Thatcher & Thatcher
[2024] FedCFamC1F 324
•17 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Thatcher & Thatcher [2024] FedCFamC1F 324
File number(s): CAC 1530 of 2021 Judgment of: GILL J Date of judgment: 17 May 2024 Catchwords: FAMILY LAW – PARENTING – Assessment of risk – Assessment of credibility of the parties – Sexual abuse risk – Where the mother asserts that the father has sexually abused the child – Where such allegations are based primarily on disclosures made by the child to the mother and other people – Disclosures made to the family report writer – Where the father denies such allegations – Consideration of expert evidence – Finding of unacceptable risk – Finding of unacceptable risk where there is no positive finding that the father did sexually abuse the child – Child to live with the mother – Sole parental responsibility – Supervised time with the father on four occasions each year
FAMILY LAW – PROPERTY – Where there is an equitable claim by one of the fathers' parents – Where this claim is based on contributions towards the purchase of real property and the building of a granny flat – Equitable claim found – Assessment of the credibility of the parties – Where both parties seek orders that they receive the same real property – Twelve year relationship – Assessment of contributions – s 75(s) adjustment – Superannuation split
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA, 75, 79 Cases cited: Bevan & Bevan (1995) FLC 92-600
Dickons & Dickons (2012) 50 Fam LR 244
Eastley & Eastley (2022) FLC 94-094
Fitzwater v Fitzwater (2019) 60 Fam LR 212
Fox v Percy (2003) 214 CLR 118
Isles & Nelissen (2022) FLC 94-092
Jollie & Dysart [2014] FamCAFC 149
M v M (1988) 166 CLR 69
Marsden & Winch (No 3) [2007] FamCA 1364
Phillips & Hansford (No 2) (2019) 60 Fam LR 160
Stanford v Stanford (2012) 247 CLR 108
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Welch & Abney (2016) FLC 93-756
Division: Division 1 First Instance Number of paragraphs: 389 Date of hearing: 9-12 April & 15-18 April 2024 Place: Canberra Counsel for the Applicant: Ms Haughton Solicitor for the Applicant: JS Family Lawyers Counsel for the First Respondent: Mr Alexander Solicitor for the First Respondent: Parker Coles Curtis Counsel for the Second Respondent: Dr Leslie Solicitor for the Second Respondent: Bevan & Co Counsel for the Independent Children's Lawyer: Mr Stagg Solicitor for the Independent Children's Lawyer: Infinity Legal ORDERS
CAC 1530 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR THATCHER
Applicant
AND: MS THATCHER
First Respondent
MR YANAI
Second Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
17 MAY 2024
THE COURT ORDERS THAT:
Parenting
1.All previous orders relating to the child, X, born 2018, are discharged.
2.Ms Thatcher (the mother) shall have sole parental responsibility for X.
3.X shall live with the mother.
4.X shall spend supervised identification time with Mr Thatcher (the father) on four (4) occasions each calendar year for a period of two hours at B Contact Service, on such dates and time to be advised by B Contact Service.
5.The father is permitted to send X birthday presents and cards, Christmas presents and cards, and Easter presents and card by post as those special occasions occur, and the father is to mail any correspondence or gifts to the mother’s residential address, or any other postal address nominated by the mother in writing.
6.The parties shall keep the other informed as to their current mobile contact number and email address and shall advise the other in writing within 48 hours of any change.
7.The father is restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the mother to or in front of X.
(b)Attending X’s daycare, preschool, primary school or high school.
(c)Attending at any extra-curricular sports or activities in which X participates, including but not limited to, trainings, competitions, rehearsals and performances.
(d)Attending the mother’s current place of residence or any future residence of the mother and X.
8.In the event the father refuses, and/or cancels and/or fails to attend two (2) consecutive occasions to spend time with X pursuant to Order 4 above the identification time in Order 4 shall cease.
9.For the purposes of s 11 of the Australian Passports Act 2005 (Cth):
(a)X is permitted to travel internationally;
(b)The father is restrained from making an application for an Australian passport or travel-related documents for X; and
(c)X is permitted to have an Australian passport or travel-related documents provided that the application for that document is made by the mother, who may sign any declaration on the application in the form approved by the relevant Minister.
Property
10.That contemporaneously and within 42 days from the date of these Orders (“the Settlement date”) the father and mother, at the sole expense of the mother, shall do all acts and things and sign all documents as may be necessary to repay to C Bank any amount outstanding on the Settlement Date, including any arrears, for the loan held in the parties’ joint names secured by a Registered Mortgage in favour of C Bank, being mortgage dealing number …84 (“the Suburb D mortgage”), and cause the Suburb D mortgage to be to either be wholly discharged or refinanced into the mother’s sole name.
11.That up until the date of the parties’ compliance with Order 10, or the sale of E Street, Suburb D (“the Suburb D Property”) in accordance with the Suburb D Property default sale orders:
(a)The mother shall have the sole right to use and occupy the Suburb D Property;
(b)The mother shall be solely responsible for the loan repayments (if any), rates payments and house and contents insurance for the Suburb D Property; and
(c)Neither party shall mortgage or further encumber or otherwise offer the Suburb D Property for security other than in compliance with Order 10, or Orders 12-16.
12.Within 28 days of the settlement of the sale of F Street, Suburb G (“the Suburb G Property”) the parties shall cause payments to be made to effect a division of the non‑superannuation property such that the total payment to the father equals 0.325 ($717,650 plus Suburb G net proceeds) minus $3,250.
13.The Suburb G net proceeds is calculated by subtracting from the Suburb G sale price the following payments:
(a)To discharge the mortgage;
(b)Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;
(c)Payment of the legal costs and outlays relating to the sale;
(d)Payment to the second respondent in the sum $161,000.
14.To effect this payment the father shall first receive such monies from the Suburb G net proceeds such as to equal the total payment.
15.In the event that the Suburb G net proceeds are not sufficient to equal this amount then the mother shall pay the balance to the father in order to make up the total payment.
16.In the event that the Suburb G net proceeds exceed the total payment to be made to the father then the balance of the Suburb G net proceeds shall be paid to the mother.
17.In the event that the mother does not make the payment in Order 15 then the default orders for the sale of the Suburb G Property, set out at Orders 22-28, shall apply.
The Suburb G Property
18.That within 60 days from the date of these Orders the father shall do all acts to vacate the Suburb G Property and the following shall apply:
(a)The father will provide to the mother all keys including garage keys for the property;
(b)The father will leave the Suburb G Property in a neat and tidy condition; and
(c)The father will not cause any wilful damage to the Suburb G Property.
19.That within 60 days from the date of the Orders, the mother and the father shall do all acts and things and sign all necessary documents to effect the sale of the Suburb G Property and for that purpose the following shall apply:
(a)The Suburb G Property shall be listed for sale by private treaty or by auction (if recommended by the agent) with such real estate agent as is agreed between the parties and failing agreement, with the father to propose three agents with the mother to select one;
(b)The list price or reserve price of the Suburb G Property shall be such amount as is agreed between the parties and failing agreement as nominated by the real estate agent;
(c)If the property is sold by auction, that the parties attend at the auction and negotiate with the highest bidder in the event of the reserve price not being reached;
(d)The sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 95 per cent of the list price / reserve price shall be accepted by the parties as the sale price;
(e)The parties are to co-operate in every way with the real estate agent in relation to the marketing of the Suburb G Property for sale including making the key readily available, always allowing inspection of the property reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer;
(f)That upon agreement being reached for sale of the Suburb G Property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor;
(g)The proceeds of sale of the Suburb G Property shall be paid in the following manner and priority:
(i)To discharge the mortgage;
(ii)Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;
(iii)Payment of the legal costs and outlays relating to the sale;
(iv)Payment to the second respondent in the sum $161,000; and
(v)To pay the amount set out in Orders 12-16.
20.If the Suburb G Property is not sold by private treaty on or before four months from the date of the orders, or within 14 days after the date of the first auction by further negotiation, then the mother and the father shall cause a (further) auction of the property to be held within 3 months and for that purpose the provisions of Order 19 shall apply.
21.From the time at which the father vacates the Suburb G Property and pending the sale of the Suburb G Property the parties shall equally share liability for all outgoings for the Suburb G Property, including but not limited to rates, utilities, taxes, insurances and maintenance costs.
Default Orders for the sale of the Suburb D Property
22.In the event that the mother does not comply with Orders 12-15 then:
(a)Within 42 days the mother shall do all acts and things and sign all documents necessary to effect the sale of the Suburb D Property in the manner set out below;
(b)The mother shall pay to the father, in addition to the balance of the total payment, interest on the payment or the amount outstanding from time to time at the rate prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, to be calculated from the Settlement Date until the date of payment;
(c)The Suburb D Property shall be listed for sale by private treaty or by auction (if recommended by the agent) with such real estate agent as is agreed between the parties and failing agreement, with the father to propose three agents with the mother to select one;
(d)The list price or reserve price of the Suburb D Property shall be such amount as is agreed between the parties and failing agreement as nominated by the real estate agent;
(e)If the property is sold by auction, that the parties attend at the auction and negotiate with the highest bidder in the event of the reserve price not being reached;
(f)The sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 95 per cent of the list price / reserve price shall be accepted by the parties as the sale price;
(g)The parties are to co-operate in every way with the real estate agent in relation to the marketing of the Suburb D Property for sale including making the key readily available, always allowing inspection of the property reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer;
(h)That upon agreement being reached for sale of the Suburb D Property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor;
(i)The proceeds of sale of the Suburb D Property shall be paid in the following manner and priority:
(i)To discharge mortgage;
(ii)Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale; and
(iii)Payment of the legal costs and outlays relating to the sale.
