Lamar & Lamar - [2024] FedCFamC2F 339

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lamar & Lamar [2024] FedCFamC2F 339

File number(s): MLC 6031 of 2022

Judgment of: JUDGE GLASS

Date of judgment: 19 March 2024

Catchwords:
FAMILY LAW – PARENTING – allocation of parental responsibility – whether four year old child should live week about with her parents.

FAMILY LAW – PROPERTY – whether funds repaid to wife’s father should be added-back – whether post-separation loan ought be included as a joint liability – assessment of contributions and other factors.

Legislation:
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 65DAC, 75, 79, 81, 90XT, 117

Family law (Superannuation) Regulations 2001 (Cth) pt 6

Superannuation Industry (Supervision) Regulations 1994

Cases cited:
AJO & GRO (2005) FLC 93-218

ASIC v Hellicar (2012) 247 CLR 345

Blass & Blass (2022) FLC 94-085

Boyle & Zahur & Another (2017) FLC 93-814

Dulton & Dulton (2020) FLC 93-984

Eastley & Eastley (2022) FLC 94-094

Elliston & Dennell (2019) FLC 93-903

Eufrosin & Eufrosin [2014] FamCAFC 191

Fox v Percy (2003) 214 CLR 118

Jones v Dunkel (1959) 101 CLR 298

Jong & Yeng [2014] FamCAFC 156

Lainhart & Ellinson (2023) FLC 94-166

Lennon & Lennon [2011] FamCA 571

Maclean & Greenwood (2022) FLC 94-117

Makita & Sprowles (2001) 52 NSWLR 705

Manifold & Alderton (2021) FLC 94-015

Marcin & Marcin (2020) FLC 93-956

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Muldoon & Carlyle (2012) FLC 93-513

NHC & RCH (2004) FLC 93-204

Oberlin & Infeld (2021) FLC 94-017

Palumbo & Mandel (2019) FLC 93-929

Pearson & Pearson (2021) FLC 94-008

Prince & Prince (1984) FLC 91-501

Rodgers & Rodgers (2016) FLC 93-703

Russo & Wylie (2016) FLC 93-747

Stanford v Stanford (2012) 247 CLR 108

Trevi & Trevi (2018) FLC 93-858

Vigano & Desmond (2012) FLC 93-509

Division: Division 2 Family Law

Number of paragraphs: 196

Date of hearing: 4-7 March 2024

Place: Melbourne

Counsel for the Applicant: Ms Tiernan

Solicitor for the Applicant: Bentleys Barristers and Solicitors

Counsel for the Respondent: Ms Mooney SC

Solicitor for the Respondent: Pentana Stanton Lawyers
ORDERS

MLC 6031 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR LAMAR

Applicant

AND:
MS LAMAR

Respondent

ORDER MADE BY:

JUDGE GLASS

DATE OF ORDER:

19 MARCH 2024

THE COURT ORDERS THAT:
PARENTING
1.The Mother have sole parental responsibility for X, born in 2019.
2.X live with the Mother.
3.X spend time and communicate with the Father as follows:
(a)Until such time as X commences primary school:
(i)during the school term, on alternate weekends commencing 29 March 2024 from 4:00pm Friday until 4:00pm Monday; and
(ii)during the school term holiday period as agreed, and failing agreement:
A.during the first week from 4:00pm Friday until 4:00pm Monday; and
B.during the second week from 4:00pm Tuesday until 4:00pm Friday.

(iii)during the long summer school holidays for three nights per week as agreed, and failing agreement as follows:
A.during the first, third and fifth week, from 4:00pm Friday until 4:00pm Monday; and
B.during the second, fourth and sixth week, from 4:00pm Tuesday until 4:00pm Friday.

(b)Upon X commencing primary school:
(i)during the school term, on alternate weekends from the conclusion of school on Friday (or 4:00pm if a non-school day), until the commencement of school on Tuesday (or 10:00am on a non-school day);
(ii)for one half of each term school holiday period as agreed, and failing agreement, the first week with the Father in odd years and the second week in even years, with changeover to occur at 12:00pm on the middle Saturday;
(iii)for one half of the long summer school holidays on a week about basis as agreed between the parties, and failing agreement, the child shall spend time with the Father during the first, third and fifth week of the long summer school holidays commencing in odd years, and during the second, fourth and sixth week of the long summer school holidays commencing in even years, with changeover to occur each Saturday at 12:00pm; and

(c)As otherwise agreed between the parties in writing.

4.Despite any Order to the contrary, X spend time with her parents on special occasions as agreed and failing agreement as follows:
(a)on Mother’s Day with the Mother from 10:00am until 5:00pm;
(b)on Father’s Day with the Father from 10:00am until 5:00pm;
(c)for Christmas, with the Mother from 12.00pm Christmas Eve until 12.00pm Christmas Day, and with the Father from 12:00pm Christmas Day until 12:00pm 26 December; and
(d)for Easter:
(i)in even years, with the Father from 4:00pm Maundy Thursday until 1:00pm Easter Saturday, and with the Mother from 1:00pm Easter Saturday until 4:00pm Easter Monday; and
(ii)in odd years with the Mother from 4:00pm Maundy Thursday until 1:00pm Easter Saturday, and with the Father from 1:00 pm Easter Saturday until 4:00pm Easter Monday.

5.In order to facilitate the preceding paragraphs, changeover occur as agreed between the parties in writing and failing agreement:
(a)at kindergarten or school at kindergarten or school times; and
(b)otherwise, at the Father’s residence at the commencement of X’s time with her Father, and the Mother’s residence at the conclusion of time.

6.In relation to telephone calls:
(a)when X is with the Mother, the Father be at liberty to call X between 5:30pm and 6:00pm each Wednesday;
(b)when X is with the Father, the Mother be at liberty to call X between 5:30pm and 6:00pm on Saturday;
(c)the parent with whom X is residing shall facilitate telephone calls pursuant to this Order; and
(d)the parties be restrained from recording the telephone conversations with the child.

7.The parties communicate about X via the AppClose parenting application.
8.The parties be restrained by injunction from enrolling X in, or taking X to, a childcare centre or kindergarten other than AI School.
9.The Mother do all things necessary to enrol X in B School, Suburb C.
10.Both parents be authorised to receive directly from X’s school, copies of all school notices, information, newsletters and school reports, details of parent/teacher interviews and be at liberty to arrange same by telephone, copies of school photographs and order forms and any information which is relevant to X’s education, at the requesting parent’s expense.
11.Both parents be at liberty to attend X’s school and extra-curricular activities that parents would ordinarily attend, including but not limited to parent teacher interviews, concerts and competitions.
12.The parties keep each other informed of any significant injury or illness suffered by X when in their respective care, as soon as practicable, including advising the other of:
(a)the nature of the significant injury or illness;
(b)the names of all relevant treating medical and allied health practitioners; and
(c)the treatment given to date and relevant information about the diagnosis.

13.Each parent be authorised (and these Orders shall act as authority for same) to contact X’s treating practitioner/s and/or allied health care professionals to discuss X including as to any diagnosis, treatment, and future prognosis, and to seek further information and advice.
14.The parties do all acts and things necessary and sign any required documents to enrol X at the:
(a)D Sports Centre and the parties shall ensure that X is taken to all lessons and/or associated events while she is in their respective care; and
(b)E Sports Centre and the parties shall ensure that X is taken to weekly lessons and/or associated events while she is in their respective care.

15.The parties do all acts and things necessary and sign any required documents to be provided to Births Deaths and Marriages, Victoria to change the X’s name from X to X.
16.Each parent shall keep each other informed of their current address, email and telephone number, and inform the other parent of any change within 48 hours of said change.
17.Upon X reaching seven (7) years of age and in the event that either parent wishes to travel overseas with X:
(a)the travelling parent shall give the other parent sixty (60) days prior notice in writing of the proposed travel including full particulars of the following:
(i)a full travel itinerary, including all travel dates;
(ii)copies of e-tickets including return details;
(iii)address(es) at which X shall be staying and contact number(s);
(iv)a proposal for make-up time; and

(b)the Mother retain X’s passport for safekeeping purposes and provide same to the Father upon request by him no later than 14 days prior to travel;
(c)The Father shall return the passports to the Mother within 7 days of return to Melbourne;
(d)Neither parent shall travel with X to any country which is:
(i)not a signatory to the Hague Convention; or
(ii)that the Australian Government has issued a travel advice higher than "Exercise a High Degree of Caution"; and

(e)At least 10 days prior to the travel. the travelling parent provide the non‑travelling parent with the following:
(i)evidence that the travelling parent has enquired with X’s treating General Practitioner about any vaccinations recommended to persons travelling to the country or countries to which she will travel;
(ii)evidence that X received the recommended vaccinations at the cost of the parent organising the overseas trip;
(iii)the travelling parent keep the other parent informed in writing of all changes to the travel itinerary, accommodation details, and X’s contact details for the duration of the proposed travel as soon as practicable.

18.Both parents do all such acts and things necessary to apply for, and renew as required, X’s passport and the travelling parent pay for all costs associated with all applications and renewals.
19.Each parent be restrained from denigrating, abusing, insulting or belittling the other parent or his/her extended family to or in the presence and/or hearing of X, or permitting any other person doing so.
20.Each party have liberty to provide a copy of Dr G’s psychiatric assessments to their treating mental health practitioners.

PROPERTY
21.Within 90 days, the Applicant pay to the Respondent the sum of $47,482.
22.Contemporaneously with the payment, both parties do and sign all acts and things to:
(a)transfer the property situated at F Street, Suburb H in the State of Victoria more particularly described as Volume … and Folio … ("Suburb H Property") to the Respondent at her expense;
(b)discharge the mortgage in favour of the J Bank (mortgage number …) secured over the Suburb H Property and the Respondent shall refinance the loan in her sole name;
(c)transfer the property situated at K Street, Suburb L in the State of Queensland, being the land more particularly described with title reference … (“Suburb L Property”) to the Applicant at his sole expense; and
(d)discharge the mortgage in favour of the J Bank secured over the Suburb L Property and the Applicant shall refinance the loan in his sole name.

23.In the event the Applicant is unable to make the payment or refinance the Suburb L Property by the due date, the parties do all things necessary to place the Suburb L Property on the market for sale with the following conditions:
(a)the selling agent be as agreed, and failing agreement M Company shall have care and conduct of the sale;
(b)the conveyancer for the sale be as agreed between the parties and if there is no agreement N Company shall conduct the conveyance on behalf of the parties;
(c)the terms and conditions of the sale including but not limited to the sale price be as agreed between the parties but if there is no agreement, the sale price shall be pursuant to the sworn valuation of $520,000 or as nominated by the real estate agent from time to time; and
(d)the parties shall accept the higher of any offer within $15,000 from the sale price.

24.Contemporaneously with the listing of the Suburb L Property for sale pursuant to the preceding paragraph, the parties shall forthwith provide notice to the existing tenants to vacate the property contemporaneously with the sale.
25.Upon the sale of the Suburb L Property, the proceeds of the sale be forthwith disbursed as follows:
(a)firstly, payment of all agent's commission, advertising expenses and legal expenses of the sale;
(b)secondly, to discharge the mortgage and any other encumbrance affecting the real property;
(c)thirdly, the sum of $47,482 to the Respondent together with interest calculated from the due date for the payment; and
(d)finally, the balance then remaining to the Applicant.

26.In the event the Respondent is unable to re-finance the Suburb H Property by the due date, the parties shall forthwith do all such things and sign all such documents as necessary to list the Suburb H Property for sale on the following conditions:
(a)the selling agent be as agreed, and failing agreement, O Company, Suburb H shall have care and conduct of the sale;
(b)the conveyancer for the sale be as agreed between the parties, and if there is no agreement, then a joint conveyance shall be conducted by the parties' existing solicitors;
(c)the terms and conditions of the sale, including but not limited to the sale price be as agreed between the parties but if there is no agreement, the sale price shall be pursuant to the sworn valuation of $967,500 or as nominated by the real estate agent from time to time; and
(d)the parties shall accept the higher of any offer within $15,000 from the sale price.

