Yanez & Yanez - [2023] FedCFamC1F 284

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Yanez & Yanez [2023] FedCFamC1F 284

File number(s): PAC 5502 of 2018

Judgment of: HANNAM J

Date of judgment: 18 April 2023

Catchwords: FAMILY LAW – UNDEFENDED HEARING – PARENTING AND PROPERTY – Where the father poses an unacceptable risk of harm to the child – Where the mother seeks orders supported by the ICL – Where orders are made for the child to spend no time with the father – Where wife seeks orders that she receive 80 per cent of the property pool – Where the wife contends several sums should be added back – Where one significant sum relates to wastage – Where orders are made that the wife receive 70 per cent of the total pool.

Legislation:
Child Support (Assessment Act) 1989 ss 116, 117, 123A

Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 79, 75(2)

Cases cited:
AJO & GRO [2005] FLC 93 – 128

Bevan & Bevan [2013] FamCAFC 116

Brandt & Brandt (1997) FLC 92-758

G & C [2006] FamCA 994

Mazorski & Albright (2007) Fam LR 518

McCall & Clark (2009) FLC 93 – 405; 41 Fam LR 483

NHC & RCH [2004] FamCA 633; (2004) FLC 93-204; (2004) 32 FAM LR 518

Pierce & Pierce [1998] FAMCA 74

Stanford v Stanford (2012) 247 CLR 108

Trevi & Trevi [2018] FamCAFC 173

Williams & Williams [2007] FamCA 313

Division: Division 1 First Instance

Number of paragraphs: 269

Date of hearing: 19 August 2022

Place: Parramatta

Counsel for the Applicant: Ms Lioumis

Solicitor for the Applicant: Coleman Greig Lawyers

Solicitor for the Respondent: Litigant in person (did not participate)

Solicitor for the Independent Children's Lawyer: Ms Dufty, Legal Aid Nsw Parramatta Family Law
ORDERS

PAC 5502 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS YANEZ

Applicant

AND:
MR YANEZ

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HANNAM J

DATE OF ORDER:

18 April 2023

THE COURT ORDERS THAT:
1.The mother shall have sole parental responsibility for the child X born 2010 (“the child”).
2.The child shall live with the mother.
3.The child shall spend no time with the father.
4.The father is restrained pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) from attending at any school the child attends from time to time.
5.Within forty-eight (48) hours of the date of these Orders, Coleman Greig Lawyers (“CGL”) pay any arrears of school fees associated with the child’s enrolment at M School from funds held in the controlled monies account.
6.On twenty-eight (28) days of the date of these Orders, CGL pay to the husband $164,039 from funds held in the controlled monies account.
7.Within forty-eight (48) hours of the date of the last mentioned order, CGL pay to the wife the balance of funds held in the controlled monies account.
8.Within forty-eight hours of the date of these Orders, CGL pay to the wife the balance of funds held in the Coleman Greig Trust account.
9.The wife is appointed trustee for the sale of the property situated at and known as F Street, Suburb D in the state of New South Wales being the whole of the land contained in folio identifier … (“the Suburb D property”).
10.For the purposes of Order 9, the Suburb D property shall vest in the wife and the wife as trustee shall do all things necessary and sign all necessary documents to sell the Suburb D property for the best price reasonably obtainable by such method of sale as she may in her sole discretion determine and upon the sale of the Suburb D property the wife as trustee shall pay the proceeds of sale in the following order and priority:
(a)In payment of agent’s commission, advertising and selling fees and legal costs of sale;
(b)In discharge of any registered mortgage encumbrance secured against the Suburb D property;
(c)In payment of any outstanding council and water rate arrears;
(d)The balance to herself or as she directs.

11.As between the husband and wife and subject to these Orders the husband and wife shall each respectively retain all interest in and entitlement to:
(a)All personal property now in his/her respective possession or control;
(b)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name;
(c)All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.

12.Subject to these Orders, the wife shall be solely responsible for all liabilities in which she has an interest, whether solely, jointly with another person or as part of an entity, both incurred prior to the date of these Orders and in future, including but not limited to all credit card debts and taxation debts and the wife hereby indemnifies and shall keep indemnified the husband in relation to these liabilities.
13.Subject to these Orders, the husband shall be solely responsible for all liabilities in which he has an interest, whether solely, jointly with another person or as part of an entity, both incurred prior to the date of these Orders and in future, including but not limited to all credit card debts and taxation debts and the husband hereby indemnifies and shall keep indemnified the wife in relation to these liabilities.
14.Pursuant to s 81 of the Act the parties intend these orders to finally determine all financial relations and issues between them and avoid further proceedings between them.
15.Each party shall doe all things necessary including providing all consents to give effect to these orders in the time periods prescribed in these Orders.
16.In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of the Court shall be appointed pursuant to s 106A of the Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
17.The parties are granted leave on seven days’ notice to the Court and to the other party to relist the matter for further Orders or Directions to implement these orders.
18.Both the husband and the wife hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
19.Within twenty-four (24) hours of the date of these Orders the wife is to inform the intended intervener that reserved judgment has been delivered and provide the intended intervener with a copy of these Orders.

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 the pseudonym Yanez & Yanez has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION

This judgment concerns an application made by a mother/wife (“the mother/wife”) for parenting orders in relation to the parties’ only child, a little girl aged 12, and property settlement orders. The mother’s application was heard by me on an undefended basis as against the father/husband (“the father/husband”) on 19 August 2022 after he failed on several occasions to engage in the proceedings, comply with filing directions and attend various court events.
At the undefended hearing in August 2022, there was again no appearance by or on behalf of the father. The mother was represented by counsel and the Independent Children’s Lawyer (“ICL”) appointed to the proceedings was also present. At the conclusion of the hearing that day I made parenting orders pending final judgment (“the August 2022 interim orders”) in terms proposed by the mother and supported by the ICL. Those orders provide for the mother to have sole parental responsibility for the child and for the child to live with her and spend no time with the father who is also restrained from attending the child’s school.
It is the mother’s case, which she has maintained throughout the proceedings, that the father poses a risk of harm to the child on the basis of his substance misuse and his limited insight into the impact this behaviour has upon the child. The question I must determine in the parenting aspect of the proceedings is whether the August 2022 interim orders should continue on a final basis having regard to the child’s best interests as the paramount consideration.
The other issue to be determined in these proceedings relates to financial matters between the parties. The wife seeks orders that will see her receive the entire balance of funds held in a trust account (being monies from the sale of the former matrimonial home ordered by the Court in 2021) and that she be appointed trustee for the sale of a property in which the parties also lived together for some years early in their relationship. The wife proposes that the net proceeds from the sale of this property be applied towards child support, and otherwise be distributed so that she receives 80 per cent of the total assets and the husband receives the balance. The question I must determine is whether this proposal represents a fair and equitable distribution of the parties’ property interests.
It is important to note here that given the matter proceeded on an undefended basis as against the husband due to his non-compliance and failure to engage in the proceedings. I have no regard to any affidavits filed by him in determining this application.
BACKGROUND
The mother who is 50 and the father who is 59 (“the parties”) were both born overseas. The mother migrated to Australia at a very young age, while the father migrated to Australia when he was a young adult.
Prior to the parties commencing a relationship, the father had a former partner with whom he shares three children all now aged in their thirties (“the child’s half-siblings”).
It is unclear exactly when the parties formed a relationship, though they began living together sometime in 2010. At that time, both of them were working on a full-time basis, the mother as a professional and the father running his own business.
When the relationship commenced the parties each had certain property interests. The wife had a 45 per cent interest in a property she purchased with her brother in 2006 (“the Suburb E property”) and this property was encumbered by a mortgage. The husband had two properties located in Sydney (“the Suburb D property” and “the Suburb L property”), and another located interstate (“the Melbourne property”). The husband owed money on at least two loans which were secured by a mortgage over two of the properties (“the Suburb D loan account” and “the Suburb L loan account”). It is unknown whether there was a third loan and associated mortgage on the Melbourne property.
Early in their relationship the parties initially lived together in the Suburb D property.
In 2010 the parties’ only child, a daughter now aged 12 (“the child”), was born.
In 2012 the parties purchased land in Sydney upon which the family home was built (“the Suburb C property”). This property was encumbered by a mortgage securing a loan (“the Suburb C loan account”).
In 2013 the Suburb L property was sold and the wife applied her share of the net proceeds of that sale of $49,000 towards the Suburb C loan account. In about mid-2014 the wife was made redundant from her employment. She received a redundancy payment of $50,353 of which she advanced $45,000 towards the Suburb C loan account.
By the end of 2014, the parties and the child had vacated the Suburb D property and moved into their new home in Suburb C. Both the Suburb D and Suburb L properties owned by the husband were then used as investment properties from which the husband received rental income for some years.
In 2015 the husband’s Melbourne property was sold for over $400,000. There is no evidence of the value of the net proceeds following sale and the wife is not aware how those funds were used by the husband.
In 2015 the parties were married. Although the mother deposes that for the most part of their marriage the parties enjoyed what she considered to be a “normal and healthy relationship”, she also makes a litany of complaints in her affidavit about the father’s conduct over the years including his conduct towards her and in his role as a parent. The mother’s concerns in this regard will be touched upon in this background and will be discussed at greater length later in these Reasons.
From about 2015 the mother alleges that the father’s mental health began to deteriorate significantly and she noticed changes in his behaviour which made her suspect that he was increasingly involving himself with the misuse of alcohol and drugs.
Between 2017 and 2018, the mother’s concerns about the father’s behaviour in this regard continued to escalate.
In 2017 the father admitted to the mother that he had “a problem with drugs” and that in particular he was using one illicit substance. In late July that same year, the mother found small amounts of that illicit substance in the father’s car which subsequently motivated her to arrange for the father to see a psychologist. According to the mother, the father attended upon this psychologist on only three occasions.
On numerous occasions throughout 2017 the father engaged in acts of family violence towards the mother. In addition to being physically aggressive, he was controlling and coercive, including about financial matters, which caused her to suffer “considerable emotional strain”. On various occasions the father was verbally abusive and denigrating towards the mother, to which the child was exposed.
In early 2018 the parties enrolled in marriage counselling and participated in three sessions before the father refused to participate any further.
By early 2018, the mother’s concerns about the father’s drug use and physically aggressive behaviour had not abated. Although she made arrangements for the father’s enrolment in a men’s drug abuse program at the time, he only attended upon this program on two occasions.
In mid-2018 the father was admitted into a rehabilitation facility (“the rehabilitation facility”) and remained there for a month. During his admission, he had little contact with the mother and child except on one occasion in mid-2018 when they visited him at the facility. At this visit the mother says the child appeared “confused and worried”. The mother otherwise deposes to receiving a letter from the father during his admission which is written in a foreign language spoken by both parties and which she annexes to her affidavit.[1] According to an English translation of that letter, also annexed to the mother’s affidavit,[2] the father conveys his remorse about his past behaviours relating to drugs and his shortcomings as a husband and parent. The father also expresses in that letter his desire to apply his learnings from the rehabilitation facility to be “a new man”.
[1] Annexure “MY-3” to the mother’s trial affidavit, pg 18.
[2] Annexure “MY-3” to the mother’s trial affidavit, pg 19.
Following his discharge from the facility in mid-2018, the father continued to attend several outpatient appointments. Although the mother says she was hopeful about the father’s progress around this time, she also remained suspicious about his behaviour and whereabouts particularly during evenings and on weekends.
The month following discharge, the mother found a copy of the father’s Discharge Summary from the rehabilitation facility and first learnt about the range of issues for which he received treatment. The Discharge Summary document records that the father presented with “poly-substance abuse and [compulsive behaviour]”[3] and records under the heading “Summary of Presenting History” the following:
[The father] reported commencing [the main illicit substance] use approx 3 years ago and describes it having a strong association with his [compulsive] behaviour. He also reported using [another illicit substance] to manage the side effects of his [main illicit substance] use. He reported no benefit from his 1:1 therapy with two specialists but has been engaged in group therapy over the past month which he has found useful.
[3] Annexure “MY-4” to the mother’s trial affidavit, pg 21.
Under a further heading in the Discharge Summary titled “Psychiatric & Medical” it is recorded that the father’s primary psychiatric diagnosis at the time (mid-2018) was “[a behavioural disorder] with mixed disturbance of emotions and conduct” and that other psychiatric conditions he presented with were “compulsive […] behaviour” and “Stimulant Use Disorder with respect to [two illicit substances]”.
The mother asserts that it became apparent to her from other documents produced on subpoena from the rehabilitation facility during the proceedings that the father had been heavily involved with drugs and utilised adult entertainment on a regular basis. She says bank records also produced on subpoena revealed bank transactions over the years which corroborate the father spending a significant amount of money on drugs and adult entertainment.
Just prior to separation, there was an incident in which the father had taken the child to a shopping centre and upon their return the child reported that the father had crashed into a barrier in the shopping centre car park. The mother deposes to being nervous about the possibility of the father driving under the influence of drugs while caring for the child. The mother continued to hold fears that the father continued to abuse substances as she did not see any positive changes in his behaviour.
A short time after becoming aware of the full extent of the father’s mental health difficulties the mother and child became increasingly distant from the father and they soon ceased engaging in activities together as a family. These circumstances, along with the mother’s continuing concerns about the father’s behaviour and functioning, precipitated the parties’ separation on 10 September 2018.
Events following the parties’ separation
Upon the parties separating in September 2018, the mother vacated the Suburb C property and moved with the child to live at a friend’s apartment. The father subsequently removed the mother’s access to his credit card and thereafter did not provide any financial support for the child.
In the two days after the parents separated in September 2018 the mother received two text messages from the father in which he wrote about his conduct relating to drugs and his compulsive practices. Both text messages are translated into English and annexed to the mother’s affidavit.[4] The general tenor of these messages is that the father either minimises his use of drugs and engagement in compulsive activities, or deflects the blame for his behaviour on the mother and issues they experienced in their relationship.
[4] Annexures “MY-5” and “MY-6” to the mother’s trial affidavit, pgs 25-32.