23.Within 28 days of the settlement of the sale of the Suburb D Property the parties shall cause payments to be made to effect a division of the non-superannuation property such that the total payment to the father equals 0.325 ($717,650 plus Suburb G net proceeds plus Suburb D net proceeds) minus $3,250.
24.The Suburb D net proceeds are the residue after the payments are made in accordance with order 22(g) above.
25.To effect this payment the father shall receive such monies from the Suburb D net proceeds such as to equal the total payment.
26.The mother shall receive the balance of the Suburb D net proceeds.
27.If the Suburb D Property is not sold by private treaty on or before four months from the date of the Orders, or within 14 days after the date of the first auction by further negotiation, then the mother and the father shall cause a (further) auction of the property to be held within 3 months and for that purpose the provisions of Order 22 shall apply.
28.Pending the sale of the Suburb D Property the mother shall have the right of occupation and have liability for all outgoings for the Suburb D Property, including but not limited to rates, utilities, taxes, insurances and maintenance costs.
Joint Accounts
29.That within 21 days of the date of these Orders, or such further date as mutually agreed between the father and mother in writing, the father and mother do all acts and things and sign all documents necessary to cause any and all bank accounts in their joint names to be closed and any credit balance to be paid to the father, including but not limited to the C Bank account ended #...82 and the ANZ account ended #...97.
Motor Vehicle Transfers
30.That the mother shall, within 14 days of these orders do all acts and things and sign all documents necessary to:
(a)transfer her right title and interest in Motor Vehicle 1 to the second respondent; and
(b)transfer the registration for Motor Vehicle 1 into the sole name of the second respondent.
Superannuation Split
31.That this Order binds the Trustee of Superannuation Fund 1.
32.That in accordance with paragraph 90XT(1)(a) of the Family Law Act 1975 (Cth):
(a)Whenever a splittable payment within the meaning of s 90XE of the Family Law Act 1975 becomes payable to or on behalf of Ms Thatcher from her interest in Superannuation Fund 1, Mr Thatcher is entitled to be paid by the Trustee of Superannuation Fund 1, the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 using a base amount of $51,000 and there is a corresponding reduction in the entitlement that Ms Thatcher would have had but for these Orders.
33.That the Trustee of Superannuation Fund 1 shall do all acts and things necessary including signing all documents as may be necessary to:
(a)Calculate in accordance with the requirement of the Family Law Act 1975 and the Family Law (Superannuation) Regulation 2001 the entitlement created for Mr Thatcher pursuant to these Orders; and
(b)Pay the entitlement whenever the Trustee of Superannuation Fund 1 makes the splittable payment out of Ms Thatcher’s superannuation interest in Superannuation Fund 1.
34.That Orders 33(b) shall have effect from the operative time and the operative time is 4 (four) days after service of these Orders upon the Trustee of Superannuation Fund 1.
Declarations, Releases, and Indemnities
35.That except as otherwise provided in these Orders, the mother be as against the father, the sole legal and beneficial owner of:
(a)Any and all funds held in any and all bank accounts in her sole name including but not limited to the funds held in the ANZ account ended #...58;
(b)Her interest in any superannuation fund in her name, including her interest in Superannuation Fund 1 and Superannuation Fund 2;
(c)Her household contents; and
(d)All other personal items in her name, or where there is no legal title, her possession or control.
36.The mother will pay and otherwise be solely liable for any and all liabilities held in her sole name and will indemnify the father and keep him indemnified with respect to same, including but not limited to:
(a)The Visa credit card account ended #...05; and
(b)The loans from Ms H and Mr J.
37.That, except as otherwise provided in these Orders, the father be as against the mother, the sole legal and beneficial owner of:
(a)Any and all funds held in bank accounts in his sole name including the funds held in the:
(i)Commonwealth Bank account ended #...16.
(ii)Commonwealth Bank account ended #...35.
(b)Motor Vehicle 2 registered in his name;
(c)His interest in Superannuation Fund 1, Superannuation Fund 3 and Superannuation Fund 4;
(d)His household contents; and
(e)All other personal items in his name, or where there is no legal title, in his possession or control.
38.The father will otherwise be solely responsible for any and all liabilities held in his sole name and will indemnify the mother and keep her indemnified with respect to same, including but not limited to:
(a)CBA Mastercard & StepPay account/s;
(b)K Finance Credit Card account;
(c)The CBA Personal Loan account ended #...40;
(d)The Citi Personal Loan account ended #...76; and
(e)His HELP debt.
39.Each of the father, the mother and the second respondent releases each other from all debts that may be owing from one to the other.
Section 106A
40.That if either party refuses, fails or neglects to execute any document necessary to put these Orders into effect 14 days after being requested to do so, and any such refusal, failure or neglect is proved by Affidavits filed and served by or on behalf of the party alleging this, the Registrar of the Federal Circuit and Family Court at Canberra be and is hereby appointed pursuant to s 106A of the Family Law Act 1975 to execute such document in the name of such party.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
These proceedings flow from the end of the marriage of the applicant father Mr Thatcher and the respondent mother Ms Thatcher (the parties). Their relationship commenced in about 2009, shortly before they married in 2009. The relationship ended in February 2021. The second respondent is the father’s father, Mr Yanai, who has joined the proceedings in pursuit of relief in equity and in debt against the father and the mother.
The proceedings involve a dispute as to the parenting arrangements for the child of the marriage, X, born 2018 (although there was no dispute that X should live primarily with the mother), a dispute as to whether the second respondent is entitled to equitable compensation from the parties, and a dispute as to the appropriate adjustment of the property interests of the parties.
The factual disputes between the parties were wide ranging, spanning the entirety of their relationship and post relationship dealings. However, during the trial they focussed on three key issues.
The first is formed by the interrelated issues of whether the father presents an unacceptable risk of sexual harm to X, the degree to which the father’s parenting capacity and nature of his relationship with X benefits X, and whether the mother is undermining of his relationship with X to her detriment.
The conclusion reached in this judgment that the father does present an unacceptable risk of sexual harm to X is determinative of the parenting dispute between the parties, rendering a detailed traversal of the descriptions of what else occurred during and after the relationship (insofar as it is relevant to parenting) largely unnecessary.
The second key factual contest is as to the second respondent’s claim, being a claim reliant upon representations made to him by the parties as to the provision of a home, on his providing certain financial support to the parties. This dispute encompassed the degree to which the second respondent provided financial support reliant upon such representations.
The conclusion reached in this judgment is that the second respondent does have a claim in equity that requires compensation, but not in the quantum sought by the second respondent.
The third contest is in relation to the nature and manner of contributions made by or on behalf of the parties from the commencement of their relationship, in particular to the acquisition, preservation and improvement of their property, and then to the care of X.
GENERAL CONTEXT
The father was born in Country L, moving to Australia with his parents in 2008. He became an Australian citizen in or about 2014.
The mother was born in Country M, moving to Australia in 1983. She became an Australian citizen later that year.
The parties met in 2009, marrying later that year. X was born in 2018.
The parties separated in about February 2021.
From 21 February 2021 until mid-2021 (when the mother obtained an IFVO) the father was living in a granny flat at the home in which the mother and X remained and would spend time with X from 5.00 am until X went to daycare, on Mondays and Tuesdays. The father would attend some Wednesday mornings from 8.00 am to 9.00 am.
The father commenced proceedings in July 2021.
From 30 July 2021 the father spent time with X each Thursday from 4.00 pm to 7.00 pm and each Sunday from 9.00 am to 5.00 pm.
From 13 April 2022 the time the father spent with X was gradually increased to three overnight periods a fortnight.
The proceedings were the subject of a final hearing in Division 2 of the Federal Circuit and Family Court of Australia in April 2023 before Judge W Neville. However, after the hearing but prior to delivery of judgment the case was reopened in relation to alleged incidents that pointed to a potential sex abuse risk presented by the father.
The mother withheld X from seeing the father from 27 June 2023 in light of the disclosures X made to her. Orders were made on 3 August 2023 which suspended the time X spent with her father.
Judge W Neville appointed a single expert psychologist, Mr N, to prepare a report directed to those issues.
On 11 August 2023 Judge W Neville made orders that X spend time with the father twice per week for no more than three hours, supervised by the second respondent, and facetime on three occasions per week.
From 31 August 2023 X spent time with the father, supervised by the second respondent, for three hours each Tuesday, three hours on one Sunday per fortnight and three hours on one Saturday per fortnight and facetime with X each Monday, Thursday and Sunday between 4.30 pm and 5.00 pm.
In accordance with further orders of Judge W Neville dated On 20 October 2023, Judge W Neville made orders for the father and X to have Facetime, which the father has continued to do, but ceased face to face visits.
The proceedings were subsequently transferred to Division 1 of the Federal Circuit and Family Court of Australia, following which the second respondent joined the proceedings, making claims in debt and equity against the parties.
The case again came on for trial in Division 1 on 9 April 2024.
NATURE OF THE ORDERS SOUGHT
Parenting
As noted above, by the end of the proceedings the common position of the parties was that X would live with the mother.
The mother sought sole parental responsibility and that X’s time with the father be limited to four professionally supervised visits per year, along with the father being permitted to send presents and cards to X.
