Farih & Tannous - [2022] FedCFamC2F 958

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Farih & Tannous [2022] FedCFamC2F 958

File number(s): MLC 1282 of 2020

Judgment of: JUDGE BOYMAL

Date of judgment: 22 July 2022

Catchwords: FAMILY LAW – Parenting – sole parental responsibility to mother – live with mother – no time with father - Property – small asset pool – significant liabilities – adjustment of interest

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AB, 60CA, s 60CC(2A), 61DA, 65D(1), 65DAA, 75(2), 79(4)

Cases cited:
Amador & Amador [2009] FamCAFC 196

Blinko & Blinko [2015] FamCAFC 146 at [83]

Dickons & Dickons [2012] FamCAFC 154

Eastley & Eastley [2022] FedCFamC1A 101 at [26]

Fitzwater & Fitzwater (2019) FamCAFC 251

Grella & Jamieson [2017] FamCAFC 21

Hickey & Hickey & Attorney-General for the Commonwealth of Australia) (2003) FLC 93-143

Isles & Nelissen [2022] FedCFamC1A 97

McCall & Clark [2009] FamCAFC 92

Slater & Light [2013] FamCAFC 4 at [37]

Stanford & Stanford (2012) 247 CLR 108

Division: Division 2 Family Law

Number of paragraphs: 268

Date of hearing: 24 & 25 November 2021

Place: Melbourne

Counsel for the Applicant: Ms Foong

Solicitor for the Applicant: McCracken & McCracken

Counsel for the First Respondent: Mr Oldham

Solicitor for the First Respondent: Vernon Da Gama and Associates

The Second Respondent: No appearance

Counsel for the Independent Children's Lawyer: Ms Damon

Solicitor for the Independent Children's Lawyer: Westminster Lawyers Pty Ltd
ORDERS

MLC 1282 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS FARIH

Applicant

AND:

MR TANNOUS

First Respondent

MS QURESHI

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BOYMAL

DATE OF ORDER:

22 JULY 2022

THE COURT ORDERS THAT:
Parenting
1.All previous parenting orders be discharged.
2.The mother have sole parental responsibility for the children X born 2012 and Y born 2017 in relation to all major long-term issues.
3.The children live with the mother.
4.The children spend no time and have no communication with the father.
5.The Court requests that the Australian Federal Police remove the children X born 2012 (male) and Y born 2017 (male) from the Airport Watch List Order made 29 April 2020 at all points of arrival and departure in the Commonwealth of Australia.
6.The mother be permitted to provide a copy of these Orders to the children’s school, the children’s treating medical and allied health practitioners, the Passports Office of the Department of Foreign Affairs and Trade and/or any relevant government authority.
7.The mother be at liberty to provide a copy of these Orders and Reasons to any mental health practitioner the children may attend from time to time.
8.The mother be at liberty to travel with X and Y outside the Commonwealth of Australia.
9.For the purposes of section 11 of the Australian Passports Act 2005 (Cth) this order expressly permits the issue of a passport or travel documents (within the meaning of the Passports Act) for the children, X born 2012 and Y born 2017, upon application by the mother and without requiring the consent of the father for the children travelling outside the Commonwealth of Australia, or his signing passport or passport renewal applications.
10.The order for the appointment of the Independent Children’s Lawyer be discharged.
11.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out herein and these particulars are included in these orders.

Property
12.The net proceeds of sale of B Street, Suburb C held in the trust account of the mother’s solicitor be applied as to 100 percent to the mother.
13.The father indemnify the mother against all liabilities past, present or future, in relation to E Pty Ltd including any infringements issued to E Pty Ltd.
14.The father be liable for and indemnify the mother against:
(a)Victoria Police infringement number … issued to E Pty Ltd;
(b)Victoria Police infringement number … issued to E Pty Ltd; and
(c)any alleged money owed to the second respondent by the father and/or both the father and mother.

15.The mother be liable for and indemnify the father against:
(a)the Centrelink debt;
(b)the Victoria Police impoundment notice in her name;
(c)the HECS HELP debt;
(d)the D Company loan; and
(e)the NAB credit card debt account identified as …50.

16.The mother authorise the father to make such enquiries and/or claims in respect of:
(a)the property at B Street, Suburb C; and
(b)any motor vehicles removed from B Street, Suburb C;

and the father retain any payment arising out of any such claim(s).
17.Order 4 of the Order made on 17 August 2021 that the father pay the mother’s costs thrown away in the sum of $7,000 for 16 & 17 August 2021 within 30 days remain in full force and effect.
18.Unless otherwise specified in these orders and save for the purposes of enforcing the payment of any monies due under these or any subsequent orders:
(a)each parent be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) in the possession of such parent as at the date of these orders;
(b)all insurance policies remain the sole property of the owner named therein;
(c)monies standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held; and
(d)each parent be solely liable for and indemnify the other against any liability encumbering any item of property to which that parent is entitled pursuant to these orders and any liability otherwise in their respective names.

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 Farih & Tannous has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BOYMAL
INTRODUCTION

These are parenting proceedings between the applicant mother and first respondent father and property proceedings between the mother, father and the father’s mother who is the second respondent.
The father is 34 years of age. He was born in Country F and moved to Australia in 2008 after the parents married. He is now self-employed in his business known as U Company.
The mother is 34 years of age. She was born in Country G and came to Australia as a refugee in 2005. She is engaged in full time home duties and studying part-time.
The parents have two children, X aged 10 years and Y aged 4 years.
The mother and father married in Country F in early 2008 and commenced living as husband and wife in late 2008 after their wedding ceremony in Australia. They separated on or around 29 July 2019 and their divorce came into effect on 22 January 2021.
Since separation the children have lived with the mother and have spent no time and had no communication with the father. The mother and Independent Children’s Lawyer (ICL) seek no change to that care arrangement. The father seeks that the children spend time with him first on a supervised basis with the potential to move to unsupervised time.
The mother makes allegations of family violence perpetrated by the father. The father denies the allegations. The father does however concede that during the relationship he had anger management issues which were exacerbated by his drug use and that he and the mother often argued with many of the arguments becoming quite heated and verbally abusive and that some of the arguments occurred in the presence of the children.[1]
[1] Father’s affidavit filed 13 August 2021, paragraph 41.
The net asset pool is small. There are proceeds of sale of the former family home at B Street, Suburb C (the Suburb C property) in the sum of $98,009.60 held in the trust account of the solicitor for the mother (trust money) and other sundry items. The parents have significant liabilities.
The father’s mother seeks the return of money provided by her to the parents to assist the parents’ purchase of the Suburb C property. The father’s mother (and the father) assert the money is a loan by her to the parents. The mother asserts the money was provided to them by way of a gift.
In relation to parenting matters I have determined that the mother have sole parental responsibility for the children, the children live with the mother and the children spend no time and have no communication with the father.
In relation to financial matters I have determined that all of the trust money be distributed to the mother and each parent be responsible for various liabilities.
THE HEARING IN AUGUST 2021
The mother commenced these proceedings on 7 February 2020. There have been several interim hearings. The matter was listed for three days as a priority matter to commence on 16 August 2021. The mother, father and ICL were represented by Counsel. The hearing was conducted on Microsoft Teams as a consequence of the global pandemic, government restrictions and court protocols in place at that time. The father’s mother did not appear personally or by legal representation at the commencement of the hearing on 16 August 2021 (August hearing). Notwithstanding that the matter was dealt with by the Court during two of the three listed days, the substantive hearing of the parenting and property proceedings did not commence.
The hearing days on 16 and 17 August 2021 included:
(a)the release of the section 67Z Response dated 11 August 2021 (s67Z Response) from the Department of Families, Fairness and Housing (DFFH);
(b)the Court not acceding to the father’s request for an adjournment of the final hearing on the basis that he wished to subpoena further documents including from the Department of Corrections and DFFH;
(c)the Court being told that the father had breach of intervention order proceedings in the Magistrates’ Court the following week and a further listing in September 2021 for another matter and judicial monitoring as he was still on a Community Corrections Order;
(d)orders and arrangements made to facilitate the father’s mother’s appearance in Court which included providing her with an interpreter. The father’s mother was overseas in City H where she lives. She ultimately did appear;
(e)orders made for the final hearing to proceed on an undefended basis as against the second respondent. The second respondent was joined as a party to the proceedings on 25 February 2020. She had filed no material in the proceedings. She had not engaged legal representation. The father through his Counsel expressed to the Court that he intended to call his mother as a witness in support of his case. In order to ensure that the matter could proceed on the listed days in August the Court indicated it would provide latitude to the father to call his mother to give oral evidence in support of his case in the absence of any affidavit filed on her behalf. The parameters of the evidence of the father’s mother appeared to be narrow and known by Counsel for the mother, that is, the father’s mother wanted her money back;
(f)in the afternoon on the second day Counsel for the father advised the Court that she had sought a ruling from the Ethics Committee of the Victorian Bar. The Ethic Committee’s response was not forthcoming in a time frame that would provide the parties the opportunity to have the matter dealt with during the allocated hearing days. There was also the possibility that subject to the ruling of the Ethics Committee the father may need to obtain alternate legal representation. The Court was not advised of the subject matter of the ruling that was put to the Ethics Committee. In those circumstances the final hearing was adjourned for a 3 day final hearing to commence on 24 November 2021; and
(g)a costs order being made that the father pay the mother’s costs thrown away in the sum of $7,000.00 within 30 days. The father agreed that he should pay the mother’s costs. The Court determined the quantum. The father deposed in his affidavit affirmed on 13 August 2021 at paragraph 107 that he had accumulated $18,000.00 in savings by way of wages he had earned in the previous four months and that these savings together with a small amount of scrap gold he had purchased from wages and a diamond ring he had previously purchased for the mother were stored in a safe at his residence.[2] However, the father through his Counsel advised that the funds had been depleted by his purchase of equipment for his business and that the balance of his savings was then at $8,000.00.
[2] Father’s affidavit filed 13 August 2021, paragraph 107.
THE FINAL HEARING IN NOVEMBER 2021
At the final hearing in November 2021 (final hearing) the mother and ICL were represented by the same Counsel who appeared on their behalves in the August hearing. The father’s legal representation for the purpose of the August hearing and final hearing was provided by Victoria Legal Aid pursuant to the Family Violence Cross-Examination Scheme. Different solicitors from those who represented him at the August hearing were appointed to represent the father and different Counsel appeared on his behalf in the final hearing. The final hearing was conducted on Microsoft Teams again as a consequence of the global pandemic.
I note the following:
(a)the father’s mother had still not filed an affidavit. I acknowledge that at the August hearing I indicated that no such affidavit was required. However the final hearing had been adjourned for some three months and there was ample time for an affidavit to be prepared. Nor did the father call his mother to give oral evidence in the final hearing in the absence of an affidavit. An order was made on 17 August 2021 that unless the leave of the Court was obtained the parents could not file any further trial affidavits. No leave had been sought by either parent;
(b)the father did not file any subpoenas between the August hearing and the final hearing;
(c)on 31 August 2021 the ICL issued a subpoena to DFFH. On 13 September 2021 the father filed a Notice of Subpoena Objection (subpoena objection) to the production and inspection of documents from DFFH notwithstanding that his Counsel indicated in the August hearing that the father wished to subpoena the DFFH file. The father was self-represented when he filed the subpoena objection. On 11 October 2021 at the hearing date of the subpoena objection the father withdrew the subpoena objection and an order was made that the question of the ICL’s costs fixed at $1,998.00 and the mother’s costs fixed at $2,200.00 be adjourned for determination at the final hearing. These costs were not pursued during the final hearing. The father was represented by Counsel at the subpoena objection hearing, the same Counsel who appeared at the final hearing;
(d)the father had not yet paid the mother’s costs as ordered on 17 August 2021;
(e)Counsel for the father was present in the virtual Courtroom at the commencement of the final hearing on 24 November 2021 as was his instructor. The father was not present. From information given to the Court by Counsel for the father I was left in no doubt that he and his instructor had done everything possible to obtain instructions from the father and to secure the father’s attendance. I made orders providing for the mother and ICL to be at liberty to apply to proceed on an undefended basis if the father failed to engage in the proceedings at midday. At midday the mother and father were present as were all members of Counsel; and
(f)notwithstanding the difficulties presented to Counsel for the father and his instructor by the conduct of the father I am of the view that in all of the circumstances Counsel for the father and his instructor fulsomely represented the father for the duration of the proceedings.
The father relies upon his Affidavit filed 13 August 2021. Counsel for the father tendered two exhibits.
The mother filed an Outline of Case on 19 November 2021. She relies upon her Affidavit and Financial Statement filed on 26 July 2021. Counsel for the mother tendered eight exhibits.
The ICL filed a Case Outline on 13 August 2021. Counsel for the ICL tendered two exhibits.
The mother and the ICL rely upon:
(a)the Family Reports by Ms J dated 18 March 2021 and 25 June 2021;
(b)the Psychiatric Assessment by Dr K of the father dated 27 May 2021; and
(c)the s67Z Response released on 16 August 2021.
The Court is not required to refer to every piece of evidence relied upon by the parties, traverse every argument that is advanced or make findings in relation to all of the facts that are put in issue by them. I have read all of the documents relied upon and taken all of the evidence and submissions into account. Findings are made on the balance of probabilities and have regard to the nature of the subject matter of the proceedings and the gravity of the matters alleged.[3] My observations of the demeanour of the parents have assisted my assessment of the evidence and the issues requiring determination.
[3] Evidence Act 1995 (Cth) s 140.
PARENTING
The proposals of the parties by the commencement of closing submissions follow.
Proposals of the Mother and ICL
The mother and ICL seek that: [4]
(a)the mother have sole parental responsibility for the children and the children live with the mother;
(b)the children spend no time or have no communication with the father except in accordance with the children’s wishes and on such terms as nominated by the mother including professional supervision;
(c)the children be permitted to travel outside the jurisdiction of Australia with the mother;
(d)the mother do all things necessary to obtain family violence counselling for X as recommended in paragraph 53 of the Family Report dated 18 March 2021; and
(e)A suite of ancillary and consequential orders.
[4] Mother’s revised proposed minute of final orders dated 25 November 2021; Independent Children’s Lawyer’s revised proposed minute of final orders dated 25 November 2021.
Their proposals are predicated on the basis that the father poses an unacceptable risk to the children.
The mother also seeks an order that the father may write a letter to the children which the ICL or Ms J read to X and Y subject to the suitability of the letter as determined by the ICL or Ms J. She further seeks that the ICL or Ms J explain the orders to the children.
The ICL seeks that Ms J undertake the responsibilities set out in the preceding paragraph. The ICL also seeks an immediate discharge of his appointment rather than in three months as proposed by the mother. The mother seeks a discharge in three months to give time to the ICL to undertake the responsibilities set out in the preceding paragraph, to assist the mother in arranging suitable family violence counselling for X and to provide X’s counsellor with a copy of these Orders and Judgment.
Proposal of the Father

