Taylor & Clark [2025] FedCFamC2F 751 (6 June 2025)

1. The wife was born in the United States ("the US"), and the husband, in Australia. The parties met online in or about 2002 and had a long-distance relationship for several years thereafter.
2. The parties married in the US in 2008, and thereafter, continued their long-distance relationship with the husband visiting the wife twice each year until 2011 and the wife visiting the husband in Australia on one occasion when his mother passed away in 2010.
3. At the commencement of the relationship the wife worked as a professional in the US and the husband as a community worker.
4. The wife gave birth to the parties' first child X ("[X]") in the US in 2009.
5. In 1999, the husband's father passed away and left the husband's mother with three properties:

(1) K Street, Suburb J ("the K Street property");

(2) F Street, Suburb E, ("the Suburb E property"); and

(3) H Street, Suburb J ("the H Street property").

1. The husband's father gave the husband's half-brother, Mr C ("Mr C") a 25-year interest in the Suburb E property and the husband a life interest in the H Street property. The current value of the husband's life interest has been valued by an actuary at $1,825,000.[1]
2. In August 2003, the husband, his mother, and Mr C signed a deed of agreement which extended Mr C's 25-year interest in the Suburb E property to a life interest.[2] This life interest of Mr C was valued by an actuary at $585,000.[3]
3. In 2010, upon the death of the husband's mother, the husband inherited the K Street property and the Suburb E property, subject to Mr C's life interest. The H Street property was left to her grandchildren subject to the husband's life interest.[4]
4. In or about November 2011, the parties purchased their home at B Street, Suburb D ("the Suburb D property").
5. The wife and X moved to Australia in 2012. The wife ceased working upon relocating from the US.
6. The parties' second child Y ("Y") was born in 2015 in Australia.
7. Both children have special needs, with X being diagnosed with autism, and numerous health problems, and Y with medical conditions, and a speech delay. Both children require extensive specialist supports, including speech therapists, psychologists, occupational therapists, physiotherapists, behaviour therapists, and a dietician.
8. The parties separated under one roof in 2016 and lived in that unhappy situation until late 2022 or early 2023.
9. The wife filed her application seeking final parenting and property orders in Division 2 of the Federal Circuit and Family Court of Australia on 19 September 2022.
10. Orders were made on 24 October 2022 ("the October hearing") for the husband to vacate the Suburb D property by 24 January 2023. However, as the husband did not completely move out and kept returning to the property, the wife changed the locks on 9 March 2023. This resulted in an incident at the Suburb D property between the parties, with the wife consequently obtaining an intervention order against the husband in mid-2023 to restrain the husband's further attendance at the property.
11. At the October hearing, orders were also made for the children to live with the wife and spend time with the husband each Wednesday and Thursday from after school until 7.00pm, to commence at 12.00pm on school holidays. The final parenting orders largely reflect those orders.
12. Pursuant to court orders made on 27 April 2023, the K Street property was sold and the proceeds of sale of $473,000 were applied to pay out the balance of the mortgage on the Suburb D property, and to pay the wife a part-property settlement of $25,000.

1. The wife relied upon the following documents:
   • her amended application for final orders filed 31 March 2025;
   • her case outline filed 22 April 2025;
   • her trial affidavit filed 31 March 2025;
   • her affidavit in reply filed 15 April 2025; and
   • her financial statement filed 31 March 2025.
2. The husband relied upon the following documents:
   • his amended response to final orders filed 4 April 2025;
   • his case outline filed 22 April 2025;
   • his trial affidavit filed 4 April 2025; and
   • his financial statement filed 4 April 2025.

