Reynard & Emerson (No 2) - [2025] FedCFamC2F 573

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Reynard & Emerson (No 2) [2025] FedCFamC2F 573

File number(s): PAC 4469 of 2021

Judgment of: JUDGE NEWBRUN

Date of judgment: 9 May 2025

Catchwords:
FAMILY LAW – PARENTING – Best interests of child –
orders made.

FAMILY LAW – PROPERTY – Just and equitable orders made.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CD, 60CE, 61D, 75, 79

Cases cited:
Cosola & Moretto (2023) FLC 94–143; [2023] FedCFamC1A 61

Dickons & Dickons [2012] FamCAFC 154

Lansa & Clovelly [2010] FamCA 80

Lotta & Lotta [2017] FamCA 50

Moretto & Cosola (No 2) [2022] FedCFamC1F 924

Petruski & Balewa (2013) Fam LR 116; [2013] FamCAFC 15

Rosati & Rosati (1998) FLC 92-804; [1998] FamCA 38

Scott & Munayallan(No 12) [2023] FedCFamC1F 665

Division: Division 2 Family Law

Number of paragraphs: 272

Date of last submission/s: 21 March 2025

Date of hearing: 11-13 November 2024

Solicitor for the Applicant: Mr Bainbridge, Bainbridge Legal

Counsel for the Respondent: The Respondent appeared in person
ORDERS

PAC 4469 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR REYNARD

Applicant

AND:
MS EMERSON

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

9 MAY 2025

ON A FINAL BASIS THE COURT ORDERS THAT:
Parenting
1.The mother and father shall have joint decision making authority for the long term issues for the care, welfare and development of the child, Y born in 2011 (herein referred to as “the child”).
2.The child shall live with the mother.
3.The child shall spend time with the father as follows:
(a)During school terms from after school on Thursday until the commencement of school on Monday and each alternate week thereafter.
(b)For one half of each school holiday period being the first half in years where the holidays commence in odd numbered years and the second half in years where the holidays commence in even numbered years. The first half of each school holiday period shall be deemed to commence from after school or 3.00 pm on the last day of the respective term and conclude at 6.00 pm on the Saturday that is the closest to the middle of the respective school holiday period. The second half of each school holiday period shall be deemed to commence at 6.00 pm on the Saturday that is the closest to the middle of the respective school holiday period and conclude at 3.00 pm or at the conclusion of school on the first day of the respective new school term.
(c)From 9.00 am on Father’s Day until 3.00 pm or at the conclusion of school on the next day, if the child is not otherwise living with the father on Father’s Day pursuant to these Orders.
(d)On the child’s birthday from after school until 6:30pm if her birthday falls on a weekday and from 10.00 am until 2.00 pm if her birthday falls on a weekend and the child would otherwise be with the mother pursuant to these Orders.
(e)On the Father’s birthday from after school until 6.30 pm if the father’s birthday falls on a weekday and from 10.00 am until 2.00 pm if the father’s birthday falls on a weekend and the child would otherwise be with the mother pursuant to these Orders.
(f)At such other times as may be agreed by the parties in writing.

4.Notwithstanding any order to the contrary, the child shall spend time with the mother:
(a)From 9.00 am on Mother’s Day until 3.00 pm or at the conclusion of school on the next day, if the child is not otherwise living with the mother on Mother’s Day pursuant to these Orders.
(b)From 4.00 pm Christmas Eve until 4.00pm Christmas Day in even numbered years and from 4.00 pm Christmas Day until 4.00 pm Boxing Day in odd numbered years.
(c)On the child’s birthdays from after school until 6.30 pm if her birthday falls on a weekday and from 10.00 am until 2.00 pm if her birthday falls on a weekend and the child would otherwise be with the father pursuant to these Orders.
(d)On the mother’s birthday from after school until 6.30 pm if the mother’s birthday falls on a weekday and from 10.00 am until 2.00 pm if the mother’s birthday falls on a weekend and the child would otherwise be with the father pursuant to these Orders.
(e)At such other times as may be agreed by the parties in writing.

5.Changeover shall occur as agreed between the parties and in default at the child’s school on school days and at the front of the property that is the mother’s residence on non-school days.
6.Each party shall advise within 24 hours of these Orders and keep advised the other party of their residential address, contact number and email address, and shall advise the other party within 24 hours of any change to such.
7.Each party shall ensure that the other party is kept informed as a matter of priority of:
(a)Any medical problems or illnesses suffered by the child whilst she is in their care, including but not limited to, notifying the other party by text message as soon as practicable of the child’s admission to hospital.
(b)Any medication which has been prescribed or recommended by a medical practitioner for the child.
(c)Treating doctors and locations of hospital where the child is admitted.

8.Each parent shall provide all necessary authorities to any medical practitioner or facility treating the child so as to cause the release of information about medical care or treatment of the child to the other parent.
9.Each party shall ensure that the child is provided with any medication as required during the time they are living with or spending time with them and shall provide to the other party with written confirmation of the medication, including the name and prescribed amount to be provided to the child.
10.Each party shall be responsible for taking the child to any specialist or medical appointments which are scheduled during their time with the child and to facilitate this order, each party shall advise the other within 24 hours of any appointment being scheduled.
11.The parties are restrained from making critical or derogatory remarks about the other party or members of the other party’s family in the presence of or within the hearing of the child and shall do all things necessary to ensure that no other person makes any critical or derogatory remarks about the other party or members of the other party’s family in the presence of or within the hearing of the child.
12.Each party is restrained by injunction from discussing these proceedings with or in the presence of the child or showing to the child any document connected with these proceedings.
13.In the event that the father is unable or unavailable to care for or supervise the child during the time that she spends with him pursuant to these Orders, the father shall notify the mother in writing of his unavailability as soon as reasonably practicable.
14.In the event either party wishes to travel interstate within Australia with the child then the party proposing such travel shall notify the other party no less than 14 days prior to the departure date of such proposed travel and shall provide to the other party at that time particulars including the proposed itinerary, the address of where the child will be staying and proposed period of travel.
15.The child undertake her secondary school education at J School commencing from 2023.
16.Each parent be at liberty:
(a)To communicate directly with the school and obtain copies of any documentation or information that is ordinarily available to parents; and
(b)To attend any school events and extra-curricular or sporting events to which parents are ordinarily invited.

17.The mother be at liberty to provide a copy of these Orders to J School.
18.The mother be identified as the sole billing parent for the payment of school fees to J School.

Property
19.Within 90 days from the date of these Orders the wife shall pay to the husband the sum of $287,649.
20.In the event that the wife fails to comply with Order 19, the parties shall forthwith
do all things necessary to list the property known as and situated at K Street, Suburb L NSW (“the property”) for sale in the following manner:
(a)the parties shall jointly instruct such lawyer or conveyancer as they agree upon to have conduct of the sale on behalf of both parties, or in the absence of agreement being reached within seven days of the failure to comply with Order 19 above, the parties shall instruct Ms M of N Firm to act on the conveyance.
(b)The parties shall jointly appoint such agent as they agree upon to have conduct of the sale on behalf of both parties and in default of agreement as to an agent within seven days of the failure to comply with order 19 above then the parties shall appoint O Real Estate as the agent to conduct the sale.
(c)The parties shall jointly instruct the agent to list the property for sale by public auction within six weeks from the date of appointment of the agent, or such other time as the parties may agree upon in writing.
(d)The reserve price for the purposes of such auction shall be such price as the parties agree upon in writing or, in the absence of agreement reached within seven days of the date of appointment of the agent, then the reserve price shall be $670,000.

21.In the event that the property is not sold at public auction within seven weeks from the date of appointment of the agent, the parties shall do all acts and things and sign all documents necessary so as to list the property for sale by private treaty with the agent and the following shall apply:
(a)the property shall be listed at a price that the parties agree upon in writing or in the absence of agreement within seven days from the date of the auction, then the listing price shall be $670,000.

22.The parties shall each co-operate in every way with the agent including (without limiting the generality of the foregoing):
(a)making the key available to the agent;
(b)allowing inspection of the property at all reasonable times requested by the agent;
(c)ensuring that the inside of the property is neat, tidy and presentable including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers;
(d)sign all documents requested by the agent in relation to the listing for sale of the property except a contract or agreement for sale which is not been authorised by the lawyer/conveyancer.

23.On settlement of the property, the proceeds of sale shall be paid in the following manner and priority:
(a)all costs and expenses of sale including legal costs and disbursements, the agents’ commission and all valuation fees (including payment of any such expenses as has been paid by either or both of the parties);
(b)the amounts required to pay all municipal and water rates outstanding with respect to the property;
(c)in discharge of Westpac mortgage loan;
(d)to pay any estimated Capital Gains Tax (CGT) pursuant to Order 24 below into an interest bearing account in the joint names of the husband and the wife (“the interest bearing account”), such funds to be held in that account pending distribution in accordance with these Orders;
(e)the balance divided between the husband and the wife so that, taking into account net $2,851,921 retained by the husband (in assets unrelated to the property) and net $4,602,629 retained by the wife (in assets unrelated to the property), there be a distribution of the net total assets (the net total assets being comprised of $2,851,921 + $4,602,629 + the net proceeds of sale of the property as determined by Orders 23 (a)-(d) herein) of 40 per cent to the husband and 60 per cent to the wife.

24.Within 14 days following the exchange of contracts for the sale of the property:
(a)The parties shall jointly instruct an accountant to prepare a report to estimate any CGT liability incurred by the wife upon the sale of the property, and;
(b)The parties are to jointly open an interest bearing account into which an amount equivalent to the wife’s estimated CGT liability will be paid pursuant to Order 23(d).