27.That upon the sale of the Suburb H Property, the proceeds of the sale be forthwith disbursed as follows:
(a)firstly, payment of all agent's commission, advertising expenses and legal expenses of the sale;
(b)secondly, to discharge the mortgage and any other encumbrance affecting the real property; and
(c)finally, the balance to be paid to the Respondent.

28.In accordance with section 90XT of the Family Law Act 1975, the sum of $20,953 is allocated from the Applicant’s interest in the Super Fund 1 account number ….
29.In accordance with section 90XT(1)(a) of the Family Law Act 1975:
(a)the Respondent is entitled to be paid using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)the entitlement of the Applicant in the Fund is correspondingly reduced by the force of this Order.

30.That the trustee of the Fund (trustee) is bound by this Order and shall do all acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement of the Respondent in the immediately preceding clause of this Order; and
(b)pay the entitlement whenever the trustee makes a splittable payment from the Applicant's interest in the Fund.

31.This Order has effect from the operative time and the operative time is four (4) days after service of this Order on the Trustee.
32.After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“SIS Regulations”) the Applicant shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the Respondent's request in accordance with the SIS Regulations, for the payment of the Respondent's interest by way of a lump sum entitlement in accordance with the SIS Regulations.
33.Unless otherwise specified in these Orders and save for the purpose of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders;
(b)monies standing to the credit of the parties in any joint bank account to be divided equally between the parties and thereafter the parties shall do all acts and things required to close any joint bank account;
(c)each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other;
(d)insurance policies remain the sole property of the owner named therein;
(e)each party be solely liable for and indemnify the other against any credit card debt or other personal liabilities in their names;
(f)each party be solely liable for and indemnify the other against any liability encumbering any item of the property to which the party is entitled pursuant to these Orders; and
(g)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

34.All extant applications be dismissed.

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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:

Mr Lamar and Ms Lamar commenced cohabitation in late 2014, married in early 2016, and separated in January 2021. They were divorced in early 2023. They have one child together, X, who is now four years old.
Arising for determination are competing applications for parenting and property orders.
PARENTING
X currently lives with Ms Lamar in Suburb H and spends time with Mr Lamar for three nights per fortnight in Suburb P.
Mr Lamar proposes that X’s parents have equal shared parental responsibility for her, and that she commence living with the parties week about commencing in eight weeks’ time. His proposal is contained in Exhibit A1.
Ms Lamar proposes that she have sole parental responsibility for X, that X continue to live with her, and spend time with Mr Lamar each alternate weekend for three nights and extended time during school holiday periods. Upon X commencing school next year, Ms Lamar proposes that X spend time with her father for four nights each alternate weekend. Her proposal is contained in her Further Amended Response filed 19 February 2024, as amended orally in closing address.
The applications fall to be determined by reference to Part VII of the Family Law Act 1975 (Cth). I am guided by the objects of that Part and the principles underlying those objects.[1] X’s best interests are the paramount consideration.[2] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.
Primary Considerations
[1] Family Law Act 1975 (Cth), s 60B.
[2] Family Law Act 1975 (Cth), s 60CA.
The benefit to X of having a meaningful relationship with both of her parents

Both parties propose that X will spend substantial and significant time with both of her parents.
The Family Report writer, Dr Q, recommends that X spend equal time with each of her parents. Central to that recommendation is her opinion that Ms Lamar “has demonstrated both overt, and covert (if the father’s evidence is accepted) behaviours serving to interrupt and interfere with the father-child relationship”.[3] She goes on to opine that:
It is hoped that, at [X]’s age, with significant and substantial time with the father, she can continue to develop an independent relationship with the father sufficiently separate to that of the mother’s. As such a fifty-fifty week-about care arrangement is recommended.[4]
[3] Affidavit of Dr Q filed 3 August 2023, Annexure 1 (“Second Family Report”), paragraph 70.
[4] Second Family Report, paragraph 71.
That opinion raises for consideration the extent to which Ms Lamar has interrupted and interfered with X’s relationship with her father, any reasons for doing so, and whether she is likely to continue doing so in the future.
After the parties’ separation in January 2021, X did not spend time with her father until October of that year. Ms Lamar deposes to the following explanation:
On 21 January 2021, [Mr Lamar] left the former matrimonial property, left [X] in my full-time care, and did not obtain stable or suitable accommodation for around six months. I was not agreeable to [X] being in his care unsupervised at the time, as he had no fixed address, and I understood that he had stopped taking his medication. I was extremely concerned at the time for [X] and her well-being and wanted to ensure she was not exposed to those conditions as she was one (1) year of age at the time and could not self-protect.[5]
…
I did not agree to supervised time with [X] because [Mr Lamar] was not getting the psychological assessment, providing his medical records and had no fixed place of residence. I did not feel that this was in [X]'s best interest and wanted to act protectively.[6]
[5] Affidavit of Ms Lamar filed 19 February 2024, paragraph 53.
[6] Affidavit of Ms Lamar filed 19 February 2024, paragraph 123(b).
In answer to a question asking why she did not respond to a Family Dispute Resolution service provider in February or March 2021, Ms Lamar gave oral evidence that:
That’s because my lawyers had sent correspondence to [Mr Lamar] and [he] had never responded to my lawyers. So I was still waiting to hear back from [him] from my lawyers where I requested certain things because he had gone off his medication, and I didn’t know where he was living, what his mental health was like. He had no fixed residence or no fixed address. So my lawyers wrote to [Mr Lamar] and [he] has – [he] had never responded to my lawyers.
The following exchange then occurred:
COUNSEL FOR [MR LAMAR]: Your request you’re referring to is that my client do all the things you wanted: go to a psychiatrist, provide medical records, get a psych assessment; that’s the list of things you’re referring to?
[MS LAMAR]: Well, yeah, because – because my lawyers had written to him.
Ms Lamar also gave oral evidence that she did not respond to a supervision agency engaged by Mr Lamar because she had not received a response to her lawyer’s correspondence. Ms Lamar’s evidence that no response had been received to her lawyer’s correspondence was unchallenged and uncontradicted. No explanation is advanced by Mr Lamar for his failure to do so. The parties were both, by then, subject to Intervention Orders regulating their contact with each other.
I do not accept that during the period from January to October 2021, Ms Lamar was responsible for X’s failure to spend time with her father. It is not suggested that the requests Ms Lamar had made through her lawyers were unreasonable. The absence of a response from Mr Lamar, particularly in addressing her significant concerns about his mental health, in my determination, substantially contributed to the interruption and interference in X spending time with him.
Agreement was reached between the parties at Family Dispute Resolution in September 2021 for X to spend professionally supervised time with Mr Lamar. That time commenced in October 2021. Ms Lamar agreed in oral evidence that the reports of X’s time with her father during that period were “overwhelmingly positive”.
X spent time with Mr Lamar at the supervision agency in February 2022. X thereafter complained to her mother about her leg hurting. In response to an enquiry from Ms Lamar in February 2022, the supervisor advised that the following had occurred in February 2022:
At one point [X] lost her footing and slipped over near one [tree] but she got straight up and didn't show any signs of discomfort or inability to walk etc. Another time when she was running […] she tripped over and fell flat. She cried loudly when that happened but recovered quickly when her father picked her up and cuddled her. The trips didn't seem out of the ordinary for a toddler.[7]
[7] Affidavit of Ms Lamar filed 19 February 2024, Annexure L17, pages 106 to 107.
Ms Lamar was cross-examined as follows:
COUNSEL FOR [MR LAMAR]: These incidents about [X] having completely normal toddler falls are the basis on which you suspend the supervised time?
[MS LAMAR]: No, that’s not correct.
COUNSEL FOR [MR LAMAR]: What is the other incident you say took place that caused the suspension, at this point, of supervised time?
[MS LAMAR]: I didn’t suspend time. I asked [Mr Lamar] to change supervisors, because I wanted to be informed of when [X] falls, because she can’t self-protect or communicate if I need to watch for a concussion.
I accept it was reasonable for Ms Lamar to be advised by either Mr Lamar or the supervision agency when X has fallen heavily and “cried loudly”.[8] I accept Ms Lamar’s evidence that it was not the fall itself that caused her to request a change in supervisor, but the absence of communication about it. No explanation was offered for Mr Lamar’s failure to advise Ms Lamar of the incident.
[8] Affidavit of Ms Lamar filed 19 February 2024, Annexure L17, pages 106 to 107.
Despite subsequent agreement being reached for a new supervisor to be engaged, Ms Lamar did not complete her intake with the new agency. By that time, Mr Lamar had been charged with threatening to kill Ms Lamar. She gave unchallenged oral evidence that as a result, there was a chance that Mr Lamar would be deported to Country R if he was convicted of the offence. Whilst it would perhaps have been ideal for X to continue spending time with Mr Lamar in that context, I am not critical of Ms Lamar waiting for the outcome of that criminal charge for family violence. The charge was struck out in mid-2022, after Ms Lamar had filed a statement of no complaint. I accept her unchallenged evidence that she did so because she did not want Mr Lamar deported back to Country R.
After the charge was struck out, Ms Lamar explained her decision not to re-engage with a supervision agency because of Mr Lamar failing to undergo psychological assessment. Whilst she denied she was then gatekeeping, she gives no evidence of any deterioration in Mr Lamar’s mental health in 2022. She did not explain why his mental health was such that supervised visits were appropriate in 2021, but not in 2022, particularly when X had spent overwhelmingly positive time with him in that context. Nevertheless, I note Ms Lamar’s unchallenged evidence that she had requested a further session of mediation which was denied by Mr Lamar. Ms Lamar therefore cannot be seen as solely responsible for X not spending time with her father after May 2022.
During the period prior to litigation in this Court, I conclude that both parties have contributed to interruptions in X’s time with her father. I do not accept that Ms Lamar has been primarily responsible for those interruptions.
