Homewood & Parkinson - [2021] FamCA 516

FAMILY COURT OF AUSTRALIA
Homewood & Parkinson [2021] FamCA 516

File number(s): ADC 747 of 2015

Judgment of: BERMAN J

Date of judgment: 16 July 2021

Catchwords:
FAMILY LAW – CHILDREN – Parental responsibility – Best interests of child – Where family violence is a factor in the proceedings – Where the parties cannot agree to an approach for the ongoing care of the children – Where the father’s conduct directed towards the mother speaks against shared parental responsibility – Where it is not in the bests interests of the children that there be shared parental responsibility.

FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Best interests of child – Family Violence – Child’s views – Where the mother seeks that there be no time spending with the father – Where the father seeks a resumption of time initially on a supervised basis and with one of the children’s attendance to be subject to their wishes – Where there are allegations of family violence – Where the mother considers the father presents as a risk to the children – Where one of the children is resistant to spending time with the father – Consideration of whether a meaningful relationship with the father would be in the children’s best interests – Where there is a finding that the father has perpetrated family violence – Where the evidence does not suggest that the father poses a direct threat to the children – Consideration of the impact of time spending on the mother’s ability to parent the children – Where the relationship between the father and one of the children should be fostered – Orders.

FAMILY LAW – PROPERTY SETTLEMENT – Leave to file application out of time – Where the mother seeks leave to initiate property proceedings out of time – Where the father opposes the application – Where the mother initiated both parenting and property proceedings in 2015 – Where the mother discontinued the proceedings shortly thereafter – Where the mother again initiated proceedings in 2018 but only as to parenting matters – Where the mother amended her application to seek orders as to property settlement – Where the mother was declared bankrupt in 2014 – Whether hardship would be caused if leave were not granted – Whether the Court should exercise its discretion to grant leave – Where the mother has a prima facie claim – Where hardship is established – Where the mother’s evidence does not provide a ready explanation for delay – Where the father would not be prejudiced – Leave granted.

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Future needs – Family Violence – Where the mother seeks 67.5 per cent of the property pool – Where the father seeks that each party retain property and superannuation currently held by each of them – Where the parties were in a de facto relationship for a little over five years – Where there are two children of the relationship – Where the pool is modest – Where the father made the greater initial capital contribution – Where the mother was and will continue to be the primary carer of the children – Where the mother will bear the sole financial responsibility for the future care of the children – Orders.

Legislation: Family Law Act 1975 (Cth) ss 4AB, 44(5), 44(6), 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 90SM, 90SF

Cases cited:
Baglio & Baglio [2013] FamCA 105

Blanding & Blanding [2016] FamCAFC 21

Cotton & Cotton (1983) FLC 91-330

Edmunds & Edmunds (2018) FLC 93-847

Hall & Hall (1979) FLC 90-679

Harridge & Harridge [2010] FamCA 445

Hunter & Berg [2017] FamCA 1051

M v M (1988) 166 CLR 69

McCall & Clark (2009) FLC 93-405

Money & Money (1994) FLC 92-485

N & S & the Separate Representative (1996) FLC 92-655

Pascoe & O’Keefe and Ors [2018] FamCAFC 243

Pearce v Pearce (1999) FLC 92-844

Sharp & Sharp (2011) 50 Fam LR 567

Sigley & Evor (2011) 44 Fam LR 439

Singerson & Joans [2014] FamCAFC 238

Vasser & Taylor-Black (2007) FLC 93-329

Whitford & Whitford (1979) FLC 90-612

Number of paragraphs: 430

Date of hearing: 19 – 23 October 2020 and 25 – 26 February 2021

Place: Adelaide

Counsel for the Applicant: Mrs Tinning

Solicitor for the Applicant: Cardone & Associates

Counsel for the Respondent: Mr Mr Parkinsons

Solicitor for the Respondent: VP Lawyers
ORDERS

ADC 747 of 2015

BETWEEN:
MS HOMEWOOD

Applicant

AND:
MR PARKINSON

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

16 JULY 2021

THE COURT ORDERS:
1.That all previous orders be discharged.
2.That the mother have sole parental responsibility for X born … 2010 and Y born … 2014 (collectively “the children”) provided that the mother will contact the father in writing in connection with any long term issues involving the children and any decisions that she intends to make.
3.That the children live with the mother.
4.That X shall spend time with the father as may be agreed between the parties subject to X’s wishes provided that if X shall express a wish to spend time with and or communicate with the father then the mother will do all things necessary to facilitate the said time to be spent or communication.
5.That the father shall spend time with Y as follows:
(a)For six (6) periods of two (2) hours duration at a frequency of one (1) period each fourteen (14) days to be supervised at the B Centre upon such terms and conditions as may be nominated by the Director of the said centre.

6.That the parties will do all things necessary to facilitate the enrolment of the parties and the child at the said centre.
7.That thereafter the father shall spend time with Y as follows:
(a)That for a period of six (6) months commencing on the fourth Saturday following the publication of the report prepared by the family consultant, on each alternate Saturday from 1.00 pm until 5.00 pm;
(b)Subject to compliance with paragraph 10, for the following six (6) months thereafter on each alternate Saturday from 10.00 am until 4.00 pm;
(c)For a further six (6) months thereafter from the conclusion of school on Friday until 4.00 pm on Saturday and each alternate weekend and thereafter from the conclusion of school on Friday until 4.00 pm on Sunday on each alternate weekend.
(d)Commencing in the September/October 2022 school holidays for one half of the short end of term school holidays as may be agreed between the parties but in default of agreement the father shall have the first half of the holidays from the conclusion of school until the middle Saturday at 5.00 pm.
(e)Commencing with the Christmas school holiday period in 2022 on each alternate week but in default of agreement the father’s time shall commence from 5.00 pm on the first Saturday after the last day of the school term until the following Saturday at 5.00 pm and each alternate week thereafter.
(f)From 4.00 pm Christmas Eve until 4.00 pm on Christmas Day in 2022 and each alternate year thereafter;
(g)From 4.00 pm Christmas Day until 4.00 pm on Boxing Day in 2023 and each alternate year thereafter.

8.That the children shall spend time with the mother:
(a)From 4.00 pm Christmas Day until 4.00 pm on Boxing Day in 2022 and each alternate year thereafter;
(b)From 4.00 pm Christmas Eve until 4.00 pm on Christmas Day in 2023 and each alternate year thereafter.

9.That handover shall occur at such place as the parties may agree but in the absence of agreement either at a Police Station that is geographically close to the mother’s residence or at a Children’s Contact Service subject to availability and acceptance into the handover scheme.
10.That for a period of six (6) months from the date of this order the father shall attend upon a suitably qualified psychologist, social worker or therapist to comply with all instructions, counselling/or therapies as may be recommended by him or her with such therapeutic intervention to be directed to the following areas:
(a)Impulse control, frustration and self-awareness management;
(b)Psychoeducation regarding the physiological and psychological queues to anger;
(c)Anger arousal reduction techniques, e.g. deep breathing and calming techniques;
(d)Safe, appropriate and respectful physical and emotional ways to “release” anger;
(e)Differentiating between assertiveness and being hostile;
(f)Rebuilding relationships damaged by anger issues; and
(g)Communicating needs without disrespecting others;

and that he shall forward to the mother a document confirming that he has attended on at least six (6) sessions.
11.That each party is at liberty to receive all information, reports and photographs taken of the children from the school at which the children attend.
12.That if any of the children suffer a medical emergency the parent with whom the child is residing or spending time with shall notify the other parent as soon as is reasonably practical and advise of the nature of the medical emergency and the details of any hospitalisation or other treatment.
13.That the father is at liberty to forward gifts, presents and appropriate communication to the children to celebrate and/or commemorate their birthdays, Easter, Christmas and other special occasions provided that the mother will provide to the father appropriate contact details and/or a forwarding address.
14.That the parties are restrained and an injunction is granted restraining each of them from:
(a)Denigrating the other parent to or in the presence of the children or allowing any another person to do so; and
(b)Denigrating the other parent on any social media website or forum or allowing any other person to do so.

15.That pursuant to s 44(6) of the Act leave be granted to the mother to proceed out of time with respect to an application for the alteration of property interests pursuant to s 90SM of the Act.
16.That in full and final settlement of any claim that either party may have against the other for settlement of property or alteration of interests in property pursuant to Pt VIIIAB of the Act:
(a)That within ninety (90) days of this order the father shall pay to the trust account of Cardone and Associates for and on behalf of the mother the sum of EIGHTY SEVEN THOUSAND EIGHT HUNDRED AND FIFTY FIVE DOLLARS $87,855 (the said “settlement sum”).
(b)That in default of the payment of the settlement sum in whole or in part and should the default continue for more than thirty (30) days from the date of the prescribed payment then the parties shall do all things and sign all documents as are necessary to cause the property situate at D Street, Suburb C, South Australia (“the Suburb C property”) to be sold by such manner, at such price, and subject to such conditions as shall be agreed between the parties and in the absence of agreement as may be determined by this Honourable Court upon the application of either party.
(c)That from the net proceeds of the sale of the Suburb C property the mother shall receive so much of the settlement sum as shall remain outstanding together with default interest as calculated at the rate prescribed by rule 17.03 of the Family Law Rules 2004 (Cth) (“the Rules”) to be calculated as and from the date of default until the date of payment to the mother.

17.That the mother shall retain to the exclusion of the father:
(a)Her separate savings including funds in various accounts;
(b)Her motor vehicle;
(c)Her furniture and household contents;
(d)Her clothing and jewellery;
(e)Any benefits, rights or entitlements due or accruing to or which may vest in her under any deceased estate; and
(f)Any other real and/or personal property or financial resources in her name or possession not otherwise specified.

18.That the father shall retain to the exclusion of the mother:
(a)The Suburb C property;
(b)His separate savings including any funds in any account;
(c)His furniture and household contents;
(d)His clothing, jewellery and personal effects;
(e)All benefits, rights or entitlements due or accruing to or which may vest in him under any deceased estate; and
(f)Any other real and/or personal property or financial recourses in his name or possession not otherwise specified.

