Manesh & Manesh (No 4) - [2022] FedCFamC1F 681

Federal Circuit and Family Court of Australia
(DIVISION 1)
Manesh & Manesh (No 4) [2022] FedCFamC1F 681

File number(s): MLC 8955 of 2019

Judgment of: JOHNS J

Date of judgment: 9 September 2022

Catchwords:
FAMILY LAW – CHILDREN – parental responsibility – with whom the child lives – with whom the child spends time – best interests of the child – family violence – child’s views – where the child is 15 years old – where the child has not spent time with the father since separation in 2019 – where the child has no desire to spend time with the father – where the father is alleged to have committed family violence against the mother and child – where the father is alleged to have engaged in coercive controlling behaviour – order that the mother have sole parental responsibility – order that the father’s time with the child be in accordance with her wishes

FAMILY LAW – PROPERTY – final property settlement – adjustment – just and equitable – 23 year marriage – where the wife seeks to retain 60 per cent of the asset pool – where the husband seeks to retain 58 per cent of the asset pool ––where neither party brought any assets of significance into the relationship – where the parties have acquired a portfolio of investment properties during the marriage – where the husband seeks that capital gains tax be considered in valuing the investment properties – where there is no intention for any of the properties to be sold

FAMILY LAW – COSTS – previous costs orders outstanding – costs thrown away – consideration of s 117(2A) factors – where the husband’s conduct prolonged the final hearing – where the husband caused a two day adjournment during proceedings – where the wife and ICL seek costs thrown away due to the husband’s conduct

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B(1) & (2), 60CA, 60CC, 61B, 61DA, 64B, 65C, 65DAA, 69ZN, 75, 79, 102NA, 117, Division 12A, Parts VII, VIII

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Rule 6.06

Cases cited:
Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545

Chang & Su [2002] FamCA 156

Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592

Donnell & Dovey (2010) FLC 93-428

Farmer & Bramley [2000] FamCA 1615; (2000) FLC 93-060

Garrett & Garrett (1984) FLC 91-539

I & I (1995) FLC 92-625

In the marriage of G & G (1984) FLC 91-582

Jarrott & Jarrott [2012] FamCAFC 29

Kannis & Kannis (2003) FLC 93-135

Kowaliw & Kowaliw (1981) FLC 91-092

Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518

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

Monroe & Monroe [2009] FamCAFC 173

Mulvany & Lane (2009) FLC 93-404

Norbis & Norbis (1986) 161 CLR 513

Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197

Omacini & Omacini (2005) FLC 93-218

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

Rosati v Rosati (1998) FLC 92-804

Stanford & Stanford (2012) 247 CLR 108

Stone & Stone [2015] FamCAFC 18

Watson & Ling [2013] FamCA 57; (2013) FLC 93-527

Weir & Weir (1993) FLC 92-338

Vass & Vass (2015) 53 FamLR 373

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

Division: Division 1 First Instance

Number of paragraphs: 454

Date of last submission/s: 1 December 2021

Date of hearing: 16-18; 22-25 November 2021

Place: Melbourne

Counsel for the Applicant: Mr Puckey QC

Solicitor for the Applicant: Freeman Family Lawyers

Solicitor for the Respondent (16-22 November 2021): Elisa Rothschild Lawyer

Solicitor for the Respondent (22-25 November 2021): Adam Jones Solicitor

Counsel for the Independent Children's Lawyer: Mr Ham

Solicitor for the Independent Children's Lawyer: Macgregor Solicitors
ORDERS

MLC 8955 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MANESH
Applicant

AND:
MR MANESH
Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY: JOHNS J

DATE OF ORDER: 9 SEPTEMBER 2022
THE COURT ORDERS THAT:
PARENTING ORDERS
1.That the wife have sole parental responsibility for making all decisions regarding the long-term care, welfare and development of the child X born in 2007 (“the child”).
2.That the child live with the wife.
3.That the child spend time and communicate with the husband at such times and upon such conditions as she wishes.
4.That the husband be permitted to forward to the child an email no more frequently than one occasion per calendar month, subject to the following restrictions:-
(a)Any email to the child shall not exceed 100 words;
(b)The husband is restrained from making any criticism of the wife, discussing or commenting on these proceedings or any other issue in dispute in these proceedings; and
(c)The child is not required or obliged to respond to any email received from the husband or to read or open any email sent by him.

5.That for the purposes of giving effect to Order 4 hereof, within 14 days the wife forward to the husband the email address to which the husband may forward communication to the child.
6.That the husband be permitted to send a gift and/or card to the child on two occasions each calendar year.
7.That the husband be and is hereby restrained by himself, his servants or agents from contacting or attending any school attended by the child unless specifically invited to so attend such occasion in writing by the child.
8.That the wife provide a copy of these Orders to the school at which the child attends.
9.That the husband and the wife be and are hereby restrained by themselves, their servants or agents from:-
(a)Denigrating the other in the presence or hearing of the child or permitting any other person to do so; and
(b)Discussing these proceedings in the presence or hearing of the child or permitting any other person to do so.

BY CONSENT IT IS ORDERED
10.That within seven days of these Orders the husband provide to the wife the Google Drive containing all family photos.

BY THE COURT IT IS ORDERED
11.That the Independent Children's Lawyer or Counsel for the Independent Children's Lawyer meet with the child within 14 days of these Orders to explain the contents and effect of the parenting orders.
12.That to the extent Orders 3, 4, 6 and 9 of these orders are inconsistent with any Crimes Family Violence order then the contents of these orders shall prevail.
13.That the Order appointing the Independent Children's Lawyer be discharged upon the expiration of 30 days from the date of these orders.
14.That pursuant to s 65DA(2) and s 62B, 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 to 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
15.The husband within 30 days do all things and sign all documents required to transfer to the wife, at her expense, all of his right, title and interest in the real property at K Street, Suburb L and the wife thereafter indemnify the husband in respect of all liabilities associated with that property.
16.The husband pay to the wife the sum of $189,000 ("the payment") within 60 days of the date of these Orders ("the due date").
17.In the event that the husband fails to make the payment in full by the due date, interest is to accrue on the outstanding balance at the rate prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and paragraphs 18 to 21 inclusive of these Orders shall come into effect.
18.That within 7 days of the due date, the husband nominate in writing addressed to the wife's solicitor which of the real properties at M Street, Suburb N ("M Street") and O Street, Suburb P ("O Street") is to be sold to meet the payment and interest thereon ("the default sale property").
19.In the event that the husband fails to nominate a property pursuant to Order 18 hereof, the wife be at liberty to exercise the husband’s election on his behalf.
20.The husband do all acts and things and sign all documents required to transfer to the wife the default sale property to be held by her upon trust for sale.
21.The wife do all acts and things and sign all documents required to sell the default sale property, with the proceeds to be applied:
(a)First, to meet the costs of sale;
(b)Second, to meet any outstanding rates and taxes encumbering the default sale property;
(c)Third, to pay to the wife all monies due to her pursuant to these or any subsequent Orders of this Court;
(d)Fourth, the balance remaining be paid to the husband.

22.Pending receipt by the wife of the payment in full, and any interest which may become payable thereon, the husband is restrained from encumbering, selling or otherwise dealing with either of the M Street and O Street properties and is to hold his interest in each of those properties upon trust pursuant to these Orders.
23.That the wife have liberty to lodge caveats against title to the M Street and O Street properties to secure her interest therein pursuant to these Orders.
24.Pursuant to s 106A of the Family Law Act 1975 (Cth) the Registrar of this Court be and is hereby appointed to execute and give effect to any instruments required to implement the transfer of the K Street property to the wife and the sale of the default sale property in the event that the husband fails to execute such instruments within 7 days of a written request by the wife's solicitor.
25.The costs thrown away by the wife in respect of the sitting dates listed by the Court for the trial of this matter on 18 and 19 November 2021 be fixed in the sum of $15,984 and paid by the husband contemporaneously with the due date or upon settlement of the sale of the default sale property.
26.The costs thrown away by the ICL in respect of the sitting dates listed by the Court for the trial of this matter on 18 and 19 November 2021 be fixed in the sum of $3,220 and paid by the husband contemporaneously with the due date or upon settlement of the sale of the default sale property.
27.Each party otherwise retain for their sole use and benefit all other property, including superannuation interests, in their respective name or possession.
28.Any applications for costs subsequent to delivery of Judgment be dealt with on the basis of written submissions limited to 10 pages, with the party seeking costs to file and serve such submissions within 28 days of the date of these Orders and any responsive submissions (also limited to 10 pages) to be filed and served within 14 days thereafter.
29.It is certified that it was reasonable for Counsel, including Senior Counsel, to be briefed in respect of the trial of this proceeding.
30.All extant applications be otherwise 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 Manesh & Manesh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
INTRODUCTION

