Odawa & Tarabi - [2023] FedCFamC2F 1416

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Odawa & Tarabi [2023] FedCFamC2F 1416

File number: MLC 5506 of 2019

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 3 November 2023

Catchwords: FAMILY LAW – final parenting orders – final property alteration orders – de facto relationship – where father has not had time with the children since separation in 2016 – weight to be given to children’s wishes – weight to be given to mother making all mortgage payments since 2016 – restrictions on fact finding due to section 102NA – former relationship home and mortgage registered in sole name of father – whether father should be regarded as making any contribution at all – mother solely responsible for expenses of four young children – father to communicate with children by letters, cards and presents, and as agreed in writing with the mother – property orders determined on basis of a 70/30 assessment for contributions and section 90SF factors adjustment of 15% in mother’s favour – payment to father within 90 days and transfer of former relationship home to mother.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4, 4AB, 60CA, 60CC, 60CF, 60CG, 61DA, 65DAC, 79, 90SF, 90SM, 102NA

Marriage Act1961 (Cth)

Cases cited:
Adamson & Adamson (2014) FLC 93-622

Benson & Drury [2020] FamCAFC 303

Browne v Dunn (1893) 6 R 67

Clauson & Clauson (1995) FLC 92-595

Dickons & Dickons [2012] FamCAFC 154

Fields & Smith (2015) FLC 93-638

Fox v Percy (2003) 214 CLR 118

Hickey and Hickey and the AG for the C’lth of Australia (2003) FLC 93-143

Hurst & Hurst (2018) FLC 93-851

Keskin & Keskin and Anor (2019) FLC 93-932

Litigants in Person Guidelines [2001] FamCA 348.

Lovine & Connor and Anor (2012) FLC 93-515, [2012] FamCAFC 168

Parshen & Parshen (1996) FLC 92-720

Phipson & Phipson [2009] FamCAFC 28

Rosati v Rosati (1998) FLC 92-804

Stanford v Stanford (2012) FLC 93-518

Varnham & Moses (2021) FLC 94-007

Wallis & Manning (2017) FLC 93-759

Wayne & Wayne [2010] FamCAFC 33

Division: Division 2 Family Law

Number of paragraphs: 256

Date of hearing: 30 May – 1 June 2022

Place: Melbourne

Counsel for the Applicant: Ms A. Morris

Solicitor for the Applicant: Mayek Legal

The Respondent: Litigant in person

Counsel for the Independent Children's Lawyer: Mr R. Allen

Solicitor for the Independent Children's Lawyer: Aitken Partners Pty Ltd
ORDERS

MLC 5506 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS ODAWA
Applicant

AND:
MR TARABI
Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

3 NOVEMBER 2023

THE COURT ORDERS THAT:
Parenting orders
1.That save as provided herein, the applicant mother, Ms Odawa, have sole parental responsibility of the children W (DOB: 2008); X (DOB: 2010); Y (DOB: 2013) and Z (DOB: 2015), collectively referred to as “the children”.
2.That the children’s parents, Ms Odawa and the respondent, Mr Tarabi have shared parental responsibility for the long term issue of the children’s names.
3.That the children live with Ms Odawa.
4.That the children communicate and spend time with their father, Mr Tarabi, as agreed between their parents, Ms Odawa and Mr Tarabi, in writing by text message or email, and in default of agreement as determined by Ms Odawa.
5.That Mr Tarabi communicate with the children by sending letters, gifts and cards to the children care of their mother, Ms Odawa.
6.That the children be permitted to respond to, or correspond in writing, with their father, Mr Tarabi, and that Ms Odawa facilitate such correspondence.
7.Pursuant to Section 11 of the Australian Passports Act 2005 (Cth) and the Court being satisfied that it is not practicable to obtain the consent of the father, Mr Tarabi, to enable the children to obtain an Australian Passport to travel outside of the Commonwealth of Australia ("Australia"), that Ms Odawa and/or the children be permitted to apply for an Australian Passport to enable them to leave Australia and furthermore the children be permitted to leave Australia without the permission of their father, Mr Tarabi.
8.Ms Odawa be and is authorised to execute or sign any document/s required to obtain Australian passports for the children.
9.Ms Odawa be and is permitted be and is authorised to take the children from Australia to travel overseas for holidays.
10.That the parties keep the other advised at all times of their current residential address, email addresses and mobile telephone numbers.
11.Each parent be and is restrained from denigrating the other parent to the children or in their hearing.

Property orders
12.That Ms Odawa pay to Mr Tarabi the sum of $49,746, (“the payment”) on or before on or before Thursday 1 February 2024 (“the date”).
13.That contemporaneously with the payment:
(a)The Mr Tarabi do all such acts and things and sign all such documents as may be required to transfer to Ms Odawa, or as she directs, at the expense of Ms Odawa all of his right, title and interest in the real property situated at, and known as, B Street, Suburb C, in the State of Victoria, and being the whole of the land comprised in title Volume … Folio … (“the Property”)
(b)The Ms Odawa pay, discharge and indemnify Mr Tarabi against all payments and liability pursuant to the registered mortgage number … secured over the Property (“the mortgage”) and all taxes including income taxes, capital gains tax and all apportionable rates, taxes and outgoings of or with respect to the Property of whatsoever nature and kind.

14.That in the event that the whole of the payment has not been made by the date then Ms Odawa and Mr Tarabi sign all documents and do all things necessary to cause the real property to be forthwith sold altogether out of court (“the sale”), and upon completion of the sale, the proceeds of the sale be applied:
(a)First to pay all costs, commissions and expenses of the sale;
(b)Secondly to discharge the mortgage and any other encumbrance affecting the Property;
(c)Thirdly, the proceeds of sale be divided in the following proportions of:
(i)15 per centum thereof to the Mr Tarabi or as he directs in writing; and
(ii)85 per centum thereof to Ms Odawa or as she directs in writing; and
(iii)from Ms Odawa’s 85% part of the proceeds of sale there be paid to Mr Tarabi, in addition to his 15% part or share, he be paid the sum of $3,600.

15.That pending the payment or completion of the sale:
(a)Ms Odawa have the sole right to occupy the real property and that during such right of occupation Ms Odawa pay all instalments pursuant to the mortgage and from the date of these orders pay all rates and taxes and like apportionable outgoings of the Property as they fall due;
(b)The parties hold their respective interests in the Property upon trust pursuant to these orders; and
(c)Neither party encumber the real property without the consent in writing of the other party save to the extent necessary to comply with these orders.

16.That there be liberty to apply on short notice in writing by email to the chambers of Judge O’Shannessy as to any difficulty with the implementation of these orders and/or any default sale.
17.That unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:
(a)Each party (to these property alteration orders) be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the Property are deemed to be in the possession of the Ms Odawa.
(b)Each party retain any superannuation benefits belonging to or earned that party.
(c)Insurance policies remain the sole property of the owner/beneficiary named thereon/in.
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

18.That all extant applications are otherwise dismissed.

AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

In this matter I have been tasked with determining final parenting arrangements and property alteration for the parties, Ms Odawa born in 1989 and Mr Tarabi born in 1978.
The parents and the Independent Childrens Lawyer (‘ICL’) ask me to make final parenting orders for the children W born in 2008, X born in 2010, Y born in 2013, and Z born in 2015. When considering the parties’ parenting applications I apply and take into account the whole of Part VII of the Family Law Act 1975 (Cth) (‘the Act’).
Ms Odawa and Mr Tarabi also ask me to make final orders for property alteration for a pool of approximately $330,000. When considering the parties’ property applications I apply and take into account the whole of Part VIIIAB of the Act. In these reasons I will firstly turn to the parenting issues before turning to the property issues.
Background
Ms Odawa is the applicant in these proceedings. She was born overseas in Country D, moved to Australia when she was 14 years old, and currently lives in the suburbs of Melbourne. She works full-time as an educator and assists in a family business with her current partner, Mr E. She has two small children with Mr E that are not subject to these proceedings.
Mr Tarabi is the respondent. He was born in Country D, moved to Australia when he was 17 years old and at the time of the final hearing he lived in a house in the suburbs of Brisbane. He says that he is not currently working and is receiving Centrelink, although he has worked in the past as a community worker, amongst other odd jobs. He remarried in 2017 and his current partner lives overseas in Country F, which borders Country D. They have one child together, who was 3 years old at the time of the final hearing and living overseas with its mother. Mr Tarabi’s father was killed when he a was a young soldier. Mr Tarabi was 7 years old. Mr Tarabi was with his mother for a short time after the death of his father when the place where his mother was at was attacked and she died. So Mr Tarabi without either parent in a country at war from the age of 7. After that he was raised in military schools. The trauma he has faced as a child is barely imaginable to those raised in this country.
The parties commenced cohabitation in Sydney in 2007. They were married in a traditional ceremony of their joint culture in 2011 in Australia, although they were not legally married in Australia. In 2012, Ms Odawa moved from Sydney to Melbourne to be closer to her family, and Mr Tarabi visited regularly until 2015 or early 2016. It is common ground that in 2015, the parties bought a house in Suburb C, Victoria (‘the Property’) for $370,000.
In 2016, Mr Tarabi went on a trip to Country D. Ms Odawa says that the relationship ended shortly after he left because Mr Tarabi was abusive to her over the phone. Mr Tarabi says that he knew the relationship was about to end during that trip but that it did not formally end until an incident in mid-2016 after he returned to Australia and police assistance was called. It is unnecessary to resolve that dispute. The marriage relationship ended in early-mid 2016. It is common ground that Mr Tarabi has had no contact with the children from when Mr Tarabi travelled to Country D in 2016.
After separation Mr Tarabi applied himself to community work in his country of origin.
PROCEEDINGS
Ms Odawa filed an application for final orders on 21 May 2019 seeking sole parental responsibility and for the children to have no time or contact with Mr Tarabi. In regards to property, Ms Odawa sought that the Property be sold and for Ms Odawa to retain 100% of the proceeds, but at final hearing changed her position to seek that Mr Tarabi transfer the Property to her and for him to discharge the mortgage.
On 14 July 2020 Mr Tarabi produced to the Court a document, although it was not filed, which on 8 October 2020 I ordered to stand as a response to the application for final orders, and I marked that document as exhibit F1 at the final hearing. He sought to spend time with the children, but did not set out any details of preferred arrangements. He also sought that the Property be sold and that the proceeds be divided 25% to Ms Odawa and 75% to him. At final hearing, he changed his position to seek the Property be sold with a 60-40 proceed division and for his child support debt to be extinguished.
Interim orders were made by consent before another Judge on 20 August 2019, including orders for:
·the children to live with Ms Odawa;
·Ms Odawa to have sole parental responsibility for the children;
·the children to communicate and spend time with Mr Tarabi as agreed; and
·Ms Odawa to be at liberty to remove the children from Australia.
Final orders were made by consent on 4 June 2020 before another Judge for the children to live with Ms Odawa. However, no further final orders were made in regards to the children’s time with Mr Tarabi, parental responsibility, or property settlement.
The final hearing
The matter had been listed for the hearing of only the property dispute but a family report had been undertaken, the parties material addressed property and parenting, the ICL attended and all parties pressed that I hear both matters together. In that circumstance I heard parenting and property issues together. The final hearing ran for three days over 30 May to 1 June 2022 via Microsoft Teams due to the ongoing COVID-19 pandemic.
Ms Odawa was represented by Counsel, Mr Tarabi was self-represented and the ICL was represented by Counsel. As Mr Tarabi was a litigant in person, at times I explained court procedures to him in accordance with Re F: Litigants in Person Guidelines [2001] FamCA 348.
On 6 April 2022 the Chief Judge of this Court made an order pursuant to section 102NA of the Act, banning Mr Tarabi and Ms Odawa from personally cross-examining Ms Odawa Mr Tarabi claims that he made an application to Victoria Legal Aid for representation pursuant to the section 102NA scheme on 8 April 2022 but received no response at all. As a result of that order, he was not permitted to personally ask questions of Ms Odawa. I explained to him the consequences of that miscommunication with Victoria Legal Aid in regards to procedural fairness to him and the rule in Browne v Dunn (1893) 6 R 67, particularly given that in this matter there are significant facts and issues in dispute. I discussed with the parties whether the matter should proceed and all parties pressed that the hearing proceed that day. I proceeded on the basis that the fact that Mr Tarabi was not permitted to cross-examine Ms Odawa did not in any way mean that he accepted Ms Odawa’s position because of a lack cross-examination. I gave Mr Tarabi leave to apply to lead oral evidence by way of evidence-in-chief and after Ms Odawa’s oral evidence was given, to have him give additional evidence as an opportunity to challenge Ms Odawa’s evidence. Mr Tarabi also had made submissions to the family report writer and the child impact report writer. I acknowledged that was not an ideal procedural way forward, but a way that attempted to provide Mr Tarabi with procedural fairness. Section 102NA does not provide a discretion. If Section 102NA(1) applies then section 102NA(2) applies and an in-person cross-examination of the parties is simply not permitted.
Ms Odawa and Mr Tarabi were the only witnesses called to give evidence. Both spoke English as their second, third or fourth language, but to a level that showed they were capable of understanding and appropriately responding to questions and concepts in court.
In the morning session of day 3, at transcript page 198, Mr Tarabi requested that the matter be adjourned until the next day as he had a headache and the questions were “too much” for him. I reminded Mr Tarabi that he has post graduate qualifications. Counsel for Ms Odawa assured me that she would be done with her questions by 1:00 pm and I told Mr Tarabi that we would have a long lunch break at that time and come back for re-examination. Mr Tarabi continued to answer questions as he had done previously and showed no signs of distress. Despite the disadvantage to Mr Tarabi of the section 102NA order, I am satisfied that he was provided with procedural fairness.
Documents relied upon
Ms Odawa relied upon the following documents:
·The initiating application filed 21 May 2019;
·Ms Odawa’s affidavit filed 21 May 2019;
·The notice of risk filed 21 May 2019;
·Ms Odawa’s financial statement filed 21 may 2019;
·The child inclusive conference memorandum to Court filed 17 November 2020;
·The child inclusive conference memorandum to Court filed 7 December 2020;
·The family report filed 18 January 2022;
·The affidavit of Ms H;
·Subpoena documents; and
·The court book prepared by Ms Odawa’s solicitors presented in Court.
During the final hearing, it was made clear that Ms H would not be available for cross-examination on her affidavit due to her involvement in the cultural community of the parties. Mr Tarabi objected to the inclusion of that affidavit and claimed that it was not relevant. I did not allow Ms Odawa to rely on that affidavit and have not read it as to do so would be procedurally unfair to Mr Tarabi.
Mr Tarabi was a litigant in person and did not provide the Court with an outline of case document. At final hearing, he indicated that he relied upon the following documents:
·Mr Tarabi’s financial statement filed 23 June 2021;
·Mr Tarabi’s response to an application for final orders produced on 14 July 2020 (exhibit F1);
·Mr Tarabi’s affidavit produced to the Court on 14 July 2020 (exhibit F2); and
·Bundles of bank statements provided to the Court.
The ICL relied upon the following documents:
·The child inclusive conference memorandum to Court filed 17 November 2020;
·The child inclusive conference memorandum to Court filed 7 December 2020; and
·The family report filed 18 January 2022.
Exhibits tendered

