Ryder & Brooks
[2024] FedCFamC2F 503
•24 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ryder & Brooks [2024] FedCFamC2F 503
File number(s): PAC 883 of 2023 Judgment of: JUDGE STREET Date of judgment: 24 April 2024 Catchwords: FAMILY LAW – PROPERTY – PARENTING – two children – withholding by the father – sole parental responsibility to mother – gradual progression of time – routine and stability for special needs of children – alternation of property interests – net property pool split 70:30 in favour of the mother Legislation: Family Law Act 1975 (Cth) Cases cited: A v A (1998) FLC 92-800
AJO & GRO (2005) FLC 93-218
Babett & Falconer (2015) FLC 98
C & C (2005) FLC 93-220
Cotton & Cotton (1983) FLC 91-330
Deiter & Deiter [2011] FamCAFC 82
Dickons & Dickons [2012] FamCAFC 154
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
DJM v JLM (1998) FLC 92
Dovgan & Dovgan [2021] FamCA 306
G & C [2006] FamCA 994
Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143
Jabour & Jabour [2019] FamCAFC 78
Johnson & Page (2007) FLC 93-344
Jurchenko & Foster (2014) FLC 93-598
Kildea v Kildea (2007) 38 Fam LR 347
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69
Manolis v Manolis (No 2) [2011] FamCAFC 105
Masson v Parsons (2019) 266 CLR 554
McCall & Clark (2009) FLC 93-405
Nikolakis & Nikolakis [2010] FamCAFC 52
Perrin & Perrin (No 2) [2018] FamCAFC 122
Stanford v Stanford (2012) 247 CLR 108
Stott & Holgar [2017] FamCAFC 152
Townsend & Townsend (1995) FLC 92-569
Division: Division 2 Family Law Number of paragraphs: 182 Date of hearing: 18, 19, 20, 21 & 27 March 2024 Place: Sydney Counsel for the Applicant: Mr J Bennett Solicitor for the Applicant: Coleman Greig Lawyers Counsel for the Respondent: Ms D Coulton Solicitor for the Respondent: Hills Family Law Centre ORDERS
PAC 883 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RYDER
Applicant
AND: MR BROOKS
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
24 APRIL 2024
THE COURT ORDERS THAT:
Parenting
1.All previous parenting are vacated.
2.That the applicant (“the mother”) have sole parental responsibility for the children X born in 2018 and Y born in 2019 (“the children”).
3.Notwithstanding Order 2 above,
3.1The mother shall inform the respondent (“the father”), and keep the father informed of the names and contact details of all medical practitioners and schools that the children shall attend from time to time;
3.2The mother shall authorise the principal and staff of the school/preschool that the children may attend from time to time to supply to the father all school reports, school photographs, memos, school newsletters, access to all school apps and any other information in relation to the children that the father may request from the school from time to time;
3.3The mother shall authorise all medical practitioners that the children may attend from time to time to communicate with and provide the father with copies of all documents the father may request from time to time, at the father’s sole expenses.
3.4The mother is granted leave to provide a copy of these orders to the children’s school/preschool and medical practitioners and the receipt by the school/medical practitioner is sufficient to provide the mother’s authority pursuant to these Order.
4.The children shall live with the mother.
5.The children shall spend time with the father, as agreed by the parties and failing agreement as follows:
5.1During school terms, following the current routine, until end 2026, in a two-week cycle as follows:
5.1.1In week one, from the conclusion of school on Friday (or 5.30pm if a non-school day) until 6.30pm on Tuesday in week two;
5.2During school terms from end 2026 until end 2027, in a two-week cycle as follows:
5.2.1In week one, from the conclusion of school on Friday (or 5:30pm if a non-school day) until 6.30pm on Wednesday in week two, in week two.
5.3During school terms from beginning 2028, on a week about basis, as follows:
5.3.1In week one from the conclusion of school on Friday (or 5.30pm if an non-school day) until commencement of school on Friday (or 5.30pm if a non-school day) in week two.
5.4During school holiday periods, equal time, as agreed between the parties and failing agreement:
5.4.1For holiday periods ending Terms 1, 2 and 3 for one half of the holiday period as agreed and failing agreement for the first half in odd numbered years and the second half in even numbered years
5.4.2For holiday periods ending Term 4 as follows:
5.4.2.1In even numbered years, weeks 1, 3 and 5; and
5.4.2.2In odd numbered years, weeks 2, 4 and 6.
6.Notwithstanding any order to the contrary, the children shall spend special occasions with each of their parents as agreed and failing agreement as follows:
6.1With the father:
6.1.1.On the father’s birthday each year, should the children be in the care of the mother, as follows:
6.1.1.1In the event the father’s birthday falls on a school day, from 3pm to 7:00pm; and
6.1.1.2In the event the father’s birthday falls on a non-school day, from 9am to 7:00pm
6.1.2.From 2:00pm Christmas Day until 5:00pm Boxing Day Every year;
6.1.2From 9am Good Friday until 5:00pm Easter Saturday in even numbered years;
6.1.3From 5:00pm Easter Saturday until 5.00pm Easter Sunday in odd numbered years.
6.1.4From 5pm the Saturday before Father’s Day until 5pm on Father’s Day.
6.2With the mother:
6.2.1On the mother’s birthday each year, should the children be in the care of the father, as follows:
6.2.1.1In the event the mother’s birthday falls on a school day, from 3pm to 7:00pm; and
6.2.1.2In the event the mother’s birthday falls on a non-school day, from 9am to 7:00pm
6.2.2From 5:00pm Christmas Eve until 2:00pm Christmas day in all years;
6.2.3From 9am Good Friday until 5:00pm Easter Saturday in odd numbered years;
6.2.4From 5:00pm Easter Saturday until 5:00pm Easter Sunday in even years.
6.2.5From 5pm the Saturday before Mother’s Day until 5pm on Mother’s Day.
7.Changeovers shall be carried out in the following manner unless otherwise agreed:
7.1For all changeovers occurring on days when the children are ordinarily attending school/daycare, such changeovers are to occur at the school/daycare of each of the children; and
7.2For all changeovers which do not occur on days when the children are ordinarily attending school, such changeovers shall take place at Suburb B McDonalds.
8.The children shall communicate with the father by facetime or other electronic visual communication at 5.30pm each day with the father to initiate the call.
9.The children shall communicate with the mother by facetime or other electronic visual communication at 5.30pm each day with the mother to initiate the call.
10.That in the event either of the children should at any time whilst in the care of either parent, express a wish or desire to telephone the other parent or their grandparents then each shall allow the children to do so.
11.Neither party shall prevent or interfere with the children’s communication with the non‑live with parent.
12.To facilitate the parties discussing parenting issues for the children, both parties shall utilise the parenting app “Our Family Wizard” or such other parenting app as agreed to request the other party to nominate a time within 48 hours of such request to discuss parenting issues and provide that parent with a short description of the issues they wish to discuss.
13.Both parties must ensure that their communication complies with the following:
13.1the communication must be polite and courteous.
13.2neither party may use abusive or offensive language including any swear words.
13.3neither party may make any comment that is insulting or demeaning of the other party or of any person in the other person’s household; and
13.4the communication must relate to the care, welfare, or development of the children.
13.5the communication cannot include discussions relating to the proceedings.
14.That pursuant to Section 65Y(2) of the Family Law Act 1975 (Cth), both parties shall be entitled to take the children, or cause either of them to be temporarily removed, to a place outside of the Commonwealth of Australia with the written consent of the other party first obtained but subject to Orders 15 to 19.
15.Unless otherwise agreed in writing, such overseas travel is to take place during periods of time that the children are due to spend with the travelling parent and during school holiday periods.
16.In the event that a parent ("the travelling parent") seeks the other parent's consent ("the non-travelling parent") to take or send the children, or either of them to a place outside of the Commonwealth of Australia, then the travelling parent shall first provide to the non-travelling parent at least six weeks prior to any intended travel, the written details of the following:
16.1The names of all places outside of the Commonwealth of Australia where it is proposed that the children, or either of them is to travel (being countries, cities and towns);
16.2The proposed dates of travel including departure and return dates; and
16.3The contact telephone numbers, and addresses for all the places where it is proposed that the children, or either of them will be staying overnight when outside of the Commonwealth of Australia.
17.Within (7) days of receiving the information required in Order 15 from the non‑travelling parent, the non-travelling parent must consider the request of the travelling parent and provide his/her written consent authorising the children, or either of them to be temporarily removed outside of the Commonwealth of Australia, such written consent to be valid if and only if the travelling parent, then complies with Order 18 below.
18.Not less than fourteen (14) days prior the proposed dated of the children, or either or their departure from the Commonwealth of Australia, the travelling parent must provide to the non-travelling parent the following further documents and information in writing:
18.1Copies of all return airline and/or shipping tickets for the children, or either of them evidencing the dates of their departure from and arrival in Australia;
18.2A copy of the relevant travel insurance policy verifying that whilst the children or either of them are travelling outside of the Commonwealth of Australia they are listed and covered on valid travel insurance policy for the duration of the time they are overseas;
18.3Copies of all written itineraries for the actual overseas travel; and
18.4Details in writing confirming that the contact telephone numbers upon which the children or either of them may be contacted whilst overseas and details in writing of all addresses of the places where they will be staying overnight when outside the Commonwealth of Australia.
19.That both parties by themselves, their servants and their agents, unless otherwise agreed in writing by the parties, shall be restrained from removing or attempting to remove any of the children from the Commonwealth of Australia to any country or countries which are not signatories to the Convention on the Civil Aspects of International Child Abduction signed at the Hague Convention on 26 October 1995 OR which fall within a region or regions for which a current travel advisory warning against all travel and all non-essential travel to such region or regions has been issues by the Australian Government Department of Foreign Affairs and Trade from time to time.
20.That for the purposes of facilitating the children’s travel outside the Commonwealth of Australia pursuant to these Orders,
20.1Both parties shall sign all document deeds and instruments and provide all necessary consents to facilitate the issue of an Australia passport, all required travel visas and all other travel related documents for them within seven (7) days of receipt of same from the other parent.
