Saidov & Saidov (No 4)
[2025] FedCFamC2F 495
•16 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saidov & Saidov (No 4) [2025] FedCFamC2F 495
File number: CAC 493 of 2020 Judgment of: JUDGE PARKER Date of judgment: 16 April 2025 Catchwords: FAMILY LAW – CHILDREN – whether the parties’ three young children are at unacceptable risk of physical, psychological and emotional harm from Mother – where serious concerns raised about Mother’s mental health and parenting capacity – failure by Mother to support relationship with Father – persistent failure by Mother to comply properly with court orders – where children are to reside with Father and spend no time with Mother
FAMILY LAW – PROPERTY – dispute as to whether funds received from De Facto Husband’s parents were a gift or a loan – whether funds withdrawn by De Facto Wife from superannuation are to be added back – full-time care of young children
FAMILY LAW – PRACTICE AND PROCEDURE – whether evidence elicited under cross-examination by a member of Counsel who did not hold a valid practising certificate should be excluded pursuant to section 138 of the Evidence Act 1995 (Cth)
Legislation: Evidence Act 1995 (Cth) ss 138, 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DAAA, 69ZM, 69ZN, 69ZX, 90SM, 90SF, 102NA, 117
Family Law Amendment Act 2023 (Cth) s 12(b)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 175, 189
Judiciary Act 1903 (Cth) s 55B(1)(a)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.23(4)(b), 3.08, 8.15(3)(e), 13.14
Legal Practitioners Act 1981 (SA) ss 5, 21(1)(a); 21(2)(e)
International Covenant on Civil and Political Rights art 14
Cases cited: A & A [1998] FamCA 25; (1998) FLC ¶92-800
Adair & Adair [2019] FamCAFC 70
af Petersens & af Petersens [1981] FamCA 50; (1981) FLC ¶91-095
Aleksovski & Aleksovski [1996] FamCA 111; (1996) FLC ¶92-705
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Atkinson v Bradford Third Equitable Benefit Building Society (1890) 25 QBD 377
B & B (Access) [1986] FamCA 52; (1986) FLC ¶91-758
B & B [1993] FamCA 143; (1993) FLC ¶92-357
B & B: Family Law Reform Act 1995 [1997] FamCA 33; (1997) FLC ¶92-755
Bant & Clayton [2019] FamCAFC 198; (2019) FLC ¶93-924
BAR & JMR (No 2) [2005] FamCA 386; (2005) FLC ¶93-231
Bennett & Bennett [2001] FamCA 462; (2001) FLC ¶93-088
Best & Best [1993] FamCA 107; (1993) FLC ¶92-418
Bevan & Bevan [2013] FamCAFC 116; (2013) FLC ¶93-545
Bielen & Kozma [2022] FedCFamC1A 221
Biltoft & Biltoft [1995] FamCA 45; (1995) FLC ¶92-614
Bishop & Bishop [2013] FamCAFC 138; (2013) FLC ¶93-553
Blinko & Blinko [2015] FamCAFC 146
Bokin & Wild [2022] FedCFamC1A 209
Bolger & Headon [2014] FamCAFC 27; (2014) FLC ¶93-575
Brown & Pederson [1989] FamCA 8
Browne & Green [1999] FamCA 1483; (1999) FLC ¶92-873
Buljubasic & Buljubasic [1999] FamCA 474; (1999) FLC ¶92-865
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
Cerini & Cerini[1998] FamCA 143
Champness & Hanson [2009] FamCAFC 96; (2009) FLC ¶93-407
Chorn & Hopkins [2004] FamCA 633; (2004) FLC ¶93-204
Clauson & Clauson [1995] FamCA 10; (1995) FLC ¶92-595
Coghlan & Coghlan (2005) FLC ¶93-220; [2005] FamCA 429
Collins & Collins [1990] FamCA 141; (1990) FLC ¶92-149
Costello & Langdon [2024] FedCFamC1A 168
Cotton & Cotton [1983] FamCA 18; (1983) FLC ¶91-330
Cubbin & Cutler [2018] FamCAFC 84
Daly & Campbell [2005] FamCA 1046; (2005) FLC ¶93-236
Dennison & Wang [2010] FamCAFC 182
Dickons & Dickons [2012] FamCAFC 154
DJM & JLM [1998] FamCA 97; (1998) FLC ¶92-816
Doherty & Doherty [2006] FamCA 199 (2006) FLC ¶93-256
Employment Advocate v Williamson [2001] FCA 1164
Ferraro & Ferraro [1992] FamCA 64; (1993) FLC ¶92-335
Fields & Smith [2015] FamCAFC 57; (2015) FLC ¶93-638
Flanagan & Handcock (2002) FLC ¶93-102
Gibbons v Commonwealth of Australia [2010] FCA 462
Gorman & Huffman and Anor [2016] FamCAFC 174
Grella & Jamieson [2017] FamCAFC 21
Haines & Haines [2022] FedCFamC1F 685
Harridge & Harridge [2010] FamCA 445
Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervenor) [2003] FamCA 395; (2003) FLC ¶93-143
In re Brookers (Australia) Ltd (in liq); Brooker v Pridham (1986) 41 SASR 380; (1986) 10 ACLR 428
Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC ¶94-092
Jabour & Jabour [2019] FamCAFC 78; (2019) FLC ¶93–898
JEL & DDF [2000] FamCA 1353; (2001) FLC ¶93-075
Kadir v The Queen; Grech v The Queen [2020] HCA 1; (2020) 267 CLR 109
Kowaliw & Kowaliw (1981) FLC ¶91-092
Lainhart & Ellinson [2023] FedCFamC1A 200; (2023) FLC ¶94-166
Lee Steere & Lee Steere (1985) FLC ¶91-626
Levick & Levick [2003] FamCA 40; (2006) FLC ¶93-254
Lovine & Connor and Anor [2012] FamCAFC 168; (2012) FLC ¶93-515
M & M [1988] HCA 68; (1988) 166 CLR 69
Mallet & Mallet [1984] HCA 21; (1984) 156 CLR 605
Maluka & Maluka [2011] FamCAFC 72; (2011) FLC ¶93-464
Manolis & Manolis (No 2) [2011] FamCAFC 105
Marsh & Marsh [2014] FamCAFC 24; (2014) FLC ¶93-576
Martin & Newton [2011] FamCAFC 233; (2011) FLC ¶93-490
Masoud & Masoud [2016] FamCAFC 24; (2016) FLC ¶93-689
Mayne & Mayne (No 2) [2012] FamCAFC 90; (2012) FLC ¶93-510
Mazorski & Albright [2007] FamCA 52
McCall & Clark [2009] FamCAFC 92; (2009) FLC ¶93-405
Moose & Moose [2008] FamCAFC 108; (2008) FLC ¶93-375
N & S & The Separate Representative [1995] FamCA 139; (1996) FLC ¶92-655
Napier & Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303
New South Wales v Canellis [1994] HCA 51; (1994) 181 CLR 309
Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265
O’Brien & O’Brien [1992] FamCA 52; (1993) FLC ¶92-396
Oberlin & Infeld [2021] FamCAFC 66; (2021) FLC ¶94-017
Ogilvie v Adams [1981] VicRp 92; (1981) VR 104
Omacini & Omacini (2005) FLC ¶93-218
Palumbo & Mandel [2019] FamCAFC 228; (2019) FLC ¶93-929
Parker v Comptroller-General of Customs [2009] HCA 7
Paul & Paul [2012] FamCAFC 64; (2012) FLC ¶93-505
Paul James Love v Paul Pattison (as trustee of the bankrupt estate of Paul James Love) & Anor [1998] FCA 967
Pickford & Pickford [2024] FedCFamC1A 249
Pierce & Pierce [1998] FamCA 74; (1999) FLC ¶92-844
Prince & Prince [1984] FamCA 7; (1984) FLC ¶91-501
Rodgers & Rodgers (No 2) [2016] FamCAFC 104; (2016) FLC ¶93-712
Russell & Russell [1999] FamCA 1875; (1999) FLC ¶92-877
Saidov & Saidov (No 3) [2025] FedCFamC2F 226
Saidov & Saidov [2025] FedCFamC1A 49
Saidov & Saidov [2025] FedCFamC2F 165
Scriven & Scriven [2020] FamCAFC 236; (2020) FLC ¶93-988
Sellen & Treadway (No 2) [2022] FedCFamC2F 1379
Sigley & Evor [2011] FamCAFC 22
Simons & Simons [2020] FamCAFC 128
Slater & Light [2013] FamCAFC 4
Stanford & Stanford [2012] HCA 52; (2012) 247 CLR 108
Stevenson & Hughes [1993] FamCA 14; (1993) FLC ¶92-363
Storstrand & Storstrand [2024] FedCFamC1A 128
Taylor & Barker [2007] FamCA 1246; (2007) FLC ¶93-345
Teal & Teal [2010] FamCAFC 120
Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038
Townsend & Townsend (1995) FLC ¶92-569
Trevi & Trevi [2018] FamCAFC 173; (2018) FLC ¶93-858
Underwood & Underwood [1980] FamCA 1; (1981) FLC ¶91-020
UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107
Vadisanis & Vadisanis [2014] FamCAFC 97; (2014) FLC ¶93-593
Vasser & Taylor-Black [2007] FamCA 547; (2007) FLC ¶93-329
Waters & Jurek [1995] FamCA 101; (1995) FLC ¶92-635;
Willis & Willis [2007] FamCA 819
Division: Division 2 Family Law Number of paragraphs: 589 Date of hearing: 8-11 April and 8-9 July 2024, 3-6 and 14 February and 7-8 April 2025 Place: Adelaide Counsel for the Applicant: Mr Anderson (8-11 April and 8-9 July 2024)
Ms Betro (3-6 and 14 February 2025)
Ms Pangallo (7-8 April 2025)Solicitor for the Applicant: Eastern Legal Counsel for the Respondent: Ms Lee (8-11 April and 8-9 July 2024, 3-4 February 2025)
Mr Bowler (6 and 14 February 2025)
No appearance (7-8 April 2025)Solicitor for the Respondent: Debra Spizzo and Associates (until 26 March 2025)
Nevett Ford (26 March 2025 – 2 April 2025)
Unrepresented (from 2 April 2025)Counsel for the Independent Children's Lawyer: Ms Fuda Solicitor for the Independent Children's Lawyer: Comley Legal ORDERS
CAC 493 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SAIDOV
Applicant
AND: MS SAIDOV
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
16 APRIL 2025
UPON NOTING THAT:
A.Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to an comply with an order are set out in Annexure A and the Fact Sheet from the Federal Circuit and Family Court attached hereto and these particulars are included in and form part of these orders.
