Bevan v Bevan

(a) the husband shall have sole decision-making responsibility in relation to education and health for X, and

(b) the wife shall have sole decision-making responsibility in relation to education and health for Y and Z.

1. That each parent will be responsible for day-to-day decisions concerning the care of the children when the children are living with them or spending time with them.
2. That X live with the husband and spend time and communicate with the wife in accordance with his wishes.
3. That Y and Z live with the wife.
4. That unless otherwise agreed in writing, Y and Z spend time and communicate with the husband as follows:

(a) from the conclusion of school, or 3:30pm if Friday is a non-school day, on the Friday which is the fourth weekend of the NSW Education standard school term to the commencement of school on the Monday which is nine days later, or the commencement of school Tuesday if Monday is a non-school day, commencing the first term of 2025.

(b) The second half of each short NSW Education standard school holiday period.

(c) The children's time with the husband in the short school holidays shall commence at 1:00pm on the Saturday of the middle weekend and finish at 1pm on the final Saturday of the school holiday period.

(d) Unless otherwise agreed in writing, changeover for the short NSW Education standard school holiday periods shall occur at Sydney McDonalds, H Street, Suburb J, New South Wales.

(e) For one half of the NSW Education standard school holiday long summer period where the children's time with the husband shall;

(i) in odd years, commence on the day after the first day of the NSW Education Standard school holiday long summer period and conclude at 1.00pm on the Saturday closest to the midpoint of the holiday period, and;

(ii) in even years, commence at 1.00pm on the Saturday that is closest to the midpoint of the NSW Education Standard school holiday long summer period and conclude on the last Sunday of the NSW Education standard school holiday long summer period at 1.00pm.

(iii) Unless otherwise agreed in writing changeovers in the long summer school holiday period are to occur at Sydney McDonald's, H Street, Suburb J, New South Wales.

(f) Unless otherwise agreed in writing;

(i) in odd numbered years when either Y or Z are not in the husband's care on their birthdays, from after school until 6:00pm if a school day, or from 9:00am to 4:00pm if a weekend day.

(ii) On Father's Day from 5:00pm the Saturday before Father's Day until 5:00pm on Fathers' Day.

(iii) If, on Mother's Day, Y and Z are otherwise in the husband's care, then from 5:00pm the Saturday before Mother's Day until 5:00pm on Mother's Day with the wife.

1. That each parent encourage and facilitate telephone or video communication between the children and the other parent whilst the children are in their care at 6:30pm every Wednesday and Sunday night, with the parent not with the children at the time to initiate the call.
2. That in addition to the above, the children be at liberty to call and message either parent at such times as they wish to do so without hindrance at all reasonable times requested by them.
3. That each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within seven days of such change.
4. That in the event of emergency the parent with whom the child or children are with is to promptly contact the other parent to inform them of the occurrence.
5. That each of the parties, their servants and agents be hereby restrained by injunction from:

(a) Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party and;

(b) Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with, or in the presence or hearing of the children, and from permitting any other person to do so.

1. That both parents be permitted to liaise directly with the children's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children's progress.
2. That each party is at liberty to attend at the said children's school for the purposes of any function or activity normally attended by parents.
3. That pursuant to ss 62B and 65DA of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

1. That within 90 days of these orders the wife shall pay to the husband the sum of $419,556.
2. Contemporaneously with receiving the payment in the above order the husband shall do all such acts and things and sign all necessary documents so as to transfer to the wife all his right title and interest in the former matrimonial home situated at 2 K Street, Town D NSW and the adjacent vacant block, being the whole of the land comprised in title references ... and ....
3. That contemporaneously with the transfer set out above, the parties do all such acts and things and sign all necessary documents so as to discharge the mortgage on the subject property and replace it with a mortgage to the party acquiring the property alone.
4. That in the event that the payment is not made in accordance with Order 15, then the Town D properties shall be forthwith sold, subject to agreement to the contrary in writing, in the following manner:

(a) by such agent as agreed between the parties within seven (7) days;

(b) in default of agreement as to the agent the wife shall, within 7 days, nominate three (3) agents and, within a further 7 days the husband shall select the selling agent from those nominated by the wife;

(c) on such terms and conditions as agreed within a further 7 days between the parties in writing;

(d) in default of agreement being reached in accordance with the above order, on such terms and conditions as recommended by the selling agent.

1. Upon completion of the sale pursuant to the above order, the proceeds of sale be applied as follows:

(a) Firstly, to pay all costs, commissions and expenses associated with the sales;

(b) Secondly, to discharge the mortgages associated with the properties;

(c) Thirdly, to pay to the husband so much of the Payment as is then outstanding together with interest calculated in accordance with the rate or rates prescribed by the Rules of this Court to run from the date on which the payment was due;

(d) Finally, the balance to the wife.

1. That other than to give effect to these orders, the parties are restrained from encumbering or increasing the indebtedness in relation to the real property the subject of these orders.
2. That other than as otherwise set out in these orders, the parties have the sole right title and interest in any other property which is at the date of these orders in their possession title or name and they shall be solely liable for and indemnify the other against any personal liabilities.
3. That within 30 days of making these orders the husband shall (to the extent that he has not already done so) collect the sulky and personal items as referred to in Order 5 of 13 May 2024.
4. If the husband fails to collect such goods and chattels as referred to in the above order within 30 days of the date of these orders, the wife will be at liberty to dispose of such goods and chattels.
5. That within 30 days of making these orders the husband will do all such acts and sign all necessary documents to reinstate the wife as an authorised signatory on behalf of an equine enthusiast society membership of Mr Jalkolski and Ms Beiler; Membership Number ....
6. That the wife be solely responsible for any debts owed to:

(a) NAB Visa card account;

(b) WBC Mastercard account in her sole name; and

(c) WBC loan.

1. That the husband be solely responsible for any debt owed on the WBC Mastercard account in his sole name.
2. The husband is restrained from increasing the indebtedness of the partnership.
3. Within 7 days the husband is to do all such acts and sign all necessary documents to resign from the partnership known as Jaskolski and Beiler Partnership, ABN ... and TFN ... located at 2 K Street, Town D NSW and, subject to the orders above that deal with the transfer of the Town D properties, do all such acts and sign all necessary documents to transfer his right title and interest in the partnership to the wife.
4. From that date the wife shall be responsible for any and all partnership debts and shall indemnify the husband in respect of such.
5. Subject to any orders for enforcement the wife is entitled to the sole occupation of the Town D properties pending fulfillment of these orders.
6. The parties retain all their right title and interest in and to their superannuation entitlements and have no further claim on such entitlements of the other.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The applicant wife, Ms Beiler, born in 1978, and the respondent husband, Mr Jaskolski, born in 1976, married in 1999 and separated on a final basis in 2020. The parties' divorce was finalised in 2021. There are three children of the relationship, X, born in 2010, Y, born in 2012 and Z, born in 2016 ("the children").
2. These proceedings concern the children and property of the parties.
3. X currently lives with the husband, having refused to return to the wife's care on 12 October 2024. Y and Z currently live with the wife. The primary dispute is as to who Y and Z will live with.
4. The property dispute primarily relates to the property at 2 K Street, Town D ("the Town D property"), an adjacent block of land, a number of chattels and vehicles and a number of horses.
5. Before embarking upon an assessment of the parties' cases it is important to observe that the evidence was presented in a fragmented and chaotic manner, and assertions made as to the manner of dealing with assets post separation were, at many points, supported by little or no evidence. The issue of the manner in which horses were disposed of by the wife following separation was the subject of incomplete evidence presented by both parties. This is illustrated in the Outline of Case document for the husband which set out in detail a critique of the manner of disposition of horses by the wife following the end of the relationship. However, the contentions made there were not a reflection of the evidence led on those topics.
6. This left a position where, despite the parties having apparent clarity in their minds as to their contentions about these disposals, the evidence did not.

(1) Wife's Financial Statement filed 17 December 2022;

(2) Affidavit of Ms Beiler filed 5 August 2024;

(3) Affidavit of Mr L filed 5 August 2024;

(4) Affidavit of Ms M filed 5 August 2024;

(5) Affidavit of Ms N filed 5 August 2024;

(6) Further Amended Initiating Application filed 13 August 2024;

(7) Affidavit of Ms Beiler filed 9 October 2024;

(8) Affidavit of Ms Beiler filed 17 October 2024;

(9) Wife's Further Further Amended Initiating Application filed 19 January 2025; and

(10) Affidavit of Ms Beiler filed 20 January 2025.

(1) Notice of Child Abuse, Family Violence or Risk filed 18 January 2023;

(2) Financial Statement filed 18 January 2023;

(3) Affidavit of Mr Jaskolski filed 6 August 2024;

(4) Affidavit of Mr O filed 6 August 2024;

(5) Further, Further, Further Amended Response to Initiating Application filed 16 August 2024;

(6) Affidavit of Mr Jaskolski filed 11 October 2024;

(7) Affidavit of Mr Jaskolski filed 18 October 2024;

(8) Affidavit of Mr Jaskolski filed 17 January 2025; and

(9) Further, Further, Further, Further Amended Response to Initiating Application filed 17 January 2025.

1. The precise orders sought by the parties are set out in an annexure to this judgment. For the wife these were identified in her Further Further Amended Initiating Application filed 19 January 2025. For the husband these were identified in his Further Further Further Further Amended Response filed 17 January 2025.

1. In summary, the wife sought that X remain with the husband, and Y and Z remain living with her. She sought that there be a sharing of parental responsibility, but for education and health, where the husband would hold that responsibility for X, and she would hold that responsibility for Y and Z.
2. The wife sought that X would spend time and communicate with her in accordance with his wishes, while Y and Z would spend time with the husband and communicate with him for half of school holidays and a nine-day period during each school term.
3. In summary, the husband sought sole decision-making responsibility for all three children, and that they live with him. He sought that X spend time with the wife in accordance with his wishes, and that Y and Z spend a nine-day period during the school term with the wife.

1. The wife sought that she retain the Town D property, and that she would pay the husband a sum of approximately $111,000. Further, she sought that the husband would resign from their partnership, and she would hold all assets and liabilities of such. She sought orders in respect of various chattels, including for the retention of a dog, and the transfer of firearms to herself.
2. The husband sought a payment the equivalent of 60 per cent of the pool of non-superannuation property, including notional add backs, with the wife to retain the Town D property and the equine and associated businesses. The husband sought orders in respect of a number of chattels including various horses and a dog.
3. Neither party sought a splitting of their superannuation interests.
4. At the commencement of the hearing the parties tendered a joint Balance Sheet setting out their areas of agreement and disagreement as to the scope of the pool of property. It can be seen that the Balance Sheet provided few, although significant, areas of disagreement. However, as the case proceeded there was significant departure from the agreement evidenced by the Balance Sheet.

1. The key to the exercise of jurisdiction in relation to the property of the parties is that it must be just and equitable, both to adjust the property interests at all[1] and to adjust them in a particular manner.[2]
2. The necessary first step in consideration of whether it is just and equitable to make an order is to identify "according to ordinary common law and equitable principles the existing legal and equitable interests of the parties in the property".[3]
3. In this case each party sought the notional adding back of disposed of property. The Full Court in Omacini & Omacini,[4] Trevi & Trevi[5] and Kowaliw & Kowaliw[6] identified the potential to notionally add back into the pool of property funds expended by the parties. Those cases emphasised such a step as being the exception rather than the rule. Between them they identified three general categories justifying a notional add back, as set out in Omacini:[7]

To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:

(a) Where the parties have expended money on legal fees. In DJM v JLM [1998] FamCA 97; (1998) FLC 92-816 the Full Court said at 85,262:

(b) Where there has been a premature distribution of matrimonial assets. In Townsend v Townsend (1995) Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at 81,654:

"In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2)..."

