Tansel & Dellos (No 2)

FEDERAL CIRCUIT COURT OF AUSTRALIA
Tansel & Dellos (No 2) [2021] FCCA 704

File number(s): MLC 6067 of 2018

Judgment of: HER HONOUR JUDGE C.E. KIRTON QC

Date of judgment: 16 April 2021

Catchwords:
FAMILY LAW – Children – parental responsibility – where the Father seeks equal shared parental responsibility and equal time – where the Mother seeks sole parental responsibility and for the children to live with the Mother and spend time with the Father – children have warm and loving relationship with both parents – where the presumption of equal shared parental responsibility does not apply – post-separation parental conflict – high level of acrimony and antipathy between the parties – where the parties are distrustful of each other and assiduously avoid one another – where the Father has significant mental health issues – psychiatric injury suffered in the course of employment – Father’s mental impairment a salient issue of risk to the children – presumption rebutted due to entrenched post-separation conflict and Father’s impaired parenting capacity – inappropriate for Father to have substantial and significant time due to risk of neglect – consideration of children’s best interests – orders made for Mother to have sole parental responsibility.

FAMILY LAW – Property settlement – marriage of 9 years – where Husband self-represented at the Final Hearing – where Husband failed to make full and frank disclosure –matrimonial asset pool heavily disputed – reconstruction of asset pool at the time of trial – addbacks – whether Court should exercise discretion to include parties’ legal fees as notional addback – Court’s discretion exercised in accordance with principles in Beklar & Beklar [2013] FamCA 327 – systematic depletion of asset pool by Husband – negative contributions/waste – significant withdrawals of moneys from accounts in Husband’s name or accounts he controlled – unilateral disposal of assets by the Husband – wilful nondisclosure/failure to adduce evidence of where funds applied or how funds disposed of – assessment of contributions made at commencement of relationship and during the marriage – contributions during the marriage assessed as equal – further adjustment in favour of the Wife on account of s.75(2) factors – consideration of s.75(2)(o) – Wife placed under undue financial distress as a result of Husband’s conduct during proceedings – Wife seeks personal costs order against the Husband or alternatively for the Court to exercise its discretion pursuant to s.75(2)(o) – orders made for sale of former matrimonial home and for Wife to have control of the sale – distribution of sale proceeds stayed pending Costs application on behalf of the Wife and determination of same.

Legislation:
Evidence Act 1995 (Cth) sub-ss.69ZT(1),(2)

Family Law Act 1975 (Cth) ss 60B(1),(2), 60CA, 60CC, 61DA, sub-ss 61DA(4), 64(B)(1), ss 65D,75(2), sub-s 75(2)(o), ss 79, 81

Federal Circuit Court Rules 2001 (Cth), rr 1.06, sub-rr 15A.13(2)(b), 16A.13(2)(b) 21.02(1)(c), r 21.15

Cases cited:
AMS v AIF (1999) 199 CLR 160
Beklar & Beklar [2013] FamCA 327
Bell & Nahos [2016] FamCAFC 244
Bevan v Bevan [2013] FamCAFC 116; (2013) FLC93-545
NHC & RCH (2004) FLC 93-204
Goode v Goode (2006) 36 Fam LR 422
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd
[1983] 3 NSWLR 378
In the Marriage of Hickey [2003] FamCA 395
Jones v Dunkel (1959) 101 CLR 298; 32 ALJR 395;
[1959] HCA 8
Tansel & Dellos [2020] FCCA 236
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Moose & Moose (2008) FLC 93-375
Sheen & Sheen [2016] FCCA 3063
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
U v U (2002) 211 CLR 238
Vass & Vass [2015] FamCAFC 51
Waterford & Waterford [2013] FamCA 33

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Number of paragraphs: 466

Date of last submission/s: 21 August 2020

Date of hearing: 17, 18, 19, 20 & 21 August 2020

Place: Melbourne

Counsel for the Applicant: Mr Glezakos

Solicitor for the Applicant: Kenna Teasdale Lawyers

For the Respondent: The Respondent appeared in person
ORDERS

MLC6067 of 2018

BETWEEN:
MS TANSEL

Applicant

AND:
MR DELLOS

Respondent

ORDER MADE BY:

HER HONOUR JUDGE C.E. KIRTON QC

DATE OF ORDER:

16 APRIL 2021

THE COURT ORDERS THAT:
Parenting
1.All prior parenting orders in relation to X (X), born in 2011 and Y (Y), born in 2012 (together, the Children) be discharged.

Parental Responsibility
2.The Applicant Wife, Ms Tansel (Wife) have sole parental responsibility for X and Y, provided always that the Wife keep the Respondent Husband, Mr Dellos (Husband) informed of significant long-term decisions that she makes in relation to the Children and actively seeks the Husband’s input on such issues.
3.For the purpose of Order 2:
(a)Before any such long-term decisions are made in respect of X and Y:
(i)The Wife shall advise the Husband by email of her proposal relating to X and/or Y; and
(ii)If the Husband wishes to comment on the Wife’s proposal (or if the Husband has any proposal he wishes to make regarding X and/or Y on this issue) he shall, within seven (7) days after the date of the Wife’s email, advise the Wife by one email (to the email address from which the Wife sent her communication) of his views;
(iii)Upon receipt of any comment or proposal by the Husband, the Wife shall give consideration to the Husband’s views; and
(iv)After the Wife has considered the Husband’s comments, she shall make a decision and advise the Husband by email or SMS text message of the outcome immediately after making that decision; and
(v)If the Husband does not respond by email as provided in Order 3(a)(ii), the Wife shall be entitled to presume that the Husband does not wish to be involved and she may decide the issue.

Living Arrangements and the Time the Children Spend with the Parents
4.The Children live with the Wife.

Term Time

5.The Children spend time with the Husband during school in a two week cycle as follows:
(a)In week one:
(i)On Tuesday, from the conclusion of School (or 9:00 am on a pupil free day or 3:30 pm on a public holiday) until 7:00 pm; and
(ii)From the conclusion of school on Friday (or 9:00 am on a pupil free day or 3:30 pm on a public holiday) until the commencement of school on Monday (or 9:00 am on a public holiday or 3:30 pm on a pupil free day);

(b)In week two:
(i)On Tuesday, from the conclusion of School (or 9:00 am on a pupil free day or 3:30 pm on a public holiday) until 7:00 pm; and
(ii)On Thursday, from the conclusion of School (or 9:00 am on a pupil free day or 3:30 pm on a public holiday) until 7:00 pm.

6.For the purposes of the implementation of these orders and in default of agreement between the parties, Order 5(a) shall commence on 20 April 2021 and Order 5(b) shall commence on 27 April 2021.

School Holidays

7.During the school term holidays and the long summer school holidays, as agreed between the parties in writing and in default of agreement, the arrangements pursuant to Order 5 to continue throughout the school holidays.

Special Days
8.The Children spend time with the Husband on the following special occasions as agreed between the parties in writing, and in default of agreement, as follows:
(a)For Christmas:
(i)In 2021 and each alternate year, from 12:00 pm Christmas Day to 12:00 pm midday on Boxing Day (26 December);
(ii)In 2022 and each alternate year, from 4:00 pm Christmas Eve until 12:00 pm midday on Christmas Day.

(b)For New Year:
(i)In odd numbered years from 4:00 pm on 31 December to 12:00 pm midday on 1 January; and
(ii)In even numbered years from 12:00 pm midday on 1 January to 4:00 pm on 2 January.

(c)On each of the Children’s birthdays, from the conclusion of school until 7:00 pm on a school day or from 1:00 pm to 5:00 pm on a non-school day.
(d)On the Husband’s birthday from the conclusion of school until 7:00 pm on a school day or from 10:00 am to 7:00 pm on a non-school day.
(e)On Father’s Day from 5:00 pm on the day preceding Father’s Day to 5:00 pm on Father’s Day.

9.The Husband’s time with the Children be suspended and the Wife shall spend time with the Children on the following special occasions as agreed between the parties in writing, and in default of agreement, as follows:
(a)For Christmas:
(i)In 2021 and each alternate year, from 4:00 pm Christmas Eve until 12:00 pm midday on Christmas Day;
(ii)In 2022 and each alternate year, from 12:00 pm Christmas Day to 12:00 pm midday Boxing Day (26 December).

(b)For New Year:
(i)In even numbered years from 4:00 pm on 31 December to 12:00pm midday on 1 January; and
(ii)In odd numbered years from 12.00 pm midday on 1 January to 4:00 pm on 2 January.

(c)On each of the Children’s birthdays, from the conclusion of school until 7:00 pm on a school day or from 1:00 pm to 5:00 pm on a non-school day;
(d)On the Wife’s birthday from the conclusion of school until 7:00 pm on a school day or from 10:00 am to 7:00 pm on a non-school day;
(e)On Mother’s Day, from 5:00 pm on the day preceding Mother’s Day to 5:00 pm on Mother’s Day.

Telephone Calls
10.Either X or Y be at liberty to call the parent that they are not in the care of at all reasonable times and the other parent is to facilitate such call and provide privacy for X and/or Y for the duration of the call.

Changeovers
11.Where changeover does not occur at the Children’s school, and unless otherwise agreed between the parties in writing, the Husband shall collect the Children from the Wife’s residence at the commencement of his time and return the Children to the Wife’s residence at the conclusion of his time.

Information Sharing
12.Each party keep the other informed of their current address, mobile telephone number, and email address.

Medical
13. Each party:
(a)Notify the other as soon as reasonably practical in the event the Children or either of them become seriously ill, sustain a serious injury or require medical attention whilst in that party’s care;
(b)Provide the other party with details of the child’s serious injury or serious illness and the name(s) of the treating medical practitioner(s) and authorise the other party to liaise with the treating medical practitioner(s);
(c)Advise the other party of any medication or treatment which is prescribed for the Children or either of them;
(d)Unless otherwise agreed between the parties in writing, follow all reasonable directions and recommendations of any treating medical practitioners with respect to the medical care of the Children, or either of them, including prescribed medications in a timely manner.

Education
14.      Each party:
(a)Authorise any school attended by the Children to provide the other party with copies of all notices, newsletters, reports, photographs and other information normally given to parents in relation to the Children;
(b)Authorise the school attended by the Children to communicate with the other party in relation to the Children’s progress AND FURTHER each party be at liberty to provide a sealed copy of these parenting orders to the Children’s        school and any treating health professionals.

Restraints on Parents
15. Each party be restrained by themselves, their servants and/or agents from:
(a)Discussing or negotiating variations to these Orders with or in the presence of the Children, or either of them;
(b)Discussing the financial or parenting issues between the parties, including these proceedings, with or in the presence of the Children or either of them;
(c)Allowing the Children, or either of them, to read any correspondence, documents or reports generated in connection with these proceedings or any communications between the parties concerning the parenting arrangements for the Children; or
(d)Encouraging, inviting or allowing the Children, or either of them, to spend time with them other than in accordance with any operative parenting orders or written agreement with the other parent.

Overseas Travel
16.The Wife be at liberty once per annum and for a period of no more than four weeks (or such other times as agreed in writing) to travel overseas with the Children, subject to the following conditions, unless otherwise agreed in writing:
(a)The Wife provide the Husband with copies of itineraries and accommodation bookings no less than 30 days prior to the departure date (or as soon as practicable where the booking is made within 30 days of the departure);
(b)The Wife is not permitted to travel with the Children (save for while in transit) to any country which is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980;
(c)The Wife is not permitted to travel with the Children (save for while in transit) to any location designated by the Department of Foreign Affairs and Trade as ‘do not travel’; and
(d)The Wife must ensure the Children are able to communicate with the Husband via telephone, electronic messaging or video calls during the period of such travel, provided there is service available for them to do so.

17.When not in use, the Children’s passports be held by the Wife and each party do all acts and things and sign all documents to ensure the Children’s passports are renewed when required.

Property
Sale of the G Street, Suburb H Property
18.The parties forthwith do all such acts and things and sign all documents as may be necessary and required to sell the real property situated at and known as G Street, Suburb H in the State of Victoria and being the property more particularly described in Certificate of Title Volume ... Folio ... (G Street, Suburb H Property).
19.The sale of the G Street, Suburb H Property be conducted on the following terms (Sale):
(a)The selling agent be appointed by agreement between the parties and in default of agreement within 14 days of the date of these Orders, by an agent nominated by the Wife.
(b)The conveyancer be as agreed between the parties and in default of agreement within 14 days of the date of these Orders, as nominated by the Wife.
(c)On such terms and conditions and for a price as agreed between the parties and in default of agreement within 14 days of the agent’s appointment, then as determined by the Wife on the recommendation of the selling agent.