The father seeks that:[5]
(a)the mother have sole parental responsibility for the children;
(b)the children live with the mother;
(c)the children spend around 12 months of supervised time with the father at a contact centre;
(d)thereafter time progress as recommended by the family therapist (taking into account child contact centre reports and all other relevant matters) and failing a favourable assessment at the mother’s discretion;
(e)after the first six months of supervised time the father engage with Ms L in order to obtain a report to aid in the assessment of the progression of the spend time arrangements;
(f)the time the children spend with the father be subject to the father providing the child contact centre staff with documentary evidence of a negative drug test and the father attending upon and following the lawful directions of his psychologist;
(g)the continuation of the spend time arrangements and progression of spend time arrangements are subject to favourable reports from the child contact centre, the assessments of his psychologist and the family therapist, the father not committing family violence and the father being able to demonstrate his abstinence from drug use; and
(h)a suite of restraints including that each parent be restrained by injunction from discussing these proceedings and/or their family law dispute with the children.
[5] Father’s minutes of proposed orders dated 25 November 2021.
The father’s proposal is predicated on the basis that he does not pose an unacceptable risk to the children.
THE SECTION 67Z RESPONSE
The response includes the following:
·As at 11 August 2021 there had been 18 reports to DFFH dating back to 2013.
·City M Family Violence Unit advised Child Protection that the father is a high risk offender and they believe that he required constant supervision to manage the risk he poses to the mother and children. Police have previously corroborated a history for the father relating to his mental health, stability and family violence.
·Child Protection assessed that the father is a high risk family violence perpetrator with no intention of ceasing his behaviours and that he will continue to place the mother and children at significant risk of physical harm which could have fatal consequences.
·The father continues to demonstrate no insight into how his threatening behaviours and actions impact upon the mother and children and has been open in stating his engagement with any service is solely for the purpose of pleasing the Court instead of meaningful engagement to address concerning behaviours.
·On 3 May 2021 Child Protection received a copy of the father’s criminal history which indicated 18 pages of criminal charges/offending since 2012. A vast majority of those charges related to driving offences, contravening Community Correction Orders, possession of illicit substances, possession of weapons, persistently contravening Family Violence Intervention Orders and stalking.
·Child Protection thought it important to note that the father has been found guilty in relation to at least 10 incidents of contravening a Family Violence Intervention Order since 2019 and as at 11 August 2021 had two further pending charges relating to this with one as recent as 13 March 2021.
When Child Protection spoke to X on 1 June 2021 he:
(a)disclosed that he did not want any contact with his father, he constantly experienced feelings of anxiety and worry that the father would locate his school and/or home and that he did not like anything about the father;
(b)was very clear in his wish to not have any contact with the father due to his fear for his and the mother’s safety;
(c)stated that the mother had told him that if he wants to see or speak with the father he is able to, however he does not want to;
(d)was able to recall specific incidents of family violence that he had been exposed and subjected to including:
(i)the father tying him and the mother to the bed with belts as a form of discipline;
(ii)the father engaging in metamphetamine use and X falling over whilst holding drug-related paraphernalia, which shattered and caused an injury; and
(iii)unknown males with weapons attended the home in search of the father and he had to tell them that he did not know where his father was.
On 12 August 2021 X confirmed with Child Protection his wish to have no contact with the father.
Child Protection did not interview Y but was of the view that he is happy and flourishing in the care of the mother.
The s67Z Response sets out a list of Family Violence Perpetrator Red Flags in relation to the father as follows:
- Past violence and abuse of mother and history of violent behaviour
- Substance abuse
- Significant transition points
- Controlling behaviours
- Separation; instability post separation
- Financial control by the father
- Suicidal behaviour/other mental health issues/depression
- Breaches of IVOs
- Obsession with victim and jealous preoccupation
- Court proceedings initiated
- Stalking post separation
DR K
The Psychiatric Assessment by Dr K of the father is dated 27 May 2021. He assessed the father on 7 May 2021.
Dr K observes that:[6]
[Mr Tannous] adjusted to separation with considerable difficulty. He reported experiencing symptoms consistent with a reactive major depressive disorder. He reported that he remained afflicted with considerable depression given the stress of separation from his children remained prominent…[7]
[Mr Tannous] does not otherwise present with signs of a major mental illness. Personality and cultural factors are likely germaine in this case, but without more information being available it is difficult to offer a more detailed formulation.[8]
[6] Annexure “K-1" to Dr K’s affidavit filed 13 August 2021, page 11.
[7] Annexure “K-1" to Dr K’s affidavit filed 13 August 2021.
[8] Ibid.
The father disclosed to Dr K his history of drug use which Dr K described as a “significant history”. The father told Dr K that he:
(a)smoked hashish in Country F from age 13 to 21;
(b)smoked cannabis from age 21 until twenty-one months ago;
(c)commenced smoking methamphetamine from late 2011;
(d)used methamphetamine episodically until 2016;
(e)in 2016 he increased his use of methamphetamine following a serious incident when he was the victim of a criminal offence and developed a daily pattern of use leading to methamphetamine dependency; and
(f)had abstained from all illicit drugs for twenty-one months.
The father conceded that his methamphetamine use led to difficulties with frustration, tolerance and self-regulation. He admitted to engaging in yelling at his wife and children. Dr K observes that the father seemed to minimise the impact of his verbally abusive conduct on relations with his wife and children and that the father likely lacked insight into the significance of his methamphetamine-induced mood and behaviour disturbance whilst he was in the grips of major dependency.
Dr K reports that the father:
(a)described his relationship with the mother as having “difficulties like any couple’ and he didn’t consider any issues to be “major”;
(b)coyly admitted to past engagements in verbal arguments with the mother but he portrayed this as being regular arguments between couples; and
(c)said “I have never walked away from a fight – this is a war”.
Dr K noted that the father focused on his in-laws as being core to the problems in his marriage, including misrepresenting problems that led to the Intervention Order and a series of breaches leading to his incarceration on four occasions.[9] Dr K was of the view that the father appeared to minimise his likely role and responsibility for the unusually large number of breaches.
[9] Annexure “K-1" to Dr K’s affidavit filed 13 August 2021.
The father has been incarcerated for breaching the Intervention Order protecting the mother and the children on four occasions:
(a)Late 2019;
(b)Late 2019 – early 2020;
(c)Early 2020 – mid 2020; and
(d)Mid 2020 – late 2020.[10]
[10] Father’s affidavit filed 13 August 2021, paragraph 32.
The father told Dr K he:
(a)was able to locate the mother via her telephone and credit card usage;
(b)had breached the Intervention Order on 18 occasions prior to his first period in jail when he was incarcerated for two weeks;
(c)was in the community for three weeks before he was incarcerated again for sixty-five further breaches relating to an email exchange between him and the mother. The father told the Court that it was the mother who contacted him sixty-five times;[11]
(d)was incarcerated for a further four months;
(e)was released for nine days before breaching again;
(f)was breached in the context of him contacting the mother’s father to express his condolences after the mother had contacted him to tell him that her grandmother had died;
(g)was incarcerated for a further three months;
(h)was released in the community for a further three months;
(i)was breached again for texting the mother that he loved her; and
(j)spent a further three months in prison.
[11] Transcript 25 November 2021, p.146.
MS J
Ms J’s first Family Report is dated 18 March 2021. Ms J interviewed the mother and X on 12 March 2021 and the father on 16 March 2021.
Ms J’s recommendations in her first report included:
That at this time [X] and [Y] not have direct contact or communication with the father.
That [X] and [Y] not be exposed to parental conflict, family violence, expressed negative comments in relation to the other parent or extended family members.
That [X] have the opportunity to engage in child focused family violence counselling given his experiences of family violence and the trauma this has resulted for him.[12]
[12] Ms J Family Report filed on 19 March 2021, paragraphs 51-53.
Ms J records in relation to her interview with X:
[X] was offered the opportunity to speak with the Report Writer. He impressed as a little nervous however was able to express his feelings and thoughts in a clear and capable manner consistent with his age. [X] was informed of the limitations of confidentiality. [X] was keen to express his preference not to have any form of contact or communication with his father. [X] made comment that ‘I want a new father, I have the worst dad, I hate him, I don’t like anything about him, he has bad friends and he ruined my birthday a couple of years ago’. [X] stated that he did not have any positive memories of his father adding ‘I would rather forget it all’. He expressed some worry that he would ‘say the wrong thing’ to the Report Writer with the possibility that he would ‘go to live with my dad or with another family’. [X] stated that his wish was ‘to never see dad again, I don’t want to see his face or hear his voice’.
[X] described his mother in loving and positive terms adding ‘she is nice, she cares for us, she protects us from dad every day, I don’t want dad to know where we live, we have locks’. [X] made comment that of an afternoon at school ‘I go to the office and wait for mum, I don’t want dad to come to school’. [X] stated that there are some ‘marriage photos’ of his parents in the maternal family home that he feels like ‘ripping up’. [X] described his mother as ‘crying at lot, she had to go to Court yesterday’. He added that his mother has said to him ‘if I want to see dad I can, but I don’t want to’. [X] recalled that when his parents were together ‘everything scared me, I was happy when we didn’t live with dad anymore, then I didn’t have to stop the fights between mum and dad, dad hurt mum, he hit her, mum and dad were always fighting and I couldn’t sleep, [Y] slept right through’.
[X] described his life as ‘much better now, I ham (sic) happier, there are no fights, I am not yelling at my teachers now, I have been to ten schools, it is really important I stay at my school, I have some friends but not many there’. [X] stressed that his family were also very important to him, referring to his maternal grandmother and extended family members. [X] stated that he would like to move to a bigger house where he can have his own bedroom and not share with his younger brother. [X] stated that he ‘panics that dad might find us, he has tracked us, he found us and we had to pack quickly’. [X] expressed a desire ‘to see my old friends’. [X] expressed a wish for his father to ‘disappear and for my mum to be rich’. [X] recalled a ‘history of hitting’ perpetrated by his father adding ‘you wouldn’t believe it all the things that have happened, I have just told you a bit but not all of it’. [X] stated that if he feels worried that he talks to his teacher or with his mother.[13]
[13] Ms J Family Report filed on 19 March 2021, paragraphs 37-39.
X described his home situation as calmer and happier post separation. He expressed a strong desire not to change school again.[14] X appeared to have a sensitivity to maternal responses and was aware of his mother’s fear of the father and desire to protect the children.[15]
[14] Ibid, paragraph 45.
[15] Ibid.
X “strenuously rejected”[16] the information Ms J gave him in relation to safety that could be offered at supervised contact centres.
[16] Ibid.
Ms J did not interview Y because of his young age.
At the time of the report the father was subject to a 12 month Community Corrections Order expiring in November 2021. He was required to attend specified programs and attend upon his Corrections Officer on a weekly basis. He attended N Service for individual counselling, drug and alcohol counselling on a weekly basis and had attended one session in a twenty week Men’s Behaviour Change Program facilitated by O Service. He told Ms J that he had never been convicted of drug charges.
Ms J reports that the father:
strenuously denied perpetrating family violence during the marriage adding ‘I was not violent, I didn’t make threats or swear’. He described ‘my ex setting me up, family violence is like a red flag to Courts’… He described the marriage as ‘normal’ noting ‘every marriage has ups and downs’. [Mr Tannous] stated that he ‘still love my wife’ making comment that whilst he accepts separation, he does not accept that the marriage has ended, this due to religious beliefs.[17]
[17] Ibid, paragraph 31.
Ms J:
(a)says the views expressed by the father in response to perpetrating family violence are of concern and lacked personal responsibility in this area; and
(b)is of the view the children have been directly exposed to and witnessed family violence and highly probable that they would have been exposed to concerning paternal behaviours including effects of illicit drug use, angry responses and high levels of maternal distress.
Ms J prepared her second Family Report dated 25 June 2021 after reviewing Dr K’s Psychiatric Assessment.
Ms J noted that the father told Dr K on 7 May 2021 he had not used illicit substances for the past twenty one months. She also noted this was inconsistent with what the father told her on 16 March 2021 that his last use of cannabis was December 2020 and that drug screens provided to the ICL appeared to reflect positive results for cannabis during 2020.
Ms J did not change her recommendations set out in her first report and records:
There is professional agreement that [Mr Tannous] continues to demonstrate a lack of personal insight into the significance and impact of his drug use and behaviours that constitute family violence. [Mr Tannous] continues to lack understanding in relation to the subsequent emotional impact upon the mother and children. It is noted that this assessment is reflected in both the Family Report and Psychiatric Report.[18]
[18] Ms J Family Report filed on 26 June 2021, page 4.
THE MOTHER’S EVIDENCE
The mother impressed as an honest witness. She was softly spoken and articulate. The mother was tearful throughout her interview with Ms J particularly when recalling her experiences of family violence. This accords with the presentation of the mother during the final hearing. The mother often became distraught during the final hearing.
Since separation the mother and children have been living in safe housing provided by P Service, a family violence support service. Security cameras and technology have been installed at her house and in her car.
The mother has been trying to hide herself and the children from the father since separation. The father has however attempted to locate them. This has caused the mother and children to relocate at least on four occasions thereby causing a significant amount of disruption to their daily lives. X has been required to change schools and form new friendship groups. No doubt as Child Protection observes, this causes further stress and anxiety for the family who have already been exposed to long standing family violence.[19] The father has also communicated with the mother in breach of the Intervention Order.
[19] Department of Families, Fairness and Housing section 67Z Response Report (DFFH s67Z Response) dated 11 August 2021, page 6.
The father admits that he was successful in locating the mother and children on one occasion, in 2019. He discovered the mother and children were staying in hotel accommodation arranged through P Service.
The mother has the father’s email address but she does not use it. The mother has already changed her email address three times. She has a new email address and does not wish to disclose it to the father as he has tried to hack her other accounts and she does not feel safe.
The mother does not use any social media platforms. The father’s breaches of the Intervention Orders include matters relating to the mother’s Facebook, Instagram and Snapchat accounts.
On 1 April 2021 the father told Corrections Victoria that he had recently looked the mother up on Snapchat not knowing that the mother would be able to see that he had done so.[20] The father asserts that DFFH told him that if the mother is mentally ill or that she is not looking after the children then they would re-open the case. He went onto her Snapchat account to undertake some investigative work on the mother. Plainly this is stalking behaviour.
[20] Exhibit M6.
Corrections Victoria’s Case Note dated 1 December 2020 records the father is of the view that the mother and children are the victims of the offences “because they have had to move around houses so much.” [21] The father reports that his behaviour “wasn’t that bad” and “police made it seem like I was scarier than I was.” It was noted that the father had “No insight, whatsoever.”[22]
[21] Exhibit M3.
[22] Ibid.
The mother told Ms J that she was opposed to the father spending time or communicating with the children due to her continuing high level of fear for the safety of herself and the children and that the father was “manipulative, has anger issues, pretends he is a changed person, he is repeating behaviours” and stressed that she does not trust him.[23]
[23] Ms J Family Report filed on 19 March 2021, paragraph 30.
The mother does not think the father has the ability to change his behaviour. The Court is of the view that the father has further and substantial progress to make in containing his conduct and appreciating the effects his behaviour has on the mother and the children. The Court observed the father screaming, yelling and gesticulating at the Teams screen during the mother’s evidence as well as at other times.
The mother also observed this behaviour. She said:
You can see from the way he is now, screaming and yelling – yelling at the screen, and he just – see the way he’s looking at me, that’s enough, making me more nervous, and then if you want me to put this person with my kids. He’s not behaving in front of everybody in the court and making me more scared and nervous just sitting on the camera...He has no respect to anyone…This is my life with him all the time. Try to intimidate me and think I scare from him.[24]
[24] Transcript 24 November 2021, p.15.