The following exhibits were tendered:

Exhibit No: Description:

Monday 30 May 2022

F1 Response to initiating application

F2 Affidavit from Mr Tarabi, part of F1 response

F3 Financial statement of Mr Tarabi

F4 Bundle of bank statements, starting with statements from bank 1

F5 Bundle of bank statements commencing with bank 2 statement

ICL1 Minute of proposed orders

M1 Mortgage statements. Court Book pages 423-425

M2 bank statements showing movement of money from Ms Odawa’s account to the mortgage account - Page 425 of Court Book

ICL2 LEAP record re: mid-2016 - Page 1-2 of VIC pol bundle

ICL3 NSW police records re: 2010 - pages 14-15 of bundle

Tuesday 31 May 2022

M3 Child Support statement for W

F6 Mortgage statement

ICL4 NSW police records re: 2012 - pages 11-12 of bundle

ICL5 LEAP record re: Court appearance 2020, page 6 of VIC pol bundle

M4 FVIO from 2016

M5 FVIO from 2020

Wednesday 1 June 2022

M6 Bank 3 documents & Title search – Court book pages 274, 278-281

M7 Finance Application – Court book 324-371

M8 Account transactions – Court book pages 424 & 415

M9 Bank 3 home loan application documents – Court book pages 422-425

ICL6 4 December 2020 11F report
Issues raised at final hearing

On day two of the final hearing, I discussed with the parties two issues that pertained to the property proceedings;
(1)whether the parties were legally married, and if not whether I had no jurisdiction to make orders pursuant to Part VIII of the Act to make orders for adjustment of property interests of parties to a marriage; and
(2)if that was the case, whether the application could be brought pursuant to Part VIIIAB of the act, particularly considering that the application was not issued within the standard application period.
These issues were again raised on day three when Mr Tarabi made an oral application to stand down the property proceedings on the basis that they were not legally married and that the property application was issued outside the timeline. He said that “[I] had three lawyers and applicant looking at me so I made a wrong judgment. I made a mistake. That was wrong of me and I made a very completely big mistake.” On day three, counsel for Ms Odawa agreed that I should hear Ms Odawa’s application under section 44(6) of the Act.
In regards to the legal marriage/jurisdiction issue, on the first day of the hearing both parties made it clear that they had been married in 2011 in a traditional ceremony in Australia. At the beginning of day two, I raised with the parties that the initiating application filed on 19 May 2019 by Ms Odawa provided that the date of marriage was not applicable and this issue was not raised by Mr Tarabi. Given the marriage was not legal, I had been proceeding on the basis that the parties were in a de facto relationship and not in a marriage. This matter was relevant as to whether I was to proceed with property issues under section 79 of the Act or under sections 90SM and 90SF. Counsel for Ms Odawa advised that, because the marriage was performed in Australia and did not comply with the relevant provisions of the Marriage Act1961 (Cth), i.e. in accordance with a recognised marriage celebrant, then the marriage was not valid and the matter should proceed under the de facto provisions. Mr Tarabi agreed to this at the hearing during the morning session of day 2.
On day three, Mr Tarabi made an oral application for a stay of the proceedings on the ground that there is no jurisdiction to proceed further and also an application to dismiss the proceedings on the basis that there is no jurisdiction. I relayed the following:
HIS HONOUR: [Mr Tarabi], the fact that you and [Ms Odawa] lived together although not legally married to one another but you cohabited within the meaning of the Family Law Act section 4AA and that is that you were living in a de facto relationship as defined by the Act. By reason of part VIIAB of the Family Law Act which includes those sections 90SM and 90SF that was sent to you on Monday night. That gives not identical but almost identical jurisdiction for me to deal with the property application whether you were married or not. So for practical purposes the fact of a de facto relationship is not identical to marriage. There are some small differences but it is, in substance, the same law that applies [with] the same principles of, firstly, that I have jurisdiction and, secondly, the manner in which I determine the case. And that is the preferred approach referred to in Keskin, the Full Court authority to which I referred you. So I dismiss your application to stay the proceedings or have the proceedings dismissed without further hearing on the basis of a lack of jurisdiction because as a result …the whole of part VIIIAB I do have jurisdiction, but your understanding of that is not unusual, [Mr Tarabi], so thank you for reminding me to rule on that.
In regards to the application outside of the timeline issue, at the start of day two I raised with the parties that Ms Odawa argued that separation occurred in February, March, or June 2016 and issued proceedings on 21 May 2019. The relevant provisions of section 44 of the Act read as follows:
44 Institution of proceedings
…
Proceedings in relation to de facto relationships
(5)Subject to subsection (6), a party to a de facto relationship may apply for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, only if:
(a)the application is made within the period (the standard application period) of:
(i)2 years after the end of the de facto relationship; or
(ii)12 months after a financial agreement between the parties to the de facto relationship was set aside, or found to be invalid, as the case may be; or
(b)both parties to the de facto relationship consent to the application.
(5A)However, if proceedings are instituted by an application made with the consent of both of the parties to the de facto relationship, the court may dismiss the proceedings if it is satisfied that, because the consent was obtained by fraud, duress or unconscionable conduct, allowing the proceedings to continue would amount to a miscarriage of justice.
(6)The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
(a)hardship would be caused to the party or a child if leave were not granted; or
(b)in the case of an application for an order for the maintenance of the party—the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.
Usually, an initiating application for property orders has to be made to the Court within two years of a breakdown of a de facto relationship. In this matter it was common ground that this relationship broke down in early or at least by mid-2016. Under the usual scheme, one of the parties should have filed an initiating application by early or mid-2018 if property alteration was sought. Ms Odawa did not file proceeding until May 2019, being around one year after the standard application period had expired, 16 months if I take the earliest date, or six years if I take the application under section 44(6) to be made at final hearing on 30 May 2023, albeit with the substantial notice of the proceedings. As such, pursuant to section 44(6), Ms Odawa needed leave or special permission to make a property application.
On day two, when the issue was first discussed, I explained this to Mr Tarabi and he indicated that he did not want to complicate the case and wanted the case to proceed and I inferred that he consented to Ms Odawa’s application for leave to issue proceedings out of time. He also asked me at the time if it was possible to proceed on the condition that if he felt disadvantaged then he could appeal or challenge the proceedings. I told him that he would be able to appeal (in the proper form) my final decision, but that he could not conditionally consent to Ms Odawa’s application. He then agreed to proceed and I made an order that Ms Odawa be granted leave to proceed pursuant to section 44 and reserved my reasons, noting that that order was by consent. These are those reasons.
On day three of the final hearing, after the application made by Mr Tarabi and the withdrawal of consent, counsel for Ms Odawa agreed to revisit the issue. I sought oral submissions on section 44 of the Act.
Ms Odawa’s counsel made points on this issue, including:
(a)In regards to delay:
·That Ms Odawa did not know about the two year time limit;
·That Mr Tarabi made several trips overseas in 2018 and lives in a different state, and so was difficult to contact;
·That Ms Odawa unsuccessfully tried to contact Mr Tarabi several times; and
·Ms Odawa made the application at the earliest date possible.
(b)In regards to hardship, Ms Odawa had been making payments to the mortgage over five years and so there would be the loss of her prospective entitlement to the Property alteration orders; and
(c)In regards to prejudice to Mr Tarabi, Ms Odawa's counsel pointed to Mr Tarabi being able to gather banking evidence from that time and no evidence of being unable to proceed or having any hardship due to Ms Odawa's repayment of the mortgage.
Mr Tarabi argued;
(a)Generally;