20.For the purposes of the Sale, the Husband shall cooperate with all reasonable requests of the selling agent, including but not limited to:
(a)Facilitating the marketing of the G Street, Suburb H Property for Sale;
(b)Making the keys available to the selling agent at all times;
(c)Allowing inspection of the G Street, Suburb H Property at all reasonable times when requested to do so by the selling agent;
(d)Ensuring that the G Street, Suburb H Property including the grounds are in a neat and clean condition at the time of the inspection by the selling agent and prospective purchasers; and
(e)Signing all documents requested by the selling agent in relation to listing the G Street, Suburb H property, except a contract or agreement which has not been jointly authorised by the solicitor or conveyancer appointed pursuant to these Orders.

21.Pending the sale of the G Street, Suburb H Property pursuant to these Orders:
(a)The Husband pay as and when they fall due all rates, taxes and other insurances in relation to the G Street, Suburb H Property; and
(b)The parties be restrained by injunction from encumbering, further encumbering or otherwise dealing with the G Street, Suburb H Property without the prior written consent of the other, save to give effect to these Orders.

22.The Husband must vacate the G Street, Suburb H Property not less than 10 days prior to the scheduled settlement of the Sale of the G Street, Suburb H Property.
23.The proceeds of sale of the G Street, Suburb H Property (Proceeds of Sale) be applied as follows:
(a)First, to pay all costs, commissions and expenses of the sale including conveyancing fees;
(b)Second, to discharge the Mortgage No.... secured against the title to the G Street, Suburb H Property (noting that the loan secured by the mortgage has a zero balance);
(c)Third, to pay any taxation payable as a consequence of the Sale (if any);
(d)Fourth, to pay the Wife the sum of $261,382.34;
(e)Fifth, if the sale price of the G Street, Suburb H Property exceeds $615,000, then to pay to the Wife 50% of the sale proceeds exceeding $615,000; and
(f)Finally, the balance then remaining to be paid to the Husband.

24.The dispersal of the Proceeds of Sale referred to in sub-paragraphs (d) to (f) of Order 23 shall be stayed until:
(a)The Court hears and determines any costs application by the Wife and/or the Husband pursuant to Order 36; or
(b)The Court otherwise Orders.

25.If the Husband fails or neglects to sign any document or instrument required to be signed for the purposes of completing the Sale of the G Street, Suburb H Property within 7 days of a request to do so then, pursuant to this Order, the Wife be appointed as attorney for the Husband and is authorised by this Order to sign for and on his behalf including all electronic authorisations to enable the Sale to be completed.
26.The Wife be at liberty to produce a copy of these Orders as evidence of her authority to determine the terms of the Sale of the G Street, Suburb H Property in default of agreement and to sign documents on behalf of the Husband to give effect to the Sale of the G Street, Suburb H Property.
27.The parties are granted liberty to apply to the Court with respect to the Sale of the G Street, Suburb H Property as may become necessary in order to give effect to these Orders.

Personal Property
28.The Wife retain for her sole use and benefit to the exclusion of the Husband all of her right, title and interest in:
(a)The real property situated in City J in the Region K of Country L and registered in the Wife’s name;
(b)The Motor Vehicle 1 registration number ...;
(c)Her interest in her business M Company;
(d)Funds standing to the credit in any bank account in the Wife’s sole name;
(e)Her Super Fund N superannuation entitlements;
(f)Her jewellery, save for the jewellery identified in the Wife’s Affidavit filed on 13 August 2020 which identified jewellery belonging to the Children and the identified jewellery is to be retained by the Children; and
(g)Her personal effects and household contents.

29.The Wife be solely responsible for and indemnify the Husband in relation to any liability in her sole name or encumbering any item of property to which she is entitled pursuant to these Orders including but not limited to the Motor Vehicle 1 Finance Company liability secured against the Motor Vehicle 1.
30.The Husband retain for his sole use and benefit to the exclusion of the Wife all of his right, title and interest in the following:
(a)Funds received from the sale of his Motor Vehicle 2;
(b)The Motor Vehicle 3;
(c)Funds standing to his credit in any bank account in his sole name;

(d)His Super Fund O superannuation entitlement; and
(e)His personal effects and household contents situated at the G Street, Suburb H Property.

31.The Husband be solely responsible for and indemnify the Wife in relation to any liability in his sole name or encumbering any item of property to which he is entitled pursuant to these Orders.
32.Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)Monies standing to the credit of the Husband and Wife in any bank account in their joint names is to be divided equally between them forthwith and the Husband and Wife do all acts and things and sign all documents necessary to close any joint account following the distribution of funds;
(b)Each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other.
(c)All insurance policies shall remain the sole property of the owner named on the policy;
(d)Each party shall be solely liable for and pay and indemnify the other against any liability in their sole name, including any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

33.Each party must do all acts and things and sign all documents as may be necessary and required to give full force and effect to these Orders.

Miscellaneous
34.The Wife file and serve any submissions in relations to costs, including reserved costs, on or before 4.00 pm on 14 May 2021.
35.The Husband file and serve any submissions in relation to costs, including reserved costs, on or before 4.00 pm on 11 June 2021.
36.Pursuant to r.21.02(1)(c) of the Federal Circuit Court Rules 2001 (Cth) the matter be adjourned to the Federal Circuit Court of Australia on 18 June 2021 at 10.00 am for Mention.

37. Save and except as provided in Orders 24 and 35 to 36 all extant applications are otherwise dismissed.
38. Pursuant to r.21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.
AND THE COURT NOTES:
A.Pursuant to s.81 of the Family Law Act 1975 (Cth) these Orders are intended to, as far as is practicable, finally determine the financial relationship between the parties and further avoid proceedings between them.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth), 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 the parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Tansel & Dellos (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C.E. KIRTON QC:
INTRODUCTION