19.That each party do indemnify the other in relation to their separate debts.
20.That the proceedings be removed from the pending list of cases.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Homewood & Parkinson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION

Ms Homewood (“the mother”) and Mr Parkinson (“the father”) started a relationship in October 2009 and commenced cohabitation in the following month.
X was born in 2010.
The parties separated for one month in December 2010 and for four months in late 2013.
During a period of reconciliation, Y was born in 2014 with the parties separating in early 2015. The mother contends that separation occurred on 18 January 2015 following an incident of family violence whereas the father considers the date of separation to be in March 2015 when the mother and the children left the father’s property at D Street, Suburb C (“the Suburb C property”).
The parties are not agreed as to the future parenting arrangements for X and Y (collectively “the children”) nor in respect of property settlement and division. The mother does not consider the children should spend any time with the father.
The mother concedes that unless she is successful in her application pursuant to s 44(6) of the Family Law Act 1975 (Cth) (“the Act”) the Court has no jurisdiction to make orders for the alteration of property interests pursuant to s 90SM.
If successful the mother seeks that the property interests of the parties be divided as to 67.5/32.5 per cent in her favour.
The mother does not seek any adjustment with respect to the separate superannuation interests of each of the parties.
Pursuant to the Further (Further) Amended Response to Initiating Application filed 12 October 2020, the father seeks that the mother’s application for leave to bring proceedings for property settlement out of time be dismissed. However, in the event that leave is granted then the father seeks that each party shall retain their separate assets and liabilities currently in their name, possession and control free from claim by the other.
In addition, the father seeks that the parties have equal shared parental responsibility for the children.
The father concedes that the children should live with the mother but that they spend time with him as agreed but in default of agreement, on a gradually increasing basis commencing each weekend on Saturday from 10.00 am to 4.00 pm and after a period of about sixteen weeks the children to spend time with the father as follows:
(a)Each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday;
(b)In the intervening week, each Wednesday from the conclusion of school until the commencement of school on Thursday;
(c)For one half of all school term holidays as may be agreed and in default of agreement for the first week of the school holidays;
(d)During the long Christmas school holidays as may be agreed but in default of agreement with each party on a week about basis;
(e)On special occasions to include Christmas, Easter, birthdays, Mother’s Day and Father’s Day.
In addition, the father seeks that the parties communicate with each other as to the health issues affecting the children and that each party be entitled to obtain copies of school reports, notices, letters and invitations to attend parent/teacher interviews or other activities to which parents are usually invited.
BACKGROUND
The father is 66 years of age and the mother is 37 years of age. The father was born in England and immigrated to Australia in 1972.
He holds a Bachelor Degree.
He is currently a self-employed professional and operates a modest business from his residential premises at D Street, Suburb C (“the Suburb C property”).
He has an adult daughter from a previous relationship.
The mother holds a Bachelor Degree.
The mother completed a Graduate Diploma on 20 July 2010. During the course of the litigation, the mother was a self-employed professional working on a part-time basis. In October 2020, the mother closed her business and surrendered her business licence. As at the conclusion of the proceedings the mother was not working in any capacity and her only form of assistance was a government benefit, pension or allowance.
The parties commenced cohabitation in November 2009 when the mother moved into the Suburb C property.
Y was born in 2014 and in January 2015 on the mother’s case the parties separated albeit they were living separately and apart under the one roof.
X was born in 2010.
The mother and the children left the Suburb C property in February or March 2015.
Neither party has re-partnered. The mother alleges that during their relationship the father was violent and verbally abusive. Moreover, the mother contends that the father engaged in controlling and coercive behaviour.
The mother alleges that the father was not able to control his use of alcohol and that behaviour and his frequent use of marijuana contributed to the father behaving aggressively, evidenced by frequent and unpredictable mood swings.
The mother remains concerned that the father’s aggressive, controlling and coercive conduct presents as a risk to the children, but in particular X. The mother alleges that there were incidents of physical assault by the father to X and that his observations of the father’s conduct and behaviour towards the mother has had a deleterious impact on X’s mental health, to the extent that he requires ongoing therapeutic intervention. Moreover, the mother has been diagnosed with an adjustment disorder with mixed anxiety and depressed mood. She receives therapeutic support from a psychologist and a psychiatrist. The mother contends that her anxiety and trauma is causally connected to the father’s adverse conduct.
The mother commenced proceedings for property settlement and parenting orders by filing an Initiating Application on 4 March 2015. For reasons that are not entirely clear, she filed a Notice of Discontinuance of the entire proceedings on 18 March 2015.
The parties are not agreed as to the extent and the circumstances of the time the father spent with the children between March 2015 and April 2017. The father considers that he spent regular time with the children unsupervised and on occasion including overnight time.
The mother denies that there was any overnight time and states that the time the children spent with the father was supervised by her.
Following the parties and the children attending a Wiggles concert and then a holiday in the F Region in April 2017, the father ceased spending time with the children.
There have been a few occasions when the mother alleges that the father has attended either at her home or at the children’s school uninvited. The father admits that his time with the children was not regular but that when faced with what he considered to be the mother’s apparent opposition to him seeing the children, he took advantage of attending certain curricular and extracurricular activities of the children.

