Minos & Minos - [2024] FedCFamC2F 1821

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Minos & Minos [2024] FedCFamC2F 1821

File number(s): PAC 7009 of 2022

Judgment of: JUDGE OBRADOVIC

Date of judgment: 18 December 2024

Catchwords:
FAMILY LAW – PARENTING – Where the respondent unilaterally relocated to City B from Sydney with the children – Where the respondent currently resides in City B with the children and the applicant resides in Sydney – Where neither party is willing to move closer to the other – Where the children have close and loving relationships with each party – Where many minor matters dominate the parties’ evidence – Where the parties view each other negatively – Where the parties have both behaved poorly – Need for self-awareness and impact of behaviours – No unacceptable risk of harm or family violence

FAMILY LAW – PROPERTY – Overall contributions equal – Future needs adjustment – Only one asset of significance being the former matrimonial home which is held in the applicant’s sole name – Where one party is to retain the home and one party is to receive a lump sum payment

Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AB, 60CC, 60CG, 61C, 61D, 61DAA, 64C, 69ZT, 75, 79

Family Law Amendment Act 2023 (Cth)

Cases cited:

Bevan & Bevan [2013] FamCAFC 116

Blandford & Esmore [2022] FedCFamC1A 67

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Carter & Wilson [2023] FedCFamC1A 9; (2023) FLC 94-129

Chapman & Chapman [2014] FamCAFC 91

Dickons & Dickons [2012] FamCAFC 154

Illgen & Yike [2018] FamCA 17

Isles v Nelissen [2022] FedCFamC1A 97

Johnson & Page [2007] FamCA 1235

Leventis & Leventis [2024] FedCFamC1A 141

Murray v Commissioner of Police [2018] QDC 96

Ramzi & Moussa [2022] FedCFamC2F 1473

Russell & Russell [1999]FamCA1875

Scott & Danton [2014] FamCAFC 203

Stanford & Stanford [2012] HCA 52

Teal & Teal [2010] FamCAFC 120

WK v SR (1997) 22 Fam LR 592

Division: Division 2 Family Law

Number of paragraphs: 309

Date of hearing: 14-16 October 2024

Place: Parramatta

Counsel for the Applicant: Mr Givney

Solicitor for the Applicant: NSW Family Law Specialists

Counsel for the Respondent: Mr Livingstone

Solicitor for the Respondent: Lucy Urach & Associates
ORDERS

PAC 7009 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MINOS

Applicant

AND:
MS MINOS

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

18 DECEMBER 2024

THE COURT ORDERS THAT:
Parenting
1.The parties shall have joint decision-making in relation to the children X born in 2015 and Y born in 2017 (collectively ‘the children’).
2.The children shall live with the respondent.
3.The children shall spend time with the applicant as follows:
(a)During school term, each alternate weekend from after school on Friday until 5pm on Sunday;
(b)During school holidays, the first half in even numbered years with time to commence after school on the last day of school and conclude at 5pm on the middle Sunday of the school holiday period, and the second half in odd numbered years with time to commence at 5pm on the middle Sunday to 5pm on the last Sunday of the school holiday period;
(c)For Father’s Day from 5pm on Saturday preceding Father’s Day to 5pm on Father’s Day; and
(d)At all other times as agreed to between the parties in writing.

4.Notwithstanding any other order, the children shall spend time during the Christmas and Easter Holidays as agreed to between the parties in writing but failing agreement:
(a)In even numbered years:
(i)With the applicant from 5pm on Christmas Eve until 5pm on Christmas Day, and with the respondent from 5pm on Christmas Day until 5pm on Boxing Day; and
(ii)With the applicant from 5pm on Orthodox Good Friday until 5pm on Orthodox Easter Sunday.

(b)In odd numbered years:
(i)With the respondent from 5pm on Christmas Eve until 5pm on Christmas Day, and with the applicant from 5pm on Christmas Day until 5pm on Boxing Day; and
(ii)With the respondent from 5pm on Orthodox Good Friday until 5pm on Orthodox Easter Sunday.

5.Notwithstanding any other order, the children shall spend time with the respondent for Mother’s Day from 5pm on the Saturday preceding Mother’s Day to 5pm on Mother’s Day.
6.Unless otherwise agreed in writing, changeover occur:
(a)At the commencement of the children’s time with the applicant, if time commences on a school day, then at the children’s school(s) but otherwise at the respondent’s residence, with the applicant collecting the children;
(b)At the conclusion of the children’s time with the applicant at the applicant’s residence, with the respondent collecting the children;
(c)For the purposes of Order 4 and 5, at the commencement of the children’s time with the respondent, if time commences on a school day, then at the children’s school(s) but otherwise at the applicant’s residence, with the respondent collecting the children; and
(d)For the purposes of Order 4 and 5, at the conclusion of the children’s time with the respondent at the respondent’s residence, with the applicant collecting the children.

7.The children shall have video or telephone communication with the parent with whom they are not spending time each Tuesday and Thursday between 6 and 6:30pm and otherwise in accordance with the children’s wishes and at their liberty.
8.The parties shall advise each other of any change of telephone number or residential address within 7 days of such change occurring.

Property
9.Within 3 months of the date of these Orders, the applicant shall pay to the respondent the sum of $384,517.
10.The applicant is declared the sole owner and shall retain the property located and situate at C Street, Suburb D in the State of New South Wales and more particularly described in Certificate of Title Folio Identifier … (‘Suburb D property’).
11.In default of Order 9 above, the Suburb D property shall be sold:
(a)The applicant shall do all acts and things and sign all necessary documents to affect the sale of the Suburb D property at first instance by private treaty and if the property is not sold within 3 months of default, then by auction within a further period of 6 weeks.
(b)In the event the Suburb D property does not sell by auction, then the applicant shall continue to list the property for auction every 6 weeks, with a reserve price of 5% less than that which was set at auction previously, until such time as the property is sold.
(c)The proceeds of sale of the Suburb D property shall be paid in the following manner and priority:
(i)Payment of the mortgage;
(ii)Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;
(iii)Payment of the legal costs and outlays relating to the sale;
(iv)Payment to the respondent in the amount of $384,517 plus interest calculated from the date of default to date of settlement at the rate of interest pursuant to r 10.17 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 or 55% of the net proceeds of sale (being the amount after payment of (i), (ii) and (iii) above), whichever is the greater; and
(v)The balance to the applicant.

12.That unless otherwise specified and except for the purposes of enforcing payment of any money due under these or any subsequent orders:
(a)Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at this date including any jewellery, furniture, furnishings, shares and motor vehicles.
(b)Moneys standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held.
(c)Each party hereby foregoes any claims that they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance stands shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other.
(d)Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order.

13.Each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of these Orders within fourteen (14) days of being requested to do so.
14.If either party refuses or neglects to sign or execute and return a document within fourteen (14) days of a written request to do so then the Registrar of the Parramatta Registry of the Federal Circuit and Family Court of Australia is hereby appointed under Section 106A of the Family Law Act 1975 (Cth) to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC

These are the Reasons for Judgment in respect of competing parenting and property adjustment applications of the applicant Mr Minos (‘applicant’), and the respondent Ms Minos (‘respondent’).
The parties were married in 2013. They separated in August 2021.
The parties have two children together, X born in 2015 (9 years old) and Y born in 2017 (6 years old) (collectively ‘the children’). The children live with the respondent and spend time with the applicant each alternate weekend from Saturday 10am until 4pm Sunday.
The applicant moves the Court for orders that he have sole decision-making in respect of the children, that the children live with him, spend time with the respondent during school terms from after school on Friday until 3pm on Sunday each alternate weekend and for one half of the New South Wales school holiday periods.
The respondent moves the Court for orders that she have sole decision-making in respect of the children, that the children live with her and spend time with the applicant on the fourth weekend of each month from 10am on Saturday until 3pm on Sunday.
The primary asset of the parties’ relationship is a real property located at C Street in Suburb D (‘Suburb D property’). The Suburb D property has an agreed value of $1,150,000, and is subject to a mortgage. The agreed outstanding value of that mortgage was $466,684 at the time of hearing.
Each of the parties have superannuation, their own motor vehicles, and cash in bank across numerous bank accounts. The respondent also has a car loan in her name, which the parties agree has $27,467 owing.
The parties were not, however, in agreement as to the value of the asset pool, such disagreement arising mainly in respect of a notional addback.
The applicant sought property orders that he pay the sum of $241,961 to the respondent within 60 days, that he retain the Suburb D property in his sole name, and a superannuation split of $24,813 in his favour from the respondent’s superannuation fund.
The respondent sought property orders that the applicant pay her the sum of $455,000 within 28 days, that the applicant retain the matrimonial home in his sole name, that she retain Motor Vehicle 1, and that she transfer Motor Vehicle 2 to the applicant.
EVIDENCE BEFORE THE COURT
Documents relied upon
The applicant relied on the following documents:
(a)Outline of Case document filed 10 October 2024;
(b)Further Amended Initiating Application filed 14 May 2024;
(c)Affidavit of Mr Minos filed 14 August 2024 (sans the annexures and following objections);
(d)Financial Statement filed 14 August 2024; and
(e)Family Report of Ms E (‘Ms E’) dated 2 April 2024.
The respondent relied on the following documents:
(a)Outline of Case document filed 10 October 2024;
(b)Affidavit of Ms Minos filed 15 August 2024 (sans the annexures);
(c)Affidavit of Mr F (‘maternal grandfather’) filed 15 August 2024;
(d)Affidavit of Ms G (‘maternal grandmother’) filed 15 August 2024;
(e)Financial Statement filed 14 August 2024; and
(f)Family Report of Ms E dated 2 April 2024.
The parties also handed up a balance sheet on 16 October 2024, being the final day of hearing, albeit an agreed joint balance sheet was filed on 9 October 2024. It is the figures from the agreed joint balance sheet filed on 9 October 2024 which have been utilised in these reasons.
Exhibits
The following documents were exhibits in the proceedings:
(a)Exhibit 1 being the photo of X in oversized jumper.
(b)Exhibit 2 being the letter dated 22 March 2024 from H Law Firm to Lucy Urach & Associates Pty Ltd.
(c)Exhibit 3 being the letter from the mother’s solicitors to the father’s solicitors dated 28 March 2024.
(d)Exhibit 4 being photographs of two large bags packed by the children for their overnight stay with the father on 12 August 2023.
(e)Exhibit 5 being tender bundle of documents relied upon by the applicant husband as identified in the index to that tender bundle.
(f)Exhibit 6 being two photographs of used soft drink and beer cans.
(g)Exhibit 7 being memorandum from J Centre in relation to attendances by the parties and the respondent alone to J Centre dated 16 January 2023.
(h)Exhibit 8 being bundle of text messages of various dates between the parties.
(i)Exhibit 9 being letter from Dr K dated 5 December 2023.
(j)Exhibit 10 being two letters, one dated 16 January 2023 and the other dated 18 January 2024, issued by Dr L in relation to the mother’s health.
(k)Exhibit 11 being tender bundle of documents relied upon by the respondent wife as identified in the index to the tender bundle, as follows:
(i)Past Medical History and Progress Notes for Applicant father 9 August 2021 to 17 May 2023;
(ii)Letter from Dr L dated 16 January 2023;
(iii)Letter from Dr L dated 18 January 2024;
(iv)Clinical Notes dated 13 June 2023 to 13 June 2024;
(v)Radiologist Report of Dr M dated 6 November 2023;
(vi)MRI Report Dr N 6 November 2023;
(vii)NSW State Insurance Regulatory Authority - Certificate of Capacity dated early 2024;
(viii)NSW State Insurance Regulatory Authority - Certificate of Capacity dated mid‑2024;
(ix)NSW State Insurance Regulatory Authority - Certificate of Capacity dated mid‑2024;
(x)Statement for ANZ Access Advantage Account ending #...05 8 July 2022 to 9 September 2022;
(xi)Statement for ANZ Access Advantage Account ending #...05 9 September 2022 to 10 November 2022;
(xii)Statement for ANZ Access Advantage Account ending #...05 10 November 2022 to 10 January 2023;
(xiii)Statement for ANZ Access Advantage Account ending #...05 10 January 2023 to 10 March 2023;
(xiv)Statement for CBA Account ending #...16 1 September 2023 to 1 April 2024;
(xv)Correspondence from Ms O, HR to Mr Minos dated 14 August 2023;
(xvi)Correspondence from Ms O, HR to Mr Minos dated 14 August 2023
(xvii)Employment Separation Certificate dated mid-2023;
(xviii)Correspondence from P Company to W Company dated 29 Nov 2023;
(xix)Email correspondence from Ms O to P Company Claims from 4 December 2023 to 2 February 2024;
(xx)Redbook Valuation Certificate for Motor Vehicle 1 issued 14 September 2024; and
(xxi)Statement for Respondent's Super Fund 1 for the 2022 FY.
Witnesses
The applicant was the sole witness in his case and he was cross-examined.
The respondent was a witness in her case, as were the maternal grandfather and the maternal grandmother. All three witnesses were cross-examined.
Both parties cross-examined the Family Report writer, Ms E.
RELEVANT LEGAL PRINCIPLES
Parenting
These proceedings were heard and determined after the commencement of the Family Law Amendment Act 2023 (Cth). The children’s best interest remains the paramount consideration in respect of any parenting orders the Court makes.
Division 2 of Part VII of the Family Law Act 1975 (Cth) (‘Act’) deals with parental responsibility. Section 61C provides that each of the parents of a child has parental responsibility, subject to orders. Section 61D provides that a parenting order that deals with the allocation of parental responsibility may provide for joint or sole decision-making in relation to all or specified major long-term issues.
Parental responsibility orders may be made in favour of a parent or some other person.[1] Even if an order provides for joint decision-making, thus requiring the parties who hold parental responsibility to consult and make a genuine effort to come to a joint decision, there is no requirement for a person, before acting on a decision, to establish that the decision has been made jointly.[2]
[1] Family Law Act 1975 (Cth) s 64C (‘Act’).
[2] Act s 61DAA.
In determining what is in the children’s best interest, the Court must consider the matters set out in s.60CC(2) of the Act and, if the children are Aboriginal or Torres Strait Islander, the matters set out in s.60CC(3) of the Act.
Specifically, in respect of children who are Aboriginal or Torres Strait Islander, the Court must consider the children’s right to enjoy their Aboriginal or Torres Strait Islander culture and the likely impact any proposed parenting order will have on that right.[3]
[3] See Act s.60CC(3).
Otherwise, s.60CC(2) of the Act specifies the non-hierarchical criteria which must be considered in all cases when arriving at a conclusion as to what is in the children’s best interests:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)        the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)       the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)       anything else that is relevant to the particular circumstances of the child.
In considering what arrangements would promote the safety of the children and of each person who has the care of the children, the Court must consider any history of family violence, abuse or neglect involving the children or a person caring for the children together with any family violence order that current or has previously applied to the children, or a member of the children’s family.[4]
[4] Act s.60CC(2A).