Ms Manesh, the wife, and Mr Manesh, the husband, seek parenting orders in respect of the care of their daughter X, aged 15 years. They also seek orders for the adjustment of their property interests pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”).
The parties shared a long marriage, spanning approximately 23 years. There are two children of the relationship, X, who is the subject of the parenting application, and Mr Q, who is aged 20 years, undertaking tertiary studies and living with the husband.
The parties were married in Country C in 1996. At the time of their marriage, the husband had recently immigrated to Australia. The wife immigrated to Australia following their marriage. It is common ground that neither the husband nor the wife had any assets of significance at the commencement of their marriage.
It is also common ground that during the course of the marriage, the parties either jointly or individually acquired five properties, including a property in Country C which the husband jointly owns with his brother.
The parties’ property is valued at in excess of $4 million. There is a dispute between the parties as to the liabilities to be taken into account when calculating the value of their interests. In particular, there is a dispute as to whether capital gains tax should be taken into account in the valuation of their interests. I will return to those issues later in the judgment.
It is also common ground between the parties that during the marriage they were both employed in the Information Technology field; the wife as a professional and the husband as a consultant.
The wife ceased work upon the birth of the parties’ first child but subsequently returned to work after approximately 22 months. Following the birth of the parties’ second child, it is the wife’s evidence that she took a further period of four years’ maternity leave before returning to full-time employment in about 2011. In 2015 the wife suffered a stroke and, save for a period of approximately 10 months, has not worked since that time.
The wife’s position is that the parties each worked to the best of their abilities in their respective roles throughout the marriage and contributed equally. The husband challenges that contention, submitting that his contributions were of greater significance than the wife; as a result, he seeks an adjustment in his favour to reflect his greater contributions.
The wife contends that she was subjected to physical and verbal abuse by the husband throughout the marriage. She also contends that the children were exposed to and affected by family violence perpetrated by the husband. As a result of her exposure to ongoing family violence, the wife’s evidence is that she suffers from post-traumatic stress disorder which has adversely impacted her ability to work. Accordingly, she seeks an adjustment pursuant to s 75(2) of the Act due to the disparity in the parties’ income-earning capacities.
In addition to those matters, the wife contends that the husband has failed to make full and frank disclosure. Throughout the relationship, the wife’s evidence is that the husband operated multiple bank accounts, both in Australia and overseas, and transferred funds between accounts. At the commencement of the trial, the wife’s position was that the husband had not accounted for funds totalling approximately $400,000 as a result of these transactions and therefore sought that those funds be added back to the pool of assets available for adjustment. Ultimately, the wife abandoned that part of her application. However, it was submitted that given the husband’s non-disclosure, there ought be an adjustment in her favour pursuant to s 75(2)(o) of the Act.
Taking into account the abovementioned factors, the wife seeks a division of the parties’ interests in her favour on a 60/40 basis.
The husband rejects the wife’s contentions. He rejects the wife’s claim that she is unable to work or that she is affected by post-traumatic stress disorder.
The husband contends that he is unemployed, that he has been unemployed since 2016, that his qualifications are outdated and that other than income from rental properties, he has no source of income. The husband seeks a 58/42 division of the pool in his favour.
As to the parenting matters, the wife seeks that she have sole parental responsibility for X and that X continue to live with her. X has spent no time with the husband since the parties’ separation in 2019. It is the wife’s case that X has been deeply affected by the family violence perpetrated by the husband against the wife and the children.
The wife relies upon the Family Reports prepared in the proceedings dated 16 September 2021 and 26 November 2019. In both reports, X provides detailed accounts of her experiences of family violence at the hands of the husband. Both reports record X as expressing the view that she does not wish to spend time with the husband.
At the commencement of the hearing, the husband sought orders that the parties have equal shared parental responsibility for X and that, following a period of gradually increasing supervised time, X live with the parties on a week-about basis. It is his position that X has been influenced by the wife, who he claims has actively sought to exclude the husband from X’s life.
By the time of closing submissions, the husband had modified his position such that he conceded that X only should spend time and communicate with him in accordance with her own wishes. Nonetheless, the husband persisted with his application for orders that he have equal shared parental responsibility and requiring X to engage in therapeutic counselling.
These are my reasons for judgment with respect to the parties’ competing applications.
THE PARTIES
The wife is aged 52. She is currently unemployed, although is trained as a professional and has had employment in this field in the past.
The husband is aged 57. He has been unemployed since 2016. Prior to that time, he was employed in a number of roles as a consultant.
The parties commenced a relationship in 1996 and were married in Country C in 1996. At that time, the husband had been living in Australia for approximately 2 years; the wife immigrated to Australia in late 1996 to commence a life with the husband.
Final separation occurred on 13 June 2019 and the parties divorced in October 2020.
BACKGROUND
This matter has a long and protracted procedural history.
Proceedings were commenced by the wife on 9 August 2019 in the Federal Circuit Court of Australia (as it then was). That Application for Final Orders sought orders relating to property and spousal maintenance; no parenting orders were sought in that application.
The husband filed a Response to Application for Final Orders on 2 October 2019 in which he sought both parenting and property orders.
The matter first came before Judge Harland on 8 October 2019. That day, interim parenting and property orders were made by consent, including that:-
·The parties attend Dr B for the preparation of a Family Report;
·The wife have sole use and occupation of the former matrimonial home at K Street, Suburb L;
·They each be restrained from encumbering, divesting, selling or reducing their interest in or dealing with any asset standing in their name;
·The husband and wife do all things and sign all documents to have released to each party the sum of $50,000.00 by way of part property settlement;
·The husband and wife each provide disclosure of specified documents to the other; and
·In the event the parties are unable to agree as to the value of any real estate owned by them within 7 days of these orders, they appoint specified valuers to value such real estate at the parties’ joint expense.