These are property and parenting proceedings between the Applicant (Wife) and the Respondent (Husband). The parenting proceedings concern two children, X (X), born in 2011 and Y (Y), born in 2012 (together, the Children).
In these proceedings, the Court previously delivered one ex-tempore determination on the first day of the final hearing on 17 August 2020 in Tansel & Dellos [2020] FCCA 2367.
ISSUES IN DISPUTE
The following parenting issues are in dispute:
(a)The effect, if any, of the Husband’s mental health on his ability to provide for the needs of the Children, including their psychological, emotional and intellectual needs;
(b)The allocation of parental responsibility;
(c)Who the Children should live with; and
(d)The time the Children should spend with the parent with whom they are not living.
The following property issues are in dispute:
(a)The weight to be attributed to the contributions of each party at the commencement of the relationship and during the relationship;
(b)The composition of the asset pool; and
(c)Whether there should be an adjustment in favour of either party pursuant to any of the factors relevant to s.79(4) and s.75(2) of the Family Law Act 1975 (Cth) (Act).
SYNOPSIS
I have determined that in relation to parenting:
(a)The Wife have sole parental responsibility for the Children.
(b)The Children live with the Wife.
(c)The Children spend time with the Husband:
(i)        In week one:
(A)On Tuesday, from the conclusion of school (or 9:00 am on a pupil free day or 3:30 pm on a public holiday) until 7:00 pm; and
(B)From the conclusion of school on Friday (or 9:00 am on a pupil free day or 3:30 pm on a public holiday) until the commencement of school on Monday (or 9:00 am on a public holiday or 3:30 pm on a pupil free day);
(ii)       In week two:
(A)On Tuesday, from the conclusion of school (or 9:00 am on a pupil free day or 3:30 pm on a public holiday) until 7:00 pm; and
(B)On Thursday, from the conclusion of School (or 9:00 am on a pupil free day or 3:30 pm on a public holiday) until 7:00 pm.
(iii)      During the school term holidays and the long summer school holidays as agreed    between the parties in writing and in default of agreement, the arrangements      pursuant to sub-paragraphs (i) and (ii) to continue throughout the school           holidays.
(iv)      On special occasions including Christmas, the Children’s birthdays, Father’s        Day and the Father’s birthday.
I have determined that in relation to property:
(a) The Wife is to:
(i)Retain the proceeds of the interim property distribution pursuant to the 21 August 2020 Consent Orders in the sum of $267,680.58;[1]
[1] 21 August 2020 Orders, Orders 1 and 2.
(ii)Receive the sum of $261,382.34 from the proceeds of sale of the property at G Street, Suburb H (G Street, Suburb H Property) and 50% of the proceeds of sale of the G Street, Suburb H Property in the event that the property achieves a sale price in excess of $615,000;
(iii)Retain a property owned by the Wife in Country L (Country L Property);
(iv)Retain her Motor Vehicle 1, her savings in CBA Account No. #...31 and the notional asset of her legal fees of $82,193.89.
(v)Be responsible to Motor Vehicle 1 Finance Company for the loan for the Motor Vehicle 1 and for her loans from Mr P.
(vi)Retain her superannuation with Super Fund N.
(d)The Husband is to:
(i)Receive the balance of the net proceeds of sale of the G Street, Suburb H Property and 50% of the proceeds of sale of the G Street, Suburb H Property in the event that the property achieves a sale price in excess of $615,000;
(ii)Retain his Motor Vehicle 3 registration number ... (Motor Vehicle 3), his savings in CBA Account No. #...81 and the notional asset of his legal fees of $54,278.49 and the proceeds of sale of the Motor Vehicle 2 registration number ... (Motor Vehicle 2).
(iii)Retain his superannuation with Super Fund O.
BACKGROUND
The Husband was born in 1967 in City Q, Country L and is currently aged 53. The Husband migrated to Australia in 1992 and became an Australian citizen in 1993.[2]
[2] Husband’s Affidavit, sworn 20.1.20 and filed 21.1.20 (Husband’s 21 January 2020 Affidavit) at [10].
The Wife was born in 1979 in City R, Country L and is currently aged 41.
The Husband and the Wife married in 2007 in a civil ceremony in Country S. The parties also had a religious marriage in Country S in 2007.[3] The Wife then migrated to Australia in 2007 and became an Australian citizen in 2012.[4]
[3] Husband’s 21 January 2020 Affidavit at [17] and “-01”.
[4] Husband’s 21 January 2020 Affidavit, at [23] and Annexure “-02”.
The Wife qualified as a health care worker in 2001 at City R University and then worked as a health care worker in Country L. The Wife’s family then left Country L and migrated to Country S. After the Wife migrated to Australia, she undertook further training so that her qualifications as a health care worker could be recognised according to the Australian standards.[5]
[5] Wife's Affidavit, sworn and filed 3.2.20 (Wife’s 3 February 2020 Affidavit), at [6].
The Husband obtained his first degree from the University of City R. After the Husband migrated to Australia in 1992, he undertook postgraduate studies at a Masters level in Engineering and other postgraduate courses. From 1994 he was employed as an Engineer at the Employer T From early in 2005, the Husband was employed at Employer T as an executive and was in a senior management role. In late 2013 the Husband suffered a workplace injury as a result of alleged bullying and he stopped attending his place of employment. The Husband continued to receive his salary until late 2014 when his sick leave and other entitlements were exhausted. The Husband lodged a WorkCover claim in early 2014 which was rejected. The Husband’s employment contract expired in early 2016 and was not renewed.[6] The Husband has not worked since late 2013 and is currently on a Disability Pension.
[6] Husband’s 21 January 2020 Affidavit, at [43]-[47].
The parties separated on 28 August 2016 but continued to live together at the former matrimonial home at the G Street, Suburb H Property. The Wife and the Children left the G Street, Suburb H Property on 10 February 2018 and they went to live at a rented property in Suburb H. The Husband continued to live at the G Street, Suburb H Property.
After the Wife moved out of the G Street, Suburb H Property, the Children spent six hours each Saturday morning with the Husband. The parties then attended Family Dispute Resolution on 9 May 2018 and then the Husband’s time with the Children was increased to:
(a) From the conclusion of school until 6.30 pm each Tuesday; and
[7] Wife’s Affidavit, sworn and filed 10.1.20 (Wife’s 10 January 2020 Affidavit), at [7] and [32].
(b) Each alternate weekend, from 10:00 am on Saturday until 6:00 pm on Sunday.[7]
On 26 July 2018, the Husband filed a Divorce Application and it was granted on 25 October 2018. The divorce order became effective on 26 November 2018.[8]
[8] Husband’s 21 January 2020 Affidavit, at [179] and Annexure “-18”.
From 7 November 2019, the Children spent time with the Husband as follows:
(a)       Each Monday and Thursday from the conclusion of school until 7:00 pm;
(b)       Each alternate weekend from 10:00 am on Saturday until the commencement of school     on Monday;
(c)       During the 2019/2020 long summer school holidays and other school holidays, the time    on Mondays and Thursdays was extended to 9:00 am until 7:00 pm;
(d)      On Christmas Day 2019 from 10:00 am until 4:00 pm; and
(e)       At agreed times on special occasions such as birthdays and Father’s Day.[9]
[9] Wife’s 10 January 2020 Affidavit, at [13] and [16]; Wife’s Affidavit dated 12.8.20 and filed 13.8.20 (Wife’s 13 August 2020 Affidavit), at [4].
PROCEDURAL HISTORY
The Wife commenced proceedings in this Court on 31 May 2018 seeking property orders. At the time the Wife commenced these proceedings, she was represented by Kenna Teasdale (Wife’s Lawyers), who have continued to represent the Wife for the duration of these proceedings.
In the Initiating Application filed on 21 May 2018 (Initiating Application) the Wife sought final orders that:
(a)The net non-superannuation assets of the parties be divided in proportions of 60% to the Wife and 40% to the Husband; and
(b)There be an equalisation of the parties’ respective interests in superannuation.[10]
[10] Initiating Application, filed 31.5.18 (Initiating Application), Final orders sought, [1]-[2].
In the Initiating Application, the Wife also sought interim orders that may be relevantly summarised as follows:
(a)That all times be abridged to enable the urgent hearing of the application.
(b)The Husband be restrained from selling, encumbering or otherwise dealing with or disposing of his interest in the property at U Street, Suburb V (U Street, Suburb V Property).
(c)The Husband be permitted to reside in the U Street, Suburb V Property or arrange for the U Street, Suburb V Property to be leased, provided that any rental payments be applied by him in reduction of the loan secured by way of mortgage against the property.
(d)The Husband pay and be responsible for all repayments in relation to the loan secured against the U Street, Suburb V Property.
(e)The Husband vacate the G Street, Suburb H Property within 7 days.
(f)Upon the Husband vacating the G Street, Suburb H Property, the Wife be permitted to resume occupation of the G Street, Suburb H Property with the Children, and the Wife have sole use and occupation of the Property until further order.
(g)Within 7 days of the date of the orders the Husband deliver to the Wife the Motor Vehicle 2 and all keys and contemporaneously the Wife provide the Husband with the Motor Vehicle 3 and all keys for the vehicle.
(h)Within 7 days of the date of the orders the Husband provide the Wife with various documents by way of financial disclosure, which included:
(i)All Court documents and correspondence to and from his lawyers, Maurice Blackburn Lawyers (or any other firm instructed by him) in relation to his litigious claim against Employer T from the termination of his employment in 2014;
(ii)A copy of all invoices received by the Husband from Maurice Blackburn Lawyers (or any other firm instructed by him) and any costs agreement he has signed in relation to his litigious claim against Employer T;
(iii)Statements from the Husband’s Commonwealth Bank Everyday Offset Account No. ##...81 for the periods: 1 January 2013 to 27 August 2016; and from 19 December 2017 to date;
(iv)All documents evidencing the account into which the sum of $80,000 was paid, being funds withdrawn from the Husband’s superannuation in October 2017, and all documents evidencing the use and application of those funds;
(v)Statements evidencing the current balance of the Husband’s superannuation entitlements;
(vi)Statements for the Husband’s Commonwealth Bank Credit Card Account No. #...74 for the period January 2013 to date; and
(vii)Statements for all other bank accounts, credit cards, loan accounts and term deposit accounts for the period 1 January 2013 to date, including any account held for which he was a signatory in the name of X.
(i)Within 7 days the Husband instruct his lawyers to execute the joint letter of instruction to W Valuers (in relation to the G Street, Suburb H Property and the U Street, Suburb V Property) that was forwarded under cover of the letter from the Wife’s lawyers, dated 29 March 2018.[11]
[11] Initiating Application, Interim or procedural orders sought, [1]-[9].
On 31 May 2018, the Wife also filed an Affidavit in support of her Initiating Application[12] and a Financial Statement.[13] A Registrar of the Court acceded to the Wife’s application for an abridgment of time in relation to the interim orders sought in sub-paragraphs (b), (d) and (g) of the preceding paragraph. The Registrar ordered that the Husband forthwith be served with the Initiating Application and Wife’s supporting material and that the proceeding be listed before Judge Stewart on 25 June 2018.
[12] Wife’s Affidavit, sworn 30.5.18 and filed 31.5.18.
[13] Wife’s Financial Statement, filed 31.5.18.
On 13 June 2018, the Husband filed a Notice of Address for service which indicated that he was represented by De Maria & Associates.
On 21 June 2018, the Husband filed a Response (Response) seeking interim and final property orders. The interim orders that the Husband sought included:
(a)That within 7 days the Wife make disclosure of:
(i)Any accounts held abroad by the Wife and also jointly with any other person from 1 January 2012 to date;
(ii)Bank statements held for accounts held in Australia by the Wife and also jointly with any other person from 1 January 2012; and
(iii)Any documents relating to the purchase, ownership or transfer of land situate at the Z Street, Suburb H (Z Street).
(b)The parties attend a private mediation on or before 27 August 2018.
(c)Failing agreement as to the value of any asset in dispute by 2 August 2018 the parties obtain and exchange sworn valuations no later than 20 August 2018, including properties outside Australia.
(d)The Wife pay the Husband’s costs of the proceedings.[14]
[14] Response, filed 21.6.18 (Response) Interim or procedural orders sought, [1]-[4].
In the Response the Husband sought final orders that there be: ‘[…] a just and equitable division of property including superannuation between the parties’. The Husband sought to otherwise be excused from particularising his orders pending full financial disclosure by the Wife.[15]
[15] Response, Final orders sought by you the respondent, [1]-[2].
On 21 June 2018 the Husband also filed an Affidavit in support of the Response[16] and a Financial Statement.[17]
[16] Husband’s Affidavit, filed 21.6.18.
[17] Husband’s Financial Statement, filed 21.6.18.
The proceeding first came before the Court on 25 June 2018 before Judge Stewart. On that occasion both the Husband and the Wife were represented by Counsel. Judge Stewart listed the matter for final hearing on 20 June 2019 with an estimate of 2 days (First Final Hearing Date).[18] Her Honour made trial directions, ordering that the Wife was to file and serve any Amended Application, all affidavits and any updated Financial Statement by no later than 28 days prior to the First Final Hearing Date. The Husband was ordered to file and serve any Amended Response, all affidavits and any undated Financial Statement by no later than 14 days prior to the First Final Hearing Date. The Wife was to file any reply material no later than 7 days prior to the First Final Hearing Date. Each party was to file and serve a Case Outline by no later than 2 days prior to the First Final Hearing Date (First Final Hearing Trial Directions).[19]
[18] 25 June 2018 Orders, Order 4.
[19] 25 June 2018 Orders, Orders 5 to 8.
On 25 June 2018 Judge Stewart also made orders by consent, which may be relevantly summarised as follows (25 June 2018 Orders):
(a)In the event that the Husband proposes to terminate the lease at the U Street, Suburb V Property or to otherwise sell the property, he shall give the Wife 30 days’ notice of his intention to do so;
(b)The Husband shall apply the rental income with respect to the U Street, Suburb V Property to the mortgage and outgoings with respect to the U Street, Suburb V Property;
(c)The Wife shall within 21 days obtain a quote from AA Mechanic, Suburb V with respect repairs required to the Motor Vehicle 3 and the Husband shall attend to the payment of the repairs to AA Mechanic within 7 days thereafter;
(d)Within 7 days of the 25 June 2018 Orders, and to the extent not already provided, the Husband provide the following documents by way of disclosure:
(i)All Court documents and correspondence to and from his lawyers, Maurice Blackburn Lawyers (or any other firm instructed by him) in relation to his litigious claim         against Employer T from the termination of his employment in 2014;
(ii)A copy of all invoices received by the Husband from Maurice Blackburn Lawyers (or any other firm instructed by him) and any costs agreement he has signed in relation to his litigious claim against Employer T;
(iii)Copies of any assessments and/or medical reports that have been undertaken/produced in relation to the Husband’s litigious claim against Employer T;
(iv)Statements from the Husband’s Commonwealth Bank Everyday Offset Account No. ##...81 for the periods: 1 January 2013 to 27 August 2016; and from 19 December 2017 to date;
(v)All documents evidencing the account into which the sum of $80,000 was paid, being funds withdrawn from the Husband’s superannuation in October 2017, and all documents evidencing the use and application of those funds;
(vi)Statements evidencing the current balance of the Husband’s superannuation entitlements;
(vii)Statements for the Husband’s Commonwealth Bank Credit Card Account No. ##...74 for the period January 2013 to date;
(viii)Statements for all other bank accounts, credit cards, loan accounts, term deposit accounts for the period 1 January 2013 to date, including any account held for which he was a signatory in the name of X; and
(ix)Copy of the current lease for the U Street, Suburb V Property.
(e)Within 7 days the Husband instruct his lawyers to execute the joint letter of instruction to W Valuers that was forwarded under cover of the letter from the Wife’s lawyers, dated 29 March 2018, for the purpose of valuing the G Street, Suburb H Property and the U Street, Suburb V Property at the parties’ joint expense;
(f)Within 7 days of the 25 June 2018 Orders, and to the extent not already provided, the Wife provide the following documents by way of disclosure:
(i)All statements for savings, investment and like accounts held by the Wife overseas from 1 January 2012 to date including accounts held jointly with any other person;
(ii)Bank statements, for bank accounts, credit card accounts and any other like accounts held by the Wife in Australia from 1 January 2012 to date including any accounts held with any other person; and
(iii)All documents in her possession or control relating to the purchase, ownership or transfer of land situated at       the Z Street.
(g)The parties to attend a private mediation on or before 30 September 2018 with respect to financial matters, with the mediator’s costs to be paid equally between the parties;
(h)Within 60 days the parties exchange market appraisals or sworn valuations in relation to the Country L Property; and
(i)All extant interim applications be otherwise dismissed.