THE COURT ORDERS THAT:
Parenting
1.All previous parenting orders are discharged.
2.The Father have sole parental responsibility for the children X born in 2016, Y born in 2017 and Z born in 2019 (‘the children’).
3.The Father advise the Mother via the Our Family Wizard App about any major long-term decisions he makes for the children.
4.The children live with the Father.
5.The children spend no time with the Mother.
6.The Mother be at liberty to communicate with the children by way of card, gift or letter by prepaid post to a postal address provided in writing by the Father each alternate month commencing April 2025.
7.The Father advise the Mother in writing of a postal address for the purposes of giving effect to order 6 herein forthwith and within 14 days of any change to that address.
8.The Father be at liberty to withhold any card, gift or letter sent by the Mother to the children if he forms the view that its contents are abusive or may for any other reason cause the children or any of them to suffer emotional harm.
9.The Mother have no communication with the children save as expressly provided for in these orders.
10.The Mother be restrained and an injunction is hereby granted restraining her from:
(a)Attending any school, educational facility or other location at which the children may be present from time to time; and/or
(b)Approaching within 50 metres of any of the children; and/or
(c)Removing any of the children from the care of the Father or the care of any other person or organisation.
11.The parties each be and an injunction is hereby granted restraining them from:
(a)Posting any content about the children or the other party on the internet or social media (other than in private groups or forums not accessible to the public);
(b)Denigrating the other party or their family to or in the presence or hearing of the children; and/or
(c)Discussing these proceedings or the dispute between the parties with or in the presence or hearing of the children.
12.The Father be at liberty to:
(a)Obtain passports for the children without the need for the Mother’s signature or consent; and
(b)Travel internationally with the children or facilitate their international travel without the need for the Mother’s consent.
13.The Mother be at liberty to obtain, at her own expense, copies of the children’s school reports, school photographs, medical information and other documents and materials ordinarily made available to parents.
14.As soon as practicable after the making of these orders, the Independent Children’s Lawyer meet with the children via electronic means to explain the orders to each of them.
Property
In full and final settlement of all claims that either party may have against the other for settlement of property and alteration of interests in property pursuant to Part VIIIAB of the Family Law Act 1975 (Cth):
15.Within sixty (60) days of these orders (‘the settlement date’) the De Facto Husband pay into his solicitor’s trust account the sum of ONE HUNDRED AND THIRTY-NINE THOUSAND ONE HUNDRED AND FIFTY-ONE DOLLARS ($139,151) (‘the settlement sum’), such sum to be held on behalf of the De Facto Wife to be distributed in accordance with order 19 hereof.
16.Contemporaneously with the De Facto Husband’s compliance with order 15 hereof:
(a)The De Facto Wife do all acts and things required to transfer to the De Facto Husband the whole of her estate, title and interest in the property at B Street, Suburb C in the State of New South Wales (‘the Suburb C property’) with the De Facto Husband to be solely responsible for the costs of the transfer including the discharge of mortgage fee, registration of transfer fee, conveyancing and PEXA fees; and
(b)The De Facto Husband do all acts and things required to discharge the mortgage encumbering the Suburb C property and refinance the associated liability into his sole name.
17.Pending the settlement date, the De Facto Husband make all instalments of principal and interest pursuant to the loan secured by way of mortgage encumbering the Suburb C property and pay all rates, taxes and other outgoings with respect to the Suburb C property.
18.In default of payment of the settlement sum by the settlement date, and should such default continue for a period of more than 30 days, the Suburb C property shall be sold and the net proceeds of sale thereof shall be divided as to the settlement sum to the De Facto Wife together with all interest accrued thereon and the costs of and incidental to any application to this Honourable Court for sale of the said property, and the balance thereof to the De Facto Husband.
19.The funds paid into the De Facto Husband’s solicitor’s trust account in accordance with order 15 hereof shall be distributed to De Facto Wife forthwith upon her compliance with order 16(a) hereof, SAVE THAT in the event that any application for costs against the De Facto Wife is made by the De Facto Husband and/or the ICL in accordance with order 32 hereof, the De Facto Husband’s solicitors shall be at liberty to retain a sum equivalent to the total of the quantum of costs sought against the De Facto Wife pending resolution or determination of such costs application(s) and shall be at liberty to apply so much of the funds as are required to meet any costs order made prior to distributing the balance to the De Facto Wife.
20.The De Facto Husband indemnify the De Facto Wife and keep her forever indemnified with respect to all instalments of principal and interest pursuant to the loan secured by mortgage encumbering the Suburb C property.
21.The De Facto Wife hereby indemnifies the De Facto Husband and keeps the De Facto Husband forever indemnified in respect of:
(a)Any past, present or future taxation liability of the De Facto Wife;
(b)Any liability registered in the De Facto Wife’s name;
(c)Any credit card liability registered in the De Facto Wife’s name; and
(d)Any future liability of the De Facto Wife.
22.The De Facto Husband hereby indemnifies the De Facto Wife and keeps the De Facto Wife forever indemnified in respect of:
(a)Any past, present or future taxation liability of the De Facto Husband;
(b)Any liability registered in the De Facto Husband’s name;
(c)Any credit card liability registered in the De Facto Husband’s name;
(d)The funds owed pursuant to the loan agreement with Ms D and Mr E; and
(e)Any future liability of the De Facto Husband.
23.Subject to any other provision of these orders, henceforth all real property and personalty in the possession of the De Facto Wife including but not limited to:
(a)her Motor Vehicle 1;
(b)her savings;
(c)her superannuation entitlements;
(d)her valuables collection;
(e)any long service leave entitlements and life insurances;
(f)any shares and investments in her name; and
(g)any furniture, furnishings and effects
shall vest absolutely in the De Facto Wife free of all further claim or demand or right or entitlement of the De Facto Husband.
24.Subject to any other provision of these orders, henceforth all real property and personalty in the possession of the De Facto Husband including but not limited to:
(a)the Suburb C property;
(b)his Motor Vehicle 2;
(c)his Motor Vehicle 3;
(d)his Motor Vehicle 4;
(e)his savings;
(f)his jewellery;
(g)his superannuation entitlements;
(h)any long service leave entitlements and life insurances; and
(i)any furniture, furnishings and effects
shall vest absolutely in the De Facto Husband free of all further claim or demand or right or entitlement of the De Facto Wife.
25.In relation to the De Facto Husband’s superannuation entitlements with Super Fund 1, Member Number: … (“Super Fund 1”):
(a)pursuant to section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the De Facto Husband’s entitlements in Super Fund 1, the De Facto Wife shall be paid an amount calculated in accordance with Part 7 of the Family Law (Superannuation) Regulations 2025 using the base amount of $22,956 and there shall be a corresponding reduction in the entitlement the De Facto Husband (and any other person to whom a splittable payment may be made) would have had in Super Fund 1 but for this order;
(b)the operative time for order 25(a) is four business days after the service of the final orders upon Super Fund 1;
(c)having been afforded procedural fairness, the trustees of Super Fund 1 shall be bound to observe the provisions in paragraphs 25(a) and 25(b) herein and the requirements pursuant to the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2025;
(d)the parties and the trustees of Super Fund 1 shall do all such things and sign all such documents as may be necessary to comply with the provisions in paragraphs 25(a) and 25(c) herein and the requirements pursuant to the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2025;
(e)within 7 days of this order being made:
(i)the De Facto Wife shall serve a copy of this order upon the trustees of Super Fund 1; and
(ii)the De Facto Wife shall give notice in writing to the trustees of Super Fund 1 pursuant to regulation 72 of the Family Law (Superannuation) Regulations 2025;
(f)after service of payment split notice pursuant to regulation 7A.03 of the Superannuation Industry (Supervision) Regulations 1994 the De Facto Wife shall do all things and sign all documents as may be necessary to, including but not limited to, exercising her request pursuant to regulation 7A.05 of the Superannuation Industry (Supervision) Regulations 1994 for the transfer or rollover of the transferable benefits pursuant to these orders to a complying superannuation fund of her choosing.
(g)the parties shall each pay one half of any fees charged by the trustees of Super Fund 1 in administering the payment split pursuant to paragraph 25(a) herein.
26.Within 14 days of these orders, the parties shall do all things and take all steps and sign all such documents as shall be necessary to sever their financial ties in respect of telephone plan contracts, the payment of life insurance premiums, the payment of health insurance premiums and any other joint contracts, accounts, plans or services.
27.Each party shall (subject to compliance with the specific provisions of these orders):
(a)release the other party from any liability for any claim that either one may have against the other in respect of any property and/or financial resources present or future whether equity vested or contingent it now or hereafter owned by either of them; and
(b)discharge without calling upon the other to contribute thereto to their several debts contracted for or by them.
28.Henceforth each party is restrained, and an injunction is granted restraining each of them from pledging the credit of the other.
29.In relation to each transfer required by the terms of these orders, the transferee in each case shall pay the cost and disbursements of and incidental to any transfer to give effect to the terms of these orders.
30.Each party do all such acts and things and sign all such necessary documents to give effect to the terms of these orders.
31.If either party refuses or neglects to execute any Memorandum of Transfer or any other document necessary to give effect to the terms hereof in the proper form within 7 days after the same shall have been tendered to that party by or on behalf of the other party then in such case a Judicial Registrar of the Federal Circuit and Family Court of Australia (Division 2), upon proof by affidavit of such refusal or neglect, is hereby appointed to execute and if in his or her opinion it shall be necessary to do so, to settle the same and do all such other acts and things and execute such other documents as shall be necessary to give full force and effect hereto.
Other
32.Any application as to costs arising from these proceedings (including any application for reserved costs and any application for contribution to the costs of the Independent Children’s Lawyer) must:
(a)Be made in proper form, by way of an Application in a Proceeding or Response to Application in a Proceeding as applicable;
(b)Be made within 21 days of the date of these orders;
(c)Set out with particularity the precise orders sought;
(d)Be accompanied by an affidavit setting out:
(i)The evidence relied upon in support of the application, including annexing, where applicable, copies of the relevant costs agreement and invoices;
(ii)The means by which the costs sought have been calculated; and
(iii)Irrespective of the basis upon which the costs are sought, a calculation of the costs sought in accordance with the scale set out in Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2)(Family Law) Rules 2021 (Cth).
