Bradbury & Lander - [2022] FedCFamC1F 548

Federal Circuit and Family Court of Australia
(DIVISION 1)
Bradbury & Lander [2022] FedCFamC1F 548

File number: CAC 239 of 2017

Judgment of: GILL J

Date of judgment: 2 August 2022

Catchwords:
FAMILY LAW – PARENTING – Where the father seeks sole parental responsibility for the child – Where the mother is impacted by mental health issues – Where the mother holds deeply entrenched views that the father has been abusive and neglectful towards her and her child – Where the mother has been exerting controlling and coercive behaviour and communication towards the father – Where there is risk that the mother’s behaviour and influence will negatively impact upon the child – Orders made for the child to live with the father, who will also have sole parental responsibility, and for the child to spend time with the mother.

FAMILY LAW – PROPERTY – Settlement in relation to short marriage with small pool – Where both parties are in a parlous financial position – Where caution is exercised in considering any adjustment of the limited assets held by the parties – Where the father sought no adjustment to property – Where the mother sought adjustments, including of superannuation – Where no procedural fairness had been accorded to the superannuation trustee – Spousal maintenance application dismissed – Assets to remain with the parties.

Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 65DAA, 72, 74, 75, 90XT, 90XZD, 102NA

Cases cited:
Aleksovski v Aleksovski (1996) FLC 92-705

Bevan v Bevan (2013) 49 Fam LR 387

Chorn & Hopkins (2004) FLC 93-204

DJM & JLM (1998) FLC 92-816

Dickons v Dickons (2012) 50 Fam LR 244

Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143

In the Marriage of Robb (1994) 490 FamLR 489

Jabour & Jabour (2019) FLC 93-898

Jollie & Dysart [2014] FamCAFC 149

Saska & Radavich [2016] FamCAFC 179

Stanford v Stanford (2012) 247 CLR 108

Strand & Strand (No 2) [2018] FamCAFC 247

Division: Division 1 First Instance

Number of paragraphs: 342

Date of hearing: 7 – 11 June 2021

Place: Canberra

Counsel for the Applicant: Mr Haddock

Solicitor for the Applicant: Infinity Legal

Counsel for the Respondent: Mr Stagg

Solicitor for the Respondent: Legal Aid ACT

Solicitor for the Independent Children's Lawyer: Ms Burgess

ORDERS

CAC 239 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR BRADBURY

Applicant

AND:
MS LANDER

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

GILL J

DATE OF ORDER:

2 AUGUST 2022

THE COURT ORDERS THAT:
Parenting orders
1.That Mr Bradbury (“the father”) has sole parental responsibility for the child, Y, (“Y”) born in 2013.
2.That Y shall live with the father.
3.That the father provide to Ms Lander (“the mother”), basic information relating to Y’s education, outside school care, extracurricular activities, therapeutic programs, general health, and well-being, by email at the commencement of each school term.
4.That the father provide to the mother, copies of Y’s school reports and any medical or psychological assessment reports within two weeks of receiving such reports.
5.That the mother may attend events at Y’s school to which parents are invited providing the father is not attending. The father must advise the mother the day before the event if he is NOT going to attend.
6.That the mother is restrained from contacting the father except by SMS limited to no more than 50 words and no more frequently than twice a week:
(a)To notify the father of Y requiring hospitalisation while in the mother’s care;
(b)To notify the father of any delay in arrival at changeover locations;
(c)To notify the father if she intends to be in Brisbane at Christmas holiday handover time and to confirm with the father whether he will also be in Brisbane at such times.

7.That Y shall spend time with her mother during each gazetted ACT school term, commencing on the first weekend following the commencement of the term, as follows:
(a)From after school each alternate Friday (or if the Friday is not a school day, from 3.00 pm) until the commencement of school the following Monday unless the Monday is a public holiday in which case until the commencement of school on the Tuesday.

8.That Y shall spend time with her mother during gazetted ACT school holidays as follows:
(a)In the school holiday periods following terms 1, 2 and 3, from after school on the last day of Term until 3pm on the fourth day following the end of school (that is, if school ends on a Friday, Y is to return on the following Tuesday).
(b)In the school holiday period following the end of term 4:
(i)In holidays commencing in even numbered years:
A.From 12.00 pm on Christmas Eve until 12.00 pm on 30 December;
B.From 12.00 pm on the Monday falling in the last full week of the school holidays until 12.00 pm on the Friday following.

(ii)In holidays commencing in odd numbered years:
A.From 12.00 pm on 29 December until 12.00 pm on 4 January;
B.From 12.00 pm on the Monday falling in the last full week of the school holidays until 12.00 pm on the Friday following.

9.That changeovers for the purposes of these orders shall occur as follows:
(a)The mother shall collect the child from school at the commencement of her time with the child, and return her to school if it is a school day;
(b)The father shall deliver the child to, and collect the child from the mother’s home on non-school days by waiting outside the mother’s home. The mother shall cause the child to walk to the father’s car but the mother must remain within the doorway of her home;
(c)If the mother and father are both in Brisbane at handover time during the Christmas school holidays, the mother will collect the child from, and return the child to, the home of Ms E, or another location nominated by the father, but must not enter the premises at any time, nor allow her agent to do so;
(d)If either of the parties is not in Brisbane during the Christmas school holiday changeover time then such changeover shall occur as set out in 9(b) above; and
(e)The father and mother may nominate an agent to collect or return Y providing that the maternal grandmother, Ms B Lander, is not the agent and is not permitted by the mother to attend any changeovers.

PROPERTY ORDERS
10.That, unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any subsequent Orders:
(a)Each party be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these Orders;
(b)That money standing to the credit of the parties in their sole bank accounts be the property of the person named on said account:
(c)Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(e)Each party be solely liable for and indemnify the other against any credit card debt or personal loans in that party’s sole name.

11.That the $19,500 debt owed by the mother to the father in respect of the outstanding costs orders is assigned to the mother such that the debt is expunged.
12.That within a period of four months from the delivery of these orders that the father cause to be deposited into an account nominated by the mother in writing the sum of $40,000 (Forty Thousand Dollars).
13.In aid of the immediately preceding order the mother shall within fourteen days nominate to the father in writing the account details for the deposit of the monies referred to in that order.
14.All outstanding applications before the Court be dismissed.

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 the pseudonym Bradbury & Lander is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
introduction

These proceedings concern the property of the parties and the arrangements for the care, welfare and development of their child, Y, born in 2013 and now aged almost nine. They occur in a context of multiple contested interim applications that have resulted in Y, since separation, primarily living with the father, and gradually spending greater and greater time with the mother. They also occur in the context of final family violence orders currently being in place between the parties, multiple contraventions of orders being found against the mother, the mother being criminally dealt with for breach of family violence orders, and a vast gulf between the parties as to what the appropriate arrangements should be for Y.
In short, the father seeks limited supervised time for Y with the mother, whilst the mother seeks an unequally shared care arrangement where Y lives with her during the school week and with the father on weekends. The Independent Children’s Lawyer (“the ICL”) seeks a resolution between the parties that would result in Y spending unsupervised time with the mother in a fortnightly pattern, whilst living with the father.
The parties come from Queensland. They were both residing in Brisbane during the commencement of their relationship in 2010. The father moved to City NN in 2010 and the parties continued their relationship on a long-distance basis. They married in Brisbane in 2012.
The mother moved with her first child, X to City NN in 2013. X was born to the mother and her first husband, Mr Balsdon, in 2001. X is currently living in Brisbane.
As aforementioned, Y is the only child from the relationship between the parties. The parties separated in early 2017, and they divorced in 2020.
The relationship between the parties was a dominant issue in the proceedings. The mother is highly critical of the father and asserts that the father has perpetrated family violence against her. The father, accepting that there was violence in the relationship, describes the mother as the coercive and controlling party in the relationship.
Each party asserts that the other suffers from mental health issues and that there are serious deficiencies in his or her capacity to parent.
The father founds his application that there be supervised time only with the mother on four issues. Firstly, he relies upon the proposition that, in the context of her attitude to the father, that she will exercise influence over Y and damage the relationship between Y and the father. Secondly, he relies upon the mother’s conduct and its impact on the father and his capacity to parent. Thirdly, he asserted that Y is neglected in the mother’s household. Fourthly, he asserted that Y is exposed to the mother (and her mother’s) unbridled behaviour.
The mother expressed concerns that the father poses a risk to Y, he having engaged in family violence to the mother and Y, and that his parenting capacity is compromised.
The child related issues found their factual form in contests between the parties as to their mental health, the nature of violence between them and the exercise of coercion and control between them, the manner of communication between the parties, and the degree to which this also evidenced coercion and control, the father’s non-compliance with orders for Y to spend time with the mother in the weeks leading up to the trial, parenting capacity and the nature of each parent’s relationship with Y.
The property dispute was less complex, the key difficulty arising from the level of indebtedness of each of the parties meaning that their combined debts outweigh the assets of the relationship.
The final hearing
The final hearing in this matter proceeded in an unorthodox manner. The mother had been given repeated directions to file her affidavit material for the trial, with repeated, lengthy extensions to allow her to do so. She had also been repeatedly warned that her failure to comply with the directions may leave her in the position that she would not have evidence to present to the Court at the hearing. The mother had further been warned that consideration as to whether she could rely upon material filed outside the direction, would necessarily take into account the nature of the material, and whether to allow it would be to deprive the father of procedural fairness.
The mother failed to file a final trial affidavit until the morning of the trial. That affidavit was in excess of 130 pages plus annexures and, the Court was told, did not comprehensively deal with the child related aspect of the proceedings.
The mother sought an adjournment of approximately three months to allow her to prepare further material, on the basis that if she did not the trial could proceed without such.
The adjournment was refused, and the mother was refused leave to rely upon the affidavit that she had filed the morning of the trial.
Issues also arose in relation to the mother’s legal representation. Despite having secured various lawyers to provide legal representation in the months leading up to the trial, pursuant to arrangements made in respect of s 102NA of the Family Law Act 1975 (Cth), the mother only confirmed full instructions to run the trial to her current legal representatives (a highly experienced in-house solicitor at the Legal Aid Office instructing a highly experienced member of the private bar) at the commencement of the trial, and shortly prior to the mother unsuccessfully applying to adjourn the trial. Accommodations were given to counsel to allow for the late instructions.
The mother’s failure to file her affidavit material in a timely manner had an effect on the conduct of the trial, significantly limiting the evidence available to resolve the contest between the parties. However, those limitations did not lead to a restriction in the matters about which the father was able to be cross-examined. It did, however, limit the cross-examination of the mother so as not to permit her to effectively lead evidence-in-chief in response to the ICL’s cross-examination, an effect that would have led to procedural unfairness to the father.
This effect also led to limited evidence in relation to the property dispute between the parties, and a late developed joint balance sheet, several iterations of which were presented during the trial.
Although the mother considered making an application to rely on previously filed affidavits, the application was sensibly not pursued. It would have fallen foul of the same procedural fairness issues that meant that the late filed affidavit should not be admitted. Further, the mother’s previous affidavits were replete with argument, and counsel for the mother identified that the factual matters that he might have extracted from those affidavits could be extracted from the Family Report in any event.
One of the other oddities of the trial was that there was limited evidence as to what had happened between the parties, and of the care of Y, in the period of 2019 through to the trial in 2021, despite detailed evidence produced by the father in regards to the period prior to that. The father described that the mutual family violence orders had limited the communication between the parties.
The orders sought by the parties
The father pursues orders for Y to live with him, for him to exercise sole parental responsibility, and for Y to spend limited supervised time with the mother, on potentially as few as four occasions each year.
The mother pursues orders that she have sole parental responsibility for Y, and that Y spend weekdays in her care, from the commencement of school on a Monday morning until the after school or after child care on a Friday.[1] She says that Y should spend her weekends with the father, because he is more physically able and can do more physical things with the child during the weekend time.[2]
[1] Transcript 11 June 2021, p.247 lines 38–42.
[2] Transcript 11 June 2021, p.247 lines 42–44.
The ICL submitted that orders be made for Y to live with the father, spending time with the mother fortnightly from after school on a Friday until Sunday afternoon, with a strict regime for handover. She sought orders for the mother to have two blocks of four days during the school holiday periods.
The father seeks that there be no adjustment of property.
The mother seeks that the property be adjusted such that she, retains the property that she currently holds, there is equal division of the parties’ combined superannuation from the commencement of the relationship, she receives a payment of $119,500 ($19,500 being the father foregoing the outstanding costs award that has been made in his favour) from the father and weekly spousal maintenance until she remarries.
Documents relied upon
The Applicant Father
The father relied upon:
(a)Amended Initiating Application (Family Law) of Mr Bradbury filed 29 October 2020;
(b)Affidavit of Mr Bradbury filed 29 October 2020;
(c)Financial Statement of Mr Bradbury filed 29 October 2020;
(d)Affidavit of Ms T filed 29 October 2020;
(e)Affidavit of Ms E filed 29 October 2020;
(f)Affidavit of Ms S filed 29 October 2020;
(g)Psychological Report regarding the mother by Ms L dated 21 August 2017 as a Single Expert;
(h)Psychological Report regarding the father by Ms L dated 21 August 2017 as a Single Expert;
(i)Family Report by Ms F dated 15 June 2018;
(j)Report of Dr K regarding the mother dated 25 October 2017; and
(k)Case Outline filed 28 May 2021.
The Respondent Mother
The mother relied upon:
(a)Affidavit of Mr Lander filed 28 May 2021.
The Independent Children’s Lawyer
The ICL relied upon:
(a)Psychological Report regarding the mother by Ms L dated 21 August 2017 as a Single Expert;
(b)Psychological Report regarding the father by Ms L dated 21 August 2017 as a Single Expert;
(c)Report of Dr K regarding the mother dated 25 October 2017; and
(d)Family Report by Ms Z dated 5 May 2021.
Principles for child related proceedings
The paramount consideration in determining what orders should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), the best interests of Y. That is to be determined on consideration of the matters set out at s 60CC of the Act, in the legislative context of the objects and principles set out in s 60B of the Act and, where applicable, following the reasoning process set out at s 65DAA of the Act.
The objects and principles contained at s 60B of the Act provide that:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