Section 60CG of the Act further requires the Court to ensure that any parenting order it makes is consistent with any family violence order and that it does not expose a person to an unacceptable risk of family violence, but only to the extent that it is possible to do so consistently with the children’s best interest being the paramount consideration.
The issues of family violence and risk are two separate questions. It is important that they not be conflated. On the one hand, the Court may need to determine whether or not allegations of family violence are proven on the balance of probabilities, and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the allegations of family violence.[5]
[5] Isles v Nelissen [2022] FedCFamC1A 97 at [83].
While conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities.[6] The assessment of risk is still an evidence-based conclusion and is not discretionary.[7] The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not.[8] In assessing whether the risk of harm is unacceptable, the Court is not merely evaluating whether the risk will occur, but also the potential consequences of the risk being realised.[9]
[6] Isles v Nelissen [2022] FedCFamC1A 97 at [53].
[7] Isles v Nelissen [2022] FedCFamC1A 97 at [85].
[8] Isles v Nelissen [2022] FedCFamC1A 97 at [85].
[9] See for example the discussion in Johnson & Page [2007] FamCA 1235 at [62]-[74].
Property
The overall approach to the determination of an application for property adjustment orders pursuant to s.79 of the Act was set out by the High Court in Stanford & Stanford.[10] Such approach was subsequently considered by the Full Court of the then Family Court in Bevan & Bevan,[11] Chapman & Chapman,[12] and Scott & Danton.[13]
[10] [2012] HCA 52 (‘Stanford’).
[11] [2013] FamCAFC 116 (‘Bevan’).
[12] [2014] FamCAFC 91 (‘Chapman’).
[13] [2014] FamCAFC 203 (‘Scott’).
In many matters which come before this Court, the requirement of whether it is just and equitable to make any orders is readily satisfied by the fact of the parties’ separation; as there is not, and will not thereafter, be the joint use of property by the parties. It is so in these proceedings.
Once the issue of whether it is just and equitable to make any order is resolved, the Court is to then consider the contributions made by the parties as defined in ss.79(4)(a) to (c), the matters set out in ss.79(4)(d) to (g) and, in particular, the subjective considerations as to the parties by having regard to the provisions of s.75(2) in so far as they are relevant.
The Court is then to consider the justice and equity of the actual orders to be made, in the context of the Court’s obligations to make appropriate orders as provided for in s.79(1) of the Act.[14]
[14] Russell & Russell [1999] FamCA 1875; Teal & Teal [2010] FamCAFC 120.
It is necessary to make a holistic assessment of the relevant matters and the parties’ contributions, and not to undertake an accounting of scoring exercise.[15] ‘The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship’.[16]
[15] Blandford & Esmore [2022] FedCFamC1A 67 (Aldridge, Harper & Riethmuller JJ) at [14].
[16] Dickons & Dickons [2012] FamCAFC 154 at [24].
The just and equitable requirement is ‘one permeating the entire process’.[17]
[17] Bevan at [86].
Family Violence
Family violence is defined in s.4AB of the Act, to mean violent, threatening or other behaviour by a person that coerces or controls a family member of the person's family, or causes the family member to be fearful.
Examples s.4AB provides are: assault, sexual assault or other sexually abusive behaviour, stalking, repeated derogatory taunts, intentionally damaging or destroying property, intentionally causing death or injury to an animal, unreasonably denying the family member the financial autonomy that he or she would otherwise have had, unreasonably withholding financial support needed to meet the reasonable living expenses of the family member or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support, preventing the family member from making or keeping connections with his or her family, friends or culture, unlawfully depriving the family member, or any member of the family member's family, of his or her liberty. Furthermore, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
‘Abuse’ is also defined in the Act. In relation to a child it means:
(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
An assault is an example of conduct that ‘may constitute family violence’. An assault by definition, is an intentional or reckless action that causes another person to fear or apprehend immediate violence.[18] As such, if an assault, for example, is proven on the evidence, by its very nature, it will fall within the definition of family violence as one of its elements is the fear or apprehension of immediate violence.[19]
[18] Judicial Commission of New South Wales, Criminal Trial Courts Bench Book at [5-5010] citing R v Burstow; R v Ireland [1998] 1 AC 147.
[19] Judicial Commission of New South Wales, Criminal Trial Courts Bench Book at [5-5010].
Assault by spitting is recognised as a serious criminal offence.[20] It is also recognised as a tort.[21]
[20] See e.g. Murray v Commissioner of Police [2018] QDC 96 at [28].
[21] Judicial Commission of New South Wales, Civil Trials Bench Book at [5-7050].
As recently reiterated by the Full Court,[22] it is not enough if one of the behaviours identified falls within the examples given in s.4AB(2) of the Act, what is required is an analysis of how such behaviour coerces or controls a member of the person’s family or causes the family member to be fearful and a subsequent finding of it doing so. The Court there was referring to the following:[23]
The mere fact that the mother’s conduct in limiting the child’s time with the father could fall within the example provided in s 4AB(2)(i) does not, in and of itself with nothing more, condemn the conduct as being family violence as defined in s 4AB(1). Context is all important.
[22] Leventis & Leventis [2024] FedCFamC1A 141 at [15].
[23] Carter & Wilson [2023] FedCFamC1A9 at [17].
Coercive control has, with respect, rightly so, seen much airtime in recent years. While in a number of overseas jurisdictions it has been recognised as a crime for some years,[24] it is only fairly recently that it has been written into the criminal laws of some of our state jurisdictions[25] and others are still on the path to this. As noted in the National Domestic and Family Violence Bench Book:[26]
The National Principles to Address Coercive Control in Family and Domestic Violence (‘National Principles’), which were released by the Australian and state and territory governments in September 2023 recognise that coercive control is almost always an underpinning dynamic of family and domestic violence. Coercive control involves perpetrators exerting power and dominance over victim-survivors using patterns of abusive behaviour that create fear and deny liberty and autonomy. Perpetrators may use physical or non-physical abusive behaviours, or a combination of both.
[24] England and Wales in 2015; Ireland in 2018; Scotland in 2018; see generally Parliament of New South Wales, ‘Criminalising coercive control in the context of domestic and family violence: key sources, France in 2010, Many European countries have ratified the Council of Europe Convention on preventing and combating violence against women and domestic violence 2011 (‘Istanbul Convention’), in particular Article 33.
[25] In New South Wales, from 1 July 2024 and in Queensland from 6 March 2024, coercive control has been made a criminal offence. In Victoria, it is not explicitly criminalised, although it is addressed through that state’s family violence laws.
[26] ‘Coercive Control: Understanding coercive control’, (accessed 22 November 2021).
The Act, in the definition of family violence, however, uses a phrase which is slightly different. It speaks to ‘behaviour by a person that coerces or controls’. It has been noted that the two concepts of ‘coerces or controls’ are closely related, together forming an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command, in the context of conduct that was not inherently violent or threatening.[27]
[27] Carter & Wilson (2023) FLC 94-129 at [12]-[13], citing Illgen & Yike [2018] FamCA 17 and Ramzi & Moussa [2022] FedCFamC2F 1473.
The determination of what constitutes behaviour ‘that coerces or controls’ must be considered in the context in which the conduct occurred.[28]
[28] Carter & Wilson [2023] FedCFamC1A9 at [15].
It is apposite to be reminded of the wording of s 140 Evidence Act1995 (Cth):[29]
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject - matter of the proceeding; and
(c)       the gravity of the matters alleged.
[29] See s 69ZT of the Act with respect to the relevant parts of the Evidence Act 1995 (Cth) which do not apply to child-related proceedings. Chapter 4 remains applicable.
In order to be satisfied as to proof of any act, the Court must feel an actual persuasion of its occurrence or existence before it can be found:
… It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of the given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect references.[30]
[30] Briginshaw v Briginshaw (1938) 60 CLR 336 at 343, [1938] HCA 34 at [32].
Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of family violence and abuse.[31]
[31] WK v SR (1997) 22 Fam LR 592.
COMMENT ON THE EVIDENCE
The parties each make many allegations of poor and intemperate behaviour against the other. The Court understands that the purpose of these matters being deposed to in the parties’ affidavits is to seek to raise such behaviours to the level of family violence and/or to the level of unacceptable risk of harm.
Such behaviours while at times poor and ugly, are, by and large on the evidence, not family violence.[32]
[32] See s.4AB of the Act, and [34]-[45] above.
Furthermore, such behaviours, on the evidence and even where meeting the definition of family violence, do not give rise to a finding of an unacceptable risk of harm to the children.
It does the parties little credit to belittle each other in this manner and it does the process little credit for such allegations to be made without, it seems, much thought to be given as to the purpose of such evidence and a party’s case theory. Affidavits are not an opportunity to air the parties’ dirty laundry. There is no need to go into the detail of every single disagreement and bad word spoken.
The Court notes the apparent trend for evidence in affidavits in parenting proceedings to be collated from notes and diary entries of the deponent, without, it seems, a forensic examination of such evidence by the legal representatives with a discerning eye as to relevance. The mother’s affidavit is an example of this. Such drafting of affidavits is strongly discouraged. It results in longer hearing time and in more time spent in formulating and writing reasons for judgment.
CREDIT
As is its usual practice, the Court was mindful of watching the parties while each of them gave evidence and throughout the proceedings.
The applicant impressed the Court as a witness who was doing his best to tell the truth, and to recollect to the best of his ability events in the past. Despite some robust cross-examination, he remained calm. Submissions were made in respect of the applicant’s credit, which the Court by and large rejects for reasons which should be apparent from a fair reading of these Reasons for Judgment.
The respondent impressed the Court as an overly pedantic witness. She was very careful with the evidence she gave and the manner in which she answered questions, so much so that there was an air of artificiality about it.
Both parties told of events from their own vantage point and through their own subjective views. Neither party was very good at being objective, particularly when it came to the other party’s shortcomings, whether perceived or real.
FACTUAL FINDINGS
Background and Chronology
The applicant was born in 1978. He is currently 46 years old.
The respondent was born in 1983. She is currently 41 years old.
In mid-2007, the applicant purchased the Suburb D property in his sole name.
The parties met in late 2010 and commenced cohabitation in or around mid to late 2011.
In 2013, the parties married.
X was born in 2015.
Y was born in 2017.
The parties separated under the one roof in August 2021.
In November 2022, the respondent vacated the Suburb D property with the children and commenced living at the maternal grandparents’ home at R Street, Suburb S.
From November 2022, X commenced attending T School in City B.
The children spent supervised time with the applicant between late November 2022 and June 2023, after which, time was no longer supervised but was daytime only.
Y commenced primary schooling at T School in 2023.
In mid-2023, the applicant commenced a relationship with Ms U. The respondent met Ms U in 2023.
In mid-2023, the applicant suffered an injury at his work as a transport worker and commenced receiving compensation payments.
On 12 August 2023, the children commenced spending overnight time with the applicant.
In early 2024, the applicant and Ms U ended their relationship.
The Suburb D Property
As noted earlier, the applicant purchased the Suburb D property in mid-2007.
The purchase price was $285,000, and the applicant paid a $56,000 deposit and funded the balance of the purchase price by way of a mortgage from Westpac Bank.
Sometime in or around 2007, the applicant completed renovations over the home. As the applicant is a tradesperson, he did most of the work himself.
In or around 2010, the applicant installed walls, and restored and rewired the outbuilding at the Suburb D property. The applicant also installed a new kitchen.
At or around the time the parties commenced living together in the Suburb D property, they refinanced the mortgage into the parties’ joint names. The purpose of the refinance was to enable the purchase of furniture and white goods, to cover other expenses and to support their daily and future needs. The applicant was in the process of starting his own business at the time. Neither party put on any evidence as to the amount of the loan secured over the Suburb D property or the property’s value at the commencement of cohabitation.
In early 2012, the applicant and the paternal grandfather spent six months carrying out renovations on the outbuilding at the Suburb D property. The renovations included painting, electrical and plumbing overhaul, and landscaping improvements. The parties refinanced the mortgage over the Suburb D property to fund the renovations. There is no evidence as to how much the mortgage was increased by nor what its balance was at this time.
Prior to early 2015, the applicant, together with his father, completed building a playground in the front yard of the Suburb D property, which involved clearing the yard and installing play equipment.
In or around 2016, the parties again refinanced the mortgage over the Suburb D property and used the funds towards renovations, the purchase of Motor Vehicle 3 and paying off the applicant’s car loan. The parties refinanced the mortgage to borrow approximately $150,000, and the total mortgage was thereafter approximately $560,000.
Sometime in or around 2018, the parties agreed to renovate the driveway, extending it. The applicant completed the renovation with his father. The project took four months. The applicant spent five to six hours each day working on the renovations after finishing his work for the day. The respondent did not assist with the renovations.
Whilst he was off work during the COVID-19 lockdowns in 2021, the applicant repainted the inside and outside of the Suburb D property. He paid for the materials, and it took two months to complete the work.
In November 2021, the applicant made a hardship application in respect of the parties’ mortgage with ANZ Bank. By this stage the parties had already separated under the same roof.
In the week of Christmas in 2021, the parties installed built-in wardrobes at the Suburb D property. In the lead up to the installation, the respondent cleaned and emptied out the children’s rooms and her room.
Between November 2023 and January 2024, the parties were granted hardship assistance in respect of the Suburb D property mortgage. No payments were required by the ANZ Bank during that period.
Following the respondent vacating the Suburb D property in November 2022, the applicant has paid approximately $1,500 per fortnight in mortgage repayments. He has also paid approximately $1,880 in council rates annually.
Parties’ Employment, Income, Assets and Support of the Family
At the time the parties started cohabiting, the respondent was employed, earning approximately $56,000 annually. She owned Motor Vehicle 4. The respondent was setting up his business and his income was minimal.
The applicant operated his business for approximately three years. The respondent assisted by helping to manage the business website, answering phone calls and helping in the office. The business was not very profitable, and it was the respondent’s income that was by and large utilised to meet the mortgage repayments, private health insurance, rates, water, electricity, gas, groceries, assisted with the applicant’s expenses, registrations, insurances and car parts. The applicant paid himself when he could afford it and such moneys were used for the benefit of the parties and their expenses.
Between 2012 and 2015, the applicant was self-employed and enjoyed an amount of flexibility in respect of his work hours. Such flexibility allowed him to take on the responsibilities for some household tasks, particularly as the respondent was working full-time. He cleaned the house, did some laundry and the gardening. The applicant drove the respondent to and from work at least four times a week. The applicant’s mother cooked lunch and dinner for the parties.