Proceedings were instituted in this Court in June of 2022. On 19 December 2022, interim Orders were made providing for X to spend time with Mr Lamar. Significantly, those Orders have been complied with, now for a period of approximately 14 months. That is the position despite Ms Lamar not having consented to the Orders and them imposing an immediate commencement of unsupervised time between X and her father, and the introduction of overnight time in April 2023. Given Ms Lamar’s compliance with those interim Orders, I find no reason to conclude that she will inappropriately interfere with, or interrupt, X’s time with her father upon the making of final Orders.
Dr Q gave oral evidence that it was not merely the question of whether X in fact spends time with her father that leads her to recommend equal time. She gave evidence that she made that recommendation “[b]ecause of the difficulties in the mother’s ability to support the father/child relationship, which is a much bigger and more complicated issue than time-spent specifications”. She gave the following oral evidence:
… the concerns in this case in terms of the mother’s ability to support the father/child relationship is more to do with the way that she is with [X].
… the main concern is that the mother could not foresee any potential positive of having the father in [X]'s life; she minimised his role to her and to me, and, quite frankly, you know, to put it quite bluntly, she didn’t want him involved, full stop. She saw him as a very bad man, and it was – she was rigidly fixated on her view of the father as a very bad man, without any real balance to that to understand that there are good parts and bad parts to all people.
Dr Q’s evidence in that respect seems to be essentially based on her observations during the preparation of her first family report in December 2022. In it, she records that:
… the assessment revealed significant concerns about the mother’s ability to support the father-child relationship. Specifically, the mother appeared to have difficulties understanding [X]'s experiences of the father as being independent to those of her own. She does not appear to have prioritised [X]'s time or relationship with him. She has withheld [X] from him due to concerns about the supervisor’s behaviour, and/or vexatious reasons. She was clear that she would not ever communicate directly with the father and/or co-parent. She presented as incredibly anxious (and dysregulated) about even the thought of contact with the father. She identified herself that she would struggle to manage and support [X] if contact with the father resumed, decompensating purely at the thought of it. She remains concerned about matters despite clear evidence to the contrary (i.e., that the father will not feed [X], despite him having done so repeatedly during supervised time). And there remains the aforementioned concern that the mother (or other) may have inculcated the belief in [X] that the father will get angry. It seems hard to imagine a time and set of circumstances where the mother might be able to support [X]'s independent relationship with her father.[9]
[9] Affidavit of Dr Q filed 13 December 2022, Annexure Q2 (“First Family Report”), paragraph 89.
Although Dr Q gave oral evidence that she made similar observations in her subsequent family report assessments in June 2023, she did not record them in that report. Expert opinions must be based on facts that are established by evidence.[10] That absence of Dr Q giving evidence of the observations that led her to the same conclusions in June 2023 results in me being able to place only limited weight on her generalised oral evidence to that effect.
[10] Thornton & Little (2022) FLC 94-082 at [78].
Crucially, a number of aspects of Dr Q’s evidence quoted in the preceding paragraphs are not now established by the evidence. The evidence does not satisfy me that Ms Lamar minimised Mr Lamar’s role in X’s life. I accept Ms Lamar’s evidence as to his involvement in X’s life which was not successfully challenged in cross-examination. For reasons already given, I am not satisfied that Ms Lamar withheld X from her father for vexatious reasons. Whatever Ms Lamar indicated about not communicating with Mr Lamar in December 2022, the parties have been extensively communicating with each other through a parenting application. Ms Lamar has sought to involve Mr Lamar in decisions about X’s extra-curricular and other activities.
Ms Lamar’s report to Dr Q that she would struggle to manage and support X if contact resumed is inconsistent with her evidence of what in fact subsequently took place. Consistent with Dr Q’s recommendation, she obtained psychological treatment. She gave oral evidence that once the interim Orders were made for unsupervised and overnight time:
… I continued to see [my psychologist] and then my mental health improved as there was a lot more routine and stability. So I got my groove back. [Mr Lamar] and I were – we knew what we were doing with [X]. What days it would be. It was all written on paper and that helped me get structure. So I feel good when I’ve got structure.
Ms Lamar’s position and evidence to this Court is inconsistent with her not wanting Mr Lamar involved in X’s life. It is inconsistent with her being unable to support X’s independent relationship with her father. She has done so since the Orders were made. By all accounts, that relationship has developed appropriately. I am unable to place significant weight on Dr Q’s opinion given the facts upon which she relied are not established by the evidence now before the Court.
Meaningful in the context of this primary consideration is a qualitative and not a strictly quantitative adjective.[11] On both parties’ proposals, X will spend alternate weekends and half school holiday periods with each of her parents. The primary difference between their proposals from 2025 is whether X spends one or four mid-week nights each fortnight with her father during school terms.
[11] Mazorski & Albright (2007) 37 Fam LR 518 at [26]; McCall & Clark (2009) FLC 93-405 at [115], [121].
I am not satisfied that Ms Lamar will interrupt and interfere with X’s relationship with her father. I am not satisfied that the additional time proposed by Mr Lamar is necessary to ensure that X has the benefit of a meaningful relationship with both of her parents.
The need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Each of the parties allege that the other subjected them to family violence during the course of their relationship. Ms Lamar admitted to having done so in cross-examination. Mr Lamar submits that to have been the first time she did so. He did not point to any inconsistent previous evidence of her denying having done so. Contrary to the submission, she admits in her evidence that she scratched Mr Lamar during an argument in early 2021. Ms Lamar candidly accepted in cross-examination that she had assaulted Mr Lamar and perpetrated other acts of violence upon him.
Mr Lamar generally denied having perpetrated family violence on Ms Lamar. His Counsel submits that the general denial was limited to acts of physical violence. I am not so satisfied. The relevant cross-examination followed allegations of physical violence being put to Mr Lamar which were denied by him. The following exchange followed:
SENIOR COUNSEL FOR [MS LAMAR]: [Ms Lamar] then goes on to say – she sets out some examples of your family violence during the course of the relationship. And I think you do agree, do you not, that you did perpetrate family violence upon [Ms Lamar] during the course of the marriage?
[MR LAMAR]: No.
SENIOR COUNSEL FOR [MS LAMAR]: Are you very sure about that? That’s your evidence as you sit here today, that you did not perpetrate family violence during the course of the marriage?
[MR LAMAR]: Yes.
Mr Lamar’s general denial of family violence was coupled with specific denials of the allegations made against him by Ms Lamar. I prefer Ms Lamar’s evidence. As she submits, Mr Lamar’s evidence was difficult to follow. He gave evidence that he had lied in various ways at a number of different times. He gave evidence of having lied to his treating medical practitioners, to Ms Lamar during the relationship, and to his own mother. His evidence of having done so was inconsistent with contemporaneous materials and his purported motivations for doing so appeared fanciful.
I accept Ms Lamar’s submission that an egregious example of Mr Lamar’s unreliable evidence related to a message sent by him to his mother in 2018. He was taken to the contents of the message in cross-examination. He gave the following oral evidence:
[MR LAMAR]: I’m not sure at what point I should point out to the court that this was a – I wrote this and then showed it to [Ms Lamar] for approval before sending it off to my mother.
…
[Senior Counsel for Ms Lamar]’s inferring that I meant or wrote this, which is not necessarily the case.
…
Well, whatever I wrote had to be approved by [Ms Lamar] before it went to my mother.
…
There were elements that I had to reword.
…
I wrote this, which then went through with [Ms Lamar], and had – and was changed or tweaked.
Mr Lamar went on to assert that various contents of the message were false. He was given multiple opportunities to identify the falsehoods in the document throughout the course of his oral evidence. His answers were significantly inconsistent with each other.
The following exchange occurred:
SENIOR COUNSEL FOR [MS LAMAR]: All right. So are you seriously suggesting that you sat down and were forced to write this email which you – which was a lie? You didn’t believe it?
[MS LAMAR]: Yes, that was the case. Not necessarily didn’t believe everything that was in this but I was – this was written under significant duress.
Mr Lamar was asked repeatedly what comprised the duress he alleged. He ultimately gave evidence it was “an ongoing argument about the family”, having occurred after “a weekend of arguing”.
Mr Lamar’s evidence in relation to the email to his mother is inconsistent with contemporaneous materials. He sent the following series of text messages to Ms Lamar without response from her:
Mum emailed me earlier and I just saw it
I’ve replied
[screenshot of the email]
I hope you can see that
I’ve got to run to a meeting
I realise my reply is probably not even close to conveying everything
But I hope you see
[12] Exhibit R12.
I’m really angry[12]
Ms Lamar gave unchallenged evidence that she did not know of the email prior to it being sent. She gave oral evidence that she had been in a work meeting, had come out of the meeting and saw the messages quoted in the previous paragraph. I accept her evidence, which is consistent with the contemporaneous messages sent by Mr Lamar.
I reject Mr Lamar’s evidence that he showed Ms Lamar the message prior to sending it, that she had asked him to reword it, change it or tweak it. I also reject his evidence that Ms Lamar sat him down and forced him to write the email. Despite being re-examined on the topic the day after giving the evidence to which I have referred, he did not seek to correct his evidence. He maintained his evidence despite the inconsistent text messages having been attached to an earlier affidavit of Ms Lamar’s filed in these proceedings.
Mr Lamar’s repeated and false evidence in relation to the circumstances of him writing an email to his mother, raises concerns about the general reliability of his evidence to this Court.
In 2019, Ms Lamar was pregnant with X. She deposes that she and Mr Lamar were having a discussion about house renovations and family, before Mr Lamar “became angry and violent”, “went to the kitchen and pulled out a [weapon]”. She deposes to him holding the weapon to her pregnant stomach and saying words to the effect “I’m going to open your stomach and kill this baby.”[13] She also deposes to him appearing in a “very aggressive and frightening manner” and her calling Police as she was “absolutely terrified and fearful for my life and that of our unborn daughter”.[14] There was nothing about the way Ms Lamar gave her oral evidence that caused me to doubt the veracity of her allegation.
[13] Affidavit of Ms Lamar filed 19 February 2024, paragraph 27.
[14] Affidavit of Ms Lamar filed 19 February 2024, paragraph 27.