It may be readily recognised that the objects and principles do not all necessarily point in the same direction.
The Court is required to evaluate the s 60CC considerations to the extent that they are at “issue in the proceedings.”[3] The considerations are to be assessed to the extent that they are “relevant to the particular circumstances of the child”[4] This calls for a focused examination of the considerations that arise in the individual case. The considerations that require closest attention can usually be identified from the matters that the parties ultimately placed emphasis upon in the trial.
[3] Phillips & Hansford (No 2) (2019) 60 Fam LR 160 at [43].
[4] Jollie & Dysart [2014] FamCAFC 149 at [45].
As with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes. It is their synthesis that determines best interest.
In this case, the parties focussed upon a number of areas. The mother contended that Y is at risk of harm in the father’s household, flowing from the father’s temper, and that the father is lacking in his capacity to provide care for Y, particularly emotionally, but that he is also compromised in his capacity to give her attention and to maintain the household. The mother further points to limitations in the father’s capacity as revealed by his pursuit of supervised time with the mother which would compromise Y’s relationship with the mother.
The father’s contentions revolve in large part around Y being exposed to the mother’s anger, and/or attitude to the father, in a manner that will be detrimental to Y’s relationship with the father and the benefits that she may receive from that. He relies upon the potential that the mother’s capacity to provide for Y is compromised by the uncontrolled nature of her and her family’s anger and by physical limitations on the part of the mother.
Each of the parties sources these issues both in alleged prior behaviour of the other and in the underlying mental health issues of the other.
Further issues arise flowing from the nature of the parties’ interactions and capacities to reasonably interact with the other.
These, as the issues emphasised by the parties, draw upon the primary considerations as they relate to risk of harm and the benefits of meaningful relationship, and the additional considerations as they relate, in particular, to Y’s characteristics, the nature of Y’s relationships, the capacity of the parents to provide for Y and exposure to family violence and family violence orders. In the provision of the family report evidence was also given as to Y’s views, bringing those into play in considering Y’s best interests. Other considerations may also be touched upon, but not to a degree that renders them as capable of joining with the other considerations in order to determine the result.
Principles relating to family violence
Each of the parties raised as significant to their cases that the other had engaged in family violence. The allegations spanned the application of physical violence through to the non-physically violent application of coercion and control.
Before turning to the circumstances alleged, it is useful to set out the applicable principles under the Act. In doing so it may be readily seen that the Act does not approach the issue of family violence in a technically constrained manner, nor is it reliant on narrow paradigms of family violence. Rather, the Act places concentration on the dynamics that underpin family violence, being the exercise of coercion and control. The Act approaches these underlying characteristics in a manner that then allows for the recognition of a diverse range of external manifestations of the underlying dynamic.
The term “family violence” is defined at s 4AB of the Act as meaning:
Violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Although the definition gives some indication as to the quality of the behaviour by the use of the terms “violent” and “threatening,” the categories of behaviour are not closed. The critical aspect of the definition is that it is directed to behaviour that is controlling, coercive or engenders fear. As was stated by Bryant CJ in Saska & Radavich,[5] the definition in s 4AB contains a number of alternatives:
So to be clear, family violence as defined in the Act does not need to be coercive or controlling (although it may be), if there is violent, threatening or other behaviour that causes a family member to be fearful. Or, alternatively, such behaviour that coerces or controls a person will constitute family violence. Hence, the examples that are given in s 4AB subsection (2) which give context to the meaning of subsection (1).
[5] [2016] FamCAFC 179.
The terms “coerce” and “control” are not defined by the Act. They bear their ordinary meaning as understood within the statutory context.
Coerce is defined in the 7^th Edition of the Macquarie Dictionary relevantly as:
1. To restrain or constrain by force, law or authority; force or compel, as to do something.
2. To compel by forcible action
Control is defined in the 7^th Edition of the Macquarie Dictionary relevantly as:
1. To exercise restraint or direction over; dominate; command
The phrase “coerces or controls” is expressed disjunctively. However, it may be seen that the two concepts are closely related. Together they form an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command. The examples given at s 4AB(2) illustrate the potential scope of force, domination or command as incorporating both physical and non-physical means. For example, control through the unreasonable withholding of financial support constitutes a non-physical means of domination of another.
Accepting, then, that the definition of family violence goes well beyond physical assaults to encompass behaviours that, absent context may appear innocuous, but in context may be examples of coercion or control, the mere assertion that the conduct has the quality of being coercive or controlling does not make it so. It is necessary that the evidence, particularly where the behaviour may bear an innocuous explanation, be sufficient, either directly or by implication, to allow a characterisation of coercion or control.
By way of example, a pattern of disagreements and criticism can form controlling or coercive behaviour. Whether they do or not must be derived from consideration of their form, intensity, context and the impact upon a person.
This is the understanding to be given to the references to family violence within the Act, and is the understanding to be applied to the allegations of disagreement and of family violence that are made by the parties, as dealt with below.
The evidence
It is convenient to draw the various issues under broad headings relating to:
·the assessment of the mental health of the parties and their particular characteristics;
·the allegations of family violence;
·the nature of the communications between the parties;
·the father’s non-compliance with orders in the lead-up to trial;
·the parties’ parenting capacity and relationship with Y;
·the impact of parental conduct upon Y; and
·the evidence of the Family Report writer.
Mental health of the parties
The parties were both psychologically assessed by a single expert, psychologist Ms L.
The father’s position was that the mother’s behaviour, in particular toward him, was an indicator that she is mentally unwell. Whether or not mental unwellness is the explanation for the asserted behaviour, the father wants the behaviour to end.
REPORTS BY Ms L
Clinical psychologist, Ms L, undertook assessments of both parties regarding their respective psychological states. She prepared two separate reports dated 20 August 2017.
Applicant Father
The father completed the Personality Assessment Inventory (PAI). Despite minor validity concerns, the test indicated no psychopathology or reasons for concern in respect of the father.
At the time of the assessment, the father did not appear to be experiencing any significant mental health issues or meet the diagnostic criteria for any mental illness.[6] His anxiety was described as reactive and not of a level to meet the criteria for an anxiety disorder. The father being a shy, introverted man, is prone to anxiety at times as in his discomfort in social situations. While the father indicated that he had not had a formal diagnosis, he suspected that he was on the autism spectrum. Ms L concluded that the father has learned to manage social situations in life and would not meet the required criteria to be considered to have an autism spectrum disorder.[7]
[6] Report by Ms L 20 August 2017, paragraph 5.
[7] Report by Ms L 20 August 2017, paragraph 4b.3.
In summary Ms L observed:
At the time of interview, he did not appear to be experiencing any significant mental health issues or meet the diagnostic criteria for any mental illness. Some mild anxiety can be attributed to this dispute. To his credit, [Mr Bradbury] was seeking help for this reactive anxiety.
Respondent Mother
The mother explained at interview that she was stressed “out of her mind” because a “violent monster has my three year old.” She said that she was unable to sleep because of worry, remaining awake for hours. She sought to impress upon Ms L her concerns at being subjected to family violence prior to separation.
As with the father, the mother undertook the PAI in a manner that raised minor validity concerns. Unlike the father the PAI showed indications of the presence of clinical features likely to be of difficulty for the mother, indicated that she was ruminative in relation to physical concerns, experiencing specific fears and anxieties and as likely to display significant symptoms related to traumatic stress.[8]
[8] Report by Ms L 20 August 2017, paragraph 4a.6.
