Saidov & Saidov (No 4) [2025] FedCFamC2F 495 (16 April 2025)

1. Orders under section 90SM of the Act altering the property interests of parties may only be made if the Court is first satisfied, pursuant to section 90SM(3), that it is just and equitable to make such orders.[88] The Court must not start with an assumption that one party or the other has the right to have their property divided between them or that the parties' rights to or interests in property should be different from those that presently exist.[89]
2. It is necessary to begin the inquiry by identifying the existing legal and equitable property interests of the parties. Although the Court must not conflate its determination pursuant to subsection 90SM(3) of the Act with its determination pursuant to subsection 90SM(4), it is permissible to have regard to the factors set out in subsection 90SM(4) when considering the justice and equity of property settlement orders.[90]
3. If the Court determines that it is just and equitable for the property interests of the parties to be altered, section 90SM(4) sets out the matters the Court must take into account in considering what order should be made. The Court must identify and assess the parties' direct and indirect financial and non-financial contributions (including contributions to the welfare of the family) within the meaning of sections 90SM(4)(a)-(c) and then take account of the largely prospective matters referred to in sections 90SM(4)(d)-(g) and 90SF(3). The Court must be satisfied that both the percentage-based division arrived at and the orders themselves are just and equitable.[91]
4. Although regard must be had to the different nature of superannuation as compared to other assets,[92] particularly in a case such as this where the parties are not nearing retirement age and it would not ordinarily be expected that either of them will access their superannuation in the near future, there is no requirement that superannuation be equalised or split in proportions different to those applied to the parties' non-superannuation assets, and the proportions in which superannuation is to be split is a matter for the Court's discretion.[93]
5. In this case, I have been unable to identify any principled basis for departing from the division of the parties' assets that is otherwise assessed as being just and equitable having regard to the whole of the circumstances and the matters set out in sections 90SM and 90SF(3) when it comes to their superannuation interests. Such an approach will ensure that the factors identified in those sections are properly recognised with respect to the parties' superannuation assets as well as their non-superannuation assets and that neither party receives a disproportionate share of the available superannuation assets.

1. The Court must begin by identifying, according to common law and equitable principles, the existing legal and equitable interests of the parties in property.[94]

1. The issues to be determined with respect to the assets and liabilities of the parties are as set out in the following paragraphs.

1. The Suburb C property was valued by a single expert valuer at $950,000. The De Facto Wife asserted a different value in her Financial Statement without adducing any evidence to support it. She did not adduce any valuation evidence or any evidence of having followed the processes in the Rules for putting questions to a single expert,[95] and did not require the single expert valuer to be available for cross-examination. I accept the submission of Counsel for the De Facto Husband that her evidence in this regard should be disregarded and the single expert valuation should be accepted. So much appeared to have been conceded by Counsel for the De Facto Wife at the commencement of the trial.

Loan asserted to be owed to De Facto Husband's mother and stepfather

1. The De Facto Husband asserted that the parties owed his mother and stepfather the sum of $147,500. He deposed that:

(a) In mid-2014, the parties found the Suburb C property (which is located close to City F) and sought to purchase it but did not have sufficient funds, so they approached his mother, MS D and stepfather, MR E for a loan;

(b) His mother and stepfather agreed, subject to further discussions, to assist with a loan, following which, the parties executed a contract for the purchase of the Suburb C property, subject to finance;

(c) The parties discovered that they would need to borrow approximately $148,000 from the De Facto Husband's mother and stepfather in order to finalise the purchase including the cost of stamp duty and other fees if they were to be able to complete the purchase;

(d) The parties agreed with his mother and stepfather to borrow the sum of approximately $148,000 on the following terms:

(i) The loan was to be interest free; and

(ii) The loan was to be repaid in full upon the De Facto Wife returning to work after the parties had started a family or from the proceeds of sale of the Suburb C property if it were sold.

1. The De Facto Husband gave evidence that the sum of $147,500 had then been borrowed in accordance with the agreement and applied to the purchase of the Suburb C property. He relied on bank statements demonstrating a transfer of $61,500 in mid-2014 (being the deposit for the purchase), and two further transfers of $80,000 and $6,000 in the following month.[96] Upon being shown the relevant statements, the De Facto Wife conceded that the funds had been received from the De Facto Husband's mother and had been applied to the purchase of the Suburb C property.
2. The balance of the purchase price of the Suburb C property was borrowed by way of mortgage from ANZ Bank in the sum of approximately $492,000.
3. The De Facto Husband gave credible evidence under cross-examination that the parties had both had a clear understanding that the funds were received by way of loan and would need to be repaid. Although the De Facto Wife denied that the funds had been advanced by way of loan, she said she was 'not sure' whether the idea that they were a gift had been a conclusion she had drawn of her own accord having been told that the De Facto Husband's mother and stepfather had offered to 'help.' Her evidence about this issue, as with most issues, was vague.
4. It was an agreed fact that the De Facto Husband's mother and stepfather had wanted their names recorded on the title to the property but the De Facto Wife had refused and had been unwilling proceed with the purchase if they were to be named on the title. The De Facto Wife admitted having known that the De Facto Husband's mother and stepfather were anxious about advancing the funds without their names being on title and that they were concerned to protect their interest.
5. Such concerns being held by the De Facto Husband's mother and stepfather would make no sense whatsoever if the funds had been advanced by way of gift with no expectation of repayment. The De Facto Wife sought to explain their concerns by alleging that the De Facto Husband's mother had 'strange loan policies on other properties in the family,' which strongly supported the De Facto Husband's evidence that the funds had been advanced by way of loan.
6. It was an agreed fact that there had been no loan agreement recorded in writing at the time the funds were advanced. The De Facto Husband deposed that after the funds had been borrowed, his mother had told him that she and her husband had been having disagreements about the fact that there was no security for the loan and that they wanted a formal loan agreement drawn up. He deposed that he had raised this with the De Facto Wife, who had refused to sign a loan agreement and said words to the effect of 'you can do whatever you want, but I won't be signing anything, we've already got the money and they know we will pay it back.'
7. The De Facto Husband further deposed that in September 2014, he met with his stepfather, who travelled to meet him in New South Wales, and signed a loan agreement which had already been signed by his mother and stepfather. The De Facto Husband produced a copy of the loan agreement,[97] which was a handwritten document which provided as follows:

We lend the deposit and fees for the purchase of [Suburb C] under the following conditions:

1. The funds are a loan, not a gift

2. In the event the property is sold, the funds are to be returned to us

3. The funds remain the property of [Mr E] and [Ms D] for the term of our natural lives

4. Upon our deaths, the funds become part of our estate for the benefit of [Mr Saidov]

These conditions are due to our names not being on the title of the property as we originally requested.

1. The De Facto Husband's evidence with respect to these issues was supported by the credible evidence of his mother, Ms D. Ms D deposed that she had drafted the loan agreement following a request from her husband to have a formal loan agreement prepared.
2. The De Facto Wife's affidavit did not refute the De Facto Husband's evidence or that of his mother with respect to the circumstances of creation of the loan agreement. The De Facto Husband credibly denied an allegation put to him in the witness box that he, his mother and his stepfather had come up with the loan agreement in the absence of the De Facto Wife. I am satisfied that she was aware of the loan agreement and refused to sign it.
3. The evidence of the De Facto Husband and his mother to the effect that the funds had been provided by way of loan and repayment had been expected was not challenged in cross-examination. It was put to each of them that the loan agreement ought not be binding on the De Facto Wife because she had not signed it or been a party to it. However, the fact that the written document itself was not signed by the De Facto Wife is immaterial to the question of the basis on which the funds were advanced in the first place.
4. I am satisfied that the funds were advanced by way of loan and that the De Facto Wife was aware of this fact at all material times.
5. The De Facto Husband deposed that none of the funds borrowed pursuant to the loan had been repaid and the principal sum of $147,500 remained owing.
6. I have considered whether the loan agreement may be statute barred pursuant to section 14 of the Limitation Act 1969 (NSW) (New South Wales being the state in which the loan agreement was entered into), which imposes a limitation period of six years.
7. Counsel for the De Facto Husband submitted that the limitation contained within that section did not apply on the basis that the loan agreement was in the form of a deed. However, subsection 38(1) of the Conveyancing Act 1919 (NSW) requires (inter alia) that every deed, whether or not affecting property, shall be attested by at least one witness not being a party to the deed, and that it must be sealed or expressed to be a deed. The agreement in this case did not meet those requirements. As a consequence, I am not satisfied that the agreement is a deed under the laws of New South Wales.
8. However, in my view, this was not simply a loan that was repayable on demand,[98] but rather, a loan in relation to which the intention of the parties was to postpone the arising of a cause of action for recovery of the debt until a specified event.[99] As a consequence, I do not consider that the cause of action has yet accrued, with the consequence that the limitation period has not expired and the loan is not statute barred.
9. It is well established that unsecured liabilities may, in appropriate circumstances, be disregarded. Those circumstances include where the liability is unlikely to be enforced or is vague or uncertain.[100] I am not satisfied that this is the case with respect to this loan. The evidence of the De Facto Husband and his mother was clear and precise. I am satisfied that the loan exists, that its terms are clear, and that it will ultimately need to be repaid. Although this loan appeared as struck out in a balance sheet tendered on behalf of the De Facto Husband, his Counsel confirmed at the conclusion of the trial that its inclusion was pressed. I am satisfied that its inclusion is just and equitable.

1. The De Facto Wife held or holds interests in four superannuation funds. The value of each of these interests was in dispute. The interests are as follows:

(a) Super Fund 2. The De Facto Husband sought to include this interest at the value of $26,147, being its balance as disclosed in the De Facto Wife's Financial Statement filed on 8 April 2024 (the first day of the trial); whereas the De Facto Wife sought that it be included at $4,180.46, which was its value at as at 26 March 2024,[101] though she had (falsely) deposed to its value being $26,147 at the commencement of the trial. The De Facto Wife deposed to having withdrawn $10,000 from this fund in 2023 based on hardship. She adduced no documentary evidence to demonstrate the withdrawal of the funds and gave no evidence of their application. She did not otherwise explain or provide disclosure with respect to the reduction in its value.

(b) Super Fund 3. The De Facto Husband sought to include this interest at the value of $71,701, being its value at 30 June 2022;[102] whereas the De Facto Wife asserted its value was nil and deposed to having rolled the balance into her Super Fund 4. She adduced no independent evidence of the rollover. However, her evidence in this regard was supported by the absence of any interest in Super Fund 4 in a snapshot of her superannuation interests as at 30 June 2022,[103] particularly given that the De Facto Wife has not been in paid employment since that time and it is not therefore clear by what other means she could have made contributions to what became the Super Fund 4 fund. I accept the evidence as to the rollover. As a consequence, the Super fund 3 interest will not be included.

(c) Super Fund 1. The De Facto Husband sought to include this interest at the value of $55,779. The De Facto Wife asserted its value was $35,779. The De Facto Wife deposed to having withdrawn $10,000 from this fund in 2023 and a further $10,000 in 2024 based on hardship, which would explain the differences in the values asserted by each of the parties, though she said under cross-examination that the dates may have been wrong. She accepted under cross-examination that she had provided no disclosure with respect to the second of the withdrawals.

(d) Super Fund 4. The De Facto Husband sought to include this interest at the value of $93,155, while the De Facto Wife asserted that its value was $83,155. The De Facto Wife deposed to having withdrawn $10,000 from this fund at an unspecified time based on hardship, which would again explain the differences between the values asserted by the parties. Again, she produced no documents to demonstrate the application of the funds.