Following X’s birth, the respondent took a period of 12 months’ maternity leave. At around this time, the applicant closed his business and commenced employment as a transport worker for five to six days per week.
At the conclusion of the respondent’s 12-month maternity leave period after X’s birth, she commenced part-time employment with a government department.
In 2016, the applicant commenced employment with W Company as a transport worker.
Following Y’s birth in 2017, the respondent took a further period of 12 months’ maternity leave.
At the conclusion of this second period of maternity leave, the respondent returned to work on a part-time basis as an allied health worker. She retained the bulk of the parenting responsibilities, taking the children to school/day-care, collecting them in the afternoon, bathing them, feeding them, playing with the children and settling them to sleep. The applicant also did some of these tasks.
On an unspecified date, the applicant purchased Motor Vehicle 2 for the respondent for $1,600. The vehicle was transported from interstate, and he spent four weeks repairing and tuning the vehicle before transferring it into the respondent’s name.
In about 2020, the respondent started participating in an extracurricular activity on Thursday nights, which included weekends. She also attended the gym on Saturday mornings for a period of a few months. While the respondent was enjoying these activities, the applicant cared for the children. However, by and large the respondent, before leaving for her activities, cooked dinner, fed, and bathed the children.
In early 2021, the respondent became a health care worker supervising, and in early 2021, she had a promotion to manager. In mid-2021, the respondent commenced working at Z Company as an allied health worker.
The parties separated, but remained living under the same roof, in August 2021.
Following separation, the respondent stopped contributing to the parties’ joint expenses apart from childcare costs, although she continued to be primarily responsible for attending to the children’s needs.
In mid-2022, the applicant sold Motor Vehicle 5 for $56,000, and the funds from the sale were deposited into his bank account with account number ending …05.
In late 2022, the applicant sold Motor Vehicle 2 for $12,000, with $4,000 paid in cash which he retained, and the remaining $8,000 paid into his bank account with account number ending …05.
As of 1 November 2022, the balance of funds in the applicant’s ANZ account with account number ending …05 was $55,454.53. The applicant agreed in cross-examination that he used those monies to pay for legal fees and other expenses associated with his family law matter. Such monies will be notionally added back to the pool.
In mid-2023, the applicant suffered an injury at his work as a transport worker and commenced receiving compensation payments. On or about mid-2023, the applicant’s employment with W Company was terminated due to unsatisfactory work performance. The applicant however, continued to receive workers compensation payments, no doubt in line with the statutory scheme.
In January 2024, the applicant withdrew some $3,565 from the parties’ joint bank account held with the Commonwealth Bank of Australia.
On 6 March 2024, the respondent transferred the balance of funds in the joint account, being $251.86, into her own account.
On 27 June 2024, the respondent purchased Motor Vehicle 1 for $33,000. To enable the purchase the respondent traded in her motor vehicle for $7,000 and the balance of the purchase price was funded by a finance company.
The parties’ income over the years varied. Despite slight disagreement between the parties’ evidence in chief as to their respective earnings over the years, the applicant made a number of concessions in cross-examination as to his income. As such, the evidence of the parties’ income was as follows:[33]
[33] Where a range of income is noted, the parties were not in agreement as to that income figure.

Applicant’s Income Respondent’s Income

Financial year ending 2012 $10,921 $56,564

Financial year ending 2013 $22,121 $59,747

Financial year ending 2014 $12,271 $66,280

Financial year ending 2015 $40,421 $65,121

Financial year ending 2016 $6,537 $40,116

Financial year ending 2017 The applicant said $81,083
The respondent said $64,149 $41,403

Financial year ending 2018 $99,148 $67,210

Financial year ending 2019 The applicant said $124,588
The respondent said $104,516 $35,516

Financial year ending 2020 The applicant said $130,009
The respondent said $107,151 The applicant said $55,908
The respondent said $60,017

Financial year ending 2021 The applicant said $135,534
The respondent said $122,921 The applicant said $76,516
The respondent said $81,420

Financial year ending 2022 The applicant said $80,886
The respondent said $80,611 $87,434

Financial year ending 2023 The respondent said $79,927 The respondent said $87,434

Following the parties’ separation, the applicant has been assessed for and has paid child support.
The discrepancies as to the parties’ evidence of income do not affect the Court’s overall assessment of contributions.
The Respondent’s Move to City B
In November 2022, the respondent travelled with the children to the City B area to attend a family event. The applicant knew of the family celebration.
While in City B, the respondent decided that she would not be returning to live in Sydney. She also decided this for the children. The respondent did not tell the applicant of her decision when she made it, nor did she consult him prior to making it.
The respondent told Ms E that relocating the children was a spontaneous decision when she realised how unhappy she was.
Nothing in the respondent’s evidence suggests that she fled the former matrimonial home, nor that she was fearful of the repercussions of her move.
In November 2022, the applicant attempted to contact the respondent and the maternal grandparents but did not receive any response. He made further enquiries with the respondent’s godmother.
In November 2022, the respondent sent the applicant a message saying ‘You know what you did and what you were going to do. It is finished’. She further attended Suburb S Police station to inform them of her intention not to return to Sydney. The applicant continued trying to text and email the respondent but to no avail. The respondent did not communicate with the applicant for about a week. The children did not have any contact with their father during this period.
Between 14 November 2022 to 29 November 2022, X did not attend school.
In November 2022, the Police conducted a welfare check on the children at the maternal grandparents’ home, at the applicant’s request. On that day, the respondent emailed the applicant confirming that she was still in City B with the children and that she wished to remain there.
On 22 November 2022, the respondent received an email from the applicant querying as to when he could speak to the children. The respondent replied seeking the applicant’s confirmation that he understood her wish to remain in City B with the children.
On 23 November 2022, the applicant emailed the respondent in the early hours of the morning, which read ‘My priority is the well-being for you and our girls. I feel at ease you staying with your parents. I look forward speaking with our girls at 10:30am today.’ The applicant sent a further email to the respondent later in the morning stating ‘When are you and the children coming back to Sydney? I do not agree to the children relocating to [City B] or changing their schools and preschool’.
On 25 November 2022, the respondent’s solicitors received a letter from the applicant’s solicitors indicating that the applicant consented to the children residing in City B with the respondent and sought to negotiate spend time arrangements. The parties thereafter continued to negotiate.
On 27 November 2022, the applicant spent time with the children for seven hours in City B, with such time supervised by the maternal grandmother. This is the first time the children spent time with the applicant after their move to City B on 11 November 2022.
The respondent told Ms E that she requested the applicant be supervised by the maternal grandmother in case he left with the children as she was fearful of not seeing them again.
From 30 November 2022, X commenced attending T School in City B.
On 10 December 2022, the respondent arranged for the collection of items from the Suburb D property for herself and the children.
The Parties and the Children After Separation
Between 27 November 2022 and the making of interim orders on 22 February 2023, the applicant saw the children on four occasions only, it appears all supervised by the maternal grandmother. Thereafter, and until April 2023, the applicant spent each alternate Saturday with the children, supervised by the maternal grandmother.
The applicant, when his time was supervised by the maternal grandmother, was respectful and accommodating, providing lunch and/or buying the maternal grandmother lunch, depending on what he had arranged to do with the children on any particular day.
These parenting proceedings were commenced by the applicant on 21 December 2022. The application included an application for interim parenting orders.
In late April 2023, the parties attended a mediation and reached an agreement pending an interim hearing. On 10 May 2023 and pursuant to Court orders made by consent, the applicant commenced spending supervised time with the children for up to four hours, supervised by AA Contact Service.
On 14 June 2023, orders were made for the children to spend unsupervised time with the applicant each alternate Saturday from 12pm to 4pm for four occasions in the City BB area and thereafter, each alternate weekend from Saturday 10am until 4pm Sunday.
On 1 July 2023, whilst spending time with the children, the applicant had taken the children to Sydney and they met Ms U.
