Kamenski & Kamenska - [2022] FedCFamC2F 17

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kamenski & Kamenska [2022] FedCFamC2F 17

File number(s): MLC 3895 of 2020

Judgment of: JUDGE HARLAND

Date of judgment: 17 January 2022

Catchwords: FAMILY LAW – Parenting – allegations of family violence – mother’s ability to facilitates children’s relationship with the children – whether or not there should be a self-executing order for change of residence – property adjustment – weight to be given to father’s initial contributions and contributions from his family – whether or not there should be a contribution due to family violence – what s.75(2) adjustment should be made – s.75(2) factors.

Legislation: Evidence Act 1995 (Cth), s.140
Family Law Act 1975 (Cth), pts.VII, VIII, ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 64, 65D, 65DAA, 67Z, 75(2), 79, 90SM, 90XT, 90XZA
Family Law (Superannuation) Regulations 2001 (Cth), Pt.6, rr.12, 13

Cases cited: Baranski v Baranski and Anor (2012) 259 FLR 122
Benson & Drury [2020] FamCAFC 303
Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
H and H (2005) FLC 93-209
Kennon & Kennon 22 Fam LR 1
Maine v Maine (2016) 56 Fam LR 500
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR [2010] 240 CLR 461
Pellegrino & Pellegrino [1997] FamCA 52
S & S [2003] FamCA 905
Stanford v Stanford (2012) 247 CLR 108
S and S (2005) FLC 93-246
Waterford & Waterford [2013] FamCA 33

Division: Division 2 Family Law

Number of paragraphs: 221

Date of last submission/s: 24 November 2021

Date of hearing: 22, 23 and 24 November 2021

Place: Melbourne

Counsel for the Applicant Mr Williams

Solicitor for the Applicant Aberdeen Lawyers

Counsel for the Respondent Mr Howe

Solicitor for the Respondent Swiftly Legal

Counsel for the Independent Children’s Lawyer Mr Radich

Solicitor for the Independent Children’s Lawyer Hartleys Lawyers
ORDERS

MLC 3895 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR KAMENSKI

Applicant

AND:
MS KAMENSKA

Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

17 JANUARY 2022

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The parents have equal shared parental responsibility for the children X born in 2008 and Y born in 2009 (“the children”).
3.The child X live with and spend time with both parents in accordance with her wishes.
4.During school terms, the child Y live with the parents as follows:
Week 1
(a)With the applicant father from the conclusion of school Friday or 9.00am if a non-school day, until the commencement of school the following Thursday or 9.00am if a non-school day.

Week 2
(b)With the respondent mother from the conclusion of school Thursday or 9.00am if a non-school day, until the commencement of school the following Friday, or 9.00am if a non-school day.

5.During the school holidays, the child Y live with the parents as follows:
(a)During all school term holidays on a week about basis as follows:
(i)In even numbered years, with the respondent mother during the first week of each school term holiday from the conclusion of school on the last day of term to the following Friday at 3.30pm;
(ii)In odd numbered years, with the applicant father during the first week of each school term holiday from the conclusion of school on the last day of term to the following Friday at 3.30pm;

(b)For one half of the long summer school holidays commencing at 10am the day following the end of the last school term in December 2022, as follows:
(i)with the respondent mother from the commencement of the summer holiday period until 10am 3 January 2023 and the applicant father to spend time with the children from the 10am 3 January 2023 until 10am on the commencement day of the first school term and each alternate year thereafter; and
(ii)with the applicant father from the commencement of the summer holiday period until 10am 3 January 2024 and the respondent mother to spend time with the children from the 10am 3 January 2024 until the commencement of the first school term and each alternate year thereafter.

6.Over the Christmas period and not withstanding any other order, Y live with the parents as follows:
(a)With the applicant father from 5pm 24 December 2022 until 5pm 25 December 2022 and similarly every alternate year thereafter;
(b)With the respondent mother from 5pm 24 December 2023 until 5pm 25 December 2023 and similarly every alternate year thereafter;

7.The child Y may otherwise spend time as agreed by the parents in writing.
8.Changeover on all school days shall occur at the children’s school on a school day and if not a school day in the car park at McDonald’s at Suburb B with the parents to park within 10 metres from the other and neither parent to leave their cars and each parent be permitted to have a family member drop off and collect the children in their absence.
9.The parents communicate via an agreed parenting application and if the parents are unable to agree, the respondent mother shall nominate three parenting applications and the applicant father will choose one of those three.
10.The parents notify each other as soon as practicable of any medical emergency or serious health issue of the children whilst they are in their respective care including in that notice the name and contact details of any health professional treating the children.
11.The parents keep each other informed of any health issues of the children which require attendance upon a health professional with such notice to be provided to the other parent within 24 hours of the need for the appointment.
12.The parents authorise any health professional treating the children to provide the other parent with any information they are seeking in relation to the diagnosis, treatment and wellbeing of the children when requested.
13.The children’s schools are authorised to provide both parents with any information they are seeking in relation to the education and wellbeing of the children including but not limited to school reports, notices of special events and attending parent-teacher interviews and special occasions at school including school assemblies and sports days, with each parent to provide the school with their respective telephone contact details and email addresses to facilitate communication.
14.Both parents be permitted to attend any public or school social, sporting, or educational events involving the children.
15.If either parent wishes to take the children on an interstate holiday, they will not do so on the other parent’s time and, will provide to the non-travelling parent an itinerary including details of all accommodation where the children will be staying, a telephone contact number and the time of the children’s departure and arrival back into the State of Victoria.
16.Each parent be at liberty to take the children out of Australia during the children’s time with them or at such time as agreed between the parents in writing provided:
(a)The children are not taken to an overseas destination that is not a signatory to the Hague Convention or where the Australian government warning for that destination is “Reconsider Travel” or “Do Not Travel” or equivalent;
(b)The parent taking the children overseas (“the travelling parent”) provides the other parent with no less than 30 days’ notice of the planned travel;
(c)The travelling parent is to provide the other parent with a detailed travel itinerary and contact details for the children while they are overseas; and
(d)The travelling parent facilitates communication between the children and the other parent whilst they are overseas.

17.The applicant father retains the children’s passports during such time as the children are not travelling and will provide the passports to the respondent mother a week prior to the travel and the respondent mother will return the passports to the applicant father within 7 days from the children’s return to Australia.
18.The parents are authorised to provide a copy of the expert reports provided by Ms C dated 12 November 2021, Ms D dated 12 November 2021 and Ms E dated 22 November 2021, as well as a copy of these reasons, to any medical treater.
19.The Independent Children’s Lawyer be discharged noting Ms Alexandra changed employment in December 2021, and no longer undertakes Independent Children’s Lawyer work.
20.The applicant father retain the property situated and known as F Street, Suburb G (“F Street, Suburb G property”) registered in his sole name.
21.Within 60 days (“the date”) the applicant father pay to the respondent mother a cash sum equal to 40% of the asset pool less her keep (“the payment”) and the respondent mother will vacate F Street, Suburb G property 48 hours prior to settlement.
22.In the event the respondent father fails to make the payment listed in paragraph 20, F Street, Suburb G property be listed for sale within 30 days of the date, with 3 real estate agents to be proposed by the applicant father and the respondent mother to select one of them, on such terms to be recommended by the real estate agent and the proceeds of sale be distributed with the result that the applicant father receives 60% of the asset pool and the respondent mother receives 40% of the asset pool, including their keep.
23.The $1,950 in NAB account ending in #...12 be divided between the parents such that the applicant father receive 60% and the respondent mother receive 40%.
24.The parents jointly close the NAB account ending in #...12 after dividing the proceeds pursuant to order 23 above.
25.Having been accorded procedural fairness in relation to the making of these Orders, Orders 26 to 30 of these Orders bind the Trustee of Super Fund H (“the Fund”).
26.Orders 26 to 30 inclusive have effect from the operative date.
27.The operative date is the fourth business day after the day of service of a certified copy of the final sealed and signed orders on the Trustee of the Fund.
28.The Court allocate, pursuant to s 90XT(4) of the Family Law Act 1975 (Cth) (“the Act”), a base amount of $130,569 to the respondent mother out of the applicant father’s interest in the Fund (in the records of the Fund, shown as “Mr Kamenski”).
29.In accordance with s 90XT(1)(a) of the Act, whenever a splittable payment becomes payable to the applicant father, from his interest in the Fund, the respondent mother is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using a base amount of $130,569 and there be a corresponding reduction in the entitlement that the applicant father would have had but for these Orders.
30.Until the happening of any of the following:
(a)The establishment of a separate superannuation interest in the name of the respondent mother in the Fund; or
(b)The transfer or rolling over into another superannuation fund of the payment split created by Order 29 of these Orders (“Payment Split”); or
(c)The applicant father satisfies a condition of release and the respondent mother is paid the Payment Split; or
(d)The respondent mother exercises a waiver of her rights within the meaning of s 90XZA of the Act in relation to the Payment Split,

the applicant father be and is hereby restrained by himself, his servants or agents from executing a death benefit nomination in favour of any person or doing any act or thing which would render any part of his interest in the Fund a “not splittable payment” within the meaning of r 12 or 13 of the Family Law (Superannuation) Regulations 2001 (Cth).

AND THE COURT NOTES THAT:
A.The Court requests that Ms E and the former Independent Children’s Lawyer, Ms J (if available) explain these Orders and their effect to the child Y as soon as practicable.

