Latrell & Latrell - [2024] FedCFamC1F 211

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Latrell & Latrell [2024] FedCFamC1F 211

File number: HBC 188 of 2023

Judgment of: MCGUIRE J

Date of judgment: 10 April 2024

Catchwords:
FAMILY LAW – PARENTING – application by wife for parenting orders that husband spend no time-with or communicate with the children – serious allegations of family violence – allegations of sexual abuse – allegations of cruelty to animals in the presence of the children – orders that children live with the wife – orders that wife have sole parental responsibility for the children – orders for the personal protection of the wife and the children.

FAMILY LAW – PROPERTY – application by wife for property settlement – marriage of 13 years - allegations of family violence perpetrated by the husband - Kennon v Kennon considerations – section 75(2) factors – where it is just and equitable to adjust the parties’ net property interests as to 80 per cent to the wife and 20 per cent to the husband

Legislation:
Australian Passports Act 2005 (Cth) ss 6 and 11

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65ZA, 68B, 75, 79, 102NA and 117

Cases cited:
AJO & GRO (2005) FLC 93-218; [2005] FamCA 195

Briginshaw v Briginshaw (1938) 60 CLR 336

Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96

Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801; (1993) 46 FCR 225

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

In the Marriage of Weir (1993) FLC 92-338; [1992] FamCA 69

Isles & Nelissen (2021) 65 Fam LR 1; [2021] FedCFamC1F 295

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Jabour & Jabour (2019) FLC 93-898, [2019] FamCAFC 78

Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1

Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46

Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27

Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Pierce & Pierce (1999) FLC 92-844; [1998] FamCA 74

R v Watson; Ex parte Armstrong (1976) 136 CLR 248

Re Andrew (1996) FLC 92-692

Sedgley v Sedgley (1995) FLC 92–623

Stanford & Stanford (2012) 247 CLR 108

Division: Division 1 First Instance

Number of paragraphs: 236

Date of hearing: 12 March 2024

Place: Heard in Hobart, delivered in Melbourne

Counsel for the Applicant: Mrs Di Giovanni

Solicitor for the Applicant: Wallace Wilkinson & Webster

Solicitor for the Respondent: Litigant in Person - No appearance

Counsel for the Independent Children's Lawyer: Ms Ryan

Solicitor for the Independent Children's Lawyer: Butler McIntyre & Butler
ORDERS

HBC 188 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS LATRELL

Applicant

AND:
MR LATRELL

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

10 APRIL 2024

THE COURT ORDERS THAT:
PARENTING
1.The Applicant Wife, Ms Latrell (“the wife”), have sole parental responsibility for:
(a)V (born 2015) (“V”);
(b)X (born 2018) (“X”);
(c)Y (born 2020) (“Y”); and
(d)Z (born 2023) (“Z”).

(collectively “the children”).
2.The children live with the wife.
3.The wife have leave to change the children’s names without the consent of the Respondent Husband, Mr Latrell (“the husband”), and without notice to the husband.
4.Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth), the children be permitted to have an Australian passport or a travel-related document (herein “an Australian travel document”) as defined by s 6 of the Australian Passports Act 2005 (Cth) and be permitted to travel internationally.
5.The wife’s exercise of sole parental responsibility in Order 1 herein includes that she be at liberty to do all acts and sign all documents necessary, and have such authority as is necessary pursuant to s 11(b) of the Australian Passports Act 2005 (Cth), to procure a valid Australian travel document for the children without the signature or consent of the husband, including that the wife is authorised to sign such documents as may be required on behalf of the husband.
6.The children’s Australian travel document shall be held by the wife.
7.For the purposes of s 65ZA of the Family Law Act 1975 (Cth) and s 11 of the Australian Passports Act 2005 (Cth), the wife be and is hereby authorised to:
(a)travel outside of Australia with the children without the consent of the husband; and
(b)obtain a passport for the children, notwithstanding that the husband has not signed any application for such passports.

8.Pursuant to s 68B of the Family Law Act 1975 (Cth), and for the personal protection of the wife and the children, the husband be and is hereby restrained from:
(a)contacting or attempting to contact (including by text message, telephone, email, any social media applications, or other electronic means) the wife and the children;
(b)doing any act or thing in order to locate or attempt to locate the whereabouts of the wife and the children including but not limited to where the wife and the children are presently living or may be living from time to time, any school and/or day care centre the children are presently attending or may be attending from time to time, and/or the wife’s place of employment;
(c)approaching the wife and/or the children, or being within 100 metres of the wife and/or the children;
(d)removing or attempting to remove the children from the care of the wife, or any third-party carer of the children, including from any school or day care centre the children are presently attending or may be attending from time to time;
(e)attending or contacting any school, day care centre, or extra-curricular activity the children are presently attending or may be attending from time to time should he become aware of these details;
(f)attending or contacting any general medical practitioners, paediatricians, hospitals, psychologists or allied health professionals presently engaged with the wife and/or the children or may be engaged with the wife and/or the children from time to time should he become aware of these details;
(g)publishing on the internet, by email, SMS, any social media applications, or any other electronic means, any material about the wife and/or the children; and
(h)engaging, encouraging, or allowing any other person to do any of the above

9.The above Order is an order for the personal protection of the wife and the children and is an order pursuant to s 68C of the Family Law Act 1975 (Cth) to which a power of arrest without warrant attaches.
10.Leave is granted for the wife to provide a copy of this Order to:
(a)any school and/or day care centre the children are presently attending or may be attending from time to time; and
(b)any general medical practitioners, paediatricians, hospitals, psychologists or allied health professionals presently engaged with the wife and/or the children or may be engaged with the wife and the children from time to time.

11.The wife will engage with professional supports for the purpose of addressing her Post Traumatic Stress Disorder symptoms and to manage her mental health, and in so doing:
(a)the wife will continue to engage with and follow the reasonable directions of Dr B, for as long as recommended by Dr B, or the reasonable directions of any alternative psychologist engaged by the wife, for as long as recommended by the alternative psychologist; and
(b)the wife will, engage in trauma informed therapy as recommended by Dr B.

12.The Single Expert report of Dr C dated 4 March 2024, be released to Dr B, the wife’s General Medical Practitioner and any other alternative psychologist engaged by the wife.
13.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

PROPERTY
THE DELIVERY AND SALE OF FINANCIAL RESOURCES
14.Within seven (7) days of the date of this Order, the husband shall deliver to the offices of the wife’s solicitors, Wallace Wilkinson & Webster in Tasmania during office hours (8:45am to 5:15pm) (“the wife’s solicitors”) the financial resources
15.Within three (3) days of the date of compliance by the husband with Order 14 herein, the wife shall do all acts and things and sign all necessary documents to:
(a)facilitate the transfer of the financial resources by D Company or a similar organisation to E Company, City G in Tasmania;
(b)arrange the sale of the financial resources at the current live market rate offered by E Company on the day of delivery; and
(c)authorise the sale proceeds of the financial resources to be paid by E Company to the trust account of the wife’s solicitors.

16.The proceeds of sale of the financial resources shall be applied as follows:
(a)firstly, to all costs associated with the sale of the financial resources including:
(i)the wife’s solicitors’ costs of and incidental to the sale of the financial resources; and
(ii)to payment of the costs of and incidental to the sale of the financial resources.

(b)secondly, pay 80 per cent of the net sale proceeds of the financial resources to the wife; and
(c)thirdly, pay 20 per cent of the net sale proceeds of the financial resources to the husband.

17.Within three (3) business days from the receipt of the sale proceeds by the wife’s solicitors, in accordance with Orders 15 and 16 herein, the wife’s solicitors shall provide to the husband:
(a)a bank cheque payable to the husband for his share of the net proceeds of sale of the financial resources in accordance with Order 16(c), NOTING the provisions of Orders 38 and 39 of this Order;
(b)copies of all sale receipts and documentation evidencing the sale of the financial resources to E Company;
(c)copies of all invoices relating to the transfer of the financial resources; and
(d)a copy of the wife’s solicitor’s invoice relating to the costs of and incidental to the sale of the financial resources.

SALE OF THE TOWN J PROPERTY
18.Within sixty (60) days of the date of this Order (“the vacation date”), the husband is to vacate the property at H Street, Town J in Tasmania, being property more particularly described in Certificates of Title Volume … Folio … and Volume … Folio … (“the Town J Property”) and when vacating the Town J Property, the husband shall do all acts and things to:
(a)leave the Town J Property in a neat and tidy condition;
(b)leave in situ the custom equipment situate at the Town J Property; and
(c)leave on the Town J Property the unregistered Motor Vehicle 1.

19.That subject to compliance with Order 14 herein, the husband is permitted to remove from the Town J Property and thereafter retain as his sole and absolute property the following:
(a)Motor Vehicle 6 in the possession of the husband;
(b)Motor Vehicle 2 in the possession of the husband;
(c)Motor Vehicle 3 in the possession of the husband;
(d)Motor Vehicle 3 in the possession of the husband;
(e)the art collection in the possession of the husband;
(f)the furniture and chattels in the possession of the husband; and
(g)the plant and equipment in the possession of the husband.

