Haughton & Brickley (No 2) - [2024] FedCFamC2F 1721

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Haughton & Brickley (No 2) [2024] FedCFamC2F 1721

File number(s): NCC 1016 of 2022

Judgment of: JUDGE BETTS

Date of judgment: 3 December 2024

Catchwords:
FAMILY LAW – Parenting – three children, aged 15, and two twins aged 10 – extremely high conflict – where the siblings are separated – where both parents have engaged in “psychological warfare against their ex-partner at the detriment of their children” – where both parents have involved the children in adult issues and the Court proceedings, engaged in open denigration of the other in front of the children, attempted alienation/alignment of one or more of the children, verbal and psychical abuse on one another, emotional neglect of the children – where the Court holds concerns about both parents and their attitude – where the Court considers that the mother should be allowed to relocate – where the Court considers that the twin girls should remain living with the mother and only have electronic communication with the father – where the Court considers that the eldest boy should continue to live with the father and spend time with the mother in accordance with his wishes – electronic communication between all three children – best interests.

FAMILY LAW – Property – where the parties were together for 22 years – where the matrimonial assets are modest – jointly owned home with modest equity – where there are various items and vehicles – superannuation splitting order – just and equitable.

Legislation:
Evidence Act 1995 (Cth)

Family Law Act1975 (Cth), Part VII and Part VIII

Cases cited:
Adamson & Adamson (2014) FLC 92-622

Adler & Parrow [2024] FedCFamC1A 192

AMS & AIF (1999) 199 CLR 160

Haughton & Brickley [2022] FedCFamC2F 1253

Isles & Nelissen (2022) FLC 94-092

M & M (1988) FLC 91-979

U & U (2002) 211 CLR 238

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 2 Family Law

Number of paragraphs: 374

Date of last submission/s: 16 August 2024

Date of hearing: 4 - 6 March 2024 & 14 - 16 August 2024

Place: Newcastle

Counsel for the Applicant: Mr Bithrey

Solicitor for the Applicant: Clarity Lawyers

Solicitor Advocate for the Respondent: Mr White

Solicitor for the Respondent: Powe & White Family Lawyers

Counsel for the Independent Children’s Lawyer: Ms Court

Solicitor for the Independent Children’s Lawyer: Grace Family Law Solicitors

ORDERS

NEC 1016 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HAUGHTON

Applicant

AND:
MR BRICKLEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BETTS

DATE OF ORDER:

3 DECEMBER 2024

THE COURT ORDERS THAT:
PARENTING
1.By consent, the Father have sole parental responsibility for X born in 2009.
2.By consent, X live with the Father.
3.By consent, X spend time and communicate with the Mother in accordance with his wishes.
4.The Mother have sole parental responsibility for Y and Z born in 2014.
5.Y and Z live with the Mother.
6.The Mother be at liberty to relocate with Y and Z to the Region B Area of NSW.
7.X spend time and communicate with the Mother in accordance with his wishes.
8.Y and Z spend no physical time with the Father.
9.X, Y and Z have telephone/video call communication with each other and Y and Z have telephone/video call communication with the Father as follows:
(a)X, Y and Z have telephone/video call communication with each other each alternate Tuesday between 5.00pm and 6.00pm;
(b)Y and Z have telephone/video call communication with the Father each alternate Thursday between 5.00pm and 6.00pm;
(c)Y and Z have telephone/video call communication with X and the Father on Christmas Day, Father’s Day and Easter Sunday from 9.00am to 10.00am;
(d)Y & Z have telephone/video call communication with the Father and X on Y and Z’s birthday from 5.00pm to 6.00pm and with X on his birthday from 5.00pm to 6.00pm.

10.The parties be restrained from:
(a)Using physical discipline against the children;
(b)Denigrating the other party in the hearing or presence of the children;
(c)Discussing any issues related to parental conflict or the family law proceedings in the hearing or presence of the children.
(d)Showing any Court documents, legal correspondence or legal documents to the children or putting them in any place that the children could read or notice them.
(e)Recording each other at any time.

11.Both parents be able to obtain from the children’s school and health providers all documents and information ordinarily provided to parents. For the purpose of this Order, the Mother is to ensure that Y & Z’s school and treating GP are provided with a copy of these Orders, and the Father is to ensure that X’s school and treating GP are provided with a copy of these Orders.
12.The parents keep each other informed in writing (by text, email or use of an agreed parenting App) of their contact details and any illness or injury suffered by any of the children requiring professional medical attention other than by a GP.
13.In the event that X attends at the Mother’s home, she is to:
(a)Notify the Department of Communities and Justice NSW within twenty-four (24) hours;
(b)Ensure that, insofar as she is able to:
(i)X is not left alone in the company of either of Y or Z unless she or another adult is present and able to witness their interactions;
(ii)X is prevented from accessing adult sexual material over the internet while in her care, and that she has necessary safeguards/restrictions in place.

14.The Independent Children’s Lawyer is directed to forward a copy of these Reasons and Orders to the Commissioner of Police (NSW) and to the Department of Communities and Justice (NSW) within fourteen (14) days.
15.At the first convenient date, the Court Child Expert and Independent Children’s Lawyer are to jointly meet with the children at the Registry of the Newcastle FCFCOA to explain these Orders.
16.The Court will hear from the parties in relation to the costs application brought by Independent Children’s Lawyer.

PROPERTY
17.Within fourteen (14) days, the parties shall do all acts and things and sign all necessary documents to effect the sale of the Suburb C property and for that purpose the following shall apply:
(a)The property shall be listed for sale with such real estate agent as is agreed between the parties. For that purpose, within seven (7) days the Applicant Wife will nominate a proposed panel of three real estate agents in writing and the Respondent Husband, in writing, select one from the panel within seven (7) days thereafter. In the event the Respondent Husband does not nominate a real estate agent within this timeframe, the Applicant Wife may nominate one of the real estate agents from the panel;
(b)The conveyancer of the sale shall be attended by such solicitor or conveyancer as is agreed between the parties. For that purpose, within seven (7) days the Applicant Wife will nominate a proposed panel of three solicitors or conveyancers in writing and the Respondent Husband will, in writing, select one from the panel within seven (7) days thereafter. In the event the Respondent Husband does not nominate a solicitor or conveyancer within this timeframe, the Applicant Wife may nominate one of the solicitors or conveyancers from the panel;
(c)The list price of the Suburb C property shall be such amount as is agreed between the parties and failing agreement within seven (7) days the list price for the property shall be nominated by the real estate agent;
(d)The sale price of the property shall be such amount as is agreed between the parties taking into account the recommendation of the real estate agent;
(e)The parties are to co-operate in every way with the real estate agents in relation to the marketing of the property for sale including making the keys readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of the inspection by any prospective buyer;
(f)That upon agreement being reached for the sale of the Suburb C property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation upon its submission to them by their agent or solicitor;
(g)In the event that contracts for sale of the Suburb C property are not exchanged within four (4) months of the date of listing for sale by private treaty, unless otherwise agreed between the parties, then the parties shall do all acts and sign all documents as are necessary to sell the property by auction and the following shall apply:
(i)The Suburb C property shall be listed for sale by auction within a further three (3) months;
(ii)The parties shall execute all documents requested by the auctioneer for sale of the Suburb C property by auction;
(iii)The reserve price of the Suburb C property shall be such amount as is agreed between the parties and failing agreement as nominated by the agent;
(iv)The parties are to co-operate in every way with the auctioneer in relation to the sale by auction including allowing inspection of the Suburb C property at all times reasonably requested by the auctioneer and ensuring that the property is clean, neat and in good order at the time of any inspection and on the day of auction;
(v)The auction sale price of the Suburb C property shall be any amount in excess of the reserve price but in the event of the reserve price not being reached the sale price of the property shall be such amount as is agreed between the parties or failing agreement any offer received after the auction to buy the property at a price that is at least 98% of the reserve price;
(vi)In the event that Contracts for the sale of the Suburb C property are not exchanged within seven (7) days of the first or any subsequent auction the parties shall cause a further auction of the Suburb C property to be held within three (3) months after the date of the prior auction and for that purpose the provisions of the above auction Order shall apply, with the reserve price to drop on each subsequent auction by 2%.

18.Upon completion of sale of the Suburb C property the proceeds of sale shall be paid as follows:
(a)To discharge the existing D Bank mortgage (dealing number …), that being loan account number …77 and …45;
(b)Payment of any adjustments required to council and water rates;
(c)Payment of agent’s commission and advertising or other expenses payable on the sale;
(d)Payment of the legal costs and outlays relating to the sale;
(e)The balance (“A”) to be divided:
(i)To the Wife an amount calculated as follows:
60% x (A+$7,331+$150,480);

(ii)The balance to the Husband.

19.Simultaneously with settlement of the sale, the Applicant Wife shall do all acts and things and sign all documents necessary to cause the caveat to E Pty Ltd to be removed at the cost of the Applicant Wife.
20.Pending the settlement of the sale of the Suburb C property:
(a)The Wife shall have sole use and occupation;
(b)The Wife is hereby restrained from entering and/or removing any items from the ‘shed’ at the former matrimonial home;
(c)
(i)The Husband shall be entitled to all contents and possession in the ‘shed’ and garage located on the property of the former matrimonial home including but not limited to the items referenced in the valuation conducted by F Company dated 25 July 2023.
(ii)Between the hours of 9.00am and 4.00pm on the second Saturday and Sunday after the making of these Orders, the Husband can attend the property of the former matrimonial home for the purposes of removing all items in the ‘shed’ and garage and for this purpose the Wife shall ensure that she is not present or in the vicinity of the home. The Husband is not to enter the home.
(iii)The Wife shall be entitled to all of the contents located within the former matrimonial home.

(d)The Husband is to be responsible for the minimum mortgage repayments for both mortgages, and the home insurance.

21.Within seven (7) days, the parties shall equally divide any balance remaining the joint bank accounts between themselves and the parties shall do all acts and sign all documents as are necessary to close the accounts.
22.Within fourteen (14) days of the date of the Orders, the parties shall do all acts and sign all documents as are necessary to transfer to the Applicant Wife all of the Respondent Husband’s right, title and interest in Motor Vehicle 1, registration number …, at the expense of the Applicant Wife.
23.In accordance with paragraph 90XT(1)(b) of the Family Law Act1975:
(a)Ms Haughton (or Ms Haughton’s administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid the specific percentage out of Mr Brickley’s interest in Super Fund 1;
(b)Mr Brickley’s entitlement (or the entitlement of such other person to whom a payment may be made out of Mr Brickley’s interest) in Super Fund 1, is correspondingly reduced by force of this Order; and
(c)The percentage specified for the purposes of this Order is 50%.