The wife filed an Amended Application for Final Orders and a Notice of Risk on 28 October 2019. In addition to the financial orders previously sought, the wife sought orders that she have sole parental responsibility, that the child live with her and spend no time with the husband.
In the Notice of Risk, the wife alleged that the husband had been abusive towards both children and detailed a number of allegations of both physical and psychological abuse perpetrated by him.
Judge Harland made further interim orders on 4 December 2019 appointing an Independent Children’s Lawyer.
By Application in a Case filed 20 December 2019, the husband sought interim orders for the child to spend time with him and the paternal grandparents during the 2019/2020 long summer holidays. The wife’s Response to that Application sought that it be dismissed and the husband spend no time with the child.
On 13 February 2020 the husband filed a Notice of Discontinuance in respect of the entirety of his Application in a Case. Judge Harland made orders giving effect to that Notice of Discontinuance on 18 February 2020.
An Application in a Case was filed by the wife on 26 March 2020 in which she sought orders for a part property settlement. No orders were sought in relation to parenting matters. In the husband’s Amended Response to Application in a Case filed 5 June 2020 he sought orders that the wife’s Application be dismissed, that the husband and child attend family therapy, orders for the preparation of a Family Report and other orders relating to parenting, property and procedural matters.
On 25 June 2020, Judge Harland made interim orders transferring the matter to the Family Court of Australia (as it then was) and an order for a partial property settlement in the sum of $120,000 to be paid to each party.
On 17 August 2020 the husband filed a further Application in a Case, being his third application for interim parenting orders. He sought orders for the provision of supervised time between himself and the child, video contact twice per week, for the parties to attend upon a Family Consultant for the preparation of a Family Report and to be informed of matters relating to the child’s schooling. On 4 September 2020, the husband filed an amended application seeking orders that the child attend upon a Child Psychologist, provision for video contact between the husband and child on the child’s birthday and various other orders relating to the appointment of a Child Psychologist.
A Senior Registrar made orders on 7 September 2020 dismissing that application. It was also ordered that the husband pay the costs of both the wife and the ICL related to that application.
A further Application in a Case was filed by the husband on 14 September 2020 in which he sought review of the decision made by the Senior Registrar. In that application, he sought orders substantially in the same terms as his previous application.
Justice Wilson heard the husband’s review application on 23 September 2020. That day, His Honour made orders that the husband have no time with the child pending determination of the proceedings.
The husband appealed that decision. He also sought an order that Justice Wilson’s determination that the husband should spend no time with the child be stayed pending determination of the appeal proceedings. The wife opposed the husband’s stay application and sought orders that he pay her costs associated with the application on an indemnity basis.
Justice Wilson made further orders on 28 October 2020 dismissing the husband’s stay application and ordering that the husband pay the wife’s costs with respect to that application on an indemnity basis.
The husband’s appeal against the orders of Wilson J was dismissed by the Full Court on 16 July 2021.
On 29 March 2021, I made orders in chambers listing the matter for a First Day Less Adversarial Hearing before me.
At that hearing on 17 May 2021, I made trial directions and listed the matter to commence on 15 November 2021. The husband was unrepresented at that hearing. I made a further order that the provisions of s 102NA(2) of the Act would apply to the final hearing.
That day, I informed the husband as to the consequences of the s 102NA order, namely that he would not be permitted to cross-examine the wife at the final hearing and that if the wife was not cross-examined, her evidence would be unchallenged. I also informed the husband that he was entitled to apply for legal representation for the hearing pursuant to the Commonwealth Scheme and that application for such assistance could be made through Victoria Legal Aid.
The final hearing commenced before me on 16 November 2021 and concluded on 25 November 2021. By consent the husband was granted leave to provide his closing submissions in writing. The husband’s closing submissions were filed on 1 December 2021.
MATERIAL RELIED UPON
The wife relied upon the following documents:-
·Outline of Case document filed 9 November 2021;
·Further Amended Initiating Application filed 15 June 2021;
·Affidavit of the wife filed 15 June 2021;
·Financial Statement of the wife filed 15 June 2021;
·Notice of Risk filed 28 October 2019;
·Affidavit of Dr H filed 15 June 2021;
·Affidavit of Mr E filed 16 June 2021;
·Affidavit of the wife filed 8 November 2021;
·Affidavit of the wife filed 3 August 2021;
·Family Report of Dr B dated 26 November 2019;
·Family Report of Ms R dated 16 September 2021; and
·Documents tendered throughout the course of hearing, labelled Exhibits W-1 – W-11.
The husband relied upon the following documents:-
·Outline of Case document filed 8 November 2021;
·Further Amended Application for Final Orders filed 15 June 2021;
·Affidavit of the wife filed 15 June 2021;
·Financial Statement of the wife filed 15 June 2021;
·Further Amended Response to Application for Final Orders filed 13 July 2021;
·Affidavit of the husband filed 13 July 2021;
·Financial Statement of the husband filed 13 July 2021;
·Affidavit of the husband filed 3 August 2021;
·Affidavit of the husband filed 20 November 2021;
·Affidavit of Mr T filed 21 November 2021;
·Family Report of Ms R dated 16 September 2021;
·Documents tendered throughout the course of hearing, labelled Exhibits H-1 – H47; and
·Closing submissions filed 1 December 2021.
The Independent Children’s Lawyer relied upon the following documents:-
·Family Report dated 16 September 2021;
·Affidavit of Dr B filed 24 July 2020; and
·Document tendered during the course of hearing, labelled Exhibit ICL-1.
THE HEARING
The trial was conducted before me over a period of seven days. That it was of such duration was in large part due to the manner in which the husband elected to conduct his case.
The Husband’s Representation
The husband elected to represent himself for much of the proceeding, notwithstanding the fact that he had access to legal representation, initially through Victoria Legal Aid, as a result of him accessing the Commonwealth Scheme available following the making of an order pursuant to s 102NA of the Act, and in the latter stages of the hearing when he engaged a private practitioner to assist him at Court until the conclusion of the evidence.
The hearing commenced before me on 16 November 2021. Prior to the commencement of the hearing, Mr J of Counsel, who was briefed to appear for the husband by the lawyer appointed pursuant to the Commonwealth Scheme, sought leave to withdraw on the basis that the husband had instructed that he wished to proceed without the assistance of Counsel.
I was informed that the husband intended to have the Solicitor appointed pursuant to the Commonwealth Scheme, Ms Rothschild, cross-examine the wife on his behalf. Otherwise, the husband proposed to undertake the remainder of the cross-examination and presentation of his case himself.
No objection was raised by the wife to the manner in which the husband proposed to conduct his case.
Whilst I cautioned the husband against representing himself, given that he had access to representation through the Commonwealth Scheme, I formed the view that it was a matter for the husband as to how he chose to conduct his case. Accordingly, leave was granted to the husband’s counsel to withdraw and the case proceeded on the basis that the husband’s solicitor would conduct the cross-examination of the wife.
The husband’s solicitor, Ms Rothschild, conducted the cross-examination of the wife. Thereafter, Ms Rothschild remained at court, observed the proceedings and provided assistance to the husband from time to time until the fourth day of the hearing.
Ms Rothschild appeared on behalf of the husband on the third day of the hearing to seek an adjournment as a result of the husband’s failure to attend Court that day due to illness.
On the fourth day of hearing, the husband attended Court with two solicitors, Ms Rothschild and Mr Jones. Ms Rothschild sought leave to withdraw from the proceedings on the basis that the husband had secured alternative representation over the intervening weekend. The husband had privately engaged a Sydney-based solicitor, Mr Jones, to represent him for the balance of the proceedings.
That day, Mr Jones confirmed that he was instructed to act on behalf of the husband, having been retained by him on the preceding Friday afternoon, following an initial conference some months earlier.
Indeed, Mr Jones filed a Notice of Address for Service on behalf of the husband on Friday, 19 November 2021 and continues to remain on the record for the husband. Notwithstanding that position, other than making an application for an adjournment, which was refused, Mr Jones played no active role in the presentation of the husband’s case. However, he was retained by the husband and remained at court observing the proceedings and providing support and advice to the husband for the fourth, fifth and sixth days of the trial. Indeed, during his oral evidence the husband stated that he and Mr Jones were staying at the same hotel whilst the trial continued to enable them to work on the husband’s case each evening.
The husband had the assistance of a lawyer present at Court, and at times appearing on his behalf, for the first six days of the hearing.
Other than the wife, the husband cross-examined all of the wife’s witnesses and the Court Child Expert. Those cross-examinations by the husband were characterised by repetitive and lengthy questions which were often not relevant to the issues in dispute. As a result, each of the cross-examinations conducted by the husband were of far greater duration than would ordinarily be anticipated.
I repeatedly had to direct the husband to focus on the issues in the case and to frame questions that were relevant to the issues in dispute. The husband routinely ignored my directions with respect to relevance, his repetitive questions and also in relation to time limits.
I was left with the impression that the husband was attempting to delay the completion of the trial. The impact of that conduct was to greatly lengthen the duration of the hearing and substantially increase the costs incurred by all parties. It was apparent that the husband lacked insight into the potential consequences of further delaying the hearing upon both the wife and X. When making his application for further time to prepare his written closing submissions, the husband stated “if I have to pay, I will pay… for the court time”.[1] That statement was demonstrative of his attitude throughout the entirety of the proceedings.