AND IT IS NOTED that any such application will be listed for hearing on at 10:00am on 23 May 2025.
33.The parties each be at liberty to file an affidavit in response to any costs application made by the other party or the ICL by no later than 7 days after receipt of such application.
34.No later than 7 days prior to the date upon which any costs application filed is listed for hearing, the parties each file and serve a Case Outline document setting out a summary of argument in relation to the issue of costs which addresses the factors set out in section 117 of the Family Law Act 1975 (Cth).
35.The appointment of the Independent Children’s Lawyer be discharged upon the finalisation of all costs applications and appeals arising from these proceedings.
36.All extant applications are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE PARKER:
INTRODUCTION
The applications before the Court relate to parenting and property settlement proceedings between the Applicant, MR SAIDOV (‘the Father’ or ‘the De Facto Husband’), and the Respondent, MS SAIDOV (‘the Mother’ or ‘the De Facto Wife’) (collectively ‘the parties’). At the time of the commencement of the trial, each of the parties sought orders with respect to the care arrangements for their three children and orders dividing their property between them pursuant to section 90SM of the Family Law Act 1975 (Cth) (‘the Act’). These proceedings have a long, complex and unfortunate history.
BACKGROUND
The Father was born in 1983 and was aged 42 at the time of conclusion of the trial. He is employed as a Public Servant with a government department. The Mother was born in 1982 and was aged 42 at the time of the conclusion of the trial. She is a qualified health worker but was not engaged in paid employment at the time of the trial.
The parties commenced cohabitation in 2011 in Adelaide. They relocated to the City F region in 2012. The parties separated on 8 December 2019 after a period of cohabitation of approximately 8 years.
There are three children of the parties’ relationship, X, born in 2016 and aged 9 at the time of conclusion of the trial; Y, born in 2017 and aged 7 at the time of conclusion of the trial; and Z born in 2019 and aged 5 at the conclusion of the trial (collectively ‘the children’).
At the commencement of the trial, the children lived with the Mother in Adelaide. By the time of its conclusion, they were living in the City F region with the Father.
MATERIAL RELIED ON
The Father relied on the following documents:
(a)Further Amended Initiating Application filed on 1 April 2025;
(b)Trial affidavit (property) filed on 8 March 2024;
(c)Trial affidavit (parenting) filed on 5 April 2024;
(d)Affidavit of Father filed on 3 July 2024;
(e)Affidavit of Father filed on 6 September 2024;
(f)Affidavit of Father filed on 20 January 2025;
(g)Affidavit of Father filed on 2 April 2025;
(h)Affidavit of Dr G filed on 4 April 2024;
(i)Affidavit of Ms D filed on 8 March 2024;
(j)Financial Statement filed on 8 March 2024; and
(k)Case Outline filed on 8 April 2024.
The Mother relied on the following documents:
(a)Amended Response to Initiating Application filed on 9 November 2021;
(b)Trial affidavit (property) filed on 4 April 2024;
(c)Trial affidavit (parenting) filed on 4 April 2024;
(d)Affidavit of Mother filed on 8 July 2024;
(e)Affidavit of Mother filed on 13 September 2024;
(f)Financial Statement filed on 8 April 2024; and
(g)Case Outline filed 7 April 2024.
The Independent Children’s Lawyer (‘ICL’) relied on the following documents:
(a)Affidavit of Ms V (previous ICL) annexing report of Dr G filed on 17 February 2023;
(b)Affidavit of Ms V (previous ICL) annexing child protection records filed on 7 September 2023;
(c)Affidavit of Ms V (previous ICL) annexing copies of school reports filed on 16 November 2023; and
(d)Case Outline filed 5 April 2024.
The operation of rule 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’) was dispensed with and the annexures to the affidavits filed by each of the parties were accepted into evidence. In the case of the Father and the ICL, this included extensive child protection and other independent records. Each of the parties also tendered documents throughout the course of the trial.
Although each and every aspect of the evidence relied upon by the parties has not been referred to in these reasons, I have had regard to the totality of the evidence before the Court and the submissions of each of the parties and the ICL.
In accordance with section 140(1) of the Evidence Act 1995 (Cth) (‘the Evidence Act’), all findings of fact in this judgment are made on the balance of probabilities. This standard, however, is ‘not the measure by which an unacceptable risk of harm is to be assessed,’[1] and it has not been applied to my consideration of issues of unacceptable risk. I have had regard to the matters outlined in section 140(2) of the Evidence Act, including but not limited to the gravity of the matters alleged, when making the findings outlined in these reasons.
[1] Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC ¶94-092.
At times, the manner in which the trial was conducted, including the conduct of parties and witnesses, necessitated active judicial control, management and direction of the type envisaged by sections 69ZN and 69ZX of the Act.
THE PARTIES AND THEIR EVIDENCE
The Father gave his evidence in a calm, straightforward and very precise manner. He made appropriate concessions and impressed as endeavouring to give truthful and responsive answers to the questions he was asked. His evidence was not seriously undermined in cross-examination.
The Mother was not an impressive witness and did not present as a reliable historian. She presented as extremely vague and at times confused even by straightforward questions and propositions, and at times even by aspects of her own evidence. At times during her evidence, it was difficult to tell whether she was being deliberately evasive by pretending to be confused or was experiencing genuine difficulty grasping the significance of the issues with which she was confronted. At times she spoke at length, making speeches without providing a responsive answer to the question she had been asked. It was often necessary to direct her attention back to the need to answer the question.
The Mother’s evidence was at times internally inconsistent. It was also frequently contradicted by independent records, such that acceptance of all or most of her evidence would require accepting the inherently implausible notion that numerous independent persons and organisations were all frequently mistaken, untruthful or colluding against her. At times she claimed that independent records had wrongly reported things she had said, even though she had said those same things to the Court. I formed the impression that the Mother held a somewhat distorted worldview and was detached from the reality of her circumstances and those of the children.
The weight that can be given to the Mother’s evidence to the extent to which it conflicts with that of the Father or is not otherwise corroborated by independent records is limited as a result of the fact that part of the way through the trial, she failed to continue to make herself available for cross-examination when required by the Court to do so. As a consequence of this, together with my observations of each of the parties as they gave their evidence, and the fact that the Father’s evidence was generally supported by, and the Mother’s evidence contradicted by, independent documentary evidence, where the evidence of the parties conflicts, I prefer the evidence of the Father.
The paternal grandmother, MS D, gave evidence and was cross-examined. Her evidence was straightforward and credible and was not effectively challenged in cross-examination. I accept her evidence.
Despite active case management and application of the powers provided for in section 69ZX of the Act to attempt to contain the trial and guide its progress at least insofar as it related to parenting matters, the trial was required to be adjourned part-heard on no less than four occasions. On the occasion of the second such adjournment, it was agreed between all parties that it was appropriate that an updated family report be prepared during the period of the adjournment, which necessitated a lengthier adjournment than would ordinarily have been desirable. As a consequence of these developments, a considerable period of time passed between the commencement of the trial and its conclusion.
Notwithstanding the breaks in the trial, the passages in this judgment with respect to my observations of the each of the witnesses and their evidence were based on detailed contemporaneous notes and were drafted almost immediately following the giving of the evidence in question. Those observations were therefore unaffected by the passage of time between the commencement of the trial and the delivery of these reasons.
THE MOTHER’S PARTICIPATION IN THE PROCEEDINGS
During the first two tranches of the trial, the Mother was represented by solicitors and Counsel and generally participated effectively, save for ongoing non-compliance with procedural directions.
In February 2025, when the trial resumed after the second adjournment, the following occurred:
(a)On 3 and 4 February 2025, being the seventh and eighth days of the trial respectively, the Mother gave evidence and was cross-examined by Counsel for the Father with respect to parenting matters.
(b)On 5 February 2025, while the Mother remained under cross-examination, the Mother’s solicitor sought an adjournment on the basis that the Mother’s Counsel was unwell. I took that statement at face value and the trial was adjourned, with the consent of the Father and the ICL, to the following day. It later emerged that on the same day, the Mother’s Counsel had accepted a brief to appear before another judge of the Court in the hearing of a Contravention Application. That judge was also advised that Counsel was unwell, and she did not appear at either hearing.
(c)Late in the afternoon on 5 February 2025, the Mother’s solicitor improperly unilaterally emailed my chambers seeking a further adjournment on the basis of Counsel’s asserted illness. A medical certificate was attached to that email. The Mother’s solicitor was advised by return email that the matter remained listed for the following day and that the Mother’s solicitor would need to appear if Counsel was unable to do so. I note that at that time, the Mother was under cross-examination by Counsel for the Father, and was yet to be cross-examined by Counsel for the ICL, meaning that the role to be taken by the Mother’s representative would be minimal, as would the prejudice to her of continuing with a representative other than trial Counsel, such as her solicitor. Although it had originally been intended that the trial would conclude during the week commencing 3 February 2025, given the loss of the hearing day on 5 February 2025, it appeared unlikely that this would occur, and a further adjournment for a final day to hear the evidence of the Family Report Writer, Ms H, and the parties’ closing submissions after the conclusion of the Mother’s evidence appeared inevitable. That inevitability was subsequently confirmed when the Court was advised that Ms H had become ill.
(d)Just over an hour after the Mother’s solicitor was advised that the matter remained listed, the Mother’s solicitor again used the improper method of a unilateral email to chambers to attempt to seek an adjournment of the trial. This time, it was the Mother who was asserted to be ill. A further medical certificate was attached. That email was sent after business hours and did not come to my attention until the following morning. The Mother’s solicitor was again advised that the matter remained listed.