(c) In the circumstances outlined by Baker J in Kowaliw & Kowaliw [1981] FamCA 70; (1981) FLC 91-092 at 76,644:

"As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:

(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or

(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.

Conduct of the kind referred to in para (a) and (b) above having economic consequences is clearly in my view relevant under s 75(2)(o) to applications for settlement of property instituted under the provisions of s 79."

1. Otherwise, it was held, parties should generally share in the economic highs and lows of their relationship, being both the "economic fruits" and financial losses.
2. Section 79 requires that the contributions of the parties are to be given consideration.
3. As was identified by the Full Court in Jabour & Jabour,[8] the assessment of contributions is the assessment of the myriad of contributions made throughout the relationship, in the light of their nature, form, context and circumstances, and the holistic evaluation of their significance.
4. A court is required to have regard to the matters identified in s 75(2), which are predominantly directed to the circumstances of the parties as they bear upon their future lives.
5. Finally, the court is required to consider whether an outcome arrived at is just and equitable. This is a requirement that permeates the whole process from start to finish, including in answering the question whether there should be an adjustment of property interests at all. In this case, that question is readily answered in the affirmative in the context that each party seeks an adjustment, in a context of the end of a substantial period of financial cooperation.

1. The parties married and commenced cohabitation in 1999. They separated on a final basis in or about April 2020.[9]
2. The parties had limited assets at the commencement of their relationship, with the husband having some savings which the parties used to bulk buy fodder and on-sell for profit.[10] The wife's parents provided their truck for the transportation of the fodder. The wife asserts her parents paid for the registration and maintenance of the truck on an ongoing basis.[11] The husband asserts he ensured payment of the truck's registration and maintained it whilst they were using it.[12] In any event, the profit made from the fodder sales was used to meet a deposit for the parties' first home.[13] They did so with the assistance of the wife's parents, who they in turn provided assistance to.
3. After they married, the parties moved into a house on the husband's grandparent's farm, for which they paid $120 in rent each week. The wife stated this house was in poor condition, and that the parties also financially contributed to various repairs.[14]
4. In 2000 the parties purchased their first home in Town P, New South Wales ("the Town P property"), paying a deposit of $29,000 saved from the fodder sales. The wife's parents loaned the parties approximately $8,500 for stamp duty charges, which they repaid within a year.[15]
5. From 2001 to 2004 the parties lived on the wife's parents' property while earning rent from the Town P property. There was no agreement for the parties to pay rent to the wife's parents, however they made some cash contributions towards utilities.[16] The husband claims they also contributed by way of serving, foaling, feeding and training the wife's parents' horses and that he contributed to the improvement and maintenance of the wife's parents' property, by work such as fencing, cutting, splitting and stacking firewood, and stacking hay.[17] The wife disputes this. However, it appears that the parties and the wife's parents gave each other assistance during this period, combining their efforts cooperatively in the upkeep of the properties and stock.
6. In 2003 the wife studied full-time and completed a degree. The husband claims he was solely financially responsible for the parties at that time, whilst the wife asserts she was paid a salary.[18]
7. In 2004 and 2005 the parties lived in the United Kingdom, where they both worked. The husband's parents loaned them approximately $16,000 to purchase a car for the wife to use for work.[19] The husband says he returned to Australia six months prior to the wife as the parties had run out of money.[20] The wife claims the husband returned to Australia to resume his job with an education provider, as he had only taken 12 months leave without pay.[21] Nothing turns on this difference. Once back in Australia, the parties resumed living with the wife's parents rent free. During that time, the husband provided some assistance in property maintenance, such as by building fences and mowing a small area of grass.[22] This continued the cooperative efforts between the parties and the wife's parents.
8. The husband asserts that after both parties had returned from the United Kingdom they formed the equine business which he said ultimately became one of the most successful equine businesses in Australia.[23] However, the wife claimed that the business name was used by her and her parents from 1992 onwards, and that she had been involved in the industry since that time. The wife disputes that either herself or her parents were running an equine business at that time.[24] Nothing of significance turns on this dispute as to the genesis of the business, or even as to the degree of success of the business.
9. The Town P property was sold in April 2008 for $650,000. The wife claims that renovations primarily completed by her resulted in the property's value increasing by $75,000.[25] This assertion as to the source of the increase in value was not made good, but again is not a matter of significance within the collection of various contributions made by the parties across this period.
10. The parties purchased the Town D property in June 2008. They continued to live in Sydney in the wife's parents' home, both working full-time.[26] The husband claims the parties paid $200 rent each week to the wife's parents whilst the wife states that they did not pay rent but contributed to utilities.[27] Given the ongoing cooperation between the parties and the wife's parents, this unresolved dispute between the parties was not as to a matter of significance, perhaps reflected in the little attention given to the issue by the parties.
11. In order to acquire a business loan for the purchase the Town D property the parties utilised the partnership "[Jaskolski and Beiler]" ("the partnership").[28] The partnership operated from 2008 and covered the parties' services. The husband remained working full-time while the wife was in part-time employment.
12. The husband claims his work in both the parties' and the wife's parents' equine businesses resulted in the businesses being renowned in the field. Whether this was so or not, the parties together derived benefit from the business activities. The wife completed office work for the businesses during that time.[29] During this period the parties cooperatively contributed to the acquisition and maintenance of property, albeit focussing on different aspects of contributions. They functioned as a team, each relying on and contributing in accordance with their particular strengths.
13. X was born in 2010, Y in 2012 and Z in 2016.[30] The wife's parents provided some care for their grandchildren.[31] X attended daycare or a minder three times a week. From 2010 to 2018, the wife maintained part-time employment of two days per week.[32] The husband claims the parties shared home and child caring duties, while he attended to the majority of the substantial outdoor maintenance.[33] The wife disputes this, claiming the husband only rarely contributed to outdoor maintenance.[34] The wife suggests she was responsible for the majority of the home and childcare duties.[35]
14. Whatever the particular breakdown of responsibilities, both of the parties can be considered to have worked hard in supporting the welfare of the family and in the acquisition and maintenance of their property. The argument as to precisely who did what was somewhat arid.
15. In January 2016, the parties expanded their business activities under the partnership.[36] The husband completed extensive construction on the Town D property while the wife continued to work part-time.[37] The parties also relocated to the Town D property full-time, with the wife's parents also relocating to a separate dwelling on the property that they erected.[38]
16. To facilitate the parties' use of the Town D property, the husband's family assisted in performing works on the property. This included efforts by the husband's father and brother, including earthworks necessary for the use and development of the property.
17. The husband carried out the majority of the equine related work, with the wife assisting where necessary. The wife undertook all the administrative and bookkeeping tasks associated with the business.[39] This reflects the cooperative approach of the parties, each utilising their particular strengths to the benefit of them both.
18. Cooperation between the parties and the wife's parents continued with the parents moving to the Town D property. From 2008 they lived rent free on the property in a home that they constructed, and their horses were agisted without fee. The wife's parents described maintaining farm equipment. While the husband contended that they performed maintenance on their own equipment, he conceded the use of their equipment. It can be taken that the wife's parents provided ongoing support to the family, but were in turn the recipients of support in free agistment and occupation of the land. This reflects the ongoing cooperative support offered between the husband and wife and the wife's parents, by which each side derived benefit.
19. In 2019 the husband's parents loaned the parties $12,000 to purchase Motor Vehicle 1, which they purchased in May 2019.[40] The vehicle required work, and the husband's parents later accepted the unregistered vehicle as full discharge of the loan.[41]
20. The parties began the process of separation in or about April 2020, and finalised their separation in September 2020.[42] The husband asserts that upon separation, the wife requested that the husband vacate the Town D property, suggesting that he live in a shed on another block of land owned by the parties, which had no electricity, running water or sewerage.[43] The wife disputes this, stating that she suggested they take turns living with the children in the residence. When not living at the residence, the wife says she suggested several options to the husband as to his living arrangements, such as renting out a neighbouring property and offering to finance a shed house on their property.[44] The significance of this dispute was not apparent. Despite this dispute, it appears that the initial separation was marked by cooperation and good will between the parties, as demonstrated in various messages that passed between them.
21. The husband relocated to City E, where he could reside with family members and work in his brother's business.[45] This left the wife with the primary responsibility for the children, business and Town D property.
22. In the period May to November 2020 the husband paid $19,500 into the parties' joint account towards expenses,[46] and a $9,000 debt on Motor Vehicle 2 retained by the wife.
23. No significant Child Support payments were initially made by the husband following separation. He was subsequently assessed for Child Support.
24. A Child Support Departure ruling subsequently varied the rate of Child Support payable by the husband for the period October 2023 to December 2023 from $459 per annum to $9,414 per annum, and from January 2024 from $5,160 per annum to $9,039 per annum, following an assessment up of both the husband's and wife's incomes for the period.[47]
25. The wife retained employment during this period which further supported her efforts in relation to the partnership and upkeep of the family.
26. The parties agreed that at separation there were $165,000 worth of horses held by the partnership. The horses and stock held are dealt with further below. It was also uncontroversial that progeny were produced from those horses following the end of the relationship.
27. Between December 2020 and August 2022, the wife was solely responsible for the Town D property mortgage and the costs associated with the partnership.[48]
28. In August 2021 the parties exchanged correspondence regarding the ongoing operation of the farm. The wife described that she was exercising the responsibility for the operation of the partnership, and accordingly, making the decisions regarding its operation. This included business activities as part of what she described at Exhibit F12 as "normal business operation". In that correspondence the wife further described meeting the shortfall from end of financial year losses through her income.
29. The wife submitted inconsistent evidence as to the number of horses owned by the partnership at separation. In her trial affidavit, the wife suggested that the partnership owned 50 horses at separation, but in her oral evidence she suggested that the partnership owned 38 horses at separation. The wife suggested that all but four of the horses owned by the partnership had since been sold,[49] but that around 30 of them still remained on the property.[50]
30. The wife states that the partnership was effectively wound up due to the husband abandoning it. She describes that her parents provided support in the form of property maintenance and assistance feeding the horses.[51]
31. The wife's father underwent surgery in 2022, and since then he has not completed as much work on the property.[52]
32. Since August 2022 the husband has paid money in the parties' joint farm management account.[53] The parties agreed that the husband commenced making periodic payments toward the mortgage for the Town D property. The total amount contributed by the husband toward the mortgage for the Town D property is unclear, but was described by the wife as 'amounting to around half the interest payment' on the loan.[54]
33. The wife alleges that the husband stole multiple items from her when spending time with the children on the Town D property, including a horse, a fuel pod, farrier tools, equine medication, the wife's engagement ring and necklace, and all of the firearms on the property, including two owned by the wife's brother and uncle.[55] Little attention was given to these allegations at trial, and no significance was attributed to them in final submissions.
34. Both the husband and wife have re-partnered. The husband has commenced a relationship with Ms Q and he and X live with Ms Q and her son. Ms Q owns a business. The wife married Mr R in 2023. She describes that he contributes $900 per fortnight for household expenses and makes other financial contributions in support of her children. He also has responsibilities to support his own children. She describes that he has no significant assets and that they keep their finances otherwise separate. He operates a small business that recorded significant profit in 2023, but minimal profit in 2024. The degree of benefits received from the business by Mr R were unclear.
35. The wife works in communications. She describes an annual income of $107,000, and from time to time, bonuses. She has offset farm losses against some of this income.
36. The husband works as a tradesman in a business operated by his brother. He describes an income of about $60,000 per year. The wife complained as to a lack of adequate disclosure by the husband. Despite submissions that claimed the lack of disclosure of a particular bank account (there being limited evidence to show a lack of disclosure), and identification that the husband received his income from a number of different entities, there was no sufficient reason to consider that the husband's income, or income earning capacity, is significantly different from that identified by him.

