Alderisi & Alderisi - [2023] FedCFamC1F 1076

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Alderisi & Alderisi [2023] FedCFamC1F 1076

File number(s): ADC 5322 of 2019

Judgment of: BERMAN J

Date of judgment: 14 December 2023

Catchwords:
FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Where there are eight children – Where the mother has the primary care of seven children – Where the father has the primary care of one child – Where the father seeks orders for the children to live with the mother and spend significant time with him – Where the mother seeks orders for supervised time with the father –Allegation of risk – Where the mother alleges the father perpetrated family violence – Where the father undermines the mother – Where the father alleges that the mother sexually assaulted the eldest child – Where the father seeks a finding on the balance of probabilities – Where the father’s proposed orders are inconsistent with his allegations of risk – Consideration of a child’s evidence – Consideration of treatment of evidence – No finding made – Children’s wishes – Consideration of the siblings spending time together – Where the Court takes a cautious approach – Orders.

FAMILY LAW – PROPERTY – Modest asset pool – Contributions – Where the father owned a property prior to the relationship – Future needs – Where the mother has the primary care of seven children – Where the mother is unable to work for the foreseeable future – Where the mother seeks to retain the former matrimonial home – Adjustment for the father’s contribution – Adjustment for the mother’s significant future needs – Orders.

Legislation:
Evidence Act 1995 (Cth) s 135

Family Law Act1975 (Cth) Div 12A, ss 60CA, 60B, 60CC, 61DA, 69ZV, 69ZW, 69ZT, 75, 79.

Cases cited:
Baglio & Baglio [2013] FamCA 105

Briginshaw v Briginshaw (1938) 60 CLR 336

Harridge & Harridge [2010] FamCA 445

M v M [1988] HCA 68

N & S & The Separate Representative (1996) FLC 92-655

S v R (1999) FLC 92-834

S v S [1993] NZ FLR 657

Vasser v Taylor-Black (2007) FLC 93-329

VJ v CJ (1997) FLC 92-772

Division: Division 1 First Instance

Number of paragraphs: 386

Date of hearing: 13, 14, 15, 16, 26, 27, 28, 29 June 2023 & 3 October 2023

Counsel for the Applicant: Mr Bowler

Solicitor for the Applicant: Marciano Lawyers

Counsel for the Respondent: Ms Boyle

Solicitor for the Respondent: The Family Law Project
ORDERS

ADC 5322 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR ALDERISI

Applicant

AND:
MS ALDERISI

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

14 DECEMBER 2023

THE COURT ORDERS THAT:
1.Mr Alderisi (“the father”) shall have sole parental responsibility for S born 2010.
2.S shall live with the father.
3.S shall spend time with Ms Alderisi (“the mother”) subject to his wishes.
4.The mother shall have sole parental responsibility for T born 2011, U born 2012, V born 2014, W born 2016, X and Y both born 2018 and Z born 2020.
5.T, U, V, W, X, Y and Z shall live with the mother.
6.T shall spend time with the father subject to his wishes.
7.U, V, W, X, Y and Z shall spend time with the father as follows:
(a)For a period of nine (9) calendar months from the date of this order:
(i)Each alternate Sunday from 10.00 am to 5.00 pm; and
(ii)At such further and other times as agreed between the parties in writing.

8.The father’s time in accordance with order 7 be supervised by the paternal grandmother or such other person as shall be nominated by the father in writing.
9.The paternal grandmother or such other person as may be nominated to supervise the father’s time shall file and serve an affidavit within seven (7) days of the father’s nomination confirming that he or she has read the brochure “Should I Supervise Contact” as published by the Legal Services Commission and that she or he understands and will comply with the obligations of a supervisor.
10.After the expiration of nine (9) calendar months from the date of the order, U, V, W, X, Y and Z will spend time with the father as follows:
(a)Each alternate weekend from 10.00 am Saturday to 10.00 am Sunday;
(b)That after a period of three (3) months, the children will spend time with the father each alternate weekend from 10.00 am Saturday until 5.00 pm Sunday;
(c)That after a further period of three (3) months, the children will spend time with the father each alternate weekend from the conclusion of school on Friday (or 3.30 pm if a non-school day) until the commencement of school on the following Monday (or 8.30 am if a non-school day); and
(d)As and from end of the third school term in 2024, for one half of each of the short school holidays and in default of agreement for the first half.

11.The children spend week about with the parties during the Christmas school holiday period.
12.Order 10(c) is suspended during any period of school holidays commencing end of third term 2024.
13.The parties exchange all information regarding the children’s health, education and day to day welfare.
14.Handovers that do not occur at school or childcare are to take place at the residence of the parent that has the children in their care, by the parent collecting the children.
15.All school uniforms, regular items of clothing including but not limited to school bags, educational materials, sporting items, toys and all belongings that each child wishes to have in their possession shall travel with each child at handovers, or as may be otherwise agreed.
16.Within sixty (60) days of the making of these orders, the mother do pay to the trust account of the father’s solicitors for and on his behalf, the sum of THREE HUNDRED AND THIRTY THOUSAND DOLLARS ($330,000) (“the settlement sum”).
17.Contemporaneously with the payment of the settlement sum, the father do all things necessary and sign all documents as may be required to transfer to the mother all of his rights, title and interest in the property situate at B Street, Suburb C being the whole of the land comprised in Certificate of Title Volume … Folio … (“the Suburb C property”).
18.The parties each retain all their right, title and interest in and their own superannuation entitlements and have no further claim on such entitlements of the other.
19.Unless otherwise specified in these orders, and except for the purpose of enforcing the payment of any money under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all property, in the possession of such party as at the date of these orders;
(b)Any money standing to the credit of the parties in a bank account are to be retained by the party in the name as the account appears;
(c)Each party hereby forgoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided by these orders;
(d)All insurance policies are to become the sole property of the owner named thereon; and
(e)Each party be solely liable for and indemnify the other against any liability incumbering in an item of property to which that party is entitled pursuant to these orders.

20.Thereafter, each of the parties shall retain all assets in their possession and/or control and all liabilities in their respective names and in the case of liabilities retained by each party, each party does hereby indemnify the other in respect of same.
21.In the event that the mother is unable to obtain the necessary finance to effect the transfer and payment of the settlement sum to the father, the Suburb C property shall be placed on the market for sale with such real estate agent as may be nominated and/or agreed by the parties within fourteen (14) days of default and at such price and on such conditions as may be agreed between the parties but in the absence of agreement as recommended by the said nominated agent and the proceeds of sale shall be applied as follows:
(a)Payment of any agent’s commission, advertising expenses and legal expenses of the sale;
(b)Payment of any outstanding outgoings, council rates and/or emergency services levies;
(c)The payment to the father of the settlement sum as provided for herein; and
(d)The balance to be paid to the mother.

22.Pending the sale or transfer of the Suburb C property, the mother shall continue to pay as they fall due, all outgoings in respect of the Suburb C property and she will hereby indemnify the father in respect of same.
23.In the event that either party refuses or neglects to execute any further deed or instrument, a Judicial Registrar of the Federal Circuit and Family Court of Australia (Division 1) be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of such party and to do all such acts and things necessary to give validity to the operation to the deed of instrument.
24.Each party bear their own costs of these proceedings.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION

Mr Alderisi (“the father”) and Ms Alderisi (“the mother”) are unable to reach agreement in respect of the future parenting arrangements for S born 2010, T born 2011, U born 2012, V born 2014, W born 2016, X and Y both born 2018 and Z born 2020. The parties are also unable to reach agreement in respect of settlement of property arising from the marital relationship commencing in 2004 and ending with their final separation in November 2019.
The father seeks an order that the parties have equal shared parental responsibility for the children save and except for S. The current arrangements for the children are that S remains in the sole care of the father and spends no time with the mother whilst the other seven children are in the sole care of the mother and spend no time with the father.
The mother seeks orders for sole parental responsibility and for the children, including S, live with her and spend no time with the father. The mother’s contention is that the father perpetrated family violence against the children highlighted by a recent physical assault on the child, T. The father’s conduct is such that the mother considers he presents as an unacceptable risk of harm to the children although she does not suggest that the father should be prevented from sending cards and gifts on special occasions or that he should not receive information as to the children’s progress and development.
The father denies that he poses an unacceptable risk of harm to the children and considers that there is no evidence that would support a finding that he has physically, emotionally or psychologically abused them.
Moreover, the father considers that even though he has been the subject of baseless allegations of family violence made by the mother resulting in intervention orders and criminal charges, she continued to invite him to her home, communicate with him and engage in conduct consistent with the parties exploring a reconciliation of their relationship.
The father does not consider that any concerns that may have been expressed by the mother in respect of his alleged conduct are genuine.
The broad contention of the father is that it is in the children’s best interest that they maintain a meaningful relationship with him and it should be given effect by orders for significant and substantial time.
The position of S is more complex. Whilst the mother seeks that S return to her sole care, the father alleges is that the mother sexually assaulted S and poses an unacceptable risk of harm. S was the subject of police investigation however, following an adjudication process, a decision was made that charges should not proceed.
The father considers that S should spend time with the mother in accordance with his wishes but in any event, supervised.
Whilst more will be said of S and his circumstances, before the appointment of the Independent Children’s Lawyer (“ICL”) was discharged, the ICL considered that S should remain with the father and spend time with the mother subject to his wishes.
It is not controversial that S is well entrenched in the father’s home and, taking into account his age and the extent to which he was the focus of criminal proceedings alleging the mother sexually assaulted him, the orders sought by the mother in respect of S can be described as a button pressed faintly.
The unfortunate aspect of the proceedings was that consistent with the dispute between the parties, the children in the mother’s care and S have no real relationship. On 29 June 2023, at the conclusion of the first tranche of the proceedings, Consent Orders were made as follows:
1.The parties do all things necessary to facilitate the children spending time together from 10.00 am to 12 noon on alternate Sundays to commence on 2 July 2023 at the [D Park] at [Suburb E].
2.The parties deliver and collect the child/children in their respective care to and from the park but not be present during the time spending.
3.The parties be at liberty to each facilitate one support person to be present with the children during the time spending.
It appears that the parties have complied with the Consent Orders and the children have been able to spend time with each other without difficulty.
The parties also remain in dispute as to the division of their assets and liabilities. The asset pool is modest with the main asset being the property situate at B Street, Suburb C (“the Suburb C property”) with an agreed value in the sum of $950,000. The balance of the property of each of the parties, including the father’s superannuation interest, is modest.
The mother seeks to retain the Suburb C property and contemporaneously with the transfer of the husband’s interest in the Suburb C property, the mother is to pay a settlement sum calculated on the basis of a 75/25 per cent division of the parties’ non-superannuation and superannuation assets.
BACKGROUND
The father is 53 years of age and the mother is 37 years of age. The parties have been in a relationship since 2004 and commenced cohabitation as at the date of marriage in 2004. At the time of marriage, the father owned a unit which was sold in 2006 for over $250,000. The net proceeds were then used to purchase a subsequent property at Suburb F.
At the commencement of the relationship the mother was employed in an administration position and the father worked in a casual position. It is agreed that the parties pooled their resources.
Shortly before the birth of S in 2010, the mother left her employment. The father was working part-time but then lost his job six months later. The income received was by way of a Centrelink benefit, pension or allowance. It appears that the father did not re-enter employment for a few years.
Between 2010 and 2020, the parties’ children were born. T was born in 2011, U in 2012, V in 2014, W in 2016, X and Y in 2018 and Z in 2020.
The mother did not return to employment arising from the extensive needs of the children.
In 2016, S was diagnosed with autism spectrum disorder (“ASD”) and the parties received a Carers Pension up until the time of separation.
In 2012, the parties sold the Suburb F property and moved interstate. The parties then purchased a property at Suburb G.
In 2014, the parties sold the Suburb G property and bought the Suburb C property outright for over $500,000.
Between 2015 and 2018, the children were home schooled. The parties do not agree as to the extent of the involvement by each of them but it is likely that the parties were accepted as carers and therefore each entitled to a pension, benefit or allowance.
The mother alleges that the father perpetrated family violence by referring to her in derogatory terms such as “fucking slut”, “ugly mole”, “fat arse”, “filthy pig” and saying “I should never have married you”. The mother further alleges that the father would throw her clothes down the stairs whilst they were living interstate.
The father denies that he perpetrated family violence whilst the family lived interstate although he does accept that following an incident in 2014, where the father reacted aggressively to T when he tried to wipe his bottom, he was the defendant of a domestic violence restraining order (“DVO”).
The father’s contention is that notwithstanding the DVO, the mother contacted him and sought a reconciliation. It was following this brief separation and the parties reconciling their differences that the family then moved back to City BB.
Whilst denied by the father, the mother alleges that the father would push and pull her when angry or frustrated and would call her a “slut”. The incident was observed by T. The father denies the allegation and further contends that alleged assault is fabricated by the mother.
The mother gave birth in 2018. Shortly thereafter, she and the father argued and the mother alleges that the father forcibly removed her phone, pushed her to the ground and smashed her phone on the floor. Again, the mother contends that some of the children witnessed the incident.
The mother recollects that S called the police who arrived ten minutes later. The father was then charged with an offence and an Intervention Order was issued with the mother and the children as the protected parties.
The father’s recollection of the incident was that the mother came home from the hospital, having visited the children, and became upset because the family had commenced dinner.
An argument ensued and whilst the father was on the phone to his mother, he alleges that the mother started recording him, struck him with her phone and then threw it on the ground. The father then ran outside to distance himself from the mother. There is some disagreement as to whether S did or did not call the police.
Following the Intervention Order, the parties recommenced communication and an agreement was reached that they should attempt a reconciliation.
In 2018, the parties were charged with breaching the Intervention Order and aiding and abetting the breach of the order.
Upon the representation of the mother, both sets of charges were withdrawn and the Intervention Order was removed.
Consistent with previous history, the parties argued and separated for a second time in early 2019.
The mother reported to the police that the father had threatened to have her killed resulting in the father being charged with offences. The father was not given bail.
The father denies that he assaulted the mother or threatened that she would be killed and the charges were discontinued.
The parties again attempted a reconciliation, the mother requested that the further Intervention Order be removed and following a resumption of sexual relations in 2019, Z was conceived.
In apparently acrimonious and highly emotional circumstances, the parties effected a physical separation on 15 November 2019. Initially, S, V and U stayed with the father and the mother, together with the remaining children, left the Suburb C property.

