Beckwith & Dass - [2023] FedCFamC1F 834

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Beckwith & Dass [2023] FedCFamC1F 834

File number(s): PAC 5205 of 2018

Judgment of: BERMAN J

Date of judgment: 5 October 2023

Catchwords:
FAMILY LAW – EQUAL SHARED PARENTAL RESPONSIBILITY – Where each party seeks sole parental responsibility – Where the Court finds that the children should live with the father – Consideration of best interests – Orders.

FAMILY LAW – CHILDREN – With whom a party lives with and spends time with – Where the children live with the father and spend limited time with the mother – Where the children have special needs and require stability – Where the mother seeks a reversal of primary care – Consideration of the mother’s mental health and stability – Where the mother does not want to father to know her location – Where the mother’s proposal is untenable and not supported on the evidence – Consideration of the advantages and disadvantages of the separate proposals of the parties – Consideration of what time the mother should spend with the children – Consideration of supervision – Where the ICL proposes the mother provide an update as to her mental health prior to unsupervised time spending – Orders made for the children to live with the father and spend time with the mother.

FAMILY LAW – PROPERTY – Where the parties were in a de facto relationship for nine years – Where the father made greater contributions – Where the father has the primary care of the children – Consideration of Addbacks – Orders.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Division 12A, ss 60B(1), 60B(2), 60CC(2), 60CC(3), 60CC(2A), 60CA , 61DA, 61DA(2), 61DA(4), 69ZN, 69ZT, 69ZT(3), 90RD, 90SF

Cases cited:
AJO v GRO (2005) FLC 93-218

Baglio & Baglio [2013] FamCA 105

Gollings & Scott (2007) FLC 93-319

Harridge & Harridge [2010] FamCA 445

Kowaliw & Kowaliw (1981) FLC 91-092

La Costa & La Costa [2007] FamCA 1176

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

NHC & RCH (2004) FLC 93-204

Division: Division 1 First Instance

Number of paragraphs: 310

Date of hearing: 18 - 21 April & 5 - 6 July 2023

Place: Heard in Parramatta, delivered in Adelaide

Counsel for the Applicant: Ms Watson

Solicitor for the Applicant: Watson Law Pty Ltd

Counsel for the Respondent: Mr Iuliano

Solicitor for the Respondent: Derham Houston Lawyers

Counsel for the Independent Children's Lawyer: Ms Webb

Solicitor for the Independent Children's Lawyer: Sarah Bevan Family Lawyers
ORDERS

PAC 5205 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR BECKWITH

Father

AND:
MS DASS

Mother

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

5 OCTOBER 2023

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.Mr Beckwith (“the father”) have sole parental responsibility for X born 2010 and Y born 2012 (collectively “the children”).
3.In the exercise of any decision relating to sole parental responsibility, the father must in a timely manner inform Ms Dass (“the mother”) of his proposed decision and take into consideration any feedback the mother may provide.
4.The father must do all things necessary to authorise the mother to liaise directly with the children’s school to obtain such information about the children’s events and the progress at school, as is typically provided to parents.
5.The children live with the father.
6.X, subject to his wishes, and Y spend time with the mother as follows:-
(a)Forthwith until 29 June 2024, each alternate Sunday, from 2.00 pm to 5.00 pm supervised pursuant to order 7;
(b)From 30 June ~~2025~~ *2024 to 29 June 2025, each alternate Sunday from 2.00 pm until 5.00 pm conditional upon the mother’s compliance with order 8 and 9;
(c)Thereafter, each alternate Sunday from 10.00 am until 5.00 pm; and
(d)At such other times as may be agreed between the parties in writing.

7.For the purposes of supervision in order 6:
(a)The parties must do all things necessary to appoint Sydney supervised Contact worker or such other supervision service as may be agreed between the parties (“the supervision service”) to undertake supervision of the mother’s time with the children;
(b)That the mother is at liberty to nominate the location(s) for where her time with the children will occur, provided that it is reasonably local to the children’s home;
(c)The father will pay the amount of $250 for each supervised visit and the mother is to pay the balance of the costs associated with the supervised visit;
(d)If the mother cancels the visit with less than 24 hours’ notice, then the mother is to pay, and be liable for, the cancelled visit;
(e)If the supervision service is unable to provide supervision for the times specified, then the parties are required to communicate with the supervision service to organise alternative times, and must accept any alternative times provided the time commences no earlier than 11.00 am on a Sunday; and
(f)The mother is at liberty to nominate a shorter period of time if she is unable to afford or is not able to spend time with the children as provided for herein.

8.Prior to commencing unsupervised time with the children, the mother must:
(a)Remain compliant with the treatment program of her psychiatrist and all of the health care providers; and
(b)Provide the father with the report from her treating psychiatrist, dated no earlier than four weeks prior to the commencement of unsupervised time, about her compliance and progress.

9.In the event the mother fails to comply with order 8 or has a relapse in her mental health to the extent that she is hospitalised, then the mother’s unsupervised time shall not commence, or if it has already commenced, then it shall cease and her time shall revert to the supervised time provided for a period of six months commencing on the first Sunday nominated by her and the commencement of her unsupervised time, pursuant to these orders, will be similarly conditional upon her compliance with the provision of information relating to her mental health.
10.The mother has leave to provide her treating psychiatrist, including any later treating psychiatrist if she changes her health professional, with a copy of the single expert reports prepared by Dr B and a copy of these Orders.
11.Neither parent shall denigrate or permit any other person to denigrate the other parent or members of the other parent’s family in the presence or hearing of the children.
12.Neither parent shall discuss these proceedings or any issues arising out of these proceedings with any or all of the children or authorise any third party from doing so save as may be required to give effect to these orders.

UPON NOTING THAT by letter received from the Trustee of the father’s superannuation entitlement with Superannuation Fund 1 dated 10 May 2023 that they have no objection to the making of final orders that provide for a superannuation payment split from the entitlement of the father to the nominated superannuation fund of the mother.
THE COURT FURTHER ORDERS:
13.That within sixty (60) days from the date of this order, that the father pay to the Trust Account of ~~Meares Law~~ Derham Houston Lawyers for and on behalf of the mother, the sum of $121,030 (“the settlement sum”).
14.That unless otherwise specified in these orders, and except for the purpose of enforcing the payment of any money due under these orders, each party shall:
(a)Be solely entitled to the exclusion of the other, all property in the name and/or possession of such party as at the date of these orders and for that purpose, credit union, bank, society and other like deposits or credit accounts are deemed to be in the possession of the person named as the account holder and are deemed to be property;
(b)Be solely liable for and indemnify and keep indemnified the other against any and all liabilities attaching or relating to the property in their respective name and/or possession and any/or liabilities in their respective sole name; and
(c)Forego any claims they may have to any superannuation benefits belonging to or earned by the other party except as dealt with in these orders.

15.That:
(a)Pursuant to s 90XT(1)(a) and s90XT(4) of the Family Law Act 1975 (Cth) ("the Act”), a base amount of $106,581 allocated to the mother out of the father’s interest in the Superannuation Fund ("the Fund”);
(b)Pursuant to s 90XT(1)(a) of the Act, whenever a splitable payment becomes payable in respect of the father’s interest in the Fund:
(i)The mother is entitled to be paid the amount calculated in accordance with s 90XT(1)(a)(i) of the Act; and
(ii)There is corresponding reduction in the entitlement to the father or such other person to whom a splitable payment would have been made but for the payment split.

(c)Whenever the trustee of the Fund makes a splitable payment out of the father’s interest in the Fund, the trustee shall do all things and sign all documents necessary to pay the entitlement created in this order in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001 (Cth);
(d)This order binds the trustee of the Fund and has effect from the operative time and the operative time is the beginning of the fourth business day after the day on which a copy of these orders are served on the trustee of the Fund; and
(e)The parties shall bear equally any costs, fees or charges imposed by the trustee of the Fund to give effect to this order.

16.That in default of the father complying with the payment of the settlement sum, and that the default is not remedied within twenty eight (28) days of default, the parties shall each be entitled by giving written notice to the other to require that the property situate at C Street, Suburb D, being the whole of the property contained in Certificate of Title, Folio … (“the Suburb D property”) to be sold by public auction on the following basis:
(a)The parties shall do all things and sign all documents necessary to submit the Suburb D property for sale by public auction within six (6) weeks of the date of service of the notice;
(b)The solicitor instructed to act for the parties on the sale shall be as agreed between the parties and failing agreement for more than seven (7) days, then a solicitor nominated by the President at that time of the Law Society of New South Wales or any successor of it, or his or her nominee, with such nomination to be at the request of either party and the parties shall pay in equal shares the costs of the nomination;
(c)The auction shall be conducted by such real estate agent and auctioneer as agreed between the parties and failing agreement for more than seven (7) days, then a licensed real estate agent and licensed auctioneer nominated by the President at that time of the Real Estate Institute of New South Wales or any successor of it or his or her nominee, with such nomination to be at the request of either party and the parties shall pay in equal shares the costs of the nominations;
(d)The reserve price shall be fixed as agreed between the parties and failing agreement as to the reserve price for more than seven (7) days, then a reserve price determined by the auctioneer;
(e)The costs of the auction shall be part of the costs of the sale and shall be paid initially by the party giving notice; and
(f)Each party shall have the right to make a bid at the auction sale.

17.That as from the date of these orders and pending payment of the settlement sum to the mother or the sale of the Suburb D property;
(a)The father shall have the sole and exclusive right to occupy the Suburb D property or otherwise deal with the property in accordance with that right;
(b)The father shall pay all mortgage repayments, outgoings and essential repairs and shall indemnify and keep indemnified the mother in that regard;
(c)The parties shall each hold their respective interests in the Suburb D property upon trust pursuant to these orders; and
(d)The father is restrained from causing or permitting any increase in the indebtedness secured on the title of the Suburb D property or further encumbering the Suburb D property without the written consent of the mother.