1. A joint balance sheet was tendered as Exhibit C1 and is extracted below.

1. The balance sheet proposed by the parties neither resolved all issues as to the pool, nor did it accurately represent the areas of controversy between the parties. This use, or misuse, of the joint balance sheet was a particularly unsatisfactory aspect of the way in which the case was litigated.
2. Although by the balance sheet the parties agreed a nil value for the grain silo, pump, tall panels and panels, in submissions the husband sought to attribute values of $4,000, $2,000, $6,240 and $10,000 respectively. These values were based upon a chattel valuation at Exhibit F25. It was asserted by the husband (without evidence being presented one way or another) that the items did not form a part of the land valuation. The proposed values were not addressed by the wife following the tender of the valuation, other than to assert that the panels were fixtures included in the land value. This left the issue in an unsatisfactory evidential state, where it was unclear what justified the husband's move from a nil value, or the significance of the items to the land value that remained agreed, or the reliance to be placed upon the hearsay valuation of the items. Given those matters, I am not satisfied that the values now proposed by the husband should be assigned to the items.
3. The value of the firearms and gun safe were not agreed, the wife submitting that the husband removed both from the property. She further contended that a number of the firearms were not the property of the parties. The husband accepted that he had not provided them for valuation, contending that he provided pictures. He denied that any belonged to third parties.
4. While a value was not agreed, by the balance sheet the husband conceded a value of $1,500 which, under circumstances where he both asserts ownership and will retain the items, should be accepted as an admission against interest. This is so despite an attempt to walk the value back to $1,100 on the basis of a valuation that was not placed into evidence. The husband's concession by the balance sheet is sufficient to establish the value at $1,500.
5. Similarly, the husband holds a saddle and concedes by the balance sheet a value of $500, which may be taken as a concession against interest. In closing submissions, the husband accepted that the balance sheet should include a further horse held by him, being Horse 7, at a value of $3,000. This concession against interest may be adopted. Horse 7 is discussed further below, as the ownership of Horse 7 remained contentious.
6. The wife asserted that as her household effects had been included in the chattel evaluation, the items the husband retained, such as a telephone, clothes and shoes should be valued at $750. The husband asserted that he did not have any household effects to be taken into account. It may be accepted that he has retained personal effects.
7. There is neither agreement nor evidence to support a particular value for those items which appear to have little if any value. On the wife's assertion they are worth $750, which is illustrative that they do not constitute assets of significance to the determination of a just and equitable adjustment of property. They will not be included on the balance sheet.
8. The parties were also in dispute as to the value of chattels held by the wife. These were the subject of a valuation process.
9. The wife provided an aide memoir that contained calculations of a reduced balance of $19,125 from the total chattel valuation. This amount sought to reduce the total of the chattel valuation balance by $39,540 from $58,665 to $19,125. The wife sought to exclude from the chattel valuation balance $22,240 worth of fixtures, $16,500 worth of items listed separately on the balance sheet, and $800 from a deceased horse (Horse 8). Given the parties' exclusion of Horse 8 from the balance sheet it may be taken that the removal of this horse was agreed.
10. In contrast, the husband proposed the balance of chattels held by the wife to be $30,365, (being the total excluding the grain silo, pump, tall panels and panels which, as set out above, he otherwise sought to be included).
11. Further confusing the matter, from her total of $19,125 the wife sought only two saddles for what she asserts as a total value of $2,900. The wife asserts that the balance of the chattels should go to the husband. It was unclear what this submission meant, and it was unsupported by an application that the husband remove these items.
12. The general chattels held by the wife may be taken to be of a value of $19,125, as conceded by her.
13. Although not identified on the balance sheet, the wife's disposal of $9,000 worth of livestock following separation was subject to submissions by the husband seeking the adding back of this amount. No adequate basis for adding back this amount was demonstrated in circumstances where the wife had the responsibility for the operation of the partnership that had reasonably consistently operated at a loss, and where the manner of operation of the business was by the disposal of stock for income. This is particularly so where the wife was not challenged as to her assertion that the proceeds were used for the business, and in his oral evidence the husband accepted the legitimacy of the wife's sale of livestock as the business of the partnership. He further conceded that the funds may have been used in relation to the partnership.
14. The husband also sought that there be a notional adding back of $165,400 as the agreed value of horses held by the partnership at the end of the relationship, along with a further $47,000 for the progeny of those horses.
15. It should be observed that the husband conceded that there is no evidence of the value of the progeny. The figure of $47,000 was described as his estimate. This leaves no adequate evidential basis for the adding back of such a sum in relation to the progeny.
16. As to the $165,400, the husband conceded that the only transfers of horses that should be regarded as sham transactions are those to the wife's parents and to Ms N. These are dealt with further below.
17. The consequence is that the genuine nature of the transfer of horses (other than to Ms N or the parents) was not ultimately challenged. Similarly as with the sale of livestock, the income for the partnership was derived by the sale of horses. Where the sale of horses was undertaken by the wife in discharging the sole responsibility for the operation of the parties' consistently loss‑making partnership, the genuine sale of horses is not demonstrated to form a transaction justifying a notional adding back. This is particularly so where, as described below, the husband indicated his agreement that sales had been used to generate income for the partnership, and this income was insufficient to meet the partnership's expenses for the 2020‑21 financial year.
18. Although not included on the balance sheet, the wife sought that a caravan and Motor Vehicle 4 (which were sold by the husband) be additional add backs. She further sought that she be transferred Motor Vehicle 1, and if so, asserting a value of $30,000 against her interest.
19. The husband accepted that he removed Motor Vehicle 1, describing that he offered the vehicle to his parents to expunge the debt owed to them for the vehicle's purchase.
20. Under these circumstances the wife sought an adding back of Motor Vehicle 1.
21. However, in circumstances where Motor Vehicle 1 was used by the husband to discharge the associated debt there is no adequate reason to add it back.
22. The husband conceded both the sale of Motor Vehicle 4 to his nephew for $2,000, and that such a sum should be notionally added back against him. Similarly, he conceded that the caravan was sold for $4,500, and that such should be notionally added back against him. However, in final submissions he resisted the adding back of these items. There seems little identifiable reason to add back these items that form a small aspect of the pool.
23. Despite then resisting the adding back in relation to the items that he disposed of, the husband sought that other items disposed of by the wife be notionally added back.
24. Other than as to the disposal of items to the wife's parents, a case for adding back is not made out.
25. Insofar as the disposal related to items purportedly transferred to the wife's parents, comprising the horse float, 'ultrasound and fencing', mower and crate, such will be dealt below.

1. The wife asserts that she owes her parents money, and further that she transferred various chattels including horses to her parents to discharge another liability to them. She contends that monies remained owing to them from the time of the relationship, and then further from the post-relationship period.
2. The wife's mother asserted during cross-examination that the wife owes her parents approximately $13,000. The wife's mother gave evidence that whilst the wife had written a loan agreement, she did not have a copy of it. The loan was purportedly in relation to monies lent to the parties between 2012 and 2017 to be used towards a horse float, horses, and vet expenses.[56]
3. Despite the entry of $29,000 on the balance sheet, the wife asserted that the amount owed to her parents was $13,000. Despite the entry on the balance sheet the husband contested the $13,000, asserting that while loans were made during the relationship, they were paid out.
4. I am unpersuaded that the asserted loan balance remains unmet. The wife's ex post facto identification of liabilities to her parents (as set out below in relation to the purported transfer of horses to her parents) undermines reliance upon the wife's evidence in relation to amounts owing her parents, while the nature of the evidence from the wife's mother was, in that same context, lacking in any cogency.

1. On 13 May 2024 the parties agreed the value of the horses held by the partnership at separation in September 2020 was $165,400 (excluding four horses that the husband sought be valued, the values of which were subsequently agreed as set out on the balance sheet).
2. It was uncontroversial that these horses generated progeny, although the extent was not established. The wife contended that the bulk of these horses have been disposed of since the end of the relationship. Exhibit M6/F13 is the list of disposals both before and after separation described by the wife. The value assigned by the wife (in that document) to those disposals was $108,600 for 2020-21 (12 horses), and $37,590 for 2021-22 (24 horses and foals), totalling $146,190.
3. The partnership's tax return and financial statement for the 2020-2021 financial year showed a sales revenue of $120,281, with the wife contending that $108,600 of that amount was from the sale of horses.[57] This reflected the wife's description of the disposal of the horses at Exhibit M6/F13. Exhibit M6/F13 approximated the tax returns prepared for the partnership by the wife.
4. The 2020-21 tax return was executed by both the wife and the husband. In his evidence the husband asserted that he had not read the return and now disputed what he had represented to the Australian Taxation Office (the "ATO").
5. The 30 June 2021 stock register extract tendered by the husband at Exhibit F7 recorded stock at 1 July 2020 (shortly prior to separation) as 33, comprised of 13 horses of a certain breed and 21 other horses, which, if accurate, meant the horses held shortly prior to separation numbered 34. The register indicated a further eight progeny and six sold during the 2020-21 year. The net at end of the 2020-21 financial year would thereby equal 36.
6. This document sits poorly with the wife's assertion in her affidavit that there were 50 horses at separation (but more closely with her assertion as to 38 in her oral evidence). It also seems to sit poorly with the parties' joint representation to the ATO for the 2020-21 financial year and Exhibit M6/F13 as set out above.
7. Exhibit M26 was a list, described as "[Accountant's] list" (presumably in reference to the parties' accountant). Set out there were the values attributed by the wife and the husband to the horses, along with a list of disposals and prices for the post separation period between August 2020 and June 2022. The document records the disposal of about 34 horses and two foals (including the death of two horses, Horse 9 and Horse 8), and the retention of about five horses (although it appears that the parties have retained seven horses).
8. For the period from separation to June 2021, the value attributed to the disposals was about $126,000, with the balance of further recorded sales to June 2022 of about $34,000. These numbers do not coincide with the tax returns for those years, nor do they appear to correspond to the register at Exhibit F7.
9. The sales contended by the wife constituted about 36 horses and foals out of however many there were at separation. Taking into account the death of two horses, Horse 9 and Horse 8, and the retention by the parties of horses (noting a double count of Horse 7 due to her purported sale) this accounts for a total of 45 horses and foals.
10. Insofar as the horses and disposals in the 2020-21 year are concerned, under circumstances where the parties both represented the sale of such stock as a reality to the ATO, I am not now prepared to conclude otherwise, as urged by the husband, despite some inconsistency with other documents tendered. While those other documents provide cause for caution about the disposal of horses, the conduct of the case by each party led to a lack of clarity as to the significance of the documents and as to their veracity. The inconsistent testing of the witnesses in respect of the documents also led to uncertainty as to their significance.
11. The partnership's tax return for the 2021-2022 financial year (unsigned by the husband) showed a business income of $40,173. As set out above, in Exhibit M6/F13 the wife described the disposal of horses to a value of $37,590.
12. If Exhibit M6 is reasonably accurate, sales total approximately $146,000 in revenue from the sale of horses since separation until the end of the 2022 financial year. However, if Exhibit M26 is accurate, then (similarly excluding the livestock) there are sales recorded of about $160,000.
13. It can be seen that there is inconsistency between the various exhibits. The reasons for such inconsistencies remain unclear and, in large part, unaddressed.
14. In final submissions the husband conceded that of the sales of horses, $49,000 constituted real sales. It was unclear which sales comprised the $49,000 so conceded. However, further in those submissions the husband clarified his claim as to sham disposal of horses, to be that the only transactions that he asserted were a sham were the transfer of horses to the wife's parents and of Horse 7 to Ms N. As set out below, the purported transfer of horses to the wife's parents was of 18 horses.
15. The husband however contended that even the amount from genuine sales should be added back on the basis that the wife paid the amount almost in total into her personal accounts.
16. Assuming that the amounts were paid into a personal account, this occurred in circumstances where the wife bore the primary responsibility for the operation and expenses of the partnership, and whether the sales passed through her personal accounts or not, the proceeds formed the income of the perennially loss-making partnership as disclosed on the returns prepared by the wife for the partnership. An adequate rationale for the adding back of these amounts is not made out.
17. Different issues emerge in relation to the balance of the disposed of horses to the wife's parents and to Ms N. The wife contends that the bulk of the remaining horses were given to her parents in the circumstances set out below.
18. The wife described in her oral evidence that she disposed of 18 horses to her parents. The genuineness of this description was challenged by the husband. Exhibit F14 included a list of about 25 horses contended by the husband to have been purportedly transferred to the wife's parents. The significance or veracity of this part of exhibit F14 was never addressed, meaning that little or any weight could be placed upon it.
19. The identity of the horses that were purportedly sold to the wife's parents remained a mystery until the wife was cross-examined. The wife was asked about whether she had sold a number of horses from Exhibit F13, which was historic sales data prepared by the wife and included the sale price of each horse sold, but not the identity of the person the horse was transferred to. The wife agreed that she had sold the following 21 horses to her parents:

(1) Horse 10 ($12,500)

(2) Horse 11 ($10,000)

(3) Horse 12 ($15,000)

(4) Horse 13 ($10,000)

(5) Horse 14 ($12,500)

(6) Horse 15 ($7,500)

(7) Horse 16 ($8,800)

(8) Horse 17 ($10,000)

(9) Horse 18 ($1,500)

(10) Horse 19 ($500)

(11) Horse 20 ($1,000)

(12) Horse 21 (Sold with foal for $4,500)

(13) Horse 21's foal

(14) Horse 22 ($1,500)

(15) Horse 23 ($3,000)

(16) Horse 24 ($1,500)

(17) Horse 25 ($5,000)

(18) Horse 26 ($1,500)

(19) Horse 27 ($1,500)

(20) Horse 28 ($2,200)

(21) Horse 29 (foal)

1. Using the historic sales data from Exhibit F13, crosschecked with the information in Exhibit M26, the total value of the horses purportedly sold to the wife's parents is $96,500.
2. As described earlier, the purported justification for the transfer of the horses was to, in part, meet a requirement to pay the wife's father for work completed on the Town D property in furtherance of the upkeep of the property and the horses. The wife described in her affidavit that on the husband ceasing to work in the partnership, her parents told her that they were no longer prepared to support the partnership without compensation, or, on the part of her father, no longer prepared to offer his time and the use of his machinery without compensation.
3. The wife described that she calculated a monthly rate and paid her father at a rate of $30 per hour for 2.5 hours.[58] She described that this work ceased on her father having surgery in 2022. While in her affidavit evidence she said that she had paid her father, the notion that the payment was by an in kind transfer of the horses to him was a feature of her oral evidence. Similarly, the notion that a significant portion of the transfers set out in Exhibit F13 were cashless was also unclear prior to the cross-examination that identified which horses were transferred, purportedly, in kind.
4. In support of this explanation the wife identified that she had received invoices from her father.[59] However, in his evidence the wife's father described that he had not issued invoices until 2022, that the invoices were prepared by the wife, and that they had backdated them following discussion with the wife about payment about two years after the separation had taken place.
5. The wife did not place the purported invoices into evidence, nor did she even provide a total for the value of the purported invoices. At Exhibit F35 two invoices generated by the wife's parents were tendered. Even if they represented a genuine liability (they did not) they fall far short of the value of the horses.
6. The wife's father accepted that he had also been provided with a horse float at a value of $8,000, an '[...] machine and fencing' at a value of $4,000, a mower at a value of $2,500 and a crate at a value of $2,500. This was also to expunge a purported, but not established debt.
7. Similarly as set out above, the wife's mother accepted that the issue of payment was raised a year or so after the husband had left, and was backdated. She described that it was also to cover the increased diesel expenses for running the children around, as well as to cover labour expended. She also described the receipt of 18 horses.
8. The explanation of the transfer of items and horses by the wife to her parents as being required to meet debt arising from work undertaken on the Town D property, and other support such as ferrying the children around, should not be accepted. The retrospective generating of invoices to justify the transfers does not establish a debt arising from the efforts of the wife's parents, and should be concluded to be an attempt by the wife to denude the pool of property. There was no real transfer of the horses and items to the wife's parents. The transfer of horses to the wife's parents should be considered to be a sham transaction.
9. This is reinforced by the circumstance that although the wife claims that by June 2022 most of the horses owned by the partnership were sold, many remain in her care on the Town D property and some were being advertised for sale by her.[60] By way of example, the husband tendered at Exhibit F14 correspondence between the wife and another person in relation to the transfer and sale of a horse, Horse 30, and further the advertising of a horse, Horse 31.
10. In the same way it should also be considered that the transfer to the wife's parents of the float, 'fencing and [...] machine', mower and crate also formed sham transfers designed to denude the pool.
11. The consequence of these conclusions is that the pool of property includes the float, 'fencing and ultrasound machine', mower, crate and a further 18 horses.
12. This leaves a further contentious horse, Horse 7 ("Horse 7"). The husband is alleged by the wife to have stolen Horse 7 in November 2022. The husband contends that while he did collect the horse, there was an agreement between him and the wife that he would retain the horse after she had foaled, and hence, the horse is still registered in his name.[61] It remains in his possession.
13. The wife, supported by the evidence of Ms N, contends that the horse had been sold to Ms N in December 2021,[62] but subsequently returned with foal to Town D for weaning. That sale was contended by the wife and Ms N to have been effected without the transfer of any funds to meet the purported value, for that horse and others contended to have been transferred to Ms N, for a value of $9,090. The payment for the horses was said to have been met by an ex post facto liability for agistment for the horses that had been at Ms N's property. It should be noted that there had been no discussion regarding liability to meet agistment expenses until the purported acquisition of Horse 7, her foal and another horse, Horse 32. At that point the wife and Ms N each prepared invoices to reflect this arising liability which was then purportedly taken as discharged by the transfer of the horses.
14. It may be observed that despite the purported return to Town D of both Horse 7 and her foal, there appears to have been no addressing of a potential liability for agistment to be met by Ms N. There is some oddity in an ex post facto generating of liability for agistment while with Ms N as a justification for the transfer, yet no corresponding liability when the horse was held at Town D.
15. As between the husband and wife, the ex post facto generation of a liability forms a fragile basis by which to consider the passing of the title of Horse 7 for value to Ms N.
16. I am not satisfied that the purported transfer to Ms N was genuine.
17. It should be further noted that these allegations of theft did not feature in the wife's final submissions, and the significance of Horse 7 was not addressed, other than that she is a horse that the husband possesses and seeks to retain in settlement of property.
18. For the purposes of the pool of property, Horse 7 should be considered to remain a part of the pool.

1. The pool should thereby be reckoned as follows:

PROPERTY PURPORTEDLY BUT NOT ACTUALLY TRANSFERRED

1. The outcome of the resolved balance sheets leaves the parties with the following:
   • The wife holds assets of $33,073 and liabilities of $8,826. This amounts to a net value of $24,247. Inclusive of her superannuation of $127,298, this amounts to $151,545.
   • The partnership (jointly owned property) has assets of $1,002 and liabilities of $18,267. This amounts to a net value of -$17,265 (a net liability).
   • There is also the property that was purportedly but not actually transferred to her parents in the amount of $113,500.
   • The total net value of the wife's assets and liabilities, the purportedly transferred property and the value of the partnership's property is $120,482. Inclusive of her superannuation, this becomes $247,780.
   • There also exist the Town D properties and associated debt (the business loan), which amounts to a value of $995,000.
   • The husband holds assets of $22,125 and liabilities of $7,718 which amounts to a net value of $14,407. Inclusive of his superannuation of $239,583, this amounts to $253,990.
   • In total, the non-superannuation pool totals $1,129,889 and superannuation of $366,881. Combined, this amounts to $1,496,770.

1. The key property interests of the parties, as identified above, fall into four categories, being the chattels, the real property comprising of two blocks, the remaining property from the partnership, comprising, in large part, the contested horse disposals, and the parties' superannuation interests.
2. Before dealing with analysis of contributions and s 75(2) matters, it is appropriate to identify issues that arise from the manner in which each of the parties addressed the manner in which orders should be made to resolve each of their cases. Those issues revolve around how each proposed superannuation should be taken into account in circumstances where there is a significant disparity between the superannuation held by each of the parties.
3. The parties were of one mind that there be no adjustment of superannuation interests, that the wife would receive the partnership, and that the wife would have the option for the purchase of the Town D properties. An issue arises as to how each of the parties say that superannuation should be considered in that reckoning.
4. In short, the husband approached the issue on the basis that superannuation should be disregarded. The wife approached the issue as though there is no qualitative difference between superannuation and any of the property currently held by and accessible to the parties.
5. The husband submitted that contributions were equal at the time of the trial, and that there should be a 10 per cent adjustment in his favour for s 75(2). To reflect this, he submitted that the cash payment to him should result in him receiving 60 per cent of the non-superannuation pool. It can be observed that the submissions did not account for the imbalance in superannuation that benefits the husband, where he has superannuation of about $240,000 versus the wife's $127,000. Even giving full recognition to the fact that there is a significant difference between superannuation and current assets, particularly given the ages of the parties that means access to superannuation is significantly deferred, the mere disregarding of superannuation does not serve justice and equity well.
6. In contrast, the wife calculated a global pool that included debt to her parents, excluded the items putatively transferred to her parents, but that included the parties' superannuation interests.
7. The wife submitted that a property division of 70-30 be made in her favour and, on the basis that she retain particular chattels and the Town D properties, a cash payment would then need to be paid to the husband. Having calculated on that basis a total net pool of about $1,400,000, and her retention of various items totalling about $1,150,000, the wife submitted that a payment of about $157,000 would need to be made to the husband for a 70-30 division in her favour, or a payment of approximately $228,000 for a 65-35 division in her favour. By her orders sought she sought a payment of about $111,000 to the husband, which, on her calculation seems to equate to about 74-26 in her favour.
8. Accordingly, it can be seen that the wife approached the pool as a single pool, making no distinction between superannuation and non-superannuation interests, in circumstances where what the husband receives would be significantly weighted toward deferred assets in the form of superannuation. The husband approached the pool as disregarding completely the superannuation interests for the purposes of division, meaning that the wife would receive a significant proportion less than he reckoned on a consideration of contributions and s 75(2). Neither approach was adequate to achieve a just and equitable outcome even on the basis of the cases as presented by the parties.