1. Effectively, the attribution of the figures sought by the De Facto Husband involved an addback of the funds removed from each of the superannuation funds by the De Facto Wife. The De Facto Husband alleged, and the De Facto Wife did not dispute, that he had received inadequate disclosure with respect to the withdrawals allegedly made by the De Facto Wife from her superannuation interests and that these withdrawals had not been disclosed by her at all until the eve of the trial.
2. The De Facto Wife's disclosure with respect to the application of the funds she withdrew from her superannuation interests was woefully inadequate. Her evidence given in relation to this issue in the witness box was extremely vague and unhelpful, and, as I have already indicated, the De Facto Wife's evidence was unreliable more generally.
3. However, the De Facto Wife was legally represented by privately funded lawyers throughout all or most of the period from April 2020 until April 2025, being a period during which she was not in gainful employment and was reliant on Centrelink payments save to the extent of the part property payment received by her, and she adduced no evidence to demonstrate any independent source of funding of her legal fees. As a consequence, I infer that the funds withdrawn by her from her superannuation were applied to her legal fees and disbursements in these proceedings. To the extent (if any) that this was not the case, it was the De Facto Wife's obligation to provide disclosure as to the application of the funds and she failed to do so.
4. It is well established that addbacks are the exception rather than the rule[104] and that reasonable expenditure will not generally be added back.[105] As the Full Court held in Omacini & Omacini,[106] there are three clear categories of case in which addbacks may be considered: where funds that would otherwise have been available for distribution have been expended on legal fees,[107] where there has been a premature distribution of assets,[108] and in circumstances of wastage.[109] Consideration of expenditure by one of the parties is, in some cases, more appropriately undertaken pursuant to section 90SF(3)(r) of the Act.[110] Funds expended on legal fees that would otherwise have been available for distribution between the parties will generally be added back, because to do otherwise would be to offend against the principle in section 117 of the Act to the effect that each party is to bear their own costs.[111] Orders with the effect of requiring the De Facto Husband to contribute indirectly to the De Facto Wife's legal costs would be particularly unjust in light of the manner in which the De Facto Wife has conducted herself with respect throughout these proceedings, particularly with respect to her flagrant disregard of her obligations as a litigant.
5. As a consequence, save for Super Fund 3, which is not to be included, the figures promoted by the De Facto Husband with respect to the De Facto Wife's superannuation interests will be adopted.

1. The De Facto Husband otherwise relied on a balance sheet setting out the valuations and balances for the parties' various assets and liabilities.[112] Although at the commencement of the trial, a joint balance sheet was provided to the Court, attempts made by the De Facto Husband's legal representatives to engage with the De Facto Wife during the latter stages of the trial in relation to updates to the figures contained in the balance sheet were unsuccessful, and ultimately an updated balance sheet was tendered by the De Facto Husband alone. The De Facto Husband gave unchallenged evidence confirming the updated figures. I accept that evidence.

Assets and liabilities available for distribution

1. For the reasons outlined above, I find that the parties have the following assets and liabilities available for distribution between them:

Part property payment pursuant to orders of 2 April 2024

Loan owed to De Facto Husband's mother and stepfather

Whether it is just and equitable that orders be made

1. Having identified the parties' existing legal and equitable interest in property, I now turn to consider whether it is just and equitable to make orders altering those interests. In this matter, the parties agree that it is just and equitable that orders be made altering their interests in their property. However, that alone is insufficient. The Court must itself be satisfied that it is just and equitable that an order be made.
2. The parties in this matter no longer live together and are no longer in a relationship but their finances remain intertwined. Consistently with section 90ST of the Act, each has a legitimate desire to end their financial relationship. If there were no adjustment to the legal ownership of their property interests, they would continue in joint ownership of assets notwithstanding their separation and the De Facto Wife would be without access to any significant share of the parties' jointly owned assets. There would be no justice and equity to the parties in that regard.
3. I am satisfied that this is one of the 'vast majority of cases' referred to by the plurality in Stanford, in which the requirements of section 90SF(3) of the Act are easily satisfied. It is plainly just and equitable to make an order pursuant to section 90SM(4) of the Act in these proceedings for a division of property between the parties.

Contributions at commencement of relationship

1. The De Facto Husband's unchallenged evidence was that at the commencement of the parties' cohabitation, he held the following assets:

(a) Motor Vehicle 4 worth approximately $5,000;

(b) A 50 percent interest in a vehicle owned with a friend;

(c) Motor Vehicle 3 worth approximately $12,000;

(d) Furniture and effects of unspecified value;

(e) Superannuation of unspecified value; and

(f) Savings of modest value.

1. The De Facto Wife deposed that the De Facto Husband also had a Higher Education Contribution Scheme (HECS) debt of $23,000. This proposition was not put to the De Facto Husband and no independent evidence was adduced to support it. The De Facto Wife has not established her assertion in this regard.
2. The De Facto Wife deposed that at the commencement of the parties' cohabitation, she held the following assets:

(a) A motor vehicle;

(b) A vacant allotment of land at T Street, Town U ('the Town U property');

(c) Furniture and effects and jewellery;

(d) Superannuation of unspecified value; and

(e) Savings of unknown value.

1. The Town U property was sold in 2016, yielding very modest net sale proceeds of approximately $8,000. Although a precise finding is not possible, I infer from the quantum of the proceeds ultimately received that any equity in this property at the time of cohabitation was minimal.
2. The weight to be attached to initial contributions must be assessed against the rubric of all financial and non-financial contributions made by the parties throughout the relationship as a whole.[113] I do not consider that there were any aspects of the initial contributions made by either of the parties which would warrant an adjustment in their favour.