20.On or before the vacation date, the husband shall provide to the wife’s solicitors all or any access code(s) and security information necessary to facilitate the wife’s entry to the Town J Property and failing the provision of same, the wife or her Agent are permitted to undertake any action reasonably necessary to gain entry to the Town J Property and the costs of and incidental to the gaining entry to the Town J Property shall be paid by the husband and deducted from the husband’s share of the sale proceeds of sale as set out in Order 25(d) herein.
21.Any motor vehicle or chattel remaining at the Town J Property following the vacation date shall be the sole and absolute property of the wife.
22.Upon the husband vacating the Town J Property in accordance with Order 18, the wife and/or her Agent, shall have sole use and occupation of the Town J property pending the sale of the Town J property in accordance with this Order.
23.In the event of any wilful damage being sustained to the Town J Property as at the vacation date (not including reasonable wear and tear), the costs of and incidental of the repair of such damage shall be the sole responsibility of the husband with the repair costs to be deducted from the husband’s share of the net proceeds of sale to be paid to the husband in accordance with Order 25(d) herein.
24.Within thirty (30) days of the vacation date, the wife shall do all acts and things to market the Town J Property for sale on the following terms and conditions:
(a)the wife shall appoint an Agent (“the Agent”) of her choosing to market and sell the Town J Property;
(b)the wife shall authorise the Agent to provide all communications to the husband if requested;
(c)the wife shall accept all reasonable advice from the Agent regarding the marketing and sale of the Town J Property including any necessary repairs and improvements to be undertaken prior to the listing of the Town J Property on the market;
(d)the wife shall co-operate in every way with the Agent, including:
(i)making a key and security information available to the Agent; and
(ii)allowing access to all areas of the Town J Property and permitting inspections of the Town J Property at all reasonable times as requested by the Agent.

(e)the Town J Property shall be listed for sale for a minimum sale price of $775,000 and the wife shall be at liberty to accept any offer of purchase provided such offer is no less than 5 per cent below $775,000 (ie. $736,250);
(f)a Registrar of the Federal Circuit and Family Court of Australia at City G is appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all such documents in the husband’s name and do all acts and things necessary to give effect to the sale of the Town J Property including but not limited to:
(i)signing the Agent’s authority to sell;
(ii)signing a contract of sale;
(iii)signing a discharge of mortgage authority; and
(iv)signing a transfer of property.

25.Upon completion of the sale of the Town J Property, the sale proceeds will be held by the wife’s solicitors and paid and distributed in the following manner and priority:
(a)firstly, to pay the Agent’s costs of sale, including sales commission and marketing expenses;
(b)secondly, to discharge the mortgage in favour of National Australia Bank being registered mortgage number …;
(c)to pay the legal conveyancing costs and disbursements in relation to the sale of the Town J Property;
(d)fourthly, and subject to the husband having fulfilled his obligation in accordance with Order 14 of this Order, the sum equivalent to 20 per cent of the net sale proceeds to the husband less any deduction for costs payable by the husband pursuant to Order 23, Order 38 and Orders 39 of this Order; and
(e)fifthly, the balance proceeds shall be paid to the wife.

26.Within three (3) business days from the completion of the sale of the Town J Property, the wife’s solicitors shall provide to the husband:
(a)a bank cheque made payable to the husband for his share of the net proceeds of sale of the Town J Property in accordance with paragraph 25(d);
(b)copies of all sale receipts and documentation evidencing the sale of the Town J Property and a copy of the settlement statement; and
(c)a copy of the wife’s solicitor’s invoice relating to costs of and incidental to the sale of the Town J Property.

SUPERANNUATION PAYMENT SPLIT
27.In accordance with s 90XT(1)(a) of the Family Law Act 1975 (“the Act”) a base amount of $54,665.00 shall be allocated to the wife from the interest of the husband in his Superannuation Fund 1 (“the Fund”).
28.Pursuant to s 90XT(1)(a) of the Act, whenever the Trustee of the Fund makes a splittable payment in respect of the husband’s interest in the Fund, the Trustee will:
(a)pay to the wife or her legal personal representatives, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)make a corresponding reduction in the entitlement that the person to whom the splittable payment would have been made but for this Order.

29.The operative time for Order 27 and 28 above is four (4) business days after service of a certified copy of this Order on the Trustee of the Fund.
30.The Trustee of the Fund do all such acts and things and sign all necessary documents to fulfil any obligation set out in the Act and the Family Law (Superannuation) Regulations 2001 so that the wife’s entitlement can be calculated and paid to them in accordance with this Order.
31.A Registrar of the Federal Circuit and Family Court of Australia at City G is appointed pursuant to a 106A of the Act to execute all or any documents in the husband’s name to effect the payment split of superannuation set out in this Order.

TRANSFER OF MOTOR VEHICLES
32.A Registrar of the Federal Circuit and Family Court of Australia at City G is appointed pursuant to s 106A of the Act to execute all such documents in the husband’s name and do all acts and things necessary to effect transfer into the wife’s sole name, the registration of the:
(a)Motor Vehicle 4registration number …; and
(b)Motor Vehicle 1;

free from encumbrance to the intent the wife is the sole and absolute owner thereof.

RELINQUISHMENT OF INTERESTS
33.Subject to this Order, the wife shall relinquish in favour of the husband and where necessary transfer to him any claim or interest which she may have to or in:
(a)all earnings, bank accounts, savings, shares or investments held in the name of the husband or under his control;
(b)all motor vehicles in the possession of the husband;
(c)all furniture, household items, personal property and documents in the husband’s possession;
(d)subject to this Order, all superannuation entitlements accruing in the name of the husband; and
(e)any policy of life insurance or assurance owned by the husband or held for their benefit.

to the effect the husband shall be the sole and absolute legal, beneficial or equitable owner thereof or beneficially entitled to as the case may be.
34.Subject to this Order, the husband shall relinquish in favour of the wife and where necessary transfer to her any claim or interest which he may have to or in:
(a)all earnings, bank accounts, savings, shares or investments held in the name of the wife or under her control;
(b)all furniture, household items, personal property and documents in the wife’s possession;
(c)any superannuation entitlements accruing in the name of the wife; and
(d)all animals and related equipment in the wife’s possession;

to the effect the wife shall be the sole and absolute legal, beneficial or equitable owner thereof or beneficially entitled to as the case may be.

SECTION 106A ORDER
35.In default of the husband doing all acts and things and executing all such documents as are necessary to give effect to any other obligation of the husband not already set out in this Order, a Registrar of the Federal Circuit and Family Court of Australia at City G be appointed pursuant to s 106A of the Act to execute all such documents in the husband’s name and do all acts and things necessary to give validity and operation of this Order.

SERVICE OF DOCUMENTS NECESSARY TO IMPLEMENT THIS ORDER
36.Within seven (7) days of the date of this Order, the wife’s solicitors serve a copy of this Order on the husband by:
(a)instructing a process server to affix a copy of this Order to the gate of the Town J Property;
(b)registered mail to K Street, Suburb L in Tasmania, being property registered in the name of Ms M; and
(c)email to ....

37.For the purposes of the implementation of this Order in respect to the sale of the financial resources as set out in Order 14 and the sale of the Town J Property as set out in Order 18, all communications to the husband and payments due to the husband shall be provided to the husband by:
(a)registered mail to K Street, Suburb L in Tasmania, being property registered in the name of Ms M; and
(b)copy email to ....

COSTS
38.The husband pay the wife’s costs of and incidental to these proceedings on an indemnity basis in the sum of $108,500.
39.The wife’s solicitors are permitted to deduct their costs from any sum payable to the husband pursuant to this Order, including:
(a)from the husband’s share of the net sale proceeds of the financial resources in accordance with Order 16(c); and
(b)from the husband’s share of the net sale proceeds of the sale of the Town J Property in accordance with Order 25(d).

whichever occurs first in time.

LIBERTY TO APPLY
40.The wife have liberty to apply in respect to the implementation of this Order.
41.All extant applications otherwise 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 the pseudonym of Latrell & Latrell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGuire J:
APPLICATIONS

