Wahba & Noori - [2023] FedCFamC2F 1285

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wahba & Noori [2023] FedCFamC2F 1285

File number(s): MLC 11901 of 2018

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 6 October 2023

Catchwords: FAMILY LAW – final parenting orders – special time arrangements – when parties should attend further dispute resolution – final property orders – whether any property adjustments should be made – contributions made by the parties during the relationship and post-separation – where one party had failed business ventures – where one party purchased a property at separation and has built equity – whether principled reason to alter property interests – whether just and equitable to alter property interests – application for property orders dismissed.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60CA, 60CC, 75, 79, 80

Cases cited:
Adamson & Adamson (2014) FLC 93-622

Browne v Green (1999) FLC92-873

Clauson & Clauson (1995) FLC 92-595

Fox v Percy (2003) 214 CLR 118

Paxton & Paxton [2016] FCCA 1689

Stanford v Stanford [2012] HCA 52; (2012) FLC 93-518

Division: Division 2 Family Law

Number of paragraphs: 167

Date of hearing: 28 - 29 October 2021

Place: Melbourne

Counsel for the Applicant: Ms. D Wiener

Solicitor for the Applicant: MMH Lawyers

Counsel for the Respondent: Mr. C Arnold

Solicitor for the Respondent: Lampe Family Lawyers
ORDERS

MLC 11901 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR WAHBA

Applicant

AND:
MS NOORI

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

6 OCTOBER 2023

THE COURT ORDERS BY CONSENT THAT:
Parenting
1.All previous parenting orders be discharged.
2.The child X born in 2016 (‘the child’) live with the Mother, Ms Noori (‘the Mother’).
3.The Mother have sole parental responsibility for the said child.
4.The Father, Mr Wahba (‘the Father’), spend time and communicate with the child as follows:-
(a)Once a fortnight for up to two (2) hours during the day as supervised by the Family Contact Centre B Contact Centre at such times nominated by the Family Contact Centre, at the Father’s expense, if any;
(b)Each party do forthwith all things necessary to enrol in B Contact Centre contact centre in Suburb C and upon such enrolment, and upon the Father returning to Australia then time take place at such times as can be accommodated by B Contact Centre for the maximum period available;
(c)Thereafter unsupervised for a period of 2 hours each Sunday for 3 months;
(d)Thereafter unsupervised for a period of 3 hours each Sunday for 3 months;
(e)Thereafter 4 hours each Sunday; and
(f)As otherwise agreed between the parties.

AND THE COURT ORDERS THAT:
5.As soon as practical the parties attend FDRS or other mediation to discuss other and further time the Father spends with the child.

AND THE COURT ORDERS BY CONSENT THAT:
6.For the purposes of all time, changeover take place at B Contact Centre or other agreed public location.
7.Upon the cessation of supervised time, the Father spend time and communicate with the child for special occasions as follows:

AND THE COURT ORDERS THAT:
(a)For 3 hours on the child’s birthday as agreed in writing by text message or email, and in default of agreement, from 11:00am until 2:00pm.

AND THE COURT ORDERS BY CONSENT THAT:
(b)For 4 hours on Father’s Day as agreed in writing by text message or email, and in default of agreement, from 10:00am until 2:00pm;

AND THE COURT ORDERS THAT:
(c)For 4 hours on Eid al-Fitr, and in default of agreement, on the day nominated by the Father in writing by text message or email (‘the nominated day’), on or before seven days prior to the day, and in default of agreement, from 10:00 AM until 2:00 PM on the nominated day.

AND THE COURT ORDERS BY CONSENT THAT:
(d)For 3 hours as agreed on the Father’s Birthday as agreed in writing by text message or email, and in default of agreement, from 11:00am until 2:00pm.

8.In the event the Father goes overseas for longer than 2 months, then the first 4 time spend visits after his return be supervised by an agreed supervisor, at the Father’s expense, if any.
9.The Mother keep the Father updated as to any serious injury affecting the child and advise him of the name of any medical practitioner or allied health practitioner the child attends upon from time to time and the Father be authorised to contact and the Father be authorised to contact and obtain information from such persons.
10.In relation to any other medical treatment the Mother will provide the Father with any written reports, letters and any other documents which are provided to the parent by the medical and/or health practitioner and the Father be authorised to contact and obtain information from such persons.
11.Any medication prescribed to the child is to be passed to the other parent at changeover.
12.The Father be at liberty to attend PTA meetings at a separate time from the Mother.
13.The Father be authorised to receive any school notices, photographs and like material, at his expense, if any.
14.Each parent shall ensure that they communicate via a parenting App which they use for matters relating to the child and futter that each advise the other and keep them informed of their residential addresses and forthwith advise the other of any change within 24 hours.
15.Each party their servants and agents be and are hereby restrained by injunction from denigrating, criticising or speaking disparagingly of the other within the hearing of the child or allowing any other person to do so.
16.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
17.All extant parenting applications are otherwise dismissed.

AND THE COURT ORDERS THAT:
Property
18.The Father’s application for property settlement is dismissed.
19.It is declared that the Father, Mr Wahba, has no interest in the property known as D Street, Suburb E, (‘the Property’).
20.The Father do all acts and things to remove any caveat he has over the title of the Property within 30 days of these orders at his expense.
21.All extant property applications are otherwise dismissed.

AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
B.In the event the Father fails to remove the caveat as provided in these Orders, the Court would consider an application for the Mother to be authorised to execute any necessary document in the name of the Father to cause the removal of the caveat.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION

Having separated after a marriage of around five years, the Applicant, Mr Wahba (‘the Father’) and the Respondent, Ms Noori (‘the Mother’) ask the Court to determine some specific parenting issues and to determine the Father’s application for property settlement.
The parties largely agree on parenting issues, but ask that I must determine time between the Father and X (‘the child’) on the child’s birthday and Eid al-Fitr, and the timeframe required for future mediation about other and further time after the agreed reintroduction schedule.
The financial issues in dispute relate to the alteration of assets in a pool of around $250,000, the major asset being a property purchased by the Mother at, or just after, separation (‘the Property’). The Mother submits that no orders should made with respect to property matters and that, as a result, the parties each retain the property in their own possession.
BACKGROUND
The Mother is 45 years old, was born in Country F and migrated to Australia in 2008. At final hearing, the Mother was employed as a health care worker, having completed her studies in early 2020. She has some health issues, but is able to work.
The Father is 39 years old, was also born in Country F and migrated to Australia in 2008, separately to the Mother. He has some health issues but is able to work. At the final hearing, he was unemployed. The motor vehicle he had been driving was written off in an accident in 2020, while uninsured. For most of the time since then the Father has been in Country F.
The parties commenced a relationship in late 2008 or sometime in 2009 and began cohabiting in late 2009. The parties were married under Islamic law in 2011 and were legally married in Australia in 2016 at a registry office. They separated on a final basis between January and May 2017 and divorced in 2018. There is one child of the relationship, the child, born in 2016 and currently aged 7 years.
The child has been diagnosed with Autism Spectrum Disorder (‘ASD’). He has regular treatments with specialists and requires extra care and supervision. The Mother describes his behaviour as dangerous, challenging and “erratic” at best. She says he regularly (sometimes twice daily) “explodes” with anger and throws things, slaps, bites, jumps, throws himself on the floor, hits himself and screams. His condition and her devotion to his care makes the earning of an income to support him and herself and provide accommodation very difficult. As at the time of her affidavit in February 2021, the difficulties in finding a carer to assist the Mother had led her to cease work to be available to care for the child. The Father says that for the limited time he has been able to spend with the child, he has little or no difficulty. The Father has undertaken education about the child’s ASD.
The parties separated under the one roof in about early 2017 (the Father’s version) or late 2016 (the Mother’s version), and nothing turns on the different date. The parties both moved out of the shared and rented home in mid-2017 and into separate dwellings. In about March 2017 (the Father’s version) or January 2017 (the Mother’s version), while separated under the one roof or about to be, the Father learned that the Mother had, independent of him, contracted to purchase a home intended to be for herself and the child, with substantial borrowing. Since the purchase the property has gone up in value. The Father seeks, and the Mother resists, an order pursuant to Part VIII of the Family Law Act 1975 (Cth) (‘the Act’) that he be paid a sum representing a part of the equity that the Mother now has in that home.
The Father remarried in Country F in 2019 to Ms G and they have a child, H, born in 2020. At the time of final hearing the Father, Ms G and H remain in Country F.
The parties reached agreement about almost all orders about the child on the first day of the final hearing.
The proceedings and Final Hearing
The Father commenced proceedings on 12 October 2018. This matter was listed for final hearing on three prior occasions. The first final hearing was listed for 26 February 2020, however the matter was adjourned. It was later listed before me to proceed on 16 February 2021 but was adjourned on the basis of the Father being unable to return to Australia from Country F because of the difficulty of international travel during the COVID-19 pandemic. The same reasoning validated a further adjournment of the 28 July 2021 final hearing date.
On 6 October 2020 I made an order preventing the Father from personally cross-examining the Mother pursuant to section 102NA of the Act and requested Victoria Legal Aid to provide him assistance pursuant to the family violence cross-examination scheme. The Father then filed a notice of address for service on 15 October 2020, however those solicitors withdrew in late September 2021. The matter was listed for a compliance mention on 27 September 2021 and I made a request for Victoria Legal Aid to urgently assist the Father, upon his further application. He made that application and a new solicitor filed an Notice of Address for Service on 15 October 2021, two weeks before the final hearing. The Mother has paid for her own representation in the proceedings.
The matter proceeded on 28 and 29 October 2021 via Microsoft Teams. At that time, the Father was still in Country F but was represented by counsel. On 28 October 2021 the parties requested the matter be stood down and were able to negotiate consent orders with respect to most of the parenting issues. On 29 October 2021 the matter proceeded on short submissions about some parenting issues, and cross-examination and addresses on financial matters.
The delivery of this judgment is well outside the three-month guideline for delivery of judgments of this Court. I apologise to the parties and their lawyers for the delay. In writing these reasons I have re-read the affidavits of evidence in chief and the exhibits and I have read the transcript of the proceedings. I have, assisted by that reading, a clear recollection of the demeanour of the witnesses, the evidence, the issues and the rhythm of the trial.
Documents relied upon
The Father relied upon the following documents:
·Amended Initiating Application filed 25 October 2021;
·Affidavit of the Father filed 21 October 2021;
·Financial Statement filed 21 October 2021;
·Property valuation filed 18 October 2021;
·Visitation report filed 21 February 2020;
·Affidavit of the Father filed 16 February 2020;
·Family report dated 16 January 2020.
The Mother relied upon the following documents:
·Financial Statement filed 22 October 2021;
·Property valuation filed 18 October 2021;
·Affidavit of the Mother filed 4 February 2021;
·Amended Response to Initiating Application filed 4 February 2021;
·Affidavit of the Mother filed 24 February 2020;
·Family Report dated 16 January 2020;
·Financial Statement filed 14 February 2020;
·Affidavit of the Mother filed 14 February 2020;
·Affidavit of Mr P filed 7 August 2019;
·Affidavit of Ms K filed 5 April 2019; and
·Response to Initiating Application filed 22 November 2018.
Exhibits tendered
Exhibits tendered during the Final Hearing are as follows:
·Exhibit A       Minutes of consent for parenting orders;
·Exhibit M1      Bundle of tax returns – Documents 16 - 19 of the disclosure bundle;
·Exhibit M2      Individual tax return – 30 June 2018;
·Exhibit F1      Proof of motor vehicle accident on or before early 2020.
Witnesses
Only the Father and Mother were cross-examined. The Family Report Writer, Ms L, was not cross-examined because it was unnecessary given the substantial agreement about parenting matters.
APPLICABLE LAW
Standard of proof
In these reasons, statements of fact are findings of fact. Findings are made on the balance of probability. I apply section 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) which states as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject-matter of the proceeding; and
(c)       the gravity of the matters alleged.
Credit of the parties and reliability of the evidence
In Fox v Percy (2003) 214 CLR 118 (‘Fox v Percy’), at first instance, the rider of a horse was found to be a more reliable witness than the driver of the Kombi Van that had collided with oncoming horses and riders who were coming around the bend. The issue was upon which side of the road the collision occurred. The Court of Appeal of the Supreme Court of New South Wales had to interfere with the first instance decision where it had been incorrectly determined, by reason of the apparent reliability of the witnesses, that the collision occurred on the Kombi Van’s wrong side of the road. The Court of Appeal found the first instance decision was wrong because of the position of the braking skid marks of the Kombi Van that were in evidence. The skid marks of the Kombi Van incontrovertibly demonstrated that the Kombi Van had been on its correct side of the road at the point of collision. The High Court found that the Court of Appeal was justified in upholding the appeal because of the skid marks of the Kombi Van.
When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality of Fox & Percy observed:
[31]…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…
[Citations omitted]
I have endeavoured to rely on objectively established facts and the apparent logic of events in this case as well as the evidence and demeanour in the witness box of the parties.
I am also guided by the observations of the Full Court in Adamson & Adamson (2014) FLC 93-622:
[89]In Carlson & Fluvium [2012] FamCA 32 (“Carlson”) at [165] to [169] Kent J made the following observations concerning the making of adverse credit findings against a parent in a parenting case:
[165]As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
…
[169]Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.
[90]We agree with those observations. It follows from them that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to.