1. During the parties' relationship, the De Facto Husband worked on a full-time basis in gainful employment and performed the role of primary income earner, while the De Facto Wife was engaged in paid employment at times and otherwise performed the role of primary parent and homemaker. The De Facto Husband deposed that the parties had made equal contributions during the relationship to homemaking and parenting duties, but also accepted that the De Facto Wife had always been the children's primary carer. I accept that the De Facto Husband made contributions of significance in this regard but find that the De Facto Wife was the primary carer and homemaker.
2. The De Facto Husband and his mother deposed that when the parties commenced cohabitation, his mother had put her name on the lease for their rental property and paid one-third of their rental income, being approximately $120 per week. This was not disputed by the De Facto Wife.
3. In 2012, the De Facto Husband moved from Adelaide to City F to pursue a career with the public service. The De Facto Wife moved with him in order to pursue their relationship and obtained employment with a government department as a Public Servant.
4. The De Facto Husband deposed that at the time of their move to City F, the parties borrowed the sum of $6,000 from his mother for the purpose of purchasing a motor vehicle, and that such sum was repaid from the proceeds of sale of the Suburb U property. This was disputed by the De Facto Wife. Little turns on this issue.
5. It was submitted on behalf of the De Facto Husband that the provision the interest-free loan in the sum of $147,500 by his mother and stepfather represented a very significant contribution on his behalf, because it had enabled the parties to purchase the Suburb C property, which they would not otherwise have been able to do, which resulted in the parties having derived the benefit of the significant capital growth in that asset since its purchase,[114] and because its interest-free status provided them with a significantly greater financial benefit than they would have derived had the same sum been borrowed at commercial interest rates, even if they had been able to borrow it from a commercial lender.[115] I accept that the provision of the interest-free loan was a significant contribution made on behalf of the De Facto Husband, particularly in circumstances in which it enabled the parties to purchase what was and remains the major asset of their relationship.[116]
6. The evidence of both parties reveals that they each otherwise contributed within their respective spheres during the 'economic partnership'[117] of their de facto relationship.

1. Following the parties' separation, the De Facto Husband has made all payments towards the mortgage encumbering the Suburb C property, which, at the time of commencement of the trial, were $712 per week. He has also maintained the property. This has been balanced against the fact that he has been residing in that home, thereby deriving the benefit of use of the De Facto Wife's interest in it.
2. The De Facto Husband also made significant post-separation contributions to superannuation through his full-time employment with the public service. During the 12 month period during which the trial proceeded alone, the De Facto Husband's superannuation increased by nearly $39,000.
3. The De Facto Wife has made the vast majority of post-separation parenting contributions in circumstances in which the children resided with her for most of the post-separation period and the distance between the parties' residences limited the amount of time the children could spend in the care of their father, even if there had not been the difficulties described earlier in these reasons. Counsel for the De Facto Husband emphasised that during that time, he had paid child support and incurred very significant travel expenses to spend time with the children (only to be frequently thwarted by the De Facto Wife's failure to comply with court orders). Although I accept that this is accurate, it does not, in my view, detract from the significance of the contributions made by the De Facto Wife in this regard.
4. However, the weight that can be given to the De Facto Wife's post-separation parenting contributions is limited by what I have found to have been the abusive and neglectful manner in which she performed those contributions. In my view, this is a circumstance in which it is appropriate to recognise, as identified by Wilson J in Mallet & Mallet,[118] that the quality of the contribution made by a party as parent may vary enormously, and may, in some cases, be inadequate.
5. Since 7 February 2025, the children have resided with the De Facto Husband and he has made all of the parenting contributions. These contributions have been made in the trying circumstances created by the De Facto Wife's conduct in the lead to the change of the children's living arrangements, which, as outlined earlier in these reasons, included emotional harm to the children and setbacks in their social and educational progress.

1. In Aleksovski & Aleksovski,[119] Kay J held as follows:

It is ... necessary that trial Judges weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.

1. His Honour went on to say that 'what is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the ... relationship.'
2. More recently, the Full Court in Jabour & Jabour[120] emphasised the importance of giving recognition to the myriad of contributions that each of the parties has made during the course of their relationship. The Court is not required to dissect each individual contribution and attach a percentage to it. What is required is a holistic assessment, taking into account the contributions of all types made by the parties over the duration of their relationship.[121]
3. It was submitted on behalf of the De Facto Husband that the parties' contributions should be assessed as 55 percent to him and 45 percent to the De Facto Wife. No position in this regard was put by or on behalf of the De Facto Wife.
4. In my view, having regard to the matters outlined above, contributions should be assessed as having been made 53 percent by the De Facto Husband and 47 percent by the De Facto Wife.