18.That pursuant to s 106A of the Family Law Act 1975 (Cth) (Act), in the event that a party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders within seven (7) days of a written request by the other to do so, then upon the filing of an affidavit evidencing such refusal or neglect the Registrar of the Court, or such other Court Officer is empowered to:
(a)Execute such deed, document or instrument in the name of the said party and do all things necessary to give validity and operation to the deed, document or instrument; and
(b)Make such order as he or she considers just as to the payment of costs and expenses of and incidental to the preparation of such deed, document or instrument and its execution.

19.That all extant applications be dismissed.

THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 13.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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 Beckwith (“the father”) and Ms Dass (“the mother”) are unable to reach agreement in respect of the future parenting arrangements for X born 2010 and Y born 2012 (collectively “the children”).
The parties are also unable to reach agreement in respect of settlement of property arising from a de-facto relationship which commenced in 2009 and ended in or about October 2018.
The father seeks orders for sole parental responsibility, that the children live with him and spend supervised time with the mother for two hours per fortnight and that the mother undertakes a urine drug screening test 48 hours prior to spending time with the children. In the event that the mother does not undertake the urinalysis test or that she produces a test result positive for use of drugs or non-prescribed medications, the father seeks for the mother’s time with the children be suspended until a negative test result is provided.
The mother seeks orders for sole parental responsibility, that the children live with her and spend supervised time with the father on the first Saturday of each school holiday period from 10.00 am until 12.00 pm. She also seeks that an injunction be made pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) that prevents the father from attempting to locate the mother and the children including, their primary place of residence, the mother’s place of employment and the children’s schools.
The Independent Children’s Lawyer (“ICL”) proposes that orders be made for the father to have sole parental responsibility but to inform the mother of any proposed decision and take her feedback into consideration, for the children to live with the father and spend supervised time with the mother each alternate Sunday from 2.00 pm until 5.00 pm until January 2024 and thereafter, following a report from the mother’s psychiatrist and a hair follicle test, the mother’s time be unsupervised.
In the event that the report from the psychiatrist indicates that the mother is not complying with her treatment program and/ or the mother returns a hair follicle test that is positive for illicit drugs, then the mother’s time with the children is to remain supervised.
Since September 2018, the children have lived in the father’s sole care and have spent sporadic, supervised time with the mother. X has refused to attend the supervised visits with the mother since November 2022.
The father has received significant assistance from the maternal and the paternal grandparents in caring for the children.
The father considers that since separation, the mother has not effectively managed or received consistent treatment for her diagnosed mental health condition, that she consumes illicit substances and engages in reckless behaviour and that her recent relationships have caused her to be a victim of family violence. Her current living circumstances are not known. He considers that the children are at an unacceptable risk in the unsupervised care of the mother.
The mother contends in the circumstances, the father is entirely unstable and poses an unacceptable risk of harm to the children.
The mother states that she was the children’s primary carer until separation and that she was a victim of family violence perpetrated by the father. She considers that her time spending with the children since separation has been difficult because the father has not made the children available, has not facilitated a meaningful relationship and has embarked on a deliberate course of action to dissuade the children from wanting to spend time with her.
The mother was admitted to a psychiatric clinic in late 2018, on two occasions in early 2021, and mid-2021 and considers that the decline in her mental health was as a result of the physical, emotional and financial abuse perpetrated by the father during the relationship. Following separation, she deposes to life events such as her second husband dying, as a cause for her admissions and poor mental health.
Both children have been diagnosed with Autism Spectrum Disorder however, Y has “Level 3” meaning that historically, he has largely been non-verbal. The father has set up appropriate therapeutic assistance that is available to the children via NDIS funding. The father has raised concerns as to how the children, in particular Y, would cope with a change of primary care arrangements which would also require a change of residence, school, and NDIS therapeutic support systems.
A significant issue is the extent to which each party will promote the children’s relationship with the other party. Each party conceded that the children would benefit from a relationship with the other party.
Whilst the Court is required to consider the separate proposals of the parties based upon the applicable evidence, in parenting cases, the Court also has the discretion to give consideration to making orders that are not sought by the parties. In this case, I am required to consider whether the children should only spend limited, supervised time with the mother in circumstances where the father asserts the mother does not have capacity to provide proper care for the children and will expose them to risk of harm.
If, however, I am satisfied on the evidence that the mother does not pose a risk of harm, that supervision is not warranted and that she has capacity to spend time with the children beyond the two hours proposed by the father, I am able to make orders that provide for the mother to spend unsupervised and/or more time with the children than proposed by the father.