In this case, one common ground matter is that the parties intentionally misled a government authority in regards to immigration. Each puts forward justifications for misleading the authority that conflict with each other. That each has intentionally misled a government authority causes me to look very carefully at his and her evidence and to search for corroboration of controversial evidence in contemporaneous materials. Despite each having previously misled a government authority, each says I should accept his or her evidence where it conflicts with the others evidence. Each says that the other is lying about aspects of his or her evidence, including of family violence and of who sent what money to Country F and for whom or what it was intended.
I am not satisfied that each party (not counsel) have any real understanding of the nature of evidence required to demonstrate the other is lying (a serious matter) given section 140(2) of the Evidence Act, recited above.
SOME SIGNIFICANT EVENTS AND CONTROVERSIES
The parties were both born overseas in Country F. They met when the Mother moved to Australia in 2008 and they lived in shared accommodation together. Each party moved a few times into different shared accommodation, including together for small periods, and they commenced a relationship. The parties agree that cohabitation commenced in 2009. The parties were married under Islamic law in 2011 and legally in Australia in 2016.
At the time of cohabitation, the Mother was still married to her first husband, who had remained in Country F. The Mother became a permanent resident of Australia in 2015.
At the time of cohabitation, the Father was studying and working at a local business. The Father commenced working full time as a transport worker in 2010, shortly after the religious marriage.
At the time of cohabitation the Mother was studying and working night shifts as a health care worker for two different employers in the health care sector. The Mother continued to work in that role until 2020, when she became a senior health care worker. She continues to work casually in night shift work when she can.
In 2012 the parties travelled to Country F for their wedding celebration. The Father said that the event cost $15,000, paid for by his family, and that he paid $5,000 for airfares and other expenses. He said that the Mother was also gifted around $20,000 in jewellery and cash by his family.[1] The Mother says that she was never given any cash or jewellery, and that the Father’s family had given him cash and told him to give it to the Mother to buy jewellery, but he had taken that money for himself.[2] She says that the Father’s parents intended to give her $17,000 to pay for jewellery and the Father’s brother and sister intended to give her another $2,000, totalling $19,000.[3] On the evidence before me and the balance of probabilities I am not satisfied of either party’s account of these events.
[1] The Father’s affidavit filed 21 October 2021, [142] to [143].
[2] The Mother’s affidavit filed 14 February 2020, [64].
[3] TP – 99.
In late 2012 (on the Father’s evidence) or early 2013 (on the Mother’s evidence), the Father purchased a business for around $80,000. He says that he paid $35,000 from his savings and borrowed $45,000 from his brother and his business partner, Mr M.[4] The Mother says that Mr M paid $10,000 and that his brother lent him around the equivalent of $US28,500 in two transfers. The Mother says that the Father did not tell her in advance about the purchase of the business and the decision was his alone. The Father says that the Mother knew about his ambition to become a business owner but does not dispute that the decision to make the purchase was his alone. The business was not successful and the Father says it was sold in 2013 for around $60,000, with the Father receiving $40,000 after sales expenses, all of which he says were repaid to his brother and Mr M.[5] The Mother says that he never repaid Mr M or his brother.[6] On the evidence I cannot otherwise determine who paid what to whom and nothing in this decision turns on those events. An allegation is not necessarily proof of the allegation.
[4] The Father’s affidavit filed 21 October 2021, [144].
[5] The Father’s affidavit filed 21 October 2021, [146] to [147].
[6] TP – 90 to 91.
The Mother says that she helped with the business and was not paid,[7] but the Father says that she did not and could not have, given her other shift work at the time was during the business’ opening hours.[8] I am satisfied that the Father did operate a business and that in a modest way the Mother assisted when she could, but not to the extent she alleges.
[7] The Mother’s affidavit filed 14 February 2020, [60].
[8] The Father’s affidavit filed 21 October 2021, [148].
In 2013 the Father obtained accreditation to work as a transport worker and he says that he then earned about $2,800 per month.[9] In early 2015, the Father bought a motor vehicle for $30,000 and obtained a license for $20,000 annually.[10] The Mother says that he did not tell her in advance about this decision at the time. He says that from this time he worked 50 hours per week and earned around $3,000 per month. The Father says that in early 2020 (that is well after separation in 2017), he was involved in a car accident[11] where his vehicle was written off while uninsured. He says that he has not been able to work since as he travelled to Country F shortly afterward and has not been able to return to Australia. He says that the insurance had expired the week previous to the accident.[12]
[9] The Father’s affidavit filed 21 October 2021, [149] to [150].
[10] The Father’s affidavit filed 21 October 2021, [152] to [153].
[11] Exhibit F1 29 October 2021.
[12] TP – 72.
Through 2015, 2016 and 2017, the Mother made several money transfers to people in Country F, totalling around $63,000. Those transfers were attached to the Father’s affidavit filed 16 February 2020 at annexure 2. In her affidavit filed 24 February 2020, the Mother divides these payments into two categories. Firstly, $7,375 in payments to her family and secondly, $55,926 to Mr N, which was agreed at final hearing. The Mother claims that the payments to the Father’s cousin, Mr N, were at the Father’s direction and she knew nothing about them, which the Father denies. The Mother then says that these payments indicate that the Father may have used that money to purchase assets in Country F. The Father claims that the payments to Mr N were only collected by Mr N as a favour and the money was then given to Mr M, and that he does not know where the money came from or where it went.[13] The Father claims that the Mother may have property and assets in Country F, given these and other potential transfers.[14] I am not satisfied on the balance of probabilities that either party’s allegations or suspicions are accurate.
[13] TP – 79 to 80, 83 to 84.
[14] The Father’s Affidavit filed 21 October 2021, [139] to [140].
In early 2016, that is not long before separation, the parties opened their only joint bank account and both of their incomes were then deposited in that account. The Father says that this was the Mother’s suggestion as the Mother was pregnant at the time and wanted a joint account for the benefit of the child.[15] The Mother says that this was in order to provide proof to the a government agency that the parties were married in order to more easily get the Father a visa.[16] It is agreed that the Mother would transfer her income out of this account and put it in her personal account as, or soon after, it was deposited. The Mother says that she did this because she was not confident that the parties would continue to live together.[17] The Father says he was not aware of this until later and that he was solely responsible for all the family’s expenses.[18] I cannot determine what the intended purpose of the joint account was, that is if there was only one intended purpose, and I am not satisfied of that.
[15] TP – 34.
[16] TP – 34.
[17] The Mother’s affidavit filed 14 February 2020, [62].
[18] The Father’s affidavit filed 21 October 2021, [157].
The child was born in 2016 and it is common ground that the relationship deteriorated after his birth. In late 2016 or early 2017, the parties separated under one roof and agreed to live separately until the expiry of the rental lease of their accommodation in mid-2017. The Father retained the motor vehicle and license and worked that on his own account until about three years later when he had the uninsured accident.
In 2017 the Mother purchased a house in Suburb E (‘the Property’) for $335,000, including a deposit of $67,000 and stamp duty and other expenses of around $50,000. The purchase and title was in her name alone and she took out a home loan, in her own name alone, for $268,000. The Mother says that she purchased the house in anticipation of separation. She says that the funds were sourced from $19,000 of the parties’ joint savings account and her savings from over the many years of her working and saving. She says she also borrowed further funds by two loans to her. Those loans, she says, were of $28,000 or $32,000 from Mr P and of $8,000 from Ms Q. The Mother also claims that she has spent around $24,000 on upgrades to the Property. She says that she refinanced the home loan and increased the amount of the loan by $50,000 in late 2018, for which she used $40,000 to pay off her car and $10,000 on legal fees.[19]
[19] The Mother’s affidavit filed 14 February 2020, [65] to [68].
The Father claims that the Mother purchased the Property without him knowing and told him about the purchase in early 2017. The Mother says that he knew about the purchase in early 2017.[20] The Father says that in early 2017, the parties agreed he could move into the Property with her as they were trying to repair the relationship. The Mother disputes this. The Father says that their relationship quickly took a turn for the worse. It was common ground that the Father never did move into the Property and never did make any direct financial contribution to the mortgage or any other expense at or after settlement. He says, and I accept, he did help her move into the Property.[21] I cannot determine whether or not it was agreed at one point that both parties would move into the Property. Nothing turns on that in any event.
[20] The Mother’s affidavit filed 24 February 2020, [3(xix)]