24.The trustee of Super Fund 1 do all such acts and things and sign all such documents as may be necessary to:
(a)Calculate, in accordance with the requirements of the Family Law Act1975 and the Family Law (Superannuation) Regulations2001 the entitlement awarded to Ms Haughton in the immediately preceding clause of this Order;
(b)Pay the entitlement whenever the trustee makes a splitable payment from Mr Brickley’s interest in Super Fund 1.

25.Order 22 has effect from the operative time and the operative time is four (4) days after the date of service of this Order upon the trustee.
26.Orders 22 – 24 bind the Trustee of the Fund.
27.Unless otherwise specified in these Orders:
(a)Each party shall be solely entitled to the exclusion of the other, to all property in the possession of such party as at the date of these orders including any jewellery, furniture, furnishings, shares and motor vehicles;
(b)Moneys 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;
(c)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

28.That:
(a)Each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of these Orders within seven (7) days of being requested to do so;
(b)If either party refuses or neglects to sign or execute and return a document within seven (7) days of a written request to do so then a Registrar of the Federal Circuit Court and Family Court of Australia (Division 2) is hereby appointed under Section 106A of the Family Law Act1975 to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.
(c)At the Registrar’s discretion, the defaulting party shall pay the other party’s taxed costs of and incidental to such request on an indemnity basis.

29.Either party has liberty to apply as to implementation or enforcement of these Orders upon the giving of seven (7) days written notice to the other.
30.The Court will hear the parties as to costs.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
INTRODUCTION:

These are parenting and property settlement proceedings arising out of the breakdown of the marriage between Ms Haughton (“the Wife”) and Mr Brickley (“the Husband”).
The parties were engaged in 1999, married in 2000 and finally separated in April 2022. Their separation was intensely acrimonious and has remained so notwithstanding that two and a half (2 ½) years have since passed.
The parenting proceedings relate to their three (3) children:
·X born in 2009, who is fifteen (15) years old; and
·twin sisters Y and Z born in 2014, both of whom are ten (10) years old.
X was born with a medical condition. He has Attention Deficit Disorder and/or Attention Deficit Hyperactivity Disorder; Oppositional Defiance Disorder and learning disabilities. He has always struggled academically and now lags well behind his peers, with particular problems in literacy and language.
X struggles to regulate his emotions, particularly when heightened, and has a long history of defiant, anti-social and otherwise difficult behaviour. He has run away from home multiple times, on one occasion resulting in a missing persons alert. He can become violent. He has a history of downloading internet pornography and engaging in sexually inappropriate ways with peers which recently brought him to the attention of Queensland Police as discussed later.
X attends G School where he is in Year 9 and sits in a class for emotionally disturbed children; it is the third high school he has attended since separation.
X receives various supports though the NDIS. ‘H Centre’ provide him with speech therapy, Ms J at ‘K Centre’ provides him with behavioural support and he also receives psychological support from various providers. He is prescribed medications.
Z has a medical condition which requires monitoring and likely future surgery. She and Y are otherwise well and are good students. Both are in Year 4 at L School.
The parenting dispute is the major reason for the litigation and took up practically all of the hearing time.
The parental conflict has ‘torn the family in two’. X has ended up living with the Husband and spending very little time with the Wife whereas the girls have ended up living with the Wife and spending very little time with the Husband. Despite recommendations and warnings from various Court Child Experts, and despite Orders, injunctions and warnings from the Court, the parents have failed to shield the children from the conflict but have instead chosen to immerse the children in it. This has adversely impacted X in particular.
Adequately parenting X on his own would be no small task, yet each parent came to Court seeking orders that they be the primary carer for all three (3) children. Sensibly, by the end of the hearing it was common ground that X should stay living with the Husband, that the Husband have sole parental responsibility for X, and that X should spend time and communicate with the Wife in accordance with X’s wishes.

This leaves the future parenting of the girls as the major issue. The Wife seeks sole parental responsibility, and liberty to relocate with them from their current home at Suburb C to Town M, in Region B, some ten (10) hours’ drive. She seeks a ‘no time’ order between the girls and the Husband, reasoning that he poses an unacceptable risk of emotional harm to them, and perhaps physical harm. Alternatively, she seeks that the girls spend time with the Husband (and X) for two (2) hours on four (4) occasions per year, such time to be professionally supervised and to occur on an alternating basis either at a McDonalds Restaurant close to the Husband’s home, or at a McDonalds Restaurant close to the Mother’s home. She proposes that there otherwise be regular telephone or video communication between the girls, the Husband and X.[1]
The Husband’s primary position is that the girls should live with him and spend time with the Wife on alternate weekends and for half school holidays. [2] As he works weekends at City O, some five (5) hours’ or so drive away from City P, his proposal relies upon his elderly parents to manage all three (3) children each Friday and over the weekends including Monday mornings if necessary.
In closing submissions, his fallback position was that he spend alternate weekends and half school holidays with the girls on the basis that they not relocate. His final fallback was that, if relocation does occur, he have the girls for half school holidays only.
The ICL supports the relocation and the four (4) annual two (2) hour visits with the Husband at McDonalds. She does not contend that such time be professionally supervised unless X attends in which case she says professional supervision is required given the ICL’s concerns about X’s behaviours and consequent risks to the girls. [3] Both parents take the view that X poses no risks to the girls, and so the Court is required to consider what risks X might pose and what orders, if any, can be put in place to ameliorate those risks.
As will be seen, the unremitting high conflict between the parents is far and away the major risk to the children in this case. It is a risk which requires decisive action. The Family Report Writer was accurate when she described each parent as having engaged in “psychological warfare against their ex-partner at the detriment of their children.” [4] The actions and attitudes of each parent preclude a ‘good’ outcome as opposed to a ‘least worst’ one.
The property proceedings are much more confined. The matrimonial assets are modest and primarily consist of:
·their jointly-owned home at Suburb C which has modest equity and needs to be sold;
·some vehicles, parts, tools and collectible items the ownership of some of which is disputed; and
·the Husband’s superannuation.
The Wife proposes that she receive 65% of the net equity in the home, that he pay her a cash sum equal to half the value of the vehicles, parts, tools and collectible items and that she receive 50% of the Husband’s superannuation by way of a splitting order.
In closing submissions, the Husband proposed that the Wife receive 52.5% of the net equity in the home, that he retain the vehicles, parts, tools and collectible items with no cash adjustment to the Wife, and the 50% superannuation splitting order was conceded.
THE HEARING & MATERIAL RELIED UPON:
Initially listed for three (3) days, the hearing ultimately took six (6). The first tranche of the hearing ran from 4 – 6 March 2024; the second from 14 – 16 August 2024. The Wife was represented throughout by Mr Bithrey of counsel, the Husband by his solicitor Mr White and the Independent Children’s Lawyer (“ICL”) by Ms Court of counsel.
The Wife relied upon: her Case Outline Document filed 01/03/24; her Fourth Amended Initiating Application filed 05/02/24; her trial affidavit filed 05/02/24 & updated affidavit filed 12/07/24; her Fourth Amended Financial Statement filed 05/02/24; and the affidavits of Mr N filed 11/07/23 and Ms Q filed 05/02/24.
The Husband relied upon: his Case Outline Document filed 01/03/24; his Further Amended Response filed on 01/03/24; his trial affidavit filed 20/02/24 & updated affidavit filed 16/07/24; and his Financial Statement filed 01/03/24. [5]
The ICL relied upon her Case Outline Document filed 03/03/24.
Numerous exhibits were tendered which will be referred to as relevant. Mr Bithrey additionally provided the Court with a transcript of some of the Husband’s cross-examination. The parties also agreed that my earlier Reasons in respect of a Review Application should form part of the record: see Haughton & Brickley [2022] FedCFamC2F 1253.
In arriving at a decision I have taken into account all of the above material, the oral evidence and submissions.
Before proceeding further, I observe that the conflict between the parents has coloured the evidence of both of them. Put simply, neither of them were particularly reliable witnesses. Each blamed the other for the chaotic and dysfunctional co-parenting relationship that has existed since separation. Both of them deflected responsibility for their own behaviours onto others.
As witnesses, both parents were needlessly argumentative and their mutual contempt was palpable. The Wife’s demeanour was passive-aggressive. [6] The Husband came across as a bully. Both of them were determined to ‘get their own way’ in the witness box as much as possible. For instance, neither was willing to give simple direct answers to any questions that they knew might cast them in an unfavourable light. The Wife always managed to cast herself as the ‘victim’ even where she was in the wrong. The Husband had the same victim mentality, not just in relation to the Wife but also in relation to Police and authority figures.
Mr N gave evidence by videolink. He was a broadly reliable witness, whose character and reliability were unfairly impugned by the Husband, who was once his former friend and confidante. Mr N freely admitted to having undertaken alcohol rehabilitation in 2022. But the irony is that he and the Husband’s mutual use and abuse of alcohol over the years had been a feature of their interactions. I accept Mr N’s evidence that he had personally witnessed the Husband become aggressive when intoxicated and that, for this reason, he did not go to pubs with him. I also accept Mr N’s evidence that the Husband made misogynistic comments about women, particularly women in authority including his female supervisor in the defence force who he described as being “on her rags”.
I accept the evidence of Ms Q, who is the Wife’s niece.
I was assisted by the evidence of the Family Report Writer, Dr R. With respect, her opinions were child-focussed and helpful.
The Husband chose not to call either the paternal grandfather or the paternal grandmother. Both had relevant evidence to give as to parenting and property issues. The paternal grandmother had in fact filed three (3) earlier affidavits in the proceeding and had been a direct witness to various relevant events, conversations and interactions particularly involving X.
In closing, I observe that there were many disputed facts. The Court does not need to resolve all of them, but to the extent that findings have been made I am mindful of the onus of proof and of s 140(2) of the Evidence Act 1995 (Cth) where applicable.
PART I – THE PARENTING PROCEEDINGS
THE LAW:
These parenting proceedings are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”) as it stood prior to the recent legislative amendments.
Pursuant to s 60CA, the Court must arrive at parenting orders which are in the “best interests” of the child concerned. In arriving at that determination, s 60CC of the Act prescribes the mandatory primary and additional considerations to which the Court must have regard:
Primary considerations
(2)      The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)      Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)       the nature of the relationship of the child with:
(i)        each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)       to spend time with the child; and
(iii)      to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)        either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)       the capacity of:
(i)        each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)       if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)        the nature of the order;
(ii)       the circumstances in which the order was made;
(iii)      any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)       any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)      any other fact or circumstance that the court thinks is relevant.
The primary consideration in s 60CC(2)(b), as further explained by s 60CC(2A), requires the Court to consider potential risks to children that may arise from the making of a parenting order. In M & M (1988) FLC 91-979, the High Court held that a parenting order ought not be made if such order exposes the child to an “unacceptable risk” of harm; see also the recent Full Court decision in Isles & Nelissen (2022) FLC 94-092.
Section 68B of the Act empowers the Court to grant injunctions that it considers “appropriate” for the welfare of the child. These may include injunctions to protect the child, the child’s parent or caregiver. The injunctions may require that a person stay away from a particular place where a child, parent or caregiver lives, works or attends school.
Section 61B of the Act defines parental responsibility in relation to a child as meaning “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” Pursuant to s 61C of the Act, each of the child’s parents has parental responsibility subject to Court orders.
When making a parenting order, the former s 61DA of the Act imports a rebuttable statutory presumption in favour of the parents having equal shared parental responsibility. Such an order then triggers the statutory pathway set out in the former s 65DAA of the Act which requires the Court, amongst other things, to consider making an order for the children to spend equal time with each parent. In this case, there is no need to further consider s 65DAA as all parties agree that, whatever the outcome, sole parental responsibility for each child should rest in the child’s primary parent.
Relocation cases can pose particular and complex issues. In Zahawi & Rayne [2016] FamCAFC 90 the Full Court (comprising Thackray, Murphy and Austin JJ) made the following observations:
47.All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U & U:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
48.“Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
In Adamson & Adamson (2014) FLC 92-622 the Full Court observed that, following on from the decisions of the High Court in AMS & AIF (1999) 199 CLR 160 and in U & U (2002) 211 CLR 238, there is no requirement for a parent to demonstrate ‘compelling reasons’ for wanting to live in a particular location. The right of a parent to effectively live where he or she wants to, and the freedom of mobility of that parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference. Even then, the interference is legitimate only to the extent necessary to avoid such adverse effects.
The Court is not strictly bound by the competing parenting proposals of each party: U & U (supra). Subject to each party being given procedural fairness, the Court can craft different orders if necessary to meet the best interests of the children in any given case.
RELEVANT CHRONOLOGY:
The parents were each born in 1974 and are now fifty (50) years old.
As noted earlier, their relationship commenced in 1999. As a general statement, the Husband was the breadwinner during the relationship and the Wife was the homemaker, and, when the children came along, the primary parent. For much of the relationship the Husband was working remotely at Town O.
Family violence allegations during the relationship:
While there were no doubt some periods when the parents were reasonably happy together and able to co-parent effectively, those matters were hardly the focus of this trial. Instead, each parent’s affidavit was a litany of complaints about the other. Relevantly, the Wife ran a case that the Husband perpetrated family violence against her from early on; he denies it and accuses her of behaving violently towards him. Each parent accuses the other of being heavy-handed with X on occasions, while denying that they themselves were heavy-handed.
It is convenient to consider the family violence allegations at the outset.
I accept the Wife’s evidence that early on in the relationship the Husband did pressure her to stop working, telling her that his income could support them both. She did stop working after a while in response to his pressure. The Husband did not force her; it was a voluntary decision and she still had access to his income. It is arguable that the Husband’s behaviour constituted ‘family violence’ as defined in s 4AB of the Act but I do not need to make a finding and it is unsafe to do so. On any view, his behaviour was however coercive.
The Wife deposes that:
33.In or around late 1999, we were housesitting at our friend [Mr N]’s place. While we were making out, [Mr Brickley] jammed a [large] torch that he found next to the bed into my vagina passage. This was not consensual I did not know this was going to happen. I immediately got up and left the room and went to the toilet. It hurt and I was bleeding. I did not report this incident to anyone at the time as I was extremely embarrassed. [Mr Brickley] and I were not long engaged and I didn’t feel comfortable telling anyone intimate details of our sex life.
The Wife first pressed these allegations after the parents separated. The Husband vehemently disputes that this event occurred (“the torch allegation”) and I will return to it later.
I accept the Wife’s evidence that in or around 2008 when she was pregnant with X, the Husband became intoxicated and they got into an argument when he would not turn the music down so she could sleep. He pushed her onto the bed, sat on her stomach and tried to cover her nose and mouth, telling her to “shut up!”. Eventually she freed herself and went outside the house where she hid for about half an hour before he came out and yelled at her to come back inside, which she did. I accept her evidence that she brought the matter up the next day and he claimed not to recall the event. In all likelihood he did recall it but was unable or unwilling to take responsibility. [7]
The Wife alleges that there were approximately five (5) other occasions during the relationship when the Husband put his hands over her face or mouth to stop her talking or breathing. She alleges that on one such occasion she made a comment about a car that he didn’t agree with and so he put his hands over her mouth and told her to “keep your opinions to yourself.” I broadly accept the Wife’s evidence in this respect; the exact number of times the Husband covered her face or mouth does not matter so much as the fact that he did so.
The Wife alleges that when she was in hospital after X’s birth, the Husband made a callous remark to her to the effect that as she had now given birth, she could hand X over to the paternal grandmother to be raised. As a one-off comment made in anger, and not knowing the context, it could be seen as poor behaviour on his part but falls short of meeting the definition of family violence per se. More significant is that when the Wife became upset, a nurse chastised the Husband and threatened to ask security not to let him into the maternity ward, and he laughed at her – saying she had no right to speak to him that way. He behaved exactly as Mr N had observed: see [28] herein.