A significant difficulty in this case is that the mother has an overarching and genuine fear of the father, and she concedes that she cannot countenance the Court making any orders that would provide the father with knowledge of her location. She considers that if the children live with her and spend more time with the father than her proposed orders, there is a risk that her location will be disclosed. The mother concedes that if she is not successful in obtaining an order for the children to live with her, then she could not contemplate the children spending significant time with her out of fear that it would jeopardise her safety.
I am therefore being asked to make orders that, irrespective of whether I find there is, or is not, an unacceptable risk of harm to the children in a party’s care, the children should live with either the father or the mother and spend limited time with the other party such that they would effectively be unable to have a meaningful relationship with that parent.
A further difficulty is that the mother has proposed orders that seek to reverse the children’s current primary care arrangements. The mother provides no orders for how the children would transition into her care or what would happen in the event she has a mental health episode and is unable to properly care for the children or is required to be hospitalised. The mother considers that she has appropriate friends and family who could assist her should she have another mental health condition episode however, it is the father’s case that the mother associates with unsavoury characters who would pose a risk to the children and further, that the mother does not have the support from the maternal family.
The parties also remain in dispute as to the division of their assets and liabilities. The asset pool is modest with the main asset of the relationship being the property situate at C Street, Suburb D, NSW (“the former joint residence”).
The parties agree that the mother will transfer all of her estate and interest in the former joint residence to the father and that he will remain solely liable for the mortgage secured over the property.
The parties are not agreed as to whether the father’s loan from his parents is bona fide and should be included in the asset pool nor as to the overall percentage division of the net-assets. The parties also remain in dispute as to whether there should be an equalisation of the parties’ superannuation or whether each party should retain their own respective interest in their superannuation fund.
BACKGROUND
The father was born in 1975 and is 48 years old. The father remains employed on a full-time basis as a manager.
The mother was born in 1980 and is 43 years old. The mother is self-employed and works on a casual basis.
The parties commenced cohabitation in or about 2009 and separated on a final basis in September 2018.
There are two children of the relationship namely, X and Y. The mother has an adult child from a previous relationship, Mr E who lived with the parties until separation.
Both X and Y and have been diagnosed with Autism Spectrum Disorder. Y’s diagnosis of Level 3 means that he has an intellectual development delay and attends at a School for Specific Purpose (“SSP”). X’s diagnosis of Level 1 does not require him to attend a SSP and he currently attends a mainstream class at a mainstream school.
The mother considers that prior to separation, she was the children’s primary carer. The father worked on a full-time basis but considered that he also assisted in caring for the children when he was not at work.
Since separation, the children and Mr E have lived with the father. The father continues to work on a full-time basis and receives significant support in caring for the children from both the maternal and paternal grandparents.
The mother has suffered from significant mental health issues since childhood and has conceded that between 2000 and 2002 she also engaged in significant substance abuse. By 2004, following her attendance at F Support Service, the mother considers that she had “recovered” explaining that she remained drug free, was dealing with her mental health issues and had managed to secure full-time employment. In 2004, she obtained orders for equal shared care of Mr E.
The mother deposes to multiple occasions where the father perpetrated physical violence and abuse towards her most commonly following the father’s consumption of alcohol. She also asserts that the father was financially controlling, registering no assets in her name including her motor vehicle and her mobile telephone. She had no direct access to a bank account and was provided with a secondary credit card linked to the father’s account. She asserts that the father would monitor her by telephoning to ascertain her location and regularly checking her text messages.
The mother asserts that the frequency of the physical assaults increased and were no longer isolated to when the father consumed alcohol. The mother deposes that in 2018, there were several occasions where the father became physically violent towards her which caused her physical injury.
In late 2018, the mother was voluntarily admitted into the G Clinic following a mental health episode. As her mental health condition continued to deteriorate, she was taken to hospital subject to a mental health assessment. The mother was transferred to J Centre where she ultimately remained as a patient until her discharge in late 2018.
Upon discharge she returned to the former joint residence. She alleges that in or about late 2018, the father physically assaulted her resulting in her leaving the parties’ home and staying at a hotel with Mr H, a friend from J Centre. She returned to the parties’ home the following day where she alleges that upon the father becoming aware of her return, the police attended, and she ultimately returned to J Centre on a voluntary basis.
Upon the mother’s discharge from J Centre, she was served with the father’s Initiating Application. She asserts that the father would not allow her to return to the former joint residence nor would he allow her to collect her personal belongings or to see the children. The father says that the mother was able to collect her belongings.
In late 2018, the mother signed consent orders that on a without admission basis, the children spend time with her for four hours each Sunday, supervised by a mutual friend.
The mother voluntarily admitted herself to the G Clinic in late 2018 where she remained as an inpatient for a number of days. Upon her discharge, the father provided her with a set of keys to the parties’ mobile home where the mother commenced residing.
Following the conclusion of a supervised visit on 15 December 2018, the mother asserts that she saw the father driving towards her motor vehicle and flash his lights at her, prompting her to pull over. The mother alleges that the father demanded her telephone and as she reached into her motor vehicle, he pushed her into the steering wheel causing her injury to her ribs. The following month, the mother attended upon her doctor and obtained an x-ray. She was informed that she had a rib fracture.
In early 2019, the mother drove to the father’s home to ask to spend time with the children as she had not seen them for three weeks. The mother saw the father standing outside the neighbour’s house and as she got out of her car and, he saw her and charged towards her. The mother alleges that the father pinned her against her car and physically assaulted her causing her injury to her ribs. The mother later attended upon her doctor who undertook an x-ray which showed that her rib was fractured.
As a result of the incident, the mother attended upon the Police and in mid-2019 the father was charged with a number of offences. A Provisional Apprehended Domestic Violence Order (“ADVO”) was issued listing the mother as the protected person and the father as the defendant.
The mother met Mr H whilst both were in patients at J Centre. They commenced a relationship and were married in early 2019. Mr H had an extensive criminal history, which the mother asserts she was not aware of until she received the 2019 Family Report by Dr B. However, Mr H did spend time in jail during the parties’ relationship.
In 2021, Mr H died. The mother accepts that following his death, she consumed large quantities of alcohol and was admitted to the G Clinic given she subsequently became emotionally dysregulated and impulsive. Her principal diagnosis being an episode of her mental health condition.
The father says that the mother’s relationships pose a risk to the children. The mother concedes that she has been issued with two separate ADVO’s listing her as the protected person and the defendants as persons whom she was either in a relationship with or with whom she was intimate with.
The mother was admitted to the G Clinic on three occasions in early 2021, and in mid-2021. The mother’s admissions were as a result of the diagnosis of her mental health condition and a deterioration of her mood arising from various life events including, the death of her husband, Mr H.
The mother’s time with the children since separation has been limited and continues to be supervised. Between January 2019 and April 2019, the mother did not spend any time with the children in accordance with the orders as she asserts that the supervisor, Ms L, refused to continue undertaking supervision.
The mother has not spent time with X since November 2022. Her position is that the proceedings have had a negative impact on X and caused him distress. The mother holds a genuine concern that the father is not facilitating or encouraging the children’s relationship with her, evident by X’s non-attendance at time spending.
The mother’s current mental health diagnosis is of a mental health condition and Post Traumatic Stress Disorder (“PTSD”). Her mental health episodes arising out of her diagnosis played a pivotal role in the culmination of the breakdown of the parties’ relationship and the initial requirement for her time spending with the children to be supervised. The father alleges that the mother’s mental health conditions are not being properly treated or managed and that as a result, she poses an ongoing risk to the children.
The mother concedes that she has mental health issues which have on occasions, led her to engage in regretful behaviour which required her to be admitted to hospital. However, the mother maintains that she is currently managing well and considers that she no longer poses a risk to the children. The mother attends upon her treating psychiatrist monthly, is compliant with all treatment recommendations including medications. She has not required hospitalisation for any mental health issues since mid-2021.
The mother concedes that she has previously used illicit substances however, she asserts that she has not consumed drugs since prior to her hospital admission in mid-2021 and she has produced multiple hair follicle tests throughout the proceedings which have shown negative results.
The father also contends that as a result of the mother’s unmanaged mental health issues and consumption of illicit substances, she exhibits and engages with people who exhibit violent and erratic behaviour. It is not in dispute that since separation, the mother has been in multiple relationships involving significant domestic violence.
The mother however, also deposes to multiple incidents of physical violence perpetrated on her by the father.
The mother considers that since separation, the father has undermined her relationship with the children and refused to facilitate a relationship whereas the father asserts that the mother has failed to attend time spending occasions or telephone the children in accordance with the Orders. The mother asserts that she has incurred fees of approximately $17,000 in supervision fees and her capacity to continue to finance the same has caused her non-attendance on occasions.
DOCUMENTS RELIED UPON
The father seeks to rely upon the following documents:-
(2)Further Amended Initiating Application filed 30 May 2022;
(3)Affidavit of the father filed 27 June 2022;
(4)Affidavit of Mr K filed 6 December 2021;
(5)Affidavit of Mr E filed 6 December 2021;
(6)Notice of Risk filed 22 May 2020;
(7)Amended Financial Statement dated 20 April 2023; and
(8)DD Company Valuation Report of Former Joint Residence dated March 2023.
The mother seeks to rely upon the following documents:-
(1)Further Amended Response filed 20 March 2023;
(2)Affidavit of the mother filed 20 March 2023;
(3)Notice of Risk field 5 February 2019; and
(4)Financial Statement filed 11 April 2023.
The ICL seeks to rely upon the following documents:-
(1)Proposed Minute of Order dated 5 July 2023;
(2)Report of Dr B dated 9 December 2019; and
(3)Report of Dr B filed 12 April 2023.
All parties filed an Outline of Case prior to the commencement of the final hearing as well as a joint chronology document.
The evidence
At the commencement of the trial, the Court highlighted the provisions of Division 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”).
Each party filed a plethora of material that they sought to rely upon. The father’s trial affidavit was 1003 pages and his tender bundle was an additional 392 pages. The father also sought to call his father as a witness and filed a supporting affidavit totalling 78 pages. The mother’s trial affidavit totalled 417 pages and her tender bundle was a further 782 pages.
Given the volume of documents and with each party filing a significant list of objections, I raised with the parties whether an application would be made that the provisions of the Evidence Act apply either in whole or in part. Further, the mother also raises significant allegations of family violence.
Counsel for the mother asked the Court to proceed by applying s 140 of the Evidence Act. The father provided that this was not a case where there are exceptional circumstances and that s 69ZT of the Act ought to determine how the evidence is to be treated. I considered that the principles as set out in s 69ZN of the Act will be better served by receiving the evidence of each of the parties relied upon, but exercising my discretion pursuant to s 69ZT(3) of the Act as to the weight which would be given to the evidence.
THE EVIDENCE
The father
The father relied upon his trial affidavit filed 27 June 2022.
The father confirmed that both children were on the autism spectrum with Y being more severely affected than X. Y’s presentation historically had been largely nonverbal however, there has been some recent improvements.
The mother has an adult child from a former relationship namely, Mr E born in 1999. In 2000, Mr E was placed in the care of the maternal grandmother arising out of allegations that the mother’s drug use would not enable her to properly parent the child however, Mr E returned to the mother’s care in or about 2005 and at age 10 years, Mr E commenced living with the parties.
Following the parties’ separation, Mr E has continued to reside with the father.
The father called Mr E to give evidence and it was a distressing and an unfortunate aspect of the proceedings that he was unrelenting in his disregard for the mother. His evidence could readily be described as contemptuous of her.
It is uncertain whether Mr E’s level of vitriol is exacerbated by his relationship with the father or arises as a result of his involvement and interaction with the mother.
In 2019, the parties underwent a family assessment resulting in a Child Inclusive Memorandum dated 21 January 2019 (“the memorandum”). The father did not resile from the following remarks in the memorandum:
37.[The father] said that, before recent events, [the mother] was a good mother who “maintained the wellness of the boys” and organised their schooling and activities. He said that, sometimes, he would have to call her to get the boys ready for school because she stayed up late, but that, generally, they worked well together as parents. [The father] said they divided their life along traditional lines, where he earned money and [the mother] looked after the children.
The concession by the father as to the mother’s capacity to parent was a theme that underpinned the father’s evidence. The father’s presentation was not that the mother had any intention to hurt or harm the children but rather that her rapid decline in mental health, her poor choice of partners and the risk that she posed, consequent upon her frequent hospitalisation, was problematic.
The further concern of the father was that the mother had made persistent and ongoing allegations of family violence incorporating sexual assault such that the mother remains in fear of the father and will not engage in any relationship with the children which might inadvertently result in the disclosure of her whereabouts.
The mother’s allegations of sexual and physical assault have resulted in criminal proceedings involving the father being commenced and then later discontinued and/or dismissed. A significant aspect of the father’s case is that over and above the anxiety and distress arising from the criminal proceedings that he considers were based upon false allegations, he has had to borrow substantial sums of money from his parents to pay for his legal representation.
The father denied that he has assaulted the mother and in particular, he highlighted that there has been little physical interaction between the parties for the past four years.
The father was not challenged as to the details of his employment during the course of the relationship and whilst denying that he engaged in gambling activities, he confirmed that he was the secretary of a social club.
The father gave impressive evidence as to his routine in respect of the children, both in terms of the day-to-day exigencies of life but also the more detailed therapeutic requirements of the children, in particular Y. Each therapy session results in a report or notes which the father carefully considered.
It is a significant aspect of the father’s arrangements for the proper care of the children that he has the support of both the maternal and paternal grandparents. It is reasonable to find that they provide assistance to the father and supplement and support his care of the children.
There does not appear to be any complaint or concern expressed by the children’s grandparents as to a concern that the father is not appropriately and comprehensively caring for the children both in terms of their physical, emotional, and psychological needs.
The father’s evidence was insightful and expansive as to the needs of the children, and the manner by which he manages their circumstances.
The father observed that X struggles to follow instruction. X has a creative aspect and at school, he does not require or have any direct support. The circumstances for Y are different in that he has been largely non-verbal although there is some pleasing improvement of late and at school, Y has the support of one, and sometimes two, school support officers.
The father has arranged a suite of health professionals to assist the children comprising a psychologist, a physiotherapist, a podiatrist, and an occupational therapist teaching the children, but in particular Y, to undertake life skills such as cooking and drawing.
The father’s perception was that X is bright and appears to be progressing well academically but that even so, he may be assisted by a more targeted parenting program.
Y was largely nonverbal in 2019 but he now has an increasing vocabulary and is putting words together.