It was noted that a great deal of time and energy was devoted by the mother and mental health professionals involved with her to agreeing on a diagnosis. However, the mother consistently challenges the diagnoses she has been given.[9]
[9] Report by Ms L 20 August 2017, paragraph 4b.1.
The mother was then regularly seeing her psychiatrist, Dr K, had been doing so for a period of about two years and at the time of assessment at a frequency of each two to three weeks.
The mother advised that she had really severe postnatal depression after the birth of her children. She was hospitalised for three weeks with this diagnosis after Y’s birth, when Y was five months old.[10]
[10] Report by Ms L 20 August 2017, paragraph 4b.2.
The mother also advised that she had been diagnosed with complex PTSD by Dr K.[11] This was consistent with the results from the PAI which indicated:
She merits a diagnosis of PTSD (DSM-V, 309.81) with comorbid Somatisation Disorder (DSM-V 300.81) and Dysthymic Disorder (DSM-V, 300.4).
[11] Report by Ms L 20 August 2017, paragraph 4b.4.
The mother attributed her complex PTSD to the actions of her first husband who tried to kill her on a few occasions. The severe physical abuse from her first husband could have precipitated her PTSD.[12] The mother said that she had made several suicide attempts in response to her first husband’s actions.[13]
[12] Report by Ms L 20 August 2017, paragraph 4e.2.
[13] Report by Ms L 20 August 2017, paragraph 4b.2.
The mother’s history also indicates that she merits a diagnosis of Hoarding Disorder (DSM-V, 300.3). The risks of hoarding behaviours to the children are that clutter can impair basic activities such as safely moving through the house, cooking, cleaning, personal hygiene and sleeping.
The extensive history of mental health issues indicate these problems are chronic and severe.[14] Additionally, Ms L stated the mother’s prognosis is poor.[15]
[14] Report by Ms L 20 August 2017, paragraph 4c.1.
[15] Report by Ms L 20 August 2017, paragraph 4g.1.
Ms L recommended that the mother continue to access psychological assistance. It was noted that she had already had two sessions with a psychologist for trauma issues.[16] The mother has National Disability Insurance Scheme (“NDIS”) funding for support required around the house because of her physical ill-health.
[16] Report by Ms L 20 August 2017, paragraph 4h.1.
Ms L expressed concern about the mother’s functioning and ability to parent, given the mother’s obsessive preoccupation with concerns about the father, and whether she could avoid denigrating him in the presence of the children.[17] Ms L also identified that the mother’s insight is compromised by her preoccupation with allegations about Mr Bradbury’s behaviour.[18]
[17] Report by Ms L 20 August 2017, paragraph 4d.1.
[18] Report by Ms L 20 August 2017, paragraph 4f.1.
Ms L concluded that:
[Ms Lander] has a significant mental health history and continuing issues and problems. Her physical health issues […] must make life very challenging for her. Her mental health is often impaired by symptoms of depression, anxiety, stress and specifically of PTSD and she reported that she continued to be scared of [Mr Bradbury] at changeovers. In my opinion, [Ms Lander’s] physical and mental health problems are likely to adversely impact on her ability to care for her children and a full family assessment is recommended.[19]
[19] Report by Ms L 20 August 2017, paragraph 5.1.
Dr K
Dr K, who commenced to treat the mother in March 2014, prepared a report in October 2017. Dr K described that the mother was then suffering from a “significant degree of stress and distress,” flowing from the dispute, the proceedings, the separation and the threat of separation from her children. She considered both that there had been an improvement in the mother’s mental health since she started to see her, and that there was likely to be further improvement if the situation could be resolved.
Dr K diagnosed the mother with “Borderline personality disorder/Complex Post traumatic stress disorder. Clinically these are almost impossible to disentangle.” She also noted fluctuating episodes of major depression and anxiety. Dr K noted that she had not made a diagnosis of Attention Deficit Disorder, but agreed with a diagnosis of Asperger’s Syndrome, “a type of high functioning autism which makes it difficult for people to read social cues and struggle in social situations.”
Although noting that she was unable to assess the mother’s parenting, the diagnosis of the mother did not, according to Dr K, mean that the mother was unable to provide for her children’s needs, but was indicative of the need for support.
The mother described that as at the time of the trial she was seeing a psychologist, Mr AA, and had been seeing him since October 2019.[20] In general, the mother described seeing him each two to three weeks, with some variation.[21]
[20] Transcript 8 June 2021, p.147 lines 44–47.
[21] Transcript 8 June 2021, p.148 lines 8–29.
The father has also indicated that he is open for Y to have more time with the mother, in the event the latter’s mental health improves.[22] When pressed on what becoming “mentally well” would entail during cross-examination, the father said “an effective treatment for borderline personality disorder” and that his concern stems from the mother’s behaviour which is connected to her mental health.[23] The father further stated that it was the mother’s behaviour towards him that was illustrative of what he thinks is the underlying condition that causes concern of how she may behave around Y.
[22] Affidavit of the father filed 29 October 2020, paragraph 17.
[23] Transcript 7 June 2021, p.67 lines 38–45.
Concessions made by the father
Prior to dealing with the evidence about the conduct of each of the parties, a useful overview is obtained from a series of concessions made by the father during cross-examination. These meant that, despite a lack of evidence led by the mother there could be confidence in a number of criticisms levelled at the father. These were also of assistance in assessing the father’s reliability when it came to the remaining contentious matters. In particular, where the father made concessions as to matters that lacked verification by third parties, this spoke to his general reliability in relation to other matters.
Without being taken to suggest that the mother made no concessions, her evidence was not characterised in the same manner by a willingness to accept that she had engaged in adverse conduct. Rather, her evidence gave the impression of aggression, deflection and evasion. Caution should however be exercised in relying heavily on these features of the mother’s evidence given uncertainty as to the degree to which such an approach flowed from the mother’s particular characteristics. However, even giving limited reliance to these features does not detract from considering that the manner of the mother giving evidence illustrated why it is that the father encounters her as somewhat domineering.
Turning to the concessions made by the father, the father accepted that Y has expressed to him that she wants to spend more time with the mother. He further accepts that it is a genuine desire on Y’s part to do so. He also accepts that Y, potentially, can have a relationship with the mother that is “a very positive relationship and supportive and encouraging and loving.”
The father was questioned about a matter reported by Y to the Family Consultant within the Family Report.[24] There, Y reported that the father had become angry, thrown her headphones and smashed a light.
[24] Family Report dated 5 May 2021, paragraph 76.
The father readily conceded that he had engaged in that conduct, explaining that he had attempted to throw the headphones into a corner of the room and in doing so had accidentally struck the light with his hand. He accepted that even though the destruction of the light was inadvertent, his conduct was a display of anger and that it was inappropriate. He described that Y told him he was naughty for breaking the light, that he had apologised and explained that he needed to clean it up.
When cross-examined by the ICL, the father described that he threw the item out of frustration, when he had purchased them the day before in response to Y’s complaint that after school care was too loud, and then Y was refusing to take the headphones to school. He explained that he was bothered by Y’s response, regarding her as ungrateful.
Regarding his frustration, the father said that his usual response to frustration with Y would be to become “short” with her, raise his voice slightly, and to impose consequences. He described that he would become frustrated on a weekly basis, and angry less than once a month.
Other than in reinforcing his frankness in giving evidence, this description does little to commend the father. It is suggestive of poor frustration control, and a poor response to such frustration in Y’s presence, descending into the throwing of property.
He disagreed with the characterisation that he would explode but quickly calm, but did accept that he did become frustrated and would quickly calm. Perhaps, in contrast to the frustration that he accepted he experiences, he accepted that the mother is apparently not angry at times when Y was with her. He did express some concern that if Y was to spend greater time with the mother, there was more chance that she would experience the mother’s frustration as well as his, but accepted that in the present arrangements Y was not exposed to the mother becoming angry.
A significant portion of the father’s affidavit material dealt with the unhygienic nature of the home that he and the mother shared, and the mother’s conduct in hoarding. He seeks that a conclusion be drawn that this is an ongoing issue for the mother.