·Ms Odawa’s solicitors knew or should have known that they applied outside of the timeline;
·Ms Odawa’s solicitor is married to Ms Odawa’s cousin and so has an interest in the matter;
·Ms Odawa’s solicitor knows that Mr Tarabi is kind and more likely to agree or overlook little things like missed deadlines;
·Mr Tarabi is not a lawyer and does not have appropriate legal knowledge on these issues;
(b)On the hardship point;
·The Property was rented out in 2015 for around $840 per fortnight, which is more than Ms Odawa is paying in mortgage repayments ($700 per fortnight) and so is losing potential income which should not be taken as hardship;
·That Ms Odawa had been effectively renting the Property from him for the past five years for less than the market rate; and
·That Ms Odawa has re-partnered and is not in financial difficulty shows that she has no general hardship.
I asked the counsel for the ICL if he had anything to add and he said that given the issue related to the property issues and not the parenting issues that the ICL was not involved in this issue. Nonetheless, counsel for the ICL submitted that it would be in the best interests of the children to finish the property case to avoid future distractions, tensions and conflicts for the parents.
After hearing those submissions, I made the decision to grant Ms Odawa leave to bring the property proceedings pursuant to Part VIIIAB of the Act and in particular, section 90SM of the Act. I reserved my reasons on the matter. I find that there was hardship for the reasons submitted by counsel for Ms Odawa.
These are those reason. I do not regard Ms Odawa’s explanation as being entirely satisfactory. I take that into account. If the application is not granted there will be hardship to Ms Odawa. The Property is in joint names and she will lose the not unreasonable prospect of an order that Mr Tarabi’s interest be transferred to her. I otherwise accept the submissions of Ms Odawa’s counsel and refer to and repeat them (save as to the delay submission). Balancing all considerations, I am satisfied that absent an order pursuant to section 44(6) there will be hardship to the applicant Ms Odawa.
APPLICABLE LAW – GENERAL
In these reasons, statements of fact are findings of fact. I apply section 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) which states as follows:
(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.
Reliability and Credit of the parties
In Fox v Percy (2003) 214 CLR 118 (‘Fox v Percy’), at first instance, the rider of a horse was found to be a more reliable witness than the driver of the Kombi Van that had collided with oncoming horses and riders who were coming around the bend. The issue was upon which side of the road the collision occurred. The Court of Appeal of the Supreme Court of New South Wales had to interfere with the first instance decision where it had been incorrectly determined, by reason of the apparent reliability of the witnesses, that the collision occurred on the Kombi Van’s wrong side of the road. The Court of Appeal found the first instance decision was wrong because of the position of the braking skid marks of the Kombi Van that were in evidence. The skid marks of the Kombi Van incontrovertibly demonstrated that the Kombi Van had been on its correct side of the road at the point of collision. The High Court found that the Court of Appeal was justified in upholding the appeal upheld their findings.
When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality of Fox & Percy observed:
[31]…in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
[Citations omitted]
I have endeavoured to rely on objectively established facts and the apparent logic of events in this case as well as the evidence and demeanour in the witness box of the parties.
In this case, I was able to observe the parties in the witness box and examine their demeanour and reactions to questions. The issue of credit goes to one aspect of the reliability of the evidence of the parties.
In writing reasons and making findings of fact, I endeavour to apply the balance of probabilities, partly from my observations of the demeanour of witnesses and where possible on the basis of contemporaneous materials, objectively established facts and the apparent logic of events. In this case, each party accuses the other of misleading the court and neither Ms Odawa nor Mr Tarabi has provided the Court with sufficient contemporaneous materials to back up their cases in relation to several contentious events. I therefore approach this case with caution.
As explained later I have not accepted all of Ms Odawa’s evidence about violence and contributions to the deposit for the Property purchase. That should not be interpreted as meaning she was dishonest or unreliable. It does not mean I find the details of events as alleged and recorded in police records did not occur. It means taking account of all of the circumstances and evidence, including the restrictions on cross examination imposed by section 102NA, that I am not satisfied on the balance of probabilities of some of the serious allegations.
PARENTING
Applicable Law - Parenting
In deciding what particular parenting orders to make I regard the best interests of the children as the paramount consideration (section 60CA of the Act).
I must consider the matters described in the act as primary considerations and additional considerations. In doing so I take into account all of the evidence including those parts I have recited in these reasons as “significant events”.
I apply and take into account the whole of Part VII of the Act and the definition of section 4 of major long-term issues, I have regards to section 4AB (definition of family violence), sections 60CA, 60CC, 60CF, 60CG, 61DA and take into account the obligations of section 65DAC. Those are as follows:
major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
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4AB               Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)       an assault; or
(b)       a sexual assault or other sexually abusive behaviour; or
(c)       stalking; or
(d)       repeated derogatory taunts; or
(e)       intentionally damaging or destroying property; or
(f)       intentionally causing death or injury to an animal; or
(g)       unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)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; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
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60CA:Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
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60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)       the nature of the relationship of the child with:
(i)        each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)      to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)        either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)       the capacity of:
(i)        each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(not relevant to this case)
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)        the nature of the order;
(ii)       the circumstances in which the order was made;
(iii)      any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)       any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)      any other fact or circumstance that the court thinks is relevant.
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60CF             Informing court of relevant family violence orders
(1)If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that party must inform the court of the family violence order.
(2)If a person who is not a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that person may inform the court of the family violence order.
(3)Failure to inform the court of the family violence order does not affect the validity of any order made by the court.
60CG            Court to consider risk of family violence
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a)       is consistent with any family violence order; and
(b)       does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
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61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
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65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)      the time the child spends with the parent includes both:
(i)       days that fall on weekends and holidays; and
(ii)      days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Consent orders
(6)If:
(a)the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b)the order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
(7)To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
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65DAC Effect of parenting order that provides for shared parental responsibility
(1)      This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note:Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)      The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
SOME SIGNIFICANT EVENTS