In August 2014, the mother was declared bankrupt and was discharged from her bankruptcy in August 2017. The mother initiated proceedings for the second time on 22 May 2018 and later amended her application to seek orders for an extension of time within which to bring an application for settlement of property in addition to parenting orders.
LEGAL COSTS AND DISBURSEMENTS OF THE PARTIES
Exhibit “1” in the proceedings contains the statement of costs for each of the parties. The estimate for the total costs of the mother to the conclusion of the proceedings is $151,921. Of that sum, the mother has paid the following:
·Fees and disbursements paid to the mother’s former solicitors        $20,000.
·Legal fees billed and paid to the mother’s current solicitors             $9,559.
·Counsel fees paid to the date of proceedings   $2,750.
·Disbursements for professional witnesses paid in the sum of           $10,905.
The father was provided with legal representation under the Commonwealth Family Violence and Cross-Examination of Parties Scheme pursuant to s 102NA of the Act.
The father has contributed $100 to his legal costs with the expectation that the balance will be paid via the scheme.
It appears that in any event the father’s legal fees are modest in the sum of $9,982.
The contrast between the fees incurred by the mother and those incurred by the father is not easily reconciled either in terms of any disparity in quantum or the extent of the liability of the mother to be responsible for her fees, as opposed to the father whose fees are otherwise paid.
The issue of the parties’ legal fees is to be considered against a pool of property (even if the mother is successful on her application for leave to bring proceedings out of time) including the Suburb C property being agreed at $350,000 and the home loan secured over Suburb C at $128,000. Even on the best outcome for the mother almost the entirety of any settlement sum will be consumed by the payment of legal fees.
DOCUMENTS RELIED UPON
The mother relies upon the following documents:
(f)Further (Further) Amended Initiating Application filed 16 September 2020;
(g)Financial Statement of the mother filed 16 September 2020;
(h)Trial affidavit of the mother filed 17 September 2020;
(i)Mother’s affidavit in reply filed 17 October 2020;
(j)Affidavit of Dr G (Psychiatrist) filed 11 September 2020;
(k)Affidavit of Ms H (Psychologist) filed 11 September 2020;
(l)Affidavit of Dr J (Psychiatrist) filed 11 September 2020;
(m)Affidavit of Mr K (Ophthalmologist and Consultant Eye Surgeon) filed 11 September 2020; and
(n)Affidavit of Ms L (Family Consultant) filed 16 September 2020.
The father relies upon the following documents:
(a)Further (Further) Amended Response to Initiating Application filed 12 October 2020;
(b)Financial Statement of the father filed 12 October 2020; and
(c)Trial affidavit of the father filed 12 October 2020.
The Court considered the report prepared by family consultant Ms M on 12 February 2021 pursuant to s 62G(2) of the Act.
PROCEDURAL HISTORY
The proceedings commenced on 19 October 2020 and were adjourned part-heard on 23 October 2020 to await the family consultant’s family report.
Judgment was reserved on 26 February 2021.
Ms L (family consultant) was the single expert family consultant and psychologist tasked to provide a family report to assist the Court in determining the best interests of the children.
Ms L’s report dated 31 July 2019 is annexed to her affidavit filed 16 September 2020.
A significant issue in the proceedings is the mother’s strongly held view that the father was the perpetrator of family violence, controlling and coercive behaviour before separation. The report prepared by Ms L indicates that at the very least, if the Court found that the father was the perpetrator of coercive and controlling behaviour then this would speak strongly against an order for shared parental responsibility.
In particular, at paragraph 67 of Ms L’s report she referred to the father’s denials to the mother’s allegations of family violence and considered that his response “appeared to justify inappropriate behaviour in the context of a Family Assessment Report…”[1]. The father’s response was given weight by Ms L and was the catalyst for her to contact the mother’s solicitor to ensure that the mother was mindful of her safety. A notification to the Department for Child Protection was also made.
[1] Family Report by Ms L dated 31 July 2019, paragraph 67.
I was concerned that the matters of importance raised by Ms L may nonetheless have the potential to be considered as having prejudged the central issue in the parenting proceedings and out of abundance of caution, I ordered that a different family consultant be tasked to provide an update or addendum report.
THE EVIDENCE
The mother
The mother introduced into evidence a photograph taken on 1 May 2012 which she considers is evidence that the father used marijuana.
Exhibit “2” in the proceedings consists of photographs taken on 19 January 2015 which the mother contends shows bruising to her upper arm caused by the father.
The mother agreed that the final separation was on or about 26 February 2015 but that she was preparing to leave some time prior to that date.
The mother was declared bankrupt on 9 August 2014. She commenced family law proceedings on 4 March 2015.
Section 90SP of the Act requires that a bankrupt who becomes a party to proceedings for settlement of property is required to give notice of the application to the trustee in bankruptcy. The mother conceded that she did not give the requisite advice.
The mother was not able to explain adequately why she neglected to do so.
On 21 January 2015, the mother made an application to Centrelink to obtain a pension benefit or allowance. She obtained accommodation in N Town and agreed that she and the children had spent time with the father at his Suburb C property.
The mother denied that she and the father shared the same bed and breakfast during a holiday in P Town.
Similarly, the mother denied that the parties and the children booked a holiday in the F Region for the 2017 Easter long weekend. The father contends that the parties and the children travelled in the same car whereas the mother denied that they travelled together or that they stayed in the same premises.
The mother was challenged over her recollection of the F Region holiday and it was put to her that the father cooked a barbeque for the family on Good Friday, went to a restaurant on Saturday and had a pizza meal on Sunday night.
The mother continued to deny the proposition that the parties had shared a holiday in the F Region. The mother’s evidence was unconvincing and I consider on the balance of probabilities that the father’s evidence of a shared holiday in the F Region is more credible.
The mother agreed that in 2016 the parties and the children went to Sydney on the same flight. The mother accepted that the father was present but it was her recollection that it was uncomfortable for the children.
When pressed, the mother also agreed that the parties and the children attended a Wiggles concert in April 2017.
The mother was dismissed from her employment in February 2017. The mother agreed that she had contacted the father for help and advice. The father apparently referred the mother to a barrister specialising in employment law and then to a solicitor to explore whether the mother had a claim for unfair dismissal.
It appears that the mother also used the father’s car park in the city and for a significant time she retained a key to the father’s Suburb C property. It is not contested that the father had a key to the mother’s property however, she rejected the proposition that the father was given a key by her and she considers that he got the key by some other indirect means.
The mother alleges that the father was the perpetrator of family violence that involved physical assault and also controlling, coercive conduct. To reinforce her assertion, the mother considers that a historical allegation that the father had harassed and abused a former girlfriend was relevant.
The mother agreed that she did not have direct knowledge of the historical allegations dating back to January 1995 but that following an order made pursuant to s 69ZW of the Act the South Australian Police produced documents which included a police apprehension report in which Ms Q, a former girlfriend of the father, made a complaint against the father that she had been “harassed and abused and feels that [the father] will not leave her alone after she has repeatedly told him not to contact her”.[2]
[2] Affidavit of the mother filed 17 September 2020, paragraph 158.
The mother then contacted the father’s eldest daughter Ms R to ascertain the names and contact details of any former partners or girlfriends of the father.
Whilst there was no challenge to the admissibility of the purported enquiry by the mother of alleged harassing conduct by the father, the mischief arises in the police apprehension report having been supplied to the family consultant Ms L with the following reference appearing in her report dated 31 July 2019:
114.… [The father] has a prior Police report about similarly concerning behaviour towards an ex-partner, although the father pointed out this evidence was not tested at trial; on balance, however, given the mother’s suggested reliability, it does seem more likely than not to have occurred as reported.
The use by the mother of the alleged antecedent history of the father was significant. When the mother applied for child support on 21 January 2015 from Centrelink, she obtained an exemption based upon the allegations of family violence. The mother was able to receive a Centrelink benefit or pension and was given an exemption from the maintenance action test, relieved of the obligation to pursue child support.
Even so, the mother agreed that she did ask the father for support in respect of education expenses and nappies for Y.
The mother caused X to leave S School and move to N Town Primary School in late 2019. The mother believed that X was suffering from trauma.
It was put to the mother that she had not advised the father that X had been prescribed Risperidone which is an antipsychotic medication. The mother agreed that she had not given the father advice as to the treatment or regime for each of the children.
The father was made aware of the purported difficulties that X was experiencing at S School and the mother’s position that X should be referred to Dr G to assist in dealing with X’s “extreme anxiety and hyper-vigilance due to trauma suffered by X both during the relationship and due to post-separation issues”.[3]
[3] Exhibit “9”, page 1.
The father did not stand in the way of the mother’s attempt to change the children’s school however, the mother did express concern that the father would want to attend the children’s school for a parent and teacher interview.
The mother agreed that she did not consider the father should have any involvement in the children’s schooling.
The mother refers to an incident that occurred at the end of year school assembly on 7 December 2018. The assembly was X’s last day at T School.
The father attended at the assembly. There is some issue between the parties as to the extent to which the father was involved. The mother alleges that the father was in close proximity to X whereas the father considers that he was un-intrusive in his attendance.
The following passages from the mother’s trial affidavit were put to her:
194.22There had been times when Y and I had joined X on the floor during assembly to help settle X. That was because X would often become distracted and restless during assemblies. When Y saw X reaching for me, he hopped off my lap and started making his way over to X because I believe he thought that X was calling out/gesturing for him.
194.23While making his way over to X, Y passed [the father] in the side left aisle. [The father] quickly picked him up. Y was visibly surprised to have been picked up. I saw him squirming to get down. X then started to cry and bolted across to me for a hug. He whispered in my ear “Daddy’s got Y. He’s going to take Y. What if he doesn’t give him back.”
(Original emphasis)
It was put to the mother that there was nothing in the father’s conduct which indicated that he had attended the assembly with the intention to hurt the children or disrupt the event.
The mother’s evidence was exaggerated and I find that it is likely the mother escalated any anxiety that may have been caused or occasioned to the children by the father’s attendance.
The mother reconfirmed her position that she could not contemplate any outcome where the children will spend any time with the father.
The mother agreed that the parties had kept their finances separate. When challenged, the mother was not able to provide evidence of financial control.
The mother agreed that she had received legal advice in preparation for the filing of the Initiating Application in 2018 and importantly, the advice received by her did not involve issues as to property settlement and division.
The mother’s evidence was not consistent with her explanation for delay in amending her Initiating Application to include orders for property settlement, namely that the father had threatened her.
I accept the mother’s evidence that the father provided scant financial assistance for the children.
The mother is considered to be an unreliable witness.
Dr J
Dr J is the mother’s treating psychiatrist. She holds appropriate professional qualifications and her expertise is not the subject of challenge. Her evidence is based upon her skill and expertise but she is not to be considered as a single expert.
Dr J’s evidence is contained in a report dated 21 August 2020 following a request from the wife’s solicitors. The report is annexed to the affidavit of Dr J filed 11 September 2020.
The wife had not consulted Dr J prior to April 2020. No observation was made of the mother with the children.
Dr J was broadly aware of the orders sought by each of the parties, in particular that the mother sought to have the sole parental responsibility for the children and that they live with her but spend no time with the father.
Dr J was aware that the father seeks that the parties have equal shared parental responsibility and that the children live in a shared care arrangement on a week about basis.
The mother provided a history to Dr J that was broadly consistent with the matters raised in her affidavit material.
Dr J records that post-separation the mother experienced increasing anxiety. She was struggling with her obligations and ability to act in her capacity as a professional. Dr J records that the mother’s concerns as to her inability to attend Court and was the catalyst for her leaving her employment and commencing her own business.
The report records the mother’s reaction to a motor vehicle accident that occurred in March 2020. Her anxiety was purportedly exacerbated by the apparently courteous and caring attitude of a male driver of the car involved in the accident.
The mother reported that she was made uncomfortable because the driver was “charming, touched her hair, put his arm around her back”[4] and then was concerned for the safety of one of the children. The mother contends that the driver reminded her of the father and her reaction was to freeze. Her sleep was thereafter interfered with and X demonstrated increased anxiety.
[4] Affidavit of Ms J filed 11 September 2020, annexure “J-3”, page 30.
The gravamen of the mother’s explanation for her anxiety and distressed state was her contention that the father was physically violent towards her and his demeanour was intimidating.
It seems that the mother’s anxiety was also heightened by the dysregulated behaviour of X and his referral to Dr G, psychiatrist, for therapeutic intervention potentially triggered by the insensitive conduct and response of teachers and staff when X had attended S School.
Dr J engaged with the mother on a fortnightly basis with the therapeutic approach being cognitive behaviour therapy and supportive psychotherapy to manage the stressors arising from the litigation and the extent and impact of direct and indirect contact with the father.
Dr J summarises the current state of the mother’s mental health as follows:
[The mother’s] current state of mental health is that she presents with a reduced level of self care, fatigue, has a moderate body mass index, at times exhibits an emotional response, which is appropriate to the distressing theme of conversation. She often has reduced eye contact, appears tense, with a reduced range of affect. Her speech is of a normal rate, rhythm, and prosody, is interruptible and logical in form. There was no evidence of thought disorder. Her affect is anxious, with depressed mood. There is no evidence of delusional content of speech, nor paranoia however themes include the need to maintain safety for the children, and hypervigilant for the presence of [the father]. She did not respond to unobserved stimuli, in the form of hallucinations. No psychotic phenomena were elicited. She had a high level of intelligence and cognitive functioning.
[The mother] had insight into her current predicament, the symptoms that she exhibits and how these impact her. Judgment remains intact.[5]
[5] Ibid, page 35.
Dr J did not consider that the mother’s current presentation would impact adversely on her ability to parent the children. She has an “Adjustment Disorder with Mixed Anxiety and Depressed Mood”[6] which “results in symptoms of insomnia, fatigue, headaches, anxiety, depressed mood, avoidance behaviour, withdrawn behaviours, reduced concentration for occupational tasks and irritability”.[7]
[6] Ibid, page 37.
[7] Ibid.
Dr J considered that if the ongoing stressors relating to both litigation and the continued involvement of the father were to continue then there is a negative prognosis for recovery from the adverse consequences of the mother’s adjustment disorder.
Dr J was asked to consider the potential impact of the proceedings on the mother’s general health, including her emotional and psychological state. Dr J was asked to consider the potential impact upon the mother if orders were made in the terms as sought by the father. She records her opinion as follows:
It is my opinion that ongoing communication and consultation with her former partner directly or indirectly would both have similar impact on her health, through ongoing symptoms of anxiety and depressed mood, as well as the reduced ability to engage with others socially and the negative impact on her occupational functioning which in turn would impact her psychological state. The loss of income and loss of earning capacity also impacts her emotional state and the manner in which she can provide care and opportunity for the two children. This in turn impacts her self-esteem and self-evaluation of her role as a mother.[8]
[8] Ibid, page 39.
When asked to consider the direct impact upon the mother if an order was made for the children to spend time with the father, Dr J considered that the likely exacerbation of the mother’s anxiety could be managed by increasing the frequency of the therapeutic sessions which would focus on helping the mother cope with her anxiety and to increase her emotional availability to the children.
Dr J was clear in her evidence that the impact upon the mother would be significant but would not render her unable to provide the children with appropriate care. The one caveat that is evident from Dr J’s evidence is the extent to which any increased anxiety, distress or dysregulated behaviour by the children but in particular X, would further compromise the mother’s ability to parent the children.
As could be expected, Dr J was clear and forthright in her evidence and should be considered as giving credible evidence.
Ms H