There was thereafter correspondence between the parties’ solicitors, with the respondent claiming that the applicant had breached the orders by spending time with the children in Sydney, and the applicant claiming that he had misunderstood the orders. In late July 2023, the applicant notified the respondent via correspondence through the parties’ solicitors, that Ms U was the applicant’s new partner.
On the weekend of 29 July 2023, when she collected the children, Y was unwell and she said to the respondent ‘I wanted to call you when we were with dad but he wouldn’t let me’. The respondent took Y to the doctor and she was prescribed antibiotics.
On 12 August 2023, the children commenced spending overnight time with the applicant. The preparation for overnight stays proved to be a fertile source of conflict for the parents, as, they each managed to find fault in the other in respect of the children’s overnight bags.
The children have continued to spend time with the applicant each alternate weekend.
The children also have regular video calls with the applicant, albeit not without difficulties. The calls are for approximately 10 minutes and the respondent is usually present when the children are speaking with the applicant. Sometimes, the calls occur while the children are in the car, other times from the common areas of the respondent’s home while the children are occupied with other things, such as colouring in. The children do not take the calls with the applicant in private.
The children appear distracted, rushed, or being asked to hang up abruptly during many of the calls the applicant has with them. For example, in or around October 2023, during a video call with the children, the respondent put her finger on the camera and muted the microphone. Once the finger was lifted and microphone unmuted, the applicant heard Y say ‘No, I don’t want to. Let me talk to dad first.’
In November 2023, the respondent informed the applicant via a messaging app that Y was to have an appointment with a specialist. She then sent him a follow-up message after the appointment in December 2023, and tried to speak to him about the appointment during a video call between the children and the applicant. Y was scheduled to have an operation in early 2024, and the applicant through his solicitor requested that he be present. The applicant said that Y had said to him ‘Daddy I want you to be with me in the hospital’. The respondent declined the applicant’s request, and instead offered that he have video communication with Y, which she facilitated as well as sending him photographs. The respondent also decided that she wished to have the children’s time with the applicant on the weekend prior and post-surgery ‘suspended’. The applicant did not agree, and the children spent time with the applicant the weekend prior to Y’s surgery.
Following Y’s surgery, which the applicant was not permitted to attend, the respondent received information from the post-operative team at the hospital, that it was important for Y to recuperate at home for two weeks, and she was provided with a medical certificate that Y was unfit to attend school for two weeks. The respondent took this to mean that Y should not be spending time with the applicant.
The respondent said in her evidence ‘I received an email …[from the applicant] which essentially indicated there was still an expectation that the children (or at least X) would be made available to spend time’. The Court understands from this that the respondent is critical of the applicant for having such an expectation. Such criticism, if made, is unwarranted.
The children should have the opportunity and benefit of the applicant looking after their needs at times when they are not feeling their best or when they are ill, as well as at times when they are healthy and happy. There is no evidence to suggest that the applicant would have not acted suitably if Y required medical attention or that he was not capable of looking after her when she is sick notwithstanding the respondent’s evidence that Y returned sick after spending time with the applicant on one occasion. Just as the respondent can administer medication and ensure that the child rests, so too can the applicant.
On 17 May 2024, being the night before the children were to spend time with the applicant, X said to the respondent ‘I’m scared that we will go to Sydney and Dad will keep us and we won’t see you again…Dad is always talking about us moving back to Sydney’ and ‘Dad says he’s the boss and we have to do what he says’. Such statements demonstrate the children’s involvement and knowledge of the parental conflict.
On 18 May 2024, before changeover, the respondent claimed that the children were concerned the applicant would be critical of their clothes. The respondent also said that X said words to the effect, ‘Can you please ask Dad for him to let us call you if we want and not to hide the phones or block calls’. The respondent claimed that the children became upset at changeover as their original shopping plans with relatives had been cancelled. The respondent stated that X became increasingly upset and then refused to enter the applicant’s car. Whilst attempting to calm the children, the respondent claimed that the applicant said to her in Country CC language ‘you have ruined the children’.
On 15 June 2024, the respondent said that the children were due to spend time with the applicant, but that X was screaming, locking herself in her room and refusing to get dressed. Accordingly, the respondent was late to changeover with the children.
On 29 June 2024, the respondent claimed that X refused to get out of the car at changeover and curled herself over, trying to hide her face, and that it took 30 minutes to get X out of the car and that she kept telling the parties to ‘go away’. On the following day, the children returned to the respondent with gift bags containing clothes from the paternal grandmother.
The respondent claimed that X said to her, ‘[Grandma] said she bought us these clothes but we should take them because there was no point leaving them behind when we are only there for two hours’. The respondent said that she observed X upset by the comment, then refused to be spoken to, walked away to hide and yelled that she wanted to be left alone. The respondent appears to have considered the paternal grandmother’s actions to be inappropriate.
There is a significant volume of evidence in the respondent’s affidavit about the children’s reactions to the applicant, about their being upset with something or other that he has said, about fighting with each other after speaking to their father and similar.[34] The respondent’s way of dealing with these matters is to seek to minimise the children’s time with the applicant. She sees the applicant as a destabilising source in the children’s lives.
[34] In these reasons, the Court has only discussed some of this evidence, notwithstanding that all of it has been considered.
The apparent reluctance of one or both of the children to spend time with the applicant, is a manifestation of their involvement in the parental conflict and indeed, of the respondent’s attitude to the level of importance of the children’s relationship with the applicant.
The children attended vacation care during the school holidays at the end of 2023, and they attended vacation care during each school holiday in 2024. The children have not spent any block time with the applicant during their school holidays since their move to City B with the respondent.
On Father’s Day 2024, the children spent only a few hours with the applicant. They were late to changeover and wanted to leave early and not travel to Sydney with the applicant, as they were tired from attending the respondent’s hobby classes the night before.
During the applicant’s relationship with Ms U, she was present for most of the time that the children spent with the applicant, and she assisted him in the children’s care. She appeared to have developed a good rapport with the children, and she had been interviewed for the Family Report which was prepared in these proceedings. Following those interviews, the applicant and Ms U parted ways. Neither the applicant nor Ms U provided the children with an explanation for their break-up.
The applicant’s evidence in chief is that following his separation from Ms U, they maintained a friendship and that she continues to be a source of support for him. He was cross-examined about such assertions, and it was established that he had not had any contact with Ms U since their split. It was submitted that the applicant’s credit was adversely affected by this evidence. The Court is not concerned about the conclusion of the applicant’s relationship with Ms U. While she may have assisted him with the care of the children, he is capable of meeting their needs without her assistance. The Court does not find that the applicant attempted to mislead the Court in respect of the strength of support Ms U offered to him post their break-up.
A continuing bone of contention between the parties is the respondent’s tardiness to changeovers. She has at times been late, including when the children were to attend a birthday party in Sydney for which they were slightly late as a consequence. Both parties need to travel significant distance to make changeover, they both need to be on time. It is a show of respect to their children and the children’s relationships. The fact that the respondent is tardy to changeover is a demonstration of a lack of ability to meet the children’s needs.
After the children spent time with the applicant over the weekend of 10 to 11 August 2024, the respondent said that X told her the following:
·‘Dad said you have a problem with your brain and that you are not okay. He said you could die.’
·‘Daddy said he tried to get you to go to a doctor but you wouldn’t go.’
·‘He kept asking me who I like or love better, you or him and whether I like Sydney or [City B]. I asked him to stop and he wouldn’t.’
·‘Dad said you put milk in bottles for him and he was the one giving us milk all the time and there were bags and bags of it.’