1. As with the assessment of contributions, the Court is not obliged to give separate weighting to, or to analyse, each relevant s 90SF(3) factor with mathematical precision.[122] The Court may disregard any of the factors which are irrelevant, and may limit its consideration to those which are most relevant.[123]
2. It is necessary to consider the effect of the findings as to contribution on the respective positions of the parties before proceeding to determine whether any adjustment is warranted pursuant to section 90SF(3).[124] In the circumstances of this case, given the modest quantum of the assets and liabilities available for distribution and the length of the parties' relationship, it could not be said that the effect of the findings of the Court as to contributions negate the need for consideration as to section 90SF(3) factors.
3. The De Facto Husband is employed on a full time basis as a Public Servant with a government department. His gross annual income is $125,684. At the time of the trial, he had recently completed post-graduate studies through his employer.
4. The De Facto Wife is qualified as a health worker and was employed by a government department early in the parties' relationship. She also has experience working in administrative roles and has undertaken training in other industries. She has not undertaken paid employment for some time, though her evidence in this regard was lacking in specificity. At the time of the trial, she was reliant on Centrelink benefits, though that was in circumstances where she had the full-time care of the parties' three children, which is no longer the case. She deposed to living week to week without the ability to set aside savings and to having a shortfall of approximately $683 per week between her income and her expenditure.
5. The De Facto Wife deposed to an intention to retrain in an unspecified field in order to re-enter the workforce. The children residing primarily with the De Facto Husband will provide her with the opportunity to do so.
6. The De Facto Wife emphasised several times during her oral evidence that she is hardworking and that prior to having children she was earning more than the De Facto Husband was. The quantum of her interests in superannuation suggests that she has previously had the capacity to earn significant income.
7. She also gave evidence of having sought employment in the post-separation period but having been unable to take it up as a result of her care responsibilities for the children. It is likely that she will obtain gainful employment in the future, though the circumstances of such employment are presently unknown.
8. Nonetheless, the evidence suggests that the De Facto Husband's earning capacity is likely to be greater than that of the De Facto Wife and her future circumstances are uncertain. As has long been recognised, in most cases the most valuable 'asset' which a party can take out of the marriage (or de facto relationship) is a substantial, reliable, income-earning capacity.[125]
9. The De Facto Husband is in good health. The De Facto Wife is in good physical health. As discussed earlier in these reasons, there are concerns with respect to the De Facto Wife's mental health. There is no expert evidence before the Court with respect to this issue, but doing the best I can with the agreed facts and the available evidence, I have regard to this as a factor in the De Facto Wife's favour.
10. The De Facto Wife submitted that the De Facto Husband 'has access to significant monies from his mother who he has never paid back anything.' Although the De Facto Husband's evidence was of having borrowed funds from his mother for the purchase of the Suburb C property and following separation to assist with legal fees and expenses for travelling to Adelaide to spend time with the children, I do not accept that the evidence establishes that he has any expectation of receipt of any funds of significance from his mother in future without any need for repayment. I take into account the De Facto Husband's evidence, which I accept, that he owes his mother and her partner the sum of $37,129 with respect to travel expenses associated with time with the children.
11. The children, all of whom are young, will be residing in the full time care of the De Facto Husband. This is a significant factor, particularly given that the De Facto Wife's current employment status means that he is unlikely to receive child support of any significance, at least in the short term. The significance of this factor is increased by what I infer is a likelihood that following the children's experience of emotional abuse and neglect in the care of the Mother, and the likely grief, loss and potential trauma they will experience as a result of the abrupt change in their care and living arrangements, the children have particular psychological and emotional needs, and the task of parenting them will be made more onerous, and if professional intervention and support is required, more costly, than would otherwise have been the case.

1. The De Facto Husband contended that in the event that the children were to reside in his primary care, there should be an adjustment of five percent in his favour on account of section 90SF(3) factors. No contentions were proffered by or on behalf of the De Facto Wife in this regard.
2. Having regard to all of the considerations outlined above, I agree that an adjustment of five percent in favour of the De Facto Husband on account of section 90SF(3) factors would be just and equitable. Such an adjustment would result in an overall distribution of the parties' non-superannuation assets and liabilities in proportions of 58 percent to the De Facto Husband and 42 percent to the De Facto Wife.
3. It is necessary to consider the resulting differential between the parties and what it represents in monetary terms.[126] In the present case, the percentage-based outcome referred to above translates to a differential of 16 percent. In relation to non-superannuation assets, this is a difference of $79,671 between the overall amounts received by the parties (with the De Facto Husband retaining assets with a net value of $288,808 and the De Facto Wife $209,137, including a payment from the De Facto Husband in the sum of $141,442). In relation to the parties' superannuation assets, the De Facto Husband will retain $273,479 and the De Facto Wife will retain $198,036 (a differential of $75,443) after a split from the De Facto Husband's superannuation using a base amount of $22,956. I am satisfied that this outcome is just and equitable in all the circumstances.

Justice and equity and the terms of the orders to be made

1. The requirement that the Court shall not make an order unless it is satisfied that, in all the circumstances, it is just and equitable to make the order is the 'overriding requirement' of the section 90SM process.[127] This requirement includes consideration of the type of order, including the form and structure of the order, to be made. The Court is required to 'stand back' from its preliminary determination, and consider its impact.[128] It must be satisfied that the actual orders made (and not just the underlying percentage division) is just and equitable.[129] In the present case, I have regard in particular to the fact that the orders will enable the De Facto Husband, who will have the full-time care of the parties' three children, to retain the former family home.
2. In all of the circumstances and having regard to all of the considerations outlined above, I am satisfied that both the percentage-based division and the underlying outcome is just and equitable.

1. The De Facto Husband sought a reimbursement of the De Facto Wife's share of valuation costs paid by him in the sum of $2,860, pursuant to an order made on 15 September 2022 providing that he was to pay for valuations in the first instance, with the De Facto Wife's share to be reimbursed from her ultimate property settlement entitlements. I agree that it is appropriate that this amount be deducted from the amount to be paid by the De Facto Husband to the De Facto Wife.
2. Orders made on 31 March 2022 provided that the De Facto Wife was to pay to the De Facto Husband the sum of $430.68, being expenses wasted by him for travel to Adelaide on an occasion when the children were not made available, to be reimbursed from her final property settlement. On 8 April 2022, an order was made providing that the De Facto Husband pay the De Facto Wife's costs of $1,000, being the costs of a Contravention Application filed but not ultimately pressed by him, such sum to be offset against the payment ordered on 31 March 2022. The cumulative effect of these orders is that the sum of $569.32 is to be paid by the De Facto Husband to the De Facto Wife, to be adjusted as part of the orders ultimately made.
3. As a consequences of these adjustments, the total amount payable by the De Facto Husband to the De Facto Wife (originally calculated as $141,442) will be reduced by the rounded figure of $2,291, resulting in a total payment of $139,151.

1. The De Facto Husband sought both that the costs of transferring the Suburb C property to his sole name be borne by the De Facto Wife, and that the transferee bear the costs and disbursements of any transfers pursuant to the orders. The latter order is the more usual and I see no reason to depart from that, particularly in circumstances in which the De Facto Wife is not currently in paid employment but the De Facto Husband is. As such, the orders will provide for the transfer to be at the De Facto Husband's expense.