25.Forthwith upon receipt by the wife of her Taxation Return and Notice of Assessment from the Australian Taxation Office for the financial year in which the property is sold, the wife is to provide such documents to the husband.
26.Within 14 days of the husband’s receipt of the documents pursuant to Order 25, the parties are to do all things and sign all documents necessary to cause a payment to be made to the wife from the interest bearing account referred to in Order 23(d) in full satisfaction of the wife’s CGT liability, if any, arising from the sale of the property.
27.Any residual funds held in the interest bearing account after fulfilment of Order 26 are to be distributed 40 per cent to the husband and 60 per cent to the wife.
28.In the event that there are insufficient funds in the interest bearing account to meet the wife’s CGT liability, the husband is to pay to the wife 40 per cent of the shortfall within 28 days of the husband’s receipt of the Notice of Assessment pursuant to Order 25.
29.Except as otherwise provided in these orders, the parties be declared the sole legal and beneficial owner of their right, title and interest in all cash at banks and monies held in that party’s sole name and any real or personal property including but not limited to motor vehicles, furniture, chattels and superannuation entitlements in that party’s name, control or possession as at the date of these orders. The parties remain liable for any debts in their personal name and indemnify the other against all claims, costs, demands, suits, actions and proceedings which may be made against the other in respect of said debts.
30.The parties shall each be liable for and indemnify the other against any claim made against them with regard to any debts or liabilities in each party’s sole name including but not limited to credit card debts, personal loans, hire purchase, legal fees and car loans.
31.In the event that any party fails to sign any document or instrument or do any acts required or contemplated by these orders to be done with such failure continuing for a period of 14 days, then the Judicial Registrar of the Federal Circuit and Family Court of Australia in pursuance of the powers conferred upon him or her under section 106A of the Act, as amended, shall have the power to execute any document or instrument in the name of the person who has refused or neglected to sign any necessary document or instrument, or to do any act required or contemplated by these orders.
32.Liberty to relist on 14 days’ notice in relation to the facilitation or implementation of any of the above Orders.

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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION

These are Reasons for Judgment relating to a final property and parenting hearing held before the Court on 11, 12, and 13 November 2024.
The husband appeared legally represented. The wife appeared as a litigant in person.
There are two children of the marriage between the husband and wife. The parties’ adult child, X, aged 18, lives with the father. The subject child (“the child”), Y, is presently aged 13. Pursuant to interim orders made on 9 March 2022, the child lives with the mother and spends time with the father.
The husband made oral submissions, and the wife made brief oral submissions on 13 November 2024. At the request of the wife, the Court granted 14 days to the wife to file written submissions and a further 7 days to the husband to file any written submissions in reply.
MATERIAL RELIED UPON
The husband relied upon:
(a)(Amended) Initiating Application filed 8 April 2024;
(b)His affidavit filed 8 April 2024;
(c)Affidavit of Mr Q filed 1 December 2023;
(d)His Financial Statement filed 6 November 2024;
(e)Affidavit of Mr R filed 6 November 2024;
(f)Family Report of Ms P dated 24 May 2023;
(g)His Case Outline filed 8 November 2024;
(h)His written submissions in reply filed 4 December 2024;
(i)His written submissions in reply (to the wife’s submissions filed 14 March 2025) filed 21 March 2025.
The wife relied upon:
(a)Her affidavit filed 2 December 2023 (and exhibits referred to therein);
(b)Her affidavit filed 7 September 2024 (and exhibits referred to therein);
(c)Her Financial Statement filed 29 February 2024;
(d)Her Amended Case Outline filed 6 November 2024;
(e)Her Balance Sheet filed 10 November 2024;
(f)Her written submissions filed 27 November 2024;
(g)Her further written submissions filed 14 March 2025.
The following documents became exhibits:
(a)Exhibit A: The wife’s 12 volumes of exhibits;
(b)Exhibit B: Bundle of the husband’s tax returns;
(c)Exhibit C: Affidavit of the wife filed 12 September 2022;
(d)Exhibit D: Wife’s Further Supplementary Tender Bundle;
(e)Exhibit E: Family Report of Ms P filed 13 June 2023;
(f)Exhibit F: S Bank statements produced by the wife and a Westpac statement;
(g)Exhibit G: Summary of historical valuations;
(h)Exhibit H: Pages 11 to 12, 68 to 79, 90 to 141 of the husband’s Tender Bundle;
(i)Exhibit I: Husband’s Final Balance Sheet and related summary;
(j)Exhibit J: Wife’s Tender Bundle containing 102 pages including a two-page index.
PARENTING
Proposals
The mother sought orders as set out in her Case Outline filed 6 November 2024, inter alia, that she have sole parental responsibility for the child, and that the child live with her and spend time with the father four nights per fortnight and half school holidays in accordance with the existing interim orders.
The father sought orders in accordance with his Case Outline filed 8 November 2024 that the parents have equal shared parental responsibility; that until reaching the age of 16, the child live with the mother and spend time with the father five nights per fortnight and half school holidays; and upon reaching the age of 16, that the child live with and spend time with each parent in accordance with her wishes.
Evidence
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact, the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence of the parties relevant to the Court’s determination will be considered in this section and whilst addressing the section 60CC considerations (i.e. section 60CC of the Family Law Act 1975 (Cth) (“the Act”)) (see below). In the event of any conflict between the evidence in this section and evidence referred to under the Court’s discussions under section 60CC, the latter evidence shall take precedence.
Evidence of the father