The applicant’s discussions with the children in this manner is most inappropriate.
The Respondent’s Health and the Applicant’s Comments on that topic
In 2012, the respondent was diagnosed with a medical condition.
In 2014, the respondent developed another medical condition.
On 10 November 2022, the respondent claimed that the parties had an argument, and that the applicant said to her words to the effect ‘If you don’t take medication, or have surgery for your [medical condition], and if you’re not willing to change, don’t bother coming back.’
The applicant’s views about the respondent’s mental health, as reported in the Family Report are concerning. The Family Report writer said:
[The applicant] has concerns for [the respondent’s] mental health. He stated that she has a [medical condition] which he believes may cause psychosis and that she will experience dizziness and headaches, which could affect her when driving. [The applicant] suspects that [the respondent] has [a mental health condition] based on the research he has undertaken. He provided examples of how [the respondent] is “acting like one person one day, and then having a new friend and then acting exactly like that friend”. He stated that he is concerned that the children “will pick up these traits” and may also experience “personality identity crisis”.
The applicant has no medical training. The most he ought to be able to offer are his observations of the respondent’s behaviour, but he does a lot more. His opinion and the fact that he considered himself able to hold such an opinion are both extremely disrespectful and dismissive of the respondent.
In late 2023, the respondent underwent routine tests for her medical condition, which returned normal results.
Apart from the applicant’s opinion, which is given no weight, there is no evidence that the respondent’s parenting capacity or ability to meet the children’s needs is impacted by her health.
The Sagas
The matters noted below are prime examples of objectively minor matters gaining importance in the parties’ evidence and fuelling conflict between the parties.
The Washing of the Hair
During the Family Report interviews, the respondent told Ms E of her concern that the children’s personal boundaries were not respected by the applicant. In demonstrating her belief, the respondent told Ms E that during an overnight visit, the applicant had insisted to wash X’s hair for her despite X explaining to him that she normally washes her hair herself and had requested privacy to do so. The respondent was not asked about this issue during cross-examination, nor did she depose to it in her sworn evidence.
Ms E discussed the hair washing issue with the applicant during the family report interviews. The applicant denied washing X’s hair. Ms E then noted in her report that:
Interestingly, later he returned and acknowledged that he had in fact insisted on washing her hair and reported it had been over two weeks since it was last washed, and the water was brown with dirt.
During cross-examination, the applicant stated that during his first bout of overnight time he washed X’s hair as it ‘needed to be washed’. The applicant said that he put the shampoo in X’s hair and told her how she should scrub it in. The applicant disagreed with the proposition put to him that by washing X’s hair, he was sending a message to the children that the respondent had not been caring for them properly.
During cross-examination, the applicant said that when discussing the issue with Ms E, he simply did not remember the details straight away and only remembered them later. It was put to him during cross-examination that when with Ms E, his initial reaction was to falsely deny something he fully remembered having done. The applicant said in reply ‘I didn’t remember straight away when she asked’. When asked if his memory had improved during the Family Report interview so as to allow the applicant to remember the details concerning the hair washing, the applicant agreed.
Strong submissions were made in respect of the applicant’s credit arising out of this issue, which are not accepted.
X is still a little girl, and at the time was probably only 8 or 9 years old. There is nothing objectively wrong, inappropriate, or concerning about washing her hair.
The evidence does not lead the Court to find that the applicant deliberately lied or misled. He was asked the question by Ms E, he said no and then later during the interview remembered and corrected himself. The Court does not find that there is anything sinister or deceitful in it.
The Smart Watches
On 24 December 2022, while spending time with the children, the applicant gifted them a smart watch each. The Court understands that these watches had functionality which allowed them to be used for calling and messaging.
The respondent’s evidence about the watches is as follows:
During the drive home [X] then said to me "I want to tell you another secret but Dad told me not to tell you" The conversation was about the watches that [the applicant] initially purchased for the children on 24 December 2022. He requested the children wear the watches so he could call and message them daily. As I understand it, this device tracks the children's location and can allow a person who has an App synced to the device, to overhear conversations that are occurring via the speaker on the watch. I did not feel comfortable with the children having these watches so I had them returned to [the applicant].
The respondent, during her oral evidence, gave a different account as to why she returned the watches to the applicant. She said that the applicant had asked for them back after finding out that the children had not been wearing them.
The respondent was not willing to concede that X had used the watch to send the applicant a message saying ‘Hi dad! I love you. Goodnight!’. She said that while it is possible that X had sent the message, it was more likely that the applicant had sent the message himself while he was showing X how to use the watch.
The respondent also gave evidence, that the children were not comfortable wearing the watches, and that X in particular had complained to her about the applicant expecting to be able to communicate with the children each day via the watch. During cross-examination, the respondent said that X said ‘I don’t think I should be wearing this’, removed the watch from her wrist and gave it back to the respondent. The respondent also said that Y said ‘plus it’s too big’.
While the applicant may have spoken to the children about the watches, and had said to them that he would be able to speak to them each day, there is again, nothing sinister in this. It does not per se amount to coercion or control. The respondent would have better served the children’s needs by reassuring them and giving them emotional permission from her to have such communications with the applicant.
The Oversized Jumper
There was an occasion when X went out with some of her friends, with the respondent taking her to the venue. She wore a pair of jeans and an oversized jumper.
The respondent took a photo of X and sent it to the applicant, to show him what a good time X was having. The applicant took issue with the jumper that X was wearing. For whatever reason, whether it was because he thought it was unsafe (as he said in cross-examination) or whether it was because he thought that X looked shabby and untidy (as the respondent perceived), the applicant thought that it was his right as a father to comment upon what X was wearing. The respondent took exception to this.
Mention of this issue was made during the Family Report interviews as was the general idea that the applicant was critical of the respondent in the way that she dressed the children.
The applicant said to Ms E that he apologised to X. He also said to Ms E ‘I’m not going to let an eight-year-old tell me “What do you know? It’s my body and I can do whatever I want with it”’. During cross-examination, Ms E opined that an eight-year-old saying this was ‘fantastic’ as it says they feel safe to express their opinion with their father, and that, if X said this to the applicant, it was a positive thing.
On the evidence, the Court finds that the respondent’s reaction and attitude about this matter was an overreaction. There is no evidence as to what the applicant had actually said to X about her jumper. For an 8- or 9-year-old girl to be saying ‘I can do what I want with my body’ may be viewed as not just disrespectful towards her caregivers, but also as potentially dangerous.
The applicant’s stance at expecting the respondent to back him up is not about the jumper, it is about X being respectful to her parents. It would be surprising if the respondent considered that X speaking to one of her teachers in a similar manner was acceptable.
The Overnight Bags
As noted earlier, the parties each managed to find fault in the other in respect of the children’s overnight bags. This started as soon as the children commenced spending overnight time with the applicant in August 2023.
Firstly, the Court notes that when the children commenced spending overnight time with the applicant, they did so (and continue to do so) at their former family home in Suburb D, a home which is familiar to them, where they had grown up and which has their own familiar items. The applicant had told the respondent that he had plenty of clothing and toys for the children. The respondent told the applicant that the children had packed their own bags and had wanted to do so; items such as a favourite hairbrush, a toy, a pair of sandals and a book.
On 12 August 2023, changeover was to occur at 10am in accordance with orders. As is his usual practice, the applicant arrived slightly early. The respondent arrived just before 10am. Instead of dropping the children to the applicant, she proceeded to take them through the McDonalds’ drive through. There was then a dispute between the parents about this. Primed for conflict, they continued.
The respondent placed the children’s bags on the footpath, the applicant told her they were unnecessary and that he had bought them new items. The respondent refers in her evidence that the applicant’s ‘tone was angry and rude’. Apparently, X then looked at the respondent and according to her almost started crying and said, ‘I want to take the things I packed.’ The respondent then said to the applicant ‘the children know that you have bought things for them, but they also wanted to pack their own things and favourite toys to bring’. The respondent stated that whilst speaking to X as she got into the applicant’s car, the applicant shut the door in her face, but then opened it again after the respondent said to him in Country CC language, ‘Please don’t shut the door in my face. [X] is trying to speak to me.’ The applicant put the children’s bags in the boot.
The following fortnight when the children again spent time with the applicant on 26 August 2023, things escalated even more, and the maternal grandmother involved herself in the conflict about the children’s overnight bags. The applicant was insistent on the children not bringing any overnight bags, while the respondent was insistent on the children bringing their overnight bags. Words were said. Voices were raised. The children were crying. The parties were unshaken in their insistence about who was right. The bags were left behind. The children did not suffer for not having a few particular items with them that weekend.
While the Court does not consider such matters to be of any importance, that is, the bags themselves and what the children did or did not bring, the fact that the parties have even at final hearing managed to continue their dispute about these matters is quite astounding. So is the length of evidence that was taken up in the parties’ respective affidavits and cross-examination about these matters.
The children have since stopped packing overnight bags for their time with the applicant, but instead now take only one or two items with them.
The Note on the Fridge
The respondent claimed that she was mocked by the applicant and paternal grandparents during the relationship. An example of the mockery alleged by the respondent concerned notes that the paternal grandmother would write in Country CC language and stick to the fridge door. The English translation of some of those notes included the following:
·‘Your degree is just a piece of paper. Your education shows from your behaviour.’
·‘Suggested for you. Your degrees on your walls do not make you a better person. They do not teach you manners and politeness, they do not ensure you are a decent human being.’
The applicant was cross-examined on the notes, and particularly the latter note mentioned above. During cross-examination, the applicant stated that the first time he saw the latter note was upon reading the respondent’s trial affidavit, and that he had never seen it on the paternal grandmother’s fridge. The applicant also said that upon asking the paternal grandmother about the note, the applicant understood that she had written it ‘for herself, for her self-esteem, not for anyone else’, noting that the paternal grandmother only finished grade four of schooling. The applicant also denied the proposition put to him, that the paternal grandmother was trying to mock or attack the respondent by writing the notes. The Court does not find on balance, that the notes on the fridge were put there to mock the applicant.
The respondent also claimed that during the relationship, the applicant and paternal grandparents would mock her with comments directed at her like ‘Oh, I forgot you’re highly educated people’ and ‘your degrees mean nothing, just like the written quotes on my parents’ fridge’. The latter comment alleged by the respondent was put to the applicant during cross-examination, and the applicant denied saying those words. The applicant denied mocking the respondent during the relationship.
The applicant acknowledged to Ms E that he would call the respondent selfish for not prioritising the family over work and that he felt due to the amount she worked the respondent was ‘falling behind or there was no structure at home… and I was always picking up the pieces’.
The respondent holds a tertiary education, and has been employed as a professional throughout the parties’ relationship and remains so employed. She was for years, the primary income earner in the family. Notwithstanding such achievements, the evidence establishes that the applicant was critical of the respondent for being ‘selfish’ and not looking after the family and home in a manner that he envisaged. Such views are not only sexist but disrespectful towards the respondent.
Allegations of Drunkenness, Mental Health Issues, Poor Behaviour and Family Violence
What the Applicant Alleges
The applicant alleged to Ms E that the respondent was the perpetrator of family violence and described it as being characterised by physical abuse, isolation, verbal abuse, emotional abuse, and property damage. The applicant gave examples of the respondent hitting him with a closed fist, punching walls, throwing and smashing items, and slamming doors which would scare the children and damage the house.
Ms E noted the respondent denied the applicant’s allegations, though acknowledged she slammed doors during arguments and that she was yelling at the applicant towards the end of the relationship, however denied denigrating him, stating she needed to yell to be heard.
The applicant alleges that sometime in or around 2021, during an argument between the parties, the respondent kicked him on his lower back with the heel of her foot.
The applicant claimed that sometime in or around early 2022, the respondent came home in a bad mood, swearing at individuals from work and then at the respondent. The applicant said that he tried to initiate a conversation with the respondent that then turned into an argument. The applicant alleged that the respondent picked up an object and threw it at a portrait and that both the object and portrait smashed into pieces. The applicant claimed that he cleaned up the mess and that the respondent stormed out of the house. The applicant also claimed that Y later asked him why the respondent was mad. During cross-examination, the respondent said that she picked up the object, but did not throw it. In her oral evidence the respondent added that the picture fell and that she did not hit the picture, and that the disagreement stopped when the picture fell.
The applicant claimed that, in the five years prior to the respondent vacating the home:
(1)The respondent spat in his face and that such incidents took place in the presence of the children. The applicant said that often the respondent spat after the applicant would say ‘the children are being robbed of their childhood’. During cross-examination, the respondent said that she did spit in the applicant’s face once and believes that her spit hit the applicant on the face but denied this occurring more than once. Spitting in the face of someone is a derogatory statement. It shows a complete lack of regard and disgust of the person. It would likely evoke feelings of shame. The concession by the respondent that she spat in the applicant’s face on the one occasion was put in context by the respondent. While gross and derogatory conduct, it was an isolated incident. It was situational family violence.
(2)The applicant said that the respondent hit him on the arms with a closed fist seven to ten times every two months. The applicant said that the children witnessed this occurring, and that X tearily told the respondent to stop on several occasions. During cross-examination, the respondent denied hitting the applicant.
(3)The applicant observed the respondent punch the walls in the home with a clenched fist. The applicant claimed the children were often present during those instances. He said that where the children did not witness the respondent punching the walls, he would patch and repaint the walls so that they did not see the damage and ask questions. During cross-examination, the allegations were simply put to the respondent who denied them. The applicant was not cross-examined at all about the allegations. The punching of walls with such force as to puncture the plaster would no doubt have required significant strength by the respondent, it would likely have resulted in grazed, or perhaps bruised and bloodied knuckles and possible injuries requiring medical attention. For the respondent to have lost control so much that she is punching holes in walls, or to be so reckless as to not care about her behaviour and its effect on the children, it would also have likely been very frightening for the children and the applicant. There is no evidence of any such matters. On balance, the Court does not find these allegations proven.
(4)The applicant alleges that the respondent would slam doors in the home at least five times per week, causing cracks in the walls. On balance, the allegation is not proven.
What the Respondent Alleges
The respondent described the allegations of violence to Ms E as being characterised by physical abuse, isolation, verbal abuse, emotional abuse, sexual abuse, intimidation, property damage, and other controlling behaviours and gave various examples including the applicant controlling where and how she worked, throwing a bottle, criticising her cooking, and feeling she was under surveillance by the applicant. Ms E noted the applicant denied much of the respondent’s account of family violence and that he described how he felt provoked by the respondent in many incidences.
The respondent alleges that the applicant was physically abusive during the relationship. The respondent claimed that the following instances of physical abuse occurred during the relationship:
(a)The applicant pushed furniture towards her, causing one of the children to push her away.
(b)The applicant pushed her head into the pillows after becoming angry.
(c)After criticizing the respondent and how she would care for the children, the applicant pressed a shoe against her face.
(d)The applicant wet her twice with a hose after becoming angry during a conversation.

