(ii)In odd years:
A.With the father from 10.00 am on Good Friday until 10.00 am on Easter Sunday; and
B.With the mother from 10.00 am on Easter Sunday until 10.00 am on Easter Monday.
(e)In the event that the time allocated for each parent across Orthodox Easter and Easter overlap:
(i)During the School holidays:
A.The party with carer of the children in the half of the holidays on which Easter falls retains care of the children.
(ii)During the school term:
A.The party with the usual care of the children for the days in which Easter falls retains care of the children.
(f)Mother’s Day:
(i)If the children are not otherwise in the mother’s care, the children will spend time with the mother from 10.00 am until before school the following day.
(g)Father’s Day:
(i)If the children are not otherwise in the father’s care, the children will spend time with the father from 10.00 am until before school the following day.
(h)The mother’s birthday:
(i)If the children are not otherwise in the mother’s care, the children will spend time with the mother from 3:00 pm until 8:00 pm should the birthday fall on a school day; and,
(ii)If the children are not otherwise in the mother’s care, the children will spend time with the mother from 9:00 am to 9:00 am the following day if it is a non-school day.
(i)The father’s birthday:
(i)If the children are not otherwise in the father’s care, the children will spend time with the father from 3:00 pm until 8:00 pm should the birthday fall on a school day; and,
(ii)If the children are not otherwise in the father’s care, the children will spend time with the father from 9:00 am to 9:00 am the following day if it is a non-school day.
(j)The children’s birthdays:
(i)On each of the children’s birthday, the children will spend time with the party that does not otherwise have the care of the children from 5.00 pm until before school (or 9.00 am if not a school day) the following day.
Changeover location
7.For the purposes of the changeover, if the parties do not exchange care of the children at the children’s school, it is to occur at QQ School.
Drug testing
8.From the date of these Orders for a period of 18 months, the father shall submit himself to hair follicle testing at RR Group (“the testing facility”) for the purposes of obtaining a drug and alcohol test using the Drug Detection Agency's standard 18-Panel Hair Drug Test.
9.The father shall submit to testing within 24 hours of any written request made by the mother, or the mother’s solicitors on her behalf, with the mother being permitted to make no more than one request per three calendar months.
10.The father shall instruct the testing facility to provide the testing results directly to himself and the mother.
11.The father shall forthwith provide to the mother, within 24 hours of receipt, any reports he receives from the testing facility.
12.The father is to irrevocably authorise the mother to request (if necessary) all supporting documents from the testing facility.
13.The father be restrained from dying, treating, cutting his hair at a length shorter than 4cm, or taking any other action to render his hair untestable pursuant to Order 7.
14.Upon attendance at the laboratory for testing pursuant to these Orders, the father is to:
(a)Provide a copy of these Orders to the laboratory;
(b)Provide his current Australian Driver's License with photo identification confirming his identity;
(c)Obtain a receipt from the laboratory confirming sighting of his current Australian Driver's License with photo identification.
15.The father is to authorise and direct the laboratory to forward the results of such testing directly to the mother.
(a)These orders constitute an Order of the Court authorising the laboratory to forward such results as soon as reasonably practicable after they are issued.
16.In the event the father fails to undertake any testing pursuant to Orders 7, or treats his hair in any way so as to interfere with the veracity of any testing at the time, or such test result shows the presence of illicit, illegal or non-prescribed drugs taken without legitimate direction from a treating prescriber, then the children’s time with the father pursuant to these Orders, including any period of holiday or travel, will become supervised day time only on Saturday and Sunday from 9:00 am to 7:00 pm each alternate weekend until such time as the father returns two consecutive negative test results with the test to be in accordance with the orders, and with the father to meet the costs of the supervised service.
Communication
17.The parties shall use the Our Family Wizard Application, or such other parenting application as agreed, to communicate in respect of the children (except in the case of an emergency).
18.Neither party will restrict or prevent the other party from exercising reasonable telephone or FaceTime contact with X and Y when the children are in that party’s care.
19.The parties shall facilitate such telephone calls by making X and Y available to take the telephone calls and ensuring that they are able to speak privately and without interruption.
20.If there is a medical emergency involving the children, including but not limited to serious illness, accident or hospitalisation, the party with the care of the children must:
(a)Immediately contact the other party; and
(b)As soon as practicable, provide the other party all documentation and information in their possession regarding the incident.
21.The parties must keep the other informed about material changes to their physical health, including but not limited to serious illness or hospitalisation.
22.In the event that either party intends to introduce the children to a new partner, that party is to notify the other parent prior to the children being introduced to the new partner.
23.Each party will inform the other party of the date, and time and address of any appointment with any treating medical practitioners, medical specialists, dentists and therapists within 24 hours of an appointment being made for Y or X.
(a)Following any appointment that mother is to provide a written recount of the events within, and recommendations of the appointment to the father.
24.That each party will inform the other party of any sport or extra-curricular activity in which the children is to be enrolled and in the event that such sport or extra-curricular activity takes place during the time the children spends with the other parent, such enrolment or registration shall not be made without the consent of both parents.
25.Neither party shall denigrate the other party in the presence or the hearing of the children, or at all and to the extent that they are able, not permit any third party to do so.
Injunctions
26.The father be, and is hereby, restrained from consuming any alcohol and non-prescription drugs or prescription drugs (save in accordance with legitimate directions of a treating medical practitioner and obtained on a bona fide basis for medical purposes only) during all periods in which the children spend time with him and for a period of 24 hours prior to the children spending time with the father.
PROPERTY
27.Within fourteen (14) days from the date of these Orders:
(a)The parties do all acts and things and sign all documents necessary to cause $3,696,242.60 to be paid to the mother from the SS Lawyers Controlled Monies Accounts;
(b)The parties do all acts and things and sign all documents necessary to cause $524,332.40 to be paid to the father from the SS Lawyers Controlled Monies Accounts; and
(c)All interest accrued on the sum sitting within the SS Lawyers Controlled Monies Accounts to the date of these Orders shall be divided 60/40 and paid to the mother and father respectively.
28.Pursuant to s 90XS of the Act:
(a)In accordance with s 90XT(1)(a) of the Act, whenever a splittable payment becomes payable in respect of the interest of the father in Superannuation Fund 3 (“the Super Fund”):
(i)The mother will be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth), using an allocated base amount of $1,200,000 and
(ii)There is a corresponding reduction in the entitlement of the father to whom the splitable payment would have been made but for this order.
(b)That Order 28(a) has effect from the operative time.
(c)The operate time for Order 28 is the fourth business day from the date of service of this Order upon the trustee of the Super Fund.
(d)That Orders 28(a) and 28(b) binds the trustee of the Super Fund.
29.That within 28 days of the date of these Orders, the father and mother shall (both in their personal capacity and in their capacity as a director of any company), do all acts and things and sign all documents and attend all meetings and cast all votes as necessary or required to give effect to the following:
(a)The mother shall transfer all her units held in the TT Trust to the father;
(b)The mother shall resign as trustee of the TT Trust;
(c)The father shall do all acts and things and sign all documents necessary to procure from the UU Trust a release for the mother as a guarantor and from all liability arising from the loan agreement purportedly entered into by her as trustee for the TT Trust dated December 2013 in the form of release provided to the father by the mother; and
(d)The mother shall assign to the father any credit or debit loan account in the UU Trust and the father shall indemnify her in respect of any such liability for any loan account.
30.The parties shall pay all costs associated with the implementation of Order 29 herein in a 60/40 split as between the mother and the father.
31.The father shall indemnify and keep indemnified the mother in respect of any liability of any nature which she has or had at any time arising in respect of:
(a)Her role as trustee of the TT Trust or as a unit holder of the said Trust including but not limited to by reason of the mother having received a distribution of any funds from the TT Trust;
(b)All funds advanced or allocated to the mother at any time personally or in her role as the Trustee of the TT Trust by VV Pty Ltd as trustee for the UU Trust;
(c)All funds advanced or allocated to the mother at any time by any entity in which the father holds an interest directly or indirectly including but not limited to the father’s entities and any trust of which the father is a discretionary object; and
(d)Any taxation liabilities or penalties arising for the mother from any entity in which the father holds an interest in directly or indirectly including but not limited to the father’s entities and any trust of which the father is a discretionary object.
32.Unless otherwise provided for in these Orders, the mother be declared the sole owner of, and the father has no interest in:
(a)Bank accounts in the mother’s name;
(b)Superannuation entitlements in the mother’s sole name;
(c)Any furniture and contents in the possession of the mother;
(d)Any motor vehicle in the mother’s name; and
(e)All other property and financial resources in the possession or control or in the name of the mother as at the date of the making of these Orders and in the future.
33.Unless otherwise provided for in these Orders, the father be declared the sole owner of and the mother has no interest in:
(a)Bank accounts in the father’s name;
(b)Superannuation entitlements in the father’s sole name;
(c)Shareholdings in private companies;
(d)Any motor vehicle and boat in the father’s name;
(e)The father’s entities; and
(f)All other property and financial resources in the possession or control or in the name of the father as at the date of the making of these Orders and in the future.
34.The father shall indemnify and keep indemnified the mother in respect of any liability of any nature arising in respect of the father’s entities.