Throughout the period of the relationship there has been significant involvement of the Department for Child Protection (“DCP”). In late 2019, DCP attended the father’s home and removed the children from his care.
In late 2019, the mother put in place a further Intervention Order which prevented the father from attending the children’s school or having any contact with the children or the mother.
By orders made 27 October 2020, the children were to live with the mother and, during the period of the adjournment, spend time with the father as follows:
(a) each alternate Sunday from 10am until 5pm SAVE and EXCEPT for the child [Z] with the time to be from 10am until 12noon NOTING the mother will collect [Z] from the former matrimonial home at 12noon commencing 15 November 2020; and
(b) each intervening Thursday from 3:45pm until 6:30pm commencing 5 November 2020; and
(c) at such further and other times as agreed between the parties in writing.
The parties were to enrol in a Children’s Contact Service.
In addition, the father was able to communicate with the children each Tuesday at 6.30 pm and each intervening Thursday at 6.30 pm.
By order made 14 December 2020, the mother and the children were permitted to reside in the Suburb C property requiring the father to vacate no later than 15 January 2021.
In mid-2022, the mother reported to the police that the father had assaulted T however, following an Intervention Order in favour of the mother against the father, he was charged with an offence against T.
In mid-2022, the mother requested that S go into the full-time care of the father consequent upon S’s counsellor making mandatory reports about sexual abuse of the child by the mother and S being interviewed by the police.
The charges against the father were dismissed together with the Intervention Order in late 2022.
S was further interviewed by the police in late 2022, and then early 2023 resulting in the mother being charged with sexual offences against S.
In early 2023, the charges against the mother were withdrawn.
The father argues that the mother has fabricated allegations that he has assaulted the children and denies that he poses any risk to them.
For his part, the father does not resile from his belief that the mother sexually assaulted S although it is conceded that there is some inconsistency in the orders sought by the father. Even if it was established that the mother had sexually assaulted S, the father concedes that other than S, the children should remain in the primary care of the mother.
DOCUMENTS RELIED UPON
The father seeks to rely upon the following documents:
(1)Amended Initiating Application filed 23 May 2023 (Parenting);
(2)Second Amended Initiating Application filed 25 July 2023 (Property);
(3)Trial affidavit of the father filed 23 May 2023;
(4)Father’s affidavit in reply filed 7 June 2023;
(5)Father’s affidavit filed 25 July 2023; and
(6)Financial Statement filed 25 July 2023.
The mother seeks to rely upon the following documents:
(1)Amended Response to Initiating Application filed 22 May 2023 (Parenting);
(2)Amended Response to Initiating Application filed 21 August 2023 (Property);
(3)Affidavit of Ms H filed 22 May 2023;
(4)Trial affidavit of mother filed 22 May 2023;
(5)Further Affidavit of mother filed 21 August 2023; and
(6)Financial Statement filed 15 September 2023.
The ICL seeks to rely upon the following documents:
(1)Affidavit of ICL annexing Child Protection Services Assessment Report filed 7 June 2023; and
(2)Family Assessment Report dated 21 September 2023.
The Court was assisted by the Case Outline documents provided by each of the parties and the ICL as well as a balance sheet.
TREATMENT OF THE EVIDENCE
At the commencement of trial, the Court highlighted the provisions of Divisions 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular, whether the Court should dispense with the provision of s 69ZT of the Act and apply excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
The father continues to assert that the mother sexually assaulted S and that she poses an unacceptable risk of harm to him.
For her part, the mother’s contention is that the father perpetrated ongoing family violence both to the mother and to the seven children who remain in her sole care.
In M v M [1988] HCA 68 (“M v M”) the Full Court gave consideration to the treatment of allegations of sexual abuse. The Court considered that treating an allegation of sexual abuse as the paramount issue was an error.
In Vasser v Taylor-Black (2007) FLC 93-329 the Full Court considered that the High Court decision in M v M (supra) had become the “touchstone” of the principles to be applied in cases of asserted unacceptable risk of any kind. Their Honour’s quoted, with approval, the following passages from M v M (supra) at pages 77,080-82:-
19.…In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to "regard the welfare of the child as the paramount consideration" (s.60D). The paramountcy of this consideration in proceedings for custody or access is preserved by s.64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
20.But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds(1973) 47 ALJR 499; 1 ALR 318; McKee v. McKee(1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 CLR 447, at 450, 458, 462, 463; 69 ALR 647.
21.Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
22.In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 CLR 336, at 362. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
Further at 77,081 the Court said:-
24.In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
The father seeks that the Court make a finding that the mother sexually abused or assaulted S.
Moreover, the orders sought by the father is that consequent upon a finding of unacceptable risk, the mother should either spend no time with S or, if S is prepared to do so, any time should be the subject of strict supervision.
The orders sought by the mother, consequent upon a finding that the father presents an unacceptable risk of harm to the children in his care, would also result in the father spending no time with them.
In those circumstances, the provisions of s 69ZT(3) of the Act have application such that the provisions of the Evidence Act apply.
EVIDENCE OF THE PARTIES
The father
The father relied upon his trial affidavits filed 23 May 2023 and 7 June 2023.
The father currently lives in rental accommodation where he has been living for about two and a half years. The home has three bedrooms. At present, the father and S each have a separate bedroom.
The father seeks that the seven children currently in the mother’s sole care, spend overnight with him and as such, he concedes that there will need to be some sharing by the children given that if successful, eight children will need to be accommodated.
S, T and U would share one room, V and W would share another room with X, Y and Z sharing the master bedroom with the father.
When the parties separated in November 2019, S, U and V lived with the father but he did not see the other children. Soon after separation, Child Protection Services (“CPS”) attended the father’s home and removed the children from his care. Thereafter, the father saw the children under supervision but ultimately the time was extended to unsupervised time including overnight periods with the five eldest children.
Between mid-2021 and late 2021, the father did not spend time with the children as a result of DCP putting in place a care plan.
T stop seeing the father in mid-2022. The father agrees that T does not currently see him.
S came into the father’s care in mid-2022. Since that date, the father has not seen the other children.
It was put to the father that at an early stage of their relationship the father was abusive towards the mother telling her to “piss off”. The father denied allegations of family violence.
The father held employment in an allied health business however, consequent upon S coming into his care, the father cut back on his hours and now works for a different allied health agency.
S is currently 13 years of age. The father works two four-hour blocks. The father acknowledged that if he wanted to, he could work more hours but he has decided not to do so in order to properly supervise S.
A focus of the father’s cross-examination was the extent of child support able to be paid by him. It appears that the current child support assessment may have increased from $117 to $324 per calendar month.
The father acknowledged that even though he hoped to improve his relationship with the mother, the reality is that the relationship between the parties is poor and unlikely to improve.
Orders were in place that provided for the children to spend limited day time with the father however, given the safety plan put in place by CPS, the mother did not facilitate the children seeing the father.
The father’s evidence is that as a result of a text message sent by the mother that she could no longer control S, S came into the father’s primary care and without spending any time with the mother.
The initial report, consequent upon S alleging that the mother had sexually abused him, resulted in S attending his first prescribed interview with police in late 2022 and a second police interview in early 2023.
The mother was subsequently charged with offences against S which then prompted involvement by DCP to put in place a care plan involving the supervision of the seven children in the mother’s care by the maternal grandmother.
In early 2023, the charges against the mother were withdrawn.
The father does not accept the mother’s denial that she sexually assaulted S. Whilst it appears that S is resistant to resuming a relationship with the mother, to a significant degree, S’s opposition is based upon the father’s contention that sexual abuse did occur and as a result, the mother presents an unacceptable risk of harm to S.
There is considerable uncertainty as to the evidence upon which the father relies upon in seeking a finding that the mother sexually assaulted S.
The father’s counsel did not particularise the nature of the evidence relied upon by the father nor was there any attempt to highlight particular aspects of the evidence or the importance and weight that should be attributed to the evidence.
The family have been the subject of intensive involvement by DCP. Exhibit “1” is a report by DCP to the Court dated 12 April 2023. It provided updated information in respect of the children relayed to the Court by the co-located Child Protection Practitioner.
It is apparent from the report that DCP supported the mother’s opposition to the father resuming any unsupervised time and that her concerns had merit.
There was significant criticism of the father arising from his attendance at the mother’s home in early 2023 even though he was aware that the safety plan did not promote or support unsupervised time.
A further aspect of the father’s conduct involved a request that the police assist him in his intention to enforce an earlier order enabling the children to spend time with him even though it had not been utilised for many months.
The father attended the mother’s home for an eight-hour period. DCP expressed a concern that by his attendance, the father ignored the safety plan and the DCP assessment that the children were unsafe in his care.
In early 2023, DCP attended at S’s school and spoke to him. There is some dispute as to whether any notice was provided to the father of the intention of DCP to speak to S. The DCP records reveal that following his allegation of sexual abuse by the mother, initially reported to the father and then to his school counsellor, the mother had been charged, arrested and granted bail but shortly thereafter the charges had been withdrawn. S’s reaction is recorded as being “a bit happy about that” but that he was “really angry” and “frustrated” that the charges had been dropped.
The concern of DCP appears to be that S has become integral to the dispute between the parties. In particular, that his allegation that he was sexually abused by the mother may be promoted by S being aligned with the father and prepared to make statements which might assist in the father obtaining the orders that he seeks namely, for the shared care of the children.
The following paragraph from the report adequately summarises S’s position:[1]
Departmental workers raised with [S] that they were concerned [the father] might be saying things that weren’t true, to which [S] became emotional and stated he was “sick of everyone saying that”. [S] stated that he missed his brothers and that he feels bad [the father] is not seeing them as “they’re his kids”. [S] went on to state “I don’t understand how all this has happened to my dad and not to my mum” further stating that [the mother] “gets all this money from NDIS, she […] babysits kids”. [S] again became emotional and stated that he wanted the care arrangements to be 50/50 and that “I don’t want mum to get most of the custody”.
[1] Exhibit “1” page 3.
The extent of the relationship between the father and T is highlighted by the father’s reliance upon a text message exchange with S in mid-2022.
The following text exchange between S and the father highlights the extent of S’s involvement in the parties’ dispute:[2]
[2] Exhibit “3”.
[S]:Hi dad quick you have to do something mum is taking [T] to a place to report the bruise and she is bribing him with everything to say you did it. Quick dad you have to message him and tell him to stop I’m scared I don’t want another investigation to start.
[Father]:Don’t worry [S] it won’t happen again. They’ve worked her out. It makes me sad when I see you upset. What did you hear and see.
[S]:Yes thanks dad but I’m scared and upset because I realised what mum is doing right as she was leaving and she tried to take my phone as well.
[Father]:Wow your phone as well.
[S]:Can I call you and talk about it.
[Father]:Don’t be scared I’m waiting.
[S]:I don’t want anything to happen ok.
[Father]:Thanks for letting me know.
[S]:Yes dad of course I just don’t want anything to happen.
The gravamen of the father’s case in support of his contention that the mother sexually assaulted S relies upon S’s allegations as reflected in the police interviews.
Paragraph 113 of the father’s trial affidavit sets out the basis upon which he asserts the children have been abused whilst in the mother’s care.
The father complains that notwithstanding his six or seven reports to police and/or DCP regarding the matters set out in paragraph 113.1 to 113.8 inclusive, there does not appear to have been any investigation and/or action taken.
The father could not link any of the purported injuries sustained to the children to overt conduct conducted by the mother. It is assumed by the father that the mother either directly caused the injuries to the children or was negligent and/or lacked diligence in properly supervising the children.
The father’s evidence was superficial at best. The fact that a child may have sustained injury is not in and of itself indicative of physical abuse by a parent.
As part of the father’s evidence, he revealed that S has seen three therapists. The father was not able to explain the therapeutic focus of the therapeutic intervention but it potentially adds to the list of people who have interviewed, assessed or spoken to S about his circumstances whilst living in the mother’s home before transferring into the father’s sole care.
The father denied that he engaged in physical discipline of the children and did not consider that he presented as a risk to their emotional or physical wellbeing.