[21] The Father’s affidavit filed 21 October 2021, [79] to [85].
In early 2017 the Mother withdrew part of the parties’ savings in the joint account (which was partly made up of the Father’s income), totalling around $19,000 and leaving $10,561 in the account. She used that $19,000 sum toward the purchase of the Property. The Father says that he did not know about the withdrawal or its purpose. The Mother says that she came to an agreement with the Father and his parents that she should keep the money in the joint account and to consider that as equivalent of the payment for jewellery that she had never received at the time of their wedding celebration in 2012, discussed above.[22] The Father denies this and also says the Mother took an additional $6,000 of the Father’s cash, which he also claims was spent on the purchase of the Property.[23]
[22] The Mother’s affidavit filed 14 February 2020, [64].
[23] The Father’s affidavit filed 21 October 2021, [162] to [168].
I am satisfied the Mother used $19,000 of joint savings to assist her purchase of the Property. Nothing turns on whether he knew that at the time or not. I am not satisfied she took the $6,000 cash saved by the Father. I am satisfied that at that time the Father retained the then insured motor vehicle and license and the remainder of the joint account.
The Mother claims that at the time of purchase she borrowed $28,000 or $32,000 from a Mr P, who she says was a friend of the couple, but who is closer to the Mother since separation. Mr P was not cross-examined but filed an affidavit in these proceedings on 7 August 2019, in which he claims that he lent the Mother $32,000 for the purchase of the Property. He claims she had paid off some of that $32,000 at the time he became aware of the proceedings, then owing him $12,000. He also says he lent the Mother an additional two loans of $8,000 and $5,000 each, for legal fees and household expenses during these proceedings. At the time of the filing, he claimed that she owed him a total of $25,000. He also claimed that he was intending to migrate to Country F shortly after the filing of that affidavit. The Father claims that Mr P’s evidence should not be relied upon as Mr P has not provided any documentary evidence in the form of bank statements, and that he has previously lied on a statutory declaration.[24]
[24] The Father’s affidavit filed 21 October 2021, [169] to [171].
I am satisfied the Mother did borrow at least some funds (apart from the mortgage borrowing) without involvement of the Father to assist the purchase because I am not satisfied the Mother could have otherwise raised the funds to settle the purchase. That she had to do so accords with the apparent logic of events.
I am not otherwise satisfied of who lent what to whom or on what terms. There is no suggestion or evidence the Father made any direct contribution to the purchase of the Property or to the mortgage or other loan or expense after separation. However, it is common ground that after separation the Father paid the Mother about ten instalments of $1,000. The parties have an intense factual dispute about the events surrounding these payments. The fact of the payments is not disputed but I cannot determine the circumstances of those proposals on the balance of probabilities.
In mid-2017 the Mother moved from the house they were occupying as a couple to the Property with the child. She has paid all outgoings and mortgage repayments on the property since purchase.
In mid-2017, the Father and the Mother attended informal mediation arranged by members of their community. The Mother says that they agreed that she would not withdraw her immigration sponsorship of the Father in exchange for him paying her $1000 per month (she says to compensate for a loss of a Centrelink benefit), him not claiming her assets and him ceasing to make threats against her family.[25] She says they produced a document titled “Statutory Declaration,”[26] and the first page of that document is hand written (purportedly by the Father), dated 20 June 2017 and signed by two witnesses, Mr P and Mr M. It reads:
I [the Father] promise to do these following commitments:-
1/        I will not threat [the Mother] in any scenario till my death.
2/        I have no share in any of [the Mother’s] Assets.
3/I will pay monthly $1000 to [the Mother] to look After my son [the child] till my P.R. (Permanent Ressidence)
4/        I will not Contact anyone of my wifes family members, in any circumstances
5/        I will not see him and not bother him
[25] The Mother’s affidavit filed 14 February 2020, [20].
[26] Annexure A of the Mother’s affidavit filed 14 February 2020.
The second page of that document is also handwritten, in very similar handwriting to the first page, and also contains some printed type that appears to indicate that it is a template statutory declaration. It is said to be signed by the Father and dated 20 June 2017, but not by any witnesses, and reads:
I have no Share in my Wife [the Mother’s] Assets including car, house and bank accounts under her name.
I do not owe any money to [the Mother] now.
In mid-2017, in circumstances I cannot determine on the balance of probabilities, it is clear that somehow the parties discussed financial arrangements and immigration obligations. The Mother received monthly payments of $1000 from the Father for the next 10 months, although they were received irregularly. The Father became a permanent resident in 2018 and an Australian citizen in 2020.
The Mother says the document came about because the Father had threatened to kill her and the child, and also threatened her family in Country F and demanded that she not withdraw her immigration sponsorship of him.[27] In his affidavit of 21 October 2021, the Father contests the Mother’s version of the document.[28] He says that he did not write either page. He says that he only signed the first page of the “Statutory Declaration” under duress because that the Mother threatened to deport him and threatened that he would never see the child again. He says that he did not sign the second page at all and believes it was falsified. On either parties version, other persons were present or involved in the circumstances of the document creation and those persons are not witnesses. In all the circumstances and considering the evidence and the demeanour of the witnesses I am not satisfied of the veracity of the document or of the serious allegations each make about the other regarding the document and statements to the government agency.
[27] The Mother’s affidavit filed 14 February 2020, [19].
[28] See pages 7 and 8 of 45.
The Mother moved into the Property in mid-2017 and the Father did not see the child from then until July 2017, when he saw the child for 1 hour at a mutual friend’s home. He did not see the child again after that until 26 November 2018, when interim orders were made by consent for the child to spend supervised time with the Father. In early-mid 2019, the agreed supervisor advised that she could no longer supervise the Father’s time with the child, and so interim orders were made on 8 July 2019 for the Father’s time to be supervised at a private child contact service. In 2019, the child was diagnosed with ASD.
In early 2018, the parties applied for intervention orders against each other. They were later resolved by way of mutual undertakings in late 2019. In late 2019, the Mother contacted the Father’s cousin, Mr N, seeking information on possible investment properties and/or bank accounts in Country F belonging to the Father. The Father contacted the police in late 2019 and made a statement to the effect that she had breached an intervention order. She was charged with breaching an intervention order in early 2020, pleaded guilty, and had to pay $500 to a court fund. The Mother claims that the Father’s statement to the police suggests he does have property in Country F. The Mother claims the complaint to the police was made for the purpose of preventing her making inquiries of his property in Country F. The Mother did plead guilty to the offence. On the evidence I have I do not accept that the whole process, in another court, was a sham simply to prevent the Mother making inquiries as to any further property in Country F.
The Father remarried in Country F in 2019 and throughout 2019 regularly travelled between Australia and Country F to visit his wife. In 2020, the Father left Australia and travelled to Country F, just as the government announced the closure of the borders due to the COVID-19 pandemic. The Father claimed that his wife was pregnant at the time and he believed she needed his support. That child, H, was born in 2020. When he left, he had a ticket to return some months later. The Father had not returned from Country F at the time of the final hearing, but indicated that he wished to return to Australia with his wife and H as soon as restrictions permitted. I accept that evidence.
By the Mother’s own hard work and determination she has been able to study and qualify as a health care worker after separation and while caring for the child. That hard work, including shift work, has meant she has been able to service the substantial borrowing on the home she purchased.
PARENTING
Family Law Act provisions
In deciding what particular parenting orders to make I regard the best interests of the children as the paramount consideration under section 60CC the Act. I must consider the matters described in the Act as primary considerations and additional considerations. I apply and take into account the whole of Part VII of the Act. Sections 60CA, 60CC read as follows:
60CA:Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
…
60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)       the nature of the relationship of the child with:
(i)        each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)      to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)        either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)       the capacity of:
(i)        each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)        the nature of the order;
(ii)       the circumstances in which the order was made;
(iii)      any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)       any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)      any other fact or circumstance that the court thinks is relevant.
The issues in dispute