The wife, Ms Latrell,[1] is the applicant seeking parenting and property orders together with personal protection orders pursuant to s 68B of the Family Law Act 1975 (Cth) (‘the Act’). I am asked to proceed to hear the application undefended and without the participation of the husband, Mr Latrell.[2] I have determined to do so for the following reasons:
(i)on 13 December 2023 I made an order pursuant to s 102NA of the Act in circumstances where there were family violence orders with mandatory prohibition of the husband cross-examining the wife, but with the husband to be afforded legal representation. Where I am satisfied that the husband has been served with that order, he has not availed himself of the benefit of s 102NA of the Act;
(ii)on the same date it was noted that should the husband not attend on the allocated trial date of 12 March 2024 or not comply with trial directions then consideration would be given to proceeding to trial undefended the husband. The husband had not complied with the trial directions made by Judge Taglieri on 26 July 2023;
(iii)when the trial was called on at 10:00am on 12 March 2024, the husband attended in person. He remained seated at the rear of the Court and declined my repeated invitations for him to take a seat at the bar table and to participate in the trial;
(iv)when the matter was stood down at approximately 10:20am to allow the Microsoft Teams connection to the wife attending remotely, the husband voluntarily left the Court precinct and did not return;
(v)whilst the husband has sporadically appeared at some mentions or interlocutory applications, he has on other occasions not attended at the Court. He has not generally complied with orders for the filing of a Response, Financial Statement, and other relevant documents despite given the indulgence of extensions;
(vi)the husband did not attend or participate in settling Terms of Reference for the Single Expert and did not attend at interviews with the Single Expert; and
(vii)the wife’s solicitors have provided comprehensive evidence of service and attempted service variously on the husband and, by reason of his attendance at the Court on 12 March 2024, I am generally satisfied that the husband has been served with process and court orders throughout the duration of the proceedings.
[1] “The wife”.
[2] “The husband”.
There are four children of the parties being:
(a)V born 2015 (aged 9 years);
(b)X born 2018 (aged 6 years);
(c)Y born 2020 (aged 3 years); and
(d)Z born 2023 (aged under one year).[3]
[3] Collectively “the children”.
The wife seeks parenting orders as follows that:
(1)the wife have sole parental responsibility for the children V, X, Y, and Z;
(2)the children live with the wife;
(3)the husband shall not communicate with or spend time with the children or any of them;
(4)the wife have leave to change the children’s names without the consent of the husband and without further notice to the husband;
(5)pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth), the children be permitted to have an Australian passport or a travel-related document (herein “an Australian travel document”) as defined by s 6 of the Australian Passports Act 2005 (Cth) and be permitted to travel internationally and to obtain such passport/Australian travel document without the consent of the husband;
(6)the wife’s exercise of sole parental responsibility in order 1 includes that the wife is at liberty to do all acts and sign all documents necessary, and have such authority as is necessary pursuant to s 11(b) of the Australian Passports Act 2005 (Cth), to procure a valid Australian travel document for the children without the signature or consent of the husband, including that the wife is authorised to sign such documents as may be required in behalf of the husband;
(7)the children’s Australian travel document be held by the wife;
(8)for the purposes of s 65ZA of the Act and s 11 of the Australian Passports Act 2005 (Cth), the wife is authorised to:
(a)travel outside of Australia with the children or any of them without the consent of the husband; and
(b)obtain a passport for the children or any of them notwithstanding that the husband has not signed any application for such passports.
In respect of financial proceedings, the wife seeks an order generally that she receive 80 per cent of the net property of the parties, inclusive of superannuation with the husband to receive 20 per cent and where the Court is asked to deal with the matter on a “one pool basis”.
Specifically, where the wife asserts that the husband has sold real property and put the proceeds of sale to the purchase of financial resources, she seeks delivery of such financial resources. Where the husband remains in occupation of the former matrimonial home at Town J, the wife seeks the sale of that property with the husband to retain a motor vehicle and plant and equipment in his possession and situate on the property.
The wife seeks a superannuation split to her from the husband’s interests in his Superannuation Fund 1 of 100 per cent of the value of the fund estimated at $54,000.
Where the wife asserts an extraordinary high level of extended family violence by the husband to her and the children, she seeks a personal protection order pursuant to s 68B of the Act restraining the husband from contacting her and/or the children or any of them. She seeks orders restraining the husband from doing any acts or things to ascertain the whereabouts of herself and the children; she seeks an order generally restraining the husband from approaching her and/or the children or any of them.
The Court has had the considerable benefit of an Independent Children’s Lawyer, Mrs Grant, and counsel, Ms Ryan, instructed for the trial. The Independent Children’s Lawyer (“ICL”) supports and endorses the parenting orders sought by the wife.
The husband refused to accept the invitation to participate in the trial process, despite not taking up the facility of a lawyer pursuant to s 102NA of the Act and not complying with court orders for the filing of a Response and trial documents. The Court is therefore unaware of the position taken by the husband. During his attendance at court, however, on 12 March 2024, and from the public gallery, the husband stated that he did have an affidavit albeit not apparently filed. Given the husband’s refusal to participate in the proceedings and to occupy the bar table, I declined to accept his affidavit which, after all, could not have been filed within the time limits of the procedural orders.
Further, and from the public gallery, the husband made a speech of some three or four minutes duration which was convoluted in its content and apparently indicative of the husband not accepting the jurisdiction of this Court and also indicative of the husband maintaining apparent “possessory” rights in respect of his children. The husband expressed himself to be a “sovereign citizen” apparently of a dominion other than the Commonwealth of Australia.
BACKGROUND FACTS
The husband was born in 1978 and is aged 45 years.
The wife was born in 1992 and is aged 31 years.
The parties met in 2009 and started a relationship in 2010. They married in 2011. They separated on 28 September 2022 and were divorced in early 2024.
The four children of the marriage are V (aged nine years), X (aged 6 years), Y (aged 3 years) and Z (aged under one year). The children continue to live with the wife. The husband has not spent time with the children or communicated with them since separation.
The wife commenced proceedings in this Court on 1 March 2023. The wife’s solicitors had previously written to the husband on 10 January 2023 and received a response from him indicating a desire to reconcile.
On 22 March 2023, and after service on the husband, Chambers orders were made allocating the matter to the Evatt List with the appointment of an ICL and orders for the husband to file responding documents by 21 April 2023. Service of this order could not be effected and an order was made on 13 April 2023 for substituted service.
On 19 April 2023 the wife filed an Amended Initiating Application including seeking orders for Z, then an infant.
The matter was listed for directions before a judicial registrar on 17 May 2023 whereupon the husband was directed to complete a Notice of Address for Service. Further orders were made on that day for the husband to file responding documents. That time was extended by order of 26 June 2023.
On 3 July 2023 both the wife and the husband attended remotely for interviews for a Child Impact Report. Such report was released on 13 July 2023.
On 26 July 2023 the husband attended in person at the City G Registry to appear before Judge Taglieri whereupon trial directions were made in his presence and the Court noting the husband’s request for all documents to be posted to his address at H Street, Town J.
During August and September 2023 the ICL attempted to settle the Terms of Reference for the Single Expert Report but without response from the husband.
In October 2023 the wife’s solicitors wrote the husband by email and registered post proposing values for various assets held by the parties. The husband did not respond.
In late 2023 the wife filed an Application for Divorce.
Where there had been on 9 November 2023, no response from the husband a senior judicial registrar made orders for the appointment of the Single Expert and the Terms of Reference.
In late 2023 the husband was personally served with the wife’s divorce application whereupon the husband is reported as responding to the process server “tell the lawyers, the courts, and everyone else to desist and I don’t want anyone else coming to this property ever again. I will be ignoring the lawyers and the courts”.
On 6 December 2023 the wife brought an Application in a Proceeding seeking an order for the asset valuer to enter the premises at H Street Town J to value plant and equipment, motor vehicles, furniture and chattels, and art. That application was necessary due to the husband’s failure to respond to requests by the wife’s solicitors.
That application was heard and orders were made on 13 December 2023 without appearance by the husband.
On 13 December 2023 an order was made pursuant to s 102NA of the Act in respect of the husband and where there existed state court family violence/intervention/restraint orders in favour of the wife. The wife was granted leave to attend the trial from a remote registry.
Between August and December 2023 numerous correspondence directed to the husband was returned to the offices of the ICL and the wife’s solicitors.
On 12 March 2024 the trial proceeded undefended when the husband, despite attending at the Court, refused the invitation to participate in the proceedings from the bar table. The husband left the precincts of the Court at approximately 10:20am.
THE WIFE’S CASE - PARENTING
Primarily the wife argues that the husband is of violent disposition and inflicted cruel and unusual violence on her and the children during the relationship. The wife asserts the husband is an unacceptable risk of harm to the children by reason of his propensity for physical and emotional violence.
The wife’s case outline document summarises and repeats instances of violence set out in her affidavit including the following:
·Where the parties met at church in 2009 and commenced a relationship in 2010 (when the husband was 31 years of age and the wife 17 years old) as early as 19 August 2010 a report was made to Tasmania Police due to concerns for the husband’s mental health and that he may be obtaining firearms. He was reported as saying “the first thing he would do when he returned to Tasmania was to get a gun”. The wife asserts that she was subject to verbal outbursts, increasing social isolation, and harsh treatment of a pet.
·From 2011 the wife alleges that the husband threatened to shoot her and kill her should she ever have an affair or leave him.
·In January 2011 the wife alleges that the husband pushed her against a wall, pressing his body against her and yelling at her, because his eggs were not cooked to his liking.
·In 2011 the wife says that she observed the husband behave with cruelty to his pets.[4]
[4] The wife’s trial affidavit filed 20 February 2024 at [126] – [133].
·In July 2015 the wife says that the husband threw a chair at her in the presence of V.
·The wife says that in October 2015 the husband commenced imposing lengthy “timeouts” for V who was then aged under one year old.
·The wife says that in 2016 the husband commenced hitting V leaving welts and marks on the child’s body.
·From 2019 the husband prevented the wife from taking the children out of the house for outings except for shopping or for school drop-offs/pickups.
·The wife says that in the summer of 2019/20 the husband started controlling water availability and usage within the family home.
·In late 2020 the wife says that she was sexually assaulted by the husband. This was after she had given birth to Y. The wife asked the husband to stop but he proceeded to have intercourse with her. The wife reported the incident to Tasmania police in late 2022.
·In 2022 the husband showed V videos depicting child torture including a child being tied up and beaten and another child being tied up and chopped up alive with power tools. The wife says she witnessed the husband showing these videos to V on about three occasions.
·In 2022 V disclosed to the wife that he had seen the husband tip poison on the animals’ food; she says that she witnessed the husband punch her animals and strangle her pet.
·In January 2022 the wife says that the husband began telling her stories about men who rape their children as an act of revenge against their wives if they leave. He watched movies that were violent against children.
·In early 2022 the maternal grandmother deposes to observing welts on X’s bottom. The grandmother made an anonymous notification to Child Safety Services.[5].
[5] See affidavit of Ms O filed 20 February 2024 at [40] – [41].
·In March 2022 V disclosed to the wife that he had seen the husband make X eat his own vomit. The wife says that the husband often beat X for vomiting. X has corroborated this.
·In mid-2022 the wife says that the husband assaulted V. She says that the husband slapped V across the face with an open palm and then punched V to the middle of his neck near his throat.
·In early 2022 the husband refused to permit the wife to seek medical attention for X when it was feared that the child’s arm was likely broken.
·In mid-2022 husband assaulted the wife for not washing potatoes correctly. The wife anonymously called a helpline.
·In or about mid-2022 V told the wife that he had been tied up by the husband in a shed at the back of the Town J property where he was tied by his hands and his legs and his pants pulled down whereupon he was repeatedly hit with a leather belt until his “bum hole” bled.
·On 28 September 2022, the day of separation, V informed the mother in the car “if we go home Daddy is going to kill you and hang all us kids”.
·In mid-2022 third-party information provided to Tasmania Police disclosed that the mother had “significant fear of potential repercussions towards her and her children by [the husband] if police became involved”. The wife was reported as fearing that the husband would kill her if she left.[6]
[6] At page 6 of the s 69ZW Response – Tasmania Police.
·In late 2022 a Police Family Violence Order was issued at the Town N Police Station protecting the wife from the husband.
·In late 2022 an Interim Family Violence order was made in the City G Magistrates Court protecting the wife and the children from the husband.
·On 12 November 2022 the wife alleges that she heard X say to V “put doodle in your bum hole”. V told the mother “Daddy said you can’t tell Mummy or he will skin [Y] alive”.
·In late 2022 a Family Violence Order was made in the City G Magistrates Court protecting the wife and the children V, X and Y.
·A short time later, the Police conducted interviews with V who disclosed:
I got tied up and Daddy said if you tell your mum, I will skin your sister alive
last time it happened he put a rope around my neck
if you tell mum I will kill your sister
if I tell my mum, sister skinned and [X] and Mum
that husband punched him in the neck and it really hurt
he dragged my brother around… he hurt me… he hurt my sister made her cry
saw [X] getting hurt… getting smacked… on his bottom
(describing his sister) getting smacked… She used to cry when dad hurt her… was scary for her… on bottom
He did it too harshly
they were smacked with wooden sticks and stuff… nails… in Dad’s shed… really harshly
all bad stuff in shed
wild [animals] being stabbed my dad stabbed them
·In September/October 2023 the wife asserts that V disclosed to her that the husband had told V, X and Y that “if mummy wasn’t around I would kill all of you, because I don’t want to look after you, so if something happened to mum I would kill you”.
·In December 2023 V disclosed the wife that the husband had flushed his head in the toilet “many times”… and that the husband had made him eat his own poo.
·In December 2023 V disclosed to the wife that the husband had made him drink “wee out of his doodle”.
·In mid-December 2020 the wife asserts that V disclosed to the wife that the husband had said to him “if you tell mum something, I will stick things up [Y’s] girly bits”.
·In late 2023 a further Interim Family Violence Order was made in the City G Magistrates Court in favour of the wife.
·In early 2024 a Final Family Violence Order was made in the City G Magistrates Court for a period of 12 months.