On 25 September 2018 the Wife’s Lawyers caused to be issued a subpoena addressed to The Proper Officer, Maurice Blackburn Lawyers, seeking a complete copy of the Husband’s file in relation to the Husband’s claims arising out of his employment with Employer T (First Maurice Blackburn Subpoena). The documents were to be produced pursuant to the First Maurice Blackburn Subpoena to the Melbourne Registry of the Court by 4:00 pm on 9 October 2018.
On 19 September 2019 a Notice of Address for Service was filed which indicated that Paul Roberts of GTC Lawyers was then acting on behalf of the Husband.
On 15 October 2018, a Notice of Objection – Subpoena was filed by GTC Lawyers on behalf of the Husband objecting to the First Maurice Blackburn Subpoena and claiming legal professional privilege. Ultimately the Husband conceded that he had waived privilege by consenting to the 25 June 2018 Orders and withdrew the objection. The Husband also paid the Wife’s costs of and incidental to the subpoena objection in the sum of $808.50.[20] On 15 November 2018 the Wife’s Lawyers filed a Notice of Request to Inspect in Accordance with r.15A.13(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Rules) (Notice of Request to Inspect) in relation to the documents that had been produced pursuant to the First Maurice Blackburn Subpoena on 15 October 2018.
[20] Wife’s 10 January 2020 Affidavit, at [102].
On 11 April 2019, the Wife’s Lawyers caused to be issued another subpoena addressed to The Proper Officer, Maurice Blackburn Lawyers seeking a complete copy of the Husband’s file in relation to the Husband’s claims arising out of his employment with Employer T for the period from 25 September 2018 until the date of the issue of the subpoena (Second Maurice Blackburn Subpoena). The documents pursuant to the Second Maurice Blackburn Subpoena were to be produced to the Melbourne Registry of the Court by 4:00 pm on 25 April 2019.
On 24 April 2019 the Husband acting on his own behalf caused to be issued two subpoenas, both to the Wife’s cousins, one to Mr P and the other to Mr BB. It is to be noted that at the time that these subpoenas were issued, GTC Lawyers had not filed a Notice of Withdrawal as Lawyer. Each subpoena sought information relating to contracts of sale particulars and payment records for the purchase of lots at the Z Street. These subpoenas required Mr P and Mr BB to attend Court and give evidence on the First Final Hearing Date.
On 6 May 2019 the Wife’s Lawyers caused to be issued a subpoena to The Proper Officer, Commonwealth Bank of Australia (Wife’s Commonwealth Bank Subpoena), seeking;
(a)Documents evidencing the balance of all accounts held in the name of the Husband as at 26 August 2007; and
(b)For the period from 1 January 2016 to date, copies of:
(i)A list of all accounts held or formerly held in the name of the Husband or controlled by the Husband; and
(ii)For each of the accounts included in the list referred to in sub-paragraph (b)(i), bank statements, credit card statements, notes, correspondence, application forms and supporting documents, withdrawal and deposit slips, file notes and any other documents.
The documents were to be produced pursuant to the Wife’s Commonwealth Bank Subpoena to the Melbourne Registry of the Court by 4:30 pm on 20 May 2019.
On 6 May 2019 the Wife’s Lawyers also filed a Notice to Request to Inspect in relation to the documents which had been produced pursuant to the Second Maurice Blackburn Subpoena on 25 April 2019.
On 8 May 2019 the Husband again acting on his own behalf, caused to be issued a subpoena addressed to the Wife seeking production of:
(a)Copies of cost agreements or cost details and tax invoices and receipts from David Stagg Tonkin & Company, Barristers and Solicitors in relation to family law matters from the period of 26 August 2016 to the of issue of the subpoena; and
(b)Copies of documents of the same description from the Wife’s Lawyers over the same period of time.
The documents were to be produced pursuant to this subpoena to the Melbourne Registry of the Court by 4:30 pm on 22 May 2019.
On 17 May 2019 a Notice of Address for Service was filed which indicated that Paul Roberts at GTC Lawyers was acting on behalf of the Husband. It is again noted that the Court records do not indicate that GTC Lawyers previously filed a Notice of Withdrawal as Lawyer on behalf of the Husband.
On 17 May 2019, GTC Lawyers filed an Amended Response (Amended Response) on behalf of the Husband, which for the first time sought interim and final parenting orders. The Amended Response was filed 11 months after the Response was filed on 21 June 2018. The Amended Response was also filed a month prior to the First Final Hearing Date on 20 June 2019, which had been listed 11 months earlier on 25 June 2018. The Amended Response was also filed less than one week prior to the time for the Wife to file her trial material pursuant to the First Final Hearing Trial Directions. The Wife has deposed that the Husband did not give the Wife notice of his intention to put parenting matters before the Court.[21]
[21] Wife’s 10 January 2020 Affidavit, at [8] and [34].
In the Amended Response, the Husband sought interim parenting orders which may be relevantly summarised as follows:
(a)The parents have equal shared parental responsibility for the Children;
(b)Pursuant to s.11F of the Act the parties and the Children attend upon a Family Consultant as appointed by the Director of Court Counselling of the Melbourne Registry of the Court for the purpose of a Child Inclusive Conference;
(c)The Children live with the Wife;
(d)The Children spend time with the Husband:
(i)From 3.30 pm or after school each Tuesday until 6:30 pm;
(ii)From 3:30 pm or after school on Friday until Sunday at 6:00 pm and each alternate week thereafter;
(iii)For one half of the school term and Christmas holidays;
(iv)On special occasions being: Christmas Eve and Christmas Day, New Year’s Eve, Easter and the Children’s birthdays, with these occasions to be shared between the parents; and on the Husband’s birthday and Father’s Day; and
(v)By phone every second day between 6:30 pm and 7:00 pm.
(e)Either child be at liberty to call the parent they are not in the care of at reasonable times and the other parent to facilitate the call and provide privacy for the child;
(f)Orders for the exchange of medical and related information between parents concerning the Children;
(g)Each parent be restrained from enrolling or committing the Children to any activity during the other’s party’s time without first obtaining the other party’s consent;
(h)Each parent to support the Children in and ensure that they are transported to any sporting or extra-curricular activity that they are participating in;
(i)Each parent be restrained from removing the Children’s mobile phones;
(j)Each parent be restrained from telling or otherwise encouraging the Children to keep secrets from the other parent;
(k)In the event that either parent is unable to provide adequate and age appropriate care for the Children they ensure that the Children are placed in the care of the other parent;
(l)No social media networking sites or email accounts to be opened or operated under the name of either child without the written consent of both parents. If such consent is provided, both parents to have access to the username and password;
(m)Orders in the event that either party intends to travel with either child outside Australia or the State of Victoria;
(n)Orders for the provision of information in relation to the Children’s education and that the Children continue to attend their current school in G Street, Suburb H, unless the parties agree in writing to enrol the Children in a different school;
(o)The parents be restrained from passing messages through the Children to the other parent;
(p)Neither parent permit the Children to use electronic devices for more than two hours a day (not including their homework activities). Both parents to agree that such devices will be supervised and monitored for content;
(q)For changeovers that do not occur at school the Husband:
(i)Collect the Children from the Wife at CC Street at the commencement of the time the Children are to spend with the Husband; and
(ii)Return the Children to the Wife at CC Street at the conclusion of the time the Children are to spend with the Husband.
The final parenting orders sought in the Amended Response were the same as the interim parenting orders, save that the Husband sought the following orders, which may be relevantly summarised as follows:
(a)The Children live with the Husband:
(i)In the first week of a two week cycle, from 3:30 pm or the cessation of school Friday until 9:00 am or the commencement of school the following Friday and each alternative week thereafter;
(ii)For one half of each of the school term holidays and the long summer school holidays.
(b)The Children live with the Wife and the Husband’s time with the Children otherwise be suspended as follows:
(i)In the first week of a two week cycle, from 3:30 pm or the cessation of school Friday until 9:00 am or the commencement of school the following Friday and each alternative week thereafter;
(ii)For one half of each of the school term holidays and the long summer school holidays.
The interim property orders sought were amended and made no sense whatsoever, quite apart from the fact that the dates for compliance with the proposed interim orders were in August 2018 and the Amended Response was filed on 17 May 2019. The interim property orders sought in the Amended Response may be relevantly summarised as follows:
(a)Discovery from the Wife in the same terms as had previously been ordered by Judge Stewart in Consent Order 6 of the 25 June 2018 Orders;[22]
(b)The parties attend a private mediation with respect to financial matters on or before 27 August 2018 with the mediator’s fees to be shared jointly by the parties. An order in these terms for a private mediation had previously been made in Order 7 of the 25 June 2018 Orders;[23] and
(c)Failing the agreement as to the value of any asset in dispute by 2 August 2018 the parties obtain and exchange sworn valuations no later than 20 August 2018 including but not limited to properties outside Australia. This again was contrary to the Orders 5 and 8 of the 25 June 2018 Orders.[24]
[22] Amended Response, filed 17.05.19 (Amended Response), Interim Orders, Annexure “A” at [1].
[23] Amended Response, Interim Orders, Annexure “A” at [2].
[24] Amended Response, Interim Orders, Annexure “A” at [3].
There was no amendment to the final property orders sought by the Husband in the Amended Response.
On 17 May 2019 the Husband’s Lawyers also filed an Affidavit[25] and a Notice of Risk (Husband’s Notice of Risk).[26] The Husband’s Notice of Risk made no allegations that the Children were at any risk of child abuse, family violence or other risk referred to in Part 4 of the Husband’s Notice of Risk.
[25] Husband’s Affidavit sworn 16.5.19 and filed 17.5.19.
[26] Husband’s Notice of Risk, dated 16.5.19 and filed 17.5.19.
On 22 May 2019, the Wife’s Lawyers filed a Notice of Request to Inspect in relation to the documents which had been produced pursuant to the Wife’s Commonwealth Bank Subpoena on 20 May 2019.
The proceeding was listed for mention on 31 May 2019 and on that date the final hearing of was adjourned to 10 February 2020 so that the parenting and financial matters could be heard concurrently.[27] On 31 May 2019 the Wife was represented by the solicitor who had the conduct of the proceeding on behalf of the Wife’s Lawyers (Solicitor) and Counsel appeared on behalf of the Husband. As indicated, on 31 May 2019 Judge Stewart adjourned the First Final Hearing Date and ordered that the proceeding be listed for final hearing commencing on 10 February 2020 with an estimate of 2 days (Second Final Hearing Date).[28] Trial directions in the same terms as the First Final Hearing Trial Directions were also made by her Honour.[29]
[27] Wife’s 10 January 2020 Affidavit at [9]; 31 May 2019 Orders, Order 3. It is noted that the Orders published are clearly incorrect as Order 3 of the Orders dated 31.5.19 adjourn the proceeding to 10.2.19, whereas the date should be 10.2.20.
[28] 31 May 2019 Orders, Order 3.
[29] Orders 25 June 2018, Orders 5 to 8.
On 31 May 2019 Judge Stewart also made orders by consent which may be relevantly summarised as follows (31 May 2019 Orders):
(a)Within 17 days the parties do all things and sign all documents to place the U Street, Suburb V Property on the market on the following terms:
(i)The agent be appointed by agreement and in default of agreement be nominated by the President of the Real Estate Institute of Victoria;
(ii)The mode of sale and the terms and conditions of the sale be as agreed between the parties and in default of agreement as recommended by the selling agent; and
(iii)The sale price be as agreed between the parties and in default of agreement be no less than as recommended by the selling agent.
(b)The proceeds of the U Street, Suburb V Property be applied as follows:
(i)To pay the costs, commissions and expenses of the sale;
(ii)To discharge the mortgage secured against the title of the property in favour of the Commonwealth Bank; and
(iii)The balance to be paid into the trust account of the Wife’s Lawyers and invested in an interest bearing account on trust for the parties pending agreement between the parties or a Court Order.
(c)The parties attend upon Ms C for the preparation of a Family Report, with the Husband to pay $4,300 and the Wife to pay $2,300 for the cost of the report.
On 31 July 2019 the Wife filed a Reply (Reply) which responded to the parenting orders sought in the Amended Response. [30] The final parenting orders sought in the Reply may be relevantly summarised as follows:
[30] Wife’s Reply, dated and filed 31.7.19.
(a)The Wife have sole parental responsibility for the Children.
(b)The Children live with the Wife.
(c)The Children spend time with the Husband as follows:
(i)Each Tuesday from the conclusion of school (or 8.30 am if a pupil free day or 3.30 pm on a public holiday) until 6.30 pm;
(ii)Each alternate weekend from10:00 am on Saturday until 6:00 pm on Sunday;
(iii)During the school holidays as agreed between the parties and in default of agreement, in accordance with sub-paragraphs (c)(i) and (ii); and
(iv)On special occasions being: 26 December, the Children’s birthdays, the Husband’s birthday and Father’s Day.
(d)Where changeover does not occur at the Children’s school, and unless otherwise agreed between the parties, the Husband to collect the Children from the Wife’s residence from the commencement of his time with the Children and return the Children to the Wife’s residence at the conclusion of his time with the Children.
(e)Restraining orders in relation to the parents discussing the proceedings with the Children or encouraging the Children to spend time with them, other than in accordance with operative parenting orders or the written agreement of the other parent.
(f)Information sharing orders between the parents concerning: their current addresses, mobile telephone numbers and email addresses; information concerning the Children’s health; and information relating to the Children’s education.
On 31 July 2019 the Wife also filed an Affidavit (Wife’s 31 July 2019 Affidavit).[31] The Wife’s 31 July 2019 Affidavit annexes a letter from DD Insurer (an authorised agent of the Victorian WorkCover Authority), dated 22 February 2019, addressed to the Husband and a Certificate of Opinion, dated 20 February 2019, from a Medical Panel constituted pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), in relation to the Husband (Medical Panel Opinion).[32] The Medical Panel Opinion will become significant later in this Judgment in relation to the Husband’s failure to produce evidence at the final hearing which commenced on 17 August 2020 (Final Hearing), as to the Husband’s current state of mental health and also in relation to the Husband’s ongoing personal injury claim against Employer T.
[31] Wife’s Affidavit, sworn and filed 31.7.19 (Wife’s 31 July 2019 Affidavit).
[32] Wife’s 31 July 2019 Affidavit, at [37] and Annexure “-1”.
On 31 July 2019 the Wife also filed a Notice of Risk (Wife’s Notice of Risk).[33] The Wife’s Notice of Risk made allegations of child abuse and family violence, concerning the Wife and the Children prior to the parties’ separation, and also ongoing risk to the Children due the Husband’s poor state of mental health.
[33] Wife’s Notice of Risk, dated and filed 31.7.19.
On 14 August 2019 a Notice of Address for Service was filed which indicated that Lander and Rogers were then acting on behalf of the Husband.
On 14 October 2019, Lander and Rogers filed an Application in a Case on behalf of the Husband (Husband’s First Application in a Case) [34] seeking the following interim orders which may be relevantly summarised as follows:
[34] Husband’s First Application in a Case, dated and filed 14.10.19.
(a)The parents have equal shared parental responsibility for the Children;
(b)The Children live with the Wife;
(c)That pending school Term 1 2020 the Children spend time with the Husband as follows:
(i)During school Term 4 2019:
Week One
(A)From the conclusion of school on Tuesday (or 10:00 am on a Victorian Gazetted public holiday or a pupil free day) until 7:00 pm; and
(B)From the conclusion of school on Thursday (or 10:00 am on a Victorian Gazetted public holiday or a pupil free day) until 7:00 pm;
Week Two
(A)From the conclusion of school on Tuesday (or 10:00 am on a Victorian Gazetted public holiday or a pupil free day) until 7:00 pm;
(B)From the conclusion of school on Thursday (or 10:00 am on a Victorian Gazetted public holiday or a pupil free day) until 7:00 pm; and
(C)From the conclusion of school on Friday (or 10:00 am on a Victorian Gazetted public holiday or a pupil free day) until 7:00 pm on Sunday;
(ii)During the 2019/2020 Long Summer School Holidays:
(A)From the conclusion of school on the last day of school Term 4 2019 (Friday 20 December 2019) until 10:00 am on Friday 27 December 27 December 2019; and
(B)Each alternate week thereafter until the commencement of school Term 1 2020 on 28 January 2020;
(iii)Commencing school Term 1 2020:
Week One
(A)From the conclusion of school on Tuesday (or 10:00 am on a Victorian Gazetted public holiday or a pupil free day) until 7:00 pm; and
(B)From the conclusion of school on Thursday (or 10:00 am on a Victorian Gazetted public holiday or a pupil free day) until 7:00 pm;
Week Two
(A)From the conclusion of school on Tuesday (or 10:00 am on a Victorian Gazetted public holiday or a pupil free day) until 7:00 pm; and
(B)From the conclusion of school on Thursday (or 10:00 am on a Victorian Gazetted public holiday or a pupil free day) until 7:00 pm on Sunday.
(d)Changeovers which do not occur at the Children’s school take place at the Wife’s residence;
(e)That either child be at liberty to call the parent they are not in the care of at all reasonable times and the other parent to facilitate such call and provide privacy for the child to do so;
(f)Information sharing orders concerning the Children’s health and education; and
(g)Mutual non-denigration orders.