Ms H is the mother’s treating clinical psychologist. She holds appropriate professional qualifications and has appeared as a single expert in numerous parenting cases.
On this occasion Ms H does not appear as a single expert but rather as a health professional that has been providing therapeutic assistance to the mother since 19 September 2017.
Her report of 20 August 2020, annexed to her affidavit of 11 September 2020, records that the mother has consulted with Ms H on 23 occasions as at the date of the report and thereafter on a monthly basis.
The focus of the psychological intervention has been to assist the mother in dealing with the litigation and the proper management of her stress and anxiety.
The treatment has involved cognitive behaviour therapies not dissimilar to the treatment provided by Dr J.
Ms H records that the mother continues to feel unsafe, reports a history of coercive and controlling domestic violence and heightened anxiety as to the extent of trauma that the children would sustain if forced to see the father.
Ms H was asked to consider the potential impact on the mother if orders were made in terms of the father’s application.
Ms H considered that the mother’s current anxiety is the result and response to trauma during the relationship.
Whilst at present Ms H considered that the mother was able to compartmentalise her emotional and psychological difficulties in order to parent the children at an appropriate level, there is a risk that if her anxiety is further heightened her ability to provide parenting to the children may be compromised.
Dr G
Dr G is a registered medical practitioner and psychiatrist in private practice. He has been treating X since 23 October 2019 following a referral from a general practitioner.
Following a request from the mother’s solicitors, Dr G prepared a report dated 2 September 2020, being annexure “G-3” to Dr G’s affidavit filed 11 September 2020.
X reported to Dr G that his father “was mean and that he drinks lots of alcohol.”[9]
[9] Affidavit of Mr G filed 11 September 2020, annexure “G-3”, page 26.
X also expressed fear arising from his belief that the father wanted to take X and Y away.
On observation, X presented as anxious and insecure although his speech and language were developmentally appropriate.
X reported that he was not able to sleep in his own bed and co-slept with his mother.
Dr G diagnosed X as suffering from a generalised anxiety disorder together with a post-traumatic stress disorder.
After a three month intensive therapeutic program, Dr G observed that X was less anxious and reported that he was now able to sleep well on his own. Dr G considered that the prognosis was for a good outcome.
Dr G made contact with the father who attended for an interview on 9 July 2020.
The interaction between Dr G and the father prompted Dr G to form the following opinion:
I am of the opinion that it would be detrimental to the psychological well being of X to have any contact with his father and in particular for him if he was to be involved in any shared placement with the father. The father did not display any insight, appreciation, nor understanding of children’s and in particular X’s developmental needs.[10]
[10] Ibid, page 27.
Dr G had a further involvement with X following what appeared to be a significant deterioration in X’s anxiety levels in anticipation of an appointment to see Ms L for the purpose of a family assessment. Consequent upon a discussion between Dr G and Ms L, the assessment did not proceed.
Dr G agreed that against the background of X not having seen the father since May 2017 little weight could be placed upon the child’s recollection that the father was “mean” and had consumed “lots of alcohol”.
It appears that Dr G accepted the child’s report without question. It is a live issue that the father denies that he consumed alcohol to excess and that alcohol is not a relevant consideration.
Dr G also agreed that the father had challenged the need for X to be prescribed Risperidone.
Dr G was critical of the father for presenting photographs of his interaction with the children, attempting to demonstrate that they showed happy interaction. Dr G considered that the father’s attempt to emphasise the importance of the photographs underpinned his assessment that the father had attempted to take control of the interview and to highlight a different version of events to that as promoted by the mother.
Dr G was asked to consider the weight that should be placed on X’s remarks that the father was mean, drank alcohol to excess and might remove the children from the mother’s primary care. Whilst Dr G accepted that X was likely to have experienced a traumatic environment when the family was intact, he did not place significant weight on the direct allegations made by X. Dr G was challenged as to the potential for X to retain what could be a false belief that the father was a poor parent compromised by a mean attitude, consumption of alcohol to excess and a fear of removal.
Dr G considered that even if this were to be a false belief by X, as he matured, a point would be reached where he might be able to rationalise a more accurate view of the father.
Dr G’s evidence was unconvincing in his assertion that even if a false belief may result in X having no relationship with the father during his minority years, it should not be assumed that there would be an adverse impact experienced by X.
An important aspect of Dr G’s evidence was his considered opinion that the belief by the child that his father might steal him away would be a terrifying concept.
Dr G was asked to consider the circumstance were the Court to find that there was no evidence which would support the child’s belief that the father intended to remove him from the mother’s care.
Dr G conceded that there were issues in respect of X’s presentation which were not just confined to the anxiety arising out of the litigation and the dispute as between the parents. He considered his ongoing involvement would be therapeutic and that it was intended to provide X with assistance beyond the anxiety that may be caused either by an order that would involve no time spending with his father or the alternative, namely, that X would resume spending time with the father.
Dr G considered that the presentation of the child and the concern that the father lacked emotional attachment raised the very real question as to whether the father has anything of benefit to offer the child. His concern was that irrespective of the underlying reason for X’s anxiety, it could be exacerbated by the child coming into contact with the father and reach a level that would require heightened management, therapeutic intervention, an increase in medication or possibly hospitalisation.
Dr G was forceful in his opinion that the father had nothing to offer the child and as such there was no utility in any attempt to restore a relationship.
Dr G was asked to articulate whether his assessment of the father as not displaying any insight, appreciation or understanding of X’s developmental needs forms the basis for his opinion that it would be detrimental to X’s psychological wellbeing to have contact with him. Observations and opinion of the father informed his position that X would not benefit by seeing the father. I was not convinced that Dr G’s reason were sound in circumstances where he conceded that if the father had presented in a more insightful manner then there may well have been some advantage in X spending time with him.
In particular, the relatively short interview with the father would not have permitted Dr G to form the opinion that the father lacked insight, appreciation or understanding of the children’s needs.
I consider that the demarcation between Dr G giving evidence in his capacity as X’s clinician and evidence that would normally be given by a single expert are blurred. Dr G revealed that he had been sent a copy of Ms L’s report. It appears that he placed weight on the background contained in the report alleging overt family violence by the father.
Whilst I question the opinion of Dr G that irrespective of the accuracy of the allegations directed against the father it makes little difference to his view that the father has nothing to offer the children, I am satisfied that a therapeutic relationship has developed between X and Dr G and he may well be able to assist X should there be a change in the child’s circumstances.
The father
The father tendered a photograph which he says depicted the children in accommodation in the F Region on 15 April 2017. The context of the picture is that the parties and the children went on a short holiday together.
Exhibit “16” is a text message from the mother to the father dated 14 May 2017 which the father relies upon to demonstrate that there was a cordial relationship between the parties following separation.
The father relies upon Exhibit “17” namely, a professional application form dated 17 May 2017 that highlights the mother’s new part-time employment with the father.
The father considered that he had commenced a relationship with the mother in about November 2009. He denied that he had used marijuana frequently but did admit to occasional use throughout the relationship. He had not used marijuana for some considerable period of time.
The father was aware of the mother’s allegation that he consumed alcohol to excess. The mother alleges that he would frequent a V Town hotel on a daily basis and that sometimes he would consume ten standard drinks.
The father admitted to him being a patron of the hotel but that it would occur only on Friday afternoon.
The father’s response was to deny the assertion that he consumed alcohol to excess.
The father has lost contact with the mother. There has been no communication for some years and he last saw the children at a Christmas break up at T School in 2018.
The father has not sent any cards or presents to the children but contends that the reason for not doing so is that he does not know where they live.
For her part, the mother does not want to reveal her address and as such does not encourage nor welcome the father being able to forward presents and communication to the children.
The father acknowledged that on 16 September 2019 he was advised by the mother’s solicitors that she intended to change X’s school from S School to N Town Primary School. The application that was forwarded to the father was blank which then caused the father to seek further documents. Ultimately, the father agreed to the change of X’s school.
The father signed the enrolment because he considered it to be a fait accompli.
The father was unhappy with an order made in 2019 that he be restrained from attending at X’s school. He acknowledged that when he did have the school details he did not contact the school to seek school reports, notices and other documents. His explanation was that he was certain that the mother would not authorise it.
It was only after X commenced at N Town Primary School that the father requested a copy of the school reports pertaining to each of the children.
The father’s evidence as to the extent of his interest in the children’s education and their curricular activities was best described as lacking in enthusiasm and was considered to be generally unimpressive.
On 15 October 2018 Y required corrective eye surgery. He was initially placed on a waiting list and the mother wrote to the father advising of the need for the procedure. The father agreed that his initial response was to oppose the surgery which then required an application to be made in the Federal Circuit Court of Australia seeking that the mother have sole authorisation for the medical procedure and to restrain the father from attending the hospital.
On 6 June 2018 the father filed a response. The father did not agree to the order being sought.
On 17 September 2018 an order was made restraining the father from attending at the hospital during the period immediately prior to surgery, during the surgery and in the post-operative period. The father was permitted to contact Dr W, the consulting ophthalmologist for a report.
The father maintains his position that the surgery was not required and that the mother’s care may have contributed to Y’s condition by reason of the mother allowing him excessive screen time and her lack of persistence with the child wearing glasses.
Paragraph 60 of the report of Ms L includes a remark by the husband that he considered the mother has a psychiatric problem. The father agreed that in his session with Dr G he referred to the mother as being “deranged”.
It appears from the father’s evidence that there was a constant theme of the father belittling the mother by reference to her having mental illness and in the use of unkind language directed to the mother such as “crazy”, “irrational” and “stupid”. The father sought to down play the significance of the manner in which he would describe the mother as part of the normal banter between the parties.
At paragraphs 348 and 349 of the mother’s trial affidavit, she alleges that when the father became aware that she had issued proceedings he called her “stupid”, “crazy” and threatened to make her life “a living hell” with the result that she would not retain any care of the children.
The father denies that he made the threats as alleged by the mother. He denies the language that the mother attributes to him and does not consider that his engagement with the mother’s solicitors was intimidating or threatening.
Exhibit “21” consists of email communication from the father to the mother’s solicitors on 1 June 2018, 12 July 2018 and 1 August 2018. The contents have relevance to the proceedings.
The email of 1 June 2018 is in the following terms:
Hello Ms EE
I confirm receipt of an Initiating Application and Affidavit in connection with File No. 747/2015 on Monday 28 May 2018.
It is quite clear that your client, in an endeavour to bolster her position before the Court, has told blatant untruths in her affidavit.
Given her position as a professional this will have serious consequences.
While I understand that you must act in the best interests of your client and you could merely shrug this off as another message from a misguided father, your clients future as a professional is at risk.
This email is sent as a courtesy to your client.
I would be happy to discuss this with you further.
Regards Mr Parkinson
….
The email of 12 July 2018 contains the following content:
Dear Ms EE
As your client is a professional she should be well cognisant that the interests of the child are paramount.
I am aware that your client is a patient of psychiatrist Dr Z of Suburb FF. I can only assume that her psychiatric condition has worsened to the extent that she is [sic] no longer has the capacity to give proper instructions and is not interested in being sensible and reasonable. I suggest that you take your own legal advice on this issue with a view to have any representation taken over by the Public Advocate.
I look forward to hearing from you within seven days.
Regards Mr Parkinson
…
The email of 1 August 2018 contains the following content:
Dear Ms EE
Your refusal to not provide the name of your barrister is disconcerting. Likewise your failure to see the relevance of this request is equally disconcerting. I require the name of your barrister to a) not brief her if she is recommended to me and b) to have the barrister I do brief to communicate with her. In addition I now note from the Court Order of 6 June 2018 that Ms GG of counsel appeared for the applicant mother and as such her name is in the public domain. I gather that Ms GG is Ms GG of HH Chambers. You have failed in your professional courtesy to me.
Furthermore by failing to address the issue of your client’s psychiatric condition you have fallen into error. I have advised previously that your client has told blatant untruths in her affidavit (see my email dated 1 June 2018) and she should be aware, and you should advise her, of her responsibility. Your emails do not disclose that you are aware of the situation your client has placed herself in.
I request that you refer this matter to an experienced practitioner and I have copied in Mr Mellor in this regard.
I look forward to hearing from you by close of business on Friday 3 August 2018.
In the event I do not receive a satisfactory response by that time I intend to lodge a complaint with the [Professional Standards Board].
Regards Mr Parkinson
…
Consistent with his position conveyed to the mother’s solicitor, on 14 May 2020 the father lodged a complaint to the Professional Standards Board[11].
[11] See Exhibit “22”.
The father attached a Summary of Complaint document which sought a determination that the mother fabricated and invented events and told lies presumably to gain an advantage in the parenting proceedings. The father considered that “the scope and breadth of the lies is voluminous”.[12]
[12] Exhibit “22”, page 5.
The mother contends that the father would belittle her and referred to her as a “bitch” and that she was fat. The mother would be criticized if she attended the gym and he based his criticism on his view that the mother was wasting her time and money because she had not lost any weight.
The father also considered that the advent of X co-sleeping with the mother was “unnatural”.
The father was also concerned that during X’s early years at school he was aggressive to other children. The father was firm in his attribution of X’s aggression as a direct result of the mother’s poor parenting skills.
Paragraphs 71-116 of the mother’s trial affidavit attempts to identify conduct of the father that the mother considers as “aggressive, violent, intimidating, frightening and overbearing towards X.”[13]
[13] Affidavit of the mother filed 17 September 2020, paragraph 71.
Whilst the topic sought to be addressed by the mother is highly relevant, the manner in which the identified paragraphs have been drafted provides little assistance. The mother’s affidavit is comprised of 96 pages with a further 144 pages of annexures. The content of many of the paragraphs would in the ordinary course of events be inadmissible. Paragraphs 71-116 are redolent with submissions, argument and opinion and there is almost a total lack of particularity and detail. The father’s response is that he denies he exhibited conduct during the course of the relationship towards X that was aggressive or violent.
The mother attempts to summarise the purported consequences of the father’s family violence at paragraph 116. It is impermissible for the mother to explain the basis of her observation that X exhibited significant anxiety by her assessment that it was a direct consequence of the father’s family violence.
The father conceded that the separation between the parties was acrimonious but that thereafter the relationship between them was such that there were a number of occasions when the children stayed in his home at Suburb C.
The mother denied the extent that the father asserts the parties and the children were together.
The father referred to a family holiday to P Town and emphasised that the parties and the children stayed in the same accommodation. He further underpinned the joint nature of the holiday by referring to the children’s car seats placed in his car for the expressed purpose of the trip to P Town.
The issue of the father interacting with the children from March 2015 to May 2017 was a significant issue of contention between the parties. Paragraphs 66 and 67 of the father’s trial affidavit sets out the activities he considered were undertaken with the children during that period. There is significant detail and he considers that photographs corroborate the occasion.
Paragraph 183 of the mother’s trial affidavit sets out her evidence as to the arrangements between the parties for the children to spend time with the father.
The mother contends that between March 2015 and April 2017 the children spent time with the father on weekends but limited to a few hours, supervised by the mother and usually in public.