(e)On 6 February 2025, being the tenth scheduled day of the trial, when the matter was called on, alternative Counsel appeared on behalf of the Mother. The Mother’s solicitor was also present. The Mother was not in attendance despite not having been excused. Counsel then appearing for the Mother made an application for an adjournment on the basis of the Mother’s asserted illness. The adjournment application was opposed by the Father and the ICL. Counsel for the Mother tendered the medical certificate referred to above,[2] which merely recorded that the Mother was ‘receiving medical treatment’ and was ‘unfit to continue her usual activities’ on 6 and 7 February 2025. This medical certificate was woefully inadequate as an evidentiary basis for a contested adjournment application or for satisfying the Court that the Mother was in fact unwell at all.[3] The timing of the assertion of the Mother’s illness almost immediately after her solicitor had been informed that the matter would be proceeding was highly questionable. For reasons which were given ex tempore, the adjournment application was refused. Counsel for the Mother was advised at 10:18am that the Mother would be required to be in attendance by 11:30am.
(f)By 11:33am, the Mother had not presented herself. She was called outside the courtroom and was not in attendance. Counsel for the Mother indicated that she had not responded to attempts to contact her by telephone or email, which was entirely unacceptable on a day when her attendance at court was required and she had not been excused. This was not the first occasion upon which the Mother had failed to attend Court despite being required to do so, this also having occurred on 14 October 2024. Her clear attempt to help herself to an adjournment which had not been granted to her by failing to present herself was not successful.[4] On the joint application of the Father and the ICL, the Mother’s case was closed (noting that this would entail consequences for the weight that could be given to her evidence in circumstances in which she had not continued to make herself available for cross-examination). A final day was listed for Ms H’s evidence and the conclusion of the trial the following week.
[2] Exhibit M3.
[3] See UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107; Haines & Haines [2022] FedCFamC1F 685.
[4] In accordance with the principles discussed by the Full Court of the Family Court of Australia in Buljubasic & Buljubasic [1999] FamCA 474; (1999) FLC ¶92-865.
When the matter resumed on 14 February 2025 after the third adjournment, the following occurred:
(a)Counsel who had appeared on behalf of the Mother the previous week (not her original trial counsel), again appeared on her behalf. The Mother’s original trial counsel was excused from further involvement.
(b)Counsel for the Mother sought a further adjournment on the dual bases that:
(i)The Mother had disclosed information about her conduct which was relevant to the proceedings, but which the Mother was refusing to disclose to the Court. As a consequence, Counsel was of the view that both he and his instructing solicitor may be ethically compromised. Although he had taken preliminary advice, he sought the opportunity to obtain further professional advice; and
(ii)He had formed concerns based on the Mother’s presentation as to whether she had capacity to continue to provide instructions and sought time to enable a psychological assessment to be undertaken.
(c)For reasons that were given ex tempore,[5] the adjournment was granted, based predominantly on the latter of these concerns. The remainder of the trial was adjourned to a date to be fixed, and orders were made with respect to the filing of any applications for a litigation guardian or the withdrawal of the Mother’s legal representatives.
[5] Saidov & Saidov (No 3) [2025] FedCFamC2F 226.
On 6 March and 14 March 2025 respectively, the Mother filed two appeals against interim orders. She represented herself at a show cause hearing with respect to the first of those appeals on 19 March 2025. That appeal was summarily dismissed on that day.[6]
[6] Saidov & Saidov [2025] FedCFamC1A 49.
On 26 March 2025, the matter was listed for mention and, having regard to the Mother’s apparent ability to participate as a litigant as demonstrated by her prosecution of the appeals, the balance of the trial was listed for 7 and 8 April 2025. At the mention on 26 March 2025, the Mother’s solicitors sought and were granted leave to withdraw from representing her.
Alternative solicitors (being the fourth firm of solicitors engaged by the Mother during the course of the proceedings) had filed a Notice of Address for Service on her behalf on 24 March 2025, and she was represented by Counsel instructed by her new solicitors at the mention on 26 March 2025. During that mention, for which the Mother was logged in to the electronic courtroom, Counsel foreshadowed the possibility that the recently appointed solicitors might also withdraw from acting for the Mother. Those solicitors filed a Notice of Withdrawal as Lawyer on 2 April 2025. The reasons for that withdrawal are not known to the Court.
At the mention on 26 March, the parties were each granted leave to file a further updating affidavit with respect to recent developments. The Father did so. The Mother did not.
Following the withdrawal of the Mother’s most recent set of solicitors, she was provided by email with copies of the sections of the Act and the Evidence Act that were of most relevance to the proceedings[7] and was advised to attend the court precincts prior to the commencement of the hearing day on 7 April 2025 in order to consult with a duty lawyer.
[7] Being ss 60B, 60CA, 60CC and 61DA of the version of Part VII the Family Law Act 1975 (Cth) that continues to apply to these proceedings, ss 90SM and 90SF of the Family Law Act 1975 (Cth) and ss 138 and 140 of the Evidence Act 1995 (Cth).
Shortly prior to the closure of the court registry on 4 April 2025, being the business day prior to the resumption of the trial, the Mother filed an Application in a Proceeding seeking a further adjournment and an order pursuant to section 102NA of the Act. That application was listed to be heard at 10:00am on 7 April 2025, being the same time at which the trial was listed to resume. Ultimately, the Court did not have the opportunity to hear and consider the Mother’s adjournment application as a result of the Mother’s conduct on the day when it was listed.
When the hearing commenced on 7 April 2025, the Mother was present but sat at the back of the courtroom, refused to appear on her own behalf, and resisted attempts to involve her in the proceedings. She was warned that if she did not approach the Bar table and address the Court to press her adjournment application, that application would be dismissed for want of prosecution. She continued to refuse to do so notwithstanding that indication, and the foreshadowed dismissal occurred.
Throughout the morning of 7 April 2025, the Mother was repeatedly asked whether she wished to participate in the hearing and told that she would need to approach the Bar table if she wished to do so. She approached the Bar table very briefly on approximately two occasions, primarily in order to assert that she had a ‘right to legal representation’ and to make generalised complaints about the matter proceeding in the absence of legal representation on her behalf (being sentiments which she also expressed several times by calling out from the back of the courtroom), but otherwise appeared intent on staging a form of protest by remaining at the back of the courtroom and refusing to appear to represent herself.
The Mother’s assertion that she had a ‘right to legal representation’ was not an accurate statement of the law.[8] In Paul James Love v Paul Pattison (as trustee of the bankrupt estate of Paul James Love) & Anor,[9] the Full Court of the Federal Court of Australia said as follows:
The first ground [of appeal] is, if we might say so, somewhat difficult to follow. It seems to assume that the appellant had a right to legal representation and because he appeared unrepresented the trial judge should have adjourned the case pending legal representation being obtained or that the trial judge should have taken some other step to secure that representation for the appellant. …
… the argument involves misconception. The misconception is that a party in a civil proceeding has some right to be represented by a legal practitioner. Our law knows no such right in a civil proceeding.
[8] New South Wales v Canellis [1994] HCA 51; (1994) 181 CLR 309. See also Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265.
[9] [1998] FCA 967.
Litigants in family law proceedings frequently appear without legal representation although it would be their preference to be represented, for a variety of reasons including but not limited to inability to fund legal representation, failure to qualify for legal aid funding or failure to arrange and retain legal representation in a sufficiently timely manner. The Mother’s lack of legal representation did not entitle her to an adjournment.
The Mother’s lack of legal representation and her apparent desire to retain a fifth set of solicitors may have been relevant to her application for an adjournment and the question of whether an adjournment was in the interests of justice,[10] had she pursued that application. However, for reasons which were not made clear, she refused to address the Court in order to do so. Following the events of 6 February 2025, the Mother could have been under no misapprehension that her failure to participate in the hearing would lead automatically to an adjournment.
[10] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
At the time of her decision not to press her adjournment application, the Mother had consulted with the duty lawyer and had recently received two judgments in these proceedings with respect to the considerations relevant to adjournment applications, both of which had been reduced to writing. The Mother’s apparent objection to participating in the hearing, and to it proceeding, in the absence of legal representation, was extremely difficult to reconcile with her decision not to press the adjournment application she had filed.
The Court was informed that although she had consulted with a duty lawyer on 4 April 2025, the Mother had expressly refused the opportunity to do so again on 7 April 2025, despite arrangements having been made by the ICL at the request of the Court for that to occur.
At one point during the hearing day on 7 April 2025, the Mother left the courtroom and remained absent for a portion of the hearing before returning some time later and again sitting at the back of the courtroom and declining to come to the Bar table. However, the Mother was present for and heard most of the content of the proceedings on that day.
Ultimately, the Mother was informed that there would be no further attempts to invite her to engage and that unless she made her way to the Bar table it would be assumed that she declined to participate. She remained at the back of the courtroom for the balance of the hearing that day.
On 8 April 2025, the Mother was again told that if she wanted to participate, she should make her way to the Bar table, and again she refused to do so. The matter was stood down for an extended period during the morning, during which the Mother was again encouraged to consult with the duty lawyer. She spent the entirety of the duration of the hearing that day at the back of the courtroom and did not take the opportunity to participate.
Counsel for the Father submitted, and I accept, that from the time the Mother refused to continue to make herself available to continue her cross-examination on 6 February 2025, she effectively abandoned her case. She did not engage properly with the proceedings again after that date.
As Kirby J held in the decision of the High Court of Australia in Allesch v Maunz:[11]
38.… Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
39.Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
40.Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
[citations omitted]
[11] [2000] HCA 40; (2000) 203 CLR 172.
The decisions made by the Mother from the time of the resumption of the trial on 7 April 2025 fall within the category of behaviour described by Kirby J in the passage above. The Mother was provided with multiple opportunities to participate in the resumed hearing and, despite the fact that to do so would have been in her interests, declined either to pursue her adjournment application or to act to protect her own interests.
COUNSEL APPEARING WITHOUT A PRACTISING CERTIFICATE
During the period when the trial was adjourned between 14 February and 7 April 2025, it came to the attention of the parties and the Court that Ms Betro, who had appeared as Counsel on behalf of the Father on 3-6 and 14 February 2025, had done so without a current practising certificate. This gave rise to the question of the treatment by the Court of the evidence given by the Mother under cross-examination by Ms Betro on 3 and 4 February 2025. That cross-examination related to parenting matters only, the Mother’s cross-examination with respect to financial matters having been undertaken by previous Counsel on 11 April 2024. Although the evidence was admitted at the time it was given, the question subsequently arose as to whether it should be excluded upon the discovery of the issue with respect to Ms Betro.