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

X, who will be turning 18 this year, and Y, who is 12, currently live in separate households. X was born in 2004. Y was born in 2009. Until August 2021, they both lived with their mother. The parenting aspects of this case are troubling. The parties are also in dispute over their property interests. Allegations of family violence are relevant to both parenting and property issues.
The parties started living together on the date they were married in 2002. They separated on 12 January 2020. The marriage lasted 18 years.
The issues I have to determine with respect to the parenting issues are:
(1)The nature and extent of family violence;
(2)The impact of the family violence on the children;
(3)The mother’s ability and willingness to facilitate the children having a relationship with both parents;
(4)Whether or not interim or final orders should be made with respect to Y.
(5)Whether it would be in Y’s best interests to spend equal time or substantial and significant time with the parents.
The issues I have to determine with respect to the property matters are:
(1)The value to be attributed to the parties’ caravan;
(2)The weight to be given to the father’s initial contributions and the contributions on behalf of his family;
(3)The weight to be given to the mother’s inheritance and contributions from her family;
(4)Assessment of other financial and non-financial contributions;
(5)Whether or not there should be a contribution adjustment in favour of the mother due to family violence factors;
(6)The weight to be given to the relevant s 75(2) factors, particularly due to the disparity in the parties’ income and the care of the children.
The applicant relies on the following:
(1)Trial affidavit of Mr Kamenski filed 5 November 2021;
(2)Amended Initiating Application filed 5 November 2021;
(3)Amended Financial Statement filed 5 November 2021;
(4)Affidavit of Ms K filed 5 November 2021;
(5)Affidavit of Ms C filed 16 November 2021;
(6)Affidavit of Ms D filed 16 November 2021; and
(7)Affidavit of Ms E filed 21 November 2021.
The respondent relies on the following:
(1)Affidavit of Ms Kamenska filed 25 October 2021;
(2)Financial statement of Ms Kamenska filed 25 October 2021; and
(3)Affidavit of Ms D filed 21 November 2021.
The Independent Children’s Lawyer (“ICL”) relies on the following:
(1)Affidavit of Ms D filed 16 November 2021;
(2)Affidavit of Ms C filed 16 November 2021
(3)Section 67Z response from Department of Health and Human Services (“the Department”) dated 24 June 2020.
COMMENTARY ON EVIDENCE AND WITNESSES
Both parties’ affidavits contained much material which was inadmissible, including conclusions and arguments. Counsel did not make any formal objections. The mother set out negative phrases and comments she says friends, who she named, said to her. This includes allegations that they had seen the father gambling. When cross-examined, she said that those people were unwilling to give evidence. I place no weight on that evidence which cannot be tested.
The mother was frequently argumentative and defensive during cross-examination and aspects of her evidence lack credibility. In many instances, she did not answer the question put to her in cross-examination, but rather made statements unrelated to the question; I acknowledge that being cross-examined is a stressful experience, but her presentation and answers were consistent with her presentation to the experts. For example, Ms C, the first family report writer, expressed concerns about the mother manipulating the children, and had the impression that the mother orchestrated a performance of herself and the girls which prevented Ms C from properly carrying out the observation. The mother brought documents into the witness box, which when she was being challenged about the incident at the home on 20 March 2020, the mother held up an A4 colour photograph of her bruising and when challenged about that display, continued to argue with counsel. Her counsel sought to justify it by saying that photo was in her affidavit and the mother sought to say that violence affected her ability to work.
Where I make findings of fact it is on the balance of probabilities in accordance with s140 of the Evidence Act 1995 (Cth).
FAMILY VIOLENCE
As family violence is relevant to both parenting and property matters, I will discuss family violence before turning to discuss the parenting issues and finally the property matters.
Family violence is a significant issue in this matter with respect to both parenting and property aspects. Section 4AB of the Family Law Act 1975 (Cth) recognises that family violence takes many forms. The mother makes allegations of family violence against the father which she says both children were exposed to and which she says explains the girls’ resistance to spending time with him. The mother alleges that she was subjected to a course of family violence by the father that made her contributions more arduous. She relies on the decision in Kennon & Kennon 22 Fam LR 1 to seek an additional contribution adjustment in her favour.
In Kennon the Full Court said at page 24:
where there is a course of violent conduct by one party towards another during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contribution to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s.79.
The Full Court decision of Benson & Drury [2020] FamCAFC 303 contains a useful discussion of how the Court should consider claims that rely on the guidance that the Full Court gave in Kennon. the Full Court said at paragraphs 18 and 19:
We pause to note that although sometimes, in the context of the Kennon argument, words such as “adverse impact”; “more arduous” or “more onerous” are used, the guideline requires the conduct of one party to have had a significant adverse effect on the contributions of the other or to have had made that party’s contributions significantly more arduous than they ought have been. The conduct has to have had a discernible impact upon the contributions of the other party (Kennon at 906).
The guideline has been repeatedly adopted and consistently applied over many years (see for example: S & S [2003] FamCA 905 (“S & S”); Hill and Hill (2005) FLC 93-209 at [70]–[71]; Stevens and Stevens (2005) FLC 93-246 at [52]–[67]; Baranski v Baranski and Anor (2012) 259 FLR 122 at [250]–[263]; and Maine v Maine (2016) 56 Fam LR 500 at [52]).

The Full Court emphasised that it is an error to consider this contribution adjustment separately from the consideration of the myriad of contributions that the Court is required to assess holistically. The Full Court also noted at paragraph 49:
it should now be clear that the required nexus between proven family violence and the significant adverse effect upon the contributions of the victim is capable of being inferred from the lay evidence of the parties.
The father denies the mother’s allegations of family violence. He says their relationship was volatile and he “was often caught up in the emotion of an event” and that the mother knew how to push his buttons and he would react, yelling back at her and occasionally pushing her after she hit him.
In her trial affidavit, the mother alleges that the father physically assaulted her in 2002 after she accused him of gambling when he was scrutinising her expenditure. She says she had to miss four days of work and says it was hard to concentrate. She says she was afraid that the father would accuse her of having affairs with her co-workers and physically hurt her. She says she resigned as a result. When cross-examined by the mother’s counsel about this, the father says the incident did not occur. He also denied her allegations of abuse after X was born in 2004 and she was recovering from the caesarean section.
In her affidavit, the mother says that the violence she was subjected to caused her to resign from full-time employment and further prevented her from returning to full-time employment. She does not provide any detail with respect to this. She does not refer to when she resigned or who she was working for when she resigned. Ms C refers to that reference in the mother’s affidavit filed on 16 June 2020, and notes that during the evaluation the mother told her that she resigned from a position in 2002 due to difficulties following an alleged incidence of violence, and discontinued working altogether because of difficulty with childminding arrangements due to the grandparents arguing. The wife’s affidavit is vague about the 2002 period. I am not satisfied that the evidence establishes that the wife was assaulted by the husband, such that the wife resigned from her employment.
She claims that the father was unsupportive after both daughters were born by caesarean and he required her to continue to undertake housework causing her physical pain. The father denies this and says he took time off from work after the birth of the children and says that she had a lot of family support from her family members as well. Ms D noted in her updated family report that the Department had involvement with the family when X was five over concerns regarding the father’s inappropriate discipline. The Department were involved again post separation, with the Department substantiating risk in assessing the father as responsible for exposing the girls to physical and emotional harm against the mother. The Department assessed the father as being remorseful and that he engaged appropriately in a men’s behaviour change program.
In her trial affidavit the mother also alleges that the father physically disciplined the children and physically and emotionally abused them.
The mother alleges that on or around on 30 August 2018, the father broke her phone after she asked him if she could look at some family photos stored on his phone. After he refused and when she asked him why not, he became agitated, picked up her phone and threw it onto the kitchen floor, then picked it up again and threw it on the ground of their alfresco area. She says the girls were present and they asked why he was doing that to the mother’s phone. When cross-examined the father conceded that he broke her phone. However, he says this was in response to the mother questioning him about Facebook messages on his phone and accusing him of having an affair. He said that he did not know why he did it, and that it “probably” is not the right thing to do. He said he replaced her phone. If the father is in any doubt about it, this is clearly an incidence of family violence.
On 29 November 2019 there was another incident. The mother accused the father of having an affair. The father conceded that he pushed her but said he did not know if he pushed her to the ground or not. He said he pushed her when walking around the house trying to get away from her. He says she kept following him yelling verbal abuse and accusing him of having an affair. He said they were equally responsible, although he conceded that he is physically bigger than her.