The father described that the mother had engaged in hoarding behaviour during their relationship, that he found himself unable to counter. He was supported in his evidence of the hoarding by reports of Child and Youth Protection Services (“CYPS”) involvement with the family exhibited with the father’s affidavit. The father recalls that CYPS, and later the charity MM, “became increasingly involved with the family” in around June 2016.[25] The CYPS and MM reports exhibited with the father’s affidavit reveal a consistent concern with the home environment due the hoarding behaviour.[26]
[25] Affidavit of the father filed 29 October 2020, paragraph 60.
[26] Affidavit of the father filed 29 October 2020, Exhibit B and E.
In addition to his description of hoarding, the father complained about hygiene issues in the upkeep of their home. For example, in his affidavit filed 29 October 2021, he complained that X had left used sanitary items in the bathroom, and had failed to dispose of them. Although in his affidavit he laid blame for this upon the mother, for not disciplining X, or for not cleaning them up herself, in his oral evidence he accepted that despite at the time being of the view that was appropriate for the mother to deal with these matters, that he should have raised the matters with X (particularly given his view that he was better at dealing with disciplinary issues than the mother), that he should have cleaned up the sanitary items.
He further accepted the distinction that was put to him by counsel for the mother, between the mother’s hoarding behaviour as described by him in her acquisition of many craft related items and storage of those in the house, as opposed to the hygiene issues that he had described, such as the unhygienic state of the kitchen and refrigerator. He accepted that they were different in character and that he, as well as the mother, was responsible for the state of hygiene of the home, as opposed to the hoarding.
The father also made various concessions as to applying physical force to the mother, conceding that there had been violence in the relationship. Given the competing contentions between the parties it is necessary to consider the particular instances that were raised as evidencing instances of family violence.
Allegations of family violence
Allegations of family violence have been made by each of the parties, as seen in the father’s affidavit dealing with a number of the allegations previously made by the mother. In the circumstances of this trial, where the mother failed to file her material in a manner that was amenable to it being relied upon at trial, the bulk of the evidence came from the father’s affidavit and his cross-examination. The mother, ultimately, did not pursue specific findings in relation to violence by the father, relying upon the father’s more general concession that there had been violence in the relationship.
Understandably, where the mother had not provided evidence-in-chief, although the mother made herself available for cross-examination, the father declined to exercise that option.
However, on application by the ICL, with the consent of the mother and without objection from the father, the mother was made available for cross-examination by the ICL (albeit constrained in scope). This permitted some limited supplementing of the evidence in the proceedings, but short of allowing de facto evidence-in-chief to be led.
Although, when cross-examined by the ICL the mother asserted that there were instances of family violence perpetrated by the father other than those referred to in his affidavit, she accepted that those contained in his affidavit (and about which he was cross-examined either by counsel for the mother or the ICL) formed the bulk of the specific examples of physical violence.
It will be necessary to examine carefully the evidence about those identified instances, both to assess whether and how they meet the description of family violence, and to consider their significance.
In a number of the examples referred to by the father, he accepted that there had been heated arguments, or that he had used force upon the mother, or that he damaged property, details of which will be set out below. In many cases, such admissions would lead to a ready conclusion that it was the father who had perpetrated family violence upon the mother. However, the circumstances of this case are such that careful examination does not invariably lead to a conclusion that it was the father seeking to coerce or control the mother, but typically that the father was seeking to deflect confrontation, coercion and control being exercised by the mother.
The wrist lock incident
The mother alleges that the first incident of physical violence occurred in late 2015. She asserted that the father had just gone to bed, that she walked into the bedroom and asked him if he was awake. When he did not respond the mother said that she gently shook his shoulder, as she needed to discuss a matter for the morning that could not wait. The mother said that she had a feeling that the discussion was about finances, given he controlled the finances.
The mother alleges that the father placed her into a wristlock, spraining her wrist. She said that he apologised, but later denied the incident.
The father was not asked about this incident, in circumstances where the evidence of it, from the mother, was adduced following the completion of his case.
Under such circumstances, it would be inappropriate to make adverse findings in relation to this incident in regards to the father.
The computer incident
A physical altercation occurred between the parties at about Christmas time 2016, set out in the father’s affidavit at [262].
The mother alleged that the father punched her repeatedly, a matter denied by the father, although he accepts that he applied some physical force upon the mother. The circumstances described by him throw a different complexion on the interaction.
The father explains that he failed to complete tasks assigned to him by the mother, having missed a portion of the list given to him. The mother raised this with him while he was using his computer to play an online game. The mother attempted to shut the computer and remove it from the father, as he sat on the couch. He was unable to move away as the mother was blocking him. He described that the mother would not cease in her attempts to remove the computer. He accepted that he slapped, smacked, pushed or knocked her arm away as she attempted to take the computer.
The father accepted that he should not have touched the mother.
He further accepted that his use of the terms push or knock in his affidavit did not carry the implications of “slapped” or “smacked” that he had used elsewhere that could be taken to imply greater aggression, explaining that he did not want to describe the incident as more (or less) than it was.
Even giving full weight to the father’s concession that he should not have touched the mother, the incident should not be mischaracterised by failing to acknowledge that his response was to aggressive physical actions by the mother, and was minimal in content. It should be recognised that the father’s response was to domineering and aggressive behaviour by the mother.
The arm in the door incident
The father had locked himself in the study. The mother came to the door indicating that she wished to talk. He opened the door a little to see what she wished to discuss. She then attempted to force her way into the room.
The father accepted that he closed the door to the study onto the mother’s arm, as he attempted to close the door and to keep her out. He described that he attempted to push her arm out while trying to close the door, but that her arm was caught. He denied attempting to hurt the mother, accepted that he had been violent in trying to force her arm out, but described the mother as also being violent trying to push her way in.
Properly understood this constitutes an example of the father seeking to remove himself from the mother, but being pursued by the mother, in a forceful manner. His attempt to exclude the mother from the room that he was in appears an attempt to extricate himself from the mother. It does not indicate an attempt to control or to coerce her, although her forceful pursuit of him does carry such connotations.
Kicking a hole in the wall
The father accepted that on one occasion he and the mother were having an argument that he perceived was going around in circles. He says that he sought to stop the discussion, but that the mother would not, and that he became frustrated and kicked the wall, damaging it.
This is indicative of poor frustration control and response by the father. It does not appear to be an attempt to control or to coerce the mother.
Pushing the mother in the study
The father accepts that there was an incident where he pushed past the mother, in attempting to leave the study. He said, again in the context of an argument that he sought to end, that he wanted to leave the house but that the mother was blocking the doorway to the study preventing him from leaving. He said that the mother had followed him around the house pursuing the argument, prompting him to seek to leave the study and the house.
On the father’s description, this was not an attempt to coerce, control or to harm the mother, but rather was a response to controlling behaviour on her part.
Knee injury to the mother
The father described an incident where the mother’s knee was injured. He described that he had gone to bed in the study, but was not yet asleep, when the mother entered the study, speaking about a matter that the father thought would lead to argument. He described that the mother sat on a chair and put her feet onto him, pushing down and hurting him. He says that he rolled away, causing the mothers foot to slip. The mother became upset and subsequently complained that he had injured her knee.
Again, this does not indicate coercion or control by the father, but rather a domineering action by the mother, constituting an assault upon him.
The mother breaking down the door
At [386] of his affidavit the father describes an incident occurring when Y was about one year old, where he says that the mother was yelling and so he took Y and X into the bedroom and locked the door. He described telling the mother that when she calmed down they would come out of the room. This did not calm the mother. He described that the mother became even angrier and broke through the door. The father left the home with Y. He later replaced the door.
The mother accepted that she kicked a hole through the bedroom door. She explained that she deliberately did so in order to put her arm through the door, to unlock it, as the father was inside the room with the two children. She described that Y was screaming and calling out for her, and that she needed to get into the room to Y, in circumstances where, although the father had made no threat of harm, he had been verbally abusive and angry before locking himself and the children into the bedroom.
It is difficult to characterise the mother’s conduct as anything other than extremely aggressive and intimidating, in circumstances where the father had sought to withdraw from the mother and to remove the children from exposure to her conduct. The mother explained that she was able to kick a hole in the door by virtue of her capacity to kick above her head, and her skills in a particular form of martial arts. It is difficult to conceive of how the mother’s response was comforting of Y even if her description of Y screaming and calling out for help had been correct.
Again, it is the mother’s conduct that appears to constitute an attempt to dominate or control the father, in the presence of the children.
Further, the mother’s description of her actions sat poorly with her subsequent assertions that she was unable to follow the father within the home as he described when he was attempting to exit an argument and to move away from her. Her explanation of physical incapacity was disingenuous, and not aided by her explanation that kicking above her head and walking are different things. While it may be accepted that they are, her self-description of kicking through the door is sharply at odds with her representations of a high degree of incapacity.
Relationship contract
The father asserts that in April 2016, the mother sought to have the father sign a contract following an argument where he said that she was not satisfied with their sexual relationship. The document is contained at Exhibit CI to the father’s affidavit and the related police attendance is recorded at Exhibit CJ. The police record shows the father describing that the confrontation occurred when he installed a lock on the study door.
The document set out what can only be described as demands in relation to the father’s conduct, including how many hours he might spend on weekdays or weekends on computer, date nights, the number of hours each day spent in “family time” and the number of hours spent on housework, and as to what does or does not count for family time, and the minimum number of occasions that he should have sex with the mother each week.
The mother’s account differed, she saying that in about January 2016 she provided to the father a document setting out her expectations for their relationship. She denied that it was either a list of demands or a contract for the relationship. She accepted that the document was directed to the father, with no corresponding expectations expressed as to her own conduct. She described that it was in response to domestic violence perpetrated by the father several days earlier. It should be noted that when she spoke to the police on their attendance as set out at Exhibit CJ she asserted that she and the father had loud and abusive arguments, but denied physical violence.
A part of that document was what the mother described as the expression of a wish that they have sex at least twice a week. The mother explained that this was not meant as an expectation, in a context where she alleges that the father used the withholding of sex as domestic violence.
The mother alleged that when she asked the father to sleep in another room he would then withhold intercourse until she agreed not to ask him to do so again, or agreed not to report his conduct to the police.
The father describes, at [391] that he retreated to the study when the mother started to yell at him for not signing the document, resulting in the mother forcing and damaging the door with a hammer, resulting in the lock being removed from the door. It was after this that the police attended.
While the mother’s pursuit of the terms contained in the contract is suggestive of an attempt to control the father, it is her subsequent smashing of the door in response to the father locking himself away in the study that more clearly paints this episode as indicative of the mother attempting to coerce and exercise control over the father.
Violence upon X
The father accepted that on two occasions he applied force to X.
The first of these related to physically removing X from the car when she refused to get out at school. X was then a teenager, and the father forcefully pulled her from the car.
The second involved pushing X from the mother and father’s bed, when X sat on the mother’s legs and refused to move despite the mother being in pain. The father said he pushed X from the bed with his feet to alleviate the mother’s pain.
Communication between the parties
There are deep difficulties in the communication between the parties. The mother presents as indomitable in her communication with the father. His approach is to withdraw.
The father found the mother’s behaviour towards him, initially after separation, extremely difficult, particularly in respect of her considerable communication. The father experienced this communication to be harassing, offensive, and at times insulting. It was within this context that he obtained a Family Violence Order in 2018.[27]
[27] Transcript 7 June 2021, p.65 lines 5–26.
The father described the mother’s conduct as “emotional blackmail and verbal abuse if I refuse to agree with what she believes the correct response is or the response she wants from me.”[28] The father further explained that emotional blackmail was when the mother would tell him that “disagreeing with her makes me a bad Christian, a bad husband, an abusive person”.[29] The mother would attack the father as a bad person unless he agreed to her position.
[28] Transcript 8 June 2021, p.108 lines 1–4.
[29] Transcript 8 June 2021 p.108 lines 6– 9.
Following separation the mother made negative comments about the father on social media. The mother referred to the father as a “violent abuser” and that he was “cunning and manipulative” and financially abusive during their marriage and post separation.[30]
[30] Affidavit of the father filed 29 October 2020, paragraph 118.
The mother’s complaints to third parties extended to telling members of their church and family that the father was abusive.[31]
[31] Transcript 8 June 2021, p.108 lines 11–16.
The indomitable manner of the mother’s communication can be seen in the exhibits to the father’s affidavit containing messaging between the parties as well as is the incidents set out above, a number of which involved the father’s attempt to retreat from the mother, even going so far as to lock himself in a room, and of the mother’s pursuit of him and the argument to the extent of breaking into the room to continue it.
The parties appeared to separate on or about January 2017, although remaining under the one roof initially.
At [277] of his affidavit the father describes that on about 6 February 2017, the mother approached the father in the study (where, by that stage, he was sleeping) and asserted that the father was not committed to the relationship and insisted that he tell her what he would do to make amends. He said that he did not want to talk about it and was accused by the mother of abusing her by declining to discuss it. He described that he attempted to leave the study, but was being blocked by the mother. When he attempted to squeeze past her to get away she alleged that he had “shoved” her into the shelves. He described that she followed him around the house and prevented him returning to the study where he would have been able to lock the door to keep her out. He chose to leave the house to allow things to calm down, but when he returned in an hour he was told by the mother that he had to “admit he was an abuser and apologise or he had to go.” He called the police who attended and brokered an agreement that the mother would leave him alone for the rest of the night. The father then locked himself in the study for the night.
On 9 February 2017 the father commenced these proceedings.
At [283] of his affidavit on 11 February 2017, the father describes a further instance where the mother said to him that “the only way to get me to stop following you around is to give me another way to confront you that will work.” The mother also alleged that the father was in “league with the devil” and that the problems in the relationship were one hundred per cent attributable to him. This followed the mother yelling at and abusing him and, when he asked her to stop, alleging that such a request by him was an “abusive demand.”
It may be accepted that, at breakdown of relationship, communication between partners can often become fraught. However, those described by the father are extreme and have continued to be intense in the post separation period.
The father asserts that upon service on the mother of his Initiating Application filed in February 2017, he “was inundated with aggressive and harassing communication from her”.[32] At Exhibit K of his affidavit, the father provides text conversations from March 2017 to June 2017 which he asserts are evidence of “accusive”, “argumentative” and “repetitive” communications from the mother.[33] It may be observed that there are frequent accusations of abuse contained in the mother’s communications, and that the mother responds to short, direct messages by the father in relation to Y’s care and practical arrangements for handover with lengthy and accusatory messages.
[32] Affidavit of the father filed 29 October 2020, paragraph 100.
[33] Affidavit of the father filed 29 October 2020, paragraphs 113–117.

