Chosar & Chosar - [2023] FedCFamC2F 735

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chosar & Chosar [2023] FedCFamC2F 735

File number(s): PAC 5076 of 2019

Judgment of: JUDGE NEWBRUN

Date of judgment: 16 June 2023

Catchwords:
FAMILY LAW – PARENTING – Best interests of child – orders made.

FAMILY LAW – PROPERTY – Just and equitable property orders made.

Legislation:
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60DA, 60DAA, 65D, 75(2), 79(2)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.06

Mental Health Act 2007 (NSW) s 32

Cases cited:
Black & Kellner (1992) 15 Fam LR 343

In the Marriage of SW and WH Weir (1992) 16 Fam LR 154

Lotta & Lotta [2017] FamCA 50

Saif & Saif [2020] FamCA 119

Division: Division 2 Family Law

Number of paragraphs: 340

Date of hearing: 31 March 2023, 3–4 April 2023

Place: Parramatta

Counsel for the Applicant: Mr Havenstein

Solicitor for the Applicant: Byron & Associates

Counsel for the Respondent: Ms Mahony

Solicitor for the Respondent: Rowlandson & Co Solicitors

Counsel for the Independent Children's Lawyer: Mr Ladopoulos

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

PAC 5076 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CHOSAR

Applicant

AND:
MS CHOSAR

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE NEWBRUN

DATE OF ORDER:

16 June 2023

THE COURT ORDERS THAT:
PARENTING
1.The mother have sole parental responsibility for the child X born in 2018 (“the child”).
2.The mother:
(a)notify the father of any proposed decision relating to the long term care and welfare of the children and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made;
(b)take into consideration any views expressed by the father about the proposed decision; and
(c)notify the father of her final decision within seven days of having made the decision.

3.The child live with the mother.
4.The child spend time with the father as follows:
(a)From the date of these Orders and for a period of eight weeks thereafter, each alternate weekend from 10.00 am until 2.00 pm on Sunday, commencing on the second Sunday after these Orders;
(b)Thereafter and for a period of a further eight weeks, each alternate weekend from 10.00 am until 4.00 pm on Sunday;
(c)Thereafter and for a period of a further eight weeks, each alternate weekend from 10.00 am until 4.00 pm on Saturday and from 10.00 am until 4.00 pm on Sunday;
(d)Thereafter and until the commencement of Term 2 in 2024, each alternate weekend from 10.00 am on Saturday until 4.00 pm on Sunday;
(e)From the commencement of Term 2 of 2024 until the commencement of Term 1 in 2025, as follows:
(i)During school term, each alternate weekend from after school on Friday until 4.00 pm on Sunday, commencing on the first weekend of each school term, and;
(ii)During the school holiday periods at the end of Term 2 and Term 3 in 2024, from 10.00 am on the second Saturday until 6.00 pm on the following Tuesday, and;
(iii)During the school holiday period at the end of Term 4 of 2024:
A.From 10.00 am on Boxing Day until 5.00 pm on 31 December 2024;
B.From 10.00 am on 7 January 2025 until 5.00 pm on 11 January 2025; and
C.From 10.00 am on 18 January 2025 until 5.00 pm on 22 January 2025;

(f)From the commencement of Term 1 of 2025 during school terms, each alternate weekend from after school on Friday until before school/pre-school on Monday, commencing on the first weekend of school term;
(g)From 2025 onwards, during the New South Wales school holiday periods at the end of Terms 1, 2, and 3:
(i)In all years ending in an odd number (e.g. 2025), from after school/pre-school on the last school day of term until 6.00 pm on the second Saturday of the school holiday period;
(ii)In all years ending in an even number (e.g. 2026), from 6.00 pm on the second Saturday of the school holiday period until before school/pre-school on the first day of the new school term;

(h)From 2025 onwards, during New South Wales Christmas school holidays:
(i)Where the school holiday period commences in a year ending in an odd number (e.g. 2025), from 6.00 pm on 24 December until 6.00 pm on 10 January; and
(ii)Where the school holiday period commences in a year ending in an even number (e.g. 2026):
A.From 6.00 pm on 23 December until 6.00 pm on 24 December; and
B.From 6.00 pm on 10 January until 6.00 pm on 26 January.

5.The child shall spend additional time with the father as follows:
(a)On the Father’s Day weekend in 2024 (and Father’s Day weekends thereafter) from 6.00 pm on Saturday until 6.00 pm on Sunday; and
(b)Such other times and the mother and father may agree to in writing.

6.The child’s time with the father pursuant to Order 4 herein shall be suspended on:
(a)Each Mother’s Day weekend, from 6.00 pm on Saturday until 6.00 pm on Sunday; and
(b)Such other times as the mother and the father may agree to in writing,

and the child shall be returned to the care of the mother between those times.
7.For the purposes of these Orders, unless otherwise agreed between the father and the mother, changeovers shall occur:
(a)At the child’s school if the changeover occurs on a school day; or
(b)At B Store at C Street, Suburb D.

8.The mother and the father ensure the child is at liberty to telephone the other parent at such reasonable times as the child wishes to do so.
9.The mother and father shall:
(a)provide each other with and keep each other advised of the names and addresses of the child’s treating doctors;
(b)inform the each other in writing as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist ("specialist medical consultant") in relation to the child; and
(c)ensure that the other parent is provided with a copy of any report by any such specialist medical consultant in relation to the child, within 14 days of the mother’s receipt of the report.

10.Both the father and mother shall be entitled to:
(a)attend any appointments with any treating doctor or specialist medical consultant relating to the child; and
(b)discuss the child’s condition with such treating doctor or specialist medical consultant,

however, such attendance(s) shall be at the discretion of the treating doctor or specialist medical consultant.
11.The mother shall ensure that the father is notified as soon as practicable if, while in her care:
(a)the child is admitted to hospital;
(b)the child is involved in a medical emergency; or
(c)the child will be required to take medication when he spends time with the father, in which case the mother shall advise the father of the details of the medication required to be taken and shall provide the father with sufficient medication to cover the period that the child is to spend with the father.

12.The father shall ensure that the mother is notified as practicable if, while in his care:
(a)the child is admitted to hospital;
(b)the child is involved in a medical emergency; or
(c)the child will be required to take medication when he returns to the mother’s care, in which case the father shall advise the mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the first 72 hours following child’s return to the mother’s care.

13.These Orders authorise any pre-school and/or school which the child is attending from time to time to provide both the mother and the father with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the father in relation to the child.
14.The father be and is hereby restrained by injunction from:
(a)denigrating the mother or a member of her family in the presence or hearing of the child;
(b)using physical discipline towards the child; or
(c)discussing these proceedings in the presence or hearing of the child.

PROPERTY
15.Within fifty six (56) days from the date of these Orders the husband pay the wife the sum of $435,158.
16.Should the husband fail to comply with the above Order, then the parties shall do all acts and things and sign all necessary documents to cause the property situate at and known as E Street, Suburb F in the State of New South Wales being the whole of the land contained in folio identifier … (“the property”) to be listed for sale on the following terms:
(a)list the property forthwith for sale by public auction with an agent ("the agent”), the identity of the agent to be as agreed between the parties and failing agreement the parties shall accept the nomination of the agent by the President for the time being of the NSW Chapter of the Real Estate Institute of NSW;
(b)the listing price shall be agreed between the parties in writing or failing agreement, within seven (7) days, should be fixed by the agent;
(c)the parties shall instruct Rowlandson & Co Solicitors to act on the conveyance of the property and, failing those solicitors agreeing to so act, within a period of seven (7) days the parties shall accept the nomination of a solicitor as appointed by the President for the time being of the Law Society of New South Wales and the costs of and incidental to that appointment will be borne equally by the parties;
(d)the parties shall execute all documents requested by the agent for the sale of the property by public auction on the following terms:
(i)the auction to take place no later than ninety (90) days from the date of these Orders or such other date as the parties may agree in writing;
(ii)the parties shall request the agent to appoint the auctioneer;
(iii)failing agreement, the parties shall request the auctioneer to recommend a reserve price for the purposes of the auction sale and shall accept such recommended reserve price;
(iv)the parties shall attend the auction sale and negotiate with the highest bidder in the event that the reserve price is not reached and shall accept the advice of the auctioneer as to the acceptance of a price less than the reserve price, either during or after the auction;
(v)the parties shall cooperate in every way with the agent in relation to the sale of the property by public auction including providing keys to the agent;
(vi)the parties shall execute all other documents necessary to complete the sale of the property; and
(vii)that in the event that contracts have not been exchanged on a sale by public auction, the parties shall execute all documents requested by the agent for the sale of the property by public auction (“the second auction”) on the following terms:
A.the second auction to take place no later than sixty (60) days from the date of the first auction or such other date as the parties may agree in writing;
B.the parties shall request the agent to appoint the auctioneer;
C.failing agreement, the parties shall request the auctioneer to recommend a reserve price for the purposes of the second auction and shall accept such recommended reserve price;
D.the parties shall attend the second auction and negotiate with the highest bidder in the event that the reserve price is not reached and shall accept the advice of the auctioneer as to the acceptance of a price less than the reserve price, either during or after the auction; and
E.in the event that such contracts are not exchanged by way of auction in accordance with these Orders, the parties thereafter have liberty to apply to the Court in relation to further orders to implement the sale of the property.

17.From the proceeds of sale of the property, the parties cause the proceeds of sale to be paid in the following manner and priority:
(a)to discharge the mortgage secured over the property in favour of G Pty Ltd being mortgage registered no. …;
(b)to pay all real estate agent's commission and expenses associated with the sale;
(c)to pay all legal costs and disbursements relating to the sale;
(d)the payment to the wife in the sum of $435,158 less her half share of the expenses in (b) and (c) above;
(e)the payment to the husband in the sum of $105,842 less his half share of the expenses in (b) and (c) above;

18.Unless otherwise provided for in these Orders:
(a)the parties are each entitled to the sole legal and beneficial ownership of all items of property including but not limited to realty, money, motor vehicles, insurances, shares, equities and personal effects, and superannuation benefits currently in their possession or control of each of them respectively; and
(b)the parties shall each be solely liable for and indemnify the other against all liability encumbering all items of property to which each party respectively is entitled pursuant to these Orders and against all liability currently in the name of each party respectively.

19.In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, then the Registrar of the Court shall be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the defaulting party and to do all things necessary to give validity to such deed, document or instrument upon receipt of affidavit evidence of such refusal or failure.