Each of the parents has the capacity to meet the children’s needs, despite them being slightly differently attuned to those needs.
The applicant described himself to Ms E as a parent as having ‘different morals’, that ‘I like to be how my parents bought me up, where you have to respect your elders, but at the same time I want them to be themselves’, and that it is important to raise children to not give into peer pressure and to feel that they can be themselves. The applicant viewed it important that children are eating healthy, have routine and structure, and that they ‘respect themselves all the time, even their dress codes. I want them to dress appropriately all the time, be clean’. The applicant identified his strengths as his willingness to try his hardest to attend to the children’s needs and not spoiling them, and he could not identify any weaknesses for himself. The applicant described the respondent’s strength as her ability to teach the children sign language, and that her weakness is not supporting him in front of the children.
Ms E opined that some of the applicant’s parenting beliefs and values may have been informed by his cultural background and vary from what is experienced as ‘the norm’ in the Australian culture. During cross-examination, Ms E clarified her description of the applicant as ‘traditional’ was him being very set in his way but also open to education, and that ‘some of the views around how children should behave and should present themselves seemed more traditional’. In relation to her drawing attention to the applicant saying ‘I like to be how my parents bought me up, where you have to respect your elders, but at the same time I want them to be themselves’, Ms E stated that she was not being critical of the applicant and was just describing his parenting style.
Ms E noted the respondent’s belief that the children need psychological and emotional safety, that the children want a relationship with the applicant, that the children had not questioned her about why they moved to City B, and that the children would be ‘distraught’ if they had to live with the applicant. The respondent described herself as ‘a very happy and playful mum, and equally fair’ and that she tried to be child focused and to always follow their lead. The respondent described her strengths as prioritising the children, being strong for them, and protecting them, and that her weaknesses are when the children see her upset or cranky. The respondent described the applicant’s strengths as a parent as ‘as a male figure…he is a good handy man’ and that his weaknesses are that he cannot support the children’s emotional or psychological needs. Ms E observed that the respondent believed she was the more capable parent and able to make holistic decisions for the children, including for all their psychological, emotional, and physical needs.
What is sad for the children is that the respondent does not trust that the applicant can meet the children’s needs. This has translated into the respondent viewing most, if not all, transactions between the children and the applicant through a negative lens, or rather through a lens focused on negative outcomes, and the respondent’s application to curtain the children’s time with the applicant, with the end result being an impairment of the children’s relationship with the applicant.
The children do not have emotional permission from the respondent to have a meaningful relationship with the applicant, nor do they have the emotional permission from other members of the respondent’s extended family, whose household the children share, to have such a relationship. The evidence of the respondent’s father was telling in this regard: the children’s time with the applicant is never discussed at the dinner table, nor is the applicant ever mentioned, particularly not with any positive connotation.
Such lack of emotional permission is also reflected in the manner the respondent facilitates the children’s video calls with the applicant. On the evidence, there is no objective reason as to why the children would be uncomfortable with speaking to the applicant without the respondent being present or in close proximity.
On the evidence, the Court does not find that there was anything inappropriate about the applicant gifting the children the smartwatches in December 2022, nor that this was done with a view to controlling what the children were doing or keeping an eye on them and/or the respondent. If the children were uncomfortable about being gifted the watches in the manner the respondent suggests, such apprehension was not well founded. The fact that the respondent had not disavowed the children of such views, speaks to a pattern of behaviour which is either by design or default, a means of discouraging the children from trusting the applicant and from having a meaningful relationship with the applicant.
The cross-examination by the respondent’s counsel of the applicant was focused on minor infractions. It showed a rigid attitude and approach by the respondent, which was mirrored in the way she answered questions in the witness box.
Benefit of relationships
Ms E noted that both X and Y spoke positively of both parents and that they had positive views of the parents.
The children need to have the opportunity to experience their father as a capable parent, whether or not he lives up to the respondent’s standard. This includes having the applicant look after their needs when they are grumpy, tired, sick or just plain bad tempered. They are not at risk in his care, and certainly not at an unacceptable risk. The same way that there are at times raised voices in the respondent’s household, they may experience a raised voice or anger from the applicant. This is not dangerous per se.
The children will no doubt, be bored from time to time, whether in the applicant’s home or the respondent’s home. This is perfectly acceptable and is not a reason for the children not to spend time with that particular parent. What is unacceptable is an expectation that children will be entertained or kept busy with activities all the time.
Both parents cared for the children, albeit not always in equal measure, while the parents and the children all lived under the one roof. The respondent then moved into the house of her parents, where a full house ensues. The applicant’s evidence is that, at the time of the Family Report interviews, he was assisted by Ms U during the days and nights the children spent time with him. In those circumstances, to criticise the applicant and to raise concerns as the Family Report writer does about his capacity to parent without assistance is not warranted and not an available criticism on the evidence. In any event, since February 2024 when the children have spent time with the applicant, he has not been assisted by any other adult.
Any other relevant matters
Ms E was asked about the orders sought by the applicant as at the time of hearing, and agreed that she did not think it appropriate for the children to live with the applicant or that the applicant have sole parental responsibility if the children did not live with him.
The applicant moves the Court for orders that the children spend time with him during school holidays. The respondent makes no such proposal. Indeed, to date and since the respondent moved the children from Sydney, they have not spent any block time with the applicant during school holidays at all. The evidence is that they attend vacation care. It is not explained why the children do not get the benefit of extended periods of time with the applicant. Objectively, the applicant does not pose a risk to the children.
The applicant continues to live in the home where the children grew up, in the area they lived consistently and until the respondent’s unilateral decision to change their residence. There is familiarity there for them. There is the applicant and the extended paternal family nearby. There is also no doubt suitable vacation care if needed.
During cross-examination, when Ms E was asked about the circumstance where the respondent does not give the children privacy when talking to the applicant, the issues surrounding the bags at changeover, a general negative attitude towards the applicant in the respondent’s household, and the respondent’s proposal for the children to spend time with the applicant twelve times a year, Ms E agreed to the proposition that these indicate the respondent did not see a benefit to the children having a relationship with the applicant and she stated that it would impact on the children’s identity as they grow up.
The distance and travel time between the parents’ home is a barrier to more frequent time during the week, and already it is starting to show strains in their relationships given the limited time the children have spent with the applicant.
The children are relatively young, and while they are both starting to form strong personalities and starting to grow into mindful tweens, they ought to be given the opportunity of having a meaningful relationship with their father.
The respondent’s proposal is simply not conducive to that. The fact that she does not see her proposal as adversely affecting the applicant’s relationship with the children is very concerning.
Likewise, the fact that the applicant does not see his proposal for the children’s returning to live in Sydney as adversely affecting the respondent’s relationship with the children is also very concerning.
The Court has come to the conclusion that neither parents’ application is child focused.
It is in the children’s best interest that they spend meaningful and substantial time with each of their parents as much as can be facilitated given the distance between the parties’ homes and noting that neither party is willing to move.
Parental Responsibility
Parental responsibility is something each parent has, subject to any orders.[35] An order for parental responsibility is a parenting order and therefore subject to the child’s best-interest consideration being paramount.
[35] Act s.61C.
The respondent described to Ms E the relationship with the applicant as ‘very volatile and fragile’, and that she is unable to co-parent with the applicant. Ms E set out the issues as identified by the respondent as being the parents’ inability to communicate, the applicant’s stubbornness and inability to consider the respondent’s opinion, their differences in views on parenting with the respondent describing the applicant as ‘not very child focused’, and that the applicant denigrates her to the children. Ms E noted that the respondent managed the conflict by walking away, asking for time out, and minimising the communication.
The applicant also described a poor co-parenting relationship to Ms E and his commitment to attempting to co-parent. Ms E stated that the applicant felt the separation had been impactful on the children, and that the key issues identified by the applicant were that he felt unsupported by the respondent in parenting approaches, the lack of communication, and the respondent controlling all decisions regarding the children. Ms E noted that the applicant managed the conflict by reducing contact with the respondent and communicating via text message or email.
It is not appropriate, simply because one of the parents has abducted the responsibility, and there is significantly increased resultant conflict, that the recalcitrant parent should then get the benefit of an order for sole decision making. The reality of the situation must be considered, the dynamics in play must be taken into account, and the particular circumstances of the case must be at the forefront of any decision about parental responsibility.
The Court has read carefully Ms E’s reasoning in respect of her recommendation for parental responsibility and the Court notes its earlier findings. While it may be correct that parental conflict continues to exist, on the evidence it cannot be characterised as consistently ‘high level’. The evidence does not disclose a poor history of the parents being able to make any decisions together, indeed until the respondent’s unilateral decision to change the children’s residence, and the significant conflict that arose from that, there is no evidence of the parents not being able to make any decisions together, lest of all a poor history of it.
In the circumstances, it is in the children’s best interest that their parents both have parental responsibility and that they jointly make decisions concerning the long-term care, welfare and development of the children. This will ensure that the children are aware that each of their parents has a say in what is best for them, and that the parents understand that it is their responsibility to consult about what might be best for the children and to make a genuine effort to come to a joint decision.
Conclusion as to Parenting Orders
Neither party proposes to move from the area where they each reside, that is the applicant intends to continue living in the Sydney area and the respondent intends to continue living in the City B area.
The children have extended family in both areas, and X has attended school both in Sydney and in City B. However, both children have been attending the same school in City B, where X commenced in late 2022, and Y in 2023.
The children have close and loving relationships with each of their parents. While each of the parents has certain deficits in respect of their parenting capacity, the respondent has been the children’s primary care giver for most of their lives and certainly post separation.
The parties can both do better at encouraging and supporting the other as a parent.
In all of the circumstances, it is in the children’s best interest that they live with the respondent and spend time with the applicant each alternate weekend and during school holidays.
If either party moves closer to the other such that the distance allows time to be spent by the children with the applicant during the week, this would then be appropriate. However, neither party is proposing to move.
It is clear on the evidence that changeovers have been a source of significant conflict and at times discomfort for the children. It is for this reason that changeover will occur at the children’s school where possible. Otherwise, changeover will occur at the parties’ homes, thus making tardiness less of an issue. The parties can always agree otherwise.
Property
At final hearing, the property of the parties consisted of the following:[36]
[36] From agreed joint balance sheet filed 9 October 2024.