The mother then describes a violent incident at separation which the children were exposed to on 7 December 2019. The mother describes that she confronted the father about an extramarital affair and explained to him that she wanted to end the relationship and asked him to leave. She says the respondent then said “What?! Leave the house that I paid for?!” and then tore up her certificate of early childhood education. She says the children witnessed this, and witnessed the father lunging towards her, grabbing her by the wrists and shoving her away. She says she hit the ground and felt an intense pain in her back and called the ambulance. The mother sought an intervention order following the incident. In her complaint, she accused the father of grabbing her arms and causing bruising.
In his trial affidavit, the father says he denied the mother’s accusations of his affairs but that she continued to yell at him. He says she was relentless and he lost his temper and started to yell back at her. He says the children were not witnesses to the event but that they overheard their parents yelling, and X called 000. He says the police attended and then subsequently filed an intervention order. The children do not need to be witnesses to be affected by the violence.
The father agreed in cross-examination that he ripped up the mother’s work certificate and says he did that in response to her tearing up high school photos of his while she was accusing him of having an affair with one of the students in the photos.
Significantly, the mother did not require Ms K for cross-examination, resulting in her evidence being unchallenged. Ms K works for Employer L, who have a contract with the company the father works for. In her affidavit Ms K refers to an incident that occurred on 8 December 2019. On that night the father had been in phone calls with Ms K due to a workplace injury that had occurred. At approximately 12:51am that night, she received a phone call from a private number. After answering the phone, the caller identified themselves as the wife of Mr Kamenski, and accused Ms K of having an affair with her husband. She includes the conversation in her affidavit. In the conversation, the caller repeats her accusations a number of times and calls Ms K a number of derogatory names. She describes the caller’s “abuse” as “relentless”. Ms K annexes her call log to her affidavit, showing a call from “No Caller ID” at 12:51am.
The applicant’s counsel questioned the mother as to why she did not choose to cross-examine Ms K. The mother denied that the reason she chose not to cross-examine Ms K was because she knew that what Ms K was saying was correct. The mother agreed that she had spoken on the phone with Ms K, but denied accusing her of having an affair with the father, and stated she had called her “just to get a clear fact of who she was”.
The father annexes a copy of an email from Employer L about the call the mother made to Ms K accusing her of sleeping with her husband. It records that the call lasted about 15 minutes and that the mother was abusive and refused to accept Ms K’s explanation that she worked for Employer L and the call the father made to her related to a worksite incident.
I accept Ms K’s evidence about the mother’s abuse of her.
Incident 2 March 2020
On 2 March 2020, the mother messaged the father asking him to pick up X from school and drop her off as Y was unwell. The father said he thought that this was permitted under the intervention order, being a child arrangement, and did not know that it was a breach of the order. He collected X from school and says when he arrived at the former matrimonial home, he opened the roller door to the garage to go into the house, which is the way they normally entered the house. The father says the mother invited him into the house. He had coffee. He asked the mother where his watch was, to which the mother asked what is so special about it. He said it was a long service gift from Employer H. He says the mother did not believe him and accused him of having an affair. The father continued to look for the watch and decided to take some of his belongings and packed a suitcase. As he started putting his clothes in the suitcase, she grabbed a bunch of his clothes and threw them, and hit him on the back. The father says he retaliated when she pushed him and she fell into the door. She started crying and screaming. The father says he took his suitcase downstairs and X came down the stairs with her baseball bat and was threatening to hit his Motor Vehicle 1 and he left.
The father was charged with contravening the intervention order and recklessly causing injury. The father spent 11 days in remand. He pled guilty and was placed on a community corrections order. He believes the Court took into account the time he spent in remand. The father says he did an anger management course online prior to that conviction.
The mother agrees that she asked him to collect Y from school but claims that she did not invite the father into the home, and that he just let himself in and made a cup coffee. She says she told him he should not be there and she approached him as he was gathering his clothing. She claimed she was handing him one of his shirts when he lunged at her, grabbed her head and pushed her to the ground. She claims that he began kicking and punching the right side of her ribs and back. An ambulance attended the home and the mother was taken to the hospital and treated for her injuries. The mother annexes the hospital discharge summary and photographs. The photographs show bruising on her arms. The discharge summary refers to her being in some pain from tenderness in the left lower rib cage and noted the bruising on her arms. The medical evidence does not support the mother’s argument that she was unconscious.
The mother claims that the father was interviewed after her complaint, and claims that the father refused the option of undergoing the interview at the Suburb M police station at a time when the children were not in his care. She claims he was instead interviewed when the children were at home with him. The father denies that he was interviewed at all.
In his case outline the father acknowledges that the children have been exposed to family violence due to numerous verbal arguments. He complains that the mother has fabricated the extent of the violence and has failed to acknowledge her part. He notes that the family contact centre report and Ms D’s family report refer to the mother being aggressive but not the father.
I accept that the mother does not need to corroborate her allegations of family violence against the father.
I am satisfied that there were incidents of family violence which the children were exposed to, particularly in the period leading up to the parties’ separation and that the children were exposed to family violence on 2 March 2020. Clearly at times, both parties were volatile and jealous. I think it unlikely that the father forced his way into the home uninvited. It is more likely that the mother invited him in and initially things were cordial. No matter what provocation the father thinks there was, any instance of family violence is unacceptable. The father minimises his responsibility whilst the mother exaggerates aspects of her evidence. Further, the evidence does not support the mother being injured to the extent she alleges. I am satisfied that on this occasion the children were exposed to the father assaulting their mother, which would have been frightening and traumatic for both of them.
THE PARENTING CASE
The parties’ cases with respect to parenting
The parties agree that they should exercise equal shared parental responsibility for the children. They both agree that as X will soon be 18 her living arrangements should be in accordance with her wishes. They disagreed as to the form of order and I queried whether such an order would be of any utility. I will order that the parents exercise equal shared parental responsibility for both girls. I will order that X live with and spend time with her parents in accordance with her wishes. Both parents accept that this is the reality given X’s age.
The father says that the mother has engaged in alienating behaviours and is not capable of supporting the girls having a relationship with both parents. He relies on the expert reports of Ms C and Ms E and points to the fact that since X argued with her mother and came to live with him in 2021, Y has refused to spend time with him. He also expresses concerns for the girls’ relationship with each other. By the end of the trial, he sought parenting orders for Y to live in a week about arrangement with each parent, but sought a self-executing change of residence order if the mother continued to be unwilling or unable to have Y spend time with the father.
The mother’s position at the end of the trial was that Y should continue to live with her and spend alternate weekends with the father during school terms, half of school holidays and time on special occasions.
At the end of the trial the ICL largely supported the father’s case.
At the end of the trial the parties requested I make interim orders pending judgment, some of which were agreed. The parties agreed to continue family therapy with Ms E although the mother sought that the father be responsible for payment. The parties have been equally responsible for payment to date. The mother relied on the disparity in the income earning capacity as reason for why she sought this. However in my view, it is important that both parties commit to the therapy, including financially.
The prospect of interim parenting orders being made was raised by me after refusing the mother’s adjournment application, which was based on the late receipt of Ms E’s report and the father’s change of position with respect to the parenting matter. The parties were aware that the report was going to be late and the concerns about the mother’s behaviours were raised in the first report. The concerns for the children’s welfare raised in the reports was such that I considered it important that the trial proceed. I indicated that she could renew her application for adjournment after hearing evidence. She did not make a further adjournment application. At the end of the trial it was everyone’s position that final parenting orders should be made, although the father and the ICL were of the view that it is highly likely that the mother will withhold Y and a recovery application will be necessary.
Having considered the evidence and the parties’ respective positions, I am prepared to make final rather than interim orders. If the mother does not comply with these orders there will be further litigation. As noted, the father seeks a self-executing order. For reasons I shall explain later, I do not think that order is appropriate.
General Legal Principles with respect to parenting matters
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act. The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3). These considerations include the views of the child, the nature of the child’s relationship with their parents and significant others, the extent to which the parents have or failed to take opportunities to participate in decision-making, spending time with and communicating with the child, the likely effect of separation on the children, the attitude of the parents to the responsibilities of parenthood and the capacity of the parents and significant other persons to provide for a child’s needs.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR v GR [2010] 240 CLR 461, the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an order for equal time. At paragraph 13 of the judgment the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