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

These are Reasons for Judgment relating to a final parenting and property hearing held before the Court on 31 March 2023 and 3–4 April 2023. The final parenting hearing relates to X born in 2018 (“the child”).
The husband and wife both appeared, legally represented.
Interim parenting Orders were made on 8 April 2020 that the child live with the wife and spend time with the husband each fortnight for two hours, supervised by H Contact Centre or J Contact Centre.
MATERIAL RELIED UPON (BOTH PARENTING AND PROPERTY)
The husband relied upon the following documents:
(a)His case outline filed 30 March 2023;
(b)His Amended Initiating Application filed 17 October 2022;
(c)His affidavit filed 6 October 2022;
(d)His Financial Statement filed 6 September 2022;
(e)Family Report of Dr K dated 7 October 2021 (Exhibit K).
The wife relied upon the following documents:
(a)Her case outline filed 29 March 2023;
(b)Her Amended Response to Initiating Application filed 19 August 2022;
(c)Her affidavit filed 19 August 2022;
(d)Her Financial Statement filed 19 August 2022.
The following documents became exhibits:
(a)Exhibit A: Emails from H Contact Centre dated 28 June 2021 and 20 July 2021;
(b)Exhibit B: Coloured photo in relation to incident in mid-2019;
(c)Exhibit C: Email correspondence from L Law Firm dated 29 July 2021;
(d)Exhibit D: Letter from husband (undated);
(e)Exhibit E: Minute of Order sought by the wife;
(f)Exhibit F: COPS Event Record contained within documents produced by NSW Police Subpoena dated 22 July 2019;
(g)Exhibit G: Husband’s NSW Police criminal history;
(h)Exhibit H: Wife’s tender bundle;
(i)Exhibit I: The wife’s CBA Bank Statements dated late 2017 to early 2018;
(j)Exhibit J: Financial records of the husband; documents relating to M Pty Ltd;
(k)Exhibit K: Family Report dated 7 October 2021;
(l)Exhibit L: Transcript of recording of 19 April 2019;
(m)Exhibit M: Joint balance sheet;
(n)Exhibit N: ICL’s Minute of Order.
PARENTING PROPOSALS
The Independent Children’s Lawyer (“the ICL”) seeks orders as set out in his Minute of Order (Exhibit N), inter alia, that the wife have sole parental responsibility for the child, and that the child live with the wife. In relation to time spent with the child, the ICL proposed the husband spend unsupervised time with the child on a graduating basis commencing with daytime time and leading to overnight time.
The husband adopted the ICL’s proposed orders above.
The wife seeks orders as set out in her Minute of Order (Exhibit E), inter alia, that she have sole parental responsibility, and that the child live with the wife and spend time with the husband unsupervised on a graduating basis but during the daytime only.
PARENTING
Evidence
In the determination of this case the Court has had regard to all of the documentary evidence referred to above, together with the oral evidence of the parties and the Family Report writer. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed. However, those that are relevant to the Court’s determination will be considered either in this section or whilst addressing the section 60CC factors (see below). Evidence referred to under the section 60CC considerations shall, in the event of any conflict with the evidence referred to in this section, take precedence.
Both father and mother presented reasonably well as witnesses and sought to give responsive answers to questions asked of them. They were both quite well composed despite lengthy cross-examinations. There was a firmness at times in the father’s oral evidence, perhaps suggesting a strong personality in the father, but the Court is not critical of the father in that regard. The father on numerous occasions stated that he could not recall an occurrence when questioned.
The husband’s affidavit
The Court does not propose to set out the entirety of the husband’s affidavit in relation to parenting issues.
The parties married in 2018. They separated on a final basis in July 2019.
The husband has two male children from his previous relationship who reside with him four nights a week. Those children are O and Mr N, aged 17 and 20 years. They have not spent time with the child since about July 2019. The child’s paternal grandparents have not spent time with him since late June 2019. The child has paternal aunts, uncles and cousins who have also not spent time with him since about July 2019.

The wife has a child from a previous relationship, P, aged 10 years.
The husband asserts that he was the child’s primary carer up to 3 June 2019 and that the wife assisted him in his care.
After the child’s birth the husband was still engaged in full time work.
The husband has not spent time with the child since July 2019.
The husband was born in Country HH and migrated to Australia in 2003.
Since 2008, Mr N and O have resided with the husband between four to six nights a week. They now reside with the husband each week from Sunday 6.00 pm until Thursday 6.00 pm. Since Mr N and O’s birth the husband has attended to their needs. The husband asserts that both Mr N and O are excelling in school.
The husband is self-employed as a professional and operates his business from home.
In late 2019, the husband voluntarily attended and completed a course called Q Program run by R Counsellors. Modules included managing distress, emotions, tolerance, and another was identifying abuse.
The wife’s affidavit
The Court does not propose to set out the entirety of the wife’s affidavit in relation to parenting issues.
The wife asserts the parties commenced cohabitation in 2016 when the wife with her daughter moved into a unit at Suburb F, which was only a ten minute walk to the Suburb F property. The wife then regularly stayed overnight at the Suburb F property two nights per week, and in addition, she spent Saturday and Sunday daytime there. She also recalls that while the husband’s sons were spending time with their mother, the husband frequently came to the unit and on occasions stayed overnight. In addition to the two nights per week on average that the wife asserts she stayed at the Suburb F property, she also went there on numerous occasions during the week, for example to do washing and other such chores.
The wife asserts that she was the primary carer of the child during the parties’ relationship, and from July 2019 she has been the sole carer of the child and continues to do so.
The wife recalls the husband providing little assistance during night times with the child. From the child’s birth until early June 2019 the husband worked long hours developing his new business, and during this period the most time that the husband spent with the child would be about an hour, and on many occasions, after approximately an hour, the husband would shout at the wife to either get home or take care of the child.
The wife stated that she left the Suburb F property with the child on 5 June 2019. The husband visited three times.
The wife returned to the Suburb F property on 12 July 2019. At that time the husband insisted the wife be solely responsible for the child. The wife remained at the Suburb F property from 15 July until late July 2019.
In late July 2019 the wife spent the day at the Suburb F property with the child and the husband was present.
The parties had a conversation in the matrimonial bedroom in relation to parenting arrangements involving the husband’s sons Mr N and O. O and the child were in another part of the house.
At one point the husband handed the child to the wife, the wife turned her back to the husband, and all of a sudden she felt a forceful push to her head and she lost balance and the child’s head hit a glass sliding door. The child was screaming. The wife called out “help, help”. The parties’ neighbours called the police. The husband took the child from the wife’s arms. The husband verbally threatened the wife not to report the incident to NSW Police or he would send the wife to a mental asylum.
The husband’s child O, then 13 years old, was present behind the wife. The husband asked him not to leave. The husband told the wife that she needed to go after O and apologise to him for screaming. The husband told the wife that he wanted her to leave the house. He told her that if she ever came back again he would ruin her and she would have nothing. He said if she ever came back to the house he would burn it down. The wife was in shock. The police attended. They viewed CCTV footage of the incident. The husband was arrested.
The wife was profoundly affected by the incident in 2019 and she is still very scared of the husband. She is especially scared because the husband assaulted her whilst she was holding the child.
In mid-2019 NSW Police applied for and were granted a Provisional ADVO against the husband for the wife and the child’s protection. In late 2019 the husband pleaded guilty to assaulting the wife and intimidating her in mid-2019. In late 2019 a final ADVO was made in the wife’s favour for the protection of herself and the child for two years.
The wife has caused the child to attend day care. When the wife began full-time work in 2021 the child was spending five days a week in childcare.
The paternal grandmother is 80 years of age, and the paternal grandfather has passed away. The husband has three other sisters and each have their own families.
The wife recalls that when she was living with the husband, his work arrangements were not flexible to the degree required to take care of an infant, as he was required to be available to his clients during the daytime and after hours in the evenings. As the husband worked from home, the wife needed to keep the child in a room separate to the husband so that the child’s noise would not affect the husband.
The husband told the wife early in the parties’ relationship that he had installed several CCTV cameras both inside and outside the Suburb F property’s home.
The wife, having moved into the Suburb F property in 2018, had many conversations with the husband in relation to him removing the internal CCTV cameras as the wife considered it to be an invasion of her privacy and she also did not want such cameras in the children’s rooms, especially her daughter’s room.
On many occasions whilst the wife was living in the Suburb F property the husband advised her that he had been watching her and the wife would be criticised, for example, if she was playing with her daughter or the child and not doing housework. Another example was if the wife decided to sit down on the lounge to take a break from cooking or washing, the husband would come out of his work office and berate the wife and belittle her, and on many occasions this occurred in front of the child and also the wife’s daughter and husband’s children.
In early 2018 the parties had an argument in the living room of the Suburb F property. The husband grabbed the wife’s wrists and shook them with force causing the wife pain. The wife sent text messages in relation to this incident to some of the husband’s extended family members (Annexure B to the wife’s affidavit).
In early 2018 the husband was raging at the wife about shampoo on the shower screen and threatened to physically assault the wife. The wife tried to ring the husband’s sister for help but the husband took the phone off her. He ran down the hall at the wife, scaring the wife into falling backwards into a door. The wife started screaming in fear as the husband continued to shout at her. The husband then went and got the wife’s daughter out of bed and started telling her to look at the wife, her “crazy mother”. The wife’s daughter looked distressed. As the wife and wife’s daughter moved towards the front door the husband shouted at the wife telling her that if she walked out the door she would never come back.
In late 2018 there was an argument between the parties in relation to the wife seeking exclusive use one of the two bathrooms for herself as she was struggling with her pregnancy including cramping. The husband threatened to beat up the wife and throw out the wife’s daughter’s toys. The husband proceeded to empty the wife’s daughter’s shelves and put them in the outside bin. The wife contacted NSW Police who attended. The police spoke to both parties. At this time the wife was in fear of the husband.