35.Each party shall be responsible for any liabilities, loans and debts of whatsoever nature and kind in that party's name, and they shall keep the other party indemnified in relation to those liabilities, loans and debts.
36.Each party shall pay 50% of the Independent Children’s Lawyer’s costs for these proceedings.
RELISTING
37.Leave is hereby granted to the parties to apply to relist the proceedings on 14 days’ notice to deal with the interpretation, implementation and/or enforcement of the property orders, provided that in the event that such liberty is exercised the party seeking to relist the proceedings shall:
(a)Forthwith notify all other parties of the intention to make the request and the reason for same;
(b)Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and
(c)Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders.
APPLICATION FOR COSTS
38.Should either party seek costs from these proceedings, they must file and serve an application and any affidavit material in support in the usual form.
39.Within 14 days of the filing of such application, directions will be made in chambers instructing the parties to file and serve written submissions together with any further material in support.
40.Thereafter, judgment shall be reserved, and the matter determined on the papers.
THE COURT NOTES THAT:
A.The “father’s entities” means the following entities and any entities associated with the father in any manner:
a.D Pty Ltd ;
b.S Group Pty Ltd ;
c.Q Group Pty Ltd ;
d.WW Pty Ltd;
e.U Pty Ltd ;
f.T Pty Ltd ;
g.K Pty Ltd ;
h.XX Pty Ltd;
i.YY Pty Ltd;
j.M Pty Ltd ;
k.ZZ1 Pty Ltd;
l.ZZ2 Pty Ltd;
m.AB Pty Ltd;
n.P Pty Ltd;
o.AC Pty Ltd; and
p.L Pty Ltd .
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rahal & Rahal (No 5) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders the Court has made in a dispute between two parents about the parenting of their children and about the division of their property.
BACKGROUND
The mother is the applicant in this matter (“the mother”) and the father is the respondent (“the father”) (collectively “the parents”). The mother is 47 years old and cares for the children full time. The father is a 49-year-old businessman. The parents married in early 2009 and commenced cohabitation on the same date. The mother contends that the parents separated on a final basis in February 2020. The father contends that the parties were separated under the same roof from 18 April 2020 until 25 September 2020. Nothing turns on this difference. The parents were divorced in early 2022. There are two children to the marriage, X who is 14 years old and Y who is 12 years old (collectively “the children”).
Procedural history
The matter commenced on 15 December 2020 before Henderson J on an urgent interim basis. Her Honour made orders for the children to live with the mother and to spend supervised time with the father each Thursday from 10:00 am to 6:00 pm and each alternate Saturday and Sunday from 10:00 am to 6:00 pm. Justice Henderson further restrained the father from consuming any alcohol, prescription or non-prescription drugs on a without prejudice and without admissions basis. The father consented to completing a random supervised urine analysis test, to servicing all ongoing mortgage payments, taxes, rates and outgoings related to the property situated at D Street, Suburb E (“the former matrimonial home”) and to continue coverage of the family health insurance. Such payments were characterised by her Honour as urgent spousal maintenance.
On 29 January 2021, Henderson J made further orders providing for the children to spend time with the father on a gradually increasing regime culminating in time spent from the cessation of school on Friday to the commencement of school on Monday on the first alternate week, and from the cessation of school on Wednesday to the commencement of school on Thursday during the second alternate week. The paternal grandmother was required to be present in the family home when the children were spending overnight time with the father. The father remained subject to drug testing at varying scheduled intervals, and was restrained from consuming any alcohol, prescription, or non-prescription drugs twelve hours prior to the children coming into his care. Additionally, the father was directed to pay the mother the sum of $100,000 to be characterised at a later date.
A divorce order was made in early 2022.
Orders were made on 9 March 2022 by Judicial Registrar Weaver, by consent, for the father to pay the mother the sum of $240,000 by way of partial property settlement.
On 14 March 2022, the matter was listed for an interim hearing before Senior Judicial Registrar Tran, at the request of the mother, in circumstances where the father returned a positive result for an illicit substance.
On 8 April 2022, and seemingly as a result of the father testing positive for an illicit substance, Senior Judicial Registrar Tran suspended the father’s time with the children. The father was instead permitted to call the children for half an hour daily between 6:00 pm and 7:00 pm, and was allowed to communicate via text message, email or other electronic written communication provided that the mother had unfettered access to such messages. Further, by consent, it was ordered that the father transfer Motor Vehicle 1 into the mother’s personal name, and for him to continue to meet all related insurance fees for the vehicle.
On 30 June 2022, Senior Judicial Registrar Tran made further orders revising the time the father was to spend with the children. For an initial period of three months, the father was to spend professionally supervised time with the children from 9:00 am to 12:00 noon each Sunday, and from after school to 7:00 pm each Wednesday. Thereafter the father’s time with the children was to be supervised by the paternal grandmother from 9:00 am to 5:00 pm each alternate Sunday, from afterschool to 7:00 pm each Wednesday, during varied special occasion times, and school holiday times. The father was required to continue psychological therapy.
The current interim parenting orders were made by Austin J on 9 August 2022. The children currently see the father on alternate Wednesdays after school until 7:00 pm, and on each alternate weekend from 9:00 am on Saturday until the commencement of school on Monday morning (or Tuesday morning in circumstances of a public holiday). The father is permitted to spend time with the children during the Spring, Autumn and Winter school holidays for five continuous days commencing at 12:00 noon on the first Saturday of the holidays. During the Summer holidays the father is permitted to spend time with the children during two separate five continuous day intervals: the first commencing at 9:00 am on 26 December and the second commencing at 9:00 am on 14 January. The father’s time with the children remains contingent upon his attendance for hair follicle testing not more than once per month and returning a clean result for the same.
On 31 May 2023, Senior Judicial Registrar McNamara made orders for the sale of the former matrimonial home. Upon the discharge of the mortgage, it was ordered that the mother receive $400,000 by way of an interim property settlement. The balance of the money was to be directed into a controlled monies account held by SS Lawyers (“the controlled monies account”).
On 4 August 2023, McGuire J discharged the 31 May 2023 orders and instead directed that the father sign all necessary documents to advance an insurance claim in respect to water and mould damage in the former matrimonial home.
Subsequently, on 15 November 2023, Henderson J made orders, by consent, for the Father to pay the mother $51,665.94 representing the insurance claim monies received by him. The mother was directed to use the received money to carry out any repairs required in the former matrimonial home.
On 3 December 2024, being the last day of the final hearing, an oral application was heard by the Court leading to the mother receiving $250,000 from the net martial asset pool. Such funds were characterised as further interim property settlement. The reasons for granting the mother’s oral application are provided herein.
The evidence before the Court
In support of her case, the mother relied upon the following material:
(a)Case Outline filed 15 November 2024;
(b)Second Further Amended Initiating Application filed 9 September 2024;
(c)Minute of Order dated 3 December 2024;
(d)Her affidavit filed 10 September 2024;
(e)Her affidavit filed 14 October 2024;
(f)Affidavit of Mr AD filed 9 September 2024;
(g)Affidavit of Dr AE filed 9 September 2024;
(h)Affidavit of Dr AE filed 22 November 2024;
(i)Financial Statement filed 9 September 2024; and
(j)Various documents tendered during the proceedings and marked as Exhibits A1-A72.
In support of his case, the father relied upon the following material:
(a)Case Outline Document filed 15 November 2024;
(b)Second Further Amended Response to Initiating Application filed 10 October 2024;
(c)His affidavit filed 10 September 2024;
(d)His affidavit filed 14 October 2024;
(e)Financial Statement filed 10 October 2024;
(f)Affidavit of Ms H dated 9 June 2023;
(g)Affidavit of Ms H dated 26 November 2024; and
(h)Various documents tendered during the proceedings and marked as Exhibits R1-R63.
In support of her case, the Independent Children’s Lawyer relied upon the following material:
(a)Case Outline Document filed 24 December 2024;
(b)Single Joint Expert Report of Dr F dated 16 February 2023 (“Exhibit ICL1”);
(c)Updated Single Joint Expert Report of Dr F dated 25 November 2024 (“Exhibit ICL2”);
(d)Proposed Minute of Order dated 2 December 2024; and
(e)Written Submissions dated 2 December 2024.
Those required for cross-examination included the mother, the father, Dr AE, Mr AD and Ms H. A significant number of documents were not read in this case, and a significant number of witnesses were not called. Most significantly, Dr F (“the Single Joint Expert”) was not required to appear before the Court.
RULINGS DURING THE HEARING
Request to Attend by Electronic Communication filed 20 November 2024
Three days prior to the commencement of the final hearing the mother filed a Request to Attend by Electronic Communication (“the request”). The father opposed the request. The Court heard submissions on the issue at the outset of the final hearing.
Rule 15.16 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) governs attendance by electronic communication. The request was sought on the following grounds:
1. The mother asserts a history of family violence in her relationship with the father which continues to have a significant impact on her.
2. The mother’s psychiatrist, [Dr AE] has diagnosed the mother with post-traumatic stress disorder (‘PTSD’), with anxiety symptoms, influenced by her history of emotional and psychological abuse during her marriage and the ongoing legal conflicts with the father.