1. I have had regard to the contents of each of the documents relied upon by the parties. I have not read anything contained in tender bundles, subpoenaed material or any documents emailed to the court, which were not otherwise separately tendered into evidence as exhibits.
2. It has not been possible to include every aspect of each of the parties' evidence, however, just because I have not mentioned something in these reasons does not mean that I have not considered it.[5]
3. Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities. The party alleging the fact bears the burden of proving it.[6]
4. The Court usually refrains from making specific adverse credit findings if the legitimate disposition of the case can be achieved otherwise.[7] However, in this case, the husband's evidence was nothing short of astounding. He continually made contradictory assertions and outlandish statements which he then resiled from when challenged. For example, when asked about affirming his affidavit via audiovisual link (as stated at the bottom of his affidavit), he denied ever having communicated with his lawyers via audiovisual link. However, when I questioned whether his lawyer would confirm this, if I had the lawyer come and give evidence, the husband immediately changed his evidence to say that he had met with his lawyer by audiovisual link. Unfortunately, the husband's evidence was replete with such examples. Otherwise, the husband was frequently non-responsive or avoided answering questions. It was also clear that on occasion he was simply lying, for example, the husband maintained he did not leave the children alone at the mother's front door on 23 November 2023 despite video footage showing the contrary. As such, I can place no weight on the husband's evidence where it is in dispute and not otherwise corroborated by other evidence.
5. The wife on the other hand was an excellent witness. Under cross-examination her answers appeared genuine, detailed, and consistent with her affidavit evidence. I did not get the impression that the wife was embellishing her answers or that she had a hidden agenda. For these reasons, where there is no other corroborating evidence, I prefer the evidence of the wife to that of the husband.

1. Part VIII of the Family Law Act 1975 (Cth) ("the Act") sets out the legal principles governing any application for property settlement. Section 79(1) of the Act authorises the court to make such orders between the parties as it considers appropriate. Section 79(2) of the Act states that the court cannot make an order for property settlement unless it is just and equitable to do so.
2. Full Court authorities have identified a four-step process to assist the Court in reaching a just and equitable decision.[8]
3. The court must first identify the parties' legal and equitable interests in the assets arising from their relationship, as well as their liabilities. The court should then assess each party's contributions during the relationship in accordance with sections 79(4)(a) to (c) of the Act.
4. The third step requires the court to consider the factors set out in sections 79(4)(d) to (g) of the Act, including the "future needs" factors identified in section 75(2). The court should then consider its findings and, what order, if any, is just and equitable.
5. The Full Court in Bevan & Bevan [2013] FamCAFC 116 at [86], made it clear that the four-step process is not legislatively mandated. Rather, it provides a structure to ensure that a property settlement order is only made when the court is satisfied that it is just and equitable to do so, and that the terms of the order itself are also just and equitable.

1. Consistent with Stanford v Stanford (2012) 247 CLR 108, I am of the view that it is just and equitable that an order be made adjusting the property interests of the parties. The parties are no longer living together, there is no longer the common use of their property, and both parties asked the court to make such an order.
2. The parties presented the Court with an agreed table of assets and liabilities as follows:[9]

1. I note that this table does not include the part-property payment to the wife but since the court was informed this was the agreed pool and neither party otherwise made reference to the payment, I do not propose to include it in the asset table.

In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last - mentioned property, whether or not that last - mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last - mentioned property, whether or not that last - mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and

(e) the matters referred to in subsection 75(2) so far as they are relevant; and

(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and

(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

(Emphasis added)

1. Section 75 of the Act sets out the following factors to be taken into consideration when assessing the parties "future needs" in relation to spousal maintenance, as follows:

(2) The matters to be so taken into account are:

(a) the age and state of health of each of the parties; and

(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

(d) commitments of each of the parties that are necessary to enable the party to support:

(i) himself or herself; and

(ii) a child or another person that the party has a duty to maintain; and

(e) the responsibilities of either party to support any other person; and

(f) subjection to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

(i) any law of the Commonwealth, of a State or Territory or of another country; or

(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

and the rate of any such pension, allowance or benefit being paid to either party; and

(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and

(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

(l) the need to protect a party who wishes to continue that party's role as a parent; and

(m) if either party is cohabitating with another person the financial circumstances relation to the cohabitation; and

(n) the terms of any order made or proposed to be made under section 79 in relation to:

(i) the property of the parties; or

(ii) vested bankruptcy property in relation to a bankrupt party; and

(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

(i) a party to the marriage; or

(ii) a person who is a party to a de facto relationship with a party to the marriage; or

(iii) the property of a person covered by subparagraph (i) and of a person by subparagraph (ii), or of either of them; or

(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

(p) the terms of any financial agreement that is binding on the parties to the marriage; and

(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

1. Pursuant to the High Court case of Mallet v Mallet [1984] HCA 21, there is no presumption of equality of division of property, not even in a long relationship and in each case the contributions of each party must be assessed on their own facts.
2. In determining what orders are to be made pursuant to section 79 of the Act, as set out in Aleksovski & Aleksovski [1996] FamCA 111 ("Aleksovski") at [50] I must:

...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. Those observations were quoted with approval by the Full Court in Dickons & Dickons [2012] FamCAFC 154 ("Dickons"). In that case, at [21], their Honours, Bryant CJ, Faulks and Murphy JJ said that "...the requirements of the section are met by approaching the assessment of contributions holistically...".