There was an argument between the parties in early 2019 and the wife contacted NSW Police as the husband was threatening to have the wife leave the Suburb F property and he had raised a hand to hit the wife. The police attended.
In early 2019 the parties had an argument about the husband’s use of CCTV in the Suburb F property.
In mid-2019 the parties had an argument and the husband twisted the wife’s arms and jerked her body.
In mid-2019 the husband told the wife to get out of Mr N’s room and pushed her hard by the arm.
The husband is currently assessed to pay the wife for the benefit of the child the sum of $8.80 per week.
Oral evidence of the husband (parenting)
The Court does not propose to set out the entirety of the husband’s oral evidence in relation to parenting issues.
The husband confirmed that since separation he had spent supervised time (starting on about 27 June 2020) with the child every second weekend and acknowledged that for at least one year there were no visits (visits had ceased in about July 2021). Presently, the child spends supervised time with him at his home for about an hour each fortnight, which has been occurring since about 22 October 2022.
The husband acknowledged that an email from the supervisory service H Contact Centre dated 20 July 2021 to the wife referred to the husband requesting that supervised visits cease and resume when it is safe to do so “given the nature of the virus strain” to reduce the risk for the child (see Exhibit A).
The husband agreed that he had spent time with the child for his birthday in 2021. He acknowledged that his statements in paragraph 28 and 37 of his affidavit filed 6 October 2022 stating that he had not spent time with the child since July 2019 were incorrect. He stated that contrary to paragraph 59 of that affidavit his sons from a former relationship had had one or two visits with the child since about July 2019.
The husband agreed that his full-time work following the child’s birth continued up until the parties’ separation.
The husband was cross-examined in relation to the separation incident in 2019.
The husband denied pushing the wife whilst the wife was holding the child causing her to fall against a door. He denied that the child’s head hit the frame of the door. He stated that the wife had tripped on something. He denied that the child and the wife had ultimately fell into a sliding door. He denied hitting the wife in the back. He agreed the wife was screaming at this time. He denied physically holding the wife back and denied continuing to push the wife. He stated he put his hand on the wife’s mouth. He stated that when the wife stopped screaming she gave him the child. He stated the wife sat on the steps of her own accord. He denied that he told the wife not to ever report the matter to the police or he would send her to an asylum. He denied that he said to her that he will make sure that she never sees either of her children again. He denied telling his son O not to go. The husband stated that he had told the wife that if O left the house he did not want anything more to do with the wife. He disagreed that this child was trying to leave the house. He denied verbally threatening the wife as alleged in paragraph 40 of the wife’s affidavit filed 19 August 2022.
The husband confirmed that he appealed his Local Court sentence for assault upon the wife (assault in 2019) and that he appealed the severity of his sentence to the District Court of NSW and in that Court he had made an application pursuant to section 32 (the Court infers, of the Mental Health Act 2007 (NSW)). He was asked whether in mid-2019 he was suffering from a mental health disorder to which the husband agreed and explained that he was experiencing stress and strain caused by the wife.
In relation to the assault upon the wife in 2019, the husband stated that he had pushed the wife on her elbow when she was holding the child.
The husband stated he had not completed any family violence perpetrators course. The husband stated that he was evaluated and he was put on a course called S Program.
The husband stated that he did not consider himself a family violence perpetrator and explained that he was protecting the child from repeated abuse and that there had been a DOCS report.
It was put to the husband that he had not responded in his affidavit filed 6 October 2022 to the wife’s allegations relating to the incident in 2019 set out in her affidavit filed 19 August 2022. The husband stated that he responded in another document and referred to a lack of communication with the previous solicitor who acted for him. He denied that he did not dispute the wife’s allegations.
The husband agreed that a CCTV camera had been installed at the Suburb F property. This camera could access the kitchen, dining room, one of the children’s bedrooms, the front entrance, side yard of the house, and the front and back areas of the yard.
The husband stated that the wife, after moving into the Suburb F property in 2018, had asked another person about removal of the camera from the internal areas of the house. The wife had raised a privacy issue with that other person.
The husband denied using the camera inside the house to monitor the wife. He denied the wife had asked him to remove the cameras. He denied that the wife had said that she was upset by the cameras. He agreed that the images from the cameras were visible from his office in the house. He denied berating the mother during the parties’ relationship for not doing her house keeping job properly.
The father agreed that the police had viewed the footage from the camera in relation to the incident in 2019. He agreed it showed him standing close to the mother with his right hand raised as if he was going to strike her. He agreed it showed him pushing the mother from behind when the mother was holding the child. He agreed it showed him standing over the mother and the mother was on the steps. He agreed it showed his hand over the mother’s mouth and his hand on the mother’s back. He agreed that he had told the police that he had used his hands to shut the mother up. He agreed his behaviour was intimidating, having previously told the police in 2019 that he did not consider his behaviour was intimidating.
The husband accepted that the wife was fearful of him by reason of the incident in 2019.
The husband did not accept that the wife had concerns for the child’s safety in relation to the incident in 2019. A short time later the husband was asked whether he agreed that his conduct would have caused the child emotional distress, to which he replied that it could have. He agreed that his behaviour at this time would have scared the child. The husband was then asked whether he appreciated why the wife was fearful of him harming the child, to which he replied in the negative.
The husband was asked whether he appreciated why it was uncomfortable for the wife living in the house where her conduct could be seen on camera, to which the husband responded in the negative. He was asked whether he appreciated why the mother might feel like a prisoner inside the house, to which the husband denied.
The husband did not accept that he was controlling of the wife during their relationship. He did not accept that he was threatening towards the wife to get her to act in a particular way. He did not accept that he used the CCTV camera within the house to monitor the wife leaving the house, for example if she went shopping.
The husband denied assaulting the wife in early 2018.
The husband denied threatening to assault the wife on another occasion in early 2018. He denied snatching the wife’s phone from her. He denied the wife’s related allegations in paragraphs 131, 132, and 133 of the wife’s affidavit filed 19 August 2022.
As to the wife’s allegations regarding an incident in late 2018 in her affidavit, the husband agreed that he was upset with the wife’s suggestion that he and his sons have one bathroom and the wife have the other bathroom. He agreed that he had said to the wife, “How dare you move things in the bathroom. The boys lived here before you. You have no idea. You won’t listen to me.” He denied threatening to beat the wife or raising his hand at her. He denied the wife’s allegations in paragraph 137 of her affidavit. He denied moving the wife’s daughter’s things. He agreed the wife had called the police and they attended the house. He denied being angry at the police or telling them that his son was crying.
The husband denied the wife’s allegations relating to an alleged incident in early 2019 albeit he did not recall the police attending the house at this time.
As to the wife’s allegations regarding another incident in early 2019, the husband denied these allegations including that he had put his middle finger up to her (the Court observes that Annexure C to the wife’s affidavit is a text message to the parties’ couple’s counsellor stating, inter alia, that the husband was refusing to take the security cameras down and he also gestured at the wife with his middle finger).
The husband was cross-examined in relation to a third incident in early 2019 and referred to in paragraphs 149 to 151 of the wife’s affidavit. The husband agreed that during the subject conversation with the wife he was speaking over her and that the wife was trying to talk to him and he was cutting her off. The husband denied leaning on top of the wife or physically placing his body weight on her. He denied trying to intimidate the wife (the Court observes that the transcript of the parties’ conversation that day is contained in Exhibit L).
As to the wife’s allegations regarding an incident in mid-2019, the husband denied twisting the wife’s body (the Court observes that Annexure D to the wife’s affidavit is a copy of a text message of that date by the wife to a priest asserting that the husband had just twisted her arm 20 minutes ago and it ached).
As to the wife’s allegations regarding another incident in mid-2019 being an allegation that the husband pushed the wife hard by the arm which caused her pain and two days later there was a bruise on her arm in relation to which she took a photograph, the husband denied pushing the wife stating that he just moved her by holding her arm. He stated that the wife tried to jerk her arm away and she hurt herself. He stated that the wife had barged into his son’s room whilst he was seeking to speak to his son. He stated that it was unreasonable for the wife to jerk her arm away from him (the Court observes that Annexure D to the wife’s affidavit is a coloured photograph of the wife’s arm showing a bruise).
The husband was asked whether he was aware that the wife had sent a photograph of the child to his son Mr N, to which the husband replied that the wife was being manipulative.
The husband stated that regarding his sons from his prior relationship sometimes the wife had shown an interest in their schoolwork. He stated that in a general sense the wife had done a very good job with the child.
The husband denied verbally abusing the wife’s daughter and slapping her on the back during the relationship.
He denied yelling at his sons from his former relationship and calling them names and that the wife had to intervene.
The ICL cross-examined the husband.
The husband stated that he had brought up his two sons from his former relationship. He stated that his son O has been living with him since he was aged five years.
The husband stated the child turns five years in 2023 and will start school in 2024.
The husband stated that he believed in the children having a very rounded relationship with their other family. In this context he stated that he allowed his sons from his former relationship to go to Country HH to see their mother. He stated he has an amicable relationship with their mother.
The husband stated that the paternal grandmother lives in Suburb T, a five minute walk away.
The husband stated that he could finish work at 3.00 pm to 4.00 pm, pick up the child and take him to several events as he has done with his two other boys from his former relationship.