The High Court also addressed the relationship between section 65DAA(1) and section 61DA(1) at paragraph 15:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
Expert Reports
Family Report of Ms C
Ms C prepared the first family report dated 25 November 2020.
Ms C identified the issues in dispute and concerns raised as including the following:
·whether or not children are at an unacceptable risk of being exposed to family violence or inappropriate discipline;
·whether the mother’s mental health negatively impacts her parenting capacity;
·whether the children are being exposed to psychological harm by either parent; and
·whether or not the mother is willing to support and promote a positive and meaningful relationship with the father or is seeking to exclude him.
Ms C noted that for both parties, their relationship with each other was their only significant relationship, having met when they were 16 and 17 years old respectively. Ms C carried out psychological evaluations, assessing personality and cognitive issues with both parents. Ms C noted that the mother presented as “anxious and emotional during interviewing presented as somewhat naïve, dependent and uncomplicated. She exhibited elevated positive impression management and personality vulnerabilities.”
She said that the mother did not present with a psychiatric or personality disorder but had personality difficulties including dependent traits, catastrophic and dichotomous thinking, boundary issues and mild paranoia.
Ms C found the father to be calm and cooperative throughout and not presenting as trying to engage in positive impression management, despite the allegations the mother made against him, and was able to reflect an acknowledgement of harm the children have experienced and had engaged in anger management treatment services and programs.
The father expressed concern about not having seen Y for 7 months and concern that the mother and Y were engaging in victims of crime support, not family therapy. Ms C observed that the father was emotional when talking about the children but it was proportionate with the current stressors. He did not present with having any psychiatric or personality disorder but did acknowledge some feelings of hopelessness in the context of losing his children and family home. He was calm and cooperative during the assessment.
Ms C also administered the family strengths and needs assessment tool to assess general parental risk factors. She assessed the mother’s parenting needs as outweighing her parenting strengths and that her reported anxiety and depression, personality difficulties, problematic co-parenting relationship with the father, limited social network, concerns about her willingness to encourage the children’s relationship with the father, along with the mother’s therapeutic engagement, and focusing on family violence support rather than addressing personality difficulties, could all negatively impact on her parenting capacity. The parenting strengths included her strong family support and her ability to provide for the children’s basic needs. One of the gaps in the mother’s case is her failure to call her counsellor to give evidence. The mother claims this was due to cost.
Ms C assessed that the father’s parenting needs marginally outweighed his strengths and that his problematic co-parenting relationship with the mother, parenting difficulties with mutual verbal conflict with the mother and alleged family violence as impacting negatively on his parenting capacity. The protective factors included his strong family support, and stable and secure employment.
The father told Ms C that he would lightly smack the girls on their bottoms when they were younger. He denied belittling them, saying he might have said, “do not be stupid/dumb/an idiot” with respect to their behaviour but would never have labelled them those things. That distinction may have been lost on the children and the mother.
It is notable that the mother referred to X suffering from headaches and migraines, the cause of which were being investigated but that she attributed to stress associated with spending time with the father. However X’s headaches have continued after her moving in with the father. The father gave evidence that he has been taking X to see her GP and her psychologist.
The report interviews took place during one of the periods where Melbourne was in lockdown due to the Covid-19 pandemic, and as such the interviews needed to take place electronically. Ms C refers to the mother having acknowledged receiving her email which stressed that everyone needed absolute privacy when speaking with her and should be alone in a room with the door shut unless engaging in interactional assessment. At paragraphs 100 and 101 of her report, Ms C expressed her concerns as it was clear that despite multiple requests, the mother did not in fact leave the room with X when she was interviewing Y but remained in the room, unbeknownst to the assessor at the time. It became clear that the mother was in the room when the assessor asked Y to get her mother, and she simply turned her head and told her mother that they had finished. When pressed about this by the ICL’s counsel, the mother said she asked Ms C if she could make coffee before the interview started and that she did so before exiting the room. There is no mention of this in her affidavit. This was not put to Ms C. I find on the balance of probabilities that the mother was present during the children’s interviews and that this was deliberate.
The mother also directed the children to prepare for the assessment by writing down a list of “things that happened in the past”, which they brought to the assessment. Ms C expressed concerns about the mother influencing both girls’ interviews. She said that X repeatedly referred to the list that she had prepared throughout the interview, causing her concern about the mother’s influence. This type of conduct goes well beyond what a parent would be expected to do to prepare a child for such an appointment.
Ms C refers to the instructions that she gave both parties via email prior to the observations of the interactions between each of the parents and children. She expressed concern that despite this, the mother and children did not engage in a natural interaction but presented what she referred to as an orchestrated presentation. As Ms C was muted and had her camera off, she felt like she was watching an interview conducted by the mother and noted that they referred to each other in third person. She was unable to obtain a good impression of what a natural, conversational, non-verbal behaviour between the mother and children looked like.
Ms C also expressed concern about interference with the observation of the interactions between the father and children. She was unaware until afterwards that X had set an alarm which went off at the time the assessment was due to end, even though they had arrived a few minutes late. She says after she said goodbye and turned off her microphone and camera, she continued to listen and observe the girls with the father before they left. Significantly, she noted that the girls were talkative with the father and appeared to be at ease, which was quite different from when they knew the assessor was watching them.
When the mother was cross-examined about Ms C’s comments about the mother telling the children to write things down to the report and complaining about her remaining in the room with the children, the mother said it was an unfair report which was why they appointed Ms D to conduct the second family report. She repeated that statement during her cross-examination, only acknowledging when pressed that in fact, Ms D was engaged to conduct the second family report only because Ms C was unavailable. When questioned, the mother was keen to repeat her narrative at any opportunity rather than answering the questions asked of her. This not only highlights her lack of insight, but also raises real concerns about the reliability of her evidence. When being cross-examined, the mother frequently interjected commenting that there was no evidence with respect to questions asked, for example, her relationship with Y being dysfunctional. She also took several opportunities to criticise the father.
X acknowledges that both parents fought a lot and became tearful saying she had seen her father hit her mother once or twice but struggled to provide a specific incident, apart from referring to seeing him throw the mother’s phone on the floor. She said her parents separated because they did not trust each other and they were always arguing and were never affectionate with each other.
X told Ms C that she saw her mother unconscious for five minutes before the ambulance came. She said that her mother had a sore leg, chest and back and that the father was crying but she did not see what happened. Ms C notes that the medical records do not suggest any state of unconsciousness or head injury suffered by the mother in that incident. It is concerning that X would make the same kind of exaggerated statements as the mother, noting that she was living with the mother at that time.
X told Ms C that she feels responsible for taking care of her mother and sister and is concerned that the mother will be hurt again. She said she is worried that by her visiting her father, she makes her mother feel uncomfortable and she does not think it should be her mother’s responsibility to take her to visits.
Y described her parents as screaming and fighting a lot when they were together. Ms C observed Y to be shy and softly spoken with her. She recorded that X told her that that was not Y’s usual presentation, and more concerning, she noted that many of her responses mirrored those of her mother. Y said that she wanted to live with her mother and that if she wanted to see her father, she could tell her mother. Y said that she did not feel comfortable seeing her father alone, but that with X she would feel safe and said she could try that. She was unable to say why she felt uncomfortable about seeing him but was aware that her anxiety is increasing as time passes without seeing him. She said she also felt awkward about seeing her paternal aunt and grandmother who she had not seen for so long and that the grandmother cannot speak English and she cannot speak Language O. Y said that if she could change anything it would be her parents not arguing so they could have remained in the relationship and she wanted everybody in the family to be happy.
She found X to be mature, bright and caring with some traits of perfectionism and anxiety and feeling responsible for her mother and sister. Y was shy and gentle and was aware that the longer she avoids seeing her father, the more anxious she will become, but she was also aware that seeing her father would stress her mother. She had the sense that Y would like to see her father if she had the support of her sister, but could not be confident saying that as it would stress her mother. It is apparent from this statement that Y does not feel she has permission from her mother to have a relationship with her father. Y would be acutely aware of the mother’s negative feelings towards the father and the mother’s preference that she not see the father despite the mother’s statements to her about seeing the father.
Ms C concluded the report by expressing concern about the enmeshment between the children and the mother and also the mother’s significant boundary issues. She said the following at paragraphs 149 and 150:
Enmeshed parenting is problematic for the children’s independent social and emotional development. It may also negatively impact the children’s relationship with the father as the children do not want to cause their mother distress by spending time with him and feel responsible for the mother’s feelings and well-being, as was specifically stated by X. The mother may become reliant on the children for her own sense of worth and positive emotions. It is likely that the mother will feel betrayed and alone if she believes the children are developing a close relationship with the father. It is likely that the mother is reinforcing dichotomous thinking in relation to one parent being all good and the other being all bad, and that the children can only be loyal to one parent.
The mother presents with significant boundary issues and displayed clinging, controlling and intrusive behaviours during the current valuation; the children struggled to engage without her presence or influence during both the interactions and interviews. There is concern that she has exposed the children to adult issues and Court matters. She has a history of controlling behaviour and boundary violations in relation to approaching the father’s workplace and associates with claims that the father has been unfaithful.
Several of the mother’s answers during her cross-examination were consistent with this observation.
She noted the following at paragraphs 164 to 166:
X seemed to rework history in relation to her father’s abuse, such as claiming that her mother was unconscious for five minutes though medical reports suggested otherwise and providing a non-specific recollection of physical abuse by her father such that the assessor questioned whether she had witnessed such abuse directly. However, she confirmed that both her parents argued a lot and that her father could be aggressive and unpredictable, and Y described seeing her father push her mother onto the floor on one occasion and both her parents argue often..
In summary, both parents are capable of looking after the children’s basic needs. The father is less available, likely less attuned to the children’s emotional needs, and has less involvement in the children’s care, but offers greater emotional stability and is more willing and capable of fostering a positive and meaningful relationship between the children and the other parent.
Significant concerns were identified regarding maternal influence on the children and the assessment process. There is considerable enmeshment of the children, thus the children’s independent thoughts, feelings and beliefs are impossible to distinguish and the time arrangements they are seeking are likely influenced by their sense of responsibility for the mother’s well-being and emotional state. The longer the period of no contact between the rejected parent and the children, the more entrenched the refuse/resist dynamic become, thus it is recommended that the father’s time with the children is increased to substantial and significant time, though in a graduated manner.
Her recommendations with respect to family therapy are important as she suggested that both parents and children engage in family therapy, “to address co-parenting difficulties, exclusionary processes, and domestic relationships, and to strengthen and develop healthy parent-child relationships”.
She also recommended that the father continue to engage with his counsellor or another psychologist to help manage his stress and aggression and that the mother engage in individual treatment sessions with a counsellor experienced in family court issues “to address co-parenting concerns, anxiety and personality difficulties.”
These two recommendations are especially significant, particularly in light of her recommendation that if the children continued to refuse to spend time with the father after engaging in therapy for three months, that there should be a change of residence where the children would live with the father for two months.
Ms C was cross-examined. She was provided with the parties’ trial material. Ms C said if she had conducted the second report her risk assessment would have changed. She expressed serious concern for Y and her involvement in her parents’ dispute and need for support. She said that if Y’s refusal continues there should be a change of residence, with a three month moratorium on the mother spending time and communicating with Y. She believed family therapy was positive for the family but also believed that currently there was a lot of interference from the mother including with respect to family therapy.
She compared the interview she had with Y with the later interviews. When she saw Y, she was anxious about spending time with her father but did not show fear of him. Now, she saw a damaged child who was crying out not to be involved. If this continues, Y is at risk of developing long term mood disorders, social issues and relationship issues.
Ms C expressed sadness for the apparent breakdown in the sibling relationship and said that should be separate to the parents’ dispute. She expressed the view that the mother was now taking the same approach with respect to Y’s relationship with X as she did with Y’s relationship with her father. There is a short window of time. Ms C agreed that the mother’s inability to get Y in a car to go spend time with her father is a fault on her part as a parent.
The father’s counsel put his proposal to Ms C that immediately after Ms E has explained the orders to Y, she live with the parents on a week about basis. If this does not happen there should be a three month moratorium on the mother’s time. Ms C shared the father’s pessimism with respect to the likelihood of the mother complying with these orders. She stated that a week about arrangement would be beneficial as it involves less changeovers. She further said, given the way things have escalated over the course of the proceedings, the three month suspension of the mother’s time will be necessary if she does not comply with the orders. She thought that would be inevitable and that there would be a change of residence. Ms C did not accept the mother’s counsel’s proposition that the family therapy was progressing well, saying the mother was obstructive of the therapy until her relationship with X broke down. She thought it may be progressing well between the father and the children, but not with respect to the mother. The mother’s counsel put to Ms C that at 12 years old, Y was mature with strong views that should be given significant weight in this respect. Ms C rejected this, stating that Y’s views are not ascertainable as she has been strongly influenced by her mother, and that Y does not know the implications of her choices. Ms C said the level of control and influence the mother exerted over the girls was extraordinary at the report interviews. She pointed out that Ms E commented on Y using the same wording as the mother’s, consistent with her own observations.
Mobile Phone Incident
Before turning to Ms D’s updated report and the reported family therapy, it is important to discuss a number of incidents that have occurred since August 2021, as they provide context to those reports.
X left the mother’s care following an incident on 3 August 2021. In his trial affidavit, the father describes receiving a text message from X saying, “Hey Dad it’s X I need you to get me from home as soon as possible, I don’t feel safe and I don’t have my phone. And call the police I have something to report”. The paternal grandmother then rang the father saying X was with her and was in a distressed state. X said her mother had been aggressive, verbally abusive to her, pushed her and had taken her phone away from her and told her to “get out”. She said this was not the first time the mother had been abusive towards her.
The mother describes the incident in her trial affidavit. The mother said she and the children had attended dinner at the maternal grandparent’s house. Afterwards on the drive home, X complained about wanting to leave quickly and asking when they were going to the gym. The mother said that she was not impressed with her behaviour at the grandparent’s house, as she had not eaten. The mother says X then took out her phone and started recording the mother, saying “keep verbally abusing me; I am recording you”. The mother then pulled over the car, asked X for her phone and then took it and put it in her handbag. After getting home, the mother says she went for a walk and X followed her, asking for her phone back. The mother then went and sat in the car by herself. Y then came up to the car and told the mother “X took my phone; she rang Dad and the police. I can hear her telling the police that she feels unsafe”. The mother says she then went inside the house and asked X if she had taken Y’s phone. The mother says X smirked at her and then left with the mother’s keys.