On 14 October 2019 Lander and Rogers also filed an Affidavit in support of the Husband’s First Application in a Case.[35] Significantly in this Affidavit, the Husband deposed that he sought to increase his time with the Children on an interim basis, as recommended in the family report prepared by Ms C, dated 10 September 2019 (Family Report).[36] The Husband also produced a letter from the Wife’s Lawyers to Lander and Rogers, dated 20 September 2019 (Kenna Teasdale 20 September 2019 Letter).[37] In this letter, the Wife’s Lawyers stated that the Wife did not agree to an immediate implementation of the recommendations in the Family Report and in particular, referred to paragraph 56 of the Family Report. The Wife’s Lawyers proposed that the parties engage an independent psychiatrist to undertake a further assessment of the Husband in light of Ms C’s observations in paragraph 56. This suggestion was rejected by the Husband and will become relevant further in the Judgment in relation to the evidence produced by the Husband at the Final Hearing regarding his mental health.
[35] Husband’s Affidavit, sworn and filed 14.10.19 (Husband’s 14 October 2019 Affidavit).
[36] Husband’s 14 October 2019 Affidavit, at [3].
[37] Husband’s 14 October 2019 Affidavit, at [33] and “-2”.
The return date assigned by the Registry for the Husband’s First Application in a Case was the Second Final Hearing Date, being 10 February 2020.
On 17 October 2019 Lander and Rogers filed another Application in a Case on behalf of the Husband (Husband’s Second Application in a Case[38]) seeking the same interim orders as the Husband’s First Application in a Case, and also an order that all necessary times for the hearing and determination of the interim relief sought in the Husband’s Second Application in a Case be abridged to a date no later than 21 December 2019. The Husband’s Second Application in a Case was accompanied by a covering letter to The Registrar of the Court from Lander and Rogers, dated 15 October 2019, seeking an abridgment of time and requesting an interim hearing prior to 21 December 2019. This application for an abridgment of time was not acceded to by the Registry.
[38] Husband’s Second Application in a Case, dated 15.10.19 and filed 17.10.19.
On 12 December 2019 Lander and Rogers filed a Notice of Intention to Withdraw as Lawyer.
On 16 December 2019 the Husband filed a Notice of Address for Service which indicated that he was acting on his own behalf. The Husband continued to be self-represented for the remainder of the proceedings.
On 8 January 2020 the Wife’s Lawyers caused to be issued a subpoena addressed to The Proper Officer, Maurice Blackburn Lawyers, seeking a complete copy of the Husband’s file for the period from 11 April 2019 to the date of the subpoena, in relation to the Husband’s claims arising out of his employment with Employer T (Third Maurice Blackburn Subpoena). The documents were to be produced pursuant to the Third Maurice Blackburn Subpoena to the Melbourne Registry of the Court by 4:00 pm on 22 January 2020.
On 10 January 2020 the Wife filed an Amended Initiating Application (Amended Initiating Application).[39] The Amended Initiating Application sought final parenting and property orders and did not seek any interim orders.
[39] Amended Initiating Application, dated and filed 10.1.20 (Amended Initiating Application).
The final parenting orders sought in the Amended Initiating Application may be relevantly summarised as follows:[40]
[40] Amended Initiating Application, Final orders sought, Parenting Orders, [1]-[12].
(a)The Wife have sole parental responsibility for the Children;
(b)The Children live with the Wife;
(c)The Children spend time with the Husband as follows:
(i)Each Monday and Thursday from the conclusion of School (or 9:00 am on a pupil free day or 3:30 pm on a public holiday) until 7:00 pm;
(ii)Each alternate weekend from 10:00 am on Sunday until the commencement of school on Monday (or 9:00 am on a pupil free day or 3:30 pm on a public holiday); and
(d)During the school term holidays and the long summer school holidays as agreed between the parties in writing and in default of agreement, the arrangement in sub-paragraph (c) to continue through the school holidays, save that the time each Monday and Thursday pursuant to sub-paragraph (c)(i) be extended to 9:00     am to 7:00 pm;
(e)The Children spend time with the Husband on the following special occasions as agreed between the parties in writing, and in default of agreement:
(i)In 2020 and each alternate year, from 10:00 am to 4:00 pm on Boxing Day (26 December);
(ii)In 2021 and each alternate year, from 10:00 am to 4:00 pm on Christmas Day;
(iii)On each of the Children’s birthday’s, from the conclusion of school until 7:00pm on a school day or from 9:00 am to 12:00 noon on a non-school day;
(iv)On the Husband’s birthday, from the conclusion of school until 7:00 pm on a school day or from 9:00 am to 12:00 noon on a non-school day; and
(v)On Father’s Day, from 10:00 am to 7:00 pm.
(f)The Husband’s time with the Children be suspended and the Wife spend time with the Children on the following special occasions as agreed between the parties in writing and in default of agreement:
(i)In 2020 and each alternate year, on Christmas Day;
(ii)In 2021 and each alternate year, on Boxing Day;
(iii)On each of the Children’s birthdays, from 9:00 am to 12:00 noon on a non-school day;
(iv)On the Wife’s birthday from the conclusion of school until 6.30 pm on a school day or from 10:00 am to 6:30 pm on a non-school day; and
(v)On Mother’s Day, from 10:00 am to 6:30 pm.
(g)Where changeover does not occur at the Children’s school, and unless otherwise agreed between the parties, the Husband collect the Children from the Wife’s residence from the commencement of his time with the Children and return the Children to the Wife’s residence at the conclusion of his time with the Children;
(h)Orders in relation to international travel for the parents with the Children;
(i)When not in use, the Children’s passports to be held by the Wife and each party do all acts and things and sign all documents to ensure the Children’s passports are renewed when required;
(j)Each party be restrained by themselves, their servants and/or agents from:
(i)Discussing or negotiating variations to these orders with or the presence of the Children, or either of them;
(ii)Discussing the financial or parenting issues between the parties, including these proceedings with or in the presence of the Children, or either of them;
(iii)Allowing the Children, or either of them, to read any correspondence, documents or reports generated in connection with these proceedings or any communications between the parties concerning the parenting arrangements for the Children; and
(iv)Encouraging, inviting or allowing the Children, or either of them, to spend time with them other than in accordance with any operative parenting orders or written agreement with the other parent.
(k)Each party:
(i)Keep the other informed of their current address, mobile telephone number and email address;
(ii)Notify the other as soon as is reasonably practicable in the event the Children, or either of them, become seriously ill, sustain a serious injury or require medical attention whilst in that party’s care;
(iii)Provide the other party details of the child’s serious injury or serious illness and the name(s) of the treating medical practitioner(s) and authorise the other party to liaise with the treating medical practitioner(s);
(iv)Advise the other party of any medication or treatment which is prescribed for the Children, or either of them;
(v)Unless otherwise agreed between the parties in writing, follow all reasonable directions and recommendations of any treating medical practitioners with respect to the medical care of the Children, or either of them, including prescribed medications, in a timely manner;
(vi)Authorise any school attended by the Children to provide the other party with copies of all notices, newsletters, reports photographs and other information normally given to parents in relation to the Children; and
(vii)Authorise the school attended by the Children to communicate with the other party in relation to the Children’s progress and further each party be at liberty to provide a sealed copy of these parenting orders to the Children’s school and any treating health professionals.
The final property orders sought in the Amended Initiating Application may be relevantly summarised as follows:[41]
[41] Amended Initiating Application, Final orders sought, Financial Orders, [13]-[27].
(a)Within 24 hours of the date of the orders, the parties do all acts and things and sign all documents as may be necessary and required to authorise the Wife’s Lawyers to pay to the Wife the balance of the funds (including all accrued interest) held in the controlled monies account No. XXX;
(b)Within 60 days of the date of the orders and contemporaneously:
(i)The Husband pay to the Wife the sum of $400,000 (Payment);
(ii)The Wife do all acts and things and sign all documents as may be necessary and required to transfer to the Husband, at the Husband’s expense, all of her right title and interest in the G Street, Suburb H Property; and
(iii)The Husband do all acts and things and sign all documents as may be necessary and required to discharge the mortgage secured against the G Street, Suburb H Property (G Street, Suburb H Mortgage) and indemnify the Wife and keep the Wife indemnified in relation to the G Street, Suburb H Mortgage.
(c)If the Husband fails to comply with the orders sought in sub-paragraph (b) (Husband’s Default), the G Street, Suburb H Property be forthwith sold on the following terms:
(i)The selling agent be appointed by agreement between the parties and in default of agreement within 14 days of the Husband’s Default, by agent nominated by the Wife;
(ii)The conveyancer as agreed between the parties and in default of agreement within 14 days of the Husband’s Default, as nominated by the Wife; and
(iii)On such terms and conditions and for a price as agreed between the parties and in default of agreement within 14 days of the agent’s appointment, then as determined by the Wife on the recommendation of the selling agent.
(d)The proceeds of sale of the G Street, Suburb H Property be applied as follows:
(i)First, to pay all costs, commissions and expenses of the sale including conveyancing fees;
(ii)Second, to discharge the G Street, Suburb H Mortgage;
(iii)Third, to pay taxation payable as a consequence of the sale;
(iv)Fourth, to pay the Wife such of the Payment as remains then outstanding together with interest at the rate prescribed by the Family Law Rules 2004 (Cth) calculated as and from the date of the Husband’s Default; and
(v)Finally, the balance then remaining to be paid to the Husband.
(e)Pending the transfer or sale of the G Street, Suburb H Property:
(i)The Husband pay as and when they fall due all rates, taxes and other insurances in relation to the property; and
(ii)The parties be restrained by injunction from encumbering, further encumbering or otherwise dealing with the G Street, Suburb H Property without the prior written consent of the other, save to give effect to these orders.
(f)If the Husband makes any further claim arising out of the termination of his employment with Employer T, then the Husband pay the Wife a sum equivalent to 50% of the net amount received by him.
(g)The Wife retain for her sole use and benefit to the exclusion of the Husband all of her right title and interest in:
(i)The Country L Property;
(ii)The Motor Vehicle 1;
(iii)M Company;
(iv)Funds standing to her credit any bank account in her sole name;
(v)Her Super Fund N entitlements;
(vi)Her jewellery; and
(vii)Personal effects and household contents.
(h)The Wife be solely responsible for and indemnify the Husband in relation to any liability in her sole name or encumbering any item of property to which she is entitled pursuant to the orders.
(i)Within 7 days of the date of the orders the Husband arrange to collect from the Wife’s possession the Motor Vehicle 3.
(j)The Husband retain for his sole use and benefit to the exclusion of the Wife all of his right title and interest in:
(i)The Motor Vehicle 2;
(ii)The Motor Vehicle 3;
(iii)Funds standing to his credit any bank account in his sole name;
(iv)His Super Fund O entitlements; and
(v)Personal effects and household contents situated at the G Street, Suburb H Property.
(k)The usual orders in relation to: the severance of any joint tenancies; property in the possession of the parties as at the date of the orders; insurance policies; and other superannuation entitlements.
(l)The Husband be solely responsible for and indemnify the Wife in relation to any liability in his sole name or encumbering any item of property to which he is entitled pursuant to the orders.
(m)An order pursuant to s.106A of the Act in the event that either party refuses or neglects to sign any document required to give effect to the orders within 14 days of being requested to do so.
(n)The Husband pay the Wife’s costs of and incidental to the proceedings on an indemnity basis.
On 10 January 2020 the Wife filed a Financial Statement (Wife’s Financial Statement) [42] and an Affidavit (Wife’s 10 January 2020 Affidavit).[43]
[42] Wife’s Financial Statement, filed 10.1.20 (Wife’s Updated Financial Statement).
[43] Wife’s 10 January 2020 Affidavit.
On 14 January 2020 the Wife also filed an Affidavit of Ms C to which the Family Report was annexed (Ms C Affidavit).[44]
[44] Ms C’s Affidavit, dated and filed 14.1.20 (Ms C Affidavit), at [2] and Annexure “-3”.
On 21 January 2020 the Husband filed a Further Amended Response (Further Amended Response).[45] In the Further Amended Response, the Husband sought interim and final parenting and property orders.
[45] Further Amended Response, dated and filed 21.1.20 (Further Amended Response).
The interim parenting orders may relevantly be summarised as follows:[46]
[46] Further Amended Response, Attachment “B”, Interim Parenting Orders at 11-12, [1] to [18].
(a)The parents have equal shared parental responsibility for the Children;
(b)The Children live with the Mother;
(c)Commencing school Term 1 2020, the Children spend time with the Husband as follows:
(i)Week One:
(A)From the conclusion of school on Monday until 7:00 pm (or 9:00 am on a Victorian Gazetted public holiday or a pupil free day until 7:00 pm); and
(B)From the conclusion of school on Thursday until 7:00 pm (or 9:00 am on a Victorian Gazetted public holiday or a pupil free day until 7:00 pm);
(ii)Week Two:
(A)From the conclusion of school on Monday until 7:00 pm (or 9:00 am on a Victorian Gazetted public holiday or a pupil free day until 7:00 pm); and
(B)From the conclusion of school Thursday (or 9:00 am on a Victorian gazetted public holiday or pupil free day) until 7:00 pm on Sunday.
(d)Commencing Term 1 2020 during the school term breaks on a week about arrangement;
(e)During the 2020/2021 long summer school holidays:
(i)From the conclusion of school on the last day of Term 4 2020 until 10:00 am on Friday, 27 December 2020 ; and
(ii)Each alternate week thereafter until the commencement of school Term 1 2021 with changeover to occur at 10:00 am will qualify.
(f)Each party keep the other informed of their current address, mobile telephone number and email address;
(g)Either child be at liberty to call the parent they are not in the care of at all reasonable times and the other parent shall facilitate such call and provide privacy for the child to do so;
(h)Each party authorise any school attended by the Children to provide copies of all reports, photographs, newsletters, notices and the like to the other;
(i)Each party shall be at liberty to attend parent/teacher nights, school concerts, sporting events and like school functions;
(j)Each party immediately inform the other of any serious injury or illness sustained by the Children whilst they are in their respective care and further provide particulars of the treatment required or received by the Children together with the name and address of the treatment provider(s) and the location at which the child or Children are a patient;
(k)Each party authorise any medical practitioner upon whom the Children may attend to communicate with the other in respect to the Children’s medical requirements;
(l)Mutual non-denigration orders.
In the Further Amended Response, the Husband sought final parenting orders, which may be relevantly summarised as follows:[47]
[47] Further Amended Response, Attachment “A”, Final Parenting Orders, at 3-9, [1] to [24].
(a)Within 60 days both parents undergo an independent psychiatric assessment as recommended in the Family Report;
(b)Following the independent psychiatric assessment of both parents participate in and obtain an updated Family Report;
(c)The parents have equal shared parental responsibility for the Children;
(d)The Children live with the Husband as follows:
(i)In the first week of a two week cycle, from 3:30 pm or the conclusion of school Friday until 9:00 am or the commencement of school the following Friday and each alternate week thereafter;
(ii)For one half of each of the school term holidays;
(iii)For one half of the long summer school holidays;
(iv)On Christmas Day from 10:00 am to 4:00 pm;
(v)For New Year:
(A)In odd numbered years from 4:00 pm on 31 December to 12:00 midday on 1 January; and
(B)In even numbered years from 12:00 midday 1 January to 2:00 pm on 2 January;
(vi)On each child’s birthday, if the child is not otherwise in the Husband’s care, both Children from 1:00 pm to 5:00 pm if the birthday falls on a non-school day and from the conclusion of school to 7:00 pm if the birthday falls on a school day;
(vii)On the Husband’s birthday, if the Children are not otherwise in his care, both Children from 1:00 pm to 5:00 pm if the birthday falls on a non-school day and from the conclusion of school to 7:00 pm if the birthday falls on a school day;
(viii)On Father’s Day, if the Children are not otherwise in his care, from 5:00 pm on the day preceding Father’s Day to 5:00 pm on Father’s Day; and
(ix)By phone each second day between 6:30 pm and 7:00 pm.
(e)That either child be at liberty to call the parent they are not in the care of at all reasonable times, and other parent be required to facilitate such call and provide privacy for the child for such call;
(f)Information sharing orders concerning the Children’s health and education; and
(g)Orders which were included in the interim and final orders in the Amended Response and which are referred to in sub-paragraphs 37(g) to (q).
In the Further Amended Response the Husband sought interim property orders that both parties be:[48]
(a)Given access to the monies held in trust by the Wife’s Lawyers; and
(b)Permitted to withdraw at least $50,000 or such other amount as the Court considered appropriate from the monies held in trust by the Wife’s Lawyers.
[48] Further Amended Response, Attachment “B”, Interim Financial Orders, at 13, [1] to [4].

