Rahal & Rahal (No 5)

Case [2025] FedCFamC1F 141

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

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Rahal & Rahal (No 5) [2025] FedCFamC1F 141
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[2025] FedCFamC1F 141
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CaseChat Overview and Summary

This case involved a dispute between Ms Rahal and Mr Rahal concerning the parenting arrangements for their two children, X and Y, as well as the division of their property. The parents were married in 2009 and separated in February 2020. The children, aged 14 and 12, were the central focus of the case. The legal issues in the case included the allocation of parental responsibility and decision-making authority, the development of a parenting schedule, the imposition of a drug testing regime for the father, and the determination of property settlement orders. The Court was also required to consider whether a transcript from an Independent Commission Against Corruption Commission hearing should be admitted as evidence and whether the mother should be granted leave to give her evidence via electronic communication.

The Court allocated sole decision-making authority in respect of major long-term decisions to the mother, while the father received significant weekday, weekend, and holiday time with the children. The Court provided detailed consideration of the special occasion time the children were to spend with each parent. A drug testing regime was imposed on the father, and related restraints were ordered to ensure compliance. Regarding property, the Court assessed the parents' contributions across the duration of the marriage as 60/40 in favour of the father. A 20% adjustment was made in favour of the mother, resulting in a total property adjustment that favoured the mother 60/40. The Court also determined that the mother was to receive $250,000 by way of interim property distribution, while the father's application for the same amount was dismissed. The Court ruled that a transcript from an Independent Commission Against Corruption Commission hearing was inadmissible hearsay evidence and that the non-hearsay purpose was not relevant. Finally, the Court granted the mother's application to give her evidence via electronic communication, finding that any procedural delay was outweighed by the potential substantive disadvantage to the mother of giving evidence in front of her alleged perpetrator.

The final orders of the Court included allocating sole parental responsibility and decision-making authority for major long-term issues to the mother, establishing a parenting schedule for the children to spend time with both parents, imposing a drug testing regime and related restraints on the father, and making final property adjustment orders in favour of the mother. The Court also granted leave for the parties to apply to relist the proceedings to deal with the interpretation, implementation, and/or enforcement of the property orders. Each party was ordered to pay 50% of the Independent Children's Lawyer's costs for the proceedings.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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 HEARINGRequest 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

Decision

Reasons for decision

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 PROCEEDINGSThe competing proposalsThe 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).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.