The mother justifies her acceptance of a continued arrangement with the father on the basis that her supervision of his time with the children was preferable to any arrangements that the children spend unsupervised time in the father’s care.
The mother concedes at paragraphs 183.4 - 183.6 of her trial affidavit, that in January 2016 the parties and the children travelled to Sydney on holidays.
At paragraph 183.7, the mother does not accept that the parties and the children holidayed in the F Region in April 2017.
The father was adamant that post-separation the mother was accommodating of his continued relationship with the children. He denied that he imposed himself upon the mother’s arrangements but rather that she welcomed his continuing involvement.
The father agreed that he stopped having regular time with the children in May 2017.
The father denied that he had retained a key to the mother’s home even though he acknowledged that the mother had sent a text message on 22 May 2017, demanding that he return her house key.
The father’s evidence was that he refused the mother’s request because he did not have the key. The father then called the police who attended and directed the father to deliver up the house key to the mother.
The father’s denial that he retained the mother’s house key and refused her request to relinquish possession of it was unconvincing.
Thereafter, the father agreed that there was ongoing acrimony between the parties. The mother asserted that the father would attend her home uninvited. The father denied his attendance and in particular an allegation that on 25 September 2018 he tried to interfere with the lock on the mother’s home.
Of particular concern to the mother was the father’s attendance on 11 May 2018 at a school assembly and then a further attendance at a final assembly in December 2018. On this occasion the father picked Y up. The father contends that Y seemed pleased to see him.
On 5 March 2019 the father attended Y’s kindergarten. He had not seen Y since December 2018. Nothing untoward occurred although the mother considers that the father was unable to restrain himself.
The property of the parties under consideration is at best of modest value. The father purchased the Suburb C property in 2005 for about $200,000. The father thinks that it is now worth about $350,000.
The father had modest superannuation entitlements with AA Super Fund in the sum of $45,000 which was transferred to a self-managed superannuation fund in June 2011.
No documents were produced as to the value of the father’s superannuation interest as at the date of cohabitation.
The father has an outstanding student loan of $11,796 but given the father’s income it is unlikely that the amount will ever be repaid.
Each of the parties have private health insurance. The children are under the mother’s private health policy.
The father was an unimpressive witness. His evidence as to the basis for the complaint to the Professional Standards Board was redolent with malice and I find that in making the complaint, the father was not acting out of any public duty but rather was attempting to undermine the mother and cause her distress.
The husband’s conduct should be considered as coercive, controlling and vindictive.
The husband’s evidence as to the nature of the relationship between the parties post -separation was credible.
Ms L
Ms L holds the qualifications of a Master of Social Work, Bachelor of Social Work and Bachelor of Arts (Psychology).
From 2013 to the present time Ms L has held the position of a Regulation 7 Family Consultant and a Child and Family Consultant Therapist in private practice.
She has had a long career as a Senior Social Worker and Clinician in Child Protection Service.
Following orders made pursuant to s 62G(2) of the Act, Ms L has prepared a family report dated 31 July 2019 (“the first report”) and an update family report dated 11 September 2020 (“the second report”). The first report is annexed to the affidavit of Ms BB filed 2 August 2019 and the second report is annexed to the affidavit of Ms L filed 16 September 2020.
Ms L appears to have given adequate consideration to the history of the relationship in terms of relevant family background, the proposal of the parties and risk factors together with the current parenting arrangements for the children.
Consistent with her current evidence, the mother reported to the family consultant her sense of helplessness, fear and lack of safety when in the presence of the father.
The mother further reported that if X’s circumstances were unpredictable then he was prone to dysregulated emotional conduct.
An important consideration for the mother was her assertion that the father engaged in family violence including physical abuse, assault and coercive and controlling conduct.
A summary of the mother’s allegations of a history of family violence perpetrated by the father is set out in paragraph 42 of the first report:
She noted [the fathers’] physical abuse occurred “if things did not go his way”, and included punching, or pushing and shoving her; the examples she provided tended to suggest these occurred around parenting disputes. Ms Homewood stated that she attended the GP on at least one occasion with injuries. She noted she tended to “remove myself” from moments of conflict, describing herself as “a doormat” but noted one occasion where “I snapped (over [the father] not eating dinner)…I put it in the bin, he walked in…I was trapped, he backed handed me…it stunned me…he grabbed me as I walked past, around my neck…I pushed him”.
A further concern of the mother was her recollection that on occasions of physical violence X had been a witness.
The use by the father of alcohol and cannabis was also reported to the family consultant.
At paragraph 56 of the first report, the family consultant noted the presentation of the father at the commencement of the assessment as being:
initially visibly frustrated, annoyed and angry that the session with the children would not go ahead. At the start of his interview, he was somewhat physically intimidating and disrespectful in that he initially refused to sit, paced up and down, spoke over the Consultant and criticised the assessment process and procedural comments initially made by the Consultant…
The father considered that any displays of difficult behaviour by X were likely as a result of the mother’s poor parenting skills. The father likened the aggressive behaviour of X towards his school peers as mimicking the mother’s presentation.
The father acknowledged a concern that X was very affectionate towards the mother but rarely so with him. In contrast, the father viewed his relationship with Y as being a closer emotional attachment.
The father considered that the mother lacked insight into her behaviour in particular her obstinacy in not readily agreeing to, at the very least, the children spending substantial time with him.
When asked to reflect upon the reluctance of the children to see him for the purpose of observed interaction, the father readily considered that the children had been poisoned and manipulated by the mother against having any positive relationship with him.
In the course of interaction between the father and the family consultant she attributes the following statement to him:
“lies…I have been painted as on ogre”, and concluded “this is why people take things in their own hands….I won’t…I’ve been to DD prison…I know what happens”.[14]
[14] Affidavit of Ms BB filed 2 August 2019, annexure “BB-2”, page 31, paragraph 67.
The family consultant assumed that the father may be referring to the potential for a disaffected party involved in parenting proceedings to engage in criminal or threatening behaviour.
The family consultant considered that the father’s comments were threatening and may well represent a risk. The family consultant made a notification to the Department of Child Protection.
In interview, X presented as a child younger than his chronological years.
He considered that the father had been mean to his mother and that he had broken something on her stomach.
X was not able to provide any detail or context to support his concerns and purported to have a recollection of the father having been physical with him in the hospital following the birth of Y.
X refused to see his father and Y refused to separate from his mother. Observed interaction with the father did not proceed.
Ms L identified family violence as the primary issue and any recommendation as to the future parenting arrangements for the children should be subservient to the Court’s consideration of the evidence on the topic.
The family consultant was however concerned as to the father’s presentation and considered it to be alarming. It is apparent that the family consultant considered the mother’s evidence to be more reliable than that of the father and as such the allegations of family violence made by the mother were more likely than not to have occurred.
The family consultant noted that the father’s presentation also showed little respect for the mother as a parent and was intimidating and potentially threatening.
The family consultant did not recommend that time resume with the father until at least he had engaged with a skilled therapist in issues relating to family violence.
The second report correctly identified that the father had not spent time with the children. The father had modified his parenting proposal to now include a schedule of gradually increasing time, commencing with time being unsupervised every Saturday and building to each alternate weekend and an intervening Wednesday night.
The mother reported to the family consultant that she considered her mental health had worsened and the continuation of the litigation, together with the fear that the husband’s behaviour may be unpredictable if he does not achieve the outcome he seeks was exacerbating her anxiety.
The father did not accept the mother’s purported evidence that his behaviour had an adverse effect on her mental health. The father considered the mother may have manipulated the health professionals to provide an opinion that could be used by the mother to demonstrate that if orders were made as sought by the father this would adversely affect her ability to parent the children.
The family consultant did not consider the father had the capacity to support the mother’s role as a primary carer for the children. The concern was the father lacked insight into the mother’s personal circumstances and was resolute in his view that any behavioural issues adversely impacting upon the children was as a result of the mother’s poor parenting.
Similar to the recommendations made in the first report, the family consultant did not consider that it was in the children’s interests to spend either direct or indirect time with their father.
Ms M
Arising from the Court’s concern that a submission may be made that the notification by Ms L to the mother’s solicitors and the Department for Child Protection concerning the potential for the father to represent a risk to the mother and the children meant that less weight should be placed on her evidence, an order was made on 23 October 2020 that a different family consultant conduct a family assessment and prepare a report.
Ms M, family consultant, holds the qualifications of a Bachelor of Arts in Social Work (Hons), a Diploma in Narrative Family Therapy and a Diploma in Management and Organisational Leadership. Ms M’s most recent employment history includes her position as Acting Director of Child Protection Services, a Private Therapist and Consultant and a Family Consultant for the Family Court and Federal Circuit Court of Australia.
Following a family assessment involving interviews with the parties and the children, Ms M produced a family report dated 12 February 2021.
The history as narrated by each of the parties was similar to that recorded by Ms L.
The mother presented as emotionally fragile to Ms M and she considers that she has little resilience if the father is in her presence or in any way involved with the children. She considers that the father is a cruel person who has intentionally set out to hurt X and possibly Y.
Apparently, the mother had heard the father’s voice and became distressed.
The family consultant noted the father’s presentation as “a brusque man”.[15]
[15] Family Report dated 12 February 2021, paragraph 52.
The father also presented as anxious and frustrated with the court process, prompting the family consultant to consider that the father “might easily erupt and leave the rooms.”[16]
[16] Ibid.
The father was trenchant in his denial of the mother’s allegations of family violence. He specifically denied that he used alcohol to excess and that there had been any overt physical interaction between them. He appeared to accept that however it had come to pass, his relationship with X was fractured and that he was unsure how he could have established a relationship with X in circumstances where he considered the mother was influencing X against spending time with him.
The interviews with the children provided little assistance. Y could not remember anything that worried him from his previous time with the father and appeared to be unconcerned about seeing him.
X was wearier but his reasons for not seeing the father appeared to lack substance. The following provides a summary of X’s recollections of his father:
69. X presents as a slightly wary child. He understood the reason for being at Court as ‘because of Dad’. When the Consultant queried his understanding for not seeing his father, he replied ‘I can remember when he was holding Y.’ He then said ‘I think Daddy handed mummy’s phone to her’. When asked if he could remember any details of this time, or had he been told about it, he replied ‘mummy told me’.
70.He then said ‘it made mummy feel worried, not me’.
71.X then said ‘I remember him (the father) kicking me out of an elevator when I was four’. He thinks this was when his mother was having Y. ‘He took me and out and he kicked me’. He believes the nurse saw this happen. When asked again if he could remember this, he said ‘no this is something people have told me’. He continued ‘he used to chase me a lot’.
72.X said ‘I don’t want to see him and he used to hurt me a lot. He used to smack me and pinch me, I think’. He then said ‘and kick me. It happened a lot’. He then said ‘I used to see him in the garage smoking cigarettes and he got angry because I was looking at him’. X continued ‘when I used to go into his room, he would tell me to get out. He tricks me by getting me presents.’
73.When asked what his father would have to do in order for him to firstly, want to see him, and secondly, feel safe, X replied ‘get rid of the drink if that is possible’. He was not sure what else his father could do.[17]
[17] Family Report dated 12 February 2021.
The family consultant considered that X was more attuned to the mother’s emotional needs and was a sensitive child.
X’s presentation was such that the family consultant did not consider there should be observed interaction with the father.
Y’s presentation however was of a child who was unaware of the issues and was happy to be brought into contact with the father.
The observed interaction between the father and Y was appropriate and the father appeared focused. At the conclusion of a 45 minute observation, Y was observed to hug the father and was able to assess his time with the father as enjoyable.
The family consultant noted the father’s explanations for his anger and brusque manner and considered that whilst the manner in which the father displayed his response was not acceptable, a feeling of frustration was perhaps not unreasonable.
The family consultant sought to describe the conflict between the parties as follows:
107.The analysis of the possible dynamics in the parties’ relationship does not ignore nor set out to minimise the allegations of child abuse, nor allegations of family violence. It is offered here as a possible explanation for what appears to be the intractable nature of this dispute, but also as a means of possibly explaining why each of the parties has behaved in the ways they have. As mentioned, on this occasion for the family assessments, [the father] was polite and respectful, but he also displayed some capacity for reflection and insight. He also acknowledged that his presentation could be construed as difficult and at the end of the interview, was able to ponder his contribution to the current situation. Therefore he does seem to be amenable to taking on board information from others and of then reflecting on that information.
The dysfunctional and fractured relationship remains between the father and X. The difficulty was to explain the level of resistance displayed by X in circumstances where there is little explanation for the child’s strong reaction.
The family consultant opined that the strong alliance between X and his mother may well explain his reluctance to engage.
The family consultant urged the Court to give careful consideration to the evidence in respect of the mother’s claims of family violence or child abuse on the part of the father but even if there is not a strong finding, she considered the way forward must be cautiously approached with the children and then the parties engaging in individual therapy.
The family consultant also considered whether at a deeper level the mother’s fears are not simply arising from the father’s overt presentation but rather to resist the involvement of the father as an alternative care giver.
The recommendations of the family consultant are that the parties engage the services of a skilled therapist and counsellor to assist in developing a relationship between the father and Y and to repair the dysfunctional relationship that the father has with X.
The family consultant was made aware that the parties are effectively impecunious and that the services of ongoing therapy would not be able to be funded but in any event is not supported by the mother.
The family consultant correctly identified that whilst X was very anxious about seeing the father, Y was demonstrably open to a resumption of contact with the father.
PRINCIPLES RELATING TO PARENTING
I consider it necessary that I approach the parenting component of the proceedings from a focus on the practical reality of the separate proposals of the parties. I bring to account the considerations of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest test is to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I propose to adopt the following approach:
(1)Give consideration to the separate proposals put by each of the parties as they were identified to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm if applicable;
(5)Have regard to the additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced by each of the parties in respect of particular considerations pursuant to ss 60CC(2) and (3) of the Act are to be considered and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation or comment.
SEPARATE PROPOSALS OF THE PARTIES
The mother’s position remains unchanged from the orders initially sought by her namely that she should have sole parental responsibility, with the children to live with her and spend no time with the father other than the father being able to receive school reports and to make contact with school offices.