3. Dr AE reports the mother’s symptoms include, but are not limited to:
(a) Anxiety symptoms;
(b) Sleep disturbances;
(c) Hypervigilance;
(d) Somatic symptoms including headaches, and muscle tension;
(e) Intrusive thoughts and memories;
(f) Avoidance behaviour; and
(g) Sweating, trembling and gastrointestinal distress.
4. Given the difficulties faced by the mother because of her PTSD, it is sought that the mother’s appearance at the final hearing including her cross examination occur remotely, via Microsoft Teams.
Submissions
The mother relied on the Affidavit of Dr AE filed 9 September 2024 (“Dr AE's Report”) and 22 November 2024 (Dr AE's Updated Report”) (“Dr AE’s evidence”), to support the request. The mother’s senior counsel submitted that Dr AE’s evidence contained strongly expressed medical opinions in favour of the mother’s remote attendance, and that such opinion was uncontroverted at the outset of the hearing. The mother’s senior counsel stated that the medical evidence alone “carried the day” in respect of the request, and that there was no real harm that may arise from granting the request.
The father opposed the request on several grounds. The father’s kings counsel took objection with the fact that the request was received “at the very last minute”, that the matter had not been canvassed in Dr AE’s report, that the parties had been physically proximal to one another during previous mediation events, interim Court hearings and during weekly changeovers, and that the process of putting documents before the mother would be made cumbersome should cross-examination happen remotely. Ultimately, the father’s kings counsel submitted that the trial must be run in a procedurally fair manner and that, although the trial may be difficult for the parents, it does not mean that “it should not be done in a robust or dignified way”.
The Independent Children’s Lawyer supported the mother’s request. Counsel for the Independent Children's Lawyer reasoned that, following the Covid-19 pandemic, it was common for witnesses to be cross-examined “on the screen”. Further, it was submitted that due to the likely length of the mother’s cross-examination and the continued presence of the father in the same room any trauma related symptoms may be exacerbated.
Reasoning
It is clear, pursuant to r 15.16(3)(b) of the Rules that the request was made out of time. Nonetheless, the Court has a clear discretion to determine the request regardless.
The Court had primary regard to r 15.15(6)(b) and r 15.15(6)(e)–(f) of the Rules in granting the request. The mother made a positive assertion that she was diagnosed with PTSD. She provided Dr AE's Updated Report to substantiate the diagnosis and to identify the potential impact of her condition on her attendance. Dr AE’s evidence was uncontroverted. It would be impractical to test this evidence separately from the substantive evidence of the parties. On a preliminary view alone, the potential fear, stress and prejudice to the mother of giving evidence in the same room as the person she alleges perpetrated violence against her outweighed, in the Court’s opinion, any issues of procedural unfairness to the father.
The father’s objection seemed to be one based on procedural and substantive fairness. His kings counsel asserted that the test to be applied should not be what was in the mother’s best interests, but rather “delivering justice to both parties”. It was also put to the Court that there might be disadvantage accrued by assessing the evidence of the mother on a screen and the father in person, and inequity in the method and speed by which relevant documents may be examined during cross-examination.
This Court agrees with the statement of Christie J in Macarthur & Macarthur (No 4) [2023] FedCFamC1F 852:
11 I take into account that the respondent objects to the request and I understand that he thinks he will be prejudiced. One of the things that the COVID era did make clear to courts was that while electronic communication creates considerable logistic difficulties in terms of tendering and showing documents to witnesses, it does not, in the experience of the court, impact on the capacity to assess whether somebody is telling the truth, to assess their veracity or to allow for cross-examination in the ordinary course. Electronic communication provides an opportunity in the same way as face-to-face cross-examination to test the evidence and so while I accept that the respondent feels that he may be prejudiced I think that might be more illusory than real.
On the balance of this case, any logistical inconvenience caused to the father’s legal representatives and the Court is outweighed by the potential psychiatric disability of the mother and the impact of such concerns on her ability to give evidence. The Court granted the request.
Independent Commission Against Corruption (“ICAC”) transcript evidence
The mother sought to adduce into evidence a copy of an ICAC transcript in which the nature of the ownership of a property located at 1 AF Street, Suburb AG, NSW was discussed. The father objected to the Court having regard to the content of the ICAC transcript. Lengthy oral submissions were made regarding this evidence.
The Court upheld the father’s objections regarding the receipt of the ICAC transcript evidence on the third day of the hearing. The following reasons are provided.
Submissions
The father’s junior counsel objected to the inclusion of the ICAC transcript on the basis that it was hearsay evidence and prima facie inadmissible unless one of the exceptions under the Evidence Act 1995 (Cth) (“Evidence Act”) applied. The Court was directed to the decision of Addenbrooke Pty Ltd v Duncan (No 5) [2014] FCA 625 in which ICAC transcript evidence was deemed inadmissible as it was a previous representation of the person who typed the document.
Sections 63 and 64 of the Evidence Act were conceded as plausible exceptions to the operation of the hearsay rule in this case. The father’s junior counsel highlighted that the mother had not sought to call the ICAC transcriptionist to give evidence, nor had she provided the requisite notice to the father’s legal representatives required under s 67 of the Evidence Act.
In reply, senior counsel for the mother suggested that s 157 of the Evidence Act “cured” the issue regarding the firsthand hearsay of the transcriptionist, that the ICAC transcript was admissible as an admission from a third party acting as a director of a related company, and that there may be a non-hearsay related purpose for which the transcript is relevant.
Discussion
It was uncontentious that the ICAC transcript was relevant for its hearsay purpose (s 55 Evidence Act). Neither s 64 nor s 65 of the Evidence Act was enlivened. No notice was provided under s 67 of the Evidence Act by the mother’s legal representatives, notwithstanding that this is not inherently fatal to their case (s 67(4) Evidence Act).
The suggestion by the mother’s senior counsel that s 157 of the Evidence Act cures the hearsay deficiencies with the ICAC evidence is incorrect. In Cvetkovic v The Queen [2010] NSWCCA 329 at [315] Campbell JA stated that the provision “is concerned with facilitation of proof of facts that are otherwise relevant and admissible” (see also Guo v Gao [2022] NSWSC 1379 at [8]). Section 157 of the Evidence Act does not remedy fundamental issues surrounding the admissibility of certain types of evidence. Section 178 and s 129(3) of the Evidence Act are designed to deal with those core issues. Section 157 is merely facilitative.
The submission that the ICAC transcript comprises an admission by a related director on behalf of a company is tenuous. The Court does not accept this submission without more. Even if the ICAC transcript was to be adduced on an admissions basis, the document would remain firsthand hearsay excluded by the operation of s 82 of the Evidence Act.
The ICAC transcript would be relevant for the non-hearsay purpose envisioned by the mother’s senior counsel. Such a purpose is, however, preconditioned on the belief that the father’s senior counsel would run his case in a certain manner. On the evidence before this Court, and the agreed substantive issues to be resolved, such a line of questioning would be otiose. The Court struggles to see how the mother’s reasons for issuing subpoena would amount to “a fact in issue in the proceeding” (s 55 Evidence Act). Therefore, the non-hearsay purpose espoused by the mother’s counsel is not relevant for the current proceeding and the ICAC transcript is not admissible for that purpose. The non-hearsay purpose alluded to by the mother’s senior counsel may be relevant to an application for costs, but it is not relevant to the substantive hearing currently before the Court.
In any event, any weight that could be given to the transcript would be minimal in the circumstances.
Partial property distribution
On the final day of the hearing, the mother made an oral application for partial property distribution in the quantum of $250,000. The father did not object to the distribution on the basis that he receive an equal partial property distribution for himself. The mother opposed the father receiving any partial property distribution on the basis that the distribution would prejudice her extant property adjustment application pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) (“the mother’s s 79 application).
Submissions
As part of the mother’s final orders, she sought the entirety of the liquid cash holdings in the net matrimonial asset pool. This comprised mostly of the funds situated within the controlled monies account. The mother submitted that there was no guarantee that the father would receive $250,000 in liquid cash on final adjustment, should the mother’s s 79 application be accepted. On this basis, ordering a mirroring partial property distribution for the father was contended to offend the “clawback” or reversibility principles (see Harris & Harris (1993) FLC 92-378 (“Harris & Harris”) and Strahan &Strahan (2011) FLC 93-466 (“Strahan & Strahan”).
The father’s legal representatives asserted that the Court should take a more realistic view of the matter and consider if the orders sought in the mothers s 79 application were realistic, “Your Honour must have a fair feel of whether every single argument is going to go the [mother’s] way”. On the evidence adduced, the father’s kings counsel contended that providing a mirroring partial property disbursement to the father would, in no real manner, disadvantage or prejudice the mother’s s 79 application.
Decision
It was uncontentious that the mother’s application for partial property distribution be granted and that such funds be paid from the controlled monies account.
The father’s partial property distribution application was unsuccessful. As at the conclusion of the hearing any analysis of the evidence was necessarily imprecise. The Court adopted a conservative approach in assessing the legitimate expectations of both parties. The reversibility issues loomed large in the Court’s mind. The mother’s desire was to retain the entirety of the cash in the net matrimonial asset pool. The father’s case was not strong in light of this. The Court declined to order that the father receive $250,000 by way of partial property distribution.