After the parties separated under one roof on 28 August 2016, the Husband continued to systematically remove significant amounts of money from accounts in his name or accounts he controlled.
Between 19 March 2017 and 2 August 2020, the Husband withdrew or transferred the sum of $227,221.74 from the Everyday Offset Acc. No. ...### in the name of the Husband. These amounts included: $71,505.29 deposited on 27 December 2017 as an early withdrawal of the Husband’s superannuation; $9,020.34 deposited from an unknown source; $95,424 deposited on 25 June 2018 as a settlement of the Husband’s worker’s compensation claim in the Magistrates’ Court; $37,307 deposited on 27 July 2018 as a further early withdrawal of the Husband’s superannuation; $11,724.21 deposited on 9 August 2019 from an unknown source; and $17,764 deposited on 7 October 2019 as a further early withdrawal of the Husband’s superannuation.[323]
[323] Wife’s Updated Outline of Case, Annexure C, at 15-18.
These withdrawals do not account for the Husband’s day-to-day expenditure. The Husband gave evidence that he paid for his daily expenses by credit card. The Husband was living in the G Street, Suburb H Property which was not subject to any mortgage repayments (although the G Street, Suburb H Mortgage has not as yet been formally discharged). The Husband’s evidence to the Medical Panel was that he usually ate basic foods such as canned or frozen foods, that his family also cooked for him and that his family mostly did his grocery shopping. The Children visited the Husband on one or two nights a fortnight. The Husband provided no discovery or explanation for the following cash withdrawals from the Everyday Offset Acc. No. ...### in the name of the Husband:
(a)On an almost daily basis between 4 August 2017 and 30 August 2017 totalling $28,000;[324] or
(b)Totalling $10,000 between 4 March 2019 and 31 March 2019.[325]
[324] Wife’s 10 January 2020 Affidavit, at [82].
[325] Wife’s 10 January 2020 Affidavit, at [84].
Between 5 February 2020 and 2 August 2020 the Husband made cash withdrawals and transfers from the Everyday Offset Acc. No. ...### in the name of the Husband totalling $7,754. The Husband made monthly transfers to an account No. ...### of either $150 or $50. The Husband did not disclose the name of the account holder of account No. ...###.[326]
[326] Wife’s 13 August 2020 Affidavit at [18]-[20] and Annexure “4”.
The Husband has not provided an adequate explanation as to what became of the $227,221.74 removed from the Everyday Offset Acc. No. ...### in the name of the Husband between 19 March 2017 and 2 August 2020.[327] The Husband has deposed that he received $89,000 after legal fees and tax for approximately 64 weeks of workers compensation and that he used most of these funds to pay these legal fees.[328] As discussed previously under the heading ‘Wife’s Legal Fees’, the Husband did not make disclosure of the source of the funds that he paid his legal fees, as specifically requested by the Wife’s Lawyers.
[327] Wife’s Updated Outline of Case, Summary of Argument – Financial Matters, at [15].
[328] Husband’s 21 January 2020 Affidavit, at [128].
Due to the Husband’s early withdrawal of $80,000 of his superannuation, the Husband incurred tax in the financial years 30 June 2016 to 30 June 2019.[329]
[329] Wife’s 3 February 2020 Affidavit, at [190].
The U Street, Suburb V Property was sold in October 2019, with the sale proceeds of $267,680.58 being held in a controlled monies account by the Wife’s Lawyers. Until the sale of the U Street, Suburb V Property the Husband had been receiving rent of $2,022.44 per month from the tenants.[330]
[330] Wife’s 10 January 2020 Affidavit, at [85].
The Husband claimed that the U Street, Suburb V Property had made a net loss since separation to 30 June 2019 in the sum of $32,202.14.[331]
[331] Husband’s 21 January 2020 Affidavit, at [96] and Annexure “-07”.
The Husband claimed that in or about late 2017, the U Street, Suburb V Property was damaged by storms with major leaks in the bathrooms. The Husband claimed that he had withdrawn $80,000 from his superannuation in October 2017 and that he had used these funds to ‘bring the property to renting standards’. The Husband estimated that he had spent between $60,000 to $70,000 on the repairs that were completed in June 2018.[332] When cross-examined the Husband said that part of the repairs had been covered by an insurance claim which he claimed he received $2,000.[333] Early in the cross-examination the Husband confirmed that the U Street, Suburb V Property was an investment property and that proper records needed to be maintained for tax purposes. The Husband had produced a letter dated 24 July 2019 to the Wife’s Lawyers which purportedly provided a complete reconciliation table of the repairs to the U Street, Suburb V Property of a total estimated amount of $60,300. The Husband also produced some receipts.[334] Counsel for the Wife put to the Husband that these receipts totalled a little over $7,200. The Husband then responded that most of the work had been done for cash. It was put to the Husband that this was an investment property which he had already conceded required records to be retained for taxation purposes. The Husband then proceeded to give patently false evidence and contradicting his evidence given minutes earlier, that the U Street, Suburb V Property was at that time no longer an investment property. The Husband shortly thereafter conceded under cross-examination that his evidence that the U Street, Suburb V Property was not then treated as an investment property was nonsense.[335]
[332] Husband’s 21 January 2020 Affidavit, at [316]-[322].
[333] Transcript (19.8.20) P194:L25-31.
[334] Husband’s 14 August 2020 Affidavit, at [117] and Annexure “11”.
[335] Transcript (19.8.20) P198:L29-P199:L25.
The Husband has not provided evidence to substantiate the alleged repairs of $60,000 to $70,000 to the U Street, Suburb V Property. The Husband has provided some Bunnings receipts, as well as receipts for replacing the heating and cooling. Some of these have been paid by EFTPOS. The Husband has also asserted that he has paid utilities such as water, power and gas, however these were paid for by the tenants. The Husband also claimed to have paid the interest repayments on the mortgage for the U Street, Suburb V Property, however the mortgage was paid using the rent received from the tenants.[336]
[336] Wife’s 3 February 2020 Affidavit, at [68].
I do not accept that the Husband spent $60,000 to $70,000 on repairs to the U Street, Suburb V Property or any amount approximating this amount of money. The Husband has produced evidence to the Court that since separation he has paid for the following repairs to the U Street, Suburb V Property:[337]
(a)YY Plumbing Tax Invoice No...., dated 20 July 2018 in the sum of $140 by credit card;
(b)ZZ Store receipt, dated 2 July 2018 in the sum of $150 by cash;
(c)AAA Pty Ltd Tax Invoice No. ..., dated 27 July 2018 in the sum of $2,100 by cash; and
(d)AAA Pty Ltd Tax Invoice No...., dated 27 July 2018 in the sum of $3,400 by cheque.
[337] Husband’s 14 August 2020 Affidavit, at [117] and Annexure “11”.
The payments referred to in the preceding paragraph total $5,790 and only $2,250 were made in cash.
I do not accept on the evidence produced by the Husband that the following payments were made by the Husband in relation to repairs to the U Street, Suburb V Property after separation of the parties:[338]
(a)BBB Pty Ltd Tax Invoice No. ..., dated 1 May 2018 in the sum of $369. There is no evidence that this invoice has been paid;
(b)YY Plumbing Tax Invoice No. ..., dated 25 October 2018, with the clients named as Mr Dellos and Ms Tansel. The property address on the Tax Invoice has been altered to specify the U Street, Suburb V Property and the payment details are indecipherable. The Husband when cross-examined said that he had written the amount of $573 on Tax Invoice as he had a ‘clearer version of the receipt […]’;[339] and
(c)Four Bunnings receipts from 7 February 2018 to 24 April 2019. These receipts are basically indecipherable, however to the extent that they are readable, 3 of the 4 receipts being for $35.08, $34.35 and $67.29 were paid by credit card. The other which was paid by cash was for $50.85.
[338] Husband’s 14 August 2020 Affidavit, at [117] and Annexure “11”.
[339] Transcript (19.8.20) P197:L27-37.
Even if these amounts were allowed, they would total only $1,129.57. Therefore the total of all the invoices purportedly relating to repairs to the U Street, Suburb V Property produced by the Husband is $6,919.57 and not the $60,000 to $70,000 claimed.
After the parties separated under one roof on 28 August 2016 all of the Wife’s income continued be paid into accounts which the Husband managed. The Wife opened an account in her own name after receiving a request from the Husband in a text message on 9 March 2017, and had her income paid into that account.[340] The Wife’s evidence was that she continued to use her income to meet family expenses, including childcare payments, payments for the nanny and the cleaner. After the Wife left the G Street, Suburb H Property on 10 February 2018, the Wife has been entirely financially responsible for the Children’s expenses, including paying for her rent and the Children’s schooling as the Husband pays minimal child support.[341]
[340] Wife’s 3 February 2020 Affidavit, at [35], [45]-[46], [188]-[189] and Annexure “-2”.
[341] Wife’s 3 February 2020 Affidavit, at [64].
Section 79(4)(b) Non-Financial Contributions – Property
During the relationship the Husband made non-financial contributions both directly and indirectly to acquisition, conservation and improvement of the property of the parties.
The Husband undertook the management and organisation of some repair work to the U Street, Suburb V Property after storm damage in late 2017 to ensure that the property was tenantable.
The Wife deposed in paragraphs 123 to 132 of the Wife’s 10 January 2020 Affidavit that the Husband failed to comply with the 31 May 2019 Orders in listing the U Street, Suburb V Property for sale.[342] The Court notes that the 31 May 2019 Orders for the sale of the U Street, Suburb V property were Consent Orders. The 31 May 2019 Orders for the sale of the U Street, Suburb V Property serve as yet another example of the Husband complying with Court Orders when it suited him.
[342] 31 May 2019 Orders, Consent Order 1.
The Wife deposed in paragraphs 133 to 146 of the Wife’s 10 January 2020 Affidavit that the Husband impeded the sale of the U Street, Suburb V Property and caused an increase in her legal fees as a result of his behaviour. The Court notes that the Husband’s behaviour included writing to the Wife’s Lawyers:[343]
(a)Threatening to lodge a complaint with the Victorian Privacy Commissioner on account of the Solicitor ‘breaching privacy laws’;
(b)Alleging that the Solicitor’s behaviour had been ‘unprofessional i.e. Using threatening, intimidating and bullying tactics’;
(c)Requiring a written apology from the Wife’s Lawyers; and
(d)Requiring that the Wife’s Lawyers reprimand and formally warn the Solicitor.
[343] Wife’s 10 January 2020 Affidavit, at [137]-[138].
The Husband has denied the Wife’s account of the events relating to the sale of the U Street, Suburb V Property referred to in the two preceding paragraphs. The Husband blames the Wife and the Wife’s Lawyers for the delay in the sale of the U Street, Suburb V Property.[344] I do not accept the Husband’s account of events and determine that the Husband was in breach of Order 1 of the Consent Orders made on 31 May 2019 and caused the delay in the sale of the U Street, Suburb V Property.
[344] Husband’s 21 January 2020 Affidavit, at [155]-[157].
Section 79(4)(c) Non-Financial Contributions – Welfare of the Family
I refer to the discussion in relation to ss.60CC(2)(b), 60CC(3)(b), 60CC(3)(c), and 60CC(3)(f) of the Act in relation to each of the Husband and the Wife.
Section 79(4)(d) the effect of any proposed order upon the earning capacity of either party to the marriage;
The Orders which I propose to make will not affect the income earning capacity of either party.
Section 79(4)(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
I refer to the discussion in relation to s.60(3)(ca) of the Act.
In the Husband’s 21 January 2020 Affidavit the Husband alleged that he was paying $400 a month Child Support.[345] In the Husband’s Financial Statement, the Husband deposed that he was paying $100 a week pursuant to a Child Support Assessment.[346] The Wife denied this claim.[347] On the current Child Support Assessment of $658 per annum to 31 October 2021, the Husband is paying $54.83 a month.[348]
[345] Husband’s 21 January 2020 Affidavit, at [126].
[346] Husband’s 21 January 2021 Financial Statement, at Part G, Item [31].
[347] Wife’s 3 February 2020 Affidavit at [63].
[348] Wife’s 13 August 2020 Affidavit, at [8] and “3”.
Taking into account the Husband’s state of health and that he has not been employed since 2013, there is little prospect that he might be liable in the future to provide significant child support for Y and X.
The matters referred to in s.75(2) so far as they are relevant
Section 75(2)(a) the age and state of health of each of the parties;
The Husband was born in 1967 and is aged 54. The Husband’s state of health is discussed in relation to ss.60CC(3)(b) and 60CC(3)(f) of the Act.
The Wife was born in 1979 and is aged 42. There is no evidence to indicate that the Wife is otherwise than in good health.
Section 75(2)(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The Wife’s Financial Statement indicated that the Wife’s weekly income from her business M Company was estimated to be $650 a week. Subsequently, the Wife was in receipt of a single parent payment and then the JobKeeper allowance as a result of the effects of the COVID-19 pandemic. At the time of the Final Hearing the Wife was in receipt of family tax benefits in the sum of $655.75 a fortnight.[349] The JobKeeper scheme came to an end on 28 March 2021. Therefore for the purposes of these Reasons for Decision, I will assume that the Wife is again in receipt of her weekly income of $650 a week from her business M Company. To this is added the family tax benefit of $327.86 (being half of the fortnightly payment of $655.75) and $13.71 Child Support (being one quarter of the monthly payment of $54.83). This totals a gross weekly income of $991.57, less tax of $125,[350] being a net weekly income of $866.57 a week and a net income of $45,061.64 per annum.
[349] Wife’s 13 August 2020 Affidavit at [7] and Annexure “2”.
[350] Wife’s Updated Financial Statement, Part G, Item 19.
The Husband’s Financial Statement indicates that the Husband is in receipt of a Disability Support Pension in the sum of $467 per week.
The Husband had two diametrically opposed positions during the Final Hearing. As discussed in relation to s.60CC(2)(b) of the Act, the Husband deposed for the purposes of the parenting proceedings, that his mental health had improved significantly since his attendance before the Medical Panel.[351] The Husband claimed that he was able to look after two young children full time on a week about basis during school term time and during half of all the school holidays.
[351] Husband’s 21 January 2020 Affidavit, at [342]-[346].
The Husband also claimed, for the purposes of the property proceeding, that he had no capacity to return to gainful employment and that he would not be able to purchase another property into the future.[352] Counsel for the Wife cross-examined the Husband on his capacity for gainful employment.[353] The Husband had made no attempt to find any form of employment since 2013. He said he hoped to return to some form of employment in the future and not remain on a disability pension. The Husband also said that he did not want to apply for employment involving manual labour because he was a ‘highly qualified person’. The Husband thought that he might undertake a refresher course or an upskilling course. It was the Husband’s evidence that if he obtained the same type of employment that he had at Employer D, he estimated that he would earn a package of more than $200,000 per annum.
[352] Husband’s 21 January 2020 Affidavit, at [361]-[366].
[353] Transcript (19.8.20) P221:4-P225:L38.
Therefore if the Husband ever does return to employment, he has the potential to earn a significantly higher income than the Wife has ever earned, on his own assessment.
The Husband acknowledged that he has a claim for common law impairment benefit for pain and suffering, which he claimed would not be significant, even if successful.[354] I place no weight upon this assertion. There is no evidence before the Court that would support this claim. I regard the Husband’s personal injury claim as a financial resource of the Husband, which the Husband has done his best not provide information to the Wife or the Court about.
[354] Husband’s 21 January 2020 Affidavit, at [368].
The Wife makes no claim upon any amount that the Husband receives for his personal injury claim and seeks final orders as outlined in the Wife’s Property Proposal.
Section 75(2)(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
The Orders which I intend to make will provide for the Children to live with the Wife and spend time with the Husband three nights in a fortnight, during term time. The Children will otherwise continue to spend three nights in a fortnight with the Husband during the term holidays and the long summer holidays. The Children will therefore live primarily with the Wife.
Section 75(2)(d)     commitments of each of the parties that are necessary to enable the party to support:
(i)           himself or herself; and
(ii)a child or another person that the party has a duty to     maintain;
The commitments of each of the parties that are necessary to support himself/herself and those that they have a duty to maintain are set out in their respective financial statements. The Wife also relied on paragraphs 7 to 12 of the Wife’s 13 August 2020 Affidavit. The Wife was not challenged in relation to her Financial Statement or her income. The Husband was extensively cross-examined in relation to his financial circumstances.
Section 75(2)(e) the responsibilities of either party to support any other person;
Each party has a responsibility to contribute towards the support of the Children. The Wife is responsible for the expenses of the Children whilst they are in her care.
Apart from the Children there was no evidence that either party had responsibilities to support any other person.
Section 75(2)(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)       any law of the Commonwealth, of a State or Territory   or of another country; or
(ii)       any superannuation fund or scheme, whether the fund   or scheme was established, or operates, within or   outside Australia;
and the rate of any such pension, allowance or benefit being paid to   either party;
I refer to the discussion in relation to s.75(2)(b) of the Act. In 2016 the Husband had some $256,000 in superannuation in his Super Fund O fund. The Husband deposed to withdrawing from his superannuation $246,000 between October 2016 and August 2019.[355] By 31 December 2019 the balance had been drawn down to $10,714.46.[356] When cross-examined in relation to the withdrawal of this significant amount of money, the Husband claimed that it was to cover family expenses and also claimed to have provided the details of these withdrawals to the Wife with all of his bank transactions.[357] In response, it was the Wife’s evidence that whilst the parties were living separated under one roof, her income was applied to pay family expenses. Further, the Wife deposed that some of the bank statements provided by the Husband had been redacted, thereby obscuring various bank transactions made by the Husband.[358]
[355] Husband’s 21 January 2020 Affidavit, at [327].
[356] Wife’s Court Book, at 1770-1778.
[357] Transcript (19.8.20) P200:L30-P201:L31.
[358] Wife’s 3 February 2020 Affidavit, at [189]-[190].

