Duhamel & Hadzic - [2024] FedCFamC1F 125

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Duhamel & Hadzic [2024] FedCFamC1F 125

File number: MLC 8357 of 2021

Judgment of: HARTNETT J

Date of judgment: 6 March 2024

Catchwords:
FAMILY LAW – PARENTING – Where the children reside with the mother – Where the father committed significant family violence towards the children and the mother - Where the father was found guilty of an assault against the mother’s friend – Where the father attacked the mother’s friend in the presence of one of the parties children – Where the father wants the children to visit him in prison – Where the father was sentenced to multiple years in prison with a non-parole period– Mother to have sole parental responsibility for the children – Children spend no time with the father.

FAMILY LAW – PROPERTY – Where there was a dispute as to the date of the parties separation – Where the husband alleged the entirety of the asset pool available for division was acquired post-separation – Finding as to when parties separated – Where both parties received funds from joint enterprise – Where both parties allege family members loaned them significant funds in cash – Where there are multiple caveats on a property - Finding that no valid loans existed – Where the wife’s contributions were more onerous due to husband’s family violence – Where the husband remains incarcerated – Wife to receive ninety percent of non-superannuation assets – Husband to receive ten percent of non-superannuation assets and retain his superannuation

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Parts VII, VIII, ss 60CA, 60CC, 61C, 61DA, 65DAA, 67Z, 75, 79, 90SM, 106A

Cases cited:
Benson & Drury (2020) FLC 93-998

Bevan & Bevan (2013) FLC 93-545

Blandford & Esmore [2022] FedCFamC1A 67

Blinko & Blinko [2015] FamCAFC 146

Goode & Goode (2006) FLC 93-286

Isles & Nelissen (2022) 65 Fam LR 288

Kennon & Kennon (1997) FLC 92-757

Lovine & Connor (2012) FLC 93-515

M & M (1988) 166 CLR 69

Maine & Maine (2016) 56 Fam LR 500

Mallet v Mallet (1984) 156 CLR 605

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark [2009] FamCAFC 92

Mulvany & Lane (2009) FLC 93-404

Petruski v Balewa (2013) 49 Fam LR 116

Rigby & Olsen [2021] FedCFamC1A 46

Roverati & Roverati (2021) FLC 94-027

Russell & Close [1993] FamCA 62

Stanford v Stanford (2012) 247 CLR 108

Steinbrenner & Steinbrenner [2008] FamCAFC 193

Division: Division 1 First Instance

Number of paragraphs: 278

Date of last submissions: 14 August 2023

Date of hearing: 3-7 July 2023 & 20 December 2023

Place: Melbourne

Counsel for the Applicant: Mr Hutchings

Solicitor for the Applicant: Pearsons Lawyers Pty Ltd

Counsel for the Respondent: Ms Swann

Solicitor for the Respondent: Ferraro & Singh Lawyers Pty Ltd

Counsel for the Independent Children's Lawyer: Mr Tesoriero

Solicitor for the Independent Children's Lawyer: Trapski Family Law
ORDERS

MLC 8357 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR DUHAMEL

Applicant

AND:
MS HADZIC

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HARTNETT J

DATE OF ORDER:

6 MARCH 2024

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The mother have sole parental responsibility for the children, X born 2010 and Y born 2011 (“the children”).
3.The children live with the mother.
4.The children spend no time with the father.
5.There be no communication between the children and the father.
6.In her exercise of sole parental responsibility, the mother is authorised to apply for (and renew) and receive an Australian Passport for the children pursuant to the Australian Passports Act 2005 (Cth) without first obtaining the written consent of the father.
7.The mother be permitted to relocate with the children to a location of her choice within the Commonwealth of Australia, with details of that location to be disclosed only to the Department of Fairness, Families and Housing (“DFFH”) and other relevant government agencies, including Victoria Police, if required, save and except if the mother consents to provide those details to third parties.
8.The mother be at liberty to provide a copy of these Orders to any school attended by the children or either of them, together with any medical practitioner treating the children or either of them.
9.The net proceeds of sale of the real property situate at B Street, Suburb C in the State of Victoria and being more particularly described in Volume … Folio …, together with any interest accrued in respect of same, as held in the father’s solicitors trust account on behalf of the parties, is to be forthwith distributed to the parties as follows:
(a)$24,000 to the mother with the mother to apply such funds to the outstanding 2023 D School fees;
(b)of the remainder:
(i)$72,586 to the mother, together with interest; and
(ii)$71,954 to the father, together with interest.

10.The father forthwith do all such acts and things and sign all documents necessary to transfer the mother at the expense of the mother (“the transfer”) all of his right, title and interest in the real property situate at and known as E Street, Suburb C in the State of Victoria being the land more particularly described in Certificate of Title Volume … Folio … (“E Street property”).
11.Contemporaneously with the transfer, the father do all such acts and things and sign all documents at his expense necessary to:
(a)discharge the mortgage registered number … to F Pty Ltd;
(b)arrange for the withdrawal of Caveat registered number … lodged on the title to the E Street property by Mr G including making an application to the Registrar of Titles pursuant to s 89A of the Transfer of Land Act 1958 (Vic);
(c)arrange for the withdrawal of caveat registered number … lodged on the title to the E Street property by Mr H including making an application to the Registrar of Titles pursuant to s 89A of the Transfer of Land Act 1958 (Vic);
(d)arrange for the withdrawal of caveat registered number … lodged on the title to the E Street property by Pearsons Lawyers Pty Ltd; and
(e)arrange for the withdrawal of caveat registered number … lodged on the title to the E Street property by Victoria Legal Aid.

12.For the purposes of effecting Orders 10 and 11:
(a)each party must engage a representative who is a subscriber for the purposes of the Electronic Conveyancing National Law at their sole expense; and
(b)each party shall be responsible for the costs associated with their use of PEXA and for the avoidance of doubt, this includes fees such as verification of identity, workspace fee or such other fee as may be charged by PEXA from time to time.

13.Pending the transfer the father personally and by his servants and agents be and is hereby restrained from further encumbering or dealing in any way with the title to the E Street property.
14.Contemporaneously with the transfer, the mother be solely liable for and indemnify the father in relation to all apportionable rates, taxes, outgoings of or with respect to the E Street property of whatsoever nature and kind.
15.The parties each be solely liable for and indemnify the other in relation to any loans allegedly made to them by their respective family members.
16.Unless specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of such party as at the date of these orders;
(b)monies standing to the credit of the parties in any bank account are deemed to be the property of that party;
(c)each party forego any claims they may have to any superannuation benefits or work-related benefits belonging to or earned by the other;
(d)insurance policies remain the sole property of the owner named thereon;
(e)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(f)each party be solely responsible for the payment of any debts in their respective names.

17.In the event that either party has refused or neglected to comply with a direction under these orders, the other party is at liberty to apply pursuant to s 106A of the Family Law Act 1975 (Cth) to seek a relevant order to be appointed to execute a deed or instrument in the name of the defaulting party to whom the direction was given under these orders and to do all acts and thing necessary to give validity and operation to the deed or instrument.
18.The Independent Children’s Lawyer be discharged.
19.Otherwise, all extant applications are dismissed, and the matter removed from the list.