The father was and remains disparaging of the mother and considers she displays behaviour consistent with poor psychiatric and psychological functioning. Moreover, the father is unable to restrain his use of pejorative language when describing the mother and his application to the Professional Standards Board was motivated by malice or was reckless to the effect on the mother. Either way it is difficult to understand the father’s motivation other than to cause hurt, harm and exacerbate the mother’s underlying anxiety.
I do not consider that there is evidence that would suggest that the father would pose a direct threat to the children. Ms M considered that the father was more insightful during interview and displayed genuine emotion in his distress at not being able to assist in the parenting of the children.
The obvious concern is whether the mother’s current psychiatric and psychological functioning is at such a level that it cannot be managed and therefore presents as a risk to the children, not in terms of their safety, but in terms of the mother being able to parent the children. There is little doubt that the mother will be the children’s primary carer in to the foreseeable future. The family consultants found that there was a close emotional attachment between the mother and the children. There are no orders that are likely to be made which would impact upon the mother’s continued primary care.
I do not find that the mother’s presentation is disingenuous or confected. She has the assistance of expert clinical professional support. They corroborate her presentation.
In particular, Dr J is pivotal to assisting the mother to compartmentalise her anxiety, fear and distress at any significant involvement by the father and to remain focussed on her primary concern which is the children’s care.
I have little doubt that the mother remains highly distressed and anxious at the possibility of the father resuming a relationship with the children. Having said that, I am also satisfied that the mother’s current diagnosis is amenable to therapeutic assistance and have confidence in the mother’s ability to seek and retain appropriate clinical therapeutic intervention that would enable her to function as a parent even though she seeks that the children have no relationship with the father.
I have given careful consideration to the concern of the mother that if Y resumes a relationship with the father this will adversely impact upon X. Other than the mother’s concern, there is no evidence that would support that contention. It is not something that is axiomatic but rather a concern albeit genuinely held, of the mother.
I consider that the positive interaction between Y and the father was sufficiently positive that it should be fostered, albeit cautiously.
Further litigation
The parties have been before the Court since 2015. The cost to each of them has been ruinously expensive both in terms of a financial but also an emotional toll.
Neither party will be satisfied with the orders I propose to make. The mother does not consider there is any advantage to the children of resuming a relationship with the father and indeed considers that they may well be at significant risk if it occurs. The father considers that the children’s interests will be served by resuming a relationship and it is the mother’s intransience and lack of preparedness to support a relationship that is at the cause of the behavioural difficulties impacting on X.
As discussed, it would be an easy option that the children spend no time with the father. I consider that would be an unacceptable outcome and consider that the children but in particular Y having a relationship with the father would be better than the risks of further litigation.
Parental responsibility
Parental responsibility is to be informed by what is in the best interests of the children. At present the mother has taken on the obligation for all decisions in respect of major and minor issues affecting the children. The father has been excluded.
Family violence is a factor in these proceedings and it is the very antithesis of shared parental responsibility.
I do not consider it possible for the parties to engage in a consensus approach to the ongoing care of the children. The mother should have sole parental responsibility. It would not be in the children’s best interest for the parties to have shared parental responsibility given the low regard in which the father holds the mother and the reasonable response of the mother in terms of an exacerbation of her anxiety, distress and fear of the father following his conduct of the low regard in which she is held by him.
Conclusion
I propose to make orders that X would not be obliged to spend time with the father other than as he may wish and if so the mother is to facilitate the same. I will make orders that Y spend time with the father, initially on a supervised basis but then gradually increasing in both time and scope.
The father will need to engage in therapeutic intervention to assist the father in gaining insight into the deleterious impact of family violence upon the children and the mother. The process will not be rapid but in doing so it may well provide at least some comfort to the mother and give an opportunity to X to view his father in a different light. I am reminded of X’s remarks to Ms M as to what it would require before X may wish to see him again.
I propose to make orders as sought by the mother in terms of the father’s ability to access school and other records and information pertaining to the children. I make no order that requires the mother to disclose the residential address and whereabouts of the children but I note that it is not possible to limit or delineate the circumstances in which Y may inadvertently disclose information that might reveal where he lives.
PROPERTY SETTLEMENT
At the commencement of the trial each party submitted a balance sheet which they considered represented their separate interests in their assets, liabilities and superannuation entitlements. With some amendment, there was agreement that the assets and liabilities as set out in the father’s case outline document is the most accurate representation of the property pool.
I propose to ignore the small credit balances held by each of the parties and also the husband’s credit card liabilities.
The mother holds a modest superannuation interest in the sum of $32,768. The husband manages a self-managed super fund which totals $70,249. The father’s treatment of his superannuation entitlement is to separate the component that was acquired before the commencement of their relationship presumably to highlight the extent of the father’s pre-relationship contribution of the sum of $45,000 sought to be quarantined by the father, of that sum $42,000 is comprised in a car park.
I do not propose to accede to the treatment as proposed by the father of his superannuation entitlement. I am obliged to bring to account the assets and liabilities of the parties as are found at the date of hearing and thereafter to give weight to the separate contributions of the parties relevant to the acquisition of property by each of them.
I have decided to adopt a one pool approach and include and treat the parties separate superannuation interests as if they were property.
As far as the father is concerned, he has satisfied a condition of release and he is able to access his superannuation at any time. Whilst the mother has not satisfied a condition of release, her entitlement is modest and I do not consider that to include the mother’s superannuation interest would result in a distortion of the pool of property.
Neither party seeks that there be a superannuation split nor is the inclusion of the mother’s superannuation interest in the property pool the subject of objection by either party.
The assets and liabilities are as follows:
Assets