Despite her many qualms about the father’s behaviour and his overall treatment of her and the child, for several weeks after separation the mother continued to facilitate telephone communication between the child and the father in order for the child’s relationship with the father to be maintained. The mother also took steps to organise for the child to spend supervised time with the father including in October 2018 when she instructed her lawyer to send correspondence to the father proposing supervision arrangements but no response was ever received from him.
In late 2018 three separate requests were also made by the mother through her lawyer for the father to undertake drug testing. The father again provided no response to the mother and did not follow through with any of these requests.
The proceedings
On 19 November 2018 the mother commenced proceedings seeking parenting and property orders. Her initial proposal in summary was for the child to live with her and spend time with the father at times nominated by a contact service (“the nominated contact service”). She also sought that the father be restrained from consuming illicit substances prior to any future contact events. In relation to property the mother sought a number of financial orders including that the father transfer the Suburb C property into her sole name.
At around the time she instituted proceedings, the mother stopped sending the child to school for a couple of weeks due to fears that the father would collect the child from school and withhold her in his care. The child resumed attending school in late 2018 when at the request of the mother’s solicitor the father provided an undertaking that he would not remove the child from school grounds.
On 19 December 2018 the proceedings came before a Registrar for the first return date. At that time the father was yet to file a Response to the mother’s application and the child was not spending any time with him, though she was having some electronic communication with him. At the conclusion of that court event the parties agreed to interim orders (“the 2018 interim orders”) providing, in summary, the following:
·That the child live with the mother;
·That the child spend time with the father for four hours on Christmas Eve supervised by one of the child’s adult half-siblings;
·That the child also spend supervised time with the father at other times as may be nominated by the nominated contact service;
·That the child have electronic communication with the father each Monday, Wednesday and Friday between 6pm and 6.30pm;
·That the father subject himself to urinalysis drug testing at the request of the mother’s solicitor;
·That the father pay the mother the sum of $100,000;
·That the father be permitted to access the remaining draw down from the Suburb D loan account of approximately $31,000; and
·That the father be restrained from further encumbering the Suburb D, Suburb L and Suburb C properties.
On 24 December 2018, the child spent time with the father in the presence of the child’s half-sibling as ordered. This was the last physical contact between the child and father for about six months as the child’s supervised time with the father pursuant to the 2018 interim orders did not commence until mid-2019.
Throughout 2019 various requests were made by the mother through her solicitor for the father to undergo urinalysis drug-testing. Most requests were not complied with by the father in the time-frame specified in court orders and it would appear that at least one of the negative results produced by the father was tampered with and was inaccurate.
In February 2019 the father filed a Response to the mother’s application and sought both interim and final parenting and property orders which diametrically opposed those sought by the mother. One of the interim orders sought by the father was for a review of the Registrar’s decision to make the 2018 interim orders “by consent”. He also sought a variation to the 2018 interim orders that would, if made, have effectively seen the child spend time with him on an unsupervised basis.
In late February 2019 the mother filed an application seeking to enforce the father’s payment of $100,000 to her pursuant to the 2018 interim orders. These outstanding funds were finally paid by the father in March 2019 and a further order was made for him to pay the mother an amount representing her costs in making the enforcement application and the interest that had accrued on the monies owed.
On 14 March 2019 a Registrar made orders for the parties to attend upon a family consultant (as Court Child Experts where then known) for the purposes of the Child Responsive Program. At that court event each of the parties’ legal representatives also made submissions resisting the appointment of an ICL and the Registrar did not at that stage appoint an ICL to the proceedings.
At a further case management court event in late March 2019 the husband was directed to provide his outstanding financial disclosure to the wife and to furnish to her and the Court a completed balance sheet. These directions were made in anticipation of a hearing of the husband’s interim property application in early April 2019 which ultimately did not proceed due to his lack of readiness.
On 8 April 2019 the family was interviewed by the family consultant and in the same month the family consultant’s Memorandum to the Court containing a Child and Parents’ Issues Assessment (“CAPIA”) was released to the parties. In summary, the salient issue considered by the family consultant was the appropriate arrangements for the child to spend time with the father in light of allegations made about his drug and compulsive behaviour and the effect this conduct had on his parenting. Other allegations made by the father of the mother misusing alcohol were also a key issue that the family consultant identified in her assessment. One of the recommendations made by the family consultant was that the parents attend a post-separation parenting program in order to gain an understanding of the possible effects of their dispute on the child.
In early 2019 the father was again admitted into the rehabilitation facility and remained there for a period of three weeks. In mid-2019 he also spent about a month in a separate mental health clinic (“the mental health clinic”). When the father was discharged from this clinic in mid-2019 it was recommended that he attend upon a psychologist and enrol in an “addictive behaviour program”. It is unclear on the evidence whether the father ever complied with any of these recommendations made by the mental health clinic.
On 13 June 2019, at another court event before a Registrar, orders were made with the consent of the parties providing for the Suburb L property to be sold and that both parties be each paid $100,000 from the net proceeds of sale. It was further ordered that the balance of sale proceeds were to be deposited into an interest-bearing controlled monies account (“the controlled monies account”) until further order by the Court or agreement by the parties. The property proceedings were then adjourned to a later date in September 2019 and the parenting aspect of the dispute was listed for a First day of the Less Adversarial Trial before me at a future date.
From mid-July 2019 the child commenced spending supervised time with the father pursuant to the 2018 interim orders for two hours each alternate weekend. It is the mother’s case that these contact events did not always occur seamlessly due to the father either cancelling the time or arriving late.
The parenting proceedings came before me for the First day of Less Adversarial Trial on 14 October 2019 and I made orders appointing an ICL to the proceedings on the basis that the father’s use of illicit substances (and the impact it may have upon his parenting and the risks that may be posed to the child as a result) continued to be the most significant issue in dispute between the parties. Given that the parties had been unable to reach agreement about an effective way to monitor the father’s drug use accurately, I considered that appointing an ICL to the proceedings at this stage would greatly assist in that regard. Other orders I made on that occasion include:
·That the father participate in hair follicle drug testing;
·That the parents engage in a post-separation program as recommended by the family consultant;
·That the father provide a report from his treating psychiatrist about matters relating to his mental health including his substance misuse and the psychiatric treatment he claimed to be receiving at the time; and
·That the father file a further report from his medical practitioner in relation to health issues which he (the father) contended were relevant to the dispute.
It was also foreshadowed at the 14 October court event that an expert may be appointed to the proceedings to assess the various issues relating to the father and his parenting capacity in circumstances where the mother continued to assert that the father’s compulsive behaviour was also a relevant matter in the proceedings.
In late October 2019 the father underwent hair follicle drug-testing for the first time and returned positive results for the presence of multiple substances.
At the next court event before me on 2 December 2019 the Court was informed that the father was no longer receiving psychiatric treatment and that he had also failed to comply with orders that he file various reports and medical evidence regarding his mental health and drug use. The parties then agreed to the appointment of an expert to the proceedings and the father was directed to file the outstanding reports prior to being assessed by the expert. The father did not press his outstanding application for a variation of the child’s interim parenting arrangements at this stage.
On 9 January 2020 the parties attended a conciliation conference regarding property matters but did not reach any agreement. One significant impediment to the parties reaching resolution was that the father’s financial disclosure was still largely incomplete.
On 16 January 2020 orders were made by consent appointing a clinical and forensic psychologist as the single expert (“the expert”) to provide an opinion on various matters including the father’s substance use and alleged compulsive behaviour and other issues relating to the child’s welfare.
For several months commencing March 2020 the child’s supervised time with the father came to a halt as a result of restrictions associated with the COVID-19 pandemic which caused the contact service to suspend its operations.
On various occasions in 2020 the mother through her solicitor continued to make requests for the father to undergo drug testing which were seldom complied with by the father in accordance with orders. Each of the few drug tests the father did complete returned positive results for multiple substances.
On 17 April 2020 the father’s application for further interim orders was listed for hearing. At the conclusion of the interim hearing, the parties agreed to further interim orders (“the 2020 interim orders”) providing for the distribution of funds held in the controlled monies account. It was agreed that a sum of money be paid to Legal Aid NSW in payment of the costs of the expert report, that $8,951.25 be paid to the child’s school in payment of school fee arrears and that $15,000 remain in the controlled monies account on account of future school fees for the child and future costs to the supervision agency.
An amount of $10,000 was also to remain in the controlled monies account on account of potential future costs to effect any work on the Suburb C and Suburb D properties to ensure they were in saleable condition. The wife received the sum of $93,925 which was categorised as a partial property settlement payment. Funds were also directed to the Child Support Registrar in the amount of $7,651.82 being the outstanding child support owed by the husband and to the payment of the arrears relating to the mortgage of the Suburb D property ($587.19) and the Suburb C property ($9,590.88), all of which were categorised as partial property settlement payments to the husband. The husband was also to receive the balance of the funds held in the controlled monies account ($71,502.26) which was also categorised as partial property settlement.
The parties also agreed to orders that the Suburb C property (which the father continued to live in at the time) be sold and that the net proceeds of sale be used to extinguish the existing mortgage. They further agreed that the balance of sale proceeds from the sale of the Suburb C property be deposited into the interest-bearing controlled monies accounts held on trust jointly for the parties by the mother and father’s solicitors respectively. Orders were also made that the father be solely responsible for meeting the minimum repayments due on both the Suburb D and Suburb C home loans and that he be restrained from further encumbering these properties.
As the child’s supervised time with the father with the contact service had not resumed as at April 2020, the parties also agreed to an order that the child spend three hours with the father each alternate Saturday to be supervised by a private supervision service (“the private supervision service”) at such locations as may be nominated by the private supervision service. This interim parenting arrangement was intended to apply until such time as the original contact service resumed its operations.
The mother maintains that despite orders in place providing for interim supervised time to occur, the father did little to avail himself of it and that it was she who took active steps to ensure time with the private supervision service commenced. From May 2020 the child’s supervised time with the father took place at the Suburb C property and continued for some months though the mother deposes that certain incidents made her increasingly concerned about the father’s parental capacity. Some of the mother’s concerns in this regard include a risk that the child would be exposed to drug paraphernalia based on an incident in which the mother found “[an object] with suspicious residue on it” on the front lawn of the Suburb C property. The mother also complains about a later contact event when the father fell asleep twice during the child’s time with him.
Across two occasions in May 2020 the family was assessed by the expert and the expert’s report was released to the parties the following month. The expert’s evidence is a matter to which I will return but it suffices to say for the purposes of providing this background that the expert was mainly concerned about the significant risk posed by the father on the basis of his substance abuse and compulsive behaviour. It was the expert’s opinion that these issues impair the father’s parenting capacity and place the child at risk of harm.
From about mid-2020, the wife faced many difficulties in implementing the sale of the Suburb C property in accordance with the 2020 interim orders and says that the husband “obfuscated the sale process at almost every opportunity”. In August 2020 she filed an application seeking that a Registrar be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) (“the Act”) to do any things necessary to facilitate the sale of the Suburb C property. On 4 September 2020 a Registrar was appointed to sign necessary documents for the appointment of a real estate agent to progress the sale.
In early September 2020 the child was excited about her upcoming time with the father scheduled to take place on Father’s Day. The father cancelled this contact event and made no attempt to reschedule the child’s time with him. The mother’s affidavit is replete with other examples of the father being unreliable in relation to contact events and that he otherwise made little effort to maintain the child’s relationship with him.
On 15 September 2020 the parties were ordered to attend mediation facilitated by the ICL in an effort to resolve the parenting proceedings. They did participate in this mediation later in the year but it did not prove fruitful in resolving this aspect of their dispute.
From October 2020 the child once again began spending time with the father each alternate weekend for two hours supervised by the (original) nominated contact service.
Between mid to late 2020 correspondence was exchanged between each party’s solicitors regarding proposed repairs to the Suburb C property to ready that property for sale. The husband at one point was insistent on completing the repairs to the property himself, but ultimately it was agreed between the parties that an independent repair service would complete the relevant works. Repairs to the property commenced in late 2020 and were completed a few weeks later. Upon completion the husband indicated that he was not happy with the work done to the property despite the real estate agent confirming that the repairs were suitable and that the property should be listed for sale.
For some weeks in late 2020 the wife and the real estate agent continued to correspond with the husband through his solicitors insisting that the Suburb C property be listed for sale. As no response was ever received from the husband, on 17 December the wife filed an application seeking effectively to enforce the 2020 interim orders for the sale of the Suburb C property.
The wife’s enforcement application was listed for an interim hearing before another Family Court Judge on 1 February 2021. On that day orders were made (“the 2021 interim orders”) appointing the wife as trustee for the sale of the Suburb C property and directing that the husband vacate that property and be restrained from attending it without the wife’s consent. Other orders were made including that:
·The proceeds of sale be used to discharge the mortgage secured against the property, with the amount of arrears as at that date to be categorised as a partial property settlement for the husband;
·Each party receive $100,000 from the net proceeds of the sale of the Suburb C property after disbursements were paid and that the balance be deposited into an interest-bearing controlled monies account held on trust for the parties;
·Certain fees be paid using funds from the controlled monies including any outstanding school fees for the child, any outstanding child support owed by the father (which was to be categorised as a partial property settlement payment to the husband) and that the balance of funds in the controlled monies account be reserved for potential future costs for the wife to effect the sale of the Suburb C and Suburb D properties with such funds to be distributed to the wife if not utilised after settlement; and
·The wife have liberty to apply to be appointed as trustee for the sale of the Suburb D property on short notice given the husband’s breach of his obligations under the 2020 interim orders.
At the court event on 1 February 2021 trial directions were also made to ready both the property and parenting applications for final hearing. Prior to adjourning, the wife made an application for costs against the husband relating to the enforcement proceedings which was later considered by the Court in March 2021 upon receipt of written submissions.
On 25 March 2021 a costs order was made in favour of the wife in the sum of $25,000 to be paid by the husband within two months. The Court decided that it was appropriate that the wife have a charge against the husband’s entitlement to a distribution from the sale proceeds of the Suburb C property in the sum of $25,000 including interest, and that the husband be restrained from receiving his entitlement to any such distribution from the sale of the Suburb C property until his compliance with payment to the wife.[5]
[5] See Costs Judgment: Yanez & Yanez [2021] FamCA 148.