Ms Lamar accepted that her evidence did not include reference to the following allegations contained in a Police Statement:
[Ms Lamar], who was pregnant at the time, stated that [Mr Lamar] was having a mental health episode and had [held a weapon to his throat]. [Mr Lamar] had also stated that he would drive his car into random people and then [harm] himself.[15]
She nevertheless maintained that both allegations were true. I am not satisfied that their absence from her affidavit evidence undermines the credibility of her evidence to this Court.
[15] Exhibit A5.
I am also not satisfied that the absence of a reference to Ms Lamar alleging that Mr Lamar held a weapon to her stomach in the Police Officer’s statement impeaches the credibility of her evidence. She gave uncontradicted evidence that there was no contemporaneous record of her interaction with Police on the day of the incident. The statement referred to is dated approximately two years after the incident, in mid-2021. It also records that Ms Lamar “did not want to go into those threats”.[16]
[16] Exhibit A5, page 2.
Mr Lamar was subsequently admitted to the psychiatric unit of S Hospital. Notes from that facility record the following:
Wife coaxed him to return home, where they continued to argue. [Mr Lamar] describes feeling uncontrollable anger, and grabbed a [weapon] in response to this. He however denies any intention of harming himself or his wife.[17]
Mr Lamar accepted in oral evidence that each of those recorded statements was true.
[17] Exhibit R11, page 7.
Hospital notes also record the following:
Yesterday went to kitchen draw [sic] and picked up a [weapon], describes that by the time he had grabbed it had calmed down. Wife asked him to put it down and he did. Describes his aim was to hurt himself, is concerned that in the moment he is not in control. Wife called the police. Describes after outbursts he is always regretful in retrospect.
A couple of times when he has verbalized anger, had threatened that he would harm the baby, says it in the moment and a minute later her [sic] regrets. No plan to harm self, wife or baby.[18]
…
Reports feelings of guilt and regret for threatening his wife and unborn child, states he was lost in the moment and lost control.[19]
…
Denies having ongoing suicidal thoughts, states that the threats to harm his wife and baby only when he is angry. Would like to think that he would not act on these things when he is angry but also would like to think that he wouldn't say these things at all.[20]
…
[Mr Lamar] spoke fondly of his wife and denied any thoughts or feelings of wanting to hurt her or their unborn daughter, saying he has never had these. [Mr Lamar] discussed that when he becomes angry he says things in the heat of the moment that he doesn't mean. [Mr Lamar] acknowledged that his behaviour with a [weapon] was not safe or appropriate for his wife and unborn child, expressing regret stating that he did not think that behaviour would ever be acceptable. [Mr Lamar] could acknowledge that this would have made his wife feel scared…[21]
[18] Exhibit R11, page 14.
[19] Exhibit R11, page 21.
[20] Exhibit R11, page 34.
[21] Exhibit R11, page 40.
Despite those notes, Mr Lamar denied that he had verbalised anger and threatened to harm the baby. He gave oral evidence that he had lied to his treating professionals. When asked why he had done so, he gave the following evidence:
Because I firmly I believe that everything that was put to me was essentially something I had done or something that was my fault. So I had grabbed the [weapon] and set about [Ms Lamar] and the baby, that – in the course of these discussions, it was put to me that that – “You have made a threat, that is family violence, you have made a threat.” And, at that point, I said, “Well, I suppose it is.” So, when it’s discussed further on the third – second or third day that I’m there, that is what – that’s what I said I had done. So I had threatened that I would harm the baby.
I do not accept Mr Lamar’s evidence that he lied to his treating mental health professionals in the days after the incident. Those purported lies are inconsistent with him expressing guilt and regret for having threatened his wife and unborn child. Further, he accepted that he had said things in the heat of the moment that he didn’t mean. Despite that acceptance, he was unable to identify any such statements. His inability to do so suggests also that his evidence to this Court is unreliable.
As Ms Lamar submits, Mr Lamar has subsequently contradicted his account of those events. He told psychiatric assessor Dr G that he had “grabbed a [weapon] and had threatened to kill himself”.[22] Dr Q gives unchallenged evidence that Mr Lamar told her that he had pulled a weapon, held it in front of himself and asked Ms Lamar “do you want me to kill myself?”.[23] He subsequently deposes that he held a weapon in his hand and said words to the effect of “What do you actually want from me? I’m doing all this for you and the baby”.[24] His oral evidence was different again, him then giving evidence that he said “What do you want me to do? I’m doing this for you and the baby”.
[22] Affidavit of Dr G filed 8 December 2022, annexure G1, paragraph 15.
[23] First Family Report, paragraph 26.
[24] Affidavit of Mr Lamar filed 26 February 2024, paragraph 8(a).
Mr Lamar’s evidence and presentation to the Court was consistent with Dr G’s unchallenged opinion that:
[Mr Lamar] appeared to have minimised the extent of his emotional dysregulation, and the effect on his family.[25]
…
He has displayed a tendency to minimise his level of difficulty, trying to put a good face towards others.[26]
[25] Affidavit of Dr G filed 8 December 2022, annexure G1, paragraph 61.
[26] Affidavit of Dr G filed 8 December 2022, annexure G1, paragraph 62.
I find Mr Lamar has minimised his actions in late 2019. Ms Lamar’s evidence is consistent with Mr Lamar’s own contemporaneous admissions to his treating mental health professionals. I accept her evidence and find that Mr Lamar held a weapon to her stomach while she was pregnant and threatened to harm her and the unborn X. I also accept her unchallenged evidence that she was terrified and fearful for both her and her unborn child’s life. Mr Lamar accepted in cross-examination that it would have been a singularly terrifying event, and an extremely traumatic thing for a pregnant woman to endure.
Other aspects of Ms Lamar’s evidence are consistent with Mr Lamar’s statements to his mental health practitioners during his admission in late 2019. Those notes record that:
Reports leaving the house and while driving in his car informed his wife that he felt like driving into oncoming traffic…Poor coping mechanism over the past few years- multiple outbursts, [harms] himself occasionally. Reports history of domestic violence in the past, having pushed his wife on a couch after an argument.[27]
…
Shoved wife by shoulders onto couch a few yaers [sic] ago this promted [sic] seeing a psychologist for the first time, therapy for around 6 months. Now he gets physical towards himself […]… Describes always having problems with anger in close relationship, he thinks the frequency of his anger bursts is increasing and in intensity.[28]
[27] Exhibit R11, page 7.
[28] Exhibit R11, page 14.
Given the matters to which I have already referred, along with the support for Ms Lamar’s evidence in the contemporaneous materials,[29] I generally prefer Ms Lamar’s evidence in relation to the family violence that occurred between the parties. I find that her admissions of also having perpetrated family violence were both candid and against interest, adding to my impression of the general reliability of her evidence.
[29] Fox v Percy (2003) 214 CLR 118 at [31] per Gleeson CJ, Gummow & Kirby JJ.
Mr Lamar submits that an inference be drawn from the absence of evidence from Ms Lamar’s parents “as to this family violence dynamic”. I reject the submission. I am unable to conclude that the “family violence dynamic” between the parties is a matter about which Ms Lamar’s parents would “presumably be able to put the true complexion on the facts relied on as the ground for the inference”.[30] The necessary foundation for the somewhat nebulously expressed inference to be drawn is not established.[31] Further, even if Ms Lamar’s father could corroborate some aspects of the evidence, parties are not required to call corroborating evidence from every possible witness.[32]
[30] Jones v Dunkel (1959) 101 CLR 298 at 308 per Kitto J; ASIC v Hellicar (2012) 247 CLR 345 at [167].
[31] Blass & Blass (2022) FLC 94-085 at [26].
[32] Pearson & Pearson (2021) FLC 94-008 at [41] and the case there cited.
I accordingly make the following findings with respect to the family violence perpetrated by Mr Lamar:
(a)Mr Lamar often used his superior size and stature to overpower Ms Lamar, grabbing her wrists and pinning her down, causing her to be unable to move freely. On numerous occasions he restrained her against her will.
(b)In around mid-2017, Mr Lamar threw Ms Lamar onto the sofa causing a large bruise.
(c)Mr Lamar frequently made threats of self-harm, including in the presence of X. He threatened to drive into oncoming traffic, creating an atmosphere of fear. He threatened self-harm in 2020. In early 2021, he constantly spoke about self-harm, including in X’s presence.
(d)Mr Lamar often self-harmed. In mid-2019, he self-harmed causing injury. His self‑harming behaviour increased towards the end of the parties’ relationship. His behaviour after ceasing his medication in late 2020 and early 2021 became increasingly erratic, violent, aggressive, and unstable.
(e)Mr Lamar damaged property, smashed and broke objects, including cracking the stone kitchen benchtop. He threw objects in a rage.
(f)Mr Lamar threw a bag of cold water offered to him by Ms Lamar, consistent with his psychologist’s advice.
(g)Mr Lamar gaslit, followed and taunted Ms Lamar, video recording her without her consent, including in X’s presence.
Consistent with Ms Lamar’s admissions, I find the following other incidents of family violence occurred:
(a)Mr Lamar and Ms Lamar got into scuffles over the course of their marriage during which she was physically violent towards him. They had a scuffle in 2017 in a car park and both hurt each other.
(b)During an argument in 2015, Ms Lamar damaged some items of property of Mr Lamar’s in anger, including scratching words into furniture.
(c)Both parties called each other derogatory names.
(d)Ms Lamar checked Mr Lamar’s social media profile and became angry when she found he had been asked out on a date. She subsequently forced him to change his phone number.
(e)Ms Lamar threatened to harm herself on one occasion by texting Mr Lamar that she was so stressed, that she wanted to self-harm herself and was going to harm herself in the shower.
(f)In early 2021, Ms Lamar scratched Mr Lamar on the arms while he was videoing her during an argument. She picked up X’s plastic ride on toy and hit Mr Lamar with it.
Mr Lamar submits that he was the victim of the family violence in the relationship and Ms Lamar the aggressor. I reject the submission. I find that he perpetrated substantial and significant family violence. That is not to say Ms Lamar did not also perpetrate family violence. I accept Dr G’s oral opinion that:
… it sounded like a highly volatile conflictual relationship where I think it would have been very difficult, probably, at times to decide who was the aggressor and who was the victim. It may have shifted back and forth over time.
Despite the history of family violence between the parties, both propose that X spend substantial unsupervised overnight time with each of her parents. I do not find, contrary to their positions, that X is presently at unacceptable risk of harm through exposure to family violence in either party’s care.
Additional Considerations
Any views expressed by X and any factors (such as her maturity or level of understanding) that are relevant to the weight to be given to those views
It is not suggested, and I do not find, that weight should be accorded to any views expressed by X given her young age.
The nature of X’s relationships with each of her parents and other people, including any grandparent or other relative
X has been primarily cared for by Ms Lamar throughout her life. She has accordingly been primarily responsible for attending to all of X’s needs. I place limited weight on Dr Q’s oral evidence that their relationship was enmeshed at the point of the first interview. She did not articulate that conclusion in either of her Family Reports. She accepted that X does not now present with observable behaviours consistent with such a characterisation.
Dr Q reports that during the second family report assessments, “[X] ran and jumped into her father’s arms (who had gotten down to her level) and she gave him a big cuddle and had a smile on her face”.[33] She also reports that X “presented as comfortable in his care”.[34] So much is consistent with the assessments for the first family report when Dr Q records that “[X] remained in close proximity to the father throughout”.[35] Those observations are also consistent with what Ms Lamar agrees were the “overwhelmingly positive” reports of X’s time with her father during supervised visits. Dr Q gave oral evidence that X had a good time with her father, “bonded really quickly” with him, and displayed “curiosity, excitement, joy and pleasure”. I accept Mr Lamar’s unchallenged evidence that they have a “strong bond”.[36]
[33] Second Family Report, paragraph 63,
[34] Second Family Report, paragraph 64.
[35] First Family Report, paragraph 68.
[36] Affidavit of Mr Lamar filed 12 February 2024, paragraph 74.
X has developed appropriate relationships with Mr Lamar’s new partner, Ms T, and her two children U and V, who live in Mr Lamar’s household on a week about basis.
The extent to which each of X’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to her, to spend time with her, and to communicate with her
Both parties have taken relevant opportunities to participate in X’s life.
The extent to which each of X’s parents has fulfilled or failed to fulfil their obligations to maintain her
Although Mr Lamar did not pay child support for X for approximately four months, he has continued to make substantial contributions to Ms Lamar’s household, including paying half the mortgage on the property occupied by her. Child support has apparently thereafter been paid by him as administratively assessed.
The likely effect of any changes in X’s circumstances, including the likely effect on her of any separation from either of her parents, or any other child or other person, including grandparent or other relative, with whom she has been living
Mr Lamar proposes that X commence spending equal time with each of her parents. It will be a significant change for X to no longer reside primarily with her mother. Dr Q was asked about the prospect of X commencing to reside primarily with Mr Lamar. She gave oral evidence that “any major changes is (sic) probably going to be traumatic for this child”. Whether a change of residence was traumatic for X depended, in her view, on “how the mother supports that”. So much is consistent with her opinion that, regarding a “fifty-fifty shared care arrangement, [X] will need support from both parents”.[37] Ms Lamar’s position is that she does not now support an equal time arrangement. I am satisfied there is a substantial risk of detrimental consequences for X in progressing to an equal time arrangement, which will be a major change for her.
[37] Second Family Report, paragraph 73.
Dr Q also gave oral evidence that the implementation of an equal time parallel-parenting arrangement will be “incredibly difficult” for Ms Lamar. Whilst Dr Q emphasised that her focus is on X’s best interests rather than her mother’s, imposing an arrangement on Ms Lamar of something she would find incredibly difficult heightens the risk of detrimental consequences for X. As Dr Q opined orally, “if a mother is distressed, that’s distressing for a child”.
It is not proposed that X will be separated from either of her parents or any other person with whom she has been living.
The practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect X’s right to maintain personal relations and direct contact with both parents on a regular basis
X currently lives with Ms Lamar in Suburb H. It is common ground that she will have an opportunity to retain that property as part of any property settlement orders made. In that circumstance, her oral evidence that she had not contemplated moving closer to Mr Lamar is unsurprising.
Mr Lamar lives with Ms T in Suburb P. Whilst he deposes to having agreed with Ms T that they “are currently looking to purchase a property in the [Suburb W] suburbs”,[38] he inconsistently gave oral evidence that they will be renting and not buying for the foreseeable future. Ms T’s oral evidence was also inconsistent with Mr Lamar’s affidavit evidence. It did not suggest she and Mr Lamar have made settled plans to purchase a property in the Suburb W area.
[38] Affidavit of Mr Lamar filed 12 February 2024, paragraph 153.
Ms Lamar’s evidence that Mr Lamar has indicated he will move closer to Suburb H for some time now, but has failed to do so, was unchallenged. As she also deposes, he has produced no proof that he will do so. The evidence does not satisfy me that Mr Lamar will in fact move to Suburb W.
Whilst Dr Q considers that both parties ought give consideration to relocating closer to each other, neither have done so. I am to take the parties as I find them in the determination of these proceedings. It is not for me to make aspirational directions in the hope of enhancing X’s familial experience.[39]
[39] Lainhart & Ellinson (2023) FLC 94-166 (“Lainhart & Ellinson”) at [29].
The present reality is that the parties live a considerable distance from each other. Ms Lamar’s evidence is that it is a one-hour drive. Mr Lamar deposes that it takes 50 minutes with traffic and 45 minutes without it. In the absence of any challenge to Ms Lamar’s evidence, I prefer it, given my general findings about the reliability of Mr Lamar’s evidence. That practical reality reflects a significant difficulty with X spending time, particularly mid-week, with both of her parents. I accept Ms Lamar’s unchallenged evidence that X is exhausted after the travel between her parents’ homes.
The capacity of each of X’s parents and any other person, including any grandparent or other relative of X’s, to provide for her needs, including emotional and intellectual needs
Dr Q described Mr Lamar to be “child-focused in his interactions” with X.[40] I accept he generally has the capacity to provide for X’s needs. Given X’s needs are presently being provided for in Ms Lamar’s primary care, I am also satisfied that she has the ongoing capacity to do so.
[40] First Family Report, paragraph 68.
Both parties suffer from mental health vulnerabilities. To their credit, both have engaged in treatment to address those difficulties. Were Mr Lamar to relapse into Major Depressive Disorder, a likelihood that Dr G opined orally to be “over 50 percent”, he risks exposing X to his emotional dysregulation, which has historically included perpetrating family violence.
Ms Lamar suffers from a trauma related disorder. Her emotional dysregulation, and inability to shield X from it, is a matter that was of particular concern to Dr Q in her first Family Report. I accept Ms Lamar’s unchallenged evidence that she is now doing much better with the benefit of treatment and Orders regulating X’s time with her father.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and of either of X’s parents, and any other relevant characteristics of X