The father did not present as an impressive witness and had a singular focus of portraying the mother as presenting a risk to the children and exhibiting poor and wholly inadequate parenting skills.
It could not be said that the father’s evidence was such that there is much hope for the parties to be able to reconcile their differences.
The propensity of the father to obfuscate a clear response to questions put to him in preference for an answer that portrayed the mother as an inadequate parent promotes a cautious approach as to the father’s reliability as a witness.
The mother
The mother relies upon her trial affidavits of 22 May 2023 and 21 August 2023.
The father’s evidence refers to an Intervention Order made in mid-2018 following an allegation by the mother that she was assaulted by the father and that he damaged her mobile phone.
The mother agreed that in 2018 she sent pictures of Y and X shortly after their birth. She admits that she made contact with the father contrary to the terms of the Intervention Order. Her explanation was that she still loved the father, had just given birth to the children and held a hope that the father may have changed and that the parties would reconcile their differences.
The parties attended at V’s childcare centre in late 2018. The childcare centre management was aware of the outstanding charges and Intervention Order against the father and contacted the police resulting in the father being charged with a breach of bail and breach of Intervention Order. The father entered a plea of guilty to a breach of an Intervention Order which resulted in no conviction recorded and a small fine. The mother was also charged with aiding and abetting the breach of bail and Intervention Order and was resolved by the mother pleading guilty.
The parenting proceedings were first heard on 4 September 2018 and whilst orders were made which provided the father with limited time with the children under the supervision of the paternal grandmother, the mother concedes that she allowed the father to return to the matrimonial home to spend time with her and the children.
The mother considers that whilst she was reluctant to do so, she still held a hope that the parties might be able to reconcile their differences.
The Intervention Order was ultimately dismissed in late 2018 with the police withdrawing the related charges.
The parties reconciled, however again separated in early 2019. The mother was asked why she had agreed to stay with the father for a period of about three months if she considered that the father’s conduct had not altered.
The mother’s response was that it was practically difficult to find appropriate accommodation for herself and the eight children.
The father’s evidence is that after the mother and the children left the home in early 2019, he attended the police asserting his concern as to the welfare and whereabouts of the children. The father alleges that he informed the police about what happened and provided some history as to the mother’s fabrication of charges and the basis for an Intervention Order. The father was then charged with offences which allegedly occurred in early 2019 and was the subject of a private Intervention Order application made by the mother.
The mother agreed that she had again sent photographs of X and Y to the father in early 2019 underpinned by desire to explore reconciliation with the father. Apparently, the father raised reconciliation with the mother in the presence of two police officers, the father’s friend and two members of the mother’s family. The mother agreed that the police did not interfere and given the mother’s observations that the father appeared to be overcome by emotion, she agreed to consider reconciliation which ultimately occurred in 2019. The mother agrees that leading up to reconciliation there was significant email and text communication between the parties acknowledging that each of the parties loved the other and that it would benefit the children if their differences could be reconciled.
The mother confirmed that the parties separated on 15 November 2019. She agreed that in discussions with DCP she was told that either she separates from the father or she was at risk of having the children removed from her care.
S, V and U remained with the father however DCP collected the children from him and put in place a five-day order preventing the father from seeing the children with the intention that the mother then needed to take out a further private Intervention Order. The mother obtained a private Intervention Order in late 2019 but it was later dismissed in mid-2021.
A fifth and final Intervention Order was made in mid-2022 but dismissed in late 2022.
The mother alleged that T sustained bruising whilst in the care of the father. It appears that the parties agreed that the children, including T, could spend time with the father in addition to the ordered time.
The father says that he observed bruising on T and then contacted the police alleging that T had been assaulted by the mother. For her part, the mother agrees that she received a report from T’s school concerning bruising. The police were notified and she reported the matter to DCP.
There is some uncertainty as to the extent to which T was prepared to speak to the police concerning the bruising. Ultimately T did not give evidence and the Intervention Order was withdrawn and charges alleging the father assaulted T in mid-2022 were dismissed.
It is difficult to assess whether the mother may have held an ulterior motive in promoting that the father had assaulted T in circumstances where she consented to orders for the children to see the father.
The mother was challenged as to the father’s allegations that in late 2022 and early 2023, in breach of the DCP Safety Plan, the mother attended the father’s home with all or some of the children.
The mother’s evidence was not convincing in terms of a reasonable explanation as to why she would be at the father’s home at all. On one occasion the mother says that she was delivering junk mail and the children saw the father and approached him. On another occasion the mother left some items on top of the letter box and on the third occasion she attended with Z and V at the father’s home but did not enter the premises or the grounds.
It could not be said that the father was complicit, nor do I consider that the mother’s explanation of having a junk mail delivery run is sufficient to justify her attendance given the long history of discharged Intervention Orders and dismissed criminal charges.
The mother conceded that S’s behaviour was such that she feared he would assault her or hurt the other children.
I accept the mother’s evidence as to her observations of S’s oppositional behaviour.
The issue is whether S could reasonably return to the mother’s care as she seeks.
There is little evidence that S could or would behave and it is likely that despite his age, S exhibits a level of immaturity and lack of insight as to his involvement in the parties conflicted relationship.
Whilst the mother was genuine in her desire to resume care of S, I am not satisfied that transition from the father to the mother will either be tolerated by S or managed by the mother.
The mother underplays the significance of S’s allegation that the mother sexually assaulted him.
The parties are unable to agree the extent and manner in which they discipline the children.
The mother’s evidence is that she acknowledged smacking V and W with a wooden spoon on their hand and had previously used this method of discipline frequently but that it ceased in 2021.
There was an element of openness by the mother as to areas that might be categorized as poor or ill-conceived parenting. I accept the mother’s evidence that she was in frequent and open communication with DCP and other support workers and it is apparent that the mother recognises that at times she may have acted impulsively. An example of the mother’s acknowledgement that a better method or manner of dealing with the children could have been utilised arises in respect of a DCP report dated 12 April 2023 (exhibit “1”) where the mother was observed to throw a school bag at V in early 2023. The mother agrees that she threw the bag and that it hit V on the shoulder. Her explanation is that V was having a melt down and started to run across the road and in order to stop him, she threw the school bag.
It is likely that at times the mother struggled to cope with the difficult presentation of the children particularly at times of dysregulation.
The mother agrees that physical discipline was a regular feature in respect of the children whereas no such concession was made by the father.
I find that the mother’s evidence is reliable as to the arrangements within the household that involved the physical discipline of the children and at times more forcefully administered by the father.
During the course of the mother’s evidence, the Court was shown the video record of interview conducted by Mr J, police officer, in early 2023 (exhibit “4”).
It was agreed that the transcript comprising exhibit “5” was accurate.
The mother agreed that it was common for the children to come into her bedroom and in particular, the mother remembers an occasion when S sat on the bed with her but with Z in the middle between them. The mother and the children were working on a rewards chart. The mother denied that anything untoward had happened on that occasion and was categorical in her denial of any allegation that she sexually assaulted S.
The mother’s evidence was that the only time her bedroom door was locked was if S was having a meltdown or was exhibiting signs of dysregulation.
The mother specifically denied that she had engaged in masturbation in front of S.
Whilst the mother agreed that she had a doona cover on her bed as described by S, it was not unique but rather was frequently used.