In 2011 the Wife tragically miscarried twins. The parties put the ashes in the bedside drawers. The miscarriage was a traumatic event for both parties and the Wife in particular experienced depressive symptoms afterwards, for which she was briefly medicated. She claims to have made a full recovery. The Husband disagrees and says that after the miscarriage the Wife became ‘angry at the world’ and would become verbally and physically violent towards him during arguments. He says that on occasions she swore at him, threw household items at him, punched and hit him, and even assaulted him with an object . The Wife denies that she was ever violent, portraying the Husband as the sole aggressor.
The truth lies somewhere between the two (2) versions. The Wife was clearly impacted by the miscarriage; her own psychiatrist observed an anxious attachment at that time between her and young X. I am satisfied that from time to time thereafter she did behave in a volatile, and at times violent, way towards the Husband. On the weight of the evidence I am satisfied that both parents used physical discipline on X, particularly as he got older and his behavioural issues emerged.
By 2017 X was suffering from separation anxiety and by 2018 he would become unsettled when the Husband went away for work. [8] His attachment to the Wife does not seem to have been a fully secure one.
In or about 2018, the Husband perpetrated high level family violence against the Wife. On this occasion, she was updating her resume on the family computer and the Husband objected to her doing so. Telling her she was not getting a job and that she was time-wasting, he slapped her across the face and grabbed her around the throat. All of the children witnessed the assault and afterwards X got an ice pack for the Wife to put on her face.
The Wife’s trial affidavit deposes that:
39.In or around March 2019, [Mr Brickley], [X] and I were in the garage. I had just buckled the girls into their car seats in the car to take the children to school. An argument broke out between [Mr Brickley] and I and [Mr Brickley] hit me in the back with a large metal [object], which [X] witnessed. The [object] scratched my back and I felt the pain immediately. [Mr Brickley] returned to the house. [X] and I got into the car and I leant over the steering wheel as [X] applied band-aids to my back from the first aid kit we kept in the car. This incident was reported to DCJ (formerly FACS) by [Ms J], the Deputy Head of Campus of [X]’s school at the time ([S School]) as [X] disclosed the incident to a friend at school. [Mr Brickley] said to me words to the effect of, “Don’t say anything to them [DCJ] about this or you will lose the kids.” I denied the incident occurred to DCJ as I was petrified we would lose the children. [Mr Brickley] was furious that the school reported the incident and he said to [X] and I, “I am going to set [Ms J] on fire and drag her behind the car.” I reported what [Mr Brickley] had said to [City T] Police via telephone, but they said they couldn’t, “do anything about it as it wasn’t a direct threat to [Ms J].” [Ms J] is now [X]’s behavioural therapist.
DCJ is the NSW child welfare authority. [9] Their records confirm X’s disclosure was made to the school, and that DCJ interviewed both parents who denied the event. In the witness box the Husband maintained that the event never happened, that X was essentially ‘making up stories’ which, to be fair, he does have a history of doing. On the weight of the evidence, I consider that X’s disclosure was founded upon a real event. I accept that the Husband threatened the Wife as she describes and this is why she falsely denied the event to the DCJ.
In mid-2021 someone reported to DCJ that X had allegedly disclosed his father drinking a lot of alcohol and holding him around the throat. [10] There was no investigation and the issue was not specifically explored at the hearing. I make no finding beyond observing that the parents’ relationship was not in a good state at the time; that the Husband had a propensity to seek refuge in alcohol, that X was a challenging child to parent; and that it is certainly possible that the event occurred.
Relationship is breaking down:
In December 2021 the parents began sleeping in separate bedrooms. But their relationship was ambiguous. On 21 December 2021 the Wife texted the Husband a “Merry Christmas” photograph of her smiling in a dress in front of the Christmas tree. [11]
The Wife alleges that in mid to late December 2021 she was in bed when the Husband came into the room, asking if she wanted a “quickie”. She said no; he asked if she had her period and she said she did. He pulled up the sheets and went to pull down her pants to see for himself. Crying, she told him to get away. She says she later discussed with her GP how to put a plan in place to protect herself from his unwanted sexual advances. But there is no record of such a discussion in the GP’s subpoenaed notes, despite the Wife disclosing various other matters to her GP. [12]
In the witness box the Wife maintained she was telling the truth; the Husband maintained that the whole event was confected. I accept the Wife’s evidence albeit that she is mistaken about telling the GP. The Wife was not consenting to sex that day and the Husband knew it; his attempt to pull down her pants constituted family violence.
Altercation in early 2022
The Wife’s trial affidavit deposes that:
41. At approximately 6.30pm, [Mr Brickley] and [X] were in the bathroom. I heard [X] screaming and I walked in to find [X] cowering on the ground with [Mr Brickley] leaning over [X]. [Mr Brickley] said, “The little shit just squirted me in the eye with hairspray”. I said, “Give the hairspray to me” and I grabbed it from his hand as [Mr Brickley] was trying to hit [X] with it. [Mr Brickley] replied, “Shut up”. I moved to stand between [Mr Brickley] and [X]. [Mr Brickley] then grabbed me around the throat with both hands and began dragging me out of the bathroom and down the hallway. I screamed “Let go of my head, your hurting me”. I tried to hit [Mr Brickley] in his back and shoulders to make him let go with the hairspray still in my hand. [X], [Y] and [Z] all witnessed this and were screaming and crying. [Y] started hitting [Mr Brickley] around the waist and was screaming “Let my Mummy go!”. [Mr Brickley] let me go as [X] ran off out the back door. I found [X] sitting in our secret safety spot underneath the [trees]. I had previously said to [X], ‘If something ever happens to me or if you are afraid, ring the Police, go to [Ms U]’s [[Ms U], next door neighbour], or sit under the [trees]’. Later that night, [Mr Brickley] complained that he had a mark on him from where I hit him with the hairspray and said, “Look what you did to me bitch”. I later confided in my friend and neighbour [Ms V] about the incident.
The Husband refused to discuss this allegation in the Family Report interview, citing the ongoing criminal proceedings at that time. He did however say that there were “no witnesses”. The Husband was later charged (and acquitted) of assault in respect of this matter. I will deal with the Magistrate’s findings in the context of the criminal hearing, which comes later in the Chronology.
In addition to the parental conflict and family violence, X was also behaving defiantly. Subpoenaed records from H Centre [13] reveal that they observed “fighting”, defiance and back-chatting and X was at times yelling and swearing at her.
Final separation:
The final breakdown of an intimate relationship and family unit is rarely easy; in this case it was made much more fraught by the different perceptions of the parties. That is, the Wife had decided in her own mind that the relationship was over whereas the Husband seems to have thought that, although challenging, their relationship was intact and salvageable.
In March 2022, the Mother privately informed H Centre that she was leaving the Husband due to his behaviours and had been waiting to separate until the children were older and she had more money. She said that the children all knew. On 9 March the Wife asked her GP to write an employment/character reference for her in anticipation of separating. [14]
The Husband ‘discovered’ the relationship was over in April when he checked his flu vaccination status on MyGov, only to find that he was no longer on the family Medicare Card. He telephoned Medicare who confirmed the change had been made some ten (10) weeks earlier. I accept Mr N’s evidence that the Husband telephoned him during the drive to work and that Mr N told him to take leave, go home and sort things out with the Wife.
The Husband took Mr N’s advice. When he got back home, no-one was there. The Wife and children arrived later that evening and the Husband confronted her about their relationship status. He was secretly recording the conversation, which soon became heated.
The Husband rang Mr N, telling him that “She can take my kids, but she is not taking my [kids], I’m taking them.” Suspecting the Husband was referring to the ashes of their miscarried twins, Mr N told him to put them back before the Wife realised. [15] Mr N described the Husband as being “like a different person” when they spoke about the ashes and I accept that evidence.
Major altercation about the ashes in April 2022 – both parents behave poorly:
In April, the Husband followed the Wife around the home, recording their interactions on his mobile phone – so much so that Y at one point said to him “Can you please stop filming Mummy, you are scaring me.” Rather than accepting responsibility for scaring her, he instead asked her “Did Mummy tell you to say that?” Y responded “No, I’m saying it. You’re scaring me, please stop.” In the witness box he still refused to accept responsibility.
Sometime later the Wife discovered that the ashes were gone. She was sure the Husband was responsible as X did not know where the ashes were kept and the girls did not know the ashes existed. In high emotions she confronted the Husband about the ashes while the children were present.