[1] Transcript of Proceedings Thursday 25 November 2021, page 14 lines 25-26.
A significant aspect of the wife’s case is her allegation that throughout the marriage, the husband engaged in conduct which was coercive and controlling of her and the children. Throughout the trial process, the husband sought to control and dictate the manner in which the trial proceeded, regularly disregarding directions made by me, persisting with argument after rulings had been made and persisting with questions to witnesses after those questions had already been disallowed. By conducting his case in that manner, he merely amplified the contentions of the wife as to his coercive and controlling behaviour.
The Proposed Consent Orders
On the second day of the hearing, I was informed by Counsel appearing for the ICL and the wife and Ms Rothschild on behalf of the husband that the parties had reached agreement with respect to the parenting issues. I was provided with a proposed Minute of Consent Order intended to finalise all parenting issues between the parties. As I was to pronounce orders, the husband, through his Solicitor, Ms Rothschild, sought a further parenting order regarding the provision of the child’s school reports to him. At the request of the parties, I stood the matter down to allow further discussion with respect to that issue.
Upon the resumption of the hearing, I was informed by Counsel for the ICL that there was no longer consent to the proposed parenting orders.
No objection was raised by any party to the matter continuing before me. At the time of the presentation of the Minute, the husband was represented by Ms Rothschild.
As noted below, the hearing was adjourned for two days due to the husband’s failure to attend Court the following day. Upon the resumption of the hearing, the husband was represented by his newly appointed lawyer, Mr Jones, who sought an adjournment of the hearing to enable him to retain Counsel and adduce further evidence. At the time that application was made, the husband’s lawyer confirmed his understanding that the Court had been informed of an agreement in relation to parenting issues.
The husband’s adjournment application was refused and the matter continued without objection before me in relation to both parenting and property, albeit by conclusion of the hearing, the parenting issues requiring determination were limited to the allocation of parental responsibility, whether the child and parties should engage in therapeutic counselling and whether the husband ought be permitted to attend upon and communicate with the child’s school and health providers.
The Husband’s Adjournment Applications
The day following the presentation of the Minute, being the third day of hearing, the husband caused an email to be sent to my Associate attaching a medical certificate from a Dr S (Exhibit H-4) which provided as follows:-
This is to certify that on Thursday 18^th November 2021, I examined [Mr Manesh] and in my opinion, for the period Thursday, 18 November 2021 to Friday, 19 November 2021 inclusive, he will be unfit due to a severe blinding headache.
That morning the husband’s then solicitor, Ms Rothschild, made an oral application for adjournment of the hearing until Monday 22 November 2021, relying upon Dr S’s medical certificate.
Given the husband’s absence, it was reluctantly conceded by the wife and the ICL that the matter ought be adjourned. Upon hearing submissions, I made orders adjourning the matter and requiring the husband to obtain a report from Dr S particularising:-
(a)The nature and timing of the husband’s examination [that] day;
(b)The husband’s reasons and symptoms which led him to seek medical advice;
(c)The diagnosis and treatment prescribed; and
(d)The husband’s capacity to either attend court to participate remotely to give instructions to his solicitor in light of the diagnosis.
The costs thrown away of the wife and Independent Children’s Lawyer were reserved, and it was noted that Mr E, witness for the wife, had attended court for a period of 3 hours that day for the purpose of being cross-examined by the husband.
Upon resumption of the hearing on Monday 22 November 2021, Ms Rothschild withdrew and the husband’s newly appointed solicitor made an oral application for a further adjournment of the hearing for a period of two weeks to enable the husband to retain Counsel and adduce further evidence.
In addition to the adjournment application, the husband sought leave to rely upon three further affidavits, being:-
·An affidavit of the husband responding to the evidence of Mr E, Forensic Accountant;
·An affidavit of Mr T, Accountant, regarding alleged Capital Gains Tax liabilities; and
·An affidavit of Mr G, a Country C Property Valuer.
The husband’s application for an adjournment was opposed by both the wife and the Independent Children’s Lawyer.
There was no opposition to the husband’s reliance upon his own affidavit and that of Mr T. Accordingly, I granted leave for the husband to rely upon those affidavits.
The only affidavit objected to was that of the husband’s proposed Country C Property Valuer, Mr G, who was only retained by the husband after the commencement of the hearing. I will address that issue later in the judgment.
Upon hearing submissions, I refused the husband’s application for an adjournment and delivered ex tempore reasons for judgment with respect to those matters.[2] Otherwise, the matter proceeded. Although the husband’s lawyer, Mr Jones, made the adjournment application, the husband conducted the balance of the hearing on his own behalf with the support of Mr Jones, who observed the hearing and assisted the husband from the body of the court.
[2] Manesh & Manesh (No 2) [2021] FedCFamC1F 292
The Final Day of Hearing
On the seventh and final day of hearing, 25 November 2021, the husband sought leave to provide written closing submissions. Counsel for the ICL and the wife each proposed that they provide oral closing submissions and the husband file written closing submissions, submitting that it would be necessary to impose clear restrictions upon such in light of the way the husband had conducted his case. Upon hearing submissions as to the timing of the filing of the husband’s written submissions, I ordered that they be filed by 4pm on 1 December 2021.
Following that ruling, the husband made a further oral application to recall the Family Report writer for further cross-examination. That application was opposed. The husband produced a list of questions he proposed to put to the Court Child Expert (Exhibit H-29). That list disclosed no issues not already covered in the husband’s earlier cross-examination which would likely assist me in the determination of the parenting dispute. Given that the husband had cross-examined the Court Child Expert for approximately 1 ½ hours the previous day and had ample opportunity to challenge her evidence, the application to recall that witness was refused.
ORDERS SOUGHT
As a result of the protracted final hearing, the orders sought by the parties, particularly the husband, changed on a number of occasions. On the final day of hearing, each party tendered a minute of proposed orders which outlined the specific orders sought by them.
The applicant wife seeks both parenting and property orders. The minute of proposed order tendered on the wife’s behalf (Exhibit W-10) seeks orders as follows:-
Parenting
(1)The Applicant Mother have sole parental responsibility for the child…
(2)The child live with the Applicant Mother.
(3)The child spend time and communicate with the Respondent Father in accordance with her own wishes.
(4)Within 7 days of the making of these orders the Respondent Father provide to the Applicant Mother access to the Google Drive containing all family photos.
Property
(5)The Respondent forthwith do all things and sign all documents required to transfer to the Applicant at her expense, all of his right, title and interest in the real property at K Street, Suburb L and the Applicant thereafter indemnify the Respondent in respect of all liabilities associated with that property.
(6)The Respondent pay to the Applicant the sum of $440,000 (“the payment”) within 60 days of the date of these Orders (“the due date”).
(7)In the event that the Respondent fails to make the payment in full by the due date, interest is to accrue on the outstanding balance at the rate prescribed by the FCFCOA Rules and paragraphs 8-10 of these Orders shall come into effect.
(8)The Respondent is to elect in writing addressed to the Applicant’s solicitor within 7 days of the due date which of the real properties at M Street, Suburb N (“M Street”) and O Street, Suburb P (“O Street”) is to be sold to meet the payment and interest thereon (“the default sale property”). If the Respondent fails to so elect, the Applicant shall be at liberty to exercise the Respondent’s election on his behalf.
(9)The Respondent is to do all things and sign all documents required to transfer to the Applicant the default sale property upon trust for sale.
(10)The Applicant is to do all things and sign all documents required to sell the default sale property, with the proceeds to be applied:
(a)First to meet the costs of sale;
(b)Second to meet any outstanding rates and taxes encumbering the default sale property;
(c)Third to pay to the Applicant all monies due to her pursuant to these or any subsequent Orders of this Court;
(d)Fourth to pay the balance remaining to the Respondent.
(11)Pending the receipt by the Applicant of the payment in full and any interest which may become payable thereon, the Respondent is restrained from encumbering, selling or otherwise dealing with either of the M Street and O Street properties and is to hold his interest in each of those properties upon trust pursuant to these Orders and the Applicant has liberty to lodge caveats against title to those properties to secure her interest therein pursuant to these Orders.
(12)Pursuant to s. 106A of the Family Law Act the Registrar of this Court be and is hereby appointed to execute and give effect to any instruments required to implement the transfer of the K Street property and the sale of the default sale property in the event that the Respondent fails to execute such instruments within 7 days of a written request by the Applicant’s solicitor.
(13)The costs thrown away by the Applicant in respect of the sitting dates listed by the Court for the trial of this matter on 18 and 19 November 2021 be fixed in the sum of $20,000 and paid by the Respondent contemporaneously with the due date or upon settlement of the sale of the default sale property.
(14)Each party otherwise retain for their sole use and benefit all other property, including superannuation interests, in their respective name or possession.
(15)Any applications for costs subsequent to delivery of judgment be dealt with on the basis of written submissions limited to 10 pages, with the party seeking costs to file and serve such submissions within 28 days of the date of these Orders and any responsive submissions (also limited to 10 pages) to be filed and served within 14 days thereafter.
(16)It is certified that it was reasonable for Counsel, including Senior Counsel, to be briefed in respect of the trial of this proceeding.
(17)All extant applications be otherwise dismissed.