I do not accept that the Husband has properly explained at all in these proceedings how he has disposed of the total sum of $246,000 that he withdrew from Super Fund O between October 2016 and August 2019.
Section 75(2)(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
Due to the Husband’s depletion of the assets, the asset pool is a modest one. The orders that I intend to make will result in the Wife and the Husband living in reduced circumstances.
Section 75(2)(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
The Husband’s Property Proposal included an order that the Wife pay the Husband spousal maintenance into the future as determined by the Court. In the Husband’s 21 January 2020 Affidavit, the Husband claimed that the basis of his spousal maintenance claim into the future was his claimed impecuniosity and that the Wife will ‘eventually earn a good income’.[359]
[359] Husband’s 21 January 2020 Affidavit, at [367]-[370].
At the Final Hearing, the Husband made no submission in relation to his spousal maintenance application. Counsel for the Wife did not address this issue at all during the Final Hearing.
I do not propose to consider making any such order as sought by the Husband for the following reasons. Insofar as the Husband may be seeking ongoing periodic maintenance, it is evident that the Wife has no financial capacity to make any such payments. Insofar as the Husband may be seeking a lump sum order for spousal maintenance, I would not entertain such an application given the Husband’s systematic dissipation of the asset pool and his personal injury claim which he has not disclosed properly to the Wife or to the Court.
Therefore for the purposes of considering s.75(2)(h) of the Act, this is not a relevant consideration.
Section 75(2)(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
This is not relevant consideration.
Section 75(2)(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
I refer to the discussion in relation to s.75(2)(h). This is not a relevant consideration.
Section 75(2)(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
The Wife’s earning capacity will be impeded for the foreseeable future by reason of the orders that I intend to make, as the Wife will have the primary care of the Children. This is likely to limit the Wife’s earning capacity for the foreseeable future and also possibly increase the Wife’s costs for support services such as child care, household cleaning and so forth.
Section 75(2)(l) the need to protect a party who wishes to continue that party’s role as a parent;
Both the Husband and the Wife will be able to continue their roles as parents.
Section 75(2)(m) if either party is cohabitating with another person - the financial circumstances relating to the cohabitation;
This is not a relevant consideration.
Section 75(2)(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party;
I am satisfied that the orders that I intend to make under s.79 of the Act enable both parties to maintain themselves to the extent reasonably possible with the limited assets available in the asset pool.
Section 75(2)(naa)      the terms of any order or declaration to be made, or proposed to be made, under Pt.VIIIAB in relation to:
(i)       a party to the marriage; or
(ii)      a person who is a party to a de facto relationship with a party to the marriage; or
(iii)     the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or either of them; or
(iii)      vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii);
This is not a relevant consideration.
Section 75(2)(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
This is discussed in relation to s.79(4)(g) of the Act.
Section 75(2)(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
The Husband seeks to retain the G Street, Suburb H Property. There are three issues that I raise in relation to the G Street, Suburb H Property. The first is that the Husband has had the benefit of living in the G Street, Suburb H Property without paying any rent or making any mortgage payments since the Wife left with the Children on 10 February 2018. The Wife however has had to pay rent whilst receiving virtually no Child Support from the Husband since 10 February 2018. At this time the Wife has been earning a modest income and supporting the Children. During this period the Husband has been withdrawing significant sums of money from his superannuation, as discussed in relation to s.75(2)(f) and systematically withdrawing significant amounts of money from accounts in his name or from accounts he controlled, as discussed in relation to s.79(4)(a).
The second issue is that I find that the Husband could have arranged for the Wife and the Children to live in the U Street, Suburb V Property or alternatively the G Street, Suburb H Property, so that the Wife would not have had to pay rent and could have defrayed some of her expenses. Alternatively the Husband could himself have moved into the U Street, Suburb V Property. Instead, I find that the Husband deliberately chose to place tenants in U Street, Suburb V Property to cause financial distress to the Wife. This has consequently placed financial distress upon the Children whilst they are in the care of the Wife, due to the Wife’s strained financial circumstances.
The Third issue is that during these proceedings, the Wife’s Lawyers sought that the Husband provide evidence of his financial capacity to ‘pay out’ the Wife her share of the G Street, Suburb H Property.[360] No such evidence was forthcoming. Instead the Husband chose to claim impecuniosity and continue to make claims, which I have found to be without any evidentiary basis, concerning the Wife’s early inheritance of US$200,000.[361]
[360] Wife’s Application in a Case filed 17.7.20, at [7].
[361] Husband’s 14 August 2020 Affidavit, at [198]-[200].
In final submissions I asked the Husband whether he had any submissions in relation to the sale of the G Street, Suburb H Property. The Husband responded as follows: ‘[y]our Honour, I would like to keep the G Street, Suburb H Property and I will find – if it is to be the case, I will find that money. So my submission is that I wish to keep the G Street, Suburb H Property.’[362]
[362] Transcript (21.8.20) P370:L43-45.
The Husband gave no indication to the Court as to where this money was to be sourced from, or what amount of funds he could obtain. In these circumstances the Court places no weight upon the Husband’s assertion that he could find money to ‘pay out’ the Wife for her share of the G Street, Suburb H Property so that he may retain the G Street, Suburb H Property. The Husband has had ample opportunity to place such evidence before the Court and has failed to do so.
The next issue that I raise is the Husband’s unilateral disposal of the Motor Vehicle 2 without informing the Wife prior to the sale. It will be recalled that at the commencement of these proceedings the Wife sought interim orders in the Initiating Application to have the use of this vehicle, as it was a newer and larger vehicle. The Wife at that time was travelling large distances regularly for her work and was also transporting the Children, whilst the Husband was not employed. The Husband insisted on keeping the Motor Vehicle 2. I refer to the discussion under the headings ‘Motor Vehicle 2’ and ‘Motor Vehicle 3’.
The Husband’s behaviour in failing to give to the Wife the more reliable car, the Motor Vehicle 2, to transport the Children and also for the Wife’s regular long distance driving for her employment, was reprehensible. More egregious was the Husband’s failure to comply with Order 3 of the 25 June 2018 Consent Orders and pay for the repairs to the Motor Vehicle 3. The Husband should have offered the Motor Vehicle 2 to the Wife so that she did not have to obtain a fully financed loan from Motor Vehicle 1 Finance to purchase the Motor Vehicle 1, and thereby incur further expenses. The Wife was not even given the opportunity to purchase the Motor Vehicle 2 from the Husband for $11,000. I do not accept the Husband’s explanation that he was forced to sell the Motor Vehicle 2 due to his ‘financial situation’,[363] given the amount of money that the Husband he has dissipated from the asset pool.
Section 75(2)(p) the terms of any financial agreement that is binding on the parties to the marriage;
[363] Husband’s 14 August 2020 Affidavit, at [171].
This is not a relevant consideration.
Section 75(2)(q) the terms of any Pt.VIIIAB financial agreement that is binding on a party to the marriage;
This is not a relevant consideration.
Conclusion as to Contribution
In relation to initial contributions, I determine the initial contributions of the Husband and the Wife to the asset pool have been equal.
Having considered the matters referred to in this Judgment and the submissions of Counsel for the Wife, I determine that the contributions during the relationship have also been equal. I therefore determine the Wife’s contributions should be assessed as 50% and the Husband’s at 50%.
Conclusion as to Future Needs
I have taken into consideration the above matters, including but not limited to the following:
(a)The Children will be living with the Wife. The Wife will continue to be the primary carer of the Children;
(b)The relatively young age of the Children;
(c)The Wife earns a modest income of approximately $45,000;
(d)The Husband is on a disability pension;
(e)It is likely that in the future the Wife will receive only nominal Child Support from the Husband;
(f)If the Husband succeeds with his common law claim, this will be a financial resource for the Husband. The Husband deliberately withheld information from the Wife and also the Court in relation to his second Medical Panel interview in June 2020;
(g)The Husband has made no attempt whatsoever to find any employment since 2013; and
(h)The Husband is hopeful of re-entering the workforce and earning about $200,000 after undertaking some retraining.
Because the pool is modest, I must look at the reality of the parties’ financial positions rather than simply percentages. The Wife has no assets other than the Country L Property and the Motor Vehicle 1 (which is subject to finance) and her share in the proceeds of sale of the G Street, Suburb H Property. The Wife has the ability to earn a modest income, however she will bear the financial burden of maintaining the Children. The Wife also has significant debts arising as a result of this litigation.
After taking into account these competing considerations I am satisfied that there should be an adjustment in favour of the Wife of 10% for s.75(2) factors.
Adjustment of Interests
As a result of the findings made to contributions and future needs, I am satisfied it is just and equitable to make Orders adjusting property between the parties, so that the Wife is entitled to 60% of the total asset pool and the Husband is entitled to 40% of the total asset pool.
The Orders which I intend to make will result in the Wife receiving 59% of the non-superannuation asset pool and the Husband receiving 41% of the non-superannuation asset pool.
I am satisfied that the Orders I am going to make are just and equitable after having particular regard to the matters discussed in relation to s.75(2)(o) of the Act.
Conclusion
I determine that it is appropriate to order the sale of the G Street, Suburb H Property. As discussed in relation to s.75(2)(o) of the Act, the Husband has not provided any evidence to the Court of his financial capacity to be able to pay to the Wife any sum of money to ‘pay out’ the Wife for her share of the G Street, Suburb H Property. Therefore I intend to make orders for the sale of the G Street, Suburb H Property forthwith.
I also determine that the Wife shall have control of the sale of the G Street, Suburb H Property. I refer to the discussion in relation to s.79(4)(b) of the Act. I have already determined that the Husband was in breach of Order 1 of the Consent Orders made on 31 May 2019 and caused delay in the sale of the U Street, Suburb V Property. The Wife is not to be put to any further unnecessary legal expense or delay by reason of the Husband again failing to comply with orders of the Court. Therefore I intend to make orders for the Wife to have control of the sale of the G Street, Suburb H Property.
The Wife’s Property Proposal seeks an order that in the event that the sale price of the G Street, Suburb H Property exceeds $620,000, that 50% of the sale proceeds exceeding $620,000 be paid to the Wife. Both the Wife’s Balance Sheet and the Husband’s Balance Sheet subsequently agreed to value the G Street, Suburb H Property to be $615,000. I intend to make an order in accordance with the Wife’s Property Proposal, based upon the agreed valuation of $615,000 of the G Street, Suburb H Property and at the rate of 50% as sought in the Wife’s Property Proposal.
I have determined that the division of the assets will be achieved by the Wife:
(a)Retaining the proceeds of the interim property distribution pursuant to the 21 August 2020 Consent Orders in the sum of $267,680.58;[364]
(b)Receiving the sum of $261,382.34 from the proceeds of the sale of the G Street, Suburb H Property;
(c)Receiving 50% of the proceeds of sale of the G Street, Suburb H Property in the event that the property achieves a sale price in excess of $615,000;
(d)Retaining the Country L Property;
(e)Retaining the Motor Vehicle 1, her savings in CBA Account No. ...31 and the notional asset of her legal fees of $82,193.89;
(f)The Wife will be responsible for her liability to Motor Vehicle 1 Finance for the Motor Vehicle 1 and her loans to Mr P;
(g)The Wife will also retain her superannuation with Super Fund N.
[364] 21 August 2020 Orders, Orders 1 and 2.
I have determined that the division of the assets will be achieved by the Husband:
(a)Receiving the net balance of the proceeds of sale of the G Street, Suburb H Property and 50% of the proceeds of sale of the G Street, Suburb H Property in the event that the G Street, Suburb H Property achieves a sale price in excess of $615,000;
(b)Retaining the Motor Vehicle 3, his savings in CBA Account No. ##81 and the notional assets of his legal fees of $54,278.49 and the proceeds of the sale of the Motor Vehicle 2;
(c)The Husband will also retain his superannuation with Super Fund O.
I am satisfied that the division of property is just and equitable.
I intend to make Orders accordingly.
Costs
As discussed in relation to s.75(2)(o), Counsel for the Wife has sought that applications for costs, including reserved costs, be made after judgment is delivered.
The proceeding has been listed for Mention pursuant to r.21.02(1)(c) of the Federal Circuit Court Rules 2001 (Cth) accordingly.