Description Ownership Value

The Suburb C property The father $350,000

Motor vehicle 1 The father $10,000

Motor vehicle 2 The mother $10,000

Furniture and effects The father $10,000

Furniture and effects The mother $10,000

CC Super Fund The mother $32,768

Mr Parkinson SMSF The father $70,249

Total assets $493,017
Liabilities

Description Ownership Value

Mortgage - the Suburb C property The father $128,000

Car loan The father $13,458

Total liabilities $141,458

Total of net assets $351,559

The mother seeks that the property interest of the parties be divided as to 67.5 per cent to her and the balance to the father. This would represent a settlement sum of $237,302 of which the wife would retain $52,768 comprising her motor vehicle, furniture and effects and her superannuation entitlement, requiring a settlement sum to be paid by the father of $184,534.
It is conceded that the father has no other resource that would enable him to pay the settlement sum as sought by the mother and his only option would be to sell the Suburb C property, noting the agreed value of $350,000 and taking into account the costs of sale, the mother would receive almost the entirety of the available net proceeds.
The father’s position is that if leave to bring proceedings out of time is granted then each party should retain property and superannuation entitlements currently held by each of them. The consequence of the father’s orders would see the mother retaining property and superannuation interest to the total sum of $52,768 and he would retain $298,791.
Relevant factual history
The father purchased the Suburb C property for $200,582 in March 2005. The parties met in 2009. At that time the father was a self-employed professional whereas the mother had commenced a degree.
Cohabitation commenced in November 2009 and whilst there is some uncertainty as to the value of the Suburb C property, there appears to be agreement that the mortgage was about $180,890.
It also seems uncontroversial that the father held a superannuation interest with AA Super Fund of about $45,000 at the commencement of cohabitation.
The father’s self-managed superannuation fund was established in June 2011.
The mother concedes that during the period of cohabitation the parties did not intermingle their finances.
The parties did not hold a joint account nor was there any integration of their financial affairs.
Whilst there is disagreement between the parties as to the mother’s ability to manage her finances, the reality is that by August 2014 the mother had credit card expenses in excess of $50,000 with assets of about $5,700.
On 9 August 2014, the mother became bankrupt and an official receiver was appointed.
The parties separated in early 2015. The mother and the children left the Suburb C property. She commenced proceedings for property settlement and parenting orders on 4 March 2015 but filed a Notice of Discontinuance on 18 March 2015.
The parties are not agreed as to the basis of the mother deciding to discontinue her action. She contends that she felt threatened by the father and his level of control and coercive conduct permeated their relationship post-separation. The father rejects the mother’s contention and considers that the mother’s decision to discontinue the proceedings was predicated upon a realisation that if she had been successful in securing a property settlement it would have been a pyrrhic outcome given the state of her bankrupt estate and the legal fees that were likely to accrue as the litigation continued.
In February 2017 the mother was dismissed from her employment. She considers that her dismissal was unfair.
The mother was discharged from her bankruptcy in August 2017.
The mother enlivened further proceedings by filing an Initiating Application seeking parenting orders on 22 May 2018. The mother did not initially seek orders for property settlement at that time.
It appears that the catalyst for the mother filing an Amended Initiating Application seeking orders for property settlement on 25 July 2019 were the remarks made by her Honour Judge Kari on 29 April 2019, being a notation that the mother would consider whether she intends to bring an application for settlement of property out of time.
The mother was out of time and would need to bring an application pursuant to s 44(6) of the Act.
Hardship
Section 44 of the Act provides:
44 Institution of proceedings
…
(5) Subject to subsection (6), a party to a de facto relationship may apply for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, only if:
(a)the application is made within the period (the standard application period) of
(i) 2 years after the end of the de facto relationship; or
(ii)12 months after a financial agreement between the parties to the de facto relationship was set aside, or found to be invalid, as the case may be; or
(b)both parties to the de facto relationship consent to the application.
…
(6)The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
(a)hardship would be caused to the party or a child if leave were not granted; or
(b)in the case of an application for an order for the maintenance of a party – the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.
In Whitford & Whitford (1979) FLC 90-612 at 78,144 the Full Court stated:
Thus, on an application for leave under sec. 44(3), two broad questions may arise for determination. The first of these is whether the Court is satisfied that hardship would be caused to the applicant or a child of the marriage if leave were not granted. If the Court is not so satisfied, that is the end of the matter. If the Court is so satisfied, the second question arises. That is whether in the exercise of its discretion the Court should grant or refuse leave to institute proceedings.
Section 44(4) of the Act as it relates to ss 44(3) or 44(3A) is expressed in similar terms to the leave as required under s 44(6).
Hardship is to be determined by a consideration of the quality of the claim made by a party. In Hall & Hall (1979) FLC 90-679 at 78,627 the Full Court said:
Fundamental to that [the finding of hardship] is a determination of the quality or character of the potential claim. In relation to that different cases have used somewhat different phrases to describe it so that it has become something of a matter of semantics to describe in different ways what is really the same basic concept. …
The Full Court in Edmunds & Edmunds (2018) FLC 93-847 considered an earlier decision of Sharp & Sharp (2011) 50 Fam LR 567 and said:-
47.As the Full Court pointed out in Sharp at [18], “the well-established test is that the applicant must have a prima facie claim worth pursuing or a ‘real’ probability of success. Further, leave will not be granted if to do so would not, in the substantive result, alleviate that hardship”.
48.That involves a consideration, but not a final determination, of the nature of the applicant’s claim. In doing so, the Court must weigh the applicant’s case against that of the respondent’s and form a view as to whether there is in fact a prima facie case, or a real probability of success, that would, if leave where granted, alleviate hardship.
If hardship is established then the Court needs to consider whether the claim should proceed which requires any issues pertaining to delay and prejudice to be considered in the exercise of the discretion.
Has the mother established hardship
The father’s alternative position if leave is granted is that each of the parties should retain without further adjustment their separate interests in property and superannuation. For the mother this would amount to personal effects to the sum of $20,000 and superannuation of $32,768. The mother has not satisfied a condition of release therefore she is not able to access her superannuation entitlement. The property that she retains is comprised of a motor vehicle and furniture and effects.
The mother is not currently in employment and has surrendered her professional licence. There is no evidence as to the mother’s future prospects for employment.
It is conceded that the Suburb C property comprised of some level of equity as at the date of commencement of cohabitation. It is also established that the father had accumulated about $42,000 of superannuation entitlement pre-cohabitation. The parties were diligent in keeping their financial affairs separate and whilst the mother bore the consequences of her inability to pay her credit card liabilities as and when they fell due, this did not adversely impact upon the father’s financial circumstances.
It is likely that the mother adopted the role of homemaker following the birth of X in 2010 and Y in 2014 albeit Y’s birth was only a few months prior to the parties separation.
Whilst the preponderance of contributions would be attributed to the father, the mother’s contribution during the period of cohabitation and post-separation is significant. The father’s income was modest and whilst the mother specifically did not seek child support, nonetheless the overwhelming financial support for the children fell to her.
A consideration of s 90SF matters to be taken into account would support an adjustment in the mother’s favour.
Whilst there is a significant disparity in the ages of the parties and acknowledging that long after the father’s retirement the mother will be able to continue in employment, the financial obligation of the mother’s continued primary care of the children in circumstances where she is unlikely to receive financial assistance from the father is a highly relevant consideration.
Without being determinative of the mother’s potential claim, having considered the separate position of the parties, I find that the mother has a likely entitlement significantly more generous than is reflected in the father’s position.
Hardship is established by the mother.
Delay and prejudice
The mother’s evidence does not provide a ready explanation for the mother’s delay in bringing the proceedings. It is to be remembered that the mother was at all relevant times a professional.
I do not accept the mother’s evidence for the reason supporting her decision to discontinue the proceedings for property settlement in 2015.
I suspect that the mother recognised that if she was successful in a claim for property settlement it would be diminished, if not exhausted, in favour of the creditors in bankruptcy.
Thereafter, there is nothing to explain her delay in bringing further proceedings other than the observations of Judge Kari in 2019. Even after that hearing, it could not be said that the mother acted with alacrity.
Delay however does not stand on its own and for it to be a significant factor in determining that the Court should not exercise its discretion even though the claim of hardship has been established by the mother, the question of prejudice to the father must be explored.
The evidence of any prejudice to the father is scant. There has been no change to the principal or significant asset held by the father being the Suburb C property or his superannuation entitlement which includes the car park.
The father is still a self-employed professional and he has been on notice in respect of the proceedings generally for some time.
The father relies upon a text message sent by the mother on 16 July 2017 in the following terms:
Thank you for your email which was just read by me at the library. I will vigorously defend any action you bring as you have shown over 7 years that you are not capable of meeting the best interests of the children. I will also take it as an opportunity to pursue my property settlement and adequate child support as well as spousal maintenance as you are in a financially superior position.[21]
[21] Affidavit of the father filed 12 October 2020, annexure “P-4”.