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

This proceeding involves competing applications for final parenting orders as sought under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The applications before the Court are in respect of the two children of the parties marriage, X born 2010, 13 years of age at trial and YY born 2011, 12 years of age at trial Y (collectively “the children”). The proceeding also involves competing applications for final property orders as sought under Part VIII of the Act. Each of the parties sought that the Court make orders which alter the interests of the parties in their property.
The applicant father (“the father”), by his Initiating Application filed 27 July 2021, in the then Federal Circuit Court of Australia (now Federal Circuit and Family Court of Australia (Division 2)) (“Division 2”) sought final property orders. By Response to Initiating Application filed by the respondent mother (“the mother”) on 15 October 2021, the mother also sought final property orders.
On 31 January 2022, the father filed a Further Amended Initiating Application wherein he also sought parenting orders in relation to the children. The mother accordingly amended the orders as sought by her in her Amended Response to Initiating Application filed 2 May 2022 to include final parenting orders.
On 14 February 2023, the proceeding was transferred to the Federal Circuit and Family Court of Australia (Division 1).
On 16 February 2023, a gaol order was made to enable the father, who then resided in a Remand Centre, to be present in the Court for the trial.
On 3 July 2023, the trial commenced. At that time, the father was continuing to be held on remand pending a criminal trial. The incident to which these charges relate is detailed hereafter in these reasons. At trial, each of the parties, together with the Independent Children’s Lawyer (“the ICL”) who had been appointed by order made in Division 2 on 5 August 2022, were represented by counsel.
The father appeared in person for the first three days of the trial and gave his evidence in person. He then appeared via video link from the Remand Centre for the final two days of the trial. His witnesses each gave their evidence in person at the Court and during the first three days of the trial.
The mother appeared remotely for the entirety of the trial and gave her evidence via video link in accordance with an order made by the Court on 28 June 2023. The mother’s only witness was also afforded that means of appearing before the Court and gave his evidence via video link.
On the penultimate day of the trial, the mother sought orders restraining the father and his servants and/or agents from further encumbering the title to the real property situate at E Street, Suburb C in the State of Victoria (“the E Street property”) and restraining the father’s solicitors from releasing the title to the E Street property. These orders were sought by the mother in circumstances where she alleged that the father’s brother, Mr H, had made a request of the father’s solicitors to release the title to the E Street property to him, as a person holding a power of attorney to so act on behalf of the father. The Court made interim orders on 6 July 2023 in the terms as sought by the mother.
On 7 July 2023, orders were made by consent, relevantly that, the mother cause delivery to the father’s lawyers of all of the father and Mr H’s documents in her possession, power or control including without limitation the father’s passport and Mr H’s taxation and immigration documentation.
The issues remaining in dispute at the conclusion of the trial on 7 July 2023 were:
·Whether there should be an order for equal shared parental responsibility (as sought by the father) or sole parental responsibility to the mother (as sought by the mother and the ICL);
·Whether the children should spend any time with the father (as sought by the father and opposed by the mother and the ICL);
·Whether the parties separated in 2011 (as alleged by the father) or 2021 (as alleged by the mother);
·What net assets were available for division between the parties, including the existence of any alleged loans owed by each of the parties to their respective family members (in the father’s case, to Mr H and the father’s uncle Mr G and in the mother’s case, to her brother, Mr J; and
·Whether there should be an order adjusting the parties’ property interests such that the father receive one hundred percent of the net assets available for division (as he sought) or the mother receive eighty seven percent of the net assets available for division (as she sought) noting that the net assets available for division were disputed by the parties.
At the conclusion of the trial there was also the significant issue of whether the father would remain in prison, and for how long, or whether he would be released. That issue was anticipated to be determined by the court hearing the criminal charges against him prior to the end of the calendar year. Written submissions were nevertheless provided for to be received in July and August 2023.
In late 2023, joint correspondence from the parties was received in chambers requesting the re-opening of the evidence. It was conveyed that the criminal trial had concluded and that the father had been found guilty. He had been sentenced with a non-parole period.
On 20 December 2023, the parties proceeded before me in a mention hearing. Orders were made that leave be granted for the parties to reopen the matter for the purposes of admitting, as further evidence in the proceeding, the sentencing decision by a Justice of the Supreme Court of Victoria dated late 2023.
In looking to the above timeframe, I observe, as is set out below, that in the period from July 2021, being when the proceeding commenced, the children have lived with the mother. They have spent almost no time with the father and had almost no communication with him. Significantly, their limited exposure to him has caused them devastating psychological harm. In that context, the father seeks the orders that he does as set out below.
ORDERS SOUGHT
Parenting
The father sought orders, relevantly, that:
(1)the parents have equal shared parental responsibility for the children;
(2)pending the father’s release from prison, the children communicate with the father weekly via Zoom video calls supervised by the father’s brother Mr H for a period of three months, and thereafter the children attend for monthly visits at the Remand Centre or any other prison to which the father may have been transferred with the father’s brother Mr H to take the children to and from the Remand Centre or any other prison to which the father may have been transferred. He sought a further order that the children be at liberty to contact the paternal family and the mother facilitate any reasonable request from the children to make such contact during this period; and
(3)both parents be entitled to communicate with the children’s school and receive information relating to the children’s attendance and progress at school and to receive notices, newsletters, bulletins, school reports and photographs; that neither party, their servants and agents denigrate the other in the presence or the hearing of the children and each be restrained from passing messages through the children; that the parties keep each other informed of any medical issues and treatment involving the children; and that the parties forthwith inform each other as to their current residential address, landline and mobile telephone numbers and email addresses for communication in respect to children’s matters.
The father also sought orders that upon his release from prison, the children live with the parties on a week about basis, for half of school holidays and provision for the children to spend time with the parties on special occasions.
Upon the re-opening of evidence and following the father being sentenced to prison, the father did not provide the Court with revised orders as sought by him. Given the judgment of the Supreme Court, it is not possible for the Court to make orders in respect of the children following the father’s release from prison in the event the father serves the minimum parole period. The Court has no jurisdiction to do so.
The mother sought orders, relevantly that, all previous parenting orders be discharged; the mother have sole parental responsibility for the children; the children live with the mother; the children spend no time with the father; there be no communication between the children and the father; the mother be permitted to relocate the children to a location of her choice within Australia, with details of that location to be disclosed only to the Department of Fairness, Families and Housing (“DFFH”) and other relevant government agencies, including Victoria Police, if required, save and except if the mother consents to provide those details to third parties; the mother be at liberty to provide a copy of the orders to any school which the children attend, or any medical practitioner treating the children; the children be permitted to travel internationally and spend time with the mother outside Australia; and for the mother to be authorised to apply for, renew, and receive an Australian passport for the children without first obtaining the written consent of the father.
The ICL consented to the orders sought by the mother and joined her in seeking the proposed orders as detailed above.
Property
The father sought orders, relevantly, that he retain his sole proprietorship of the E Street property with the mother to do all things necessary to remove her caveat encumbering the property at her expense; and that the net proceeds of sale of the property situate at and known as B Street, Suburb C in the State of Victoria (“the B Street property”) be applied in repayment of the loans owed by the father to Mr G (in the sum of $165,000) and to Mr H (in the sum of $100,000) together with repayment by the father of additional expenses incurred by Mr H (in the sum of $70,347.99) with the balance of such net sale proceeds to be received by the father. The father also sought an order pursuant to s 106A of the Act.