These proceedings include multiple accusations of family violence.
The 2010 violence
A police report from New South Wales (‘NSW’), being exhibit ICL 3, outlines that there was an incident in 2010 (‘the 2010 incident’). That police report outlines that Ms Odawa was with the two older children (the youngest two had not at that time been born) and her 14-year-old sister in a dwelling where the couple resided in the suburbs of Sydney. Mr Tarabi came home late in the evening and the couple argued about an alleged affair by Mr Tarabi. Mr Tarabi got angry and smashed a television and other objects on the floor while the two children were sitting on a couch around two metres away. Mr Tarabi then also went through other rooms, throwing and smashing several items of value, including two more televisions and other household items. The Police arrived to the sound of Ms Odawa screaming and the sound of objects smashing.
Ms Odawa says that during and after this incident, herself, her sister and the two older children were all very scared and went to a women’s shelter. Her sister wanted to relocate to Melbourne to be closer to their family.
Mr Tarabi denies those allegations and states that he came home and Ms Odawa was angry at him over text messages but that he was not angry. He says that the two children were in a bedroom and did not a witness the violence. He says Ms Odawa, and not him, was throwing and smashing the items in question, including his belongings. He also says that she was grabbing and hitting him, and jumping on his back to attack him. While she was doing this, he claims that he was telling her to stop and that her sister was also trying to get her to stop. He also says that at the time she smashed the windscreen of a car he had recently purchased but he did not report it to the police.
I am not satisfied on the balance of probabilities of either party’s allegations. But I am satisfied there was a violent and frightening incident between the parents and that children were exposed to violence that evening.
The 2012 violence
Another event in 2012 (‘the 2012 incident’) was outlined in exhibit ICL4, a NSW police report. That report details that the parents came home late in the evening after being out for a few hours, went into the kitchen and Mr Tarabi noticed that Ms Odawa had left a tap running all the time they were out. Mr Tarabi allegedly became enraged by this, verbally abusing Ms Odawa and breaking a chair. Mr Tarabi was charged over this incident, pled guilty and received a good behaviour bond. Mr Tarabi said that he admits to breaking the chair but that he does not remember the argument over the tap water. I accept the account in the NSW police record.
The 2016 violence
Another incident in 2016 (‘the 2016 incident’) was outlined in a Victoria Police report, being exhibit ICL2. It is common ground that Mr Tarabi flew to Country D in early 2016. Ms Odawa says that they separated shortly afterward in early 2016, because, she says, he was calling her from Country D and abusing her over the phone. She claims that she told him the relationship was over, blocked his phone number and did not know when Mr Tarabi was to return to Melbourne. Mr Tarabi returned to Melbourne after a few months, in mid-2016. Ms Odawa took a short trip to Sydney to attend a wedding, returning to the Property late in mid-2016, just hours before the incident.
The report continues to detail that in mid-2016 in the early hours of the morning, Mr Tarabi went to the Property, found Ms Odawa with a friend, angrily confronted Ms Odawa and commenced smashing several objects around the home. Ms Odawa says, and the police report says, that Mr Tarabi also yelled, “You’re fucking everybody, and I will kill you,” amongst other insults, and he called Ms Odawa a bad mother and a prostitute.
The police records show Mr Tarabi appeared in Court in late 2017 in relation to this event. On that day, exhibit ICL5 outlines, charges were withdrawn and he was charged with and (the ICL infers) pled guilty to two charges. The penalty was, without recording a conviction, adjournment on Mr Tarabi being of good behaviour and the payment of $500. Mr Tarabi says that he was not charged with anything and claims that he never pled guilty as, he asserts, “I cannot plead guilty on something that I did not do”.
Mr Tarabi says that he did not make harassing phone calls to Ms Odawa while overseas, that he called to discuss parenting matters, but agreed that Ms Odawa blocked his number at that time. He also says that they had a fight about her going on a short trip to Sydney, which he told her not to because the baby Z was too small, but that she went anyway. He says that while he was overseas, friends and family members told him that she was seeing someone else and that the relationship may be over, but he says he did not believe the relationship was over.
He says that in mid-2016 he came home to the Property upon return from overseas, but that he considered it their joint house and his own home at that time. He says that he briefly spoke to Ms Odawa before having a shower. When he got out of the shower, he says Ms Odawa’s mother was in the property trying to get Ms Odawa to leave but she refused, and so Ms Odawa’s mother and Mr Tarabi left together. He says that there was no argument and that nothing was broken. I don’t accept Mr Tarabi’s account.
I accept the record of exhibit ICL 5. Mr Tarabi destroyed property and assaulted Ms Odawa, putting her in fear of forceful contact by damaging the statues. This was in the middle of the night with a child present after Mr Tarabi returned to the Property unannounced in the middle of the night. Ms Odawa and at least one of the children were exposed to family violence. Ms Odawa was genuinely put in fear, in her home in the middle of the night, by Mr Tarabi when he was very angry.
The 2020 violence
ICL 2 includes Ms Odawa reporting to the Police in mid-2020 Mr Tarabi threatening to kill her some two months earlier. I accept that there was a confrontation and that Ms Odawa was genuinely in fear of harm from Mr Tarabi.
The two child inclusive conference reports
There have been two child inclusive conference reports, otherwise known as section 11F reports, produced in these proceedings. They were both produced by Ms G, who also produced the family report.
The first report is dated 17 November 2020 and notes that Mr Tarabi did not attend his appointment, despite several phone calls and emails being made to attempt to contact him. Ms Odawa was interviewed but the children were not. Ms Odawa relayed her accounts of the family’s history of family violence. The report included:
6. From the information that was provided by [Ms Odawa], there are concerning, and potentially high risk factors and family dynamics that require cautious consideration by the court. None of these points could be discussed with [Mr Tarabi] due to his non-attendance
The second report is dated 4 December 2020 and Mr Tarabi did participate. Interviews were conducted via videoconference.
Ms Odawa reported to Ms G the extensive history of family violence that she says she and the children experienced, concerns about Mr Tarabi’s motivations in seeing the children, concerns about the safety of the children in Mr Tarabi’s care and concerns about his mental health related to childhood trauma. She also recounted her journey with depression and anxiety during the relationship, telling Ms G that she had taken daily anti-depressants at that time. Mr Tarabi denied any family violence or mental health issues and reported that Ms Odawa was violent to the children.
The three older children all reported that they did not want to see Mr Tarabi. The older two children reported their experiences in seeing Mr Tarabi being violent to Ms Odawa. Y reported knowing that her Father hurt her mother.
The issues raised by the report writer were:
16. The children have not seen [Mr Tarabi] for a period of four years. This is a considerable amount of time for [Mr Tarabi] to be absent from the children’s lives without seeking communication or court orders prior to this application being made to the court. Should [Mr Tarabi] be re-introduced into the children’s lives at this time, this would need to be purposeful and done in a way that is child-focussed, ensuring the spent time is primarily concerned with the children’s needs.
17. There have been allegations made of significant and enduring high risk family violence throughout the parties’ relationship. Should this be the case, it is likely that exposure both directly and indirectly has had an impact on the children well-being and development.
18. [Mr Tarabi] denied all allegations of perpetrating family violence. This is inconsistent to the children’s and [Ms Odawa]’s accounts of their experiences, whose accounts provided a compelling narrative. Should the court accept this account of events, it is highly concerning that [Mr Tarabi] has not demonstrated any remorse or insight into his behaviours, and it would therefore be unlikely that these behaviours have changed.
19. All four children presented as polite, well-adjusted children who are well cared for. However, when speaking with [W] she was observed to become physically triggered and distressed when speaking about the Husband, at one point turning the camera off, and afterwards crying. The three eldest children gave individually, consistent narratives of the violence that [Mr Tarabi] had perpetrated prior to the parties separation. Considering this, it is likely to be emotionally detrimental for the children should [Mr Tarabi] be re-introduced into their lives. If this was to occur, it could undermine the benefit the children have had from living in a violent free household with consistent and predictable care provided by [Ms Odawa] since the parties’ separation.[1]
20. Considering the presentation of the children and the information provided, it is likely that any involvement with their father will be difficult. It was noted that their participation in this assessment was also challenging for them, and it would be beneficial for them to be relieved of the burden of being included in the future.
21. If it were assessed that the children should have some relationship with their father, the best way forward would be through a therapeutic process. This would involve [Mr Tarabi] committing to a long term process of gradually reestablishing a relationship with the children and will be dependent upon the children being able to manage such a process. Alternatively, consideration could be given to four supervised recognition visits per year in a contact centre.
[1] Counsel for the ICL specifically relied upon [18] and [19] in the final hearing.
I accept that evidence of those observations.
The Family Report
On 24 May 2021 I made an order for a family report to be produced in these proceedings. The interviews were conducted by the report writer, Ms G, via Microsoft Teams on 22 November 2021. Ms G did not observe the children with Mr Tarabi as she suggested it was inappropriate for this to be the forum for an initial reintroduction because the children had not seen Mr Tarabi for several years at that point. Ms G produced a report on 18 January 2022.