The cross-examination of the mother on the topic of S being the subject of sexual assault did not reveal any admission or uncertainty on her part. The mother’s denial of any sexual impropriety with S was not challenged under cross-examination.
The mother was interviewed by police and denied any allegation that she had sexually assaulted S. The police ceased the mother’s laptop, computer and mobile phone.
The mother denied S’s allegation that she drinks alcohol to excess. She concedes that on occasion she would consume a glass of wine whilst cooking dinner. She understood that S considers that she consumes alcohol to excess but does not agree that there was any conduct on her part which would feed S’s narrative.
The mother considered that the father was promoting S to make false allegations with the promise that if the mother was convicted then the children would come into his care and S would be able to resume a sibling relationship with them.
The mother’s attention was drawn to a CPS report dated 30 August 2021 annexed to the affidavit of the ICL. In particular, the mother was directed to a number of allegations relating to S reporting physical abuse and assault by the mother. The mother denied that she had ever physically assaulted S by kicking him in the chest or that her conduct warranted S seeking the protection of a metal bar.
The mother considered that some of S’s more overt behaviour such as threatening her with a knife is conduct promoted by the father as acceptable and appropriate.
It is an unfortunate feature of the dynamics of the family that resulted in frequent notifications and a subsequent child protection investigations on multiple occasions.
Exhibits “6” and “7” comprise a text exchange between T and S in mid-2023 and an exchange between the parties in mid-2022.
I am uncertain as to the utility of the mother’s remarks concerning the text message exchange between the children particularly given that it is T challenging S as to why he made false allegations against the mother.
The text exchange between the parties is a little more informative in that it corresponds to the mother requesting that S return to her care and in particular, the mother’s response to the father provides a good understanding of the mother’s decision that S should remain with the father:[3]
I have also let my lawyer know that I think [S] should stay with you. The other children are more settled and as [S] rarely cooperates for me and refuses school and wont shower or do anything etc as well as being physically violent towards his brothers and myself and verbally nasty, I have told my lawyer I will not attempt to get [S] back to this home. He doesn’t want to come as he needs one on one attention which I cannot provide as I have seven other precious boys to also care and love for. I do not like the situation however I am now protection (sic) our other sons. I know you do not understand or believe what is said about [S] behaviours however it has been witnessed by many and is not fair for his poor brothers. I will notify the school tomorrow if their phone is working and let them know I will not be tending to [S] at this time. He has made his choice.
(As per original)
[3] Exhibit “7”.
The mother appeared to give her evidence in a forthright manner.
There was consistency in her denial of any inappropriate conduct with S. She made reasonable concessions in terms of her inability to manage S’s behaviour and at times her frustration was such that she resorted to limited physical discipline.
The mother’s evidence was not convincing as to the basis upon which various allegations were made resulting in the father being the subject of Intervention Orders and criminal charges. It is likely that the mother was seeking to explore a reconciliation with the father recognising that if the parties could resolve their differences, it would likely serve the interests of the children.
Officer K
Officer K is in a senior position of the Criminal Investigation Branch (“CIB”). He has a review capacity as part of an adjudication panel as to whether a prosecution should go forward in respect of sexual abuse allegations.
As part of the management of allegations made, it is not uncommon for there to be interaction, engagement and communication between police, CPS and DCP.
The police officer acknowledged his detailed consideration and that of the adjudication panel consequent upon S’s interview conducted by Mr J.
Officer K formed a view that there was reasonable cause to suspect that the mother may have sexually assaulted the child however, a decision was made that the matter would not continue, and a charge discontinuance notice was issued (exhibit “8”).
The file narrative in the charge discontinuance notice contains the following brief overview of the case which was under consideration:[4]
(Victim 13 years – male) was in the bedroom with his mother (accused) and some of his seven siblings. His mother was drinking wine and using her computer. Victim was asked to remove his siblings from the bedroom and lock the door. Victim has done so before returning to the bed. Victim reports feeling his mother touching him on the private parts (later confirmed as penis) over the top of his tracksuit pants. Victim then recounts his mother rubbing her own private parts with the tip of her fingers whilst making weird noises. Mother tried to place victim’s hand on her before trying to pull her leggings down. The victim became scared and left the room crying, incident lasted two minutes.
[4] Exhibit “8”.
The extent of engagement with DCP and CPS is recorded as follows:[5]
During a strategy discussion between SAPOL, CPS and DCP [in early 2023], Clinical Services Manager of CPS issued strong caution towards the way in which SAPOL interpret and analyse the veracity of the 13 year old victim’s statement, and the need to take into account the important contextual information gathered by DCP over several investigations, by CPS over two assessments (involving six of the children) and in two independent Family Court assessments.
It is the opinion of Clinical Services Manager, Clinical Psychologist from CPS [redacted] that the victim has been ‘coached’ and due to this coaching the child victim is displaying possible ‘false memory syndrome’ whereby in this circumstance the child is recounting a memory of an incident that never actually occurred. It is well documented throughout all assessments that the child wants to reside with his father. In the Family Court assessment the child has presented as heavily ‘parentified’ and has a level of knowledge and awareness about custody hearings, custody orders and access visits well above age appropriate. This raised concern to the Court Child Expert/Family Consultant – Family Court of Australia.
The child’s version is not corroborated by supporting evidence. At this early stage of the investigation the child’s version is not supported by forensic evidence, digital evidence or independent witnesses to the alleged offense.
[5] Exhibit “8”.
As a result of the assessment that the professional and expert evidence of DCP and CPS was likely to support the defence, the summary was that there was no reasonable prospect of a conviction at this time.
Dr M
Dr M is a psychologist who has expertise in child therapy and forensic assessment. His employment history includes the provision of therapy for children and families after separation, as a psychologist providing forensic assessment for SAPOL and DCP together with forensic interviews of children, as a Court Child Expert and in his present capacity as a practice manager for a large counselling organisation providing training and supervision risk screening and assessment.
T, U and W were referred to CPS by DCP in relation to allegations of sexual, physical and emotional abuse by the father.
Following a comprehensive assessment process in June and July 2021, comprising preliminary sessions forensic interviews with the children and interviews with the parties, a detailed CPS report dated 30 August 2021 was provided (exhibit “10”).
The significance of the report arises from the following summary and opinion:[6]
In conclusion, there remain serious doubts about the safety and appropriateness of the care provided to the [Alderisi] children and the effects on their mental health. Concerns have been raised regarding these children for many years by several notifiers in many areas. Many of the notifications relate to statements the children have themselves made. Several allegations were investigated in this forensic psychosocial assessment even though its scope only covered three of the eight [Alderisi] children. Many of the allegations – though not all – have been corroborated. Most of the allegations – though again not all – present [Mr Alderisi] as the primary perpetrator across the areas of abuse. Even though no incident has reached SAPOL threshold for further investigation, a child development perspective shows serious risks of ongoing cumulative harm to all of the children. Furthermore, it is highly likely both the parents and their extended families are also significantly impacted by this ongoing conflict.
[6] Exhibit “10”, page 43.
The risk, as identified by the report, arises from the father’s behaviour which has resulted in psychological maltreatment and physical abuse that has manifested itself in “clear signs of post-traumatic stress for [T], [U] and [W] based on their psychometric results, and based on [T] and [U’s] self-concepts as described by themselves and from others providing professional support to them”.[7]
[7] Exhibit “10”, page 45.
The recommendation, based upon the findings of the clinician, was that there should not be unsupervised time between the father and the children until the views and wishes of the children could be determined.
Dr M confirmed that he had reviewed the notes of Mr N (co-author to the CPS report dated 30 August 2021) who had conducted the interview with W.
CPS did not initiate the assessments but rather they were undertaken at the request of either DCP or the Police.