Notwithstanding Y’s diagnosis of autism level 3 and with a presentation of a mild intellectual disability, he was progressing well, and he knew his classmates by name and was liked by the teachers.
The father was an impressive witness. He was not challenged in respect of his denial that he subjected the mother to sexual and physical assault.
His evidence as to the needs of the children and the manner in which they were provided for was compelling. To the extent that the mother’s case was that the father was not capable of adequately providing for the complex needs of the children, the father’s evidence is preferred.
The father’s evidence was compelling not just as to the extent of his insight and understanding of the needs of the children but his ready acceptance and support for the children to maintain a relationship with the mother.
Mr E
Mr E is the mother’s son from a former relationship who now resides with the father.
It is unfortunate that Mr E was called to give evidence in circumstances where his attendance was distressing to the mother and his evidence and presentation demonstrated his dislike and distain of her.
I accept the likely accuracy of his observations of the mother’s deteriorating mental health from September 2018.
There is little doubt that the relationship between the mother and Mr E is fractured and mired in the struggle undertaken by each of them with deteriorating mental health resulting in depression and substance abuse.
Whilst I accept that Mr E’s evidence of the father’s care of the children is consistent with the observation of others, his evidence was otherwise tainted by his demonstrable dislike of the mother, the low regard in which he held her and as such, he was not an impressive witness.
The mother
The mother relied upon her trial affidavit filed 20 March 2023 consisting of 417 pages including 91 pages of sworn evidence. The affidavit is unwieldy, verbose with the annexures of little or no assistance in circumstances where it was made clear that unless a particular document was tendered or referred to in the evidence, there should be no expectation that I would embark upon a consideration of a vast amount of annexed material.
The difficulty with the mother’s case was that she was not prepared to countenance or consider any outcome that would see the children remaining in the primary care of the father and spending substantial time in her care. The alternate outcome was also problematic in that if the mother was successful in achieving an outcome whereby the children transitioned to her primary care, they would only be able to spend time with the father on a very limited and strictly supervised basis.
The basis for the mother’s entrenched position is her purported fear of the father and of him finding out from the children where she lives.
If the children remain with the father, then the time that they would spend with the mother would necessarily be limited such that the children would not ever go to the mother’s premises and certainly not stay with her for any extended period.
The mother recounted the history of the parties’ relationship commencing in 2009.
It appears that during the course of the relationship, the mother undertook the primary parenting role for the children whereas the father worked fulltime, initially in his own business, then in an entertainment venue before commencing his current employment as a manager in hospitality.
The mother also had some part-time employment in hospitality.
The mother’s understanding of the needs of the children and her level of involvement and engagement in their therapy and management enables a finding that the more florid presentation of her underlying mental health issues, she was impressive in her ability to look after the needs of the children.
An aspect of the mother’s evidence was her stark candour in acknowledging her challenging mental health issues. She conceded that from the birth of Mr E in 1999, she suffered severe postpartum depression which reoccurred after the birth of X.
She was diagnosed with a mental health condition in 2013 which was then further diagnosed in 2015. This was exacerbated by a further diagnosis of Post Traumatic Stress Disorder (PTSD).
She was further diagnosed with another mental health condition and depression which was initially treated by medication that the mother could not easily tolerate.
The consequence for the mother was that she would self-medicate with alcohol and illicit substances.
The mother was then engaged in hospitalisation for mental health related issues and since separation, it is a reasonable assessment that the mother has struggled with her mental health.
The mother’s spiralling instability was not assisted by subsequent relationships with men who were violent and abusive towards her. Whilst in a rehabilitation centre, the mother met Mr H whom she married in or about 2019.
It is likely that Mr H had substance and alcohol abuse problems and it could not be said that the relationship between the mother and Mr H was a stabilising influence on her. A tragic outcome was that Mr H died in 2021. It is likely that the passing of Mr H had a debilitating effect on the mother in terms of her mental health.
Despite the father’s confirmation in terms of the mother’s ability to function as an adequate parent prior to separation, the real focus for the mother is the period following separation. The evidence promotes a finding of a stark contrast in the mother’s presentation before and after September 2018.
There is contention between the parties as to the extent of time that the mother spent with the children following separation.
It is likely that between June 2019 and April 2020, the mother did not regularly call the children although the parties are not agreed as to why some calls did not occur. Video calls resumed in September 2021 and the mother remembers that in mid-2021 she came out of hospital and resumed telephone communication with the children.
There is also some uncertainty as to the extent to which visits between the children and the mother were cancelled between July 2020 and October 2021.
The mother currently sees the children on an irregular basis but has resumed contacting the children since late 2021.
Following the death of Mr H, the mother commenced a relationship with Mr M. Whilst the mother denied that the relationship was anything more than casual, the mother conceded that Mr M engaged in family violence and alcohol abuse.
The mother commenced a more recent relationship with Mr N in mid-2021. The mother and Mr N cohabited for a short period of time however, the relationship came to an end in mid‑2022 when he was charged with offences relating to physical violence and threatening conduct directed to the father.
The mother now lives at an undisclosed address in New South Wales. As discussed, the mother is steadfast in her refusal to disclose her address or to seek orders that might enable the children to report to the father where she now lives.
The mother was asked to consider the report prepared by Dr B regarding his observations of what appeared to be a positive relationship and interaction between the children and the father. The mother was not prepared to accept that there existed a strong relationship and close emotional attachment between the children and their father.
As considered, the mother gave evidence that was disarming in its honesty as to her struggle with mental health issues. She frankly conceded that for extended periods of time, she had been unwell and that this often resulted in substance abuse. Moreover, she was sanguine as to her relationships post-separation and acknowledged that she struggled with the death of Mr H, her relationships had been ill advised, and the men involved were unlikely to have been good role models for the children.
The mother acknowledged that she was a voluntary inpatient to G Clinic during 2021 following the death of Mr H, that she continued to be unwell, and readmitted herself.
The mother was a voluntary inpatient again in mid-2021.
To her credit, the mother has of recent date undergone a number of parenting programs and has sought to stabilise her life and gain assistance in better controlling and moderating her response to various stressors.
For a considerable period of time the mother concedes difficulty in attending regularly to see the children however, as and from 28 November 2022 the mother has both seen and spoken to Y but not X.
Dr B
Dr B is a consultant child, family and adult psychiatrist. He has completed study at O University. He commenced his psychiatry training in the 1980s. He holds a fellowship since the early 1990s.
He obtained a certificate in the early 1990s and from that date to the present, he has practiced in the area of child, family and adult psychiatry securing a position at a university in the late 1990s.
There was no challenge to the professional qualifications of Dr B.
Dr B first came into contact with the family following orders made in 2019.
Interviews were conducted in November 2019 and following observations of the children with each of the parties, and a perusal of various court documents and subpoenaed material (including notes of Dr Q concerning the mother’s mental health), a Family Report was produced for use in an interim hearing dated 9 December 2019 (“the first report”).
In the first report, Dr B made the following recommendations:-
1. Sole parental responsibility with the father.
2.The maintenance of the children’s primary residence with the father, supplemented with the support of the active involvement of the paternal and maternal grandparents.
3.The maintenance of supervised contact with the mother one afternoon each weekend in a supervised capacity. This could be maintained with the current provider, Connecting Families, or alternatively, transfer to a local contact centre as proposed by the father.
4. Both parties should undertake to not denigrate the other parent.
5.For the mother to be informed of the children’s developmental progress at school and receive regular reports from the other service providers involved in the children’s care.
In anticipation of the final hearing, interviews were conducted by Dr B on 28 March 2023 resulting in a supplementary Family Report dated 12 April 2023 being made available to the Court (“the second report”).
The children were brought to the assessment by their father and Dr B recorded that there was “A delightful rapport was observed between the boys and each other and their father and older brother”.[1] Neither of the children displayed oppositional or disruptive behaviour and there was no evidence of dysregulation.
[1] Supplementary Family Report dated 12 April 2023 at paragraph 3.
X was asked why he no longer spent time with the mother and his response is recorded as follows:-
14When asked about the cessation of contact, [X] explained, “I just don’t want to. That’s all. I don’t like it when people ask that because they think that there is something more to it and there is not. Which is dumb”. He agreed that this was frustrating, “it’s just, I don’t like thinking that there is something wrong when there is not”. He denied that this made him angry.
X understood and was aware that Y saw the mother every Monday and that there were frequent telephone calls on Tuesday and Thursday each week. In interview and following observed interaction with the mother, X showed no obvious upset or distress but was clear that he liked his current circumstances living with the father, his brother and Mr E. X was enthusiastic about the relationship that he had with the maternal and paternal grandparents.
The mother persisted in promoting an allegation that X had been the subject of either sexual abuse or some other conduct which explained behaviour that she considered, was sexualised. It was the mother’s complaint and subsequent events which may provide some better understanding of why X decided to not attend for future contact visits.
The mother was frank in her assessment of the undesirable and aggressive conduct of her various partners in particular Mr M, whom she considered not to be a partner but with whom there were intimate relations, Mr H and then Mr N.
Dr B confirmed that the mother maintained regular contact with Dr Q who was her treating psychiatrist. It appears that whilst Dr Q was not prepared to provide a medico-legal report, he did confirm his assessment of the mother as being compliant and with a capacity to remain healthy and mentally stable subject to excess stress.
Dr B considered that the father and the children’s grandparents have capacity to care for the children’s emotional and intellectual needs and were attuned to their developmental issues. The mother, when well, had the capacity to care for their emotional and intellectual needs together with their special needs. The issue is whether the mother has the capacity to re‑establish and re-engage in this role.
The assessment of the family dynamics was not such that it enabled Dr B to form a view as to the veracity of the mother’s allegation that the father had perpetrated family violence. Dr B was satisfied that X did not exhibit sexualised behaviour and that there was no aspect of the father’s care of the children consistent with the mother’s entrenched allegations.
Dr B considered that whilst the mother had achieved a measure of stability however, he considered that:
143… . This, however, does not alter the expressed opinion regarding the mother’s impaired parenting capacity due to her vulnerable mental health, emotional dysregulation, unstable interpersonal relationships, and exposure to ongoing trauma. It was concerning that this pattern of behaviour had continued. There was no indication that this would be likely to change given that the mother’s vulnerability factors remain substantively unchanged.
Dr B undertook a detailed and close assessment of the children’s circumstances based upon their developmental needs. He considered that the father had prioritised the children’s needs and that there had been demonstrable progress in particular Y now becoming verbal.
The tragedy of the current circumstances was highlighted in the second report:-
148The children were settled and contained in their mother’s care. When seen together with the children, she was warm, affectionate, and engaged. That said, within minutes of the commencement of the family observation she expressed concern that the experience may be “too much” for [X]. She suggested that the family observation be discontinued. Fortunately, [X] was agreeable to stay, and remained for an extended period in the room with her as [Y] moved in and out of the room. Following the family observation, the mother re-invigorated her expressed concerns that [X] had exhibited inappropriate sexualised behaviour. This was not observed by the report writer. She asserted that when [X] cuddled up to her bosom, this was evidence of inappropriate sexualised behaviour. This interaction did not occur whilst the report writer was in the room with [X]. The mother alleged that this occurred whilst the family interactions were observed via a Zoom audio-visual link. She repeated her previous assertion about a similar sexualised interaction during a contact visit in May 2022. … The report writer did not share the mother’s view that [X] cuddling his mother was evidence of inappropriate sexualised behaviour. Nor was it considered to be evidence that [X] had been placed at risk in his father’s care, as alleged by her. It was highly concerning that the mother continued to make such allegations.
Dr B recommended that the father have sole parental responsibility for the children but that they maintain supervised contact with the mother for two hours each fortnight on a Sunday, being a more suitable alternative to the current Monday afternoon.
In evidence, Dr B considered that the mother minimises her psychiatric diagnosis and prognosis. He was of the view that the mother lacked complete insight as to the consequences of the orders that she sought which would have the consequence of removing the children from the various networks that have been put in place. Dr B was pessimistic as to the mother’s ability to be able to put in place early care arrangements should she feel that her mental health was deteriorating.
The primary concern was the mother’s history of drug abuse and the level of impaired judgement in particular, allied to a poor choice of partners.
Dr B considered that X was high functioning and was able to remain and function in mainstream schooling whereas Y needed support. The children but in particular Y, would benefit from stability and a change therefore would be difficult if it resulted in a displacement of their current support providers.
Dr B highlighted that there was a positive relationship between Y and the mother and that this view was supported by the contact reports highlighting positive interaction.
The mother presented in an appropriate manner and whilst unsupervised arrangements were always preferable, this could only occur if the mother was in a stable environment and had enough insight to desist from making allegations that the children were at risk in the father’s care.
Dr B did not consider that if there was an adverse event or inappropriate conduct by the mother, Y would be able to self-report and therefore self-protect.
The issue is overwhelmed by the mother’s position that unless the children live with her and spend no unsupervised time with the father, then she is not prepared to accept an order that the children live with the father and spend time with the mother.
Dr B considered that the mother may present with a paranoid type personality, difficulties in the workplace and a propensity to consume illicit substances.
Dr B presented as a witness of high skill level and qualification. He had the advantage of engagement with the family and in particular, the children, in 2019 and then in 2023. By the time of the second assessment, the children had been with the father for four and a half years. He was able to accurately consider their development and their presentation. Simply put, the children presented as being well cared for with their emotional, intellectual and personal needs appropriately cared for by the father with the willing assistance of the children’s grandparents.
Dr B was not confident that the mother had achieved a sufficient level of mental health stability, that she persisted with allegations that the father had engaged in sexual abuse of the children and that she presented as a risk to them.
Dr B also did not consider that the orders sought by the mother would serve the children’s interests, were impractical and not viable. The idea that the children would transition to the care of the mother in circumstances where little or nothing was known as to her personal circumstances and effectively sever all relationship with the father, was abject fantasy on the part of the mother.
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 am cognisant of the primary and additional considerations in respect of the matters as set out in ss 60CC(2) and (3) 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.