The husband stated that he was prepared to take the child to activities if the child was to live with the mother but spend substantial and significant time with him.
The husband confirmed that he had had very limited communication with the wife from mid‑2019 to the present time.
The husband was questioned as to his counselling referred to in paragraph 111 of the family report. He confirmed counselling through psychologist Mr U which was completed one year ago. The husband stated that he gives this psychologist a call every now and then however there is no need now.
Oral evidence of the wife (parenting)
The Court does not propose to set out the entirety of the wife’s oral evidence in relation to parenting issues.
The wife confirmed that in her Response filed 16 December 2019 she had sought final parenting orders that the child spend time with the husband as agreed between the parties. She stated that at that time she had hoped that the parties could agree on this issue. She stated that the parties could possibly reach agreement through the My Family Wizard parenting app.
The wife agreed that the catalyst for the parties’ separation was the incident in mid-2019.
The wife denied that the husband had just pushed her elbow as she was allegedly abusing the husband’s eldest son. The wife admitted that she was angry with the husband at about this time as the parties had a disagreement. The wife agreed that at about this time the parties were having a heated argument.
In relation to an incident between the parties in mid-2019, the wife agreed that the husband had grabbed her by the arm to move her away from the children. She denied pulling her arm away.
The wife stated that she had told the Family Report writer of a therapist named Ms V who she started seeing in maybe late 2020. The wife stated that she had ceased seeing Ms V but she was not sure when. She stated that she did not think that she ceased seeing Ms V prior to late 2021. She stated that she transitioned to the W Program regarding women recovering from abusive relationships and ensuring children were looked after. She stated that she is not presently seeing any therapist and she is still in the above program.
The wife was asked whether she was anxious regarding the children possibly spending unsupervised time with the father overnight, to which she replied in the affirmative. The wife stated that she was not presently doing anything to assist her with these anxieties.
The wife stated that the W Program was like a support group with a counsellor talking about managing your fears and life. The wife stated she has started the program. She is not attending regularly but when she can and attendances could be every couple of months. The wife stated that it is something positive that she can do by attending this program. Later, the wife stated that she was going to continue to attend the W Program, and that through this program she could address her fears and get support from the program.
The wife was asked whether she had fears regarding the prospect of the child spending unsupervised time with the father or overnight time with the father to which the wife replied, “I guess so”. The wife stated that she just took the Family Report as a directive to get more support (with her anxieties) and she did.
The wife stated that she was not anxious regarding her proposed final parenting order that ultimately the child spend time with the father during school terms, each alternate Sunday from 9.00 am to 4.00 pm.
The wife was asked about any concerns she might have in relation to the child spending possible overnight time with the father from say 9.00 am Sunday to Monday morning before school. The wife stated that she has not been able to observe any meaningful parenting in the husband and she hasn’t seen any parenting capacity in the husband regarding overnight time.
The wife stated that during the parties’ relationship, during the night times, the husband did not care for the child because he needed to rest.
The wife agreed that the husband had raised two other children. She stated that the outcomes for the father’s children would indicate that he had been a good father to them. She agreed that the father’s children had grown up to be good people.
The wife stated that when she came into the picture with the husband, his children did not need any night time care. She never saw the husband care for the child and when she was very tired she did not see the husband parent in that capacity.
It was put to the wife that she was unable to acknowledge that the husband had cared for his own children and raise them. The wife replied that he must have but that she was not there. She repeated that his children had turned into good people.
The wife stated that she had completed no formal parenting course.
The wife agreed that it was important for the child to have a relationship with the father. In this context, the wife stated that this was because the child would look for a father figure. She agreed that it was important for the child to have a father figure in his life. She agreed it would be beneficial for the child to have a relationship with his two paternal siblings.
The wife was asked what aspects of the husband being a father would be helpful to the child. The wife referred to the child’s identity, knowing who his father was, and getting to interact with his father. She agreed it was important for the child to have an experience of the husband in his day-to-day life.
Regarding the child’s possible lived experience with the husband, the wife was asked whether the husband being involved in the child’s school would be a benefit to the child, to which the wife agreed. She agreed that the husband attending the child’s sporting activities could be of benefit to the child. She agreed that it was important for the child to have the benefit of developing and maintaining a relationship with the extended paternal family such as the paternal grandmother.
The wife was asked whether she thought it enough for the child to only spend time with the husband on alternate Sundays from 9.00 am to 4.00 pm until he reached 18 years. The wife replied in the affirmative stating it was enough for the child to maintain a relationship with the husband. The wife stated that she maintained this proposed order and stated that the husband did not understand the damage to herself and the child from the incident in mid-2019, and that she could not see that the husband had changed.
The wife confirmed that she had not yet addressed “aspects of the relationship dynamics she has created in the past with her trauma counsellor” and referred to in paragraph 110 of the Family Report. She agreed it was important for the child that she manage her own anxieties.
The wife stated it was possible that the child might be affected by picking up on some of her anxieties.
The wife stated that she would comply with any orders of the Court relating to the child spending overnight time with the father. She stated that to assist her in complying with any such orders she would attend the W Program and make renewed efforts to find a therapist.
The wife was asked as to what location might be appropriate if the Court ordered unsupervised changeover in a public space. The wife replied a petrol station with CCTV cameras and people around, in a midway location, but that a McDonald’s restaurant was not ideal.
The wife stated she works full-time, 35 hours per week and attends the office one day a week. The child attends preschool five days per week. She stated that on the day she goes to the office she takes the child to pre-school from 8.00 pm to 6.00 pm. On the other four days, the child’s time at pre-school can vary; typically it is 8.30 or 9:30 am with a pickup at 4.00 pm or 6.00 pm.
The wife stated that she would be comfortable, if the Court was to order the child spend time with the husband during an afternoon, that the husband pick up the child from preschool.
The wife stated the child would begin school next year in a school in the wife’s area.
The wife stated she was comfortable communicating with the husband through the My Family Wizard app.
The wife stated she accepts that the husband loves the child.
The wife stated that she had read the contact reports relating to the child supervised time with the husband. She agreed that they showed an entirely appropriate interaction between the child and the husband, and that there was no fear of the husband by the child. The child enjoyed playing with the husband. There had been occasions when the child and the husband expressed physical affection with each other which was good for the child.
The wife confirmed that she has experienced anxiety regarding possible overnight time between the child and the father, and agreed that that was largely because she hadn’t had a chance to see the husband parenting the child.
The wife agreed that the husband had played a significant role in the raising of his older boys.
The wife agreed that if the child’s time with the father was confined to Sunday daytime time that such time might limit their activities.
The wife agreed that if changeover could take place in a public place where there were cameras that would be a better alternative than professional supervision of changeovers. The wife agreed that with professional supervision there would be implications for the child and that the child would be aware that there was a lack of harmony between the parties.
The wife was questioned in relation to the possible implications of the child only spending Sunday daytime time with the husband. She agreed that the only thing the child would experience would be a good time on the weekend with the husband. In those circumstances the husband would not have the responsibility of otherwise parenting the child. The wife agreed that potentially problems could be caused for herself with the husband being the good time parent and the wife the (authoritarian) parent. She agreed that, for example, the child might think that the wife was the hard person and he wanted to be with the husband. The wife agreed that it was important for the child to have a relationship with the husband on a broad basis.
The wife stated that she was willing to undertake counselling to assist her to overcome her difficulties in relation to the child spending overnight time with the husband. The wife stated that she could not see any difficulties if such counsellor was provided with a copy of the Family Report.
The wife accepted that it might be useful for her to do a parenting after separation course. She would be willing to do a JJ Program course.
Family Report
The Family Report writer was Dr K. Her Family Report is dated 7 October 2021 (Exhibit K). She interviewed the family in March 2021 and had email contact with the husband on 4 October 2021 to clarify points he had made in the interview.
The Court does not propose to set out the entirety of the Family Report.
Under the heading “Family Violence and Abuse”, the Family Report writer stated:
23.[Mr Chosar] said that the incident [in] 2019 was precipitated by a conversation where [Ms Chosar] made it clear she did not want his son [Mr O], who was the child towards whom she seemed to have great antipathy, living in the house and was saying disparaging things to him. [Ms Chosar] claimed that [O] was so distressed that he packed his bags. He stated that and he asked [Ms Chosar] to refrain from speaking to [O] in that way and to leave and take [X] who he did not want to be exposed to the conflict with her. He said that he put his hand on her elbow to nudge her to leave by the side door in order to diffuse the conflict. He stated that [Ms Chosar] started yelling and screaming. He acknowledged that he told [Ms Chosar] that his home was also the children’s home and in addition asked her to leave and told her that he did not want to see her anymore. [Ms Chosar] stated that he accepts and acknowledges he made poor choices on the day.
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25.[In mid] 2019 a Provisional A.V.O. was issued protecting [Ms Chosar]. [Mr Chosar] was charged with [multiple offences in mid] 2019. [In mid] 2019, an Interim A.V.O. was taken out protecting [Ms Chosar] and [X]. [In mid] 2019, [Mr Chosar] was charged with contravention, prohibition or restriction in an A.V.O.
26.[In late] 2019, [Mr Chosar] said that he pleaded guilty to [one charge] and final 2-year A.V.O. protecting [Ms Chosar] and [X] was issued. He said that all other charges were withdrawn. He said that the breaches of the A.V.O. were dismissed as the evidence showed [Ms Chosar] had initiated the contact and forced a friend to be a party against the friend’s wishes. As per his affidavit filed 12th March 2020, on 4th March 2020 the matter was listed at the [Suburb T] local court. [Mr Chosar] pleaded guilty to [one charge] but the [other charge] was withdrawn. He received a conviction […] and he was issued a Conditional Release Order to be of good behaviour for one year. A utilitarian discount was applied to his guilty plea and [another] charge was withdrawn. [Mr Chosar] indicated in the affidavit (paragraph 36) that he lodged a severity plea in respect of the [charge] and contested the Breach of A.V.O. and entered into a not guilty plea to the charges. This was appealed and [Mr Chosar] has no conviction as the matter was dealt with under discharge to attend counselling with [Dr Y].
27.The Severity Appeal was listed at the [Suburb Z] District Court [in] 2020 and it was held there be no conviction pursuant to Section 32 of the Mental Health Act. [Mr Chosar]’s Severity Appeal in regard to [his] conviction was set down for hearing in [mid] 2020.
28.The police documents were sighted. There was an entry that [in late] 2018 [Ms Chosar] called the police following an argument when [Mr Chosar] was threating to remove [P]’s belongings from the room. [In early] 2019, there is an entry that the parties argued about moving to a larger house. [Mr Chosar] allegedly asked [Ms Chosar] to pack her belongings and leave as they were arguing frequently. The CCTV camera footage showed neither party assaulted the other or seemed particularly aggressive towards the other. When the police were interviewed [Mr Chosar] following the incident [in mid] 2019, [Mr Chosar] denied that his actions constitute assault or intimidation stating he was justified in using physical force to restrain [Ms Chosar] to stop her from screaming.
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30.[Mr Chosar] said that he had completed two courses neither of which had been court ordered. That included a 6 week [Q Program] course with [R Counsellors] in 2019 which covered topics such as managing emotions, identifying abuse, healthy lifestyle, social skills practice, family, friends and community and action planning. [Mr Chosar] stated that he has also completed a [S Program] with [AA Counsellors].
Under the heading “Child Safety and Wellbeing”, the Family Report writer stated at paragraph 33:
33.Both parties made reference to the other party having treated their children from previous relationships poorly. [Mr Chosar] recounted instances when [Ms Chosar] was aggressive towards his children. He claimed that until 2017, his older children stayed mainly in his care during the week and with their wife on weekends. However, he claimed that [Ms Chosar] did not want his sons during the week and posted on Facebook that it was arduous to cook for six people. He suggested that she pressured him after their marriage to have a formal parenting arrangement with his ex-wife. He acknowledged that he told [Ms Chosar] on many occasions that the arrangements with his children were clear and if she was unable to accept them, she should leave. He cited that on one occasion when [Mr N] was preparing a project for his HSC which involved him heading up a team in [a] competition, he asked to be excused from dinner. He said that [Ms Chosar] favoured [Mr N] and spent a lot of time with him including helping him with his schoolwork, however, on that occasion, she barged into his room and yelled at him telling him that would not get any food for dinner that night.
[Mr Chosar] stated that in [early] 2019, his ex-wife launched a GoFundMe account to support [Mr N] to travel overseas, to which [Ms Chosar] sent her a demeaning message that she was making the family look poor. [Mr Chosar] stated that he did not think it was their issue and an initiative that was his ex-wife’s prerogative to initiate. He claimed that caused an issue between [Mr Chosar] and his ex-wife who argued in [Mr N’s] presence.
He added that there was a period [in mid] 2019 when his sons stayed with him and [Ms Chosar] continuously for 3 weeks during which time which his ex‑wife travelled overseas. He claimed that [Ms Chosar] emotionally abused the children during that time and on their wife’s return, declared that the children had to leave and either stay permanently with their wife or live somewhere else.
34.[Mr Chosar] asserted that [P] became quite affectionate towards him after he and [Ms Chosar] married and she would, for example, sit on his lap. He said that [Ms Chosar] told him she disapproved of any displays of affection towards [P] as she did not want him to have a better relationship with her daughter than she had. He referred to [Ms Chosar] becoming emotionally dependent on [P] and going to her for comfort when she was upset and crying.
35.[Ms Chosar] disputed that [Mr Chosar] had a positive relationship with [P]. She asserted that initially [Mr Chosar] told [P] that he loved her and wanted to be her father. She claimed that during the marriage, he called her “a piece of shit”, screamed and shouted at her and threatened to throw her out. [Ms Chosar] stated that she would watch [P] like a hawk to protect her from [Mr Chosar]. She claimed that [Mr Chosar] would slap [P] on the back on the pretext that he was toughening her up, get her to sit beside him and he would tickle her roughly or pinch her. She said that [P] would cry and would plead with her to make [Mr Chosar] happy so he would treat her better. [Ms Chosar] said that she is happy that [P]’s father is a person who [P] believes loves and cares for her.
36.[Ms Chosar] reported that [Mr Chosar] treated his sons similarly poorly. She claimed that initially he told her that they were predominantly with him because otherwise they would run away from their wife. However, she said that once she moved in, she realized that [Mr Chosar] was not involved in his children’s lives and did not even know what subjects they were doing at school. She referred to intervening and stepping in to protect the children and diffuse the conflict when [Mr Chosar] yelled at them.
[Ms Chosar] said that there were occasions when she was not so scared of [Mr Chosar] and yelled at him in retaliation…
She asserted that she loved [Mr N] and [O], treated them as her own children and advocated for them. She accused [Mr Chosar] of telling her that he needed a wife figure for his children. She claimed that she responded by telling him she would accept the challenge and did her utmost to fulfill her promise but later he told her that she was not a good wife for [Mr N] or [O]. She claimed that similarly because of how she treated them, they loved her and confided in her, especially [Mr N] who she described as a sweet boy who sang songs to her. She asserted that she helped [Mr N] with his school work. She said that [P] loved her step brothers especially [Mr N] claiming that [P] put love notes under his door. She added that [O] liked to play with [P]’s microscope. Nonetheless, [Ms Chosar] stated that the children had expected sibling issues claiming that [Mr N] was the most powerful in the sibling group while [O] sometimes bossed [P]. In her affidavit sealed 16th December 2019, (paragraphs 79 and 80), [Ms Chosar] indicated that given [X]’s age at the time of the separation, she did not believe he had the opportunity to form a significant relationship with [Mr N] and [O]. She added that she met with them separately since the separation so that they could spend time with [X].
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38.[Ms Chosar] stated that she is afraid about possible consequences for [X] if any time he spends with [Mr Chosar] is not supervised. She said that [X] might not be returned to her, [Mr Chosar] may “bolt” with [X] or that he may be aggressive towards [X] if [X] is disobedient. She added that she also fears [Mr Chosar] might take his anger towards her out on [X].