The husband remained averse to the sale of the Suburb C property but settlement ultimately occurred in early 2021 in accordance with a contract of sale exchanged two months earlier. Upon settlement, each party received funds in accordance with court orders.
In July 2021 a solicitor from a firm previously representing the father filed an application seeking that the firm be added as an intervener to the proceedings. The firm sought to be paid from the controlled monies account for legal costs owed by the father totalling over $80,000 which the mother opposed. Ultimately, the solicitor’s application was considered to be incapable of determination prior to final hearing and leave was subsequently given to the intended intervener to relist his application within 14 days of the substantive proceedings being completed.
At a court event known as a call-over before another Family Court Judge in August 2021, it was reiterated that the proceedings must proceed to trial with priority.
From about mid-2021 the father ceased participating in the proceedings and twice failed to comply with trial directions despite orders being made to extend the timetable for filing relevant documents. In December 2021 I ordered that the matter be determined on an undefended basis as against the father due to his repeated non-compliance with court orders. Although it was briefly contemplated whether an order should be made prohibiting cross-examination of the mother by the father pursuant so s 102NA of the Act as the mother made allegations of family violence and the father was self-represented, this order was not made as it was not anticipated that the father would participate in the final hearing.
The final hearing ultimately took place on 19 August 2022. Just prior to the final hearing the mother amended her application to seek in summary the following orders which she pressed at the final hearing:
·That the mother hold sole parental responsibility for the child and that the child live with her;
·That the child spend no time with the father;
·That the father be restrained from attending at any school at which the child attends from time to time;
·That the entire balance of funds placed in the controlled monies account following the sale of the Suburb C property, together with any interest that has accrued since that date, be distributed to the wife with some funds to be applied towards any outstanding school fees for the child;
·That the wife be appointed trustee for the sale of the Suburb D property;
·That the proceeds of the sale of the Suburb D property be applied towards discharging the existing mortgage on that property, reimbursing the wife for any sum paid towards the child’s school fees, in payment to the wife a sum equivalent to 80 per cent of the parties’ total net property and if the husband is to receive a sum greater than $140,000 that he be required to make a lump sum payment of $140,000 for child support for the child. The wife otherwise proposes that the balance of sale proceeds be given to the husband.
The final hearing
As noted earlier, when the matter was finally heard there was no appearance by or on behalf of the father. The mother was represented by counsel and the ICL also attended. The parenting proceedings were dealt with first and the mother relied on her trial affidavit dated 5 May 2021. The mother was granted leave to give oral evidence about the current circumstances for the child as the most recent events in her trial affidavit occurred at least 15 months prior to the date of hearing. The mother gave oral evidence that as at the date of the final hearing the child had not spent time or communicated with the father since April 2021.
In a brief exchange with the Court, the ICL indicated that she supported the mother’s proposal for parenting orders in its entirety. The mother was not cross-examined by the ICL.
Given the evidence regarding the father’s lack of involvement in the child’s life and risks posed by him as identified by the expert, I discharged all previous parenting orders relating to the child and made orders pending final judgment in the same terms as sought by the mother on a final basis. Those orders are that the mother hold sole parental responsibility for the child and that the child live with her and spend no time with the father who is also restrained from attending at any school which the child may attend from time to time.
The balance of the final hearing was concerned with the property settlement orders sought by the wife. There was limited oral evidence adduced by the wife and a considerable period of time was spent in submissions and interchanges between the mother’s counsel and the bench before judgment was reserved.
PARENTING
The expert’s evidence
The expert, a clinical psychologist, assessed the family in May 2020. Due to the restrictions then in place as a result of the Covid-19 pandemic, the interviews were conducted via video link. Each party was interviewed for over two hours. The expert’s interview with the child of about 30 minutes was held in person and each parent was also observed face to face with the child. The expert also administered psychometric testing to each parent and had a brief follow-up face to face interview with the mother.
In the course of her assessment and with the parties consent, the expert spoke to the child’s teacher and treating psychologist. She also spoke to the mother’s treating psychologist and although she had asked the father to provide consent to speak to his psychiatrist, that consent was not forthcoming. For the purposes of her assessment, the expert also had access to documents produced on subpoena including urinalysis results for the father and documents related to each of his admissions to rehabilitation facilities and the mental health clinic. In her report (“the expert report”) the expert sets out in great detail information from these records about the father’s history of substance misuse and treatment and compulsive behaviour and highlights inconsistencies between these records and information given by the father in the course of his assessment.
Documents produced on subpoena to which the expert had access also included the records of the supervision service and police, the Child Responsive Program Memorandum and each of the affidavits that had been filed by the parties when the assessment was conducted. The mother also provided financial records in relation to the father’s cash withdrawals and expenditure on adult entertainment and accommodation. One of the affidavits filed in the father’s case at this stage considered by the expert was an affidavit of the father’s adult daughter.
The expert’s report commences with a summary of the documentation she had viewed for the purpose of the assessment. In summary, she says that the documents suggest a largely consistent account over time by the mother and marked discrepancies in the father’s account of his compulsion and substance use history. The expert concludes given the various accounts and large discrepancies that the father’s account cannot be relied upon.
In her report the expert next set out her clinical findings based upon her assessment of each of the parties being the interviews with each of them (and comparison of information given by each of them with records where available) and assessment of the child. The expert then considered information from collateral sources such as the child’s teacher and treating psychologist, the psychometric testing results and finally observations of the child with each of the parents. The part of the expert’s report related to the foregoing matters is detailed and thorough.
It is recorded in the expert’s report that the mother when interviewed set out the circumstances in which her relationship with the father ended including the escalating threat of domestic violence. She told the expert about the progress of the child’s time with the father at the supervision service and the manner in which she came to understand the extent of the father’s substance abuse and his compulsive behaviour which was a matter about which she previously had no knowledge. The expert records that the mother’s account of the father’s behaviour in relation to his drug use appears broadly consistent with her affidavits and the collateral material.
The mother also outlined her reasons for requiring that the father’s time with the child be professionally supervised including that the father’s adult children were in denial about the impacts of the father’s drug use and/or compulsive behaviour upon the child. The mother denied the father’s assertions that she abused alcohol and the expert opined that in the absence of any “biological markers, collateral information, or explicit concern about [the child]’s safety in [the mother]’s care” there is no reason to consider her use of alcohol is problematic such that it would impair her capacity to care for the child. The expert described that the mother had serious concerns when interviewed about the child spending unsupervised time with the father due to the alleged compulsive and drug addictions, his lack of treatment and the potential that his behaviour stems from mental health problems.
When interviewed by the expert the father confirmed that the child was then spending limited supervised time with him and that he was seeking that this time increase to alternate weekends and in the longer term an equal shared care arrangement. The father essentially denied that there was any need for the child’s time with him to be supervised and expressed frustration with the court process. The expert summarised the father as providing a “sanitised” version of his history, that he denied any risk to the child and proposed the child’s time with him be unsupervised and expressed interest in an equal shared care arrangement.
The expert observed and recorded inconsistencies between some matters in the father’s account of his childhood and matters he had reported in the course of treatment he had received. The expert also recorded discrepancies between collateral material available from various sources in relation to the father’s work history, finances and criminal history. In the context of information given by the father about prescribed medication the expert opined that it is possible the father was misusing prescription medications along with other substances. The expert summarised that the father described multiple physical impairments that caused pain which could impair his functioning and possibly his capacity to care for the child.
In relation to his substance abuse history, the expert noted that the father reported differing accounts of illicit substance use to various treating professionals and to the expert at assessment. The expert noted the father’s hair follicle testing in 2019 and 2020 was positive for multiple illicit substances and noted that his account suggests that the most recent hair follicle test will also be positive. The father was adamant that the Discharge Report from the rehabilitation facility in mid-2018 misrecorded his report of using an illicit substance. He told the expert that he had obtained an amended report in which the errors were rectified but this amended report, if it existed, had not been provided to the expert. She noted however that a perusal of the notes from the rehabilitation facility does not suggest use of that illicit substance.
In relation to his rehabilitation generally, the expert noted “importantly” that the father has continued to use drugs since engaging in in-patient rehabilitation twice and the collateral information indicated that his relapse was not a “one-off event” but was indeed quite heavy use. She also observed that the father appeared to minimise/deny recent drug use to his treating psychiatrist in late 2019 by claiming that the relapse in early 2019 was a one off incident.
When assessed the father denied that his substance abuse had any impact on parenting and on the child.
The expert summarised that the father appears to have minimised his drug use in the interview, “presumably for the purpose of positive impression management” and that he has provided such markedly different accounts to various practitioners that his account of drug use cannot be relied on. She also reports that regrettably the father’s account to his psychiatrist in late 2019 was inaccurate and that it appears he has not effectively engaged in appropriate treatment. The expert records that there is considerable evidence to suggest that the father has a lengthy history of poly-substance abuse, likely dating back to 2016 and that he has used illicit substances regularly. She also returns to the possibility that the father is taking prescription medication in conjunction with illicit substances. She observes that despite the father claiming that he uses illicit substances minimally and infrequently the recent hair follicle tests are positive.
The expert goes on to observe that the father’s history of substance use suggests escalated use at times (seemingly in conjunction with heightened or compulsive behaviour), multiple attempts at stopping and multiple relapses. She opines that in the absence of any prolonged period of abstinence, together with his poor insight and inability to refrain from using substances even in the context of family law proceedings and drug testing, that the father’s prognosis remains poor. The expert opines in summary:
My view is that [the father]’s drug use has and would continue to impair his capacity to parent [the child], that his account is unreliable and so that the benefit of the doubt must go to protecting the child.
The expert records inconsistencies between the father’s report about his mental health difficulties and the collateral records about this matter. Although the father reported attending a mental health clinic in early 2019 as a result of his depression, the records suggest that he was admitted to this centre and the other facility for treatment of illicit substance addiction. The expert also notes that the father does not appear to have been frank with his treating psychiatrist with regard to his substance use or compulsive behaviours.
The father also maintained with the expert that references made in the Discharge Summary to him having a “[compulsive] addiction” were incorrect. In respect of this matter, the expert notes that there are numerous references in the Discharge Summary to “[compulsive] addiction” and behaviour that is highly suggestive of compulsive behaviour in the notes from the father’s admission to the rehabilitation facility in 2018. In this regard, the expert refers to the father disclosing that he engaged in this behaviour for several hours at a time, and spending thousands of dollars a week on adult entertainment. The expert also notes that if the mother’s account of the father’s expenditure is accurate that he spent over $70,000 on drugs and adult entertainment over an eight month period in 2019, at a time when he told the mental health clinic that he did not have a problem with compulsive behaviour.
When questioned at the interview, the father denied being an addict but informed the expert about his use of adult entertainment combined with his use of drugs. This information was entirely at odds with what the father had told the mental health clinic in early 2018 (that he did not have any problems with compulsive behaviour at the time). The father’s account of compulsive activity in the context of drug use suggested to the expert a level of heightened compulsion and activity as a result of drug use.
The father denied that his increased compulsive behaviour places the child at any risk. The expert considered that despite the father’s denial and minimisation, there is “overwhelming evidence” that he has a history of using illicit substances and engaging in prolonged, frequent and risky behaviour. She describes this as “compulsive […] behaviour” and that if the expenditure in the documents is accurate then this suggests “compulsive spending”. In summary she opines:
…his behaviour suggests a focus on his needs over [the child]’s and raises concern about his ability to focus and attend to her needs. Further, his behaviour raises concern about his access to such funds, and the priority placed on [himself] rather than parenting.
The father claimed to the expert that the parties separated because of the mother’s alcohol consumption and her subsequent aggression towards him when intoxicated. The expert summarises that the father’s account suggests high levels of conflict in the marriage which the father attributed to the mother’s excessive consumption of alcohol. She opined that the father appears to externalise the blame and to have limited capacity for self-reflection about any possible contribution to the demise of the relationship. The expert summarises the information given by the father about the child and his relationship with her as positive but opines that the father’s responses “suggested a self-focused approach to parenthood and suggest that he sees [the child] as an extension of himself and a way to meet his needs”.
It is recorded that the father denied that there was any need for supervision of the child’s time with him and said that it is hurtful to him to think that people would consider him a risk and that he became heightened, and agitated when discussing this topic. The expert summarises that the father described a self-focused approach to the court proceedings and the parenting arrangement and appears to believe that the mother and the Court are punishing him which he considers to be unfair. Overall, the expert opined that the father’s views reflect limited insight and poor understanding of the risks to the child.
When assessed the child presented to the expert as “cheerful and yet thoughtful”. The expert noted that the child “provided articulate responses”, “appeared to be very police, well-mannered and compliant” and that there was “no evidence of coaching or parental influence”.
The child reported to the expert that her mother told her that the father was “sick” and that they needed to “get away from him” and these were the reasons for separation. She described her time with the father at the contact centre in positive terms but reported upon her disappointment when there were occasions when he did not attend. She reported upon contact recommencing after the Covid-19 lockdowns and that this time occurred at the father’s home in the presence of a supervisor. The child was very excited about the prospect of being observed with the father.
The expert reports upon information concerning the child from collateral sources. The child’s teacher denied having any concerns about the child at all. The child’s psychologist had nine sessions with the child which were mainly scheduled when major changes to her life occurred. The psychologist recorded that the mother is supportive of contact between the child and the father as long as it is safe.
The expert also records the psychometric testing of each parent regarding the child and of her view that there were no issues with the validity of each parent’s responses. The expert explained that this means that both parents appeared to be open and frank when reporting on the child and their parenting.
The expert records that overall the results of formal testing suggest that both parents are quite permissive in their parenting style and while this has seemingly not had an adverse effect on the child’s behaviour to date it is worthy of intervention as it may affect the child’s behaviour as she approaches adolescence. The expert also expressed concern that the father reported feeling overwhelmed parenting the child, reflecting some difficulties in their relationship which should also be addressed.
The expert also reports on her observations of each parent and concluded that the child appeared equally relaxed and happy with both parents, transitioned with ease from one to the other and appeared to enjoy spending time playing with both parents. Both parents demonstrated appropriate parenting and there was no indication of unhealthy dynamics between the child and either parent and she appeared to have a close emotional connection to both of them.