Each of the parties seek an order for sole parental responsibility for the long term care, welfare and development of the 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 also bring to account the matters raised by the father that the uncertain status of the mother’s mental health, her propensity to engage in risky behaviour such as substance abuse and the potential for the orders sought by the mother to significantly interfere with the management of the children may well place them at risk of physical or psychological harm.
The ICL is steadfast in support for the orders sought by the father and considers that the proposal of the mother would place the children at risk.
PARENTING CONSIDERATIONS
Meaningful relationship
As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111] “a chance of a meaningful relationship…which is beneficial to” the child was likely to be to the child’s advantage and that the absence of such a relationship had “the potential to cause [the child] harm in the long term”.
As considered, the Court is required to focus on the practicality of each of the party’s proposal and to consider the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
The father agrees that it is important for the children to maintain a relationship with the mother. X currently does not spend much time with the mother and whilst there has been some level of communication with the mother, physical contact has been minimal if not non-existent since November 2022.
The evidence does not assist in an understanding of X’s reluctance to engage with the mother. There is no suggestion that he is fearful of the mother or that his reluctance is based upon some threatening or frightening behaviour. It may be that X perceives the mother as placing the stability that he appears to enjoy in the father’s home, at risk. The further possibility is that at age 13, the experience of the ongoing litigation and that the mother’s chaotic presentation, is too difficult for him. Having said that, there is nothing in the evidence that would speak against X resuming a more fulsome relationship with the mother.
The lack of engagement between X and the mother is to be contrasted with the observations of a positive and caring relationship that exists between the mother and Y.
There appears to be no difficulty with Y attending time spending with the mother, even though X is reluctant to do so, and the observations of the mother’s time with Y, as set out in significant detail in the contact visitation observational reports prepared by the contact service (Exhibit “14”) provide good evidence of the benefit that Y gains from ongoing contact with the mother.
Given the history of the matter and the concession by the father that the mother provided a high level of care for the children both in terms of their physical, emotional, and psychological needs prior to separation, but for her own dysfunction, the mother has much to offer.
Meaningful relationship is a legal construct and is best understood by the relationship having substance, engagement, and involvement.
The father seeks that the mother’s time continues to be the subject of supervision and in that regard, he is prepared to pay for the costs of professional supervision. The mother is in no position to do so and if ongoing supervision is considered to be necessary, that aspect alone would likely result in there being no relationship between the children and the mother other than by remote or electronic communication.
The observational reports of the mother’s time with Y highlight the importance of physical interaction.
The intractable position of the mother is that if the children remain in the primary care of the father, then her time with them must be necessarily limited in case they learn of the mother’s whereabouts and transmit that information to the father. This limits the ability of the mother to engage with the children in a significant, substantial and involved manner.
I consider that a chance of a meaningful relationship may well benefit the children providing it is safe for it to occur and is practically possible.
Are the children at risk
In Harridge & Harridge [2010] FamCA 445 Murphy J, referred to N & S & The Separate Representative (1996) FLC 92-655, and proceeded to adopt the following list of inquiries with respect to risk assessment and analysis:-
73.      …
(1)       What harmful outcome is potentially present in this situation?
(2)       What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
(B Mahendra, ‘Psychiatric Risk Assessment in Family and Child Law’ (2008) 38 Family Law 569).
The mother alleges that the father perpetrated family violence and coercive and controlling behaviour. I have given careful consideration to the allegations of the mother and do not consider that the mother has presented any evidence that would enable a finding on the balance of probabilities that the father engaged in aggressive or harmful conduct as alleged.
Whilst not conclusive, I bring to account the mother’s evidence of an alleged assault by the father by pushing the mother into the steering wheel of her car in late 2018 with the consequence of broken ribs.
The father was charged with offences in mid-2019 resulting in a Provisional ADVO with the mother as the protected person.
The criminal proceedings were part-heard, and all charges were ultimately dismissed in early 2021.
The father was not significantly challenged in respect of the mother’s allegations of family violence.
The father contends that whilst it is in the interests of the children that they spend time with the mother, supervision is required.
The requirement of supervision is supported by Dr B given the potential for the mother to interrogate the children as to whether they have been subjected to sexual abuse or physical assault by the father. There is no evidence that the mother is likely to gain insight into the potential damaging consequence of her unjustified belief that the children are at risk in the father’s care.
Dr B also raises the potential for the mother’s current mental health status to be adversely impacted should there be a significant stressor that presents.
At present, the mother appears to have achieved a level of mental health stability and her evidence as to her conduct, her poor lifestyle choices and how that could adversely affect the children, was presented with a disarming level of frankness.
Even so, the mother was not prepared to resile from her belief that the father has perpetrated sexual and physical abuse on the children, and it may be an explanation for X’s reluctance to engage with the mother as and from 22 November 2022.
In summary, the evidence does not support a finding that the children are at risk in the father’s care but is suggestive of a cautious approach in respect of the time that the children spend with the mother even should she be prepared to engage with the children in a manner that may well have the potential to reveal her whereabouts.
Wishes of the child
The children are clear both by their expressed wish, in terms of X, but by reasonable implication, in respect of Y, that they remain living with the father.
This is not a case where the Child Expert gave significant weight to the wishes of the children. X, whilst on the spectrum, is high functioning however Y, is more significantly affected. Up until relatively recently, Y was non-verbal. Whilst that has now changed, the evidence does not suggest that significant weight should be placed on Y’s expressed wishes but rather consideration should be given to the extent of the children’s development.
It is unlikely that X will spend time with the mother unless he is prepared to do so. The evidence should not be seen as unnecessarily pessimistic of an outcome whereby X spends time with the mother. His reasons for not doing so at present are unclear and do not have a readily evident basis for refusal.
The evidence of Dr B, which corroborates the father’s evidence of the manner in which the children are progressing, is a powerful indicator of the stability and resultant benefit to the children from their continued residence with the father.
It is significant that the current circumstances have been in place now for four and a half years. The children have the advantage of the involvement not just of the father but of the maternal and paternal grandparents and the complex but appropriately structured care arrangements for each of the children.
Y clearly gains significant benefit from seeing his mother and under observation, her conduct is appropriate and caring.
The nature of the relationship with the parties and others
The children’s primary attachment is with the father. He has managed their care, welfare and development for four and a half years and the evidence from those who interact with the children is that their care and resultant development is at a high level.
The reality is that the children have not spent much substantive time with the mother. As considered, it is hoped that Y will continue a relationship with the mother and that when he is ready to do so, X will also spend time with her.
The current arrangement in respect of electronic communication, supervised time with Y, and the potential for there to be an extension of time in the future, is the outcome that is most likely to benefit the children.
The likely effect of any change in the children’s circumstances
The father does not propose any significant change to the current arrangements. It may be that as the children age, their ability to self-protect would suggest that the rigor of supervision is unnecessary however, the mother’s proposal involving the children to come into her primary care in untenable and not supported on the evidence.
Dr B was properly concerned that the mother’s proposal would not enable continuity and support services that have been carefully put in place by the father. There may not be the support of the maternal and paternal grandparents and the consequence of the mother’s proposal namely, that the children would only see the father on a strictly supervised and limited basis, is contrary to the evidence.
Moreover, there is no evidence presented by the mother as to her living circumstances, who resides in her current accommodation, where the children would go to school, and how they would be cared for on a day-to-day basis.
Family violence
I have not found that the father perpetrated family violence as alleged by the mother. The father does not present as a risk to the children but rather the evidence supports a finding that his care has been of a high standard and has resulted in the children developing appropriately and being well supported.
The advantages and disadvantages of the separate proposals of the parties
The mother seeks orders that would see the children transition to her primary care. The mother has not presented any evidence that would establish the advantages of her proposal. The evidence does not support a finding that the children are currently at risk in the care of the father and as such, it is difficult to understand the mother’s case as to why a change is necessary.
A further consequence of the mother’s proposal is that the children would thereafter have a very limited relationship with the father. Such an outcome would not be warranted, nor would it be in the children’s best interests.
It is a matter for the mother as to the extent to which she feels comfortable engaging with the children given her fear that the father might gain knowledge of her whereabouts.
The mother’s fear of the father gaining information as to where she lives is not supported on the evidence.
The advantage to the children remaining with the father is that they have a high level of stability and have the support of their grandparents. The evidence supports a finding that the father has put in place a high level of supportive services and that the children are thriving as a result.
The Child Expert did not consider that it would be in the children’s best interests to leave the primary care of the father but that it might be possible for them to spend more time with the mother if some checks and balances could be put in place that ensured the mother’s mental health was stable and she understood, and was prepared to accept, that she should not convey her own misgivings in respect of the father to the children.
Are the orders sought by each of the parties practical?
The orders sought by the mother are not practical. There is no evidence as to the mother’s current circumstances and the mother’s reasons for non-disclosure were unimpressive. It is a matter entirely for the mother but the consequences are that the Court has not been able to assess the full extent of the mother’s proposals.
A different position arises in respect of the father. His circumstances are well understood. The extent to which the children’s grandparents are involved is of significant benefit to the children and on every assessment, whether it be observed interaction, or the detailed Family Assessment Report of Dr B conducted in 2019 and then in 2023, there is no credible complaint in respect of the father’s care and support of the children.
I consider that there is no merit in the mother’s proposal that the children transition to her primary care. The issue is the extent to which the children will spend time with the mother in circumstances where the mother’s attitude towards the father may well be a self-fulfilling prophecy.
PARENTAL RESPONSIBILITY
Parental responsibility is to be informed by what is in the best interests of the children.
I have given careful consideration to the orders sought by the parties. In circumstances where the children should properly remain in the care of the father and neither party seeks an order other than sole parental responsibility, such an order in favour of the father should be made.
CONCLUSION
The father seeks that the children live with him but spend supervised time with the mother each alternate Sunday between 2.00 pm and 4.00 pm with the mother’s time to be the subject of supervision.
The father agrees to contribute the sum of $250 for each supervised visit with the mother to pay the balance of the costs associated.
The mother does not propose any alternative other than the children living with her and spending supervised time with the father.
As considered, the orders sought by the mother would not be in the children’s best interests.
The proposal of the mother leaves a lacuna in terms of what is to occur into the future.
Assuming that the children remain living in the primary care of the father and that there could be an order for the children to spend time with the mother the issue then arises as to the extent of the supervision.
The ICL proposes that the mother’s time should be the subject of supervision each Sunday but that as and from 29 June 2024, the time should be extended and that the obligation for supervision should be removed provided that the mother maintains good mental health stability.
Thereafter the mother’s time should be unsupervised and extend from 10.00 am until 5.00 pm on alternate Sundays.
I consider that a more cautious approach should be put in place than as proposed by the ICL but less restricted than the father’s proposal.
The children should spend supervised time with the mother until 29 June 2024.
Thereafter, the extended time proposed by the ICL is reasonable but it should be subject to the mother being able to nominate a shorter period if she is unable to engage with the children given her reluctance for them to attend her current home.
There is some contention on the evidence as to whether the mother’s time should be on Sunday or Monday. At present, it is on Monday, but I accept that is inconvenient to the children given their school and other curricular and extra-curricular commitments.
Moreover, the mother’s preference for Monday as opposed to Sunday is unconvincing. In evidence, the mother revealed that she was not generally available on Sunday’s because she had taken on a commitment to care for children of the members of a local church. Whilst the mother’s current commitments may be commendable, her primary obligation is to facilitate time spending with the children in a way that will best support them.
I propose to make orders as sought by both the father and the ICL that the mother’s time, if she chooses to take it, will occur on Sunday.
I am alive to the potential that X will continue to resist spending time with the mother. The evidence is that X has not spent time with the mother since November 2022. A period of eleven months has now elapsed and there is no evidence that will enable me to make a finding that if ordered, X would attend time spending with the mother. I propose to enable X to spend time with the mother subject to his wishes.
There is some basis for the orders sought by the ICL that the mother provide information to the father as to her mental health prior to the commencement of unsupervised time.
The orders sought by the ICL are not unreasonable and do no more than require the mother to be proactive in providing some basis for the father to have comfort that the children, but more likely Y, will be appropriately cared for when spending time with the mother.
PROPERTY
The proceedings relate to settlement of property arising from a de-facto relationship spanning nine years from mid-2009 until the date of final separation on 21 October 2018. The parties are in agreement pursuant to s 90RD of the Act, it is appropriate for there to be a declaration that a de-facto relationship existed between the parties from the date of commencement of cohabitation to the date of separation.
Relevant to the proceedings are the parenting orders that provide for the children to remain in the primary care of the father but to spend limited and conditional time with the mother.
By order made 7 June 2019, the amount of $3,500 paid by the father to meet the expert fees in respect of the 2019 Family Report, is to be adjusted in the final property division.
ORDERS SOUGHT
The father seeks orders summarised as follows:-
(1)That the father retain the property at C Street, Suburb D in the state of New South Wales (“the Suburb D property”) and be solely liable for the mortgage secured over the Suburb D property.
(2)Pursuant to Orders made 7 June 2019, the amount of $3,500 paid by the father to meet the expert fees for the expert report, be adjusted in the final property division.
(3)That subject to these orders, the father be declared to be the sole legal and beneficial owner of all his right, title, and interest in and to:
(a)All cash at bank and moneys invested by him in his sole name;
(b)All furniture and personal effects in his possession;
(c)Motor Vehicle 1 vehicle registration plates …; and
(d)Any superannuation entitlements received by the father and invested by him or on his behalf.
(4)That subject to these orders, the mother shall be declared to be the sole legal and beneficial owner of all her right, title and interest in and to:
(a)All cash at bank and moneys invested by her in her sole name;
(b)All furniture and personal effects in her possession; and
(c)Any superannuation entitlements received by the mother and invested by her or on her behalf.
The father also seeks to bring to account the transfer, by Order made 7 June 2019 of an on-site mobile home by way of partial settlement of property at an agreed value of $30,000.