If the assessment revealed that the children presented with special needs, then a psychologist with an appropriate skill base might be involved.
The CPS assessment in the present case was undertaken through a DCP referral consequent upon an interagency strategy discussion.
Dr M was aware from the DCP intake that there were concerns regarding the mother’s aggression towards S.
For the purposes of the CPS assessment and subsequent report, Dr M was not asked to assess risk to S.
The report did not assess any risk to T, U or W in respect of sexual abuse but primarily focused on the potential for the children to sustain an adverse outcome arising out of the father’s conduct towards them.
The CPS report is not a parenting assessment but rather is intended to be a consideration of potential risk.
The summary is that Dr M formed the considered opinion that the father presented as a risk to the children by reason of physical and psychological/emotional harm.
Dr M presented as an expert and reliable witness.
Mr N
Mr N holds relevant tertiary qualifications and from 2014 to present, he has worked with CPS conducting psychosocial forensic assessments of children for SAPOL and DCP.
In late 2022, X and Y were referred to CPS by DCP and Officer L (state police) for a forensic assessment following concerns that they may have been physically hurt by the father. In addition, in late 2022 V was also referred for assessment following a report that V had complained of his father being “mean” and hurting him.
Consequent upon the referrals, the parties, S, T, U, V, W and Z were involved in the assessment which was undertaken between November 2022 and March 2023. The CPS report dated 7 June 2023 is exhibit “12” of the proceedings.
The father’s concern and challenge to the conclusion and recommendations of the report arises from the following extract:[8]
The CPS assessment has included interviews with [Y], [X] and [V] who each provided accounts of being hurt by their father; they described a range of physical punishments that they and/or their siblings had received which are considered to be excessive, inappropriate and harmful (e.g. hitting, hair and ear pulling, being thrown, shut in rooms). Consistencies between the children’s statements and with information contained in notifications to DCP, supported the veracity of the children’s accounts, in addition to their provision of specific contextual information, developmentally appropriate language and information about their own and other’s mental state. The children’s statements were highly concerning and upon analysis, their accounts were not considered to be consistent with ‘coaching’ by [the mother].
[8] Exhibit 12, page 31.
The assessment considered that the father did not demonstrate an ability to understand the children’s needs for physical and emotional safety when in his care.
The recommendations considered that the father would require “intensive individual counselling” to be able to reflect on how best to support the children’s emotional needs and to respond to their behaviour without physical or verbal aggression.
Mr N conceded that there were some aspects of the children’s complaints which could not be considered determinative of the issue and would warrant further investigation. In the interview with W, his complaint was that the father did not feed him. The report lacked context in respect of the child raising the issue of food, that it was raised spontaneously and out of context.
Mr N conceded that it may have been an issue of concern as to why the child would raise a concern as to not being fed by the father but it was not reasonable to conclude that the mother had promoted an environment for the children to say negative things about the father.
Similar issues were raised in respect of reports made by X and V of having been hurt by the father.
Mr N considered that in respect of the allegations of the father hurting the children there was sufficient context to dispel a concern that the children had been coached by the mother. The allegations made by the children of having been hurt by the father was also the foundation for the children expressing a dislike for him.
The age of the children was a relevant consideration. V was eight years of age at the time of interview and assessment and when that was considered against his developmental issues some caution in terms of the weight given to the evidence must be exercised.
Mr N gave his evidence in a frank and forthright manner and can be considered as a reliable witness.
Ms H
Ms H is currently employed by DCP as a Senior Social Worker.
She holds relevant tertiary qualifications. She has worked in the area of child protection since 2016.
Ms H was assigned as the case worker in respect of the children and in conjunction with Ms P, in her capacity as co-located practitioner, prepared reports for the Court dated 24 January 2023, 16 March 2023 and 12 April 2023 which were annexed to her affidavit filed 22 May 2023.
In addition, exhibit “14” is a report dated 15 June 2023 sent to the father advising that DCP has assessed there were no safety concerns for the children in the mother’s care and given the current arrangements, there was no need for DCP to be further involved in the family.
By way of summary, Ms H advised the father that DCP considered that the father was responsible for causing substantiated significant symptoms of emotional distress summarised as follows:
·The children have displayed persistent sadness, fear and worry in relation to the father; and
·The father engaged in a pattern of behaviour including ignoring, physically harming, blaming, manipulating and criticising the children.
Further, DCP substantiated violent behaviour by the father directed towards Y, X and V involving a range of physical punishments considered to be excessive, inappropriate and harmful.
In addition, DCP considered that the mother had been the subject of family violence perpetrated by the father although now of less consequence given that the relationship between the parties is at an end.
The Department also opined that S may have been influenced by the father to fabricate allegations that the mother engaged in inappropriate conduct and sexual assault of S.
Of importance, is that whilst the Department held a concern as to the manipulation of S whilst in the father’s care, they considered that a return to the mother was not a viable option.
Ms H confirmed that when S was interviewed at school in early 2023, he spoke in some detail of his alleged sexual abuse by the mother.
There was no significant challenge to the evidence of Ms H and I accept her as a reliable witness.
Court Child Expert
In her capacity as a Court Child Expert, Ms Q produced a Family Assessment Report dated 21 September 2022 following interviews with the parties, S, T, U, V and W and an opportunity to peruse documents comprising the Court file.
The Court Child Expert was aware of the extensive involvement by DCP. It was noted that in late 2021 DCP considered that the father was the perpetrator of violent behaviour directed towards the children resulting in a recommendation that time spending between the father and the children should be supervised.
At the time of interview, the father had spent time with the children on Monday and Friday after school and he considered that the relationship between the parties was civil such that some flexibility about time spending was taking place.
The father’s proposal, as discussed with the Court Child Expert, was that a week about care arrangement would be the most appropriate outcome for the children.
Even though the father considered that the parties were able to communicate appropriately, whilst denying that he had either physically assaulted the children or the mother, his view of her was that she had been deceptive and that the various allegations of family violence and physical assault were without substance.
The father reinforced his position that each of the parties had much to offer the children in terms of support, structure, boundaries and routine. He accepted that there were times that he was not able to restrain himself emotionally but that he had undertaken a number of parenting courses including a course dealing with family violence.
The father acknowledged his continued adherence to his religious faith and considered it important that the children be in an environment where there are high moral standards and honesty.
The mother presented in interview as cooperative and forthright. It is likely that she would facilitate the children spending time with the father but that at the time of interview, the children were highly resistant and they would exhibit extreme oppositional behaviour to avoid seeing the father.
The mother did not consider that the father was overtly physical with her but rather that he engaged in verbal abuse, denigration and was controlling over her access to money and her ability to have free and open contact with her friends and family.
The mother highlighted that the parties each had a different parenting routine with the father being more regimented in his arrangements and his tendency to engage in unnecessarily harsh discipline.
The mother acknowledged that she had used physical discipline by smacking the children on the hand with a wooden spoon. Following DCP involvement, the mother does not now use any form of physical punishment in respect of the children although, she had grabbed V with some force during a “meltdown” in order to remove him from the other children.
The mother reported that during the relationship, the father was overtly physical with the children and at times had smacked them, pulled them by the hair, kicked them, threw them and force fed them.
Each of the parties considered that the other had consumed alcohol to excess. The mother alleged that during the relationship the father would consume about four or five litres of wine per week. Whilst S considered that the mother’s consumption of alcohol was to excess, the mother denied that there was any reason for concern.
Similar to the father, the mother acknowledged her same religious faith and considered that adherence to her faith underpinned her decision to seek to reconcile with the father even though she alleged that he had been unnecessarily physical with her and caused her fear.
The Court Child Expert interviewed the children. The presentation of S is relevant to the weight that should be given to his evidence concerning the allegation that the mother sexually abused him:[9]
[S] presented as a chatty young person of stated age. He also presented as though pressured that he may not relay all of his concerns, almost rushing to ensure he covered everything. A theme throughout was his concern about the time he spent living with his mother and seeking to portray how much his situation had recently improved since he has been living with his father. Some of the content of [S’s] discussion was similar to that provided by [the father] and he lacked detail and presented as uncertain at times when asked to clarify responses. [S’s] affect often did not match his reported concerns, which was spoken about in a “manner of fact” manner. He commented towards the end of the interview that he felt he had more to say, and it was agreed the report writer would check in with him on the second day of the assessment in case he wanted to say more.
[9] Family Assessment Report dated 21 September 2022, at [76]
It became apparent to the Court Child Expert that S had a high level of understanding as to the Court process and that the issue under consideration concerned the parenting of the children.
As at the date of interview, S expressed his view that he was happy remaining in his father’s care and whilst he felt that he might want to spend more time with his mother, he was not prepared to do so until the proceedings had resolved.
S did not agree with the assessment that each of the parties were heavy handed in their discipline but that the prime focus was the excessive physical discipline allegedly exercised by the mother.
T acknowledged his concerns in spending time with the father and appeared to present as genuine and not as having been coached or prepared by the mother.
The tragedy of the circumstances in which the children found themselves was the inability of the siblings (at that time) to have a relationship. T considered that S was unfair and used threats to report conduct of the mother if he did not get his own way. Showing some insight, T indicated that whilst he was at times upset with S, he was still his brother and he missed him.
T was asked to relay the circumstances of the incident that led to T being reluctant to spend time with his father. The following appears in the Family Assessment Report:-
97.[T] acknowledged the incident leading to his reluctance to spend time with his father. At this time, he said he was teasing his little brothers, causing his father to become angry, and (he i.e. the father) “pushed [his] arm” resulting in it hitting a wall, causing a big bruise. [T] was quick to add that his father did “not punch” him but “pushed” him. At other times, [T] said his father has “only pushed” him away, such as from the twins, but does “not hurt” him. [T] maintained he does not want to spend time with his father as it is “extremely boring” and his father “yells and stresses me out”. [T] also worries [the father] “might hurt us” whilst adding that he has not done so. Upon further enquiry, he acknowledged his father has pushed him before, but “not with full force” and his father “didn’t care”.
(As per original)
T’s assessment of the father’s use of discipline is that when he has the care of all of the children, he is easily stressed and quick to temper.
U presented as cooperative but gave his answers to questions put by the Court Child Expert in a truncated fashion.
U’s primary focus was the ever-present conflict that arises from interaction with his brothers. According to U, both parties would smack the children with the father resorting to yelling. An important consideration for U was that the father does not touch the children but resorts to a loud voice by way of discipline.
In interview, V spoke positively of his relationship with the mother but held a view that he did not want to see his father because he considered that he was mean, and his recollection is that the father would smack and shout at the children.
Continuing a consistent theme, V struggled with the breakdown in the sibling relationship with S.
V understood that the parties did not have a good relationship and commented that he had overheard his father accuse the mother of stealing money, the father’s belongings and that she brainwashes the children.
At the time of interview, W was spending time with the father on weekends. His report was that his father was appropriate and W enjoyed being in the father’s care and company.
The Court Child Expert observed interaction between the children and each of the parties. In respect of the father, the following provides an appropriate summary of the father’s observed interaction with the children:-
134.Overall, there was a sense of busyness and chaos with so many children present. [The father] walked around engaging with the children separately with their activities, but did not engage them all together, or in a couple of groups, in activities. [T] in particular was observed to experience difficulty engaging with his father, whom at times presented as somewhat intrusive towards [T] when seeking to engage with him.
The mother was observed to engage well with the children, consistent with seven of the children being in her primary care. A somewhat surprising observation was that despite S’s reported concerns, he was observed to engage well with the mother and sought her out. The Court Child Expert considered that S was missing his siblings and in particular, T.
The Court Child Expert considered that the children, in the then current care of the mother, should remain in her primary care but that they should spend supervised time with the father on weekends and for up to a period of four hours. The wishes of the children should be brought to account and respected given the age of S and T.
The Court Child Expert did not necessarily accept that S was totally opposed to spending time with the mother but given the child’s apparent alignment with the father, forcing S to see her was not a viable option at this time. T remained opposed to seeing the father.
The Court Child Expert agreed with the proposition put by the father’s counsel that S was an incredibly destabilising factor in the mother’s home.
The CPS information was considered to be an important factor but not such that it would overwhelm the opinion of the Court Child Expert consequent upon the assessment.
The father’s concerns that the mother may have sexually abused S, that S reported the mother may have consumed alcohol to excess and at times had acted aggressively towards the children but in particular S, did not affect the Court Child Expert’s overall assessment that other than S, the children should remain in the mother’s primary care but resume spending supervised time with the father.
STATUTORY FRAMEWORK
I consider it necessary that I adopt the approach that considers the practical reality of the separate parenting proposals of the parties.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest test is to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I propose to adopt the following approach:-
(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
(5)Have regard to additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced by each of the parties, in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act, are to be considered and if more weight is to be given to one or more of the matters raised, then it must be the subject of delineation and comment;
(7)Section 61DA of the Act requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having appropriate regard to the matters as set out in s 61DA(2) which would rebut the presumption if a person or persons living with the child has engaged in:-
(a)abuse of the child or another child who, at the time, was a member of the parents’ family, (or the other persons family); or
(b)family violence.
(8)Section 61DA(4) of the Act provides that the presumption may be rebutted by evidence that satisfies the Court it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The father seeks an order for sole parental responsibility for the long-term care, welfare and development of S but equal shared parental responsibility for the remaining seven children.
The mother seeks orders for sole parental responsibility for all of the eight children.
I note the directions contained in s 60CC(2A) of the Act. I have regards to the allegations of the mother that the father has engaged in family violence that comprised of physical violence and coercive and controlling conduct. I note that the father considers that the mother presents as an unacceptable risk of physical harm to S arising out of an allegation that the mother was the perpetrator of sexual abuse and sexual assault to S.