The Court does not propose to set out the entirety of the father’s affidavit and oral evidence.
The father stated that he wants Y to attend her current school and he will pay his share of the school fees.
The father stated he has been paying for this child’s school fees through the Child Support Agency.
The father stated that in June 2024 he had cancelled eight nights to be spent with Y because he had gone to Town T. He agreed that on about late 2023 he was supposed to pick up Y for the start of the school holidays and that he had changed the pickup date to the following Sunday. The father agreed that in late 2023 he travelled to the UK for about five weeks for a sports tour with a friend and during that time he missed out on spending time with Y. He agreed that in late 2022 he had gone on an overseas trip and missed four nights to be spent with Y.
The father stated he wanted to spend five nights each fortnight during school term times with the child Y because he believes that thereby he will become further involved with her life, including her education and extracurricular activities.
The father stated that he had only attended one session of a court directed Keeping Contact Program.
In terms of communicating with the mother, the father stated that over the last 12 months he had conducted only email communication with her. He stated that there had been no face-to-face or telephone communication with the mother. He stated that this communication had been non-conflictual. It was put to the father that his last email communication with the mother relating to the child Y was in May 2024 which he did not dispute.
The father stated that he was aware of no major decision to be made which was looming for the child Y.
The father stated that he was only a social drinker of alcohol. He stated that he does not have a problem with alcohol.
Evidence of the mother
The Court does not propose to set out the entirety of the mother’s affidavit and oral evidence.
The mother stated, in relation to co-parenting, that she was very flexible. She stated that she could not work with someone (the father) who blocked their phone on her since separation. She stated that she sends constructive emails to the father. She stated that sometimes her emails were a bit impassioned and some of her emails to the husband were unhelpful. She later stated that the father’s emails to her were often not constructive. She stated that communication between herself and the father had completely broken down, and she has to go around him.
The mother stated that the eldest child X had decided to live with the father in about early 2024 when he started work. She stated that the eldest child had not spent any time at her house since this date. The mother stated that she rings and texts this child weekly.
The mother stated that the father was the relaxed parent and gave as an example of the father offering the children tickets to a sports match. She also stated that he did not encourage the children’s homework and he had a cavalier attitude towards parenting. She stated that the children love spending time with him due to this attitude.
The mother stated that the father lived like a bachelor during the marriage. She stated that he went off and did his own thing a lot of the time. He attended sports matches every weekend. He went to the pub. She agreed in summary that she held a very negative view of the father’s parenting capacity.
The mother stated that sometimes she grumbles about the father in the presence of a child. For example, if she was angry the father wouldn’t pay for a pencil, the children would know she was angry. She stated, in this context, that she was honest with the children and she would say that the father should pay for an item. She stated that her behaviour in this regard did not undermine the youngest child’s relationship with the father because this child loves the father unconditionally.
The mother stated that in Terms 1 and 2 in 2020 the children spent time with the parties on an equal time basis.
The mother stated that on Tuesdays and Thursdays she might be working in the office. She left her office (in the city) between 4.00 pm and 5.00 pm to go home. It took her about half an hour to get home. She stated that she worked three days at home.
The mother stated that she enrolled the youngest child at J School because the youngest child wanted to go to that school. She stated that she had been aware that the father opposed that school for this child and had proposed other schools. The wife admitted to presenting an enrolment application for the child’s school in which the wife had, inter alia, inserted a false signature for the husband. The wife admitted that significant pieces of information in the application were “made up” by her and that she had not sought the husband’s consent in relation to the application.
The mother stated that possible looming major decisions to be made for the child Y were overseas travel (for example, if she wished to become an exchange student overseas for a period) and orthodontic treatment. She stated that the former issue, overseas travel, was presently not an issue to be decided upon.
The mother stated that she would need a court order that she provide certain information to the father because when she does send information to the father it goes nowhere.
Family Report
The Family Report writer was forensic psychologist, Ms P. Her Family Report is dated 24 May 2023 (Exhibit E). She interviewed the family on 15 May 2023.
The Family Report was prepared before the eldest child turned 18 and therefore refers to “the children” instead of “the child”.
The Court does not propose to set out the entirety of the Family Report.
Under the heading “Parenting strengths and weaknesses of the parents from the perspective of the father”, the Family Report writer said:
118.The Father did not believe that his lack of communication with the Mother disadvantages the children. He provided a narrative that because he and the Mother do not agree on many issues that limiting communication is method for limiting conflict/dispute. He provided opinion that the Mother and he fail to reach consensus over most issues, he attributed this to Mother being inflexible and not accounting for his opinion. He felt that limiting communication between them to infrequent emails over issues directly affecting what occurs in either household i.e. time spent arrangements was the best way to maintain harmony.
119.The Father was not able to offer solution as to how shared decision making for the children would be achieved, as per his proposal, given that he is reluctant to communicate with the Mother. He referred to historic decisions such as choice of [Y]’ school as being solution in that if the Mother had a preference which he did not agree with she would be responsible for funding such a decision. He believed that major or important decisions such as health care etc. would be agreed upon because they were issues that were clearly in the best interests of the children.
Under the heading “Parenting strengths and weaknesses of the parents from the perspective of the mother”, the Family Report writer said:
179.The Mother advised “He pays child support but I pay for everything. I am angry he won’t buy even a pencil for them. The children know I’m angry and under financial stress”. When asked for further detail the Mother advised “I wouldn’t say angry”. When asked what effects there might be on the children knowing of her stress the Mother advised “They might see him as inadequate. I don’t want that but they need to know”.
180.The Mother felt that she had been required to make major decisions for the children because the Father had failed to do so. She advised “Some one had to make the decisions. Someone had to step up”.
181.The Mother provided an ambivalent opinion regarding the children’s need to have a relationship with their father “They need to see their Dad, to have a relationship with him. Boys need a male figure”. However the Mother also advised “[Mr Reynard] has toxic masculinity”. She opined that she “Can’t think of any qualities that he offers as a parent”.
Under the heading “The children”, the Family Report writer said:
213.Both children tended to describe their mother as the organised and efficient parent whilst they see their father as being more laid back and ‘fun’. They appeared to value the relative attributes of each parent.
214.Neither child seemed to seek guidance or approval from their parents during group observation. Their interactions impressed as natural, warm and reciprocal.
215.It was noted that the Mother made several negative comments about the father or his level of co-operation during joint observation. The children did not acknowledge those comments.
216.The Father did not make negative comments about the Mother and tended to keep the tone of conversation lighter and more neutral, focusing on happenings and activities.
With respect to her interview with the child Y, the Family Report writer said:
236.[Y] advised she did not know why she was involved in the current assessment but appeared accepting of involvement as many children who have been interviewed or involved in family court proceedings do.
237.At the time of assessment [Y] was 12 years […] old. She presented as slightly built child whose appearance and social bearing was commensurate with her age.
238.She engaged well, though does appear to be somewhat shy. She responded positively to the use of humour and engaged in informal conversation more easily as the interview progressed.
239.[Y] advised she currently attends the [J School] in [Suburb U] and is in Year 7. She advised she likes the school and feels comfortable there. Interestingly when engaging in informal discussion about her school [Y] spontaneously began talking about how her school offers “more opportunities”. [Y] did not refer to comparison schools but spoke with certainty about the superiority of her school in manner (using language) which suggested she had adopted someone else’s perspective on the school. She discussed “opportunities in Arts, Drama, Science, Languages and Cultural Diversity” using lexicon which was dissimilar to her other conversation. Several times [Y] made references to things or used words that she could then not expand on.
240.Generally however, [Y]’s communications appeared unaffected by external influence. She advised she enjoys sport and nominated she is a very good runner. She also enjoys technology subjects.
241.[Y] provided the names of her closest friends at school and advised they are nice girls.
242.When asked whether she socialises with her friends outside school she responded in the affirmative and spoke about going shopping and attending cafes with her friends. [Y] advised she does not do sleepovers, however. She reported this was because the friends with whom she socialises “only met them this year and one of them is a boarder”. [Y] did not make reference to her nocturnal enuresis and did not take opportunity to discuss this problem when given opportunity to do so. The issue was not pressed as [Y] impressed as sensitive around this.
243.[Y] offered that she lives with “Mum in [Suburb V] and Dad in [Suburb W]”. When she spends time with her father at his home, her father picks her up from school in his car.
244.She advised that currently she lives with her father every second week on Thursday, Friday, Saturday and Sunday before returning to school on Monday after which she lives with her mother. [Y] advised she “likes” the current living arrangements. She did not propose any changes to those arrangements.
245.According to [Y], the current arrangements allow for her father to “take me to sport and school. He is good at it and doesn’t forget”.
246.[Y] initially advised that there “isn’t stress about not having the things she needs” at either her mother or father’s homes. Later in the interview [Y] posited that her father’s home is too far away from school to spend more time there and that she has lots of “stuff” she needs to transport between households however [Y] also advised that she is “pretty organised” which helps in living between two households.
247.When living at her mother’s, she shares a bedroom with her mother. [Y] advised she doesn’t mind this and that she “doesn’t care about not having her own room at Mum’s”, “I have my own room at Dad’s, it’s good”.
248.[Y] reported that Dad has a girlfriend called [Ms Z]. She has two pets and a son who [has a disability]. He is nice”. According to [Y], [Ms Z] was nice to her and there is nothing “scary” about [Ms Z].
249.[Y] nominated that she likes that her father is funny and that he plays with her a lot. She likes visiting the shops with her father. The only negative thing [Y] could notice about living at her father’s, was that she is required to get up earlier in the morning for school because it is further away, “but that’s not a real problem”.
250.At her mother’s, [Y] enjoys being closer to her school. She likes that her friends live nearby so that she can “hang out with them”.
251.[Y] advised that she gets on with her brother “OK, sometimes”. She described a normal sibling relationship with [X] when this was further explored.
252.[Y] reported that both her parents are good to her and she feels well cared for in both households.
253.Of the two children, [Y] impressed as being the child who was more definite about living arrangements, and not changing the current arrangements. It is noted that [X] feels more freedom that [Y], possibly because of his age to assert his preferences and more ability to move between the households as he pleases, though he does tend to follow the same routine as [Y].
The Family Report writer opined:
315.The Father expressed concerns surrounding the Mother making decisions and going forward with those decisions without consulting or considering his opinions. He spoke of the Mother forging his signature for example when they could not agree on the school [Y] would attend. These are serious allegations which if true would go some way to explaining the Father's lack of trust in the Mother. The allegations if correct would also indicate the Mother was attempting to bypass the Father's involvement in [Y] school.
316.It could be argued that by engaging behaviour which controls engagement potential for the children's schooling the Mother has effectively made it more difficult for the Father to be an equal part of education involvement and decision making.
…
326.To some degree, the Father also appears to have developed a quarantined relationship with the children, in which the Mother is separate to the family relationships he holds with the children. He impressed as having done so or having developed this approach to limit his exposure to conflict/dispute with the Mother.
327.Although clearly disliking and resenting the Father, the Mother has continued to attempt to communicate with the Father over everyday issues relating to the children. This was considered reflective of the Mother's need for anxious control over her environment and situation. Separate parenting, whilst not optimal, is achievable for children of the age of the subject children when there are no clear indicators of risk of harm.
328.Both parties appeared to be committed to their respective relationships with the children. However they impress as having low ability or willingness to communicate with each other towards resolving difficulties which may arise. On the basis of this assessment, it is suggested that this situation is unlikely to improve substantially towards amicable and co-operative co-parenting.
The Family Report writer gave oral evidence. The Court does not propose to set out the entirety of that evidence.
The Family Report writer stated that should the child Y now spends five nights each fortnight with the father during school term times that should not negatively affect the child’s relationship with the mother because her relationship with the mother is secure.
The Family Report writer was asked whether the father having cancelled about 25 nights to be spent with the youngest child for travel reasons disqualified him in his application for five nights each fortnight during school terms, to which the Family Report writer responded in the negative. In this context, she stated that relevant factors which might adversely affect the child when cancellations occur is the amount of notice given for the cancellation, and whether the cancellation was frivolous without adequate explanation.
The Family Report writer was asked whether any issue might arise in increasing the child’s time with the father to five nights each fortnight in circumstances where the youngest child was happy at school and thriving, prospectively her social life will develop, and all her schooling was in one area of Sydney (Region AA). The Family Report writer replied that she could not see a significant difference to the child if an extra night after school was afforded the child with the father. She later stated, in response to a question from the Court, that she could not see any significant benefit to the child in spending such extra time with the father.
The Family Report writer stated that she would attribute significant weight to the youngest child’s views, expressed to the Family Report writer in mid-May 2023, that she likes the current living arrangements (four nights each fortnight with the father during school term times) and did not propose any changes to those arrangements.
The Court accepts the evidence of the Family Report writer, subject to any view of the Court to the contrary, whether express or implied, as discussed below in relation to s 60CC of the Act.
Relevant legal principles
Section 60B of the Act sets out the objects of Part VII of the Act relating to children and the making of a parenting order.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
The Court must have regard to the factors outlined in section 60CC of the Act before determining what is in the child’s best interests. The matters to consider are set out in subsection (2) of section 60CC and, if the child is an Aboriginal or Torres Strait Islander child, the Court must have regard to the matters set out in subsection (3).
The Court, or any other person cannot require the child to express his or her views in relation to any matter: section 60CE. Although, the Court can have regard to any views that are expressed by a child where such views are contained in a report given to the court: section 60CD(2)(a).
When making a parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child the Court may provide for joint or sole decision-making in relation to all or specified major long-term issues: section 61D(3).
The best interests of the children
Section 60CC considerations
(2)(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);
One significant parenting dispute between the parties is whether the child’s time with the father should increase from four nights each fortnight to five nights each fortnight during school term times.
The parties’ level of communication regarding co-parenting issues on a day-to-day basis is far from optimal. The parties only communicate by email. The father often chooses not to respond to the mother’s emails because he regards many of them as being merely informative and not seeking his response. For the mother’s part, she regards the father’s email communications with her relating to parenting issues as being unhelpful. There is a real prospect, should the Court increase the child’s time with the father to five nights each fortnight during school term times, that both parents will be required to communicate with each other regarding day-to-day matters touching the child to a greater extent than what they need to do now; this prospect carries the real risk of inadequate communication between the parties resulting in conflict. Such conflict, to which the child could well be exposed, would be to her emotional detriment.
(2A)(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)