1. The parties were in sharp disagreement about the assessment of their contributions. They descended into a detailed history of the various ways, over the entirety of the relationship, that they had made efforts directed to acquiring and maintaining property, and contributing to the well-being of the family. Amongst these were disputes about the role played by the wife's parents. There should be no doubt that the husband and wife received significant support from the wife's parents. However, at the same time, the husband and wife provided significant support to the wife's parents. During the relationship they worked cooperatively for their mutual benefit. This can be seen in the common use of machinery, from early until late in the relationship, cooperation in respect of the care and breeding of horses, agistment without fees, and enabling the wife's parents to erect a residence on the Town D property. This description should not be seen as exhaustive of their mutual efforts. However, it illustrates the conclusion that the efforts of the wife's parents during the relationship do not result in a higher assessment of the wife's contributions during the relationship. Similarly, to the extent that during the relationship the husband may have received a higher level of remuneration at times, that benefitted the parties in the context of their mutual efforts and such attracts no greater weight than the many and varied efforts of the wife.
2. During the relationship the parties' contributions should be assessed as equal.
3. Differences in contributions become apparent following the end of the relationship. While it should be recognised that the wife had the benefit of use and occupation of the greater part of the parties' combined property following separation, she also had thrust upon her the responsibility for the running and management of the parties' joint enterprise, as well as the primary care of the children.
4. Somewhat perversely, one aspect of the wife's contributions in conducting the partnership, while contradicting the case that she ran, operates to her benefit. That is, while the wife asserted that the partnership was depleted of property in the post separation period, in actual fact it was not. The full depletion was reliant upon the sham transactions to the wife's parents, which means that the property of the partnership and of the pool was greater than argued by the wife, and represents a contribution in the form of the maintenance of the property pool by the wife.
5. That results in the recognition that, in assessing the wife's contributions in continuing to run the Town D property and the horses, the wife facilitated the retention of those significant assets.
6. Initially following separation there was little financial contribution made by the husband, although this changed over the course of the separation as he contributed to the outstanding loan, and took over the full-time care of X.
7. On balance, the post separation period warrants an overall recognition of contributions as 60‑40 in the wife's favour.

Section 75(2)

1. That leaves the consideration of the s 75(2) matters. Despite a differential in income that favours the wife (the wife earning about $107,000 per year, the husband $58,000), the husband has demonstrated a capacity to derive income. Although he argued physical limitations, his post separation activities indicate otherwise. The wife has complained as to limited disclosure by the husband as to his income earning capacity in a context of income earned from a number of sources. Even so, and accepting that the husband may be able to earn a greater income, the husband's income earning potential can be assessed as significantly less than the wife's. On balance it appears that the wife has better prospects for earning income than the husband, as well as a husband with a highly variable income from his business who makes regular payments of what is described as rent to the wife of $900 per fortnight.
2. Each will have the responsibility for children, in particular for the husband, for the care of X, and for the wife the care of Y and Z. The wife will have those responsibilities for longer.
3. On the basis that an approach must be taken that incorporates the superannuation interests of the parties, and that no splitting of superannuation is countenanced by either party, recognition must also be given to the fact that in dividing a single pool the husband will receive property that, compared to the wife, is disproportionately deferred. Although that places him in a stronger position in terms of accumulation of superannuation, he will not have immediate access to land, home and other assets in the manner enjoyed by the wife.
4. The combination of that disparity, disparity of income earning and the context of the wife carrying greater responsibilities for the care of children of the relationship, on balance an adjustment pursuant to s 75(2) should be made favouring the husband, such that the overall property division would be 55-45 in favour of the wife.
5. In the circumstance set out above this forms a just and equitable adjustment.
6. While the parties sought various orders regarding chattels including horses, a goat, a dog and other items, each party currently has possession of various animals and should retain such as part of the settlement of property, absent sufficient reason to mandate the moving of animals. No adequate basis is set forward to make orders moving chattels between the parties.

1. Orders will be made to effect a global split of the entire pool 55-45 in favour of the wife, with each party to retain their superannuation entitlements, and with the wife to have the option to retain the Town D properties on payment of a specific sum to the husband, with a default sale mechanism. The wife will also retain the property and associated debt of the partnership.
2. The total net pool is valued at $1,496,770.
3. A 55-45 division results in the wife receiving net assets to the value of $823,224, the husband $673,546.
4. On the basis that each party receives and retains the chattels and debts in their possession, with the wife to retain the partnership chattels and debts, the wife will hold net items to a net value of $120,482 and the husband currently will hold items to a net value of $14,407.
5. In addition to the $120,482, the wife will retain superannuation of $127,298, and the Town D properties and associated debt to a value of $995,000, totalling $1,242,780.
6. From this, in order to achieve a 55-45 division, the wife will be required to make a payment to the husband of $419,556, resulting in the wife retaining net assets of $823,224, the husband $673,546.

1. The paramount consideration in determining what parenting orders should be made for X, Y, and Z is their best interests.
2. The recently amended s 60CC of the Family Law Act 1975 (Cth) ("the Act") sets out the considerations that, where applicable to the case are to be examined and weighed to determine best interests.[63] In this case, it is the considerations at s 60CC(2) that have general application. They are in the following terms:

(2) For the purposes of paragraph (1)(a), the court must consider the following matters:

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

(i) the child; and

(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);

(b) any views expressed by the child;

(c) the developmental, psychological, emotional and cultural needs of the child;

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;

(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;

(f) anything else that is relevant to the particular circumstances of the child.

1. As described in the Explanatory Memorandum,[64] the various considerations are designed to be non-hierarchical, non-exhaustive, able to allow different weight to be applied as appropriate to the individual child and, whilst guiding a court, permit flexible adaptation to each child's specific circumstances.
2. By their nature the considerations overlap and are entwined with each other. For example, issues of safety referred to at s 60CC(2)(a) can impact upon the capacity of a parent to provide for a child's psychological needs (s 60CC(2)(d)), and in turn impact upon the benefits of having a relationship with that parent (s 60CC(2)(e)). Similarly, the views expressed by a child at s 60CC(2)(b) can be indicative of the emotional needs of the child (s 60CC(2)(c)).
3. The considerations may point in different directions. It is the synthesis of all of the applicable considerations that will determine the outcome.

1. The wife had the primary care of the children during the relationship, moving into part-time work following the birth of X. The husband was heavily involved in the care of the children in the context of his ongoing full-time work.
2. The maternal grandparents assisted with care of the children, and the parties also used childcare.

Husband's time with the children since separation

1. In April 2020, the husband relocated to City E.
2. The wife describes that the children were initially distressed at the husband's move, and that she was left with the task of explaining to the children that the husband was no longer living there.
3. Initially there was good will between the parents, including in terms of facilitating contact with the children, illustrated by Exhibit M23. Exhibit M23 shows messages exchanged between the parents in the period 26 April 2020 through to 25 April 2024. In large part the exchanges were cordial, particularly so prior to May 2022 when the parties came into dispute as to an undertaking to be given by the husband as a prerequisite to time with the children. While the tendered messages do not tell the whole picture, they at least demonstrate strong good will between the parents in the initial period following separation.
4. The husband engaged in work on a contract basis enabling him to make the drive to Town D to see the children.[65] According to the husband, beginning in May 2020, he began travelling from City E to Town D approximately every five weeks to spend time with the children.[66] The wife disputes the consistency of these visits, describing that the husband made no effort to spend time with the children for the first three months following his move away. She says that the husband visited the children for the first time after separation on 11 July 2020, and then sporadically and with very little notice after that.[67] It was unclear whether the wife contested the ongoing frequency approximating each five weeks for visits.
5. The wife also says that she was concerned as to the living conditions for the children during time with the husband, as, for example, they camped during mid-winter. The wife has also refused to permit the children to spend time with the husband at their neighbour's home as she considers that the home is unsuitable as it is not insulated, and is cold.
6. The wife also claims that the husband was often late to pickups and drop-offs, which caused her and the children distress.[68] The husband disputes this, stating that he has always arrived within fifteen minutes of the agreed time for pickups and drop-offs.[69]
7. It can be accepted that the husband's move to the City E area meant that he was far less available to the children. His move placed a significant impediment on the time that the children were able to spend with him, and left the wife with the large part of the responsibility to care for the children.
8. Initially the wife was also left with the financial responsibility for the children, the husband not commencing the payment of Child Support from the time of separation. This also meant that the wife met substantial costs for extracurricular activities engaged in by the children, as well as significant school fees. The wife was required to lodge an application for Child Support, seeing financial contributions to the care of the children being made by the husband from June 2021.
9. On 3 September 2021, the wife claims she sent a proposal to the husband to spend scheduled time with the children but received no response.[70]
10. The first serious disagreement between the parties regarding time with the children appears to have been in relation to the December 2021 school holidays. They disagreed about whether the children would spend a three-week block with the husband, or whether it would be broken up. They also disagreed about which day would be the pickup day. The wife asserts that there was an agreement to return the children to Town D that was reneged upon by the husband, insisting that the wife collect the children from Sydney. The wife describes that this prompted her to insist on written undertakings from the husband detailing the arrangements for pickup and drop-off.
11. The husband described that he travelled from City E to Town D to collect the children. However, the husband described that after he arrived, the wife withheld the children from him for two days.[71] The wife accepts that the husband was at Town D for two days prior to permitting the children to go to him, alleging that he told the children that the wife was stopping them seeing him for that time. He further claims that the wife then sought to reduce the time that the children spent with him during the holidays from the agreed three weeks to two weeks, but that he ultimately spent three weeks with them.[72] The wife disputes this account, stating that the husband simply confused the agreed pickup date and that two weeks was the initial agreement.[73]
12. Accordingly, each parent asserts that they complied with the agreement, each asserting different content to the agreement. This appears to have marked a significant deterioration in the parenting relationship.
13. At the end of the husband's holiday time with the children, on or around 14 January 2022, the wife alleges that the husband refused to return the children to Town D on the agreed date and insisted the wife drive to Sydney and collect the children several days later.[74] The wife explains that because of this incident, she now requires an undertaking from the husband detailing the date, time, and location of pickups and drop-offs, as well as accommodation details. She also held a view that the undertakings were necessary due to her concerns about the suitability of the accommodation of the children when in the husband's care, claiming he would often take them camping in very cold temperatures.[75]
14. After the children retuned to Town D in January 2022, the husband was unable to see them until April 2022.[76] He claims that the wife withheld the children from him, and on or about March 2022, asked that he sign an undertaking before spending further time with them.[77]
15. The husband describes that from around May 2022 to October 2022, the children were again withheld from him.[78] On 27 May 2022 the husband drove to Town D to see the children, but the wife withheld the children because he had not signed an undertaking. The wife suggests that the husband was unable to spend time with the children for 'lengthy periods' as he sometimes refused to provide an undertaking. The husband claims that the wife withheld the children from him on Christmas day in 2022 because he was late to sign an undertaking.[79]
16. In January 2023 the husband filed a Notice of Risk alleging that the wife inflicted physical punishment on the children, was verbally demeaning of the children and asked them to perform farm work.
17. On 24 January 2023, orders were made for the children to live with the wife and communicate with their father in accordance with their wishes.
18. On 2 March 2023, the parties agreed to orders by consent that the children would spend nine‑day periods with the husband during each school term, school holidays would be shared equally, and the husband would call the children each Wednesday and Sunday. A notation was included in the orders that outlined several family friends who the husband proposed to stay with when in Town D with the children due to the wife's concerns about the children's accommodation when with the husband.
19. The husband states that, up until the events of October 2024 (which will be discussed below), he spent time with the children in accordance with these orders.[80] The husband complains that the children were often not available for telephone calls.