20.2The mother shall be at liberty to hold in her possession, the children’s passports at all times when not being used by the father for overseas travel with the children pursuant to these Orders.
20.3For the purposes of facilitating the children’s travel outside the Commonwealth of Australia with the father pursuant to these Orders, within seven (7) days of the mother receiving a written request from the father for the children’s Australia passport, the mother shall provide the passports to the father for the period of intended travel. Within seven (7) days upon the children’s return to Australia following each overseas trip, the father shall return the passports to the possession of the mother.
21.Each party shall:
21.1Keep each other informed of their residential address and telephone number at all times;
21.2Keep the other parent informed of the children’s health and any major health issues and notify the other parent as soon as practicable in the event of an emergency involving either of them.
21.3Use their best endeavours to ensure that no other person denigrates the other parent or members of the other parent’s family to either of the children or in their presence.
21.4Be permitted to receive school notices, information, newsletters, school reports, school photographs and attend all school functions which parents are normally able to attend.
21.5Be permitted to attend each of the children’s extra curricula activities regardless of whether or not the children are in their care.
21.6Ensure the children’s participation in agreed extra curricula activities, birthday parties the children are invited to and school events during times that the children are with them.
21.7Unless in the case of an emergency, ensure the children attend their usual general practitioner Dr C of D Medical Clinic or another Doctor in that practice, unless otherwise agreed between the parties.
22.Each party shall be restrained from:
22.1Denigrating the other parent or members of the other parent’s family to the children or in their presence or at all.
22.2Passing information or messages through the children to the other parent.
22.3Changing the children’s residential address without providing the other parent with at least 21 days’ notice of their intention to do so.
22.4Enrolling the children in extracurricular activities out of their main residential address which would impact on either of them spending time with the other parent without the written consent of that parent.
22.5Engaging in any corporeal or physical discipline of either child or permitting anyone else to do so.
Property
23.That an Order by way of alteration of property interests pursuant to Section 79 of the Family Law Act 1975 (Cth) is required be made in terms of the following paragraphs in order to address the consequences of the breakdown of the marital relationship and the injustice that would occur given the circumstances of the relationship if legal and equitable title were not altered.
24.That the father be solely responsible for all monies he asserts is due and payable to Mr E and shall indemnify the mother and keep the mother indemnified in relation to those payments.
Suburb H
25.Within two calendar months of the date of these orders, the parties do all things and sign all documents necessary to cause the following simultaneously and interdependent:
25.1.transfer of the property situated at and known as F Street, Suburb H (“the Suburb H property”) being the whole of the land contained in Lot …, DP … to the sole name of the mother at her cost, such that the father shall sign all documents presented to him by the mother and the mother shall do all other things necessary for such transfer; and
25.2.discharge and refinance all mortgages and encumbrances presently registered over the Suburb H property at the cost of the mother such that the father shall sign all documents presented to him by the mother and the mother shall do all other things necessary to cause such discharge; and
25.3.payment by the mother to the father the sum of $641,448.
26.In the event the mother fails to comply with Order 25 within the stipulated time and the father not being in default under Order 25, then upon 14 days’ notice by either party thereafter, the parties are to do all acts and things and sign all documents necessary to cause the Suburb H property to be sold in accordance with the sale conditions contained in Order 27 below, and for the proceeds of sale to be distributed in the following manner and priority:
26.1.Payment of the agent’s commission and advertising or other expenses payable on the sale;
26.2.Payment of legal costs of the sale;
26.3.In payment as follows
26.3.1.To the father the sum of $641,448.
26.3.2.To the mother, the whole of the balance of the proceeds of sale.
Sale Conditions
27.That, for the purpose of selling the Suburb H in accordance with these Orders, the parties shall adhere to the following conditions of sale:
27.1.The parties shall instruct such real estate agent (“the Real Estate Agent”) as agreed between them or failing agreement for a period exceeding fourteen (14) days as follows:
27.1.1.The mother shall provide to the father the names of three (3) qualifies real estate agents and their estimated costs;
27.1.2.Within three (3) days of receipt of the three nominated real estate agents from the mother, the father shall nominate one (1) from the list provided;
27.1.3.In the event the father fails to nominate the real estate agent, then the mother shall nominate the real estate agent.
27.2.The parties shall each pay to the Real Estate Agent one half of any sums requested for upfront advertising expenses.
27.3.The parties instruct such solicitor/conveyancer (“Conveyancer”) as agreed between the parties or failing agreement G Conveyancing shall be appointed as Conveyancer.
27.4.The parties shall give such instructions as are necessary to the Conveyancer to prepare a Contract of Sale and shall be equally responsible for the cost of the Conveyancer.
27.5.The listing price for the subject property shall be as agreed between the parties after consultation with the Real Estate Agent, or failing agreement for a period exceeding fourteen (14) days, shall be as determined by an independent valuer appointed as follows:
27.5.1.The mother shall provide to the father the names of three (3) qualified valuers and their estimated costs;
27.5.2.Within three (3) days of receipt of the three nominated valuers from the mother, the father shall nominate one (1) from the list provided.
27.5.3.In the event the father fails to nominate a valuer, then the mother shall nominate the valuer.
27.6.The parties shall forthwith upon appointment of the Independent Valuer, do all things necessary to instruct the Independent Valuer to prepare the required valuation, including by providing access to the subject property;
27.7.The parties shall each pay one half of the fees issued by the Independent Valuer and in the event Party A fails to pay their one half share and the total valuation fees is met by Party B, then Party A shall be entitled to reimbursement from Party B’s entitlement to the proceeds of sale.
27.8.The list price shall be set based upon the value expressed by the Independent Valuer upon him/her having undertaken their valuation of the subject property.
27.9.The parties agree that they will be guided by the Real Estate Agent as to the appropriate method of sale of the subject property. Should there be no agreement as to the method of sale after fourteen days, the sale shall be by way of Auction.
27.10.In the event that the property is listed for sale by private treaty, and it has not been the subject of an exchange of contracts for sale within two (2) months from the date of the first listing, then the listing price shall be reduced to such amount as agreed in writing between the parties, and failing agreement, shall be reduced by an amount of 5% (from the immediately previous marketed listing price) for a further two (2) months thereafter until the property is sold;
27.11.In the event that the property is listed for sale by public auction, then the auction shall be on such date as agreed between the parties and failing agreement as nominated by the agent;
27.12.If the property does not sell at the first auction, the parties shall market the property for sale with the agent by way of private treaty for a period of twelve (12) weeks thereafter during which time the parties shall accept any offer made to purchase the Joint Real Property within 5% of the reserve price of the first auction unless the parties otherwise agree;
27.13.If the property is not sold at the first auction and is not sold in the period provided for by sale by private treaty as outlined in Order 27.12 above, the parties shall then market the property for sale by a second public auction with the agent on a date within six (6) weeks of the date of the conclusion of the period of sale by private treaty (being four (4) months from the date of listing by private treaty), at such reserve price as agreed between the parties and failing agreement at 5% below the reserve price of the first auction;
27.14.The parties shall whether in person or by their nominee, attend at any auction held pursuant to this Agreement, and in the event that the reserve price set for any auction is not reached, the parties shall negotiate with the highest bidder and the second highest bidder at the auction, and will accept the highest offer to purchase made within 5% of the reserve price set for each auction unless the parties otherwise agree;
27.15.The parties shall each cooperate in every way with the agent including (without limiting the generality of the foregoing):
27.15.1.Making all necessary keys available to the agent;
27.15.2.Allowing inspection of the property at all reasonable times requested by the agent;
27.15.3.Doing or saying nothing to hinder or prevent a sale being effected;
27.15.4.Ensuring the Property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and
27.15.5.Signing all documents requested by the agents in relation to the listing for sale of the Property except a contract or agreement for sale which has not been authorised by the Solicitors.
J Pty Ltd
28.The father hereby indemnifies and shall keep indemnified the mother in respect of all liabilities in relation to J Pty Ltd, whenever and however arising, including but not limited to all taxation liabilities, Directors Loans, Personal Loans and Guarantees of J Pty Ltd or either party personally arising in connection with any interest, office holding or employment in relation to J Pty Ltd.
29.That, as between the parties, the father shall then be solely entitled to all interest in relation to the company.
Joint Bank Accounts
30.Within 7 days of all mortgages in the joint names of the parties being discharged the parties are to do all acts and things and sign all documents necessary to close all bank accounts standing in their joint names and the balance held in such accounts shall be divided equally between them.
Other Orders
31.That as between the parties, and subject to the above Orders the is hereby mother is solely entitled to:
31.1.The Suburb H property;
31.2.The dog;
31.3.All personal property now in her possession or control;
31.4.All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name;
31.5.All interests in life insurance policies standing in her sole name;
31.6.All legal and/or beneficial interest in any trust;
31.7.All right, title and interest in any companies and entities standing in her name; and
31.8.All interest in any superannuation entitlements which she may be entitled to.
32.That as between the parties, the father is hereby solely entitled to:
32.1.J Pty Ltd;
32.2.All personal property now in his possession or control;
32.3.All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his sole name;
32.4.All interests in life insurance policies standing in his sole name.
32.5.All legal and/or beneficial interest in any trust;
32.6.All right, title and interest in any companies and entities standing in his name; and
32.7.All interests in any superannuation entitlements which he may be entitled to.
32.8.The three (3) items referred to in order 37, if collected in accordance with that order.
33.Pursuant to Section 81 of the Family Law Act 1975 the parties intend these orders to finally determine all financial relations and issues between them and avoid further proceedings between them.
34.That each party shall do all things necessary including providing all consents to give effect to these orders in the time periods prescribed in these orders.
35.That in the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of the Court shall be appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
36.The interim injunctive order 16 made on 13 July 2023 is vacated.
37.The mother is to liaise with the father via Our Family Wizard identifying a convenient time for the mother within 14 days of the date of these orders for the father to collect personal items and motor vehicles and the father may attend at that time to remove those items.