The mother sought orders, relevantly, that the proceeds of sale of the B Street property be distributed to the mother’s solicitor and thereafter to the mother; that the father do all acts and things to transfer to the mother, at her expense, all of his right, title and interest in the E Street property and contemporaneously, the father discharge the mortgage secured against the property and arrange for the withdrawals of the caveats lodged by Mr G, Mr H, Pearsons Lawyers and Victoria Legal Aid; that pending the transfer of the E Street property to the mother, the father be restrained from further encumbering or dealing in any way with the title of the property; that contemporaneous with the transfer that the mother be solely liable for and indemnify the father in relation to all rates, taxes and outgoings of or with respect to the E Street property; that each party be solely liable for and indemnify the other in relation to any loans allegedly made to them by their respective family members; that each party be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of the orders; that monies standing to the credit of the parties in any bank account be deemed to be property of that party; that each party forego any claims they may have to the superannuation benefits or work-related benefits belonging to or earned by the other; and other orders of a general nature. The mother also sought an order pursuant to s 106A of the Act.
In essence, the overall division of assets sought by the father was that he receives one hundred percent of the net assets of the parties, as characterised by him.[1] The mother sought that she receives eighty seven percent of the net assets of the parties, as characterised by her.[2]
[1] Father’s Outline of Case filed 29 June 2023, p.8.
[2] Mother’s Outline of Case filed 30 June 2023, p.18.
MATERIAL RELIED UPON
The mother relied on the following documents:
(1)Further Amended Response to Final Orders filed 22 June 2023;
(2)her Outline of Case filed 30 June 2023;
(3)her Financial Statement filed 28 June 2023;
(4)her trial affidavit filed 22 June 2023;
(5)affidavit of Mr J, the mother’s brother, filed 22 June 2023;
(6)her Undertaking in relation to Mr K filed 21 February 2023;
(7)Notice of Child Abuse, Family Violence, or Risk filed 2 May 2022; and
(8)Written submissions filed 24 July 2023 and 14 August 2023.
The father relied on the following documents:
(1)Further, Further, Further, Further Amended Initiating Application filed 9 June 2023;
(2)his Outline of Case filed 29 June 2023;
(3)his Financial Statement filed 28 June 2023;
(4)his trial affidavit filed 9 June 2023;
(5)affidavit of Mr H, the father’s brother, filed 8 June 2023;
(6)affidavit of Mr G, the father’s uncle, filed 8 June 2023; and
(7)Written submissions filed 7 August 2023.
The ICL relied upon an Outline of Case filed 28 June 2023.
The mother and the ICL both relied upon the Child Impact Report of Ms L dated 1 August 2022 and the s 67Z Response from the DFFH dated 12 July 2022.
All parties sought to rely upon, as further evidence adduced following the conclusion of the trial, the sentencing decision in the Supreme Court of Victoria dated late 2023. That document was admitted into evidence in the proceeding on 20 December 2023.
RELEVANT FACTUAL BACKGROUND
The father was born in 1984 and at trial was 39 years old. He was born in Country N and arrived in Australia in late 2008, following his marriage to the mother in Country N some months earlier. He was aged 24. Since that time, he has become an Australian citizen.
The mother was born in 1985 and at trial was 37 years old. She was born in Australia.
The parties commenced their cohabitation in 2007 and married in 2008 in Country N. The parties returned to Australia in late 2008, and each took up employment in Australia. The mother worked in an office and in hospitality on weekends. The father was employed in industry.
X was born 2010 and Y was born 2011. The mother remained at home following X’s birth and was the primary care giver to the children. She was also their primary attachment figure.
In 2011, and prior to the birth of Y, the father insisted the mother obtain a single parent Centrelink benefit by claiming that the parties were separated. The mother made such claim and commenced to receive sole parent Centrelink benefits. The father, at this time, claimed to be living at the home of a relative. He was not so living. The mother continued to receive those payments (and continues ongoing) for the eleven years that the parties cohabitation continued thereafter. Such funds were applied for the benefit of the family.
In 2012, and whilst the family home had moved to a rental premise in Suburb M the parties determined, as I find it, to establish a joint venture business. It was a brokerage business. At the time the mother was engaged in the primary care of the two very young children. She was home bound, and the parties were looking for further extra income for their family. The mother took on the daily care operation of the business and liaised with clients and suppliers. The father collected wares from interstate, and both parties were involved in the advertising of the business. Profits from the business were paid into the father’s bank accounts (the majority of payments made in this manner), and into the mother’s bank account. Other payments, allegedly most payments, were made in cash.
In mid-2014, the father purchased, in his sole name, the E Street property and the parties, together with the children, moved into the property. It became the parties matrimonial home. The father purchased the E Street property for the sum of $290,000, using savings acquired during the marriage of approximately $29,000. The parties carried out various renovations to the property during their years of occupation, and whilst they lived at the “[O Street] property” as described below.
In 2016, the father grabbed the children, then aged 3 and 4 years, and assaulted them, causing injury to the children. The children were being too noisy.
In late 2016, the father purchased, in his sole name, the property at O Street, Suburb C in the State of Victoria (“the O Street property”) for $610,000. The 10 per cent deposit was paid from savings acquired during the marriage which included savings from the proceeds of sale of the brokerage business.
In early 2017, the parties and their children moved into the O Street property. The father permitted his relatives to reside in the E Street property free of rent at various times.
In 2017, the father hit the child Y in the face, causing the child’s nose to bleed.
In early 2017, the father’s brother, Mr H arrived in Australia on a tourist visa of one month’s duration. He also, inconsistently claimed to have arrived in Australia in late 2016. Nothing turns on this. Mr H managed to extend the period he was able to remain in Australia by unknown means, save that in late 2018, he applied for a protection visa which at trial was a matter “on Tribunal”.[3] On arrival in Australia, he stayed with the parties and their children in the O Street property, save for those periods of time when he would spend weekday nights in Suburb Q where he had obtained employment in a factory with a cousin. He otherwise was accommodated by the parties.
[3] Transcript 5 July 2023, p.234 lines 44-45.
In 2018, the father hit the child X in the face, causing the child’s nose to bleed.
In 2018, new regulations came into force that impacted the brokerage business. The mother failed to comply with these regulations with the father telling her to ignore them and “just keep selling […]”.[4] A regulatory authority became aware that the mother was running the business and not registered. The mother was ultimately prosecuted. The mother was required to cease her involvement in the business.
[4] Mother’s trial affidavit filed 22 June 2023, paragraph 44.
In mid-2019, the father sold the O Street property for $890,000. The father received net sale proceeds of $280,000 which he applied to reduce the mortgage encumbering the E Street property and to further renovate the E Street property. The father’s evidence was that he owed his brother, the sum of $100,000 at this time, allegedly relating to the father’s expenditure on the O Street property in respect of mortgage repayments, and other outgoings. The evidence is that Mr H lived rent free with the parties, and that he paid no outgoings in respect of the O Street property. The father did not repay his alleged debt to his brother out of these net sale proceeds.
In or around 2019 to 2020, the parties resumed their brokerage business. They continued to engage in this business throughout 2020 and a part of 2021. The father was not in employment following an unsuccessful attempt by him to set up another business. The parties sold Motor Vehicle 1 owned by the father to supplement their living expenses. The Centrelink benefits continued to be received by the mother. The parties had to transfer their wares to the homes of the mother’s brother and sister due to the surveillance carried out by the council over the E Street property. The mother’s relatives commenced to receive the cash and bank payments for the sale of the goods, and they dutifully transferred such funds to the mother who would then make those funds available to the father. In this way, the deposit for the purchase of the next property of the parties was acquired.
In early 2020, a Magistrate’s Court Order was made banning the mother from running the brokerage business for a period of three years. The mother ignored that Order as described in the preceding paragraph.
In early 2020, the father purchased, again in his sole name, the B Street property for $560,000. He applied savings acquired during the marriage to this purchase. Those savings included the monies from the sales joint venture. They undertook renovations to the property, on the mother’s evidence in the sum of approximately $240,000 although no finding can be made by the Court in respect of the quantum as claimed – there was simply insufficient probative evidence.
In early 2020, the father and his brother signed a document titled ‘Loan Agreement’. It provided that Mr H had loaned the father the sum of $100,000. This loan was said to be in cash and comprised various amounts in differing transactions over time. The sum was an estimate as provided by the father.
In late 2020, the parties and their children moved into the renovated B Street property. The father’s brother remained in the parties E Street property. He paid no rental in respect of his occupation of the property.
In February 2021, the parties separated after the mother heard of the allegations of her niece (“the niece”) that on the preceding night, the father had shown the niece pornographic material, told her they should have sex, forced himself onto her, forcibly kissed her, touched her inappropriately and followed her into her bedroom. The niece was 12 years old when the disclosures were made. The mother, her sister-in-law (the niece’s mother) and the niece attended Suburb P Police Station and the incident was investigated by the Sexual Offences and Child Abuse Investigations Team (“SOCIT”). It was the mother’s evidence that after the father learnt the incident was reported to Police, he told her that he was going to shoot the niece, and that he could “get a gun easily”.[5] Ultimately, no charges were laid.
[5] Mother’s trial affidavit filed 22 June 2023, paragraph 19(c).
The mother remained cohabitating under the same roof with the father for a period of approximately two weeks whilst awaiting action from SOCIT.
In late February 2021, the DFFH interviewed the children in relation to the February 2021 incident. After the interview, the mother attended upon the Suburb R Police Station to make a report to Police. In that report she detailed the historic and current family violence she alleged the father had committed against her and the children and disclosed the firearms and ammunition in the father’s possession. The mother also made application for an Intervention Order (“IVO”) against the father for her and the children’s protection.
Following the mother’s attendance upon the Suburb R Police Station, she and the children travelled to Queensland temporarily, remaining there for approximately a week. Upon the mother receiving notification from the Police that the father’s firearms and ammunition had been confiscated, the mother and children returned to Melbourne and took up residence with the mother’s brother, Mr J in Suburb P. She did not return to the former matrimonial home, the B Street property.
In early 2021, the father attended at the Suburb P Police Station. He was served with an ex parte IVO made against him for the protection of the mother and children. He was also charged with possession of an unlicensed firearm. The father claimed the gun was a decorative gun received by his uncle, that was not functional nor operative.
Around this time, the father moved out of the B Street property into the E Street property, taking up residence with his brother.
A short time later, the father attended at the hearing of the mother’s IVO application in the Suburb T Magistrates Court. An IVO was made naming the mother and children as protected persons.
On the same day, Mr H contacted the mother and indicated that the father had her under surveillance. He told her to stop making the father angry. Mr H also conveyed to the mother that the father said, when he got out of jail, he would bulldoze the house to make sure the mother was left with nothing.
A short time later, the father threatened the mother and stated that, “I’ll be inside, but you will be in the ground”.[6] He pressured the mother to “drop the charges” or he would make the mother’s life hell.[7] The father also threatened the mother that he would financially ruin her.
[6] Mother’s trial affidavit filed 22 June 2023, paragraph 19(b).
[7] Mother’s trial affidavit filed 22 June 2023, paragraph 19(b).
Approximately a week later, the father threatened to kill members of the mother’s family and told the mother “I will find her on the road and pull up next to her and shoot her” and “I can make a phone call and I can get a gun easily and you know that”.[8] The mother understood the father to be referring to the mother’s sister.
[8] Mother’s trial affidavit filed 22 June 2023, paragraph 19(c).
A day later, the father threatened to kill the mother over the phone and told her that he would run her over and put a bullet in her head.
The next day, the mother agreed to allow Mr H to collect the children from her brother’s home, to enable the father to see the children at a shopping centre. The father however, contrary to the express arrangements made, and the existence of the IVO, accompanied Mr H to the mother’s brother’s residence. Once there, he spoke with the mother. It was her evidence that he expressed his anger about the mother not answering his phone calls, the involvement of the DFFH, and the IVO then in place, and said words to the effect “I don’t give a fuck. Fuck them. This is all about the Intervention Order you took out against me”.[9] On the mother’s evidence, the father then proceeded to threaten to kill the wife if she tried to prevent him seeing the children, saying further “I will kill you, and then I’ll go to jail and leave the kids without parents”.[10] The mother’s evidence was that the father then stood over her and held a knife to her throat. Whilst the mother cried and asked the father not to stab her, he continued to threaten her life if she went to the Police again. He told her “This is your last chance”.[11] Mr J was listening to the exchange on the mother’s mobile phone. He called the Police. Police attended at the property and arrested the father. He was charged, taken into remand and remained there until mid-2021.
[9] Mother’s trial affidavit filed 22 June 2023, paragraph 17(b).
[10] Mother’s trial affidavit filed 22 June 2023, paragraph 17(b).
[11] Mother’s trial affidavit filed 22 June 2023, paragraph 17(c).
In mid-2021, the father made threats to kill Mr J.
Two days later, the father made further threats to kill Mr J and attended on Mr J’s workplace.
A short time later, the father was taken into remand again. He remained there until late 2021 in the circumstances described below.
In late 2021, the father’s charges for possession of an unlicensed firearm and a persistent breach of IVO were heard in the Suburb T Magistrate's Court. The father expected to receive a sentence that allowed him to be released that day. He was however not released.
A short time later, the father pleaded guilty to the extant charges and was sentenced to a term of imprisonment.
Approximately a month later, the father was released from prison where his aggregate prison term took into account his pre-sentencing detention.
In early 2022, a final IVO was made against the father for the protection of the mother and the children. It expired in early 2023.
On 1 February 2022, orders were made for the mother to have sole use, right and occupancy of the B Street property and that she be responsible for all mortgage payments, rates and outgoings on or before they fall due.
In early 2022, Child Protection visited the mother and the children. The mother advised Child Protection of her fear of the father and that the father had breached the final IVO on multiple occasions.
In early 2022, Child Protection assessed the father as being responsible for harm and concluded that “the children had been present when verbal and physical family violence was perpetrated against the mother by the father placing the children at risk of physical harm, including at risk of death”.[12] Further, “the children will have been emotionally and psychologically impacted by being exposed to ongoing and significant family violence” perpetrated by the father against the mother causing ongoing fear for their safety”.[13]
[12] Section 67Z Response dated 12 July 2022.
[13] Section 67Z Response dated 12 July 2022.
In mid-2022, the father and Mr H signed a ‘Lease Agreement’ whereby Mr H would pay the father $1 per annum by way of rent to reside in the E Street property, with the period of agreement commencing in mid-2022 and ending mid-2030, or at the date of settlement should the property be sold prior to the lease date.
In mid-2022, the niece, Y, and the mother’s friend, Mr K were assisting the mother in sales in Suburb P. An incident transpired whereby the father, asserting he did so in self-defence, assaulted Mr K. This incident is further elaborated upon below in these reasons.
For two days in mid-2022, the father’s location was unknown to the mother. The children were petrified that the father would kill them, their mother, and the maternal family.
In mid-2022, the father was arrested and charged. The father was placed in custody.
In mid-2022, the DFFH provided a response to the Court pursuant to s 67Z of the Act. DFFH assessed the mother as a protective parent and recommended the children remain residing in her day-to-day care and recommended the children have no contact with the father due to:
·The father facing charges in which the child Y was present and the father showed no concern for his safety;
·The children having been vocal in their wish to have no contact with the father;
·The children demonstrating an extreme level of fear of the father including expressing the belief he will kill them and the mother; and
·The father stating to Child Protection that he will not engage with any programs or services to address his use of violence and does not regard himself as perpetrating any violence towards the mother and the children.
DFFH noted that the father had stated he “is determined to continue with this pattern of behaviour until the children are in his care. [Mr Duhamel] has stated he will not stop until the end of his life.”[14]
[14] Section 67Z Response dated 12 July 2022, p.4.