The affidavit is more detailed and highly particularised in respect of physical assaults; threats to harm others; sexual assault; derogatory taunts; injury to animals; financial abuse; isolation from family; deprivation of liberty; controlling behaviour; deprivation of reasonable medical attention; children’s exposure to family violence and family violence perpetrated on the children.
The wife says that she has suffered post-traumatic stress disorder (“PTSD”) arising from family violence suffered through the relationship. She says that she is consequently unable to communicate with the husband and/or co-parent with the husband. She says that she and the children have located to outside of Tasmania and does not want her whereabouts disclosed to the husband. As to do so would compromise the wife’s recovery and impact negatively her capacity to parent the children.
The wife says that the children (excluding Z) have, and continue to have, significant developmental and behavioural issues associated with trauma.
The wife asserts that the husband poses an unacceptable risk to the children of violence of the types set out above.
The wife says that the impact of family violence on herself and the children together with the unacceptable risk of further violence is such that this is a matter of such serious type that the Court should make the relatively unusual order of there being no time or communication between the children and their father where the unacceptable risk of harm cannot be ameliorated by other tools such as supervision.
THE WIFE’S CASE – PERSONAL PROTECTION ORDERS PURSUANT TO S 68B
The wife bases her application for these orders on the material set out above where she alleges that the husband has a propensity for violence of various types and presents as an unacceptable risk of violence in the future. She says that he has perpetrated violence on herself and the children. She says that the state Family Violence Order will expire in early 2025 and that orders pursuant to s 68B of the Act provide ongoing protection.
The wife says that, notwithstanding a Family Violence Order, the husband has made attempts to locate her whereabouts and to communicate with her through third parties. She says that the husband has assaulted her and made threats to kill her. She says that the husband has assaulted the children and made threats to kill them.
The wife relies on the opinion of the Court Child Expert in the Report that:
[Mr Latrell] presents as a very high risk of family violence and lethality is identified… and that the risk identified in this assessment is substantial. There are indicators to suggests that [the husband] poses high – level ongoing risk, including risk of lethality, to [the wife] and the children due to his reported pattern of family violence behaviour.
The wife says the husband views the children with some proprietorial right with a suggestion that those “rights” transcend family court orders where he has written (and repeated in similar terms from the public gallery of the Court on 12 March 2024) as follows:
they are my flesh and blood heirs and successors, my pride and joy and all I hold dear. They are our life energy, our property and a rightful place of my bloodlines flowing perpetuity. We maintain our inherent rights as the executor for my flesh and blood’s estates, until they come of age.
The wife suffers a diagnosis of severe PTSD and ongoing post-traumatic stress symptoms and holds a strong belief that the husband will harm or kill her and the children if he locates them.
The wife asserts that a personal protection order will provide her with physical, mental and emotional well-being.
THE WIFE’S CASE – PROPERTY
The wife says that it is just and equitable pursuant to s 79(2) of the Act to make orders altering the parties’ property interests due to the marriage being irretrievably broken down and the husband being in the possession of the majority of the parties’ assets and assets at value.
The wife says that the marriage was a relatively long one with it now being some 14 years since the commencement of their relationship and 13 years since their marriage.
The wife says that the husband has failed to make full and proper disclosure of his financial circumstances or to allow for and proper valuation of the assets and that consequently the Court is able to take a less cautious approach to making findings of fact.[7]
[7] In the Marriage of Weir (1993) FLC 92-338, (1992) 16 Fam LR 154, [1992] FamCA 69.
The wife concedes that at the date of commencement of cohabitation the husband held equity in two parcels real properties but where both were subject to mortgage.
The wife concedes that she was not a person of any wealth at the date of marriage given that she was just 18 years of age.
The wife says that she has made a plethora of subsequent contributions during the marriage including being the primary carer of the children and being gainfully employed and later self-employed. The wife says that in early 2020 she withdrew her superannuation entitlements in the sum of $8,275.47 and contributed those funds to the general living expenses of the family.
The wife concedes that in early 2023 she received funds by way of a financial settlement with National Australia Bank in a quantum of more than $200,000.00 but says that those funds have been extinguished by reasonable day-to-day expenses for herself and the children together with making ongoing contributions to the mortgage on the Town J property, payment of insurances for the Town J property, animal related costs, taxation liabilities, medical costs and relocation expenses.
The wife says that both parties made non-financial contributions towards the family unit where again the wife was the primary carer for the children and the primary homemaker.
The wife says that the principles in Kennon v Kennon[8] are relevant where she says that her contributions were made more onerous throughout the marriage by reason of the husband’s physical violence, threats and coercive control.
[8] “Kennon” (1997) FLC 92-757; [1997] FamCA 27.
The wife seeks an adjustment of 10 per cent to her after a consideration of all contributions including the husband superior initial contribution; the contributions of the parties during the course of the relationship; the wife’s post-separation contributions including to the physical and financial support of the children; and the considerations under Kennon.
The wife argues for a further adjustment to her of 20 per cent of the property pool after consideration of the relevant factors under s 79(4)(d) – (g) including the relevant factors under s 75 of the Act.
The wife says that she suffers the symptoms and the impacts of PTSD due to her experiences during the marriage. She continues to suffer significant complex trauma with consequent impact on her capacity to parent the children.
The husband has qualifications as a tradesperson and has a capacity to earn a greater income than does the wife as evidenced by his taxation returns obtained under subpoena where the husband’s earnings, for example, were $139,977 in the financial year 2011, $137,322 in the financial year 2013, and $179,430 in the financial year 2014.
The wife is the full-time carer of the four young children of the relationship where the youngest is not yet one year old. She supports the children solely in both physical and financial senses. The orders sought by the wife are suggestive of her continuing to shoulder these physical and financial responsibilities until the youngest child reaches 18 years of age.
The wife has no significant savings. The assets of the parties have remained predominantly in the possession and control of the husband since separation and where he has had the benefit of residence in the former matrimonial home. The wife has relied on borrowed funds from the largess of her parents.
The wife is currently solely reliant upon Centrelink entitlements for herself and the children.
The wife will need to re-establish herself and the children in suitable accommodation.
The wife will be solely responsible for the costs of the children’s education where the husband contributes no, or no substantial, child support.
The children V, X and Y all have complex needs arising from trauma suffered by them during the marriage. There are behavioural issues and developmental delays all of which will require ongoing treatment and therapy. The wife is likely to be solely responsible for these costs.
The husband has not paid child support to the wife since separation. Given the husband’s particular religious beliefs and his identification as belonging to a particular group then it is unlikely that the husband will contribute child support in the future.
The wife has ongoing psychological and therapy costs from for herself arising from trauma suffered during the marriage.
The wife has no residual superannuation.
THE ICL’S CASE - PARENTING
The ICL supports the orders argued for by the wife in that she have sole parental responsibility for the children, they live with her, and have no time or communication with the husband.
The ICL says that the wife has a demonstrated capacity to exercise parental responsibility where she has facilitated the children’s education and health/psychological need since separation where she has an understanding and empathy for the needs of the children.
The ICL argues that the evidence supports a finding that the husband has committed significant and serious acts of family violence against the wife and children and that he poses an unacceptable risk of both physical and psychological harm to the children.
The ICL supports the wife withholding details from the husband of the children’s residential and education arrangements and for the wife to obtain Australian passports for the children and to change the children’s names all without the consent of the husband.
The ICL relies on the opinion of the Single Expert, Dr C, concluding that the husband poses significant ongoing risk to the wife and the children of a high degree including of lethality.
THE RELEVANT LAW – PARENTING
Part VII of the Act provides the Court with powers in respect of parenting issues. Section 60CA gives the emphasis of the legislation being a focus on children where it states that the child’s best interests are to be the paramount consideration for the Court.
In determining those best interests the Court is mandated to reference the probative evidence and the parties’ proposals to the numerous factors set out at s 60CC(2) and (3) of the Act against the Objects and Principles of the legislation provided at s 60B as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The considerations at s 60CC are divided into “primary” considerations at s 60CC(2) and “additional” considerations at s 60CC(3) but where prima facie there is no hierarchical distinction between the subsections.
Section 60CC(2)(a) and (b) provides:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Importantly, recent amendments to the Act at s 60CC(2A) emphasise that in applying the considerations set out in subsection (2), the Court is to give “greater weight” to the considerations set out in paragraph (2)(b).
Section 61DA of the Act provides a presumption of equal shared parental responsibility in parents for their children. Parental responsibility is often colloquially defined as the rights and obligations of parents in making long-term and important decisions for their children in matters such as education, religion, medical procedure and the like and as distinguished from the more mundane day-to-day decisions that parents habitually make for children.
The presumption of equal shared parental responsibility does not apply, however, if the Court is satisfied that there are reasonable grounds for the Court to believe that a parent has engaged in abuse of the child or another child or in family violence. Alternatively, the presumption can be rebutted by evidence satisfying the Court that it would not be in the children’s best interest for the parents to exercise equal shared parental responsibility.
An order for equal shared parental responsibility sets the Court on a course of statutory and intellectual consideration firstly, as to whether or not it would be in the children’s best interests and reasonably practicable for the children to live in an equal time arrangement between the parents and, if the answer to either of those questions is in the negative, then whether it would be in the children’s best interests and reasonably practicable for the children to live in a regime of “substantial and significant time” between the parents where such is defined as time on both weekends and weekdays and where children and parents can mutually enjoy occasions and events that are of special significance to them.
In the matter now before me, the wife seeks orders that are not of either equal time or substantial and significant time, but where she argues for there to be no time or communication between the children and the husband.
The wife here argues broadly that the children would be at an unacceptable risk of physical and/or emotional/psychological harm if they were to have any form of relationship with the husband. She particularises extraordinary and extreme family violence including physical violence and often in its cruellest of types. The wife references instances of sexual abuse of the children by the husband. The wife highly particularise instances of emotional and psychological abuse of both the children and herself.
Issues of unacceptable risk have recently been considered anew by the Full Court in Isles & Nelissen[9] where the Court reconsidered the evidentiary burdens on a party arguing unacceptable risk against a detailed historical overview of the jurisprudential background. Essentially, the Court found that a consideration of unacceptable risk is a prospective one as to “possibility” and not one of a finding of fact on the basis of a balance of probabilities with reference to s 140 of the Evidence Act 1995 (Cth). At [53] of Isles the Court summarised the consideration as follows:
The point being made, importantly for present purposes, was that while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities.
[9] (2022) FLC 94-092; [2022] FedCFamC1A 97; “Isles”.
At [82] the Full Court cited the judge at first instance[10] in distinguishing positive findings of sexual abuse from findings of an unacceptable risk of harm:
82. ….
60.The primary position of the mother and the [child welfare agency] is that the Court make a finding of fact, on the balance of probabilities, that the father has sexually abused [the child] with consequent orders to attend to future risk. This would constitute a finding of fact based on the empirical evidence as, indeed, would be the task of the Court in respect of the father's submissions that the mother has fabricated or opportunistically manipulated an otherwise innocent statement from [the child]. Put simply, this is an exercise of findings of fact. The notion of ‘an unacceptable risk,’ is, however, a predictive or prospective exercise for the Court in determining whether there is a ‘risk’ into the future; the magnitude of that risk; and whether there are tools or circumstances to adequately mitigate that risk.
…
65.The evidentiary fact-finding exercise is conducted to the standard of on the balance of probabilities pursuant to s 140 of the Evidence Act whereas the predictive consideration of unacceptable risk, not being limited to findings of past fact, looks more to “possibilities”.[11]
…
[10] Isles & Nelissen (2021) 65 Fam L; [2021] FedCFamC1 295, per McGuire J.
[11] Original emphasis.
The wife further argues that should the Court order the children to have any form of direct or communicative contact with the husband then there will be a consequent negative impact on her capacity to properly parent the children and noting her own allegations of various types of family violence inflicted on her by the husband together with her subsequent diagnosis of the PTSD. These matters have been dealt with through a long line of authority.[12]
[12] Re Andrew (1996) FLC 92-692; Sedgley v Sedgley (1995) FLC 92–623; Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC1.
RELEVANT LAW – PERSONAL PROTECTION ORDER
The wife seeks an order pursuant to s 68B of the Act to restrain the husband from contacting her or the children and from attempting ascertain their whereabouts. She terms the order generically as a “personal protection order”. The power for such orders is provided in the form of an injunction from s 68B of the Act which provides:
(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a)       an injunction for the personal protection of the child; or
(b)       an injunction for the personal protection of:
(i)        a parent of the child; or
…
(c)       an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of the child; or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or
(d)       an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or
…
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
RELEVANT LAW – PROPERTY
Section 79 of the Act gives the Court the power to alter the interests of parties in property. “Property” includes assets and liabilities and amendments to the Act provide that “superannuation may be treated as property” although not usually crystallised in the sense of a tangible asset.
The discretion at s 79(1) is a broad one but limited by the statue itself where the section provides:
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them-altering the interests of the parties to the marriage in the property; or
(b)…