38.The parties may seek costs, including reserved costs, if so advised in accordance with order 1 made on 27 March 2024.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
INTRODUCTION
These parenting and property proceedings were commenced on 23 February 2023 by the applicant mother against the respondent father, seeking urgent recovery orders in respect of the two children of the relationship, being X born in 2018, who has been diagnosed with autism, and Y born in 2019. The parties were married in 2016 and separated in late 2022. In early 2023 the father attended the children’s pre-school and removed the children. On 23 February 2023 the duty registrar listed the matter for interlocutory hearing on 1 March 2023 and on that date consent interim parenting orders were made that provided for return of the children to the mother at 4.30pm on 1 March 2023. Those interim parenting orders provided for equal shared parental responsibility, that the children live with the mother and spend time with the father each alternate weekend from conclusion of daycare or 6pm Friday until 6.30pm the following Tuesday as well as special occasions.
On 15 November 2023 the matter was fixed for hearing for 3 days commencing on 18 March 2024. The final hearing ran for 5 days, commenced on 18 March 2024, 19 March, 20 March, and 21 March, when it was adjourned part heard until 27 March 2024, when the Court reserved its written reasons and orders.
EVIDENCE
The Court received into evidence the following affidavits, including annexures:
(1)Affidavit of the mother dated 26 February 2024;
(2)Affidavit of the mother dated 13 March 2024;
(3)Affidavit of Mr K dated 26 February 2024;
(4)Affidavit of Ms M dated 26 February 2024;
(5)Affidavit of the father dated 6 March 2024;
(6)Affidavit of Ms L dated 4 March 2024;
(7)Affidavit of Ms N dated 4 March 2024; and
(8)Affidavit of Mr O dated 29 February 2024.
The Court admitted evidence the following exhibits:
·Exhibit A – Mother’s Financial Statement dated 26 February 2024.
·Exhibit B – Child Impact Report prepared by Dr P dated 19 July 2023.
·Exhibit C – Single Expert Report prepared by Mr Q dated 19 December 2023.
·Exhibit D – Father’s Financial Statement dated 4 March 2024.
·Exhibit E – Mother’s Tender Bundle dated 15 March 2024.
·Exhibit F – Father’s Tender Bundle dated 17 March 2024.
·Exhibit G – Balance Sheet filed 18 March 2024.
·Exhibit H – Three Photographs of the Applicant attending Ultrasound at Hospital
·Exhibit I – Video at Ultrasound Appointment.
·Exhibit J – Video at Ultrasound Appointment.
·Exhibit K – Respondent’s supplementary tender bundle.
·Particular pages tendered: 3-10, 12, 13, 14-59 & 72-311
·Exhibit L – Invoice dated 30 September 2021.
·Exhibit M- 15 Photographs of the work done on the property.
·Exhibit N – Section 50 Evidence Schedule.
·Exhibit O – 15 Second video in relation to Mr K.
·Exhibit P – Report from Paediatric Occupation Therapy.
·Exhibit Q –Loan Statement.
·Exhibit R - Cross Examination Bundle
·Particular pages tendered: 44-75 and 84 – 87
CHRONOLOGY
Date Event 1988 Father is born 1992 Mother is born 2011 Father alleges cohabitation commences at parents residences from time to time 2012 Parties commence living full time at the Mother’s parents’ home at Suburb R 2012 J Pty Ltd registered by ASIC. 2015 Parties purchase S Street, Suburb T (“Suburb T property”) in the Mother’s sole name – joint mortgage liability 2015 Suburb T rented out. 2016 Father acquires shares interest in J Pty Ltd 2016 Parties marry 2017 Mother stopped working at J Pty Ltd 2018 X born. Mid-2018 Parties purchase U Street, Town V in father’s sole name, joint mortgage liability This property was rented out until mid-2023. 2019 X diagnosed with Autism Spectrum Disorder (ASD) and started speech therapy about 2020 2019 Y born Late 2020 Parties purchase FMH – F Street, Suburb H (“Suburb H property”) in parties’ joint names, joint mortgage liaiblity
Father alleges acquired mid-2020 – alleges late 2020 his inlaws, brother in law and partner also move into Suburb H propertyLate 2020 The maternal grandmother (Ms W) and Mr K sold their home at Suburb R.
From proceeds of sale $260,000 transferred to father’s Uncle – Mr E; Alleged further $80,000 paid by father to Mr E– alleged $10,000 outstandingLate 2020 Father transferred $70,000 to Mr E’s account. Late 2020 Father alleges purchase Motor Vehicle 1 for $66,000 borrowed from Father in law Mid-2021 X started attending Z Service Mid-2022 Father attends counselling followed by parties together 6 August 2022 Parties separate under one roof
Mother spends week in hotelMid-2022 Mother asked father to leave said no Mid-2022 Father drives to QLD and stays there for about 4 weeks Late 2022 Father returns from QLD and resides at home for 2 days Late 2022 Father takes, children and in laws overseas – mother declines to go (booked 2019 deferred due to COVID) 12 November 2022 Parties physically separate. The Father leaves Suburb H property. Late 2022 Mother draws up agreement for parties to spend time with the children and sent it to the Father. This agreement would be followed until early 2023. Late 2022 Mother commences work Late 2022 to early 2023 Father draws $30,500 from J Pty Ltd Late 2022 Father alleges company J Pty Ltd purchases Motor Vehicle 2 for mother for $32,000 Early 2023 Mother contacted bank to make an application of hardship. Early 2023 Mother receives notice from Centrelink stating she has to repay $8,689.09 to Centrelink Early 2023 Father ceases contributing to any of the mortgages Mid-February 2023 Mother received notification that the children were signed out of preschool without her knowledge.
Father retains children until interim orders made on 1 March 2023Early 2023 Mother informed that Father cancelled X’s enrolment in Z Service 23 February 2023 Mother commences proceedings including application in a proceeding for recovery of children 1 March 2023 Interim Orders, by consent, made for the children to be returned to the Mother’s care and spend time with the Father 4 nights a fortnight March 2023 Father commences relationship with Ms N Early 2023 Mother’s hardship application accepted May 2023 Mother makes application for Child Support Mid-2023 Mother receives copy of Application for Enrolment at BB School made by the Father without consent June 2023 Father ceases contributing to child care fees June 2023 Father starts relationship with Ms N 13 July 2023 Interim orders made:
for Suburb T and Town V properties to be sold.
For J Pty Ltd to pay the mother’s motor vehicle finance
Mother pay mortgage Suburb H
Father best endeavours for company to meet Motor Vehicle 2 paymentsMid-2023 Mother engaged Mr K to act as realtor on sale of Suburb T property. 20 November 2023 After consideration of Father’s objection, Father’s child support assessment reduced to $NIL Late 2023 Debt to Centrelink paid off by the Mother. Late 2023 Town V property listed on the market Late 2023 Contracts for sale of Suburb T signed 23 January 2024 Parties attend Dispute Resolution Conference Early 2024 Mother’s vehicle repossessed due to Father’s failure to comply with Order 6 made on 13 July 2023 to cause J Pty Ltd to pay all periodic payments to CC Company Early 2024 Mother receives copy of Contact for sale of Town V signed by purchaser but not the Father Early 2024 Settlement of the Suburb T property was due to take place but was delayed as purchasers are first home buyers and had nowhere to live. APPLICANT MOTHER’S EVIDENCE
The mother was born in 1992, and the father was born in 1988. The parties commenced cohabitation in 2012 and were married in 2016 and separated under the one roof in mid-2022. The parties physically separated in late 2022 and the father left the matrimonial home. As a result of the relationship, there are two children, X, who was born in 2018, and Y, who was born in 2019 (“the children”). According to the mother’s affidavit, the parties’ relationship began to deteriorate after X was born. The mother currently lives in the Suburb H property with the children, her mother, stepfather, and her brother with his partner. The mother works five days a week and has commenced a new relationship.
According to the mother’s affidavit dated 26 February 2024, the parties at the start of the relationship lacked financial assets.
The mother identified that the father’s income went into the J Pty Ltd business (“J Pty Ltd”).
J Pty Ltd was registered with ASIC in 2013, the mother commenced full-time employment with the business at the end of 2013 and identifying to receiving $100 per week. The mother stopped receiving income from J Pty Ltd in mid-2021. When the parties separated in late 2022, the mother identified that the father was receiving between $4,000 and $5,000 per month, and rental income from the Town V property of $1,700 per month. The mother identified that the father would use his income to meet the mortgage repayments and the children’s day care expenses.
The mother identified that in early 2023 J Pty Ltd’s loan amount was $208,046.35. The father would use the J Pty Ltd funds to pay for his own personal expenses. In early 2023, the father withdrew $30,500 from the J Pty Ltd business bank account.
In 2015, the parties purchase a block of land at S Street Suburb T (“the Suburb T property”). The total cost of the property was $360,000. In obtaining the property, the parties received $20,000 from the father’s uncle and $35,000 from the mother's stepfather. The mother identified that the mortgage is in her sole name. The mother identified that the father, her mother, her stepfather and herself spent several mothers doing landscaping on the property.
In 2018, the mother identified that the father purchased the property located at U Street, Town V for $299,000, which was purchased solely in the father’s name. The mother identified that 25% deposit was needed for the property and the parties had very little savings. The mother’s stepfather gave her $41,987 to fund the deposit. The property was rented from the time it was purchased in 2018 until mid-late 2023, when a consent order was made for the property to be sold. The rental income from the property was approximately $1,732 a month and it was deposited into a bank account in the father’s sole name. The mother identified that the father was making no contributions to the two mortgages that were secured over the title of all three of the parties’ properties. According to the mother’s affidavit dated 26 February 2024, the father ceased contributing to the two mortgages after he removed the children from preschool in early 2023. The mother identified that the property is valued at $540,000.