On 18 August 2022, interim orders were made, relevantly, that the mother have sole parental responsibility for the children, the children live with the mother and spend no time with the father or paternal family, and there be no communication between the children, the father and the paternal family. Orders were also made for the B Street property to be sold, each of the parties to receive an interim distribution of $50,000 and the proceeds of sale thereafter be held in trust by the father’s solicitors.
In late 2022, the father received correspondence that the lender had commenced proceedings in the Supreme Court of Victoria in late 2022 for possession of the B Street property and the E Street property. The father deposed the E Street property was taken into possession and the locks were changed. The father then lodged a procedural fairness complaint with the Australian Financial Complaints Authority, the complaint was settled and the bank agreed to cease proceedings until mid-2023. It was agreed if the mortgage was not discharged by then they would recommence the proceedings.
On or around late 2022, the father instructed his solicitors to contact the mother’s solicitors expressing his concern about Mr K living with the children and spending significant time with them where Mr K had a criminal history. The father requested the mother sign an undertaking stating the children would not be brought into contact with Mr K.
A short time later, the mother’s solicitors replied the mother was unaware of the convictions and would cease any contact between the children and Mr K.
In early 2023, the mother filed an undertaking that she would not allow the children to have any contact or spend any time with Mr K.
In mid-2023, the B Street property was sold for $900,000. The parties each received a partial property settlement of $50,000 pursuant to Orders made on 18 August 2022.
On 23 June 2023, the parties agreed to a release of a further $40,000 to each of the parties as a further part property settlement.
In mid-2023, the mother’s charges relating to the brokerage business was listed for a mention hearing. This Court was not provided with an update as to the status of the mother’s charges.
In late 2023, the father was sentenced to imprisonment with a non-parole period.
EVIDENCE
Statements of fact in these reasons are findings of fact on the balance of probabilities.[15] The Court is not required to undertake a microscopic analysis in relation to the evidence which has been presented, and findings of fact are not made in relation to every single disputed piece of evidence, of which there were many in this matter.[16] Relevant evidence has been considered and evaluated by me to arrive at a determination that is in the children’s best interests in the parenting orders proceeding, and a determination as to which the Court is satisfied, in all the circumstances, that it is just and equitable to make orders in the property orders proceeding.
[15] Evidence Act 1995 (Cth) s 140.
[16] Rigby & Olsen [2021] FedCFamC1A 46.
The mother
I found the mother to be evasive in answering questions about her failure to provide financial disclosure, but I accept her evidence that she was unable to comply with her obligations to provide disclosure because of the father’s family violence and complied to the best of her ability. The mother’s failure was also in the context of each party failing to put before the Court any evidence: as to the income earnt by them from the brokerage business, which the mother continued to refer to as a hobby; as to the renovations undertaken by them, at what time and at what cost; of a raft of other material that would have supported that which they each alleged.
I nonetheless preferred the evidence of the mother to that of the father where the parties accounts differed. She mostly did her best to recall events, facts and historical matters in a truthful manner.
The father
The father was an unreliable witness. He gave untruthful evidence, inconsistent evidence and other evidence that was entirely improbable. Some of his evidence was utterly fanciful. His evidence about the family loans allegedly advanced to him was unsupported by the evidence and I found his account, that of Mr G, and that of Mr H entirely concocted. There was no independent evidence to support that which they asserted. These matters are discussed below.
Mr J
Mr J, the mother’s brother was cross-examined by each of the parties respective counsel at the final hearing.
The mother and Mr J have a close sibling relationship.
It was Mr J’s evidence that following the parties’ separation, the father had threatened to kill him on more than one occasion. That fact is supported by the father’s criminal history as referred to hereafter. Mr J was required to obtain an IVO for the protection of himself and his six children.
Following the parties’ separation, and at the time of the trial, the mother and the children lived with Mr J and his family. Mr J deposed that after separation, the children appeared to feel safer and more comfortable in his home until the time of the incident. Thereafter, Mr J noticed a significant decline in the children’s mental health. The children appeared traumatised and lived in fear the father would come and kill them.
Mr J deposed that since the father has been in prison the children “appear to be doing a lot better mentally”.[17] The children enjoy the company of Mr J’s children and appear to be relaxed and comfortable in his household.
[17] Affidavit of Mr J filed 22 June 2023, paragraph 10.
It was Mr J’s evidence that the father would perpetrate family violence upon the mother, with the mother attempting to conceal the father’s physical violence upon her during the period of the marriage. He deposed to witnessing the father frequently verbally abusing the mother, calling her words to the effect of “fat piece of shit” and saying “she doesn’t know anything”.[18] Mr J claimed that while the father did not physically abuse the mother in his presence, he would be physically violent with the children in front of Mr J and/or his family. He deposed to numerous incidents where the father slapped the children and yelled at them. One incident described by him was in circumstances where the child Y went to the backyard to look for his lost shoe. His evidence was that the father subsequently followed the child and “smashed” Y’s head against the brick wall as punishment for taking too long in searching for his shoe. Y had tears in his eyes, but Mr J observed that the child “did not dare to say anything as he was so petrified of [the father].”[19]
[18] Affidavit of Mr J filed 22 June 2023, paragraph 6.
[19] Affidavit of Mr J filed 22 June 2023, paragraph 8.
I accept the above evidence of Mr J.
Mr H
Mr H is the father’s brother.
I found Mr H to be an unreliable and often untruthful witness. His evidence was inconsistent, and he did not make appropriate concessions, even when provided with copies of documents that contradicted his oral evidence. When cross-examined by counsel for the mother, Mr H at times was non-responsive to the questions asked of him. At other times, he shrugged when asked questions, instead of providing an appropriate, verbal response.
Mr H gave evidence that contradicted both the mother and the father’s evidence in relation to where he lived at a certain time. Relevantly, that there was a period where he was not living with either of the parties, but rather living with a man, a man whose surname Mr H could not remember, despite the two allegedly living together. Mr H also gave evidence that, at times, contradicted his own previous evidence.
It was Mr H’s affidavit evidence that he arrived in Australia in 2016. His evidence at trial was that he arrived in Australia from Country N in early 2017, and did not have any money when he arrived. I accept that he had no funds on his arrival, and nothing turns on whether he arrived in Australia in 2016 or 2017. A Protection Visa Application as lodged by Mr H (as the applicant) following his arrival in Australia, in evidence before the Court, stated that he was unemployed from early 2017 to late 2018. However, Mr H’s evidence before the Court in this proceeding, was that approximately one month after his arrival in Australia, he commenced to work for his cousin. Mr H asserted that he worked on a farm, and in a factory, and was paid in cash ranging from amounts of $700 to $1,000 per week. He claimed he performed this work notwithstanding he was not legally allowed to work due to his visa requirements.
Mr G, the father’s uncle
Mr G is the father’s uncle. He lives in Suburb S and is retired, but not in receipt of a pension. He was aged 83 years at trial.
Mr G was an unreliable witness in the giving of his evidence as to the loan alleged by he and the father that was claimed to have been advanced by Mr G to the father. This is discussed in the reasons hereafter.
Ms L, Family Consultant
Ms L as a single expert witness, prepared a Child Impact Report for the parties on 1 August 2022.
Ms L was cross-examined at the trial by each of the mother and the father’s counsel and counsel for the ICL.
At the time of the Report, the children resided with the mother and spent no time nor communicated with their father. Ms L opined that:[20]
5.[X] and [Y] presented as having language and comprehension beyond expected for their ages and provided spontaneous, compelling, and emotive narratives. Their narrative suggested that their experiences of family violence, emotional and physical abuse by [their father] had a profound impact on their home life and opportunity to feel safe. They advised that their parents’ final separation provided them with increased sense of safety and wellbeing, yet they remained fearful of their father on a day to day basis.
6.[X] and [Y] attend [D School]. The children spoke of social isolation and impact on their friendships once returning to school after the [assault] incident, due to the community awareness […]. Although reporting some improvement, this initially impacted on their concentration and enjoyment at school. The children reported having limited opportunity to socialise, or to attend recreation or extra-curricular activities due to the fears for their safety. The children’s narrative advised that that due to lack of sleep and loss of appetite their physical health has deteriorated, often feeling unwell. They advised that they feel too unsafe to sleep at the family home and prefer to sleep at the home of extended family. [Y] advised that noises […] remind him of [the incident], which he finds distressing. He advised that he often has nightmares reliving the [incident] with subsequent feelings of nausea and worry. The children’s accounts were consistent with indicators of heightened stress associated with experiences of trauma.
7.[X] and [Y] advised unwillingness to communicate with [their father] or extended paternal family in any way. [X] and [Y] refused to refer to [Mr Duhamel] as their father, referring to him [by his first name].
[20] Child Impact Report dated 1 August 2022, paragraphs 5-7.
Both children’s narratives suggested to Ms L that the father regularly carried a handgun and knife, which contributed to the children’s fear of the father. Ms L commented further on the children’s narratives, relevantly, that:[21]
9.At interview, the children’s narratives were consistent with [Ms Hadzic’s] accounts that [Mr Duhamel] perpetrated physical, financial and emotional family violence for many years, inclusive of coercive control. [Ms Hadzic] alleged that [Mr Duhamel] has breached the intervention order many times including threats to kill and stalking behaviours. The children alleged that [Mr Duhamel] regularly physically assaulted and emotionally abused them. Their narrative suggested that they lived in perpetual fear for many years and relied on [Ms Hadzic’s] protective behaviours to keep them safe. They recall being slapped, pushed and “beaten” by [Mr Duhamel], with daily psychological abuse. For example, [X] recalled [Mr Duhamel] forcibly making him eat Nutella until he vomited despite to his allergy to nuts. This was a significant memory for him and caused him emotional distress whilst recalling the incident.
…
11…Despite having no control over [the father’s] decisions on that day, the children’s narratives suggested that they hold feelings of guilt and sense of responsibility for the incident and injury to [Mr K]. For example, [Y] advised that he “wished he could have stopped it”. They both report replaying the incident in their minds and that in the hours afterwards, they held the view that their father would come and kill them and their mother. Both children cried as they recalled the incident and explained the gravity of their concern for their mother’s safety. [X] and [Y] are likely to have longstanding impacts to their emotional wellbeing.
[21] Child Impact Report dated 1 August 2022, paragraphs 9,11.
In relation to developmental considerations, Ms L commented that both children:[22]
14.[The children], are emotionally vulnerable due to their past experiences of family violence, abuse and trauma. [X] and [Y] are navigating the beginnings of adolescence, which is a challenging developmental stage with regard to emotional and social development. Their current fear and distress has potential to have longstanding impacts on their opportunity for emotional wellbeing, and may have secondary implications to their social development and educational progress. Due to their experiences, they are at increased risk of mental health challenges during adolescence and in their adult lives. [X] and [Y’s] overall progress is likely to be further weakened by navigating a relationship with their father or paternal family at this time.
15.Based on their narrative and experiences, the Court should place weight to [X] and [Y’s] expressed views and prioritise their physical and emotional safety. [X] and [Y] require the predictability of interactions with supportive and safe adults who promote their opportunity to heal from their past experiences.
[22] Child Impact Report dated 1 August 2022, paragraphs 14-15.
Ms L further observed that:[23]
17. Of strength is that despite their traumatic experiences, [X] and [Y] presented on the day of interview as resilient and engaging children. Their narratives suggest that [Ms Hadzic], [Mr K] and extended maternal family have provided protective responses to the children which has likely sought to mitigate the impacts of their traumatic experiences. The children rely on [Ms Hadzic] for a sense of safety and emotional security. It is pertinent that decisions support [Mr J’s] role as a primary carer. It would be reasonable given the impacts on her own emotional wellbeing that [Ms Hadzic] may experience periods of reduced parenting capacity. It is important that [Ms Hadzic], [X] and [Y] have a professional support network in place to provide assistance as required. There is limited scope for safe and respectful parenting communication and needing to communicate with [Mr H], or the paternal family, would likely cause [Ms Hadzic] further adversity.
[23] Child Impact Report dated 1 August 2022, paragraph 17.
Ms L made recommendations for the mother to retain sole parental responsibility for the children.
At trial, it was Ms L’s evidence that regardless of whether the father was convicted of the criminal charges he faced, the father engaged in violence in front of the children, which caused considerable fear and trauma to the children.
I accept and rely upon the insightful and expert opinion of Ms L.
Further Evidence
The below evidence is taken from the sentencing decision of the Supreme Court.
The father pleaded not guilty at his criminal trial to the charge relating to Mr K. The father had earlier pleaded guilty to another charge.
The judge described the circumstances of the father’s offending as follows:[24]
[24] Supreme Court of Victoria Ruling at [4].
[Sentencing reasons omitted to comply with s 121]
The judge described the father as feeling “absolutely no remorse”,[25] with his motive for his crime being “extreme anger at [Mr K] for his sin, as you saw it, of supplanting you in the life of your family, especially your children.”[26] The judge noted the father intended to “send a clear message to [the mother] that you maintained some control over her in spite of the separation, and she was not free to live as she chose.”[27]
[25] Supreme Court of Victoria Ruling at [7].
[26] Supreme Court of Victoria Ruling at [6].
[27] Supreme Court of Victoria Ruling at [6].
The judge recited the father’s “short but significant criminal history”.[28]. These offences were mainly committed against the mother, with one charge of making a threat to kill and assaulting the mother concerned holding a knife to the mother’s throat and threatening to kill her. The other charge of making a threat to kill was made to the mother during a phone call in mid-2021. The charge of using a carriage service to harass however concerned numerous phone calls and text messages the father made to Mr K in 2021.The father received a sentence in late 2021 for an aggregate term of imprisonment in respect of the above charges.
[28] Supreme Court of Victoria Ruling at [29].
It was stated by the judge that the father’s crime was “an exceedingly serious instance of the crime […] which…would sit comfortably within the upper end of the range of seriousness.”[29] He found the father poses a “real and substantial threat to the safety of the community”.[30] The judge noted the father’s absence of remorse was of real concern and his guilty plea to his charge was due to the father having “nowhere to turn … and your plea of guilty was no more than an acknowledgment of that fact.”[31]
[29] Supreme Court of Victoria Ruling at [36].
[30] Supreme Court of Victoria Ruling at [67].
[31] Supreme Court of Victoria Ruling at [54].
In his sentencing decision, the judge referred to the horrific impact upon the mother and child Y, of the father’s violent criminal behaviour, as follows:[32]
[32] Supreme Court of Victoria Ruling at [48]-[49].
[Sentencing reasons omitted to comply with s 121]
The father was sentenced to multiple years of imprisonment with a period during which he would not be eligible to be released on parole.
Date of parties’ separation
It is necessary for the Court to make a finding on the parties’ separation date where it is the father’s position the parties separated in 2011 and it is the mother’s position the parties separated in 2021. The necessity of a finding here arises from the father’s submission that the property available for division between the parties was purchased solely by him, with no financial or non-financial contribution by the mother.
It was the father’s evidence at trial that the parties separated in or around February or March 2011, when the mother, left the then rented matrimonial home and (together with X) took up residence in further rental accommodation in Suburb M. The father conceded that he contemporaneously also left the rented matrimonial home of the parties, but claimed he moved into a house in Suburb T owned by his uncle, Mr U, and remained there until 2014. The father claimed that during this time, being a period of approximately three years, he would spend time with the children by informal agreement between he and the mother, including weekend time.
The mother claimed the account as given by the father was untruthful, and that the parties and their children both resided at the Suburb M property throughout these years which immediately preceded the purchase of the parties first home. Indeed, the younger child Y was born during this period, and both parties considered that a very happy event. Both were involved in his care.
The father, in his first affidavit filed in this proceeding in September 2021, gave inconsistent evidence, being that he and the mother separated in 2014, but remained living under the one roof.