The mother seeks orders summarised as follows:-
(1)That within 42 days of the date of these orders, the father pay the mother the settlement sum of $250,000 into her nominated bank account;
(2)That between 10.00 am and 5.00 pm on the second Saturday following the making of these orders, the father permits the mother, by her personal representatives, to attend at the Suburb D property to collect the mother’s personal belongings.
(3)That pursuant to ss 90XT(1)(a) and 90XT(4) of the Act, a base amount of $131,979 is to be considered a splittable payment and transferred from the father’s interest in the Superannuation Fund 1 (Fund) to a fund nominated by the mother.
(4)That except as may be required to comply with the orders each party shall be solely entitled to the exclusion of the other to all property in the name and or possession of each party as at the date of these orders and for that purpose bank, credit union, building society and other like deposit or credit accounts are deemed to be in the possession of the person named as the account holder and choses in action are deemed to be property.
(5)That each party shall be solely liable for, and will indemnify the other against, any and all liabilities attaching or relating to the property in their respective name and possession.
(6)That in default of the father paying the settlement sum to the mother, then the Suburb D property shall be placed on the market for sale by public auction upon such terms and conditions as the parties agree.
CHRONOLOGY
The chronology of the parties is as set out below:-

DATE EVENT

1975 Date of birth of father

1980 Date of birth of mother

2006 Father purchases Suburb D property for $375,000 with a mortgage of $351,049

2009 Parties commence cohabitation

2009 – 2010 Father commences a business in partnership with a friend

2010 Father is employed in the hospitality industry as a manager

Late 2014 Father purchases Motor Vehicle 2 by increasing the Suburb D property mortgage

Late 2016 Parties purchase mobile home at R Accommodation for $30,000. mobile home purchased from the mother’s parents

Mid-2016 Father purchases Motor Vehicle 1 for $51,669 by increasing the Suburb D property mortgage

November 2018 Parties separate

Early 2019 Mother receives the mobile home for an agreed value of $30,000

Mid-2019 Following the return of Motor Vehicle 2 motor vehicle from the mother to the father, the motor vehicle is sold for $13,000
SCHEDULE OF ASSETS AND LIABILITIES

The Court has the benefit of receiving a balance sheet filed 5 April 2023.
Assets