The Independent Children’s Lawyer (ICL) sought orders for equally shared parental responsibility and gradually increasing time for X with the father, commencing with weekly periods with the second respondent in substantial attendance, then without the second respondent, gradually increasing until in term 3 2025 in a 9-5 split. Orders were also sought for electronic communication and restraints upon the mother permitting her partner Mr O from being alone with X, or being involved in handovers or supervision of electronic communication. Orders also provided for school holiday time, and for X to engage in counselling.
The father largely adopted the orders sought by the ICL but sought a sharper ramping up of time culminating in an 8-6 arrangement. He also sought different arrangements for special days, and a different regime for interacting with medical practitioners.
Property
The second respondent
The second respondent sought orders directed to a number of aspects of the property of the parties, a number of which were not contentious.
The first was for the signing over of a Motor Vehicle 3 currently in the name of the father. This order was made by consent on 18 April 2024, the last day of the trial.
The second was for a repayment of $30,000 provided by the second respondent for the acquisition of Motor Vehicle 1. In the alternative he sought that the vehicle be signed over to him. The parties and the second respondent accepted that Motor Vehicle 1 be signed over to him in discharge of the relief sought by him, with such order to be made as part of this judgment.
The third was for the father to pay to the second respondent the sum of $30,000 loaned to him on 2 January and 11 February 2021. The father consented to such an order, which was not opposed by the mother.
The balance of the relief sought was directed to an equitable claim in relation to the parties’ Suburb D property, the second respondent seeking relief from whoever receives the property, in the form of payment of $200,000.
The father
The father supports a $200,000 payment being made to the second respondent. If such a payment is made, then he says the contributions should be measured at 52.5-47.5 in his favour. The father contends that, after a s 75(2) adjustment of 5% in favour of the mother (who will have the primary care of X), the property split then becomes 52.5-47.5 in the mother’s favour. If no payment is made to the second respondent, the father contends that the contributions should be assessed at 60-40 in his favour, which then becomes a split of 55-45 in his favour after the s 75(2) adjustment.
In order to achieve such the father seeks to retain the Suburb D property, together with its liability under mortgage. He seeks the sale of the Suburb G property, with $200,000 of the net proceeds to be paid to the second respondent, and the balance to be divided 63-37 per cent in his favour. He further seeks a split of the mother’s superannuation to allocate a base amount of approximately $117,000 in his favour (out of the mother’s total superannuation interests at approximately $340,000).
The sense of the father’s orders sought at Exhibit F23 are difficult to understand. The effect of the orders that he seeks is firstly that he would be entitled to the Suburb D property, and would hold the equity in that property in its entirety, although he would be responsible for the mortgage. Secondly the orders provide for the sale of the Suburb G property, with a $200,000 payment to the second respondent, and then for the father to receive 63 per cent of the net proceeds. Thirdly he seeks an approximate equalisation of the parties’ superannuation interests.
This would see the father receive, on the parties’ assessment of the value of the properties, non‑superannuation assets comprising in excess of $850,000, out of total net non‑superannuation assets of approximately $950,000, along with approximate equalisation of superannuation. This did not equate to the submissions as to outcome. Accordingly, what should be taken from his orders sought is that to effect the percentage outcomes that he submits should be the result, he should retain the Suburb D property and the Suburb G property should be sold, with a payment to achieve the percentage split, along with equalisation of the superannuation interests.
The mother
The mother denies the second respondent’s equitable claim. She seeks orders that provide for a 65-35 division in her favour, based on equal contributions between herself and the father (the father’s contributions incorporating monies provided by the second respondent), with a further adjustment in her favour based on s 75(2) considerations.
To effect such a distribution the mother seeks that the Suburb D property is transferred to her (on the evidence she holds the title to the property, she and the father however are jointly liable for the loan associated with the property), and that she transfer the father a settlement payment of $10,000. She seeks that the Suburb G property is transferred to the father. The mother also seeks default provisions for each of the properties to be sold if they are not transferred as specified within 60 days of the orders. The mother further seeks that the money in any joint accounts is transferred to the father, that Motor Vehicle 3 is transferred from the father to the second respondent and that Motor Vehicle 1 is transferred from the mother to the father. The mother sought that there be no super split and that the parties each retain their interests in any bank accounts and possessions held in their sole names.
Documents relied upon
The applicant father relied upon the following documents:
(a)Minute of Orders Sought filed in Court on 10 November 2023 (parenting);
(b)Financial statement filed on 4 April 2024;
(c)Affidavit of Mr Thatcher filed on 24 February 2024;
(d)Affidavit in reply filed on 3 April 2024; and
(e)Affidavit of Mr Yanai filed on 23 February 2024.
The respondent mother relied upon the following documents:
(a)Family Report prepared by Ms P dated 26 February 2023;
(b)Specific Issues Expert Report undertaken by Mr N dated 18 October 2023;
(c)Minute of Final Parenting Orders Sought by the respondent dated 13 November 2023;
(d)Affidavit of Ms Q affirmed 6 February 2024;
(e)Affidavit of Mr O affirmed on 7 February 2024;
(f)Affidavit of Ms Thatcher sworn on 7 February 2024;
(g)Respondent’s Response to Second Respondent’s Points of Claim dated 8 February 2024;
(h)Affidavit of Ms Thatcher sworn on 19 February 2024;
(i)Updated Family Report undertaken by Ms P filed on 12 March 2024;
(j)Affidavit of Ms Q filed on 20 March 2024;
(k)Affidavit of Ms H filed on 20 March 2024;
(l)Affidavit of Ms Thatcher sworn on 20 March 2024;
(m)Financial Statement of Ms Thatcher filed on 3 April 2024;
(n)Minute of Final Property Orders Sought by the respondent dated 8 April 2024; and
(o)Outline of Case document dated 8 April 2024.
Mr Yanai relied upon the following documents:
(a)Affidavit of Mr Yanai sworn on 14 February 2024;
(b)Affidavit (parenting) of Mr Yanai sworn on 23 February 2024;
(c)Minute of Orders filed on 14 March 2024 (noting the date correction in Order 3);
(d)Revised Points of Claim filed 3 April 2024; and
(e)Case Outline Document filed 5 April 2024.
PRINCIPLES
Parenting proceedings
The focus and the paramount consideration in determining what order should be made for X is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), her best interests. X’s best interests are to be determined on consideration of the matters set out at s 60CC of the Act, in the legislative context of the objects and principles set out in s 60B of the Act and, where applicable, following the reasoning process set out at s 65DAA of the Act.
The objects and principles give a legislative background for the examination of the considerations contained at s 60CC of the Act in determining best interests. They are as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
It should be acknowledged that in any individual case the objects and principles may point in different directions and find different emphasis, depending on the circumstances of the particular child.
Against this background, in determining a child’s best interests, the Court is required to evaluate the s 60CC considerations to the extent that they are at “issue in the proceedings,”[1] and are “relevant to the particular circumstances of the child”.[2] This calls for a focused examination of the considerations that arise in the individual case. While often the evidence filed in a case ranges across, and touches upon, many of the considerations, those that require closest attention can usually be identified from the matters that the parties ultimately placed emphasis upon in the trial.
[1] Phillips & Hansford(No 2) (2019) 60 Fam LR 160 at [43].
[2] Jollie & Dysart [2014] FamCAFC 149 at [45].
As with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes. It is the synthesis of the considerations that determines best interest.
The considerations have themselves been divided into primary and additional considerations.
The two primary considerations focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm from being subjected to abuse, neglect or family violence. In Marsden & Winch (No 3)[3] at [78], Warnick and Thackray JJ observed that the primary considerations are “manifestly of the utmost importance in determining what outcome will best advance a child’s interests.” Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations.
[3] [2007] FamCA 1364.
The primary considerations dominated each party’s case.
Often there is overlap between the considerations, and often many of the additional considerations are effectively subsumed into the primary considerations. For example, s 60CC(3)(j)’s reference to “any family violence involving the child or a member of the child’s family” necessarily forms a part of the protective considerations of s 60CC(2)(b) and may also form a part of the consideration of the degree of benefit flowing to the child from meaningful relationship with a parent at s 60CC(2)(a). Similarly, s 60CC(3)(f)’s reference to the capacity to provide for the needs of the child necessarily forms a part of the consideration of the benefits of meaningful relationship at s 60CC(2)(a).
Without being exhaustive, in this case the considerations engaged with most closely included the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse; upon the benefit to X of having a meaningful relationship with both of her parents; the parenting capacity of each of the parents; and the nature of the relationship X has with each parent.
It should not be thought that this exhaustively describes the application of the considerations to this case. It merely forms a high-level summary of the manner in which the parties emphasised their cases by the end of the final hearing.
Prominent amongst these matters is the assessment of the sexual risk asserted by the mother to be faced by X, and the risk of undermining of the relationship between X and the father, by the mother.
As identified in the Full Court case of Isles & Nelissen[4] at [50], quoting Austin J in Fitzwater v Fitzwater[5] at [138] the consideration of risk “is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm.”
[4] (2022) FLC 94-092.
[5] (2019) 60 Fam LR 212.
Here, not unusually, factual findings about past events take place in the context of contested facts, where the parties are in dispute as to what has happened both between them and to X and accordingly where there may be uncertainty as to what has gone on.
