LSB June 2022 LR

FAMILY LAW CASE NOTES
applications after a four year de facto
relationship, where each party had children
of previous relationships.
The de facto husband’s initial
contribution was $895,000 and the de facto
wife’s $21,000 (including superannuation)
to an asset pool of $2,814,132, with all but
$10,763 of the pool owned by the de facto
husband.
Judge Kearney said (from [183]):
“The Court must treat the de facto
husband’s superior initial contributions as
one of those myriad of contributions to this
relationship rather than weighing the myriad
of contributions during the relationship
against his initial contributions …
( … )
[189] … [C]ircumstances which weigh
against the de facto husband’s contribution
[to the de facto wife’s children of a
previous relationship] are the short
duration of the relationship and his large
absences from the … home in the first
half of the de facto relationship (due to
his work commitments …) …
( … )
[236] There is no doubt that the de
facto husband has engaged in serious family
violence, including but not necessarily
limited to, engaging in physical violence
upon her and [her child] (for which
he has been convicted), behaving in a
threatening manner towards her, repeatedly
making offensive, abusive and derogatory
comments about her and [her child],
damaging property in the presence of her
and [her child] and breaching (on more than
one occasion) an existing ADVO.
( … )
[239] I conclude that the de facto
wife’s many and varied contributions …
took place in a context of fear and
suffering caused by the de facto
husband’s conduct. A qualitative
assessment of those contributions
leads inevitably to a conclusion that
they were rendered significantly more
arduous by circumstances of the de facto
husband’s making and meaning that her
contributions were adversely affected by
her having to bear the burden. …”
After assessing contributions as 90:10
in favour of the de facto husband, the
Court made a s90SF(3) adjustment of 5%
in favour of the de facto wife ([272]), such
that there was an 85:15 division overall.
CHILDREN – COSTS – FATHER FAILS IN
APPLICATION FOR INDEMNITY COSTS
WHERE THE MOTHER’S MENTAL HEALTH
DIFFICULTIES WERE CENTRAL TO HER
CONDUCT DURING THE LITIGATION
In Earle [2022] FedCFamC1F 16 (21
January, 2022) Hannam J heard a father’s
application for indemnity costs after
parenting proceedings culminated in orders
for the parties’ two children to live with the
father, with supervised maternal time.
A single expert concluded that
the mother exhibited symptoms of
schizophrenia ([11]).
After considering s117(2)(A) factors,
Hannam J said (from [47]):
“It is the father’s contention … that
the mother conducted the proceedings
in a manner that caused him to incur
significant and unnecessary expense.
( … )
[61] … I accept the father’s
submission that the mother’s conduct
… generally contributed to delay and
difficulty in reaching a conclusion to the
proceedings, which may well have resulted
in costs being thrown away. However …
this conduct must be viewed in the context
of the mother’s mental health difficulties
and the impact these difficulties had on
her overall functioning. …
[62] The father further argues that a
costs order should be made against the
mother given she was wholly unsuccessful
… [T]he father attaches considerable
weight to the mother continuing to press
for final orders … contrary to the opinions
and recommendations of the courtappointed
expert and the final orders
ultimately made …
( … )
[67] … However, this must be
balanced together with all of the other
relevant factors including … the mother’s
mental health difficulties …
( … )
[77] … I accepted at the final hearing
that the mother’s mental health difficulties
… had been evolving over time. …
[78] … I accepted the opinion of
the expert that the mother did not have
any insight into her psychotic symptoms
or the effect that they were having on
her functioning. I also accepted that the
mother’s observed disorganised and unusual
behaviour had been present to some extent
throughout the entirety of the proceedings.
In circumstances where these features of
the mother’s functioning and behaviour are
central to the father’s contentions about her
conduct, I do not consider it just to attach
significant weight to this matter … ”
The Court concluded that each party
bear their own costs, with the mother to
reimburse the father for her share of the
expert’s costs. B
June 2022 THE BULLETIN 29