The Family Report writer records that each party alleged certain acts of family violence against the other party. There was no significant cross-examination on this topic. Significant denials were made by the father. The Court is unable to determine these factual allegations. In any event, the Court would assess that family violence issues do not loom as a significant issue or risk in the resolution of the parties’ competing parenting proposals.
(2A)(b) any family violence order that applies or has applied to the child or a member of the child’s family
Not applicable.
(2)(b) any views expressed by the child;
The Court refers to the views of the child expressed to the Family Report writer regarding parenting arrangements. At the time of the interview between the child and the Family Report writer that child was aged 12 years three months.
The child told the Family Report writer, inter alia, that she was content with the current parenting arrangements comprising, in particular, her spending four nights each fortnight during school term times with the father. The father had told the Family Report writer that the child’s school was around 1.5 hours from his home. The child had told the Family Report writer at one point that the father’s home at Suburb W was too far away from her school to spend more time there and that she has lots of stuff that she needs to transport between households. The Court observes that this child is now in Year 9 and her academic requirements will increase as school progresses.
This child also told the Family Report writer that the only negative thing that she could notice about living at the father’s home was that she was required to get up earlier in the morning for school because it was further away; the Court observes that this issue will worsen for the child if her time with the father is increased, as the father proposes, because she would then be required to get up earlier for school at the father’s home on three mornings each fortnight rather than two mornings (i.e. Friday morning, Monday morning and Tuesday morning).
Further, the child told the Family Report writer that she enjoys living closer to her school because she likes the fact that her friends live nearby so she can spend time with them. If she was to spend increased overnight time at her father’s home, as proposed by the father, she would be able to spend less time with her friends; this issue will become more important for the child as she further matures. Further, the child will be better able, practically, to attend more extra-curricular activities whilst living with the mother.
In the circumstances, the Court would attach significant weight to the child’s views as expressed to the Family Report writer, and discussed above.
(2)(c) the developmental, psychological, emotional and cultural needs of the child;
The Court refers to the Family Report in this context. The Court also refers to its discussions above under the s 60CC safety consideration relating to minimising the risk of the child being exposed to conflict which could potentially be damaging for her emotional health. The child is progressing well under the current interim parenting arrangements.
Presently, under the current interim parenting arrangements, the father, when the child is spending time with him, is able to contribute towards her educational, sporting and extracurricular activities. It is quite possible that if the child was to spend an extra night each fortnight with the father during school term times that the father may be able to further contribute towards at least the child’s educational activities and possibly towards her sporting and extracurricular activities. However, in the view of the Court, this possibility is outweighed by the other s 60CC considerations discussed, relevantly, above and below.
(2)(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;
The Court would assess that both parents have such capacities in relation to the child.
(2)(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;
The child will benefit from the continuation and maintenance of her meaningful relationships with each parent. Should the child continue to spend time with the father under the current interim parenting arrangements her meaningful relationship with the father can be maintained. The evidence of the Family Report writer is consistent with this view.
(2)(f) anything else that is relevant to the particular circumstances of the child.
The father sought a final parenting order that upon the child reaching 16 years, she should live with and spend time with the parties in accordance with her wishes.
It seems to the Court that this proposed order is more theoretical than based upon any significant evidence before the Court suggesting that this child may well want to change her living arrangements when she turns 16 years. Again, this child had told the Family Report writer that in effect she is quite content with her parenting care arrangements, and which includes primarily living with the mother. The Court observes that the eldest child decided to live with the father before he turned 18 which occurred. The Court can see no significant reason why such proposed order would be in the best interests of this child.
(3)(a) the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture
Not applicable.
Parental responsibility
The wife seeks an order that she have sole parental responsibility for health and educational decisions for the child. The husband seeks an order for equal shared parental responsibility for the child.
Again, the parties’ co-parenting relationship is far from optimal. Their communication regarding parenting issues is only by email, and again, the father does not respond to every email the mother sends him.
As to potential looming major decisions to be made for the child, the father could not identify any at this point. The mother, for her part, stated that the child requires orthodontic treatment, and later on in her schooling life may wish to travel overseas to do, for example, an exchange student activity, and she may require a passport.
The parties have agreed at this final parenting hearing that the child continue to attend her present school, noting that previously the father had wished for the child to attend another high school.The Court observes that previously the eldest child had undergone certain orthodontic treatment.
The Court refers to the husband’s belief, as stated to the Family Report writer, that major or important decisions, such as health care, would be agreed upon because they were issues that were clearly in the best interests of the children.
The child Y has about four years left until reaching adulthood. It is a very serious matter to exclude a parent from decision making in respect of major decisions affecting a child. In Lansa & Clovelly [2010] FamCA 80, Murphy J stated:
[148]The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
[149]If that is the meaning of the expression, then, in my view, a Court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U [2002] HCA 36; (2002) 211 CLR 238).
On balance and taking into account the above discussed matters in particular, the Court is of the view that there is a real prospect that the parties will be able to reach agreement in relation to major decisions affecting the child’s care, welfare and development, in a timely fashion and without significant conflict. Again, prospectively at this time, there would appear to be limited major decisions to be made for the child.
The child loves each parent. She has a meaningful relationship with both parents.
The child should have the benefit of having each parent making a contribution into major decisions affecting her; it is supportive for the child’s loving views of each parent that she observe each parent contributing in the making of major decisions for her.
It will be in the best interests of the child that the parties share major decision-making responsibility for her.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view that it will be in the best interests of the child to make the following final parenting orders:
1.The mother and father shall have joint decision making authority for the long term issues for the care, welfare and development of the child, Y born in 2011 (herein referred to as “the child”).
2.The child shall live with the mother.
3.The child shall spend time with the father as follows:
(a)During school terms from after school on Thursday until the commencement of school on Monday and each alternate week thereafter.
(b)For one half of each school holiday period being the first half in years where the holidays commence in odd numbered years and the second half in years where the holidays commence in even numbered years. The first half of each school holiday period shall be deemed to commence from after school or 3.00 pm on the last day of the respective term and conclude at 6.00 pm on the Saturday that is the closest to the middle of the respective school holiday period. The second half of each school holiday period shall be deemed to commence at 6.00 pm on the Saturday that is the closest to the middle of the respective school holiday period and conclude at 3.00 pm or at the conclusion of school on the first day of the respective new school term.
(c)From 9.00 am on Father’s Day until 3.00 pm or at the conclusion of school on the next day, if the child is not otherwise living with the father on Father’s Day pursuant to these Orders.
(d)On the child’s birthday from after school until 6:30pm if her birthday falls on a weekday and from 10.00 am until 2.00 pm if her birthday falls on a weekend and the child would otherwise be with the mother pursuant to these Orders.
(e)On the Father’s birthday from after school until 6.30 pm if the father’s birthday falls on a weekday and from 10.00 am until 2.00 pm if the father’s birthday falls on a weekend and the child would otherwise be with the mother pursuant to these Orders.
(f)At such other times as may be agreed by the parties in writing.
4.Notwithstanding any order to the contrary, the child shall spend time with the mother:
(a)From 9.00 am on Mother’s Day until 3.00 pm or at the conclusion of school on the next day, if the child is not otherwise living with the mother on Mother’s Day pursuant to these Orders.
(b)From 4.00 pm Christmas Eve until 4.00pm Christmas Day in even numbered years and from 4.00 pm Christmas Day until 4.00 pm Boxing Day in odd numbered years.
(c)On the child’s birthdays from after school until 6.30 pm if her birthday falls on a weekday and from 10.00 am until 2.00 pm if her birthday falls on a weekend and the child would otherwise be with the father pursuant to these Orders.
(d)On the mother’s birthday from after school until 6.30 pm if the mother’s birthday falls on a weekday and from 10.00 am until 2.00 pm if the mother’s birthday falls on a weekend and the child would otherwise be with the father pursuant to these Orders.
(e)At such other times as may be agreed by the parties in writing.
5.Changeover shall occur as agreed between the parties and in default at the child’s school on school days and at the front of the property that is the mother’s residence on non-school days.
6.Each party shall advise within 24 hours of these Orders and keep advised the other party of their residential address, contact number and email address, and shall advise the other party within 24 hours of any change to such.
7.Each party shall ensure that the other party is kept informed as a matter of priority of:
(a)Any medical problems or illnesses suffered by the child whilst she is in their care, including but not limited to, notifying the other party by text message as soon as practicable of the child’s admission to hospital.
(b)Any medication which has been prescribed or recommended by a medical practitioner for the child.
(c)Treating doctors and locations of hospital where the child is admitted.
8.Each parent shall provide all necessary authorities to any medical practitioner or facility treating the child so as to cause the release of information about medical care or treatment of the child to the other parent.
9.Each party shall ensure that the child is provided with any medication as required during the time they are living with or spending time with them and shall provide to the other party with written confirmation of the medication, including the name and prescribed amount to be provided to the child.
10.Each party shall be responsible for taking the child to any specialist or medical appointments which are scheduled during their time with the child and to facilitate this order, each party shall advise the other within 24 hours of any appointment being scheduled.
11.The parties are restrained from making critical or derogatory remarks about the other party or members of the other party’s family in the presence of or within the hearing of the child and shall do all things necessary to ensure that no other person makes any critical or derogatory remarks about the other party or members of the other party’s family in the presence of or within the hearing of the child.
12.Each party is restrained by injunction from discussing these proceedings with or in the presence of the child or showing to the child any document connected with these proceedings.
13.In the event that the father is unable or unavailable to care for or supervise the child during the time that she spends with him pursuant to these Orders, the father shall notify the mother in writing of his unavailability as soon as reasonably practicable.
14.In the event either party wishes to travel interstate within Australia with the child then the party proposing such travel shall notify the other party no less than 14 days prior to the departure date of such proposed travel and shall provide to the other party at that time particulars including the proposed itinerary, the address of where the child will be staying and proposed period of travel.
15.The child undertake her secondary school education at J School commencing from 2023.
16.Each parent be at liberty:
(a)To communicate directly with the school and obtain copies of any documentation or information that is ordinarily available to parents; and
(b)To attend any school events and extra-curricular or sporting events to which parents are ordinarily invited.
17.The mother be at liberty to provide a copy of these Orders to J School.
18.The mother be identified as the sole billing parent for the payment of school fees to J School.
PROPERTY
Proposals
The husband sought orders, inter alia, that the wife pay to him $1,102,000 by way of property adjustment.
The wife sought no orders for property adjustment, contending that in all the circumstances it would not be just and equitable to make any property adjustment order under s 79 of the Act.
The Court acceded to the wife’s application to file written closing submissions in lieu of oral submissions. Those written submissions, filed 27 November 2024, did not contain any submissions in the alternative in the event that the Court were to find that it is just and equitable to make a property adjustment.
By way of email through its Associate on 28 February 2025, the Court provided the wife with a further opportunity to file written submissions addressing this issue and related issues:
…
Noting that the wife’s primary position is that no property orders be made, the wife is invited to:
1.Make any submissions in the alternative, in the event that the Court was to determine that it is just and equitable to make orders under s 79 of the Family Law Act;
2.In the event that the Court orders a payment of money from the wife to the husband, to submit as to how such an order should be given effect. For example, if an order were to be made for the sale of a property in the wife’s name in default of such payment, which property should be the subject of any default sale order and what mechanisms should apply to such sale?
3.In the circumstances of a default sale of a property in the wife’s name, as outlined above, to submit as to any provision that should be made in the orders to account for any Capital Gains Tax implications of such sale.
…
The wife filed further written submissions on 14 March 2025. Insofar as the wife directly addressed the above points, she submitted, inter alia, that, in the alternative, a just and equitable result would see the husband make a cash payment to her, of which a “conservative estimate” would be an amount of $275,000.
The wife further submitted:
Your email Point Numbers 2 & 3 when read together with your email Point Number 1 seem to amount to an invitation to me to upend my case before the Court and make up a case for the Husband to be paid money from me. It should come as no surprise that I consider this invitation to be absurd and it is declined.
Accordingly, there is no change to my orders sought. You can proceed to adjudicate the property case currently before the Court which is unchanged.
As to the Court’s request in point 2 above relating to the possible sale of a property in the name of the wife, the wife referred to the sale of the property in her name at Suburb BB and referred to certain payments from the sale proceeds of that property and the retention of certain funds thereafter by the wife. She had referred to the Suburb BB property’s valuation at $650,000, with anticipated payments from the sale of this property being mortgage loans in the sum of $386,908, $30,000 for repairs, $30,000 for payment of a strata levy, repayment of an alleged loan from her sister for $30,000, leaving net $173,092 (and less payment of all other costs and expenses associated with the sale and any other outgoings due in respect of that property).
She stated further, “Should any sizeable financial obligations of any kind arise in the future then I would have to seriously consider selling my K Street unit, which would represent the third property I have had to sell during the course of these proceedings.”