The parties have come to consent about general parenting arrangements. The issues in dispute about parenting are limited but of considerable importance to the parties.
At the beginning of day two, the Mother provided to the court a minute of proposed parenting orders. That minute read as follows:
1.        That all previous parenting orders be discharged.
2.        That the child … live with the Mother.
3.        That the Mother have sole parental responsibility for the said child.
4.        That the Father spend time and communicate with the child as follows:-
(a) Once a fortnight for up to two (2) hours during the day as supervised by the Family Contact Centre … at such times nominated by the Family Contact Centre, at the Father’s expense, if any
(b)That each party do forthwith all things necessary to enrol in [the Family Contact Centre] and upon such enrolment, and upon the Father returning to Australia then time take place at such times as can be accommodated by [the Family Contact Centre] for the maximum period available;
(c) Thereafter unsupervised for a period of 2 hours each Sunday for 3 months ;
(d) thereafter unsupervised for a period of 3 hours each Sunday for 3 months
(e) thereafter 4 hours each Sunday
(f) as otherwise agreed between the parties.
5. That in January 2024 the parties attend FDRS or other mediation to discuss other and further time the Father spends with the child.
6.That for the purposes of all time, changeover take place at [the Family Contact Centre] or other agreed public location.
7.That upon the cessation of supervised time, the Father spend time and communicate with the child for special occasions as follows:
(a)       for 3 hours as agreed on the Sunday closest to the child’s birthday
(b)       For 4 hours form 10-2 on Father’s Day
(c)       From 10-2 on the third day of Eid.
(d)       for 3 hours as agreed on the Father’s Birthday
8.In the event the Father goes overseas for longer than 2 months, then the first 4 time spend visits after his return be supervised by an agreed supervisor, at the Father’s expense, if any.
9.That the Mother keep the Father updated as to any serious injury affecting the child and advise him of the name of any medical practitioner or allied health practitioner the child attends upon from time to time and the Father be authorised to contact and the Father be authorised to contact and obtain information from such persons.
10.That in relation to any other medical treatment the Mother will provide the Father with any written reports, letters and any other documents which are provided to the parent by the medical and/or health practitioner and the Father be authorised to contact and obtain information from such persons.
11.Any medication prescribed to the child is to be passed to the other parent at changeover.
12.The Father be at liberty to attend PTA meetings at a separate time from the Mother.
13The Father be authorised to receive any school notices, photographs and like material, at his expense, if any.
14. Each parent shall ensure that they communicate via a parenting App which they use for matters relating to the child and futter that each advise the other and keep them informed of their residential addresses and forthwith advise the other of any change within 24 hours.
15. Each party their servants and agents be and are hereby restrained by injunction from denigrating, criticising or speaking disparagingly of the other within the hearing of the child or allowing any other person to do so.
16. Usual 65 DA(2) and 62B particulars to apply.
17. Remove all children’s matters from the list of cases awaiting hearing.
[Emphasis added to highlight those parts of the minute that were disputed]
The parties indicated that the Father consented to those proposed orders, except for proposed orders 5, 7(a) and 7(c), italicised above.
The parties submitted that the provisions of proposed order 4 are appropriate to reintroduce the child to the Father. The Court was also told that plans had been made with a family contact centre that, due to the child’s special needs, they would accommodate a longer period of supervised contact than they normally would. It was agreed that the Father was likely to get to Australia in or around early 2022, and so the time at 4(e) would likely commence in early 2023.
As to proposed order 5, the parties agree that after some time provided for in proposed order 4(e), further dispute resolution would be appropriate. The Mother argues that the parties should attend dispute resolution in January 2024 and the Father says that should be in the middle of 2023, which I note is slightly later than the time this judgment is being delivered.
The Mother argued that the time at 4(e) should run for around 12 months before further dispute resolution would be appropriate. She argued this was because:
·The special needs of the child require slow movement;
·The Father left Australia 24 hours after the government announced the borders were closing due to COVID-19 lockdowns and effectively chose to leave rather than maintain a relationship with the child;
·If the Father leaves Australia again, the provisions of proposed order 8 will apply and time will be interrupted; and
·At the time of the final hearing the child had little or no relationship with the Father and did not even remember him.
The Father said, and I accept, that he left Australia quickly in 2020 because he had a pregnant partner about to give birth in Country F and his understanding was that she needed his support. I do not join with the Mother in criticising him in those circumstances.
The Father argued that the time at 4(e) should run for around 6 months before further dispute resolution would be appropriate, being in mid-2023. The Father indicated that at the time of the end of order 4(d), he believed that he would be seeking additional time, possibly including extended time with the child leading to alternate weekends and time in school holidays. His main argument was that I should take into account the nature of the relationship that the child had previously enjoyed with his father and that the Father wanted to rebuild that relationship.
As to proposed order 7(a), the Father seeks three hours of time with the child on his birthday. The Mother’s proposed order outlined that the child’s time with the Father time should be on the Sunday closest to the child’s birthday. The Father argued that the reality would be that, under the proposed orders, the Father would be spending time with the child on Sundays anyway, and so the Father would have very little or no additional time with the child. The Father said that the child would enjoy two birthday parties, one with each parent. In submissions, counsel for the Mother indicated that the Mother would support time between the Father and the child on the child’s birthday for three hours only if the birthday was on a weekend. Counsel for the Mother argued that if time was to be accommodated on a weekday it would require additional involvement of the school, the contact service for changeover, and other impracticalities.
As to proposed order 7(c), counsel for the Father explained some customs of Eid to the Court. She explained that there are two celebrations referred to as Eid; the first being commonly recognised in Australia (Eid al-Fitr), representing the end of Ramadan and the second aligning with a pilgrimage to Mecca. There was some discussion on the length of each Eid celebrations. The Father put it that the Mother’s proposed order referred to the second Eid and said that he sought time on the first Eid. His counsel said that the first Eid celebrations lasts for 24 hours only and that the Father wanted time with the child during that 24-hour period. Counsel for the Mother argued that the first Eid runs for three days. The Mother says that she travels for the first day of Eid to a friend’s house about one hour drive away every year, and so it would be impractical for the Father to spend time with the child on that day.
The Mother also argued that there is a risk that the Father will expose the child to the sacrifice of an animal if he spends time with the child on the first day of Eid, and because the child’s propensity to grab knives, he may do harm to himself. I asked the Father if he would agree not to take the child to such an event and he said that he would agree to such an undertaking. He also said that in any event his community get butchers to undertake sacrifices in Australia in proper facilities, not in backyards, and so there is no risk to the child being exposed to knives or animal bloodshed at Eid celebrations. I accept the Father’s evidence on that point because it was not contradicted and the verisimilitude of the account.
Family Report
The parties obtained a court-funded Family Report by Ms L, released on 31 January 2020. Because of the extent of matters that were agreed it is unnecessary to recite parts of the report.
A child contact service also prepared two separate visitation reports, filed on 21 February 2020. Those reports do not inform the dispute about further mediation, birthday and Eid time.
Application of the applicable law
I now turn to an application of the relevant provisions to the facts and disputes in this case.
The following headings relate to the full text of the factors set out at or under the relevant sections of the Act. I also take into account the objects described in Part VII of the Act.
Primary Considerations
Section 60CA, recited above, provides that I consider the following as the primary considerations when making parenting orders.
Benefit of the children having a meaningful relationship with both parents
In this matter, both parents agree that there is real benefit to the child in having a meaningful relationship with both parents. I find that the parents, with the assistance of experienced lawyers, have put together a schedule for reintroduction of the child to the Father that is appropriate and in the best interests of the child.
The need to protect the children from physical or psychological harm.
Neither party points to a significant risk of harm to the child in the care of the other.
The Mother raised concerns that the Father may take the child to a religious ceremony that involves a slaughter and potential exposure of the child to knives, which she claims may pose a risk to the child. The Father made a promise to the Court that he would not take the child to such an event, and I find his promise to be genuine. The Father has also completed several courses on parenting children with ASD. I do not find that there is a risk to the child in the Father’s care at Eid or at any other time.
The Father did not raise significant issues of risk of the children in the Mother’s care, however highlighted that some of the Mother’s family members use marijuana. I am not satisfied there is any risk to the child in the Mother’s care. I am satisfied the Mother cares for the child very well.
Additional Considerations
Section 60CC, recited above, provides that I consider the additional considerations when making parenting orders. I do so to the extent relevant to the remaining disputes.
Any views expressed by the child
The child is aged 7 and has ASD. He was not interviewed by the family report writer and I have no evidence of his views.
Nature of relationship of with each of the child’s parents and other persons
The Family Report noted that the child had a bond with each of the parents at the time of the interviews in January 2020. The Father shows a clear and genuine desire to re-build that bond and that relationship.
There is no evidence that supports anything other than that the child has a close and nurturing relationship with the Mother. The Father claims that the Mother unilaterally ceased the Father’s time with the child at separation and reintroduction has only been possible through Family Law proceedings. Given the events that have passed at and since separation, the resolution of that dispute does not assist or inform the matters for determination.
Extent each parent has taken or failed to participate in decisions or spend time
The Mother has taken every opportunity to participate in decisions and spend time with the child. The Father, to his credit, has shown trust and respect in the Mother’s decision-making on behalf of the child since separation.
The Mother made a claim that the Father left Australia in 2020 and “had a choice whether he was going to have more contact with his child and maintain that relationship or go to [Country F], he chose the latter.” I do not so find. I find that the Father left Australia to support his new wife and their child and was eager to return but could not given border closures. The Father shows a strong desire to spend time with the child and has consented to an appropriate reintroduction schedule.
Extent to which each fulfilled obligations to maintain the child
The Mother has fulfilled her obligations to maintain the child. Before 2020 and the pandemic‑related border closures, the Father participated in the proceedings and time with the child. The Father has not had an opportunity to do so as he has been stuck overseas with border closures and for that reason I place little weight on this factor.
Likely effect of any changes in the child’s circumstances
Both parents agree that, due to the child’s special needs, any changes should be slowly and methodically introduced.
Practical difficulty and expense
The Mother has taken the burden of all the difficulty and expense of raising the child since separation. The Father had significant practical difficulty in spending time with the child while he was stuck overseas, which should not be an issue going forward.
The Mother enjoys travelling to her friend’s house for Eid every year and says that there would be real practical difficulty in the Father spending time with the child on Eid.
Capacity to provide for the needs of the child
The Mother has shown that she has been able to provide for the child and his additional needs.
Maturity, sex, lifestyle and background (including lifestyle, culture and traditions)
The Parents were both born in Country F, a lot of their family still live in that country, and they are of the same culture and religion. The Father had a wife and a young child living in Country F at the time of the final hearing. The parties agree that the child is connected to that culture. No evidence was provided to suggest that the child is at any risk of losing his connection to that culture.
The child has ASD and both parents are aware of and able to appropriately parent him under the proposed orders.
Eid al-Fitr is an important religious and cultural event in the life of the child and both parents.
Attitude to the child and to the responsibilities of parenthood
I find that both parents have an appropriate attitude to the child and to the responsibilities of parenthood.
Any family violence and any family violence order that applies
The parties had intervention orders against each other at about the time of separation and I have no evidence of any extant intervention orders. The parents’ relationship is highly conflictual. The evidence neither proves nor disproves family violence allegations. Further, if able to be determined on the balance of probabilities, that dispute does not inform the dispute resolution (‘FDRS’), Eid and birthday time disputes.
Order that would be least likely to lead to further proceedings
Both parties press that the parenting dispute should be finalised with these proceedings. The parties’ proposed order for future dispute resolution as to further and additional time between the Father and the child indicates that they are mindful of the changing needs of the child as time goes on and of the importance of resolving future disputes without the involvement of the Court, if possible.
I note that I have no evidence that the Father is currently in Australia or, if he is not, when he will return.
Parental responsibility
In this case the parents agree that there should be an order for the Mother to have sole parental responsibility.
CONCLUSION AS TO PARENTING ARRANGEMENTS
I accept that the proposed orders by consent of the parties are in the best interests of the children.
In regard to the date or time frame for additional dispute resolution (proposed order 5), I am not satisfied the order sought by the Mother for the FDRS to be held in early 2024 is in the child’s best interests. By the delay in these reasons, the Father’s proposal has lapsed. I am satisfied that FDRS should occur as soon as practical.
In regard to time with the child on his birthday (proposed order 7(a)), I am satisfied that should be in the child’s birthday because of the importance of that event to the child and each of the parents.
In regard to time with the child at Eid al-Fitr (proposed order 7(c)), I am satisfied that the child spending a part of Eid that the Father regards as important with him is in the child’s best interests. This is because the sharing of that important cultural event, as the Father understands it, is more important than the outing for the Mother with her friends. Further, there is some disagreement as to the importance of different parts of Eid. It is in the child’s best interest to spend time with the Father on the day the Father regards as important. This is particularly so given the limited duration of the time sought. The Mother has the remainder of Eid al-Fitr with the child.
PROPERTY ALTERATIONS
The applicable law
The property orders dispute falls to be determined by application of Part VIII of the Act and in particular the provisions of sections 79, 75 and 80. The relevant parts of section 79 are as follows:
Section 79 Alteration of property interests
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
…
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the marriage; or
…
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
…
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