That broad discretion is not, however, unfettered. In R v Watson; Ex parte Armstrong[13] the High Court observed:
… The judge called upon to decide proceedings of that kind is not entitled to do what has been described as “palm tree justice”. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down…
[13] (1976) 136 CLR 248 at 257.
Importantly, s 79(2) states that the Court shall not make an order under this section unless it is satisfied, in all of the circumstances, that is just and equitable to do so.[14]
[14] Stanford & Stanford (2012) 247 CLR 108, “Stanford”.
Prior to Stanford there had evolved an apparent “four step approach” for trial judges in considering an alteration of property interests[15] where the Court was first to determine the contents of the property pool and attribute value to those items and hence the pool itself. The Court then moved to consider the contributions made by and on behalf of the parties to that property pool and to give weight to those contributions. After the contribution consideration, the Court would then consider whether there should be any further adjustment to either of the parties on a consideration of the factors at s 79(4)(d)) – (g) of the Act including any relevant matters at s 75(2) often then known as “the needs factors”. Arguably there was a fourth “step” where the Court would then “stand back” and consider whether the proposed orders themselves emanating from the above process would provide justice and equity.
[15] Hickey & Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143.
The High Court in Stanford returned the focus for trial judges firstly on s 79(2) as an independent and discrete determination to be made as to whether it be just and equitable, in the circumstances, to make any order altering the property interests of the parties. This was a consideration not to be simply conflated with the considerations of contributions at s 79(4). The High Court assisted trial judges by setting out three fundamental propositions:
37.First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to “altering the interests of the parties to the marriage in the property”. The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
38.Secondly, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion…
…
40.Thirdly, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”.[16] To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
(Original emphasis)
[16] Footnote omitted.
After determining the property pool and its value, therefore, the Court must make a discrete consideration at s 79(2). If it is determined that it be just and equitable to alter those property interests then the Court should consider the contributions made by and on behalf of the parties to the acquisition, improvement and maintenance of the items making up the property pool. The Court is to allocate weight to those contributions which may be of a direct financial type, non-financial contributions, or contributions made by way of homemaker or parent.
The Court is also to identify and give weight to the considerations at s 79(4)(d) – (g) including the relevant factors at s 75(2) as to whether any further adjustment is to be made to the entitlement of either party.
It is reasonable to conclude that the entire process is permeated by considerations of justice and equity.
CONSIDERATION – PARENTING MATTERS
THE EVIDENCE
The task for the Court is to consider all of the evidence and attribute weight in making findings of fact and applying the relevant law. The standard of proof in making findings of fact is one of “on the balance of probabilities” consistent with s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) which provides:
Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject - matter of the proceeding; and
(c)       the gravity of the matters alleged.
This section of the Evidence Act effectively enshrines the common law position most often cited in Briginshaw v Briginshaw[17] where noting it being appropriate to consider “the gravity of the matters alleged” Dixon J stated:
…when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality. … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
[17] (1938) 60 CLR 336.
In the matter before me, the evidence of the wife, her witnesses, and the Single Expert are unchallenged by cross-examination, and I therefore generally accept such evidence unless it be inherently implausible or unreliable.
THE WIFE
The wife provided a trial affidavit affirmed 19 February 2024. That document prominently sets out and particularises family violence during the relationship where such violence is often portrayed in relatively unusual and cruel detail where for instance, the wife deposes to having been required to give birth to her children without medical assistance. She particularises physical punishment from the husband to the children from infancy.
At [36] and following the wife references the husband’s religious beliefs and practices including for a period where he attended a church and said to the wife:
37.… Women should not speak in public as they will embarrass themselves… a woman should just listen to what the man is saying… women should not be involved in managing property and finances.
The wife says that the husband moved to more remote churches with minimal attendees and often quoted scripture to her indicating his belief in the power imbalance in the home. She says that the husband would speak of exorcism and “casting demons” and would do so in front of the children.
In his attendance at Court the husband announced himself to be a “sovereign citizen”. The wife references this in her affidavit at [41] and following. She says that around early 2020 the husband commenced watching videos about the Sovereign Citizen Movement. He would seek out others in the locality of similar beliefs. She says that the husband insisted that she join a political party of his choice. Contemporaneously, the husband, according to the wife, demonstrated a sense of paranoia by saying:
… it’s not safe to go away from the property – the government are watching… people in the government were watching us and listening to us.
Similarly, he spoke to the family of doctors and others in high positions being “evil”.
The wife references violence of a coercive controlling type. For instance, at [49] - [50] she deposes:
49.When we were living at the [Town J] Property, I woke up between 5:00am and 6.00am each day. Throughout the marriage, there was pressure put on me by [the husband] to “look good” so every day, I always did my make up early in the morning. [The husband] often gave his opinion on what colours and shade of make-up I should wear.
50.When I woke up and after getting ready, I started my day by cleaning the house and preparing for breakfast. I place a plate with a knife and fork on the dining table for [the husband], so it was ready for him when he woke up. There was a need for me to always make [the husband] feel that he was looked after and that he was “special”. The more “special” he felt, the better the children and I were treated by him. When [the husband’s] needs were being met, he was less aggressive towards us.
Further examples of coercive and controlling behaviour are evidenced at [67] – [69] of the wife’s affidavit as follows:
67.We stopped going to church during the pandemic, in or around 2021 as [the husband] did not trust anyone and he said that “everyone is evil”. [The husband] said he did not believe in any of the Covid-19 safety measures and did not wear a mask. He did not allow me (or the children) to wear a mask. We were not allowed to use hand sanitiser and are not vaccinated. [The husband] did not sign in when we attended church.
68.I was not able to speak to anyone a church about what was happening at home as [the husband] would not leave me alone with anyone. He stood beside me or behind me and listened if people talked to me and asked me if I was OK. If I spoke to anyone, [the husband] would ask me afterwards “what did you say to them?”. He did not let the children play with the other children.
69.From 2021 onwards, as we were not attending church, I remained primarily at the [Town J] Property unless I was shopping or [the husband] accompanied me. If I was able to go shopping by myself, the children usually came with me. When we came home, [the husband] often asked [V] “who did mummy talk to?”
The wife asserts that the physical violence towards the children increased in the lead up to separation in 2022. In September 2022 she says that the husband watched graphic videos of torture, including the torture of children, and shared these videos with V. The husband would make statements to the wife such as “you will submit to me”. The wife says that from January 2022 the husband began to tell her stories about men who rape their children as an act of revenge against their wives should they leave.
The wife particularises the refusal of the husband to allow proper medical attention for the children such as assessment for a tongue tie for X. The wife says that the children began to make statements to her such as “Daddy’s going to shoot you Mum and hang us all up”.
The wife particularises instances of the husband’s cruelty to animals.
The wife particularises at [113] and following instances of sexual assault on her by the husband.
At [134] and following the wife particularises instances of financial abuse. Including limitations on what could be spent and what items could be purchased for the children. She says that the husband monitored her bank account and demanded transfers to his account, leaving her with insufficient funds to provide for the children. The wife says that she had to justify all her personal expenditure by the preparation of spreadsheets. She says she was criticised by the husband for purchasing Christmas presents for the children and in 2021 was prohibited from purchasing Christmas or birthday presents for the children.
At [150] and following the wife says that she was isolated from her own family and that the husband made disparaging remarks about her parents. The wife says that from 2012 she did not have private access to friends and that the husband selected “our friends”. She says that she was shadowed by the husband at church and any public events. She says that she was forbidden by the husband to go out alone unless it was for grocery shopping for which she had time limits imposed. The wife said that she was forbidden from attending her grandfather’s funeral.
At [160] and following the wife particularises instances of deprivation of her liberty by the husband. She says that the husband demanded that all window coverings in the house remain closed and she was not to leave the house for walks or runs whilst the husband was working. She says from 2019 the husband stopped her taking the children out of the house for outings except for shopping trips or school drop offs/pickups.
The wife says that the husband exhibited controlling behaviour such as choosing the clothes purchased for and to be worn by the wife.
The wife says that the children were deprived of reasonable medical attention on occasions stating “God will heal you” or “only evil people get sick”… “medicine is witchcraft”. The wife says that she was denied antenatal care or pregnancy supplements. The wife says that she and the children were denied access to dental care.
The wife says that since separation the children have made detailed disclosures of physical violence perpetrated on them by the husband. She says that they have made statements consistent with sexual abuse.
The wife says that she and the children have fled Tasmania but that she remains terrified of the husband. She says that she has recurring disturbing nightmares that the husband will harm the children and then kill her. She says having witnessed the husband hurt the children, kill animals, and assault her, she believes that he has the capacity to harm or kill the children and her. She says that she was fearful of leaving her home whilst in Tasmania. She says that following separation she was diagnosed with PTSD and that she continues to receive psychological therapy. She says that she experiences intermittent panic attacks and has taken security precautions at her current home. She says that she has attempted to improve her mental health by undertaking personal development courses and also has an allocated social worker. At [259] the wife deposes that she believes her mental health will be severely impacted if the husband has any contact or communication with the children. She fears that the husband will try to locate her and children. For these reasons she seeks an order that allows a change of surname for the children.
The wife deposes at [261] and following as to the current arrangements for the children but without disclosure of details which might expose her location.
MS O
Ms O is the maternal grandmother. She provided an affidavit filed 20 February 2024.
Her evidence corroborates that of the wife.
DR B
Dr B is a clinical psychologist and has been treating the wife since 8 February 2023. She was provided with background material to assist with her report of 10 July 2023.
Dr B observes the wife coming from a close family with Christian beliefs and practices. She notes the wife’s first relationship being at the age of 17 and with the husband who was then 31 years of age.
She notes the separation and the wife’s subsequent engagement with a sexual assault support service from November 2022. It was the SASS worker’s belief that the wife was sexually assaulted multiple times by the husband with a connection to ongoing problems with mental health.
Dr B benefits from correspondence from Ms P (specialist family violence practitioner and educator) who provided counselling to the wife and to whom the wife reported the husband inflicting physical violence to her and the children, inhumanely killing animals and pets, making threats to kill the wife and others, financial abuse, showing sexually explicit material to the children, and stalking. The counsellor summarises the reports as being “catalogues a pattern and history of violence and coercive control” resulting in the wife experiencing intrusive and distressing memories, hypervigilance, trouble sleeping, nightmares and difficulty socialising and trusting people.
The wife particularised to Dr B the family violence in the same details as evident in her affidavit, comprising of prolonged coercive control, a pattern of manipulative, controlling and intimidating behaviours aimed to isolate people from their supports; the denial of autonomy and independence and a propensity to regulate everyday behaviour.
Similarly, the wife particularised the husband’s threats to kill or shoot her and that the husband kept weapons on the property. She described the husband as being capable of sadistic acts. The wife particularised instances of sexual violence where, without consent, might legally constitute rape.
At [29] of her Report Dr B says that the impacts of family violence on the wife have been numerous, where she had been required to accommodate the demands of the husband by changing her behaviour, her clothing, her diet, her parenting style, her employment, and her relationships with others. Dr B described an erosion of self-confidence in the wife.
Dr B opines that the wife has developed a trauma disorder because of being exposed to multiple traumatic events in her relationship with the husband. Psychological testing disclosed a clinical profile with significant elevation on the “Anxiety Related Disorders Scale” and that the wife is likely to meet the DSM 5 criteria for PTSD leading Dr B to opine that the wife has PTSD with delayed onset, because of the family violence she experienced during the relationship with the husband.
Dr B reported continuing symptoms experienced by the wife even following separation and her taking precautions to remove herself and the children from the husband.
At [50] Dr B opines that risk factors for developing PTSD and for proper prognosis include the frequency of the traumatic events and having experienced interpersonal violence leaving the wife vulnerable to developing prolonged symptoms of PTSD with an anticipated exacerbation of the PTSD symptoms and a prolonged duration of the disorder.
Dr B noted that the wife’s general practitioner (“GP”) had prescribed medication to assist with sleep and that the wife had undertaken psycho education and counselling.
Dr B reports the wife expressing guilt and regret at what her children had been through when referring to the impact the husband has had on the children and that she now considers it her responsibility to help the children and herself recover from the traumatic experiences where the wife’s current attitude towards the husband remains predominantly fear and a belief that he presents a danger to the children.
At [57] Dr B opines that the wife’s mental health will be severely negatively impacted if the husband has unsupervised access to the children and that the wife remains extremely fearful of the husband and that he will harm her children if he has access to them. Dr B believes that it is highly likely that the wife will be retraumatized by the husband having access to the children. Importantly, Dr B is of the view that the prolonged family violence experienced by the wife, and the symptoms are such that the symptoms are unlikely to be modified even by supervised access where the wife is concerned that the husband “has a lack of regard for some societal norms and the rules of the Court, so she is fearful supervision will not adequately mitigate the risk that he may abscond with the children, continue to abuse the children physically and psychologically”. Dr B is of the view that the wife would need focused psychological support should the husband spend any time with the children.