As the Wife became increasingly upset, the Husband started recording the conversation. According to his affidavit:
25.On the following morning, being Saturday, [Ms Haughton] “exploded”, she was enraged and accused me of moving our children’s ashes. I had not done such a thing and hadn’t even thought about the children and their ashes by that time. [Ms Haughton] said:
“That will be noted in my court proceedings. Go and get them.”
“I have nothing, and I tell you what you’re fucking going to get it all. You’re warned. I was prepared to be amicable with you. You start taking shit from me, it’s going to cost you. I hope you are recording this for whoever.”
“If they aren’t back, I’m ringing my solicitor. When I get back, I’m ringing my solicitor. It’s going to cost you.”
“My percentage is going to go up. It’ll cost you”
“My percentage will go up. It’ll cost you”
“Stop acting [Mr Brickley]. You’re shit at acting. You’re shit at acting. Go and get the ashes and put them back or I’m getting the police involved. If they aren’t there by the time, I get back in two hours, when I get back I’m ringing the police and you’ll get arrested. Go and do what I’ve told you to do.”
“Go and put them back or you and your military career everything I have to do to protect myself I will start doing”.
“I want what came out of my tummy back there by the time I get back or you’re firing a rocket. You’re firing a fucking missile. Go and get them and put them back.”
“Put it back or it’s going to cost you. All gloves are off. Try and be nasty with me with something as precious as that, all gloves are off.”
The recording was annexed to the Husband’s trial affidavit, which was itself filed late. The Husband had not mentioned the existence of the recording in any of his earlier affidavits and, once the Wife’s lawyers had become aware that there were recordings they sought copies of all of them. The Husband provided none, preferring instead to play ‘cat and mouse’ with the assistance of his legal representatives. [16] The Husband also admitted in the witness box that there may be other recordings the Wife had called for but which he had not produced. In that respect the Husband showed a distinct lack of good faith.
In the recording, the Wife is clearly heightened and upset; the Husband described her as “borderline hysterical”. She did make some threatening statements towards him, to which she reluctantly admitted in the witness box. She certainly denigrated him to the children, at one point telling them that “Daddy knows where they are”. She also tells them that “Daddy is a liar”.
The Husband on the other hand comes across as much more composed. While his affidavit provides extracts from the conversation, they are all quotes designed to paint her in an angry and threatening light. He does not mention, for example, that at one point he says to her that she “wants to take the kids away, and now wants to take the dead ones too”. This was eerily similar to what he had earlier said to Mr N, and when confronted with that similarity the Husband falsely denied having said it to Mr N, instead accusing him of being “drunk as a skunk 99% of the time”. It was an unfair slur on his former friend.
After the altercation, the Wife left the home to run an errand. Conveniently, the Husband claims to have “found” the ashes in the wardrobe while she was away. He claimed that the Wife must have hidden them in the wardrobe – an accusation she indignantly rejected as a “big fat lie”.
Throughout the proceedings the Husband maintained the lie about not moving the ashes; Mr White suggested to the Wife that she had done so in order to denigrate the Husband to the children. I accept the Husband’s evidence that when the Wife got home and saw the ashes, she again denigrated him to the children by saying “See, daddy’s a liar.”
Context matters; the Husband had moved the ashes thereby setting the Wife up to react in an emotional way that he could then record for future use. She ‘walked straight into his trap’. The recording was evidence-gathering of a most callous and grotesque form. It was also highly coercive on the Husband’s part. Moreover, as both of these parents knew that the Husband was responsible, his decision to move the ashes and then falsely deny it was destructive of the fledgling post-separation parenting relationship, and destructive of the emotional wellbeing of the children. In an emotional sense, the parties were now at war.
April 2022:
The next morning, the Husband insisted on taking the children with him to a venue, saying it was ‘his day’ with them. It seems that the girls did enjoy themselves. [17]
In the meantime, the Wife went to the Police to make a formal complaint about the Husband’s behaviours, including giving a formal Statement in relation to the altercation in early 2022 referred to earlier. [18] Police took out a Provisional AVO to protect the Wife, [19] telling her that they wanted to interview the children in relation to that event.
When the Wife returned home that afternoon, she told the children they needed to come with her to the Police Station. They were unsurprisingly ‘stand-offish’ and X would not even let her touch him; he was firmly in the Husband’s camp. She was able to get the girls to go with her. Police then contacted the Husband and he agreed to go to the Station where they served him with the AVO.
When the Mother and the girls arrived home, the Husband and X were gone. The Husband dropped X back at around 7pm. X was upset and defiant; he wouldn’t take his shoes off when the Wife asked and was video-recording her, an idea he had learned from the Husband. He refused to shower, saying that he didn’t feel safe unless the Husband was there.
X runs away:
At around 8pm, Y told the Wife that X had taken his bag from the back door and run away. She got the girls into a car and they drove around trying to find him. The Wife rang Police, who located him. Police spoke to X for an hour or so; he said he was trying to find the Husband. Police told X he needed to keep his iPhone tracking on at all times so both parents knew where he was.
After X had been returned to the Wife, she sent this text to the Husband:
“[X] ran away. I called the police they have now found him, you need to stop encouraging him to stop listening to me, you need to give me back the key to the back door as I can’t lock it to stop [X] running away. Next time he runs away again, I will continue to call the police for help. I have the right to make our house secure for our daughters. Bring back the key for the back door and screen door.”
The Husband was undermining the Wife to X; the Police could see it and told him as much. Moreover, the Husband did have the back door keys the Wife wanted. But the Wife was not blameless; she had clearly exposed X to the parental conflict.
April 2022:
In April the Wife proposed that the Husband have daytime visits with the children, progressing to overnights once he obtained proper accommodation. But she added these caveats - he was to undertake anger management counselling and a post-separation parenting course (which he was never going to agree to, especially where she was not proposing to do such courses herself). She also proposed that neither parent denigrate the other parent to the children. [20]
X was in telephone contact with the Husband from around 1pm. He said he was unhappy without him present; he wouldn’t shower without him there; he couldn’t be alone with the Wife.
Later on, the Wife found X going through personal items in their bedroom. Seeing something in his side pocket, and thinking he might be taking jewellery or other personal items for the Husband, she challenged him to turn out his pockets before patting them down. He screamed at her not to touch his penis but he was being histrionic and acting out; the Wife’s actions were in no way sexual.
Clearly heightened and acting out, X then refused to go to bed when the Wife asked him to. He went out and sat on the Wife’s car, waving a shifter around and telling her “It’s not your car, it’s Dad’s, it’s in Dad’s name and he’s going to keep it.” The Wife called Police.
At some stage X called the Husband, sounding frantic and clearly arguing with the Wife. The Husband drove to the home, calling 000 on the way. When he got there around 9pm, he opened the garage door and X came out and they sat in the Husband’s car together with the doors locked. The Wife was upset and came out, tapping on the windows. Police arrived about an hour later. They spoke to both parents and X, who told them about the “penis/patting down the pockets” incident, as well as accusing the Wife of having hit and scratched him. They could not see any scratches and did not believe him; it was a false complaint. X left with the Husband.
April 2022:
On this day the Husband attended the home in the company of ‘Mr W’, a defence force colleague, who he wanted there as a witness. He was there to collect some property from the home but, while there, he told her that if she did not let him see Y or Z, then he would stay the night. I accept the Wife’s evidence that:
44.I said, “No [Mr Brickley], you can stay somewhere else.” [Mr Brickley] said, “No, you me and [Mr W] are all gonna sleep in the same bed together.” [Mr W] said, “I don’t know about that mate.” [Mr Brickley] replied, “No it’s fine, she’ll go off like a rocket”…
14 April 2022 - Mother commences urgent proceedings:
That morning the Husband took the children to a venue by agreement. Unbeknownst to him, the Mother filed these proceedings that same morning. Amongst other things, she sought urgent orders on an ex parte basis including a Recovery Order for X; that the children live with her; and that there be a six (6) week moratorium on the Husband spending any time with the children, and supervised time thereafter. The affidavit omitted to mention that, by agreement, the Husband had the children that very day. Though she did not formally seek to relocate with the children, the Wife admitted in the witness box that she was already weighing up either moving to City AA or to Town M, reasoning that it was not a “big issue” given the Husband was working away at Town O each week.