The nature of the communication between the parties is aptly represented by an exchange contained in Exhibit AT of the father’s affidavit filed 29 October 2020.
Exhibit AT is an extract of text messages in which the mother is overbearing, argumentative and aggressive toward the father, whilst his interactions with her are appropriate. While selected excerpts of communications may be used to paint a distorted picture, the volume of those produced was sufficient to demonstrate the mother’s conduct.
Within that extract was an example of the father offering to the mother additional time with Y. The mother repeatedly insisted that she required Y to ask her directly, so that she could know that it was what Y wanted, not trusting such to the father. The mother’s response to this issue was both perverse and carried with it a will to involve Y in the dispute.
During submissions, the father pointed to an exchange produced in exhibits to his 29 October 2020 affidavit as the best example of the nature and length of communication between the parties.[34] After the mother informed the father that Y would not get off the playground in time for changeover “now I’ve told her you want us to go to the police station” because “[s]he doesn’t want to go there ever. It scares her”, the father responded:
[34] Exhibits to the father’s affidavit filed 29 October 2020, p. 239; Submissions (10 June 2021).
F:If you can’t get her off the playground then don’t let her go on it in the first place.
If you force me to come over to the club I’m going to make a complaint to my lawyer
M: She’s only doing it to hide from you. Perhaps I should throw her on the ground or hit her like you do?
You’ll complain anyway.
F: False accusations are not appropriate, also in breach of orders. Just make the handover happen and leave out the insults.
M: You don’t seem to understand the concept of doing what is best for the kids. It’s not about getting what you want. It’s about [Y] having emotional needs that you are not meeting.
F: You picking a fight and refusing to follow orders is not best for the kids. I’m not going to argue it, just do the handover and leave the rest out of it.
M: The only false accusations I see are yours. You have thrown [Y] before, you have hit her before, my parents have seen it and my parents are not the only witnesses to it either.
You are the one picking fights. I’m just begging you to put the kids’ needs ahead of your desire to force us all to follow your orders.
F: It’s not my orders it’s the courts orders. Also please stop the accusations, they are disturbing and in breach of the orders.
During cross-examination of the mother by the ICL, the mother was questioned as to whether there is anything she can do to improve her behaviour in relation to communication with the father. In response, the mother suggested seeing a professional together or putting a further application. The mother’s responses did not indicate insight into the impact of her communication style on the father and she did not accept the ICL’s characterisation of her communication as long, demanding and repetitive in tone.
On 3 March 2017 orders were made for the mother to move out of the home, and for the father to then have the exclusive use and occupation of the property, with Y to live with the father.
In March 2017 the mother posted on Facebook that she and the father had separated. She also alleged that he had been violent for eighteen months and that when she had involved the police that he had become “sneakier” and demanded a divorce to punish her for going to the police. On the same day the mother emailed the father’s mother, describing him to her as a “monster” and as having engaged in “disgusting violence.”
Subsequently, on 21 March 2017 when the father took Y to the general practitioner, the mother barged into the consultation with X, telling the doctor that the father had snatched Y because the mother had gone to the police about his violence, and that she had been directed by her lawyer to attend all doctor’s appointments due to the risk of child abuse.
On 3 April 2017 the mother messaged the father saying that if he turned his life around that he could contact her about reconciling. She told the father that she was seeking a divorce.
On 18 April 2017 the mother vacated the family home. She messaged the father:
So you got your way. You bullied me out of our home using the absolute most despicable kind of abuse, far worse than violence, cheating or rape. Are you finally going to stop abusing the kids and I in a few days’ time when you are living in our house having bullied and blackmailed me out of it.[35]
[35] Affidavit of the father filed 29 October 2020, paragraph 297.
The mother then threatened the father with divorce unless he came clean and showed genuine remorse.
On 23 April 2017 the mother messaged a friend of the father on Facebook, alleging that the father had various mental health issues including narcissistic personality disorder.
The following day the father sought, and obtained by consent, non-denigration orders.
Despite these orders the mother shortly after messaged the father’s friend again alleging that the father was a “vile human being” and a “violent wife beating child abuser.” The mother made other denigrating posts in respect of the father and was ultimately found to have contravened the orders.
On 9 May 2017, the father applied for a Family Violence Order in the ACT Magistrates Court, with a final order being made on 18 October 2018.
The father also describes significant issues with changeovers for Y.
For example, orders were made that provide for the handover to take place at the Suburb D police station. On 24 January 2019, the father messaged the mother to ask if, in the context of the mother saying that the police station was not an agreeable venue, that she could identify a better venue. No alternative agreement was reached. However, on 3 February 2019 the mother messaged to ask the father to collect Y from the McDonalds playground. He agreed to try that arrangement and, at handover time messaged the mother to say that he was at the door and asking the mother to send Y out. The mother responded that it was not what she had agreed to and that the father was “disrespecting her in front of Y” by not approaching the mother.
This response, apparently demanding that the father enter her immediate presence, sits poorly with the mother’s multiple claims of abuse, coercion and control against the father.
On 16 February 2019 the mother messaged to say that she was running ten minutes late to collect Y. When she had not arrived at 20 minutes past the handover time the father messaged her, but the mother did not respond to say whether she was going to attend, demanding instead that the father talk to her sister. She subsequently texted the father to say that she had run out of fuel, demanding that the father bring her some petrol. Ultimately the issue was resolved when the mother asked the father to bring Y to a nearby bus stop.
On 16 March 2019, when the father attended handover the mother attempted to have the father served with court documents by her then seventeen year old daughter X.
The father outlines many other instances of difficulties at handover, either where the mother failed to attend in accordance with agreements or orders, and/or used the handover as a venue to behave aggressively toward the father. For example on 23 June 2019, the mother insisted that the father collect Y at McDonalds, then did not provide her there. When the father then attended the handover venue set in the orders of the police station, the mother insisted that the handover occur outside. Ultimately following the handover the mother blocked the doorway of the police station to pursue a conversation with the father. This constitutes an example of the mother imposing her will upon the father, despite orders designed to prevent conflict at handover. It is difficult to escape the conclusion that the mother was pursuing conflict with the father.
In a further example, on 28 July 2019 the mother refused to attend inside the police station for the handover, in accordance with the orders, asserting that she was in a car outside and could not walk that far. The standoff remained for over an hour until a police officer intervened to provide assistance. The father had good reason to be wary of attending upon the mother outside the police station in accordance with her demands.
Further abuse and conflict occurred regarding changeovers in August and September 2019.
The father’s application for a divorce emerged as a further venue for conflict between the parties. The mother opposed the making of the divorce order, due in part to asserted prospects for reconciliation. The opposition was without merit and, after a contested hearing, the divorce was granted.
The father said that he thought that the mother was obsessed with him, based in part on the opposition to his application for divorce, on the basis that the mother wished to reconcile.
At the trial the father described that more recently the parties had conducted handover such that he would come to the street outside the mother’s home, or she would come to the street outside the father’s home, and Y would walk between. While he said that there are still issues with discussing and arranging it, and that it may have been changed at short notice, there had been only one incident when handover was conducted this way, being when Y had been upset about leaving.[36]
[36] Transcript 8 June 2021, p.111 lines 6–7.
The father’s non-compliance with orders in the lead up to trial
Although the orders provide for Y to spend an overnight period each week with the mother, the father accepted that in the four or five weeks leading up to the trial he had ceased to provide Y in accordance with the orders. Having ceased to provide Y, and despite the matter being before the Court on a number of occasions during that period, he failed to make any application for the suspension of the orders. The justification that he puts forward for his conduct was contained in Exhibit F1, being a statement made by him to the police on 6 June 2021 (the day before the commencement of the trial) and associated annexures with that statement. In that document he explains that at their attendance before the Court on 6 May 2021 the father had observed the maternal grandmother, Ms B Lander, behave in “an aggressive and uncontrolled manner, shouted at the judge and at my lawyer, and was eventually ejected from the court premises and the police were called.” The matters identified by the father as occurring in court formed a reasonable description of the maternal grandmother’s conduct on that occasion. He explained that he caused his lawyer to write to the mother indicating that he “would not send Y for visits with (the mother) unless you would confirm that her mother would not be present while Y was visiting.” The mother did not comply with such a demand and the father did not provide Y.
The father accepted that he chose not to comply with the orders. He accepted that it was likely that the mother would become upset, angry, and likely to respond inappropriately to the father’s withholding of Y. He denied, however, that causing such was his motivation for his actions.
The father explained that the maternal grandmother’s behaviour in Court had led to him being concerned that she would be unable to restrain herself in her conduct either around the mother or Y. He, however, also conceded that Y has never shown any fear of the maternal grandmother and has described that she has had a good time with the maternal grandmother.
In response to the withholding the mother reverted to previous patterns of interaction with the father. This included messaging the father (despite mutual family violence orders being in place) on 22 May 2021 accusing the father of “unlawful, abusive behaviour”, “mental instability and rage”, and a “long history of mental health issues and violence.” The mother demanded a call with Y to ensure that the father had not “assaulted her again” or else she said that she would ask the police to make a welfare check. The mother said the father’s conduct was a breach of the family violence order and “an act of extreme family violence.”
The father offered to send a photo to show that Y was fine, which the mother rejected as inadequate, asserting that there was no reason for the father to refuse a phone call “unless you have hurt her and are trying to cover it up.” The father subsequently offered a call if the mother committed to not saying anything to Y about visiting her. The messaging continued, the parties disagreeing about the call and whether it would be recorded.
The mother and Y spoke on the phone on Sunday 16 May 2021. The father records several details of the conversation at Annexure A to Exhibit F1. The father recalls that the mother repeated how much she missed Y during the phone call. The mother asked Y “why didn’t you come to see me?” and then said something along the lines of “Daddy must have made a mistake”. During cross-examination, the father conceded that this was a positive way to characterise his decision to withhold Y on the mother’s part. However, following the 16 May phone call, the father prevented Y from speaking to the mother on the grounds that he no longer trusted her “to avoid inappropriate comments”.[37] When asked what was inappropriate about the call, the father stated that the mother’s references to seeing Y the next weekend would cause Y to have expectations that she would in fact see her mother. On the father’s characterisation, this would then have the effect of him either being in a position where he had to disappoint Y if she did not see her mother, or that he would have to let the visit go ahead despite his concerns. However, the father acknowledged that the mother was entitled to expect to see Y the next weekend.
[37] Exhibit F1 [12].
The father then blocked the mother’s number.
The mother’s sister then visited the father’s home and spoke with Y.
The father then complained that the mother and her family acted in contravention of the Family Violence Order in various respects, including by attending at his premises. Y was, as a result of complaints made by the mother to the police, caused to speak to the police (in what was apparently a telephone welfare check) and was subsequently exposed to a police attendance at the father’s home when he complains that the mother was in breach of the Family Violence Order by attending at his home or rather, within 100 metres of his home. Y was also subjected to an, on the father’s account, angry attendance by the maternal grandfather, Mr Lander, who sought to secure Y for her attendance upon the mother in accordance with the Family Court orders. On the father’s account this involved him, at the door of the father’s home, calling on Y to come out of the home.
The father was questioned as to what assurance there could be that he would comply with future orders. He explained that he had always complied with orders until this point when he considered that he had a reason not to comply and that he intended that he would comply with orders in the future, unless there was strong reason why not. He asserted that his approach may then be to return to Court to deal with the matter.
It may be observed that while the matters raised by the father gave rise to legitimate concerns for the father, they did not provide a sufficient justification for his withholding of Y from time with her mother in the absence of court intervention. While there was reason to be concerned at potential exposure to anger on the part of the maternal grandmother it may be observed that that conduct at Court occurred other than when Y was in the presence of the grandmother and that Y has expressed no fear of the maternal grandmother and has always expressed that she has a good time with the maternal grandmother. It may also be observed that in the context of this case the withholding of Y was always likely to be a matter provocative to the mother and her family. Accordingly, it would only be expected that the effects of such withholding would be to expose Y to the police and potentially to upset members of the mother’s family.
It may also be observed that the father’s conduct was likely to be, and was, extremely upsetting for the mother. It is a necessary context for understanding the mother’s conduct, which appeared to be a reversion to the sort of aggression and attacks that she had previously levelled at the father. However, it also cannot be ignored that the mother’s response was one that was aggressive and highly abusive.
The mother also asserted that the stress of the withholding of Y impacted on her capacity to prepare for the trial.
Parenting capacity
Each of the parties was critical of the parenting capacity of the other.
In this context the father was asked to identify benefits the mother brings to Y. He described the mother’s best feature as loving Y and wanting to keep Y as happy. He accepted that she is engaging, warm, and loving. He accepted that the mother says positive things about him to Y.
The mother was asked to identify benefits that the father brings to Y. The mother described that the father is good at fixing and explaining things, such that if Y has a scientific question the mother will tell her to ask the father. She described that the father is more physically active and able than the mother and is able to take Y to the park, and to do things in the playground. The mother thought, however, that the father fails to display sufficient warmth to Y. She has also previously accused the father of being a danger to Y, particularly in the context of displays of anger.
The father accepted that he becomes angry, one conceded example being the throwing of the ear muffs.[38]
[38] Transcript 8 June 2021, p.115 lines 45–47.
When asked about anger by the ICL, the father explained that he would become frustrated weekly, but angry less than once every few months. Frustration meant that he became short with Y, less understanding, more imposing of consequences, and less lenient. He said while he may raise his voice, he does not shout at Y.
Giving further detail of interactions with Y, the father described Y’s behaviour in the home as generally good, although he noted that there are episodes of difficulty and defiance. In particular, the difficulty and defiance would occur in instances where Y was directed to things that she did not want to do, such as ceasing using an electronic device and going to have a bath or shower. He described that the disciplinary issues with Y arose when there was something that she either did not want to do or did not want to stop doing, which he thought was in part attributable to her diagnosis of autism, leading to difficulties becoming upset with an unexpected change in circumstances. He described that at times she could become so upset that in managing her behaviour it was necessary to give her time so that she could calm down. The father displayed a nuanced understanding of managing behavioural issues with Y.
The father described behavioural issues for Y, saying that she can become “a bit upset with unexpected circumstances or changes” that he attributes to her autistic spectrum diagnosis. He further said that he can see her come to a point where she has gone beyond being reasoned with, is upset, and needs time to calm down rather than immediate consequences. When he imposes consequences he indicated that they typically related to Y’s access to screen devices. Y spends, on his description, about three hours per day on screens. He described however that they do craft together, play at the park, as well as playing games on the computer together. He said that he will also help Y with reading or teach her mathematics.