The orders sought by the husband are detailed in his proposed minutes of order tendered (Exhibits H-18 and H-19) and are as follows:-
Minute of property orders as sought by the Husband
(1)That the Husband transfer $125,000 to the Wife within 55 days of this transfer an amount from his share of property pool.
(2)That the Husband to pay to the Wife an amount equivalent to 42% of his share of the Country C Property, within 55 days, with such payment to be made in Country C currency.
The following orders are expressed in the alternative:
(3)That the Husband to transfer his right title and interest in the property at K Street, Suburb L to the Wife within 55 days, and;
(4)That the Husband to be declared the sole owner and beneficiary of the properties at M Street, Suburb N and O Street, Suburb P subject, with the value of those assets to be determined in accordance with the Husband asserted values on the balance sheet.
Or
in the event, that the Court does not apply the CGT adjustments as asserted by the Husband, the following orders shall apply:
(a)The properties are to be sold by public auction if unable to be sold by private treaty within 3 months.
(b) In the event of a sale by auction, the real estate agent shall set the reserve price.
(c)Upon settlement of the properties, the Husband shall record a CGT event for each property sold in the financial year corresponding with the date of settlement for each property,
(5)That the Wife transfer her right title and interest in the property at U Street, Suburb P to the husband within 55 days, and
(6)The Wife pay to the Husband the sum of $176,000.
Or
(7)That the Wife transfer her right title and interest in the property at K Street to the Husband within 55 days and the Husband be declared the sole beneficial owner of the properties at Suburb L and Suburb P, and
(8)That the Husband transfer his right title and interest in the property at 1 M Street, Suburb N to the Wife within 55 days, and
(9)The Wife be declared the sole beneficial owner of the property at U Street Suburb P.
(10)The Wife to pay the Husband the sum of $112,000 within 55 days.
Minute of Parenting Orders as sought by the Husband
(1)That the Applicant Wife and Respondent Father have equal shared parental responsibility for X…
(2)That the child lives with the Applicant Wife.
(3)That forthwith upon the making of these orders, the parties including X and Mr Q if he wishes, engage in Family counselling/therapy with V Counselling in child-inclusive family therapy or another counselling agency as agreed between the parties, at the expense of the father, and for the purpose of that counselling:
(a)X may elect to engage in counselling without the father present.
(b)The Father attend any joint sessions with X until such time as X and therapist agree it is appropriate to do so.
(c)That X attend upon the counsellor on no less than once per fortnight.
(d)That the mother shall ensure X’s attendance at that counsellor in accordance with these orders.
(e)That after a period of 3 continues months of therapy or six sessions, the mother and father shall do all things required to seek an opinion from the counsellor as to whether X wishes to spend time with the father.
(4)That following the conclusion of family therapy in accordance with these orders, X spend time with the husband in accordance with her wishes.
(5)That the Applicant Wife authorise the child’s school and medical professionals to provide to the Respondent Husband any of the child’s school notices, reports, photos, or medical information, reports etc, at the expense of the Respondent Husband.
(6)That the Respondent Husband be permitted to attend any school function, interview or any other activity that parents usually attend, and to attend any important medical appointment concerning the child, with the condition the Respondent Husband keep a safe distance (e.g., 5 metres) from the Applicant Wife at all times on such occasions.
(7)The Applicant Wife and the Respondent Husband are to notify the other as soon as possible of any medical emergency, serious injury or illness involving the child.
(8)That the Applicant Wife and the Respondent refrain from denigrating each other in front of the child, nor do they permit anybody else to do so.
(9)The parents will communicate about issues concerning the children through a passworded email account, set up and maintained solely for this purpose, and email communication will be polite and respectful.
(10)That the parties encourage the child to maintain a close relationship with her elder brother…
(11)Neither parent will discuss any issues in dispute between the parents to the child or where the child can hear, nor allow another person to do so.
(12)Neither parent will question the child about the other parent’s household, their family or friends.
(13)The mother and father will ensure the child attend all extra-curricular and social activities that occur when the children are in their care.
(14)That the parties encourage the child to spend time with her elder brother regularly.
(15)That the mother attend Parenting after separation program at the earliest, but no later than when X starts to spend time on alternate week basis as in paragraph(4) above.
(16)That the mother and the father refrain from denigrating each other in front of the child, nor do they permit anybody else to do so.
Counsel for the Independent Children’s Lawyer tendered a minute of proposed order during closing submissions (Exhibit ICL-1). In that minute, the Independent Children’s Lawyer seeks parenting orders be made in the following terms:-
(1)That the mother have the sole parental responsibility for the child…
(2)That X live with the mother.
(3)That X spend time with and communicate with the father at such times and subject to such conditions as she wishes.
(4)That the father be permitted to send to X emails no more frequently than once per calendar month unless he is responding to any email from X and
(a)Any email to X shall not exceed 1000 words, and shall not include any criticism of the mother or any discussions or comment about these proceedings or any of the issues in dispute in these proceedings.
(b)X is not obliged to respond to any such email received from the father or to read or open any emails sent.
(c)Emails from the father to X shall only be send to an email address provided by the mother to the father in writing within 14 days of this order being made.
(5)The father be permitted to send a gift and/or card to X twice a year commencing in 2022.
(6)That the mother sign all documents necessary to authorise and request of any school attended by X to send to the father copies of X’s end of semester school reports.
(7)That the father be and is restrained from contacting or attending X’s school or any school events unless he has been specifically invited in writing by X.
(8)That the mother provide a copy of this order to X’s school.
(9)That within 7 days of the making of these orders the father provide to the mother the Google Drive containing all family photos.
(10)That the Independent Children’s Lawyer or Counsel for the Independent Children’s Lawyer explain the contents and effect of these parenting orders to X within 14 days of the orders being made.
(11)That to the extent that orders 3, 4, 5 and 9 hereof is inconsistent with any Crimes Family Violence order then orders 3, 4, 5 and 9 hereof shall prevail.
(12)That the order appointing the Independent Children’s Lawyer is discharged upon compliance with order 10 hereof.
(13)Usual order pursuant to sections 65DA(2) and 62B of the Family Law Act.
(14)That the father pay the sum of $3,220 to the Independent Children’s lawyer within 30 days of the making of these orders being costs thrown away as a result of the father’s adjournment of these proceeding on Thursday and Friday 18 and 19 November 2021 and in default of such payment being there be a sale (here insert a provision for the sale of real estate owned by the father to be sold in default of payment for outstanding cost orders to be paid to the mother.)
THE EVIDENCE
In determining the matter, the relevant standard of proof is the balance of probabilities. Section 140(2) of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:-
·The nature of the cause of action or defence; and
·The nature of the subject-matter of the proceeding; and
·The gravity of the matters alleged.
I have read all documents upon which the parties have relied and the exhibits that were tendered during the hearing. I have also had the benefit of observing the appearance and demeanour of the witnesses when giving their evidence in Court.
In what follows, statements of fact constitute findings of fact. In determining the matter I have had regard to all of the evidence and had the benefit of observing the appearance and the demeanour of the husband, the wife and those witnesses who were required for cross-examination. I have carefully considered the matter and in making findings to the requisite standard, I have had regard to all of the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.
The material relied upon by the parties was extensive and their trial affidavits (including exhibits) voluminous. The husband, as a self-represented litigant, sought to agitate every point. It is not possible to refer to each and every matter raised in evidence and referenced in submissions in these Reasons for Judgment. I have read and heard all of the evidence and listened to and read the submissions.
Although I may not have referred to a particular piece of evidence, it does not follow that I have not had regard to it; there were many factual disputes agitated during the trial (such as the dispute over X’s iPad in early 2019 where it is alleged the husband physically abused her) about which it is not necessary to make findings in order to determine the matter.
With respect to the parenting dispute, the Court must give effect to the principles enunciated in Division 12A of the Act. Section 69ZN of the Act sets out the principles for conducting child-related proceedings. Of particular relevance to these proceedings are:-
·The first principle, which requires that the Court consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings;
·The second principle, which requires the Court to actively direct, control and manage the conduct of the proceedings; and
·The fifth principle, which provides that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
The application of those principles was at times difficult due to the husband’s decision to represent himself, albeit with the assistance of lawyers. At the commencement and throughout the proceedings, the parties were informed as to the manner in which the trial was to proceed, the order of calling witnesses and the right which each party had to cross-examine the witnesses, subject to the limitations imposed by the s 102NA order.
The Wife
The wife gave evidence and was cross-examined on the first and second day of the hearing. She was cross-examined by the husband’s Solicitor and Counsel for the ICL.
The mother was an impressive witness, making concessions as appropriate. When giving evidence in relation to parenting issues, the wife was child-focussed and insightful as to X’s needs.
The wife’s evidence with respect to incidents of family violence perpetrated against her by the husband was compelling. The wife sets out in detail her account of incidents of family violence perpetrated by the husband against both she and the children at [98]-[107] inclusive of her trial affidavit filed 15 June 2021. The wife’s evidence in relation to each of those incidents was consistent with her trial affidavit and not shaken during cross-examination.
I found the wife’s evidence to be compelling and truthful.
The Husband
As the husband elected to represent himself, he was afforded considerable latitude in the manner in which he presented his case. During the hearing, the husband regularly talked over me, the witnesses whom he was cross-examining and Counsel appearing for the mother and the ICL. He also regularly ignored directions and rulings made by me in the course of the hearing.
When cross-examining witnesses, he was dogged, repeating questions when the responses given did not accord with his views; at every stage, it appeared that he was endeavouring to control the process to his satisfaction, irrespective of the evidence given by the witnesses or the issues relevant to the proceedings.
With respect to the evidence from the Court Child Expert as to X’s disclosures of her experience of violence perpetrated by the husband, he demonstrated little insight with respect to those matters and was fixed in his view that the wife was manipulating X and alienating her from him. The husband demonstrated little insight as to his own role in the loss of his relationship with X.
The husband gave evidence and was cross-examined on the fourth and fifth days of the hearing. During his evidence, the husband demonstrated an unwillingness or inability to make appropriate concessions.
He demonstrated little insight as to his own behaviour. For example, he did not appear to recognise or concede that he was violent and abusive towards the wife during the relationship. When confronted with evidence that would support such findings, the husband was evasive and non-responsive.
The husband was cross-examined in relation to statements made by him to the Court Child Expert for the purposes of the preparation of the Family Report dated 16 September 2021 (“the Family Report”). At [43] of the Family Report, the husband is reported to deny perpetrating family violence against the wife or the children, claiming that he was never coercive or controlling towards the wife and that there was equality in their relationship. During cross-examination, the husband confirmed those statements.
The husband was cross-examined at length in relation to the wife’s allegation that he had hit her in the face whilst she was a passenger in his motor vehicle, resulting in a Police attendance and the Police making an application for an intervention order on the wife’s behalf. The children were present in the motor vehicle during that incident, which occurred in 2008.
When questioned about this incident by the Court Child Expert, she reports at [43] of the Family Report that the husband explained “he had accidentally hit [the wife] as he tried to stop her from leaving the car”.
During cross-examination, the husband was asked as to what was the “accident” during that event. He responded that he had tried to stop the wife from leaving the car and “accidentally hit her”; he described it as a “slip of the hand”. It is common ground that the wife’s nose bled after being hit and an ambulance was called to the scene by a bystander.
The husband’s evidence was that he was attempting to restrain the wife from exiting the vehicle. However, it was also his evidence that he hit the wife’s face with the back of his hand. The husband conceded during cross-examination that he did not attempt to grab the car door handle or to pull it closed or to grab hold of the wife’s arm or her seatbelt in his effort to restrain her.
During cross-examination the husband conceded that:-
·the wife’s nose bled after he hit her;
·he pulled the car over on the side of the road after hitting the wife;
·the wife alighted the vehicle and other members of the public stopped to assist her;
·the Police were called to the scene by bystanders; and
·as a result of the incident, the Police made an application for an intervention order on behalf of the wife.
The husband’s evidence in relation to that event was unimpressive. He demonstrated a staunch unwillingness to make any concessions about the incident until pressed. Further, it was evident that he was attempting to minimise the seriousness of the event at every opportunity and justify his own behaviour. I am satisfied that the husband physically assaulted the wife on that occasion and that that behaviour occurred in the presence of the parties’ children.
The husband’s evidence in relation to the allegations that he was verbally abusive to the wife was equally unimpressive. During cross-examination, he denied the allegation contained at [113] of the wife’s trial affidavit that he was frequently abusive towards the wife, swore at her calling her “a fucking idiot” and “stinking shit”.
When cross-examined further in relation to the allegations of verbal abuse, the husband sought to avoid responding directly to the allegations and attempted to apportion blame to the wife for his conduct, stating that when there were arguments, the husband and the wife exchanged such words. Ultimately, when pressed, the husband admitted calling the wife names such as “a parasite”, “a useless idiot” and “a beggar”. Having regard to that evidence, I am satisfied that the husband verbally abused the wife as alleged by her.
It was my impression that whenever confronted with his own poor behaviour, the husband attempted to minimise that conduct and apportion responsibility for it to the wife. As a result of the manner in which he gave his evidence, I am satisfied that the husband’s evidence must be treated with caution where it conflicts with that of other witnesses.
PARENTING
LEGAL PRINCIPLES
Section 60B(1) sets out the objects of Part VII of the Act, to ensure 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.
Section 60B(2) of the Act sets out the principles underlying those objects. They 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 parties seek parenting orders as defined by s 64B of the Act. That is, they seek orders relating to:-
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c)the allocation of parental responsibility for a child; and
…
(e)the communication a child is to have with another person or other persons.