By section 79(4)(e), the shopping list of largely prospective factors of section 75(2), (the same factors to be considered when considering spousal maintenance), must be had regard to. The relevant parts of section 75 provide as follows:
Section 75Matters to be taken into consideration in relation to spousal maintenance
(1)In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).
(2)      The matters to be so taken into account are:
(a)       the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)        himself or herself; and
(ii)child or another person that the party has a duty to maintain; and
(e)       the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)        the property of the parties; or
(ii)       vested bankruptcy property in relation to a bankrupt party; and
…
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
…
(3)In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
(4)      In this section:
"party" means a party to the marriage concerned.
The Court has wide powers as set out as section 80 of the Act:
Section 80 General Powers of Court
(1)The court, in exercising its powers under this Part, may do any or all of the following:
(a)order payment of a lump sum, whether in one amount or by instalments;
(b)       order payment of a weekly, monthly, yearly or other periodic sum;
(ba)order that a specified transfer or settlement of property be made by way of maintenance for a party to a marriage;
(c)order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;
(d)order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;
(e)       appoint or remove trustees;
(f)order that payments be made direct to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage;
(h)make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;
(i)        impose terms and conditions;
(j)        make an order by consent;
(k)make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and
(l)subject to this Act and the applicable Rules of Court, make an order under this Part at any time before or after the making of a decree under another Part.
(2)The making of an order of a kind referred to in paragraph (1)(ba), or of any other order under this Part, in relation to the maintenance of a party to a marriage does not prevent a court from making a subsequent order in relation to the maintenance of the party.
Stanford
The Mother’s counsel relied upon the authority of the High Court of Australia case of Stanford v Stanford [2012] HCA 52; (2012) FLC 93-518(‘Stanford’) to support a submission that I should not begin from the assumption that there is a “right” of a party to have a property settlement, and that in this case it is not just and equitable for there to be a property settlement. The Father’s case is that it is just and equitable that I make final orders for a property settlement because of his contributions during the relationship.
In Stanford the majority stated some fundamental propositions about section 79 proceedings. In Stanford the essential issue was whether it was just and equitable to make any property order at all, in circumstances where the consortium vitae or marriage relationship had not broken down by way of a separation and the wife’s needs were otherwise provided for.
The Family Court of Western Australia had made an order for a property settlement that would have necessitated the sale of the former matrimonial home where the husband continued to reside. For 37 years prior to the wife moving to a nursing home, the parties had made their matrimonial home in a house registered in the husband's name. I infer that the wife made indirect contributions as contemplated by section 79(4)(c) over 37 years. The wife’s expenses in aged care accommodation were being met and she had the benefit of a sum set aside in the event she needed anything further. It was the second marriage for both of the parties.
The High Court varied the order of the Full Court and found that in the circumstances it was not just and equitable that a property settlement or property alteration order be made at all. This was so despite 37 years of marriage and contributions by the wife. Hence, section 79(4) contribution, even 37 years of it, was not to be conflated with the section 79(2) “just and equitable” requirement but should be considered separately.
Apart from the general observations about section 79, the High Court also observed that it should not be concluded that the making of an order is just and equitable only because of, or only by reference to, the matters in section 79, without a separate consideration of section 79(2). The majority observed:
[41]...The fundamental propositions that have been identified require a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interest during the continuance of the marriage.
[42]In many cases where an application is made for property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice by 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 the wife. No less importantly, the express implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship... And the assumption that any adjustment of those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4),
In Stanford the High Court did not go on to comment upon how section 79(4)  should be applied where it was just and equitable that a property alteration or settlement order be made.  Stanford was not concerned with the nuts and bolts of how section 79(4) was to be applied in the ordinary run of cases, to the extent there is such a thing.
In Stanford nondisclosure or false evidence of a party’s financial circumstances was not an issue. Stanford does not touch upon whether it is just and equitable to alter property interests in favour of the non-disclosing party or a party giving false evidence of his or her financial position.
In this case, the Father brings an application for property settlement pursuant to section 79. The Mother argues that it would not be just and equitable for the Court to make any order for a property settlement considering the law as stated in Stanford.
The Father seeks to share in part of the equity in the home the Mother purchased at or just before separation. The rising property market and the Mother servicing the substantial mortgage has transformed the tiny equity at separation into about $197,000 in equity before the alleged loan due to Mr P (due from the Mother) is considered.
The fact that an asset or the equity in an asset is acquired or arises late in a marriage or at or after separation does not ‘quarantine’ the asset or remove it from consideration. But it is a significant matter to be taken into account.
I accept both the Father and the Mother worked hard during the relationship, but contribution (even 37 years of it as in Ms. Stanford’s case) does not of itself make it just and equitable to make a property alteration or settlement order.
The focus of the Father’s life after separation shifted to his new life and wife in Country F and their baby. His energy has been devoted, properly, to advancement of that family. The Mother’s energy has been applied to the conservation of the modest assets she had at separation. The Father kept his motor vehicle and license at separation.
The Father’s case comes down to it being just and equitable to make an order because of his years of hard work and minimal asset position. I must not conflate section 79(4) contributions with the section 79(2) “just and equitable” requirement.
The equity in the Mother’s home relates directly to her substantial efforts post-separation. That home is required for her and the child.
THE PARTIES’ PROPERTY CASES
The Father’s property case
The Father seeks that the net asset pool be split on a 50/50 basis, and there be a superannuation equalisation payment in favour of the Father. He seeks that I make final orders that he receive a cash payment of $108,000 in 30 days (‘the cash payment’) and a superannuation payment of $30,000 in his favour. He seeks that in the event the Mother cannot make the cash payment, that I make orders for the sale of the Property with a sale price of not less than $495,000, and following payment of costs and expenses associated with the sale, he receive the payment referred to above and the Mother receive any funds remaining.
The Father’s main arguments and claims in favour of his property case included:
·The parties were in a substantial relationship from 2008 to 2017, being 9 years;
·That he was solely responsible for all household and living expenses during the relationship (or at times 70 to 80% of expenses);
·That he made several investments during the relationship, including the businesses;
·That the parties were at all times conducting themselves for the betterment of the two of them as a unit;
·The parties held a joint bank account from 2016 for about a year (although, he says, the Mother transferred money out of this account without his knowledge);
·That substantial funds applied by the Mother to the deposit or the purchase of the Property were saved or acquired during the relationship and hence that the Father had made a substantial direct or indirect contribution to those funds and hence the Property.
·The Mother sent money overseas without his knowledge;
·The Mother was financially controlling and abusive and that documents put in evidence by the Mother that are said to contain admissions or implied admissions by him were either not signed by him (the signature was “transposed”) or signed under “duress”;[29]
·That he paid the Mother $1,000 per month for 10 months post-separation, and he says that was to support the child;
·The Mother currently has greater financial resources and the ability to earn higher income than him;
·That he has significant future needs and additional needs to provide for his wife and their young child; and
·The debts claimed by the Mother to “friends” are not genuine.
[29] The Father’s Affidavit filed 21 October 2021, [155] – [160].
The Father’s evidence included:
23. I continued to [work] for the same owner for about 1 year. In or about 2015, I bought my own [motor vehicle] and started to operate my own [transport business]. I paid about $30,000 to purchase the [motor vehicle], including transferring it into my name. I also spent another $20,000 with respect to the annual license fee.
…
25. [The Mother] and I opened a joint bank account in early 2016. Before that time, we each operated our own bank accounts, although [the Mother] always had access to my bank account. I on the other hand never had access to [the Mother’s] bank account.
26. [The Mother] used to take my bank card when she would purchase groceries and buy other things for the family.
27. When we opened the joint bank account we did so following our legally registered marriage and in anticipation of the birth of [the child]. [The Mother] and I spoke about establishing a strong financial position before the birth of our son. [The Mother] suggested that both our salaries should be deposited into the joint bank account. I agreed and changed my bank details with [the transport company] so that my income was paid to the joint account.
28. Whilst both our salaries were deposited into the joint account, [the Mother’s] salary was transferred by her to her own separate account. My salary was used to pay all familial expenses, including rent and all other expenses.
29. I did not make any issue about [the Mother] transferring her income from the joint account to her own bank account. She always said that in her view and Islamically speaking, it was my responsibility to look after the family and that her income belonged to her solely. I did not argue and accepted her views.
30.I have never disregarded my responsibility to provide for the family, however I believe that [the Mother] was financially controlling and abusive. At no time during our relationship did I shy away from paying familial expenses, however, [the Mother] always tried to add pressure by bringing up my religious and cultural responsibility towards meeting all the familial expenses.
…
45. In or about [early] 2017 I decided that it would be best for me to leave our house rather than continue to fight and live with [the Mother’s] behaviour. I noted that our lease was ending in about [mid]-2017 and I asked [the Mother] whether she wanted to continue it or move out after that time. [The Mother] said that she would make arrangements in [mid]-2017. At that time I had no idea that [the Mother] was planning to purchase a property, or already had bought a property.
…
48. When the lease expired in [mid]-2017, I moved out. It was about [early] 2017 that I discovered that [the Mother] had in fact bought a property. She at that stage suggested that we would move together to this property. At first I was shocked to hear that [the Mother] had purchased a property without any discussion with me. I was also surprised as to how she could have come up with the deposit. However, I was happy to know that we would finally be homeowners and that [the child] would have a proper home. I was still hoping at that time that [the Mother] and I could fix our relationship and that the separation under the same roof would allow us to re-assess what we each wanted, hoping that we could re-unite and focus on [the child].
…
61. [The Mother] deposes to the circumstances in which she allegedly purchased the property. In about [early] 2017 just before final separation, [the Mother] withdrew all of the savings from our joint bank account. These savings totalled $19,000.
…
64. [The Mother] also took $6000 in cash around [early] 2017. I had saved this money at home in my bedroom draw next to my bed. I had saved this sum over a period of about 6 months.
The Father claims that the Court should make orders under section 79(2). He says that a property split is just and equitable because the money used to purchase the Property was from a “joint matrimonial fund,”[30] or money earned and saved by the Mother while he supported her. He also claimed that he had an equitable interest in the Property as his money/income, obtained dishonestly from the joint account, was used in the purchase. He says that he paid all household expenses during the relationship, or at least 70% to 80% at points, which allowed the Mother to save up her income to purchase the Property. He said that all income of a long relationship was to be presumed to be shared.
[30] The Father’s affidavit filed 21 October 2021, [94-95] and [172].
The Father argued that the Mother was controlling and abusive with his finances. He says that she was secretive with her money and he does not know what the Mother did with the money she earned. He says that she claimed that it was his responsibility to look after the family financially and that she used pressure from religious and cultural responsibilities to control his income. He also says that they contributed equally to household chores and responsibilities.
He argued that the Court must look at a just and equitable resolution despite the small pool of assets.[31]
[31] TP – 122.
The Father also claims that the Mother’s credit should be questioned given that she has lied to a government authority.[32]
[32] TP – 124.
The Father’s case is that it is just and equitable to make to make a property order because the parties both worked hard during the relationship for the betterment of the family unit. He says that the Mother unjustly took their joint savings and used it to invest in a property without his involvement and he now seeks what he considers to be his fair share of that investment.
The Father’s counsel summed up his case in clear and succinct terms in final address as follows:
MS WIENER:   Thank you, your Honour. Firstly, can I say this: this was a combination of two people who were working hard in a joint enterprise to try and build up a nest for their family. And that is, despite what my friend might say to the contrary, both parties were working hard. We readily concede, your Honour, that the respondent was working hard during the marriage as was my client, despite what my friend might say about him, you know, allegedly sneaking around and sleeping all day. That’s, in my submission, not the evidence. He worked as a [transport worker]. He worked in the [business]. He had a [motor vehicle]. He did everything he could to try and support the family. It’s unfortunate that the [business] didn’t pan out, but he picked himself up, got the [transport] licence and, again, most unfortunate that he had the accident, the car is written off and then of course he goes overseas.
…
MS WIENER:   … there’s no substance to the argument that they weren’t conducting themselves, as it were, as a joint enterprise for the betterment of the two of them, not jointly [and] severally, but for the betterment of the two of them as a unit, whilst they were together. Albeit that they had separate accounts. That’s not unusual and some people may say it’s prudent, your Honour, for various reasons. And in my submission, the only inference – the only appropriate inference your Honour can draw is that the wife in these proceedings was either able to save the deposit for the house because my client was paying many other expenses… [In] any event, your Honour, in my submission, it’s fanciful for the wife to say I’ve paid all the expenses but I’m still able to save up all this money. It just doesn’t pan out, your Honour, in my submission. And yes, your Honour – yes, it’s a small pool. Yes, [since] separation she has been making the contributions by way of mortgage and so forth.
…
MS WIENER:   … the wife maintains that she can’t borrow. That, you know, to use the emotive phrase, I will lose the house and be on the street. But the reality is she was able to refinance. She was able to get a loan and paid off her car and repaying [Mr P] from whom she had borrowed money. So it cannot be out of the question for her to again refinance and pay out my client.
…
MS WIENER:   … in my submission your Honour should make an order. In my submission it’s appropriate. It would be just and equitable to make an order. Yes, it’s a small pool but a small pool in and of itself doesn’t mean that there shouldn’t be an order. My client made contributions and those contributions should be recognised, in my submission.
HIS HONOUR:   Yes. Thank you.
MS WIENER:   And there’s simply no evidence that she can’t borrow, because she hasn’t made those inquiries.
…
HIS HONOUR:   And in terms of post-separation contribution, is it open to me to find – if I were to find it’s just and equitable to make an order, that [the Mother’s] contribution as homemaker and parent in difficult circumstances with [the child], as well as night duty, that post separation, her contribution is greater than [the Father’s]?
MS WIENER:   It is, your Honour.
…
MS WIENER: … I am instructed as to one other thing I should mention. My client has, of course, remarried and has, of course, the responsibility of a wife and a child and the child is an Australian citizen. So that is responsibilities that he has which, of course, your Honour is obliged to consider under the Act.
The Mother’s property case