As to the Court’s request in point 3 above relating to Capital Gains Tax, the wife submitted, inter alia, that, “My 2024 Tax Return… records my carry forward Net Capital Losses as $171,931. I will be able to use these capital losses to offset my capital gain on the sale of my C Street property. I also expect they will offset at least part of my expected capital gain on the sale of my Suburb BB property, subject to the advice of my accountant.”
Despite the Court’s above email request, neither party provided to the Court a suggested mechanism, by way of orders, to deal with any Capital Gains Tax payable by the wife should a default sale of property in her name be ordered.
Evidence
The Court has considered the documentary material relied upon by the parties discussed above, the parties’ oral evidence, the oral evidence of the husband’s father, and the Court has considered all the parties’ submissions in relation to the evidence including submissions as to the reliability and creditworthiness of each of the parties. The standard of proof applied by the Court in respect to the evidence is the balance of probabilities. The Court does not propose to set out the entirety of the evidence. Relevant evidence relating to the issues to be determined will be set out below and under the headings, “Balance sheet”, “Section 79(2)”, “Contributions”, “Section 75(2)”, and “Justice and equity”. Where there is any conflict between the evidence referred to below and in those sections of these Reasons, the evidence under the headings “Balance sheet”, “Section 79(2)”, “Contributions”, “Section 75(2)”, and “Justice and equity” shall take precedence.
The husband, in oral evidence, presented as a straightforward and honest witness. The Court rejects the wife’s submissions relating to what she contended was the husband’s lack of creditworthiness. The wife’s cross-examination of the husband was aggressive and the husband usually sought to give responsive answers to questions asked of him.
The wife, in oral evidence, was determined to give evidence that supported her position. This led to the wife often interrupting the husband’s solicitor-advocate and giving unresponsive answers. The Court intervened on occasion to remind the wife to listen to the question in full before answering the question.
An example of the wife’s determination to give evidence that supported her position was when it was put to her that the husband would pay for some living expenses and the wife would pay for others, with the wife initially answering in the negative. It was only after the wife was reminded that the husband paid for utilities that the wife resiled from her initial answer.
Another example was when it was put to the wife that the husband occasionally gave her cash for certain living expenses, which the wife denied. When the wife was pressed with this proposition, she changed her evidence acknowledging that long ago in the relationship the husband used to give her cash payments for nanny fees.
The wife admitted to presenting an enrolment application for the child’s school in which the wife had, inter alia, inserted a false signature for the husband. The wife admitted that significant pieces of information in the application were “made up” by her and that she had not sought the husband’s consent in relation to the application.
The wife admitted to lodging redraw applications to B Company where she had, inter alia, “made up” the husband’s signature without the husband’s consent.
The Court ultimately had a concern as to the reliability of the wife’s evidence, when in conflict with the husband’s evidence, particularly where it was not supported by independent documentary evidence.
The husband’s evidence
The Court does not propose to set out the entirety of the husband’s affidavit and oral evidence.
The husband stated that during the parties’ relationship he made about six rental payments for the parties’ residential accommodation with the wife usually making the rental payments.
The husband stated that he had a novated car leased through his work which car he lent to the wife to use during their relationship.
The husband stated that he did go to Melbourne to watch sports during the relationship. He stated that he stayed at his brother’s place when he went there.
The husband stated there were a number of hotels that he frequented during the parties’ relationship to socialise. He stated that on Thursday nights the family used to attend a restaurant.
The husband stated that on occasion he gave cash to the wife in relation to the children’s extracurricular activities.
It was put to the husband that it was only during the course of these proceedings that the wife had seen the husband’s bank statements, to which the husband denied and referred to when the wife was seeking to borrow monies through B Company in early 2019.
The husband denied that he had only told the Child Support Agency of his redundancy payment after the wife had lodged a change of assessment document with them.
The husband stated that he hasn’t completed his 2024 income tax return because he has a capital gain and he does not have to lodge his tax return until 2025.
The husband stated that he pays monies for the children’s food, clothing, their activities and holidays, and he lends Y monies when she requires it.
The husband agreed that he had been unemployed for two years following his redundancy.
The husband agreed that as at 7 April 2023 he was in arrears of child support.
The husband was questioned as to the purchase price of two apartments that he purchased at Suburb DD in mid-2001. It was put to the husband that the purchase price was not $199,000 for each apartment but rather it was $370,000 for each apartment, to which the husband denied. In this context, the husband referred to his sale of one of the apartments in 2012 for $285,500; he stated he had made a capital gain and referred to his 2013 tax return.
In relation to the above sale, the husband stated that he did involve the wife in his decision to make that sale. He stated that he had told the wife that it was more beneficial if he sold this apartment. He stated that the wife had told him that he would be a fool to sell any property. The husband stated that having received net proceeds of sale in the sum of $271,154 he had then reduced the mortgage loan balance by some $270,873. He stated that the effect of reducing the mortgage loan balance was that he then received a reduced mortgage loan rate which benefited the family.
The husband stated that whilst the wife paid the parties’ rental accommodation expenses, he paid for the majority of the groceries, all the utilities, a post office box in the city, and he paid for a novated leased car that the wife used. In relation to that car, he stated that the wife paid no petrol nor maintenance costs. The husband stated he paid for dining, the parties’ annual holidays at Christmas time for 4 weeks away, he paid for his share of the children’s school fees and preschool fees, he paid for the children’s incidentals like their running shoes, occupational therapy, he paid $5,000 towards orthodontic expenses, and he paid for the eldest child’s asthma treatment.
The husband agreed that between 19 June 2013 and 18 June 2024 he experienced a $1,000 drop in his fortnightly net pay. He stated that this drop in pay coincided with his decision to lease a car for his parents. He stated that in effect he did not experience a net drop in his earnings. He stated that his father paid him $681 per fortnight for the cost of the leased car that he arranged for them.
The husband was questioned in relation to the Reynard Family SMSF. It was put by the wife to the husband that she was a trustee only of this superannuation fund. The husband stated that it was the intent of this superannuation fund to provide a benefit to the family.
The husband stated he had made a mistake in relation to one of his earlier affidavits, in August 2021, in which it had been stated that all his investment properties had been owned at the start of the relationship. He attributed this mistake to the error of his former solicitor.
The husband was questioned in relation to the sale of one of his investment properties at EE Street in 2024. He stated that the sale of this property had occurred after his trial affidavit filed 8 April 2024. He agreed that a sales agreement had been signed in relation to this property in late 2023. The husband stated that the net proceeds of sale of this property was used to discharge two mortgage loans, namely one for this property, and for another mortgage loan for a property at FF Street, and to pay for conveyancing, solicitor and agent’s fees. He stated (in answer to the wife’s question) that he regarded this property at EE Street as family property. He stated that his decision to sell this property was because he needed funds to survive and to live. He stated that he had also paid about $70,000 in legal fees to his solicitors.
The husband stated that he had suspended a course that he was studying. He started this course during Covid. He has two subjects yet to complete in this course. He stated that he will possibly complete this course when Y can care for herself which would be perhaps in four to five years’ time.
The husband stated that due to his investment property portfolio he cannot obtain Centrelink benefits. He disagreed that he had not applied for employment since being made redundant from G Company; in this context he stated that no one wants to employ a 60-year-old. He stated that presently he is a transport worker. He stated that last month he worked no days. He stated that he does not know what the future holds for him in terms of employment. He later stated that he last worked a shift for GG Company prior to 1 July 2024.
It was put to the husband that he never showed the wife any of his tax statements during the marriage, to which he denied.
The husband denied that it was his strategy during the relationship to be positively geared with his investment properties.
The husband stated he was retired. He stated he can now access his superannuation. He stated that on Mondays and Fridays he attends a course; he stated this was a hobby course.
It was put to the husband that the wife never spoke to him about her property affairs, to which the husband denied. He stated that the wife had renovated a property at HH Street and that the wife had asked him to inspect a conduit that builders had installed at this property and advise on its legality. The husband drove to this property and looked at the conduit and advised the wife, inter alia, that it was illegal.
The husband stated that the wife ran the parties’ marriage like a business but he ran it like a marriage.
It was put to the husband that he knew that the wife did not involve him with her purchase of the property at K Street, including obtaining tenants. The husband stated that he was involved indirectly and explained that whilst the wife was busy organising mortgages and meeting with people, he was minding the eldest child. He stated further in this context that whilst the wife was paying for the mortgages he was paying for the groceries, utilities, etcetera.
The husband agreed that it was in 2021 that he first found out what real estate properties were in the wife’s superannuation fund.
The husband stated that he did not regard himself as a risk averse property investor.
The husband agreed that the wife liked to negatively gear her investment properties.
The husband denied having undisclosed income.
The husband denied that his estimates of household expenses that he paid for during the relationship, as described in paragraph 22 of his affidavit filed 8 April 2024, were inflated and made up.
The husband denied that the wife had incurred the majority of expenses for family holidays. In this context, he stated that the wife worked in an industry where there were no holidays, having stated that the wife was only up with the family on the annual holiday for a week.
The husband denied that he ceased grocery shopping and passed on the obligation to the wife. He stated that he had paid for the groceries by paying monies into the wife’s bank account. He stated that the wife had also taken cash from him for groceries. It was put to the husband that he had provided about $300 per fortnight for groceries, to which the husband responded that it was $300 per week that he had paid for groceries.
It was put to the husband that any re-occurring expenses paid by the husband were confined to paying nanny and preschool fees, to which the husband denied.
The husband was questioned by the Court as to his agreement with the wife to become a co-borrower in relation to the wife’s application to B Company for finance. He stated, inter alia, that he provided documents such as his payslips and rental statements, and he had signed forms but had provided no security to that bank.
The husband denied having had an arrangement with the wife where he had pre-signed a form for her to fill out and send to B Company, who would then ring both of them to ask for confirmation. The husband stated that the B Company had never rung him about the wife’s proposed redraws. He agreed when the wife put it to him that she had been committing a fraud against a financial institution.
The husband stated that his redundancy payment was paid into one of his CBA accounts.
The husband stated he had not signed a redraw form for $25,000, pursuant to an interim order of the Court, on the advice of his former solicitor.
Evidence of Mr Q, the husband’s father
This witness swore an affidavit filed 1 December 2023 and gave brief oral evidence. The Court does not propose to set out the entirety of that evidence.
The witness stated in his affidavit that in mid-2010 the husband had approached him for child care related assistance for three weeks because the husband was proposing to go on a trip to Country JJ for three weeks. The husband and the witness had a conversation about the assistance to be provided. The husband told the witness that he did all the housework and usually cooked. The witness and his wife attended the parties’ residence during a three-week period several times a week and always performed housework besides care of the eldest child. The housework included cleaning the house and washing clothes.
The witness stated that in 2014 the husband had enlisted his assistance again because the husband was going on a trip to Country KK for three weeks. He stated that in 2018 the husband had enlisted his help because he was travelling to Country LL on a four week trip. On this occasion the assistance was five days a week and the witness and his wife did the housework as usual with the wife not getting home until after 7.00 pm from her work.
The witness stated that from 2005 until 2015 he and his wife provided Christmas holiday accommodation for the parties and children. He stated he did not charge the husband any money. He stated that usually the husband and the children came on these holidays at Christmas but the wife usually stayed working in Sydney, with the wife occasionally attending on weekends only.
The witness stated that between 2012 and 2018 each year he and his wife gave a total of $15,000 in cash to the husband to share with his family at Christmas in lieu of buying presents.
The witness stated that in about mid 2019 he had a conversation with the wife, when the wife said to him that the parties had a lot of debt and it was hard to keep up the payments. The witness stated that he said to the wife that maybe the parties should think about selling something and reducing their debt, following which the wife immediately burst into tears and she was inconsolable.
The witness stated that during the parties’ marriage until the time of separation, there were many occasions, too numerous to recall specifically, when he and his wife were with the husband and the children and the husband was undertaking all the care of the children and their needs. He stated that the wife very rarely showed up. He stated on a few occasions the wife would be with them but it was still the husband who did everything. He stated that the wife mostly chose to go to work, and the husband was mostly on his own with the children or the children were with the witness and his wife.
In his oral evidence he stated that when he minded the eldest child in mid-2010 he was not sure if this child was still in a cot and stated that he was a baby.
The wife’s evidence
The Court does not propose to set out the entirety of the wife’s affidavit and oral evidence.
The wife stated that when the children were young they were cared for by nannies for certain periods. She stated that the parties equally shared the cost of the nannies. She stated that pre-school fees for X were paid equally by the parties. She stated that the parties each paid half of the children’s primary school fees.
The wife stated that during the marriage, the husband paid for the purchase/lease of a car for family use, the electricity/gas bills, internet and mobile phone plans and family health insurance. She stated that the husband paid for one grocery shop per week.
The wife stated that the husband obtained a car in about 2011 to 2012. The wife stated she borrowed the husband's car to take the children to some of their activities. She stated that sometimes she borrowed his car to drive the children and herself on trips away. She stated that in 2017, she borrowed the husband's car a couple of times to visit her mother in Hospital, shortly before she passed away.
The wife stated that after the parties got married and the husband vacated his house at MM Street, Suburb NN, he decided to redevelop that property. She stated that the husband talked to her about his Suburb NN redevelopment which occurred in 2005 / 2006 not long after they got married and before the children were born. She stated that he demolished the old house and constructed a brick double storey duplex with garages.
The wife stated that the husband created an SMSF during the marriage and involved her in a limited capacity. She stated that the husband gave her paperwork to sign usually around tax time. She stated that at least one time after separation, the husband gave X the signing pages to give to the wife which she just signed as she had done previously.
The wife stated that the mortgage loan on the property at C Street Suburb D VIC (“the C Street property”) was in her sole name until early 2019. After that date it was in the joint names of the parties.
The wife stated that in 2018, she began to consider the idea of refinancing the mortgage loan on the C Street property. The wife stated:
484.I faced increasing expenditure on our growing children including for their learning and development.
485.At the start of 2019, the balance of my mortgage loan with [OO Company] was about $250,000. I contacted a mortgage broker about refinancing.
486.The mortgage broker recommended [B Company] and advised me I would have a better chance of getting loan approval if I could get a co-borrower on the loan.
487.I decided to ask [Mr Reynard] to agree to be a co-borrower on a mortgage loan with [B Company] on condition that I would make all the loan repayments and that he would pay nothing.
488.A tightening in credit regulations around that time made it difficult for me to take out another home loan in my sole name. Because of this I said to [Mr Reynard] words to the effect of "can I put you down as a joint borrower with me on the loan? You will not need to pay anything, I'll be making all of the repayments, it's just to satisfy the bank." He said to me words to the effect of "OK, but I will not be paying anything". As a result, [Mr Reynard]’s name was listed on the mortgage documentation as a joint borrower with me to satisfy the borrowing requirements of the bank. I have been solely responsible for funding the mortgage repayments on the loan from my sole bank account. To this day, [Mr Reynard] has not contributed any money whatsoever to the mortgage repayments on the property.
489. [B Company] approved the mortgage loan held in both our names.