The mother has been offered 20 funded counselling sessions through Victims of Crime and at the time of the hearing the mother had attended four. Her parents have also been offered funded counselling through Victims of Crime. She continues to attend a caseworker from Q Service.
The mother described her current emotional health to Ms J as able to sustain parenting and caring for the household. The mother is of the view that if she were to have any discussions or emails with the father then her health would deteriorate. She would be more stressed and anxious.
The mother told the Court that her fear of the father was at a level of “1000 percent… Is that enough? If there’s more, I can go more”[25] She was afraid that the father may physically harm her and the children and said “He has done it before, so what’s going to stop him this time?”[26] The mother told the Court that she did not know whether the father would kill the children but he may kill her.[27]
[25] Ibid, p.23.
[26] Ibid.
[27] Ibid.
It was clear from the mother’ demeanour in Court that the mother is still affected by the ongoing trauma of family violence perpetrated by the father.
THE FATHER’S EVIDENCE
The father was not an impressive witness. He gave his evidence in an erratic and chaotic manner. He spoke over and interrupted his Counsel, Counsel for the mother and Counsel for the ICL. He would often embark on tangents when giving answers to questions. He became extremely agitated at times. The Court had to intervene on many occasions to ensure the proceedings continued without interruption from him. The father was also observed to be smoking and scrolling through his telephone during the proceedings. There was an empty bottle of Scotch on a dresser behind him. The father incredulously in my view says that he uses it as his water bottle.
Where the evidence of the mother and father is in conflict I prefer the evidence of the mother for the following reasons:
(a)During his evidence the father referred to emails and messages sent to him by the mother, videos, CCTV footage, comments made by the Magistrate during Intervention Order proceedings, an affidavit by his mother and other documents to support that the allegations made by the mother were false. Not one piece of such alleged evidence was provided to the Court to support the father’s version of events or denials. I make no criticism of the father’s legal representatives in this regard; and
(b)The evidence supports that the father was using cannabis and methamphetamine during the marriage very consistently. I accept the mother’s evidence in relation to the extent of his illicit substance use. I consider that it would be difficult to cavil with the statement that the father’s recollection of events has been impaired given the level of his illicit substance abuse, despite the father’s assertion to the contrary.
FAMILY VIOLENCE
The parents have different versions of the event that caused the separation in late July 2019.
The father asserts that he told the mother to leave the Suburb C property with the children and stay with her parents until he was better able to secure the Suburb C property including building a 2 metre high fence around the property. He asserts that a disgruntled customer had come to the home and threatened to kidnap the family unless he did further work on a vehicle he had purchased. The father says that he had no idea that the mother and children were not going to return and that at the point of the mother’s departure their relationship was still intact.
The mother asserts that the father accused her of flirting with the disgruntled customer. The father stood on her feet stopping her from moving, grabbed her hair and pulled her to the ground. She asserts that the father kicked her out of the Suburb C property, refused to let her take any of her possessions, threw the car keys out of the front door and told her to take the children and go to her parents.
For the reasons referred to in paragraph 69 herein I prefer the evidence of the mother. I also note that P Service has been engaged with the mother since 1 August 2019, a date contemporaneous with the time the mother and children left the home.[28] Following a Risk Assessment, P Service identified that the mother and children were in need of protective hiding which P Service organised between 1 August 2019 and 26 August 2019. Thereafter the mother and children were referred into a high security women and children’s refuge for on-going safety and family violence support and the mother identified an alternative safe option for her and the children.
[28] Annexure “F-4” to the Mother's affidavit filed 26 July 2021.
The mother deposes many instances and forms of family violence perpetrated on her and the children by the father. Such matters include hitting and kicking her, throwing bottles at her and pulling her by the hair, sometimes down the stairs. After X was born the frequency of the severity of the beatings increased. The father would push her out of the front door and lock it and tell her when she was able to return. The father would throw his entire meal in the bin if he did not like the meal she prepared. He would tell the mother and X that they were not going to eat and send them upstairs.
X would many times try to stand between the father and mother whilst the father was beating her and sometimes place his hands over his ears to block out the noise. When this occurred the father would often give X the “silent treatment” and not speak to him for days after an incident as a way of punishing X.
The father denies the allegations made by the mother save for an incident in 2014 when he punched his hand into the wall in the presence of the mother and that on one occasion very early in the marriage he threw out a meal which the mother had prepared.
The mother alleges that around the end of 2018/beginning of 2019 the father blinded her left eye after he punched her. She had hidden this from the father for around two weeks until she panicked and told him. The father accompanied the mother to an optometrist. The father told the optometrist that the mother and he had been mucking around and that he struck her accidentally with the ring on his finger. When they left the optometrist the father told the mother it was her fault as she had made him angry. The mother apologised to the father. The father denies the incident occurred including him taking her to the optometrist.
Again I prefer the evidence of the mother. The blaming of the mother for the incident is consistent with the father’s evidence that the mother should respect his “steam point”.[29]
[29] Transcript 24 November 2021, p.49.
The father’s sarcasm when he was cross-examined about family violence does not satisfy the Court that the father has any insight into the seriousness of family violence allegations:
(a)In response to the mother’s allegation that in the final two years of the marriage that the father would typically beat her twice a week and often in the presence of the children the father asked “After food or before food. If she is saying twice a week…That’s what, Monday and Friday... No, if it’s scheduled twice, twice a week, so if one week we didn’t do it, what’s going to happen? That is not true. Could she prove I did that twice a week? And that was already by days or weekends or what?”;[30]
(b)The father would not concede that the mother may have been afraid of him when she saw him punch the wall. He had hit the wall so hard that he had a crack on his hand but glibly added “It’s my hand, not her hand. It’s my hand… If I want to hit her head I could do it.”[31] The father said he was not on ICE on this occasion. I find that response troubling. It highlights that the father has a propensity for violent and aggressive behaviour even when not under the influence of a serious illicit substance; and
(c)The father when denying tying X and the mother to the bed said “I tie the dog with them…How big was the bed to tie [Ms Farih] and tie [X]? Did I get tied with them as well?”[32]
[30] Ibid, p.52.
[31] Transcript 25 November 2021, p.124.
[32] Transcript 24 November 2021, p.55-56.
The mother felt that if she did not stay in the relationship she could not survive. She asserts that during the marriage when she told the father she was going to leave he threatened her and told her that the only way she was leaving was on a stretcher on her back. In reply to the question put to him by Counsel for the mother whether he made any such threats the father replied “No, because no, she left – she left the marriage and she is sitting next – in front of you, not on her back.”[33]
[33] Ibid, p.62.
It is the father’s case that the mother provides limited evidence in relation to the family violence allegations she makes. However, it is not the case that a court can never make a positive finding that family violence has occurred without there being corroborative evidence from a third party or a document or an admission.[34]
[34] Amador & Amador [2009] FamCAFC 196 at [81].
I refer to the following:
(a)The mother acknowledged to Child Protection that she never reported any family violence to police and she was not truthful to her family or community supports about what was going on in the home. Child Protection noted that the mother holds a lot of guilt and shame for not coming forward sooner.[35] The mother though was able to provide photographic documentation of some of the injuries she had sustained. She presented to Child Protection as genuine in her experiences;[36]
(b)I place substantial weight on the fact that P Service has, and continues to provide, significant resources to the mother and children to secure their safety;
(c)The mother’s genuine palpable fear of the father;
(d)X’s recollection of violent incidents and his view of the father;
(e)The father’s admission as outlined in paragraph 7 of these reasons and his narratives to both Dr K and Ms J, albeit he minimises the level of the violence;
(f)The father’s minimisation of his behaviour and his attitude in relation to family violence that he displayed to the Court; and
(g)The father has been incarcerated on four occasions for a total of around 10 months for breaches of the Intervention Order including for stalking.
[35] DFFH s67Z Response, page 6.
[36] Ibid, page 5.
The father agreed that a couple of times X intervened in arguments and tried to stand between the father and the mother. The father denied that it was because of physical violence between he and the mother but rather because the mother was ignoring X and not replying to him. I consider the father’s evidence of “the only thing could stop the arguing if we have arguing between me and her, that X wake her, and she used to hide behind him. The mother used to hide behind X because she knew that I would never cross the line with X”[37] confirms that not only was X exposed to family violence but that he also tried to intervene.
[37] Transcript 24 November 2021, p.54.
The father denies that he ever got angry with the children and told the Court “The only person that got me that angry is her.”[38] The father denies that he will ever get angry with children. I note the father was not even able to contain his anger and aggression when being observed by a Court within whose power it is to determine the future of his relationship with the children. If the father was not able to be on his best behaviour in those circumstances then the Court is not satisfied that he would be able to curtail his violent behaviour if he does not like the way the children are behaving whether in a supervised or unsupervised environment. I am also not satisfied that he would be able to moderate his anger during any family therapy session if he did not like what the mother, X or Y were saying.
[38] Transcript 25 November 2021, p.162.
The father was cross-examined by Counsel for the mother on an email the father sent the mother on 19 August 2019 which includes “as if I always hit you, last time because I love you and jealous about u and don’t want anyone to annoy you like before i told you to leave”[39]. The father admitted he sent the email but was of the view that the content of the email had been rewritten as “these are not my words. Someone wrote it down”[40] In my view that is a disingenuous explanation by the father. The email corroborates the mother’s version of the event which precipitated the separation.
[39] Annexure “F-2” to the Mother's affidavit filed 26 July 2021, paragraph 6.
[40] Transcript 24 November 2021, p.52.
I am not satisfied that the mother’s evidence of family violence during the parties’ relationship and X’s statements in relation to same should be rejected for the reason contended by the father.
I am therefore satisfied that the mother and X were victims of family violence perpetrated by the father during the marriage and continue to be so post separation given the father’s stalking behaviour.
I do not accept the father’s admission made by the father to Counsel for the ICL that he admits he committed family violence. All of his oral evidence prior to that point was consistent with his statement “I never committed violence”[41]. Furthermore the concession he makes at paragraph 7 of these reasons confirms that he minimises his violent behaviour and has no insight into the effect of the family violence he has perpetrated on the mother and the children. That accords with the view of Dr K, Ms J, DFFH and Corrections Victoria.
[41] Ibid, p.35.
The father is of the view that the s67Z Response and Family Reports should not be believed because they are one sided in favour of the mother. He told the Court that “She went to the family report writer and by crying and there is a fact that I breached the order four times, everyone believed that I’m the bad person.”[42] He plainly takes no responsibility for his breaches of the Intervention Order.
[42] Transcript 25 November 2021, p.169.
The father’s attendance at the R Hospital when Y was born was not without drama. The hospital called a Code Black because of the father’s aggressive behaviour. When a hospital staff member approached the father, the father punched the wall. The police attended. Whether it was the hospital or the father who called the police it took “6 police officers to contain”[43] him. I accept that the father may have a blood phobia and that the mother may have wanted the father’s presence in the delivery room. However what does not sit comfortably with the Court is that the father denies that he was aggressive on this occasion and queried what punching the wall had to do with anything.
[43] Exhibit M7.
I also do not accept the father’s admission that he takes greater responsibility than the mother for the violence between them. This also accords with the view of Dr K, Ms J, Child Protection and Corrections Victoria.
The father told the Court:
(a)“She know the truth. She know what happened. She know that what she is saying is not true. She knows that she plays me up for a year, keep breaching me”;[44]
(b)“My situation of drugs or my anger issues or whatever I had in the past, that’s because my father wasn’t in my life, although him and my mum is still together. I don’t want my son to grow up with no father. She is getting a revenge of me. As she told me on the phone, she getting revenge of me and my kids”;[45]
(c)“I breached the intervention order because she was setting me up.”[46] The father also blames the mother’s parents for inducing him to breach the intervention order;
(d)When explaining why he hit the wall in 2014 in the presence of the mother he said that the mother did not respect his “steam point” and she kept “abusing it”.[47] He was of the view that it is the mother that should have changed her behaviour during the marriage and “give him his space.”[48] He said “She’s not respecting my wish to stop the conversation now because I might have an issue”;[49]
(e)“But as long as she knows that what she did to me the last two years wasn’t fair and I’m similar upset from her. That was a reaction and action from someone who was being hurt. And she was punishing me for something I didn’t do”;[50]
(f)The father described the mother as ‘selfish’ to Ms J and told her that she was denying him a parenting relationship with the children.[51]
[44] Transcript 24 November 2021, p.33.
[45] Ibid, p.33.
[46] Transcript 25 November 2021, p.114.
[47] Transcript 24 November 2021, p.49.
[48] Transcript 25 November 2021, p.122.
[49] Ibid, p.123.
[50] Ibid, p.167.
[51] Ms J Family Report filed on 19 March 2021, paragraph 32.
The father has completed the second Men’s Behaviour Change Program in which he engaged. However he only completed four sessions of the Men’s Behaviour Change Program with O Service. The s67Z Response records that on 22 July 2021 Child Protection obtained the following information in relation to the father’s engagement and exit from that program:
The service advised that [Mr Tannous] had been listed as “non-compliant” following 4 sessions and was exited from the program due to “his loud and threatening manner and disrespectful behaviors”, “exhibiting a very strong blaming narrative and unwillingness to accept any responsibility (in complete denial) for the breaches that occurred, and that [Ms Farih] has felt intimidated and scared by him”, “comments made to the worker by [Mr Tannous] stating that he is only doing the course to see his kids, he is reporting this to his lawyer and will use it to make sure the IVO is not extended.”[52]
[52] DFFH s67Z Response, page 6.
Corrections Victoria’s Case Note dated 1 December 2020 records that the father “only wants to complete the programs to look good for family court.” [53]
[53] Exhibit M3.
The father told the Court what he had learnt during the Men’s Behaviour Change Program (and his drug and alcohol course). He seemingly said the right things. However his overall evidence to the Court and the manner in which it was given still indicates that he was merely going through the motions to try and satisfy the Court that he had modified his aggressive and violent behaviour or that he had gained any insight. The father also expressed reservation to Ms J that engagement in the Men’s Behaviour Change Program, drug and alcohol counselling and the parenting program have been of benefit to him.
The father asserts that it was not until 15 December 2020 that he was aware that the Intervention Order meant he could not have any communication with the mother. Plainly the father did not accept that in trying to communicate with the mother was breaching an Order of the Court and committing family violence. The father had already served four prison terms by 15 December 2020 for his breaches of the Intervention Order and at times had legal representation in relation to those proceedings. Plainly he still does not understand that he is required to leave the mother alone given that in April 2021 he nevertheless stalked her on Snapchat.
At the time of the final hearing the father had six pending charges arising from incidents unrelated to breach of intervention order proceedings. The father is of the view that the police have charged him with these offences “So I can look now in front of the judge that I have still pending matters to help the mother in her case.”[54] There were also two further outstanding charges in relation to alleged breach of the Intervention Order. The father was charged on 10 March 2020 and 11 March 2021. The father has also previously breached 10 out of the 11 Community Corrections Orders.
[54] Transcript 25 November 2021, p.131.
On 8 August 2019 an interim Intervention Order was made against the father for the protection of the mother and was made final on 18 September 2019. At the time of the final hearing the mother had an interim Intervention Order against the father protecting her and the father had obtained an interim Intervention Order against the mother. Those proceedings were to be dealt with in December 2021.