I accept the unchallenged evidence of Mr S.
MR T
Mr T affirmed an affidavit on 19 February 2024. He has experience in the purchase and trade of digital currency. He has provided a comprehensive valuation on the basis of evidence provided to him by the wife.
I accept Mr T’s valuation evidence.
The wife’s case outline provides helpful assistance by way of a balance sheet[21] setting out the wife’s assertions as to the contents of the property pool, her asserted values, and the sources of such evidence. It is notable that the wife and her legal representatives have gone to considerable effort in order to obtain the best evidence available given the lack of cooperation from the husband.
[21] The wife’s Outline of Case filed 7 March 2024, at page 43.
I find the property pool to comprise the following at value and noting the source of such evidence:

Ownership Description Value Evidence relied upon

1. Joint H Street, Town J $775,000 Affidavit of Mr R

2. W Motor Vehicle 5 $15,000 Purchase price – wife’s affidavit [302]

3. H Motor Vehicle 4 $19,780 Redbook valuation Tender Bundle page 198

4. H Motor Vehicle 1 $4,000 Affidavit Mr S

5. H Motor Vehicle 6 $1,000 Affidavit Mr S

6. H Motor Vehicle 2 $10,000 Affidavit Mr S

7. H Motor Vehicle 7 $6,500 Affidavit Mr S

8. H Motor Vehicle 3 $4,500 Affidavit Mr S

9. W Animal transport $40,500 Wife’s affidavit [271(f)] and Financial Statement

10. W Bank Account $414 Balance at 13 February 2024

11. H Bank Account Not known

12. W Digital currency $380 Wife’s affidavit [272] and Financial Statement

13 H Digital currency $11,848 Affidavit of Mr T

14. H Financial Resources $364,450 Indicative sale price – to be sold

15. H Financial Resources $1,204,597 Indicative sale price – to be sold

16. Joint Plant and equipment and tools $50,400 Affidavit of Mr S

17. W Furniture $2,000 Wife’s estimate

18. Joint Furniture at Town J Property (including … studio) $35,020 Affidavit of Mr S

19. Joint Art Collection $20,000 Affidavit of Mr S

Total property $2,565,389

Liabilities

Ownership Description Value Evidence Relied Upon

1. Joint Mortgage over Town J Property $216,570 Wife’s Financial Statement and Tender Bundle page 279

2. H Contingent GST liability $198,675 Tender Bundle page 208

3. W Loan from parents $6,000 Wife’s Financial Statement

4. Joint Selling costs of Town J $15,000 Estimate

5. Joint Selling cost of Financial Resources $15,690 1 per cent of value when sold

Total liabilities $451,935

Total property less liabilities

Property $2,565,389

Liabilities -$451,935

Total Net property $2,113,454

Superannuation

Ownership Name of Fund Value

1. Husband Superannuation Fund 1 $71,973

Total superannuation $71,973

Total net property including superannuation

Property $2,113,454

Superannuation $71,973

Total net property including superannuation $2,185,427
SECTION 79(2) CONSIDERATIONS

I am easily persuaded that it is proper to enter into a consideration of altering the property interests of the parties. I accept that the marriage has broken down irretrievably and note the parties’ divorce. I note that the husband holds assets of the parties in which the wife has a legal and/or equitable interest.
CONTRIBUTIONS
At the commencement of the relationship the wife was just 17 years of age. She did not have any wealth. The husband held title to two properties at AA Street, Suburb BB (“the Suburb BB Property”) and CC Street, Town DD both in Tasmania (“the Town DD Property”). His interests were held subject to mortgages. The husband purchased the Suburb BB Property in mid-2004 for $175,000. The property was valued for rate purposes in late 2012 (some months after the marriage) at $245,000. The mortgage on the Suburb BB Property was repaid in full as at the date of the parties’ marriage albeit using some monies received for wedding presents.
The husband purchased the Town DD Property in mid-2006 for $126,000. That property was valued for rates purposes in late 2010 at $205,000. The wife says that as at the date of the marriage there was a mortgage of E$120,000 secured by the Town DD Property.
The wife estimates, therefore, at the date of the marriage the husband had equity in real property of $280,000.
The wife argues that there has been a myriad of subsequent contributions made by the parties since the date of the marriage in early 2011. The husband was substantially in employment or self-employment. The parties also earned rental income from the Town DD Property and later from the Suburb BB Property.
The wife was gainfully employed until the parties left Tasmania in 2012 to live in City F. She also obtained work as an administrative assistant whilst in City F. In 2015/16 the wife obtained a qualification and commenced her own business whilst also caring for the children of the marriage. The wife was self-employed in this role from 2015 until late 2020. From early 2021 the wife commenced, and after the birth of Y, a business and for the following financial year her taxable income was $81,202. The wife made further income from working with animals.
In April 2020 the wife withdrew her superannuation entitlements in Superannuation Fund 2 in the sum of $8,275.47 and contributed those funds in their entirety to the expenses for the family unit.
In early 2023, being some months after separation, the wife received a financial settlement with NAB in a sum of more than $200,000.
The wife deposes to having made the following direct and discrete financial contributions following separation:
(a)$12,400 as repayments to the mortgage over the Town J Property;
(b)$1,880 payment of insurances for the Town J property;
(c)$792 to motor vehicle registrations;
(d)$7,500 to animal related costs;
(e)$16,500 taxation liability for the financial year ending 2022; and
(f)$28,595 for a motor vehicle and related expenses, animal transport, and digital currency.
Since separation the wife has been solely responsible for the children’s living expenses, medical costs and education expenses.
The wife has further disbursed the monies from NAB as follows:
(a)medical costs $17,131;
(b)asset purchase $28,595;
(c)taxation liability $19,000;
(d)children’s cost $10,660;
(e)living expenses $49,750;
(f)relocation costs $17,140; and
(g)costs for matrimonial assets $22,572
Total expenditure $164,848
I am satisfied on the wife’s unchallenged evidence that the amount received from the NAB settlement has been diminished by way of “reasonable expenditure”.[22]
[22] AJO & GRO (2005) FLC 93-218; [2005] FamCA 195; Jabour & Jabour (2019) FLC 93-898, [2019] FamCAFC 78.
The wife asserts that both parties made non-financial contributions to the property pool during the marriage including maintenance and improvements. She says, however, that she undertook such contributions whilst heavily pregnant and was the primary carer for the three children during the course of the relationship as was she the prime primary homemaker.
The wife’s homemaker and parenting contributions were undertaken whilst also substantially employed and self-employed. The wife deposes to significant and frequent delegation of homemaker and parenting roles by the husband to her resulting in a more onerous and uneven contribution by the wife.
The wife relies on the principles Kennon (supra). She gives evidence that throughout the marriage she was subjected to physical, emotional, psychological, financial, and sexual violence as detailed above and from the husband. She was subjected to isolation from family and other support by the husband thereby making her contributions more onerous given the relative lack of assistance provided by the husband. She was deprived of medical care or attention during her three pregnancies and post the birth of those children. She and the children were deprived of medical attention and dental care during the marriage. She was subjected to physical assault whilst providing homemaker contributions. She was subjected to ridicule and derogatory taunts whilst undertaking household duties. She was monitored personally and financially by the husband whilst undertaking household duties such as shopping. She was required to provide household duties on a limited supply of utilities such as water and electricity. She was given limited allowances of money in order to provide household necessities and to feed the children.
I am able to find that the wife’s substantial contributions were made more arduous by the behaviour of the husband particularised above.
The wife has made substantial and significant post separation contributions relative to those of the husband. She has had the sole care, responsibility and financial responsibility for the four children of the marriage including meeting the costs of complex medical and psychological needs. The husband has remained in occupation of the former matrimonial home and had the benefit of the majority of the considerable assets of the parties.
I am satisfied it is proper to consider the property here in a holistic sense rather than in an asset-by-asset approach where the marriage was a long one and the parties’ contributions have been many and varied and where the monies from the direct financial contributions of the parties have been mixed.[23]
[23] Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17.