The Full Court identified that, depending upon the evidence before the Court, a risk of future abuse may be established by the possibility of past abuse, a conclusion consistent with the reasoning of the High Court in the foundational case about risk, M v M.[6]
[6] (1988) 166 CLR 69.
It is that possibility that forms the basis in this case to conclude that the father presents an unacceptable risk of harm to X.
Such an understanding was recently further confirmed by the Full Court in Eastley & Eastley[7] at [31]:
There could be no error in abstaining from making a definitive factual finding when the primary judge explained why he was not convinced on the balance of probabilities the incident occurred ... However, the primary judge’s enduring suspicion the incident might have occurred ...was still legitimately available to take into account as part of the matrix of evidence upon which the finding of “unacceptable risk” was premised. It is well accepted that an accumulation of factors, not individually proven on the balance of probabilities, can still be enough to demonstrate the existence of an unacceptable risk of harm to children.
[7] (2022) FLC 94-094.
Finally, in that same case the Full Court (at [33]) observed the need for a trial judge to consider the whole of the evidence in determining the question of risk, rather than merely dealing with each allegation in an isolated fashion:
…the law did not require the primary judge to assess the potency of the risk of harm posed to the children by reference to the evidence concerning individual events in isolation from the remainder of the evidence. On the contrary, the primary judge was required to assess the level of risk posed to the children on the whole of the evidence, since the strength of the evidence lies in its cumulative effect, much like how the strength of rope derives from the combination of its individually weaker strands.
(Citations omitted)
As identified above, each of the considerations requires weighing in the context of the other considerations as they arise in the case, such that in combination they determine the orders that will support X’s best interests.
Property proceedings
The claims as between the father and mother draw upon the powers contained in the Act that enable the court to adjust the property interests between them.
Section 79 confers upon the court the power to alter and settle the property interests between parties to a marriage. As identified by the High Court in Stanford v Stanford[8] (at [21]), it is a power conditioned by the overarching requirement set out at s 79 that:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
[8] (2012) 247 CLR 108 (“Stanford & Stanford”).
This is a requirement that was identified by the High Court to apply to the decision whether to adjust interests at all, and also to the decision to adjust them in a particular manner.
The High Court identified that the starting point for this consideration is:
First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.[9]
(Emphasis in original)
[9] Stanford & Stanford at [37].
Once the interests have been identified it can be considered whether, in the circumstances of the case it is just and equitable to make any adjustment, a consideration described by the High Court:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marriage relationship. That is, any express or implicit assumption that the parties may have made that the to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their martial relationship is brought to an end with the ending of the marital relationship.[10]
[10] Stanford & Stanford at [42].
As was subsequently identified by the Full Court in Bevan & Bevan,[11] the necessary considerations set out at s 79 and s 75(2) are a component in the determination of whether it is just and equitable to make any adjustment, as well as in determining the particular adjustment to be made, and that the whole process of the consideration of adjustment is permeated by the consideration of whether an adjustment is just and equitable.
[11] (1995) FLC 92-600 (“Bevan & Bevan”).
In this case each of the parties seeks the adjustment of their property interests, in circumstances of the breakdown of their twelve year relationship and their, at least in part, cooperative actions in the care of X and in the improvement of property. These matters indicate that it is just and equitable to make property settlement orders.
Following a long line of authority the Full Court in Bevan & Bevan identified a structured (although not mandatory) process to apply the considerations. That process involves the identification and valuation of the property of the parties, identification and evaluation of contributions, identification of the considerations as applicable to the case set out at s 79 (including those contained in s 75(2)), and further consideration of whether the adjustment is just and equitable.
The property to be identified and considered extends to superannuation interests of the parties. In Welch & Abney[12] the Full Court emphasised the need to give consideration to the “nature, form and characteristics of the property and superannuation interests.”[13]
[12] (2016) FLC 93-756 (“Welch & Abney”).
[13] Welch & Abney at [19].
In this case the identification of the property interests is entwined with the equitable and debt claims made by the second respondent. The debt claims being readily resolved, the determination of the contested equitable claim is a necessary step to identify the extent of the parties’ interests in property, and the extent of the pool to which their claim for adjustment applies. The principles for the determination of that claim are set out below.
In considering contributions, s 79 provides for a wide range of contributions to be taken into account, incorporating financial and non-financial contributions, made directly or indirectly, by or on behalf of a party to the acquisition, conservation or improvement of property, even where such no longer forms a part of the property of the parties. Further, contributions that are not made to the property, but to the welfare of the family are also to be taken into account. As the Full Court identified in Dickons & Dickons[14] this requires a holistic assessment of the nature, form and extent of contributions, and that there is no requirement for a causal link between the contribution and the property. Contributions are not weighed merely on their financial consequences.
[14] (2012) 50 Fam LR 244.
Typically, the weighing of contributions will be expressed relatively between the parties as percentages.
It then remains necessary to consider the other matters, insofar as they are relevant to the case, as described at s 79(4)(d) to (g) including those contained in s 75(2). A significant aspect of these considerations is directed to assessment of the future prospects of the parties. They are not restricted to the consideration of financial matters. Where such considerations arise in a case, typically, once weighed, they will also sound in the expression of a percentage.
Following the consideration of these matters, further consideration must be given to whether the overall result is just and equitable.
The equitable claim
The second respondent makes his claim on the basis of promissory estoppel. He identifies the underpinning of promissory estoppel as that identified by Mason CJ and Wilson J in Waltons Stores (Interstate) Ltd v Maher[15] at 404, where they described:
One may therefore discern in the cases a common thread which links (promissory and proprietary estoppel) together, namely, the principle that equity will come to the relief of a plaintiff who has acted to his detriment on the basis of a basic assumption in relation to which the other party to the transaction has “played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it”. Equity comes to the relief of such a plaintiff on the footing that it would be unconscionable conduct on the part of the other party to ignore the assumption.
(Citations omitted)
[15] (1988) 164 CLR 387 (“Waltons Stores”).
In the same case Brennan J observed that:
It is essential to the existence of an equity created by estoppel that the party who induces the adoption of the assumption or expectation knows or intends that the party who adopts it will act or abstain from acting in reliance upon the assumption or expectation ... [16]
[16] Waltons Stores at [423].
He further observed that the unconscionable conduct that equity is protective against is to avoid the detriment flowing from the failure to adhere to such an assumption or expectation.[17] The particular ingredients that he identified to establish an equitable estoppel were:
In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant’s property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff’s reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs.[18]
[17] Waltons Stores at [423].
[18] Waltons Stores at [428]–[429].
In the same case Deane J observed that the:
... object and operation of the doctrine of estoppel by conduct is to avoid the injustice which would result from the application or inadequacy of other laws in the circumstances which would be disclosed if departure were permitted from the relevant represented or assumed state of affairs.[19]
[19] Waltons Stores at [453].
Justice Gaudron favoured, without determining, that in establishing a right based in equity, only three questions need to be asked, being whether an equity has been established, secondly the extent of the equity and thirdly as to the appropriate relief.[20] In establishing the equity her Honour emphasised the question as being whether, in the circumstances, it would be unfair to allow departure from an assumption, placing further emphasis on the role played by the party to be estopped in the making of the assumption.
[20] Waltons Stores at [460].
In this case the claim centred around the notion that the father and mother represented to the second respondent that they would provide a home for him and his mother in the Suburb D property, and then later, that they would build a granny flat for he and his wife to live in at their Suburb D property. This was to be on the contribution of funds firstly to enable them to purchase another property and then to enable them to construct the granny flat.
THE TRIAL
Credibility
A significant aspect of the parties’ cases was the credibility of each. It should be observed that conclusions as to credibility in one area of a case does not necessarily equate to the wholesale acceptance of rejection of a witness’s evidence. Rather, issues of credibility may assist in determining individual factual contests in the case in the context of the evidence that is led in respect of them.
The second respondent
The ICL urged that the second respondent should be regarded as a witness of high credibility, reliant to a significant degree to the demeanour of the second respondent in the witness box. In relation to such it may be observed that he presented in an apparently genuine emotional manner, expressing his love for both the mother and X. The ICL further submitted that the second respondent appeared forthcoming and matter of fact.
While there is a place for the assessment of demeanour, the comments of the plurality of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy[21] at [30]–[31] provides an appropriate caution:
[21] (2003) 214 CLR 118.
[30] It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”):
I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.
[31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.
(Footnotes omitted)
It may still be observed that the second respondent appeared genuine in his evidence.
Demeanour was not all that the ICL relied on, as the ICL further submitted that where documents were available they were supportive of the second respondent’s contentions.
Accordingly, the ICL submitted that there should be an acceptance of his assertion, contested by the mother, that the mother said to him in August 2021:
... I just want to wipe [X’s] memory of your family and destroy your son’s life and smash him under my feet. [X] is from my flesh and blood and your son is just only a sperm doner, nothing more[22]
(As per original)
[22] Affidavit of the second respondent sworn 14 February 2024, at paragraph 112.
This comment, if made, lays a foundation to consider that the mother held a motivation to give untrue evidence in pursuit of such a goal. Although it does not act as direct evidence to establish that her evidence is generally untrue, or even that particular aspects are untrue, it identifies an underlying motivation that calls for caution in relation to the mother’s evidence, out of concern that the evidence may be the product of malicious intent. Such a statement is supportive of the mother harbouring malice against the father and his family, accompanied with an intent, formed prior to the raising of the sexual abuse issue, to remove them from X’s life, calling for caution in the assessment of her evidence.