As the parents of X, each of the parties has standing to apply for such orders in accordance with the provisions of s 65C of the Act.
In deciding what parenting orders are appropriate in a particular case, the best interests of the child must be the paramount consideration (s 60CA of the Act). Section 60CC(2) and (3) of the Act sets out the primary and additional considerations to which the Court must have regard in determining what is in the child’s best interests. The Court must give greater weight to the necessity to protect the child from physical or psychological harm from being exposed to abuse, neglect or family violence (s 60CC(2A)). Otherwise, there is no requirement for the primary and additional considerations to be considered in any particular order or for any of the list of considerations to be afforded greater weight than others. Ultimately, the weight to be afforded to each of the considerations is a matter dependent upon the unique circumstances of each case.
That this is so was confirmed by the Full Court of the Family Court of Australia (as it then was) in Donnell & Dovey (2010) FLC 93-428 at [103], where it described the section 60CC considerations as:-
…a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion. Some of the signposts will lead nowhere. In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another…
As to the manner in which the Court is to take those considerations into account, May and Thackray JJ stated in Mulvany & Lane (2009) FLC 93-404 as follows:-
[76] It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by parliament as those the court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
[77] It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. While the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance…
(Emphasis in Original)
Section 61DA of the Act imposes a presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility. That presumption relates exclusively to the allocation of parental responsibility (s 61B), not the time the child spends with each parent. For the reasons set out below, I am satisfied that it is not in X’s best interests for the husband and the wife to have equal shared parental responsibility. I will make an order that the wife have sole parental responsibility for X.
As a result of my finding that the wife should have sole parental responsibility for X, the Court is not required to consider whether X spending equal time or substantial and significant time with each parent would be in her best interests and whether it is reasonably practicable to do so (s65DAA of the Act).
parenting issues
Having regard to the parties’ amended parenting proposals as detailed earlier, the issues that remain to be determined are as follows:-
·The allocation of parental responsibility;
·Should the husband be permitted to send email communication, cards or gifts to X, and if so on what basis?
·Should the husband be provided with X’s school reports?
·Should the parties and the child be required to attend counselling or therapy as proposed by the husband?
·Should the husband be permitted to attend school functions or activities parents usually attend?
EVIDENCE OF THE COURT CHILD EXPERT
Ms R was appointed as the Court Child Expert to prepare the Family Report pursuant to orders made by me on 17 May 2021.
Ms R's Curriculum Vitae is annexed to the Family Report. It discloses that she holds two degrees. She is employed as a Court Child Expert/Family Consultant in this Court. There was no challenge to her professional qualifications.
Ms R conducted interviews via Microsoft Teams with the husband, the wife, the parties’ adult son, Mr Q, and X on 9 September 2021.
In the Family Report, Ms R provides a detailed account of her interviews with both the husband and the wife. Similarly, she provides a detailed report as to her interviews, observations and assessment of X and Mr Q.
Ms R sets out her recommendations at [83]-[88] of the Family Report. In summary, those recommendations include that:-
·X remain in the wife’s primary care;
·X make her own choices with respect to the time she spends with the husband;
·The husband have the ability to communicate with X through emails and letters for the purpose of maintaining a connection;
·The wife have sole parental responsibility for X and that consideration be given to the wife informing the husband of any significant decisions with respect to X;
·The husband attend a parenting educator or therapist to assist him in engaging with X in a meaningful way; and
·X would benefit from receiving counselling to assist with any issues relating to anxiety or trauma.
Neither counsel for the ICL nor the wife required Ms R for cross-examination. The husband cross-examined Ms R for a period of approximately 1 ½ hours.
As with much of the husband’s cross-examination, many of the questions posed to Ms R had long preambles which he maintained were necessary to contextualise his questions. On many occasions throughout his cross-examination, I endeavoured to direct the husband to focus his questions to Ms R on the issues in the case, with little effect.
Ms R confirmed during cross-examination that her principal sources of information were the interviews of the parties and X. She also confirmed that she had read and considered the affidavit material filed on behalf of each of the parties as well as the documents produced under subpoena.
Ms R conceded, appropriately in my view, that her inability to conduct observations of the parties and X could be a limitation to the report. However, she noted that whilst such observations between family members can be beneficial, for X, who was, at the time of preparing that Report, aged 14 years and clearly able to express and articulate how she felt, it was not such a limitation. That was particularly so in circumstances where X had communicated to Ms R very strongly that she did not wish to spend time with the husband. Given X’s strongly expressed views and her assessment that X is a confident and mature adolescent,[3] Ms R confirmed that it was unlikely that she would have conducted observations of X with the husband, even were the restrictions imposed as a result of the global pandemic not an impediment to such observations occurring.
[3] Family Report, [54]
Ms R confirmed during the husband’s cross-examination that X articulated herself well in relation to her attitude to spending time with the husband; she confirmed that X was clear that she did not wish to spend time with him at this time. Ms R also observed that X did not say “I’m going to close the door on a relationship with my father”; rather her position was that right now, she did not wish to see him.
Ms R’s assessment of X’s response was that it demonstrated a high level of maturity. It was her view that X is currently prioritising her own needs, noting that X’s anxiety had improved and that her mental health is better since not having contact with the husband. Ms R noted that X’s responses were clear and consistent throughout the interview.
The husband also cross-examined Ms R in relation to the impact of the wife’s views on X, particularly in relation to the wife informing X of the court proceedings. Ms R confirmed that it was not appropriate for X to be involved in the court processes. She also confirmed that X was clear that whilst the wife had spoken to her regularly about the court proceedings, the wife had stopped such behaviour when asked by X to do so.
Ms R also confirmed that X informed her that she perceives the wife to be a safe, comforting, loving, very kind and understanding mother.
The husband also extensively cross-examined Ms R in relation to his proposals that he and the children engage in counselling. Ms R’s assessment was that X does not want to engage in counselling with the husband at this stage, nor does she want to have contact with him.
Whilst Ms R assessed that X would benefit from counselling to support and assist her with her anxiety, confusion and stress around the parental conflict, she did not support therapeutic counselling involving the husband.
The husband put to Ms R the proposition that there could be counselling to assist X in resolving her strong opinions of the husband. Ms R was clear in her view that counselling cannot resolve everything. The husband pressed the issue, asking whether there was benefit in counselling to enable X to confront him with her allegations of abuse and provide him with an opportunity to respond. Again, Ms R was unequivocal in her opposition to counselling of that nature stating:-
I think that doesn’t sound too child-focused to me. I think for counselling to be beneficial, it needs to be safe. She needs to be able to express herself freely, and that will obviously include talking about you and talking about her mother and her sibling, and all of those family dynamics. I don’t think that …you are in a position to then challenge what she says to the counsellor.
Ms R confirmed that when recommending counselling for X at [88] of the Family Report, she was not contemplating counselling directed at repairing the husband’s relationship with X. She confirmed that her proposal for counselling was to assist X with issues that she has around anxiety and trauma following the parties’ separation. Further, Ms R confirmed that counselling intended to assist X’s relationship with the husband is not appropriate at this time. Ms R stated that it was her view that such counselling would likely cause X to feel a higher level of stress and anxiety and might do more harm than good.
Throughout her oral evidence, I observed Ms R to be a thoughtful witness. Her responses to questions put by the husband were considered and measured. I found her assessment of X both in the Family Report and during her oral evidence to be detailed, balanced and helpful.
The observations and recommendations made by Ms R in the Family Report were not shaken during the husband’s cross-examination. Ms R’s evidence was cogent and helpful and I accept that evidence in its entirety.
SECTION 60CC CONSIDERATIONS
Primary Considerations: Section 60CC(2)
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;
Ordinarily, it is in a child’s best interests to have a meaningful relationship with both parents. The question of what constitutes a ”meaningful relationship” was considered by Brown J in Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At [26] of that judgment, Her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child.
In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405, the Full Court considered the interpretation of s 60CC(2)(a) of the Act and concluded that:-
[119] … the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents…
…
[122] In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
(Emphasis in Original)
The evidence of the Court Child Expert, which I accept, is that X is adamant in her view that she does not wish to spend time or communicate with the husband at present. Given that position, the challenge facing the Court is whether there is any benefit to X in attempting to frame orders enabling her to maintain a meaningful relationship with the husband.
Those concerns are heightened given the evidence of the Court Child Expert as to the anxiety and stress X has suffered as a result of these proceedings and the husband’s pursuit of the issues. The Court Child Expert confirmed that at this time, X needs to feel secure and safe without influence, pressure or control being exerted by the husband. I accept that evidence.
Having regard to that evidence, I am satisfied that there is little benefit to X in attempting to craft orders for her to have a meaningful relationship with the husband.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
The wife’s case is that X has been subjected to abuse and family violence at the hands of the husband. In support of those submissions, the wife relies upon the evidence of the Court Child Expert regarding disclosures made to her by X with respect to the husband’s conduct.
Whilst it was submitted on behalf of the ICL that I need not make findings as to the wife’s allegations of family violence perpetrated by the husband, it was submitted that the husband had engaged in inappropriate behaviour to which X was exposed.
The Court Child Expert reports at [58]-[59] of the Family Report as to the disclosures made to her by X in relation to the husband’s conduct. For example, she reports that X disclosed to her that “I don’t really want to see [the husband] because of the things he’s done in the past”. The Court Child Expert also records that X disclosed that the husband “would critique everything [she] did” and that the husband placed significant pressure upon her regarding academic performance. The Court Child Expert also reported that X disclosed that on one occasion the husband “carried [X] by the hair and put [X] under a cold shower” as she did not understand her homework tasks.
In addition to the allegations of violence and abuse directed to X, the Court Child Expert also reported as to X’s disclosures regarding the husband’s conduct towards the wife and Mr Q. At [62] of the Family Report, X disclosed that the husband had hit the wife on multiple occasions and that he had also hit Mr Q.
The husband was steadfast in his denial that he had perpetrated family violence against the wife and X. He maintained that X had been influenced by the wife to make those disclosures.
I have already referred to the incident in 2008 when the husband hit the wife in the face causing her nose to bleed while he was driving. Both X and Mr Q were present during that incident, which resulted in a Police attendance and an application being made on behalf of the wife by the Police for an intervention order against the husband. I am satisfied that is an incident of family violence to which X has been exposed.
As noted earlier, I am also satisfied that the husband has perpetrated verbal abuse against the wife.
It is also alleged that the husband engaged in coercive and controlling behaviour in his discipline and management of X’s behaviour. For example, it was alleged and ultimately admitted by the husband during cross-examination that he had on two occasions removed the seat from X’s bicycle so as to prevent her from riding it. He also admitted letting down the tyres on that bike on another occasion to prevent her riding it. His justification for those punishments was that X was “sometimes difficult to manage”, albeit that he denied that he had disabled X’s bicycle as a punishment for her not completing her school work.
The husband was cross-examined in relation to an email forwarded to him by X in mid-2018 (Exhibit W-6). X wrote in that email to the husband:-
why did you try and take my bike? i finished most of my papers so you shouldn’t have threatened me and tried to take my bike.
instead of living a life like this, id rather be dead.
(Emphasis in Original)
X was almost 11 at the time she sent that email to the husband. Given the statements made by X to the husband in that email, I am satisfied on the balance of probabilities that the husband did disable the bicycle as a punishment.
The husband sought to explain that email, stating that “She’s very emotional… she writes these things”.[4] As to her statement that “instead of living a life like this, [I’d] rather be dead”, the husband’s explanation was that “she’s trying to hit on the sentiment”.[5]
[4] Transcript of Proceedings from 23 November 2021, page 219 lines 1-2.
[5] Transcript of Proceedings from 23 November 2021, page 219 line 13.
My impression of the husband was that he sought to minimise and trivialise X’s response to his punishments; he displayed little insight or understanding as to X’s needs, the impact of his behaviours upon her or the gravity of her statement that she would “rather be dead”.
The husband was also cross-examined in relation to an email forwarded to him by X some three months later in late 2018 (Exhibit W-7). That email reads as follows:-
Subject: CRITICAL
This is very important so please understand and care about this as it is something that must be read carefully:
Basically,
Tomorrow, I have leadership speeches and I have to go to school. The teachers said that if I don’t go to school tomorrow then it is impossible for me to be a leader at my school EVER AGAIN IN ANYTHING which also means student voice. If you let me go to school tomorrow that will be great but if you don’t I will keep hating you and bringing this up for the rest of my life.
To be a captain or have a chance of being a captain next year, let me go to school. Tomorrow could change my whole life. Be kind just this one time to me and then you can stop me from going to school for the rest of the year.
Make your child’s future Happy, Cheerful, Bright and Joyful rather than sad, boring, regretful, miserable and depressing
PLEASE SEND ME TO SCHOOL TOMORROW[6]
(Emphasis in Original)
[6] Exhibit W-7
The husband forwarded that communication by email to the wife and Mr Q later that day stating:-
she is telling all of this as she lied and hassled me all day yesterday and today.
During cross-examination the husband conceded that, as a result of a disagreement with X, he threatened to withhold her from school the following day. The husband’s evidence was that whilst he would threaten to withhold her from school as a means of getting her to comply with his requests, he would never actually prevent her from attending school. The husband attempted to minimise the seriousness of the threat, describing it as a “casual conversation”. He also gave evidence that X thought the threat was a “casual conversation”, notwithstanding that X had sent the email to her father pleading to be permitted to attend school at 8.00pm on the Sunday evening.