The mother deposes that most of the parties’ money was used to run J Pty Ltd and meet the mortgages on the Suburb T and Town V properties, as well as the expenses for the children. The parties purchased the property located at F Street, Suburb H (“Suburb H”) in late 2020. In purchasing the property, it was agreed by the mother that her, the father, the maternal grandmother and her stepfather that Suburb H would be owned by them 25% each. According to the mother’s affidavit dated 26 February 2024, the parties borrowed $2,101,990 from a broker and the father borrowed $350,000 from Uncle Mr E to finalise the purchase. In late 2020, the maternal grandmother and the mother’s stepfather sold their home at Suburb R and in late 2020 transferred $260,000 to the father’s uncle.
The mother identified that in late 2020, a further $70,000 was transferred to the father’s uncle account from the father’s personal account.
The mother stated that the maternal grandmother and her stepfather made the payments on the house repairs; building and contents insurance each year; Council rates; utilities; majority of the groceries; internet connection; streaming subscriptions and fuel costs for the ride on mowers. The maternal grandmother and stepfather also funded additional renovations to the Suburb H property which cost a total of $74,004. The parties had a home which was then rented out for $400 per week. The rental income was deposited into the mother’s bank account.
The mother deposed that the father was very controlling about how money was spent. The father did not allow the mother to purchase a new pram or cot to use for one of the children but insisted on buying a second-hand purchase. The mother is the primary carer since the children were born and attended to their day-to-day needs and arranging their medical appointments, and for one of the children’s assessments, occupational therapy, speech therapy and enrolment in the early intervention programs.
The mother identified that the father was extremely demeaning in his words and alleges that he gained pleasure in putting her down. The mother also identified that the father’s behaviour towards her and the belittling comments made to her increased and made comments about everything that was wrong with the mother.
The mother deposes that throughout the marriage, the father was very controlling about what she did, how she dressed and how she spent her money. The mother identified that on several occasions, the father would unlock the bathroom door while she was showering, and he said words to the effect “it is my right to see you naked” or “it is my right as a husband”. The mother also identified that the father showed a video of her naked in the bath to a staff member at J Pty Ltd.
The mother identified that the father was controlling over her mobile phone and demanded to know the password when he wanted access, and was controlling over her access to online banking and pay tv passwords. The mother also identified that her personal tax documentation was also controlled by the father.
On one occasion, the mother identified that the father said to her on her birthday words to the effect “I don’t know why you haven’t killed yourself yet, the kid’s life would be better off without you”. The mother also identified that when she would arrive home after a day or night out with her friends, the father would be standing there and at times would not allow her to access the home.
In early 2023, the father picked up the children from their preschool, without notifying the mother. The mother made several enquiries into the whereabouts of the children and contacted the Police. After learning that the father picked up the children, the mother sent various text messages to the father requesting to speak to him and the children. However, the father did not respond to those text messages. Up until early 2023, the mother was not allowed to have facetime with the children until. The mother deposes that the calls lasted for five minutes and were controlled by the father.
After the father removed the children from the care of the mother in early 2023, the mother identified that the father enrolled X in a speech and OT therapy with a different therapist, which is different to the one the child has been attending for two years.
The father purchased a second-hand vehicle with a cost of $32,000. The mother’s stepfather paid for the deposit of the vehicle which was $1,000. The vehicle is registered in the mother’s name, and she obtained insurance in her name. The father obtained finance through CC Company under the business name to purchase the vehicle.
In late 2022, the parties agreed that J Pty Ltd would pay for the loan on the vehicle. The father told the mother that she had to pay for the loan, but she had to deposit an equal amount onto the mortgage loan account. In early 2023, the mother deposited $400.00 per fortnight into the account and continued to make the payments until the father stopped all financial support for her and the children. The mother identified that she did not take possession of the vehicle until early 2023.
In mid-2023, the father informed the mother that he would stop paying for the CC Company loan. According to the mother’s affidavit dated 26 February 2024, the father updated the direct deposit details for the vehicle car loan payments until the Suburb H property is sold.
Between late 2022, when the father vacated the Suburb H property and early 2023, the father contributed $19,600 towards the mortgages that are secured on the title of the three properties. The mother identified that since early 2023, the father has made no contributions towards the expenses of any of the three properties, including Town V which is in the father’s name. The mother identified that the father retained the full income from Town V for his own benefit.
The mother identified that between February 2023 and March 2023, she deposited $400 per week into the mortgage account was the amount the J Pty Ltd paid for the vehicle. The mother also met the instalment payments and her brother continues to pay rent which is deposited into her personal account. The maternal grandmother and her stepfather continue to contribute towards other expenses for the home including council rates, building insurance, entertainment for the children, groceries and assist with the mortgage payment. The mother identified the father does not contribute to anything, including the mortgage on the Town V property, which is in his name, and to which he retained the total benefit of the rental income, until the father gave notice to the tenant, and the tenant vacated the Town V property in late 2023.
The mother deposes that she does not receive child support or financial assistance and support from the father. Post-separation, the parties had agreed that the father would $350 a week less the daycare fees. The mother identified that in late May 2023, the father ceased payments for the daycare fees and the father has not contributed since. The mother deposes that her partner now pays for the fees, as she did not have funds to meet those expenses due to meeting the expenses of the mortgages for the three properties, without the assistance of the father.
APPLICANT MOTHER’S ORAL EVIDENCE
The mother was cross examined on 18 and 19 March 2024 to the effect that she had not said anything positive about the father in his parenting capacity and the father’s version of his parenting contributions and contributions to the 3 different properties was put to the mother. The mother said the consent orders worked very well over the last year. The mother rejected the proposition that the father had been far more involved in the parenting than stated by the mother in her affidavit.
The mother was also cross examined about the receipt of rent for the home at Suburb H from her brother and his partner. The mother was cross examined about alleged loans from Mr E and denied any knowledge of the same. The mother said that after the purchase of Suburb H her father paid out the amount that she asserted had been provided towards the purchase deposit by Mr E. The mother identified using a spreadsheet in respect of contributions by her parents to Suburb H and that the paragraph overlap in that regard with her father Mr K in his affidavit. The mother affirmed her evidence as to the controlling and coercive behaviour of the father. The mother said that she did not know that her vehicle was to be repossessed on the day of conciliation meeting and that the father stopped the mortgage payment of Suburb H in early 2023 being the day before he withheld the children. The Mother said that the father enrolled X with a speech therapist Ms DD without the mother’s knowledge. The mother reaffirmed the father engaging in gaslighting by calling her names such as baby brain.
The mother was cross examined about her relationship with her mother and her mother’s views. The mother was shown texts that supported specific occasions of disagreement between the mother and her mother, but denied that the relationship was toxic, denied that her mother lacked confidence in her parenting and denied that the children were present during any disagreement with her mother. The mother rejected the father’s assertion of a conversation with a child about use her new partners vape and said that her partner had no such vape and suffered asthma. The mother rejected the assertion by the father of a conversation with the child about playing nudies with her partner in front of the child.
The mother was cross examined about her affidavit that the father did not attend all pre-birth ultrasounds and was shown 3 photographs two of which she accepted where monitoring the baby of for ultrasound. The mother agreed that there were two ultrasound videos that the father had on his phone and may have been present. The mother explained that she did not accept as correct the father’s assertion that he attended all ultrasound appointments.
The mother gave evidence as to her concern about increased time with the father that included both the travel time for young children and the needs of the children that required routine and structure. The mother explained that she did not want the time to increase school week time beyond the current regime until Y had finished first class that that she was then comfortable increasing school week time to 5 days a fortnight until in sixth class when she would be happy with equal time for the boys with the father.
The mother referred to her brother and partner contributing about $640 per fortnight to the mortgage and that they pay $400 per week rent.
The mother gave evidence to the effect that it was because of Mr Brooks going that she did not want to go overseas and rejected the propositions put that it was because of her mother. The mother spent time with Ms M in mid-2022. The mother denied that there was conflict between her and her mother in front of the boys. The mother maintained that her allegations as to the controlling and coercive conduct by the father were true.
It was put to the mother that the father had paid her $56,938 from the business from mid-2020 to late 2022. The mother worked for the father’s business from 2012 to late 2017.
The mother explained that the whole family did work on Town V and Suburb H and rejected the father’s assertions as to doing the mowing at Suburb H. The mother accepted that there was some work at Suburb H and that the father’s parents’ home in Suburb EE.
The mother confirmed that both parties undertook to pay the mortgage obligation for the Town V property and the Suburb T property. The mother identified wanting a stable foundation for the two boys and the importance of structural routine for X with his autism. The mother accepted that the mortgage payments for Suburb H were the subject of a hardship agreement with the Bank. It was suggested that the hardship agreement meant that there was a failure by the mother to pay $38,000. The mother said both parties did landscaping work and other work at Suburb T.
The mother accepted that the father put $20,000 in to the purchase of Town V for $360,000 and that her step father put in $20,000. The mother accepted that Town V was bought for $299,000, with a loan of $239,000 and that her step father put in $41,987. The mother explained the mortgage payments are being met between herself, her brother’s rent and her parents. The possibility of a higher rent for the granny flat was raised with the mother as well as rental value of Suburb H. The mother also gave as to the father’s failure to give full disclosure and was asked about the cost of fittings installed at Suburb H of some $19,404. The mother was also asked about work that was done by all on her step father’s property at Suburb FF.
The mother identified her fear that Y might have a disability that needs to be looked into and the need for stable consistent routine and her concern as to regression.
RESPONDENT FATHER’S EVIDNCE
The father was born in 1988. The father moved out of the matrimonial home (“the Suburb H property”) in 2022. The father identified to having collected the children from daycare in mid‑February 2023 and brought them home and retained the children in his care until 1 March 2023.
The father identified that at a family celebration the maternal grandmother and the mother’s stepfather encouraged X to take a sip of beer. X was two years old at the time.
In or around 2020, the father identified to having concerns regarding the children’s care whilst he was at work which led him to hire two additional staff members at work to cover for his role and so that he could spend more time at home.
According to the father’s affidavit dated 6 March 2024, in early 2023, the father’s aunt told him that she saw the maternal grandmother hit and bite one of the children. As a result, the father collected the children from daycare and retained them until 1 March 2023 due to his fears of potential abuse and ongoing neglect of the children. When the father took the children from childcare, he identified that at 4:00pm he messaged the mother and told her that the children were fine. The father deposes to having instructed his solicitors to write to the mother and propose a mediation. However, the mother did not respond. The father also deposes that he facilitated Facetime contact between the children and the mother every day.