The Mother seeks that I dismiss the Father’s application for a property adjustment, make a declaration that the Father has no interest in the Property and otherwise an order that the Father remove the caveat he placed over the property.
In the event that I do make a property settlement order pursuant to section 79 and find that requires a payment from the Mother to the Father, the Mother’s counsel argued that such payment should be made by way of a superannuation transfer instead of a cash payment so that the Mother is able to retain the Property.[33]
[33] TP-119.
The Mother argues that it is not just and equitable to make a property adjustment order under section 79 because they kept separate finances. While the Father argues that the Mother was secretive with her finances, the Mother claims that this was because their finances were kept separate. She relies on Stanford and her arguments include:
·That the parties kept separate bank accounts until 2016 (shortly before separation), when they opened a joint account (to provide evidence to obtain a visa);
·The parties had, at various points, agreements to share separate expenses, for example, “he paid the rent and she paid the bills”;
·The Father did not include the Mother in his financial affairs, including purchasing a business and a motor vehicle and license;
·The Mother never trusted the Father with any of her money; and
·The Mother did not include the Father as a beneficiary of her life insurance.[34]
[34] TP - 106
The Mother argues that the major asset in dispute, the Property, was purchased by her alone and it was never intended to be a joint asset. The reasons she put forward for this argument include:
·She did not consult the Father about the purchase;
·She did not include him on the title;
·She used $67,000 of her own funds to purchase the Property and took out a mortgage for the remaining $280,000, plus duties and costs in her own name;
·She says she purchased the Property for herself to live in with the child;
·The Father never lived in the Property;
·The Father made no direct financial contributions to the Property; and
·The Father signed a “Statutory Declaration” saying he has no interest in any of the Mother’s assets, including the Property (although she concedes that has no binding effect on the Court).
Counsel for the Mother pointed to the case of Paxton & Paxton [2016] FCCA 1689 and said that the Court must examine the contributions of each party. He drew comparisons and said that the Mother’s contributions were “unmatched… in any way, shape or form.” Her arguments included:
·Her financial contributions were superior to those of the Father;
·Her household contributions were much higher as she took on more of a burden for taking care of the child, who has a significant disability;
·The Father’s evidence jumps around from claiming the parties had a shared financial contribution arrangement to claiming he paid 70% or 80% of household expenses;
·The Father was unemployed and not earning income for nearly nine months from 2012 to 2013;[35]
·The Father wasted his money on failed businesses and the uninsured written-off motor vehicle;
·The Father would sleep all day and never did any housework or chores;[36] and
·The Father had or may have had assets overseas, including a bank account and property,[37] which he has been secretive about at best and actively blocked the Mother from finding out about at worst, but in any event had failed to disclose.
[35] TP – 108.
[36] TP – 108.
[37] The Mother’s affidavit of 14 February 2020, [72].
The Father denied the above points, and says that he did not have and does not have any property or assets in Country F, Australia or anywhere else. I am not persuaded that he does. I do not find on the balance of probabilities that either party has any undisclosed assets overseas.
The Mother says that the Father could not have contributed equally to household expenses or to the savings that she applied to the Property. The Mother claimed that the Father did not work very hard in any of his jobs, took regular holidays and only worked as a transport worker four days per week.[38] She pointed to the Father’s tax returns from financial year ending (‘FYE’) 2014 to FYE 2016, where the Father claimed that he earned between $9,000 and $19,610, and said that he could not have been able to contribute financially at those times. The Father conceded that he “wasn’t making money at that time,” but said that his family overseas would give them money,[39] and that his tax returns were low because they accounted for the payment of his motor vehicle and his license fee.[40] He also said that his brother assisted with the purchase of the motor vehicle.[41] The Mother claims that his family had not been financially supporting him, except for assistance with investment into the business.[42] I do not accept the Mother’s many criticisms of the Father.
[38] TP – 108.
[39] TP – 40 to 41.
[40] TP – 75 to 76.
[41] TP – 76.
[42] The Mother’s affidavit of 14 February 2020, [73].
The Father also made arguments that the Mother could not have paid all household expenses and made the amount of savings that she did during that same period. In cross-examination it was put to the Mother that her tax returns indicated that she earned between $9,000 to $36,000 per year in the FYE 2014 to 2018.[43] I raised with counsel for the Father that the tax returns also indicated that the Mother was salary sacrificing and so her notices of assessments do not reflect her actual income. The Mother’s counsel tendered exhibit M1 to reflect the actual income of the Mother, being the tax-free fringe benefits components of the Mother’s tax returns from FYE 2014 to FYE 2017 slowly a much greater income. I accept that evidence.
[43] TP – 92 to 94.
The Mother annexed to her affidavit filed 24 February 2020 an “affidavit” purported to be written and signed by Mr M, the Father’s business partner. In that “affidavit,” Mr M claims that the Father has no share in the Property, that the Father never gave the Mother the family’s jewellery money and it was agreed that the money in the joint bank account was given to the Mother by the Father and the Father’s family. He also claims that that the Father owns two apartments in Country F purchased in late 2017. He lastly claims that he was his business partner with the business, and that he invested $15,000 in that endeavour that was never repaid. This annexure is hearsay. Mr M was not available for cross-examination. I do not place any weight on that document or the assertions in it in the property proceedings.
The Mother claims that, in any event and in effect, a settlement had already been completed at separation and no further orders were required. The Father’s investment in a motor vehicle had failed by final hearing, she said, was effectively not her fault. The increased equity in the Property, she said, had nothing to do with him. I accept that proposition.
The Mother’s evidence included:
60. I assisted with the [business]. I recall that I was there almost every day [working]. I was not paid a wage for this work. I do not know the financial details regarding the sale of the [business] nor what [the Father] did with any proceeds he received.
61. [The Father] and I did not combine our income, nor did we have a joint bank account until [early] 2016 (as deposed to later in this Affidavit). Both of us treated our income as if it was ours alone and we were not accountable to the other for how it was used. The arrangement we had at the commencement of cohabitation was that we paid the rent equally, but otherwise my income was used for house expenses including food, groceries and furnishings. By about the year 2015, [the Father] commenced paying all of our rent. I continued to pay our food, groceries, utilities and the like.
62. In [early] 2016, we opened a joint account. This was a requirement to enable [the Father] to obtain a visa. Even though we had a joint account, I maintained my own savings account and by [early] 2016 when we opened the joint account, I recall I had savings in rny savings account of $45,000.00, This was the entirety of my accumulated savings from all sources from the time I arrived in Australia. From about the time of [the child’s] birth, I was not confident that [the Father] and I would continue living together. As a result, even though my wage was paid into the joint account, I immediately withdrew it. Later I stopped my wage being paid into this account.
63. By [late] 2016, the balance in my savings account had risen to $65,000.00. I had continued to receive income from [early] 2016 together with maternity leave and of course the baby payment from Centrelink and other Centrelink payments.
64.… In [late] 2016, [the Father] told me I had to move out of our house and in [early] 2017, he told me to take the sum of $19,000.00 from the joint account and I did so.
65. In [early] 2017, I signed a contract to buy [the Property]. This was a property that I had sought myself without any input whatsoever from [the Father]. I intended the home to be for [the child] and me. [The Father] did not help me look for the home and did not contribute to the purchase price.
66. At the time I purchased the home, I had $117,411.00 in my savings account. I had borrowed $28,000.00 from my friend [Mr P] and $8,000.00 from my friend [Ms Q] to help me qualify for a loan. This money was deposited into my savings account as was the $19,000.00 referred to in paragraph 63.
The Mother says that at the time that the parties opened their joint account, she had around $45,000 in savings, and that in late 2016 she had around $65,000,[44] which had grown over that time due to her careful saving. I accept this evidence.
[44] The Mother’s affidavit of 14 February 2020, [62] – [63].
It is clear enough that each party transferred money overseas and received some money from overseas independent of the other. Each relies on the fact of a transfer that the other made (and bank records show they were) as demonstrating that each had and has undisclosed property overseas. Each justifies those transactions. Each says “my transfers” overseas and transfers to “me” were not deceitful or suspicious but the transfers by or to the other were so. I take into account the contemporaneous records, the apparent logic of events and the parties demeanour when giving evidence justifying their allegations against the other and rebutting the assertions against them. I am satisfied that each believes the other has, or at least had, sent or kept money or property oversees. I must be satisfied that the sending of money oversees was not for the purposes and in the circumstances that each asserts and be satisfied on the balance of probabilities. It is not enough that it is possible that money sent overseas or received from overseas was for purposes, or in circumstances, different to what the party says.
Taking account of all of the evidence and the parties’ demeanour in evidence, I do not accept on the balance of probabilities the Mother’s suspicions or assertions that the Father had and/or has undisclosed property overseas. Taking account of all of the evidence and the parties’ demeanour in evidence, I do not accept on the balance of probabilities the Father’s suspicions or assertions that the Mother had and/or has undisclosed property overseas.
One controversy is whether the Mother borrowed $28,000 or $32,000 from Mr P to assist purchase the Property. Mr P has affirmed an affidavit asserting that was so and that the Mother still owed him $20,000 or $25,000. Mr P was not cross examined but the Mother relied on his affidavit. At [66] of his affidavit filed 16 February 2020, the Father alleges that Mr P had knowingly made a false statutory declaration about the parties’ relationship on the same day as the Mother had knowingly made a false statutory declaration about the parties’ relationship. In her affidavit of 24 February 2020 the Mother responded to that paragraph but did not dispute that Mr P had made a false statutory declaration on the day alleged. I am satisfied that the statutory declaration was made and at least was incorrect. The Father’s allegation about Mr P was made years before the final hearing and no further evidence about that has been provided from Mr P. Nonetheless, Mr P was not cross-examined and I am not aware that it has been put to Mr P that he did knowingly make a false declaration. Having not heard his side of the story I cannot find that he knowingly made a false declaration.
Nonetheless, when it is not disputed between the parties that the purported declaration was not factually correct and that each of the parties have knowingly made false statements about the same matter (and the Mother’s false statement was made on the same day), albeit with different explanations, I am not satisfied that Mr P’s assertions in his affidavit are reliable. I place no weight on Mr P’s affidavit in all the circumstances.
Property available to the parties at separation
On the evidence I am satisfied that at or about the time of separation the parties had around or about $84,000 in assets plus the Father’s motor vehicle and licence that had earlier together cost about $50,000, plus around $10,000 left in the joint account. The Mother had about $65,000 in savings[45], and the $19,000 taken from the joint account, a total of about $84,000[46]. I am not satisfied that the Mother did or did not take the Father’s cash savings of $6,000 or that the Father did or did not retain that sum. Counsel for the Father said that the situation at separation was relevant but that I must look at the situation as at the final hearing and I accept that is so.[47]
[45] Affidavit filed 14 Feb 2020 at [63]
[46] Not a total of “$50,000 plus stamp duty and transfer costs” as the Mother’s counsel submitted in final address
[47] TP – 123.
The motor vehicle, in otherwise good condition with high kilometres, was in a collision in or around early 2020, (that is about three years after separation) and as a result was “written off”. The Father asserts, and it was not contested that the insurance had run out a week earlier.
I turned the Mother’s counsel to the matter of Browne v Green (1999) FLC92-873, where the Full Court dealt with the issue of whether the Court should take account of unsuccessful ventures as only one party’s responsibility. The Full Court determined the Court should not usually do so. If the Father’s ventures had been successful, it is likely that the Mother would want to include them in the asset pool. Counsel for the Mother submitted that, at the time of separation, the transport business was successful.
The Mother raised the case of Clauson & Clauson (1995) FLC 92-595 and submitted that the Court must look at the “reality of the situation.” She put that the reality is that she has about $190,000 in equity in the property, and minus the amount she owes that comes to $140,000 or $150,000. She said that given the child’s needs and the other realities of her life, the pool is small in a dollar amount and that dollar amount should be taken into account.
The Mother’s counsel submits that, in the event I do make an order pursuant to section 79, I have to assess the greater financial and homemaking contribution of the Mother, including as the main parent in the post-separation period and having received no child support. She says that if I find it just and equitable to make an order, contributions should be assessed as 100% in her favour.
She also says that the Father did not contribute to any childcare. The Father says that he took one week off work before they decided together that he should keep working, and that his work hours did not line up with the child’s sleeping arrangements. It is not disputed the Mother has solely cared for the child year after year after year.
Section 79(2) – whether it is just and equitable to make property orders
I now turn to section 79(2), recited above, and whether it is just and equitable to make property orders in this case. The Mother argues that it is not and relies upon the High Court in Stanford, discussed above. The Father argues that it is just and equitable to make property orders.
I have outlined the reasons the Mother says it is not just and equitable for the Court to make property orders above under the heading “the Mother’s property case.” In summary, she says that it is not just and equitable for the Father to have any part of the equity she has earned through her own hard work, without the support of the Father at all.
I am asked in these proceedings to make findings on very little documentary evidence and a lot of controversial evidence. The Mother claims that the Father sent money overseas and may have property in Country F. The Father claims that the Mother effectively stole $25,000 from him to purchase the Property. Both parties claim they were solely or largely responsible for the household expenses, and yet both parties admit that at times each paid different expenses. It is common ground that the parties did not have a joint bank account until 2016 and they separated in early 2017. They dispute why that was.
The financial life of the Father was separate to that of the Mother. The Mother’s life of studying and working in paid employment, including shift work, and careful saving of her wages, was separate to that of the Father.
After separation, back in 2017, the Mother’s financial life was separate to the Father. Since separation she has been solely responsible for the substantial mortgage borrowings from the bank (the borrowing is in her sole name) and the raising of the other funds to settle the purchase of the Property. She alone has improved the Property and paid rates and regular substantial (relative to her income) mortgage payments. She raised the parties’ child alone, notwithstanding the Father’s desire to be more involved with his son, and did so without child support. As it turns out the Melbourne property market rose and as a result of that rise there is a now significantly more equity in the property than at separation. The Mother bore the risk of the property market falling and having her original modest equity reduced or wiped out. The Mother bore the risk of falling behind with the mortgage payments and a forced sale.
The Father was more adventurous than the Mother in financial ventures. He undertook business ventures in his sole name and separately to the Mother. The financing of the business had no connection or involvement of the Mother.
I accept the Mother’s evidence that she did attend the business and assist with cleaning at least on occasions because that accords with the apparent logic of events. That is it is likely, when the relationship was intact, that the Mother did attend and when attending help out. But the business was the husbands, not a joint enterprise, there was never any accounting or discussion of the income of the business between the parties. I do not accept the Mother’s evidence that her attendance and work there was as frequent or as substantial as she asserts. So many other aspects of the financial life of the parties were separate at that time. The Mother had her own separate work at this time, including two (shift work) jobs. There was never any accounting or discussion of the Mother’s income from employment between the parties. There is no evidence of any practical support for her work from the Husband at this time. It is common ground the Mother is capable of dishonesty and I do not have any evidence independent of the parties that would corroborate the Mother’s claimed work. I do not accept her account as reliable. Further, on the one hand the Mother’s case is that the parties kept their financial lives separate, but on the other hand says that she did regular and substantial work in the business. I am not satisfied on the balance of probabilities that she did.