In Petruski & Balewa (2013) Fam LR 116, the Full Court of the Family Court of Australia stated, inter alia:
49.The task of assessing contributions under s 79 of the Act is an holistic one; what is required is to evaluate the extent of the contributions of all types made by each of the parties in the context of their particular relationship (Dickons & Dickons [2012] FamCAFC 154). As was also said by the Full Court in Lovine & Connor and Anor [2012] FamCAFC 168, at paragraphs 40 and 41 such an evaluation “inevitably involves value judgments and matters of impression”, and accordingly it cannot be treated as “a mathematical exercise”.
At about the time of commencement of cohabitation, the husband held the following property:
·Real estate property:
·MM Street, Suburb NN NSW, purchased in 1991 for about $102,000.
·As at cohabitation commencement, the value of this property was $520,000. As at cohabitation commencement, there was no mortgage loan debt on this property, and the Court accepts the husband’s evidence in this regard, including his evidence that by 1998 he had paid off “the property and owned it outright”.
·In 2005, prior to the parties’ marriage, the husband decided the above property at Suburb NN should be redeveloped as a duplex. This construction had been completed in about early 2007. The husband had borrowed about $450,000 from the bank to fund the build. He took short periods off work (using accrued leave) to oversee and project manage the construction of the duplex. After construction, the duplex properties were rented out.
·1 TT Street and 2 TT Street, Suburb DD NSW.
·These two apartments were purchased in about mid-2001. The husband purchased them for $370,000. They were tenanted thereafter. The above Suburb NN property’s equity was used to obtain a loan from AD Bank to fund the purchases. The husband had used his savings to pay for the acquisition costs including stamp duty and conveyancing.
·As at cohabitation commencement, the value of 1 TT Street was $220,000.
·As at cohabitation commencement, the value of 2 TT Street was $240,000.
·1 FF Street, Suburb UU NSW
·This property was purchased in 2002 for about $102,000. It was tenanted thereafter. The above Suburb NN property’s equity was used to obtain a loan from a bank for about $100,000 to fund the purchase.
·As at cohabitation commencement, the value of 1 FF Street, Suburb UU NSW was about $160,000.
The wife submits that as at cohabitation commencement, the husband had a mortgage loan indebtedness to AD Bank in the sum of $1.3 million. In this regard, she refers to the husband’s affidavit sworn 20 August 2021 in which he states at paragraph 13 that he had a mortgage to AD Bank in this amount. In brief cross-examination on this issue, the husband stated that he could not recall stating that at the time of the marriage he had such a mortgage liability with AD Bank.
The Court observes that the husband, in the said paragraph 13, mistakenly states that as at the commencement of the parties’ marriage he owned real property at EE Street, Suburb AB and 2 FF Street, Suburb UU. The Court finds that the husband purchased those two properties in early 2010 and early 2011 respectively, which the wife herself asserts in her evidence.
When the husband purchased those two properties he obtained loans close to their purchase price (purchase prices were $240,000 for EE Street and $162,000 for Suburb UU); thus total loans for the purchase of those two properties were about $402,000. A later Financial Questionnaire of the husband signed 8 February 2022 similarly incorrectly asserts that those two properties were owned by him at commencement of cohabitation and states that his mortgage liabilities were $1.1 million.
The Court has carefully considered this issue of the husband’s likely mortgage indebtedness as at commencement of cohabitation. The husband’s assertions in his affidavit of sworn 20 August 2021 and later Financial Questionnaire that he had mortgage indebtedness of $1.3 million and $1.1 million respectively at commencement of cohabitation are called into question because he mistakenly stated in both documents that he owned EE Street, Suburb AB and 2 FF Street, Suburb UU at this time. This issue is further called into question because when those two latter properties were purchased the husband obtained loans close to their purchase price – about $402,000.
Turning to the likely mortgage loan indebtedness of the husband as at cohabitation commencement, the husband had paid off the mortgage loan debt for the Suburb NN property by 1998. Assuming he borrowed close to $398,000 to purchase the two properties at Suburb DD, when added to the approximate $100,000 he borrowed for the property at 1 FF Street, Suburb UU, the husband’s total mortgage loan indebtedness as at cohabitation commencement would total about $498,000.
Accordingly, doing the best the Court can, as at cohabitation commencement the husband’s four properties were valued at $1,140,000 (see Exhibit G, being the historical valuations of the parties’ respective properties as at 30 July 2005), with mortgage loan indebtedness being about $498,000. Thus, there was an approximate equity of $642,000.
The husband further held the following:
·Superannuation: interest in two funds (G Company Superannuation Fund and Super Fund 3) totalling about $182,501.
·Shares: … VV Company and … G Company shares, totalling about $9,500.
·Savings: about $5,000.
Thus his net assets including superannuation at cohabitation commencement amounted to about $839,001.
At about the time of commencement of cohabitation, the wife held the following property:
·Real estate property:
·PP Street, Suburb V.
·Purchased in early 2000 for $345,000. The wife paid a deposit from her savings of $69,000 and borrowed the balance of the purchase price (about $276,000).
·As at cohabitation commencement, the value of PP Street was $490,000.
·2 HH Street, Suburb H. Purchased late 2002 for $747,000. The wife borrowed the bulk, if not all, of the purchase price.
·As at cohabitation commencement, the value of 2 HH Street, Suburb H was $730,000.
·1 HH Street, Suburb H.
·Purchased early 2004 for $532,500. Wife paid a deposit from her savings (about $37,836) and borrowed about $494,664.
·As at cohabitation commencement, the value of 1 HH Street, Suburb H was $610,000.
·Accordingly, as at cohabitation commencement, the wife’s three properties were valued at $1,830,000, with mortgage loan indebtedness approximately as follows:
·PP Street, Suburb V: about $116,312
·2 HH Street, Suburb H: about $700,000
·1 HH Street, Suburb H: about $474,000
·Thus, the wife’s approximate mortgage indebtedness was about $1,290,312. With her three properties valued at $1,830,000 as at cohabitation commencement, less mortgage indebtedness of about $1,290,312, her equity was about $539,688.
·Other assets:
·The wife had superannuation as at cohabitation commencement, being Super Fund 1, in the sum of about $215,654. She also had a managed investment with Super Fund 1 for $169,921 (in relation to which the wife made withdrawals on occasion to pay rent and other expenses; the wife had gotten out of this fund altogether by 2012 because the investment returns had turned negative).
·Thus her net assets including superannuation at cohabitation commencement amounted to about $925,263. In comparison, as discussed above, the husband’s likely net assets including superannuation at this time was about $839,001, a difference of about $86,262.
During the parties’ relationship, the husband purchased the following real estate:
·In 2010, he purchased the apartment at EE Street, Suburb AB NSW for about $240,000. He used his savings to pay stamp duty and the conveyancer's fees. He obtained a loan close to the purchase price and used his other properties as security.
·In early 2011, he purchased the property at 2 FF Street, Suburb UU NSW for $162,000. He used his savings to meet acquisition costs including stamp duty and conveyancer's fees. He secured a loan from the bank for an amount close to the purchase price whilst using his other investment properties as security.
In late 2012, 1 TT Street, Suburb DD was sold by the husband for $285,500. After discharging the mortgage, he obtained $271,154.68. This sale enabled the husband to consolidate some of the debt owing on his other properties, which freed up funds to apply for various household and children's expenses.
The wife acquired real estate during the relationship. She purchased the following three real estate properties using her personal funds to pay the deposits, and taking out mortgage loans to fund the balance of purchase prices:
·K Street, Suburb L. Purchased in about mid-2010 for $468,000. Mortgage loan for $374,000.
·C Street, Suburb D, VIC,. Purchased as a house and land package in about early 2011 for $367,000. The wife borrowed the bulk of the purchase price from OO Company. The husband assisted the wife in refinancing this property in about 2019.
·This property was the subject of interim property orders made on 23 November 2023; the Court ordered that the property be sold and the net proceeds of sale be distributed to the wife by way of interim property settlement, along with an immediate redraw amount of $25,000 from a mortgage offset facility. The net sale proceeds of the above property at C Street were utilised to pay down some of the wife’s mortgage loans (with some of her mortgage loans being in arrears), to pay a strata levy and school fees. No party sought an addback in relation to this interim property settlement.
·QQ Street, Suburb BB, VIC,. Purchased in about 2015. The wife had entered into a new home contract with SS Company for $205,000 in mid-2015. She had taken out a mortgage loan with ZZ Company for $316,000.
·The wife acquired a third share of the property at RR Street, Suburb DD, NSW, through an inheritance from her late mother in 2018.
Both parties worked in full-time employment during the relationship, apart from the wife’s maternity leave, and they contributed their earnings, inter alia, to the acquisition, conservation and improvement of property held or controlled by them individually.
The wife had taken some maternity leave after the birth of each child. In the earlier years of the parties’ relationship the husband earned around $80,000 to $90,000 per annum. Later in the marriage, he earned over $100,000 per annum. Throughout the marriage the wife’s gross income was between about $50,000 to $90,000 per year more money than the husband’s gross income.
The parties each made indirect contributions to the acquisition, conservation or improvement of property held or controlled by the other through, inter alia, the sharing of payment of living expenses and childcare.
Again, the Court recognises that viewed holistically the wife’s financial contributions to the parties’ living expenses over the course of the relationship were likely significantly greater than the husband’s because, in particular, she was earning significantly greater employment income.
During the relationship, viewed holistically, on balance, the extent of the wife’s care of the children was probably greater than the husband’s care, particularly because of her maternity leave care for the children, her assistance to X with therapists, her regular provision of schoolwork related assistance to the children especially X, and her likely care of the children when the husband was socialising or away on travel.
The Court’s above findings have taken into account the fact that the husband, particularly towards the end of the marriage, regularly socialised on Friday and Saturday evenings, occasionally on Thursday evenings, on Saturday afternoons (with the children occasionally accompanying him to watch sport), and occasionally travelled interstate and overseas for short periods to watch sport.
As to domestic household work, viewed holistically, and on balance, the Court would assess the parties’ contributions in this regard as being approximately equal.
Post-separation, during Terms 1 and 2 of 2020, the parties cared for the children in a week about arrangement. From about Term 2 in 2020 until about Term 4 in 2021, the children spent two or three weekends per school term with the husband. In March 2022, interim parenting orders were made which provided for X to spend time with the husband in accordance with his wishes and for Y to spend initially three nights a fortnight before increasing to four nights per fortnight with the husband. Initially, after the interim orders, X would spend time with the husband over the weekend, and he spent almost all school holidays with the husband since those orders. X has been living with the husband since early 2024 and occasionally visits the wife. Thus, it can be seen that post-separation the wife has been the children’s primary carer (and homemaker) until early 2024 when the eldest child started living with the father.
Post-separation, the wife has paid the preponderance of the children’s expenses, with the husband making some payments for them as asserted by him in his trial affidavit.
As to formal child support post-separation, the husband, during the years 2020 to 2023 inclusive, paid to the wife a total of about $51,151, however he was in arrears during that period. From 7 April 2023 he was assessed to pay the wife nil child support. On about 15 August 2023 the wife was assessed to pay child support to the husband for the assessment periods April to August 2023 and from September 2023 to January 2024.
Post-separation, in about early 2020, the husband moved to live in one of the duplexes at Suburb NN. Prior to that time the husband had moved back to live with his parents in Suburb AE for a few months. In early 2021 the husband moved into a rental property at Suburb AF. In about early 2023 the husband moved into another rental property in Suburb W.
Post-separation, the wife moved into a rental unit in Suburb AG where she still resides.
Post-separation, the husband and his father renovated the husband’s two apartments at Suburb UU and the property at Town AH. Such renovations included new shelving and drawers, upgrading kitchens, minor electrical work, painting of rooms, new carpet and flooring.
Post-separation, in early 2021 the husband was made redundant by G Company after almost 32 years of service. He received a redundancy payout of about net $278,000.He was unemployed thereafter for about two years. From this payout, he paid about $55,000 towards reduction of his mortgage loans, $28,000 to purchase a new car, funding his everyday living expenses including meeting some of the children’s expenses, payment of child support, funding the costs of his post separation renovations, travel and for some legal fees.
As to superannuation, at cohabitation commencement the husband’s superannuation was about $182,501. At this time the wife’s superannuation was about $215,654.
In about early 2010, the husband set up a self-managed super fund. He rolled over $250,000 from his interest in G Company Super and used the funds to purchase a property at AJ Street, Town AH.
In 2013 the wife established a self-managed super fund with a corporate trustee of which she is the sole director and shareholder. She rolled over funds from her other superannuation to put into this super fund. During the relationship, the wife acquired two apartments through her self-managed superannuation fund. These properties are held in a company name, which company is controlled by the wife. These properties are K Street, Suburb L, purchased in early 2015 for $588,000, and 3 HH Street, Suburb V, purchased in late 2013 for $530,000.
The Court finds that the parties, during the relationship, likely indirectly contributed to the other party’s accumulation of superannuation entitlements; in this context, the Court refers to its discussions above relating to, inter alia, the parties’ indirect contributions.
There is no specific evidence relating to the value of the parties’ superannuation interests as at separation date. The wife’s affidavit filed 2 December 2023 refers to the husband’s superannuation interests totalling at least and probably in excess of $822,000 in December 2021 with those interests valued at $879,453 at trial date. Her said affidavit refers to her superannuation interests totalling at least and probably in excess of $730,622 in April 2022 with those interests valued at $889,745 at trial date.
Post-separation the parties likely indirectly contributed to the other party’s accumulation of superannuation entitlements through their respective care of the children, with the Court in this context taking into account the wife’s greater childcare post separation (discussed above).
The husband contended that his contributions should be assessed at 50 per cent.
The wife, again, contended that no property adjustment order should be made.
Taking into account all the above discussed matters, and viewing the parties’ contributions holistically, the Court finds that the wife’s contributions should be assessed at 60 per cent and the husband’s at 40 per cent in respect to the parties’ net assets including superannuation; these contribution findings result in a disparity of $1,569,784 in the wife’s favour in respect to the net total assets of $7,848,923.
Section 75(2) of the Act
The parties’ relationship was over 14 years in length.
The child Y is now aged 14 years and X is 18 years. X presently lives with the husband whilst Y primarily lives with the wife and spends four nights each fortnight with the husband. The wife now pays formal child support to the husband. The wife is primarily maintaining Y, including the payment of school fees. The husband maintains Y whilst she spends time with him. Thus, the wife will predominantly carry the financial burden of maintaining Y for about the next 4 years.
On the other hand, the wife’s earning capacity is greater than the husband’s earning capacity. She earns some $247,000 per annum according to her Financial Statement filed 29 February 2024. She is aged 58 years and will likely continue in that employment for the foreseeable future. The wife does not assert any significant health issues which might impact her earning capacity.
The husband was unemployed for about two years following being made redundant from G Company in 2021 where he had previously worked for almost 32 years. Since late 2023 the husband has worked as a transport worker earning $28,000 per annum. He took on this work after actively looking for work following his redundancy. He works one week on with one week off; he asserts that during his week off he can care for Y and X without any difficulties. The Court assesses that it is unlikely that the husband, aged 60 years, will earn significant employment income in the future and that he will likely continue to earn the sort of modest employment income he now earns.
The Court takes into account under s 75(2)(o) the husband’s utilisation from the proceeds of sale of the EE Street property the sum of about $120,000 for legal fees.
The husband sought no adjustment under s 75(2). The wife made no submissions in relation to s 75(2). Again, she sought that the Court make no property adjustment orders.
Having regard to the above matters, there should be no s 75(2) adjustment.
Justice and equity
Of the net total assets as found in the Court’s settled balance sheet, $7,848,923, the husband should receive 40 per cent being $3,139,569. The wife should receive 60 per cent being $4,709,353.
Should the husband retain:
·MM Street, Suburb NN NSW: $1,300,000;
·2 TT Street, Suburb DD NSW: $390,000;
·1 FF Street, Suburb UU NSW: $360,000;
·2 FF Street, Suburb UU NSW: $365,000;
All totalling $2,415,000, less mortgage liability, $439,862, leaving net $1,975,138;
Plus his:
·Household Contents: $1,000;
·VV Company Shares: $3,903;
·G Company Shares: $12,771;
·WW Company Shares: $4,273;
·Motor vehicle 1: $17,000;
·CBA Account: $549;
·CBA Account: $3,402;
·XX Bank Account (No. …84): $7,432;
·Superannuation: $879,453;
Totalling $929,783;
Less CGT liability for the EE Street sale, $53,000,
Then the figure of $2,851,921 is reached.