However, given concerns set out below about the second respondent’s evidence, which arise from uncontested facts, I am not prepared to find, over the mother’s evidence, despite reservations about the mother’s credibility, that she made the above comment.
The mother sought to impugn the second respondent’s credibility. The first aspect was based on asserted inadequacies in his disclosure, noting that he did not disclose all of his bank accounts, and so the sources of funds in his primary account remained unsupported. However, the obligation upon the second respondent to produce those further records was not made good, where the second respondent is not a party to the marriage. It was not demonstrated that the further disclosure was required as relevant to the issues in dispute in other than in a highly speculative manner, and so this criticism did not impugn the second respondent’s credibility.
Further criticism was made of the second respondent’s contentions that he had not received an insurance payment in relation to a car that he had purchased for the father but which had been written off. Although a sum of monies came into that account that could have constituted an insurance payment, it was not established to be so. Even if the second respondent is wrong about this payment, his error about such provides little reason to consider his evidence to be unreliable in a more general sense.
However, some caution in relation to transactions claimed by the second respondent arises from Exhibit M4, which shows that the second respondent double counted the same $10,000 transaction, once in relation to the provision of a car, and once in relation to the provision of funds for Suburb D. Both could not be correct.
More significantly, caution is indicated by the apparent willingness of the second respondent to go to extreme lengths in the support of his son, including by engaging in deception. He accepted that he and his wife, the father’s mother, formally divorced whilst they lived in Country L (the father’s country of origin) in order to provide an exemption to prevent the father being required to serve in the armed forces of Country L. He further accepted that the relationship was on foot immediately following the divorce. It was apparent that the divorce was a sham divorce. It might however, be thought that a willingness to engage in such a deception may have been justified, given the potentially high stakes facing the father. However, it may also be observed that the stakes are high in this case where there is a genuine question of whether there will be any relationship between X and her father, and accordingly with the father’s family.
The significance then is the observation that the second respondent has, in the past, engaged in serious deception where he considered that it benefitted his son.
The mother
In contrast to her position in relation to the second respondent, the ICL criticised the mother’s reliability, observing that in particular respects, she modified her evidence when presented with contradictory evidence.
One example concerned inconsistencies in her description of one of the early events where she attributed a sexual significance to X’s presentation, relating to the sucking of fingers. This is discussed further later in the judgment, but the point raised by the ICL arose from the transcript from the previous hearing, the relevant portion being exhibited as ICL2 in these proceedings, where the mother described that X used tongue when sucking the mother’s fingers, describing “[i]t wasn’t just a clumsy suck. There was tongue and it felt – it just didn’t feel right”.[23]
[23] Exhibit ICL2 (Transcript 14 April 2023 p.148, lines 46-47).
During the cross-examination of the mother by counsel for the father in these proceedings, the mother stated that she did not recall X using tongue. When her attention was drawn to this inconsistency, the mother responded that “her tongue is in her mouth, so the – a tongue obviously touches your finger as it’s there, but its mostly – it was mostly, like, soft lips around it”.[24] When it was suggested to the mother that she highlighted the use of tongue because that was why it did not feel right, she added that it was a “limited explanation”[25] and she “[hadn’t] articulated [her]self well there at all”.[26]
[24] Transcript 15 April 2024 p.20 lines 6-7.
[25] Transcript 15 April 2024 p.21 line 42.
[26] Transcript 15 April 2024 p.22 line 4.
Caution should be exercised as to the mother’s description of the particulars of X’s conduct on this occasion.
A further example directed to the mother’s credibility was as to changing assertions about whether her partner Mr O would call the father a paedophile. Mr O accepted that he had called the father a “pedo”. This is discussed later in the judgment. However, it was suggested that the mother had varied her evidence in relation to the prospect of such happening, and specifically that she changed her evidence from a denial that such would occur, to being a denial that such would occur in the presence of X.
This flowed from the ICL’s cross-examination of the mother, where she was asked if Mr O greeting the father with “hi pedo” was appropriate. The mother queried whether it was alleged to have occurred at handover, counsel for the ICL responding that was the case (it was not). The mother then stated “[t]here’s no way he said that”.[27] When the fact of Mr O admitting to this in his own evidence was raised, the mother responded “[b]ut then it wasn’t a handover”.[28] She later stated “[Mr O] would never say that in front of [X]. Absolutely not”.[29]
[27] Transcript 15 April 2024 p.24 line 32.
[28] Transcript 15 April 2024 p.24 line 34.
[29] Transcript 15 April 2024 p.25 line 16.
However, it should be noted that X was not present, there being no handover on that occasion, and so the mother’s clarification was not successfully impugned. She did not vary her evidence on this issue.
This should not lead to an adverse conclusion about the mother’s credibility.
The third example identified by the ICL was as to the mother’s comment to X’s childcare centre, in relation to their open-door policy. That open door policy permitted parents to attend the centre. The mother was, however opposed to the manner in which the father was attending. In that context she was recorded as saying that if she were in the childcare centre’s position she would have lied. This was a comment attributed to the mother post separation, but before the sex abuse allegation.[30] Under cross-examination, the mother denied that she said that and that she has “no idea” what she was referring to.[31] It should however be accepted that the mother made such a comment. The significance of this was that it was suggestive of a willingness on the part of the mother to engage in lying. It is a matter suggestive of caution being exercised in respect of the mother’s evidence.
[30] Exhibit ICL1.
[31] Transcript 15 April 2024 p.29 lines 1-2.
There is some reason to be cautious in relation to the mother’s general reliability as a witness. Specifically, the above matters point to a need for caution in relation to the fingers incident.
Importantly, however, the issue of credibility needs to be considered in the light of the manner in which the case was run by the parties and the ICL.
The end point for the ICL was that the above matters raised questions about the mother’s reliability, rather than her genuineness. Specifically, however, the ICL did not contend that the mother had incorrectly recorded the sexualised comments that she had attributed to X (other than to the extent indicated above in relation to the finger incident).
The father also criticised the mother’s credibility, starting with the allegation that she made the threat described by the second respondent above. As noted above, I am not prepared to find that she did so.
The father’s further contention is that the mother has made complaints regarding his conduct designed to result in a finding of sexual abuse. This included descriptions by the mother of the father’s purported sexual practices.
One particular example, identified by the father was as to the mother’s account in the previous proceedings that the father’s proposal that the parties engage in polyamory caused the breakdown of the marriage. That evidence was inconsistent with the mother’s current evidence that the issue was raised by the father after separation. Given the mother’s now acceptance that the suggestion of polyamory did not occur until after the relationship had come to an end, it could not form a part of the cause of the relationship breaking down as previously asserted by the mother, at best forming a reason that reconciliation did not take place.
Further, the father submitted that the mother’s claims of polyamory as being contrary to her principles were a construct designed to influence the court in her favour, and did not match her responses by text message on his raising of the prospect.
The father tendered a text exchange from March 2021 designed to show that the mother was excited at the prospect of engaging in polyamory. The text exchange is suggestive of curiosity on the part of the mother, but in a broader context where she explained that it was something that she may have taken more seriously if the father had not broken her trust. Although there was a concession on the part of the mother that she felt some physical arousal during the discussion, she further described that she did not know why. Where there was an absence of cross-examination on the exchange, little should be taken from the exchange.
In any event, the inconsistency in the mother’s evidence as to the suggestion of polyamory being causal in relation to the breakdown of the relationship again provides reason to be cautious in relation to the mother’s credibility.
Inferentially the mother’s credibility was also put in issue in the contrast between her description of the father’s parenting and the content of Father’s Day cards prepared by her during the relationship. While in her affidavit material the mother described the father as having limited involvement with X, the Father’s Day cards (exhibited at F2) describe his parenting in glowing terms.
The mother accepted that they were inconsistent with her description of the father in the proceedings. She explained that the cards were aspirational, written in the hope that the father would step into the role. The description in a card that fatherhood was the role that he was made for was said to be a hope. Similarly, the statement that he was a dream father was expressed to be an aspect of how the mother tried to get through an unsatisfactory relationship.
Whilst this contrast again gives reason to be cautious, it does not do so in a cogent manner. The mother’s observation that a Father’s Day card was not the occasion to record criticism of the father was apt. It however again points to some caution being exercised in respect of the mother’s evidence.
In final submissions the father suggested that the absence of disclosures of X other than those reported undermined the mother’s credibility. For example, he pointed to there being an absence of evidence that X has made disclosures to the maternal grandfather, or to her play therapist (aside for one example discussed later), or to Mr O. It may be observed that Mr O provides support for a number of the conversations related by the mother set out further below, either because he was present, or because the mother shortly thereafter repeated then to him. He was not challenged as to such.
Otherwise, for this submission to carry weight, it would be necessary to establish that if X had been abused there was such reason for her to communicate such to those people, as to render an absence of reporting to them a reason to undermine her contended reporting to other persons. This was not done.
The father also identified evidence that indicated that the mother has not recorded income in relation to the Suburb G property on her tax return.
The father also noted a potential divergence in the mother’s reporting of a critical purported disclosure, in relation to a butterfly being “in” or “on” her bottom. This is discussed in detail later in this judgment.
A policing summary report exhibited at F8, described the mother reporting that X had talked about the father putting a butterfly on her bottom. There were multiple references to ‘on’ the bottom and no references to ‘in’ contained in the report, and a comment noted in the report that penetration was not alleged.