Under the heading “Mental Health”, the Family Report writer stated:
40.[Mr Chosar] stated that the loss of his first-born […] left him with some feelings of depression which took him a long time to resolve. He commented that he found strength in his faith but both he and his ex-wife had a protracted grief reaction. He claimed that he was protective of all of his children and during the marriage to [Ms Chosar], he experienced an extreme level of anxiety in respect of his children. He said he was concerned by the treatment his older sons received from [Ms Chosar].
41.[Mr Chosar] said that he consulted with [Ms BB] individually and jointly with [Ms Chosar]. He asserted that he sought counsel from [Ms BB] in respect of behaviour on [Ms Chosar]’s part which he found concerning. He stated, for example, that [Ms Chosar] would have episodes of intense emotional dysregulation often directed towards his older sons. In addition, he claimed that she banned his sons from having contact with their wife when they were in their home and that she forbid his ex-wife from having anything to do with [X]. He stated that [Ms Chosar] also prohibited his sister from having contact with [X]. [Ms Chosar] stated that [Ms BB] encouraged [Ms Chosar] to apologise to those she had hurt after she attempted to evict [Mr N] and [O] from the house in June 2019.
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43.…He was referred under a Section 32 Order to consult with [Mr U] for treatment for a period of 6 months, however, he has been receiving personal counselling since December 2019 from [Mr U]…
44.[Ms Chosar] stated that prior to the separation she and [Mr Chosar] had been seeing their marriage counsellor, [Ms BB]. She stated that she felt let down by the support she received in that engagement especially when [Mr Chosar] was threatening to have her admitted to a mental health facility and have the children taken from her. She asserted that she had been diagnosed with situational depression.
45.[Ms Chosar] added that after the separation, she was referred to [Ms CC] for trauma counselling through [DD Services] due to the family violence she had experienced and has received ongoing support. She said that she has ongoing fears of [Mr Chosar] and through the counselling she has been encouraged to look at the small areas of happiness she has in her life. She stated however, that she is petrified of [Mr Chosar] and she cannot imagine a future free of worries because of the threat he poses to her.
Under the heading “The adults”, the Family Report writer stated at paragraph 49:
49.[Mr Chosar] stated that he [has several siblings]. He said that he was raised in [City EE] and when he was in year 6, he was sent to a […] boarding school for a couple of years where he said he picked up discipline and learned to be independent.
At paragraph 57, the Family Report writer stated:
57.Both parties had been married once before. [Mr Chosar] stated that he and his ex-wife, [Ms GG] married in 1999. They migrated to Australia from [Country HH] in 2003. At the time, [Mr Chosar] had a sister living in Australia. Other members of his family including his parents migrated after him.
[Mr Chosar] stated that he and his ex-wife were unable to support each other or meet each other’s emotional needs after they lost their first child […]. He stated that his eldest son, [Mr N] was born […] followed by the birth of [O] in 2005. He referred to a rapid deterioration in their marriage thereafter. He said that he assumed a significant care giving for his sons both prior to and after the amicable separation from his ex-wife in 2012. He stated that they continued to be good friends in the interests of their sons who continued to move fluidly between the household.
At paragraph 61, the Family Report writer stated:
61.[Mr Chosar] stated that he and [Ms Chosar] started their relationship slowly initially by telephone and then they proceeded to spending time together. He stated that he and [Ms Chosar] went on social outings during their courtship, however, they did not spend a lot of time together until they were married as they had separate residences. He said that they were not intimately involved prior to their marriage.
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63.[Ms Chosar] said that initially [Mr Chosar] told her she was beautiful, pure and wonderful and that God had intervened to bring them into each other’s lives. She stated that even though they had separate residences, she was at his house “all of the time” and they were intimately involved. She stated that she did whatever he wanted including moving to [Suburb F] in 2017 from her apartment in [Suburb D] which she had rented in 2015, on his direction.
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65.[Mr Chosar] referred to [Ms Chosar] insisting on certain rituals around their wedding which to him seemed to be disingenuous. He said that, even though he had already proposed to [Ms Chosar], she wanted a story for Facebook. He asserted that he and [Ms Chosar] had some differences in opinion about social media and one of their arguments was triggered by him not liking one of her Facebook posts.…
At paragraph 66, the Family Report writer stated:
66.[Mr Chosar] stated that he and [Ms Chosar] commenced cohabiting after they were married…
67.…([Ms Chosar]) said that she was the primary caregiver for [X] after his birth. She said that she attended to bathing, feeding, settling [X] and putting him to sleep with minimal assistance for [Mr Chosar]. She asserted that [Mr Chosar] may have taken care of [X] for an hour or so occasionally, but generally he was demanding that she care for [X] and abused her if he saw her not fulfilling the parenting and homemaking role to his satisfaction. She claimed that [Mr Chosar] would tell her that she is the wife and therefore needed to meet [X]’s needs. She added that he frequently told her that she was free to leave any time with [X] because he already had two sons. Otherwise, she claimed that if she was unable to settle [X], [Mr Chosar] would tell her she was a terrible wife.
68.[Ms Chosar] acknowledged that [Mr Chosar] was the breadwinner which she said meant he worked long hours and was often away from home in the evenings…
69.[Mr Chosar] stated that he was the breadwinner, however, he said that he was working from home. He claimed that he was therefore available to play an extremely hands on role in [X]’s care and would have considered himself to be the primary care giving parent. He said that he assisted with bathing, changing and feeding [X] and putting him to sleep. He asserted that [Ms Chosar] breast fed [X] on demand and attended to him when he cried, but she expected him to be available to assist her with [X]’s care. He asserted that they often argued because [Ms Chosar] interrupted his work schedules and when [X] was not feeding, she would leave him in the bouncer in his office. He commented that in addition, he took [X] on walks, played with him and soothed him by singing him songs. [Mr Chosar] said that the experience he had raising his two older children put him in good stead to be a parent for [X]. He asserted that he attended to his older children’s day to day needs and played a key role in meeting their medical and educational needs and facilitating their attendance at extracurricular activities so he was well equipped to care for [X].
At paragraph 72, the Family Report writer stated:
72.[Mr Chosar] stated that he has experience of raising children having been the hands-on father for his older sons. He commented that structure and limits and he believes in children being made aware of the rules. He stated that when challenging behaviour arises, his discipline strategy is to listen to his children and respond calmly. He said that sometimes he uses distraction or redirection. [Mr Chosar] said that he uses biblical principles to guide his parenting.
Under the heading “the adult relationships”, the Family Report writer stated at paragraph 74
74.[Mr and Ms Chosar] stated that they have minimal communication and their co-parenting capacity is negligible…
75.[Ms Chosar] stated that she cannot imagine a future when she will be able to communicate with [Mr Chosar]. She indicated that she is afraid that [Mr Chosar] will track her and she cannot shake the feeling that [Mr Chosar] will appear somewhere. She questioned that she does not know at what point she could draw the line and be reassured that [X] would be safe.
Under the heading “H Contact Centre Reports” the Family Report writer stated at paragraph 92:
92.The [H Contact Centre] reports from 27th June 2019 until 6th February 2020 were perused. [X] expressed some age-appropriate distress separating from his wife on a number of occasions initially. The interactions with his father were playful and energetic. [Mr Chosar] provided appropriate activities for [X]’s age and interests. He was attentive to [X]’s needs. [X] appeared relaxed and at ease in his father’s household. On some occasions, [Mr Chosar]’s older sons and wife were present for the visits. None of reports indicated any concerns about the interactions.
Under the heading “Evaluation”, the Family Report writer stated:
96.… Whatever the care arrangements were prior to the separation, [Ms Chosar]’s views seem to minimise the role [Mr Chosar] had played in the care of his older children as well as [X]. She appeared unable to acknowledge that he had cared for [Mr N] and [O] to a satisfactory level which presumably was the case considering the amount of time they spent with him and some of the difficulties that seem to have existed in the life of their wife. She also minimized the role [Mr Chosar]’s extended family and [X]’s older brothers may have played in [X]’s life, albeit that [X] was an infant when the parties separated. As the parties move forward, it is important for [X] to have a strong presence in his life not only of his parents, but also his siblings and members of their extended families.
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99.From this assessment, there was no indicators to suggest that [Mr Chosar] is not currently providing an adequate level of care for [X] and is meeting his day to day needs. She appears to be doing that to a satisfactory level. [X] seemed to be reaching the milestones that would be expected for a child of his age. [Ms Chosar] has also enrolled [X] in day care… Based on this assessment, there are no indicators to suggest that [Ms Chosar] should not currently continue as the primary care giving parent for [X].
100.[Mr Chosar] has had limited opportunity to take a role in the day to day care of [X] since the separation. He has confidence that he has no limitations and although he has been untested in this regard since the separation, he does have a track record of having been a single parent for his two older children.
…
101.The parties currently have a negligible capacity to communicate and any communication seems to be occurring through their legal representatives. It is questionable given the high level of hostility and acrimony between them whether they will reach the point where they can communicate and make decisions collaboratively in [X]’s interests. They may find it beneficial to enrol in a Parenting After Separation course if they have not already done so and consider the services of [JJ Program] offered through [KK Counsellors]. They are also advised to adopt parallel parenting where each of them makes the day to day decisions when [X] is in their care. A communication app such as My Family Wizard would be a timely introduction so that the parties can safely communicate in respect of [X]. Ultimately, the Court may be left no option but to grant parental responsibility to [Ms Chosar] but that would be marginalizing to [Mr Chosar]. It is imperative that final orders address the need for further litigation as the dispute could become intractable leaving [X] in a tug-o-war between his parents for the long term.
102.Despite their disdain for each other, [X] is a loved and treasured child by both parents and most likely by the network of significant adults and children from both his paternal and maternal families…
103.For [X] to achieve optimal development he ideally requires to form strong and secure relationships with both parents and this is a crucial developmental milestone at this age, albeit that needs to occur in context where [X] is not at risk. The conditions for secure attachments to form when parents are separated are for the child to live with one parent and spend regular time, preferably weekly with the other…
…
105.[X] has since Orders were made in April 2020 spent time with [Mr Chosar] supervised by [H Contact Centre]. The interactions which were noted in those visits were consistent with those observed between [X] and his father in the context where they were seen together for the preparation of this report. There was nothing to suggest that [Mr Chosar] was inappropriate with [X] or that [X] was uneasy or afraid of his father. Their interactions were consistently enthusiastic and engaging. …the observations for this assessment suggest [X] enjoys a warm and loving relationship with his mother.
110.One of the concerning dimensions in this matter that impacts on the parenting arrangements is the extent and nature of family violence. [Ms Chosar] made allegations that she was the victim of coercive and controlling physical, emotional and financial violence from [Mr Chosar] resulting in many incidents but culminating in the issue of a two year A.V.O. protecting her and [X]. She finds it difficult to separate her own experience of [Mr Chosar] from that of [X]… It would be helpful for [Ms Chosar] to use the therapeutic relationship to discuss her level of anxiety and how to address the fears that will likely arise for her, if unsupervised time was to be introduced…
111. It was concerning that at the time of the incident [in mid] 2019, [Mr Chosar] minimized the seriousness of the violence. In addition, he alleged that [Ms Chosar] had, on occasions, been dysregulated in her interactions with him and the children. He was able to acknowledge the inappropriateness of his actions in the interviews for the preparation of this report although he did state that previous incidents that had been reported to the police did not warrant police attention...
112.Both parties have at times most likely allowed their emotional dysregulation to override their focus on parenting and they have behaved quite immaturely in the presence of [X] and the other children. Given that the parties provide such discordant accounts, it may be for the Court to determine the extent of family violence in this matter…
…
114.…The parties are at an impasse in their capacity to move forward as parents. If Orders were to be made for unsupervised time, the changeover arrangements would require careful attention in the light of the high level of hypervigilance [Ms Chosar] feels she needs to exercise so that she does not come into contact with [Mr Chosar] or he does not become aware of details of her life. At present, that would seem to be highly triggering for [Ms Chosar]. Until [X] commences school, the parties may need to consider changeover arrangements which involve a changeover service or a trusted other, maybe one of the older children, if they are unable to come into contact with each other. Once [X] commences school, it would be recommended that the changeovers occur at the school.
(Emphasis added)
Under the heading “Recommendations”, the Family Report writer stated at paragraph 118:
118.It is recommended that [X] spends a block period of 3 to 4 evenings on alternate weekends and at most one evening in the alternate week, during term time once he commences school. It is recommended that this time be progressively increased, beginning with an incremental increase by 2 hours every two months from 4 to 6 to 8 hours once per week and with the introduction of one overnight in the next 8 to 9 months. It is recommended that there be an additional evening per fortnight introduced in 6 monthly increments so that by the time, [X] commences school he is spending extended time on alternate weekends and, one evening in the alternate week with [Mr Chosar] and family.
The Family Report writer gave oral evidence. The Court does not propose to set out the entirety of her oral evidence.
The Family Report writer was asked by the ICL’s counsel to comment upon the mother’s time proposal, with the Court noting that the question by counsel over-stated the mother’s proposal for the child’s time with the father; in fact the mother’s proposal was that ultimately the child spend during school terms, “each alternate Sunday from 9am to 4pm” (proposed Order 3c):
Can I turn to the mother’s proposal now, which is that [X]’s time with his father – effectively, you get to nothing beyond daytime only once a weekend and a little bit of time, day time only, in school holidays indefinitely. Are you able to comment on whether there are any implications of that amount of time, and I’m going to describe it to you as a restricted amount of time, with his father for [X]? And, again, both short‑term and long-term if there are differences?---Look, again, I think that’s minimal time. From what you’ve described in terms of the current contact reports and the ones I had viewed back two years ago, there certainly seems to be a sound and significant relationship between [X] and his father. And I guess relationship doesn’t form in a vacuum. And I would say that seriously limits [X]’s capacity to have the fullness of his father and sibling contact in his life. It also limits activities that [X] might be able to do with his father, exposure of his father to any of his wider life, such as his school. So I would say that it’s a bear minimum of a living arrangement regime that would facilitate the father-son relationship.
The Family Report writer stated that children certainly do benefit from having both parents having a window into the totality of their lives, which includes schooling and maybe even extracurricular activities.
The Family Report writer stated that based on the understanding of child development and identity formation, the exposure of the child to both parents and extended family, in a context that allows the child to be able to be part of those systems, is important for their emotional and psychological development.
The father’s counsel asked the Family Report writer this question in relation to the child’s time with the father:
In your report at paragraph 108, you set out your recommendations for time arrangements between [X] and – in your report, in your recommendations, you set out the time that you say would be an appropriate way forward at paragraph 118. Are you able to expand upon what you would consider to be the benefits of [X] having that type of time arrangement with his father?---Well, I think, in terms of a child’s development, the active, visible and hands-on presence of both parents who can contribute to his care, his education, development of interests beyond his education is what we would hope that every child would be able to enjoy in separated and in non-separated families. And I guess my recommendation in terms of [X] spending substantial time with his father is – has, at its source, that motivation that [X] identity is contributed to by both of his parents and that – that he observes them – observes each of them having an input into his – the totality of his emotional, physical, cognitive and psychological development.
And through – in the father’s home, [X] has two half-siblings. Are you able to expand upon the benefit that the time arrangement that you propose might have for [X] if he was to spend time with his two half-siblings?---Well – well, certainly, a sibling relationship – even though, I believe, the siblings are considerably older than – than [X] – is again part of – of a child – padding out where he belongs in – in a family system, and – and, certainly, sibling relationships fall – well, for many children, become the – the – the next generation contact. That certainly is extremely important for a child feeling part of – of a very special group in their lives called “family”. So I – I can’t emphasise enough the – the importance of [X] having opportunities to – to consolidate those – those sibling relationships through arrangements that allow him to – to spend substantial time in – in the father’s household.