1. Whilst I have taken into account each of the matters under sections 79(4) and 75(2) of the Act, I shall only refer to those matters which were pertinent to my decision.

1. At the commencement of the relationship, the wife had a property in the US which the husband says she sold prior to moving to Australia. He does not know what profit she received from that sale, but the wife concedes in her reply affidavit that she sold her US property at a loss. The wife says that she nonetheless had savings of $33,000 USD, which she says she transferred to the husband's Australian bank account. She says the husband used $10,000 of those funds to pay a tax debt; $7,000 was used to paint the Suburb D property, $5,500 to landscape the front yard, and some funds to pay the mortgage on the property.[10] For reasons stated I accept the wife's evidence in this regard.
2. The husband brought into the relationship his life interest in the H Street property. It is not known what the value of the husband's interest was at the time, but it is now valued at over $1.8 million.

1. In 2010, the husband inherited both the K Street property and the Suburb E property, subject to Mr C's life interest. Again, it is not known what the value of his interest was at that time, however, the K Street property sold in 2023 for $473,000, largely paying off the Suburb D property. The Suburb E property, less Mr C's life interest, is now worth $864,200. It is not known if the dwellings on the Suburb E property were also rented out during the relationship or if so, over what period and for what rental price.
2. In 2011 or 2012, the parties purchased the Suburb D property. The wife says it was purchased for $530,000 and the husband says for $576,000. I again accept the evidence of the wife. The husband's evidence is that he paid the deposit of $70,000 from "his savings" with the rest funded by way of a mortgage. However, the husband does not say over what period he saved those funds. If it was the case that the husband saved the deposit between 2009 and 2012, during this time the wife had the sole care of X, thus enabling the husband to work so he could save those monies. Counsel for the husband conceded this should be seen as a contribution by both parties.
3. In terms of day-to-day contributions, the wife says that until she came to Australia she worked as a professional. Whilst in the US, the wife was the sole carer for X save for two occasions of a couple of weeks, when the husband visited, and on one occasion when she visited Australia in 2010. Upon the wife's relocation to Australia, she ceased work, and the husband became the primary income earner.
4. The husband's evidence relating to the hours he worked, like most of his evidence, was contradictory and hard to follow. In the witness box the husband variously said the following:
   • He worked from 2012 to 2023 from 5.00am to 1.00am;
   • He often started at 7.00am;
   • He worked about 70 hours per week but this reduced "at some time";
   • He worked 7 days per week with half a day off; and
   • He now works part-time although all community work is technically part-time.
5. Although it was impossible to work out exactly what hours the husband worked, the wife conceded the husband worked long hours. Indeed, her parenting case was based on same. However, it is well established that the direct financial contribution of one party is not to be treated as being more important "when compared against indirect contributions and, in particular, contributions to the home or the welfare of the family_._"[11]
6. The wife's case is that during the relationship, she received little assistance from the husband in relation to the care of the children. The husband denies this, but on any version of his evidence, he was working extremely long hours. He is not to be criticised for this as he was making a substantial financial contribution to the household. However, it is difficult to understand how he could have had much time to spend with the children and certainly not much energy to give to that task. The wife says the husband mostly slept and if his extended work hours are true, that is entirely understandable.
7. I find that the parties' day to day contributions during the relationship were more or less equal save for the two and a half years after X was born when the wife was his sole carer and also working in the US.