1. It was implied by, but not expressly mentioned in, the orders sought by the De Facto Husband that he would refinance the mortgage loan into his sole name and effect the discharge of the existing mortgage encumbering the Suburb C property. An express provision in those terms has been included in the orders.
2. The De Facto Husband's application included an order under section 106A of the Act authorising a Judicial Registrar of the Court to sign any document required to be signed to implement the orders in the event of failure or refusal of a party to do so. In light of the De Facto Wife's long history of failure to comply with court orders, I consider such an order to be necessary in order to ensure the implementation of the orders.
3. The De Facto Husband's application otherwise contained a number of standard orders directed to ensuring that the orders made were comprehensive and enforceable. These included a default sale provision with respect to the Suburb C property to ensure that the required payment would be made to the De Facto Wife in the event of a default by the De Facto Husband, and 'catch all' provisions to ensure that the assets and liabilities of each of the parties remained with that party following the making of the orders. Such orders are appropriate and will be made.

1. On a number of occasions throughout the proceedings, the costs associated with interim applications and hearings were reserved.
2. The De Facto Wife sought an order that the De Facto Husband pay her costs of the proceedings. That application was not particularised or supported by any evidence and was not pressed at trial.
3. On 8 April 2025, being the last day of the trial, the ICL filed an Application in a Proceeding seeking contributions from each of the parties towards the costs of the ICL, particularly in relation to the Mother, who, unlike the Father, had not made any contribution to those costs throughout the proceedings despite having been refused an exemption. That application was ultimately withdrawn on the basis that it would be pressed as part of the applications for costs which are anticipated to be made following the delivery of these reasons.
4. In my view, it would not be appropriate to determine any issues relating to costs prior to the parties having had the opportunity to have regard to these reasons and to adduce evidence of any offers which may have passed between them.
5. Each of the parties will retain their rights to make an application for costs pursuant to rule 12.13(3)(b) of the Rules should they consider it appropriate to do. The orders to be made will include timetabling orders to regulate any such application.[130]
6. As a result of the De Facto Wife's history of refusing to comply with binding court orders (which has included not only the substantive parenting orders but numerous procedural orders and directions), there are serious concerns as to whether any costs ordered to be paid by her would be able to be recovered. As a consequence, the orders will provide for the funds payable to her pursuant to the orders to be paid at first instance to the trust account of the De Facto Husband's solicitors, and the De Facto Husband's solicitors shall be at liberty to retain a sum equivalent to the total of the quantum of costs sought against the De Facto Wife to be held on trust pending resolution or determination of any costs application made against her, and shall be at liberty to apply so much of those funds as are required to meet any costs order made prior to distributing the balance to the De Facto Wife.

1. For all of the reasons outlined above, I make the orders as set out at the commencement of these reasons.

I certify that the preceding five hundred and eighty-nine (589) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Parker.

[1] Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092.

[3] See UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107; Haines & Haines [2022] FedCFamC1F 685.

[4] In accordance with the principles discussed by the Full Court of the Family Court of Australia in Buljubasic & Buljubasic [1999] FamCA 474; (1999) FLC 92-865.

[5] Saidov & Saidov (No 3) [2025] FedCFamC2F 226.

[6] Saidov & Saidov [2025] FedCFamC1A 49.

[7] Being ss 60B, 60CA, 60CC and 61DA of the version of Part VII the Family Law Act 1975 (Cth) that continues to apply to these proceedings, ss 90SM and 90SF of the Family Law Act 1975 (Cth) and ss 138 and 140 of the Evidence Act 1995 (Cth).

[8] New South Wales v Canellis [1994] HCA 51; (1994) 181 CLR 309. See also Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265.

[9] [1998] FCA 967.

[10] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.

[11] [2000] HCA 40; (2000) 203 CLR 172.

[12] Employment Advocate v Williamson [2001] FCA 1164 at [78]; cited with approval in Parker v Comptroller-General of Customs [2009] HCA 7 at [28].

[13] Parker v Comptroller-General of Customs [2009] HCA 7 at [30].

[14] Parker v Comptroller-General of Customs [2009] HCA 7 at [29].

[15] Employment Advocate v Williamson [2001] FCA 1164 at [78]; cited with approval in Parker v Comptroller-General of Customs [2009] HCA 7 at [28].

[16] Parker v Comptroller-General of Customs [2009] HCA 7 at [28].

[17] Legal Practitioners Act 1981 (SA) ss 21(1)(a); 21(2)(e) (having regard to the definition of 'local legal practitioner' in s 5); Federal Circuit and Family Court of Australia Act 2021 (Cth) s 175; Judiciary Act 1903 (Cth) s 55B(1)(a); Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.08. In particular, section 21 of the Legal Practitioners Act 1981 (SA) creates an offence with a maximum penalty of $50,000 for the practice of law without a practising certificate.

[18] Kadir v The Queen; Grech v The Queen [2020] HCA 1; (2020) 267 CLR 109 at [42].

[19] Kadir v The Queen; Grech v The Queen [2020] HCA 1; (2020) 267 CLR 109 at [42].

[20] Gorman & Huffman and Anor [2016] FamCAFC 174.

[21] Family Law Act 1975 (Cth), s 69ZX.

[22] As defined in section 5 of the Legal Practitioners Act 1981 (SA).

[23] [2010] FCA 462.

[24] [1978] HCA 22; (1978) 141 CLR 54.

[25] Kadir v The Queen; Grech v The Queen [2020] HCA 1; (2020) 267 CLR 109 at [13].

[26] Kadir v The Queen; Grech v The Queen [2020] HCA 1; (2020) 267 CLR 109 at [19]- [20].

[27] [2022] FedCFamC2F 1379.

[28] Kadir v The Queen; Grech v The Queen [2020] HCA 1; (2020) 267 CLR 109 at [13].