Further, the parties expended sums in paying for legal representation, with such funds being sourced in outstanding loans by each of the parties from their parents. In Chorn & Hopkins,[56] the Full Court dealt with the discretionary treatment of expenditures on legal fees:
56. In summary, we consider that the above mentioned decisions of the Full Court establish that, while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial Judge, in determining how to exercise that discretion, regard should be had to the source of the funds.
57. If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.
58. If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.
59. Outstanding legal fees themselves are generally not taken into account as a liability.
[56] (2004) FLC 93-204 (Finn, Kay and May JJ).
In relation to the assessment of contributions the Full Court in Jabour & Jabour,[57] observed that the assessment of contributions is the assessment of the myriad of contributions made throughout the relationship, in the light of their nature, form, context and circumstances, and the holistic evaluation of their significance.
[57] (2019) FLC 93-898.
Further, in Dickons v Dickons,[58] it was noted that the assessment of contributions did not necessitate the identification of a causal link between the contribution and the property, but adopting Aleksovskiv Aleksovski,[59] described that:
20. …the s 79 discretion involves as a necessary requirement that “… trial Judges weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such an assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.” (In the Marriage of Aleksovski (1996))
(Citations omitted)
[58] (2012) 50 Fam LR 244 at [15].
[59] (1996) FLC 92-705 at 83,437.
This requires the consideration of:
18. Any and all such contributions, whether or not they sound in, or are directly linked to, the property available for distribution, should be considered and assessed together with the nature, form and extent of all other contributions of all types contemplated otherwise by s 79(4).
There was also some contention as to the impact of the considerations contained at s 75(2), in particular as to the mother’s future income prospects, which were also matters relevant to the consideration of the mother’s spousal maintenance claim, that is reliant upon the mother establishing pursuant to s 72 of the Act that she is unable to support herself adequately and that the father is reasonably able to provide such support.
Finally, it will be necessary to consider again whether it is just and equitable to make either any adjustment or a particular adjustment.
The pool of property
As identified above the necessary first step is the identification of the property held by the parties. It is convenient to outline at the same time their liabilities.
Exhibit C6 is a balance sheet that represents, with some modification, the parties’ position in relation to the pool of property of the parties. It is set out below.
Balance Sheet