The father identified that he is involved in the children’s activities and undertook X’s speech therapy homework every day. When the children were in the father’s care, he identified that he provided the children with lots of fruit, meat and vegetables which improved the children’s digestion.
After the father collected the children in early 2023, the father engaged a practising Speech Pathologist, and X attended two speech therapies each week. The Speech Pathologist identified that X has delayed and disordered articulation development that affects his speech intelligibility.
The father identified that he and his uncle have entered into a residential tenancy agreement. The lease is term is three years at $500 per week. The father will repay what he owes his uncle after he has a settlement from these proceedings.
When the parties commenced their relationship, the father had approximately $40,000 in shares and a motor vehicle. The father sold his shares to pay for his living expenses whilst starting J Pty Ltd, a $5,000 holiday, and $20,000 to pay for the deposit on the Suburb T Property.
In 2014, the parties contributed to the mother’s parents’ household expenses such as buying a replacement air conditioning unit for $10,000, paying for weekly groceries and maintaining the lawns.
According to the father’s affidavit dated 6 March 2024, from periods July 2024 until periods in June 2021, the father identified that his uncle loaned the parties a total amount of $47,100. The father also identified that between 24 – 30 July 2020, his uncle a provided a loan of $350,000. This money was used for the deposit of the Suburb H Property. A further $80,000 was then transferred to the father from his uncle. The father has a remaining $10,000 that is owed to his uncle.
Between 2017-2018, the father’s uncle gifted the parties an amount of $10,250. The father described that the gifts were used to meet the parties’ cost of living expenses.
The father identified that the paternal grandparents loaned and gifted the parties’ a total amount of $12,700 throughout their relationship.
When the parties bought the Suburb T property, the father identified to having contributed $20,000 to the purchase price. In 2018, when the parties purchased the Town V property, the parties secured a loan of $239,000 and the mother’s stepfather contributed $41,987 towards the deposit and the parties contributed to the remaining amount. The Town V property was used for investment purposes.
In mid-2020, when the parties purchased the Suburb H property, the father’s uncle loaned the parties $350,000 to purchase the property. The father identified that the mother’s stepfather transferred $260,000 to the father’s uncle.
The father deposes that until late 2022, the mortgage over the Suburb H property was paid solely by him from the income he received from J Pty Ltd.
The father deposes that he spent an estimated 600 hours of landscaping between 2020-2021, and constructed rock walls and irrigation, and installed pipes and drains. The father identified to spending a further two hours a week mowing the lawn whilst living in the Suburb H property and spent 200-300 hours of landscaping at the Suburb T property.
The father identified to having made significant parent and homemaker contributions throughout the parties’ marriage and completed many domestic duties.
Post-separation the father continued to borrow various amounts from his uncle, which were described as loans in the total amount of $6,000. The father owes a debt to his uncle in the amount of $146,981.02 and identified that he would need to borrow further monies from his uncle to pay for his legal fees in these proceedings.
J Pty Ltd, at present, owns two vehicles. In 2019 the father’s uncle loaned $117,000 to the business which was used to purchase one of the vehicles. The business owes the father $115,073 pursuant to a director’s loan.
During the relationship, the parties purchased a dog. The father identified to having paid the NSW pet registration for the dog. The dog is registered in the father’s name and his current address.
FATHER’S ORAL EVIDENCE
The father identified that his affidavit which alleged he attended all ultrasounds required to be corrected to most. The father acknowledged that the withholding of the children was a form of family violence and that withholding the children until he had consent orders was controlling behaviour. The father gave evidence that the director loans recorded to his uncle in the books of his corporate business was just the way it was drawn up by the accountant on the accounting system. The father maintained that his cash flow problems were the reason he stopped paying for Motor Vehicle 2, that he couldn’t afford it and that his uncle ceased lending the business money in the middle of 2023. The father didn’t accept that permitting the vehicle to be repossessed was a form of financial control and agreed he did not turn his mind to his wife having the vehicle he was using to look after the children. The father gave evidence suggesting that giving the children beer was something all of us did from time to time, but said his behaviour was immature. The father qualified his affidavit evidence as to the mother attending to the needs of the children and gave evidence qualifying his affidavit as to the mother attending to needs to see that the children were fed. On the day of removal of the children around midday, the father agreed he didn’t respond to the mother’s message ‘Where are the Kids/” and to her next text asking about the kids and requesting to speak to them the father texted “Kids are fine” and did not call the mother to explain why they had been removed. The father said he last paid the mortgage in February and understood that the ceasing to pay the mortgage on the three properties could be seen as financially controlling behaviour, but asserted he couldn’t pay the mortgage. The father confirmed that he conveyed his assertion of being unable to pay to the mother in February 2023 and that this occurred before he retained the children. The father identified that the most appropriate course would have been to sell Suburb H but did not accept that he ceased paying to try and force the mother to sell Suburb H.
The father accepted that the withholding of the children was controlling conduct and behaviour. The father accepted the need for structure and routine from X with his condition and that changes to his circumstances need to be gradual. The father said that Y has picked up a lot of X’s speech traits and that Y’s possible spectrum issue needs to be explored and that this is another reason why progression in routine and structure during school weeks will need to be gradual. The father told Ms DD that the X had recently moved and acknowledged it was his intention that X would then primarily live with him. The father acknowledged that the removal of the children and the engagement of the new speech therapist was part of his plan to flip the care arrangements for the children around. The father agreed it was his intention to take X to someone other than the person identified in order 15 made on 1 March 2023. The father did not agree that order 15 was inappropriate if he intended the child to see a second speech therapist and then said that he recognised that it should have been put in order 15.
The father confirmed the house he lives in on the property at Suburb EE is with his mother and father and that there is a second house on the property in which his uncle Mr E lives with two other uncles. The father said the Suburb EE property was owned by all 5 of them being his mother and father and 3 uncles. The business is run from that Suburb EE property and pays $750 per week. When asked what was the weekly or fortnightly gross takings the father said he couldn’t give an exact figure. When asked about gross figure per month the father asked are you talking about the net profit or turnover. The Court identified that that non-responsive answer affects the assessment of credit and that the Court has used the word gross and the father then said the gross takings per mother are around $100,000 to $130,000. The father said cost of sales was about 90-95% and that there are 3 full time staff, one receiving about $1000 per week, one receiving $1400 per week and one receiving around $600-700 per week and that they don’t have written contracts of employment. In response to personal drawings the father asserted everything goes to the tax debt. Which is currently $2000 per week and that the full tax debt is currently around $60-70,000. The father agreed that he has used the business to support himself and the mother since 2013. The father said the business has debts to his uncle Mr E. The father agreed that Mr E works in the same premises running his business. The father agreed that Mr E has been somewhat of a financial support and is willing to let the father live in an investment property and alleged the business is in doubt because Mr E has indicated he’s no longer willing to make loans to the business. The father agree he had an affidavit from Mr E and could have called him in his case. The father agreed that he uses a card linked to the company bank account when spending money and that he has two cards that rarely get over $5000. The business has inventory around $100-150,000 and there is stock bailment arrangement. The father identified flexibility in looking after the children because of his job. The father accepted that his half interest in Motor Vehicle 3 would be valued about $10,000.
The father said he paid the stamp duty from a savings offset account, and agreed that in fact it would be more correct to say that he and the mother paid the stamp duty on Suburb H. The father agreed that there is a balance of $90,000 and that he had paid Mr E $80,000 and that there was $10,000 left owed to Mr E. The father said he believed that the $80,000 came from income from the business and that it should be in his tender bundle. The father agreed that part of the $146,000 owing to Mr E includes the $10,000 and that the amounts were loaned to him personally and includes his legal fees. The father said there was a fresh loan agreement for funds provided to the business of $373,000 and that this was separate to his personal liability for $146,000. The father agreed that the $373,000 is a liability of the company to his uncle and that some of that amount is for items stored at Suburb H. The father pays $750 per week to the family for use of the business premises for which there is no formal lease to an account number that his uncle provided. The father said there is another uncle who doesn’t live on the property who is also an owner. The father also said that Mr E does all the family finances.
The father said the boys have stayed overnight at Ms N’s rented property and that moving in together is on the cards. The father confirmed that next year the children will be with him and his mother and that there have been days where Y is with his mother and that she does the pick up and drop off of X. The father confirmed the distance to the public school from his mother’s house in Suburb EE is 40-50 minutes in traffic each way. The father said that the $350,000 was loan to him from Mr E. The father was cross examined on a statutory declaration of Mr E in 2020 that said “I will give my nephew Mr Brooks $350,000 to assist him to purchase a property” and “This gift is unconditional, non-repayable and non-refundable”. The father acknowledged that it would be inconsistent with this statutory declaration to find that the amount left of $10,000 was a loan payable by the father and mother. The father alleged a stock supply problem that basically meant no stock at all at the end of 2021 which is when the cash flow hit hard. The mother explained that GG Company was a floorplan provider and that when sold the money is transferred to another account. The father said that the cost of sales of the items was between 12 to 24% and then explained that the 95% meant the entirety as far as labour and costs in running the business. The father confirmed the business sales and service for year ended June 2023 the trading revenue is $1,191,000, costs of sales is $897,000 and gross profit was $294,000. The father said the invoice for $1830 at 72 of exhibit F in relation to HH Company concerns a company and that the address to Mr JJ is a mistake and maintained that he owed a debt to HH Company. The father confirmed that was a debit relating to goods provided for the benefit of the children and that the $14,000 should be reduced by the Mr JJ invoice.