The Court is unaware of any Court outcomes in relation to the father’s outstanding criminal charges or the Intervention Order proceedings.
The father told the Court that he does not know why the mother is still afraid of him. He is of the view that the security cameras she has installed could be “for any other reason, for thieves or anything. What – I’m not the one who installed the cameras. I don’t know what she is talking about.”[55]
[55] Transcript 24 November 2021, p.66.
The father is of the view that the mother must address her fears and until she does he doubts the utility of his attendance at the Men’s Behaviour Change Programs. He told the Court:
If [Ms Farih] could say what the issues one, two, three, four and I understand what the issues are and what change is and I work on it, that could give her some of the protection or some of the security, because as long as she doesn’t – as long as she doesn’t address what could make her feel secure and say if – no matter what I do, even if I took 10, 20, then the heavier of course, as long as I don’t address her fear, she will always be scared of me. The purpose of me taking that course is to make that people surround me or dealing with me or living with me feeling safe and secure and not intimidated by my action and reactions. If she doesn’t say what her fear is, that course will never fix it, but now all I’m doing is I complied with the course.[56]
She have to tell me what can I do for her to make her feel more secure and more safe around me and around the kids. It doesn’t have to be we’re living together. But when she sees me or she feels comfortable to let me see the kids or feels comfortable or safe to deal with me again, she has to address things and I work on it.[57]
[56] Transcript 24 November 2021, p.41.
[57] Transcript 25 November 2021, p.165.
In my view it is incredulous that the father does not know why the mother is scared of him. At the very minimum the mother’s affidavit deposes to incidents of family violence and the reports before the Court give the reasons why. The father is still in denial about perpetrating family violence. The Court is not surprised that his attendance at the Men’s Behaviour Change Program have not proved successful given the father’s denial and lack of acknowledgment and understanding that he was and continues to be a perpetrator of family violence.
I consider that the father is still preoccupied with the mother and wishes to hold her accountable for the state of his relationship with the children and his violent behaviour. The father told the Court that:
(a)He would reconcile with the mother if she wanted to but “both of us have to respect each other and both of us have to do a program. I know I have to respect her and also she has to respect me”;[58]
(b)“I still love her because she look after my kids. I still love her because she’s a good mother. I still love her, that she was with me good for the ten years. I do respect her for the person that she is. It doesn’t have to be because she’s my wife”;[59]
(c)“Until now, even after what she done, she know that I can’t hurt her”;[60] and
(d)In response to the question by Counsel for the ICL whether he could go back and change the time of separation the father said “I would take my wife and my kids and leave the country.”[61] The father does not trust the process of the justice system in Australia and believes that if the wife and X had left the country with him he would not have this problem.[62]
[58] Ibid, p.165-166.
[59] Transcript 24 November 2021, p.37.
[60] Ibid, p.44.
[61] Transcript 25 November 2021, p.145.
[62] Transcript 25 November 2021, p.146.
The father told Corrections Victoria on 7 October 2019 that “no one will stop me from seeing my family”.[63] That comment viewed in the context that some eight months later the father went on the mother’s Snapchat account has a ring of truth to it.
[63] Exhibit M1.
The father told the Court that he would appeal the decision if orders are not made allowing him to see the children. He also told the Court:
only way that you will make me stop is one thing: open my grave and put me in, because I’m not going to stop… I will keep trying with all the legal way, whatever courses you want me to do, I will keep trying. I will never give up.[64]
[64] Transcript 25 November 2021, p.169.
THE FATHER’S MENTAL HEALTH
A Psychological Assessment Report of the father dated 13 October 2020 assessed the father as meeting the criteria for a major depressive disorder with recommendations made that there be engagement in psychological treatment including mental health intervention.
The father does not accept that he was diagnosed with a major depressive disorder although he agrees he has depression. He does not attend upon any counsellor and asserts that the counsellor told him after the first session that she could not treat him and that no treatment or anything can replace the children and the mother. He told the Court that his mental health would be stable by getting the children back into his life and then he would get more counselling.[65]
[65] Ibid, p.78.
The father told Ms J that “engagement in counselling and services has not been helpful or beneficial for him, stating that his problem was ‘not seeing my kids’.”[66]
[66] Ms J Family Report filed on 19 March 2021, paragraph 27.
On 27 July 2021 Child Protection was informed that Police held concerns regarding the father’s mental health due to concerns he may be at risk of attempting suicide. Child Protection were advised that safety planning had been completed with the mother due to concerns the father would attempt to harm the mother and the children before attempting suicide. The father asserts that this incident has been misinterpreted. It is nevertheless plain that authorities are on high alert in relation to the father’s behaviour toward the mother and the children.
I note that this incident is in very close proximity to the August hearing. I acknowledge that Dr K was of the view in May 2021 that the father, other than depression, does not otherwise present with signs of a major mental illness. The father’s behaviour during both the August and final hearings was extremely disconcerting. I note that Dr K’s opinion carries the caveat “without more information being available”.
The father in my view clearly needs to engage in more counselling or courses to modify his behaviour and gain insight.
FATHER’S DRUG USE
The father at least acknowledges his illicit drug use but I am of the view, as is the view of Dr K and Ms J, that he does not realise the adverse impact on his behaviour of such use. The father told the Court that when he has drugs or a bottle of Scotch (which he was consuming after the separation) he “can make any operations because I have a brain tolerance and the – the – it doesn’t affect me.”[67]
[67] Transcript 25 November 2021, p.147.
However it is trite to say that being drug affected does compromise parental capacity and how a person conducts themselves. Even the father admits that his illicit drug use had a negative impact on him. I accept the mother’s evidence that the father’s anger heightened in 2016 when the mother commenced the family business. This coincides with the time the father started on the road to methamphetamine dependency.
The father denies that he used illicit substances in the children’s presence or the children ever saw him under the influence of illicit substances as he only smoked, if he smoked, at night. I do not accept that denial given the concession he makes in paragraph 7 of these reasons.
The father denied that he usually turns to drugs when he is under pressure.[68] I do not accept that denial. Despite the father’s attendance at eight sessions of drug and alcohol counselling and that he has completed courses, the Court is aware of at least two incidents when the father has used drugs other than for purely recreational purposes.
[68] Ibid, p.79.
The father admitted that in mid-2021 he had relapsed and used methamphetamine. He told the Court that he had “lost concentration on my target” and “relapsing is a part of rehabilitation”.[69] The father explained that he relapsed because it was X’s birthday the day before and he wasn’t able to give him a present.
[69] Transcript 25 November 2021, p.79.
The father also used Cannabis in December 2020 to manage his anxiety.
The mother’s scepticism that the father has overcome his drug use given that he has been using drugs for so long[70] appears to be correct.
[70] Transcript 24 November 2021, p.10.
The father may have in the main been abstinent from illicit drug use. He has in the main reasonable explanations why he did not attend within time or at all for the illicit drug screen testing requested by the ICL. His drug use has also been heavily monitored by the Corrections Office.
I am of the view that given his long standing use of illicit substances there is always the possibility that the father may again relapse. There is always the possibility of any long term user of illicit substances to relapse. The father’s last relapse was not that long before the final hearing. There will undoubtedly be further emotional triggers on the father if he commences seeing the children in either family therapy or at a supervised contact centre.
The Court has little confidence that the father would abide by any court order restraining him from ingesting illicit substances prior to any period of time he spends with the children given that he was well aware when he last used methamphetamine that the stakes would have been high for him in relation to spending time with the children if he tested positive for illicit substances.
Furthermore given the inappropriate conduct of the father during the two days of the final hearing and if I assume for present purposes that the father was not under the influence of illicit substances, then Dr K’s view that the father is far less likely to be emotionally volatile and unreasonable whilst he remains abstinent from drugs carries very little weight.
LEGAL PRINCIPLES
The Court may, subject to the presumption of equal shared parental responsibility, make such parenting orders as it thinks proper.[71] When deciding what parenting orders to make it is the best interests of the child which is the paramount consideration of the Court.[72] The Court is informed as to what is in a child’s best interests by the primary and additional considerations in section 60CC of the Family Law Act 1975 (Cth) (the Act) and in the context of the overarching Objects and Principles set out in section 60B.
[71] Family Law Act 1975 (Cth) s 65D(1).
[72] Ibid, s 60CA.
The Court must have regard to the presumption of equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent of a child has engaged in family violence. The presumption is rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.[73]
[73] Ibid, s 61DA.
In the event that an order for equal shared parental responsibility the Court is required to assess whether it is in the child’s best interests to spend equal time or substantial and significant time and whether such time is reasonably practicable.[74] If no order for equal shared parental responsibility is made then spend time arrangements are at the discretion of the Court, subject to the best interests of the child being the paramount consideration.
[74] Ibid, s 65DAA.
In Grella & Jamieson [2017] FamCAFC 21 at paragraph 18 the Full Court observed:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
PARENTAL RESPONSIBILITY
All parties seek an order that the mother have sole parental responsibility for the children. I am satisfied that such an order is the proper order to be made.
The presumption does not apply. I am satisfied the father has engaged in family violence and has continued to do so after the parents separated.
Even if the presumption did apply, I am satisfied that it is rebutted.
The mother is fearful of the father. The evidence does not support the mother will have the capacity to consult with the father given her palpable fear of him. The evidence does not support that if the mother used any form of electronic communication to consult with the father he would not seize the opportunity to try and locate her and the children. If he does locate her there is the possibility of fatal consequences to the mother and children. He has already found the mother through her use of electronic communication.
There is no evidence to support the mother has not properly exercised sole decision making in relation to major long-term issues for either of the children since separation to date. I am satisfied she will continue to make responsible decisions in the best interests of the children in the future.
The mother would like to travel overseas with the children. She wishes to visit a sick relative who lives in America and visit her deceased’s grandmother’s grave. Orders are made facilitating the mother’s ability to obtain passports for the children and enable her to travel internationally with the children.
SPEND TIME ARRANGEMENTS
In these proceedings the focus in relation to the spend time arrangements between the father and children is the balancing of the primary considerations. When doing so the Court is mandated to give greater weight to the need to protect children from physical or psychological harm and from being subjected to, or exposed to abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the child’s parents.[75]
[75] Family Law Act 1975 (Cth) s 60CC(2A).
Meaningful Relationship
A meaningful relationship is one that is important, valuable and significant to the child. It is a qualitative rather than a quantitative concept.[76]
[76] McCall & Clark [2009] FamCAFC 92 citing with approval the interpretation by Brown J in Mazorski & Albright [2007] FamCA 520.
The children clearly have a meaningful relationship with the mother and derive a benefit from that relationship. The children are flourishing in her care. She has shown a responsible attitude to the children and parenting. She has kept them safe and removed them from the violent and/ or drug induced behaviour of the father.
The children have no relationship with the father. From X’s perspective he does not see his relationship with the father as important, valuable or significant. It is clear that he does not wish to have a relationship with the father to any extent. X is plainly of the view that he will not gain a benefit from having a relationship with the father. He is extremely concerned about the consequences that will happen to him and the mother if he starts seeing the father.
I have canvassed the views of X in detail to show the strength of those views and his concerns. X is adamant that he does not wish to spend time with the father.
The father does not accept that X is scared of him. He asserts it is the mother who has influenced X against him. The father contends that the mother told X what to say to Child Protection.
However I am satisfied that X’s lived experiences of family violence forms his views. I do not accept that they are held on the basis that he has been negatively influenced by the mother, whether by exposure to her feelings and/or manipulation by her.
I place significant weight on X’s views notwithstanding his young age.
At the time of trial X had been at his present school for about a year and a half. X at his previous school did not want to make friends as he was worried that they would have to move again. He was previously rude, exhibited screaming and yelling behaviours and was not listening in class. The mother told the Court that X “he had really bad temper, even with me, and because he has seen his dad used to hit me, and he used to some time push me around”.[77]
[77] Transcript 24 November 2021, p.24.
The mother told the Court that X has now improved. He is doing well at school, engaging in other activities and sports, willing to study, learning to listen and show respect and there is no more stubbornness, screaming or yelling.
The father has not shown a responsible attitude to the children or to his duties as a parent. The father has significant deficiencies in being a positive role model for the children. He is an illicit drug user and has been under the influence of same when the children are in his presence. He fails to obey Court orders. He has no respect for authority. He perpetrates family violence on the mother and children and exposes the children to his violent behaviour toward the mother. He has no insight that his behaviour is family violence or that his behaviour has an impact on others despite his attendance at several courses.
Children should be protected from being exposed to such conduct and attitudes. There is the potential that as a consequence of the children’s future exposure to such deficiencies that they will perceive such behaviour as acceptable and model those deficiencies in later years.
X was already starting to exhibit the aggressive and unseemly behaviour of the father to which he had been exposed. The evidence does not support that his violent behaviour toward the children or their exposure to family violence perpetrated by him will be different to that which they have already been exposed or that he will not be under the influence of illicit substances if he sees the children.
Y has no emotional attachment to the father. Y may have no memory of his father and the family violence during the marriage. He does not recognise the father in the photographs the mother shows him. The Court has no evidence before it whether Y has expressed any views about the father. However it is the same adverse consequences that can befall Y as those that may affect X if the children were to commence spending time with the father.
In those circumstances I consider that there is no benefit to X or Y recommencing a relationship with the father and that they will derive no benefit from having a relationship with him.
The Need to Protect the Child from Physical or Psychological Harm
Family violence is defined in section 4AB(1) of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful”. Section 4AB(3) provides that a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence. Assaults and stalking are examples of behaviour that may constitute family violence.[78]
[78] Family Law Act 1975 (Cth) s 4AB(2).
I have found that the father has perpetrated family violence on the mother and the children including stalking. The mother and X are plainly fearful of the father and are experiencing the effects of family violence. The children need to be protected from exposure to further family violence. The children also need to be protected from the conduct of the father which results in poor role modelling.
I consider that there is an unacceptable risk of harm to the children if they are exposed to such behaviours. However, it is incumbent on the Court to consider whether “with or without safeguards” the risks to the children can be converted to acceptable,[79] and whether those risks are “able to be sufficiently managed or ameliorated”,[80] to enable the children to recommence a relationship with the father.
[79] Slater & Light [2013] FamCAFC 4 at [37].
[80] Blinko & Blinko [2015] FamCAFC 146 at [83].