The expert assessed each of the terms of reference which included an assessment of the father’s substance misuse and compulsive addiction and the impact of these matters upon his parenting capacity, as well as the relevant matters that the Court must consider in determining a parenting arrangement and orders that are in the child’s best interests.
The expert’s recommendations with respect to the child overall are that the child live with the mother and spend time with the father under supervision once a fortnight for up to four hours, that the father submit to hair follicle testing for the purpose of monitoring his substance misuse each alternate month for two years and that if and when the father demonstrates 12 months of abstinence from all substances that a movement to informal supervision could be considered. The expert also recommended that the father re-engage in an in-patient rehabilitation facility for treatment of poly-substance abuse and compulsive behaviour and that he follow all recommendations made by the treatment facility for a period of 24 months. The expert also made other recommendations including the engagement of both parents in parenting courses, that the mother and child continue to receive therapy, and that the parents not expose the child to any information about the legal proceedings.
The expert is an experienced and well qualified clinical psychologist. She is also the manager of the child and family division of a psychology practice. The expert has multiple tertiary qualifications. The expert has 20 years’ experience assessing and treating children and adults, using evidence-based practice and has conducted clinical and forensic assessments and provided psychological treatment for children, adults and families in the criminal and civil domains. The majority of her practice is devoted to the assessment of families in the Children’s Court, both federal family courts and the Supreme Court. She is also an educator and regularly presents at conferences and seminars. In formulating her recommendations the expert referred to research in relation to illicit substance use and compulsive behaviour and provides details of the referenced research. At the time the expert wrote her report she was conducting research into the quality of single expert reports in the Family and Federal Circuit Courts of Australia and was awarded a grant to conduct that research. As noted, in addition to her assessment interviews the expert had access to a range of collateral material including documents produced on subpoena. None of her evidence was challenged under cross-examination and having regard to all of the foregoing matters I accept her opinion and attach significant weight to it.
Events after the release of the expert’s report
As can be seen from the above summary, the expert recommended in particular that the child’s time with the father continue to be supervised for at least two years and that the father demonstrate abstinence from substance abuse and receive treatment in respect of his conditions including inpatient treatment during that period. The expert’s report dated 15 June 2020 was released to the parties a short time later.
The child has spent no time with the father since April 2021 and prior to the time ceasing altogether the father was at times inconsistent and unreliable. The father has been disengaged from the proceedings for almost two years and it must be assumed that he has not complied with the recommendations of the expert that would be a precondition for the child spending unsupervised time with him. His non-engagement in the proceedings effectively amounts to an abandonment of any application to be involved in the child’s life. These matters must also be taken into account when considering the expert’s ultimate recommendations.
As indicated, the mother seeks final orders for the child contained in her Further Amended Initiating Application filed July 2022 which provide that she have sole parental responsibility for the child, that the child live with her and spend no time with the father and that he be restrained from attending upon any school the child may attend from time to time.
PARENTING - THE LAW AND DISCUSSION
The objects of Part VII of the Act and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations: s 60CC(2)
The primary considerations (under s 60CC(2)) 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.
I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
Although the phrase “meaningful relationship” is not defined in the Act the Full Court in McCall & Clark[6] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[7] and has also agreed with the reasoning of Bennett J in G & C[8].
[6] (2009) FLC 93-405; 41 Fam LR 483.
[7] (2007) Fam LR 518.
[8] [2006] FamCA 994
Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
This phrase has not been interpreted as creating a presumption that a child does receive a benefit from having a meaningful relationship with both parents. The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic)
The Full Court continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
Although neither the mother nor the ICL contend that the child does not benefit from having a meaningful relationship with the father, the mother proposes and the ICL supports, a parenting arrangement which does not foster any relationship between the child and her father as one which is in the child’s best interests.
The father has not sought to continue spending supervised time with the child for almost two years and also has not met the preconditions recommended by the expert for a court to consider the child having unsupervised time with him. He has not participated in these proceedings and in this way no longer actively seeks orders for the child to spend any time with him or that he be otherwise involved in the child’s life in the future. In taking the foregoing actions, the father must be taken to accept that the child does not receive a benefit from having a relationship with him. In these circumstances there will be no positive benefit to be derived by the child from the Court attempting to craft orders to foster her relationship with the father.
The second of the primary considerations is directed at the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Although the mother frames her submissions about the unacceptable risk posed by the father to the child under the heading of this primary consideration, I understand the thrust of her argument to be that the risk of harm to the child posed by the father’s drug use, compulsive behaviour, lack of insight into the impact of these matters on the child and decision to cease spending time with the child amount to serious impairments in his parenting capacity rather than harm arising from abuse, or exposure to family violence.
To some extent the mother does attach weight to the need to protect the child from harm arising from neglect as a result of the father’s substance misuse if the child were to spend any unsupervised time with the father. There is some overlap between this domain of harm and the question of risk posed by the father and his impaired capacity as a parent. In my view this matter and the others which are central to the mother’s contentions are more accurately and conveniently characterised as an impairment in the father’s parenting capacity to which I will return when considering parental capacity.
Additional considerations: s 60CC(3)
Section 60CC(3) sets out additional considerations the Court must consider when determining the child’s best interests. I will deal with the relevant matters compendiously as there is significant overlap between a number of the considerations.
The most salient matter in these proceedings relates to the impact of the father’s substance misuse and compulsive behaviour on his parenting capacity. In her report, the expert describes parenting capacity as including “the ability to provide basic care, ensure safety, provide emotional warmth and stimulation, to give appropriate guidance to the child and provide stability”. She outlines that a parent must be able to identify, understand and respond to the child’s needs in a timely and reliable manner and prioritise those needs over the parent’s own needs.
The expert opines that while the father undoubtedly loves the child and has met some of her basic needs, his chronic use of substances and compulsive activity would have impaired his capacity to meet the child’s more complex needs. She goes on to say:
When intoxicated with [an illicit substance], he would have been absent (physically and/or mentally), stimulated, disinhibited, irrational, and unable to respond to [the child]. When withdrawing from [an illicit substance], he would have experienced lethargy and possibly irritability and/or impatience. Similarly, if/when he was using [other substances], he would not have been available and responsive to [the child].
The expert makes similar comments in relation to the father’s chronic compulsions which she opines “would have impaired his capacity to be present for his child and to effectively and consistently discharge parental responsibilities”. In this regard the expert identifies the father’s level of control over his compulsive activities and his capacity to adhere to appropriate boundaries to protect the child. The expert considered that those matters remain unknown as a result of the father’s lack of transparency about his problems and identifies that at least at times he appears to have had limited control over his impulses, such that it was preoccupying his thoughts and time.
The expert opines that it is evident that the father has not prioritised the child’s needs over his own desire for pleasure and has placed the child at risk of harm through association with criminal activities and has likely used a significant amount of money for illicit substances and activities that could have been used for the family. According to the expert, the father’s inability/unwillingness to manage/control his substance use or compulsive needs/behaviours despite involvement in rehabilitation, treatment programs, the Court or drug testing and his parental responsibilities, reflects a chronic problem, a lack of child-focus and an irresponsible approach to parenthood.
It is the view of the expert that there is a significant risk that the father’s substance abuse and compulsive behaviour impairs his parenting capacity and places the child at risk of harm. The expert goes on to comment about the need for the father to be honest about his past experiences and current issues and his treatment goals and prognosis, all of which at the time of writing her report were unclear. The expert concluded at that time that the level of risk to the child thus remains unknown and that the benefit of the doubt must go to protecting the child.
In my view, it is the responsibility of the father alone to approach his past experiences and current issues openly, to seek out the necessary treatment and to remain abstinent. During the period in which the expert recommended these matters are attended to, the child must be protected from the risk of harm posed by the father through the time spent with him being supervised. The father has not addressed any of the required matters so that the level of risk to the child could be clarified. In these circumstances and given his lack of engagement in the proceedings, the benefit of the doubt in favour of child protection must continue. In these proceedings and especially when the father is not pursuing any orders to foster the child’s relationship with him, the only appropriate way to ensure the child’s protection is through the orders proposed by the mother.
Although the child spoke positively about both parents when assessed and expressed clear wish to spend time during the day with the father either with or without supervision, the expert opined that given the child’s age and developmental stage she is not able to understand the risks or what is in her best interests. In these circumstances, and even more so now that there is no application for the child to spend time with the father under any arrangement, no weight should be placed on her views.
I accept the opinion of the expert that the child appears to have a close emotional connection with both parents but her mother has been, and remains, her primary attachment figure. It is most unfortunate for the child in these circumstances that the father has taken no steps to address the matters of concern in relation to the risk he poses to her and has effectively abandoned any role in her life by failing to engage in these proceedings.
The only application now under consideration will not bring about any change in the child’s circumstances especially given she has not spent time with the father for about two years. It is likely that when the father ceased engaging so that the child’s time with him ended she was adversely affected, given the observed relationship between the child and the father. However, it is also likely that any such detrimental impact was appropriately addressed by the mother about whom the expert had no concerns and as arrangements had previously been made for the child to see a psychologist.
Impairments in the father’s capacity to provide for the needs of the child have been dealt with at some length. The expert did not accept that the father had overcome his difficulties in managing his use of drugs and compulsive behaviour and opined that the father has been unable or unwilling to abstain and had rather continued to prioritise his own needs and desires over the needs of the child.
The father’s incapacity in this regard is to be contrasted with the mother’s demonstrated capacity to provide for the child’s needs throughout her entire life. I accept the opinion of the expert that the mother has demonstrated a child-focused and appropriate attitude to the child and parenthood in stark contrast to the immature, irresponsible and self-focused attitude that the father has towards the child and the responsibilities of parenthood.
Conclusion
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
The presumption of equal shared parental responsibility is easily rebutted in this case where only one parent is pursuing parenting orders and seeks involvement in the child’s life including through the exercise of parental responsibility. In any event, all of the foregoing matters and the recommendation of the expert indicate that it is undoubtedly in the child’s best interests for the mother to exercise sole parental responsibility for her.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order I will make must mean that the mother will have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the father will have none of the duties, powers, responsibilities and authority with respect to the child.
There is only one parent participating and seeking parenting orders in relation to the child. Having regard to this matter and to each of the foregoing best interest considerations, I am satisfied that the orders proposed by the mother and supported by the ICL are in the child’s best interests. Accordingly it is proper that I make those orders set out at the forefront of these Reasons.
PROPERTY SETTLEMENT APPLICATION
It is the wife’s contention that she is entitled to 80 per cent of the parties’ property interests. Curiously, it was confirmed in oral submissions made on her behalf that if orders are made as she proposes her share of the parties’ total property interests will be 72 per cent and the husband will receive a 28 per cent share. The terms of the orders that are sought by the wife will be revisited after the merits of her application are considered.
THE LAW & DISCUSSION