He transferred $3000 into the wife’s CBA account ending in #...16 in mid-2018 to pay interest in advance to CBA.
He transferred $600 for counselling for the wife in mid-2019. A further $900 was transferred on behalf of the wife for counselling in mid-2019.
In the husband’s job, he borrows money personally from the bank, loans it to PP Pty Ltd who then uses the funds to purchase a business or company.
In late 2019 the husband borrowed $10,000 from his mother as he was struggling to pay bills due to the freeze on his account.
The wife’s affidavit
The Court does not propose to set out the entirety of the wife’s affidavit in relation to property issues.
The wife states that the husband is a qualified professional. The wife assisted the husband in his business conducted from the Suburb F property.
The wife provided certain services to the husband through PP Pty Ltd (see paragraph 194 of the wife’s affidavit).
In late 2016 the parties commenced cohabitation. The wife moved out of her Suburb D apartment and into a rented unit at Suburb F. The parties at that stage had wanted to ease into their relationship, in circumstances where the husband had two sons (a son aged 16 years, O, and another aged 20 years, Mr N) and the wife had a daughter P (born in 2013). During this period the wife regularly stayed overnight at the husband’s Suburb F property two nights per week, and in addition, she spent Saturday and Sunday daytime there, and frequently, whilst the husband’s sons were spending time with their mother, the husband came to the unit and on occasions stayed overnight. In addition the wife also went to the husband’s Suburb F property on numerous occasions during the week, for example, to do washing and other such chores.
In mid-2017 the wife and her former partner settled their family law property matter by consent and in consideration for the wife transferring her interest in a Country UU property to him, the former partner was to pay the wife the sum of $280,000, and in addition, the wife retained, in particular, her own property including bank accounts. The wife received the sum of $279,985 into her CBA account ending in #...16 in late 2017.
The wife in late 2017 discussed with the husband various ways that she could invest the sum of $250,000. The husband told the wife that she should pay such funds into his offset account so that his mortgage debt could be minimised. During late 2017 the wife transferred $250,000 into the husband’s TT Bank account ending in #...02.
Between late 2017 and late 2018 the wife deposited from her prior savings and ongoing salary sums totalling $100,340 from her CBA account ending in #...16 to the husband’s TT Bank account ending in #...02.
In 2018 the parties wanted to purchase property, and in the wife’s name the following properties were purchased: a property at Suburb LL, Queensland and a property at Suburb NN, Queensland.
The Suburb LL property was purchased for $360,000, with stamp duty $11,025. It was purchased in the wife’s name. The deposit was $103,025 paid from one of the husband’s bank accounts, and a mortgage in the sum of $268,000 from CBA. The wife has been responsible for paying all mortgage payments in relation to this loan from CBA. This property is rented and the wife has been responsible for payments on the property, including shortfalls on the mortgage; such shortfalls for 2020–2022 have amounted to $9,540.
The property at Suburb NN was purchased for $448,830 being purchase price of $180,000 and $268,830 for the construction contract for the dwelling. A deposit of $89,830 was paid with the balance purchase funded by way of mortgage in the sum of $359,000. The wife has been responsible for meeting all mortgage payments. The wife paid $40,256 from her CBA account ending in #...16 and the balance of $49,304 was paid from one of the husband’s accounts. This property is rented and the wife has been responsible for payments on the property including mortgage shortfalls.
The husband entered the relationship with a property at Suburb SS, Queensland (“the Suburb SS property”). This property was owned by a corporate entity, being WW Pty Ltd. A title search indicates that this company is the legal owner but as a trustee.
The wife ceased working for MM Company in 2018 when she was pregnant with the child. At the husband’s request, she commenced assisting him in his business conducted through PP Pty Ltd at the husband’s Suburb F property. The wife was not paid for her services that she performed for the husband in working for PP Pty Ltd; she assisted the husband with administrative tasks and in the conduct of XX Company (trading name under PP Pty Ltd).
The wife primarily cooked for the parties and the husband’s children and the wife’s daughter with there being the odd occasion when the husband also cooked.
During the parties’ relationship the wife was primarily responsible for homemaker duties including vacuuming, cleaning, meal planning, washing and other such tasks. The husband was primarily responsible for outdoor tasks such as gardening.
The wife pays $530 per week in rent in Region YY. Her lease expires in mid-2023.
Oral evidence of the husband
The husband stated that his Financial Statement filed 30 March 2023 referring to total weekly income of about $681 and total weekly expenses of $3,399 was accurate.
The husband stated that moving forward his income will change significantly based on his plans. He said he has a plan in action and that his income will increase which could happen in one to two months. He stated his weekly income will be $10,000 per week and that the source of his income will be his work which is now in finance. In this context, he referred to the entity AB Company.
Since separation the wife has received child support and the husband pays $8 per week. He agreed that this sum was not adequate. He asserted that he had previously made four offers to the wife and later conceded he had not put this in his trial affidavit.
It was put to the husband that he had been withholding income since 2019 to avoid meeting his financial obligations, to which the husband denied.
The husband stated that in the 2017/2018 financial year his company had made $287,000 income. He later stated that the company, PP Pty Ltd, was operated by himself and he had control of it including its bank accounts and distribution.
The husband confirmed that on 29 July 2021 his then solicitors had written to the wife’s solicitors stating that the husband’s income was $250,000 in the 2016/2017 financial year and $287,000 in the 2017/2018 financial year which monies were deposited into the PP Pty Ltd business accounts.
The husband was asked whether he didn’t think the wife was under a financial burden, to which he replied that both parties have been (under such burden).
It was put to the husband that as at separation, in mid-2019, the wife was not working. The husband replied by stating the wife was working in a customer service job (the Court observes that in paragraph 189 of the wife’s affidavit filed 19 August 2022, the wife stated that in mid- 2019 she obtained employment as a weekend customer service representative which position she held up to late 2019.)
The husband stated that he assumed that the wife had used a credit card to meet day-to-day expenses.
The husband referred to a former solicitor, Mr AC, and stated that he communicated with him and had provided documents to him.
It was put to the husband that he had a negative view of the wife, to which he denied, stating, inter alia, that the wife was beautiful, she keeps the house well and drives well.
The husband confirmed that he had seen that the wife had withdrawn $4,000 from the husband’s TT Bank account in mid-2019.
It was put to the husband that he knew that the wife had deposited funds into that bank, to which the husband replied that all the money that the wife had deposited (into that account) she had taken out.
It was put to the husband that the wife during the relationship had deposited her salary from her employment to his TT Bank account, to which the husband denied. In this context, he stated he had not read the wife’s bank statements from her CBA bank account from late 2017 to late 2018.
The husband stated that he did not meet the mortgage repayments in relation to the Suburb LL property.
The husband stated that the deposit for the OO Street property came from his TT Bank account (the Court observes that the husband’s affidavit paragraph 168(iv) states that he paid $1,000 towards a deposit for this property in early 2018).
The husband stated that he operated the companies PP Pty Ltd and AD Company during the relationship. He stated that the latter company was shut down over a year ago as he could not afford (it to be operating). He stated he did not recall when that latter company was started. He stated that this latter company was intended to be a property arm for his business.
It was put to the husband that he had only provided her bank statements in relation to AD Company last week, to which he denied stating that he had earlier provided (such statements).
The husband stated that AD Company received referral payments.
The husband stated that in about 2020 the wife had frozen his bank accounts and he was extremely stressed that the wife would freeze other bank accounts that he had, and so he moved money into an account that the wife did not know about (AD Company). He stated that he was trying to secure such monies so the wife could not freeze them. The husband did not dispute that monies of about $168,000 paid into AD Company was not referred to in his evidence.
The husband stated that the client pays the sales commission. In this context he referred to trail commissions which was his primary source of income for PP Pty Ltd.
The husband denied that during the relationship the wife assisted him with PP Pty Ltd. The husband stated that the wife did not assist him with financial forecasts, and in this context, he stated the wife had her own company, XX Company, and she charged clients for those services.
The husband was cross-examined about the wife’s asserted payments from her CBA bank account from late 2017 to late 2018, and referred to in paragraph 206 of the wife’s affidavit filed 19 August 2022. The husband stated that he would go by what appeared in the bank statements (as to the accuracy of these asserted payments by the wife).
Oral evidence of the wife
The wife stated that the husband involved her in his business operations. She had access to credit cards and was able to use them for day-to-day living expenses.
The wife stated that prior to the marriage with the husband she had rented a unit at Suburb F from late 2016 for one year. During this period the wife stated that at the husband’s direction they shared expenses, the husband came over (to her place) and she went over to the husband’s house, and she used the husband’s Wi-Fi at his house. She stated the husband had told her to move to Suburb F from Suburb D so that the parties could live in a blended manner until marriage.
The wife agreed that in late 2017 the husband transferred $27,014 to the wife.
She agreed that in 2017 he transferred $15,000 to her.
She agreed that in 2018 he transferred $10,000 to her.
She agreed that in 2018 he transferred $88,000 to the wife’s conveyancer for settlement of the OO Street property.
She agreed that in mid-2018 the husband transferred $81,000 to the wife’s conveyancer for the settlement of the Suburb LL property.
She agreed that in mid-2018 the husband transferred $13,441 to AE Pty Ltd for the concrete slab for the OO Street property. The invoice from this company was addressed to the wife.
It was put to the wife that in mid-2018 the husband transferred to her CBA account …16 $13,000, to which the wife stated she did not recall it in detail.
The wife stated she had access to a credit card during the parties’ relationship. She used that card to buy food, and purchases at various stores.
The wife stated that the OO Street property had been sold by her in early 2023 for approximately $610,000. She had not disclosed any documentation prior to the previous week about that sale. She dealt with a conveyancer under Mr AF. She had engaged that person in early 2023. The wife stated that at settlement the mortgage loan owed to the bank was about $359,000. The amount of about $380,387 paid to the bank at settlement comprised some credit card debt and in this regard the wife stated that she had been managing alone financially the last four years. The wife stated the credit card debt was about $15,000 and she had refinanced for $20,000 extra. The refinance had occurred before the sale of the property and in this regard the wife was desperate for money. The wife stated that from the net proceeds of sale $38,559 had been paid to herself and $127,451 had been paid into the trust account of her solicitors for their legal fees. She had received an invoice from those solicitors for that amount in the trust account. She had signed an authority to pay such fees about two weeks ago.
The wife stated that she had been advised by tax accountant that $67,000 capital gains tax would be payable relating to the above property sale.
The wife stated that she invested a small amount of money in a start-up company a long time ago being possibly $200.
The wife stated that when she started work for the husband he asked her to set up the company XX Company however nothing much happened in this company and its account was closed.
Relevant legal principles
In Lotta & Lotta [2017] FamCA 50 Foster J stated:
281 The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford (2012) 247 CLR 108 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman (2014) FLC 93–592 and Scott & Danton [2014] FamCAFC 203.
282The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
283Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
284There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
285In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
286In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property and the husband contends that there should be no such adjustment.
287It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
288In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties’ present property rights without a consideration of s 79 (4) matters.
289Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
290The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92–877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
Balance sheet
The balance sheet of the parties is now set out (Exhibit M):