The husband confirmed that the accounts held with his father in Country C were not included in the bank statements produced by him. His explanation for his failure to produce statements with respect to those accounts is that he does not operate them. The husband confirmed that he did not disclose the existence of those accounts until the preceding day.
Having regard to the disclosures made by the husband during cross-examination, I am satisfied that he has failed to make full and frank disclosure with respect to the nature and extent of savings accounts held in his name or jointly by him with his father. As a result of that non-disclosure, the Court is not in a position to calculate the full extent of his savings.
In addition to the non-disclosure of the husband’s savings accounts, the wife relies upon the husband’s failure to disclose shares held by him. The husband was cross-examined in relation to a statement forwarded to him at the former matrimonial home by PP Corporation Limited in late 2021 (Exhibit W-8). The husband confirmed that he did hold shares in PP Corporation Limited. The husband also confirmed in his oral evidence that he did not disclose shares held by him in PP Corporation Limited in his Financial Statement.
Having regard to the husband’s concessions made during cross-examination, I am satisfied that he failed to disclose his shareholding in PP Corporation Limited.
The wife also relies upon the husband’s failure to make full and frank disclosure in relation to the multiple bank accounts held by him in Australia and overseas, both in his own name and in the name of AA Company, in support of her application for an adjustment pursuant to s 75(2)(o).
In support of that contention, she relies upon the evidence of Mr E, Forensic Accountant who filed an affidavit on 15 June 2021. Annexed to Mr E’s affidavit is a report prepared by him dated 14 June 2021 in relation to his investigation of transactions between multiple bank accounts held by the husband in Australia and overseas.
At [4.3] of his report, Mr E confirms that the husband was asked to explain 51 separate bank transactions totalling $3,043,912. At [5.3] of the report, Mr E confirms that the husband’s response in relation to the majority of queries was “Interbank Transfer between own Accounts”. Only two of the questions raised elicited differing responses from the husband and further, he reported that the husband’s responses did not state to which accounts payments were made, or from where they were received. As a result, Mr E was required to conduct a tracing exercise with respect to the majority of the transactions investigated.
At [5.8] of his report, Mr E confirms that there were seven transfers made by the husband totalling $401,079.80 which could not be traced.
It was not until after the trial had commenced, and almost 6 months after receipt of Mr E’s report, that the husband attempted to respond to the issues raised by Mr E in his report. That response was contained in the affidavit of the husband filed on the Court portal on Saturday, 20 November 2021. Leave was granted to the husband to rely upon that affidavit on 22 November 2021, being the fourth-listed day of the hearing.
Mr E was cross-examined by the husband on the fourth day of the hearing. Mr E confirmed during his oral evidence that the affidavit sworn by the husband on 20 November 2021 addresses many of the issues raised by him in his report. He confirmed that he would have been assisted had the husband produced the information contained in that affidavit. He also confirmed that in order to trace the transactions, it was necessary for all account information to be supplied by the husband.
Mr E confirmed during his oral evidence that appendix VIII to his report identifies the bank transfers by the husband which could not be identified, which total approximately $401,000. Mr E confirmed that each of those transactions were clarified in the husband’s recently filed affidavit.
Mr E was also cross-examined in relation to transfers by the husband totalling approximately $20,000 to an account with the JJ Bank. In his affidavit filed 20 November 2021, the husband deposed that those funds were in fact transferred to his father. Mr E confirmed that he did not know until receipt of that affidavit that the funds had been transferred to the husband’s father.
Mr E confirmed during his oral evidence that given the number of accounts operated by the husband and the numerous and frequent transactions between those accounts, he formed the view that there may have been suspicious transactions. In his view, the sheer number and weight and continual transfer between accounts was a source of interest and concern. It was only with the production of the husband’s affidavit on 20 November 2021 that many of those issues were resolved. I accept that evidence.
Having regard to the husband’s evidence in relation to his savings and shares, as well as the evidence of Mr E with respect to the husband’s savings accounts and transactions within those accounts, coupled with the effect of the husband’s late produced affidavit regarding Mr E’s report, I am satisfied that the husband has failed to make disclosure in relation to those matters.
The impact of that non-disclosure is two-fold. Firstly, it casts a long shadow over whether the Court has been fully appraised as to the nature and extent of the husband’s interests; there is uncertainty as to whether there are other undisclosed assets that have not been taken into account in the calculation of the parties’ interests. Secondly, the wife has been put to significant expense in her endeavour to ascertain the extent and value of the parties’ interests. Had the husband responded to issues raised by the wife’s lawyer in a timely manner, the costs associated with the engagement of Mr E to analyse, trace and report upon transactions within the husband’s accounts may well have been avoided.
The husband’s evidence in relation to disclosure was unimpressive. Seemingly, it was his view that it was sufficient for him to determine which of his banking records ought to be disclosed for the purposes of these proceedings based on his assessment of whether those accounts were significant. The wife and the Court were both deprived of the opportunity of knowing the full extent of the husband’s savings and shareholding as a result of that approach. Having regard to the husband’s evidence, I am satisfied that he has failed in his obligation to make full and frank disclosure with respect to those matters.
The Full Court in Chang and Su [2002] FamCA 156 helpfully summarised the relevant authorities in relation to non-disclosure and confirmed that it is open to a Court to take a more robust approach to the adjustment of parties’ interests in circumstances where there has been non-disclosure, the effect of which has been to hamper the identification and value of the parties’ assets.
More recently, the question of non-disclosure was considered by the Full Court in Stone & Stone [2015] FamCAFC 18. There, the Full Court was required to consider a Trial Judge’s adjustment of eight percent in favour of the wife based upon s 75(2) factors. A significant aspect of that adjustment was based upon the husband’s non-disclosures, which left the Court in doubt as to whether he had undisclosed assets, financial resources or income. The Full Court there confirmed that the approach of the Trial Judge, taking into account non-disclosure as a matter relevant to s 75(2), was correct, as such non-disclosure was relevant to the determination of future income and earnings and also as to whether the husband had other assets undisclosed and undiscovered. The Full Court confirmed that the Trial Judge’s approach of providing “a hedge” against the husband having successfully concealed further assets or income was one open to him in the determination of an adjustment pursuant to s 75(2).
I am satisfied that it is appropriate to make an adjustment in favour of the wife for the husband’s non-disclosure pursuant to s 75(2)(o) of the Act. The impact of the husband’s approach to disclosure is that there is significant uncertainty as to whether he has savings and shares beyond those disclosed to the Court.
The husband also seeks an adjustment pursuant to s 75(2)(o) to take into account his retention of assets that may attract capital gains tax in the future. As noted earlier, I am not persuaded that there ought to be any adjustment in the parties’ balance sheet to take into account capital gains tax. That leaves the question of whether such liability should be taken into account when contemplating s 75(2)(o) of the Act.
There is no evidence of any intention by either party to sell the investment properties. The evidence of both parties is that they have derived income from the investment properties over many years and they have relied upon that income for their day-to-day support. Nonetheless, it is clear that the properties to be retained by the husband were acquired for investment purposes and will attract CGT in the event of their sale.
The husband’s minute of proposed orders in relation to property proposes that he pay to the wife the sum of $125,000, that proposal made on the basis that he retain the properties at M Street and O Street (albeit that the CGT on those properties be taken into account). Hence, it is evident that in making such proposal, he anticipated being in a position to raise that sum without having to realise assets.
The orders I make will require the husband to make a payment to the wife albeit greater than that proposed by him. Whilst there is some prospect that the husband may have to realise a property in order to comply with that order, it is by no means certain. Having regard to that fact, I am satisfied that in circumstances where the husband will retain investment properties which will attract CGT in the event of their sale, whilst the wife will retain the K Street property which does not attract that liability, this is a matter to be weighed in the husband’s favour in the consideration of s 75(2).
Having regard to all of the above factors, I am satisfied that the wife’s responsibility for X’s care coupled with the husband’s non-disclosure as identified above weigh more heavily in favour of the wife. As a result, I am satisfied that there ought be a 5 per cent adjustment in favour of the wife so that she will receive 55 per cent of the parties’ property and the husband 45 per cent.
CONCLUSION
The total net property pool to be divided is $4,610,859. A 55/45 division of that pool results in the wife receiving assets valued at $2,535,972 and the husband receiving assets valued at $2,074,887.
The wife seeks to retain the K Street property where she has resided with X since the parties’ separation. The husband makes varying proposals on alternative bases in relation to that property. It is his position that if I take CGT into account in the calculation the parties’ interests that the wife ought to retain K Street. However, it is his position that in the event that CGT is not taken into account, the property should be sold or alternatively, that it be transferred to him. As I have earlier indicated, I have taken CGT into account in my assessment of s 75(2)(o); but for that factor, the wife would have received a greater adjustment of the parties’ interests in her favour.
In circumstances where the wife and X have occupied K Street since the parties’ separation in 2019 and where it is common ground that the property is close to X’s school and has been her home since birth, in my view, justice and equity requires that the wife retain that property as part of her settlement.
In addition, the wife seeks to retain the U Street property which was registered in her name at the time of its purchase. The husband’s primary position is that the wife retain U Street in the event CGT is taken into account and otherwise it be sold with the other investment properties. I am satisfied that the wife ought retain that property as part of her settlement.
The wife proposes that the husband retain the investment properties registered in his name, being the properties at M Street and O Street. In addition, she proposes that the husband retain his half interest in the Country C property which is held with his brother. The husband’s primary proposal also contemplates his retention of the properties at M Street and O Street. It is only if CGT is not taken into account that he seeks that those properties be sold.
In my view, having regard to the history of ownership of those properties and given that the husband’s primary position is that he retain them, justice and equity requires that orders be made for the husband to retain those properties.
It is common ground between the parties that each shall retain their motor vehicles, savings and part-property settlement received pursuant to previous orders. In addition, the wife will retain her jewellery and the contents of the K Street property.
As a result of the above findings, the wife will retain assets valued at $2,347,081, comprising of K Street ($1,400,000), U Street ($625,000), savings ($2,503), Motor Vehicle 2 ($7,200), jewellery ($5,500), part-property payment ($170,000) and the add-back ($136,878). In order to achieve an adjustment of 55 per cent in her favour, which entitles her to a settlement in the sum of $2,535,972, the husband will be required to pay her the sum of $189,000.
The husband will retain assets valued at $2,263,778, comprising of M Street ($950,000), O Street ($655,000), his half-interest in the Country C property ($379,778), savings ($105,000), Honda motor vehicle ($4,000) and part-property settlement ($170,000).
I am satisfied that orders in those terms are just and equitable.
costs
At the commencement of the trial, there were two outstanding costs orders made against the husband which had not been satisfied, those being orders made on 7 September 2020 ($2,580) and 28 October 2020 ($14,440). The husband’s liability under those orders totals $17,020.
The wife and the ICL seek orders for costs thrown away as a result of the husband’s failure to attend court on the third and fourth-listed days of the hearing. The wife seeks costs fixed in the sum of $20,000. That sum is calculated on the basis of the costs thrown away for Senior Counsel in the sum of $7,122 per day, being the amount allowed for Senior Counsel under the Rules, as well as her Solicitors’ costs for the first day, in the sum of $2,000. Further, the wife seeks costs thrown away in relation to witness expenses for the attendance of Mr E on the third day of the hearing in the sum of $900.
The ICL seeks costs thrown away for 18 and 19 November 2021, fixed in the sum of $3,220.
Legal Principles
The question of costs is governed by s 117(1) of the Act which provides:-
Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
That is, the general rule in proceedings under the Act is that, subject to the provisions of s 117(2), the parties to the proceedings shall bear their own costs of the proceedings.
Section 117(2) of the Act provides that if the Court is of the opinion that there are circumstances that justify it doing so, the Court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs as the Court considers just.
Section 117(2A) of the Act provides that in considering what order (if any) should be made under subsection (2), the Court shall have regard to:-
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
Costs are not awarded as punishment of the unsuccessful party, but rather are compensatory in the sense that they are awarded to ameliorate the expense of the successful party as a result of having been required to participate in the legal proceedings.
The discretion in s 117 of the Act is broad and the relevant factors in s 117(2A) are not to be read in a restrictive way; any one of those factors may found an order for costs, but all factors must be taken into account and balanced (I and I (1995) FLC 92-625).
The wife and the ICL rely upon the conduct of the husband in support of their applications for costs.
I have addressed the parties’ financial circumstances earlier in the Judgment.
Neither the husband nor the wife are in receipt of Legal Aid. The ICL is funded by Victoria Legal Aid.
The wife and the ICL submit that the husband’s conduct warrants an order for costs and, in particular, they rely upon the husband’s failure to attend at court on the third-listed day of the hearing.
The husband did not attend that day as a result of him suffering what was described by the Medical Practitioner upon whom he attended as a “severe blinding headache”. As a result of the certificate produced by that Doctor, the proceedings were adjourned to Monday 22 November 2021.
Notwithstanding the husband’s asserted medical condition, over the period of that adjournment the husband undertook the following steps in the preparation of his case:-
·instructed new lawyers in Sydney, who filed a Notice of Address for Service on 19 November 2021 (being the day after the hearing was adjourned);
·instructed an Accountant, Mr T, to prepare a report and affidavit in relation to capital gains tax liabilities;
·engaged a Property Valuer in Country C, Mr G, to prepare a report as to the value of the husband’s half-interest in the Country C property; and
·instructed his lawyer in Sydney to draw an affidavit on his behalf in response to the affidavit of the Forensic Accountant, Mr E.
Although I made orders on 18 November 2021 requiring the husband to file an affidavit from Dr S particularising the nature and timing of the husband’s examination that day, the husband’s symptoms, the diagnosis and treatment prescribed and the husband’s capacity to attend court and instruct lawyers either personally or remotely, the husband adduced no evidence in compliance with that order.
I am satisfied that the husband’s conduct demonstrates a complete disregard of the court process and orders. It is apparent that the husband’s alleged illness was not an impediment to him taking the steps he perceived necessary to advance his case.
Accordingly, I am satisfied having regard to those matters that an order for costs in favour of the wife and the ICL is warranted.
As to the quantum sought by the wife, I will allow the costs of her Senior Counsel for 2 days and her solicitor for 5 hours at $168 per hour, a total of $840. I will also allow for the cost of her professional witness, Mr E in the sum of $900. Accordingly, I will order that the husband pay the wife’s costs fixed in the sum of $15,984. That sum, together with other outstanding costs orders should be paid at the time the husband effects payments pursuant to the property orders.