Ownership Description Father’s value Mother’s value

Father C Street, Suburb D $850,000 $1,200,000

Father Motor Vehicle 1 $25,000 $25,000

Father S Bank Cash Management Account ending …18 $100 $100

Father S Bank Offset Account ending …35 $2,000 $1,917

Mother Commonwealth Bank Account ending …13 $48

Mother NAB account ending …43 (as trustee for X) NIL

Mother NAB account ending …01 (as trustee for Mr E) NIL

Mother NAB account ending …34 NIL

Father Furniture and contents NIL E $10,000

Total $877,100 E $1,237,065
Addbacks

Ownership Description Father’s value Mother’s value

Father ATM withdrawals $18,000

Total $0 $18,000
Liabilities

Ownership Description Father’s value Mother’s value

Father S Bank Home loan account ending …59 $479,627 $487,401

Father S Bank Personal loan account ending …94 $4,665 $5,845

Father S Bank Visa Credit Card ending …38 $1,041 $5,604

Father Loan from parents $120,000 NIL

Mother Visa Card Unknown $5,974

Mother Unpaid legal fees – T Lawyers & Associates $16,491

Mother Unpaid legal fees – U Lawyers $19,741

Mother Dr V unpaid invoice $5,775

Mother W Financial Service money finance as at 20 September 2022 $23,113 $23,113

Mother BB Financial Services $4,703 $4,703

Mother HECS/HELP Loan $12,384 $14,423

Mother Centrelink Debt $3,979 $3,979

Total $649,512 $593,049
Superannuation

Ownership Name of Fund Type of interest Father’s value Mother’s value

Father Superannuation Fund 2 (as at 14 March 2023) Accumulation interest $272,379 $271,959

Mother Superannuation Fund 1 Accumulation interest $3,950 $6,643

Total $276,329 $278,602
ISSUES IN DISPUTE

The parties were not able to agree the value of the Suburb D property however, consequent upon the Valuation Report dated March 2023 being presented, the Suburb D property is now agreed at $850,000.
I do not propose to bring to account the relatively modest amounts held by the parties in their respective bank accounts.
The parties did not present any valuation evidence as to furniture and effects, however whilst neither party provided any valuation evidence, in the Amended Financial Statement of the father dated 20 April 2023 and the Financial Statement of the mother filed 11 April 2023 each of the parties bring to account furniture and effects in their separate possession in the sum of $5,000.
The mother seeks to addback the sum of $18,000 based upon her contention that during the course of the relationship, the father spent significant sums on gambling and an illicit drug and a consideration of bank records between 16 July 2018 and 15 April 2020, shows purported cash withdrawals by the father.
The contention is that the amounts should be added back on the basis that it has been deliberately or wantonly wasted by him. (See AJO v GRO (2005) FLC 93-218 and Kowaliw & Kowaliw (1981) FLC 91-092).
Each of the parties have personal loans and credit card liabilities and whilst they are matters that reflect the current financial circumstances, the amounts involved are modest and no evidence was presented which sets out the manner in which the liabilities accrued.
A more contentious issue is that the father asserts that he borrowed $120,000 from his parents. In part, the father’s contention is that arising out of the false allegations of the mother, the father incurred legal costs to defend the criminal proceedings in the sum of $43,117.
The balance of monies provided by the father’s parents were used to supplement the outstanding legal fees arising out of the litigation.
It is acknowledged that the mother also incurred significant legal fees which remain unpaid to her former solicitors.
The mother also admits to owning a motor vehicle, the details of which she refuses to disclose. It is likely that the mother borrowed money from W Financial Services in the sum of $20,224 to purchase her motor vehicle. I propose to exclude from the liabilities of the parties the mother’s legal fees and the outstanding amount to W Financial Services money.
In addition, there is little or no evidence to understand the manner in which the mother incurred or has a liability to ‘BB Financial Services’ in the sum of $4,703, HECS/HELP Loan of $14,423 and Centrelink debt in the sum of $3,979 nor the father’s S Bank loan and Visa card.
The parties are broadly agreed as to the accumulation interest of the father in Superannuation Fund 2 and of the mother in Superannuation Fund 1.
ATM withdrawals-addback
The evidence of the mother is that by reference to relevant bank statements between 16 July 2018 and 15 April 2020, the father made cash withdrawals assumed by the mother to be used for the purpose of illicit substances and gambling.
The initial observation is that the period under consideration is predominantly post-separation of the parties.
The children have lived with the father in his primary care since separation. There was no order that required the father to pay either spousal maintenance to the mother or child support.
In circumstances where the father has effectively fulfilled his obligations, a cautious approach should be adopted when considering the treatment of how the father spends his money post-separation. (See Gollings & Scott (2007) FLC 93-319).
The mother would seek to categorise the purpose of the father’s expenditure as being for gambling and illicit substances because she says that it would be consistent with the father’s conduct during the relationship.
The mother’s evidence is inadequate to establish that the expenditure, whilst potentially significant over a period of two years can be reliably traced to gambling and the purchase of illicit substances.
I do not consider that the evidence relied upon by the mother would establish that the father has wasted property such that it should be added back.
I do not consider that the purported expenditure has relevance either in respect of an addback, the issue of contribution between the parties, or future needs pursuant to s 90SF(3) of the Act.
Loan from parents
There is some uncertainty as to how the father utilised the sum of $120,000 borrowed from his family. I am satisfied that money was provided and whilst it is likely to have been spent on legal fees, it has not been established the extent and breakdown of the father’s expenditure in terms of his criminal proceedings and the current litigation.
It has not been established by the father that the complaint made which, following investigation, resulted in charges being laid against the father is as a result of fabrication or malicious intent by the mother. The fact that the charge was ultimately dismissed consequent upon the mother not attending to complete her cross-examination cannot be extrapolated to a finding of fabrication.
Each of the parties have incurred significant legal fees and as has been the subject of earlier comment, the extent of the investigation by the parties’ solicitors and the presentation to the Court of voluminous trial material significantly obfuscates the narrow issues of contention between the parties.
Whilst it may seem somewhat unfair that the father has the advantage of money provided by his family, in the absence of any loan agreement or a better understanding of the evidence as to the father’s obligations, it will be a matter for him to determine how he repays his parents.
For her part, the mother sets out in significant detail her concerns in respect of the conduct and representation by her separate solicitors.
I do not bring to account the money loaned from the father’s parents for the payment of his legal fees including in his defence of the criminal charges laid.
The father seeks to bring to account the sum of $30,000 representing the agreed value of the mobile home. The mother contends that the mobile home has been sold and the money received was used for her legal fees.
In La Costa & La Costa [2007] FamCA 1176, following a consideration of NHC & RCH (2004) FLC 93-204, the following is said at paragraph [43]:
“2.10 It is well settled that save in exceptional circumstances a trial Judge should deal with the property as at the date of the hearing and make adjustments taking into account the various matters set out under s.79. (Wells v Wells (1977) FLC 90-285; Wardman v Hudson (1978) FLC 90-466; In the Marriage of Geyl 7 Fam LR 219). However, the particular justice of the case may make it appropriate to notionally add back assets which have been demonstrated to have been dissipated either during the marriage or post-separation. Normally it is necessary to demonstrate an appropriate basis for doing so, for example by wastage such as gambling or extravagant living...
(As per original)
I am satisfied that the mother utilised the proceeds of the sale of the mobile home in the sum of $19,000 for her legal fees.
As such, I consider that the agreed value of the mobile home should be brought back to account.
ADJUSTED SCHEDULE OF ASSETS AND LIABILITIES
Based on these considerations, I set out the existing legal and equitable interest of the parties as follows:
Assets

Ownership Description Value

Father C Street, Suburb D $850,000

Father Motor Vehicle 1 $25,000

Father Furniture and effects $5,000

Mother Furniture and effects $5,000

Mother mobile home proceeds $19,000

Total $904,000
Liabilities

Ownership Description Value

Father S Bank Home loan Account ending …59 $479,627

Total liabilities $479,627

Net non-superannuation assets $424,373
Superannuation

Ownership Description Value

Father Superannuation Fund 2 (as at 14 March 2023) $272,379

Mother Superannuation Fund 1 $3,950

Total $276,326
IS IT JUST AND EQUITABLE TO EMBARK UPON PROPERTY DIVISION?

Each of the parties seek orders by way of settlement of property.
I have identified the legal and equitable interests 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 had the following assets:-
(1)C Street, Suburb D                 $450,000 (estimate)
(2)Household contents               $10,000
(3)Personal savings                    $10,000
(4)Motor Vehicle 3                    $15,000
(5)Superannuation   $50,000
The father also had substantial liabilities consisting of the following:-
(1)Mortgage (Suburb D property)          $375,000 (estimate)
(2)Car loan   $15,000
(3)Credit cards   $5,000
The father did not present evidence as to the value of the Suburb D property nor the extent of the mortgage and whilst I am prepared to accept that he held some net equity in the Suburb D property, his overall financial circumstances at the time of cohabitation should be considered as modest.
For her part, the mother concedes that she did not have any substantial assets at the time of cohabitation although she did own a motor vehicle and was possessed of some furniture, jewellery, and other items.
The mother denies that she had any debt.
The father’s contention is that during the course of the relationship, the mother did not hold secure employment but rather had started a business called “Z Company” and a subsequent business known as “CC Company” which produced very minimal income used by the mother for personal purchases.
The mother agrees that the income from her business was relatively minor but in any event, any income was used not just for her own expenses but also for the children.
The mother highlights that from 2018 she was able to generate income of $9,008, in 2019 her income was $8,887, in 2020 her income was $40,994 and in 2021 her income was $61,559.
There is some contention between the parties as to the remuneration received by the father during the course of the relationship. It appears uncontroversial that the father was employed in the hospitality industry from the date of cohabitation up to and including his current employment.
The father’s broad submission in respect of the mother’s financial contribution is summarised in his trial affidavit as follows:
49.I made all repayments on the home loan and paid for all day-to-day expenses, household bills, all items for the children and the school fees for the children. [The mother] has never financially contributed from the commencement of our relationship, as she did not have a consistent income during the relationship and only earned an income sporadically from businesses which she started for short periods of time. I do not believe that these businesses ever made a profit.
The mother counters the father’s contention by highlighting that over and above her financial endeavours, she was tasked with the primary care of the children and made a significant contribution as a homemaker.
The father concedes the mother’s involvement with the children up to the date of separation.
Following separation, the father continued to pay the mortgage repayments, personal loan repayments, utilities and other expenses relating to the children’s school fees.
Whilst it has not been quantified, it is likely to be a significant sum.
The current Child Support Assessment provides that the mother is assessed to pay child support in the sum of $210 per week. Again, the parties are not able to agree the extent of the outstanding child support payments and whilst there is a current review, the payment of child support by the mother has been of assistance to the father.
I bring to account the mother’s evidence that she received $10,000 from the estate of her late grandmother and that this was applied to the renovation of the kitchen in the Suburb D property.
I do not consider that the mother has presented evidence, which would enable a finding on the balance of probabilities, that the father withdrew thousands of dollars subsequently spent on an illicit drug and gambling.
The mother has not established that she was subjected to the physical abuse as alleged, but I do find that she was the primary carer of the children.
I propose to consider the contributions of the parties by adopting a global approach, which is considered more likely to produce a just and equitable outcome.
Given that the pool is modest, I consider that the contributions of the parties in respect of their property interests should be apportioned 60/30 in favour of the father.
SECTION 90SF FACTORS
Neither of the parties appear to have re-partnered.
The father relies on the assistance of the maternal and paternal grandparents in looking after the children which enables him to continue in his current employment as a manager.
By reference to the father’s Financial Statement dated 20 April 2023, his wage is $3,415 per week or $177,580 per annum. In addition, the father has an entitlement to $65 per week by way of Family Tax Benefit and whilst there is some uncertainty as to the appropriate current Child Support Assessment, it seems that the father receives $210 per week from the mother.
His income is predominantly utilised by the payment of income tax, contribution to superannuation and household expenses.
I accept that the father bears a significant financial obligation in respect of the ongoing care, welfare, and development of the children.
Given the orders that I have made, it is unlikely that the mother will incur significant cost arising from the children spending time with her.
For her part, the mother says that she is employed as in hospitality and earns $1,126 per week or $58,552 per annum. The income from the mother’s occupation is $450 per week supplemented by a work cover payment of $676 per week.
The mother considers that she is not yet able to return to full-time work because of her mental health diagnosis including anxiety, PTSD and her mental health condition.
The mother is also challenging the current Child Support Assessment.
The mother’s expenses are exacerbated by the costs of mental health treatment in terms of private health care and significant costs of ongoing medication.
The significant issues for determination arise from the father’s income but tempered by the costs in respect of the children in circumstances where the mother’s ability to contribute by way of Child Support Assessment or other payments is limited and uncertain. I propose to make an adjustment of 5 per cent in favour of the father.
CONCLUSION
The adjusted net non-superannuation asset pool is $424,373.
At 35 per cent, the mother is to receive $148,530.
The mother is to retain the following:-