A party is not required to demonstrate compelling circumstances pursuant to Strahan & Strahan to be eligible to receive partial property distribution. In effect, the only explanation given to the Court to indicate what the mother might do with the money was provided by her senior counsel; “to tide her over” (Transcript 3 December 2024, p.64 line 25). As a result of this limited information, the Court has chosen to effectuate the partial property distribution in the final balance sheet by reducing the cash total within the controlled monies account by $250,000 and mirroring this with a $250,000 addback in favour of the mother. This reflects the practical effect of the orders.
The Court is required to be necessarily imprecise and conservative when determining partial property distribution applications (Harris & Harris). As will be seen later in these reasons for judgment, it may have been open for the Court to award some partial property distribution to the father. Acknowledging that, such view could only be established in hindsight after detailed calculation and consideration of the parents’ evidence.
THE PARENTING PROCEEDINGS
The competing proposals
The mother
The mother’s Minute of Order dated 3 December 2024 (“the mother’s minute of order”) is Annexure one to these reasons for judgment.
The mother seeks an order that she be allocated sole parental responsibility and sole decision-making authority in respect of all major long-term issues affecting the children, as defined under s 4(1) of the Act. The mother largely seeks to maintain the status quo, contending that the children remain living with her, and continue to spend time with the father each alternate Wednesday from the conclusion of school until 7:00 pm, and on each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday morning (or Tuesday morning if it is a long weekend).
The mother seeks that during school holidays the father spend the first half with the children in odd numbered years and the second half during even numbered years. Changeover is sought to occur at the children’s school in first instance, and if not possible, at QQ School.
The mother also seeks that the children spend various special occasion time with either parent, that ancillary injunctions are made against the father pursuant to s 68B of the Act, and that the father continues to be subject to regular drug testing as laid out in the mother’s minute of order.
The father
Annexure B to the father’s Case Outline filed 15 November 2024 (“the father’s case outline”) contains the father’s Minute of Order (“the father’s minute of order”). The father’s minute of order is Annexure two to these reasons for judgment.
The father seeks an order that he and the mother share joint parental responsibility for the children, and joint decision-making authority in relation to major long-term issues for the children. The father agrees that the children should live with the mother, however, he proposes that the children spend increased time with him during the school term; on the first alternate week from the cessation of school (or 3:00 pm) Friday, until the commencement of school (or 9:00 am) Monday (extending to 9:00 am Tuesday if Monday is a public holiday), and on the second alternate week from the cessation of school (or 3:00 pm) Wednesday until the commencement of school (or 9:00 am) Friday.
The father seeks that the children spend time with him in the first half of the school holidays in even numbered years and the second half of the school holidays in odd numbered years. The father additionally seeks special occasion time with the children and various special issues orders as set out in the father’s minute of order.
The Independent Children’s Lawyer
The Independent Children's Lawyer’s Minute of Order dated 2 December 2024 (“the Independent Children’s Lawyer’s minute of order”) is Annexure three to these reasons for judgment.
The Independent Children’s Lawyer proposed that the mother have sole parental responsibility and sole decision-making authority for all long-term issues relating to the care, welfare and development of the children. Additionally, the Independent Children’s Lawyer supports the proposal that the children live with the mother and spend increased set time with the father in line with his proposal.
The Independent Children’s Lawyer sought within her written submissions filed 2 December 2024 (“the Independent Children’s Lawyer’s written submissions”) additional orders regarding the children’s continued attendance at their current school until they complete Year 12, continued drug testing for the father, and varying restraints on both parents.
The Independent Children’s Lawyer’s written submissions clarified that she did not hold a position on the changeover venue where such changeover does not occur at the children’s school.
Parenting issues for determination
The father helpfully provided a comparison table between the parent’s proposed parenting orders at paragraph 175 of the father’s case outline. This table described the parent’s proposals as they were at the outset of the final hearing. Some issues initially in dispute were resolved during the final hearing. The Court annexes an amended version of the comparison table as Annexure four, adjusted to reflect the final positions of the parents and the effect of any orders made by consent during the proceeding.
Credit Findings
A witness giving oral testimony must tell the truth, the whole truth and nothing but the truth (Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361). The same obligation applies to deponents to affidavits. The Court acknowledges that in many parenting cases findings about the credibility of the parents is irrelevant, unnecessary and sometimes ultimately harmful (Adamson & Adamson (2014) FLC 93-622). Noting this, given the issues raised in this case, it is appropriate to make credit findings in respect of the parents and any witnesses called on their behalf.
To make a finding of fact the Court “must feel an actual persuasion” as to its existence (Briginshaw v Briginshaw (1938) 60 CLR 336 at 361) (“Briginshaw”). Actual persuasion should not be produced by “inexact proofs, indefinite testimony, or indirect inferences” (Briginshaw at 362). Actual persuasion is a state of subjective belief or state of mind held by the tribunal of fact, which may be unattainable if the material for decision is “slight, general or scanty” (Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345 at [255]). In reaching a state of actual persuasion, it is necessary for the Court to assess the combined weight of all evidence, including circumstantial evidence, as a unified whole (Wei & Xia (2024) FLC 94-186 at [163]).
The Mother’s evidence
The Court found the mother to be a compelling witness who made appropriate concessions on matters relating to the children. Having heard her evidence, the Court accepts the mother’s evidence about what she experienced in her relationship with the father. The mother has a firm but subjective belief that the father’s actions throughout the relationship amounted to family violence, and that such family violence is the foundation for the anxiety and PTSD she now experiences. This subjective perception is not probative of the family violence itself unless there is an objective basis for the behaviour to be considered as such (Pickford & Pickford [2024] FedCFamC1A 249 (“Pickford & Pickford”). The Court, in this case, cannot reach this conclusion on the mother’s lay evidence alone.
The Court otherwise adopts the words of the mother’s senior counsel in his closing submissions:
In my submission, the mother was direct. She did her best without embellishment. She was very focused on assisting the court…. gave answers, in my submission, that were highly insightful and which displayed that she has given these matters a lot of very considered thought. But some answers that also displayed very clearly her vulnerability and her sensitivities.…
(Transcript 3 December 2024, p.11 lines 10-15).
The father’s evidence
The Court holds serious reservations about the father’s credibility based on the evidence he gave, the manner in which his evidence was given, and the significant omissions in his evidence.
It is disconcerting that the father so readily conceded that much of his evidence about his financial affairs was based on, what this Court understands to be, an un-filtered and unquestioning acceptance of what someone else told him. First and foremostly the father wholly accepted the information provided by the paternal grandfather’s accountant. This acceptance is concerning when the same accountant is engaged by business entities solely and jointly owned by members of the father’s family. Secondly, and moreover, the father seemingly accepts the information told to him by his father (“the paternal grandfather”), whose interests could reasonably be perceived to conflict with that of the father, and or the mother.
The Court found some of the father’s evidence plainly implausible, to the point where it adversely reflects on his credit. On the final day of his cross-examination, the father was questioned about certain expenses that were paid by the Rahal Family Trust on his behalf. The father possessed no knowledge of these payments. He was unable to express even a general idea of the items the money went to. The father did not know if it was used to pay for recent holidays he took the children on. Further, the father did not know why these payments were made on his behalf. When asked about monies he had received from J Trust, another trust run by the Rahal family, the father simply stated that he did not know where the funds originated and that he was just happy to get the money:
- - - you see that you’ve been receiving distributions from the [J Trust] - - -?---Yes.
- - - since 2017?---Yes.
What for? Do you know?---No, I don’t.
No idea?---No idea.
Again, is it just money that falls in your – into your account somehow or other, but you don’t understand - - -?---Done by the accountants and my father.
Okay. Again totally controlled by your father?---Yes.
Right. Do you know anything at all about the [J Trust?---No.
Sorry, [J Trust]. I beg your pardon?---No.
Have you seen financial records for that trust?---Not that I’m aware of.
Do you know what it does?---No, I don’t.
If I suggested to you that what it does is it borrows money from your father and on- lends it to the – his superannuation fund and generates income, does that help you, or no idea?---No, but I will accept it if that’s what you say.
Okay. And are you aware whether anyone else gets distributions from that trust?---No, I’m not.
Are you aware that your sister gets distributions from that trust?---No, I wouldn’t – I wouldn’t know.
Right. There’s no point in asking any more questions about that, is there?---I don’t know anything about it.
You’re just happy to - - -?---That’s why I rely on the accountant. I’m sorry. I - - -
Yes. Yes, that’s all right?---I don’t understand all these structures and - - -
You’re just happy to get the money?---I don’t - - -
Is that right?---Yes, Mr Cummings.
(Transcript 29 November 2024, p.24 lines 5-40).
The father’s inability to answer basic financial questions about the origins of his income is implausible. The clear gaps in the father’s evidence weigh against his credibility and suggest a breathtaking capriciousness that is inconsistent with his sworn financial evidence.