The family report made the following observations about Ms Odawa:
·Ms Odawa made graphic descriptions of the parties’ relationship as categorised by physical violence, sexual abusive, coercively controlling behaviours, and threats to kill, including to the children, and that that behaviour had been so often that it had been normalised for the parents and the children;
·Ms Odawa described Mr Tarabi as violent, angry, and said that she was fearful of him;
·Ms Odawa’s allegations of “significant and high-risk family violence perpetrated by Mr Tarabi are unlikely to be completely unfounded or fabricated;
·Ms Odawa claimed that Mr Tarabi had made several indications that he did not want to be involved in the children’s lives;
·Both parties raised that Ms Odawa had issues with anxiety during the relationship, including suicidal thoughts, and went on anti-depressants, and Ms Odawa claims that she is mentally well now;
The family report made the following observations about Mr Tarabi:
·Mr Tarabi denied being abusive and claimed that Ms Odawa was “the primary agitator of conflict between the parties;”
·Mr Tarabi said that he did want to be involved in the children’s lives but that Ms Odawa had obstructed all his attempts “to punish him”, and had “encouraged the children to reject him, being purposefully obstructive to him re-establishing a relationship with them;”
·Mr Tarabi said that he knew that re-introduction and regular time with the children would need to be a gradual process, including him travelling to Melbourne, and explained that he had moved back to Sydney post-separation to financially provide for the family;
·Mr Tarabi told the writer he did not believe they were fearful of him or had any reason to not want to spend time with him other than Ms Odawa denigrating him to them and encouraging them to reject him;
·Mr Tarabi said that if the Court did not grant him access to the children, that he believed they would “seek him out when they were adults;”
·Mr Tarabi took little responsibility or accountability regarding his long term absence from the children’s lives and instead blamed Ms Odawa;
·Mr Tarabi displayed adult-centric thinking and decision making, with the children’s needs and wellbeing not appearing to be his primary consideration;
The family report made the following observations about the children:
·The children were hesitant to talk about Mr Tarabi;
·W articulated clearly that she remembered Mr Tarabi being violent and abusive, and that she did not want to re-establish a relationship with him;
·X expressed that he did not want to see Mr Tarabi, and reported remembering him as “scary”;
·Y became upset and teary when Mr Tarabi was mentioned, and said that she did not want to see him or have further conversations about him;
·Z did not remember Mr Tarabi (as he was less than 1 at separation) and said that he considers his step-father, Mr E, as his father; and
·All the children spoke easily about having a happy home and positive relationships with Ms Odawa, their step-father and their siblings;
·The children’s presentations were consistent with those of children in a safe, stable, happy, well-supported and harmonious family home with a strong sense of belonging.
Ms G stated that strong weight should be given to the children’s wishes, given the length of time that Mr Tarabi has not been in their lives. She stated that if the children were to commence a relationship with Mr Tarabi, it may be disruptive, “emotionally distressing” and/or impact on their sense of stability and safety.
In regard to parental responsibility, the family report included:
78.… Maintaining joint parental responsibility in this matter could undermine [Ms Odawa] as a parent, and act as an obstacle to best meet her children’s needs. It is likely the children will benefit from a safe, predictable and supportive family unit where [Ms Odawa] is in a position to make clear parental decisions in their best interests to support their ongoing development.
Relevant passages from the family report include:
15. [Ms Odawa] described the parties’ relationship to be categorised by physical violence, sexual abusive, coercively controlling behaviours, and threats to kill. She advised that this included [Mr Tarabi] tying her up and [assaulting her] regularly. She also provided an example of being held captive by [Mr Tarabi] for approximately seven days in [Country D] in which he beat and raped her repeatedly.
16. She reported being fearful of [Mr Tarabi], describing him as a violent man who is unable to control his anger.
17. [Mr Tarabi] refuted claims that he was abusive during or post the parties relationship. He advised that [Ms Odawa] was the primary agitator of conflict between the parties, and when she became abusive or violent towards him, he would only every restrain in order to self -protect. He denied perpetrating any sexual, emotional, coercive controlling abuse.
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19. She raised significant concerns regarding the physical, emotional and psychological safety of the children, should the court order them to spend time with [Mr Tarabi].
20. [Mr Tarabi] raised concerns that [Ms Odawa] has encouraged the children to reject him, being purposefully obstructive to him re-establishing a relationship with them.
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24. [Ms Odawa] reported a history of depression including suicidal ideation during the parties’ relationship. She advised that she took anti-depressant medication for a period of two years.
25. [Ms Odawa] expressed that she is currently managing her mental health well, and having positive familial supports around her. She is not currently engaged in counselling, reporting in her view she does not require professional assistance.
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38. In addition to the psychological harm concerns, [Ms Odawa] reported that she worried the children would also be at risk of physical abuse if made to spend time with [Mr Tarabi]. She reported that although there was limited physical abuse historically perpetrated against the children, they witnessed [Mr Tarabi] “beating” her regularly. She added that of the four children it was only [Y] who had been chastised by [Mr Tarabi], reporting he had assaulted her with an object when disobedient.
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43. [Mr Tarabi] was on time, and presented neatly for the interview. He reported that he is residing in Sydney, in shared accommodation and not currently employed. [Mr Tarabi] expressed a desire to re-establish a relationship with the children, which had broken down following the parties’ separation. He advised that the reason he had not maintained these relationships was due to [Ms Odawa], who reportedly has been obstructive over the last six years.
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45. [Mr Tarabi] explained that he was born in [Country D], and orphaned as a child. He then went to live in an orphanage in [Country J], before moving when he was approximately 12 years old commencing soldier training and becoming a “child soldier”. Following this, [Mr Tarabi] lived in a refugee camp, before being sponsored by a friend to enter Australia. Although acknowledging the hardship of this experience, he advised that it is this that has made him into the person he is today, and he would not change it for any alternate upbringing. He advised that this has made him into an empathetic and resilient adult, leading him to his previous work within the community.
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73. The parties provided disparate, any contradictory accounts of family violence that occurred, and whom was the primary aggressor of this during their relationship. Should [Mr Tarabi]’s account be accepted, [Ms Odawa] has likely used various systems including legal avenues to discourage and obstruct the children’s relationship with [Mr Tarabi]. [Ms Odawa] however provided a compelling account of her experience of family violence throughout the relationship, which closely aligns to collateral information, and the children’s presentations during interview. Considering all of this information, it is unlikely that [Ms Odawa]’s allegations of significant and high risk family violence perpetrated by [Mr Tarabi] are completely unfounded or fabricated.
74. The types of abuse described by [Ms Odawa] during the interview fits a profile of potential high risk and significant harm. At current [Ms Odawa] reported that she has come to terms with her experiences, and with some support has been able to move past this impacting her. [Ms Odawa]’s presentation was calm when discussing this, and in some ways she was minimising of the overall impact it has had on her, and potentially the high level of risk she described to experience over an enduring period of time. Supporting [Ms Odawa], and assisting her to process these experiences could best support her in the long term, and would act as a protective factor, likely stabilising her further and providing the children with a consistent and reliable primary care figure. It is possible that [Ms Odawa] would benefit from ongoing therapeutic support.
75. The children’s presentations were indicative of a current safe and stable family home, in which they have a trusting and secure attachment with their mother. It is unknown to what extent they have been historically exposed to family violence, however if there is any veracity to the report of family violence, these experiences were likely traumatic. In order for the children to thrive, and move through their developmental stages to reach their potential, it is imperative that that this foundation of safety and stability is maintained. The children have clearly reported not wanting to re-establish any form of relationship with [Mr Tarabi]. They currently enjoy a safe and harmonious family unit in which they are well supported and report a strong sense of belonging. This, along with the extended period of time in which [Mr Tarabi] has been absent, as well as [Mr Tarabi] presenting without insight into the children’s experiences and therefore any awareness as what behaviours need to be modified it is unlikely that re-introducing [Mr Tarabi] to the children will be of benefit to them.
RECOMMENDATIONS
Based on the available information, and in absence of evidence to the contrary, it is respectfully recommended;
79. The children live with their mother, [Ms Odawa].
80. Consideration be given to parental responsibility been granted to the primary parent with whom the children reside.
81. No spend time or communication to occur between the children and their father [Mr Tarabi].
82. Should any of the children seek re-establishing this relationship in the future, this should be done with careful consideration, and ideally with therapeutic input and direction.
83. [Ms Odawa] could benefit from therapeutic support.