On the evidence before the Court, in 2011 the father persuaded the mother that she should obtain Centrelink benefits on the basis that she was a sole supporting parent of the parties’ children, with her separated husband living elsewhere. The father’s uncle gave permission for the father to use his address in Suburb T as his nominated residential accommodation for the purposes of deceiving Centrelink. The parties continued to live together with their children in the rental accommodation in Suburb M until the settlement of the purchase of their first home in 2014. Thereafter, they purchased two subsequent properties in which they consecutively lived as a family for some time, with both parties being involved in the renovations to their properties (where they were undertaken); they travelled to Country N and Country V for a holiday in 2016 with their children; they provided accommodation and support for Mr H following his arrival in Australia; they ran a joint enterprise; and they celebrated special events with each other and their children, which included the father purchasing jewellery for the mother, over the years, until 2021.
The mother’s evidence that the parties separated in or around 13 February 2021 is overwhelmingly supported by the evidence, which included photographic evidence of the parties’ celebrating events in their lives, together.
I note also that it was Mr J’s evidence that he observed the parties in a relationship until their 2021 separation, and that he often went out for dinner with the parties and the children and attended family functions with them. In 2017, the parties travelled together with him to Sydney to celebrate his birthday. It was Mr G’s evidence at trial that he understood the parties to have separated in 2021.
I find the parties separated in February 2021.
PARENTING
Legal Principles
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.[33]
[33] Goode & Goode (2006) FLC 93-286.
The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence.[34]
[34] Family Law Act 1975 (Cth) s 61DA(1)-(2).
The presumption may also be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child.[35]
[35] Family Law Act 1975 (Cth) s 61DA(4).
When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents.[36]
[36] Family Law Act 1975 (Cth) ss 65DAA(1)-(2); Goode & Goode (2006) FLC 93-286.
The Act provides guidance as to the meaning of “substantial and significant time”,[37] and as to the meaning of “reasonable practicability”.[38]
[37] Family Law Act 1975 (Cth) ss 65DAA(3)-(4).
[38] Family Law Act 1975 (Cth) ss 65DAA(5); Goode & Goode (2006) FLC 93-286.
The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends and holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In the event the Court does not apply the presumption of equal shared parental responsibility it is open in its discretion to consider equal time (or significant and substantial time or any other appropriate arrangement) as being in the children’s best interests.
Pursuant to s 60CA of the Act:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
To determine the best interests of the child, “the Court must consider the matters set out in subsections (2) and (3)” of s 60CC of the Act.[39] Sections 60CC(2) and 60CC(2A) of the Act set out the primary considerations as follows:
[39] Family Law Act 1975 (Cth) ss 60CC(1).
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
In Mazorski & Albright (2007) 37 Fam LR 518 at [26], Brown J considered ordinary definitions of the term “meaningful relationship”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”… a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92 the Full Court at 83,476 accepted the above definition as the appropriate interpretation of ‘meaningful relationship’.
Section 60CC(2)(a) of the Act as set out above requires the Court to weigh up the benefit to the child of having a relationship with both parents. In doing so, the Court must give primary consideration as to whether there is an unacceptable risk of physical and/or psychological harm to the child in spending time with either parent.[40] Upon establishing the existence of an unacceptable risk, the Court must then determine whether that risk “is able to be sufficiently managed or ameliorated”.[41]
[40] M & M (1988) 166 CLR 69 at [25].
[41] Blinko & Blinko [2015] FamCAFC 146 at [83] referring to Russell & Close [1993] FamCA 62.
In Isles & Nelissen (2022) 65 Fam LR 288 the Full Court of the Federal Circuit and Family Court (Division 1) Appellate Jurisdiction relevantly observed:
50In Fitzwater, Austin J rejected the proposition that a finding of unacceptable risk needs to be made according to the civil standard of proof, saying:
…
134.It must be borne in mind that proceedings in respect of children under Part VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at 76; ZP v PS (1994) 181 CLR 639 at 647). The paramount consideration in Part VII proceedings is the child’s best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests, which gives the proceedings a different character (CDJ v VAJ at 188-189). The resultant orders represent the court’s discretionary judgment about how the child’s interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at 231).
135.The conclusion reached by a court in Part VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 (“Malec”)).
136.In Malec, Brennan and Dawson JJ said (at 639-640):
…facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities…the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history…the court must form an estimate of the likelihood that the possibility will occur…
…
…To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation…
and Deane, Gaudron and McHugh JJ said (at 643):
…The future may be predicted and the hypothetical may be conjectured… Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring…
137.The High Court was there referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, but the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction (see Oswald & Karrington (2016) FLC 93-726 at [60]; Bant & Clayton (2015) 53 Fam LR 621 at [99], [107], [171], [172]). Such application of principle is consistent with M v M.
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
…
142.As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
51We agree with and adopt that commentary as being a correct statement of the law.
The Court must also consider the additional considerations under s 60CC(3) of the Act.
In Mulvany & Lane (2009) FLC 93-404 it was observed by Finn, May and Thackray JJ that:
76. It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis added)
Whilst the additional considerations as set out in s 60CC(3) of the Act must be considered by the Court, specific reference to each and every of those considerations is unnecessary in these reasons.[42]
[42] Mulvany & Lane (2009) FLC 93-404 at [77].
Primary Considerations
Section 60CC(2)(a) the benefit to the children of having a meaningful relationship with both parents
I am not satisfied there is a likelihood of the children having a meaningful relationship with the father and nor do I find there is any benefit to them in having such relationship. Whilst the father deposed to have a close and loving relationship with the children “throughout their lives” the reality for the children is that their relationship with the father is one of fear.[43] The father is currently incarcerated, serving a sentence with a non-parole period.
[43] Father’s trial affidavit filed 22 June 2023, paragraph 9.
The children have clearly a meaningful relationship with the mother. There is enormous benefit to them in that relationship and particularly in the context of its complete absence in their relationship with the father, as created by the father.
Ms L assessed the children are unlikely to benefit from any communication with their father at this time.
The children live primarily with the mother and the maternal family. Ms L assessed the children to rely upon the mother for a sense of safety and emotional security. The children have a close and loving relationship with the mother.
Section 60CC(2)(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
It was the evidence of Ms L that the father poses an unacceptable risk to the children’s safety and wellbeing. If the father is released from prison, Ms L held serious concerns for the safety of the mother and the children.
It is clear on the evidence that there is a considerable need to protect the children from both physical and psychological harm from being subjected to the father’s family violence toward them and the mother.
The father has exposed the children to numerous incidents of family violence. In early 2022, Child Protection reviewed the family violence portal, and noted the father was listed as the respondent in multiple family violence incidents. Child Protection found the father to be a significant family violence perpetrator and considered there was a risk of an escalation in the father’s offending behaviours placing both the children and the mother at risk of harm.
Child Protection assessed, due to the children’s ongoing exposure to the serious and significant family violence toward their mother, that they were at risk of increased vulnerability for their own relationships with family and peers to be negatively impacted.
The father’s attempted assault of Mr K in the presence of the child Y and his mother has caused Y complex trauma, affecting his ability to sleep, eat and function on a day-to-day basis. The child remains fearful of the father. The child X, attended upon the scene after Mr K’s assault, and witnessed Mr K in a distressed state. The child X has expressed his fear of the father and experienced trauma following this incident. The father has expressed no remorse for his actions and has absolutely no insight into the effects of his actions upon the children and the mother.
During the Child Impact Report interviews, the children spoke of isolation and impact on their friendships once returning to school after the incident, due to the community awareness. Although reporting some improvement, this initially impacted on their concentration and enjoyment at school. The children reported having limited opportunity to socialise or attend recreation or extracurricular activities due to the fears for their safety. The father has failed to take accountability for any of his actions and remains largely unaware of the trauma he has inflicted upon the mother and the children.
As referred to above in these reasons, the children advised Ms L that they felt too unsafe to sleep at the family home and prefer to sleep at the home of extended family. Y advised that noises remind him of what happened which he finds distressing. He advised that he often has nightmares reliving the incident with subsequent feelings of nausea and worry. The children’s accounts were consistent with indicators of heightened stress associated with experiences of trauma. The children, as noted by the DFFH, do not want the father to be referred to as their father.
It was the mother’s position the father was physically and emotionally abusive toward the children both during the cohabitation and after separation and as such, the father presents an unacceptable risk to the children.
The evidence is overwhelmingly that the father poses an unacceptable risk of harm toward the children and there is no possibility of such harm being ameliorated. The exposure to that risk of harm extends to any time spent between the children and the father and any communication had with him or members of his family.
There is no evidence that the mother poses a risk of harm to the children, and she has been assessed by the DFFH as acting protectively of them.
Additional Considerations
Section 60CC(3)(a) any views expressed by the children
It was the evidence of Ms L the children were fearful of the father, did not want to have any communication with him and demonstrated an unwillingness to communicate with the father or extended paternal family in any way. Ms L opined given the children’s ages and their serious concerns, that such views should be given weight by the Court.
This was confirmed by the ICL whom met the children on 27 June 2023. The children’s views were unequivocal in that neither of them wished to spend any time nor communicate in any way with the father or the paternal family. The ICL expressed such views were conveyed in the strongest of terms.
On multiple occasions the children have clearly articulated their extreme fear of the father and what he is capable of, including their belief he will kill them and the mother. They have spoken of their experience of the father yelling at them as younger children, of the father denigrating then and calling them names; and with the child X being made to eat food he is allergic to as a “test” and punishment.[44]
[44] Section 67Z Response dated 12 July 2022.
The children have spoken of their deep antipathy towards the father because of him assaulting Mr K.
The evidence before the Court is the children are steadfast in their views that they do not seek to communicate or spend any time with the father or the paternal family, having regard to their lived experience of family violence at the hands of the father.