The father’s evidence regarding his history of drug use also negatively affected his credit in the eyes of the Court. The father not just minimised the frequency and nature of his drug use, but plainly obfuscated about it. For the first time, in cross-examination, the father “acknowledged that he was a heavy user of [an illicit substance], that his behaviour was badly affected by his [drug] use” (Transcript 3 December 2024, p.13 line 40). Prior to this omission, the father maintained that he merely used “[an illicit substance] on a recreational basis” (the father’s affidavit filed 10 September 2024 at paragraph 363 (“the father’s trial affidavit”)).
The father was also untruthful in his communications with the Single Joint Expert. At paragraph 46 of the Family Report dated 25 November 2024 (“the Single Joint Expert Report”) the father said (when interviewed on 23 September 2024) that he has “learnt to disengage in arguments with [Ms Rahal]” and, that he has “now learnt to let some things go, particularly when they are not life threatening”. The comments by the father to the Single Joint Expert starkly contrast with his behaviour in the months leading up to the interview.
An example of this is the events of 19 May 2024, when the children were spending time with the father and were observed to be unwell. The parents agreed that the mother would collect the children at 8:00 am on Monday with the view that it was unlikely that the children would be in a position to attend school that day. Later, the mother attended upon a doctor who advised that X had a bacterial chest infection and should not attend school that week. Y was also unwell and did not attend school. This information was provided to the father on 23 May 2024, following which he instructed his legal representatives to send a critical letter in response to the mother (Exhibit A7). The father was asked about these events, and his correspondence during cross-examination. He conceded that he knew, and/or anticipated that the children would not attend school and that the mother would instead get X the medical attention she needed. The father separately acknowledged that writing letters back and forth through solicitors is not communication that would be conducive to a functional co-parenting relationship. This is not an example of disengaging with the mother.
A further example of the father's insistence on agitating trivial issues is the correspondence sent from the father’s legal representatives to the mother’s legal representatives on 23 July 2024 (Exhibit A7). The mother had previously advised the father that she would provide him with an update following Y's appointment with the medical specialist, Dr AH. The mother had not provided an update four weeks later as she had not, herself, received an update or report from Dr AH.
On 25 July 2024, the mother’s legal representatives provided Dr AH’s report to the father’s legal representatives. In correspondence dated 26 July 2024 from the father, remarks were made that the mother had “no intention of being truthful and transparent” with the father in relation to the children’s medical appointments. The mother’s legal representatives advised the father, in correspondence dated 31 July 2024, that the report was only obtained by the mother as a result of specifically contacting Dr AH’s office, as she too had not received an update at the time of their prior communication. The mother’s legal representatives informed that father, within the same communication, that there was nothing prohibiting the father from contacting the children’s treaters himself to obtain updates and information.
The conduct of the father in pursuing relatively minor issues through seemingly combative legal correspondence leaves the Court with an impression that he has a preference to continue to critique the mother’s abilities rather than to take proactive steps to obtain information himself. The father’s actions in these examples are not reflective of the newfound strategies which he expressed to the Single Joint Expert that he had learnt as a result of completing the parenting after separation course. The Court views the inconsistencies between the father’s actions and what he projected to the Single Joint Expert to be of concern to his credit as a witness, as well as his insight as a parent.
Further, the Court found that the father’s evidence relating to an incident in 2015 whereby the mother alleged that the paternal grandfather threw a glass at her feet (“the glass incident”) to be wholly inconsistent. At paragraph 341 of the father’s trial affidavit, he denies the mother’s allegation that the paternal grandfather threw a glass at her. He supported this denial by stating that the maternal grandmother was present “in the kitchen area” during the time of the alleged incident. In direct contrast to this, and at a more proximal time to the incident, he had stated that the paternal grandmother was “elsewhere in the house” playing with the children (the father’s affidavit filed 8 December 2020, paragraph 123). This discrepancy was put to the father during cross-examination. In response, the father stated to the Court that, to the best of his recollection, the maternal grandmother was in fact present at the time of the glass incident. The Court notes that the father had ample opportunity to call either the paternal grandmother or grandfather as witnesses but did not, for his own reasons.
Given the proximity of the father’s 2020 evidence to the glass incident, the Court places a greater weight on this version of events. Further, in light of the inconsistent oral and written evidence provided by the father, where the mother’s and father’s evidence are in conflict in relation to the glass incident, the Court adopts the version of events as stated by the mother (mother’s trial affidavit, paragraph 52).
The final aspect of the father’s evidence which gave the Court pause was the inconsistency with which he described the paternal grandfather’s abilities. This intertwines with the inconsistency in the father’s recollection of the paternal grandmother surrounding the glass incident. As explored by the mother’s senior counsel in closing submissions:
It’s important for several reasons, not just the one that I’ve articulated, but also this one. Where were his witnesses? Where was his mother? And where was his father?
Both of whom are local, both of whom are supportive, both of whom would have given an affidavit if asked. Your Honour might recall at one stage I asked [the father] why his father hadn’t given an affidavit, and he began to tell your Honour that he was old and frail and couldn’t do so just after giving evidence about how he was 77 years of age, and he will never retire, and he is a dynamo. The fact that these witnesses are not called is a matter of significance. When your Honour has to consider two versions of what is a clinically significant issue [the glass incident] that forms part of [Dr AH’s] diagnostic reasoning. And of course, your Honour doesn’t need me to remind your Honour what the law is about the failure to call those witnesses would give rise to the inference that they wouldn’t have helped. And why weren’t they here? We have no idea. It’s a significant matter also in terms of credit, more generally.
(Transcript 3 December 2024, p.12-13 lines 35- 5).
The father’s inconsistent recollection and attitude towards the paternal grandfather’s wellness either demonstrates a deliberate attempt to mislead the Court about the capacity of the paternal grandfather, or a genuine lapse in the father’s ability to recall simple events and personal characteristics of those close to him. In either event, the Court has concerns about the father’s credit on this issue, and this permeates throughout the consideration of the remainder of his evidence in these proceedings.
Dr AE’s evidence
The Court accepts the evidence of Dr AE. Dr AE is a registered psychiatrist with experience assessing and reporting on families and individuals in complex matters before this Court. He provided evidence as the mother’s treating medical practitioner, under r 7.01(a) of the Rules, on the following topics:
The dates of my consultation with [the mother];
The history of my consultations with [the mother] and matters addressed in those consultations;
The results of any examination, investigation or observation made by me of [the mother] including diagnosis or conclusions in respect of [the mother’s] current mental health, insofar as such matters are within my expertise;
My opinion as to the following:-
[The mother’s] ability to directly discuss matters and directly negotiate with [the father] both generally and also in relation to important issues concerning the children;
The impact (if any) on [the mother] of being required to engage in ongoing direct communications and/or negotiations with [the father] both generally and also in relation to important issues concerning the children;
The impact (if any) on [the mother] in being required to attend the children's medical appointments, the children's school meetings or other such in person events in which [the father] is also in attendance;
Any recommendations I have in relation to points (a) to (c) above”.
(Dr AE’s report, pages 7-8)
The Court does not accept the contention by king’s counsel for the father that Dr AE’s credibility should be discounted based upon a lack of specificity. Dr AE was only asked to provide a report “not as a single expert for the Court, but on the basis that you are the treating psychiatrist for [Ms Rahal]” (Dr AE's Report, page 8). His expert opinion could only have been informed by “the clinical sphere in which he has engaged with [the mother]” (Transcript 3 December 2024, p.24 line 5).
Dr AE’s report was written on the basis of notes he produced as a treating psychiatrist. They are, unsurprisingly, different in nature to the notes prepared by an expert witness. The lack of specificity within Dr AE’s evidence is an unsurprising feature of his treating relationship with the mother. It does not negatively affect his credit as an expert witness in these proceedings, or undermine the weight that is otherwise given to his opinion. His report reveals the process by which he applied his extensive experience, and the judgement derived from that to the information provided by his patient. Dr AE’s methodology was to ask very carefully crafted questions guided by various diagnostic tools. Using his experience, he then determined if the information he was provided could reasonably lead to a diagnosis. Dr AE found in the affirmative.
Psychological evidence is axiomatically variable and undeniably qualitative in some respects. There was no suggestion that his evidence did not fall within the provisions of r 7.01(1)(a) of the Rules. The only issue to be cavilled with is the weight attributed to Dr AE’s reports. The Court concludes that there is nothing in the methodology used that undermines that weight.
Mr AD’s evidence
Mr AD is the mother’s brother. He is 43 years of age and is currently employed as a senior manager and in a consulting capacity for Country AJ in City PP. He was called to give evidence by the mother about what he was told of, and what he experienced during, the parent’s relationship. This included evidence of Ms Rahal’s declining mental health during her relationship with the father, the mother’s perception of the glass incident, and a separate exchange between Mr AD and the paternal grandfather in 2016.
Despite being immediately related to the mother, the Court did not find Mr AD to be partisan. He remained factual and made appropriate concessions where pressed. Where the evidence conflicts, the Court prefers the evidence of Mr AD over that of the father.
Ms H’s evidence
Ms H is the joint managing director of NN Valuers and is a qualified business valuer and financial professional. She was appointed as a Single Joint Expert to address the value of, and nature of the parents’ interest (if any) in the following entities:
·TT Trust;
·ZZ Family Trust;
·ZZ2 Pty Ltd;
·Superannuation Fund 3;
·T Pty Ltd; and
·K Unit Trust.