Post separation - under one roof (2016 to 2022)

1. The wife says that there was a significant shift in the attitude of the husband from about 2016, when the parties separated under the one roof. Her evidence was that she was left with complete responsibility for the care of the children, including cooking, bathing and feeding them and taking the children to medical appointments. She says the husband continued to work long hours but did not attend family events, worked on public holidays and did not even take time off for the children's birthdays. Her evidence is that "every time I requested assistance with the children, it turned into an argument with the respondent_._"[12]
2. The wife says that during COVID, she asked the husband on an occasion to care for X whilst she took Y to the hospital but the husband refused.[13] She says that the husband would "stay on his side of the house and come out to the kitchen if he was hungry_._"[14] The wife's evidence was the husband would stay in his room and come out of the bedroom about 11.00 in the morning, by which time the children were already fed. He would play with them, go to work at 1.30pm and then return at 11.00pm, by which time the children were asleep. Her evidence was that on his day off he would spend the whole day watching television with the children and would allow the children to stay up watching television when he went to bed. She described it as being "like a single parent."
3. The husband maintained he was actively involved with the care of the children during this period. For example, he says he would take the children to swimming lessons. The wife's evidence was that X's lesson was on Monday afternoon when the husband was working, and that Y never had lessons. Again, in relation to the care of the children during this period I prefer the evidence of the wife.
4. In addition to day-to-day duties in the home, it appears common ground that the husband ceased attending the children's medical appointments and that this responsibility fell entirely to the wife. The wife's evidence is that X attends upon occupational therapists, speech therapists, psychologists and behavioural therapists, paediatricians, dieticians, orthotists, as well as sports lessons. Y attends upon occupational therapists, speech therapists, psychologists, physiotherapists, paediatricians, audiologists, orthotists, ophthalmologists and dieticians/RFT feeding specialists.[15]
5. Furthermore, the wife gave evidence that during COVID lockdowns she was left with the responsibility of home schooling, telehealth therapies and other needs of the children without assistance from the husband. The wife said she continued to be responsible for all of the cooking and cleaning, as well as the outside maintenance of the home, such as the lawns and garden.[16]
6. Although it is common ground that the husband continued to meet all the household expenses and provide the wife with $200 per fortnight, I find that the wife's contribution on a day-to-day basis exceeded that of the husband during the time they were separated under the one roof.

Wife's responsibility for the care of the children and their attendance at treatment

1. After the husband moved out of the home the wife continued to be the primary carer of the children. The wife's case is that she continued to be responsible for the children's specialist appointments without assistance from the husband. The husband's case was that he wanted to be involved but the wife actively excluded him from involvement. For example, the husband says he was unable to continue to take Y to N Centre "because the mother did not want me to."[17] However, this is simply a lie. The texts between the parties, exhibited in evidence, showed that contrary to this the husband demanded that the wife change the appointments so that they did not occur in his time.[18]
2. The husband tried to explain the need to change the appointments because he could not be in two places at the same time. The husband pointed out that the children had appointments two hours apart in two different locations. However, even if I accept that to be the reason, noting he was demanding all therapy be moved and not just one appointment, it came to light that the husband's difficulties arose because he refused to buy a new car because, on his evidence, he did not want the wife to have a claim to it. Consequently, the husband chose to transport the children by bus, taxi or uber. In the end, the only therapy he was involved with was for X because the wife was unable to change appointments for other therapy sessions. In addition, there is no evidence that the husband asked to attend the appointments that were outside his time. The wife also gave evidence that when she was unwell, she asked the husband to assist with taking the children to therapy, however, he refused.
3. The husband also asserted that the wife had blocked him from speaking with specialists. However, the evidence showed that whilst the existence of an intervention order may initially have had that effect, going forward there was no barrier to the husband speaking with specialists. Indeed, in the case of N Centre they report that the father was not answering their calls to discuss X's goals in therapy.[19] The husband's explanation for the latter was that he had an old phone and sometimes it ran out of battery.
4. The husband also said that the wife had failed to provide him with a full list of specialists. The wife's evidence was that the husband was aware of most of the therapists because the children have predominantly attended the same practitioners since before the separation. Indeed, the husband confirmed under cross-examination he knew the details of the children's paediatrician, ophthalmologist and speech therapists.
5. The wife says she has kept the husband informed, but even if I accept the husband's evidence, she was ordered to provide the husband with a full list of practitioners on 9 December 2024 and on 10 December 2024 she emailed that full list to him.[20] The husband asserts the wife sent this to the incorrect email address, however if so, there is no evidence that between the hearing on 9 December 2024 and this trial in late April 2025 that the husband made any follow up requests for those details.