Neither the father nor Mr G gave any evidence as to the dates on which various alleged advances were said to be paid to the father from Mr G, nor the amounts of such payments at the relevant time.
Mr G provided no corroborating documentary evidence as to this advance, he claiming it was in cash. Mr G provided no documentary evidence as to his ability to advance such sum in circumstances where he had children of his own and had retired from his occupation at the age of 60. No security was advanced for the loan, there was no interest charged, nor repayment date in respect of the borrowings. It was Mr G’s evidence as to repayment by the father that “when he got the money, he got to pay me back”.[56]
[56] Transcript 4 July 2023, p.213 lines 35-36.
The mother categorically disputed the existence of the alleged loan between the father and Mr G, and it was her evidence that she and the father had funded the entirety of the renovations for the B Street property. It was the mother’s position that income from the parties brokerage business was used, primarily, to carry out and finish the renovations at the B Street property. Neither party provided any evidence as to the cost of these renovations or when funds were applied and in what sum. There were no bank or taxation documents to shed any light on the works carried out.
The parties had completed the renovations by late 2020 and taken up residence in the property. In mid-2021, being at a time following the parties separation, and following the mother obtaining an IVO against the father, the father and Mr G entered into the alleged loan agreement which defined Mr G as the lender and the father as the borrower. It provided that:
WHEREAS:-
A. The Lender has advanced to the Borrower various loans.
B. The Lender has lent to the Borrower the sum of ONE HUNDRED AND SIXTY FIVE THOUSAND DOLLARS ($165,000.00) over a number of years (“the Sum”).
C. The Lender and Borrower have agreed to enter into this Loan Agreement to acknowledge the advance of the Loan of the Sum.
D. The Borrower has agreed to charge in favour of the Lender the properties known as [E Street], [Suburb C] Victoria […] more particularly described in Certificate of Title Volume […] Folio […] and […] [B Street], [Suburb C Victoria] […] more particularly described in Certificate of Title Volume […] Folio […] (“the Properties”).
NOW THE PARTIES DO HEREBY AGREE AS FOLLOWS:-
1. The Borrower hereby acknowledges that he is currently indebted to the Lender for the total advance of the Sum.
2. In consideration of the Lender advancing the Sum to the Borrower, the Borrower pursuant to this Loan Agreement, hereby charges in favour of the Lender, all of the Borrower's estate interest, legal and equitable interest in all the Properties with payment of the Sum thereon and any costs and expenses of exercising or enforcing any charge or security over the Properties and agrees to the Lender lodging a caveat over the Properties to secure the sum advanced.
3. The Borrower irrevocably appoints the Lender and his successors and assign attorney of the Borrower with power, at the expense of the Borrower, at any time and from time to time.
Mr G deposed the funds loaned to the father were sourced from cash proceeds of the sale of a motor vehicle, or his savings. Mr G claimed he would regularly make cash payments between $5,000 and $10,000 to the father for his purchase of materials and for payment of subcontractors to complete the renovations. The father and Mr G conceded at trial there was no documentary evidence going to the advance of the loan in the sense of any tracing of it and nor was there any evidence as to dates on which any advances were made in any sum.
Mr G deposed that he had not been repaid the money he was owed by the father (despite no time limit on the repayment) and as a result lodged a caveat on the B Street property in mid‑2021. Later, he removed the caveat at the father’s request to enable the settlement of the sale of the property. Mr G claimed he was to be repaid from the net proceeds of sale, which are currently held on trust for the parties by the father’s solicitors.
Mr G also lodged a caveat against the E Street property in mid-2021 which remained in place at the conclusion of the trial.
Mr G anticipated the repayment of his loan monies to support his retirement and expressed concern he would be placed in financial hardship should he not receive the funds.
At trial, Mr G gave evidence that he would not initiate court proceedings against the father to seek repayment of the alleged loan monies. Mr G was afforded procedural fairness in respect of the mother’s claim but did not seek to join the proceeding, nor did either of the parties seek for Mr G to be joined. Rather, Mr G swore an affidavit in support of the father and it was his evidence that “I propose that I be repaid from the net proceeds of sale of the [B Street] property which are held on trust for the parties, or from any other property that is owned by [Mr Duhamel] and which is available to be sold or transferred to me in satisfaction of that debt”.[57]
[57] Affidavit of Mr G filed 8 June 2023, paragraph 8.
I find there was not a valid, enforceable loan between Mr G and the father and do not include the alleged loan between Mr G and the father in the balance sheet.
Loan(s) from Mr H to the father
It was the father’s evidence, and that of Mr H, that the father owes Mr H a total sum of $170,437 comprised of $100,000 pursuant to the loan agreement dated 20 March 2020; $18,768.99 of mortgage repayments on the B Street property; and $51,579 of assorted property and personal expenses as paid by Mr H.
It was the father and Mr H’s evidence that between late 2016 and mid-2019, Mr H gave the father money totalling approximately $100,000 which the father applied towards the mortgage secured against, and the expenses of, the O Street property. Following the father receiving the alleged monies, there was an alleged agreement between the father and his brother whereby the father would repay Mr H the sum of $100,000 from the net proceeds of sale once the O Street property was sold.
According to the father and Mr H, the O Street property sold in mid-2019 and the father received net proceeds of sale of $280,000. The father’s alleged loan from his brother was not paid from the net proceeds, as initially agreed.
After the purchase of the B Street property, it was alleged, that Mr H told the father he would prefer to purchase the E Street property (rather than have the loan repaid), being a property, the father already owned. He proposed to purchase the property from the father for $500,000 to which the father agreed. The father and Mr H then allegedly agreed that once Mr H was granted permanent residency in Australia, he would obtain a loan for $400,000 and the father would grant him $100,000 in equity in the E Street property. This alleged interest of Mr H in the E Street property has not been documented. The alleged loan was advanced as cash from Mr H’s working illegally. Mr H did not keep any record of how much or when he gave cash to the father.
In early 2020, and in pursuit of this complete charade as I find it, the father and Mr H entered into a loan agreement which defined Mr H as the lender and the father as the borrower and provided that:
WHEREAS:-
A. The Lender has advanced to the Borrower the Loan.
B.The Lender has lent to the Borrower the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.000) (“the Sum”) [in early] 2020 (“the Loan”).
C.The Lender and Borrower have agreed to enter into this Loan Agreement to acknowledge the advance of the Loan of the Sum.
D.The Borrow has agreed to charge in favour of the Lender the property known as [E Street], [Suburb C] Victoria […] more particularly described in Certificate of Title Volume […] Folio […] (“the Property”).
NOW THE PARTIES DO HEREBY AGREE AS FOLLOWS:-
1.The Borrower hereby acknowledges that he is currently indebted to the Lender for the total advance of the Sum.
2.In consideration of the Lender advancing the Sum to the Borrower, the Borrower pursuant to this Loan Agreement, hereby charges in favour of the Lender, all of the Borrower's estate interest, legal and equitable interest in the Property with payment of the Sum thereon and any costs and expenses of exercising or enforcing any charge or security over the Property and agrees to the Lender lodging a caveat over the Property to secure the sum advanced.
3.The Borrower irrevocably appoints the Lender and his successors and assigns the attorney of the Borrower with power, at the expense of the Borrower, at any time and from time to time.
At trial, Mr H conceded that the loan agreement did not provide for the father to pay him any interest and that there was no date on which the loan in the sum of $100,000 had to be repaid by the father. His further evidence was that he would not take the father to court and make any application requiring the father to repay the monies allegedly owed.
Between mid-2020 to late 2021, Mr H made mortgage repayments on the B Street property where the mother was living with the children, and in circumstances where the father was incarcerated or not in employment. He paid a total of $18,768.99 as conceded by the mother. This was a contribution made by him on behalf of the father in circumstances where he had free occupation of the parties E Street property.
Between early 2020 and late 2021, Mr H further deposed to making additional transfers to the father’s Z Bank account totalling an amount of $51,579. These payments were claimed by Mr H to be made to assist the father with mortgage repayments, rates, maintenance, and other expenses in relation to both the B Street and E Street properties. These monies were also claimed as a loan. The father at this time was not working during due to the COVID-19 pandemic. He was however, receiving undeclared income from the brokerage business and sharing in the mother’s receipt of Centrelink benefits. For much of 2021, the father was on remand for family violence offences.
The mother denied the advance of these monies to the parties by Mr H. It was her evidence that the parties supported and/or assisted the father’s brother by the provision of free accommodation in relation to which he was required to make no payments by way of rent or outgoings.
Any monies advanced in this manner by Mr H, were advanced for the purpose of hiding his own receipt of income to provide to the father for transfer to Country N; to provide for subsequent and at times almost immediate withdrawal of such funds by him and/or the father; and for the father’s discretionary expenditure. Some of these monies were provided to the father post separation of the parties.
It is noted neither party sought to join Mr H to the proceeding, nor did Mr H seek to be joined. He was afforded procedural fairness in his knowledge of the mother’s claim. Mr H gave evidence however that:[58]
I seek the funds that I have loaned [Mr Duhamel] be repaid to me in full from the proceeds of sale of the [B Street] property, or from any other property that is owned by [Mr Duhamel] and which is available to be sold or transferred to me in satisfaction of that debt.
[58] Affidavit of Mr H filed 8 June 2023, paragraph 7.
As outlined earlier in these reasons, I found Mr H to be an unreliable witness and place limited weight on his evidence.
I am not satisfied that a valid, enforceable loan exists between Mr H and the father or that Mr H has an interest in any real property of the father or the parties.
I do not include the alleged loan between Mr H and the father in the balance sheet.
I note that neither of the father’s brother or uncle gave, as submitted by counsel for the father, “cogent evidence” about how they acquired the funds advanced, [59] or how they advanced them to the father. Their evidence as to the alleged loans was not supported by any probative evidence and indeed their actions were directed to denying the mother her rightful entitlements. Any consequent fabricated charges in respect of real property, as I find them to be, are a matter solely for the father and the third parties, namely the father’s brother and uncle.
Determined Asset Pool
[59] Father’s written submissions filed 7 August 2023, paragraph 24.