Ms Lamar is of Country Y heritage and is Catholic. She proposes X attend a school where she will have exposure to both.
If X is an Aboriginal child or a Torres Strait Islander child, her right to enjoy her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture), and the likely impact any proposed parenting order will have on that right
X is not an Aboriginal or Torres Strait Islander child.
The attitude to X, and to the responsibilities of parenthood, demonstrated by each of her parents
Mr Lamar seeks orders from the Court that X attend one of three primary schools nominated by him. In cross-examination he conceded that he had not attended upon his first preference of those schools, nor spoken to the principal of the school. He conceded that the schools he proposes were selected because of proximity issues. He had apparently made very limited enquiries in relation to them. To ask the Court to make orders requiring X to attend upon a particular school without being able to put any evidence before the Court as to the particular advantages or disadvantages of each of the three schools he proposes reflects poorly on his attitude to the responsibilities of parenthood.
Any family violence involving X or a member of her family
I have made relevant findings when considering the second primary consideration.
If a family violence order applies, or has applied, to X or a member of her family, any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order, and any other relevant matter
In early 2021, Victoria Police applied for an Intervention Order on behalf of Mr Lamar against Ms Lamar. In early 2021, Ms Lamar applied for an Intervention Order against Mr Lamar seeking the protection both of herself and X. In early 2021, each party consented to the making of an Intervention Order protecting the other without admissions. I was not asked to draw any inferences from the making of those Orders. I decline to do so given the circumstances of their making.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to X
I am not satisfied that either party’s proposal with respect to X’s time with them is less likely to lead to the institution of further proceedings. The prospect of an order for equal shared parental responsibility raises real concerns about such a likelihood for reasons to which I will come.
Any other relevant fact or circumstance
I have elsewhere determined the facts and circumstances relevant to my determination.
Parental Responsibility
I am to apply a presumption that it is in X’s best interests for her parents to have equal shared parental responsibility for her.[41] The presumption does not apply because there are reasonable grounds to believe X’s parents have engaged in family violence.
[41] Family Law Act 1975 (Cth), s 61DA.
Mr Lamar nevertheless proposes that the parties have equal shared parental responsibility for X. The effect of such an order is that major long-term decisions are required to be made jointly by X’s parents, that they are required to consult each other and make a genuine effort to come to a joint decision about such issues.[42] I must consider whether the parties can or will comply with those mandatory requirements.[43] Aspiring for both parties to be involved in such decision‑making is no substitute for the rational synthesis of findings about the parties’ conflict with that consequential legal obligation.[44]
[42] Family Law Act 1975 (Cth), s 65DAA.
[43] Boyle & Zahur & Another (2017) FLC 93-814 at [22].
[44] Manifold & Alderton (2021) FLC 94-015 at [109] per Austin J.
The parties have been largely unable to make joint decisions for X. Despite Mr Lamar agreeing with Ms Lamar’s proposal for school during his cross-examination, he subsequently withdrew that agreement through his Counsel.
In support of his proposal, Mr Lamar relied on correspondence between the parties in relation to treating X’s medical condition. Ms Lamar gave unchallenged and uncontradicted evidence that Mr Lamar had lied to her in those messages. The messages themselves reveal an absence of Mr Lamar responding to Ms Lamar’s queries. As Ms Lamar said in oral evidence, Mr Lamar’s messages are not clear. They are indicative of an inability in the parties to communicate effectively in relation to X’s medical needs.
The parties have been unable to resolve disputes about where X attends extra-curricular activities. Mr Lamar wanted her to go to sports lessons near his home. Ms Lamar wanted her to go to sports lessons near her home. The issue was never resolved.
Mr Lamar gave oral evidence that he has not made any financial contribution to X’s sports lessons because “the debate was ongoing, it seems”. Although Mr Lamar concedes that he is prepared to contribute to the cost of those lessons, he has not done so.
Ms Lamar agreed to the proposition put to her by Mr Lamar’s Counsel in cross-examination that the communication between the parties in relation to extra-curricular activities “doesn’t work well”. Nothing from the evidence gives me confidence that the parties have the present capacity to resolve issues of that type.
More broadly, Ms Lamar agreed with Mr Lamar’s Counsel in cross-examination that the parties would need to have conversations and negotiate with each other about matters relevant to the exercise of equal shared parental responsibility. Significantly, she also accepted Mr Lamar’s Counsel’s proposition that “so far that hasn’t worked” despite her attempts to do so. Dr G’s opinion that Ms Lamar is unlikely to be able to co-parent effectively with Mr Lamar was unchallenged and I accept it.
Despite those areas of disagreement, Mr Lamar points to some agreements that have been reached between the parties. I place limited weight on them. An agreement was reached between the parties during the course of the trial with respect to hyphenating X’s surname. That modest agreement was reached while the parties had the benefit of legal advice and whilst the Court was being asked to determine the issue. Similarly, the agreement about X obtaining a Country Y passport appears to have only been reached during the course of the final hearing. I do not accept those agreements are indicative of a broader capacity for the parties to comply with the mandatory requirements prescribed by section 65DAC of the Act.
It is a significant step to deprive Mr Lamar of parental responsibility with which he is invested by law.[45] Nevertheless, major long-term decisions need to be made for X’s best interests. The evidence does not satisfy me that the parties have the capacity to make those decisions jointly. Mr Lamar conceded in oral evidence that Ms Lamar is presently best placed to know what is best for X. In order to ensure that the best long-term decisions are made for X, I am satisfied that her best interests are now served by her mother having sole parental responsibility for her.
[45] Family Law Act 1975 (Cth), s 61C; Lennon & Lennon [2011] FamCA 571 at [108].
Schooling
Ms Lamar proposes that X attend B School. It is a school in the suburb where Ms Lamar currently resides and intends to continue to reside.
Mr Lamar proposes that the parties enrol X in three different schools and attend whichever one accepts her enrolment. If multiple schools accept her enrolment, he proposes that she attend, in order of preference, AB School in Suburb AC, AD School in Suburb AE, or AF School.
All of the schools proposed by Mr Lamar are some distance away from both parties’ residences. He deposes that “it is reasonable for [X] to be enrolled to a primary school located between” the parties’ residences.[46] His evidence refers only to the geographic considerations.
[46] Affidavit of Mr Lamar filed 12 February 2024, paragraph 161.
Were X to attend any of the schools proposed by Mr Lamar, she would be attending school in an area where she doesn’t live. Mr Lamar conceded in cross-examination that it would be less desirable for her to do so, when consideration is given to things like her playing after school, having playdates, going to birthday parties, and having her school friends on her extracurricular sport teams.
Ms Lamar gives unchallenged evidence that the majority of X’s friends from kindergarten are attending B School. Mr Lamar agreed in cross-examination that he saw benefit to X attending primary school with her peers and friends from kindergarten.
After Mr Lamar had reflected positively on the advantages to X of attending B School, he was asked whether he objected to the Court making an order to that effect. He initially answered “No. I don’t think I do. I thought it would have been good as parents to look at multiple schools.” Mr Lamar ultimately gave oral evidence that he agreed to X attending B School.
B School has a Country Y language curriculum. When Ms Lamar’s evidence to that effect was put to Mr Lamar in cross-examination, he gave evidence “[…] Brilliant. Yes.”
Despite Mr Lamar’s oral evidence, he nevertheless maintained his position that X attend a different school.
For reasons upon which I will expand, Dr Q expressed significant reservations with the concept of X attending a school which is proximate to neither party’s residence.
Mr Lamar submits that “the only reason he hasn’t agreed on a school is that it is so linked to how much time he is practically able to spend with his daughter, but he has suggested three different schools, two of which accord with what he understands the mother’s values are.” He also submits that “he had gone to the trouble of researching three different schools, putting them in orders, giving his lawyers instructions on them, but when cross-examined, under pressure, he caved and then had to effectively walk it back because it wasn’t what he meant to say.” Neither of those submissions engage with Dr Q’s express reservations about X attending a school not proximate to her residence(s). Nor do they engage with the agreed advantages for X to attend a school with her kindergarten peers, or with a Country Y curriculum. I am not satisfied the proximity issues to which Mr Lamar refers outweigh the agreed benefits to X of attending B School. I determine it to be in her best interests to attend that school. Given my conclusions in relation to parental responsibility, I will require Ms Lamar to make the necessary enrolment.
Parenting Conclusions
Mr Lamar relies on Dr Q’s recommendation that X live week about with each of her parents. I am not bound by Dr Q’s opinion.[47] Nevertheless, if it is based on appropriate foundation, it will carry substantial weight.[48]
[47] Maclean & Greenwood (2022) FLC 94-117 at [33]; Vigano & Desmond (2012) FLC 93-509 at [79].
[48] Muldoon & Carlyle (2012) FLC 93-513 at [105] and the cases there cited.
I have referred already to some of the facts underlying Dr Q’s opinion, which are not now established by the evidence. I have also already concluded that an equal time arrangement is unnecessary to ensure X benefits from a meaningful relationship with both of her parents.
There are other difficulties with Dr Q’s recommendation. The first is the distance between the parties’ residences. In answer to a question about whether X should attend a school mid-way between the parties’ residences, Dr Q gave the following evidence:
So I have a bit of an issue with a midway point, generally speaking, because that’s not a child-focused decision; that’s a parent-focused decision. So children have a right to go to the school in their local community to meet friends, to meet other families, to, you know, go to the park after school, to have incidental catchups, play dates, that sort of thing. Ideally speaking, we want that to be in the child’s local community. It doesn’t matter what that community is, and, you know, starting with the primary need for children is to have both parents significantly and substantially involved in their care and upbringing. So then you kind of work downwards from that and say, well, practically, how can – you know, how can we come up with a best-case scenario for [X]. She can’t – children shouldn’t be sedentary for more than two hours a day, and this includes time at school, time watching TV, you know, time sitting and eating. And then if you include lengthy periods of travel within that, that’s, you know – we’ve already well and truly hit over the maximum amount that children should be sedentary for each day. So it’s just not practical to move long distances.
Dr Q was asked whether it would be different if the school selected for X is about 40 minutes’ drive from one party. She gave evidence:
Well, [40] minutes’ drive is an hour and 1[5] minutes in the car each day, so as I said, you know, you’ve got 5[5] minutes to do all your tabletop school learning and to do all your eating and sitting and watching TV – so, you know, any other screens, for examples. But it’s possible, and as I said, you know, it’s about a balancing act of what needs kind of trump the other. So if that’s an agreement that the parents can come to and one that includes a lack of acrimony and arguments and ongoing for need for – you know, angry, heated, untrusting communication between the parties, then we might say, okay, well, you know that’s the best of a bad lot of options. Let’s choose a school that’s not ideal in terms of location, but, you know, if it means the parents stop fighting, then that need for the parents to not fight would trump that. So I’m not saying it’s out of the question. I’m just saying that, ideally, you know, both parents would live in close proximity to each other and to the child’s school.
I have already referred to the fact that I am to take the parents as I find them in determining these proceedings. A critical aspect of Dr Q’s reasoning is impermissibly premised on the notion of the parties living in closer proximity to each other. It is a premise that is not established by the evidence.
A further difficulty with Dr Q’s reasoning arises from the following passage of cross‑examination:
SENIOR COUNSEL FOR [MS LAMAR]: I was asking you to draw on your experience, and qualifications, expertise and your knowledge of the literature to tell me what the indicia are to indicate equal time, especially in, you know, little children. We’re not talking teenagers?
[DR Q]: In terms of the contraindicators there are a range of things that are contraindicated in this case. (emphasis added)
SENIOR COUNSEL FOR [MS LAMAR]: No. Indicators?
[DR Q]: Well, ideally, we want an amicable co-parenting relationship. We want a positive sharing of information, to hold the other parent in positive regard. You know, fighting about money and other things outside of the child are also a poor prognostic factor. So there are a lot of contraindicators in this case. (emphasis added)
SENIOR COUNSEL FOR [MS LAMAR]: No, no, we’re looking at indicators. Let’s move to contra in a moment. That was a good list, was there any other?
[DR Q]: Well, the – the research is really hard about specific time-spent recommendations. So it’s not about the exact time, but a shared care arrangement. So in terms of what – it will be traumatic for the child, is whether the lack of integration. So that’s the…
SENIOR COUNSEL FOR [MS LAMAR]: What’s that?
[DR Q]: kind of – well, we want both parents to support. We want them to support the child’s independent relationship with the other parent.
SENIOR COUNSEL FOR [MS LAMAR]: Sorry, I didn’t understand what “integration” meant. It’s a term I haven’t come across.
[DR Q]: To move smoothly and synchronously between the two care arrangements. We want there to be some regular – you know, some similarities in terms of boundaries, rules, expectations, bed times, you know, day to day routine. We want synchronous – you know, the fewer changes across the care environment, the better.
SENIOR COUNSEL FOR [MS LAMAR]: All right. Now, you did want to talk about some contraindicators, and I invite you to tell his Honour what they are, based on, again, your expertise?
[DR Q]: Yes, sure. Yes. So in terms of blockers, if you like, to a shared care arrangement happening smoothly, the presence of acrimony. The presence of arguments, both with the child and outside of the child, you know, so things like I said, financial matters and whatnot, are a poor prognostic factor. As would be a lack of trust and respect in the coparenting relationship, between the two parents, I should say.
SENIOR COUNSEL FOR [MS LAMAR]: Thank you. Do you agree with me that in this report you haven’t set out, as far as I can see, the bases upon which you form your opinion for fifty-fifty? The scaffolding, if you like, the indicators and the contraindicators?
[DR Q]: Sure.
SENIOR COUNSEL FOR [MS LAMAR]: I don’t see that in this report?
[DR Q]: Yes.
SENIOR COUNSEL FOR [MS LAMAR]: Am I right?
[DR Q]: Yes. Yes, I trust that I could have done a better job at that.
Dr Q therein acknowledges the presence of numerous contraindicators for the equal time arrangement she recommends. Fundamentally, she also acknowledged in oral evidence that she has not explained the basis upon which she reached her opinion by reference to relevant indicators and contraindicators. I have no explanation from her as to why the matters she contends support an equal time arrangement outweigh the admitted multitude of present contraindicators. She has thereby failed to demonstrate or examine scientific or other intellectual bases for the conclusion reached or explain how the field of her expertise applies to the facts so as to produce the opinion she propounds.[49]
[49] Makita & Sprowles (2001) 52 NSWLR 705 at [85].
Dr Q’s recommendation appears to be premised on her hope that the parties will co-operate to create the conditions necessary for an equal time arrangement to be viable for X. These include moving closer together, working together more amicably, sharing information positively with each other, and holding each other in positive regard. Those aspirations are laudable, but an impermissible basis upon which I can determine the dispute.[50]
[50] Lainhart & Ellinson at [29].
Dr Q places significant weight on what she perceives to be Ms Lamar’s inability to support X’s relationship with her father. I accept Ms Lamar’s submission that it appears to be the only reason for her recommendation.
Dr Q seemingly placed significant weight on the following recorded observations after X had spent time with her father in the first report assessments:
The mother returns to the office, and [X] says excitedly to the mother, “daddy came!”, “yeah, I told you he would” replied the mother. At the mother’s direction, they spent several minutes tidying up . [X] comments multiple times throughout, “daddy came!!”, “daddy played with me!”, and similar throughout. She appeared to be happily and excitedly sharing her experiences of the father with the mother. However, the mother, seemingly oblivious (and/or ignoring) to [X]’s excitement and desire to share, offered no feedback or conversation with [X] about this, commenting only “mhmm”.
On the way out, the assessor asks [X] if she had fun today, and what was the best part, and [X] responds excitedly “daddy’s going to give me a drink of water at the park!”. And the mother responds “is he” (monotonously). [X] spots a car in the car park, and excitedly states that it is her father’s car, and the mother tells her flatly, it is not.[51]
[51] First Family Report, paragraphs 74-75.
Dr Q appeared to make no allowance for the fact that, contrary to arrangements she had sought explicitly to make, Ms Lamar had bumped into Mr Lamar on the day of the assessments. Dr Q conceded that would have been a traumatising event for her given her experience of being traumatised by Mr Lamar. She also accepted that it potentially caused Ms Lamar to be even more emotionally dysregulated.