[29] Father's trial affidavit (parenting), annexure MRS-1.

[30] Father's trial affidavit (parenting), annexure MRS-1.

[31] Saidov & Saidov [2025] FedCFamC2F 165.

[32] Saidov & Saidov [2025] FedCFamC1A 49.

[33] Pursuant to rule 13.14(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

[35] Mother's trial affidavit (parenting), annexure MSS1.5.

[36] [2024] FedCFamC1A 249 at [121].

[37] Pickford & Pickford [2024] FedCFamC1A 249 at [111].

[38] Mother's trial affidavit (parenting), annexure MSS1.5.

[39] Mother's trial affidavit (parenting), annexure MSS2.2.

[40] Father's trial affidavit (parenting), annexures MRS-2 and MRS-3.

[41] Mother's trial affidavit (parenting), annexure 1.3.

[42] Mother's trial affidavit (parenting), annexure 1.3.

[43] Mother's trial affidavit (parenting), annexure MSS1.5.

[45] Mother's trial affidavit (parenting), annexure MSS1.5.

[46] Mother's trial affidavit (parenting), annexure MSS1.5.

[47] Father's trial affidavit (parenting), annexure MRS-12.

[49] Stevenson & Hughes [1993] FamCA 14; (1993) FLC 92-363.

[50] O'Brien & O'Brien [1992] FamCA 52; (1993) FLC 92-396; Daly & Campbell [2005] FamCA 1046; (2005) FLC 93-236.

[51] [1993] FamCA 14; (1993) FLC 92-363.

[52] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 2.23(4)(b).

[53] See Storstrand & Storstrand [2024] FedCFamC1A 128 at [16] and the authorities cited therein.

[54] Mother's trial affidavit (parenting), annexure MSS1.5.

[55] As noted earlier in these reasons, this is not an accurate description of what occurred with respect to the CCS.

[56] Family Law Amendment Act 2023 (Cth), s 12(b).

[57] [2017] FamCAFC 21.

[58] Cubbin & Cutler [2018] FamCAFC 84.

[59] Noting that there is, in any event, no separate category of relocation cases: B & B: Family Law Reform Act 1995 [1997] FamCA 33; (1997) FLC 92-755.

[60] Taylor & Barker [2007] FamCA 1246; (2007) FLC 93-345; McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405.

[61] Mazorski & Albright [2007] FamCA 52; McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405; Sigley & Evor [2011] FamCAFC 22.

[62] McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405.

[65] As observed by Austin and Williams JJ in Pickford & Pickford [2024] FedCFamC1A 249 at [82].

[66] Cotton & Cotton [1983] FamCA 18; (1983) FLC 91-330; N & S & The Separate Representative [1995] FamCA 139; (1996) FLC 92-655.

[67] B & B (Access) [1986] FamCA 52; (1986) FLC 91-758.

[68] Cotton & Cotton [1983] FamCA 18; (1983) FLC 91-330; Brown & Pederson [1989] FamCA 8.

[69] [2009] FamCAFC 92; (2009) FLC 93-405.

[70] Maluka & Maluka [2011] FamCAFC 72; (2011) FLC 93-464.

[71] Bielen & Kozma [2022] FedCFamC1A 221.

[72] [2014] FamCA 1038 at [55].

[73] Dennison & Wang [2010] FamCAFC 182.

[74] M & M [1988] HCA 68; (1988) 166 CLR 69.

[75] A & A [1998] FamCA 25; (1998) FLC 92-800; B & B [1993] FamCA 143; (1993) FLC 92-357.

[76] [2007] FamCA 547; (2007) FLC 93-329 at [51].

[77] [1988] HCA 68; (1988) 166 CLR 69.

[78] Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092.

[79] [1995] FamCA 139; (1996) FLC 92-655 at [138].

[80] Napier & Hepburn [2006] FamCA 1316; (2006) FLC 93-303. See also Harridge & Harridge [2010] FamCA 445.

[81] Blinko & Blinko [2015] FamCAFC 146.

[82] A & A [1998] FamCA 25; (1998) FLC 92-800.

[83] See for example, Moose & Moose [2008] FamCAFC 108; (2008) FLC 93-375; Slater & Light [2013] FamCAFC 4; Champness & Hanson [2009] FamCAFC 96; (2009) FLC 93-407; Bant & Clayton [2019] FamCAFC 198; (2019) FLC 93-924.

[84] Bennett & Bennett [2001] FamCA 462; (2001) FLC 93-088; Flanagan & Handcock [2001] HCA 32; (2002) FLC 93-102.

[85] [2021] FamCAFC 66; (2021) FLC 94-017.

[86] [2023] FedCFamC1A 200; (2023) FLC 94-166.

[87] Evidence of procedural fairness having been accorded to the superannuation fund and their consent to orders being made in the terms made was provided to the Court by way of email on 15 April 2025.

[88] Stanford & Stanford [2012] HCA 52; (2012) 247 CLR 108.

[89] Stanford & Stanford [2012] HCA 52; (2012) 247 CLR 108.

[90] Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545; Costello & Langdon [2024] FedCFamC1A 168.

[91] Clauson & Clauson [1995] FamCA 10; (1995) FLC 92-595; JEL & DDF [2000] FamCA 1353; (2001) FLC 93-075.

[92]Coghlan & Coghlan (2005) FLC 93-220; [2005] FamCA 429; Trevi & Trevi [2018] FamCAFC 173; (2018) FLC 93-858.

[93] Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervenor) [2003] FamCA 395; (2003) FLC 93-143; Levick & Levick [2003] FamCA 40; (2006) FLC 93-254, BAR & JMR (No 2) [2005] FamCA 386; (2005) FLC 93-231; Doherty & Doherty [2006] FamCA 199 (2006) FLC 93-256; Mayne & Mayne (No 2) [2012] FamCAFC 90; (2012) FLC 93-510; Paul & Paul [2012] FamCAFC 64; (2012) FLC 93-505; Bishop & Bishop [2013] FamCAFC 138; (2013) FLC 93-553; Palumbo & Mandel [2019] FamCAFC 228; (2019) FLC 93-929.