I accept that the husband brought a greater financial contribution initially into this relationship. Full Courts have subsequently, however, observed that the significance of an initial contribution of property by one spouse may be impacted in weight considerations by later contributions of the other spouse even though the latter’s do not outstrip those contributions of the former. The Full Court in Pierce & Pierce[24] assisted in how to deal with the weight given to initial contributions by moving away from the previously understood notion of initial contributions being “eroded” by later contributions to there being a question of weight to be attached, dependent upon circumstance, to those initial contributions. That is, the use made of particular initial, contribution assets is worthy of consideration.
[24] (1999) FLC 92-844; [1998] FamCA 74.
More recently, the Full Court in Jabour & Jabour (supra) alerted trial judges to the dangers of effectively “quarantining” property brought into a relationship from the rubric of all other contributions made by the parties subsequently that is, an initial contribution must be seen in the light of the totality of contributions but, of course, including the use to which such initial property contribution was put.
The wife argues for a consideration in her favour on contributions by reason of those contributions being made more arduous by the husband’s behaviour during the relationship and as particularised above. I accept the wife’s evidence as to those particulars. There is no direct evidence that the husband’s behaviour has impacted on the value of the property pool as, for instance, in the form of wastage of property. Specifically, the wife argues that her contributions should carry more weight. The Full Court in Kennon (supra) stated:[25]
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.
[25] At 84-294.
The focus, therefore, remains undoubtably, on the unchallenged evidence here, that the wife’s substantial contributions were made more arduous and onerous for her by reason of the husband’s behaviour with there being an understandable discernible impact for the wife.[26]
[26] Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46.
Importantly, this argument is not to be seen within the context of a “damages claim” with any separate or stand-alone adjustment but simply another factor to be taken into account in respect of the consideration of all contributions under s 79(4) of the Act.
The wife has made substantial and significant contributions post separation. Put simply, she has had the sole actual support of the children where those children have special needs arguably caused by the husband’s behaviour towards them and his behaviour to the wife during the course of the relationship. The wife receives no actual assistance from the husband. She has been required to move her very location of herself and the children by reason of her fears of the husband corroborated by the expert reports and particularly that of the Single Expert, Dr C, who sees the husband as being capable of lethality. Consequently, the wife’s contributions are made more onerous by removal from her familiar environment and sources of support.
Similarly, the wife has the financial responsibility for the care of the children including attending to their extra and specific medical and psychological needs. This is a significant contribution.
CONCLUSION CONTRIBUTIONS
I am satisfied that the husband made a superior initial contribution to the property of these parties as it currently stands. The marriage, however, occurred now more than 13 years ago. There has been a plethora of varied contributions by each of the parties during the course of the relationship. That relationship is a relatively lengthy one. I give weight to the wife’s contributions being made more onerous by reason of the husband’s behaviour. I consider it appropriate to give substantial weight to the wife’s post separation contributions. They are, in my experience, relatively unusual in that she has the sole actual and financial support for the children. Those children have special medical needs which come at a financial impost to the wife. She has been forced by reason of her fear of the husband to relocate and hence accrue the consequent expenses. The husband in the meantime has had the use and benefit of the considerable assets of the parties including the former matrimonial home and substantial financial resources. He has not contributed financially to the children since separation.
In all of the circumstances and on the basis of contributions, I am of the view that there should be an adjustment of 10 per cent to the wife.
SECTION 79(4)(d) – (g) AND DECTION 75(2) CONSIDERATIONS
The husband is 45 years of age. He has skills, and experience so as to allow him continued employment for many years. His employability is not hindered by the responsibilities of caring for the children.
There is no evidence of any physical or psychological diagnosis that again would impact negatively on the husband’s employability.
The wife is 31 years of age. She suffers PTSD symptoms which are ongoing and severe. She is anxious and fearful. These are all factors that will impact on her employability. She continues to experience significant and complex trauma and consequent behavioural symptoms. The Single Expert, Dr C, suggests that the wife prioritise her own well-being and mental health at least in the short term.
The husband’s income capacity is substantial. For the financial year ending 30 June 2014 he had an assessable income of $179,430.
The wife is the full-time carer of the children. Those children are still young and of primary school age. At least three of the children suffer psychological issues which can reasonably be assumed to have a nexus to the husband’s behaviour during the relationship. The wife financially supports the children without assistance. The husband’s behaviour has caused such fear in the wife that she has chosen to relocate herself and the children away from her known environment, employment, and support networks.
The wife has been required to borrow funds from family members to attend to living expenses for herself and the children since separation.
The wife is not engaged in employment. She is reliant upon Centrelink benefits. Her Financial Statement shows a significant excess of expenditure over income.
The wife’s symptoms of PTSD are likely to endure. The children are yet young and the responsibilities of the wife are likely to continue for many years.
Taking all these matters into account, I am of the view that there should be a further adjustment to the wife of 20 per cent of the property pool.
CONCLUSION AS TO PROPERTY ALTERATION
After consideration of contributions and relevant matters under s 75(2) of the Act I am comfortably persuaded that an adjustment of 80 per cent of the net property pool to the wife and 20 per cent to the husband is just and equitable and there will be orders accordingly in the terms of the wife’s application.
COSTS
Given that this matter proceeded undefended the wife’s counsel made an application for costs at the conclusion of her substantive submissions. The wife seeks costs in a quantum of $108,500 such being drawn on an indemnity basis.
Matters of costs are dealt with pursuant to s 117 of the Act where at subsection (1) is a general rule that parties to proceedings in these courts each be responsible for his or her own legal costs. That general rule is, however, subject to a discretion being enlivened in a court to make an award for costs at subsection (2) if there be “justifying circumstances”. It is well established that the term justifying circumstances is not to be read as synonymous with extraordinary circumstances. In determining whether there are justifying circumstances and what, if any, order for costs should be made then the Court is mandated to consider each of the factors at subsection (2A) of s 117.
In this matter, the Reasons above identify the husband to be in a far superior financial situation than is the wife.
Neither party is in receipt of a grant of legal aid.
The conduct of the trial procedure is an important consideration. The husband has chosen, for his own reasons, but apparently in identifying as a “Sovereign citizen”, not to fully participate in these proceedings. He has not made full, proper, or any reasonable disclosure. He has not cooperated in obtaining valuations. He has not filed responsive documents. As such, the wife has been obliged to go to extraordinary lengths to obtain evidence to support her application. She has engaged valuers at her cost and where those valuers’ work has been made more onerous by the actions or obstructions of the husband. She has been obliged to use subpoena where otherwise disclosure would have provided relevant information. She has been obliged to take this matter to a trial including the preparation for trial being unaware as to whether or not the husband would choose to participate. This is a relevant consideration.
The wife has been wholly successful in her application in obtaining the orders that she seeks in both parenting and property matters.
This is not a matter where offers of settlement would reasonably have influenced the husband given the stance he has taken in respect of the proceedings generally.
In all of those circumstances I am satisfied that the wife should have her costs.
I now consider whether the costs should be awarded on an indemnity basis. Such is normally understood as costs drawn on a solicitor/client basis rather than the more usual party/party costs but being costs that are incurred by a party other than those which transparently have been incurred unreasonably.