Furniture and effects $5,000

mobile home proceeds $19,000

TOTAL $24,000

The mother is entitled to the sum of $148,530 and accordingly, she is entitled to receive a settlement sum of $124,530.
However, by Orders made 7 June 2019, the parties were to pay for the cost of the expert report equally and in the event the father was to cover the shortfall, it was to be adjusted in the final property division. The father paid the shortfall in the sum of $3,500. The mother's settlement sum is therefore to be reduced by $3,500 meaning that she is entitled to receive the settlement sum of $121,030.
SUPERANNUATION ADJUSTMENT

The mother seeks that a superannuation split of approximately 50 per cent of the splittable benefit to which the father is entitled.
I am not assisted by either party as to the nature of the superannuation interest of each of the parties other than the benefits are in the accumulation phase.
I accept the father’s evidence that he commenced the relationship an amount of approximately $50,000 standing to his credit.
The father has remained in full-time employment from the commencement of the relationship to the present date. It could not be said that the father did more than undertake employment which enabled the contribution to superannuation. The father’s employment and what might be considered as the fruits of his labour namely, his superannuation benefit, in part arises because the mother performed the duties of homemaker.
The superannuation entitlement of the parties is relatively modest and whilst I am not told as to the extent to which the father’s initial superannuation entitlement at the commencement of cohabitation would now be reflected in his overall benefit, doing the best that I can I propose to consider the contributions of the parties as to 60/40 in favour of the father.
Given that the total superannuation entitlements of the parties is $276,329, this represents a balance to the mother of $110,531, less her superannuation interest in Superannuation Fund 1 in the sum of $3,950, the splittable benefit to be transferred to the mother is $106,581.
ARE THE ORDERS JUST AND EQUITABLE?
The father cautioned the Court that if the settlement sum payable to the mother was beyond his borrowing capacity then this may result in the sale of the Suburb D property thereby creating instability and potential distress to the children.
I accept that the father should ideally retain the Suburb D property. Both children but in particular Y, would benefit from a retention of the local support services that have been put in place and the arrangements for the father’s care to be supplemented and assisted by the paternal and maternal grandparents.
Having said that, it cannot be the case that a just and equitable outcome should be the subject of downward adjustment for the mother just because the proposed order may cause disruption to the father.
The settlement sum payable to the mother is modest and I bring to account that once the proceedings are over and the father has discharged his liability towards his legal fees, he will have a significant surplus of income over expenditure.
No evidence was presented as to the extent of the father’s borrowing capacity and whilst I have given regard to the submissions made on behalf of the father that he would prefer a higher base amount in respect of the superannuation split rather than a settlement sum, given the age of the parties and in particular the mother who is 43 years of age, she may not satisfy a condition of release until at least 2040 when she would be 60 years of age.
It is reasonable that the father have 60 days to pay the settlement sum and I propose to order than in default of payment either whole or in part, the Suburb D property be sold and from the net proceeds of sale, the mother shall be paid such sum as shall remain outstanding pursuant to these orders together with default interest at the rate as set out in the regulations to be calculated from the date of default.
I make orders as appear at the commencement of these reasons.

I certify that the preceding three hundred and ten (310) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.
Associate:
Dated: 5 October 2023

File number(s):	PAC 5205 of 2018
Judgment of:	BERMAN J
Date of judgment:	5 October 2023
Catchwords:	FAMILY LAW – EQUAL SHARED PARENTAL RESPONSIBILITY – Where each party seeks sole parental responsibility – Where the Court finds that the children should live with the father – Consideration of best interests – Orders. FAMILY LAW – CHILDREN – With whom a party lives with and spends time with – Where the children live with the father and spend limited time with the mother – Where the children have special needs and require stability – Where the mother seeks a reversal of primary care – Consideration of the mother’s mental health and stability – Where the mother does not want to father to know her location – Where the mother’s proposal is untenable and not supported on the evidence – Consideration of the advantages and disadvantages of the separate proposals of the parties – Consideration of what time the mother should spend with the children – Consideration of supervision – Where the ICL proposes the mother provide an update as to her mental health prior to unsupervised time spending – Orders made for the children to live with the father and spend time with the mother. FAMILY LAW – PROPERTY – Where the parties were in a de facto relationship for nine years – Where the father made greater contributions – Where the father has the primary care of the children – Consideration of Addbacks – Orders.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) Division 12A, ss 60B(1), 60B(2), 60CC(2), 60CC(3), 60CC(2A), 60CA , 61DA, 61DA(2), 61DA(4), 69ZN, 69ZT, 69ZT(3), 90RD, 90SF
Cases cited:	AJO v GRO (2005) FLC 93-218 Baglio & Baglio [2013] FamCA 105 Gollings & Scott (2007) FLC 93-319 Harridge & Harridge [2010] FamCA 445 Kowaliw & Kowaliw (1981) FLC 91-092 La Costa & La Costa [2007] FamCA 1176 N & S & The Separate Representative (1996) FLC 92-655 NHC & RCH (2004) FLC 93-204
Division:	Division 1 First Instance
Number of paragraphs:	310
Date of hearing:	18 - 21 April & 5 - 6 July 2023
Place:	Heard in Parramatta, delivered in Adelaide
Counsel for the Applicant:	Ms Watson
Solicitor for the Applicant:	Watson Law Pty Ltd
Counsel for the Respondent:	Mr Iuliano
Solicitor for the Respondent:	Derham Houston Lawyers
Counsel for the Independent Children's Lawyer:	Ms Webb
Solicitor for the Independent Children's Lawyer:	Sarah Bevan Family Lawyers

PAC 5205 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR BECKWITH Father
AND:	MS DASS Mother
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	5 OCTOBER 2023

DATE	EVENT
1975	Date of birth of father
1980	Date of birth of mother
2006	Father purchases Suburb D property for $375,000 with a mortgage of $351,049
2009	Parties commence cohabitation
2009 – 2010	Father commences a business in partnership with a friend
2010	Father is employed in the hospitality industry as a manager
Late 2014	Father purchases Motor Vehicle 2 by increasing the Suburb D property mortgage
Late 2016	Parties purchase mobile home at R Accommodation for $30,000. mobile home purchased from the mother’s parents
Mid-2016	Father purchases Motor Vehicle 1 for $51,669 by increasing the Suburb D property mortgage
November 2018	Parties separate
Early 2019	Mother receives the mobile home for an agreed value of $30,000
Mid-2019	Following the return of Motor Vehicle 2 motor vehicle from the mother to the father, the motor vehicle is sold for $13,000

Ownership	Description	Father’s value	Mother’s value
Father	C Street, Suburb D	$850,000	$1,200,000
Father	Motor Vehicle 1	$25,000	$25,000
Father	S Bank Cash Management Account ending …18	$100	$100
Father	S Bank Offset Account ending …35	$2,000	$1,917
Mother	Commonwealth Bank Account ending …13	$48
Mother	NAB account ending …43 (as trustee for X)	NIL
Mother	NAB account ending …01 (as trustee for Mr E)	NIL
Mother	NAB account ending …34	NIL
Father	Furniture and contents	NIL	E $10,000
Total	$877,100	E $1,237,065

Ownership	Name of Fund	Type of interest	Father’s value	Mother’s value
Father	Superannuation Fund 2 (as at 14 March 2023)	Accumulation interest	$272,379	$271,959
Mother	Superannuation Fund 1	Accumulation interest	$3,950	$6,643
Total	$276,329	$278,602

Ownership	Description	Value
Father	C Street, Suburb D	$850,000
Father	Motor Vehicle 1	$25,000
Father	Furniture and effects	$5,000
Mother	Furniture and effects	$5,000
Mother	mobile home proceeds	$19,000
Total	$904,000