It is unclear what happened with X’s mobile phone after this incident. A few days following, X attempted to collect her belongings from the mother’s home. In his trial affidavit, the father describes receiving a distressed call from X from Y’s phone, with X saying the mother had locked her in the house and was refusing to let her leave. In her trial affidavit, the mother describes that her and Y were in home quarantine and she did not allow X to enter the house. She explains that X forced her way into the house, and later when X went into her room, she heard X call the police and overheard her saying she did not feel safe. The police came to the house and took X to the father’s house. The ICL sent an email to the parties’ legal representatives on 11 August 2021 stating that X had explained the events that had occurred and that the mother should send X’s belongings with Y the next time she spent time with the father.
The father then filed a contravention application on 23 September 2021, as the mother had been withholding Y from spending time with the father on five occasions. The mother did not file any material in response to this application. I note she is not obliged to respond to a contravention application. The contravention application was dismissed by consent on a without-prejudice basis on 10 November 2021. The order includes notations that the parties agreed to dismiss the contravention application due to its limited utility given that the final hearing was commencing in a week’s time.
The matter was listed before me for a pre-trial mention on 28 September 2021. At the hearing, the ICL raised the issue of the mother returning X’s items. The mother’s counsel indicated that the items could be returned after production of a list of items. The ICL then stated the list had been provided on multiple times previously, and that she was concerned X’s phone had not been returned to her for some months. After having some discussions, the mother did not agree to return the mobile phone to X. It became apparent the matter needed to be listed for an interim defended hearing over the return of X’s phone and other belongings.
Senior Judicial Registrar Conlan heard the interim argument and made orders on 30 September 2021 for the mother to return X’s belongings, including her mobile phone. This order was not made by consent. In her trial affidavit, the mother simply states that:
“Since X has left the family home, I have returned her personal items to her by delivering them to the office of Hartley Lawyers.”
The mother does not explain that a Court order had been made requiring her to do so, or explain why she had not consented to such an order being made. When cross-examined at trial, the mother denied there needing to be a Court order for X’s belongings to be returned to her and saying it did not occur. The mother said there was a Court order of the list of items that X requested, and after that order had been made she fulfilled three drop-offs to Hartley’s Lawyers.
Furthermore, at the time of the trial, the mother had not returned X’s mobile phone. In her affidavit, the mother says:
“I have not returned her mobile phone because it is not in my possession; it was in my mother’s possession, and I understand that she has now given to my cousin’s daughter”
The mother did not elaborate on why the mobile phone was no longer in her possession. She did not say when this occurred. If she did not have the phone in her possession at the time the order was made obliging her to return it, surely she would have instructed her lawyers to inform the Court of that. When cross-examined, the mother agreed that despite X’s requests, and despite a Court order being made, she has not returned her mobile phone. The cross-examination went as follows:
Mr Williams: Despite a court order, despite her requests, you have not returned her mobile phone to her, have you?—
The mother: That’s correct.
Mr Williams: Yes. You gave it to someone else?
The mother: Her mother – her grandmother.
Mr Williams: Yes?
The mother: Maternal grandmother that purchased the phone ‑
Mr Williams: Right?
The mother: That I’ve got evidence for.
Mr Williams: And what was – what was the idea of that? Do you think that would help your relationship with X?
The mother: No, it did not help my relationship.
Mr Williams: No?
Mother: But it did have records of our CCTV cameras and our iCloud account and personal details that stored all our passwords.
Her Honour: Ma’am, you were ordered to produce the phone. It was an issue that was raised in Court that the ICL raised as being of real concern?
The mother: Yes.
Her Honour: It’s only after that?
The mother: It was prior to that after the incident on the 3^rd that her grandmother requested the phone back, to be given back to her, seeing that X was not returning her calls and she was misusing the phone.
Her Honour: And then none of this is in affidavit evidence, is it?
The mother: It should have been, yes.
Mr Williams: Yes. Your Honour, that completes my cross-examination in relation to children’s matters.
The mother: But since that date, her dad has purchased a new phone.
Her Honour: That’s not the point. How do you think it helps your – rebuild your relationship with her with respect to the phone?
The mother: Over materialistic things.
Her Honour: What responsibility do you take, if any, for your relationship with X at the moment?
The mother: At the moment, I’m trying to repair any relationship that I have with her.
Her Honour: Do you think you’ve contributed to the breakdown of your relationship with X?
The mother: No.
The mother’s evidence is telling. I am not satisfied with the mother’s explanation about the mobile phone but what is of more concern is her inability to accept any responsibility for her actions. She is the parent. X is not.
Incidents on 11 November 2021 and 18 November 2021
On 11 November 2021 Y was to spend time with the father, but this did not occur. The incident is not referred to in the parties’ material or by Ms E, as the incident occurred after the parties’ affidavits were filed and after the last therapy session. On the day, the father did not collect Y from school and she instead went with a friend to their home. The father’s counsel put to the mother that there was no arrangement in place for the father to collect Y from school. In letters exchanged between the parties’ solicitors, the father’s solicitor requested that if the mother wanted the father to collect Y, then the mother’s solicitor was to notify them of this arrangement in writing. This was in circumstances where orders had not been complied with on an ongoing basis. This was a reasonable request. The father’s counsel put to the mother that the father’s solicitor never received a written request for this occasion. The mother relied on the fact that her solicitors sent a letter to the father’s solicitor; this letter was sent 15 minutes before Y was due to finish school. That is not effective notice at all. It is troubling that the mother arranged for her to take Y to school and then expect for the father to collect her, but not provide the father with notice to enable him to do so. It is understandable Y would have been disappointed that her father did not come. This does the mother no credit.
Again on 18 November 2021 Y was to spend time with the father. On this occasion, the parties arranged for the father to collect Y from school, however this again did not occur. At 8.05am on that day, the mother texted the father indicating Y had her bag packed and clothes ready to spend time with him in accordance with Court orders. She asked the father if he intended to pick Y up that afternoon, and said she had work commitments and would not be contactable. The father replied 20 minutes later saying he would pick Y up from school. The mother then replied saying, “Okay, thanks.” The father’s counsel then put to the mother that at 8.40am, he received a text from Y saying that she was going to stay at a friend’s house and their dad was picking them up, and said “It’s my decision. Please don’t pick me up today.”
The father went to the school at pick-up time and spoke with Y and the father of her friend. Y then went with her friend’s father and her friend to their house. Later, the father called the friend’s father to see how things were going, and the friend’s father informed him that Y had been picked up by her mother and she had taken her home sometime after 4.00pm. The mother was cross-examined about this on both the first and second day of the trial. Her evidence on the second day was inconsistent with the first day, after the father’s counsel provided further evidence about the incident.
On the first day of the trial, the father’s counsel put to the mother that she had picked Y up from the friend’s home. The mother at first denied this, then clarified that she had picked her up from work after 5.00pm.
The father’s counsel put to the mother that she had “completely thwarted” the arrangement for Y to spend time with the father. He put to her that she had subverted the opportunity she had to ensure that Y spent quality time with her father. The mother denied this, saying she had not received any correspondence that the father was at home and he would be available for Y to be dropped off to him.
I then asked the mother that if she had collected Y after 5.00pm, then she did not have a commitment and Y could have stayed with the father, and asked what she did to support the arrangement Ms E had organised. The mother did not answer the question, instead saying she had to calm Y down as she was embarrassed from the event that took place at school, as her father had shown up when she had wanted to go home with her friend.
On the second day of cross-examination, the father’s counsel put to the mother that the father had called the friend’s father at 4.13pm, and it was then that he learnt the mother had collected Y. The mother said she did not know how the father could have called up the friend’s father. Counsel then showed the father’s phone call history of that day, including the telephone call at 4.13pm, and put to the mother that she had picked Y up from the friend’s house prior to 4.13pm. The mother denied this and said the following:
“At the time I was going to go and pick her up. She wanted me to pick her up. She was in distress. She was embarrassed that her dad did come to pick her up. As I was going to leave work, she advised me that she’s at P’s house…and that I didn’t have to pick her up straightway. I can go back to work.”
When asked if she had proof that she did not pick her up before 4.13pm, the mother said she did not. The mother’s conduct is concerning. She should have made it clear to Y that she was going to be collected by the father. It is significant that the mother refers to Y being embarrassed at the father turning up at the school, rather than addressing the issue of why Y would think it is appropriate to arrange for a friend’s father to collect her when she was aware that arrangements had been made for her father to collect her from school.
Family Report of Ms D
The parties entered into consent orders on 30 September 2021 for Ms D to conduct an updated report due to Ms C being unavailable. This report was carried out on 21 September 2021. Ms D also conducted the interviews via videoconferencing and she did not carry out any observations. She noted that the previous family report needed to be read in conjunction with her updated report. She noted that her findings were current at the time of writing the report and if the Court made divergent findings of fact, then alternative views and recommendations may be made.
Ms D’s report and evidence highlights the difficulties of a report writer updating another writer’s report. Ms D noted that the time had not progressed as had been outlined in the orders made on 4 December 2020, with a graduated increase in time between the father and both children, and that there had been miscommunications and misunderstandings. She noted the mother’s allegations that the father has breached the intervention orders, and the father’s allegations that the mother has frustrated and impeded his relationship with the children.
She further observed that X had an altercation with her mother and went to the father’s home to live with the father, and has since not spent any time with the mother. She observed that the family relationships had fractured since X went to live at her father’s place, with X not seeing the mother, Y not seeing the father, and the siblings not seeing each other. She noted that the “family relationships presented as fractured and functioning in a precarious way.” She noted that since conducting the interviews, the family had started seeing Ms E for family therapy. She noted that the mother’s anxiety had been identified as a potential impediment to a lasting reconnection occurring between the siblings and also for Y and her father.
Ms D outlines the chronology since the parties separated and notes that the parties have remained embroiled in conflict, which the children have continued to be exposed to, and that there appears to be a pattern of the mother making attempts to have the father charged with breaches of intervention orders. The father proposed that the parents have equal shared parental responsibility and proposed various living and spend time with arrangements. The mother proposed that she have sole parental responsibility and the children live with her, hoping to repair her relationship with X through family therapy and was opposed to any arrangement that would pressure Y to see the father without her consent and wanted that to be to the decision of Y. In my view, the reality is that given the dynamic, if it was left to Y to express a wish to see her father she would not be able to freely do so living with her mother.
Ms D referred to Ms C’s assessment of the parties’ personality vulnerabilities and parenting strengths and weaknesses. Ms D identified issues for the assessment, including:
·the impact of the split living arrangement on the relationship of the siblings;
·the mother’s capacity to support the children’s time and relationship with the father;
·the risk of Y aligning with the mother and rejecting the father;
·the weight to be given to the children’s views and preferences; and
·the parties’ inability to collaborate and communicate about the children.
She found the father to be reflective, familiar with the children’s personalities, and child-focussed. Although he was concerned about the mother’s capacity to support his relationship with the children, he was fully acknowledging of the importance of the children’s relationship with her. The father said that because X had experienced aggressive and controlling behaviour from her mother towards her, she did not want to see her currently. He thought that if the mother accepted responsibility for her conduct, it would help the relationship between them. He expressed concern for the siblings’ relationship if they continued to not spend time with each other. He appeared confused as to why Y was refusing to spend time at his home with himself, X and the paternal grandmother.
Ms D noted that the mother presented as anxious and eager to present a positive image of herself. She apologised for what she referred to as misunderstandings in the previous report and also for sending emails directly to Ms D without consulting her lawyer. She explained at length her views about X’s decision to live with the father. The mother minimised her role in the issue and blamed the father and X for the current situation. When discussing her relationship with X, she blamed X for the current situation and described X’s bad behaviour towards her as causing Y to be afraid, and was hoping the family therapy would assist them to repair the relationship. The mother was otherwise at a loss as to how to move forward. She complained that Y felt intimidated and pressured by X to spend time with the father and suggested that Y would run away if the pressure continued. She did not see any benefit to Y spending time with the father.
Ms D noted that both girls will benefit from spending time and having a relationship with both parents, but the benefit would be reduced if they continued to be exposed to conflict.
Ms D noted that X appeared to be mature, confident and articulate. X did not want any orders about who she should live with and how much time she should spend with each parent, given that she will be 18 in several months. She wanted the conflict between her parents to stop. She described the mother as being the one who is fighting rather than she, the father, and Y as the ones who were fighting. She described the lead up to her decision to live with the father and referred to the mother’s heightened emotion, aggressive behaviour and referred to the mother getting worked up and paranoid, badmouthing the father, taking things out on her and calling her ungrateful. X wishes to remain with her father during her studies. She was not opposed to reconnecting with the mother but lacked confidence in the mother’s ability to change. She wants her mother to engage in professional supports.
X said she and Y are close and insisted they are not fighting, but that they are not talking currently. She said Y has always been closer to their mother whereas she is close to both parents. X believes Y should be forced to spend time with her father and that that would break the ice. She believed her mother was pressuring Y to align with her.
Y expressed frustration about the various family law interventions. She said she was strong in her views and said she knew what she wanted and was old enough to decide. She did not want to be forced to go to the father’s home whether or not X remains living with their father. She said that she would let her father and X know when she wanted to see them. She said she did not fight with her father or X, but that the fight is between X and the mother and did not involve her. She thought that everything could be repaired if everyone backed off and was exasperated at the notion that Court orders might force her to spend time at her father’s home. She feels that she is not being listened to and understood. She hoped that her parents would respect her wishes given her age and the strength of her views.
Ms D records the following at paragraphs 49 and 50:
Both parents present with personality difficulties which have impacted the children’s experience of being parented. In the current circumstances, Ms Kamenska presents as struggling with her day-to-day interactions with the children, especially X. Her capacity to respect the children’s developmental needs for security, autonomy and independence over her own needs for validation and connection appears to be compromised. It is X’s experience that her father is more calm, attuned and responsive to her needs. To manage the tensions with her mother, X has chosen to live with her father and minimise contact with her mother. Y has elected to remain in her mothers’ care. Y’s decision has seemingly been influenced by her historically close relationship with her mother, combined with a desire to protect herself from the conflict between Ms Kamenska and X, as well as between Mr Kamenski and the mother.
An adverse outcome of the tensions between the parents has been that the siblings continue to live in separate homes and their relationship with the absent parent has been affected. In some cases siblings live in separate homes following separation without clear detriment to their relationship. However, it is recognised as beneficial for siblings to have a shared experience of their parents’ separation and remain connected. While it does not seem that X and Y are in direct conflict, unless the parents can recover a more amicable relationship and support the children to spend time together, there is a risk that the sibling relationship will be detrimentally affected.