Ownership Description Value

Applicant Suburb D Property $1,150,000

Applicant CBA Goal Saver account (ending #...00) $210

Applicant ANZ Access Advantage Account (ending #...05) $1,591

Applicant Motor Vehicle 6 $8,550

Applicant Super Fund 2 $73,454

Applicant Notional addback $55,455

Respondent Motor Vehicle 1 $28,000[37]

Respondent Motor Vehicle 2 $8,250

Respondent CBA Smart Access Account (ending #...25) $17,224

Respondent CBA NetBank Saver Account (ending #...41) $152

Respondent CBA Goal Saver Account (ending #...22) $1,454

Respondent CBA Goal Saver Account (ending #...45) $355

Respondent CBA Goal Saver Account (ending #...82) $33

Respondent Super Fund 1 $122,900

Respondent Car Loan – Finance Company ($27,467)

Joint ANZ One Offset Account (ending #...19) $11

Joint ANZ Account (ending #...56) - Mortgage on Suburb D Property ($466,684)

Total $973,488
[37] The Court notes the differences in values between the parties, and accepts the respondent’s value in respect of her own motor vehicle for the purposes of these orders.
Contributions and Future Needs

At the commencement of the relationship, the applicant owned the Suburb D property, which he had already taken to improving. He was in the process of establishing his own business, while the respondent worked full time. She came into the relationship with a motor vehicle.
During the early years of the parties’ relationship, the applicant was earning significantly less than the respondent. Each of the parties contributed towards the family expenses as best they could, including through the joint borrowings made against the Suburb D property at or about the time of the commencement of the parties’ cohabitation.
The renovations which were completed over the Suburb D property were by and large contributions by the applicant, whether by himself personally or on his behalf, including by way of personal labour and use of skills. There is however, no evidence as to the improvement in value, if any, as a result of these efforts.
The latter part of the parties’ relationship, saw the applicant earning significantly more than the respondent. While overall, the applicant’s earnings outweighed those of the respondent, the respondent’s financial contributions during the earlier years of the parties’ relationship played a significant role in terms of the parties’ financial means at the time.
The parties lived together in the Suburb D property from the commencement of their cohabitation until physical separation in November 2022, a period of about 11 years. The use to which the property was put, was a significant contribution on behalf of the applicant.
However, the respondent’s contributions as parent and homemaker, as well as her financial contributions during the parties’ relationship, were significant.
Overall, the Court assesses the parties’ contributions during their relationship as equal.
Following physical separation, the applicant remained living in the Suburb D property. He has been responsible for meeting the outgoings associated with it, notwithstanding the brief period of respite granted by the mortgagee following a hardship application. The applicant has also had the benefit of living in the property, while the respondent has lived with her parents, albeit there is no evidence that she pays rent to them.
Both parties continue to earn an income and both are capable of earning an income.
There is no evidence of any health issues affecting the parties’ earning capacity, despite the applicant’s workers compensation claim and the respondent’s medical issues.
The respondent has been the children’s primary carer post separation. The children will remain living with her.
Therefore, there will be a 5% adjustment in the respondent’s favour in respect of future needs.
As such, the applicant will receive 45% of the parties’ assets following adjustment of property interests, and the respondent 55%.
Therefore, the applicant will receive $438,070 made up as follows:

Ownership Description Value

Applicant Suburb D Property $1,150,000

Applicant CBA Goal Saver account (ending #...00) $210

Applicant ANZ Access Advantage Account (ending #...05) $1,591

Applicant Motor Vehicle 6 $8,550

Applicant Super Fund 2 $73,454

Applicant Notional addback $55,455

Joint ANZ One Offset Account (ending #...19) $11

Joint ANZ Account (ending #...56) - Mortgage on Suburb D Property ($466,684)

Payment to the Respondent ($384,517)

Total $438,070

Therefore, the respondent will receive $535,418 made up as follows:

Ownership Description Value

Payment from the Applicant $384,517

Respondent Motor Vehicle 1 $28,000

Respondent Motor Vehicle 2 $8,250

Respondent CBA Smart Access Account (ending #...25) $17,224

Respondent CBA NetBank Saver Account (ending #...41) $152

Respondent CBA Goal Saver Account (ending #...22) $1,454

Respondent CBA Goal Saver Account (ending #...45) $355

Respondent CBA Goal Saver Account (ending #...82) $33

Respondent Super Fund 1 $122,900

Respondent Car Loan – Finance Company ($27,467)

Total $ 535,418

Each of the parties will retain the assets currently in their name and/or possession, including a motor vehicle each. The respondent can, should she so choose, sell Motor Vehicle 2, rather than the Court making an order transferring it to the applicant who does not want it.

The parties each have accumulated superannuation, albeit the respondent has more than the applicant. They will each retain their superannuation. In circumstances where the respondent is receiving a significant cash adjustment, it is not appropriate to adjust their superannuation interests in the applicant’s favour.
Overall, the adjustment as assessed at 45% to the applicant and 55% to the respondent as outlined above, is in all of the circumstances just and equitable.
The Court so orders.

I certify that the preceding three hundred and nine (309) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.
Associate:
Dated: 18 December 2024

File number(s):	PAC 7009 of 2022
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	18 December 2024
Catchwords:	FAMILY LAW – PARENTING – Where the respondent unilaterally relocated to City B from Sydney with the children – Where the respondent currently resides in City B with the children and the applicant resides in Sydney – Where neither party is willing to move closer to the other – Where the children have close and loving relationships with each party – Where many minor matters dominate the parties’ evidence – Where the parties view each other negatively – Where the parties have both behaved poorly – Need for self-awareness and impact of behaviours – No unacceptable risk of harm or family violence FAMILY LAW – PROPERTY – Overall contributions equal – Future needs adjustment – Only one asset of significance being the former matrimonial home which is held in the applicant’s sole name – Where one party is to retain the home and one party is to receive a lump sum payment
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AB, 60CC, 60CG, 61C, 61D, 61DAA, 64C, 69ZT, 75, 79 Family Law Amendment Act 2023 (Cth)
Cases cited:	Bevan & Bevan [2013] FamCAFC 116 Blandford & Esmore [2022] FedCFamC1A 67 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Carter & Wilson [2023] FedCFamC1A 9; (2023) FLC 94-129 Chapman & Chapman [2014] FamCAFC 91 Dickons & Dickons [2012] FamCAFC 154 Illgen & Yike [2018] FamCA 17 Isles v Nelissen [2022] FedCFamC1A 97 Johnson & Page [2007] FamCA 1235 Leventis & Leventis [2024] FedCFamC1A 141 Murray v Commissioner of Police [2018] QDC 96 Ramzi & Moussa [2022] FedCFamC2F 1473 Russell & Russell [1999]FamCA1875 Scott & Danton [2014] FamCAFC 203 Stanford & Stanford [2012] HCA 52 Teal & Teal [2010] FamCAFC 120 WK v SR (1997) 22 Fam LR 592
Division:	Division 2 Family Law
Number of paragraphs:	309
Date of hearing:	14-16 October 2024
Place:	Parramatta
Counsel for the Applicant:	Mr Givney
Solicitor for the Applicant:	NSW Family Law Specialists
Counsel for the Respondent:	Mr Livingstone
Solicitor for the Respondent:	Lucy Urach & Associates

PAC 7009 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR MINOS Applicant
AND:	MS MINOS Respondent

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	18 DECEMBER 2024

Applicant’s Income	Respondent’s Income
Financial year ending 2012	$10,921	$56,564
Financial year ending 2013	$22,121	$59,747
Financial year ending 2014	$12,271	$66,280
Financial year ending 2015	$40,421	$65,121
Financial year ending 2016	$6,537	$40,116
Financial year ending 2017	The applicant said $81,083 The respondent said $64,149	$41,403
Financial year ending 2018	$99,148	$67,210
Financial year ending 2019	The applicant said $124,588 The respondent said $104,516	$35,516
Financial year ending 2020	The applicant said $130,009 The respondent said $107,151	The applicant said $55,908 The respondent said $60,017
Financial year ending 2021	The applicant said $135,534 The respondent said $122,921	The applicant said $76,516 The respondent said $81,420
Financial year ending 2022	The applicant said $80,886 The respondent said $80,611	$87,434
Financial year ending 2023	The respondent said $79,927	The respondent said $87,434

Ownership	Description	Value
Applicant	Suburb D Property	$1,150,000
Applicant	CBA Goal Saver account (ending #...00)	$210
Applicant	ANZ Access Advantage Account (ending #...05)	$1,591
Applicant	Motor Vehicle 6	$8,550
Applicant	Super Fund 2	$73,454
Applicant	Notional addback	$55,455
Respondent	Motor Vehicle 1	$28,000[37]
Respondent	Motor Vehicle 2	$8,250
Respondent	CBA Smart Access Account (ending #...25)	$17,224
Respondent	CBA NetBank Saver Account (ending #...41)	$152
Respondent	CBA Goal Saver Account (ending #...22)	$1,454
Respondent	CBA Goal Saver Account (ending #...45)	$355
Respondent	CBA Goal Saver Account (ending #...82)	$33
Respondent	Super Fund 1	$122,900
Respondent	Car Loan – Finance Company	($27,467)
Joint	ANZ One Offset Account (ending #...19)	$11
Joint	ANZ Account (ending #...56) - Mortgage on Suburb D Property	($466,684)
Total	$973,488