Ms H was also tasked with verifying “the information set out in the Affidavit sworn by [Mr G] (enclosed) on 14 December 2020 and in particular (sic), the information pertaining to the father not having an interest in those entities identified by [Mr G’s] Affidavit” (Affidavit of Ms H filed 26 November 2024, page 10 (“Updated Expert Report of Ms H”)).
Ms H was forthright in her responses and was an advocate for neither cause. The Court accepts Ms H’s evidence and conclusions.
The Single Joint Expert’s evidence
The expert evidence on parenting issues in this case was in the Single Joint Expert Report dated 16 February 2023 prepared by Dr F, Clinical Psychologist which became Exhibit ICL1 (“the Single Joint Expert”) (“the Single Joint Expert Report”) and the affidavit of the Single Joint Expert dated 25 November 2024 (“the Updated Single Joint Expert Report”) which became Exhibit ICL2.
Whilst the Single Joint Expert was not cross-examined in this matter, the Single Joint Expert Report and Updated Single Joint Expert Report are comprehensive and provide no reason for the Court to doubt the validity of the recommendations contained within.
Single Joint Expert Report
All references within this section should be construed as referring to the Single Joint Expert Report unless explicitly stated otherwise.
The Single Joint Expert reported that the children “like the current arrangements” (paragraph 161) and that “It was clear that the children expressed a great deal of enjoyment spending time with both their parents, and have been able to maintain very positive relationships with both their mother and their father within the current parenting arrangements” (paragraph 165). The Single Joint Expert opined that the children’s views should be given some weight by the Court as “they are decoupled from any parental agenda and genuinely reflect the children’s own preferences” (paragraph 165).
Neither parent was suggested to have a deficiency in their capacity to provide for the intellectual and emotional needs of the children (paragraphs 175-177). The Single Joint Expert Report praised the parents for largely protecting the children from their ongoing legal and personal conflicts (paragraph 147). The culture, care and support provided by both maternal and paternal families were frequently cited as being of being of benefit to the children.
The Single Joint Expert opined that the benefit of retaining the current parenting arrangements, in line with the mother’s proposal, would be to allow “the children to experience meaningful and positive relationships with both parents, have both parents involved in their lives, and to have access to extended family members whilst providing a consistent weekly routine” (paragraph 194). The disadvantage of this arrangement was that it prevented the children from spending more expended periods of time with the father and paternal family in a manner that may be enriching.
The Single Joint Expert stated that the benefit of the father’s proposal would be that “it would allow the father to become more intimately involved in the children’s school, social, and extra-curricular activities and provide them with the benefit of his input” (paragraph 195). The primary disadvantages to this arrangement were said to be the potential for the children to become embroiled in conflict between their parents, the father’s long-term capacity for emotional regulation and the dependency on parental cooperation for the arrangement to succeed.
On a similar note, the Single Joint Expert opined that the children “have been exposed to family violence to the extent that they were exposed to their parents’ toxic conflict in the last few years of the marriage, and they observed verbal altercations between their parents at a minimum” (paragraph 157). Further, the Single Joint Expert warned against a possibility that the “the father’s grievances and criticisms of the mother may become transparent to the children and adversely affect them” (paragraph 159), and that “If the father is unable to modify his parenting behaviours, then I am concerned that the children will be exposed to psychological manipulation…” (paragraph 160).
Ultimately, the Single Joint Expert recommended a spend time with regime that retained the skeleton of the current arrangement and provided greater latitude for the children to spend extended periods of time with the father during the school holidays (paragraph 198).
Updated Single Joint Expert Report
All references within this section should be construed as referring to the Updated Single Joint Expert Report unless explicitly stated otherwise.
The Updated Single Joint Expert Report was prepared shortly before the final hearing. It reconfirmed that the children remain “naïve as to their parents’ conflict” and that “this is to both parents’ credit and reflects very well on their capacity to focus on the children’s needs, to exert appropriate emotional regulation and to control their emotional and behavioural responses” (paragraph 92). The children were not said to be at “any risk of exposure to abuse, neglect or other harm” (paragraph 94) and that “the children are safe in the care of each of their parents” (paragraph 95).
Notwithstanding these comments, the Single Joint Expert asserted that if the Court were to positively find that the father perpetrated family violence towards the mother or wielded other forms of power to control the mother than it may have a significant bearing on her recommendations regarding parental responsibility (paragraph 96).
The children were reported to remain satisfied with the current arrangement as it provided a balance between exposure to both parents and stability in schooling (paragraph 98).
Similarly, the Single Joint Expert reiterated that “the mother has an excellent capacity to provide for the children’s developmental, psychological, emotional, and cultural needs” (paragraph 104), and “that the father has a very good capacity to meet the needs of the children, including their developmental, psychological, emotional and cultural needs” (paragraph 106). Further, the Single Joint Expert praised the father for notable improvements in terms of his communication since the last report was commissioned.
The most nuanced and controversial recommendation of the Updated Single Joint Expert Report pertains to the allocation of parental responsibility between the parties. It is suggested that, should the Court find that the father perpetrated, or continues to perpetrate family violence on the mother and that such violence has the potential to denigrate the mother’s parenting capacity, then joint decision making would be undesirable (paragraph 109). Alternatively, the Single Joint Expert expresses that the children “benefit from observing both their parents being actively involved in decision making, and it would be a loss for them if they understood that their father was not involved in decision making” (paragraph 109).
The Single Joint Expert was not of the view that either child was at risk of exposure to abuse neglect or other harm. Indeed, the children are safe in the care of each of their parents, both of whom presented as child focused, able to care for the children physically and emotionally, and aware of the need to be appropriately protective. Both the children presented as satisfied with the current arrangements. They did not necessarily wish for changes to the weekly schedule, but were becoming increasingly, and appropriately preoccupied with their own interests such as piers, extracurricular activities and social and family interactions.
The applicable law
The applicable law is found in Part VII of the Act. The Family Law Amendment Act 2024 (Cth) (“the Amendment Act”) came into effect on 6 May 2024 and made substantive amendments to the previous Act which apply to these proceedings. In determining parenting matters under Part VII of the Act the Court must still regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part
The objects of this Part are:
(a) to ensure that the best interests of children are met, including by ensuring their safety; and
(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
In regard to parental responsibility, the presumption of equal shared parental responsibility as created by the previous s 61DA of the Act has been abolished. Instead, s 61D(3) of the Act provides the Court with the ability to deal with the allocation of responsibility for making decisions in relation to children as follows:
61D Parenting orders and parental responsibility
…
(3)A parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child (see subsection 64B(3)) may provide for joint or sole decision-making in relation to all or specified major long-term issues.
Section 61DAA of the Act provides the Court with an understanding of what joint decision-making about major long-term issues entails:
61DAA Effect of parenting order that provides for joint decision-making about major long-term issues
(1) If a parenting order provides for joint decision-making by persons in relation to all or specified major long-term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
(a) to consult each other person in relation to each such decision; and
(b) to make a genuine effort to come to a joint decision.
(2) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Subject to any order to the contrary, s 61DAB clarifies that if a child is spending time with a person under a parenting order, the order is not taken to require that person to consult with a person who has parental responsibility about decisions that are made in relation to the child that are not major long-term issues.
Because s 60CA and s 60B refer to the best interests of the child, the Court must consider s 60CC which specifies how the Court determines what is in a child’s best interests:
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
General considerations
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
(Emphasis in original)
12.Each parent shall do all reasonable things necessary to ensure that they facilitate the children participating in their scheduled extra-curricular activities during such periods that the child is spending time with them.
13.Both parents shall keep the other advised of the health of the children including any serious illness, medication or hospitalisation of the child as soon as reasonably practicable and to allow the other parent to visit the child if hospitalised.
14.Both parents shall keep the other advised of the names and contact details of all of the children’s treating medical practitioners, dentists and allied health professionals.
Hair Follicle Testing
15.The Father shall do all acts and things and sign all documents necessary to facilitate chain of custody hair follicle testing by a BC Pty Ltd Clinic or its nominee on the following occasions:
15.1Within 7 days of a written request made by the Mother and on no more than one occasion in each 6 month period for 18 months from the date of these Orders;
15.2The Father shall be responsible for the costs of the test.
16.For the purposes of Order 15 herein, the Father must make an appointment and attend for hair collection at a BC Pty Ltd Clinic or its nominee for hair drug testing purposes and to give effect to this Order:
16.1Collection is to be conducted by a qualified and certified collector;
16.2Chain of custody procedure is to be applied to the sample;
16.3Testing is to be conducted at an approved laboratory, accredited to conduct hair testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant accreditation body for that laboratory;
16.4Either head or body hair may be collected for testing;
16.5The Father is required to make an appointment in sufficient time to comply with the fates in these Orders with BC Pty Ltd by telephoning ... for the purpose of providing a hair sample for the detection of drugs of abuse including methamphetamine, ecstasy amphetamine type substances (and metabolites), cannabis (and metabolites), cocaine (and metabolites) and opioids (and metabolites) (illicit substances);
16.6Each party or their legal representatives is at liberty to provide BC Pty Ltd with a copy of these Orders;
16.7The Father is to attend at an BC Pty Ltd or nominee for the purposes of hair drug testing pursuant to order 15 and submit to the supervised collection of a hair sample from the Mother at the earliest available appointment time within the times specified at Order 15 herein; and
16.8The Father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising BC Pty Ltd or nominee to provide the results of each test to the Mother and the Father.