There are so many contradictions in the mother’s evidence that I will not recite them all. One example is with respect to the visit for ice cream. When cross-examined by the father’s counsel, the mother described it in negative terms. However, when later cross-examined by the ICL’s counsel, and when I sought clarification with respect to why she thought equal shared parental responsibility could work, she referred to the visit for ice cream going quite well. When put to her that she had earlier been critical about the incident saying it did not work, the mother said that Y was texting her but she encouraged her to stay and persevere and rebuild a relationship with her father and sister, so she thought that it went quite well.
They engaged in a family therapy session on 17 November 2021, the day before the father was due to collect Y from school for an overnight visit. At the session, the father and X attended in person and the mother and Y attended via telehealth, as Y had possibly been exposed to Covid-19. The father's father had recently passed away after suffering dementia for some years and the father expressed his wish for Y to attend the funeral events. Notably again, the mother had technological difficulties which disrupted the conversation with her and significantly, the mother refused to pay her share of the consultation fee because she had not been able to speak with X, having run out of time. That speaks volumes about the mother’s attitude towards therapy and her commitment to it.
Ms E supported Y to express her complaints about the recent visit with X and the father to which they responded supportively. The father explained that he did not join the siblings in the living room as he wanted to give them time to be together and that the grandmother was speaking with delight in Language O about the fact that Y was with them. Y appeared settled by the conversation and became more engaged. However, the mother became angry when Ms E suggested that the Court ordered arrangement should be reinstated, asserting that Y was afraid of her father and X.
The attitude and participation of the parties in the family therapy were in stark contrast to each other, with the father being actively engaged in the process and the mother not. Whilst the mother frequently described herself as supportive of the therapeutic process, particularly after the breakdown of her relationship with X in August before this, the mother had delayed making appointments and questioned much of the therapy proposal. The therapy had been delayed for several months because of the mother’s failure to make assessment appointments for herself and the children. The focus of the therapy changed because of the events in August 2021 and in discussing those difficulties the mother continued to blame X describing her as rebellious and turning on her. She could not see how she had contributed to any of the emotional schisms in the family, not only between herself and X, but also the siblings and between the father and Y.
In contrast, the father showed considerable development of insight into his role in the conflict between himself and the mother and the need to regulate his behaviour and emotion. X also fully engaged in the therapeutic process and demonstrated considerable maturity in dealing with her mother, and Ms E had the impression that at times it was as if the roles between X and the mother were reversed. Y engaged in the therapeutic process when she was invited and responded to requests to speak to her father and sister. She appeared to be caught in the middle and ambivalent, and it appeared that in order to psychologically cope, her stories such as the descriptions of the visit with her father and sister, were slanted to what she thought each person expected to hear from her. There was limited progress for the family in the context of a relatively limited number of sessions.
Ms E noted that, due to the mother’s refusal to meet jointly with the father, the parent’s communication could not be addressed therapeutically. The father appeared to have capacity to address the parenting communication and in all sessions presented as calm, rational and coherent. This is in contrast to the mother who presented as anxious, defensive and blaming. As the dysfunction continues, the children remain exposed to a level of stress that for Y resulted in a loyalty conflict and for X being emotionally cut off from her mother, and with both parents’ parenting abilities being compromised.
Under the heading “exclusionary processes and domestic relationships”, Ms E expressed concern that the mother seems intent on supporting not just Y’s estrangement from the father, but also from her sister. The visit between X, the father and Y, only occurred with Ms E’s considerable input and support involving the legal representatives. It is concerning that the mother unquestioningly accepted Y’s negative descriptions of that visit and saw this as proof of the father’s poor parenting and X’s negative influence. Ms E observed an enmeshed relationship between the mother and Y.
When Y expressed uncertainty about meeting with X, the mother only ambivalently encouraged her, saying “you’ll be alright, [Ms E] will be there…” Ms E observed an immediate change in Y’s mood once she left the mother. Ms E noted she smiled and appeared to be becoming increasingly excited. Of most concern is when she also observed that after leaving the meeting with the father and X with a warm farewell, Y’s demeanour changed when with her mother, who had looked worried and concerned. Ms E expressed considerable concern that Y’s psychological functioning seems to have been impacted by her enmeshed relationship with her mother, which her mother sees as being facilitative and nurturing.
Under the heading “future consideration”, Ms E spoke about the importance of the children having meaningful relationships with both their parents to promote their development and sense of being wanted and appreciated. From her observations she determined that X has a facilitative relationship with the father and that after separating from her mother, she was able to experience a more reality-based view of her father’s capacity. Ms E concluded that X’s relationship with her mother needs to be repaired so as not to compromise her capacity to manage relationships into adulthood, but that the mother has the responsibility for addressing this. She noted that X did not present as a “wilful or psychologically dysfunctional adolescent”. She observed a strong and meaningful relationship between the father and Y but in contrast observed Y’s relationship with her mother to be laden with anxiety and the mother has either unwittingly or wittingly influenced the alignment.
The mother presented as an individual who thinks in absolute terms and perceives significant people to her to either be with her or against her. She was unable to have a nuanced view of the father and was dismissive of him, particularly with respect to his participation in the family therapy, and referred to the father’s “impression management”. Ms E thought that the mother had at times actively coached the children against their father. I agree with her observations and concerns.
Ms E’s view was that the father had shown that he had a capacity to remain child-focussed but would benefit from ongoing therapy to assist him to be more consistently confident about his parenting capacity. Unless the mother can resolve her issues with respect to the father, it is likely that she will continue, whether knowingly or not, to involve the children in adult issues and limiting Y’s time with the father and her sister.
Ms E acknowledged that Y and the mother have a very strong bond but also agreed with Ms C’s observations that there was some enmeshment and she described it as a “fused emotional relationship with the mother” such that in her view, a three month separation from her mother with no contact would be quite damaging for Y long-term. She referred to the turbulence in the family and X pivoting towards her father and that given the damning feedback of the mother in this Court, it would be appropriate to have a week about arrangement over the Christmas holidays and to continue that over the next school year and that that could be a more “psychologically facilitative approach”. She further stated that if there were still difficulties by the end of term one, then consideration could be given to placing Y in the father’s care with a period of no contact with the mother.
Ms E also recommended that the parties engage a parenting coordinator who can provide more of a monitoring and overseeing role to provide structure for the parents with respect to communication and dealing with any difficulties. She observed that during the period of family therapy the parents sought that type of assistance from her. This would be in addition to family therapy continuing. Ms E was of the view that she would be able to repair her therapeutic relationship with the mother as they had been engaging quite well until she suggested alternative views to the mother. She also said that whilst Y was wary she was also responsive to her suggestions and instructions. As none of the parties have sought a parenting co-ordinator I will not order one, but the parties should give Ms E’s recommendation serious consideration.
Ms E agreed that there should be an appropriate person to explain the orders to the children, particularly Y.
Ms E observed that in her view, the mother will struggle with much of her own issues that she does not think the mother has faced at this point, particularly with respect to her view of the father and that a professional with family law experience and background would be required to support the mother. The mother has not provided evidence as to the type of counselling supports she has been receiving and my concern is that in order for it to be valuable, she needs to receive assistance from an experienced professional who understands family law dynamics and the type of situation this family is facing. Ms E said she shared this concern and that the individual should also be someone who can also liaise with the family therapist.
Other Parenting Orders Sought
In closing submissions, the father’s counsel submitted that to keep matters simple with less handovers and minimal opportunities for misunderstandings, special days should fall where they lay. I accept that submission. I will not make orders for the various orthodox holidays or the parent’s or children’s birthdays. I will make orders with respect to Christmas day.
Both parties seek orders with respect to overseas travel. No time was spent on this issue at trial. As both seek an order, and the father’s is more comprehensive, I will make travel orders in terms of his proposed orders.
As noted earlier, the father sought a self-executing change of residence order if the mother continued to be unwilling or unable to have Y spend time with the father. That order is as follows:
8.In the event the Mother fails, refuses, neglects, hinders or prevents:
(a)    a compliance with any provision of these Orders;
(b)    the facilitation of Y’s time pursuant to these Orders;
(c)    Y’s timely attendance upon therapeutic counselling with Ms E;
(d)    delivery of Y to the Father in accordance with these Orders;
(e)    Y spending time or communicating with the Father in accordance with these Orders;
then paragraphs 7 (a) and (b) in relation to the Father and Mother spending equal time with Y shall cease to be operative and thereupon Y shall live and spend time with the Father for a period for 3 months and the Mother’s time be wholly suspended.
9.In the event paragraph 8 applies the Mother shall be restrained from approaching Y or attending any place or school where Y is located, and from communicating with her by any means.
The father’s counsel referred to a recent unreported decision of his Honour Judge A Kelly, [2021] FedCFamC2F 275, in which he also appeared. The circumstances in that case were different to this case. Significantly, in that case one party sought a self-executing order for the children’s residence to be changed to the father’s if the mother did not take the up the ‘last chance’ to comply with the orders.
As can be seen there are many elements to that order where there is potential for there to be genuine disputes about whether or not the mother has complied with those orders, for example with respect to what timely attendance means. Also, it is significant to note that Ms C expressed pessimism in her view that the likely outcome would be mother’s non-compliance with orders and the need to change residence and suspend the mother’s time for a period. Ms D was proposing that the father’s time with Y be reduced. The parties received Ms E’s report shortly before the commencement of the trial. It was not part of the father’s case to seek a change of residence at the commencement of the trial. This is not a criticism, but rather goes against making a self-executing order.
The father’s counsel acknowledged that even with a self-executing order in those terms, in reality the father would need to bring an urgent application to the Court. For the order to be truly self-executing there would need to be a trigger such as a warrant for Y’s removal from the mother and placement with the father. That involves the Australian Federal Police and is very much a measure of last resort.
Conclusions with respect to the parenting case.
I am required to consider whether or not equal time or substantial and significant time would be in Y’s best interests. I am mindful that Y has expressed strong views against spending substantial and significant time in her father’s care but accept the evidence of Ms C and Ms E that Y’s views need to be treated somewhat cautiously given the mother’s influence. Y would be acutely aware of the risk of potentially losing her relationship with her mother if her mother thought she was disloyal to her, particularly given X’s experience. The mother’s lack of insight into the emotional pressures she puts on the children and her focus on blaming a variety of external factors and not seeing herself as playing a role leads to pessimism in her ability to mend her relationship with X.
I have given much consideration as to the best orders to make with respect to Y spending time with her father. It is not in Y’s best interests to reduce her time with her father as recommended by Ms D. In my view, Y needs to spend substantial and significant time in the father’s household so that she has her own experiences of the father separate from her mother’s experience, and also so that she has time with X. I have given consideration to ordering a week about arrangement, but acknowledge that it is not disputed that Y and the mother are particularly close. I have come to the view that an arrangement where Y spends six nights a fortnight during school terms with the father and eight nights with the mother is in Y’s best interests, as it allows for Y to have individual time with her mother, whilst also ensuring that she has significant and substantial time with the father, her sister and extended paternal family.
I am not satisfied that there is a risk of the children being exposed to further family violence in the father’s care. The greatest risk currently is with respect to Y’s psychological and emotional well-being if the mother continues to denigrate the father and require the children to choose one parent over the other.
I acknowledge that there is a real likelihood of there being further proceedings as the mother will find the outcome difficult to accept. It is hoped that the mother is able to engage in the right sort of counselling assistance for her and is able to fully engage with the family therapy. This would certainly benefit the family as a whole.
THE PROPERTY CASE
The parties cases with respect to property
The property aspect of this case is more straightforward than the parenting.
The father says there should be a 60% division in his favour, which in his view, gives proper acknowledgement of the significant contributions from him and his family during the parties’ relationship.
The mother’s case is that there should be a 57.5% adjustment in her favour on the basis that the parties’ contributions are assessed as equal and there is a 7.5% adjustment for s.75(2) factors in her favour.
The parties’ legal and equitable interests
With the exception of the caravan, the parties agreed that the asset pool is as follows:

Table of Assets and Liabilities

Father’s Individual Assets

F Street, Suburb G $1,000,000

ANZ account ending in #...63 $3,424

Motor Vehicle 2 $44,000

Motor Vehicle 1 $57,000

Firearms $2,500

NAB account ending in #...69 $536

Father’s total individual assets $1,107,460

Father’s Individual Liabilities

NAB Credit Card ending in #...57 $13,985

Mortgage on F Street, Suburb G $88,129

Father’s total individual liabilities $102,114

Father’s total individual assets less liabilities $1,005,346

Mother’s Individual Assets

Motor Vehicle 3 $18,000

CBA account ending in #...11 $13,408

Mother’s total individual assets $31,408

Joint Assets

Caravan $19,000

NAB account ending in #...12 $1,950

Joint total assets $20,950

Father’s Superannuation

Employer H Superannuation Fund $250,622

Super Fund S $7,295

Super Fund T $21,941

Father’s total superannuation $279,858

Mother’s Superannuation

Super Fund U $18,049

Super Fund V $671

Mother’s total superannuation $18,720

The father attributes the value of $19,000 to the caravan on the basis that the parties purchased it for $23,000 in 2015. The mother seeks to attribute a $24,000 value to the caravan. Neither party obtained a valuation. The father did request that it be valued shortly before the trial. The caravan has been in the mother’s possession since the parties separated. The mother claims when cross-examined that the caravan has increased in value due to increased demand on caravans for travel. This is highly unlikely given the fact that it is common knowledge that cars lose value as soon as they are driven off the car sales lot. I accept the father’s figure of $19,000.
The father attributed value of the contents of the former matrimonial home at $20,000. When cross-examined the mother said that she will leave all the furniture in the house. The father submitted that as he is seeking to obtain the house, and he attributed the value of $20,000 to the furniture, that is what should be attributed to it.
The father did not pursue addbacks he referred to in his trial affidavit.
Following the trial, the parties’ clarified that NAB account ending in #...12 is the shared joint account and the account held the sum of $1,950. I will order that the parties close that joint account after dividing the proceeds between them in the same proportion as the rest of their non-superannuation pool.
General Legal Principles for Property Matters
Part VIII of the Family Law Act governs property, spousal maintenance and maintenance agreement between married couples. The major provisions relating to marital property division are contained in ss.79(1); 79(2); 79(4); & 75(2) of the Family Law Act.
Until the High Court decision in Stanford v Stanford (2012) 247 CLR 108, the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled with a preferred approach as set out by the Full Court in Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39].
The High Court considered the operation of s.79 of the Family Law Act (which has almost identical terms to s.90SM) in the matter of Stanford. In this case, the majority stated at [35]-[36] that:
It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.”
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.” [Footnotes omitted]