Ownership Description Applicant Husband’s value Respondent Wife’s value

ASSETS

1. H Suburb GG, ACT property $ E 460,000.00 $ E 460,000.00

2. W Suburb FF, ACT property $ E 500,000.00 $500,000.00

3. H Motor Vehicle 1 $ E 1,000.00 $ E 1,000.00

4. W Motor Vehicle 2 $ E 2,000.00 $ E 2,000.00

5. H Bank account – DD Bank #…66 $ 4,190.00 $ 4,190.00

6. H Bank account – DD Bank #…93 $ Nominal $ Nominal

7. H Bank account – DD Bank #…48 $ Nominal $ Nominal

8. H Bank account – HH Company #…99 $ 0 $ 0

9. W Bank account – NAB #…66 $ NK $ Nominal

10. W Bank account – NAB #…11 $ NK $ 0

11. W Bank account – ANZ #…76 $ NK $

12. W Bank account – BB Bank #…70 $ NK $ 0

13. W Bank account – EE Bank #…39 $ NK $

Total $ 967,190.00 $ 967,190.00

LIABILITIES

14. H Mortgage – Suburb GG, ACT
Bank account – DD Bank ending #…45 $ 228,376.00
$228,875.00

15. W Mortgage – Suburb FF, ACT
Bank account – BB Bank ending #…49 $ E 290,092.00 $ 290,092.00

17. H Credit card – CC Bank ending #…46 $ 6,131.00 $ 6,131.00

18. W Credit card – NAB ending #…22 $ 1,080.00 $ 1,080.00

19. W HELP-FEE (Formally HECS) $ 26,110.78 $ 26,110.78

20. H Loan from Mr LL & Ms E – non legal fee component $ 118,381.74 $ 118,381.74

21. W Loan from Mr Lander & Ms B Lander – non legal fee component and repayment $ 56,111.80 $ 56,111.80

22. W Costs Orders $ NIL – Financial Orders $ 19,500.00

Total $ 726,282.54 $ 746,282.00

TOTAL TANGIBLE POOL $ 240,907.45 $ 220,908.00

SUPERANNUATION

Member Name of Fund Type of Interest Applicant’s value Respondent’s value

23. H KK Super Fund Accumulation $ 201,277.00 $ 201,277.00

24. W JJ Super Fund #716 Accumulation $ 4,578.83 $ 4,578.83

Total $ 205,855.83 $ 205,855.83

FINANCIAL RESOURCES

Ownership Description Applicant’s value Respondent’s value

25. H Wedding and Engagement rings Nominal Nominal

26. H Computer and Electronic Equipment Nominal $ 10,000.00

27. W Superannuation Re-draw $ 20,000.00 $

28. W Costs Orders $ 19,500.00 Nominal

Total $ 39,500.00 $ 10,000.00

TOTAL POOL $ 446, 796.00 $ 426,763.83

FUTURE NEEDS

Ownership Description Applicant’s value Respondent’s value

28. H Personal loan-Mr LL & Ms E $ 126,826.26 $ 245,208.00

29. W Personal Loan – Mr Lander & Ms B Lander
Legal Fee Component $ 160,000.00 Personal Loan-Mr Lander & Ms B Lander

There is no dispute between the parties on the asset or superannuation components.[60] There is no dispute on the Suburb GG mortgage other than as to $500 which is not of significance to the question of adjustment, the Suburb FF mortgage, the father’s credit card, the mother’s credit card, or the mother’s HECS’s fee.[61]
[60] Transcript 11 June 2021, p.237 lines 28–32.
[61] Transcript 11 June 2021, p.238 lines 1–6.
The total loan from Mr LL and Ms E and the non-legal fee component of that loan is agreed. The mother accepts the father’s position that he has received loans totalling approximately $245,000 from his parents, of which approximately $127,000 has been used on legal fees.
It is agreed at Item 27 that the mother had the benefit of the $20,000 superannuation redraw.[62] She says that this redraw should be taken into account when considering an adjustment in her favour.
[62] Transcript 11 June 2021, p.241 lines 34–37.
Item 21, loan to the mother from her parents post separation $56,111.80 (described as ‘non-legal fee’), is agreed.[63] Item 21 comes from Mr Lander's Exhibit 7.
[63] Transcript 11 June 2021, p.238 lines18–23, lines 32–34.
Contested items
A number of items set out in the balance sheet are contested either as to value or significance.
While the mother asserted further loans from her parents in relation to legal fees, these were neither proven, nor would they have been significant to the issue of the division of property for the reasons set out in Chorn & Hopkins.[64]
[64] (2004) FLC 93-204.
The amount put toward the Suburb FF property at Item 29 of $160,000 was agreed although its significance is not agreed.[65]
[65] Transcript 11 June 2021, p.239 lines 5–6.
The purchase of the Suburb FF property was set out in the affidavit of the mother’s father, Mr Lander, filed 28 May 2021. At paragraph 11 he sets out as follows:
The reasons why [Ms Lander’s] current home is not part of the marital asset pool are:
(a)[Ms Lander’s] current home was purchased after [Mr Bradbury and Ms Lander’s] final separation and there was no contribution at all from the marital asset pool towards the purchase of the property.
(b) The [Suburb FF] house was paid for with a combination of loans made up of:
(i) a loan of $300,000 that [Ms Lander] obtained from [BB Bank],
(ii)two loans of $43,700, and $108,830.98 respectively from her parents (i.e. my wife [Ms B Lander] and myself).
(See Exhibit 1: Bank statement showing payment of these two amounts from [Ms B Lander and Mr Lander's BB Bank] account to [W Real Estate] Trust Account on 5 April 2017, and to [Ms Lander's BB Bank] Mortgage account on 4 May 2017)
(Exhibit 2 contains a Contract dated 4 May 2017, between [Ms Lander] and her parents [my wife and me] for an amount of $160,000 which is the rounded total of the $43,700 and $108,830.98 and a further $8,000 we loaned [Ms Lander] at the time to pay credit card debt so that she could get the loan, this figure does not include the amount we loaned her for the stamp duty)
(iii)a further loan from my wife and myself of $11,368.00 for the stamp duty on the property.
The mother’s position is that the total loan from Mr Lander and Ms B Lander is the $56,000 plus $160,000.[66] The father asserts that the $160,000 is a “contingent liability” because (as at exhibit 2 incorporated into Mr Lander’s affidavit) it is made clear that the amount is to be paid and that is on the sale.[67] It is further asserted that discretion is exercised regarding this item because (a) it may never crystallise, (b) it may never be called on, and that is distinct from the father’s loan from his parents.
[66] Transcript 11 June 2021, p.239 lines 32–41.
[67] Transcript 11 June 2021, p.241 lines 1–6.
The evidence of Mr Lander is sufficient to establish that, despite not being repayable unless sale of the Suburb FF property takes place, the $160,000 is best characterised as a loan. It is a liability that will be called upon in the event that the mother disposes of the property, meaning that the disposal will not free up funds without also incurring the repayment. The $160,000 should be treated as a loan. It is, however, a loan on advantageous terms for the mother that secures the mother’s accommodation on favourable terms.
Item 22 relates to an outstanding costs award against the mother in favour of the father in the sum of $19,500. Its existence is not contested, although its presence on the balance sheet is on the basis that the father should not be paying for his own costs order.[68] This did not appear to be contentious as the mother seeks that any adjustment incorporate that amount in a manner consistent with its status as a debt only owed by her rather than attributable to both of the parties.
[68] Transcript 11 June 2021, p.241 lines 30–31.
At Item 26, the $10,000 amount that the mother nominates as the figure for the father’s computer and electronic equipment lacks an evidential basis to establish such a value[69] and so no value will be assigned to it.
[69] Transcript 11 June 2021, p.237 lines 35–40.
Current asset-liability position of each of the parties
This leaves a position where the father holds property, including a net value for the Suburb GG property after consideration of the mortgage, to a value of $236,814. He also is owed $19,500 by the mother for a costs award. He has (non-legal expenses related) liabilities of $124,512.74, being credit card debt and a loan to his parents. He owes his parents a further $126,826.26 for expenditure on legal fees.
This means that the father holds a net excess of assets over liabilities of $131,801.26 for the father, excluding consideration of the $126,826.26 owed for legal expenses.
He retains $201,277 in superannuation.
The mother holds property, including a net value for the Suburb FF property of $49,908 (incorporating both the mortgage and the funds advanced for the purchase by the mother’s family). She has (non-legal expenses related) liabilities of $57,191.80, plus a HECS debt of $26,110.78, and a debt owed to the father for costs of $19,500, leaving a total debt position of $102,802.58.
This leaves a net debt position that the mother owes $50,894.58 more than the assets that she holds.
The mother has also had the benefit of a redraw upon her superannuation of $20,000, retaining a further $4,578.83 in superannuation.
It may be observed that both parties are in a parlous financial position at the end of these proceedings. If borrowings for legal fees are acknowledged, neither holds significant net assets.
Contributions
The position at the start of the marriage in 2012 (noting that although the relationship commenced in early 2010, the parties did not live together until after the marriage) was that the father owned the property that he currently owns, subject to a mortgage. That property was purchased in late 2009 for $332,000, shortly prior to the father moving to City NN to take up work. The purchase was funded in large part by loans, either from the bank or from relatives. The father says that a deposit of $70,000 was paid ($30,000 of this being a loan from an aunt that was subsequently repaid), with the balance funded by mortgage. Although Exhibit M3, the settlement statement, showed a deposit of $16,600, it seems to refer to the deposit payable on exchange, rather than the $70,000 put in by the father, supplemented by mortgage to pay for the total purchase.
As at the trial, the mortgage was paid down to approximately $228,000, and the value of the property had increased markedly.
At the commencement of the relationship, the father held approximately $80,000 in superannuation, and about $14,000 in shares, which were sold during the relationship to pay off debt, including school fees for X. The mother brought debt into the relationship of approximately $18,000, of which $15,000 was transferred onto a credit card that the father obtained.
It may be seen that at the commencement of the marriage/cohabitation, the father’s contributions exceeded those of the mother.
A number of differentials in contributions arose during the relationship.
Firstly, the father accepted that the mother received an inheritance during the relationship of approximately $18,000.
Secondly, the father provided support of X, his stepdaughter, a matter identified in the Full Court judgment of In the Marriage of Robb.[70] This contribution included the paying down of school fees (funded by the sale of shares that he brought into the relationship) as referred to above. Care must be taken not to double count this aspect of contribution in relation to the use of the shares.
[70] (1994) 490 FamLR 489.
Thirdly, in making his contributions the father did so in the context of the mother’s hoarding, rendering the practical functioning and support of the household more difficult for the father, although this is not a matter of significant weight as the qualitative impact was not demonstrated to be heavy upon the father.
Following separation, the balance of contributions again altered, with the father having the vast bulk of the care of Y. While he had the benefit of the occupation of the home, he also had the upkeep of the mortgage.
In summary, both during the relationship and following the end of the relationship, the father’s contributions have outweighed those of the mother. In what was a relatively short relationship, the father brought in limited equity in his home, along with a significant amount of superannuation. His contributions to the financial upkeep of, and well-being of the family then outstripped those of the mother, primarily in the post separation period.
It should, however, also be recognised that the property he brought into the relationship held limited equity, its value both increasing during the relationship, and its indebtedness decreasing. Similarly, his superannuation increased markedly following the commencement of the relationship. These increases in the property of the parties occurred during the relationship and are attributable to contributions made by both parties, both financial and non-financial.
It may also be observed that the non-legal fee indebtedness of each of the parties increased markedly following separation, ameliorating their contributions insofar as they related to the acquisition and maintenance of property.
Factors contained in s 79(4)(e)/75(2) of the Act
The father is in regular employment. Whilst the mother has had a patchier history, she, on her description, engages in the same sort of work as the father, and is currently engaged in the public service. There was little to indicate a differential in their future income earning capacity, although it may be considered that the mother’s patchier work history and mental health struggles make her prospects more difficult than those of the father.
Given the orders in relation to Y, it should be recognised that the father will bear the bulk of the support of Y, both financially and non-financially.
Further, it may be seen that whilst ever the mother retains her current accommodation, she does so on advantageous terms due to the nature of the loan from her family.
The father’s position
If the orders are made as sought by the father, he would retain assets to the value of approximately $465,000, superannuation to the value of approximately $201,000. He would also retain an obligation for the mother to pay him costs in the sum of $19,500. He would also hold debts of approximately $353,000, along with an additional debt of approximately $127,000 related to his legal fees.
Disregarding the loan in relation to legal fees, the father’s net position would be equity of $132,000, with superannuation of $201,000.
The mother’s position
The mother’s position would be to retain assets to the value of $502,000, and superannuation of approximately $4,500 (she having already received $20,000 of her superannuation). If the loans are accepted, she would hold debts of approximately $553,000, leaving a net negative equity.
Consideration
Particularly given the father’s position that there should be no adjustment, careful consideration must be given to whether it is just and equitable to adjust the property at all.
Given the cooperation of the parties during the short period of their marriage from 2012 until approximately early 2017, during which time they had Y and shared in their efforts both in the care of Y and X, and in the retention and acquisition of their property, the ending of that period of mutual cooperation points toward it being just and equitable to adjust their property interests. Whether it remains so will depend upon the analysis of their contributions and the factors contained at s 79(4)(e)/75(2) of the Act.
The only way for a cash adjustment to flow to the mother would be for the father to sell the house in which he and the child reside. He correctly submits that this leaves little funds available to him to rehome himself and the child. He submits that this tells against an adjustment to the mother.[71]
[71] Transcript 11 June 2021, p.244 lines 29–34.
It may be seen that the asset of primary significance is the equity held in the Suburb GG home of $232,000. This is followed by the equity in the Suburb FF property, once the mortgage and $160,000 are taken into account of approximately $50,000. The equity in the mother’s property at Suburb FF is completely offset by her debts. The equity in the father’s home, the former matrimonial home, is largely offset by his non-legal expenses debts, leaving $114,000 equity there.