The father confirmed that the costs of sales for 2023 included wages and salary of $251,000 after initially saying it did not. The father maintained that it did not include wages for him for 2023 but did for 2022 when he was drawing $120,000 a year but maintained he wasn’t actually able to pay it and that has contributed to the director’s loan account being money owed by the company to the father. The father indicated he wanted to change his evidence about the mother not cooking meals after being taken to a message and acknowledged it was an exaggeration. The father agreed that the mother’s step father paid for fans at Suburb H and a plumbing invoice. The father was taken to a letter dated 15 March 2023, subsequently marked Exhibit P in which X’s speech therapist said he had regressed. The father denied describing the mother’s financial ability as having a baby brain and recognised that the use of term as to understanding financial matters would be gaslighting. The father accepted that he used inappropriate terms prior to separation describing it as very tense. The father agreed that it was sensible to follow up on the recommendations in relation to Y in the letter dated 21 March 2024. The father referred to Motor Vehicle 2 being repaid from the business account for the context of a statement marked Exhibit Q that showed a payment for the mortgage for Suburb H in early 2023.
SINGLE EXPERT REPORT BY MR Q
In preparing the Single Expert Report and recommendations, Mr Q conducted interviews with the mother, the father, the children, the mother’s new partner, the father’s new partner, the maternal grandmother and the mother’s stepfather.
The single expert report by Mr Q dated 19 December 2023 recommended, recommended that the parents have shared parental responsibility for the children. However, if the father were to act unilaterally with regard to the children’s health care needs including X’s interventions and support services, consideration should be given to the mother having sole responsibility for decisions regarding the children’s health.
Mr Q recommended that the children live predominantly with the mother and spend significant and substantial time with the father, at least commensurate with the current arrangements. In addition, it was also recommended that the children spend half of all school holiday periods and half of all significant occasions with each parent.
It was also recommended that the father is to consult with his general practitioner regarding his ongoing stress and impact that this is having on his mental health and functioning.
Both parents were recommended to undertake a face-to-face Tuning into Kids group program. The father is also to consider spending much more time at his home (the paternal family property) while the children are in his care than he is currently doing.
Mr Q identified that unless the father is recommended by his long-term treating health practitioners, X is not to attend multiple practitioners who are operating independently of each other.
SINGLE EXPERT’S ORAL EVIDENCE
Mr Q gave oral evidence that the retaining of the children by the father may fall within the characterisation of being family violence and referred to his concerns as to the potential impact on the children. Mr Q said that disrupted sleep and reported nightmares by the children would suggest that the father’s conduct of retaining the children had an adverse emotional impact. Mr Q also agreed that retaining the children would mean the mother was suffering an emotional impact until the actual return of the children. Mr Q said many children with autism have more difficulty with routine and structure than similar aged peers. Mr Q agreed that a child with autism is more likely to be disrupted by change. Mr Q was taken to his report at paragraph 95 that suggested the children settling in to changed household arrangements within a relatively short period of time and agreed that more cautious approach should be adopted for a child with autism. Mr Q agreed that changes to the home of the father over the next 2 to 24 months might warrant refraining from adjusting time with the father and that it would depend on the nature of the changed household. Mr Q was aware that the father proposed to move out of his parents home in Suburb EE and into a flat with his new partner. Mr Q also said that the first child having an autism spectrum disorder means a sibling may be more likely to have autism and that there can be mimicking behaviour by a sibling. The video of the father giving the child beer did not cause Mr Q any particular concern assuming it was one off rather than a typical ongoing behaviour.
Mr Q said he understood the four nights with the father had been working well. Mr Q also said the biggest factor as to how the children would cope in increasing time was attitude and actions of both parents so that if both are keen and wanting this to happen the children are likely to cope. Mr Q said if both parents are not that reduces the likelihood of the children coping. Mr Q also raised that the parents hadn’t experienced independent living and although hopeful the children may manage an increase to 5 nights there are many variables between now and then. Mr Q said following a school holiday or at end of year was a natural occurrence for change. Mr Q said a year should be sufficient time for the children to become used to something and facilitate another gradual change. Mr Q confirmed that the attitude of each of the parents was a material consideration in progressing meaningful time and that difficulty settling on return would be a reason for caution in the graduation to equal time. Mr Q said in general the further into the future the less confidence one can have as to changed circumstances but assuming coping with 5 nights a fortnight then after a year they will be likely to cope with 6, and if coping with that past year go to 7 nights. Mr Q expressed a view supporting equal parental responsibility, but that is there was found to be gaslighting and family violence by the retaining of the children that would impact on his recommendation.
MR K (THE MATERNAL STEP-FATHER)
According to Mr K’s affidavit dated 26 February 2024 the value that the parties purchased the Suburb H property was $1,600,000.
The step father of the mother, Mr K gave oral evidence that he wanted his $260,000 repaying Mr E part of this $360,000 in the acquisition of Suburb H to be treated as a contribution by his step daughter to the property. Other assistance provided by the Mr K was one he accepted should be similarly treated. Mr K was asked about work by the father on his Suburb FF property and that similar work was done on Suburb H. Mr K did not accept that the father did most of the work and said the work done on Suburb T and Suburb H was equal work. Mr K agreed that there were works carried out at Suburb H in 2021. Mr K said he owned half of Motor Vehicle 3 with the father owning the other half. Mr K was asked purchasing questions about various chattels. Mr K was also questioned about the mother’s relationship with her mother and said he paid for the holiday overseas. There was a recording played to Mr K as to what occurred over the luncheon adjournment which was not suggested to amount to any impropriety.
MS M
According to Ms M’s affidavit dated 26 February 2024, identified that the father was very controlling of the mother and mandated what she was doing. Ms M also deposes to the fact that the father spoke to the mother in a demeaning manner. The evidence provided by Ms M is consistent with the evidence provided by the mother.
Ms M also gave oral evidence and maintained that the negative evidence as to the father was true. That evidence included inappropriate filming and photographing behaviour by the father, as well as destructive digging to property he did not own, as well as controlling behaviour by the father. Ms M also gave evidence concerning inappropriate views attributed by the children to the father.
MS L (THE PATERNAL GRANDMOTHER)
According to Ms L affidavit dated 4 March 2024, in 2016 she transferred the father an alleged loan in the amount of $7,500 a few months later she also transferred an alleged loan to the father in the amount of $5,000.
Ms L gave oral evidence that she never received any rent form the father or mother whilst staying with her at Suburb EE. Ms L confirmed gifting money to the mother and father over the course of the relationship and that there is no loan agreement for any amounts and has never asked her son form repayment.
MS N
According to the affidavit of Ms N dated 4 March 2024, she met the father in early 2023 and began dating since then. Ms N described the father as very caring thoughtful, and identified that the children in the father’s care are always very happy. Ms N identified that the father enjoys spending time with the children and does the cooking, cleaning, showering and learning for the children. Ms N also identified that the father does his best to provide a stable environment for the children.
Ms N was not required for cross examination.
PARENTING PROCEEDINGS – LEGAL PRINCIPLES.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII. These are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence.
Further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. For reasons which I subsequently explain, I have determined that it is not in the interests of the child for the presumption to apply, in the context of the lack of cooperation between the parents.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: ss 60CC(2)(b) of the Act.
In considering that first matter, I note that, in McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at 83,476, [122], the Full Court said:
…No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests.
In McCall and Clark at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a “prospective” one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
In Jurchenko & Foster (2014) FLC 93-598 at 79,420, the Court noted at [123] that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
In Loddington & Derringford (No 2) [2008] FamCA 925 Cronin J held at [169] that:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
(emphasis added)
In Loddington Cronin J further added that an assessment of the benefit to the child must be made according to ‘the peculiar facts of what the parents are offering.’ [At 173]
In Cotton & Cotton (1983) FLC 91-330, Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
And that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
(emphasis added)
Issue of risk
In relation to s 60CC(3)(k), there is no current family violence order in place.
In relation to s 60CC(3)(l), the Court is of the view that the proposed orders are least likely to lead to the institution of further proceedings in relation to the children.
In relation to s 60CC(3)(m), the Court has taken into account that the father obtained interim parenting orders on 1 March 2023 at a time when he was still withholding the children. Had the matter been before a Judge, it is unlikely that the Court would have permitted the consent orders to be appropriate at a time when the father was still withholding the children, even though the mother was still represented. The more appropriate order, after the father’s family violence would have been for supervised time only, and the father has achieved a situation where the children have been spending four nights per fortnight for over the last year, which would be unlikely to reflect the orders that would have been made by a judge of this Court on 1 March 2023. Given the allegation of removal the matter should have been referred to a judge of the Court for hearing on 1 March 2023, and the proposed parenting orders should have been made after the return of the children to the mother so that she was not being subjected to inappropriate controlling behaviour, even though legally represented.
Moreover, a Judge would have also recognised the need for the appointment of an ICL that would have contracted the issues in these proceedings and better assisted the Court in identifying the best interests of the children. Whilst it would not be appropriate to reduce the time currently being spent by the children with the father, the Court has taken into account that that arrangement was achieved through his family violence of withholding the children.
The Court is satisfied that the proposed parenting orders are in the best interests of the children and that the graduation of increased time with the father should be slow so as to maintain stability and routine, particularly upon the commencement of the younger child at school that will have occurred by 2026. The Court is satisfied that an increase to five nights should occur in 2027, with equal time commencing in 2028. The Court is satisfied that it is appropriate to have overseas travel with appropriate arrangements being put in place and that it is appropriate to restrain the parties from engaging in conduct that could be detrimental to the children, by denigrating the other, by using the children as a conduit for messages and engaging in corporal punishment. It is for these reasons the Court made the above parenting orders.
LEGAL PRINCIPLES – PROPERTY ASPECT OF DISPUTE.
In respect to the parties dispute regarding the division of their property these proceedings, s 79 of the Act sets out the following:
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
…
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)an order requiring:
(i) either or both of the parties to the marriage; or
…
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
…
(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
In exercising that discretion, the court is required to take into account the matters set out in s 79(4) of the Act, as follows:
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The High Court in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”), at [35] confirmed that before an order is made adjusting the parties property the court is required to make a determination that it is just and equitable to do so. That determination is to be made, however, not as a discrete or preliminary issue but requires the Court to consider the matters set out in section 79(4) of the Act.