1. October 2024 marked a sharp breakdown of parenting arrangements, with X. On 12 October, shortly before the commencement of the trial on 21 October, X refused to return from the care of the husband to the wife's care. It appears that X had planned to remain with the husband following the holiday as he had discreetly removed some of his belongings and taken them with him to his father's house.
2. The wife sought a recovery order, which was opposed by the husband.
3. The three children were due to be returned from their school holiday time with the husband to the wife at Suburb J on Saturday 12 October. On that day X spoke with the wife by telephone and said that he was not coming back, as he needed more time. The husband told the wife that he would bring Y and Z to the handover, and bring X a few days later to Town D after speaking with him.
4. The wife insisted that the husband cause X to return. He responded that he had tried, but was unable to force X to get into the car. The husband said that he would continue to try to persuade X. The wife communicated directly with X urging him to return. The wife told the husband that she would obtain a recovery order for the then fourteen year old X.
5. The wife continued to try to call X, and messaged him seeking to persuade him to return, including:

"After all the love everyone in your family and friends here have given you, this is how you treat them? With a total lack of respect? What does that say about you and your values? [Mr R] and I are so sad and disappointed in you.....Once you do something that affects peoples trust in you, it is done. You can't get that back. You can work hard to recover it, but it's a difficult road."

1. The following day the husband told the wife that X was extremely upset and frightened, and that he was still refusing to return to the wife. The wife travelled to City E and attended the police station, who she says advised the wife that they could do nothing, and that the wife should speak with X.
2. The husband and wife messaged each other, the wife asking the husband to bring X to her to return home, the husband saying X would not. The wife said that she wished to speak with X in person and the husband said that the wife was welcome to attend at his brother's home. She did so in company with her husband, Mr R. Both she and the husband caused the interaction to be recorded.
3. A conversation then took place in the presence of the husband and his brother and sister-in‑law, who intervened in the conversation along with Mr R. By this process X was exposed to inappropriate comments between the adults. For example, the husband's brother, early in the conversation commented that "it's appalling what we've heard going on down there" and "the minute he says out youse are to leave the place [sic]."
4. X expressed to the wife that he did not wish to return, saying he had been treated unfairly, was the first to get yelled at, and was blamed for everything. The wife explained that there were orders in place that governed the arrangements, and would require alteration through a process.
5. The husband's sister-in-law intervened, explaining that X was frightened of the wife.
6. An argument between the adults took place in X presence.
7. The husband said that if X changed his mind he would drive him to Town D. The wife said that she would obtain a recovery order.
8. X did not leave with the wife.
9. X and the wife had a further conversation that evening by telephone. X hung up on the wife, who called back. They argued over whether X was going to talk to the wife about what was upsetting him.
10. The following day the wife emailed X, advising that he would miss out on a camp and playing sport.
11. In the following days the wife made a report about her concerns to the Department of Communities and Justice.
12. In response to the wife's application, on 22 October 2024 I caused X to attend upon a Court Child Expert, to whom X expressed strongly that he would not return to his mother, and expressed that he did not feel safe to return to her.
13. In response to the interim application for the return of X, on 23 October 2024 I made interim orders that provided for X to live with the husband. Reasons for doing so are contained in the judgment of that day, but included a conclusion that there was no "realistic immediate prospect that the parents can cause ([X]) to return." This was in the context that X was aged fourteen and had previously been assessed as a mature young person. I also concluded that acceding to the wife's request for a recovery order, with a police attendance, would cause further damage to the relationship between X and the wife.
14. The husband was due to spend time with Y and Z on 15 November 2024. The wife messaged the husband the day prior, saying that the girls would not be seeing him. The wife explained the withholding to the report writer on the basis that she "lost confidence in both the existing Court orders and the willingness to enforce them."
15. By her affidavit of 20 January 2025, the wife explained her retention of the girls on this occasion:

I became concerned that if [Y] and [Z] spent time with [Mr Jaskolski] or his family prior to the family report interviews the girls would be exposed to the entirely inaccurate extremely negative view of me and my household which appeared to be inexplicably held by [X], [Mr Jaskolski] and the [Jaskolski] family.

I was of the view that until [X] and I had the opportunity to participate in family therapy and I understood why [X] had taken the position he had, I was unwilling to risk [Y] and [Z] leaving my care and being exposed to the parental conflict by [Mr Jaskolski] or the [Jaskolski] family. I was concerned that [Y] and [Z] may have been manipulated or coached prior to the family report had they spent time with [Mr Jaskolski] or his family on that occasion.[81]

1. The husband says that he has organised counselling and has encouraged X to have contact with the wife. He described that after a counselling session the wife contacted X to prevail upon him to return to her in Town D. The husband says that X was sobbing after the call.
2. The husband took X to Town D in advance of Christmas, in part to enable X to see his sisters. He encouraged X to message the wife and her parents about seeing them while he was in Town D. The husband, X, Y and Z spent time together in advance of Y and Z travelling with the husband for the holiday period.
3. X messaged the paternal grandmother, who responded in a most unsympathetic manner to X.
4. The husband was due to collect the girls on 10 January 2025. The wife and Mr R attended with the girls for handover, but without any luggage for the girls. Y said to the husband that she and Z wanted to return early for Z's birthday. The wife and Mr R intervened, effectively insisting that the husband there and then accede to the request for an early return (on the basis that this accorded with the wife's understanding of what the girls wanted). A heated argument took place in the presence of the children between the adults.
5. The girls did not go with the husband. Having listened to the interaction that was recorded, it can be concluded that the wife was undermining the girls' time with the husband, in a manner inconsistent with her obligations pursuant to the orders.
6. This is particularly troubling, coming as it did following the release of the Family Report that cautioned against the wife preventing the girls spending time with the husband. While in this instance there was not a direct withholding, the wife's failure to encourage and support the girls' time with X and the husband in accordance with the orders failed to take heed of the caution expressed by the report writer. Perhaps the wife had not absorbed the caution expressed by the report writer, but even so the failure to adequately support the girls' attendance for school holiday time represents a significant deficit in her understanding the girls' needs.

1. A Child Impact Report was prepared on 11 May 2023, a Family Report on 4 April 2024, a short report on 22 October 2024, and a further Family Report on 18 December 2024. It was the last of these that was the most significant given the evolution of the dispute.
2. That report recommended that X live with the husband and spend half school holidays and one to two long weekends with the wife each term. It recommended that Y and Z live with the wife and spend up to a ten-day period with the husband in Town D each term in addition to half of the school holidays. As part of these arrangements, it recommended that the children spend the whole of the school holidays together.
3. The report further recommended that the wife complete a parenting course directed to alternate strategies for discipline and communication, that both parents be restrained from using physical discipline, from discussing the proceedings, and from exposing the children to denigration of the other parent. The report writer recommenced the parents consider therapy for Y and Z with the wife and X, and that the report be given to Ms S, to assist in the family therapy.
4. X expressed a strong view to the report writer that he wished to remain living with the husband, but also that he wanted to be able to see his sisters and his mother. Despite concerns expressed by X about how he might be treated by the wife (in a manner that corresponded with the report writer's assessment of the wife's parenting style), X expressed a desire to spend increased time with the wife. His relationship with the wife may be taken to be one that he values despite the current rift.
5. The report writer assessed X as mature and observed that he is of an age where it is appropriate to "gradually increase age appropriate autonomy in his relationships."
6. X was able to express his rationale for wanting to remain living with the husband, and demonstrated increased emotional well-being since the move to the husband.
7. Y and Z expressed highly positive views of the wife, consistent with both a more positive relationship with the wife, but also consistent with each harbouring concerns as to the wife's reaction.
8. Y and Z expressed strong views across all of the assessments that they want to live with the wife. They both denied feeling scared in the presence of the wife. The report writer noted that the girls have consistently lived with the wife in Town D for their whole lives.
9. The report writer observed that Y appeared aware of the wife's concern not to lose the girls as well as X. While acknowledging why it may be understandable that the wife may hold concerns about the return of the girls when they spend time with the husband, the report writer observed that "preventing [Y] and [Z] from spending time with [Mr Jaskolski] and subsequently [X], is likely to cause more harm than good, particularly as [Y] and [Z] both value their relationship with [Mr Jaskolski] and deeply miss [X]." The report writer further observed that preventing the girls from spending time with X and the husband would involve them further in the parental dispute.
10. The report writer assessed that the husband lacked insight into the impact on Y and Z's sense of stability and routine if they were to move into his care.

1. The best interests of the children are met in X remaining living with the husband, and with Y and Z remaining living with the wife. These arrangements reflect the strongly expressed views of each of the children, and also reflect stable and appropriate living arrangements for each.
2. Requiring X to move to live with the wife against his strongly held views would be highly destabilising for X, in a manner unlikely to be tolerated by him, while remaining with the husband is an arrangement that appears to be reaping an improvement in X's well-being.
3. A change to the arrangements for Y and Z would likely be experienced by them as highly disruptive. They have always been in the care of the wife at Town D, and experience a strong preference to remain. They do not experience the conflictual relationship with the wife that X has described.
4. The significant deleterious issue that Y and Z face while living with the wife is the further disruption of their relationships with X and their father. As observed by the report writer, withholding by the wife carries harm with it and involves the children in the dispute between the parents. Unfortunately, since the release of that report the wife has acted in a manner disruptive of the relationship with X and the husband, in her conduct as seen at the January handover, in presenting at least a passive resistance to Y and Z spending time with the husband and X.
5. Whether cynically or genuinely motivated, the prospect of ongoing disruption of the relationships between Y and Z with the husband and X fails to adequately recognise the emotional and relational needs of Y and Z, and represents a deficiency in the wife's parenting capacity.
6. However, that risk does not at present outweigh the benefits to Y and Z of remaining in the primary care of their mother. It is the wife who has always been entrusted with this primary role, both before and after the end of the relationship. After the end of the relationship it was the wife who carried the day-to-day care of the children in circumstances where the husband had relocated to the City E region, a number of hours away. The wife has displayed a consistent and deep capacity to care for the children, even if there has been a rift develop between the wife and X. Despite the deficits in the support of the relationship between Y and Z with X and the husband, and despite the potentially adverse effects if that were to continue, Y and Z's best interests are met by continuing to live with the wife.
7. The allocation of parental responsibility that meets each child's best interests presents difficult issues. The husband seeks sole parental responsibility for each, presumably on the basis that they each live with him. The wife seeks a more layered approach of sharing parental responsibility, save for education and health decisions for the child or children living in each parties' care.
8. Each approach gives some recognition to the deep gulf between the parties and limited cooperation available. While initially following separation the parties were able to communicate in a warm and supportive manner, that is no longer the case (illustrated in part by the husband's use of a witch as the wife's contact photo).
9. In those circumstances it is the parent who has the child in their care that is in the best position to make educational or health decisions, unhindered by a need to reach agreement about those issues with the other parent. Each parent appears to have the necessary capacity to do so, and each parent would, it seems, find it unreasonably difficult and burdensome to be required to obtain the agreement of the other parent.
10. In reaching this assessment of capacity it should be noted that, even though some criticism has been levelled at the wife in relation to health care, I am not satisfied that such criticism is well placed, particularly where the husband seemed content to leave matters in the wife's hands.
11. Although X has been in the sole care of his husband for only a short time, he appears to be emotionally thriving, pointing to adequate decision making by the husband in the realm of issues such as schooling.
12. The wife proposes that outside education and health there be a sharing of parental responsibility. It is somewhat difficult to envisage long-term decisions for these children that will fall outside those realms, and it may be anticipated that such would be unusual, and thereby decisions of a nature where, despite the difficulties faced by the parents in communicating, the children may benefit from the input of both of their parents.
13. On this basis the orders proposed by the wife in relation to parental responsibility are appropriately adapted to the children's best interests.
14. The orders proposed for Y and Z to spend time with the parent that they do not live with are mirrored. They reflect the sort of frequency and duration both recommended by the report writer and generally adopted by the parents to date. The orders proposed by the wife, mirrored as they are by the husband, appropriately provide for time for the school holidays and school terms to allow them to maximise the benefit of the relationship with the husband, given the distance involved.
15. Both parties sought orders that X spend time with and communicate with the wife in accordance with his wishes. It is appropriate and in X's best interests to give him such agency in the relationship with the wife.
16. Both parents sought orders that provide for both structured electronic communication and further communication as the children wish. Such arrangements are appropriate given the ages and stage of development of the children.
17. Each of the parties sought provision for Mother's Day, Father's Day and the children's birthdays. While it is difficult seeing the practicality of such arrangements, the commonality between the parties is sufficient to indicate that they will be able to accommodate the arrangements. Those proposed by the wife in relation to birthdays are preferable given the distances involved.
18. School holiday handovers will occur at the Suburb J McDonalds, unless otherwise agreed, while term time holidays shall occur at school unless otherwise agreed.
19. The parties had no agreed position regarding passports and overseas travel, and did not address such.
20. The parties both sought orders restraining from denigration or discussion of the proceedings. The husband sought a restraint from physical discipline. To the extent that the restraints were mutually sought, it may be accepted that the parties refraining from such is beneficial to the children and the restraints are appropriate. Although there were physical discipline issues at trial, I am unpersuaded that such form an ongoing issue requiring a restraint.
21. The husband sought that Mr R be restrained from attending at handover. Such a restraint is beyond power given Mr R is not a party.