Annexure “T-13” of the father’s affidavit contains a number of documents in relation to the money transferred. Some documents are in a foreign language, some are in English. Included is a transfer application form which shows that an amount of EUR€13,500 was transferred by the father’s mother. [97] The “Agreement Contract” refers to AUD$30,000.00 comprising of AUD$22,000.00 transferred from the father’s mother through her sister’s bank account and a further AUD$8,000.00 coming from “cash via a friend who was travelling to Melbourne”. The “Agreement Contract” also refers to the father receiving the cash “approximately one year before the signing of the contract”.[98]
[97] Annexure “T-13” to the Father’s affidavit filed 13 August 2021, page 80.
[98] Ibid, page 82-83.
The father told the Court that we “we took $5000 from the priest of the church, and my mum transferred the ..... you can say no from here to tomorrow that the priest wouldn’t lie”.[99] The father further told the Court that “If you do the math the five grand from the priest and the car for $6000 that I’ve sold and the 22,500 – you assuming but I remember the process”.[100]
[99] Transcript 25 November 2021, p.110.
[100] Ibid.
The Agreement Contract refers to the signing of the contract by the second party (the father) is considered a confirmation of the receipt of the full amount of $30,000.00. The mother is not a signing party to the Agreement Contract.
The father asserts that the mother was not named as a party on the Agreement Contract because her name on her passport was different to the name of her bank account. The father contends that he and the mother were in Country F together at the time of the signing of the contract and that it was signed a year after the purchase of the Suburb C property because it was not until then that all parties to the contract were in Country F.[101]
[101] Ibid, p.98-99.
Annexure “T-13” also includes a transcribed document purportedly written by the lawyer in whose presence the Agreement Contract was signed. The document also provides an explanation that court proceedings in City H between the father and the mother resulted in an order being made to the effect that the contract between the father and his mother is valid.[102]
[102] Annexure “T-13” to the Father’s affidavit filed 13 August 2021, page 81.
On the available evidence I am satisfied that the father’s mother did provide EUR€13,418.89 to the parents. Also Counsel for the mother’s internet search aligns similarly with the representation of AUD$22,000 in the “Agreement Contract”. I note that exchange rates may change daily. On the available evidence I am not satisfied that the father’s mother provided more than EUR€13,418.89 to the parties. In relation to any further sum provided by the father’s mother I note the following:
(a)the father’s evidence is inconsistent with the content of the Agreement Contract;
(b)there is no evidence from the father’s mother, and
(c)the mother was not provided with the opportunity to answer the contentions raised in relation to any further sums which may have been provided.
On the available evidence I consider that I am not able to make a finding that the money provided by the father’s mother is a loan. I say so for the following reasons:
(a)the mother asserts that it was not until the commencement of these proceedings that the father brought to her attention that the money provided by the father’s mother was a loan. I accept that assertion;
(b)the mother was not cross-examined on the assertions made in relation to her passport and bank account names, her presence in Country F at the asserted time of the signing of the Agreement Contract or whether she had knowledge that an Agreement Contract was going to be or had been signed;
(c)there are no formal affidavits of translations. The mother disputes that the documents were translated by an accredited translator and questions the legitimacy and accuracy of the documents;
(d)I am not satisfied that the “Agreement Contract” was entered into on the date or the circumstances asserted by the father and the person contending to be a lawyer; and
(e)there is no evidence from the father’s mother in relation to these matters.
Accordingly for the purpose of the asset pool, I do not include any money given by the father’s mother to the parents as a joint liability. However I take such money into account otherwise in these reasons.
ADJUSTED NET ASSET POOL
Having regard to the above determinations, the net asset pool referred to in paragraph 183 of these reasons is adjusted to $22,088.86 being $66,063.89 less the ATO HECS HELP debt at $43,975.03.
JUST AND EQUITABLE TO MAKE AN ORDER
I am satisfied that it is just and equitable to make an alteration of property interests. The parents were in a marriage for some 11 years. They now both wish to put an end to their financial relationship. They agree there should be an adjustment of their interests but they disagree on what the adjustment should be. They do not desire to have the common use of the monies in the trust account which derives from their previous common use of the Suburb C property. Unless the Court intervenes there will remain a dispute as to distribution of the proceeds of sale of the Suburb C property.
CONTRIBUTIONS
The parents had nominal assets at the commencement of the marriage.
The parents lived rent-free with the mother’s parents for two months when they first commenced cohabitation.
At the time of marriage the father was not working. During the marriage until 2012 he was employed in a variety of jobs. In or around 2013 the father started his business of buying and selling cars. Since in or around 2010 the father had begun purchasing unregistered vehicles and repairing them on a part-time basis.
Customarily the father would purchase cars at auction and register them in the mother’s name. The mother has been issued impoundment notices and fines arising from cars having been registered in her name. The issuing of impoundment notices and fines as a result of cars being registered in her name has caused the mother additional costs and hardship in dealing with such matters.
The mother asserts that the car business was not profitable. The father asserts otherwise deposing that he would turnover approximately 20 unregistered vehicles per year with a profit of $1,000.00 to $2,000.00 per vehicle[103] and 9 to 10 run-down vehicles per year with a profit of $3,000 to $5,000.00 per vehicle and that he would otherwise sell parts and tyres and perform mechanical work on other people’s vehicles.[104] The father asserts that between 2009 and 2013 he was earning approximately $57,200.00 per annum.[105]
[103] Father’s affidavit filed 13 August 2021, paragraph 69.
[104] Father’s affidavit filed 13 August 2021, paragraph 70.
[105] Ibid, paragraph 68.
Save for two short periods of maternity leave until she commenced the family business in 2016 the mother worked full time six days per week. The father deposes she was earning around $41,600 per annum in her major role before the family business. The mother resigned in 2016.
The mother established the family business at the Suburb C property in early 2016. The father acknowledges that the mother was essentially in charge of the business. There is no evidence before the Court in relation to the income derived from the business. The father asserts that when he was not assisting the mother he was otherwise at home repairing cars.
The umbrella company of the business terminated the mother’s services in late 2018 after the father attended the head office demanding they take a lesser percentage and to allow the mother to work outside of their scope that they were prepared to take on. The mother thereafter ceased working.
The Suburb C property was purchased in October 2014 in the mother’s sole name by way of a mortgage, the D Company loan and the money from the father’s mother. The mother asserts that a further loan was obtained from her friends in the sum of $2,000.00, which the father denies, and an advance from her employer of approximately $2,000.00, which the father admits.
Post-separation the mother has been responsible for the joint liabilities which are in her sole name.
Pursuant to orders made on 25 February 2020 the Court ordered the sale of the Suburb C property. The mother deposes that it took a great deal of effort and intervention on her part to board up and recover possession of the Suburb C property after the separation. The father was incarcerated on two occasions before settlement.
Settlement of the sale of the Suburb C property occurred in early 2020. The net proceeds of $101,937.83 was deposited into the mother’s solicitor’s trust account.[106]
[106] Mother's affidavit filed 26 July 2021, paragraph 75.
On 29 April 2020 the Court made orders providing for $10,000.00 to be released to the mother by way of part property settlement. The mother has not yet chosen to have that sum released to her. It remains in the trust account.
On 29 March 2021 an order was made for the cost of the father’s psychiatric assessment, $3000.00, to be paid from monies held in the trust account.
The sum of $98,009.60 takes all those matters into account.
The family appears to have struggled financially. No doubt the father’s use of cannabis and daily use of methamphetamine was a drain on the family’s funds. At the time of settlement, arrears of Council rates, fines and charges in the sum of $8,409.22 had accrued which were paid from the sale proceeds. Additionally prior to settlement the mother with the assistance of the T Organisation managed to have an outstanding Water account in the sum of $7,964.53, an outstanding Electricity account in the sum of $3,040.92 and an outstanding Gas account in the sum of $562.70 written off.[107]
[107] Ibid, paragraph 76.
The parents financial difficulties started early in the marriage. In or around 2009 and 2010 both the mother and father were declared bankrupt. They are now discharged from their bankruptcy. The mother asserts that the parents’ inability to pay for their expenses arose from the father’s lavish lifestyle, his spending money on expensive clothes, consumer goods and multiple cars as well as on drugs. The father asserts it was because they both had a number of debts which they could no longer afford to repay.[108]
[108] Father’s affidavit filed 13 August 2021, paragraph 79.
It is not surprising therefore that the parents were required to draw down on the mother’s superannuation whether it was used for the father’s personal expenses or otherwise for the benefit of the family.
The mother asserts that the husband had her draw down and transfer to him a total of $36,777.57 from her two superannuation funds to support his lifestyle, buying cars, jewellery, consumer goods and drugs.[109] The father asserts that only $7,600.00 was drawn down in order to pay for a solar system.[110] Annexure “F-16” to the mother’s affidavit shows that the mother’s superannuation funds were drawn down in the sum asserted by her. I am satisfied that the sum of $36,777.57 was used during the course of the marriage. There is no evidence to support that the mother still retains any of those funds.
[109] Mother's affidavit filed 26 July 2021, paragraph 77.
[110] Father’s affidavit filed 13 August 2021, paragraph 83.
In or around 2017 the father started a business. He would travel overseas, purchase stock for the business at low cost and then sell them in Australia and purchase some stock from auctions in Australia.
E Pty Ltd was created to run the family business but was never used for that purpose. The father used E Pty Ltd to obtain trade number plates for his business of buying and selling cars. The mother resigned from E Pty Ltd in late 2020. She is unaware of the nature and extent of the liabilities which were accruing in her name and/or in the name of E Pty Ltd.
At the time of separation there were a number of vehicles of the father’s car business situated at the Suburb C property. The Suburb C property was not occupied by the mother nor the father, he being incarcerated on two occasions prior to the sale of the Suburb C property. The Council confiscated six cars. The father asserts that he estimates the loss of those vehicles at $52,000.00. The mother contends that she does not know what has happened to the proceeds of those car sales. The father says that the mother told the Council that she did not want the vehicles and that they can now no longer be reclaimed.
The mother contends that the remaining cars were either stolen or commandeered by the father’s associates, seized or impounded. The mother wishes to have nothing to do with recovering any such vehicles given the extensive history of violence. She is concerned that should she engage with the father’s associates that the father may learn of her whereabouts. It is apparent that the father does know who has some of the cars as can be gleaned by two emails he sent the mother on 23 September 2019 naming the persons and the cars they took.[111]
[111] Annexure “F-7” to the Mother's affidavit filed 26 July 2021; Annexure “F-8” to the Mother's affidavit filed 26 July 2021.
The father asserts that in excess of $319,000.00 worth of goods, including eight cars that were “stolen”, had been removed from the Suburb C property whilst he was not living there. The father contends that the mother to date has not been co-operative in assisting him making insurance claims in relation to the goods taken from the Suburb C property.
It is sensible therefore in relation to the “stolen” cars and other goods that the parents have agreed to an order that the mother authorise the father to make such enquiries and/or claims in respect of the Suburb C property, and any motor vehicles removed from the Suburb C property, and the father retain any payment arising out of any such claim(s).
The father’s mother came to Australia between mid-2012 and late 2013. She assisted with the caring of X during the day when the mother was at work. From early 2014 X attended child care five days per week. When the mother commenced the family business in or around early 2016, X had commenced school and Y stayed at home with the mother.
In relation to Y, the father has done little hands on parenting. After being ejected from the hospital the father did not return to the hospital. The mother stayed with her parents for two and a half weeks after she left the hospital and sometime after Y was born the father went to Country F for six weeks to start his car parts import/export business. The father has undertaken no parenting or homemaking tasks for Y since separation.
The father asserts that he was X’s primary caregiver until on or around 2016 when the mother commenced the family business. Lest it be forgotten that the father was using illicit substances before X was born, first cannabis and then methamphetamine commencing in 2011. His mother assisted in the care of X between mid-2012 and late 2013 but thereafter X attended full time day care. The father was a chronic user of drugs after 2016 and he travelled overseas for his other business and car parts business. The father has done no parenting or homemaking tasks for X since separation.
Post separation the mother has performed all of the parenting and homemaking duties for the children. Her task has been made more difficult given that the stalking conduct and behaviour of the father has caused the children to be uprooted on many occasions.
There is no doubt that the parents received EUR€13,418.89 from the father’s mother in the sum of around AUD$22,000. However there have also been injections of funds from third parties on behalf of the mother in addition to her contribution by way of her income.
The mother asserts that at the time of marriage, the parents bought a car from a friend of the mother’s mother for a price somewhere in the order of $2,500 to $3,000.00 by instalments in the sum of $500.00. The car was stolen. The father refused to make any further payments. The mother’s mother paid her friend the balance of the purchase price.[112] No challenge was made to this evidence of the mother.
[112] Mother's affidavit filed 26 July 2021, paragraph 49.
The mother asserts that in or around 2010 the father initially purchased a car for the mother’s father after obtaining $12,000.00 from him. However after the father and her father argued and the father refused to give the mother’s father the car. The father sold the car to a third person but did not return the funds to the mother’s father and instead retained the proceeds.[113]
[113] Ibid, paragraph 52.
The father denies that the mother’s father provided any such funds. For the reasons referred to in paragraph 69 of these reasons I prefer the evidence of the mother.
In or around 2012 the mother’s mother gave the mother gold jewellery. The parents sold the jewellery for $5,000.00 and used the funds to start the father’s car parts business in 2013.[114]
[114] Ibid, paragraph 55.
In or around early 2013 a friend of the mother’s father lent the father $10,000.00. The mother repaid $4,000.00 to the friend before separation. The mother is of the belief that the father has not repaid any of the balance.[115]
[115] Ibid, paragraph 56.
If the money provided by the father’s mother is treated as a gift I consider on balance that the financial contributions made by the parents during the marriage both by way of earnings and otherwise were approximately equal.
I am satisfied that post separation the wife has made the greater financial contribution by way of her financial support of the children, the servicing of liabilities, having joint debts written off, regaining possession of the Suburb C property and making it ready for and arranging its sale. I place no weight on the father’s complaint about the sale price, his inability to better the property before sale and his offer to pay the wife rent given the circumstances in which the Suburb C property was left vacant.
I find that the mother’s homemaking and parenting roles were greater than those of the father during the marriage and continue to be far superior to that of the father post-separation.
On assessing all of those matters I am of the view that overall the mother’s contributions are greater than those of the father.
RELEVANT FACTORS PURSUANT TO SECTIONS 79(4)(d)–(g) AND 75(2)
The father is 35 years of age. He has been diagnosed with a major depressive disorder, a chronic medical condition and high blood pressure. He manages these health issues through diet and medication.
The father is now self employed in his business known as U Company. He presently earns approximately $2,500.00 per week from his business. He told the Court that he earns around $11,000.00 per month from which he has to pay his two workers.[116] The father was able to accumulate savings from his income in the sum of $18,000.00 in four months. The father earns an income which enables him to have a substantial savings ability. The father did not assert that his business would cease doing well. He said “If you’re willing to find business, you will find”.[117]
[116] Transcript 25 November 2021, p.105.
[117] Ibid, p.174.
The father does not pay child support. He has made approaches to the mother via her solicitor to pay. He is prepared to pay the mother up to $8,000.00 per month.[118] However to date the father has not paid anything. He told the Court that unless there was an agreement between him and the mother then it “would be a breach of an – an order”.[119]
[118] Ibid, p.104.
[119] Ibid, p.112.
Pursuant to these reasons the children will not be spending any time or have any communication with the father.
The mother is 34 years of age. She is not in paid employment. The children will remain living with her. She is studying part-time. She anticipates being able to work on a part time basis. She has other qualifications as referred to in paragraph 192 of these reasons.