It is clear the report writer finds Ms Odawa’s account of violence, and extreme violence, compelling and has herself accepted that account of the allegations of Ms Odawa are most serious and of the utmost gravity. I must apply the provisions of section 140(2). The report writer found Ms Odawa’s account compelling. I was not able to observe Ms Odawa being cross-examined which is a time-proven way that evidence is tested. For good reasons Parliament has, by section 102NA(1) & (2) prohibited that conventional test, but section 140(2) still applies.
Mr Tarabi’s denials of violence, and extreme violence, were made in a measured, calm and on face value, were not internally inconsistent. Although I do not find Ms Odawa’s evidence to be untruthful or implausible, I am not satisfied of her allegations of extreme violence on the robust standard of satisfaction required for allegations of such gravity.
Save that I am satisfied the report writer accepted the allegations of extreme violence and I am not satisfied of those allegations in accordance with section 140(2) of the Evidence Act, I accept the observations and opinions of the report writer of the parties and the children and the consequences for the children of the re-introduction of time for the children with Mr Tarabi. I give considerable weight to her recommendations.
THE PARTIES’ PARENTING CASES
Summary of Ms Odawa’s parenting case
Ms Odawa sought the following parenting orders:
Parental Responsibility
1. That the Applicant has sole parental responsibility for the care, welfare and development of the children of the relationship…
2. That the Children live with the Applicant.
3. That the Children communicate and spend time with the Respondent as agreed between the Applicant and the Respondent.
4. During the time the Children spend time with the Respondent, that the Respondent solely be responsible for the Children and shall not leave them unattended at any time and can only leave them in the care and control of a third party as agreed with the Applicant.
5. That in the event of illness or emergency, the party with whom the Children are with, contact the other party forthwith to inform them.
6.That the Applicant has the sole responsibility for decisions about the schooling of the Children and have the sole responsibility for liaising with schooling authorities, schoolteachers and receiving school reports.
7. That the parties jointly pay education expenses for the Children, including school fees, school clothes and any costs for extra curricula school activities of the Children.
8. That the parties maintain health insurance cover for the Children and pay and satisfy any medical, dental or orthodontic expenses for the Children which are not covered by such health insurance cover or by Medicare.
9. That while the Applicant has the sole parental responsibility for the Children, the Applicant has liberty to remove the Children from Australia for a period to be advised to the Respondent, and to that end, the necessity for the consent of the Respondent to the issue of passports to the Children is dispensed with.
Child Support
10. That the Respondent be assessed by the Child Support Agency for administrative assessment of child support pursuant to the Child Support (Assessment) Act 1989 for the support of the Children.
11. That any administrative assessment of child support made pursuant to Order 10 above is backdated to December 2015, being the date, the parties separated.
Ms Odawa says that the couple were together from 2007, married in a traditional ceremony in 2011, and separated in March 2016. Ms Odawa says that Mr Tarabi was violent to her from the first day they were together in 2007, including yelling and physical violence. She says that their family and community were sometimes involved rather than the police. She said that she and other women in their community are told not to call the police on their Husbands. She says that she stayed with Mr Tarabi because there was a lot of pressure on people in their community to keep wives in marriages and families together. She said that leaving the marriage was a big problem for her in the community.
Ms Odawa claims that since separation she has tried to get in touch with Mr Tarabi via their tightknit community to get him to form a relationship with the children. In her words at final hearing, she claimed that Mr Tarabi “made it clear to my father and narrated that he does not want to have anything to do with them.” At final hearing she said, “I’m more than happy for Mr Tarabi to have time with his children. I have never stopped him. He’s the one that hasn’t tried to actually see the kids.”
She claims that she does support the children having a relationship with Mr Tarabi, but would like any time to be supervised due to her fear of violence by Mr Tarabi toward the children as she is unsure whether he has changed since 2016. She also said that she believes they would be able to communicate, not directly but through their family members.
Counsel for Ms Odawa, in closing submissions, claimed that the parents mostly agreed to her orders sought in relation to the time the children spend with Mr Tarabi, as they reflect the 20 August 2019 interim orders made by consent, which had been in place for almost three years at that point. She also noted that they were not agreed to by the ICL. Counsel said that Ms Odawa would consider the children’s wishes when organising time. When pressed as to why the children has not spent any time with Mr Tarabi by agreement in three years, counsel said that was because Ms Odawa believed the children “were not in a position to have any contact at the time.” I note that neither parent had taken any steps to organise time during that period.
When I raised the ICL’s order sought for letters, cards, and presents, Ms Odawa said that she would not object to such an order, but that it should be worded “[Ms Odawa]” will facilitate the children in responding,” (similar to as sought by the ICL) and not “[Ms Odawa] must encourage the children to respond.”
In regards to the parental responsibility issue, Ms Odawa’s arguments largely mirrored those of the ICL (outlined below). When I asked Ms Odawa’s counsel whether I should limit parental responsibility to issues of health and education, she replied that Ms Odawa had no intention to change the children’s names or religion, but that the issue was best addressed now so that further litigation would not be required if an issue was raised in the future.
After hearing the ICL’s position of “no time” orders Ms Odawa stuck to her position of time as agreed. In final address her counsel, and I accept on specific instructions. Submitted:
MS MORRIS:            As to the spend time arrangements, I suppose it’s probably worthwhile clarifying that my client certainly does feel uneasy about him having contact, but she wouldn’t get in the way of a relationship, if that makes sense. If the court so finds that the children ought to be spending time with him, she would like for that time to be supervised, and also for consideration to be given to the fact that the children have expressed that they don’t want to see him. So certainly my client’s intention by having spend time arrangements to be according to the agreement between mother and father, that would have provided for the mother to ensure that any arrangements for spend time would be subject to their wishes or their mental health status at the time. Certainly we would agree that, at this stage, the children have expressed that they don’t want to see him, and that it may well be quite a traumatic or distressing experience for them. So any spend time arrangements, should they recommence, ought to be done very slowly and progressively, and in line with their views.
...
HIS HONOUR:          Is your client saying that if things were to change in the sense that if there were regular letters, cards and presents, and the children were disposed to spend time with the father, and she felt it was safe at the time, she would promote that to some modest degree?
MS MORRIS:            Yes, that’s correct.
Summary of Mr Tarabi’s parenting case
Mr Tarabi’s response sought the following parenting orders:
1.I agree with parenting orders from 1 to 4 but number 5 is not acceptable because Australia is the only safe country where I want our children to live. I have known the war and war cost me a lot, therefore taking children to most dangerous places is not a right thing for the welfare of the children. The children can decide to go anywhere when they are 18 years of age. If the court decide to allow her to take the kids out of the country then I won say anything but I am speaking from my experience.
...
3. Child support of about $20,000 be remove since she is getting 25% from the property
…
5. That the applicant must allow the respondent to see the kids
6. That the applicant must not force the kids to call her current partner dad, because the kids were forced to call by the her and current partner to call him father and children were very upset according to the family members who later told people that I know who then told me the information.
7. The child protection agency needs to get involve with family because children are in the house where people use drugs and alcohol in the present of the children.
Mr Tarabi’s case was that he did not commit any violence against Ms Odawa. He claims that Ms Odawa was a very angry person during their relationship. He said that Ms Odawa was not scared of him, and in fact had made several attempts over the last few years to reconcile with him through conversations with his sister and other community members. Ms Odawa denies this and claims that she is currently happily remarried with children from her new partner. She says that she only spoke to his sister in 2018 about transferring the Property.