In 2015 the husband sold the Melbourne property for over $400,000. The wife deposes that she is not aware of the net proceeds of sale or how the funds were used.
In summary, I am satisfied that although the husband began utilising significant funds for his own purposes toward the end of the relationship, for at least around five years he made a significant contribution to the family finances. Properties he owned were utilised to secure a loan for the family home, and the income from his business and possibly his investment properties was applied to the financial advancement of the family and in reducing the various loan accounts. On the wife’s own account the husband worked hard and his business was successful.
The wife also made a valuable financial contribution to the parties’ property interests through the application of her income for a number of years to family and household expenses and the home loan account. She also made lump sum payments totalling almost $100,000 from her portion of the sale proceeds of her property and her redundancy payment.
During the relationship the wife was the primary parent and home maker. The husband worked approximately 12 hours per day, six days a week and provided a limited contribution as a homemaker and in parenting the child. The wife as the primary homemaker was responsible for most tasks including cleaning, shopping, cooking, ironing, laundry and general property maintenance.
In 2015 the paternal grandmother resided with the family while she was recovering from a medical procedure and the wife assisted her during this time.
In advancing an argument that the husband made a “negative contribution” to the parties’ financial position including during the period prior to separation the wife attaches significant weight to the fact that throughout the relationship the husband expended significant sums of money on his drug and compulsions, though she was not aware of this at the time. The wife relies up a table of expenditure[24] pursuant to s 50 of the Evidence Act (1998) Cth which summarises her contention regarding the husband’s spending throughout this time. This table shows that between 2010 until 2018 the husband withdrew approximately $393,960 from ATMs and spent $65,305.61 using his credit card on adult entertainment. The husband often made numerous payments on the same day and by mid-2018, he was in a pattern of utilising adult entertainment almost every day. The expenditure through cash withdrawals and credit card payments is in addition to the depletion of the Suburb L loan account which has already been added back as an asset in the hands of the husband.
[24] Exhibit 4
The wife contends that in addition to a starting point of equal initial contributions, a further 10 per cent adjustment should be made in her favour to take into account the financial and non‑financial contributions of the parties throughout the relationship including the “negative contribution” just described. For the reasons given, I am of the view that the husband’s initial contribution was higher than the wife’s and I also accept her submission as to her much greater non-financial contribution to the parties’ property interests and the welfare of the family.
I also accept submissions advanced on behalf of the wife as to the appalling wastage of the husband in order to indulge in his own proclivities especially towards the end of the marriage. This expenditure by the husband meant that the funds available for him to contribute to the parties’ property and family interests were significantly less than if he had not indulged in such expenditure for his own purposes. While I also agree that an adjustment must be made in the wife’s favour to account for these matters, the husband’s financial contribution cannot be disregarded. Doing the best I can on the available information I consider it appropriate to assess the contributions of each party prior to separation as roughly equal.
Contributions following separation
Following separation the wife moved together with the child to live with a friend for a short time and then lived in rented premises. Following separation the husband remained living in the parties’ jointly owned Suburb C property for two and a half years and during this time also received rental income from the Suburb D property. The wife is unaware of the amount of rental income earned by the husband during this time or how it was applied but it is clear that the outstanding loan amount on this property increased significantly over this time. Once the Suburb C property was sold, the husband moved to live in the Suburb D property. In summary the husband has had the benefit of living in the matrimonial property for the entire period following separation of almost five years while the wife has been required to house herself and assume the joint financial responsibly for the parties’ child throughout the same period.
Despite having the far superior earning capacity, the husband has provided no financial support for the child following separation. A Child Support Assessment has been in place for the family since October 2018 but the husband has not made any payments to the Child Support Agency since this time except for the two payments of significant arears in 2020 by agreement with the wife and pursuant to orders. Also pursuant to orders, both the husband and wife have contributed to the child’s schooling fees. The husband has otherwise made no contribution to the child and the wife has been solely responsible for meeting the costs of the child’s day to day care including her participation in extracurricular activities.
On 17 April 2020 orders were made for the sale of the Suburb C property. The husband was also required by orders made on that day to be solely responsible for meeting the minimum repayments on the Suburb C loan account. He did not meet his responsibilities to do so and the arrears that were required to be paid have already been taken into account as added back notional property. It is also apparent that the husband did not make financial contributions through the meeting of other financial responsibilities as he had done prior to separation. This can be seen in the manner in which the loan in respect of the Suburb D property increased by $134,500 over the two years and four months from December 2018 to April 2020.[25] When the Suburb C property was sold in 2021 the husband moved to live in the Suburb D property and there was $156,250 owing on the Suburb D property home loan at this time. Although the husband had made a valuable financial contribution to the parties’ property interest by reducing the outstanding sum on the Suburb D home loan for a number of years up until separation and for a few months thereafter, from December 2018 he no longer made this contribution and significantly increased the indebtedness on this loan.
[25] As at 17 December 2018 the Suburb D home loan had $21,736.28 owing.
Following separation the husband also continued to expend significant sums of money funding his drug and compulsive addictions. A table of expenditure[26] pursuant to s 50 of the Evidence Act (1998) Cth was prepared by the wife summarising his spending in this regard from December 2018 until August 2019. This table shows that the husband spent $74,523.83 on cash withdrawals, accommodation and adult entertainment in the course of nine months. During this period of time, the husband’s expenditure was between $200 to $4,000 on each occasion. Such payments were made regularly, at times on a number of occasions in the same week. The husband’s credit card records indicate that his cash withdrawals usually occurred in locations proximate to where he frequently attended for this activity. It is the wife’s evidence that after she became aware of transactions of this nature, the husband began to pay cash for these transactions and consequently she has had difficulty in tracing his expenditure. Notwithstanding, the wife estimates that the husband expended approximately $281,556 from December 2018 until July 2020 on cash withdrawals and adult entertainment.
[26] Also contained in exhibit 4
In taking the husband’s expenditure of this nature into account when assessing his financial contribution post separation, I must be careful to ensure that there is no double counting. As discussed when considering the wife’s contentions in relation to addbacks and notional property, the wife sought to add back as “wastage” the expenditure by the husband which can be inferred by the increase in indebtedness in three bank accounts. For the reasons given I treated $200,000 from the Suburb L account in this manner but did not add back other sums and explained I would take the additional expenditure by the husband following separation not otherwise accounted for into account when considering contributions. As also earlier explained, I consider it likely that following separation the husband continued to have access to significant financial resources which would he would have contributed to the parties’ joint financial position had he not treated those funds as his own, to spend as he wished.
The husband also made no non-financial contribution to the parties’ property interests and welfare of the family following separation. As noted, the wife has been solely responsible for the care of the child and also experienced great difficulty with the husband complying with orders for the sale of joint property requiring the appointment of a registrar pursuant to s 106A of the Act and failing to vacate the property in accordance with the orders.
Discussion and findings
In summary, an assessment of the parties’ respective financial contributions is hampered to a significant extent. The value of properties and extent of equity in them at relevant times is uncertain. The extent of the husband’s financial contribution including his income at various times is almost impossible to ascertain and while he engaged in substantial waste and expenditure for his own purposes, I must be careful not to take account of this expenditure as both notional property and when assessing contributions. The evidence in relation to non-financial contributions both to the property and in particular to the welfare of the family is much clearer.
Having regard to my findings about the greater financial contribution of the husband at the commencement of the relationship, the different but roughly equal financial and non-financial contributions of the parties during the marriage and the significant matters that favour the wife following separation, I assess the respective contributions of the parties at the time of hearing as favouring the wife by 10 per cent.
Section 75(2) Factors
When altering the parties’ interests s 79(4)(e) of the Act requires that the Court take into account the matters referred to in s 75(2) so far as they are relevant. I consider the following of those matters to be capable of determination and relevant to this dispute.
The wife is in her early 50’s and so far as I am aware, is in a good state of health. The wife holds a tertiary qualification but has been unable to find employment in the field in which she is qualified. She is hopeful of finding employment in this field but will continue to fulfil her obligations as the child’s full time carer so that it will be some years before she can engage in full-time employment. If the wife is successful in finding full time work in her chosen field she envisages that her annual salary would be approximately $60,000. The wife currently relies on government benefits totalling approximately $530 per week and works in the service industry earning approximately $200 per week. The wife pays $530 per week in rent.
The wife is not aware of the exact income the husband earns from his business due to his failure to provide proper financial disclosure in the proceedings. She relies upon Tax Returns from the husband’s business for the years ending 2017 and 2018 to give some indication of the profitability of that business. These Tax Returns indicate that the business had income of $293,624 and $570,201 in each of those years respectively. Curiously, the Tax Returns show that the husband’s business’ expenditure was equal to its income in both years. The wife also annexes a spreadsheet to her affidavit which has been prepared utilising documents produced on subpoena recording the income and expenditure of the husband’s business in 2020. This document purports to show that the husband business’ income in this year was $471,461. The husband may also have a superannuation interest but as will be discussed below, the husband has not provided any disclosure of such an interest.
The wife deposes that the husband has made complaint throughout the proceedings that he is unable to work due to an injury and has various other health issues. She contends however that the financial records of the business do not show that it is no longer profitable and she maintains that the husband has significant earning potential. There is no evidence to the effect that the husband is impaired through any medical condition from earning an income.
The wife makes complaint that the husband repeatedly ignored her requests for disclosure in relation to his business. Throughout the course of the proceedings she received only few documents from the husband relating to the financial records of the business. These documents include one bank statement, an ASIC company search, Tax Returns and financial statements for 2017 and 2019 and an ATO Statement of Account for the period 1 July 2018 to 30 April 2019. The wife was otherwise required to issue subpoenas throughout the proceedings.
In accordance with the authorities, the main impact of established non-disclosure or partial disclosure of significant information by a party is that a court should not be “unduly cautious about making findings in favour of the innocent parties”[27]. Taking the issue of non-disclosure into account, I accept the submission of the wife that the husband through his company has significant earning capacity which far exceeds her earning capacity.
[27] Weir & Weir (1993) FLC 92-338, 8.
The wife seeks that there be no adjustment to her superannuation in circumstances where the husband’s superannuation interests are unknown.
I accept the wife’s contention that there is little prospect that she will receive assistance from the husband in respect of the child. She will thus be required to meet all of the child’s expenditure related to housing, education, health costs and day to day care. Pursuant to the parenting orders the child will spend no time with the father and the mother will continue to be solely responsible for the care of the child which has ramifications beyond sole financial responsibility. As was observed by the Full Court in Brandt & Brandt[28]:
It is proper to take into account the economic ramifications of having responsibility for the children and the quasi-economic contributions involved in raising children which include washing, ironing, cooking and the like. It is appropriate to bear in mind salary and income opportunity forgone because of responsibilities to children. It is appropriate to recognise that such responsibilities involve sacrificing leisure and recreation time.
[28] (1997) FLC 92-758.
In the circumstances of this case, I consider the disparity in income earning capacity between the parties, including the income foregone as a result of the wife’s caring responsibilities, the unlikelihood that the wife will receive financial or any other support for the child and husband’s incomplete disclosure as so weighty to justify a significant adjustment in the wife’s favour to bring about a just and fair distribution of the parties’ interests.
Taking into account the foregoing I am satisfied that a further adjustment of 10 per cent in favour of the wife is appropriate.
Other orders
Trustee for sale
The wife seeks an order that she be appointed trustee for the sale of the Suburb D property. The difficulties the wife experienced in respect of the sale of the Suburb C property have already been discussed at [61] – [67]. As discussed, the wife was appointed trustee for sale of the Suburb C property on 1 February 2021. The wife submits that if she is appointed trustee for sale of the Suburb D property, the Court would have no concerns in respect of her conduct as she would act diligently and appropriately as she did in respect of the sale of the Suburb C property. On the other hand, the wife submits that if such order was not made, the Court would have no confidence that the husband would comply with the orders of the Court including in circumstances where he did not comply with orders to ready the matter for final hearing.
I accept the submissions of the wife and find that it is appropriate for an order to be made appointing her as trustee for sale of the Suburb D property.
Child Support Departure
The wife seeks an order pursuant to s 123A of the Child Support (Assessment Act) 1989 (“the Assessment Act”) for the payment of a lump sum of $140,000 to be credited against the administrative assessment of child support. The wife’s application for this order is fraught with difficulties which were not clarified in submissions made on her behalf.
I accept the evidence of the wife that there has been a Child Support Assessment in place since October 2018 but note a copy of the Assessment was not provided to the Court. In her affidavit the wife deposes that the husband is assessed to make payment of $128.35 per week but in her Financial Statement deposes that this sum is $75 per week.
Pursuant to s 123A(1)(b) the Assessment Act provides that the Court may make an order that a liable parent provide child support in the form of a lump sum payment if the Court is satisfied that it would be “just and equitable as regards the child, the carer entitled to child support and the liable parent” and is “otherwise proper”.
In determining the application made under s 123A(1)(b) the Court must have regard to a number of matters set out in ss 123A(4) and (5) including the administrative assessment.[29] As the wife has not provided a copy of the Assessment to the Court and gives inconsistent evidence as to the amount that the husband is assessed to pay I am unable to fulfil the legislative condition of having regard to the administrative assessment when assessing whether such order is just and equitable or otherwise proper.
[29] S 123A(4)(a) of the Assessment Act.
Despite the wife giving inconsistent evidence about the amount the husband is assessed to pay, it is clear that a sum of $140,000 is a departure from the assessment. The wife does not provide any explanation of how this sum is arrived at nor has she made any submissions that it is just and equitable or otherwise proper. The wife simply contends that such order is appropriate in circumstances where there has been non-disclosure, dissipation of assets and non-payment of regular child support.
The matters as to which the Court must be satisfied before making the relevant order are contained in s 117 of the Assessment Act. That provision stipulates in summary that the Court must be satisfied that one or more of the grounds for departure contained in s 117(2) exists, and that it is just and equitable as regards the children, the carer entitled to child support and the liable parent and otherwise proper, to make the particular order sought.[30]
[30] See also the “three step process” as explained in Gyselman and Gyselman (1992) FLC ¶92-279 at 79,064.
Other than the wife’s contention that the husband has failed to pay child support, little is known about any circumstances relating to the husband or the child which may prevent the husband from meeting any assessment for child support and which may otherwise ground an application under s 116 of the Assessment Act.
In these circumstances, I cannot be satisfied that it is just and equitable and proper to make a Child Support Departure Order as sought, and thus the wife’s application in this regard is dismissed.
Just and equitable