The mother receives a fortnightly Centrelink payment. Centrelink deducts amounts owing for outstanding debts and fines and the balance the mother receives is $287.90 per fortnight. She also receives Family Tax Benefits A & B and Rent Assistance totalling $710.64 per fortnight.
The mother does not receive child support. She is concerned that the father has no likely means upon which she can rely on him to pay child support. However, even if the father begins to pay child support or the mother accepts money from the father I am still satisfied that the mother should receive all of the trust moneys given the small net amount she will receive.
Y is 4 years of age. The mother has many more years during which she will be required to provide for the children’s practical day to day care and their emotional and psychological needs. She will not have any assistance from the father unless the parenting orders I have determined are varied in the future. The Court was not advised as to how much longer the mother and children will have accommodation provided to her by P Service. Unless the father contributes financially for the children the mother will also be solely responsible for all of the financial needs of the children. The mother does not have her own car but has the use of her parents’ car.
The mother’s superannuation funds were drawn down to nil and expended during the marriage. She therefore has no superannuation entitlements which she can access on hardship grounds to gain some financial relief.
Taking into account all of these matters I find that the mother has overwhelmingly greater future needs than that of the father.
JUSTICE AND EQUITY TO THE PARENTS
It is important to consider the real impact of the proposed adjustment in money terms and not simply in percentage terms. I propose to take an overall holistic approach in relation to the percentage and distribution of the asset pool.
In Dickons & Dickons [2012] FamCAFC 154 the Full Court observed:
24.There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2) (emphasis added). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
25.Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “…giving over-zealous attention to the ascertainment of the parties’ contributions…” (Norbis v Norbis (1986) 161 CLR 513 at 524) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
26.The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
I take an overall holistic approach for the following reasons:
(a)the value of net assets available for adjustment is extremely small;
(b)there are unknowns in relation to what compensation/insurance monies the father may obtain by pursuing claims in relation to the Suburb C property and the cars;
(c)there is a large quantum of liabilities which will remain the responsibility of the wife;
(d)the mother overall has made superior contributions to those of the father;
(e)the mother has greater future needs than those of the father and those needs are substantial; and
(f)the father has a proven significant savings capacity.
The net asset pool is in the sum of $22,088.86.
The mother seeks to retain responsibility for liabilities totalling $69,261.14 (D Company loan, NAB credit card, Centrelink debt, Impoundment Notice and the HECS HELP debt). The mother seeks to continue to pay the liabilities by instalments.
In all of those circumstances I am of the view that at the very least the mother should receive all of the net asset pool. For the mother to receive net $22,088.86 she would need to receive $91,350.00 ($22,088.86 plus $69,261.14). That sum equates to approximately 93 percent of the trust money.
The remaining $6,659.60 of trust money not yet distributed represents the sum of the two Victoria Police Infringements. The father has the income earning and savings capacity to discharge the Victoria Police fines in a modest period of time.
For all of the above reasons I consider that the mother should receive all of the trust money. She would then receive net $28,748.46, being $98,009.60 less $69,261.14. The dollar difference between 93 percent and 100 percent of the trust money is small. However taking into account the mother’s financial circumstances and that she will have the sole care of the children, even the minimal dollar difference will be of benefit to her.
If I had been inclined to not include all of the HECS HELP debt I nevertheless consider the whole debt as a relevant factor given that the mother will be retaining and bearing responsibility for all of it. In those circumstances I am still satisfied that it is just and equitable for the mother to receive all of the trust money. The mother continues to improve herself to enable her to financially provide for the children. [120]
[120] Family Law Act 1975 (Cth) s 75(2)(o).
I have not ignored the money from the father’s mother. As I am not able to find it was a loan, I am of the view that the father’s mother’s money carries no greater weight than the funds injected by third parties on behalf of the mother in the assessment of contributions.
If I had been inclined to find that the money from the father’s mother was a loan, I am still satisfied that it is just and equitable for the mother to receive all of the trust money. If the father’s mother was repaid $22,000.00 then the mother would only have net $6,748.46 ($98,009.06 less ($22,000.00 plus $69,261.14). If the father’s mother was repaid $30,000.00 then the mother would be in deficit of $1,251.54.
The father has a savings ability of $18,000.00 in four months. He has the capacity to repay his mother in a reasonable time frame.
I also consider as a relevant circumstance that mother has privately funded these legal proceedings whereas the father has obtained legal representation at no cost to him.[121]
[121] Ibid.
Property orders are made as set out.