Husband's behaviour making wife's parenting more onerous

1. The wife's evidence is that the children both require routines and boundaries, and that it takes a lot of work with their specialists to ensure that this happens. The wife's evidence is that the husband's actions frequently undermined this process and resulted in the children regressing. The wife said the husband's lack of boundaries concerned the food that the children eat, their lack of supervision, the time they go to bed, and the husband's failure to return them to her at a reasonable time. She gave evidence that there was no structure or consequence for their behaviour and that "their free ranging" sets them back. She said the husband's failure to impose boundaries for X meant she was now dealing with "a sixteen-year-old toddler," and that she now has had to put a GPS tracker in X's shoes.
2. It was common ground that X has been diagnosed as being "obese." The wife said that due to his autism it was necessary to physically stop him from eating or restrict his food intake as he, himself, could not gauge when he was full. Nonetheless, the wife gave evidence that the husband allowed X to consume copious amounts of unhealthy foods, often at "all you can eat" restaurants. In regard to the children's diet, the husband asserted in his oral evidence both, that he cooked the children healthy meals, but also that he did not have time to return to his home to do so because of his transport issues. At the behest of his paediatrician, X kept a food diary which confirmed he frequently ate large quantities of unhealthy foods in the care of the father. The husband endeavoured to suggest this diary referred to foods the whole family was eating, but this was not consistent with portion sizes indicated in the diary, or with the fact that it was X's personal food diary.
3. It was also common ground that the husband repeatedly failed to return the children at 7.00pm as ordered, but regularly returned them at 8.00pm and sometimes as late as nearly 10.00pm. Again, the husband said this was due to transport issues. However, even if that is a reasonable explanation, noting that the husband chose not to purchase a car rather than being unable to afford one, there is evidence showing that the husband failed to notify the wife when he was going to be late or did not otherwise respond to her texts. It also showed that on at least one occasion he returned the children close to 10.00pm and did not even wait to ensure that the wife was at home, let alone apologise to her. The husband had various explanations for this which were inconsistent with video footage of the event, and I reject his evidence entirely.[21]
4. The wife gave evidence that the late returns of the children regularly disrupted their nighttime routine and meant the children went to bed much later. She said this was particularly difficult for the children because they were "creatures of habit_._" The wife asserted that, generally speaking, the husband's lack of boundaries was problematic for the children and made her parenting more difficult upon return.
5. I find that the wife's contributions by way of her care of the children with their special needs, was greater than that of the husband's day to day contributions during this period, and that the husband's actions made her contributions more onerous.

1. It was argued for the husband that his inheritance, by way of the legal ownership of two properties (subject to Mr C's life interest) and the husband's life interest in a third, has directly resulted in the majority of the asset pool that is available for division between the parties, and therefore, he should now receive 75 per cent of the asset pool. However, although the husband inherited the properties, as held by the Full Court in Jabour & Jabour [2019] FamCAFC 78, it would be an error to characterise the mere increase in value of his interest in these properties, which appeared to be predominantly by way of market forces, to the husband alone. As was the case in Hurst & Hurst [2018] FamCAFC 146, the parties contributed to the inherited properties during the relationship by continuing in their "respective agreed roles and spheres."[22] However, in this case, as discussed, the wife made a greater contribution in her role as carer of the children from 2016 onwards.
2. Furthermore, I note the observations of the Full Court in Dickons, in which it was made clear that there need not be a causal link between a party's contribution and a particular asset.[23] The Full Court also affirmed the line of authorities which have held the court must consider a substantial contribution among "the myriad" of contributions throughout a relationship, rather than weighing such a substantial contribution against the others. As was stated by His Honour Kay J in Aleksovski at [90]:

The Judge must weigh up various areas of contribution. In a short marriage, significant weight might be given to a large capital contribution. In a long marriage, other factors often assume great significance and ought not be left almost unseen by eyes dazzled by the magnitude of recently acquired capital... What is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship.