This divergence points to potential uncertainty as to whether X described the butterfly as ‘on’ or ‘in’ her bottom. This is a matter to be considered further on assessment of the evidence in relation to X’s purported comments on this matter. The divergence is a reason to be cautious in considering the mother’s evidence, in particular as to this purported disclosure.
A further example in relation to credibility was the mother’s reluctance to admit matters adverse to her own father. For example, the mother appeared reluctant to concede that her father behaved in a hostile manner toward the paternal grandparents at a handover in July 2021, until confronted by a video recording of the incident.
Focussing on the disclosures, the father noted divergence in the descriptions given by X, notably a description to the AFP of fingers going in and out. It may be noted that it appeared that this was the police description to the W Health Service, as set out later in the judgment. Given the minimal material tendered from police records the genesis of such a statement remained unclear.
Further, in relation to X’s volunteering information to Mr N of a potentially sexual nature (again dealt with in more detail below), the father noted that Mr N could not say whether he had asked X if someone had told her why she was coming to see him, to clarify the circumstances surrounding X’s purported disclosure to him at interview. If this was meant to impugn the mother, then it required her to be tested as to what she had said to X in the lead up to the meeting with Mr N. This did not happen.
However, aside from the “in” vs “on” issue little, if any other challenge was made to the mother’s descriptions of purported disclosures.
It may be observed that there is reason to exercise some caution in evaluating the evidence of the mother.
However, again, it is important to consider these criticisms within the context of how the case was run by the parties, and the ground upon which they challenged, or did not challenge, the mother’s evidence. Where particular factual contentions raised by the mother were the subject of substantive challenge, particularly through cross-examination, then the caution as to her credibility or reliability forms a consideration for the resolution of those factual challenges.
Where the parties chose not to traverse important factual contentions raised by the mother, for example, as to particular disclosures attributed to X, then the identified cautions in respect of her credibility or reliability do not carry the same significance.
This is particularly the case where there was little direct challenge to the any of the mother’s evidence of purported disclosures by X, and in large part no challenge at all to that evidence.
These matters will be considered further in the context of the central factual assertions made by the parties as set out further below.
PARENTING PROCEEDINGS
Although by the time of the trial the parties accepted that X’s best interests are supported by the mother being her primary carer, the parenting aspect of the proceedings covered significant factual ground as laid out in the parties’ affidavit material. The parties differed significantly as to the role played by the father prior to separation, as to whether he was highly involved in the care of X, or whether he was more minimally involved, focussing on his own activities.
The parties further differed as to the post separation conduct of each of them. The father considered that the mother was aggressive and obstructive, unduly restricting his and his family’s access to X. The mother alleged that the father was unreasonable, invasive of the mother’s space, financially uncooperative and abusive. She asserted that he was unreliable in his care of X.
The parties further differed as to X’s response to the father, whether she had become resistant and fearful, or whether there was a rich and positive relationship with the father.
However, the significance of these matters as bearing upon the future parenting arrangements for X dissipates in the context of a determination that X is at unacceptable risk of harm of sexual abuse from her father. Where such a conclusion is reached, the consideration of the other matters impacting X’s best interest does not require the traversing of the particulars of the roles and conduct of each of the parties. To do so would constitute an arid exercise that does not have the capacity to materially affect the determination of X’s best interests.
In that context it is convenient to deal with the issue of sexual abuse risk first.
SEXUAL ABUSE RISK
The mother identified a number of matters as underpinning her case that the father presents an unacceptable risk to X.
Primarily these involved discrete instances of X saying or doing something, that the mother asserts hold inferences of sexual abuse by the father. While there was challenge to the significance and interpretation of these instances, other than in isolated examples, there was little, if any, challenge to the mother’s description of what it is that X did or said.
The mother has also asserted particular characteristics on the part of the father that she suggests point to him as a sexual risk. As set out further below in the examination of the expert evidence, these contested matters, even if accepted to be the case, are at best ambiguous, to the extent that they are unable to add to the risk consideration absent the additional conclusion that the father has sexually dealt with X.
The mother also asserts that X’s presentation indicates fear of, and resistance to spending time with the father. Whether or not this might be the case in the mother’s presence, X’s presentation to the experts was at significant odds with such a description, instead showing enthusiasm toward and delight in the father. The degree to which this is significant to the assessment of risk is dealt with further below.
It should be acknowledged that the father denies that he has sexually dealt with X. He further says that there was little practical opportunity for him to do so given his parents were often present for his time with X, and due to the open door nature of their household.
The instances are set out below.
Talcum powder
The first is an incident in early 2022, when X was returned from time with the father with talcum powder in her vagina and bottom. The mother described[32] that when she asked X why it was there X responded that “[R] did it”, R being the child of the father’s then girlfriend. When the mother raised the issue with the father via the Talking Parents App the father said that he had applied the powder “to help her transition from nappies.”
[32] Mother’s affidavit sworn 7 February 2024, at [55].
The mother told the father that he should not apply the talcum powder. The mother then attended on a General Practitioner in relation to redness around X’s genital region (including at the request of the father), and subsequently asked the father if the matter could be left as she was “concerned about the extra attention around her vagina.”
The mother accepted that she did not, at the time, consider that this incident was sexualised. There remains no reason to consider that it is significant to the issue of sexual abuse risk.
Fingers
This was the first time that the mother, at the time of the event, identified an incident as having a sexual connotation.
The mother described that in late 2022 whilst sitting with the mother, X took the mother’s fingers and “began sucking on them, one by one, while looking at [the mother].”[33] The mother described that initially she did not pay attention to this conduct, but as she noticed it the following exchange took place:
“what are you doing?” and “where did you learn to do that?”. She replied: “that’s what I do to daddy, and he likes it, he says it’s our secret”. I said to [X]: “that’s not a good idea because it spreads germs and secrets don’t keep us safe”.
[33] Mother’s affidavit sworn 7 February 2024, at [57].
The mother contacted the local welfare agency in relation to this who ultimately advised that no action would be taken.
The mother was taken to variations in her account of this incident. Under cross-examination the mother said that she did not recall X using her tongue, but rather “delicately using her lips to suck each finger”.[34] This was in contrast with evidence given by the mother in the previous trial on 14 April 2023:
So, what was it? So, was it just sucking the fingers in and of itself that caused you to think it was sexually suggestive; is that correct?---I felt that it was the way she did it. It wasn’t just a - - -
All right?---It wasn’t just a clumsy suck. There was tongue and it felt – it just didn’t feel right
[34] Transcript 15 April 2024, p.20 lines 13-14.
The mother then explained in these proceedings:
Well, her tongue is in her mouth, so the – a tongue obviously touches your finger as it’s there, but it’s mostly – it was mostly, like, soft lips around it.
The mother explained that she had only given a limited explanation in the context of cross‑examination on the last occasion.
It may be noted that there was some divergence in the detail of the mother’s account, although her overall description remained consistent. It was not suggested that there was no such incident.
The ICL posed as an innocent explanation that the father may have secretly fed X ice cream. The mother had described that X would return from time with the father sticky from ice cream, the eating of which was contrary to the mother’s dietary plans for X. The ICL suggested that X’s behaviour could be explained by X licking something off her own or off the father’s fingers. The mother did not accept that this would explain the whole scenario, particularly X’s comment “Daddy likes it.”
Whether this incident did or did not have a sexual content, it marks the start of the mother’s identification of incidents as potentially sexual in their content. I do not, in any event, consider it to be an incident that is suggestive of sexual abuse.
The third incident identified by the mother was in late 2022 when, on taking X swimming X said to the mother:
“daddy takes me to this pool and I suck on daddy’s shoulder while he carries me to the shower, he likes it, it’s love”. I replied: “please don’t do this honey, there are germs in the pool water if little kids do wee and this will get in your mouth.”
There is no good reason to consider that this description is of a sexual incident.
The mother further described that in late 2022 X described that she had slept in “[Ms S’s] bed with daddy.” Ms S was then the father’s girlfriend. The mother said that she was concerned by this.
Some attention was paid to this issue in the cross-examination of the mother. The mother accepted that the parents co slept with X during the relationship. However, she described that she had gradually ended this following separation, and that she had spoken to the father about the need for X to have her own bed. She accepted that she did not directly identify that she had ended co sleeping to the father until the proceedings before Judge W Neville. The mother considered that such was implied by their conversations about X having her own bed.
Despite the father’s denials, it may be accepted that he held a property for a period in Country L, deriving income from it. He appears to no longer hold it. To the extent that the property may have enlarged the pool of property, and constitute a contribution on his part, it does not. I am further not satisfied that the payments made by the second respondent were sourced from the sale of such a property.
The mother accepted that at the previous trial of the matter she had told the trial judge that the second respondent had put $75,000 into the granny flat that ought to be reimbursed to him. The mother explained to the previous trial judge that she calculated that amount based upon the total cost of the work, as estimated to the ABS at $175,000, and therefore (taking into account the draw down of $100,000) her calculation was that the second respondent had provided $75,000.[48]
[48] Exhibit Y6.
The mother now contends for an amount of approximately $63,000 as marking the amount contributed by the second respondent to the granny flat, comprised of the net value of the transactions marked ‘granny flat’ and excluding the first two payments from 2019 (approximately $39,000), the Bunnings amounts (approximately $4,000) and adding in the cash payments of over $500 (approximately $20,000).
As noted above, the second respondent and father contend for an amount of $100,000.