Restraints
17.Without admissions, when the children are in their respective care, each parent is restrained from:
17.1Consuming any illicit substance;
17.2Questioning or interrogating the children about the time they have spent with the other parent and each parent shall do all reasonable things necessary to prevent any other person from doing so in the presence or hearing of the children;
17.3Denigrating the other parent, the other parent’s extended family, or a person with whom the other parent has a relationship in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other parent, the other parent’s extended family, or person with whom the other parent is in a relationship, with the parent’s knowledge or in their presence;
17.4Discussing the proceedings or any allegations raised in these proceedings with the child or permitting any other person to do so with their knowledge or in their presence;
17.5Communicating any information intended for the other parent through the children; and
17.6Causing the children to be a medium in any way between the mother and the father or between the mother and the father and any other person.
18.Within 28 days after the date of these Orders the Mother shall pay to Legal Aid NSW the sum of $12,190.30 as a contribution to the costs of the Independent Children’s Lawyer in these proceedings.
19.Within 28 days after the date of these Orders the Father shall pay to Legal Aid NSW the sum of $12,190.30 as a contribution to the costs of the Independent Children’s Lawyer in these proceedings.
20.That within 28 days of the date of these Orders, the ICL is to meet with the children in orders to explain the effect of the Orders and notations made by the court in relation to parenting matters and having met with the children pursuant to this Order, the appointment of the ICL is discharged.
21.The process to be used for resolving disputes about the interpretation, implementation or enforcement of these orders is as follows:
21.1the mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act or by the Commonwealth Attorney General or
21.2the mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Family Law Act.
ANNEXURE FOUR
Husband (father) (omitting orders made by consent during trial) Wife (mother) (as updated according to her most recent minute of order and omitting orders made by consent during trial) That the children live with the mother (No difference) Joint parental responsibility and joint decision-making authority in relation to major long-term issues for the children Mother to have sole parental responsibility and sole decision-making authority in relation to major long-term issues for the children Thechildrento stay: Subject to the father restraining from consuming alcohol and drugs and complying with all drug testing regimes, the children to stay: with the father in each two-week cycle from 3pm Friday until 9am Monday in the first week and from 3pm Wednesday until 9am Friday in the second week (i.e. 5 nights from 14); with the father in each two-week cycle from after school on Wednesday until 7pm in the first week and from after school on Friday to 9am Monday in the second week (i.e. 2 nights from 14); with the father for one half of all school holidays for the first or second half in alternating years, or as agreed between the parties; (No difference – except the arrangement is inverted.) In alternating years with each party: In alternating years with each party: from 12pm Christmas Eve until 4pm Christmas Day or from 4pm Christmas Day until 5pm Boxing Day from 10am Christmas Eve until 10am Christmas Day or from 10am Christmas Day until 10am Boxing Day from 9am 31 December until 12pm 1 January from 10am 31 December until 10am 2 January No equivalent from 10am Good Friday until 10am Easter Sunday or from 10am Easter Sunday until 10am Easter Monday from 5pm Orthodox Good Friday to 10am Orthodox Easter Sunday No equivalent With the father every year from 9am on 7 January until 9am 8 January If the children are not staying with the mother, with the mother every year from 10am 6 January to 10am 7 January (Orthodox Christmas) Every year if the children are not in the father’s care:
on Father’s Day from 9am to 6pmon each child’s birthday as agreed or from 3pm to 7pm or 1pm to 4pm
on the father’s birthday from 3pm to 8pm if such event falls on a school day or from 9am to 9am the following day if not a school day
Every year if the children are not in the father’s care:
on Father’s Day as agreed or from 10am to school the next day
on each child’s birthday as agreed or from 5pm to school/9am the next day
on the father’s birthday as agreed or from 10am until school 9am the next day if school day, or from after school to 6.30pm if school dayThe children to stay with the mother every year if the children are not in the mother’s care: The children to stay with the mother every year if the children are not in the mother’s care: on Mother’s Day from 9am to 6pm
on each child’s birthday as agreed or from 3pm to 7pm or 1pm to 7pm
on the mother’s birthday from 3pm to 8pm if the event falls on a school day or 9am – 9am if not on a school dayon Mother’s Day as agreed or from 10am to school the next day
on each child’s birthday as agreed or from 5pm to school/9am the next day
on the mother’s birthday as agreed or from 10am until school 9am the next day if school day, or from after school to 6.30pm if school dayChangeover at the children’s school on school days, otherwise Handover Location B or as agreed Changeover at QQ School or as nominated by the mother Each party to be permitted reasonable telephone/Facetime calls with the children while in the care of the other. No equivalent Each party may elect to take the whole of one school holiday period in non- consecutive years with a make-up period in the following holiday No equivalent The parties do all acts and things to obtain or renew Australian passports for the children. The father shall retain X’s passport and the mother shall retain Y’s passport. No equivalent Each party to inform the other of medical treatments, give authority to treating professionals to provide information to the other and to permit the other to obtain information No equivalent No equivalent If there is a medical emergency regarding the children, the parent with care must contact the other parent and provide information about the incident No equivalent Parties to inform each other about material changes to their own health No denigration of the other party or their family (No difference) Noequivalent Each party to ensure the children attend extracurricular activities Consultation about extracurricular activities No equivalent No equivalent Father be restrained from consuming alcohol or drugs while the children are with him and 24 hours prior No equivalent For a period of 24 months after these orders, the Father to submit to hair follicle testing no later than 24 hours after the mother requests no more than once in 3 calendar months, with father restrained from cutting or dying his hair and to authorise test results to be sent to mother Upon failing to take any test, cutting or dying his hair, or positive test result, father’s time with the children to be limited to alternate Saturday and Sunday 9am to 7pm supervised by AY Family Services or equivalent service until father returns two consecutive negative test results No equivalent Parties to communicate only using parenting app, and father restrained from contacting mother other than using app or in an emergency relating to the children No equivalent Parties to give notice before introducing new partner to children ANNEXURE FIVE
Item Owner Description Ref Applicant’s value Respondent’s value ASSETS (owner not dispute) 1. J SS Lawyers CMA …55 and …11 [As at 28.11.24] $4,470,575 $4,470,575 2. H NAB Account …48 [W as at 20.08.24] [H as at 25.11.24] $5,097 $5,097 3. H NAB Account …29 [W as at 20.08.24] [H as at 25.11.2024] $53,723 $53,723 4. H C Bank …69 [as at 16.08.24] ZZ2 Pty Ltd Services Business Account [included in items 19/32] $0 $0 5. H NAB Account …61 ATF for Y [as at 20.08.2024] $0 $0 6. H NAB Account …38 ATF for X [as at 20.08.2024] $0 $0 7. W WestpaAccount …97 [H as at 05.11.2024] [W as at 29.11.2024] $10,682 $10,682 8. W Westpac Account …13 [H as at 05.11.2024] [W as at 29.11.2024] $18,058 $18,058 9. W Westpac Account …23 H [as at 05.11.2024] [W as at 29.11.2024] $14,495 $14,495 10. W Westpac Account …15 [H as at 05.11.2024] [W as at 29.11.2024] $2,315 $2,315 11. W CBA Account …90 [H as at 05.11.2024] [W as at 29.11.2024] $2,779 $2,779 12. W CBA Account …82 [W as at 05.11.2024] [W as at 29.11.2024] $2 $2 13. H Recreational vehicles $565,000 $565,000 14. H T Pty Ltd (8%) (as updated by Ms H) 1 $54,478 + NK $54,478 15. H K Pty Ltd (100%) (as updated by Ms H) $13,530 $13,530 16. W TT Trust (as updated by Ms H) $57,306 $57,306 17. H ZZ Family Trust (100%) (as updated by Ms H; H figure is midpoint of low and high values) $178,343 $162,363 18. H S Group Pty Ltd (50%) 2 NK $100 19. H Q Pty Ltd (50%) NK $100 20. H WW Pty Ltd (100%) NK $100 21. H U Pty Ltd (50%) NK $6 22. H XX Pty Ltd (50%) NK $12 23. H YY Pty Ltd (50%) NK $1 24. H M Pty Ltd (50%) NK $12 25. H AC Pty Ltd (50%) NK $6 26. H L Pty Ltd (50%) NK $5 27. H P Pty Ltd (50%) NK $50 28. H ZZ1 Pty Ltd (100%) NK $12 29. H ZZ2 Pty Ltd [included in item 19] $0 $0 30. H AF Pty Ltd (100%) NK $100 31. H AU Trust account for legal fees [H as at 03.12.24] $200,288 $200,288 32. W AV Trust account for legal fees $203,740 $203,740 33. W Motor Vehicle 2 [H based on purchase contract] $95,000 $95,000 33a. H Unpaid present entitlement in Rahal Family Trust [as at 30.11.2024] $51,586 $2,258 34 W Household Contents $15,000 $15,000 Total $5,975,383 $5,947,193