(Emphasis added)

1. Taking into account all of the aforementioned contributions, I find that the husband should receive an alteration of the current asset pool, based on contributions, of 65 per cent.

SECTION 75(2) FACTORS

Section 75(2)(a) age and health of parties

1. The wife is currently 49 years of age and has no apparent health issues.
2. The husband is 55 years of age and is also seemingly in good health.

Section 75(2)(b) income and financial resources of the parties

1. The wife does not currently work. The husband's case is that she could undergo some form of work, however, this either shows a complete lack of understanding of the wife's commitments with the children or a complete disregard for same. The wife's evidence is that the children have multiple appointments with specialists each week, including in the case of Y, three appointments on one day. The wife's further evidence was that she had enquired with the National Disability Insurance Scheme ("the NDIS") as to whether she could get assistance from support workers, but she said that the NDIS was cutting down funding in a lot of areas, and as such, this had not been possible. She also said that NDIS were no longer providing in home services, so she was required to travel to services which often took longer than the service itself. Adding to this, Y was frequently absent from school because of illness and/or the wife was often required to pick him up from school at short notice, due to a child pushing or hurting him at school. I note the wife has no family in Australia or other people she can turn to for assistance, and that in any event, she says that because of the children's special needs, including X's behavioural issues, it is difficult for others to manage their care. As discussed, the wife is unable to rely upon the husband, who has previously refused to assist due to his work commitments. For all of these reasons, it would not be reasonable to expect the wife to be able to find paid employment outside of the home.
2. The husband's evidence is that he has reduced his work hours, however, his actual income is not known. On his own evidence, the husband's financial statement was inaccurate, and he has provided no evidence by way of tax returns, pay slips or bank statements to show his income. The wife believes the husband earns about $100,000 per year and says that if he is working part-time, given the limited time he is to spend with the children under the final parenting orders, he has the capacity to return to increase his hours.
3. The husband also receives rental income from four dwellings at the H Street property. However, the actual amount of rent he receives is also unknown as he conceded his financial statement was incorrect and he has not provided any rental invoices to the wife. The only evidence available is that in 2021, the husband received about $760 per week in total for those dwellings.
4. In terms of financial resources, if the wife were to receive 35 per cent of the pool, she would retain the Suburb D property unencumbered and would not have to pay any rent or mortgage. The wife would also retain her other assets including her car, but would have to make a cash payment to the husband of $346,567.35.

Section 75 (2)(c) care of the children

1. As discussed, pursuant to the final parenting orders the wife is to have the full-time care of the children, who will not spend any overnights with the husband. The wife is almost entirely responsible for taking the children to their appointments, at the insistence of the husband. Although the children both attend school, the wife must be available at short notice to pick them up if there is an issue, considering Y having frequent illnesses and issues at the school. Neither child is able to be left unsupervised and the wife has no family to assist her. NDIS have been unable to provide her with support workers and she is unable to rely on others to baby sit because the children require particular care.
2. Although X is almost 16 years of age, the wife's evidence is that she is uncertain if he will be able to live independently as an adult. This concern is even greater with Y, who has a medical condition. In this regard I note authorities such as Hayton & Bendle [2010] FamCA 592, which discusses a parent's moral duty to support an adult child who is unable to support themselves.

Section 75(2)(f) - pensions, allowances or benefits

1. The wife is entirely reliant upon government benefits and those provided through NDIS. However, her evidence is that NDIS does not cover all of the expenses, and she is left with gap fees she must cover.

Section 75(2)(na) - any child support under the Child Support (Assessment) Act 1989

1. The wife has not applied for child support - she says because the husband threatened her in the event that she did. She said that although the husband had never physically hurt her, he had been verbally abusive, and that one never knows when this could escalate. I accept that the wife held a genuine fear in this regard.
2. The wife gave evidence that she has reached out to the husband to assist her, in particular with the children's dental expenses which are substantial, but he has refused. Her evidence is that she has had to go on a payment plan to cover the $4,000 she must pay for X and that Y has similar issues with his teeth.
3. Remarkably, the husband sought recognition for buying a laptop for X. However, I note that the wife had been requesting his assistance in this regard for some time, and that it was only when it was raised at the hearing on 9 December 2024 that the husband agreed to an order in this regard. Even then, despite being ordered to provide the laptop to X by term 1, 2025, the husband did not buy the laptop until March 2025, meaning X commenced school without one.