The Chief Executive Officer of the Law Society of South Australia (‘the Law Society’) appeared on the final day of the trial in order to provide the Court with information pertaining to the status of Ms Betro’s practising certificate. An updating email was subsequently sent to the Court by the Law Society, the contents of which were relayed to the parties. The combined effect of those communications was that Ms Betro had made application to the Law Society for a retrospective practising certificate which would cover a period including the period during which she appeared in the trial of this matter, and that application had been referred by the Law Society for determination by the Supreme Court of South Australia. At the time of delivery of these reasons, the outcome of that application is not yet known. It may be that the problem with respect to Ms Betro’s practising certificate will be retrospectively rectified, but that is not presently known.
At a mention on 26 March 2025, Counsel then appearing for the Mother foreshadowed that submissions would be made on her behalf with respect to this issue as part of her closing submissions at trial. No application was made at that time. Ultimately, this issue was not pressed by the Mother as a result of her disengagement with the proceedings and abandonment of her case prior to the conclusion of the trial. Submissions were made on behalf of the Father and the ICL with respect to the evidence elicited by Ms Betro in cross-examination of the Mother. Those submissions centred largely around whether the evidence should be excluded pursuant to the discretion contained in section 138 of the Evidence Act. Neither the Father nor the ICL supported the exclusion of the evidence.
Section 138 relevantly provides as follows:
138 Discretion to exclude improperly or illegally obtained evidence
(1)Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
…
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
‘Australian law’ is defined in the Dictionary to the Evidence Act as ‘a law of the Commonwealth, a State or a Territory.’[12] ‘Contravention’ is not defined. Its core meaning has been held to involve disobedience of a command expressed in a rule of law which may be statutory or non-statutory and involves doing that which is forbidden by law or failing to do that which is required by law to be done.[13] ‘Improperly’ is also not defined. The relevant ordinary meanings of ‘improper’ have been held to include ‘not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong.’[14]
[12] Employment Advocate v Williamson [2001] FCA 1164 at [78]; cited with approval in Parker v Comptroller-General of Customs [2009] HCA 7 at [28].
[13] Parker v Comptroller-General of Customs [2009] HCA 7 at [30].
[14] Parker v Comptroller-General of Customs [2009] HCA 7 at [29].
Consideration of the application of section 138 is a two-step process. First, it is necessary to determine whether the evidence was in fact obtained improperly or unlawfully. Consideration must then be given to whether, despite that conclusion, the discretionary considerations favour its admission.[15]
[15] Employment Advocate v Williamson [2001] FCA 1164 at [78]; cited with approval in Parker v Comptroller-General of Customs [2009] HCA 7 at [28].
As correctly submitted by Counsel for the Father, the party seeking to exclude the evidence bears the burden of demonstrating that the conditions for its exclusion are satisfied, namely that it was obtained improperly or in contravention of an Australian law.[16] In this case, that was, or was likely to have been, the Mother. In circumstances in which she ceased participating in the proceedings prior to the point at which submissions were to be, and were, made with respect to this issue, and no application was made for the evidence be excluded, that may be the end of the matter.
[16] Parker v Comptroller-General of Customs [2009] HCA 7 at [28].
I note, however, that it is an agreed fact that Ms Betro elicited the evidence in question in circumstances in which she was not entitled to appear before the Court. In my view, that agreed fact demonstrates that the evidence was obtained in contravention of, or at least in consequence of a contravention of, an Australian law, or, more particularly, the combined effect of a number of Australian laws.[17] As a consequence, out of an abundance of caution, I will consider the second limb of the discretion, being whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which it was obtained, having regard to the matters set out in subsection 138(3). These factors are overlapping and none can properly be considered in isolation.[18]
[17] Legal Practitioners Act 1981 (SA) ss 21(1)(a); 21(2)(e) (having regard to the definition of ‘local legal practitioner’ in s 5); Federal Circuit and Family Court of Australia Act 2021 (Cth) s 175; Judiciary Act 1903 (Cth) s 55B(1)(a); Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.08. In particular, section 21 of the Legal Practitioners Act 1981 (SA) creates an offence with a maximum penalty of $50,000 for the practice of law without a practising certificate.
[18] Kadir v The Queen; Grech v The Queen [2020] HCA 1; (2020) 267 CLR 109 at [42].
The probative value of the evidence
The Dictionary to the Evidence Act provides that the ‘probative value’ of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
The evidence in question in this case is highly probative. As submitted by Counsel for the Father, and as will be discussed in greater detail later in these reasons, the evidence given by the Mother under cross-examination demonstrated her fixed beliefs about the Father and the limited extent of her level of insight into her own parenting capacity. It also raised significant concern with respect to her presentation and demeanour. The capacity of the evidence to rationally affect the assessment of the probability that the Mother posed physical, emotional and psychological risks to the children, being key allegations made in the Father’s case, was high.
The importance of the evidence in the proceeding
This factor overlaps significantly with the preceding factor. Evidence may possess high probative value but not be important in the proceeding in a case in which other equally probative evidence is available.[19] In this case, the evidence was very important in one sense, in that it strongly reinforced, and in some ways demonstrated, the concerns that had been raised by the Father and by others about the Mother’s conduct, attitude and insight as demonstrated in other aspects of the evidence before the Court. The Mother’s presentation in the witness box also gave rise to significant concerns.
[19] Kadir v The Queen; Grech v The Queen [2020] HCA 1; (2020) 267 CLR 109 at [42].
That is not to say, however, that the outcome of the proceeding turned on the evidence elicited by Ms Betro in cross-examination of the Mother. The risk issues associated with the Mother’s care of the children were amply demonstrated by other evidence before the Court, particularly the contents of independent documents, and were also demonstrated by the Mother’s own evidence in chief, in which she admitted to extremely concerning behaviours and attitudes, as discussed later in these reasons. Indeed, both the Father and the ICL submitted that the majority of the contents of the evidence elicited by Ms Betro was already before the Court in the form of independent documentary records. Even if the Mother’s evidence had been wholly untested, it is unlikely that the determination of the key issues pertaining to risk of the children would have been different.
The nature of the relevant cause of action and the nature of the subject-matter of the proceeding
In my view, this is a very significant factor weighing in favour of admission of the evidence. These proceedings, and particularly the evidence in question, concern the best interests of children, which is a matter of utmost importance. Furthermore, these proceedings relate primarily to issues of extreme and concerning physical, psychological and emotional risk posed to young children. Children’s best interests, and particularly the protection of children from harm, is an important consideration in the exercise of the discretion under section 138 in parenting proceedings.[20]
[20] Gorman & Huffman and Anor [2016] FamCAFC 174.
The present proceedings, at least to the extent to which the impugned evidence is relevant, are ‘child-related proceedings’ within the meaning of section 69ZM of the Act. As such, they are proceedings to which Division 12A of Part VII of the Act applies. As a consequence, I am required to give effect to the principles in section 69ZN of the Act, which include the need to consider the needs of the children and the need to conduct the proceedings with as little formality, and legal technicality and form, as possible. In addition, the parliament has bestowed on the Court broad powers with respect to the admission of evidence.[21] These are also factors weighing in favour of admission of the evidence in question.
[21] Family Law Act 1975 (Cth), s 69ZX.
The gravity of the impropriety or contravention
There can be no doubt that the practice of law without a practising certificate is a serious matter.
Whether the impropriety or contravention was deliberate or reckless
There is no evidence before this Court to enable a finding as to whether the conduct in question was deliberate or reckless (as opposed, for example, to having been negligent). In particular, there is no evidence as to whether Ms Betro was aware that she did not hold a valid practising certificate at the time of her appearance in the trial of this matter.
Whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights
The only right recognised by the International Covenant on Civil and Political Rights which would appear to be engaged in the circumstances of this case is the right to a fair hearing contained in Article 14. Article 14 relevantly provides as follows:
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
I accept (notwithstanding her failure to adduce evidence or address the Court with respect to this issue) that there is an inescapable inference that the Mother made herself available for cross-examination (to the extent that she did so prior to abandoning her case) on the basis, and with the reasonable expectation, that the barrister conducting the cross-examination was entitled to do so. I am also prepared to accept, in the Mother’s favour, for the purposes of this determination, that the Mother would not have done so (and certainly she would not have been expected, much less required, to do so) had it been known that Ms Betro lacked a current practising certificate. I have regard also to the fact that the Mother did not have the opportunity to object to the evidence being adduced at the time it occurred because the situation regarding Ms Betro’s practising certificate was not then known.
However, in my view, it is important that regard be had to the fairness of the hearing as a whole, including the full circumstances of the cross-examination of the Mother. Counsel for both the Father and the ICL emphasised that although Ms Betro was not entitled to practise law as a consequence of the absence of a practising certificate, she was otherwise qualified to do so, there being no suggestion that she was not legally qualified or admitted to practice in the federal jurisdiction. That is, the Mother was cross-examined, not by an unqualified lay person masquerading as a lawyer, but by an appropriately trained legal practitioner,[22] and one who was subject to the supervisory and disciplinary processes applicable to legal practitioners in the state of South Australia, albeit one who lacked the entitlement to undertake the cross-examination at the time at which it occurred.
[22] As defined in section 5 of the Legal Practitioners Act 1981 (SA).
Counsel for the ICL submitted, and I accept, that in this respect, the circumstances are comparable to those in Gibbons v Commonwealth of Australia,[23] in which expert medical evidence given by a person who was a qualified medical practitioner but did not hold a practising certificate was not excluded despite appearing to have been obtained improperly or in contravention of an Australian law, or at least in consequence of an impropriety or a contravention of an Australian law, within the meaning of section 138, and that decision was upheld on appeal.
[23] [2010] FCA 462.
Furthermore, as was submitted on behalf of the Father, the evidence was obtained transparently, in open court, in a court of record, in the presence of a judicial officer, and in circumstances in which the Mother was represented by Counsel, who had the opportunity to object to any improper questions. There has been no suggestion that cross-examination itself was conducted in a manner which differed from the manner in which it would be expected that a member of Counsel entitled to undertake the cross-examination would have conducted it or that the fact that the cross-examination was conducted by Ms Betro rather than a member of Counsel holding a practising certificate impacted in any way on the evidence given by the Mother, the manner in which she gave the evidence, or her ability to withstand the testing of her evidence.