I certify that the preceding two hundred and sixty-eight (268) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Boymal.
Associate:
Dated: 22 July 2022

File number(s):	MLC 1282 of 2020
Judgment of:	JUDGE BOYMAL
Date of judgment:	22 July 2022
Catchwords:	FAMILY LAW – Parenting – sole parental responsibility to mother – live with mother – no time with father - Property – small asset pool – significant liabilities – adjustment of interest
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AB, 60CA, s 60CC(2A), 61DA, 65D(1), 65DAA, 75(2), 79(4)
Cases cited:	Amador & Amador [2009] FamCAFC 196 Blinko & Blinko [2015] FamCAFC 146 at [83] Dickons & Dickons [2012] FamCAFC 154 Eastley & Eastley [2022] FedCFamC1A 101 at [26] Fitzwater & Fitzwater (2019) FamCAFC 251 Grella & Jamieson [2017] FamCAFC 21 Hickey & Hickey & Attorney-General for the Commonwealth of Australia) (2003) FLC 93-143 Isles & Nelissen [2022] FedCFamC1A 97 McCall & Clark [2009] FamCAFC 92 Slater & Light [2013] FamCAFC 4 at [37] Stanford & Stanford (2012) 247 CLR 108
Division:	Division 2 Family Law
Number of paragraphs:	268
Date of hearing:	24 & 25 November 2021
Place:	Melbourne
Counsel for the Applicant:	Ms Foong
Solicitor for the Applicant:	McCracken & McCracken
Counsel for the First Respondent:	Mr Oldham
Solicitor for the First Respondent:	Vernon Da Gama and Associates
The Second Respondent:	No appearance
Counsel for the Independent Children's Lawyer:	Ms Damon
Solicitor for the Independent Children's Lawyer:	Westminster Lawyers Pty Ltd

MLC 1282 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS FARIH Applicant
AND:	MR TANNOUS First Respondent MS QURESHI Second Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE BOYMAL
DATE OF ORDER:	22 JULY 2022