I accept the submissions of the Father’s counsel that both parties worked hard in the relationship. However, I am not satisfied that in this case there ever was “common use of property by the husband and the Mother”. In this case I am not satisfied that there ever was “express implicit assumptions that underpinned the existing property arrangements” that were brought to an end “by the voluntary severance of the mutuality of the marital relationship...” In this case I am not satisfied that there ever was an “assumption that any adjustment of (the parties’) interests could be effected consensually as needed or desired”[48] to be brought to an end.
[48] From [42] of Stanford
I accept that the Father did contribute, in an indirect sense, to the savings of the Mother and the $19,000 (of the $29,561 balance) taken from the joint account that were applied to the purchase of the Property by his hard work throughout most of the relationship. However, the Father had no role in the choice of which property or even knowledge that the Mother was contemplating a purchase, or of the extent of her savings. When the Father learned of the purchase the parties had separated or were on the point of separation. There was never any suggestion from either party that the purchase and/or the substantial borrowings to fund it should be a joint purchase or joint responsibility. There was never any suggestion, either before or after separation, that the Father should account to the Mother for his earnings from the transport business.
In Stanford the High Court has made clear that a contribution, even a significant contribution (Mrs Stanford made an indirect contribution over 37 years), to the others’ assets was not of itself sufficient to overcome or satisfy the section 79(2) provision 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”.
Were I to do so I would be conflating the section 79(4) contribution of the Father with the requirement to find the section 79(2) “principled reason for interfering with the existing legal and equitable interests of the parties to the marriage”[49].
[49] The italicised quotes in this part are all from Stanford at [41] – [42] recited above.
I am satisfied that the Father’s travel to Country F to support his wife in and after child birth shortly before the first wave of COVID-19 international travel restrictions and difficulties was reasonable and that he did what he could to return to Australia for the final hearing. Despite his reasonable efforts he was not able to. The final hearing was adjourned three times, and twice at his reasonable, but opposed, request. I infer that in the meantime the Property increased in value from the time of purchase.
The property pools contended for are as follows:

Assets Mother’s pool $ Father’s pool $

The Property (in M’s sole name)
Mortgage debt
Approximate Equity
495,000
(298,000)

197,000

$495,000
($298,000)

197,000

Mother’s Motor Vehicle 1 20,000 20,000

Father’s Motor Vehicle 2 2,000 $5,000

Total

Other Liabilities

Mother’s loan from Mr P ($18,000) Nil

Mother’s HECS debt ($18,077) Not included

Mother’s unpaid legal fees ($8,032) Not included

Addbacks

Refinance of mortgage in 2018 Not included $50,000

Cash transfers to Country F by M
($55,926 + $7375) Not included
$63,301

Superannuation

Mother’s Super Fund 1 $61,092

Father’s superannuation $3,886

Were I satisfied that it was just and equitable to make orders dividing property, I would not “addback” all of the Mother’s additional borrowings. She paid off her motor car with the additional borrowed funds and the car is included in the pool and it was a sensible thing to do. The balance was legal expenses and that may have been included in the pool.
Were I satisfied that it was just and equitable to make orders altering existing property interests, notwithstanding that I place no weight on Mr P’s affidavit and the difficulty with the reliability of both parties’ evidence, I would take into account that the Mother owes Mr P $18,000. I accept her evidence on that point because it accords with the apparent logic of events
I would not include her legal fees debt as I would not include the asset or benefit of the paid legal fees of that amount. I would not include her HECS debt as it is not immediately payable but payable over time if she earns over the threshold income. The rough pool is the Mother’s equity in the Property of about $182,000,[50] plus the parties’ cars and superannuation.
[50] $498,000 less $298,000 less debt of $18,000 to Mr P plus the Mother’s car = $182,000 plus the Father’s car or modest value and modest superannuation.
I am satisfied that from at least 2019 the Father’s focus and energy has been on his new life with his wife, Ms G, and their child, H. I am satisfied that since 2017 the Mother’s focus has been the parenting of the child, in difficult circumstances, and working hard in paid employment to support herself and the child and maintain the Property and service the mortgage debt on the property.
I am not satisfied that there is a principled reason for adjusting or interfering with the parties’ existing interests in their property.
Were I so satisfied I would find, as was sensibly and appropriately conceded, because of the Mother’s post separation contribution that she has made a greater contribution overall and, because she does not receive child support and has the care of the child, would be assessed as requiring a substantial (in percentage terms) section 75(2) adjustment in her favour. It is unnecessary that I determine what a payment to the Father would be. But after taking into account the Mother’s greater post separation contribution and a substantial percentage adjustment for section 75(2) factor, any just and equitable payment, would be modest and much less than the $108,000 payment and $30,000 superannuation payment split the Father seeks.
Any further consideration of the extent of that modest payment, if it was just and equitable to make an order, would be advisory or hypothetical and it would not be appropriate to so proceed.
CONCLUSION
In all those circumstances I am not persuaded it is just and equitable to make any property adjustment order. I dismiss the Father’s application for property settlement.
I accept the need for a declaration, that the Father has no interest in her property, and the need to order removal of the caveat.
The Mother sought that I order costs as well as dismissal of the Father’s application. Costs applications, where appropriate to consider them, are made after the proceedings are determined and not before. These proceedings involved children’s orders and a property application, and the proceedings were efficiently conducted by counsel for the parties. Any application for costs, if one is to be made, should be made in accordance with the rules.

I certify that the preceding one hundred and sixty-seven (167) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.
Associate:
Dated: 6 October 2023

File number(s):	MLC 11901 of 2018
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	6 October 2023
Catchwords:	FAMILY LAW – final parenting orders – special time arrangements – when parties should attend further dispute resolution – final property orders – whether any property adjustments should be made – contributions made by the parties during the relationship and post-separation – where one party had failed business ventures – where one party purchased a property at separation and has built equity – whether principled reason to alter property interests – whether just and equitable to alter property interests – application for property orders dismissed.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60CA, 60CC, 75, 79, 80
Cases cited:	Adamson & Adamson (2014) FLC 93-622 Browne v Green (1999) FLC92-873 Clauson & Clauson (1995) FLC 92-595 Fox v Percy (2003) 214 CLR 118 Paxton & Paxton [2016] FCCA 1689 Stanford v Stanford [2012] HCA 52; (2012) FLC 93-518
Division:	Division 2 Family Law
Number of paragraphs:	167
Date of hearing:	28 - 29 October 2021
Place:	Melbourne
Counsel for the Applicant:	Ms. D Wiener
Solicitor for the Applicant:	MMH Lawyers
Counsel for the Respondent:	Mr. C Arnold
Solicitor for the Respondent:	Lampe Family Lawyers

MLC 11901 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR WAHBA Applicant
AND:	MS NOORI Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	6 OCTOBER 2023

Assets	Mother’s pool $	Father’s pool $
The Property (in M’s sole name) Mortgage debt Approximate Equity	495,000 (298,000) 197,000	$495,000 ($298,000) 197,000
Mother’s Motor Vehicle 1	20,000	20,000
Father’s Motor Vehicle 2	2,000	$5,000
Total
Other Liabilities
Mother’s loan from Mr P	($18,000)	Nil
Mother’s HECS debt	($18,077)	Not included
Mother’s unpaid legal fees	($8,032)	Not included
Addbacks
Refinance of mortgage in 2018	Not included	$50,000
Cash transfers to Country F by M ($55,926 + $7375)	Not included	$63,301
Superannuation
Mother’s Super Fund 1	$61,092
Father’s superannuation	$3,886