Had the issue with respect to Ms Betro’s practising certificate been known, the Mother would still have been required to make herself available for cross-examination. It is not the case that her evidence would otherwise have been untested. I do not consider that any material difference arose either in relation to the evidence that was adduced or the conduct of the proceedings as a consequence of the fact that Ms Betro conducted the cross-examination without a practising certificate, when compared with the situation that could be expected to have arisen had the cross-examination been conducted by a different member of Counsel or had Ms Betro held a practising certificate at the relevant time. As was identified as an important consideration in Bunning v Cross[24] being the case from which the discretion in section 138 was derived, the nature of the illegality does not in this case affect the cogency of the evidence so obtained.
[24] [1978] HCA 22; (1978) 141 CLR 54.
I accept the submission made on behalf of both the Father and the ICL that a very significant proportion of the Mother’s cross-examination by Ms Betro took the form of putting to the Mother matters which were already before the Court, and therefore within the knowledge of the Mother, meaning that there cannot realistically have been any element of surprise to the Mother or her legal representatives as to the nature of the evidence that was elicited by Ms Betro. I also accept the submission that no unfair advantage was obtained for or on behalf of the Father as a consequence of the cross-examination. Although the questions would not have been identical, it is reasonable to assume that had another member of Counsel cross-examined the Mother, she would have been asked similar questions about the contents of the independent records before the Court suggestive of serious risk issues in her care, and there is no reason to believe that her responses or her presentation would have been different in any material way.
I am not satisfied that the fact that Ms Betro did not hold a practising certificate had any material impact on the fairness of the trial. There is nothing before the Court to suggest that any miscarriage of justice arose or even that any prejudice of any kind flowed to the Mother as a consequence of Ms Betro not holding a practising certificate. This is a factor that weighs against the exclusion of the evidence.
Whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention
The matter of a legal practitioner practising without a practising certificate falls within the supervisory jurisdiction of the Supreme Court of South Australia, together with the applicable regulatory bodies. Whether further proceedings will be taken beyond the presently pending application for retrospective and prospective practising certificates, and whether that application will itself result in the imposition of conditions or penalties, is not presently known. However, it is not the role of this Court to discipline Ms Betro or impose consequences for her actions, and there are presently proceedings pending in the Court which does perform such a function.
There is a public interest in not giving curial approval, or encouragement, to obtaining evidence illegally or improperly.[25] However, I do not consider this to be a case in which there is a risk that failing to exclude the evidence will operate as encouragement for or tacit approval of the wrongful conduct in question. Unlike many of the matters in which section 138 is typically considered, such as cases involving the need for deterrence of police misconduct in gathering evidence for criminal prosecutions, or, as is commonly considered in this jurisdiction, the need to deter parties from the creation of surreptitious recordings, there is no realistic prospect that the admission of the evidence in this case would operate as an incentive to Ms Betro or to any other person to engage in similar conduct in future. This is a factor weighing against exclusion of the evidence.
The difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law
[25] Kadir v The Queen; Grech v The Queen [2020] HCA 1; (2020) 267 CLR 109 at [13].
Evidence that it would have been easy to comply with the relevant legal requirements may, depending on the circumstances of the case, either support or detract from an argument for exclusion, or it may be a neutral factor.[26] In this case, the evidence could very easily have been obtained without the contravention of an Australian law, by the cross-examination of the Mother having been undertaken by a different member of Counsel, by the Father’s solicitor, or even, in the absence of legal representation, by the Father himself. The fact that such a course was not taken, in my view, simply reflects, in the circumstances of this case, the lack of knowledge held by the Father and his solicitor as to the fact that Ms Betro was acting in contravention of the applicable laws.
[26] Kadir v The Queen; Grech v The Queen [2020] HCA 1; (2020) 267 CLR 109 at [19]-[20].
Other relevant matters
In my view, the following considerations are also relevant:
(a)The impugned conduct in this case was not undertaken by the Father or at his behest and there is no evidence or even allegation to suggest that either the Father or his solicitor knew or had any reason to believe or suspect that there was any illegality or impropriety involved in the elicitation of the evidence. Indeed, there was no connection at all between the impugned conduct and any conduct undertaken by either of the parties or any other fact or circumstance requiring determination in the proceedings. The Father was in the same position as was the Mother in this regard, in that it was reasonable for both to assume, and to proceed on the basis that, Ms Betro held a current practising certificate.
(b)A feature which distinguishes the circumstances of this case from the majority of cases in which the discretion contained in section 138 has been considered, is that there is no suggestion in the present case that the impugned conduct was undertaken for the purpose of gathering evidence for or related to this proceeding. That is, whatever the reason for Ms Betro having engaged in legal practice without a practising certificate may ultimately be determined to be, there is no suggestion that it was directed to obtaining evidence for use in these proceedings.
(c)As submitted by Counsel for the Father, when a witness is cross-examined, it is the answers which form the evidence, not the questions. This means that the entirety of the evidence in question was evidence given by the Mother herself. Furthermore, that evidence was given by the Mother in the witness box with the full understanding and expectation that it was to be admitted for the purposes of these proceedings.
(d)Had the Mother not abandoned her case and failed to continue to make herself available for cross-examination on 6 February 2025 despite being required to present herself, it is reasonable to infer from all the circumstances including the manner in which the ICL’s case was run, that she would likely have been cross-examined by Counsel for the ICL. Indeed, Counsel who appeared for the Mother on 6 February 2025 expressly referred to holding such an expectation. This means that but for the Mother’s own poor conduct in failing to attend Court notwithstanding having been required to do so, that there would have been evidence elicited by way of cross-examination of the Mother other than in contravention of an Australian law.
(e)The relevant circumstances are comparable to those which arose in Sellen & Treadway (No 2)[27] in which evidence was elicited under cross-examination in circumstances which contravened section 102NA of the Act and the Court declined to exclude it pursuant to section 138 of the Evidence Act.
(f)There is a public interest in all relevant evidence being made available to Courts.[28] This is particularly so in cases concerning the best interests of children, particularly cases involving questions of unacceptable risk and the need for children’s safety to be protected.
[27] [2022] FedCFamC2F 1379.
[28] Kadir v The Queen; Grech v The Queen [2020] HCA 1; (2020) 267 CLR 109 at [13].
Having regard to all of these considerations, I am satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. The evidence will not be excluded.
It was not suggested that the trial or the proceedings had been invalidated or should be aborted as a consequence of Ms Betro’s appearance without a practising certificate. I note, in any event, that section 189 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides that proceedings in this court are not invalidated by a formal defect or an irregularity unless the Court is of the opinion that substantial injustice has been caused by the defect or irregularity and the injustice cannot be remedied by an order of the Court. For all of the reasons outlined above, I am not of the opinion that substantial injustice (or indeed any injustice) has been caused. As a consequence, the proceedings (including the trial) are not invalidated.
PARENTING
History of care arrangements
It is an agreed fact that the Mother was the primary caregiver for the children prior to the parties’ separation. The Father deposed, and I accept, that he was actively involved with the children’s care prior to separation and was a committed and attentive parent. Nonetheless, it is indisputable the majority of caregiving responsibilities were undertaken by the Mother, while the Father worked full time other than during periods when he took extended leave.
Shortly after the parties separated, the Mother relocated from the City F region, where they were then living, back to Adelaide, which was her city of origin. The Mother’s evidence was that the Father ‘demanded’ that she leave the house and leave X and Y with him, and then ‘forced’ her and the children to ‘flee’ from the home. She denied that he had supported her in moving to Adelaide for family support or offered her assistance with the move.
The Father’s evidence was that he had supported the Mother to move to Adelaide with the children so that she could be close to her family and have a support network available to her, that he endeavoured to make it as easy as possible for her to do so, proposed that she remain in the family home until her father was able to come and assist her with moving to Adelaide and offered to care for the two older children while she travelled with Z, who was then a baby, and got settled. He said under cross-examination that he had known that the Mother desired to return to Adelaide and had considered it the best option for her health and her ability to support the children. The Father’s evidence in this regard is supported by contemporaneous emails between the parties.[29] I accept his evidence.
[29] Father’s trial affidavit (parenting), annexure MRS-1.
In March 2020, the Father issued the present proceedings, not having spent any time with the children since their move to Adelaide. His evidence was that after the Mother left the former family home with the children, she provided him with minimal information about them and refused to disclose their whereabouts. This evidence is consistent with the contents of contemporaneous emails between the parties,[30] and is entirely in keeping with the manner in which the Mother approached the need to keep the Father informed with respect to the children throughout the course of the proceedings. I accept the Father’s evidence.
[30] Father’s trial affidavit (parenting), annexure MRS-1.
Almost immediately after the commencement of the proceedings, state border closures associated with the COVID-19 pandemic enforced a limitation on the time the children could spend with the Father. In the time since the state borders reopened, there have been persistent problems with the Mother’s compliance with orders providing for time between the Father and the children, as outlined later in these reasons. Ultimately, the children were deprived of the opportunity to see their father for a total period of 13 months as a combined effect of the border closures and the Mother’s conduct. They each also missed significant additional time they should have spent with him in accordance with interim orders of the Court as a result of persistent non-compliance by the Mother, as outlined later in these reasons.
At the time of the commencement of the trial, the children remained living in Adelaide with the Mother, and the Father’s application before the Court was that they move to live with him in the City F region. The Father’s case was that the children were at physical, emotional and psychological risk in the primary care of the Mother, and that their relationship with him was endangered by the Mother’s conduct and attitude towards him.
On 6 February 2025, when the Mother failed to attend at Court despite her adjournment application having been refused, Counsel for the Father made an urgent oral application for an interim order providing that the children live with him, an order for delivery up of the children and a recovery order. The Court was advised that the Mother had been put on notice the previous day that an application for delivery up would be made if an adjournment application was pressed, and that the children had not been taken to school on 6 February 2025. The Mother had not provided the Father with notice of or any details as to the children’s absence from school. Counsel for the Father expressed concern that the Mother’s actions in this regard may have arisen in retaliation to either the Father’s refusal to agree to a further adjournment or the foreshadowed application.
This development, combined with the Mother’s unauthorised absence from the hearing, the inability of her legal representatives to contact her and the worrying nature of the evidence she had given earlier that week, together with the other evidence of risk as discussed throughout these reasons, created circumstances of considerable concern for the immediate safety and wellbeing of the children. In particular, it raised concerns about the Mother’s seemingly erratic and unstable behaviour, the soundness of her judgment and her mental state. This was particularly so in light of the Mother’s long history of non-compliance with orders and directions of the Court, which has included at least one prior unauthorised failure to attend a court hearing; and her documented history of having hidden her whereabouts and that of the children from authorities when her parenting capacity was placed under scrutiny. In short, it could not be assumed that the Mother was acting rationally or responsibly with respect to the children, and indeed, it appeared that her concerning behaviour may be escalating, which placed them at significant risk. Although it was not known to the Court at that time, it subsequently emerged that these concerns were well-founded, in that the Mother had attempted to abscond with the children on that day.