In the leading case of Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143, the Full Court held at [39] that, in considering the matters set out in section 79 (4) of the Act the preferred approach was to adhere to the following four steps:
(1)Identify and determine the value of the asset pool of the parties as at the date of the hearing (this necessarily involves identifying both the assets and liabilities);
(2)Identify and assess each of the parties’ financial and other contributions up until the date of the hearing (this can include the financial contributions made before, during and after the marriage);
(3)Assess how future and other events may have a financial impact on either of the parties, such as their age and state of health and their income and property or financial resources (known as the s 75(2) factors); and
(4)Step back and examine this formula-based reasoning against the history of the marriage, intangible considerations and other contingencies so as to consider whether the outcome represents a just and equitable result.
That approach had been endorsed many times: see, for example, Manolis v Manolis (No 2) [2011] FamCAFC 105 at [63] (per Coleman, May and Ainslie-Wallace JJ); Kildea v Kildea (2007) 38 Fam LR 347 at [104] (per Finn, May and Boland JJ); C and C (2005) FLC 93-220 at [22] (per Bryant CJ, Finn and Coleman JJ) and [142] (per O’Ryan J). However, as the High Court noted at [35] in Stanford, s 79(2) of the Act provides that the Court shall not make an order altering the interests of the parties to the matrimonial property, “unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Accordingly, since Stanford, it has generally been the practice of the Court to determine, as an initial issue, whether it is just and equitable to make an adjustment of marital property.
The Full Court in Perrin & Perrin (No 2) [2018] FamCAFC 122 cited at [57]–[58] with approval, the decision in Babett & Falconer (2015) FLC 98-067 at [44]:
Within the family law context, those comments [in respect to the adequacy of reasons] should be seen as reinforced by the fact that the nature of the s 79 inquiry is, in essence, a broad discretionary assessment, which is neither an accounting nor mathematical exercise and which, effectively as a corollary, requires a "broad-brush approach".(Citations omitted)
Is it just and equitable to make a property adjustment?
Addbacks
In AJO & GRO (2005) FLC 93-218 at 79,617, the Full Court identified three categories where it may be appropriate to notionally add back an item of expenditure, as follows:
(1)Where the parties have expended money on legal fees: see DJM v JLM (1998) FLC 92-816 at 85,262;
(2)Where there has been a premature distribution of matrimonial assets: see Townsend & Townsend (1995) FLC 92-569 at 81,654; and
(3)In the circumstances outlined by Baker J in Kowaliw & Kowaliw (1981) FLC 91-092 at 76,644, including:
(a)Where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets; or
(b)Where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Contributions
The Court is required to make an assessment of the nature and quality of the totality of the parties’ contributions throughout the entirety of their relationship, together with their contributions in the period subsequent to their separation. In [29] Dickons & Dickons [2012] FamCAFC 154, [14] (Bryant CJ, Faulks DCJ, Murphy J); Jabour & Jabour [2019] FamCAFC 78, [61] (Alstergren CJ, Ryan and Aldridge JJ). See also Dovgan & Dovgan [2021] FamCA 306, [347] (Harper J), which restates the need to holistically assess contributions following the case of Dickons, and that ‘all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder’.
SUBMISSIONS ON PROPERTY ALTERATION
As identified above the parties provided case outlines at the start of the case and written submissions at the start of closing addresses on 27 March 2024.
In relation to property the mother relied upon her case outline and that the Court should find no debt to Mr E who was not called and relied upon Jones v Dunkel inference in respect to the father’s failure to call him. The mother referred to the differing treatment of payments, in the statutory declaration as a gift, as directors loans and tallying up and recording loans. Mr Bennett also expressly referred to the business being a financial resource for the father from which he can extract value. The mother submitted that she had made the greater financial and non‑financial contributions and an asset pool division of 70% to the mother and 30% to the father. The mother also criticised the credit of the father.
The father in submissions referred to the father having $40,000 in shares and a motor bike as the start of the relationship and that the wife had Motor Vehicle 2 purchased by her parents that was repaid. Ms Coulton submitted that the father had made the greater financial contribution to the acquisition of the property Suburb H. The father said that he had paid $80,000 to his uncle and that there was still $10,000 owing to the Uncle. It was submitted that the uncle’s initial funding of $350,000 for the acquisition of the property should be treated as a contribution by the father and that the father had also paid the stamp duty. The uncle executed a statutory declaration that his provision of funds were a gift.
The father submitted that he paid $216,000 in mortgage payments based on time and about $7200 per month. The Court accepts that he paid the mortgage but no actual record was tendered to prove the amount in fact paid by the father. It was alleged that the father contributed $386,000 to the purchase of the matrimonial home and a further $45,747 on the property and that altogether the father spent $431,000 against the mother’s $334,000. The father also referred to his non-financial contributions. The father also referred to his contributions to the Suburb T property and the Town V property and payments to the wife of $52,838 from mid‑2020 to late 2022. The father referred to the parties receiving an alleged $102,550 from his parents and uncle. The father also referred to paying rent totalling $22,750 and paid the bulk of the groceries and paid for air conditioning and undertook landscaping. It was alleged that the mother had free rental since the father left the matrimonial home in late 2022 and alleged a rental benefit of $178,285. It was also alleged that the hardship arrangement should result in an add back or financial contribution of $433,600. It was submitted that there were homemaker contributions by the father accepting that the mother had the primary care of the children. It was submitted that there should be an add back of $68,267 paid by the mother for legal fees from the Suburb T property and that the husband owes his uncle legal fees.
Ms Coulton submitted that there was a serious question over the credit of the mother and identified in that regard was said to be her erroneous evidence as to the father never attending. That was a misstatement of the evidence as what the mother said was that the father did not attend all ultra sounds for the children. The Court accepts that evidence and finds that the mother was a credible witness and that it was the father who had exaggerated his attendance, albeit corrected at the start of his evidence,
Ms Coulton contended that Mr K, the maternal stepfather, was cross examined about a number of items and who paid for the same. Ms Coulton submitted that most, if not all, the items listed by the father were the property of the company J Pty Ltd. The mother was not cross examined upon the list of items and clearly only proposed returning the items in List A, which erroneously included Motor Vehicle 3, half owned by the father and half owned by the maternal stepfather. The Court raised that the maternal stepfather was not a party able to make admissions. The Court raised that it may not be satisfied as to the existence, location, value or alleged ownership by the company of any of those items.
The Court raised that the references to Town V and Suburb T must be deleted in the property orders and that they are no longer property for the assessment of current contributions albeit relevant to historical contributions. There was no opposition by the father to most of the procedural orders for alteration of interests and, in absence of payment, sale of Suburb H. The Court identified that the sale process of the property, should be qualified as to require no default by the father.
On the agreed add back of $68,267.39 Ms Coulton submitted that having identified the net pool the amount should be added back in full as a deduction from the proposed alteration of interest in favour of the mother. The Court raised that the add back should simply be treated as swelling the pool available for alteration of property interests after ascertaining the existing property and determining the net pool.
Ms Coulton raised a tax debt said to be owed by the father to the ATO, however the evidence makes clear this is an alleged indebtedness of the company, and was not included on the balance sheet and is not a liability of the father.
The Court raised the unsatisfactory nature of the alleged indebtedness to the uncle and that it may not be accepted as a liability of the father, notwithstanding the creation of a recent loan document between the father and his uncle. It was submitted that there should be taken into account the notional rental value benefit received by the other members of the mother’s family staying at Suburb H.
It was submitted by Ms Coulton that the Court should find the father made a significant financial contribution in paying the mortgage from acquisition until early 2023. The father contended that this was an amount of $7200 per month. The Court raised that whilst it would accept that there was a financial contribution by the father paying the mortgage for the period there was no evidence that actually supported that calculation and the father was in a position to put on such evidence and had not done so.
It was submitted that the hardship reduction in favour of the mother should be treated as an add back because she received a financial benefit and the mortgage was not reduced as it should have been. The Court suggested that this proposed add-back was meritless.
The contention was put that the father stopped paying the mortgages because he could not afford to do so from his business. The same submission of inability to pay was advanced in relation to the cessation of payments on Motor Vehicle 2. It was put that the value of the business had been assessed as zero and that it was at risk of being wound up. It was submitted that the father had not been cross examined challenging his evidence in that regard. The Court raised the gross sales returns from the J Pty Ltd business and that it has been treated as a means of meeting the personal liabilities of the father.
Ms Coulton raised the financial weekly benefit identified in the mother’s financial statement of $581 per week.
It was submitted by Ms Coulton that the appropriate alteration of interests between the parties should be 50:50.
FINDINGS ON PROPERTY ALTERATION
In relation to the first step required under s79(4) the Court finds that the property and financial resources of the parties are as identified in the third Column, Court Findings and the Court finds that the father has a financial resource being the J Pty Ltd business.