The ordering of costs on an indemnity basis would normally involve some “exceptional circumstance”.[27] The Full Court has held that the Court should not lightly depart from the usual order of costs being on a party/party basis. [28]
[27] Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801; (1993) 46 FCR 225; “Colgate-Palmolive”.
[28] Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116.
The Court in Colgate-Palmolive (supra) provided assistance for trial judges considering applications for orders for indemnity costs by providing some, but not comprehensive, factors that might be relevant including:
(a)where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he or she had no chance of success thereby implying ulterior motive or wilful disregard of the known facts;
(b)making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud;
(c)evidence of particular misconduct causing loss of time to the Court and to the other parties;
(d)the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contention; and
(e)an imprudent refusal of an offer of compromise.
In this matter, I am persuaded that an order for costs on an indemnity basis is proper. Those costs include substantial disbursements required for the obtaining of evidence that should otherwise have been made by disclosure from the husband. The husband’s lack of participation in this matter has required the wife to prepare the matter and take it to trial albeit ultimately undefended. The husband has thwarted the wife’s attempts to obtain evidence the husband has been uncooperative and obstructionist in the process.
In all these circumstances I am persuaded that the wife should have her costs on an indemnity basis and by way of comment the quantum sought of $108,500 seems conservative relative to applications for costs that come before this Court. There will be an order accordingly.

I certify that the preceding two hundred and thirty-six (236) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire.
Associate:
Dated: 10 April 2024

File number:	HBC 188 of 2023
Judgment of:	MCGUIRE J
Date of judgment:	10 April 2024
Catchwords:	FAMILY LAW – PARENTING – application by wife for parenting orders that husband spend no time-with or communicate with the children – serious allegations of family violence – allegations of sexual abuse – allegations of cruelty to animals in the presence of the children – orders that children live with the wife – orders that wife have sole parental responsibility for the children – orders for the personal protection of the wife and the children. FAMILY LAW – PROPERTY – application by wife for property settlement – marriage of 13 years - allegations of family violence perpetrated by the husband - Kennon v Kennon considerations – section 75(2) factors – where it is just and equitable to adjust the parties’ net property interests as to 80 per cent to the wife and 20 per cent to the husband
Legislation:	Australian Passports Act 2005 (Cth) ss 6 and 11 Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65ZA, 68B, 75, 79, 102NA and 117
Cases cited:	AJO & GRO (2005) FLC 93-218; [2005] FamCA 195 Briginshaw v Briginshaw (1938) 60 CLR 336 Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96 Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801; (1993) 46 FCR 225 Hickey & Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 In the Marriage of Weir (1993) FLC 92-338; [1992] FamCA 69 Isles & Nelissen (2021) 65 Fam LR 1; [2021] FedCFamC1F 295 Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 Jabour & Jabour (2019) FLC 93-898, [2019] FamCAFC 78 Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1 Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46 Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27 Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Pierce & Pierce (1999) FLC 92-844; [1998] FamCA 74 R v Watson; Ex parte Armstrong (1976) 136 CLR 248 Re Andrew (1996) FLC 92-692 Sedgley v Sedgley (1995) FLC 92–623 Stanford & Stanford (2012) 247 CLR 108
Division:	Division 1 First Instance
Number of paragraphs:	236
Date of hearing:	12 March 2024
Place:	Heard in Hobart, delivered in Melbourne
Counsel for the Applicant:	Mrs Di Giovanni
Solicitor for the Applicant:	Wallace Wilkinson & Webster
Solicitor for the Respondent:	Litigant in Person - No appearance
Counsel for the Independent Children's Lawyer:	Ms Ryan
Solicitor for the Independent Children's Lawyer:	Butler McIntyre & Butler

HBC 188 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS LATRELL Applicant
AND:	MR LATRELL Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	MCGUIRE J
DATE OF ORDER:	10 APRIL 2024

Ownership		Description	Value	Evidence relied upon
1.	Joint	H Street, Town J	$775,000	Affidavit of Mr R
2.	W	Motor Vehicle 5	$15,000	Purchase price – wife’s affidavit [302]
3.	H	Motor Vehicle 4	$19,780	Redbook valuation Tender Bundle page 198
4.	H	Motor Vehicle 1	$4,000	Affidavit Mr S
5.	H	Motor Vehicle 6	$1,000	Affidavit Mr S
6.	H	Motor Vehicle 2	$10,000	Affidavit Mr S
7.	H	Motor Vehicle 7	$6,500	Affidavit Mr S
8.	H	Motor Vehicle 3	$4,500	Affidavit Mr S
9.	W	Animal transport	$40,500	Wife’s affidavit [271(f)] and Financial Statement
10.	W	Bank Account	$414	Balance at 13 February 2024
11.	H	Bank Account	Not known
12.	W	Digital currency	$380	Wife’s affidavit [272] and Financial Statement
13	H	Digital currency	$11,848	Affidavit of Mr T
14.	H	Financial Resources	$364,450	Indicative sale price – to be sold
15.	H	Financial Resources	$1,204,597	Indicative sale price – to be sold
16.	Joint	Plant and equipment and tools	$50,400	Affidavit of Mr S
17.	W	Furniture	$2,000	Wife’s estimate
18.	Joint	Furniture at Town J Property (including … studio)	$35,020	Affidavit of Mr S
19.	Joint	Art Collection	$20,000	Affidavit of Mr S
Total property			$2,565,389

Liabilities
Ownership		Description	Value	Evidence Relied Upon
1.	Joint	Mortgage over Town J Property	$216,570	Wife’s Financial Statement and Tender Bundle page 279
2.	H	Contingent GST liability	$198,675	Tender Bundle page 208
3.	W	Loan from parents	$6,000	Wife’s Financial Statement
4.	Joint	Selling costs of Town J	$15,000	Estimate
5.	Joint	Selling cost of Financial Resources	$15,690	1 per cent of value when sold
Total liabilities			$451,935

Total property less liabilities
Property	$2,565,389
Liabilities	-$451,935
Total Net property	$2,113,454

Superannuation
Ownership	Name of Fund	Value
1.	Husband	Superannuation Fund 1	$71,973
Total superannuation			$71,973

Total net property including superannuation
Property	$2,113,454
Superannuation	$71,973
Total net property including superannuation	$2,185,427