However, a number of matters point toward the figure being $75,000. Firstly, such an amount is consistent with the build cost at $175,000, less the draw down facility. Such an amount is also consistent with the non-cash payments identified above being supplemented by additional cash payments (that each party contends or accepts took place, merely varying as to degree). It is also an amount consistent with the mother’s concession in the previous proceedings.
The payments made by the second respondent to the granny flat should be reckoned at $75,000.
The identification of that amount is not the end point of the second respondent’s case in relation to his detrimental reliance.
The second respondent sought to add to the payments that were directed to the granny flat the sums provided for the purchase of the Suburb G property, totalling $86,130. The second respondent also sought to include the net amount advanced for the other improvements to the Suburb D property, at a net value, excluding the repayment by the mother, of $15,100.
Although the second respondent also described that he exerted time and labour toward the improvement of the Suburb D property and exerted time and labour toward the granny flat, he did not assert that these were contributions that pointed toward the equitable remedy, but should rather be considered as contributions rendered on behalf of the father in relation to the father’s s 79 claim.
The monies advanced in respect of the Suburb G property, despite the denial by the mother, should be understood as coming in the context of comments made as to the prospect of purchasing Suburb G, ultimately building a “dream house” there and “then you and [Ms Z] can move to our house ([Suburb D]) and we will move there and you can keep our house.” The provision of the monies was in expectation that the second respondent and his wife would be able to occupy the Suburb D property. Although described as a loan, at no point have they been treated as anything other than the provision of funds to enable the purchase of Suburb G and retention of Suburb D. At the hearing of the matter no party contended that the amounts should be treated as though they were loans, or that they should be repaid, in sharp contrast to other payments of monies that have been so dealt with.
That initial expectation as to a home was clothed in vagueness as to how it would crystallise. However, the representations as described by the second respondent as to the construction of the granny flat were couched with greater certainty. This development of the representations was supported by the provision of the further funds in aid of the construction of the granny flat.
The provision of the funds for the acquisition of Suburb G and the provision of the funds for the granny flat can be considered together to be directed to the evolving representation which was at all times directed to the provision of a home for the second respondent and his wife at the Suburb D property. Both sets of funds were provided in reliance upon the evolving representation, and appeared to have crystallised on the moving into the granny flat. Together those funds, being $75,000 plus $86,130, total $161,130.
Although the second respondent also sought to draw in the loan for the improvement of the Suburb D property, those monies bore a different character. Firstly, they were treated by the parties as a loan, both the mother and the second respondent contending that a portion was repaid to reduce the indebtedness. Further, at no point was the provision of these funds apparently directed to the securing of the residence for the second respondent. They should not be included as a part of the reckoning of the detrimental reliance upon representations to give the second respondent a home.
Turning then back to the $161,130, the mother asserts that there is no unconscionability arising from the circumstance that the second respondent and his wife no longer reside in the granny flat. This is grounded in the notion that they have had a period of occupation, and now live in the Suburb G property. To that is added the prospect that the father would continue to provide them with a home.
However, none of those matters answer the unconscionability occasioned by the departure from the representations. The ongoing provision of a home as an aspect of either generosity, or a sense of familial duty was not the end point of the contributions made in reliance upon the evolving representations and expectations. As the representations developed, and the payments continued, they were each directed to the ongoing occupation of the granny flat into and through retirement.
The resolution of the unconscionability necessitates a remedy of the character proposed by the second respondent and the father, being payment corresponding to that made by the second respondent. This is a remedy that forms the minimum necessary to resolve the adverse impact of the detrimental reliance of the second respondent.
Conclusion as to the second respondent’s claim
The second respondent is entitled to a compensatory payment in the sum of $161,130.
Conclusion as to the pool of property
This leaves the pool of property as identified by the parties in their balance sheet, save for a joint liability to recompense the second respondent the sum of $161,130. This sum should be accounted for by taking it off the top of the net pool as an additional liability shared by the parties.
As to the other contested items in the balance sheet, they are constituted by the following items:
(1)Motor Vehicle 2 owned by, and in the possession of the father. He attributes a value of $5,250, whilst the mother asserts a value of $10,000. In the absence of opinion evidence offered on the basis of expertise, the assessment of value is reliant upon the father’s admission against interest at $5,250.
(2)Disputed add-back of payment of monies by the mother to her sister in the sum of $18,000. The basis for this payment is unclear, particularly when consideration is given to the evidence of the mother’s sister, Ms Q. An examination of her evidence of the various transactions between the parties is not consistent with the sister being owed such a sum. It should be treated as a premature distribution on the part of the mother and notionally added back into the pool of property.
CONTRIBUTIONS
The parties’ relationship commenced in 2009.
At the commencement of the relationship the mother held superannuation of approximately $36,000, along with about $12,500 savings, a car worth about $15,000, a motorcycle worth about $5,000 and furniture.
The father held property in Country L that he disposed of during the relationship, divesting any interest in favour of his parents. Other than income in one year the parties did not receive benefit from that property. He was then a student, remaining a student for about the first six years (constituting half) of the relationship, completing multiple qualifications and commencing but not completing a further qualification.
The father owned a vehicle purchased for him by the second respondent worth about $16,000 and had about $15,000 in savings at that time, being fully supported by his parents in his studies.
The mother accepts that she received gifts from the father’s family during the relationship.
The father was supported by the second respondent as he studied. The second respondent paid tuition fees and describes paying $300 - $500 per week as the father was not eligible for government benefits.
The father describes that when the parties started to live together they kept their finances separate. He asserts that they divided responsibilities, such that the mother paid the rent while he met other expenses such as utilities and groceries. The mother contends that they shared grocery and living expenses.
The mother was the primary income earner throughout the relationship, the disparity in their income being starkest during the time that the father was studying. The mother provided financial support for the father as a student, and as property was acquired, met the bulk of the obligations for such.
The father, in part reliant upon his parent’s payments, and then on work undertaken while he was a student, contributed to various living expenses, including toward the payment of rates.
The father is currently employed full time.
In 2012 the mother purchased the Suburb D property. She described that she did this over the objection of the father (who at the time remained a student), and the property was purchased in her sole name. The father however contends that the decision was joint. He says they used “our savings” while the mother contends that she had saved over $56,000. Given the father’s contention as to keeping finances separate, it is difficult to understand how he asserts that the savings were those of both parties. The mother accepts that a gift of $10,000 was paid by the second respondent toward this purchase. The second respondent described that this amount was paid at the request of the father. At that time the father was working part time at a retailer and in a factory, whilst continuing postgraduate study. He says that he earnt about $22,000 per year at that stage.
At that time the mother was working two jobs, one in the public service, the other at a business which provided added finances in support of the purchase.
The mother described that she met the mortgage and rates expenses for the Suburb D property, although on occasion the father met a shortfall during the period that the mother was on maternity leave.
In terms of financial contributions, the mother’s far outweighed the father’s during the first half of their relationship.
The parties together undertook improvements to the property, including contributing effort and labour. Both the father and mother worked hard in the improvement of the property, the father having greater time to provide such efforts. This did not equate to a significant imbalance to match the financial contributions made by the mother.
The father asserts that he met the costs of the improvements to the Suburb D property. It was unclear what expenses these might relate to, noting that the parties uncontroversially borrowed monies from the second respondent for improvements, a portion of which were not repaid. This contention should not be accepted.
However, the mother accepts that the second respondent also provided significant assistance in making the improvements, a matter that should be considered as a contribution on the part of the father.
In 2015 a property at Suburb G was identified and then purchased by the parties in joint names for $590,000, with borrowings of approximately $530,000. The mother describes various financial contributions made by her toward the property.
There was a refinancing of the Suburb D property into both names, although this did not appear to result in any change to the title of the property.
In 2018 X was born.
The second respondent and his wife the paternal grandmother frequently visited the mother and X and assisted with X’s care.
The second respondent describes the father’s involvement in X’s care in glowing terms. The description should however be taken with a grain of salt, in the context of concerns as to the second respondent’s preparedness to engage in deception for the benefit of his son.
The mother describes that she undertook the bulk of home related duties following X’s birth, the father remaining heavily involved in sporting activities limiting the extent of his involvement. At the same time the mother took maternity leave, returning to work part time for a period of four years. At this stage the father had entered the full time workforce, and the mother’s financial contributions did not outweigh those of the father’s in the same manner that they had earlier in the relationship.
The parties constructed a granny flat at the Suburb D property as identified above, the mother obtaining an owner builder license to keep the costs down. She asserts that she project managed the build, whilst the father asserts that he did. Both the father and mother directly contributed to the build with their personal efforts, the mother reducing her work hours to three days per week to allow her to assist in the build five days per week. It may be observed that added to her financial contributions at this point the mother was making significant non-financial contributions, including to the welfare of X, that again exceeded those directly made by the father, although his were supplemented by the support given by his parents.
The parties agree that they drew $100,000 against the Suburb D property to help to pay for the granny flat.
The parties separated in February 2021, at which point the father moved into the granny flat. The mother retained the primary care of X.
In August the father and the second respondent and his mother moved into the Suburb G property. At that stage there were $16,000 advanced payments on the Suburb G loan that were depleted while the father was living in the property by virtue of non-payment of loans. By March 2024 the loan for the Suburb G property was in default.
Since September 2021 the mother’s mother has lived in the granny flat.
SECTION 75(2)
By virtue of these proceedings the mother will have the sole care of X, currently aged five. She will exercise the sole responsibility for decisions regarding X, and care for her without support from the father other than pursuant to his child support obligations.