BALANCE SHEET

Ownership Description Husband’s value Wife’s value

Assets

1 W AG Street, Suburb LL QLD (“the Suburb LL property”) $430,000 $430,000

2 W Sale proceeds of OO Street, Suburb NN QLD (“the OO Street property”) less CGT $67,637 Nil
Refer to Items 6 & 10 Nil
Refer to Items 6 & 10

3 H E Street, Suburb F NSW (“the Suburb F property”) $950,000 $950,000

4 H Interest in PP Pty Ltd
including Motor Vehicle 1 $56,000
FF Bank a/c no ending …46 as at 13.03.23 $532;
Westpac business one flexi acc no ..25 $Unknown;
$35,000
$35,000

5 H Interest in AJ Street, Suburb SS QLD (“the Suburb SS property”) $625,000 $625,000

6 W RR Bank account no ending …13 ($449) & FF Bank account no ending …58 ($0) ANZ offset $80,742 $80,742

Total $2,120,742 $2,120,742

Liabilities

7 W Mortgage secured over the Suburb LL Property through Commonwealth Bank being loan a/c no ending …44 $268,000 $268,000

8 H Mortgage secured over the Suburb F property in favour of PP Pty Ltd $409,000 $580,000

9 H NAB loan secured by mortgage over the Suburb SS property being account no ending …69 in the name of WW Pty Ltd ATF Chosar Family Trust $359,000 $359,000

10 W Capital gains tax liability payable on the sale of the OO Street property $67,637 $67,637

Total $1,103,637 $1,274,637

Net Total Assets

Total $1,017,105 $846,105

As to item 8, the mortgage debt secured over the Suburb F property, the husband conceded in final submissions that the mortgage over the Suburb F property was currently $409,000 and that sum shall remain in the balance sheet for item 8.
The Court observes that neither party sought to introduce superannuation assets into the balance sheet (Exhibit M) and, on enquiry from the Court post trial, their respective solicitors invited the Court to disregard their respective superannuation entitlements. Neither party had sought a splitting order.
The final balance sheet accordingly will be as follows:

BALANCE SHEET

Ownership Description Value

Assets

1 W AG Street, Suburb LL QLD (“the Suburb LL property”) $430,000

2 W Sale proceeds of OO Street, Suburb NN QLD (“the OO Street property”) less CGT $67,637
Nil

3 H E Street, Suburb F NSW (“the Suburb F property”) $950,000

4 H Interest in PP Pty Ltd
including Motor Vehicle 1 $56,000
FF Bank a/c no ending …46 as at 13.03.23 $532;
Westpac business one flexi acc no …25 $Unknown;
$35,000

5 H Interest in AJ Street, Suburb SS QLD (“the Suburb SS property”) $625,000

6 W RR Bank account no ending …13 ($449) & FF Bank account no ending …58 ($0) ANZ offset $80,742

Total $2,120,742

Liabilities

7 W Mortgage secured over the Suburb LL Property through Commonwealth Bank being loan a/c no ending …44 $268,000

8 H Mortgage secured over the Suburb F property in favour of G Pty Ltd $409,000

9 H NAB loan secured by mortgage over the Suburb SS property being account no ending …69 in the name of WW Pty Ltd ATF Chosar Family Trust $359,000

10 W Capital gains tax liability payable on the sale of the OO Street property $67,637

Total $1,103,637

Net Total Assets

Total $1,017,105

Accordingly, the parties’ assets are $2,120,742. Their liabilities are $1,103,637. Their net assets are thus $1,017,105.
Section 79(2) of the act