In VJ v CJ (1997) FLC 92-772 the Court referred to s 100A and said at page 84,524:-
S[ection] 100A is an enabling section. It enables evidence of representations made by children to be given notwithstanding the rule against hearsay. It was enacted to clarify any doubts that may have existed about the common law admissibility of children’s statements. A significant line of authority existed indicating that as a general rule hearsay statements by children were admissible for limited purposes in cases relating to the welfare of children.
The Court then said:-
The rule has not been applied in such a manner as to enable lengthy and detailed statements of children to be introduced into evidence in lieu of the filing of an affidavit on behalf of the child.
The difficulty with this appellate court excluding the evidence at this stage, is that the trial Judge’s attention was never drawn to the provisions of s 135 [of the Evidence Act]. His Honour did not turn his mind to the issue of prejudice but simply ruled on the admissibility of the statement on the basis that it might be relevant to the inquiry that he had to make. It cannot thus be said that his Honour improperly exercised his discretion when he was never asked to do so.
In S v R (1999) FLC 92-834 the Full Court referred to a New Zealand decision of S v S [1993] NZFLR 657 and said:-
This very caution is totally applicable to proceedings under the Family Law Act and evidence received by the provisions of s 100A. Where the witness whose evidence is to be relied on has not been seen nor heard by the trial Judge, and his evidence has not been tested by the person against whom any adverse finding is sought to be made, then utmost caution needs to be taken before such evidence can be relied upon to establish such a serious allegation as sexual abuse.
In the present case, the mother did not make an application to strike out the child's record of interview.
Accordingly, whatever misgivings may appropriately arise in respect of the use to which a record of interview involving a subject child can be put, ultimately it is not now a matter of admissibility but rather weight.
The balance of probabilities is the correct standard of proof of the allegations of sexual abuse but as discussed in M v M (supra), where it was said that in relation to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336:-
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal….
Caution is required where a child is the maker of the statement and is not subjected to cross‑examination and therefore, is not capable of being properly tested.
In the current circumstances, and after careful consideration of the record of interview, there is sufficient doubt both as to the date, particularity and the details of the alleged abuse and assault by the mother and as such, the requisite standard of proof has not been satisfied.
There is other evidence which raises the distinct possibility that the child may have either been coached by the father to make a false allegation or that the child has become so aligned with the father and has thereby developed an inappropriate level of understanding in respect of the current proceedings that would render the child’s allegations, as contained in the record of interview, as inherently unreliable.
Abuse of the children by the father
Careful consideration has been given to the evidence that arises from the assessment undertaken by DCP and then CPS. I bring to account the matters raised in the reports to the Court prepared by the embedded officer, in particular, that CPS considers the allegations of unnecessary physical discipline, emotional and psychological abuse perpetrated by the father towards the children have been substantiated.
A particular concern is the extent to which S may have been coached by the father to wrongly allege that the mother subjected him to sexual abuse and assault.
Whilst the father was an unimpressive witness and wanted to tell his own narrative rather than answer direct questions put to him, it is a significant outcome that a child, or in this case seven children, should not have a relationship with their father.
The age difference between the children is such that the older children may well have a more entrenched view as to the extent of the relationship they would wish to either maintain or renew with the father whereas the younger children would not be able to self-protect but even so have fond memories of an intact family.
Whilst I consider that there is a risk that the father will undermine the mother’s parenting and relationship with the children it is not at a level that should be classified as unacceptable such that it outweighs the benefit to the children of having a meaningful relationship with the father.
In summary, the evidence does not support a finding that the children are at an unacceptable risk in the father’s care but is suggestive of a cautious approach in respect of the time that the children spend with him.
Despite the evident misgivings of the father, there is strong evidence from the Court Child Expert and the intensive intervention by DCP and CPS that the mother does not present a risk to the children and that she is uniquely equipped to look after seven children.
Wishes of the child
S has expressed a strong view that he does not wish to see the mother at this time but may well be prepared to do so once the litigation is over and the circumstances of the children is better known.
I do not consider that the allegations made by S in respect of the mother’s conduct were supported by the evidence, but I accept that he has become allied with his father and but for an understandable desire to reunite with his siblings, any attempt to require S to live with the mother is forlorn of hope.
It is however a reasonable observation of the Court Child Expert, albeit in 2022, that S’s apparent opposition to the mother was not evident when there was observed interaction.
To the extent that there is evidence in support of the weight that should be given to the wishes of the children, it is likely that T would not easily spend time with the father unless he was prepared to do so.
The views alone of the children, save for S and T, whilst to be considered are not to be determinative of their future parenting arrangements.
The nature of the relationship with the parties
S’s primary attachment is with the father whereas the remaining seven children’s primary attachment is with the mother.
Of relatively recent date, orders have been made that enable the children to resume a relationship with each other. It has been without complaint and the evidence of the Court Child Expert is that it is in the interests of the children that they be reunited.
The likely effect of any change in the children’s circumstances
The mother seeks that S transition to her primary care and that she retain sole parental responsibility for all of the children.
There is little evidence to support the possibility or potential for S to live with the mother. As has been discussed, it is not a viable option.
S will remain in the father’s primary care and subject to his wishes spend time with the mother.
The more vexed issue is the extent to which the remaining seven children, currently in the mother’s primary care, would cope with the father’s proposal namely, that there be a shared care arrangement.
It is self-evident that the relationship between the parties is sufficiently vexed and that shared care is not an option. The father continues to believe that the mother sexually abused and assaulted S. He has promoted that view and is unlikely to reconcile his differences with the mother.
For her part, the mother considers that she has been the subject of family violence and that the father has assaulted the children and they are at risk in his care.
The evidence would not support a finding that the father should, or could, resume either primary or substantive care for the children.
Moreover, S is not reconciled with the mother and the children may well be at risk of S’s inability to support the children in the mother’s care.
It is likely that the current care arrangements would best serve the interests of the children with the focus being on the extent of time that the children in the mother’s care should spend with the father and if so, under what terms, conditions and circumstances.
Family violence
I have not found that the mother perpetrated family violence nor that she presents as an unacceptable risk to the children generally, S in particular.
The same cannot be said for the father. Whilst I do not consider that he constitutes an unacceptable risk to the children, I am not able to ignore that following detailed and intensive investigations by DCP and CPS together with complaints made by the elder children, the father was overtly physical with the children and his inability to support their relationship with the mother is a real and present emotional and psychological risk to them.
The advantages and disadvantages of the separate proposals of the parties
Given my finding that it would not be in S’s best interests to resume living with the mother nor do I consider that it could be physically achieved, the advantage of the mother’s proposal is that the remaining children remain in her primary care in circumstances where there has been an assessment by CPS and the Court Child Expert that she does not present a risk to them.
Given the observations of the father by the Court Child Expert that he may have difficulties in looking after all eight children, there should be only limited change to the current arrangements as apply in each of the parties’ separate homes.
The mother’s proposal is that the children, other than S, have no relationship with the father. The consequence of that is that the children’s relationship with S would also be fractured. I consider that to be a disadvantage to these children and whilst there must be a cautious approach adopted, providing it is safe to do so, the children should have a relationship with both of the parties.
The father’s proposal is that other than S, the children’s care should be shared between the parties. The advantage is that the children would have an ongoing relationship with each of the parties however the significant disadvantage is that the proposal of the father could only be given effect if the interparental conflict was reduced.
The evidence, and in particular the father’s presentation, does not support a finding that the mother’s role as a viable parent to the children would be accepted by the father. Shared care would depend upon the ability of the parties to work collectively to promote the interest of the children. The evidence does not support such a finding.
Are the orders sought by each of the parties practical
I consider that possible involvement of the paternal grandmother as a supervisor might well ameliorate the risk of the father’s potential for his tangent criticism of the mother.
I propose to allow S and T to spend time with each of the parties subject to their wishes but that the father will spend time with the remaining children on a graduated basis such that after a period of 12 months, the children will spend each alternate weekend and half school holidays with the father.
PARENTAL RESPONSIBILITY
Parental responsibility is to be informed of what is in the best interests of the children. I have given careful consideration to the orders sought by the parties. The evidence supports a finding that the father should have sole parental responsibility for S whereas the mother should have sole parental responsibility for the remaining children.
CONCLUSION
The evidence readily supports a finding that the best interests of the children is supported by S remaining in the primary care of the father whereas the remaining seven children should remain in the primary care of the mother.
As considered, it is not practically possible to put in place orders that would result in S spending time with the mother unless he wished to do so. At present, S is opposed to coming into contact with the mother for reasons that are not well established.
The evidence supports a finding that S’s opposition to spending time with the mother is likely motivated by his alignment with the father and his seeking to support the father’s proposal for shared care.
The difficulty for S is the finding that it is likely that S has either been directly coached by the father to allege that the mother sexually assaulted him or that the environment in the father’s home was conducive to S promoting a false narrative.
As considered, the Court Child Expert did observe an emotional attachment between S and the mother contrary to any assertion that S is fearful of the mother or that she poses a risk to him.
It may well be that once arrangements between the parties and the children are normalised and the litigation is behind them, S may resume a relationship with the mother on the basis that in doing so, his ability to engage with his siblings is enhanced.
Careful consideration of the observations of the Court Child Expert and the significant and detailed engagement of CPS does not support a finding that the father poses an unacceptable risk of physical, psychological or emotional harm.
I draw a distinction between the conduct of the father during the course of the parties’ relationship and the period thereafter.
The father has undertaken a number of courses that were targeted and relevant to the more egregious aspects of his conduct and in particular, his temper and aggressive demeanour.
A residual concern exists that arises out of the evidence given by the father and the inconsistent juxtaposition of orders sought by him for shared care with his case that seeks a finding that the mother sexually assaulted S.
There is some reasonable basis for concern that the father is not supportive of the mother’s relationship with the children and he may seek to undermine her primary care if given an opportunity to do so.
That consideration must be balanced by a finding that a meaningful relationship with the father, providing it is safe to do so, would likely assist the children in their future development.
The complexities of the family are manifest and the dynamics are difficult to manage however, the paramount consideration is the children’s best interests and I consider that the father’s time with the children should resume initially on a supervised basis by either the paternal grandmother or another member of the father’s family. Supervision should continue for a period of nine months and thereafter there should be a graduated increase such that after a period of twelve months, the children will spend time with the father each alternate weekend from Friday through to Monday and half of school holidays.
Similar to the considerations that apply to S, the evidence of T is such that his time with the father should be subject to his wishes. T has made direct, credible allegations of the father’s conduct towards him and whilst the circumstances may now be very different consequent upon the period of time that has now elapsed since the parties’ separation, an order requiring T to spend time with the father is likely to be resisted by him thereby leading to further damaging litigation.
Given the volatile nature of the parties’ relationship, and the involvement of various agencies including the police, DCP and CPS, I am not confident, but remain hopeful, that the parties may consider putting aside the more catastrophic aspects of their relationship and focus on the needs of the children.
PROPERTY
The proceedings relate to settlement of property arising from a relationship commencing 2004 with the parties separating in November 2019 being a period of 15 years.
Relevant to the proceedings are the parenting orders which are to be made that provide for S to remain in the primary care of the father and the remaining seven children to remain in the primary care of the mother. The time that S will spend with the mother will be subject to his wishes. Similarly, the time that T spends with the father will also be subject to his wishes.
The arrangements for the six younger children to spend time with the father will gradually increase over a period of 12 months but the primary obligation in respect of their care, welfare and development encompassing significant financial provision, will remain with the mother.
The property of the parties is limited and principally comprised of the freehold property at B Street Suburb C (“the Suburb C property”) with a value of $950,000.
I propose to ignore the bank accounts of the parties given that they fluctuate from time to time and it is noted that each of the parties have significant outstanding legal fees although more so the father. By reference to the father’s Costs Notice dated 13 June 2023, his outstanding fees are likely in the sum of about $150,000 with $20,190.50 remaining in his solicitors’ trust account. The mother is in receipt of a grant of Legal Aid. It is not known if she will be required to repay any portion of her fees.
I note that the mother does not hold a superannuation interest but that the father has a modest interest of $6,893 with Superannuation Fund 1.
Almost no evidence was presented pertaining to the father’s superannuation interest however, I assume that it is an accumulation interest. Noting that the father is 53 years of age, and subject to any other relevant consideration, he will not satisfy a condition of release until at least 60 years of age.
I propose to bring the father’s superannuation interest into account as a relevant s 75(2) consideration but not to include it as an asset in terms of determining the balance sheet. Neither party seeks a splitting order in respect of the father’s superannuation entitlement.
Accordingly, the schedule of assets and liabilities are as follows:-