The mother is approximately 43 years old. She has a tertiary qualification, and is a public servant. The mother also works in another industry, although she deposes that she has not been unable to work as often since hurting herself. Her Financial Statement discloses income of approximately $2,900 per week, plus a superannuation contribution by her employer.
The father is 42 years old. He too has tertiary qualifications and has engaged in post graduate study. He is currently a public servant. His Financial Statement discloses income of approximately $2,200 per week.
Each of the parties asserts that they have responsibility to care for parents. The nature of the legal obligations associated with such support remains unclear.
CONSIDERATION
In broad terms the pool of property may be considered, on a net basis, to equate to approximately $1,436,000.
This is comprised of the items in the balance sheet, and also taking into account the monies by which the second respondent is to be compensated:
(1)Real property at a net value of approximately $1,141,000, comprised of the Suburb D property held by the mother at approximately $691,000, the jointly held Suburb G property at approximately $450,000;
(2)Chattels of approximately $11,000, being a car held by the father valued at $5,250 and gold and diamond jewellery held by the mother at $5,400;
(3)Superannuation held by the mother of approximately $341,000, the father of approximately $88,000;
(4)A notional add-back of funds paid to Ms Q of $18,000;
(5)Less equitable compensation owed to the second respondent of approximately $161,000;
(6)Less a rates debt owed by the father of approximately $2,000.
The parties each asserted a notional addback in respect of expert fees the father having paid a $5,000 share on behalf of the mother in respect of Mr N and the mother having paid a $6,600 share on behalf of the father in respect of Ms P. It is not clear why either of these amounts would result in a notional add back. In the absence of the parties addressing this matter directly, they should not be so treated.
Although the father sought orders in respect of some chattels, in the absence of being addressed about those matters specifically, there is no good basis to make the orders that he seeks.
Each of the parties seeks an adjustment of their property interests. The end of their marriage, bringing about the end of their at least partially cooperative arrangements, and the end of the practicality of the sharing of property, means that an adjustment of their interests is appropriate.
The mother’s contention, based on the proposition that the monies provided by the second respondent did not result in an equitable interest, but should be regarded as contributions on the part of the father, was that contributions should be regarded as equal. Given that a significant aspect of the contributions made by the second respondent are excluded from the pool by the recognition of his equitable claim, the mother’s case, inferentially, is that her contributions significantly outweigh the father’s. At the end of the case she did not articulate a percentage assessment for contributions in such an event. Rather she contended that of an enlarged pool including the amount contributed by the second respondent, she should receive 65 per cent, after an adjustment of 15 per cent for s 75(2) considerations is made.
On the case as she put it, this would have resulted in the mother receiving 65 per cent of a pool of approximately $1,608,000 (being $1,447,000 plus $161,000), equalling approximately $1,045,000.
Her case must now however, encompass a smaller pool of $1,447,000, of which the father’s contribution would correspondingly be reduced.
The father’s case varied dependent upon whether the second respondent’s claim was recognised. In the event that it was, he asserted that the contributions should be assessed at 52.5-47.5 in his favour. If the second respondent’s claim is not recognised, the father asserted that contributions should be assessed at 60-40 in his favour.
Considering the manner in which the father and mother made contributions, it may be observed that once the equitable claim of the second respondent is recognised, the contributions made by the mother significantly outweigh those of the father throughout the relationship, and in its aftermath. The mother made greater initial contributions. Although the father received some support from his parents whilst he was a student, and although he engaged in some casual work, it was the mother who made the larger financial contributions that enabled the acquisition of the Suburb D property. The mother’s financial contributions far outstripped those of the father for the first half of their marriage.
It should be acknowledged that it was the efforts of both parties together, aided further by the second respondent, that enabled the improvement of the Suburb D property.
Whilst continuing to make strong financial contributions, following the birth of X it was the mother who made the stronger contributions to her care and well-being, combining income producing work, the care of X, and then efforts in respect of the construction of the granny flat. Again, the efforts in respect of the granny flat were also met by the efforts of the father and the second respondent, and the second respondent and his mother contributed to the care of X.
Since separation the mother has had the primary care of X. Contributions made by the father have weakened, as seen in the increased debt associated with the Suburb G property as the advance payments on that loan were taken up.
On balance, given the various ways in which the mother’s contributions have exceeded those of the father, the parties’ contributions should be seen to favour the mother 57.5 - 42.5.
Both parties are reasonably placed in terms of their future prospects, in the sense that each holds tertiary education and each works in the executive level of the public service. The mother however will have the sole care of X, who is aged 5, warranting an adjustment in her favour of 10 per cent, to equate to a 67.5 – 32.5 split.
The effect of such a division is that the mother would hold net assets of approximately $969,300, the father $466,700. Given the particular circumstances of the case, such a division is just and equitable.
The parties are sharply at odds as to how any division of property should be effected in one major respect, as each seeks to retain the Suburb D property. Their common position is that neither seeks to retain the Suburb G property. That leaves the sale of the Suburb G property as the appropriate mechanism to secure the payment to the second respondent, with the remaining proceeds from the Suburb G property going to the party who does not have the right to retain the Suburb D property, to be supplemented as necessary by a payment from the recipient of the Suburb D property to achieve the division.
If the party who has the right to retain Suburb D cannot make the payment, then a default position of sale of the property will be used to effect the distribution.
Little, if any, attention was paid by the parties to a rationalisation of why a particular party should retain Suburb D. At present the Suburb D property is in the name of the mother, although it is described as subject to a loan in both parties’ names. A transfer to the father requires an order directed to changing the ownership of the property. Justice and equity do not require such a change to the title of that property. That is sufficient to leave the title to the property in the mother’s hands and to resolve that aspect of the dispute between the parties.
It is unclear why the mother sought orders for the father to transfer to her his interest in the Suburb D property as he does not, on the evidence, appear to have one. To the extent that his cooperation is required to remove the loan form his name, he will be required to do so.
In the event that the parties’ evidence about their personal circumstances, being the father intending to house his parents, the mother intending to house her mother, was directed to a balance of convenience argument (it was not clear that it was), and if such an argument were to be considered a relevant consideration pursuant to s 79 of the Act, then it may be considered that the balance of convenience favours the mother who, with X, is in occupation of the property.
On either basis the mother should be entitled under the orders to the occupation of Suburb D.
The division should also encompass a splitting of the superannuation interests. The father sought a split such that the superannuation interests of the parties would be approximately equalised. The superannuation should be split in the same proportions as the non‑superannuation property.
Although the Suburb G property, and the Suburb D property may not sell for their estimated values, and the terms of the orders should provide for such an eventuality, for the purposes of illustration of the effect of the orders it is helpful to set out the results if they were to achieve their anticipated values.
The sale of Suburb G for a net amount of proceeds of approximately $450,000 would permit payment to the second respondent the amount of $161,000, leaving $289,000. The father holds a car valued at approximately $5,000, and liabilities of approximately $2,000 for rates. These equal $292,000. He currently holds superannuation of approximately $88,000. If the superannuation was split on a 67.5-32.5 basis, the father would be entitled to receive a further $51,000 to make up a balance of approximately $139,000. This would leave a further payment necessary to make the overall 67.5-32.5 split across non-superannuation interests of approximately $36,000 to be paid by the mother.
Such a distribution would then leave the father with non-superannuation property of approximately $328,000 and superannuation property of approximately $139,000. The mother would hold non-superannuation property of approximately $680,000, and superannuation of approximately $290,000.
Such effects are, in the circumstances of the case, considering contributions and the matters contained at s 75(2), just and equitable.
CONCLUSION AS TO PROPERTY
Orders will be made for:
·The sale of the Suburb G property and payment of the sum of $161,000 to the second respondent, with the balance of proceeds to be retained by the father.
·A split of the mother’s superannuation to give the parties a 67.5-32.5 split of their overall superannuation interests.
·On the basis of the agreed value of the Suburb D property, and taking into account the other property retained by the father, the mother to pay to the father an amount to cause his non-superannuation property to equate to 32.5 per cent of the pool taking into account the sale price of the Suburb G property.
·The mother will retain the Suburb D property.
Calculation of the payments to the parties will be on the following basis:
The total non-superannuation pool is taken as the combination of the equity in the Suburb D property at $691,000, plus chattels held by the mother at $5,400, plus the add back to the mother of monies paid to her sister at $18,000, plus chattels held by the father at $5,250 less rates debt of $2,000, plus the net proceeds of Suburb G after the deduction of the second respondent’s monies (Suburb G net proceeds), being $717,650 plus the Suburb G net proceeds.
In order for the father to receive a 32.5 per cent split, a payment to the father of 0.325 times the sum of $717,650 and the Suburb G net proceeds, less $3,250 must be paid.
In the event that the Suburb G net proceeds is less than this number, the mother will be required to pay to the father the difference.
In the event that the Suburb G net proceeds are greater than this number, the father will be required to pay to the mother the residue.
In the event that the mother defaults on making such a payment to the father, the sale of the Suburb D property will be required, in which case in order for the father to receive a 32.5 per cent split of the non-superannuation property, a payment to the father of 0.325 times the sum of the Suburb D net proceeds plus the Suburb G net proceeds, less $3,250 must be paid.
Orders will be expressed to give effect to such.
I certify that the preceding three hundred and eighty-nine (389) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 17 May 2024
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