Ms Lamar’s presentation at the same point of the second family report is described markedly differently by Dr Q:
The assessor walked [X] out to the mother at the door. [X] was excited to see her mother, rushing down the steps to get to her, giving her a big cuddle. The mother asked in positive upbeat prosody “did you have fun?” She instructed [X] to thank the assessor, which she did, and the pair left.[52]
[52] Second Family Report, paragraph 66.
The conclusion that Ms Lamar is unable to support X’s relationship with her father is not supported by the second observation. It is also not supported by Ms Lamar’s oral evidence in which she was able to very positively reflect on the development of X’s relationship with her father.
In her first family report, Dr Q opined as to the following:
The mother’s behaviour (with regards to her limited capacity to regulate her emotions, and to support the father-child relationship) has and will continue to impact not only on [X], but on the father-child relationship… With the resumption of time-spent, [X] will quickly form a belief that her relationship with the father is not accepted by her mother (whose opinion she trusts the most). [X] will be forced to compartmentalise her relationships and beliefs, and will likely begin to contort and adapt her behaviours in attempts to please the mother (i.e. report things that fit with the mother’s experience of the father, rather than that of her own (i.e. report negative things, whether or not true). In addition, [X] is made up of parts of her father, and the mother’s rejection of the father (and all things relevant to him) will be experienced by [X] at some point, as an insult to her identity.[53]
[53] First Family Report, paragraph 90.
Despite Dr Q’s prognostication about the negative impacts upon X that would quickly develop upon the resumption of her time with her father, there is no evidence of any of them having developed. Dr Q herself saw the parties again approximately six months after time had resumed and reports no such impacts. Neither of the parties give evidence consistent with the prognostication. Dr Q gave oral evidence:
It’s not observable, as in, you know, the behavioural observations. It’s not overly observable at this point in [X]. And typically what would happen in these cases is that that would become more and more obvious as the child is older and able to articulate their experiences.
I am ultimately not satisfied that Ms Lamar is unable to promote X’s relationship with her father. She proposes that X spend substantial and significant time with him. She responded warmly to X’s interaction with him during the second family report interviews. She expressed what I determine to be genuine pleasure at the positive development of their relationship in her oral evidence. X is not displaying any of the negative consequences that Dr Q opined would develop quickly, fifteen months ago.
Ms Lamar’s perceived inability to promote the father-child relationship is central to Dr Q’s ultimate recommendation for equal time. Given my rejection of it and other facts relied upon by Dr Q, I place limited weight on the recommendation.
The evidence does not satisfy me that X’s best interests are now served by spending equal time with each of her parents. Such an outcome is unnecessary for her to benefit from having a meaningful relationship with both of her parents. It is inconsistent with the present circumstances of her parents, including the geographic distance between them. It is impractical for X to spend two hours travelling to and from school for half her school days. An equal time arrangement is inconsistent with the parties’ ability to resolve disputes. As Dr Q conceded orally there will be a myriad of decisions and communication that would be required if an equal time arrangement is implemented.
That Ms Lamar proposes X spend week long periods with her father during school holidays does not establish that her spending week about time with her parents during school terms is in her best interests. I accept Mr Lamar’s submission that it suggests there is no explicit risk in X doing so. However, I accept Ms Lamar’s submission that there is a qualitative difference between X’s time with her parents during school term and school holidays. Most notably, X is not required to be conveyed to and from school a considerable distance from her father’s home.
Ms Lamar proposes an arrangement whereby X spend Friday after school until Tuesday before school on alternate weekends with her father from 2025. Although that will require X to undertake considerable travel to and from school on Monday as well as to school on Tuesday morning, I am satisfied that it is in her best interests to have that opportunity to participate in weekday routines with her father. I am not, however, satisfied, that imposing further travel on X on other days of the week is in her best interests. For those reasons, I consider Ms Lamar’s proposal for X’s time with her father from next year to be in her best interests.
I also find Ms Lamar’s proposal for X to now spend a consolidated three nights per fortnight with her father along with additional holiday time to be in X’s best interests. Mr Lamar made no submissions with respect to that proposal in the event he was unsuccessful with his proposal to graduate to equal time.
Ms Lamar proposes that the cycle of alternate weekends that X spends with her father be altered. X’s parents have been unable to co-operate to ensure X has the opportunity to spend time with her cousin, who has only been available during X’s weekends with her father. X’s weekends with her father currently include the time Ms T’s children are with her. I have no evidence that those weeks could not be altered by Ms T and her partner. Ms T gave oral evidence that her relationship with her children’s father is reasonably cordial. I consider it to be in X’s best interests to be able to spend some weekend time with her cousin, something I am satisfied can only be achieved by changing the patterns of weekends as is proposed by Ms Lamar.
I also prefer Ms Lamar’s proposal for school holiday periods from 2025, which provide for changeover at a time I consider to be more appropriate given the halving of holiday time, being 12:00 noon rather than the 10:00 am proposed by Mr Lamar. No submissions were made on the issue.
I prefer Mr Lamar’s proposal for changeover at non-school times which provide for a sharing of those responsibilities. Ms Lamar made no submissions in support of her proposal to the contrary.
Mr Lamar made no submissions with respect to his additional changeover proposal expressed to be “for the avoidance of doubt”.[54] I consider it will add more confusion than it will resolve and I accordingly decline to make it.
[54] Exhibit A1, paragraph 3.
I am not satisfied special provision should be made for X’s birthday with each of her parents. Given their geographic distance from each other, substantial interference with her weekday routine attends Ms Lamar’s proposal. She made no submissions in support of it. I decline to make the orders sought by her.
It is agreed X will spend Mother’s Day and Father’s Day with each of her parents.[55] I prefer the times for changeover proposed by Mr Lamar given the substantial travel between the parties’ residences.
[55] Exhibit R15.
Ms Lamar seeks specific provision be made for Christmas and Easter. No specific evidence was adduced about the proposal. Given Ms Lamar’s faith, I am satisfied that the provisions sought by her are in X’s best interests to afford X the opportunity to spend those occasions of significance with each of her parents.
Ms Lamar proposes that X communicate with her parents on one occasion each week. Mr Lamar proposes that such communication occur as requested by X. I prefer Ms Lamar’s proposal which will afford the parties predictability and certainty about the timing of such calls. Given the evidence of Mr Lamar previously making audio-visual recordings without other’s consent, I am satisfied that he ought be restrained from recording his calls with X, as is proposed by Ms Lamar.
The parties agree to continue to use a parenting application for their communication. I decline to make orders regulating the manner in which they express themselves on that application as sought by Ms Lamar. So much is likely to lead to further disputation between the parties.
Ms Lamar gives unchallenged evidence that Mr Lamar has taken X to a different childcare facility previously. Given his agreement that X continue to attend her existing kindergarten, I am satisfied that the relief sought by Ms Lamar restraining the parties from taking her elsewhere is in X’s best interests so to ensure continuity in her education.
It is agreed both parties will have access to information and be permitted to attend school functions. I prefer Mr Lamar’s formulation which more clearly articulates what is permitted. I also prefer his proposal for the sharing of information with respect to X’s medical needs. However, I find no evidentiary basis for the relief he seeks for the parties to ensure X’s attendance upon medical or allied health practitioners.
Given the parties’ inability to resolve disputes with respect to extra-curricular activities, I regrettably find Ms Lamar’s proposal for X to attend specified sports lessons to be necessary and in her best interests.
I am satisfied that the agreement reached for X’s surname to be hyphenated is in her best interests.
It is agreed the parties will exchange information about their contact details. I prefer Mr Lamar’s proposal which is more comprehensive.
Both parties seek orders that they be permitted to travel internationally with X. Mr Lamar proposes such travel be permitted to commence immediately. Ms Lamar proposes it commence upon X turning ten years. Dr Q recommended that overseas travel ought not commence until X has spent extended time with that parent. I consider that X being permitted to travel internationally from the age of seven years is in her best interests, particularly given members of her paternal family reside in Country R. I prefer the orders Ms Lamar proposes which are more prescriptive, minimising the likelihood of further disputation between the parties. I am not satisfied that Mr Lamar ought retain X’s passports given the findings I have made with respect to the parties’ inability to co-operate.
The parties agree they ought to be restrained from denigrating the other parent to X. Further injunctive relief sought by Ms Lamar is without evidentiary foundation. I consider it unnecessary to make an injunction that the parties not video or voice record the other without the other party’s written consent. As was observed by Ms Lamar’s Senior Counsel during the hearing, doing so is likely to be illegal. Were Mr Lamar to video X inappropriately, it would reflect poorly on his parenting. I decline to make orders that are unlikely to be enforceable and are also likely to lead to further disputes between the parties. I will grant the injunctive relief sought by Mr Lamar.
Each party seeks impermissible stand-alone orders for the other to engage in psychological therapy.[56] Ms Lamar submits that that an order to that effect could be tethered to the parenting orders. So much may be accepted.[57] Mr Lamar submits that if the Court is minded to make such an order, it should be mutual. He indicates his preparedness to consent to such an order for himself. Neither party reduced their proposal to writing. I decline to make the orders alluded to by the parties orally. If parents are genuinely motivated to improve their parenting capacity, I am satisfied that they will do so absent an order to regulate their decision to do so.[58] I am not satisfied that X living with her mother should be conditional upon an unspecified regime of her compliance with therapeutic treatment. Neither am I satisfied that X’s time with her father should be conditional upon him “engaging with” and following directions of his general practitioner or psychiatrist.[59]
[56] Oberlin & Infeld (2021) FLC 94-017 at [51]-[52] and the cases there cited; Eastley & Eastley (2022) FLC 94-094 at [58].
[57] Lainhart & Ellinson at [26].
[58] Lainhart & Ellinson at [34].
[59] Further Amended Response of Ms Lamar filed 19 February 2024, paragraph 25.
Both parties agreed that Dr G’s reports ought to be made available to their treating mental health practitioners. I find that to be in X’s best interests so as to maximise the likely efficacy of the parties’ treatment.
Mr Lamar seeks an order in the following terms:
Both parents be restrained from relocating more than 35km from the residential address of the other parent.[60]
He advances no submissions in support of the relief sought. He does not articulate what power is relied on. Neither does he articulate why the prescribed distance is appropriate. I am not satisfied that it is in X’s best interests to issue the injunction.
[60] Exhibit A1, paragraph 17.
I decline to make an order that the parties attend Family Dispute Resolution in the event of a further dispute. The Act prescribes steps that must be taken prior to the institution of further proceedings.
I am unable to make orders sought by Ms Lamar with respect to the sharing of X’s costs absent an application under the relevant statute. Other parenting relief sought by Ms Lamar was not pressed.
PROPERTY
The parties’ positions with respect to property were amended without objection in closing address.
Mr Lamar proposes that he retain either 40% of the value of the parties’ non-superannuation assets if I accept his contentions with respect to the value of the those assets. Alternatively, he proposes retaining 45% of their value.
Ms Lamar proposes that Mr Lamar retain 32.5% of the value of the parties’ non-superannuation assets. She also proposes an equalisation of the parties’ superannuation interests.
Pursuant to section 79 of the Act, I have a discretion to make such order altering the parties’ interests in property as I consider appropriate. I am prohibited from making an order unless I am satisfied, in all the circumstances, it is just and equitable to do so.[61] If I am so satisfied, I am required to consider the matters prescribed by subsection 79(4) of the Act and by the device of paragraph 79(4)(e), relevant matters referred to in subsection 75(2) of the Act.
[61] Family Law Act 1975 (Cth) s 79(2).
Property Interests
It is necessary to begin by identifying, according to common law and equitable principles, the existing legal and equitable interests of the parties in property.[62] For reasons that follow, those interests comprise the following:
[62] Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) at [37].