I accept the Husband’s evidence that:
54.Prior to returning home, [X] became upset and distressed about having to return to his mother’s care. I reassured [X] that the situation would be ok and that his sisters would be at the home, [Y] and [Z], said to [X] words to the effect, “we won’t let Mum hurt you.” I then dropped the children home and began driving to work.
The genuineness of X’s ‘fear’ of his mother is highly doubtful; he was playing the role of the loyal son.
The Husband returned the children to the Wife early that evening. The Wife invited him to enter the garage and take what he wanted as “it might be the last chance you have”. The Husband ignored her, reasoning that there were no cameras in the garage and fearing that it might be a ‘set-up’.
X ran away shortly after the Husband left. The Wife rang the Husband, accusing him of having X. He listened to her, did not respond, then hung up and drove back towards the home where he found X and dropped him back off at the foot of their driveway. Later that evening, X again became agitated. He told the Mother “I’m going to run away, this is all your fault. Dad is going to gaol because of you, Dad said you have been stealing all of the money.” Y became upset, telling the Wife that “Dad said he doesn’t trust me anymore because I talked to the Police. I don’t understand why, I just told the truth.”
At around 7pm X was watching his iPad and the Wife noticed he was viewing inappropriate videos. She told him to stop. He became agitated and abusive, going to the garage and collecting items, yelling at her that she was a female and didn’t deserve them. In all likelihood these were the same items the Wife had earlier offered for the Husband to collect. Police were again called. I reject the Mother’s oral evidence that the inappropriate iPad images X had been watching related to an “advertisement on TV about road rage”. He had been watching adult sexual material and she did not want to admit it. [21] The Wife also told Police about X having pushed and punched her (which X admitted was true).
April 2022:
On this day Police charged the Husband with common assault relating to the early 2022 incident. He declined to be interviewed.
The Husband had to go to work and the parents give very different versions of what happened next. The Wife says that she texted the Husband offering him a chance to call the children but asking him not to discuss adult issues. He did not respond, but made multiple attempts to call the children and eventually got to speak to X on his mobile phone at around 11.30am. She says X was unsettled and unhappy about staying with her. She says that in the early afternoon X and the Husband spoke again, this time on the home landline, which she picked up and listened in on. She says she overheard the following discussion:
Husband:When you were in the car with mum, I was so sad. I thought I was never going to see you again. You need to say that when you were with mum, she wouldn’t let you out of the car.
[X]: Yes Dad.
At this point the Wife says she interrupted the call, telling the Husband he was not allowed to say these things and asking X to say goodbye. X became upset, throwing the phone and breaking the screen.
The Husband’s version is that he tried to call X and the girls multiple times that day and did not get through to them even once.
One of the parents is wrong, and likely lying. No independent telephone records were tendered. I make no specific finding.
At around 5pm, the Wife and the children went for a walk around their neighbourhood. X was riding on his scooter and disappeared. Night was falling; the Wife drove around but could not find him. She dropped by a neighbour whose house he had previously run away to; X was not there. The Wife decided to contact Police.
Unknown to the Wife, X was picked up by some strangers who found him on the road. They took him to the neighbour’s home, but when the neighbour could not talk X into returning home, and with X accusing the Wife of having strapped him with a belt, the strangers ultimately ended up taking X to the paternal grandparents’ home at his request.
In the meantime, the Husband was working and blissfully ignorant of what had occurred. At around 8.30pm he called the home and a Police officer answered, who accused him of orchestrating X to run away.
April 2022:
That morning when he finished work, one of the Husband’s workmates told him that X had been listed as a ‘missing person’. The paternal grandparents had left a message on his phone to say they had X – who they had not seen since 2020 due to a family rift arising from an altercation. (In 2020 the Husband had been assaulted by his sister’s boyfriend at the paternal grandparents’ home and suffered a serious head wound. Police charged the Husband, who defended the charges and was later acquitted, with Police ordered to pay him costs. The event caused a rift within the paternal family; from 2020 onwards the Husband was estranged from the paternal grandparents. It also tainted the Husband’s attitude towards Police.)
Later that day, Police spoke with X in the presence of the paternal grandparents and he told them he was not going back to the Wife as she was abusive. Police later collected X’s belongings from the home, telling the Wife not to go to the grandparents’ home but to pursue the matter through the Courts. In the meantime, X went back into the Husband’s care. The paternal grandmother told the Husband that there was something she needed to discuss with him later when X was not around.
Notably, their subpoenaed records show that Police did not think that X having run away was either parent’s main priority. They thought that the Husband was more interested in the conduct of NSW Police and his own pending criminal charges and that the Wife was more interested in past events concerning the Husband. They were probably right on both counts.
Wife vacates the home for a number of weeks, taking the girls with her:
On 19 April 2022, the Wife’s lawyers served her Court material on the Husband’s then-lawyers, BB Law Firm. [22] The Wife and the girls left the home at or around the same time; the Wife telephoned her GP to say that her abusive husband had returned home and she was in hiding. [23] The Wife and girls stayed away for a number of weeks, staying in various locations including Town CC and a hotel in City P.
X and the Husband returned to the home, finding the girls’ bedding, suitcases and most of their clothing gone. The Husband messaged the Wife about what was happening with the girls; she did not reply.
The paternal grandmother later raised with the Husband her concern that, while at her home, X had been looking for a razor to shave his genital area, saying that it was something his mother would do to him. The paternal grandmother changed the subject. The Husband later spoke to X, who said she had been shaving his genital area for about six (6) months, and would (inferentially) move his penis and scrotum so she could remove all the hair. I accept that X said these things but they did not happen. This was one of X’s stories.
Over the next week, X rang the Wife a couple of times, the first time telling her that he was being left at home alone and felt scared only to change course a few days later by saying he did not feel safe with her when she invited him to join her and his sisters. In the latter call he was on speakerphone; it is highly likely that the Husband was listening in.
While she was away, the Wife again telephoned her GP, advising that she was returning to the area for legal reasons and that she was “terrified” of the Husband. For the first time, the Wife told the GP about the torch allegation. [24] The Wife also telephoned the children’s school informing them about family law matters and the ADVO and telling them she was too afraid to return to the house for the time being, so the girls had no access to their school uniforms. [25] She could of course have taken their uniforms when she left the home. Overall, I am left with the strong impression that, like the Husband with his recordings, the Wife was trying to ‘build her family law case’ more than anything else.
Interim orders of 4 May 2024:
Following an interim hearing on 3 May, SJR Flintoff made some orders on 4 May which relevantly included that:
·X live with the Husband and the girls live with the Wife;
·the parents be restrained from discussing the proceedings with the children, discussing adult issues with the children, showing Court documents to the children, questioning the children about the ‘living with’ or ‘spending time with’ arrangements, or filming the children or allowing the children to film either parent;
·the Wife have sole use and occupation of the Suburb C home;
·that there be a Child Impact Report; and
·there be a further interim hearing on 20 June 2022.
A ‘flurry of activity’:
The Husband promptly filed for Review of the sole use and occupation order and sought a stay. When SJR Flintoff dismissed the stay application, the Father discontinued the Review. The Wife emailed H Centre to update them as to family law and related matters. [26]
On 5 May 2022 the Wife’s GP referred her to a Psychiatrist, Dr DD, for “opinion and management”. The referral referred to a history of family violence. [27] That same day, the Wife attended the children’s school to collect Z who was sick. Seeing X, she approached him but he backed away. Her affidavit goes on:
88.…Regrettably, I let my emotions get the better of me and said to [X], “Just remember, Dad has the assault charges, not me.” [X] then said, “Have fun in your [car].”
Some staff members and students witnessed the interaction between the Wife and X; the school were clearly concerned about it. On any view, the Wife’s words to X were in flagrant contravention of the injunctions made the day before. Moreover, X had filmed the Wife, which was also contrary to the orders of 4 May. Although the Husband was not present and therefore could not have stopped X doing so, he did make sure to send the recording to his lawyers.
The Wife later called H Centre to advise them that X wanted nothing to do with her as the Husband was telling him false, negative things about her. [28]
On 6 May, the Wife again saw X at school. She told him he should be living with her, again in flagrant contravention of the orders.
On the afternoon of Monday 9 May 2022, the girls each told the Wife that they had seen X that day. Z said X had told them that they needed to tell “the Court lady” that they missed Dad and wanted to live with him. Y disagreed with Z, saying that X had said they had to tell this to the Wife’s lawyer. In all likelihood X’s comments to the girls were made on the Husband’s instruction, or at least with his encouragement.
On 13 May the Husband took X to see his GP where X complained about the Wife touching his penis and shaving his pubic hair. The Husband later contacted X’s school, accusing the Wife of trying to sell X’s uniform. He said he wanted them to know this “as mandatory reporters”. [29] Like the Wife, he was making sure to document matters which he thought may support his family law case; any genuine concern for X was entirely secondary.
On 18 May 2022 the Husband vacated the home, moving with X into temporary accommodation. The Wife re-took possession of the home, immediately changing the locks. She accuses him of deliberately leaving the home in a filthy state. She deposes that she found two (2) nappies under Z’s bed with faecal matter in them and a pair of her own underpants with a period pad and faecal matter in them. The Wife says that a few weeks later, when she was struggling to get rid of a stubborn smell in the girls’ bedroom, she discovered a bag of towels in their cupboard which had been urinated on.
The Husband had removed from the home the Wife’s wedding dress and the plaster moulds of the children’s hands and feet when they were babies but he denied deliberately leaving the house in a dirty state. I accept the Wife’s evidence that he did.
Child Impact Report of 24 May 2022 (Exhibit 1):
The Court Child Expert, Ms EE (“the CCE”), was rightly alarmed about the family dynamics. She noted that X was living with the Husband and not seeing the Wife, while the girls were living with the Wife and not seeing the Husband. While X could see his sisters at school, they could not spend time together as they had entirely separate play areas. The Husband was proposing that X see the Wife on alternate weekends and that the girls live week-about – which in my view shows he did not really believe X’s ‘pubic hair shaving’ allegations. The Wife was proposing that all three (3) children live with her and that the Husband spend supervised time with them pending his completion of a parenting course, an anger management course and remaining abstinent from alcohol.
CCE Ms EE considered that X had not reached age-appropriate milestones but that Z and Y were doing well. They had clearly witnessed their parents fighting. Notably, despite the 2019 event where the Husband had hit the Wife with an object, X portrayed the Wife as the aggressor of the two parents. The girls portrayed the Husband as the aggressor, particularly when intoxicated. One of the girls said that they had seen the father intoxicated on many occasions, including asking her to get beer for him. X, on the other hand, said he had never seen the father intoxicated. X was falsely covering for his father.
X said the Wife would lock him in his bedroom and not feed him, and that he would run away because of her behaviour. He referenced her having “touched me downstairs”. When asked why she did so, he said he did not know. These allegations were untrue but were part of a narrative the Husband wanted to pursue, namely that the Wife had some unusual, if not sinister, ‘fixation’ about body image issues and specifically body hair.
One of the girls said they saw the Husband strangle the Wife and drag her down the hallway. The other girl said they tried to stop him and that X jumped over the back fence to get away. X told the CCE that the Wife was the only physically/verbally abusive parent, accusing her of using an object to hit him as well as Z and Y – which the girls denied. While both parents had used physical discipline on him, X was exaggerating the Wife’s behaviours while whitewashing the Husband’s.
Interestingly, although the girls were critical of the father’s violent behaviour and expressed some fear of him, they also said he was “lots of fun and told funny dad jokes” and wanted to spend time with him.
The Wife disagreed that the girls wanted to see the Husband. It would be more accurate to say that the Wife did not want to hear that. She was either unable or unwilling to process the fact that girls enjoyed their observation session with the Husband, did not want to leave him when it ended, and wanted to spend overnight time with him. Perhaps her mental block was because X was unwilling to even be observed with her – a matter which she squarely blamed on the Husband.
The CIR raised the following specific matter of concern:
18.In conversation with [Z] and [Y], they both reported that the father had shown them video footage of the mother reportedly throwing [an object] at him and that the father had some sort of [object] in his hand […]. They said that the father showed them the video when he took them out to the [venue] earlier this year…
The girls told the CCE that at the time of the video the Wife had brown hair, not blonde hair, and they estimated that they were about two (2) years old when the video was filmed – which if correct would place the video around 2016. They said the Husband showed them because he wanted them to tell “the lady from the Court” about their mother’s behaviour. The girls also disclosed that X was sitting in the car with them watching the video at the same time and that later on the father had accidentally deleted the video. The trip to the venue happened in April 2022, a day after the parents’ altercation about the ashes. Emotions were running very high at that time and, although in the witness box the Husband denied showing the girls the video, I am satisfied that he did so.
The CIR offered the following advice:
35.…Both parents need to separate their level of emotional distress from that of the children and stop involving the children in their campaign against each other.
…
37.It is evident that both parents love the children and it would appear that they have the ability to care for the children separate of each other. The difficulty is that [X] has firmly stated that he will not spend any time with the mother, as he no longer wants a relationship with her. It is quite possible that [X]’s diagnoses are informing his views of the mother, but it is also possible that his reported experience of the mother has been one where she has abused and neglected him as a way to manage very difficult behaviours. Either way, because of [X]’s age, his views of the mother and his notable diagnoses, it is going to be extremely difficult to repair their relationship.
The CIR observed that the Wife seemed to be insightful in relation to X not wanting to see her, disappointed but not trying to force the situation as she understood or appeared to understand that it would be futile. The CIR noted the total lack of parental communication, that any dispute resolution would probably be a waste of time, and suggested that given X’s strident views the family should make use of the “Keeping Contact” program run by FF Counselling, which may assist in repairing the mother/son relationship.
Significantly, the CIR noted that the siblings clearly missed each other and very much wanted to spend time together as a group.
Tug-of-war over the children:
Immediately after receiving the CIR, the Husband requested overnight time with the girls in accordance with their views. The Wife refused.
In the meantime, the Wife rang X at school when he was in class. He wanted to take the call but the teacher said “no”, which unsettled him and he needed to be calmed down. He later called the Wife back. She told him that she would like for the children to see each other the next day.
Later that day, the Wife was sitting in her car at the school just before sixth period and she saw X approach. She got out of the car and he hugged her. She asked him if he wanted her to bring cupcakes in tomorrow for he and the girls to share together and he said yes. She said she would speak to the Principal.
The school were concerned about the Wife’s behaviour, preparing a lengthy internal memo for staff warning them that she may make another attempt at getting the children together “and it may get messier before it gets clearer.” [30]The Principal rang the Husband and told him what had happened, warning him that X had been misbehaving and risked being suspended.
The next day, both parents attended at the school office, in the Wife’s case with cupcakes. The Wife wanted the children to have cupcakes together; the Husband objected. She was eager for the children to see her as the ‘loving parent’ and he was just as eager to ensure that this did not occur. Ultimately the school decided against the cupcake meeting. The parents’ behaviours had successfully prevented their children from seeing each other. [31] X was disappointed and upset as he had specifically brought a present to school for them.
X’s birthday fell shortly after. The Wife called him from a landline as he had blocked her mobile number. X put the phone on speaker so the Husband could hear. The Wife complained about her number being blocked, blaming the Husband for it. Playing up to his father, he told her that he didn’t want to talk to her but only to his sisters. She put them on; they interacted briefly. The Wife tried calling him back; he would not answer her. On the Monday she left a piece of birthday cake for him at school.
Torch allegation raised with Mr N:

Dr R did not consider that long-term professionally supervised time was a good long-term option. [85] Moreover, it would keep the girls engaged with the Husband but in a very restricted, entirely artificial, unsatisfying way for all concerned.
That said, a ‘no time’ order also poses real problems. How are the siblings to see each other, save for over Facetime or if X runs away? How will a ‘no time’ order work where the girls still have regular electronic communication with the Husband and X?
Ultimately, the problems surrounding supervised visits, and the (no doubt) substantial stress and angst that would surround them, outweigh the benefits. I consider it to be in the best interest of the girls to make a ‘no time’ order but on the basis that electronic communication occur. The orders for electronic communication also carry some risks but they do at least offer an opportunity for the girls to maintain a limited relationship with the Husband and with X.
What of the ICL’s application that the parents be restrained from allowing X to spend physical time with the girls unless it is strictly supervised?
While X lives with the Husband, the issue does not arise. But what if X turns up on the Wife’s doorstep after running away again? The children cannot live together given the risks referred to earlier. But X is a vulnerable child, and for the Wife to have to send him away could be very dangerous for him; the risk of violence or self-harm is very high. [86]
Both parents oppose a s 68B restraint as sought by the ICL. Once the ICL is discharged, the parents will be the only parties able to enforce such a restraint, and neither wants to. Ultimately, though not ideal, a less restrictive injunction is ‘appropriate’ and in the best interests of the girls, with some additional safeguards as set out in the Orders.
CONCLUSION & ORDERS
For these Reasons, I propose to make the parenting orders set out at the commencement herein. They are based upon the Wife’s proposed Minute. [87]
Sole parental responsibility scarcely needs to be explained.
I will not make the ICL’s proposed alcohol restraint which would render the Husband a teetotal while X lives with him. It is disproportionate and not appropriate. Likewise I will not make the ICL’s (and Wife’s) proposed orders in relation to X’s NDIS plan and treatment. As drafted, those orders are not ‘pinned’ to any other parenting order so as to found jurisdiction. Moreover, the orders are cast in such plenary terms as to be arguably a delegation of parental authority to his care plan providers.
The orders should otherwise be self-explanatory.
The ICL seeks costs. Given the conduct of the parties in this litigation, and the undoubted need for an ICL, her application appears meritorious. I will hear further from the parties once they have had the opportunity to consider the Reasons and Orders herein.
PART II – THE PROPERTY SETTLEMENT PROCEEDINGS
The parties’ evidence in the property settlement proceedings was given much less attention in their affidavit material; cross-examination was also extremely limited.
THE LAW:
Property settlement proceedings are governed by the provisions of Part VIII of the Act. Essentially, a Court cannot make a property settlement order unless it is ‘just and equitable’.
In arriving at the mandated ‘just and equitable’ outcome I will:
(a)identify and value the property, liabilities, and financial resources of the parties (the Balance Sheet);
(b)consider whether it is just and equitable to make any property settlement order adjusting the parties’ respective interests therein;
(c)if it is, then identify and assess the respective contributions made by each of the parties towards the net assets, pursuant to section 79 of the Act. For convenience, each party’s respective contributions-based entitlement will be expressed in percentage terms;
(d)I will then identify and assess the relevant “future factors”, as I would colloquially refer to them, as set out in section 75(2) of the Act, including any relevant matters arising pursuant to section 79(4)(d), 79(4)(f), and 79(4)(g) of the Act. I will then determine whether these factors warrant any adjustment to the parties’ respective contributions-based entitlements;
(e)Lastly, I will consider the effect of my findings and proposed orders so as to satisfy myself that any property settlement order being contemplated is just and equitable.
THE BALANCE SHEET:
The parties tendered a Balance Sheet as exhibit 35. Most of the values therein were agreed. On the evidence I am satisfied that the Balance Sheet is as follows:
Non-superannuation assets
[Suburb C] home                  $1,070,000 (jointly owned) – to be sold
[Shares]   $      7,331 (owned by Husband)
Cars, parts & machinery         $    150,480 (some owned by Husband, some jointly)
Bank accounts   $   Nominal (both parties; the figures are disregarded)
Home contents  $   Nominal (both parties; the figures are disregarded)
Add-back [Motor Vehicle 2]     $ Nil (sold by Wife after separation for $500; disregarded)
Sub-total:  $1,227,811 less costs of sale of the home
Liabilities:
Home mortgage  $407,806 (joint)
Second mortgage                    $ 24,270
Sub-total liabilities:                $632,076
Net non-superannuation         $595,735 less costs of sale of the home
Superannuation:
Super Fund 1             $393,000 + (Husband)
The major Balance Sheet dispute concerned the various cars, car parts and machinery collectively stored in three separate locations being:
·the shed at the former home;
·a storage unit of the Husband; and
·at the property owned by the paternal grandparents.
The single expert Mr TT valued the whole of the above property at $150,480. [88] The Husband contended that this was too high as some of the property he valued did not belong to him, but to his father and/or his cousin. Using Mr TT’s figures, the Husband proposed a lower total figure of $126,211.
The paternal grandparents had engaged lawyers following the making of the valuation orders. Through those lawyers, they did assert ownership of various items stored at their property. They sent the valuer photographs, but did not otherwise provide affidavits, participate in the litigation or seek to be heard.
The Husband justified not calling his father as a witness on the basis of his age and health. But he could at least have called the paternal grandmother, who he accepted had some potentially relevant evidence on point, and his cousin. His explanation for calling neither of them was that he could not afford ‘the extra cost’. I do not accept that. I am satisfied that the Husband would have incurred the modest extra cost of calling these witnesses if he thought their evidence would help his case.
In the circumstances I have adopted the total value of $150,480 set out in Mr TT’s valuation report. To avoid doubt, this figure does not include the value of Motor Vehicle 1 in the Wife’s possession, the purchase price for which was funded by the second mortgage over the home. There is no evidence as to Motor Vehicle 1’s value. (The Husband has Motor Vehicle 3 which has not been valued as he leases it as part of his employment package.)
I have adopted the Wife’s mortgage balances as they were more accurate than the Husband’s.
The Wife’s sale of Motor Vehicle 2 has been considered in the context of post-separation contributions. Furniture was of modest value as were bank account balances, hence they have been disregarded.
The Husband’s superannuation figure has a (+) after it because the figure was the one he gave during the first tranche of the hearing in March 2024; he did not update it when the hearing resumed.
Lastly, I am aware that the Wife owes ‘E Pty Ltd’ an amount of $114,645 in respect of her legal fees. She did not seek to include it in the Balance Sheet, nor did she seek to include a sum of $138,100 which she says her father loaned to her.
IS IT JUST & EQUITABLE TO MAKE AN ORDER?
Both parties appropriately contended that it was and I respectfully agree. The parties were in a lengthy relationship and, following its breakdown, they are now unable to continue to mutually use and share in the matrimonial assets.
CONTRIBUTIONS:
Initial contributions:
The Wife did not bring any assets of substance into the relationship.
The Husband brought in various of the vehicles and tools of trade. [89] Those that remain have been valued by Mr TT at $48,300. [90]
Contributions during the relationship:
By way of overview, the parties took on ‘traditional’ roles throughout. The Husband was the primary breadwinner, working as a tradesperson (initially locally and later at Town O), as well as serving in the armed forces. He was a hard worker. The Wife was the primary homemaker; the Husband did not want her to engage in external employment as set out earlier.
In 2004 the parties purchased the Suburb C home for $450,000. I accept the Husband’s evidence that the parties had saved $10,000 - $15,000 towards the purchase and that the Husband’s uncle generously gifted them the other $30,000 in order to meet the $45,000 deposit. This was a very helpful ‘springboard’ which enabled the parties to get into the housing market. The parties funded the rest of the purchase price by way of mortgage.
When the children came along later, the Wife took on the role of primary parent. As X’s high needs became apparent, the Wife diligently followed up to ensure that he had the necessary supports, including with the NDIS.
In 2012 the Husband was made redundant, receiving a payout of $30,000 which was applied for the benefit of the family. He was then forced to look further afield for work, ultimately obtaining his current role at Town O. When he was at home, he assisted with homemaking and parenting tasks.
Post-separation:
Post-separation, X has overwhelmingly lived with the Husband and the girls have overwhelmingly lived with the Wife. The Husband has continued to earn an income, which he re-directed away from the joint account. But he has had to bear the brunt of the joint expenses. The Wife has not had an income but been reliant upon Commonwealth benefits, money from her father and ‘E Pty Ltd’.