Section 75 (2)(o) - any other matters the justice of the case requires to be taken into account

1. The wife says the husband has not provided any disclosure. The husband says he did provide documents to his lawyers earlier in the proceedings, but concedes he has not provided any financial disclosure since 2022. For reasons already stated I accept the evidence of the wife.
2. The wife's counsel argues that this puts the wife at a considerable disadvantage. She submits that due to a failure to provide tax returns, the wife is not only unaware of the husband's income from employment, but that the tax returns would have provided information about his income from rent, dividends and superannuation. In addition, the wife submits that the husband's failure to include bank account details in his financial statement prevented her from issuing subpoenas to banks, which would likely have shed further light on his financial situation. Whilst the husband conceded in the witness box that he had sufficient savings to purchase a car, it is not known how much he has in his bank accounts. In addition, the wife says that in March 2022 the husband wrote off her car which was insured for $35,000. She says the husband has not disclosed what happened with the insurance claim.
3. In Weir & Weir [1992] FamCA 69 the Full Court stated:

It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.

ADJUSTMENT DUE TO S 75(2) FACTORS

1. Taking all of the above matters into consideration the wife ought to receive an alteration of the property pool in her favour, of 15 per cent.

1. Based on the above assessment the pool would be divided equally between the parties. However pursuant to the authority of Clauson & Clauson [1995] FamCA 10; (1995) FLC 92-595, I must consider the real effect of this division in dollar terms.
2. Each of the parties proposed a one-pool approach. Based on the agreed asset pool of $3,837,428.14, 50 per cent would see each party receiving assets to the amount of $1,918,714.07. Based on the wife keeping the Suburb D property, which is agreed, as well as the other items in her name, this would require the husband to pay her an amount of $922,181.62 ("the payment"). This is calculated as follows:

1. In all of the circumstances of this case, I find that such a division is just and equitable. The division is sufficient to provide the wife with an unencumbered home, a car, and provide her with a payment to meet her future needs, and those of the children, going forward. I note that although the husband does not appear to have any assets immediately available from which to make the payment, there is a possibility Mr C has forgone his right to the life interest because he no longer resides in the Suburb E property. The wife is to seek legal advice in that respect.
2. Otherwise, the only orders the court can make to ensure justice and equity between the parties are those proposed by the wife. Those orders provide for the wife to transfer her interest in the Suburb E property to the husband within 90 days, to be held on trust pending the payment. The wife will place a caveat over the Suburb E property to protect her interest. Whilst the wife would retain greater security from remaining on the title of that property, I understand this may result in her being liable for land tax, which she clearly wishes to avoid.
3. Mr C will be requested to remove a caveat placed over the Suburb E property to enable the transfer of the wife's interest to the husband. Whether or not he does so, the husband will be ordered to indemnify the wife against any ongoing liabilities associated with the Suburb E property, including any land tax.
4. The remainder of the orders proposed by the parties were by consent.
5. For all the aforementioned reasons, I make the orders as set out at the commencement of this judgment.

I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins.

[5] See Whisprun Pty Ltd v Dixon [2003] HCA 48,

[6]Wallaby Grip Ltd v QBE Insurance (Australia) Ltd (2010) 240 CLR 444 at [36]

[7] Adamson & Adamson [2014] FamCAFC 232; (2014) FLC 93-622 at [89]- [90], quoting Carlson & Fluvium [2012] FamCA 32 at [165]- [169].

[8] See Lee Steere & Lee Steere [1985] FamCA 57; (1985) FLC 91-626; Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395 and In the Marriage of AJO & GRO [2005] FamCA 195.

[10] Wife's reply affidavit filed 15 April 2025 at [8].

[11] Hoffman & Hoffman [2014] FamCAFC 92 at [52], quoted in Fields & Smith [2015] FamCAFC 57; (2015) FLC 93-638 per Bryant CJ & Ainslie-Wallace J at [42].

[15] Wife's affidavit at [16] - [17].

[17] Husband's trial affidavit at [35].

[22] Hurst & Hurst [2018] FamCAFC 146 at [25].