Assets

Ownership

Value

E Street, Suburb C

Father

$575,000

Proceeds of the sale at B Street, Suburb C held on trust by Pearsons (the father’s solicitors)

Joint

$168,540

Liabilities

Ownership

Value

D School fees

Joint

$24,000

Superannuation

Ownership

Value

Superannuation Fund 1

Father

$38,000

Superannuation Fund 1

Mother

Nominal

Total net assets including superannuation and liabilities

$757,540

Comments on the asset pool

A valuation of the E Street property dated mid-2023 was tendered into evidence at trial. The valuation provided that the market value of the property was $575,000. That valuation, as obtained pursuant to Court order, has been adopted.
The E Street property is currently encumbered by five caveats, registered by the mother, Mr G, Mr H, the father’s solicitors who represent him in this proceeding, and Victoria Legal Aid.
The parties have each received the sum of $90,000 as a part property settlement. Both parties agree that such monies have been expended by each of them, largely for the payment of legal costs. The mother sought these monies effectively be added back into the asset pool and divided between the parties in her proposed overall percentage apportionment of eighty seven percent to the mother and thirteen percent to the father. I have not adopted that course of adding such monies notionally back to the asset pool as such monies are depleted and at the time the parties appeared content to allow for an equal distribution of such funds without revisiting this matter. I have instead determined on the apportionment I have, and in the exercise of my discretion concluded that overall justice and equity between the parties is achieved in this manner. Accordingly, those monies have not been included in the asset pool available for division between the parties now.
Each of the parties retained motor vehicles as described elsewhere in these reasons. Those vehicles did not exist at trial and are not included in the asset pool.
The parties each have personal jewellery and personal effects which are not included in the asset pool. Neither party sought to have same valued and included in the asset pool and those items remain, as personal property of each of them.
The father sought to recover chattels and other items of property in the B Street property, which he claimed had a value more than $30,000 based on their replacement value. He provided no evidence in support of that claim that could be relied upon. The father claimed the mother had retained these items for her sole use and benefit, and he sought the items be considered as a part property distribution received by her.
In respect of the chattels and/or personal possessions as sought by the father to be returned to him and/or having a value for which he needed compensation, the evidence of the mother was that whilst she had some very limited items of property (having nowhere to store household contents), other items of property had been offered to the father around mid-2023 following the settlement of the sale of the B Street property. The mother suggested that his personal possessions be collected from Suburb P Police Station or that he arrange for a third party removalist company to remove such items from the property. The mother repeated her request that the father do so on multiple occasions and no response was provided from the father.
It was the mother and Mr J’s evidence that following the lack of response from the father or any other person on his behalf that such items were made available for public collection on the street and/or disposed of otherwise. I accept this evidence.
Contributions
It has been determined that, in undertaking the task of considering the totality of the parties’ contributions in a holistic manner, it is inappropriate for a trial judge to adopt an ‘accounting’ or ‘scoring’ approach to each separate contribution. As explained by the Full Court in Blandford & Esmore [2022] FedCFamC1A 67 at [14], adopting such an approach is flawed because it “would not only require detailed actuarial calculations with respect to financial contributions (which would rarely be possible on the evidence generally available in property settlement cases), but it would still leave the significant problem of how to convert the qualitative factors in s 90SM(4)(b) [s 79(4)(b)] and s 90SM(4)(c) [s 79(4)(c)] of the [Act]”.
Similarly, it has been determined that, in circumstances where consideration is being given to whether the s 79(4) of the Act contributions made by a party have been made significantly more arduous as a result of the other party’s conduct, having regard to the principles set out in Kennon & Kennon (1997) FLC 92-757 (“Kennon”), it is again necessary to make an holistic assessment of those contributions as part of the totality of the myriads of contributions made by each party. As explained by the Full Court in Benson & Drury (2020) FLC 93-998 at [35]:
… The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent. All contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder.
When considering the parties competing contributions, it has been acknowledged that the exercise of the broad discretion bestowed upon the Court pursuant to s 79 of the Act “‘inevitably involves value judgments and matters of impression’, and accordingly it cannot be treated as ‘a mathematical exercise’”.[60] It is often stated that there is an inevitable “leap” from the evaluation of the parties’ contributions to declaring the “quantitative reflection of such an evaluation”.[61]
[60] Petruski v Balewa (2013) 49 Fam LR 116 at [49], citing Lovine & Connor (2012) FLC 93-515 at [40]–[41].
[61] Coleman J in Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234], cited with approval in Roverati & Roverati (2021) FLC 94-027 at [38].
Initial contributions
It is agreed neither party had any significant assets, liabilities, or superannuation at the commencement of the relationship. I find their contributions were equal.
Contributions during the relationship
The mother deposed the father discouraged her from pursuing employment outside the home after marriage. She claimed the father’s preference was for her to stay home and generate income through business ventures that required minimal assistance from others. However, the mother did work outside the home between 2008 and 2010, where she worked in an office and in hospitality.
The mother was primarily engaged in maintaining the household and providing primary care to the children. Whilst engaging in these roles, the mother also began selling wares online and generated profit from doing so. The mother described the brokerage business as a joint venture in which both she and the father participated. The parties purchased their Motor Vehicle 2 with some of these profits. They acquired and/or renovated their properties with some of these profits. All these profits were applied toward the benefit of the family. As were the mother’s Centrelink benefits.
The father was primarily engaged in employment outside the home and worked in industry. He attempted to set up another business which was unsuccessful and had some periods of unemployment. I accept that he applied his income to the benefit of the family. It is also highly probable that he sent some of his income to Country N to make provision for his parents and extended family in Country N, but no finding can be made on the evidence as to the quantum of any such payments, save I do not find them to be material to any alteration of property interests of the parties. Whilst the mother alleged that during the parties’ relationship, the father sent significant sums of money to his family in Country N, funds which were generated from the brokering enterprise, and that such money was used by the father’s family to purchase land and a house in Country N (a claim denied by the father), the mother was unable to provide any documentation or probative evidence that supported her claims. The mother’s evidence was speculative and hearsay. Her claim that the father sent approximately $2 million to his family in Country N was fanciful on the evidence before the Court.