The High Court found three fundamental propositions with respect to the application of s.79, which can be summarised as follows:
Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word ‘existing’.
Secondly, although s.79 gives the court a broad power to make property settlement orders it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests.
Thirdly, when considering whether making a property settlement order is just and equitable the court must not assume that one or the other party has the right to a property adjustment order. The court must give separate consideration to s.79(2) in addition to the matters referred to in s.79(4).
In Stanford the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of s.79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation. Both parties seek property adjustment orders.
The High Court also pointed out that what is just and equitable is different in every case.
It is important to have regard to the myriad of contributions the parties have made over the whole of their long relationship and take a holistic approach to the assessment of the parties’ contributions.
INITIAL CONTRIBUTIONS
The father purchased a block of land at F Street, Suburb G (“F Street, Suburb G property”). He says that at the time they started living together, he had equity of approximately $70,000 in the land which had been valued at $120,000. The father denies the mother’s allegation that he had credit card debt at the beginning of the relationship and says that he paid his credit card bills in full each month. He says he also had approximately $40,000 in superannuation. They each had a motor vehicle.
CONTRIBUTIONS DURING THE RELATIONSHIP
For the first four years of their relationship the parties lived in the father’s parent’s investment property at Z Street, Suburb AA rent free.
In 2005, the father purchased half a block of land in Suburb BB from his cousin, for $90,000 and agreed that they would build two units on the land, which they estimated the cost of a further $90,000 each. The father says the land was in his name as the mother was not working at the time and the father borrowed money to fund the purchase of the land and build. The father says he carried out a significant portion of the labour on the build of the properties with assistance from his brother-in-law who was a tradesman.
In her trial affidavit, the mother alleges that the father received a $25,000 insurance payout after his car was stolen. She does not say when this allegedly occurred. The father says his car was not stolen but was written off in an accident and encloses a letter from the insurer dated 13 August 2020, identifying that he received a payment of $5,200. I accept the father’s evidence.
The parties sold the unit at Suburb BB in 2010 for $361,000 earning a profit of $181,000 from the sale. They used the proceeds to repay F Street, Suburb G property’s land mortgage and purchased the car for the mother and used the remainder for savings.
In December 2006 the father’s parents gifted the parties, the investment unit the parties had lived in rent free at Z Street, Suburb AA (“Z Street, Suburb AA property”).
The father says he transferred $70,000 to his parents in December 2006 after his father told them he had a debt of $20,000. The money was transferred to pay the debt, so that they could take a holiday and to buy a car. His father transferred $50,000 back to the parties three days later. The mother claims that the parties contributed $50,000 to the acquisition of the Z Street, Suburb AA property and not $20,000 but the father has annexed the bank transfers to his trial affidavit which establish the contribution made by the parties to the Z Street, Suburb AA property was $20,000. The mother annexes a check receipt showing $70,000 on 10 December 2012. The father does not deny writing a check what she fails to address is the fact that his parents transferred $50,000 back to them
The father annexes the rental income statements from his tax returns showing that the parties received $49,939 in rental income from 2007 until 2011.
The parties sold the Z Street, Suburb AA property on 21 October 2013 for $335,000. They made a profit of $315,000. The mother claims the net proceeds were only $16,750. She annexes the settlement statement. However, it is clear from the settlement statement annexed to her affidavit that the figure of $16,750 was the deposit that the purchaser paid. The settlement statement clearly identifies that the balance due to be paid to the vendors was $320,069.28. That sum was dispersed to pay council rates, water usage, and stamp duty with the majority of it being paid to the Australia and New Zealand Banking Group.
The mother inherited $70,000 from her family which was applied to F Street, Suburb G property. Her parents also gifted her $5,000.
In 2012 they decided to build a home on the land at F Street, Suburb G property. They took out mortgages and used their savings to build it. The parties agree that the home is now worth $1,000,000. The mortgage is currently $80,000.
On 11 October 2017 father received a redundancy payout from Employer H in the sum of $155,234. He had worked for Employer H for 20 years, five of those being before the relationship. Due to this, the father says that 25% of the redundancy payment should be treated as his sole contribution. They used the redundancy to reduce the mortgage on F Street, Suburb G property and used the remainder for living expenses during the three months the father was unemployed.
Contributions post separation
The mother has had the benefit of living in the former matrimonial home with the children since separation. Despite the mortgage being small she has not paid for the mortgage or the rates on the property since the parties’ separated.
Gambling allegations
The mother alleges that the father gambles in her trial affidavit. She claims that regularly she would not have enough money to buy groceries. She does not provide evidence to support this broad statement. She alleges that the father withdrew a total of $25,000 in cash between December 2017 and February 2018 and says he spent this money gambling. She annexes bank statements to her trial affidavit and highlights five withdrawals of $5,000. However, her annexure in fact attaches two withdrawals that are repeated. As such, the annexure points to three withdrawals of $5,000 each being made. The father accepts that he made three withdrawals, the amount of $5,000 on each occasion, pointing out that this was the period that he was unemployed after being made redundant. He says he used the money for living expenses. I accept the father’s evidence about this.
The mother alleges that the father left her without any money when she and X were in Queensland for a holiday. He joined them the next day because of his work commitments. She claims that he emptied their joint account leaving her without access to funds to pay for food. The father says he withdrew cash from their joint account before flying to Queensland so that she had easy spending money for theme parks and meals out and so on. He says she had money with her and had access to their credit cards.
Both parties played the pokies early in their relationship and before X was born. There is no evidence to support a finding that the father engaged in gambling at such a level to amount to wastage of matrimonial funds.
Conclusions with respect to contributions
In her case outline the mother complains that there is no admissible evidence as to value of the father’s land at the time they started living together. The difficulty is that her counsel did not challenge the father’s evidence in this respect during cross-examination.
The mother also argued in her case outline that the gifts to the father’s parents were a gift of both of them. She refers to several cases but her counsel did not engage with that argument and did not cross examine the father about it. In closing submissions, the mother’s counsel argued that the Court should find that the parties’ contributions were equal.
The mother’s case outline refers to several cases with respect to gifts given by each of their parents and whether or not that should be seen as a contribution on behalf of the party or by both. Despite arguing in the case outline that the rent free accommodation and gifted property should be seen as a contribution on behalf of them both and not just the father, no attempt was made to cross-examine on this topic and counsel did not engage with the arguments referred to in the case outline, even when invited to do so. In any event it is quite clear from looking at Pellegrino & Pellegrino [1997] FamCA 52 being one of the cases referred to in the case outline, that how this type of matter is determined very much depends on the individual circumstances of the case and the evidence. In that case, Chisholm J observed that it is common for parents to make gifts to children and for there to be no formal arrangement or acknowledgement as to whether it is gifted to one or both. Usually the parents would regard it as a gift to both whilst the parties married, and that is an important point. I am satisfied that in this case the rent free accommodation and the unit should be treated as a contribution made on behalf of the father. The direct and indirect financial contributions made on behalf of the father are significant, but must be assessed holistically, along with all the other contributions made by the parties both directly and indirectly and with respect to financial and non-financial matters. The mother’s claim that her contributions were made more arduous due to the family violence she experienced also needs to be assessed holistically amongst the myriad of other contributions and are not determined in isolation, as I noted earlier.
Whilst I am satisfied that the father did commit family violence, I am not satisfied that it supports a finding that her contributions were made significantly more arduous, particularly given the inconsistencies and exaggerations in her evidence. The evidence falls well short of supporting the mother’s case that the father engaged in a course of family violence such that it significantly impacted on the mother’s contributions.
I am satisfied that the children were exposed to incidents of family violence and have continued to be exposed to high conflict between the parents.
The mother significantly downplays the contributions made by and on behalf of the father, both with respect to the initial contributions of F Street, Suburb G property land, and also the use of rent-free accommodation and the unit. She has not established that these contributions by the father’s parents should be treated as anything other than a contribution on the father’s behalf. Whilst the mother also made significant contributions during the course of the relationship both financial, noting the inheritance she received for example, and non-financial in her homemaker and parenting role, she says that the parties’ contributions should be assessed as being equal.
Section 75(2) factors
The father is 45 years old. He earns $108,000 per annum as a supervisor. The father’s case outline also contained an argument which was not supported by evidence at trial, with respect to his income reducing because of ceasing night shifts. When cross-examined, the father admitted he works three overnight shifts per week. He plans to continue this as he says it suits his availability for the children. Given his income, it will continue to be greater than the mother’s. Currently the father lives with his mother. He wants to retain the former matrimonial home and eventually resume living there. He says his mother has agreed to stay overnight at his home during his overnight shifts so that X and Y are not alone.
The father pays child support.
The mother is 44 years old. The mother has qualifications as a carer. She is casually employed as a carer and also is employed on a permanent part-time basis as a cleaner and estimates that her annual income to be $50,000. The mother says she wants to study a degree in education which would qualify her to work as an educator as well and enable her to earn a higher income. She has not enrolled in any course and does not provide any other details in this respect.
In closing submissions, the mother’s counsel sought a 75% adjustment in the mother’s favours for s.75(2) factors. Since the parties separated, the mother has had the benefit of remaining in the former matrimonial home without paying the modest mortgage and not including paying the council rates. The father has entered into an arrangement with the council to pay the rates.
I am satisfied that the father has a higher earning capacity than the mother and because of this, there should be an adjustment in her favour.
With respect to caring responsibilities for Y on a best case scenario, Y will be in a substantially shared-care arrangement, spending six nights a fortnight during school terms with the father. On a worst-case scenario if matters continue as is the current trajectory, Y may come into her father’s care. Assessing the relevant s.75(2) factors, there should be a 10% adjustment in the mother’s favour.
I find it is just and equitable to make property adjustment orders and the overall result is that the father will receive 60% of the non-superannuation assets and the mother should receive 40% of the non-superannuation assets. Both parties sought to retain the home, though there is some doubt as to the mother’s capacity to refinance. I am satisfied that the father should be given the opportunity to retain the former matrimonial home.
The father will retain the following assets:
(a)F Street, Suburb G
(b)Motor Vehicle 2
(c)Motor Vehicle 1
(d)Firearms
(e)Caravan
(f)Any monies held in ANZ account #...63 and NAB account #...69
The mother will retain the following assets:
(a)Motor Vehicle 3
(b)Any monies held in CBA account #...11
The father will need to make a payment to the mother of $423,082. In the event the father does not make that payment, F Street, Suburb G property will need to be sold and the net proceeds of sale divided in proportions as 60% to the father and 40% to the mother of the net non-superannuation pool.

I certify that the preceding two hundred and twenty-one (221) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland.
Associate:
Dated: 17 January 2022

File number(s):	MLC 3895 of 2020
Judgment of:	JUDGE HARLAND
Date of judgment:	17 January 2022
Catchwords:	FAMILY LAW – Parenting – allegations of family violence – mother’s ability to facilitates children’s relationship with the children – whether or not there should be a self-executing order for change of residence – property adjustment – weight to be given to father’s initial contributions and contributions from his family – whether or not there should be a contribution due to family violence – what s.75(2) adjustment should be made – s.75(2) factors.
Legislation:	Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), pts.VII, VIII, ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 64, 65D, 65DAA, 67Z, 75(2), 79, 90SM, 90XT, 90XZA Family Law (Superannuation) Regulations 2001 (Cth), Pt.6, rr.12, 13
Cases cited:	Baranski v Baranski and Anor (2012) 259 FLR 122 Benson & Drury [2020] FamCAFC 303 Hickey & Attorney-General (Intervener) (2003) FLC 93-143 Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 H and H (2005) FLC 93-209 Kennon & Kennon 22 Fam LR 1 Maine v Maine (2016) 56 Fam LR 500 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 MRR v GR [2010] 240 CLR 461 Pellegrino & Pellegrino [1997] FamCA 52 S & S [2003] FamCA 905 Stanford v Stanford (2012) 247 CLR 108 S and S (2005) FLC 93-246 Waterford & Waterford [2013] FamCA 33
Division:	Division 2 Family Law
Number of paragraphs:	221
Date of last submission/s:	24 November 2021
Date of hearing:	22, 23 and 24 November 2021
Place:	Melbourne
Counsel for the Applicant	Mr Williams
Solicitor for the Applicant	Aberdeen Lawyers
Counsel for the Respondent	Mr Howe
Solicitor for the Respondent	Swiftly Legal
Counsel for the Independent Children’s Lawyer	Mr Radich
Solicitor for the Independent Children’s Lawyer	Hartleys Lawyers

MLC 3895 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR KAMENSKI Applicant
AND:	MS KAMENSKA Respondent
AND:	INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	JUDGE HARLAND
DATE OF ORDER:	17 JANUARY 2022

Table of Assets and Liabilities
Father’s Individual Assets
F Street, Suburb G	$1,000,000
ANZ account ending in #...63	$3,424
Motor Vehicle 2	$44,000
Motor Vehicle 1	$57,000
Firearms	$2,500
NAB account ending in #...69	$536
Father’s total individual assets	$1,107,460
Father’s Individual Liabilities
NAB Credit Card ending in #...57	$13,985
Mortgage on F Street, Suburb G	$88,129
Father’s total individual liabilities	$102,114
Father’s total individual assets less liabilities	$1,005,346
Mother’s Individual Assets
Motor Vehicle 3	$18,000
CBA account ending in #...11	$13,408
Mother’s total individual assets	$31,408
Joint Assets
Caravan	$19,000
NAB account ending in #...12	$1,950
Joint total assets	$20,950
Father’s Superannuation
Employer H Superannuation Fund	$250,622
Super Fund S	$7,295
Super Fund T	$21,941
Father’s total superannuation	$279,858
Mother’s Superannuation
Super Fund U	$18,049
Super Fund V	$671
Mother’s total superannuation	$18,720