Between 19 April and 18 May 2022 the Husband had occupation of the home while the Wife and girls lived in hotels and similar accommodation. The hotel rooms cost about $230 per night and the Wife had to eat take-out food as there were no cooking facilities. She paid for it by obtaining money from her father and otherwise using her Centrelink payments.
Around that same period, the Husband redrew $8,800 on the second mortgage, thereby increasing the weekly repayments from $90 to $150. He also redrew $2,690 on the first mortgage.
On 4 May 2022 SJR Flintoff ordered that the Wife have sole use of the home and that the Husband meet the minimum mortgage repayments (then $600 per week), the family’s Health Insurance (then $122 per week), the home and contents insurance (then $30 per week) and the Motor Vehicle 1 loan repayments (then $150 per week). He also had to meet his own and X’s living expenses, including food, fuel and rent. He was later ordered to pay most of the supervision costs. Overall, his week-to-week financial position was somewhat strained.
The Wife has had sole use of the home since 19 May 2022.
On 23 June 2022, SJR Flintoff ordered that, pending further order, the Husband pay the comprehensive vehicle insurance and that the Wife have sole use of Motor Vehicle 2, including all personal items of hers in the boot, and that the Husband was to provide her with all keys. When she got the car back, she says she found that her personal or sentimental items she put into the car boot were missing. (She seeks numerous items to be returned to her as part of her proposed orders. I will come back to those later.)
Post-separation, the Husband paid off the joint credit card debts of around $3,200. This included around $1,300 in debt that the Wife incurred for living expenses, such as an energy bill for the home and an optometrist bill.
On 11 April 2023 the Husband removed the Wife from the family’s health insurance policy he was paying for, which was contrary to the orders of 4 May 2022. The Wife immediately took out her own policy, at a cost of $61 per week.
As set out earlier, in August 2023 the supervision arrangements broke down, the Husband citing costs as the reason.
The Husband fell behind in various payments. Between 1 March 2024 and the Wife’s supplementary affidavit filed on 12 July 2024, the Husband paid:
·$6,549 of the $11,269 payable towards the D Bank mortgage; and
·$19 of the $6,374 due and payable on the D Bank car loan.
To be fair to the Husband, there were a number of interest rate increases following the making of the orders of 4 May 2022. I do not consider that he deliberately set out to let the loan go into arrears; for a while his genuine hope had been to retain the home.
Council Rates fell into arrears. On 1 May 2024 the Husband’s solicitors wrote to the Wife’s solicitors calling on her to pay them as a matter of priority. Her solicitors responded by asserting that the parties should pay those costs equally in the absence of orders. A few weeks later the Wife entered into a repayment plan at a rate of $20/month. In the meantime the Husband paid lump sums to Council totalling $1,690.
Neither party has paid formal child support to the other.
Post-separation “waste” by the Wife?
When the Husband gained access to the shed in August 2024 he claimed that various things had gone missing (presumably sold by the Wife and unaccounted-for). He said that other items in the shed were in a deteriorated state due to the Wife leaving the shed in an ‘airless’ state and otherwise allowing the inside of the shed to get mouldy.
He tendered some photographs depicting a mouldy chair, dilapidated furniture and a generally untidy shed interior. [91] In the witness box the Wife admitted that she “did not know” whether or not she had ever opened up the shed to ventilate it since the Husband left. She did say that she had tried to restore the furniture and said its shoddy appearance was due to a deteriorated veneer which I accept she tried to restore.
The single expert, Mr TT, valued the entire shed contents at $51,980.[92] It is impossible from the photographs to positively find that the Wife has recklessly, negligently or wantonly acted or failed to act so as to diminish the shed contents. Nor would the evidence permit the Court to quantify any such diminution of value. The dilapidated furniture, for instance, was valued at a mere $30 by Mr TT and there is no evidence of what its value might have been if the veneer was in better condition.
Overall assessment of contributions:
In the interests of justice and equity, the respective contributions towards the superannuation property and the non-superannuation property will be assessed separately.
The superannuation is relatively straightforward. Given that the Husband accrued it during the relationship while the Wife took on the homemaking and parenting role, I consider that contributions should be assessed at 50% each. To be fair, there is no serious dispute about that. The real dispute relates to the non-superannuation property.
The Wife contended that her contributions to the non-superannuation property should also be assessed at 50% each. The Husband contended that his contributions were greater and should be assessed at 55% - 57.5 % in his favour primarily on account of his uncle’s contribution to the deposit, his own initial contribution in relation to the cars and parts etc, and post-separation contributions.
Ultimately, I assess contributions to the non-superannuation property at 52% to 48% in the Husband’s favour.
FUTURE FACTORS:
The parties have modest assets.
The Wife is in reasonable health. She is presently reliant on Centrelink benefits and lives week-to-week. Historically the Wife has earned income as a tradesperson and I accept the Husband’s evidence that she has qualifications, together with formal qualifications in the beauty industry. I also accept his evidence that for years she also ran a small sales ‘side’ business but this was a hobby at best.
Upon moving to Town M the Wife will have work and therefore income immediately available to her, albeit her income will be less than the Husband’s. She will however have other support from family, including with accommodation. She will be able to adequately support herself and the girls and enjoy a reasonable standard of living, albeit not with as much financial comfort as she would like.
The Husband is in reasonable health and has a well-established career as a tradesperson. He earns an income of around $150,000 per annum and, once the home is sold and the litigation finalised, he will be in a reasonable position to try to ‘rebuild’ his financial life. The Wife’s evidence is that, in addition to his wage, the Husband receives an annual retention bonus each December in the amount of $1,000 per year he has worked for the company. She says in 2023 he should have received $9,000. No such income was disclosed and there is no evidence of such entitlement apart from the Wife’s say-so. In circumstances where the Wife might exaggerate his income, and the Husband might try to hide it, I am unable to make any specific finding about this additional bonus.
In any event, the Husband will be able to adequately support himself and X and, like the Wife, enjoy a reasonable standard of living.
The Wife has significant responsibilities in caring for the girls but will have some family support. The Husband has particularly significant responsibilities supporting X but also has family support from his parents, as well as NDIS funding. I am mindful that X is fifteen (15) and will not be a child much longer; the girls are ten (10).
Neither parent is cohabiting with anyone else.
There is no evidence of any administrative assessments of child support but it would be open to both parents to seek an assessment and the net effect would likely result in the Husband paying something to the Wife, particularly given his income and particularly when X turns eighteen (18) and is no longer a relevant ‘child’.
The Husband is an income beneficiary in respect of a discretionary trust established by his parents. But in the 30 to 40 years of the trust’s operation, no income has ever been distributed to him. Since 2020 the Husband’s family have been embroiled in litigation concerning the trust, although the husband is not a party to the litigation. I do not consider it to be a relevant financial resource; in practical terms any entitlement the Husband may ultimately have to trust assets is nebulous, better characterised as a potential inheritance in due course and thus put to one side.
Ultimately, the Wife submitted that the Husband’s greater income-earning capacity, and her Wife’s support of his career throughout the marriage, warranted a 15% uplift in her favour in respect of the non-superannuation assets. The Husband conceded the possibility of an adjustment but suggested it would not exceed 2.5% - 5% particularly given his own expenses and his ongoing caring responsibilities for X.
Taking into account all of the above matters, and noting the modest value of the non-superannuation assets, I consider that an overall adjustment of 12% to the Wife is warranted.
CONCLUSION & ORDERS
Ultimately I have determined that the non-superannuation property should be divided as to 60% to the Wife and 40% to the Husband, and that there be a 50% splitting order in respect of the Husband’s superannuation.
The Orders I propose to make will give effect to that outcome. The Husband will pay the Wife a cash sum out of his share of the equity in the home to ensure that the value of the cars, car parts and machinery is divided as to 60% to the Wife.
There will be no ‘offset’ in the Husband’s favour for the value of Motor Vehicle 1. To begin with, Motor Vehicle 1 is not valued. Moreover, he has retained numerous of the Wife’s personal and sentimental items, which he will never return or account for. The items include her grandfather’s antique collection. This is a snapshot only – in total the Wife’s list comprises seventy-eight (78) individual items, some of which contain multiple sub-items. Some would have no monetary value but would be of high sentimental value such as extended family birth certificates, a photo album containing her childhood and school photographs and her own personal grief diary (presumably relating to the miscarriage).