The parties in this matter no longer live together and are no longer in a relationship but their finances remain intertwined. Consistently with section 90ST of the Act, each has a legitimate desire to end their financial relationship. If there were no adjustment to the legal ownership of their property interests, they would continue in joint ownership of assets notwithstanding their separation and the De Facto Wife would be without access to any significant share of the parties’ jointly owned assets. There would be no justice and equity to the parties in that regard.
I am satisfied that this is one of the ‘vast majority of cases’ referred to by the plurality in Stanford, in which the requirements of section 90SF(3) of the Act are easily satisfied. It is plainly just and equitable to make an order pursuant to section 90SM(4) of the Act in these proceedings for a division of property between the parties.
Contributions
Contributions at commencement of relationship
The De Facto Husband’s unchallenged evidence was that at the commencement of the parties’ cohabitation, he held the following assets:
(a)Motor Vehicle 4 worth approximately $5,000;
(b)A 50 percent interest in a vehicle owned with a friend;
(c)Motor Vehicle 3 worth approximately $12,000;
(d)Furniture and effects of unspecified value;
(e)Superannuation of unspecified value; and
(f)Savings of modest value.
The De Facto Wife deposed that the De Facto Husband also had a Higher Education Contribution Scheme (HECS) debt of $23,000. This proposition was not put to the De Facto Husband and no independent evidence was adduced to support it. The De Facto Wife has not established her assertion in this regard.
The De Facto Wife deposed that at the commencement of the parties’ cohabitation, she held the following assets:
(a)A motor vehicle;
(b)A vacant allotment of land at T Street, Town U (‘the Town U property’);
(c)Furniture and effects and jewellery;
(d)Superannuation of unspecified value; and
(e)Savings of unknown value.
The Town U property was sold in 2016, yielding very modest net sale proceeds of approximately $8,000. Although a precise finding is not possible, I infer from the quantum of the proceeds ultimately received that any equity in this property at the time of cohabitation was minimal.
The weight to be attached to initial contributions must be assessed against the rubric of all financial and non-financial contributions made by the parties throughout the relationship as a whole.[113] I do not consider that there were any aspects of the initial contributions made by either of the parties which would warrant an adjustment in their favour.
[113] Being a consideration recognised as important in authorities such as Pierce & Pierce [1998] FamCA 74; (1999) FLC ¶92-844; Jabour & Jabour [2019] FamCAFC 78; (2019) FLC ¶93–898.
Contributions during the relationship
During the parties’ relationship, the De Facto Husband worked on a full-time basis in gainful employment and performed the role of primary income earner, while the De Facto Wife was engaged in paid employment at times and otherwise performed the role of primary parent and homemaker. The De Facto Husband deposed that the parties had made equal contributions during the relationship to homemaking and parenting duties, but also accepted that the De Facto Wife had always been the children’s primary carer. I accept that the De Facto Husband made contributions of significance in this regard but find that the De Facto Wife was the primary carer and homemaker.
The De Facto Husband and his mother deposed that when the parties commenced cohabitation, his mother had put her name on the lease for their rental property and paid one-third of their rental income, being approximately $120 per week. This was not disputed by the De Facto Wife.
In 2012, the De Facto Husband moved from Adelaide to City F to pursue a career with the public service. The De Facto Wife moved with him in order to pursue their relationship and obtained employment with a government department as a Public Servant.
The De Facto Husband deposed that at the time of their move to City F, the parties borrowed the sum of $6,000 from his mother for the purpose of purchasing a motor vehicle, and that such sum was repaid from the proceeds of sale of the Suburb U property. This was disputed by the De Facto Wife. Little turns on this issue.
It was submitted on behalf of the De Facto Husband that the provision the interest-free loan in the sum of $147,500 by his mother and stepfather represented a very significant contribution on his behalf, because it had enabled the parties to purchase the Suburb C property, which they would not otherwise have been able to do, which resulted in the parties having derived the benefit of the significant capital growth in that asset since its purchase,[114] and because its interest-free status provided them with a significantly greater financial benefit than they would have derived had the same sum been borrowed at commercial interest rates, even if they had been able to borrow it from a commercial lender.[115] I accept that the provision of the interest-free loan was a significant contribution made on behalf of the De Facto Husband, particularly in circumstances in which it enabled the parties to purchase what was and remains the major asset of their relationship.[116]
[114] Being a consideration that has been recognised as significant in cases such as Underwood & Underwood [1980] FamCA 1; (1981) FLC ¶91-020.
[115] Being a consideration that has been recognised in cases such as Bokin & Wild [2022] FedCFamC1A 209.
[116] Pierce & Pierce [1998] FamCA 74; (1999) FLC ¶92-844.
The evidence of both parties reveals that they each otherwise contributed within their respective spheres during the ‘economic partnership’[117] of their de facto relationship.
[117] Waters & Jurek (1995) FLC ¶92-635; Lee Steere & Lee Steere (1985) FLC ¶91-626; Ferraro & Ferraro [1992] FamCA 64; (1993) FLC ¶92-335.
Post-separation contributions
Following the parties’ separation, the De Facto Husband has made all payments towards the mortgage encumbering the Suburb C property, which, at the time of commencement of the trial, were $712 per week. He has also maintained the property. This has been balanced against the fact that he has been residing in that home, thereby deriving the benefit of use of the De Facto Wife’s interest in it.
The De Facto Husband also made significant post-separation contributions to superannuation through his full-time employment with the public service. During the 12 month period during which the trial proceeded alone, the De Facto Husband’s superannuation increased by nearly $39,000.
The De Facto Wife has made the vast majority of post-separation parenting contributions in circumstances in which the children resided with her for most of the post-separation period and the distance between the parties’ residences limited the amount of time the children could spend in the care of their father, even if there had not been the difficulties described earlier in these reasons. Counsel for the De Facto Husband emphasised that during that time, he had paid child support and incurred very significant travel expenses to spend time with the children (only to be frequently thwarted by the De Facto Wife’s failure to comply with court orders). Although I accept that this is accurate, it does not, in my view, detract from the significance of the contributions made by the De Facto Wife in this regard.
However, the weight that can be given to the De Facto Wife’s post-separation parenting contributions is limited by what I have found to have been the abusive and neglectful manner in which she performed those contributions. In my view, this is a circumstance in which it is appropriate to recognise, as identified by Wilson J in Mallet & Mallet,[118] that the quality of the contribution made by a party as parent may vary enormously, and may, in some cases, be inadequate.
[118] [1984] HCA 21; (1984) 156 CLR 605.
Since 7 February 2025, the children have resided with the De Facto Husband and he has made all of the parenting contributions. These contributions have been made in the trying circumstances created by the De Facto Wife’s conduct in the lead to the change of the children’s living arrangements, which, as outlined earlier in these reasons, included emotional harm to the children and setbacks in their social and educational progress.
Assessment of contributions
In Aleksovski & Aleksovski,[119] Kay J held as follows:
It is … necessary that trial Judges weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.
[119] [1996] FamCA 111; (1996) FLC ¶92-705.
His Honour went on to say that ‘what is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the … relationship.’
More recently, the Full Court in Jabour & Jabour[120] emphasised the importance of giving recognition to the myriad of contributions that each of the parties has made during the course of their relationship. The Court is not required to dissect each individual contribution and attach a percentage to it. What is required is a holistic assessment, taking into account the contributions of all types made by the parties over the duration of their relationship.[121]
[120] [2019] FamCAFC 78; (2019) FLC ¶93–898.
[121] Dickons & Dickons [2012] FamCAFC 154; Bolger & Headon [2014] FamCAFC 27; (2014) FLC ¶93-575; Fields & Smith [2015] FamCAFC 57; (2015) FLC ¶93-638; Jabour & Jabour [2019] FamCAFC 78; (2019) FLC ¶93–898.
It was submitted on behalf of the De Facto Husband that the parties’ contributions should be assessed as 55 percent to him and 45 percent to the De Facto Wife. No position in this regard was put by or on behalf of the De Facto Wife.
In my view, having regard to the matters outlined above, contributions should be assessed as having been made 53 percent by the De Facto Husband and 47 percent by the De Facto Wife.
Section 90SF(3) factors
As with the assessment of contributions, the Court is not obliged to give separate weighting to, or to analyse, each relevant s 90SF(3) factor with mathematical precision.[122] The Court may disregard any of the factors which are irrelevant, and may limit its consideration to those which are most relevant.[123]
[122] Paul & Paul [2012] FamCAFC 64; (2012) FLC ¶93-505 at [65].
[123] Waters & Jurek [1995] FamCA 101; (1995) FLC ¶92-635; Collins & Collins [1990] FamCA 141; (1990) FLC ¶92-149.
It is necessary to consider the effect of the findings as to contribution on the respective positions of the parties before proceeding to determine whether any adjustment is warranted pursuant to section 90SF(3).[124] In the circumstances of this case, given the modest quantum of the assets and liabilities available for distribution and the length of the parties’ relationship, it could not be said that the effect of the findings of the Court as to contributions negate the need for consideration as to section 90SF(3) factors.
[124] Willis & Willis [2007] FamCA 819; Marsh & Marsh [2014] FamCAFC 24; (2014) FLC ¶93-576; Scriven & Scriven [2020] FamCAFC 236; (2020) FLC ¶93-988; Lovine & Connor and Anor [2012] FamCAFC 168; (2012) FLC ¶93-515.
The De Facto Husband is employed on a full time basis as a Public Servant with a government department. His gross annual income is $125,684. At the time of the trial, he had recently completed post-graduate studies through his employer.
The De Facto Wife is qualified as a health worker and was employed by a government department early in the parties’ relationship. She also has experience working in administrative roles and has undertaken training in other industries. She has not undertaken paid employment for some time, though her evidence in this regard was lacking in specificity. At the time of the trial, she was reliant on Centrelink benefits, though that was in circumstances where she had the full-time care of the parties’ three children, which is no longer the case. She deposed to living week to week without the ability to set aside savings and to having a shortfall of approximately $683 per week between her income and her expenditure.