The parties acquired a number of real properties during the course of their marriage to which both contributed in equal measure regardless of which party was the registered owner of such property. Additionally, both parties contributed to the brokerage business they operated successfully over many years.
As against the above contributions, which ordinarily would be equal contributions, was the difficulties presented to the mother in the performance of her contributions by the impact of the father’s family violence as perpetrated upon the children and the mother, and as referred to in the evidence of the mother, and of the children when speaking with Ms L.
The mother’s contributions were made more onerous.
Contributions post separation
Both parties received a part property settlement payment of $50,000 pursuant to Orders made by the Court on 18 August 2022, and by agreement between the parties. On 23 June 2023, the parties agreed to a further $40,000 advance to each of them by way of part property settlement. These funds have been expended by the parties, in their majority, on legal fees, although the mother has also applied these funds in the support of the parties’ children. I am mindful that the monies so distributed were done so equally and it is a matter I take into account.
The mother has been required to solely meet the expenses of the children because of the father’s periods of incarceration which continues. She has been assisted in that regard through significant financial support as provided by her family, in particular her brother.
Post separation, the mother received the sale proceeds of two of the parties motor vehicles, being Motor Vehicle 3 and Motor Vehicle 4. It was the mother’s evidence that she received a total sum of $43,500 proceeds of sale as set out in her Financial Statement sworn on 28 June 2023, but this was at odds with her oral evidence at trial wherein she claimed to have received a lesser sum, namely approximately $31,000. Subsequently, in her oral evidence, the mother could not precisely recall the sums received by her but conceded the amount could have been the original $43,500. With those monies the mother purchased a substitute motor vehicle, namely Motor Vehicle 5 which she sold shortly thereafter and received the sum of approximately $36,000. The mother applied these monies to the payment of her legal costs and the support of the children. The father has also been the beneficiary of a car sale as I find it, with the parties’ Motor Vehicle 2disappearing from the mother’s nature strip in mid-2021. The father’s cousin removed the vehicle upon instruction from the father. The father claimed that the vehicle was a company vehicle (of his own company), which was required to be sold by him to pay debt. He provided no corroborative evidence, and his evidence is not accepted by me. The monies he may have received/did receive if he elected to sell the vehicle, instead of leaving it in the possession of a family member, were not disclosed by him.
The mother is in dire need of funds to solely support the parties’ children and is limited in her ability to engage in employment at the present time due to the nature of the family violence inflicted upon her and the children by the father during the parties cohabitation, but as significantly escalated following the parties separation. It has caused her to be unable to function, and unable to parent optimally for long periods of time. It has been the mother’s sole responsibility to provide for all the physical, intellectual and emotional needs of the children. She has done so.
The father submitted that the mother failed to comply with consent orders made that she make payment of the mortgage secured against the B Street property to which he could make no contribution (by virtue of his incarceration). That Order was made on the 1 February 2022 and was in the following terms:
1.That the Wife have sole use, rights and occupancy of the property situate at [B Street], [Suburb C] and be responsible for all mortgage payments ([…] Mortgage ID […]), rates and outgoings on or before they fall due.
It was the mother’s evidence that she did not consent to meet the mortgage repayments for the B Street property and took issue with her previous solicitor’s conduct indicating she consented to such an order. It is clear on the evidence that the mother had no capacity to service a mortgage that was at the time in the sum of approximately $,2917 a month. As she said in her evidence, she did not have “a sufficient and stable income”.[62]
[62] Transcript 6 July 2023, p.369 line 20.
The father’s brother’s contribution of $18,768 towards the mortgage of the B Street property post separation is a contribution of the father but lessened somewhat by Mr H’s occupation of the E Street property.
The father’s contributions in any sphere post separation ceased in circumstances where he was incarcerated in mid-2022 and onwards, and was earlier incarcerated for much of 2021.
Conclusion as to contributions
The contributions of the mother during the cohabitation and more significantly post separation have been far more extensive and onerous than those of the father because of the father’s family violence as directed to her and the children.
Above I have set out the factual basis of the conduct of the father towards the mother, and the effect that it had on her contributions for my concluding that the father engaged in controlling and violent behaviour towards the mother, that made her contributions significantly more arduous in terms of the principles as set out in Kennon, and that a contribution based entitlement in the applicant’s favour was required as a result.
The mother identified a nexus between the conduct of the father and its impact on her ability to make the contributions which she did, or to make those contributions significantly more arduous than they would otherwise have been. No percentage need be specified by the Court in this regard. The Full Court of the Family Court of Australia in Maine & Maine (2016) 56 Fam LR 500 at [49] made clear that direct evidence of the impact of violent conduct on the contributions of the other party is not necessary where there is ‘an inescapable inference that the wife’s contributions – in particular her s 79(4)(c) of the Act contributions at the very least – were made “more onerous”’.
I place significant weight upon the following:
·The father's physical violence towards the mother and the children.
·The father's verbal, emotional, psychological, and financially abusive conduct.
·The father's coercive control of the mother.
·The father's previous convictions and terms of imprisonment for breaching intervention orders, assault and threatening to kill the mother.
·The father currently being incarcerated for the assault of Mr K in the presence of the child Y.
·The mother suffering from anxiety, panic attacks, nightmare and insomnia following the father's violence and abuse towards her.
·The mother remaining the children's primary carer during periods of the father's incarceration.
·The mother’s lack of receipt of any child support from the father during the periods of the father's incarceration.
·The mother’s support to the children following incidents where the father perpetrated physical violence on her which the children witnessed.
·The mother’s support to the children following incidents where the father was physically violent towards the children.
·The mother’s care for the children and their diverse extreme needs following the father's attempted assault of Mr K.
·The mother’s requirement to engage with external support agencies to provide support for the children following the assault of Mr K.
Overall, I assess the mother’s contributions as being sixty five percent and the father’s contributions as being thirty five percent.
Relevant s 75(2) of the Act matters
The mother alleged the father failed to fulfil his responsibility of providing full and frank disclosure, including disclosure of undisclosed bank accounts the father operated in the children’s names. The father’s solicitors claimed imprisonment and limited internet access as reasons for being unable to provide recent disclosure. The mother’s lawyers have attempted to subpoena the father’s financial records, however due to jurisdictional limitations, the mother was unable to subpoena documents pertaining to the father’s alleged properties in Country N.
The father also alleged the mother failed to fulfil her responsibility of providing full and frank disclosure.
The mother deposed that whilst she had previously run a brokerage business, and has no other income earning capacity, since separation she has been unable to work and earn an income because of the extreme family violence perpetrated against her and the children by the father, a claim which extraordinarily, the father refutes.
I am satisfied that the mother has no earning capacity of any significance presently. She has no income save Centrelink benefits.
The mother has significant mental health issues because of the father’s behaviours, behaviours which have led her to describe him as “a malicious monster” who has “produced a fear over my entire family”.[63] She had, in earlier years, “genuinely cared a lot for him”.[64] She is prescribed medication for anxiety and panic attacks and is under the care of a psychologist.
[63] Transcript 6 July 2023, p.386 line 37.
[64] Transcript 6 July 2023, p.387 lines 24-25.
The mother is dependent on the generosity of her brother to accommodate her and the children. She has also been reliant on the children’s school which did not seek any payments from her in respect of the children’s attendance at D School in the years 2021 and 2022. There is an outstanding debt in respect of the children’s 2023 school fees that neither party has paid. The father deposed the mother was generating a significant income from her unregistered and illegal brokerage business. The evidence at trial was that the mother has outstanding charges in relation to this business which were listed for mention in mid-2023. She may be permanently banned from selling specified goods.
The father has a significant debt to Victoria Legal Aid with respect to the criminal proceedings, an amount of $67,000. However, Victoria Legal Aid will not enforce the payment of any monies owing to it unless there are sufficient monies payable to the father on account of the property adjustment between the parties.
Each of the parties have incurred significant legal costs.
It was the father’s position he has significantly greater needs that the mother as he has significant legal fees with respect to both these and his criminal proceedings. The father also anticipated he will have significant difficulty gaining employment after he is released from prison due to his criminal history. I accept that may be the case. The father will be unemployed, unskilled, with no permanent residence and reliant upon government benefits. It is probable that he will also be reliant on the support of his family members.
Upon a consideration of the above s 75(2) of the Act matters, I propose to make a further adjustment in the mother’s favour of twenty five percent.
CONCLUSION
The Court is satisfied that in all the circumstances it is just and equitable to make final property orders in the terms in which the Court makes them this day.
The father will retain his superannuation entitlements of $38,000 to enable him to have some protected funds available to him upon his release from prison.
The parties shall each pay equally out of the monies held in trust on behalf of the parties the outstanding 2023 school fees of the children, the parties having the ability to authorise such payment from the monies held in trust and the father refusing to do so to the date of trial. It was in the children’s best interests that they have the stability and security of their continued attendance at D School and their parents were both able to ensure that attendance continued in circumstances where they had not been required by the school to pay fees for the preceding two years.
The balance remaining in the asset pool after allowing for the father to solely retain his superannuation entitlements, and the parties to equally pay the school fees is a sum of $719,540. Of this amount the mother shall receive ninety percent being $647,586 and the father shall receive ten percent being $71,954. The difference in the monies to be received by each party is $575,632. In my view, with this fairly modest asset pool and the financial obligations of the wife into the future, such adjustment is a just and equitable one between the parties. It will ensure the mother can house the children and herself and support them into adulthood whilst giving the father some funds with which to re-emerge from prison in the many years ahead.

I certify that the preceding two hundred and seventy-eight (278) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett.
Associate:
Dated: 6 March 2024

File number:	MLC 8357 of 2021
Judgment of:	HARTNETT J
Date of judgment:	6 March 2024
Catchwords:	FAMILY LAW – PARENTING – Where the children reside with the mother – Where the father committed significant family violence towards the children and the mother - Where the father was found guilty of an assault against the mother’s friend – Where the father attacked the mother’s friend in the presence of one of the parties children – Where the father wants the children to visit him in prison – Where the father was sentenced to multiple years in prison with a non-parole period– Mother to have sole parental responsibility for the children – Children spend no time with the father. FAMILY LAW – PROPERTY – Where there was a dispute as to the date of the parties separation – Where the husband alleged the entirety of the asset pool available for division was acquired post-separation – Finding as to when parties separated – Where both parties received funds from joint enterprise – Where both parties allege family members loaned them significant funds in cash – Where there are multiple caveats on a property - Finding that no valid loans existed – Where the wife’s contributions were more onerous due to husband’s family violence – Where the husband remains incarcerated – Wife to receive ninety percent of non-superannuation assets – Husband to receive ten percent of non-superannuation assets and retain his superannuation
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) Parts VII, VIII, ss 60CA, 60CC, 61C, 61DA, 65DAA, 67Z, 75, 79, 90SM, 106A
Cases cited:	Benson & Drury (2020) FLC 93-998 Bevan & Bevan (2013) FLC 93-545 Blandford & Esmore [2022] FedCFamC1A 67 Blinko & Blinko [2015] FamCAFC 146 Goode & Goode (2006) FLC 93-286 Isles & Nelissen (2022) 65 Fam LR 288 Kennon & Kennon (1997) FLC 92-757 Lovine & Connor (2012) FLC 93-515 M & M (1988) 166 CLR 69 Maine & Maine (2016) 56 Fam LR 500 Mallet v Mallet (1984) 156 CLR 605 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark [2009] FamCAFC 92 Mulvany & Lane (2009) FLC 93-404 Petruski v Balewa (2013) 49 Fam LR 116 Rigby & Olsen [2021] FedCFamC1A 46 Roverati & Roverati (2021) FLC 94-027 Russell & Close [1993] FamCA 62 Stanford v Stanford (2012) 247 CLR 108 Steinbrenner & Steinbrenner [2008] FamCAFC 193
Division:	Division 1 First Instance
Number of paragraphs:	278
Date of last submissions:	14 August 2023
Date of hearing:	3-7 July 2023 & 20 December 2023
Place:	Melbourne
Counsel for the Applicant:	Mr Hutchings
Solicitor for the Applicant:	Pearsons Lawyers Pty Ltd
Counsel for the Respondent:	Ms Swann
Solicitor for the Respondent:	Ferraro & Singh Lawyers Pty Ltd
Counsel for the Independent Children's Lawyer:	Mr Tesoriero
Solicitor for the Independent Children's Lawyer:	Trapski Family Law

MLC 8357 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR DUHAMEL Applicant
AND:	MS HADZIC Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HARTNETT J
DATE OF ORDER:	6 MARCH 2024

Assets	Ownership	Value
E Street, Suburb C	Father	$575,000
Proceeds of the sale at B Street, Suburb C held on trust by Pearsons (the father’s solicitors)	Joint	$168,540
Liabilities	Ownership	Value
D School fees	Joint	$24,000
Superannuation	Ownership	Value
Superannuation Fund 1	Father	$38,000
Superannuation Fund 1	Mother	Nominal
Total net assets including superannuation and liabilities	$757,540