BALANCE SHEET EXHIBIT
| Ownership | Description | Applicant Mother’s Value | Respondent Father’s Value | Court’s Findings | |
| ASSETS | |||||
| J | F Street, Suburb H NSW (joint single expert) | $ 2,600,000 | $ 2,600,000 | $ 2,600,000 | |
| H | J Pty Ltd | NK | NIL | NIL | |
| H | Motor Vehicle 3 | $ 20,000 | $ 20,000 | $10,000 | |
| H | Share Account | NK | $ 1,693 | $ 1,693 | |
| H | Bank Accounts | $ 192 | NK | $ 192 | |
| W | Bank Accounts | $ 12,713 | $ 12,713 | $ 12,713 | |
| W | Jewellery | $ 2,500 | $ 2,500 | $ 2,500 | |
| W | Household Contents | $ 3,000 | $ 3,000 | $ 3,000 | |
| J | Offset to mortgage account | $ 2,828 | $ 2,828 | $ 2,828 | |
| SUB-TOTAL | $ 2,618,021 | $ 2,642,734 | $2,632,926 | ||
| ADDBACKS | |||||
| W | Finance Repayment on account of legal fees | $ 68,267.39 | $ 68,267.39 | $ 68,267.39 | |
| W | Addback increase in mortgage debt from early 2023 | NK | $ 52,407 | $0 | |
| SUB-TOTAL | $ 68,267.39 | $ 120,674 | $ 68,267.39 | ||
| LIABILITIES | |||||
| J | F Street, Suburb H NSW | $ 642,252.23 | $ 642,252.23 | $ 642,252.23 | |
| H | Debt to Mr E | NIL | $ 146,981.02 | $0 | |
| J | HH Company Loan | $ 14033.60 | $ 14,033.60 | $12,035 | |
| W | Loan owed to Mr K | $ 118,736 | N/A | $0 | |
| H | Guarantor for Facilities loan from Mr E to J Pty Ltd | $ 373,560 | N/A | $0 | |
| W | Taxation Loan | $ 9,000 | N/A | $9,000 | |
| SUB-TOTAL | $ 1,157,581 | $ 803,267 | $663,287.23 | ||
| SUPERANNUATION | |||||
| Member | Name of Fund | Type of Interest | Applicant Mother’s Value | Respondent Father’s Value | |
| W | Super Fund 1 | Accumulation | $ 36,571 | $ 36,571 | $ 36,571 |
| H | Super Fund 2 | Accumulation | $ 63,684 | $63,684 | $63,684 |
| SUB-TOTAL | $ 100,255 | $ 100,255 | $ 100,255 | ||
| FINANCIAL RESOURCES | |||||
| H | J Pty Ltd | NIL | NIL | Financial Resource | |
| TOTAL NET ASSETS INCLUDING SUPERANNUATION | $2,138,161 | ||||
Having identified the above assets and liabilities and the Court finds net assets of the parties are $2,138,161. The Court finds that the total assets of the parties, leaving aside superannuation, amounts to $2,642,734 but does not accept that there should be any add back in relation to increased mortgage debt as alleged by the father. The Court does not accept that the seeking of a hardship arrangement by the mother from the bank, after the father ceased making mortgage payments in early 2023 was unreasonable or reflects any sum to be brought back into the identification of assets. Contrary to the father’s submissions it is not a proper add back and in any event as a matter of discretion the Court declines to treat the consequences of the hardship arrangement as being a detriment unreasonably imposed upon the father’s interest in the Suburb H property. The father suggested that the maternal grandparents and former brother in law and his partner obtained some unreasonable benefit as a result of the hardship arrangement that should sound in an add back, which the Court rejects. The Court finds that there should be an add back for the $68, 267 paid for legal fees by the mother from the proceeds of the sale of Suburb T. The Court finds that the reduced HH Company loan should be included as a liability. The Court find that it is just and equitable to make an alteration of property interests. The Court finds that the father’s business, although give no asset value, is in fact a financial resource available to the father. The Court does not accept that the alleged loans to the mother’s step father or to the father’s uncle are actual liabilities and does not accept that the alleged contingent guarantor liability of the business to the uncle should be included as a liability.
In relation to the second step required in relation to s 79(4) (a) to (c) the Court notes that the Suburb H property was purchased by the parties in mid-2020 for $1,600,000 with an initial gift from Mr E of $350,000.
When the parties commenced living together full time the parties had little assets, with the father having some shares and the parties were living with parents. At this time the father started a business from his parents property and the mother commenced working in that business receiving a very small wage.
The Court notes that the Suburb H property was originally going to reflect a multiparty ownership with the maternal grandparents who sold their home and repaid Mr E $260,000 in respect of his gift to assist the purchase. The Court accepts that Mr E made a gift of $90,000 and that this was reduced by voluntary payments made by the father of $80,000. The Court finds however, that that $80,000 was from the business, to which the mother had made a substantial indirect contribution to that business through her labour from 2013 until end 2017. The Court finds that the contribution by Mr E by the gift of $90,000 should be treated as a contribution by the father, albeit that the meeting of the same except for $10,000, through the business, was indirectly contributed to by the labour of the mother when she was an employee.
The Court finds that payment of the mortgage by the father until early 2023 was a direct financial contribution, but given the failure to tender the records supporting actual payment and what occurred with the mortgage account, and the adverse credibility of the father, the actual financial contribution in this regard not accepted as being in the order of $216,000. The Court finds that this financial contribution was not of that order and was on balance likely to have been substantially less and in the order of $180,000 based on a likely lesser monthly payment due to lower interest rates over a substantial part of that period. The Court accepts that the father made landscaping contributions to the Suburb H property and financial contributions in the order of $45,747. The Court finds that the father’s financial contributions to the property were $80,000 from the business in repaying the gift from his uncle Mr E, $180,000 in mortgage payments, $45,747 in improvements and half the stamp duty being $40,000 totalling approximately $345,000. The wife’s financial contributions were the initial $260,000, half the stamp duty $40,000, $74,000 through her uncle who’s evidence the Court accepts, and mortgage payments to date in the order of $50,000 totalling $424,000. The Court finds both parties put in equal labour to the property including landscaping and mowing.
The Court finds that the stamp duty was paid by both the mother and the father but accepts that the father made the mortgage payments from acquisition until the last payment in early 2023. The mother, with the assistance of her family, has being paying the mortgage repayments since. In respect of the Suburb H property, the Court finds that the mother made the greater financial contribution. The Court also finds that the mother has made the greater non-financial contribution in her role as homemaker, and parent, and in relation to the welfare of the family. The Court finds the mother has made greater non-financial contributions in her parenting since separation. The Court is satisfied that it is in all the circumstances just an equitable to make an alteration of the parties property interests.
The Court has found that the mother’s financial and non-financial contributions were substantially greater than the father’s and that in percentage terms, reflect 65% in favour of the mother of the net property pool, which would amount to $1,389,804. 35% of the net property pool for the father, reflects an amount of $748,356.
The Court turns to the third step and has taken into account the proposed order upon the earning capacity of the parties in relation to s79(4)(d) and finds that the earning capacity of the parties will not be adversely affected. The Court finds that the father has a greater earning capacity than the mother and finds that his business will be able to continue regardless of the alleged debts to his uncle and the ATO.
The Court turns to the other future considerations relation to s 75(2)(a), the father is 35 years of age, and both are in a reasonable state of health.
In relation to s 75(2)(b), the property between the parties has been identified in the balance sheet above. The Court finds that the father’s business, conducted through J Pty Ltd is a financial resource, even though it has not been given a monetary value. It is apparent that the father has treated that business as if available for his own personal drawings. The father’s evidence as to not drawing a salary for 2023 was unconvincing, given the limited salaries paid to the three employees, identified in the evidence above. The father has also received significant funds from Mr E, who did not give evidence, but who is clearly making available his investment unit to the father. The father is currently working in his business and able to draw a salary of $120,000 a year. The Court does not accept that the father’s assertion of nil income in Exhibit D given the adverse credibility findings including in relation to the cost of sales labour in 2023. The mother is currently employed, part-time, earning approximately $1,676 per week, amounting to $87,152 per annum. The mother’s care of the children impacts on her ability to work full time, until they are both at school.
In relation to s 75(2)(c), the Court has taken into account that the mother has sole parental responsibility and will be the primary carer until progressing time in 2028. The Court has taken into account the dominant primary care of the children by the mother.
In relation to s 75(2)(d), the Court is satisfied that the parties will be enabled to support themselves and the children by the orders to be made.
In relation to s 75(2)(e), both parties have parental responsibilities to the children and both appear to be starting new relationships.
In relation to s 75(2)(f), the mother is currently in receipt of a child care subsidy of $581 per week.
In relation to s75(2)(g), the parties have separated, and the Court is satisfied that the orders to be made provide a standard of living, that is in all circumstances reasonable.
In relation to s 75(2)(h), this has no application.
In relation to s 75(2)(ha), this has no application.
In relation to s 75(2)(j), this has no application.
In relation to s 75(2)(k), this has no application.
In relation to s 75(2)(l), the orders to be made will continue to protect the mother in her primary carer role, until progressing to full equal time.
In relation to s 75(2)(m), the mother is currently living with her mother and step-father, and her brother and his partner, as well as the children. The mother is not paying rent but contributes to the household expenses and her brother and his partner pay rent to the parents. The father is currently living with his parents on a property owned by his parents and four uncles, three of whom all live on the same property. The father’s business is conducted from the same property and his business pays a rent of $750 per week to the owners, being his parents and four uncles.
In relation to s 75(2)(n), the Court has taken into account the orders to be made in relation to the property of the parties.
In relation to s 75(2)(naa), this has no application.
In relation to s 75(2)(na), the father is not currently paying child support but is potentially liable to do so in the future. The mother has received an assessment of $674.53 per week, and an objection by the father reduced the back pay.
In relation to s 75(2)(o), there are no other facts and circumstances that the justice of the case requires to be taken into account.
In relation to s 75(2)(p), this has no application.
In relation to s 75(2)(q), this has no application.
The above considerations include the requirements of s79(4) (f) and (g). As identified above the Court has found that the mother’s financial and non-financial contributions were substantially greater than the father’s and that in percentage terms, reflect a property adjustment being appropriate of 65% in favour of the mother of the net property pool, which would amount to $1,389,804. 35% of the net property pool for the father, reflects an amount of $748,356.
Taking into account the above future considerations including the father’s financial resources through the J Pty Ltd business, the father’s greater earning capacity and the mother’s greater parenting responsibilities until 2028, there should be a further adjustment of 5% in favour of the mother. The Court finds that the alteration of 70% of the net property pool amounts to $1,496,712 in favour of the mother. 30% of the net property pool for the father, reflects an amount of $641,448.
The Court turns to the fourth consideration the Court the Court in summary has substantially accepted the mother’s submissions on property, has taken into account the history of the marriage and the relationship preferring the evidence of the mother. The Court does not accept that there should be any order for return of specific items, other than the agreed items being personal items and motor vehicles, and finds that such a process would also be likely to give rise to further disputes, conflicts and possible proceedings. The injunctive order number 16 on 13 July 2023 should be vacated. Taking into account all the circumstances and the above findings and contingencies and the Court is satisfied that this outcome in the alternation of property interest orders reflects a just and equitable result and that the alternation of property interest orders are appropriate.
I certify that the preceding one hundred and eighty-two (182) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 24 April 2024
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