I certify that the preceding four hundred and sixty-six (466) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton QC.
Associate:
Dated: 16 April 2021

[2021] FCCA 704

16 April 2021

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Remedies

Breach

Injunction

Stay of Proceedings

Procedural Fairness

File number(s):	MLC 6067 of 2018
Judgment of:	HER HONOUR JUDGE C.E. KIRTON QC
Date of judgment:	16 April 2021
Catchwords:	FAMILY LAW – Children – parental responsibility – where the Father seeks equal shared parental responsibility and equal time – where the Mother seeks sole parental responsibility and for the children to live with the Mother and spend time with the Father – children have warm and loving relationship with both parents – where the presumption of equal shared parental responsibility does not apply – post-separation parental conflict – high level of acrimony and antipathy between the parties – where the parties are distrustful of each other and assiduously avoid one another – where the Father has significant mental health issues – psychiatric injury suffered in the course of employment – Father’s mental impairment a salient issue of risk to the children – presumption rebutted due to entrenched post-separation conflict and Father’s impaired parenting capacity – inappropriate for Father to have substantial and significant time due to risk of neglect – consideration of children’s best interests – orders made for Mother to have sole parental responsibility. FAMILY LAW – Property settlement – marriage of 9 years – where Husband self-represented at the Final Hearing – where Husband failed to make full and frank disclosure –matrimonial asset pool heavily disputed – reconstruction of asset pool at the time of trial – addbacks – whether Court should exercise discretion to include parties’ legal fees as notional addback – Court’s discretion exercised in accordance with principles in Beklar & Beklar [2013] FamCA 327 – systematic depletion of asset pool by Husband – negative contributions/waste – significant withdrawals of moneys from accounts in Husband’s name or accounts he controlled – unilateral disposal of assets by the Husband – wilful nondisclosure/failure to adduce evidence of where funds applied or how funds disposed of – assessment of contributions made at commencement of relationship and during the marriage – contributions during the marriage assessed as equal – further adjustment in favour of the Wife on account of s.75(2) factors – consideration of s.75(2)(o) – Wife placed under undue financial distress as a result of Husband’s conduct during proceedings – Wife seeks personal costs order against the Husband or alternatively for the Court to exercise its discretion pursuant to s.75(2)(o) – orders made for sale of former matrimonial home and for Wife to have control of the sale – distribution of sale proceeds stayed pending Costs application on behalf of the Wife and determination of same.
Legislation:	Evidence Act 1995 (Cth) sub-ss.69ZT(1),(2) Family Law Act 1975 (Cth) ss 60B(1),(2), 60CA, 60CC, 61DA, sub-ss 61DA(4), 64(B)(1), ss 65D,75(2), sub-s 75(2)(o), ss 79, 81 Federal Circuit Court Rules 2001 (Cth), rr 1.06, sub-rr 15A.13(2)(b), 16A.13(2)(b) 21.02(1)(c), r 21.15
Cases cited:	AMS v AIF (1999) 199 CLR 160 Beklar & Beklar [2013] FamCA 327 Bell & Nahos [2016] FamCAFC 244 Bevan v Bevan [2013] FamCAFC 116; (2013) FLC93-545 NHC & RCH (2004) FLC 93-204 Goode v Goode (2006) 36 Fam LR 422 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 In the Marriage of Hickey [2003] FamCA 395 Jones v Dunkel (1959) 101 CLR 298; 32 ALJR 395; [1959] HCA 8 Tansel & Dellos [2020] FCCA 236 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 Moose & Moose (2008) FLC 93-375 Sheen & Sheen [2016] FCCA 3063 Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 U v U (2002) 211 CLR 238 Vass & Vass [2015] FamCAFC 51 Waterford & Waterford [2013] FamCA 33 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Number of paragraphs:	466
Date of last submission/s:	21 August 2020
Date of hearing:	17, 18, 19, 20 & 21 August 2020
Place:	Melbourne
Counsel for the Applicant:	Mr Glezakos
Solicitor for the Applicant:	Kenna Teasdale Lawyers
For the Respondent:	The Respondent appeared in person

ORDER MADE BY:	HER HONOUR JUDGE C.E. KIRTON QC
DATE OF ORDER:	16 APRIL 2021