The Husband denied having any of the Wife’s nominated items but this blanket denial was simply untrue. For instance, the Wife’s list includes “[Ms Haughton]’s handmade […] wedding dress […] and wedding veil” which the Husband conceded in the Child Impact Report interview that he had taken. [93] (To be fair, I am mindful that the Wife’s list does go too far in some respects in that it purports to claim as her own personal property the children’s framed plaster hand and feet moulds taken when they were babies.)
Super Fund 1 have been afforded procedural fairness. [94]
For these Reasons I propose to make the Orders set out at the commencement herein.
I will hear the parties as to costs.

I certify that the preceding three hundred and seventy-four (374) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts.
Associate:
Dated: 3 December 2024

[1] Exhibit 32
[2] See his Further Amended Response filed 01/03/24
[3] Exhibit 31
[4] Family Report, paragraph 204 (Exhibit 3).
[5] His Further Amended Response, first trial affidavit and Financial Statement required leave as they were all filed late.
[6] A good example is that, early in her evidence and at a time when she was still pressing for X to live with her, the Husband’s solicitor advocate Mr White asked the Wife what her plan was to manage X if all three children lived with her. Her response to this perfectly reasonable question was: “There is no plan yet, Mr White. It hasn’t been looked into. No-one asked me to, Mr White.” To be fair to her, she was notably more helpful and forthcoming when the ICL’s counsel cross-examined her on this topic.
[7] A recurring theme of this case is that neither parent willingly takes responsibility for their own actions.
[8] Family Report, paragraph 169 (Exhibit 3)
[9] DCJ is short for the Department of Communities & Justice.
[10] Family Report, paragraph 142 (Exhibit 3)
[11] Exhibit 7
[12] The relevant records form part of exhibit 25.
[13] Ibid.
[14] Exhibit 25
[15] It is possible that the “ashes” discussion happened during the first phone call between the Husband and Mr N. Mr N’s affidavit suggests there were two (2) discussions. I accept Mr N’s evidence that the discussion did occur; whether there were one or two phone calls is immaterial.
[16] Exhibit 9. Essentially the Husband declined to provide the recording on the basis that there were extant criminal proceedings from the incident in early 2022 and he wanted to use it in his defence. But his subsequent refusal to provide a copy after he was acquitted makes it all rather hollow.
[17] See the photographs of the girls which form part of Exhibit 25
[18] The Wife’s Police Statement forms part of Exhibit 25
[19] Exhibit 25
[20] Exhibit 25
[21] Exhibit 20
[22] Exhibit 16
[23] Exhibit 25
[24] Exhibit 25
[25] Exhibit 25
[26] Exhibit 25
[27] Exhibit 25
[28] Exhibit 25
[29] Exhibit 25
[30] Ibid.
[31] Ibid.
[32] The timing of the call is set out in the phone log which forms part of Exhibit 25.
[33] Exhibit 2
[34] Exhibit 25
[35] Exhibit 25
[36] Exhibit 25
[37] Exhibit 25
[38] Exhibit 10 and Exhibit 11
[39] X was well aware that there was no love lost between the Wife and the paternal grandmother.
[40] See paragraphs 138 & 139
[41] Exhibits 25, 27 & 28
[42] Exhibit 25. On 19/08/22 the Husband contacted his GP to seek a medical certificate so he could stay home on the weekend and look after X who by then had a new script: exhibit 25
[43] Her Police Statement forms part of Exhibit 25
[44] Exhibit 25
[45] Exhibit 25 contains photographs of the phone depicting the extensive damage to the screen
[46] Exhibit 25
[47] Exhibit 29
[48] Exhibit 25
[49] He complained that Dr R had not ‘instructed him’ to encourage X to be observed with the Wife.
[50] Family Report, paragraph 189 (Exhibit 3)
[51] Family Report, paragraph 62 (Exhibit 3)
[52] Family Report, paragraphs 102 & 110 (Exhibit 3)
[53] Exhibit 25
[54] Her letter forms part of Exhibit 25
[55] The letter forms part of Exhibit 25
[56] Exhibit 25
[57] The photograph forms part of Exhibit 25
[58] Husband’s updating affidavit filed 16/07/24, paragraph 42
[59] Exhibit 19
[60] Exhibits 8 & 12
[61] Exhibit 5
[62] Exhibit 23
[63] Exhibit 14
[64] Exhibit 26
[65] Exhibit 23
[66] Exhibit 23
[67] Exhibit 15A
[68] Exhibits 15 & 15B
[69] Exhibit 30
[70] Exhibit 23
[71] Exhibit 30
[72] Exhibit 25. Her lawyers also wrote to the Husband’s lawyers to this effect.
[73] This was on 16/04/24; see exhibit 22
[74] Exhibit 23
[75] Exhibit 18
[76] Exhibit 17
[77] Exhibit 25
[78] Exhibit 13
[79] Exhibit 24
[80] To protect his sister; to protect the Wife; to protect X; and now to protect the Wife again
[81] Exhibit 15B
[82] Ibid.
[83] Exhibit 38
[84] Exhibit 33
[85] Family Report, paragraph 205 (Exhibit 3)
[86] See Family Report, paragraph 190 (Exhibit 3)
[87] Exhibit 32
[88] Exhibit 34
[89] Husband’s affidavit, paragraph 170
[90] Exhibit 34; items 9, 15, 16, 17 & 18
[91] Exhibit 36
[92] Exhibit 34
[93] Exhibit 1, paragraph 20
[94] Exhibit 37

File number(s):	NCC 1016 of 2022
Judgment of:	JUDGE BETTS
Date of judgment:	3 December 2024
Catchwords:	FAMILY LAW – Parenting – three children, aged 15, and two twins aged 10 – extremely high conflict – where the siblings are separated – where both parents have engaged in “psychological warfare against their ex-partner at the detriment of their children” – where both parents have involved the children in adult issues and the Court proceedings, engaged in open denigration of the other in front of the children, attempted alienation/alignment of one or more of the children, verbal and psychical abuse on one another, emotional neglect of the children – where the Court holds concerns about both parents and their attitude – where the Court considers that the mother should be allowed to relocate – where the Court considers that the twin girls should remain living with the mother and only have electronic communication with the father – where the Court considers that the eldest boy should continue to live with the father and spend time with the mother in accordance with his wishes – electronic communication between all three children – best interests. FAMILY LAW – Property – where the parties were together for 22 years – where the matrimonial assets are modest – jointly owned home with modest equity – where there are various items and vehicles – superannuation splitting order – just and equitable.
Legislation:	Evidence Act 1995 (Cth) Family Law Act1975 (Cth), Part VII and Part VIII
Cases cited:	Adamson & Adamson (2014) FLC 92-622 Adler & Parrow [2024] FedCFamC1A 192 AMS & AIF (1999) 199 CLR 160 Haughton & Brickley [2022] FedCFamC2F 1253 Isles & Nelissen (2022) FLC 94-092 M & M (1988) FLC 91-979 U & U (2002) 211 CLR 238 Zahawi & Rayne [2016] FamCAFC 90
Division:	Division 2 Family Law
Number of paragraphs:	374
Date of last submission/s:	16 August 2024
Date of hearing:	4 - 6 March 2024 & 14 - 16 August 2024
Place:	Newcastle
Counsel for the Applicant:	Mr Bithrey
Solicitor for the Applicant:	Clarity Lawyers
Solicitor Advocate for the Respondent:	Mr White
Solicitor for the Respondent:	Powe & White Family Lawyers
Counsel for the Independent Children’s Lawyer:	Ms Court
Solicitor for the Independent Children’s Lawyer:	Grace Family Law Solicitors

NEC 1016 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS HAUGHTON Applicant
AND:	MR BRICKLEY Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE BETTS
DATE OF ORDER:	3 DECEMBER 2024