Asset O'ship Value

F Street, Suburb H Victoria Jt $967,500

less mortgage Jt ($619,796)

K Street, Suburb L TiC $520,000

less mortgage Jt ($287,027)

Motor Vehicle 1 H $9,000

Student Loan H ($4,050)

Loan from maternal grandparents W ($51,508)

Total non-superannuation interests $534,119

Super Fund 2 H $46,174

Super Fund 1 H $104,555

Super Fund 3 H $12,839

Super Fund 1 W $121,662

Total superannuation interests $285,231

Total property interests $819,349

Mr Lamar contends that a sum of $110,000 ought be added-back to the balance sheet. In early 2022, Ms Lamar transferred that amount to her father. She deposes as follows:
In my early twenties I purchased a property using $110,000 that my Father lent me to contribute to the purchase. I was expected to return this loan to my Father. I paid him back this money once I sold that apartment around [early] 2021.[63]
[63] Affidavit of Ms Lamar filed 19 February 2024, paragraph 199(a).
Mr Lamar contends as follows:
There is no evidence provided by the Wife that the parties ever had the benefit of these allegedly loaned funds, or that they were even received by the parties during the relationship. Nor is there evidence that funds so received by the Wife prior to the relationship were allocated toward assets which were held by her at the commencement of the relationship, being the [AG Street] property. There is no evidence provided of the alleged agreement between her and [Mr AH].[64]
[64] Outline of Case of Mr Lamar filed 29 February 2024, page 14.
I reject the contentions. As has already been quoted, Ms Lamar gives evidence of the agreement. Further, annexed to her trial affidavit are receipts for the transactions totalling slightly more than $110,000. She gave consistent oral evidence those amounts comprised the funds advanced by her father towards the purchase of a property on AG Street that was purchased by her in 2012, prior to the commencement of the parties’ cohabitation. Mr Lamar’s submission that only $70,000 was established by those annexures is contrary to Ms Lamar’s unchallenged evidence that the $70,000 was only one of several amounts advanced by her father.
Ms Lamar’s oral evidence was inconsistent with her treating those funds advanced by her father as a strict legal liability. She gave oral evidence that there was no legal paperwork for it. She conceded that a Financial Agreement signed by the parties in mid-2015 accurately reflected her assets and liabilities at that time. It made no reference to a loan owing to her father.[65]
[65] Exhibit R2.
It is well-established that adding back assets is both discretionary and exceptional.[66] Where the discretion to do so is exercised, “it reflects a decision that, exceptionally, in the particular circumstances of the case, justice and equity requires it”.[67] Mr Lamar bears the onus of persuasion.[68] Fundamental is consideration of the source of the money.[69]
[66] Dulton & Dulton (2020) FLC 93-984 at [32] citing Trevi & Trevi (2018) FLC 93-858 (“Trevi”) at [30] and AJO & GRO (2005) FLC 93-218 (“AJO & GRO”).
[67] Trevi at [30], citing AJO & GRO.
[68] Marcin & Marcin (2020) FLC 93-956 at [90].
[69] Jong & Yeng [2014] FamCAFC 191 at [64]; Eufrosin & Eufrosin [2014] FamCAFC 191 at [41].
Ms Lamar’s evidence that her father advanced $110,000 to her for the purchase of the AG Street property in 2012 was not successfully challenged and I accept it. Her return of those funds to him was consistent with her agreement with her father. That the agreement was not legally documented does not detract from the fact that the funds were sourced from her father prior to the parties’ cohabitation. I am not satisfied the circumstances of her returning those funds to her father are exceptional. Her failure to document the agreement does not establish otherwise. Justice and equity does not require the adding-back of funds to the parties’ presently existing property to which Mr Lamar made no contribution.
After separation, Ms Lamar has borrowed funds from her parents to meet her living expenses and legal fees. Some of those advances are reflected in a Loan Agreement entered into between Ms Lamar and her parents dated early 2024.[70] She contends that a sum of $51,508 be treated as a liability of the parties, which comprises funds used by her for living expenses. Appropriately, she does not seek to include funds borrowed for her legal fees.[71]
[70] Affidavit of Ms Lamar filed 19 February 2024, Annexure MsL19, pages 113 to 114.
[71] Elliston & Dennell (2019) FLC 93-903 at [56], citing NHC & RCH (2004) FLC 93-204 at [55]-[60].
Mr Lamar opposes the inclusion of the asserted liability. Nevertheless, he did not challenge that the funds have been borrowed from Ms Lamar’s parents. Nor did he impugn her evidence of the application of those funds. I reject his submission that Ms Lamar adduced no evidence in support of her contention. He cross-examined Ms Lamar as follows:
COUNSEL FOR [MR LAMAR]: Yes. The $51,000 is the position that you’ve put saying that that is the living expenses?
[MS LAMAR]: No. That’s the exact amount of living expenses, based on the bank account that I had that presents the loan, but it’s more complex than that, because I’ve spent, like, a lot more on that, because I was only working two days a week. I had to spend a lot more of the other loan amount on being able to pay for things for [X] and I. So it’s split across two – it’s a three-year process, and it’s not as simplistic as what you’re talking about, because if I answer yes to that question, that’s not the case. So what I’ve written is correct, but it can only be correct if taken into account in the right context, and the question you’re asking me isn’t the right context for me to be able to answer yes or no.