The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity.
Contributions
The parties commenced cohabitation at marriage in early 2018 and finally separated in July 2019; a period of about 1.5 years.
The Court is not persuaded on the balance of probabilities that cohabitation commenced in late 2016. The husband had denied the wife’s allegations in this context and had told the Family Report writer, inter alia, that the parties did not spend a lot of time together until they were married as they had separate residences. He denied intimacy prior to the marriage. Even on the wife’s version of events relating to commencement of cohabitation she had stated that on moving into the rented unit at Suburb F the parties at that stage had wanted to “ease [their] relationship in”, in circumstances where the husband had two sons and the wife had a daughter.
The parties’ child, X, was born in 2018.
At the commencement of cohabitation, in 2018, the husband’s initial contributions included, in particular:
(a)A property at E Street, Suburb F (“the Suburb F property”). It had been purchased by the husband and former wife for $415,000 in 2005. There was no evidence as to the value of this property as at marriage date. This property had a mortgage liability of $410,000 at marriage date in 2018. It has a present agreed value of $950,000;
(b)Offset account with TT Bank, …02: $129,000;
(c)Offset account with TT Bank, …03: $50,000;
(d)Car;
(e)His business PP Pty Ltd: $10,000; and
(f)Interest in a property at Suburb SS, QLD (“the Suburb SS property”). This property had been purchased by WW Pty Ltd as trustee for the Chosar Family Trust in about 2012 with a mortgage loan from NAB. Its value and mortgage debt as at early 2018 is not known. The husband effectively owned and controlled this company.
He had some credit card debt and owed money to his parents in the sum of $31,000.
The wife’s assets as at commencement of cohabitation (2018) were:
(a)Cash: about $280,000 (settlement monies from financial settlement with her previous partner);
(b)Car;
(c)Superannuation; and
(d)Shares of minimal value.
In late 2017, the wife, from her above settlement of $280,000, paid $250,000 into the husband’s TT Bank account. Then she made these further payments, totalling about $96,700, to the husband’s said bank account:
(a)December 2017, $5,000;
(b)January 2018, $15,000;
(c)March 2018, $10,000;
(d)May 2018, $20,000;
(e)May 2018, $14,500;
(f)May 2018, $20,000;
(g)May 2018, $7,000;
(h)November 2018, $5,200.
Accordingly, about $346,700 was paid by the wife to the husband’s bank account.
Between late 2017 and mid-2018, the husband transferred these sums to or on behalf of the wife:
(a)November 2017, $27,014;
(b)December 2017, $15,000;
(c)February 2018, $10,000;
(d)March 2018, $1000 (for the deposit towards the OO Street property);
(e)May 2018, $88,000 (to the wife’s conveyancer for settlement of the OO Street property);
(f)May 2018, $81,000 (to the wife’s conveyancer for the settlement of the Suburb LL property);
(g)May 2018, $13,441 (to AE Pty Ltd for the concrete slab for the OO Street property);
(h)June 2018, $13,000.
The above sums total $248,455.
In mid-2018 the wife had purchased a land and home package (land with house to be built) at OO Street, Suburb NN, Queensland (“the OO Street property”) with the purchase price and construction total price being about $449,000. Rental monies were received in relation to the property during the parties’ relationship. The wife has probably met most if not all the mortgage repayments to VV Bank and expenses associated with this property.
The OO Street property was sold by the wife in early 2023 for just under $610,000. The mortgage debt was about $359,000 however, the wife obtained further finance from the relevant bank (an amount of about $20,000 to repay credit card debt of the wife) and an amount of about $380,387 was paid to the bank at settlement. From the net proceeds of sale $38,559 was paid to the wife and $127,451 was paid into the wife’s solicitors trust account for legal fees.
In mid-2018 the wife had purchased a unit at Suburb LL, Queensland (“the Suburb LL property”) in her sole name for the sum of $360,000. Rental monies were received in relation to the property during the parties’ relationship. She has probably met most if not all the mortgage repayments to CBA bank and expenses associated with this property. It has a present agreed value of $430,000.
In mid-2018 the wife left her employment at MM Company. She then worked with the husband in his home office at the Suburb F property until the child was born in 2018. After the child’s birth the wife was solely a stay at home wife and only occasionally assisted the husband in his office.
During the parties’ relationship, the husband worked full-time in employment in his business PP Pty Ltd. During the parties’ relationship, the husband effectively paid for the majority of household expenses including the mortgage repayments for the Suburb F property and the Suburb SS property.
Post separation to date, the husband has continued to reside in the Suburb F property and he has paid the mortgage loan repayments for this property, with the Court observing, firstly, that the husband had contended by way of a balance sheet dated 24 August 2020 (prepared by the parties for a conciliation conference in late August 2020, see Exhibit J) that the mortgage debt over the Suburb F property was $278,868. And secondly, the Court observes, in relation to the agreed current mortgage debt for this property, $409,000, that the husband had increased this mortgage debt in mid-2021 by $100,000 to pay legal fees.
During the parties’ relationship, the wife was the primary carer of the child. During the parties’ relationship the wife was primarily responsible for the homemaking duties. These were contributions of substance by the wife. The husband assisted the wife with the care of the child during the parties’ relationship.
Final separation occurred in mid-2019, and the wife and child vacated the Suburb F property.
The wife has solely cared for the child since separation to date, and over this period the husband’s child support payments have been minimal. The Court takes into account this significant contribution by the wife over a period of almost four years.
The wife effectively contended that her contributions should be assessed at about 65 per cent.
The husband contended that his contributions should be assessed at about 60 per cent.
Taking into account the above matters, and viewing the parties’ overall contributions holistically, the Court assesses the parties’ contributions to be about equal.
Section 75(2) of the Act
The wife contended for an adjustment under s 75(2) of 10 to 15 per cent.
The husband contended for no adjustment under s 75(2).
The wife is aged 39 and the husband is 51 years.
The wife will have the primary care of the child who is now aged four years (he will turn five in 2023). The husband has been paying minimal child support. His financial statements filed 6 September 2022 and 30 March 2023 show a significant excess of weekly personal expenditure as against weekly income. The Court acknowledges that the husband gave oral evidence that “next month” his income will increase to $10,000 per week. Nevertheless, the Court has some doubt as to whether he will reliably pay increased child support.
The wife works full-time for ZZ Company as a professional. The husband works as a self‑employed professional. Both parties have reasonable work capacities.
The Court would assess that the husband’s income earning capacity is probably greater than that of the wife.
Financial disclosure by the husband
The wife contended that the husband had failed to make relevant financial disclosure in relation to monies totalling about $377,000 and that, inter alia, such nondisclosure would support the proposed adjustment under section 75(2) sought by her, and referred to above. In her Case Outline filed 29 March 2023 she contended that the husband’s nondisclosure would lead the Court to find that he has greater access to financial resources that he presents in this litigation. The wife, in final submissions, submitted, inter alia, that the above monies were funds entirely utilised by the husband without reference to the wife and his failure to adequately disclose this matter indicates that he has access to greater resources than he has disclosed.
As to the parties’ duty to make full and frank disclosure see Black & Kellner (1992) 15 Fam LR 343, and Part 6.1 (especially rule 6.06) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). In In the Marriage of SW and WH Weir (1992) 16 Fam LR 154 the Full Court of the Family Court of Australia had, inter alia, stated at page 158:
…once it has been established that there has been a deliberate non disclosure, which follows from his Honour’s findings in this case, then the court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
Again, the wife contended that the husband had failed to explain his receipt of a total sum of $377,000, calculated by reference to the sums of $210,000 and $167,000.
The wife firstly contended that the husband had failed to explain the withdrawal of $210,000 made on 26 October 2020 from the NAB account of WW Pty Ltd (no …02). That company, as trustee for the Chosar Family Trust, owns the Suburb SS property, which property was brought into the relationship by the husband. The husband controls that company through his ownership of the shares in it.
To give some understanding to the above withdrawal of $210,000 some banking transactional history should be referred to briefly.
By reference to the above NAB account, statement number 18, page 2, (Exhibit J) there are three credit entries for three separate dates in early September 2020 referring to a loan/transfer from G Pty Ltd (this entity would appear to be the same entity as G Pty Ltd which holds a mortgage in its favour over the Suburb F property) to the NAB account in the total sum of $293,500. A short time later, there are two debit entries for 13 and 14 October 2020 totalling $80,000. Then on 26 October 2020 there is a withdrawal of $210,000.The Court observes that the above statement of account, prior to the above three credit entries, reveals fairly minor credit balances.
In oral evidence, the husband stated that the above three credit entries in early September 2020 (a total of $293,500) related to another loan he had taken out. He stated that this was all part of loans secured against the Suburb F property.
The Court observes from the husband’s Westpac Choice account …14 bank statement (exhibit J) that on 2 September 2020 the total sum of $297,000 was deposited into that account from G Pty Ltd. And then on 3, 7 and 8 September 2020 the total sum of $293,500 was withdrawn from the Westpac Choice account and deposited into the NAB bank account of WW Pty Ltd account number …02 (see the relevant bank statements in Exhibit J).
The husband was cross-examined about two separate withdrawals of $40,000 each on 13 and 14 October 2020 from the above WW Pty Ltd bank account with NAB. He denied that the two withdrawals were made to hide funds from the wife. In this context, the husband stated, inter alia, that the withdrawals were made in circumstances where (he considered) WW Pty Ltd was outside the property pool (in this context the Court observes that this company owns the Suburb SS property which was effectively brought into the relationship by the husband). He further stated in this context that he had provided all relevant financial disclosure, including trust documentation, having had a discussion with his former solicitor.
The Court observes, in relation to the above two separate withdrawals of $40,000 each on 13 and 14 October 2020 from the above WW Pty Ltd bank account, that the two amounts were then credited to a loan account of the husband with the lender G Pty Ltd on 13 and 14 October 2020; the credited sums of $80,000 had the effect of reducing this loan from $144,512 on 1 October 2020 to $64,512.
The Court observes, in relation to the husband’s withdrawal of $210,000 on 26 October 2020 from the G Pty Ltd bank account, that it is unclear as to where those monies were then placed by the husband. It is possible that of this sum of $210,000 the sum of $64,768 was credited to the husband’s loan account with G Pty Ltd on 30 October 2020.
The husband stated that the above credit entries totalling $293,500 and subsequent withdrawal of $210,000 were made not to hide monies from the wife but to prevent the wife freezing another account. He denied the withdrawal was for his personal use. He denied that the withdrawal was placed in an account which had not been disclosed to the wife. He denied that he had made the withdrawal to decrease the property pool. He stated that when his side disclosed the trust, WW Pty Ltd was disclosed. He agreed that the withdrawal of $210,000 was disclosed on about 24 March 2023, “when it was asked for”.
From the above discussion, and again, the Court observes that it is apparent that $293,500 was sourced by the husband from further borrowings from G Pty Ltd post separation and placed into the WW Pty Ltd bank account with NAB; $40,000 of such monies were then credited to a loan account of the husband with G Pty Ltd; $210,000 of such borrowings were then withdrawn from the WW Pty Ltd bank account and it is possible that of such sum of $210,000 the sum of $64,768 was deposited to that loan account on 30 October 2020. That leaves at least some $145,232 unexplained ($210,000 less $64,768). Thus, whilst the Court emphasises that the original sum of $293,500 related to further borrowings by the husband post separation, nevertheless the above discussion does indicate that the husband may well have funds (i.e. at least some $145,232) available to him as a financial resource.
The wife, in relation to the above sum of $377,000, further contended that the husband had failed to explain the withdrawal of a sum of $167,000 from an account of AD Pty Ltd, being a company created by the husband prior to the parties’ relationship. In this context, the wife referred to her tender bundle, at page 26 (Exhibit H), being copy bank statement number 8 of this company for the period from 24 December 2019 to 23 March 2020.
The bank statement reveals some eight credit entries purporting to be from the husband’s sister, Ms AH, in 2020 totalling some $166,000. It also reveals, in March 2020 debit loan repayments, in seven separate entries, in the total sum of $167,000. Copy bank statement number 10 shows the company to have a closing balance as at 23 September 2020 of zero dollars. It is not clear on the evidence as to where the husband transferred the sum of $167,000 (in separate “loan repayment(s)”) between 6 March 2020 and 16 March 2020).
The Court observes that the husband adduced no significant evidence relating to his sister Ms AH lending AD Pty Ltd monies and then being repaid those monies. The husband had stated in oral evidence that in about 2020 the wife had frozen his bank accounts and he was extremely stressed that the wife would freeze other bank accounts that he had, and so he moved money into an account that the wife did not know about (being AD Company). He stated that he was trying to secure such monies so the wife could not freeze them. The husband did not dispute that monies of about $166,000 paid into AD Company was not referred to in his evidence.
From the above discussion relating to this sum of $166,000 it is not clear on the evidence what was the source of such monies, with the Court nevertheless observing that the said sum was deposited into AD Pty Ltd’s bank account with FF Bank only about 3 months post separation. And it is not clear on the evidence to where the said sum was later dispersed. Finally, the husband may well have the said sum available to him as a financial resource.
The husband has certain debt which did not enter the final balance sheet (see his Financial Statement filed 30 March 2023). The wife has certain debt which did not enter the final balance sheet (see her Financial Statement filed 30 March 2023).
Having regard to all the above discussed matters the Court allows an adjustment under s 75(2) in favour of the wife of 10 per cent. Thus the adjusted contributions finding is 60 per cent to the wife and 40 per cent to the husband. The resulting disparity is $203,421.
Justice and equity
The wife’s 60 per cent of the net property pool ($1,017,105) is $610,263.
The husband’s 40 per cent of the net property pool ($1,017,105) is $406,842.
Should the husband retain:
(a)The Suburb F property: net $541,000;
(b)PP Pty Ltd: $35,000;
(c)Interest in Suburb SS property: net $266,000;
totalling $842,000,
and the wife retain:
(a)Sale proceeds of Suburb NN property: $80,742;
(b)The Suburb LL property: net $162,000;
totalling $242,742,
less the CGT debt from the sale of the Suburb NN property: $67,637,
leaving net $175,105,
then the husband will need to pay the wife $435,158 ($610,263 less $175,105).
Should the husband fail to pay the wife the above sum of $435,158 within eight weeks, then the Suburb F property should be sold.
Should the husband then retain:
(a)PP Pty Ltd: $35,000;
(b)Interest in Suburb SS property: net $266,000;
totalling $301,000,
he will need to be paid $105,842 ($406,842 less $301,000) from the net proceeds of sale of the Suburb F property.
Should the wife retain:
(a)Sale proceeds of Suburb NN property: $80,742;
(b)The Suburb LL property: net $162,000;
totalling $242,742,
less the CGT debt from the sale of the Suburb NN property: $67,637,
leaving net $175,105,
then she will need to be paid $435,158 ($610,263 less $175,105) from the net proceeds of sale of the Suburb F property.
The Court is of the view that its proposed property adjustment orders will represent a just and equitable property settlement between the parties.
The Court makes Orders accordingly.

I certify that the preceding three hundred and forty (340) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.
Deputy Associate:
Dated: 16 June 2023

File number(s):	PAC 5076 of 2019
Judgment of:	JUDGE NEWBRUN
Date of judgment:	16 June 2023
Catchwords:	FAMILY LAW – PARENTING – Best interests of child – orders made. FAMILY LAW – PROPERTY – Just and equitable property orders made.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60DA, 60DAA, 65D, 75(2), 79(2) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.06 Mental Health Act 2007 (NSW) s 32
Cases cited:	Black & Kellner (1992) 15 Fam LR 343 In the Marriage of SW and WH Weir (1992) 16 Fam LR 154 Lotta & Lotta [2017] FamCA 50 Saif & Saif [2020] FamCA 119
Division:	Division 2 Family Law
Number of paragraphs:	340
Date of hearing:	31 March 2023, 3–4 April 2023
Place:	Parramatta
Counsel for the Applicant:	Mr Havenstein
Solicitor for the Applicant:	Byron & Associates
Counsel for the Respondent:	Ms Mahony
Solicitor for the Respondent:	Rowlandson & Co Solicitors
Counsel for the Independent Children's Lawyer:	Mr Ladopoulos
Solicitor for the Independent Children's Lawyer:	Sarah Bevan Family Lawyers

PAC 5076 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR CHOSAR Applicant
AND:	MS CHOSAR Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE NEWBRUN
DATE OF ORDER:	16 June 2023

BALANCE SHEET
Ownership		Description	Husband’s value	Wife’s value
Assets
1	W	AG Street, Suburb LL QLD (“the Suburb LL property”)	$430,000	$430,000
2	W	Sale proceeds of OO Street, Suburb NN QLD (“the OO Street property”) less CGT $67,637	Nil Refer to Items 6 & 10	Nil Refer to Items 6 & 10
3	H	E Street, Suburb F NSW (“the Suburb F property”)	$950,000	$950,000
4	H	Interest in PP Pty Ltd including Motor Vehicle 1 $56,000 FF Bank a/c no ending …46 as at 13.03.23 $532; Westpac business one flexi acc no ..25 $Unknown;	$35,000	$35,000
5	H	Interest in AJ Street, Suburb SS QLD (“the Suburb SS property”)	$625,000	$625,000
6	W	RR Bank account no ending …13 ($449) & FF Bank account no ending …58 ($0) ANZ offset	$80,742	$80,742
Total		$2,120,742	$2,120,742
*Liabilities*
7	W	Mortgage secured over the Suburb LL Property through Commonwealth Bank being loan a/c no ending …44	$268,000	$268,000
8	H	Mortgage secured over the Suburb F property in favour of PP Pty Ltd	$409,000	$580,000
9	H	NAB loan secured by mortgage over the Suburb SS property being account no ending …69 in the name of WW Pty Ltd ATF Chosar Family Trust	$359,000	$359,000
10	W	Capital gains tax liability payable on the sale of the OO Street property	$67,637	$67,637
Total		$1,103,637	$1,274,637
*Net Total Assets*
Total		$1,017,105	$846,105