As discussed earlier in these Reasons and in light of the authorities, I must consider the overall effect of the distribution under contemplation and in particular consider the amounts each party will receive in dollar terms in satisfying myself that the proposed distribution is just and equitable.
For the reasons given, the percentage based entitlement for the parties, adjusted by reference to s 75(2) will see the wife receive 70 per cent and the husband receive 30 per cent of the total net pool of assets ($2,354,434). In dollar terms (rounded), the husband’s percentage interest is $706,330 and the wife’s $1,648,104.
The wife is to retain or has already had the benefit of:
Add back: Legal fees  $        310,526
Funds in CBA account   $            3,803
Funds held on trust in CGL account          $          17,676
Household contents   $            1,000
Jewellery   $            5,000
Motor Vehicle 1  $          13,000
Superannuation   $        104,171
Total   $         455,167
The husband is to retain or has already had the benefit of:
Add back: Wastage   $        200,000
Add back: partial property settlement        $        289,332
Add back: Child support arrears                 $            2,134
Add back: Costs  $               825
Husband’s business   $          30,000
Household contents  $          20,000
Total  $         542,291
Thus, for the husband to receive his $706,330 share it is necessary that the amount of $164,039 be paid to him.
As noted, the orders sought by the wife to discharge the joint liability of the child’s school fees were unnecessary complex. The wife seeks that orders for the entirety of the funds held in the controlled monies account to be released to her, that she use part of those funds to pay the entirety of the school fee arrears and then be “refunded” half of that amount from the proceeds of sale of the Suburb D property. For the reasons given, I propose making an order that the wife’s lawyer pay to the child’s school any arrears in relation to the child’s enrolment from funds held in the controlled monies account. The money held in the controlled monies account is money held on trust for both parties and making an order in this form removes the need for the wife to be “refunded” half of the costs paid by her to the child’s school
For the reasons given orders will be made as sought by the wife that the Suburb D property be sold and that she be appointed trustee for the sale of that property. The wife then seeks that after the costs of sale are paid and the mortgage is discharged, she receive a sum equivalent to 80 per cent of the overall net asset pool and a lump sum child support payment and the husband receive the balance of the funds. For the reasons given, I have determined that the wife will receive 70 per cent and the husband receive 30 per cent of the total net pool of assets and I declined to make an order for a lump sum child support payment.
The orders the wife seeks in relation to the distribution of the proceeds of sale of the Suburb D property are also unnecessarily complex. As stated, the husband’s entitlement in dollar value is $706,330 and to satisfy this amount he should receive a payment of $164,039. In my view, it is more appropriate that an order be made that the wife’s lawyer pay this sum to the husband from the funds held in the controlled monies account. The wife will then receive the balance of the funds held by her lawyer in the controlled monies account in the sum of $554,893.
As noted, in July 2021 a solicitor from a firm previously representing the husband filed an application seeking that the firm be added as an intervener to the proceedings. The firm sought to be paid from the controlled monies account for legal costs owed by the father totalling over $80,000 which the mother opposed. Ultimately, the solicitor’s application was considered to be incapable of determination prior to final hearing and leave was subsequently given to the intended intervener to relist his application within 14 days of the substantive proceedings being completed. As this order has been made, the order providing that a sum of money be paid to the husband will stipulate that such payment is to be made 28 days from the date of these orders and an order will be made that the wife’s solicitor provide the intended intervener with a copy of these orders within 24 hours. This will allow the intended intervener an opportunity to restore his application and will not cause the application to be defeated.
Once the Suburb D property has been sold the proceeds of sale are to be applied in payment of costs of sale, in discharge of the mortgage (being the amounts owing on the Suburb D loan account and the equity access loan account), in payment of any council and water rate arrears and the balance to the wife. The wife did not seek an order that the proceeds of sale be applied to the payment of any council and water rate arrears but I consider such orders are necessary to ensure the settlement of the property after sale. Taking into account the value of the property and the amount owing on the Suburb D loan account and equity access loan, the wife will receive the sum of approximately $638,044.
In her balance sheet the wife included a sum of $17,667 which represented funds held in the trust account of her lawyers. The wife’s evidence in relation to this sum of money is somewhat unclear and in her proposed orders the wife has not included an order that this sum of money be paid to her. It is clear however from oral argument that the wife contends that she should receive this sum of money. For this reason, I propose making an order that the wife’s lawyer pay to her the balance of funds held in their trust account. This sum combined with the amount the wife will receive from the controlled monies account and the assets that she has already received equal $1,648,104 (being the dollar value of 70 per cent of the net asset pool).
When contributions as discussed, the length of the marriage, the value of assets for distribution and s 75(2) factors are taken into account, I am satisfied that orders that will see the wife receive 70 per cent of the parties’ net assets and the husband receive 30 per cent are just and equitable.
The orders that I make are as set out at the forefront of these Reasons for Judgment.