The De Facto Wife deposed to an intention to retrain in an unspecified field in order to re-enter the workforce. The children residing primarily with the De Facto Husband will provide her with the opportunity to do so.
The De Facto Wife emphasised several times during her oral evidence that she is hardworking and that prior to having children she was earning more than the De Facto Husband was. The quantum of her interests in superannuation suggests that she has previously had the capacity to earn significant income.
She also gave evidence of having sought employment in the post-separation period but having been unable to take it up as a result of her care responsibilities for the children. It is likely that she will obtain gainful employment in the future, though the circumstances of such employment are presently unknown.
Nonetheless, the evidence suggests that the De Facto Husband’s earning capacity is likely to be greater than that of the De Facto Wife and her future circumstances are uncertain. As has long been recognised, in most cases the most valuable ‘asset’ which a party can take out of the marriage (or de facto relationship) is a substantial, reliable, income-earning capacity.[125]
[125] Best & Best [1993] FamCA 107; (1993) FLC ¶92-418; Clauson & Clauson [1995] FamCA 10; (1995) FLC ¶92-595.
The De Facto Husband is in good health. The De Facto Wife is in good physical health. As discussed earlier in these reasons, there are concerns with respect to the De Facto Wife’s mental health. There is no expert evidence before the Court with respect to this issue, but doing the best I can with the agreed facts and the available evidence, I have regard to this as a factor in the De Facto Wife’s favour.
The De Facto Wife submitted that the De Facto Husband ‘has access to significant monies from his mother who he has never paid back anything.’ Although the De Facto Husband’s evidence was of having borrowed funds from his mother for the purchase of the Suburb C property and following separation to assist with legal fees and expenses for travelling to Adelaide to spend time with the children, I do not accept that the evidence establishes that he has any expectation of receipt of any funds of significance from his mother in future without any need for repayment. I take into account the De Facto Husband’s evidence, which I accept, that he owes his mother and her partner the sum of $37,129 with respect to travel expenses associated with time with the children.
The children, all of whom are young, will be residing in the full time care of the De Facto Husband. This is a significant factor, particularly given that the De Facto Wife’s current employment status means that he is unlikely to receive child support of any significance, at least in the short term. The significance of this factor is increased by what I infer is a likelihood that following the children’s experience of emotional abuse and neglect in the care of the Mother, and the likely grief, loss and potential trauma they will experience as a result of the abrupt change in their care and living arrangements, the children have particular psychological and emotional needs, and the task of parenting them will be made more onerous, and if professional intervention and support is required, more costly, than would otherwise have been the case.
Assessment of section 90SF(3) adjustment
The De Facto Husband contended that in the event that the children were to reside in his primary care, there should be an adjustment of five percent in his favour on account of section 90SF(3) factors. No contentions were proffered by or on behalf of the De Facto Wife in this regard.
Having regard to all of the considerations outlined above, I agree that an adjustment of five percent in favour of the De Facto Husband on account of section 90SF(3) factors would be just and equitable. Such an adjustment would result in an overall distribution of the parties’ non-superannuation assets and liabilities in proportions of 58 percent to the De Facto Husband and 42 percent to the De Facto Wife.
It is necessary to consider the resulting differential between the parties and what it represents in monetary terms.[126] In the present case, the percentage-based outcome referred to above translates to a differential of 16 percent. In relation to non-superannuation assets, this is a difference of $79,671 between the overall amounts received by the parties (with the De Facto Husband retaining assets with a net value of $288,808 and the De Facto Wife $209,137, including a payment from the De Facto Husband in the sum of $141,442). In relation to the parties’ superannuation assets, the De Facto Husband will retain $273,479 and the De Facto Wife will retain $198,036 (a differential of $75,443) after a split from the De Facto Husband’s superannuation using a base amount of $22,956. I am satisfied that this outcome is just and equitable in all the circumstances.
[126] Clauson & Clauson [1995] FamCA 10; (1995) FLC ¶92-595; Adair & Adair [2019] FamCAFC 70; Simons & Simons [2020] FamCAFC 128; Lovine & Connor and Anor [2012] FamCAFC 168; (2012) FLC ¶93-515.
Justice and equity and the terms of the orders to be made
The requirement that the Court shall not make an order unless it is satisfied that, in all the circumstances, it is just and equitable to make the order is the ‘overriding requirement’ of the section 90SM process.[127] This requirement includes consideration of the type of order, including the form and structure of the order, to be made. The Court is required to ‘stand back’ from its preliminary determination, and consider its impact.[128] It must be satisfied that the actual orders made (and not just the underlying percentage division) is just and equitable.[129] In the present case, I have regard in particular to the fact that the orders will enable the De Facto Husband, who will have the full-time care of the parties’ three children, to retain the former family home.
[127] Mallet & Mallet [1984] HCA 21; (1984) 156 CLR 605 per Dawson J at [10].
[128] Manolis & Manolis (No 2) [2011] FamCAFC 105 at [66].
[129] Clauson & Clauson [1995] FamCA 10; (1995) FLC ¶92-595; Russell & Russell [1999] FamCA 1875; (1999) FLC ¶92-877; Teal & Teal [2010] FamCAFC 120; Martin & Newton [2011] FamCAFC 233; (2011) FLC ¶93-490; Bevan & Bevan [2013] FamCAFC 116; (2013) FLC ¶93-545.
In all of the circumstances and having regard to all of the considerations outlined above, I am satisfied that both the percentage-based division and the underlying outcome is just and equitable.
OTHER MATTERS
Adjustments pursuant to earlier orders
The De Facto Husband sought a reimbursement of the De Facto Wife’s share of valuation costs paid by him in the sum of $2,860, pursuant to an order made on 15 September 2022 providing that he was to pay for valuations in the first instance, with the De Facto Wife’s share to be reimbursed from her ultimate property settlement entitlements. I agree that it is appropriate that this amount be deducted from the amount to be paid by the De Facto Husband to the De Facto Wife.
Orders made on 31 March 2022 provided that the De Facto Wife was to pay to the De Facto Husband the sum of $430.68, being expenses wasted by him for travel to Adelaide on an occasion when the children were not made available, to be reimbursed from her final property settlement. On 8 April 2022, an order was made providing that the De Facto Husband pay the De Facto Wife’s costs of $1,000, being the costs of a Contravention Application filed but not ultimately pressed by him, such sum to be offset against the payment ordered on 31 March 2022. The cumulative effect of these orders is that the sum of $569.32 is to be paid by the De Facto Husband to the De Facto Wife, to be adjusted as part of the orders ultimately made.
As a consequences of these adjustments, the total amount payable by the De Facto Husband to the De Facto Wife (originally calculated as $141,442) will be reduced by the rounded figure of $2,291, resulting in a total payment of $139,151.
Transfer expenses
The De Facto Husband sought both that the costs of transferring the Suburb C property to his sole name be borne by the De Facto Wife, and that the transferee bear the costs and disbursements of any transfers pursuant to the orders. The latter order is the more usual and I see no reason to depart from that, particularly in circumstances in which the De Facto Wife is not currently in paid employment but the De Facto Husband is. As such, the orders will provide for the transfer to be at the De Facto Husband’s expense.
Miscellaneous orders
It was implied by, but not expressly mentioned in, the orders sought by the De Facto Husband that he would refinance the mortgage loan into his sole name and effect the discharge of the existing mortgage encumbering the Suburb C property. An express provision in those terms has been included in the orders.
The De Facto Husband’s application included an order under section 106A of the Act authorising a Judicial Registrar of the Court to sign any document required to be signed to implement the orders in the event of failure or refusal of a party to do so. In light of the De Facto Wife’s long history of failure to comply with court orders, I consider such an order to be necessary in order to ensure the implementation of the orders.
The De Facto Husband’s application otherwise contained a number of standard orders directed to ensuring that the orders made were comprehensive and enforceable. These included a default sale provision with respect to the Suburb C property to ensure that the required payment would be made to the De Facto Wife in the event of a default by the De Facto Husband, and ‘catch all’ provisions to ensure that the assets and liabilities of each of the parties remained with that party following the making of the orders. Such orders are appropriate and will be made.
Costs
On a number of occasions throughout the proceedings, the costs associated with interim applications and hearings were reserved.
The De Facto Wife sought an order that the De Facto Husband pay her costs of the proceedings. That application was not particularised or supported by any evidence and was not pressed at trial.
On 8 April 2025, being the last day of the trial, the ICL filed an Application in a Proceeding seeking contributions from each of the parties towards the costs of the ICL, particularly in relation to the Mother, who, unlike the Father, had not made any contribution to those costs throughout the proceedings despite having been refused an exemption. That application was ultimately withdrawn on the basis that it would be pressed as part of the applications for costs which are anticipated to be made following the delivery of these reasons.
In my view, it would not be appropriate to determine any issues relating to costs prior to the parties having had the opportunity to have regard to these reasons and to adduce evidence of any offers which may have passed between them.
Each of the parties will retain their rights to make an application for costs pursuant to rule 12.13(3)(b) of the Rules should they consider it appropriate to do. The orders to be made will include timetabling orders to regulate any such application.[130]
[130] The parties and the ICL were advised by way of email on 14 April 2025 that consideration was being given to shortening the timeframes for such an application and were invited to indicate if they wished to be heard in opposition to such a course. No such indication was given by any party or the ICL.
As a result of the De Facto Wife’s history of refusing to comply with binding court orders (which has included not only the substantive parenting orders but numerous procedural orders and directions), there are serious concerns as to whether any costs ordered to be paid by her would be able to be recovered. As a consequence, the orders will provide for the funds payable to her pursuant to the orders to be paid at first instance to the trust account of the De Facto Husband’s solicitors, and the De Facto Husband’s solicitors shall be at liberty to retain a sum equivalent to the total of the quantum of costs sought against the De Facto Wife to be held on trust pending resolution or determination of any costs application made against her, and shall be at liberty to apply so much of those funds as are required to meet any costs order made prior to distributing the balance to the De Facto Wife.
CONCLUSION
For all of the reasons outlined above, I make the orders as set out at the commencement of these reasons.
I certify that the preceding five hundred and eighty-nine (589) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Parker. Associate:
Dated: 16 April 2025
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