The father asserts that life has moved on for both parties and he is now significantly older and is therefore facing a much reduced potential working life.
I do not consider that they are matters of prejudice but simply the reality of factors that would be relevant to s 90SF of the Act.
The father did not give any evidence that would suggest that he would have conducted himself differently and as such whilst the delay is potentially at the outer limit of what might be considered reasonable, I do not consider that there has been any corresponding prejudice caused to the father.
I am cognisant of the current level of the mother’s legal fees. It is likely that whatever the mother receives (even on her own case), it is money that would be utilised to pay her legal fees rather than to assist her in the care of the children. Even so, the mother’s legal fees are a relevant financial circumstance that she considers were necessarily incurred in order to pursue parenting orders that oppose the children spending time with the father.
It is an unfortunate observation that the mother’s legal fees are out of all proportion to the issues of contention as between the parties.
Accordingly, I find that discretion should be exercised and leave granted for the mother to bring her proceedings for property settlement out of time.
Contributions of the parties
The mother concedes that the father made a greater initial capital contribution. He held an interest in the Suburb C property with modest equity. In addition, he had accumulated superannuation interest of about $42,000.
The mother owned almost no property and as discussed, the parties were careful not to intermingle their financial resources.
During the course of cohabitation the taxable income of the parties was similar.
In addition, I find that the mother was responsible for the primary care of the children in particular X who was born in 2010.
In Pearce v Pearce (1999) FLC 92-844 (“Pearce”) at [27] the Full Court considered the following remarks of Fogarty J in Money & Money (1994) FLC 92-485 at 81,054:
the term “offsetting contribution” does not necessarily mean “greater contribution”. It simply reflects the circumstance that the respective contributions of the parties over a long period of marriage may “offset” the significance which might otherwise be attached to a greater initial contribution by one party … the original contribution should not be carried forward as a mathematical proportion; ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered. The longer the marriage the more likely it is that there will be later factors of significance and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce a significance of the original contribution.
In Pearce (supra) the Full Court said at [28]:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. …
I do not propose to quarantine either the pre-cohabitation property introduced by the father or the current impact or effect of that property now in the pool. Weight must be given to the contributions of the parties both financial and non-financial and whilst it is appropriate to consider the pre-cohabitation contribution of the father as significant, similarly during the course of cohabitation the contributions of each of the parties, whilst different in nature, is still valuable contribution by each of them.
Post-separation the father remained in the Suburb C property and the mother found alternate accommodation for herself and the children. Their primary care was undertaken by the mother at her expense and with minimal contribution from the father.
In Singerson & Joans [2014] FamCAFC 238 the Full Court said:
66.Section 79(4) of the Act is clear. There is nothing to suggest that any category of contributions needs to be quarantined and applied solely to particular assets. The court is mandated to look at the totality of what the parties have contributed on a financial and non-financial sense, including contributions to the welfare of the family and to the acquisition, conservation and improvement of assets. The court is required to evaluate the significance of all the various contributions to the property, notwithstanding there may be different categories of that property.
There does not have to be any causal connection in terms of the acquisition, conservation or improvement of any property.
I bring to account the modest pool available and I am mindful that in any percentage adjustment what is important is the resultant dollar adjustment.
I consider that the weight to be given to the respective contributions of the parties should be as to 70/30 per cent in favour of the father.
Section 90SF factors
I bring to account the ages of each of the parties and their state of health. The father is 66 years of age and it is reasonable to anticipate that the time to his retirement will be limited whereas the mother is currently 37 years of age, nearly 30 years younger than the father. I accept that at present the mother’s ability to return to the practice of the law is limited by her surrender of her practicing certificate.
The mother has had a history of employment and there is no evidence to suggest that once circumstances have settled and the children’s needs are not as demanding as they now are that she could not return to employment.
At present there is a financial disparity between the parties in terms of their income and financial resources but it is noted that the father’s income is and has historically been modest.
The mother will continue with the primary care of both children. At this stage it is not an order that X spend time with the father. Moreover, I accept the evidence of those involved with X’s care that he requires singular and special attention by the mother.
The mother needs to support herself and the children in circumstances where at present the father does not pay child support. As discussed, the mother does not seek a child support assessment but even if not sought, the father has not volunteered any significant financial support to the mother for the children.
Neither party has re-partnered.
The real concern of the father is that as a consequence of a successful outcome for the mother he may not be able to remain in the Suburb C property and upon its sale his ability to find suitable accommodation may be limited.
No evidence was presented which would enable such an assessment to be undertaken, although I accept that there is a level at which the father’s ability to retain the Suburb C property would be at risk.
I do not ignore that the mother will have the sole financial responsibility for the future care of the children. It is unlikely that the father will voluntarily make any significant financial contribution to the curricular and extracurricular costs of the children and accordingly any adjustment that I propose to make in favour of the mother must bring her future circumstances to account.
I consider that an adjustment of 10 per cent would strike the right balance.
Conclusion
I have determined that the mother should receive 40 per cent of the pool of property available for division.
Given that the net pool is $351,559, 40 per cent equates to a sum of $140,623 less the property and superannuation entitlement retained by the mother in the sum of $52,768 produces a settlement sum payable by the father of $87,855.
I do not ignore the significant outstanding legal costs of the mother together with other outstanding liabilities. The settlement sum will lessen the burden of the mother’s outstanding liabilities.
Given the father’s circumstances, I suspect there may be difficulty in his ability to arrange and/or borrow the settlement sum required in a timely fashion and it may result in a decision by the father to sell the parking space.
It is reasonable that the father have 90 days to settle the amount that he has to pay to the mother.
I make orders as appear at the commencement of these reasons.

I certify that the preceding four hundred and thirty (430) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.
Associate:
Dated: 16 July 2021

File number(s):	ADC 747 of 2015
Judgment of:	BERMAN J
Date of judgment:	16 July 2021
Catchwords:	FAMILY LAW – CHILDREN – Parental responsibility – Best interests of child – Where family violence is a factor in the proceedings – Where the parties cannot agree to an approach for the ongoing care of the children – Where the father’s conduct directed towards the mother speaks against shared parental responsibility – Where it is not in the bests interests of the children that there be shared parental responsibility. FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Best interests of child – Family Violence – Child’s views – Where the mother seeks that there be no time spending with the father – Where the father seeks a resumption of time initially on a supervised basis and with one of the children’s attendance to be subject to their wishes – Where there are allegations of family violence – Where the mother considers the father presents as a risk to the children – Where one of the children is resistant to spending time with the father – Consideration of whether a meaningful relationship with the father would be in the children’s best interests – Where there is a finding that the father has perpetrated family violence – Where the evidence does not suggest that the father poses a direct threat to the children – Consideration of the impact of time spending on the mother’s ability to parent the children – Where the relationship between the father and one of the children should be fostered – Orders. FAMILY LAW – PROPERTY SETTLEMENT – Leave to file application out of time – Where the mother seeks leave to initiate property proceedings out of time – Where the father opposes the application – Where the mother initiated both parenting and property proceedings in 2015 – Where the mother discontinued the proceedings shortly thereafter – Where the mother again initiated proceedings in 2018 but only as to parenting matters – Where the mother amended her application to seek orders as to property settlement – Where the mother was declared bankrupt in 2014 – Whether hardship would be caused if leave were not granted – Whether the Court should exercise its discretion to grant leave – Where the mother has a prima facie claim – Where hardship is established – Where the mother’s evidence does not provide a ready explanation for delay – Where the father would not be prejudiced – Leave granted. FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Future needs – Family Violence – Where the mother seeks 67.5 per cent of the property pool – Where the father seeks that each party retain property and superannuation currently held by each of them – Where the parties were in a de facto relationship for a little over five years – Where there are two children of the relationship – Where the pool is modest – Where the father made the greater initial capital contribution – Where the mother was and will continue to be the primary carer of the children – Where the mother will bear the sole financial responsibility for the future care of the children – Orders.
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 44(5), 44(6), 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 90SM, 90SF
Cases cited:	Baglio & Baglio [2013] FamCA 105 Blanding & Blanding [2016] FamCAFC 21 Cotton & Cotton (1983) FLC 91-330 Edmunds & Edmunds (2018) FLC 93-847 Hall & Hall (1979) FLC 90-679 Harridge & Harridge [2010] FamCA 445 Hunter & Berg [2017] FamCA 1051 M v M (1988) 166 CLR 69 McCall & Clark (2009) FLC 93-405 Money & Money (1994) FLC 92-485 N & S & the Separate Representative (1996) FLC 92-655 Pascoe & O’Keefe and Ors [2018] FamCAFC 243 Pearce v Pearce (1999) FLC 92-844 Sharp & Sharp (2011) 50 Fam LR 567 Sigley & Evor (2011) 44 Fam LR 439 Singerson & Joans [2014] FamCAFC 238 Vasser & Taylor-Black (2007) FLC 93-329 Whitford & Whitford (1979) FLC 90-612
Number of paragraphs:	430
Date of hearing:	19 – 23 October 2020 and 25 – 26 February 2021
Place:	Adelaide
Counsel for the Applicant:	Mrs Tinning
Solicitor for the Applicant:	Cardone & Associates
Counsel for the Respondent:	Mr Mr Parkinsons
Solicitor for the Respondent:	VP Lawyers

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	16 JULY 2021

Description	Ownership	Value
The Suburb C property	The father	$350,000
Motor vehicle 1	The father	$10,000
Motor vehicle 2	The mother	$10,000
Furniture and effects	The father	$10,000
Furniture and effects	The mother	$10,000
CC Super Fund	The mother	$32,768
Mr Parkinson SMSF	The father	$70,249
Total assets		$493,017