If the wife retains:
·PP Street, Suburb V NSW: $1,100,000;
·1 HH Street, Suburb H NSW: $1,470,000;
·2 HH Street, Suburb H NSW: $2,110,000;
·K Street, Suburb L NSW: $670,000;
·QQ Street, Suburb BB VIC: $650,000;
·RR Street, Suburb DD NSW: $130,000;
All totalling $6,130,000 less mortgage liabilities, $2,067,997, leaving net $4,062,003.
Plus:
·Westpac choice account *…41; $39,018
·Her S Bank accounts; $36
·Household Contents; $1,200
·Jewellery; $5,000
·Superannuation; $889,745
Totalling $934,999,
Then adding the above totals of $4,062,003 plus $934,999, the figure of $4,997,002 is reached.
Thus, the wife will need to pay the husband $287,649 ($4,997,002 less $4,709,353).
In the event that the wife is unable to pay $287,649 within 90 days, then the wife should be required to sell K Street, Suburb L being in her name. The costs of sale of that property together with any Capital Gains Tax (CGT) liability incurred by the wife thereby will result in the above sum of $287,649 being adjusted so as to conform with the Court’s above property adjustment determinations.
The Court refers to relevant legal principle requiring the Court, in the above circumstances, to make allowance in its orders for CGT payable: see Rosati & Rosati (1998) FLC 92-804 at 85,043.
Again, the Court requested the parties by email, after reserving its judgment, to, inter alia, make brief submissions on a CGT mechanism in the Court’s final orders to accommodate a possible CGT issue, as referred to above. Again, neither party’s submissions provided assistance in this regard.
As to the wife being required to sell K Street, Suburb L in her name in the event that she is unable to make the above cash payment to the husband within 90 days, in her last written submissions to the Court, again, the wife stated that should any sizeable financial obligation of any kind arise in the future that she would have to seriously consider selling her K Street, Suburb L property. The Court observes that this property has a net equity of $394,373. (The Court observes that the wife effectively submitted to the Court that she anticipated that from her proposed sale of the Suburb BB property, she would only be left with about $173,092 from this sale after certain payments from the sale proceeds.)
Again, should the wife be unable to pay the above sum of $287,649 to the husband within 90 days, then the Court will order that the property at K Street, Suburb L be sold. The Court will make brief mechanical type orders to enable the wife to meet any CGT payable on sale of this property, and related orders facilitating the parties receiving their share of the net proceeds of sale of this property so as to conform with the Court’s above property adjustment determinations. The Court will include an order that the parties have liberty to relist the proceedings on 14 days’ notice should they experience any issues facilitating or implementing the Court’s orders.
In the view of the Court, the parties will be left with sufficient assets including superannuation to enable them to, inter alia, maintain a reasonable standard of living.
The Court is of the view that its proposed property adjustment orders will represent a just and equitable property settlement between the parties.
The Court will make orders accordingly.