I certify that the preceding two hundred and sixty-nine (269) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.
Associate:
Dated: 18 April 2023

File number(s):	PAC 5502 of 2018
Judgment of:	HANNAM J
Date of judgment:	18 April 2023
Catchwords:	FAMILY LAW – UNDEFENDED HEARING – PARENTING AND PROPERTY – Where the father poses an unacceptable risk of harm to the child – Where the mother seeks orders supported by the ICL – Where orders are made for the child to spend no time with the father – Where wife seeks orders that she receive 80 per cent of the property pool – Where the wife contends several sums should be added back – Where one significant sum relates to wastage – Where orders are made that the wife receive 70 per cent of the total pool.
Legislation:	Child Support (Assessment Act) 1989 ss 116, 117, 123A Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 79, 75(2)
Cases cited:	AJO & GRO [2005] FLC 93 – 128 Bevan & Bevan [2013] FamCAFC 116 Brandt & Brandt (1997) FLC 92-758 G & C [2006] FamCA 994 Mazorski & Albright (2007) Fam LR 518 McCall & Clark (2009) FLC 93 – 405; 41 Fam LR 483 NHC & RCH [2004] FamCA 633; (2004) FLC 93-204; (2004) 32 FAM LR 518 Pierce & Pierce [1998] FAMCA 74 Stanford v Stanford (2012) 247 CLR 108 Trevi & Trevi [2018] FamCAFC 173 Williams & Williams [2007] FamCA 313
Division:	Division 1 First Instance
Number of paragraphs:	269
Date of hearing:	19 August 2022
Place:	Parramatta
Counsel for the Applicant:	Ms Lioumis
Solicitor for the Applicant:	Coleman Greig Lawyers
Solicitor for the Respondent:	Litigant in person (did not participate)
Solicitor for the Independent Children's Lawyer:	Ms Dufty, Legal Aid Nsw Parramatta Family Law

PAC 5502 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS YANEZ Applicant
AND:	MR YANEZ Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	HANNAM J
DATE OF ORDER:	18 April 2023