Further I will order that the husband pay the ICL’s costs for the two days, fixed in the sum of $3,220.

I certify that the preceding four hundred and fifty-four (454) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns.
Associate:
Dated: 9 September 2022

File number(s):	MLC 8955 of 2019
Judgment of:	JOHNS J
Date of judgment:	9 September 2022
Catchwords:	FAMILY LAW – CHILDREN – parental responsibility – with whom the child lives – with whom the child spends time – best interests of the child – family violence – child’s views – where the child is 15 years old – where the child has not spent time with the father since separation in 2019 – where the child has no desire to spend time with the father – where the father is alleged to have committed family violence against the mother and child – where the father is alleged to have engaged in coercive controlling behaviour – order that the mother have sole parental responsibility – order that the father’s time with the child be in accordance with her wishes FAMILY LAW – PROPERTY – final property settlement – adjustment – just and equitable – 23 year marriage – where the wife seeks to retain 60 per cent of the asset pool – where the husband seeks to retain 58 per cent of the asset pool ––where neither party brought any assets of significance into the relationship – where the parties have acquired a portfolio of investment properties during the marriage – where the husband seeks that capital gains tax be considered in valuing the investment properties – where there is no intention for any of the properties to be sold FAMILY LAW – COSTS – previous costs orders outstanding – costs thrown away – consideration of s 117(2A) factors – where the husband’s conduct prolonged the final hearing – where the husband caused a two day adjournment during proceedings – where the wife and ICL seek costs thrown away due to the husband’s conduct
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B(1) & (2), 60CA, 60CC, 61B, 61DA, 64B, 65C, 65DAA, 69ZN, 75, 79, 102NA, 117, Division 12A, Parts VII, VIII Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Rule 6.06
Cases cited:	Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 Chang & Su [2002] FamCA 156 Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592 Donnell & Dovey (2010) FLC 93-428 Farmer & Bramley [2000] FamCA 1615; (2000) FLC 93-060 Garrett & Garrett (1984) FLC 91-539 I & I (1995) FLC 92-625 In the marriage of G & G (1984) FLC 91-582 Jarrott & Jarrott [2012] FamCAFC 29 Kannis & Kannis (2003) FLC 93-135 Kowaliw & Kowaliw (1981) FLC 91-092 Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 Monroe & Monroe [2009] FamCAFC 173 Mulvany & Lane (2009) FLC 93-404 Norbis & Norbis (1986) 161 CLR 513 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 Omacini & Omacini (2005) FLC 93-218 R v Watson; Ex parte Armstrong (1976) 136 CLR 248 Rosati v Rosati (1998) FLC 92-804 Stanford & Stanford (2012) 247 CLR 108 Stone & Stone [2015] FamCAFC 18 Watson & Ling [2013] FamCA 57; (2013) FLC 93-527 Weir & Weir (1993) FLC 92-338 Vass & Vass (2015) 53 FamLR 373 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Division:	Division 1 First Instance
Number of paragraphs:	454
Date of last submission/s:	1 December 2021
Date of hearing:	16-18; 22-25 November 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Puckey QC
Solicitor for the Applicant:	Freeman Family Lawyers
Solicitor for the Respondent (16-22 November 2021):	Elisa Rothschild Lawyer
Solicitor for the Respondent (22-25 November 2021):	Adam Jones Solicitor
Counsel for the Independent Children's Lawyer:	Mr Ham
Solicitor for the Independent Children's Lawyer:	Macgregor Solicitors

MLC 8955 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS MANESH Applicant
AND:	MR MANESH Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JOHNS J
DATE OF ORDER:	9 SEPTEMBER 2022