I certify that the preceding two hundred and seventy-two (272) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.
Associate:
Dated: 9 May 2025

File number(s):	PAC 4469 of 2021
Judgment of:	JUDGE NEWBRUN
Date of judgment:	9 May 2025
Catchwords:	FAMILY LAW – PARENTING – Best interests of child – orders made. FAMILY LAW – PROPERTY – Just and equitable orders made.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CD, 60CE, 61D, 75, 79
Cases cited:	Cosola & Moretto (2023) FLC 94–143; [2023] FedCFamC1A 61 Dickons & Dickons [2012] FamCAFC 154 Lansa & Clovelly [2010] FamCA 80 Lotta & Lotta [2017] FamCA 50 Moretto & Cosola (No 2) [2022] FedCFamC1F 924 Petruski & Balewa (2013) Fam LR 116; [2013] FamCAFC 15 Rosati & Rosati (1998) FLC 92-804; [1998] FamCA 38 Scott & Munayallan(No 12) [2023] FedCFamC1F 665
Division:	Division 2 Family Law
Number of paragraphs:	272
Date of last submission/s:	21 March 2025
Date of hearing:	11-13 November 2024
Solicitor for the Applicant:	Mr Bainbridge, Bainbridge Legal
Counsel for the Respondent:	The Respondent appeared in person

PAC 4469 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR REYNARD Applicant
AND:	MS EMERSON Respondent

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	9 MAY 2025