1. Orders will be made to implement the above conclusions, largely adopting the structure proposed by the wife.

I certify that the preceding two hundred and forty (240) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Final Orders sought by the father - Further Further Further Further Amended Response to Initiating Application (Family Law)

Parenting

1. That all extent orders be dismissed.
2. That the Respondent have sole parental responsibility for the children X born in 2010 ("X"), Y born in 2012 ("Y") and Z born in 2016 ("Z").
3. That X live with the Father and spend time with the Mother in accordance with his wishes.
4. That Y and Z live with the Father and spend time with the Mother as follows:
   1. During school term:
      1. from the conclusion of school on Friday or 9am if a non-school day until the commencement of school on Monday nine days after the commencement of the Mother's's time, or if Monday is a non-school day, then until the commencement of the school on Tuesday for each for each fifth and sixth weekend of the school term with the Mother at liberty to upon three (3) one (1) months written notice elect to spend such equivalent time with Y and Z commencing on the fourth weekend or on the seventh weekend of school term; and
      2. time to take place in City E.
   2. by phone, FaceTime or video call initiated by the Mother at 6.30pm each Wednesday and Sunday with the Father to ensure Y and Z's availability to participate in such call with the mobile telephone appropriately charged;
   3. Y and Z be at liberty to call and message the Mother at such times as they will do so without hindrance at all reasonable times as requested by them;
   4. For one half of school term holiday periods with the first half with the Father in odd numbered years and with the Mother in even numbered years.
   5. For one half of the long summer holidays each year, alternating each year, with the Father to have the first half of the long summer holidays in 2025.
   6. Christmas will alternate each year, with Y and Z to remain in the care of the parent with whom they are spending time, in accordance with Order 4 (e) herein, commening with the Father in 2025.
   7. Easter will alternate each year, with Y and Z to remain in the care of the parent who has the children in accordance with Order 4 (d) herein, commening with the Mother in 2025.
   8. That on Y and Z's respective birthdays they shall spend time with the parent whose care they are not in accordance with these Orders, from the conclusion of the school day (or at 3:30 PM if it is a non-school day) until the commencement of school the following day (or 9:00 AM if it is a non school day).
   9. That Y and Z shall spend time with the Mother from the conclusion of the school day (or 3:30pm if a non-school day) on Friday immediately preceding Mother's Day weekend until the commencement of the school day on Monday following Mother's Day (or 9:00am if a non-school day).
5. That the children shall spend time with the Father from the conclusion of the school day (or 3:30pm if a non-school day) on Friday immediately preceding Father's Day weekend until the commencement of the school day on Monday following Father's Day (or 9:00am if a non-school day).
6. That change over be conducted:
   1. During school term, at the completion of school or 3:30pm if a non-school day in City E and on a non school days at City E McDonalds; and
   2. During all school holiday periods, at 12:00pm at a halfway point and in absence of agreement between the parties in writing, at Sydney McDonalds Suburb J.
7. For the avoidance of doubt, the midpoint of all school holiday periods will be 12:00pm on the day calculated to be half of the totality of the days that comprise the gazetted school holiday period and where uneven then the day immediately following such uneven calculation (e.g. for a 21 day holiday period the mid point for changeover will be on the 11th day at 12:00noon).
8. That within seven (7) days of these Orders the Father provide a list of items sought by X to the Mother (including his pet) and within a further seven (7) days the items be made available for collection from the Mother's residence by the Father.
9. That until Z has her own phone, the Father be added to her Messenger Kids account.
10. That the Mother's partner, Mr R, be prohibited from leaving the car during any changeovers for the children.
11. That the Mother enrol in and complete a parenting course such as tuning into teens and that the Mother is to provide a copy of the certificate of completion within seven (7) days of completing the course to the Father.
12. That the parties communicate through a parenting app only unless it is an emergency when they can telephone call.
13. The parties must not and must not allow any other person to on their behalf:
    1. Denigrate the other parent to or in the hearing or presence of the children or either of them and/or allowing the children to remain in the presence or hearing of any third party who doing something that is prohibited by this Order;

a. Discuss any legal proceeding involving the parties with the children

or

in the hearing or presence of the children or either of them, including allowing or causing either of the children to view or read any material filed or associated with any legal proceedings as between them;

1. Administer physical discipline, harming or abusing the children or either of them.

1. The parties be at liberty to provide a copy of these orders to any school or medical practitioner or allied health professional to which the children attend.
2. The parents be expressly permitted by this order to attend all school-based events/activities and extra-curricular events involving Y and Z whilst they are in the other parent's care.
3. Such further and other Orders as this Honourable court deems appropriate.

Property

18. That there be notional add-back to the matrimonial asset pool in the sum of $165,400 as a result of the business activities of the equine business to parties related to the Applicant in wanton and reckless disregard of the obligation to preserve the matrimonial asset pool and/or further and in the alternative in order to thwart the Respondent's entitlements to a just and equitable property adjustment.

19. That the Applicant within thirty (30) days of the date of these Orders pay to the Respondent such amount as determined by this Honourable Court as to constitute sixty (60) percent of the superannuation excluded matrimonial asset pool with the Respondent to contemporaneously transfer all of his right title and interest in the properties situate at and known as 2 K Street, Town D in the State of New South Wales and 1 K Street, Town D in the State of New South Wales ("the Town D properties") at the expense of the Applicant ("Payment and Transfer").

20. That contemporaneous with the Payment and Transfer, the Applicant do all such acts and things and sign all such documents so as to refinance the mortgage encumbrances secured against the Town D properties into her sole name and indemnify and keep indemnified the Respondent in relation to the same including in relation to all rates and like apportionable expenses.

21. That in the event that the payment is not made in accordance with paragraph 5 then that the Town D properties be forthwith sold by such agent as agreed between the parties within seven (7) days and in default of agreement with the Applicant to nominate three (3) agents and the Respondent to select the selling agent from those nominated by the Applicant, on such terms and conditions as agreed between the parties and in default of agreed as recommended by selling agent and upon completion of the sale the proceeds of sale be applied as follows:

(a) Firstly, to pay all costs, commissions and expenses associated with the sales;

(b) Secondly, to discharge the mortgages associated with the properties;

(c) Thirdly, to pay to the Respondent so much of the Payment as is then

outstanding together with interest calculated at 10% from the date of noncompliance;

(d) Finally, the balance to the Applicant.

22. In the event of Payment and Transfer and/or sale, that pending completion of the Payment and Transfer or pending completion of the Sale the parties be restrained from drawing down on or in any way encumbering the Town D properties and further that in the event that the Applicant fails to comply with these Orders in relation to the Payment and Transfer and/or sale that the Respondent be appointed pursuant to section 106A of the Family Law Act 1975 to execute all such deeds or instruments in the name of the Applicant and do all such acts and things necessary to give validity to the deed or

instrument required to give effect to the same.

23. That the Applicant retain to the exclusion of the Applicant, the equine and associated businesses, and indemnify and keep indemnified the Respondent in relation to the same with the Respondent to within fourteen (14) days of these Orders do all acts and things and sign any such documents as may be required to relinquish all of his right, title and interest in relation to the same.

24. That with 14 days of these Orders the Applicant do all acts and things and sign all documents required to transfer the following to the Respondent:

i. Horse 1

ii. Horse 2

iii. Horse 25

iv. Horse 12

v. Horse 10

vi. The dog

vii. double up panels (portable horse yards)

viii. chain saw; and

ix. camping gear.

25. That the Applicant do all things necessary to facilitate the Responsent's collection of the items listed at Order 10 herein with 14 days of these Orders.

26. That unless otherwise specified by these Orders:

(a) Each party be solely entitled to the exclusion of all others to all other property (including choses-in action, motor vehicles and horses) in the possession of such party save for those referred in these orders, as at the date of the Order;

(b) Each party hereby foregoes any claim they may have to any employment or superannuation benefits that is belonging to or owned by the other save as provided for in these orders;

(c) each party be solely liable for and indemnify the other against liability encumbering any item of property to which the parties are entitled pursuant to the Order; and

(d) any joint tenancy of the parties in any real or personal estate be expressly severed.

27. That there be no superannuation split.

28. That the Applicant pay the costs of and incidental to this proceeding of the Respondent on a solicitor and own client basis.

29. Such further and other Orders as this Honourable Court deems appropriate.

Final orders sought by the mother - Further Further Amended Initiating Application filed 19 January 2025

Parenting

1. That the parents have equal shared decision making responsibility for the care, welfare and development of the children of the relationship, namely X, Y and Z (the children), save that:

the father shall have sole decision making responsibility in relation to education and health for X, and

the mother shall have sole decision making responsibility in relation to education and health for Y and Z.

1. Each parent will be responsible for day-to-day decisions concerning the care of the children when the children are living with them or spending time with them.
2. That X live with the father and spend time and communicate with the mother in accordance with his wishes.
3. That Y and Z live with the mother.
4. That Y and Z spend time and communicate with the father as follows:
   1. Unless agreed otherwise, from the conclusion of school, or 3:30pm if Friday is a non-school day, on the Friday which is the fourth weekend of the NSW Education standard school term to the commencement of school on the Monday which is nine days later, or the commencement of school Tuesday if Monday is a non-school day, commencing the first term of 2025. Should the Father wish to avail himself of this time he is to provide evidence to the Mother 14 days prior to the commencement of time that he has secured accommodation within 60 minutes drive of the children's respective schools that allows for two bedrooms for the exclusive use of him and the children. Should the Father not provide the Mother with such evidence within that timeframe, the Father is taken not to intend to exercise his time with the children and instead the children will spend time with him each fourth and seventh weekend of the NSW Education standard school term, commencing the first term of 2025 from the conclusion of school Friday, or 3:30pm if Friday is a non-school day, to the commencement of school Monday, or the commencement of school Tuesday if Monday is a non-school day.

Unless agreed otherwise, for the second half of each short NSW Education standard school holiday period.

The children's time with the father in the short school holidays shall commence at 1:00pm on the Saturday of the middle weekend, changeover to occur at Sydney McDonalds, H Street, Suburb J, New South Wales, and conclude at the commencement of the first school day of the new term.