Asset Owner Amount

B Street Suburb C Joint $950,000

Motor Vehicle 1 Mother E $10,000

Motor Vehicle 2 Father E $9,000

Household contents, furniture, good and effects Mother E $10,000

Household contents, furniture, good and effects Father E $5,000

TOTAL ASSETS E $984,000
ORDERS SOUGHT

The mother seeks that there be a division of the property of the parties as to 75/25 in her favour. The father seeks that there be a division of property equally between the parties which would likely necessitate the Suburb C property to be sold.
For reasons that are immediately apparent, the mother seeks to retain the Suburb C property in circumstances where she properly apprehends there will be paramount difficulty in obtaining appropriate accommodation for her and the seven children that will remain in her primary care. She emphasised the importance of the children remaining close to their current school and NDIS therapy providers.
The financial circumstances of the mother are limited. Her ability to secure employment is overwhelmed by the needs and requirements of caring for seven children. It is likely that her ability to care for the children will be dependent upon continued receipt of government benefits comprising a Centrelink Family Tax Benefit and Carers Payment.
The mother acknowledges that the father has been assessed to pay Child Support for the seven children at the rate of $72.04 per week although there is some contention between the parties as to whether the father is or is not up to date with arrears and is regular with his payments.
In support of the proposal to retain the Suburb C property, the mother has secured home loan finance through R Finance approving a loan of either $241,691 which, at the date of the quote being 19 September 2023, would require monthly repayments of $1,342.73. If the primary loan is $342,720, then the monthly repayments would increase to $1,904. For the purposes of the mother’s application for finance, R Finance brought to account the Centrelink benefits received by the mother in the total sum of $5,668.72 per month.
Is it just and equitable to embark upon property division?

Each of the parties seeks orders by way of settlement of property.
I have identified the legal and equitable interest of the parties and consider it is appropriate to make orders that will result in a different outcome to the current interests held by the parties in their separate property.
CONTRIBUTIONS OF THE PARTIES
At the commencement of cohabitation, the father held an interest in a unit at Suburb AA which had been purchased by him in about 2002/2003 for approximately $180,000. The father paid a deposit of about $80,000 and retained a mortgage of approximately $100,000.
The parties married in 2004. In 2006 the Suburb AA property was sold for over $250,000.
The father recollects that following the payout of the mortgage, there was approximately $185,000 equity which was used as a deposit on a property purchased in Suburb F for over $400,000. The father recollects that he may have supplemented the net proceeds of the Suburb AA property by a further $20,000 to enable the purchase of Suburb F to be completed.
The mother concedes that she did not have any substantial assets at the time of the commencement of cohabitation.
The mother was employed on a permanent full-time basis with the father working in a casual position.
For a short time, the parties pulled their income into a joint account however, the mother ceased employment in 2010 in anticipation of the birth of S.
The father’s employment was modest from 2011. The family relied significantly on Centrelink benefit, payment or allowance.
Following separation in 2021, the father gained a qualification as an allied health worker and was employed up until September 2022.
Currently, the mother is not able to engage in paid employment whereas the father now works for himself on a part time basis as an allied health worker for private clients.
The father contends that he was significantly involved in the undertaking of domestic duties around the home, that he cooked the majority of the meals and engaged in substantial care of the children.
That said, there is no challenge by the father that the mother undertook the primary responsibility for the care of the children and of necessity, gave up her employment in 2010 and took on the role of homemaker.
I do not ignore the potential importance of the initial contribution of the father in respect of the contribution of his net interest in the Suburb AA property which provided assistance in the purchase of the Suburb F property then the Suburb G property in Queensland and ultimately enabling the parties to purchase the former matrimonial home at Suburb C.
The assessment of contribution is not an arithmetical exercise. Consideration must be given to the contributions made by each of the parties both in terms of direct financial contribution and also non-financial contribution.
There is limited evidence as to the value of the Suburb AA property at the date of the commencement of the cohabitation and the level of indebtedness at that time however I accept the father’s evidence that not long after the parties were married, upon the sale of the Suburb AA property, the net proceeds were approximately $185,000.
I also bring to account that where the pool is modest, the issue is not so much the percentage adjustment that is applied but rather what that equates to in real dollars.
In seeking to balance the financial assistance provided to the parties by the initial contribution of the father as against 15 years of relationship where the parties worked together for the benefit of what became a burgeoning family and the mother’s care of the children post-separation, the important role that the mother played as homemaker and primary carer to seven children cannot be ignored.
I propose the portion the contributions of the parties as to 55/45 in favour of the father.
The differential is 10 per cent and in respect of the pool available for distribution, that equates to about $98,000.
SECTION 75(2) FACTORS
The issues as between the parties are straight forward.
The mother will have the ongoing care for many years of seven of the parties eight children. There is no circumstance where the mother will be able to resume employment in the foreseeable future. As considered, alternative accommodation is problematic.
The position for the father is quite different. The father has the care of one child who is 14 years of age.
The father has the ability for employment and in evidence, he conceded that once the proceedings are over there is no impediment arising out of his care of S that would prevent him from resuming full time employment.
The father holds an employment history involving service work but more recently, as an allied health worker.
The father’s evidence was not convincing as to any impediment that might be present in respect of his ability to resume full time employment.
The consequence of the father’s circumstances is that he has been assessed to pay $72 per week by way of child support. Putting aside the dispute between the parties as to whether there are arrears and a question as to the reliability of the father’s preparedness to pay child support, the amount is modest considering the high needs of the children who remain in the mother’s care.
The father’s evidence did not impress as to the likelihood that there would be any substantial increase and in circumstances where the Court was not able to assess the likely income that the father could receive, when he might resume a higher level of employment or any indication that he understood the financial burden that falls to the mother, the financial burden of the care of the children in circumstances where the mother is not able to seek employment is overwhelming.
Whilst no evidence was presented as to the costs likely to be incurred in respect of the primary care of seven children, the Court can take notice that the costs will be significant and ongoing for a number of years.
In those circumstances I consider that there should be an adjustment of 30 per cent in favour of the mother.
Accordingly, the overall adjustment as between the parties should be 75/35 in favour of the mother.
Given that the total pool is in the sum of $984,000, at 35 per cent the father should receive $344,400. Taking into account that the father retains the motor vehicle and furniture in the sum of $14,000, the settlement sum to be paid by the mother in order for her to retain the Suburb C property is in the sum of $330,400.
Given that the mother has indicated that her ability to fund the settlement is via R Finance, I will allow 60 days for payment to the trust account of the father’s solicitors.
I make orders as appear at the commencement of these reasons.

I certify that the preceding three hundred and eighty-six (386) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.
Associate:
Dated: 14 December 2023

File number(s):	ADC 5322 of 2019
Judgment of:	BERMAN J
Date of judgment:	14 December 2023
Catchwords:	FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Where there are eight children – Where the mother has the primary care of seven children – Where the father has the primary care of one child – Where the father seeks orders for the children to live with the mother and spend significant time with him – Where the mother seeks orders for supervised time with the father –Allegation of risk – Where the mother alleges the father perpetrated family violence – Where the father undermines the mother – Where the father alleges that the mother sexually assaulted the eldest child – Where the father seeks a finding on the balance of probabilities – Where the father’s proposed orders are inconsistent with his allegations of risk – Consideration of a child’s evidence – Consideration of treatment of evidence – No finding made – Children’s wishes – Consideration of the siblings spending time together – Where the Court takes a cautious approach – Orders. FAMILY LAW – PROPERTY – Modest asset pool – Contributions – Where the father owned a property prior to the relationship – Future needs – Where the mother has the primary care of seven children – Where the mother is unable to work for the foreseeable future – Where the mother seeks to retain the former matrimonial home – Adjustment for the father’s contribution – Adjustment for the mother’s significant future needs – Orders.
Legislation:	Evidence Act 1995 (Cth) s 135 Family Law Act1975 (Cth) Div 12A, ss 60CA, 60B, 60CC, 61DA, 69ZV, 69ZW, 69ZT, 75, 79.
Cases cited:	Baglio & Baglio [2013] FamCA 105 Briginshaw v Briginshaw (1938) 60 CLR 336 Harridge & Harridge [2010] FamCA 445 M v M [1988] HCA 68 N & S & The Separate Representative (1996) FLC 92-655 S v R (1999) FLC 92-834 S v S [1993] NZ FLR 657 Vasser v Taylor-Black (2007) FLC 93-329 VJ v CJ (1997) FLC 92-772
Division:	Division 1 First Instance
Number of paragraphs:	386
Date of hearing:	13, 14, 15, 16, 26, 27, 28, 29 June 2023 & 3 October 2023
Counsel for the Applicant:	Mr Bowler
Solicitor for the Applicant:	Marciano Lawyers
Counsel for the Respondent:	Ms Boyle
Solicitor for the Respondent:	The Family Law Project

ADC 5322 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR ALDERISI Applicant
AND:	MS ALDERISI Respondent

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	14 DECEMBER 2023

Asset	Owner	Amount
B Street Suburb C	Joint	$950,000
Motor Vehicle 1	Mother	E $10,000
Motor Vehicle 2	Father	E $9,000
Household contents, furniture, good and effects	Mother	E $10,000
Household contents, furniture, good and effects	Father	E $5,000
TOTAL ASSETS	E $984,000