[94] Stanford & Stanford [2012] HCA 52; (2012) 247 CLR 108 at [37].

[95] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Chapter 7, Division 7.1.6.

[96] Husband's trial affidavit (property), annexure A.

[97] Husband's trial affidavit (property), annexure B.

[98] Such as that in Ogilvie v Adams [1981] VicRp 92; (1981) VR 104; see also Masoud & Masoud [2016] FamCAFC 24; (2016) FLC 93-689.

[99] Akin to that in Vadisanis & Vadisanis [2014] FamCAFC 97; (2014) FLC 93-593. See also In re Brookers (Australia) Ltd (in liq); Brooker v Pridham (1986) 41 SASR 380; (1986) 10 ACLR 428; Atkinson v Bradford Third Equitable Benefit Building Society [1890] UKLawRpKQB 102; (1890) 25 QBD 377.

[100] af Petersens & af Petersens [1981] FamCA 50; (1981) FLC 91-095; Prince & Prince [1984] FamCA 7; (1984) FLC 91-501; Biltoft & Biltoft [1995] FamCA 45; (1995) FLC 92-614; Rodgers & Rodgers (No 2) [2016] FamCAFC 104; (2016) FLC 93-712.

[104] Cerini & Cerini [1998] FamCA 143; Trevi & Trevi [2018] FamCAFC 173; (2018) FLC 93-858.

[105] Chorn & Hopkins [2004] FamCA 633; (2004) FLC 93-204; Omacini & Omacini [2005] FamCAFC 104; (2005) FLC 93-218; Trevi & Trevi [2018] FamCAFC 173; (2018) FLC 93-858.

[106] [2005] FamCAFC 104; (2005) FLC 93-218.

[107] DJM & JLM [1998] FamCA 97; (1998) FLC 92-816; Chorn & Hopkins [2004] FamCA 633; (2004) FLC 93-204.

[108] Such as in Townsend & Townsend [1994] FamCA 144; (1995) FLC 92-569.

[109] As in Kowaliw & Kowaliw [1981] FamCA 70; (1981) FLC 91-092.

[110] Cerini & Cerini [1998] FamCA 143; Omacini & Omacini [2005] FamCAFC 104; (2005) FLC 93-218; Browne & Green [1999] FamCA 1483; (1999) FLC 92-873.

[111] DJM & JLM [1998] FamCA 97; (1998) FLC 92-816; Chorn & Hopkins [2004] FamCA 633; (2004) FLC 93-204; Trevi & Trevi [2018] FamCAFC 173; (2018) FLC 93-858.

[113] Being a consideration recognised as important in authorities such as Pierce & Pierce [1998] FamCA 74; (1999) FLC 92-844; Jabour & Jabour [2019] FamCAFC 78; (2019) FLC 93-898.

[114] Being a consideration that has been recognised as significant in cases such as Underwood & Underwood [1980] FamCA 1; (1981) FLC 91-020.

[115] Being a consideration that has been recognised in cases such as Bokin & Wild [2022] FedCFamC1A 209.

[116] Pierce & Pierce [1998] FamCA 74; (1999) FLC 92-844.

[117] Waters & Jurek [1995] FamCA 101; (1995) FLC 92-635; Lee Steere & Lee Steere [1985] FamCA 57; (1985) FLC 91-626; Ferraro & Ferraro [1992] FamCA 64; (1993) FLC 92-335.

[118] [1984] HCA 21; (1984) 156 CLR 605.

[119] [1996] FamCA 111; (1996) FLC 92-705.

[120] [2019] FamCAFC 78; (2019) FLC 93-898.

[121] Dickons & Dickons [2012] FamCAFC 154; Bolger & Headon [2014] FamCAFC 27; (2014) FLC 93-575; Fields & Smith [2015] FamCAFC 57; (2015) FLC 93-638; Jabour & Jabour [2019] FamCAFC 78; (2019) FLC 93-898.

[122] Paul & Paul [2012] FamCAFC 64; (2012) FLC 93-505 at [65].

[123] Waters & Jurek [1995] FamCA 101; (1995) FLC 92-635; Collins & Collins [1990] FamCA 141; (1990) FLC 92-149.

[124] Willis & Willis [2007] FamCA 819; Marsh & Marsh [2014] FamCAFC 24; (2014) FLC 93-576; Scriven & Scriven [2020] FamCAFC 236; (2020) FLC 93-988; Lovine & Connor and Anor [2012] FamCAFC 168; (2012) FLC 93-515.

[125] Best & Best [1993] FamCA 107; (1993) FLC 92-418; Clauson & Clauson [1995] FamCA 10; (1995) FLC 92-595.

[126] Clauson & Clauson [1995] FamCA 10; (1995) FLC 92-595; Adair & Adair [2019] FamCAFC 70; Simons & Simons [2020] FamCAFC 128; Lovine & Connor and Anor [2012] FamCAFC 168; (2012) FLC 93-515.

[127] Mallet & Mallet [1984] HCA 21; (1984) 156 CLR 605 per Dawson J at [10].

[128] Manolis & Manolis (No 2) [2011] FamCAFC 105 at [66].

[129] Clauson & Clauson [1995] FamCA 10; (1995) FLC 92-595; Russell & Russell [1999] FamCA 1875; (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120; Martin & Newton [2011] FamCAFC 233; (2011) FLC 93-490; Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545.

[130] The parties and the ICL were advised by way of email on 14 April 2025 that consideration was being given to shortening the timeframes for such an application and were invited to indicate if they wished to be heard in opposition to such a course. No such indication was given by any party or the ICL.