Unless agreed otherwise, for one half of the NSW Education standard school holiday long summer period the children's time with the Father shall,

in odd years, commence on the day after the first day of the NSW Education Standard school holidays and conclude at 1.00pm on the day measured from that day and equalling half of NSW Education standard school holiday period, and

in even years commence at 1.00pm on the day that is the halfway point of the NSW Education standard school holiday period and conclude on the last Sunday of the NSW Education standard school holiday period at 1.00pm, with the halfway point measured from that day.

Changeovers in the long summer school holiday period are to occur at Sydney McDonald's, H Street, Suburb J, New South Wales.

Special occasions

Unless otherwise agreed, in odd years of the children are not in the Father's care on the children's birthdays, from after school until 6.00pm If a school day, or from 9.00am to 4.00pm if a weekend day.

On Father's Day from 5pm the Saturday before Father's Day until 5.00pm on Fathers' Day.

On Mother's Day, if the children are in the Respondent's care, from 5:00pm the Saturday before Mother's Day until 5:00pm on Mother's Day.

Such further and other times as may be agreed between the parties.

Notwithstanding the above Orders, once each of the children commenced high school collection and return of the child or children may be at Town G at 3:15pm and 8:45am respectively or at Town D at 4:00pm and 8am respectively to allow the children to travel to school in Town G by bus.

Notwithstanding the above Orders, should the Mother or the Father wish to make arrangements for the children to travel unaccompanied by air, that parent shall provide the other parent with documents evidencing the purchase of tickets, including flight numbers and boarding times no less than fourteen days before the date of travel. All such travel shall occur during the parent who decided the children should travel by air's time with the children and at that parent's cost. The parent shall not book flights which depart City B Airport or City E Airport prior to 9.00am or arrive at City B Airport or City E Airport later than 5:30pm. If the transport is not paid for before the 14 day period ends the time with the children will be suspended until the tickets are paid for and provided to the other parent. The mother will transport the children to and from City B Airport. The Father will transport the children to and from City E Airport.

8. The parties shall do all things and sign all documents necessary to apply for passports for each of the children, should either parent wish to travel overseas with the children. The costs of such applications shall be borne by the parent who wishes to undertake the overseas travel.

9. The mother shall hold Y and Z's passports and make the passports available only for the purposes of their travel as authorised by these orders.

10. The father shall hold X's passport and make the passport available only for the purposes of his travel as authorised by these orders.

11. That either parent be permitted to travel overseas with the children during any period of time that the children would otherwise be spending with that parent pursuant to these Orders.

12. The travelling parent shall provide the other parent with 8 weeks' notice of their intention and no later than two weeks prior to the intended departure date shall provide to the other parent a copy of return airline tickets for the children and an itinerary for the trip, including contact details for the children while they are overseas.

13. That each parent encourage and facilitate telephone or video communication between the children and the other parent whilst the children are in their care at 6:30pm every Wednesday and Sunday night with the parent not with the children at the time to initiate the call.

14. That in addition to the above, the children be at liberty to call and message either parent at such times as they wish to do so without hindrance at all reasonable times requested by them.

15. That each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within 7 days of such change.

16. That in the event of emergency the parent with whom the child or children are with contact the other parent forthwith to inform them of the occurence.

17. That each of the parties, their servants and agents be hereby restrained by injunction from:

(p) Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party and

(q) Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children, and from permitting any other person to do so.

18. That both parents be permitted to liaise directly with the children's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children's progress.

19. That each party is at liberty to attend at the said children's school for the purposes of any function or activity normally attended by parents.

20. That pursuant to Sections 62B and 65DA of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

Property

18. That within 60 days of the making of these orders, the father do all such acts and things and sign all necessary documents so as to transfer to the mother all his right title and interest in the former matrimonial home situated at 2 K Street, Town D NSW and the adjacent vacant block, being the whole of the land comprised in title references ... and ....

The transferring party shall vacate and give vacant possession of the home to the other within 7 days of making these orders.

That contemporaneously with the transfer set out above the parties do all such acts and things and sign all necessary documents so as to discharge the mortgage on the subject property and replace it with a mortgage to the party acquiring the property alone.

That contemporaneously with the transfer and remortgage the mother pay to the father the sum of $111,271.00.

19. That within 7 days of these Orders the father is to do all such acts and sign all necessary documents to resign from the partnership known as Jaskolski and Beiler Partnership, ABN ... and TFN ... located at 2 K Street, Town D NSW. Further, he is to do all such acts and sign all necessary documents to transfer his right title and interest in the partnership, to the mother. From that date the mother shall be responsible for any and all partnership debts.

20. That the parties retain all their right title and interest in and to their superannuation entitlements and have no further claim on such entitlements of the other.

21. That within 30 days of making these orders the father shall make available Motor Vehicle 1, Horse 7, the Applicant's ring and the Applicant's necklace for collection by the mother, her servants or agents.

22. That within 30 days of the making of these order the Respondent shall do all such acts required and sign all documents necessary to transfer the registration and possession of the two firearms to the Applicant.

23. That the Applicant shall retain the dog.

24. That within 30 days of making these orders the Respondent shall do all such acts required to enable collection of the goods and chattels listed in annex A, and concentrated in shed‑storage at 2 K Street, Town D NSW, by the Respondent, his servants or agents. Access to the property will be solely for the purpose of enabling collection of such goods and chattels and shall be stipulated in writing and provided by the Applicant. If the Respondent fails to collect such goods and chattels within 30 days of the date of these orders, the Applicant will be at liberty to dispose of such goods and chattels.

25. That within 30 days of making these orders the Respondent will do all such acts and sign all necessary documents to reinstate the Applicant as an authorised signatory on behalf of the equine enthusiast Society membership of Mr Jaskolski and Ms Beiler; Membership Number ....

26. That the mother be solely responsible for the debts owed to:

(a) Her parents;

(b) NAB card account;

(c) WBC card account in her sole name; and

(d) WBC loan.

27. That the father be solely responsible for the debt owed to his parents and the WBC card account in his sole name.

28. That other than as otherwise set out in these orders the parties have the sole right title and interest in any other property which is at the date of these orders in their possession title or name and they shall be solely liable for and indemnify the other against any personal liabilities.

29. That the respondent and applicant do all acts and things and give all consents and execute all documents and writings necessary to give effect to these orders.

30. That in the event that either party refuses or neglects to execute any deed or instrument, the registrar of the court be appointed pursuant to section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.

31. That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money under these or any subsequent orders:

(a) each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these orders;

(b) any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;

(c) each party foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these orders;

(d) all insurance policies are to become the sole property of the owner as named;

(e) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

(f) any joint tenancy of the husband and wife in any real or personal estate is expressly severed.

END OF ORDERS

IT IS NOTED

A. That pursuant to section 81 and 90ST the parties intend that these orders shall, as far as practicable, finally determine the financial relationship between them and avoid further proceedings between them.

[1] Stanford v Stanford [2012] FamCAFC 1; (2012) 247 CLR 108 per French CJ, Hayne, Kiefel and Bell JJ at [35] ("Stanford").

[2] Bevan v Bevan [2013] FamCAFC 116; (2013) 49 FamLR 387 per Bryant CJ and Thackray J at [86].

[4] [2005] FamCAFC 104; (2005) FLC 93-218 ("Omacini").

[5] ([2018] FamCAFC 173; 2018) FLC 93-858.

[6] [1981] FamCA 70; (1981) FLC 91-092.

[8] [2019] FamCAFC 78; (2019) FLC 93-898.

[9] Husband's affidavit 6 August 2024, [4] and wife's affidavit 5 August 2024 [1].

[10] Husband's affidavit 6 August 2024, [6].

[11] Wife's affidavit 5 August 2024, [11].

[12] Husband' affidavit 6 August 2024, [6].

[13] Husband's affidavit 6 August 2024, [6].

[14] Wife's affidavit 5 August 2024, [4].

[15] Wife's affidavit 5 August 2024, [8].

[16] Wife's affidavit 5 August 2024, [12].

[17] Husband's affidavit 6 August 2024, [7].

[18] Husband's affidavit 6 August 2024, [8] and wife's affidavit 5 August 2024, [13].

[19] Husband's affidavit 6 August 2024, [9].

[20] Husband's affidavit 6 August 2024, [9]

[21] Wife's affidavit 5 August 2024, [15].

[22] Wife's affidavit 5 August 2024, [16].

[23] Husband's affidavit 6 August 2024, [11].

[24] Wife's affidavit 5 August 2024, [19].

[25] Wife's affidavit 5 August 2024, [23].

[26] Wife's affidavit 5 August 2024, [24].

[27]Husband's affidavit 6 August 2024, [10] and wife's affidavit 5 August 2024, [24].

[28] Wife's affidavit 5 August 2024, [26].

[29] Husband's affidavit 6 August 2024, [11]-[13].

[30] Husband's affidavit 6 August 2024, [5].

[31] Husband's affidavit 6 August 2024, [12].

[32] Husband's affidavit 6 August 2024, [12], and wife's affidavit 5 August 2024, [118].

[33] Husband's affidavit 6 August 2024, [12]-[13].

[34] Wife's affidavit 5 August 2024, [20].

[35] Wife's affidavit 5 August 2024, [120].

[36] Wife's affidavit 5 August 2024, [27].

[37] Wife' affidavit 5 August 2024, [28].

[38] Wife's affidavit 5 August 2024, [27]-[28].

[39] Wife's affidavit 5 August 2024, [27]-[28].

[40] Husband's affidavit 6 August 2024, [17].

[41] Husband's affidavit 6 August 2024, [17].

[42] Husband's affidavit 6 August 2024, [4].

[43] Husband's affidavit 6 August 2024, [19].

[44] Wife's affidavit 5 August 2024, [50].

[45] Husband's affidavit 6 August 2024, [19].

[46] Husband's affidavit 6 August 2024, [23], wife's affidavit 5 August 2024, [53].

[48] Wife's affidavit 5 August 2024, [59].

[49] Wife's affidavit 5 August 2024, [79].

[50] Cross examination of wife on 22 October 2024.

[51] Wife's affidavit 5 August 2024, [55].

[52] Wife's affidavit 5 August 2024, [58].

[53] Wife's affidavit 5 August 2024, [59].

[54] Wife's affidavit 5 August 2024, [59].

[55] Wife's affidavit 5 August 2024, [100]-[101].

[56] Wife's affidavit 5 August 2024, [40].

[58] Wife's affidavit 5 August 2024, [58].

[60] Husband's affidavit 6 August 2024, [22].

[61] Husband's affidavit 6 August 2024, [25].

[62] Wife's affidavit 5 August 2024, [101].

[63] Phillips & Hansford (No 2) (2019) FLC 93-917 at [43]; Jollie & Dysart [2014] FamCAFC 149 at [45].

[64] Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth).

[65] Husband's affidavit 6 August 2024, [47].

[66] Husband's affidavit 6 August 2024, [48].

[67] Wife's affidavit 5 August 2024, [138].

[68] Wife's affidavit 5 August 2024, [145].

[69] Husband's affidavit 6 August 2024, [50].

[70] Wife's affidavit 5 August 2024, [148].

[71] Husband's affidavit 6 August 2024, [54].

[72] Husband's affidavit 6 August 2024, [54].

[73] Wife's affidavit filed 5 August 2024, [149].

[74] Wife's affidavit 17 December 2022, [25].

[75] Wife's affidavit 5 August 2024, [147].

[76] Husband's affidavit 6 August 2024, [48].

[77] Husband's affidavit 6 August 2024, [48].

[78] Husband's affidavit 6 August 2024, [48].

[80] Husband's affidavit 6 August 2024, [56].

[81] Wife's affidavit 20 January 2025, [4]-[5].