Where the net pool, excluding legal expense loans is as minimal as it is here, caused in part by the borrowings each have made to sustain their living expenses post separation, and where the contributions and s 75(2) matters each favour the holder of the limited current assets, caution is called for in identifying any adjustment as just and equitable. Caution should also be exercised in attempting an adjustment on the basis of percentages as their application to a pool of such small size brings a potentially false impression of mathematical certainty that may conflict with a genuine consideration of whether the outcome is just and equitable.
There is a strong argument in favour of adjusting the superannuation. A significant part of the father’s superannuation has been accumulated since the start of the relationship. However, as at the trial, the parties had been separated for about as long as they were in a relationship, and there was no indication as to the extent to which the increase in the superannuation was the product of post separation contributions. There was also no indication that the values ascribed by each of the parties accords with s 90XT of the Act. Further, there was no evidence to suggest that the trustee of the relevant scheme has been accorded procedural fairness in accordance with s 90XZD of the Act. The consequence is that there is no scope to make a superannuation splitting order pursuant to s 90XT, a result that accords with the position put by the father.
That leaves any split of property as confined to the current assets of the parties, in the knowledge of the differing superannuation positions of the parties. Excluding the parties’ motor vehicles, the father holds net property, including cash at bank of $120,000 and the debt for costs owed by the mother of $19,500.
Despite the small scope of the pool, the short duration of the relationship, the imbalance of contributions favouring the father, and the imbalance of s 75(2) matters favouring the father, in the absence of the capacity to adjust the superannuation interests an adjustment is required in the current assets to the mother to meet the requirements of justice and equity. It should be acknowledged that the impact of the superannuation is minimal in comparison to the allocation of the small amount of current property, given the substantial delays before either party will be able to access their superannuation.
A just and equitable result is, in part, achieved by the effective removal of the mother’s debt to the father of $19,500 in respect of a previous costs award. That simultaneously worsens his position and improves the mother’s position. On its own it is insufficient to meet an appropriate adjustment of property to the mother, and the father will be required to make a further cash payment to the mother of $40,000. When this cash adjustment is combined with the effect of the removal of the $19,500 debt, the adjustment of the current assets favours the father and reflects the disparity in superannuation, whilst taking into account the disparity in contributions and s 75(2) matters, in the context of a small pool.
Noting that it has not been identified that the father can finance a payment other than by sale of the home, it may be observed that the orders may have a heavy impact upon him.
Spousal maintenance application
The mother sought that the father pay spousal maintenance to her of $100 per week until she might remarry.
The spousal maintenance aspect of the mother’s application may be dealt with summarily.
The power to order spousal maintenance pursuant to s 74 of the Act is conditioned upon the order being “proper”, on the spouse being unable to adequately self-support, and where the other spouse is reasonably able to provide that support. These matters are to be considered through the considerations set out at s 75(2) of the Act.
In her limited oral evidence the mother disclosed that she is about to commence employment with a Government Organisation. She made no disclosure as to the income to be received. On that state of the evidence, she has not established an inability to adequately self-support. In any event, it is also far from clear that the father has a reasonable ability to provide support. The spousal maintenance application will be dismissed.

I certify that the preceding three hundred and forty-two (342) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.
Associate:
Dated: 2 August 2022

File number:	CAC 239 of 2017
Judgment of:	GILL J
Date of judgment:	2 August 2022
Catchwords:	FAMILY LAW – PARENTING – Where the father seeks sole parental responsibility for the child – Where the mother is impacted by mental health issues – Where the mother holds deeply entrenched views that the father has been abusive and neglectful towards her and her child – Where the mother has been exerting controlling and coercive behaviour and communication towards the father – Where there is risk that the mother’s behaviour and influence will negatively impact upon the child – Orders made for the child to live with the father, who will also have sole parental responsibility, and for the child to spend time with the mother. FAMILY LAW – PROPERTY – Settlement in relation to short marriage with small pool – Where both parties are in a parlous financial position – Where caution is exercised in considering any adjustment of the limited assets held by the parties – Where the father sought no adjustment to property – Where the mother sought adjustments, including of superannuation – Where no procedural fairness had been accorded to the superannuation trustee – Spousal maintenance application dismissed – Assets to remain with the parties.
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 65DAA, 72, 74, 75, 90XT, 90XZD, 102NA
Cases cited:	Aleksovski v Aleksovski (1996) FLC 92-705 Bevan v Bevan (2013) 49 Fam LR 387 Chorn & Hopkins (2004) FLC 93-204 DJM & JLM (1998) FLC 92-816 Dickons v Dickons (2012) 50 Fam LR 244 Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143 In the Marriage of Robb (1994) 490 FamLR 489 Jabour & Jabour (2019) FLC 93-898 Jollie & Dysart [2014] FamCAFC 149 Saska & Radavich [2016] FamCAFC 179 Stanford v Stanford (2012) 247 CLR 108 Strand & Strand (No 2) [2018] FamCAFC 247
Division:	Division 1 First Instance
Number of paragraphs:	342
Date of hearing:	7 – 11 June 2021
Place:	Canberra
Counsel for the Applicant:	Mr Haddock
Solicitor for the Applicant:	Infinity Legal
Counsel for the Respondent:	Mr Stagg
Solicitor for the Respondent:	Legal Aid ACT
Solicitor for the Independent Children's Lawyer:	Ms Burgess

CAC 239 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR BRADBURY Applicant
AND:	MS LANDER Respondent
INDEPENDENT CHILDREN’S LAWYER

order made by:	GILL J
DATE OF ORDER:	2 AUGUST 2022

Ownership		Description		Applicant Husband’s value	Respondent Wife’s value
ASSETS
1.		H	Suburb GG, ACT property	$ E 460,000.00	$ E 460,000.00
2.		W	Suburb FF, ACT property	$ E 500,000.00	$500,000.00
3.		H	Motor Vehicle 1	$ E 1,000.00	$ E 1,000.00
4.		W	Motor Vehicle 2	$ E 2,000.00	$ E 2,000.00
5.		H	Bank account – DD Bank #…66	$ 4,190.00	$ 4,190.00
6.		H	Bank account – DD Bank #…93	$ Nominal	$ Nominal
7.		H	Bank account – DD Bank #…48	$ Nominal	$ Nominal
8.		H	Bank account – HH Company #…99	$ 0	$ 0
9.		W	Bank account – NAB #…66	$ NK	$ Nominal
10.		W	Bank account – NAB #…11	$ NK	$ 0
11.		W	Bank account – ANZ #…76	$ NK	$
12.		W	Bank account – BB Bank #…70	$ NK	$ 0
13.		W	Bank account – EE Bank #…39	$ NK	$
Total			$ 967,190.00	$ 967,190.00
LIABILITIES
14.		H	Mortgage – Suburb GG, ACT Bank account – DD Bank ending #…45	$ 228,376.00	$228,875.00
15.		W	Mortgage – Suburb FF, ACT Bank account – BB Bank ending #…49	$ E 290,092.00	$ 290,092.00
17.		H	Credit card – CC Bank ending #…46	$ 6,131.00	$ 6,131.00
18.		W	Credit card – NAB ending #…22	$ 1,080.00	$ 1,080.00
19.		W	HELP-FEE (Formally HECS)	$ 26,110.78	$ 26,110.78
20.		H	Loan from Mr LL & Ms E – non legal fee component	$ 118,381.74	$ 118,381.74
21.		W	Loan from Mr Lander & Ms B Lander – non legal fee component and repayment	$ 56,111.80	$ 56,111.80
22.		W	Costs Orders	$ NIL – Financial Orders	$ 19,500.00
Total			$ 726,282.54	$ 746,282.00
TOTAL TANGIBLE POOL			$ 240,907.45	$ 220,908.00
SUPERANNUATION
Member		Name of Fund	Type of Interest	Applicant’s value	Respondent’s value
23.	H	KK Super Fund	Accumulation	$ 201,277.00	$ 201,277.00
24.	W	JJ Super Fund #716	Accumulation	$ 4,578.83	$ 4,578.83
Total		$ 205,855.83	$ 205,855.83
FINANCIAL RESOURCES
Ownership		Description		Applicant’s value	Respondent’s value
25.	H	Wedding and Engagement rings		Nominal	Nominal
26.	H	Computer and Electronic Equipment		Nominal	$ 10,000.00
27.	W	Superannuation Re-draw		$ 20,000.00	$
28.	W	Costs Orders		$ 19,500.00	Nominal
Total		$ 39,500.00	$ 10,000.00
TOTAL POOL				$ 446, 796.00	$ 426,763.83
FUTURE NEEDS
Ownership		Description		Applicant’s value	Respondent’s value
28.	H	Personal loan-Mr LL & Ms E		$ 126,826.26	$ 245,208.00
29.	W	Personal Loan – Mr Lander & Ms B Lander Legal Fee Component		$ 160,000.00	Personal Loan-Mr Lander & Ms B Lander