LIABILITIES 35 H Loans from Mr OO $0 $124,335 36 W Westpac …18 [H as at 05.11.2024] [W as at 29.01.24] $2,954 $2,954 37 W Loan from Mr AD $7,742 $7,742 38 H Loan owing to ZZ2 Pty Ltd (H based on Ms H updating report) $93,496 $93,496 39 W Higher Education Loan Program $11,243 $11,243 40 H AN Financial Services – (principal) excluding interest due late November 3 $0 $266,000 41 H Loan from Mr AO for legal fees $0 $250,000 42 H Ms H's estimated fees (incl GST) to be paid from Controlled Monies as per interim orders $20,152 $20,152 43 J ICL costs (Costs Notice 01.12.2024) $24,380 $24,380 Total $164,489 $827,940
NET ASSETS (excluding Superannuation) $5,810,894 $5,119,253
SUPERANNUATION 46 H Superannuation Fund 3 (as updated by Ms H) $3,576,260 $3,576,260 47 W Superannuation Fund 4 as at 29.11.24 $63,642 $63,642 48 W Superannuation Fund 5 [H as at 28/11/2024] $113,471 $113,471 Total $3,753,373 $3,753,373
NET ASSETS (including Superannuation) $9,564,267 $8,872,626
NOTIONAL ADJUSTMENTS/ADDBACKS 49 H Funds used since separation [including recreational vehicle refinance, monies from Rahal Family Trust etc, luxury discretionary spending. Refer to schedule] 4 $1,252,695 $0 50 H Release of Funds to be categorised [pursuant to Orders 13.12.2023] 5 $500,000 $0 51 H Interim costs received from proceeds from sale of Suburb E property [pursuant to Orders 13.12.2023] $0 $0 52 W Release of Funds to be categorised $100,000 pursuant to Orders 15.12.2020 and $100,000 pursuant to orders made 28.01.2021 $0 $0 53 W Partial property settlement $240,000 pursuant to Orders 09.03.2024 $0 $0 54 W Interim distribution of property $12,000 [pursuant to Orders made 15.09.2023] $12,000 $12,000 55 W Release of Funds $69,000 to be categorised [pursuant to Orders 20.11.2023] $0 $0 56 W Release of Funds $45,000 for rent [pursuant to Orders 13.12.2023] $0 $0 57 W Release of Funds to be categorised $550,000 pursuant to Orders 13.12.2023 $0 $0 58 W Interim costs $500,000 received from proceeds from sale of Suburb E property [pursuant to Orders 13.12.2023] $0 $0 59 H Monies spent on legal fees excluding single expert costs husband was ordered to pay in the first instance [as at 03.12.2024] $1,200,124 $1,200,124 60 W Monies spent on legal fees [W as at 02 12.2024] $1,084,330 $1,084,330 Total $4,031,285 $2,296,454
NET ASSETS (including Superannuation and Notional Adjustments) $13,595,552 $11,169,080
REF NOTES 1 The wife contends that the company owns the properties at 2 GG Street and 3 GG Street, Suburb HH beneficially and that upon receipt of valuation evidence it will be contended that the husband’s shares have a value that corresponds to the proportion of his shareholding i.e. 8% 2 The wife contends that the company owns the property at 2 AF Street, Suburb AG beneficially and that upon receipt of valuation evidence it will be contended that the husband’s shares have a value that corresponds to the proportion of his shareholding i.e. 50% 3 If the amount received by the husband from AN Financial Services is not including in the add backs attributed to the husband at 49, then the wife does not accept that the loan should form part of the balance sheet. 4 The wife contends the majority of this amount relates to luxury discretionary spending, however see paras 75, 77, 112, 113 of husband's trial affidavit, husband’s s 50 schedule dealing with expenditure to May 2024. The husband contends that spending since separation has been accounted for as payments to the wife, expenses the husband was ordered to pay, legal costs and living expenses. 5 The husband contends that spending since separation has been accounted for as payments to the wife, expenses the husband was ordered to pay, legal costs and reasonable living expenses. See husband’s trial affidavit para 154, husband's s 50 notice dealing with expenditure to May 2024. Already accounted for in items 59 and 60. Husband contends that adding back this amount double counts expenditure at item 49 as this includes amounts spent after $500,000 was received by the husband in May 2024 (see wife’s s 50 schedule). ANNEXURE SIX
Item Owner Description Value ASSETS 1. J SS Lawyers CMA …55 and …11 [As at 28.11.24] $4,220,575 2. H NAB Account …48 [W as at 20.08.24] [H as at 25.11.24] $5,097 3. H NAB Account …29 [W as at 20.08.24] [H as at 25.11.2024] $53,723 4. H C Bank …69 [as at 16.08.24] ZZ2 Pty Ltd Account [included in items 19/32] $0 5. H NAB Account …61 ATF for Y [as at 20.08.2024] $0 6. H NAB Account …38 ATF for X [as at 20.08.2024] $0 7. W Westpac Account …97 [H as at 05.11.2024] [W as at 29.11.2024] $10,682 8. W Westpac Account …13 [H as at 05.11.2024] [W as at 29.11.2024] $18,058 9. W Westpac Account …23 H [as at 05.11.2024] [W as at 29.11.2024] $14,495 10. W Westpac Account …15 [H as at 05.11.2024] [W as at 29.11.2024] $2,315 11. W CBA Account …90 [H as at 05.11.2024] [W as at 29.11.2024] $2,779 12. W CBA Account …82 [W as at 05.11.2024] [W as at 29.11.2024] $2 13. H Recreational vehicles $565,000 14. H T Pty Ltd (8%) (as updated by Ms H) $54,478 15. H K Pty Ltd (100%) (as updated by Ms H) $13,530 16. H TT Trust (as updated by Ms H) $57,306 17. H ZZ Family Trust (100%) $162,363 18. H S Group Pty Ltd (50%) $100 19. H Q Pty Ltd (50%) $100 20. H WW Pty Ltd (100%) $100 21. H U Pty Ltd (50%) $6 22. H XX Pty Ltd (50%) $12 23. H YY Pty Ltd (50%) $1 24. H M Pty Ltd (50%) $12 25. H AC Pty Ltd (50%) $6 26. H L Pty Ltd (50%) $5 27. H P Pty Ltd (50%) $50 28. H ZZ1 Pty Ltd (100%) $12 29. H ZZ2 Pty Ltd [included in item 19] $0 30. H AF Pty Ltd (100%) $100 31. H AU Trust account for legal fees [H as at 03.12.24] $200,288 32. W AV Trust account for legal fees $203,740 33. W Motor Vehicle 2 [H based on purchase contract] $95,000 33a. H Unpaid present entitlement in Rahal Family Trust $51,586 34 W Household Contents $15,000 Total $5,746,521
LIABILITIES 35 H Loans from Mr OO $124,335 36 W Westpac Account …18 [H as at 05.11.2024] [W as at 29.01.24] $2,954 37 W Loan from Mr AD $7,742 38 H Loan owing to ZZ2 Pty Ltd (H based on Ms H updating report) $93,496 39 W Higher Education Loan Program $11,243 40 H AN Financial Services – (principal) excluding interest due late November $266,000 41 H Loan from Mr AO for legal fees $250,000 42 H Ms H's estimated fees (incl GST) to be paid from Controlled Monies as per interim orders $20,152 43 J ICL costs (Costs Notice 01.12.2024) $24,380 Total $800,302
NET ASSETS (excluding Superannuation) Total $4,946,219
SUPERANNUATION 44 H Superannuation Fund 3 (as updated by Ms H) $3,576,260 45 W Superannuation Fund 4 as at 29.11.24 $63,642 46 W Superannuation Fund 5 [H as at 28/11/2024] $113,471 Total $3,753,373
NET ASSETS (including Superannuation) Total $8,699,592
NOTIONAL ADJUSTMENTS/ADDBACKS 47 H Interim costs received from proceeds from sale of Suburb E property [pursuant to Orders 13.12.2023] $0 48 W Release of Funds to be categorised $100,000 pursuant to Orders 15.12.2020 and $100,000 pursuant to orders made 28.01.2021 $0 49 W Partial property settlement $240,000 pursuant to Orders 09.03.2024 $0 50 W Interim distribution of property $12,000 [pursuant to Orders made 15.09.2023] $12,000 51 W Release of Funds $69,000 to be categorised [pursuant to Orders 20.11.2023] $0 52 W Release of Funds $45,000 for rent [pursuant to Orders 13.12.2023] $0 53 W Release of Funds to be categorised $550,000 pursuant to Orders 13.12.2023 $0 54 W Interim costs $500,000 received from proceeds from sale of Suburb E property [pursuant to Orders 13.12.2023] $0 55 H Monies spent on legal fees excluding single expert costs father was ordered to pay in the first instance [as at 03.12.2024] $1,200,124 56 W Monies spent on legal fees [W as at 02 12.2024] $1,084,330 57 W Partial property distribution as ordered on 3.12.24 $250,000 Total $2,546,454
NET ASSETS (including Superannuation and Notional Adjustments) Total $11,246,046
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