Ordinarily, the Court deducts from the value of the parties’ assets the liabilities of the parties or either of them.[72] However, such an approach is not mandatory.[73] The effect of Mr Lamar’s position is that he is not called upon to contribute to the liability.[74]
[72] Rodgers & Rodgers (2016) FLC 93-703 (“Rodgers”) at [22]; Prince & Prince (1984) FLC 91-501 (“Prince”) at 79,076.
[73] Rodgers at [40].
[74] Prince at 79,077.
Since the parties’ separation in January 2021, Ms Lamar has occupied the parties’ former matrimonial home in Suburb H whilst primarily caring for X, who was then a baby. The parties equally contributed to repayment of the mortgage of the property until early 2023, following which time Ms Lamar has been solely responsible for its repayment. As Mr Lamar conceded in oral evidence, he has benefitted from her doing so, at least in so far as his credit rating has not been adversely affected by him ceasing repayments for the home loan. Ms Lamar currently earns $75 per week, receives rental income of $315 per week, government benefits of $125 per week and child support of $191 per week. She currently pays $544 per week towards the Suburb H property mortgage and $328 per week towards the Queensland property mortgage. She has clearly not had the capacity from her own resources to meet her reasonable living expenses. Had she not borrowed funds from her parents to meet her outgoings, including so as to ensure that the parties’ mortgages were paid, the value of the parties’ property would be substantially reduced.
It was not suggested to Ms Lamar that any of the funds she borrowed from her father were frivolously expended by her or applied to purposes other than her reasonably necessary living expenses.
I determine it would be unjust and inequitable to disregard Ms Lamar’s liability incurred for her reasonable living expenses, including repayment of the parties’ joint liabilities, in the period after the parties’ separation. For those reasons, I will include the liability she asserts in the balance sheet.
The parties otherwise agree on the identity and value of their interests in property.
Justice and Equity
Both parties seek an alteration of their property interests in order to finally determine the financial relationships between them.[75] Implicit in both parties’ requests that the Court make orders is an acceptance that the making of an order would be just and equitable.[76] I consider it to be just and equitable to make a property settlement order because there will no longer be the common use of property by the parties.[77] Put in the negative, it would be unjust and inequitable for them to remain joint proprietors of real property and remain jointly responsible for several liabilities.
[75] Family Law Act 1975 (Cth), s 81.
[76] Russo & Wylie (2016) FLC 93-747 at [54].
[77] Stanford at [42].
Contributions
I am required to take into account the parties’ financial and non-financial, direct and indirect, contributions to the acquisition, conservation or improvement of property.[78] I am also required to take into account the parties’ contributions to the welfare of the family.[79]
[78] Family Law Act 1975 (Cth), s 79(4)(a)-(b).
[79] Family Law Act 1975 (Cth), s 79(4)(c).
Consistently with the parties, I will adopt a two pool approach to the assessment of contributions. Mr Lamar contends that non-superannuation contributions ought be assessed at 52.5% in Ms Lamar’s favour. Ms Lamar contends they ought be assessed at 57.5% in her favour.
Approximately six months into their cohabitation, the parties documented their relative financial positions in a Financial Agreement. That Agreement documents Mr Lamar’s non-superannuation assets to then have a net value of $2,051. It documents Ms Lamar’s non-superannuation assets to then have a net value of $188,397. However, that figure does include the $110,000 advanced from Ms Lamar’s father which has since been repaid. As Mr Lamar submits, it should not be double-counted.
Mr Lamar alleges that at the commencement of the parties’ relationship he had approximately $40,000 in cash which was subsequently spent on travelling. Ms Lamar disputes that evidence and asserts that he had a significantly lower sum. Neither party was cross-examined on their evidence. Given the findings I have previously made about the reliability of the parties’ evidence, I prefer Ms Lamar’s evidence.
Ms Lamar had also received an inheritance from her uncle prior to the parties’ relationship worth $43,000. Although she claimed that figure as an initial contribution in her trial affidavit, she gave oral evidence that some of it had already been paid into her home loan by the time the Financial Agreement was signed.
I am satisfied that the position reflected in the Financial Agreement signed by the parties six months after their cohabitation adequately reflects their initial capital contributions.
During the parties’ marriage, Mr Lamar was employed as a professional earning approximately $105,000 per annum. He was unemployed for a period of approximately six months after receiving a redundancy of $61,100 in late 2016. He thereafter returned to work as a professional earning approximately $110,000 per annum.
During the parties’ marriage, Ms Lamar worked as a professional earning approximately $85,000 to $100,000 per annum. Upon X’s birth, she became primarily responsible for X’s care on maternity leave for about a year.
In mid-2019, the parties purchased the Suburb H property. The deposit was paid using funds drawn against the AG Street property owned by Ms Lamar at the commencement of the relationship. The loan secured against the AG Street property of $266,626 in mid-2015 had, by then, been repaid.
Ms Lamar’s father undertook significant renovations to the Suburb H property over the course of approximately four months. The parties made some less significant contributions to those renovations.
In mid-2020, the parties sold the AG Street property. In late 2020, they purchased the Queensland property.
After the parties’ separation, Ms Lamar remained overwhelmingly responsible for X’s care. Mr Lamar commenced paying child support for X approximately four months after separation. Ms Lamar was solely responsible for meeting the costs of X’s health insurance and kindergarten until recently.
Mr Lamar continued to contribute equally to the Suburb H home loan until approximately early 2023. Ms Lamar has been solely responsible for its repayment thereafter, including through the use of funds borrowed from her father.
I am satisfied, particularly given the greater initial contributions made by Ms Lamar, the benefit the parties received from her ownership of the AG Street property, the renovations conducted by her father to the Suburb H property and Ms Lamar’s overwhelming care of X in the period post separation, that contributions to the parties’ non-superannuation assets substantially favour Ms Lamar. I determine that a differential between the parties’ positions of 15%, equating to a dollar value of $80,118, is appropriate in all the circumstances.
I accordingly find Ms Lamar’s contributions to the parties’ non-superannuation assets to be 57.5% and Mr Lamar’s to be 42.5%.
Approximately six months into their cohabitation, Mr Lamar had superannuation assets worth $39,386. Ms Lamar then had superannuation worth $28,214. That modest initial differential between their superannuation balances does not lead me to conclude that their overall contributions to the total superannuation with a current value of $285,231, should be seen as anything other than equal.
Paragraphs 79(4)(d, e, f and g) and Subsection 75(2) Factors
Ms Lamar is 40 years old. She is primarily responsible for X’s care and will remain so. She is currently self-employed as a professional, earning approximately $75 per week.
Mr Lamar deposes to Ms Lamar having earned at least $90,000 per annum in mid-2022. Ms Lamar does not challenge or contradict that evidence other than to say that her role was made redundant in early 2023. I accept Ms Lamar has a reasonable earning capacity, even whilst being primarily responsible for X’s care.
Mr Lamar is also 40 years old. He is a professional and earns approximately $120,000 per annum.
Mr Lamar pays child support at the rate of $765 per month.
Mr Lamar resides with Ms T. She earns $115,000 per annum and receives child support for her two children at the rate of $700 per month. Mr Lamar and Ms T equally contribute to their household expenses.
Ms Lamar asks me to take into account the liability she has accrued to her parents for legal fees as a relevant matter. She cited no authority in support of the proposition. It is difficult to see how I could do so without in effect calling upon Mr Lamar to make some contribution to those fees, or making a pre-emptive decision contrary to the position legal fees occupy by reason of subsection 117(1) of the Act.[80] Despite the widest terms of paragraph 75(2)(o) of the Act,[81] I decline to take account of Ms Lamar’s legal fee liability under that paragraph.
[80] NHC & RCH (2004) FLC 93-204 at [33]-[35].
[81] Palumbo & Mandel (2019) FLC 93-929 at [56].
On balance, I consider that the relevant factors ought result in an adjustment in favour of Ms Lamar to the assessment of contributions to the non-superannuation assets of 15%, creating a total disparity between the parties’ positions of 30% or $160,236. It will result in Ms Lamar retaining non-superannuation assets worth $347,177 and Mr Lamar retaining non-superannuation assets worth $186,942.
Ms Lamar did not contend for an adjustment to an equal assessment of the parties’ contributions to superannuation. I find that outcome to be appropriate in the circumstances.
Property Conclusions
I am satisfied that an outcome whereby Ms Lamar retains 65% of the value of the parties’ non-superannuation assets and Mr Lamar retains 35% of the value of those assets is just and equitable. I am also satisfied that an equalisation of the parties’ superannuation interests is just and equitable.
It is agreed that Ms Lamar will have an opportunity to retain the Suburb H property and Mr Lamar will have an opportunity to retain the Queensland property. I agree with Mr Lamar’s oral evidence that 90 days would be an acceptable amount of time for the parties to do so. It is otherwise agreed that Ms Lamar will retain responsibility for the liability to her parents and Mr Lamar will retain the motor vehicle and his student loan.
In the event the parties are able to refinance their respective properties, Mr Lamar will be required to make a payment to Ms Lamar of $50,982 in order to give effect to my conclusions. Mr Lamar contends without contradiction that Ms Lamar owes him $3,500 for her contribution to Dr G’s fees. I accordingly will reduce the amount payable by him by that amount.
Ms Lamar proposes a sale of the Queensland property in the event Mr Lamar is unable to refinance it. In the event of the sale of the property at its current value this Financial Year, Ms Lamar is estimated to incur a capital gains tax liability of $11,938 and Mr Lamar is estimated to incur a capital gains tax liability of $8,728. In the event the property is sold next Financial Year at the same price, those liabilities are estimated to be $8,746 and $7,660 respectively.[82] Given the relatively modest sums involved, I am satisfied that it is just and equitable for each of the parties to retain individual responsibility for those liabilities in the event of a sale of the Queensland property, which outcome was initially sought by Mr Lamar.
[82] Exhibit R14.
Ms Lamar proposes more detailed orders prescribing the method and manner of sale of the real properties in the event that becomes necessary. Neither party made any submissions on the subject. I prefer her proposal which minimises the risk of disputation between the parties. I will make those orders in default of Mr Lamar making the necessary payment to Ms Lamar and re‑financing the loan secured against the Queensland property.
Ms Lamar made no submissions in support of the orders sought by her for the parties to make equal contributions to the outgoings of the Suburb H property pending its transfer or sale. Mr Lamar has not made such contributions for a considerable period of time. His evidence that he ceased doing so due to financial constraints was unchallenged. I am not satisfied that he has the present capacity to, nor that it is just and equitable for him to commence paying outgoings for a property occupied by Ms Lamar which she seeks to retain.
Ms Lamar also made no submissions in support of the relief sought by her to retain 80% of any surplus from the rental income from the Queensland property. The evidence does not suggest there will be any such surplus. Her application for the parties to equally contribute any shortfall was also not the subject of submissions. I am not satisfied the relief sought is appropriate in circumstances where Mr Lamar proposes to retain the property.
Ms Lamar ultimately proposed a superannuation split from Mr Lamar’s Super Fund 1 account. I was advised that procedural fairness has been accorded to the relevant trustee. Neither party made any submissions with respect to the form of the orders sought. I find them to be appropriate. Given Ms Lamar’s superannuation interest is worth $121,662, a split of $20,953 is required to give effect to my conclusions.
Absent submissions on the topic, I prefer Mr Lamar’s formulation of orders providing for the parties to otherwise retain their respective assets and be responsible for their respective liabilities. I will, however, exclude the reference to taxation liabilities given my conclusion that each party ought bear their own capital gains tax liabilities in the event of a sale of the Queensland property.

I certify that the preceding one hundred and ninety-six (196) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass.
Associate:
Dated: 19 March 2024

File number(s):	MLC 6031 of 2022
Judgment of:	JUDGE GLASS
Date of judgment:	19 March 2024
Catchwords:	FAMILY LAW – PARENTING – allocation of parental responsibility – whether four year old child should live week about with her parents. FAMILY LAW – PROPERTY – whether funds repaid to wife’s father should be added-back – whether post-separation loan ought be included as a joint liability – assessment of contributions and other factors.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 65DAC, 75, 79, 81, 90XT, 117 Family law (Superannuation) Regulations 2001 (Cth) pt 6 Superannuation Industry (Supervision) Regulations 1994
Cases cited:	AJO & GRO (2005) FLC 93-218 ASIC v Hellicar (2012) 247 CLR 345 Blass & Blass (2022) FLC 94-085 Boyle & Zahur & Another (2017) FLC 93-814 Dulton & Dulton (2020) FLC 93-984 Eastley & Eastley (2022) FLC 94-094 Elliston & Dennell (2019) FLC 93-903 Eufrosin & Eufrosin [2014] FamCAFC 191 Fox v Percy (2003) 214 CLR 118 Jones v Dunkel (1959) 101 CLR 298 Jong & Yeng [2014] FamCAFC 156 Lainhart & Ellinson (2023) FLC 94-166 Lennon & Lennon [2011] FamCA 571 Maclean & Greenwood (2022) FLC 94-117 Makita & Sprowles (2001) 52 NSWLR 705 Manifold & Alderton (2021) FLC 94-015 Marcin & Marcin (2020) FLC 93-956 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 Muldoon & Carlyle (2012) FLC 93-513 NHC & RCH (2004) FLC 93-204 Oberlin & Infeld (2021) FLC 94-017 Palumbo & Mandel (2019) FLC 93-929 Pearson & Pearson (2021) FLC 94-008 Prince & Prince (1984) FLC 91-501 Rodgers & Rodgers (2016) FLC 93-703 Russo & Wylie (2016) FLC 93-747 Stanford v Stanford (2012) 247 CLR 108 Trevi & Trevi (2018) FLC 93-858 Vigano & Desmond (2012) FLC 93-509
Division:	Division 2 Family Law
Number of paragraphs:	196
Date of hearing:	4-7 March 2024
Place:	Melbourne
Counsel for the Applicant:	Ms Tiernan
Solicitor for the Applicant:	Bentleys Barristers and Solicitors
Counsel for the Respondent:	Ms Mooney SC
Solicitor for the Respondent:	Pentana Stanton Lawyers

MLC 6031 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR LAMAR Applicant
AND:	MS LAMAR Respondent

ORDER MADE BY:	JUDGE GLASS
DATE OF ORDER:	19 MARCH 2024

Asset	O'ship	Value
F Street, Suburb H Victoria	Jt	$967,500
less mortgage	Jt	($619,796)
K Street, Suburb L	TiC	$520,000
less mortgage	Jt	($287,027)
Motor Vehicle 1	H	$9,000
Student Loan	H	($4,050)
Loan from maternal grandparents	W	($51,508)
Total non-superannuation interests	$534,119
Super Fund 2	H	$46,174
Super Fund 1	H	$104,555
Super Fund 3	H	$12,839
Super Fund 1	W	$121,662
Total superannuation interests	$285,231
Total property interests	$819,349