During final hearing, Mr Tarabi indicated that he agreed to Ms Odawa having sole parental responsibility for the children’s health and education. However, he did not agree to Ms Odawa having sole parental responsibility in regards to the children’s names, their cultural/religious upbringing, and major changes to living arrangements. Ms Odawa claimed that she had never thought of changing the children’s names and claims that the parents both share the same religion and culture, so those aspects of sole parental responsibility would not be an issue.
He told the family report writer that he understood that reintroduction of time would have to be gradual, starting with him visiting in Melbourne for weekends and working up time from there. Mr Tarabi said that he wanted to get to know the children so that the children would know who their father is and not be left asking questions. He also said that he wanted to try to help and support Ms Odawa in parenting. He said that he used to work as a community worker and has a lot of experience with children. In regards to spend time arrangements, he indicated that he proposes:
·To talk to the children two or three times per week on the phone;
·To travel to Melbourne approximately once a month to visit the children;
·That his time with the children be supervised by Ms Odawa’s family or other community members; and
·That he spend time with the children on their birthdays or be invited to birthday parties.
I raised with him how he would manage to communicate with Ms Odawa in order to make such arrangements. He said that he was aware of the intervention orders and police involvement, but he dismissed them as not valid and said that they would work it out within a legal framework. He did not add any specifics.
Under cross-examination, Mr Tarabi claimed that he tried to get in contact with Ms Odawa via community members and family but that Ms Odawa always refused him any access. He says that she tried to use the criminal system to stop him from contacting her, including family violence intervention orders. Ms Odawa’s counsel put it to him that there were up to three years (2017 to 2020) where there were no intervention orders in place, and Mr Tarabi says that he presumed there were. Ms Odawa also claimed that Mr Tarabi never tried to contact the children and instead insisted that they would do so on their own, without his intervention, when they are older.
When questioned on the children’s wishes not to see or spend time with him expressed in the interim report and the family report, he said that the “possibilities of [the children] being brainwashed are very high”. He said that during the relationship, whenever he would visit the children in Melbourne, they would cry to him complaining that they wanted to go live in Sydney with him.
He said that he believed the children would come around over time and try to contact him themselves, no matter what happened in these proceedings, but he asserted that they need a father in their lives. The ICL questioned Mr Tarabi further on that issue and he, in a mildly defensive outburst, indicated that the children would be safe either way and that he had the mental capacity to deal with whatever the Court ordered in relation to parenting orders.
He also claimed that he had an active role in parenting before the relationship breakdown. He says that he bought parenting books and was excited to name his children after his family members. He says that he took his oldest daughter to childcare centres, encouraged her to read and write and bought her a toys. He says that he took the kids to the zoo, to the movies, clothes shopping, swimming and to go have fun, and that he wants to be able to do those things again. In final submissions he said:
… all I want is, I want to be in their lives, talk to them all the time, go back as I used to talk to them, and just reconnect and help the mother with the children.
I asked Mr Tarabi how reliable he would be in making regular contact or sending cards or gifts regularly and he said that he was very reliable. I put it to Mr Tarabi that, due to childhood trauma or any other reason, that he either finds it too hard to do the ordinary things of life, like keeping regular employment or organising tax returns. He claimed that he was the type of person to put his head firmly in the tasks at hand and business, and was trying to work out a way of life that was easy and best for him.
I take into account those submissions. I accept Mr Tarabi does want “to be in their lives”. The issue is whether in all circumstances that is in the children’s best interests.
Summary of the ICL’s case
The ICL produced a minute of proposed orders to the court that was marked exhibit ICL1. Those proposed orders are as follows:
1. That the mother have sole parental responsibility of the children …
2. That the said children live with the mother.
3. That the children spend no time with the father.
4. That the father be permitted to send letters, gifts and cards to the children.
5.The children may correspond in writing with the father and the mother shall facilitate such correspondence.
6. Pursuant to Section 11 of the Australian Passports Act 2005 (Cth) and the Court being satisfied that it is not practicable to obtain the consent of the father to enable the children to obtain an Australian Passport to travel outside of the Commonwealth of Australia ("Australia"), that the children be permitted to apply for an Australian Passport to enable them to leave Australia and furthermore the children be permitted to leave Australia without the permission of the father.
7. The Applicant mother may, in substitution for the father, sign any document/s required to obtain Australian passports for the children.
8. The mother may take the children from Australia to travel overseas for a holiday provided that she gives to the father at least 4 weeks prior written notice of the intended trip specifying the date and time of departure, the means of transport and all details pertaining thereto including details of the airline (or other carrier) with whom the children will be travelling, members of the travelling party in the case of family holidays, the intended destination and the intended date and time of return and subject to the trip.
9. That the parties keep the other advised at all times of their current residential address, email addresses and mobile telephone numbers.
10. Each party is restrained from discussing the details of these orders, or any matters arising from these proceedings, with the children, save as to advise the children about the next occasion that the children are going communicate with the father.
11. Such other orders as this Honourable Court deems fit.
[Emphasis added]
The ICL’s case was largely in agreement with the interim report and the family report. The three older children instructed the ICL that they did not want to see Mr Tarabi and remembered him being violent toward Ms Odawa.
The ICL’s case was that orders were made in August 2019 in this Court for the children to spend time with Mr Tarabi as agreed, but that Mr Tarabi had not contacted Ms Odawa about spending time with the children at all. The ICL raised that Mr Tarabi has an adult-centric view of himself and that his plans for the future (of leaving Country D to pursue business overseas and to live with his wife in Country F) do not involve or consider the children. However, the ICL conceded that there is no psychological assessment of either parent. Mr Tarabi denied being adult-centric, although may have been confusing this with being self-centred due to language issues, and added in final submissions: “it’s all about the children, for the welfare of the children. That’s what matters at the moment.”
Why the ICL’s orders sought were different to the Mother’s.
Counsel for the ICL claimed that the Mother’s orders sought were largely due to the parents’ culture and pressure on the Mother to keep communication and time possibilities open, but that she was actually “uneasy” about the children spending time and communicating with him. Counsel for Ms Odawa indicated that the Mother does feel “uneasy,” but also would not get in the way of any relationship.
The ICL also outlined that there would be a real practical difficulty in getting the children to see Mr Tarabi due to their reluctance and unhappiness in spending time with him.
The ICL pointed out that due to the historic family violence, outlined in the police reports detailed above, the parents would be unlikely to make decisions in the best interests of the children together, and so Ms Odawa should have sole parental responsibility. Indeed, the ICL pointed to section 61(D)(A)(iv) of the Act that the presumption of equal shared parental responsibility was displaced. The ICL also pointed out that Ms Odawa has had sole parental responsibility for over three years, and made no long-term major decisions that would enliven Mr Tarabi’s concerns of changing the children’s names or religion, or moving from where they are currently living.
Pointing again to the police documents, the ICL submitted that Mr Tarabi presents an unacceptable risk of “harm or psychological harm” by family violence to the children. The ICL submitted that the children should spend no time with Mr Tarabi.
APPLICATION OF THE LAW - PARENTING
The following headings relate to the full text of the factors set out at section 60CC (2) to (3) (a)-(m) of the Act recited earlier.
Primary Considerations
Benefit of the children having a meaningful relationship with both parents
I do not accept on the balance of probabilities all of Ms Odawa's allegations and consider section 140(2) of the Evidence Act. However, I am satisfied that Mr Tarabi did turn up in the middle of the night in 2016, damage the objects and put Ms Odawa in fear. In all the circumstances, particularly Ms Odawa’s attitude to Mr Tarabi and the children’s fear of him, that there is only a theoretical benefit to the children of a relationship with their Father, all other things being satisfactory.
The need to protect the children from physical or psychological harm.

The High Court varied the order of the Full Court and found that in the circumstances it was not just and equitable that a property settlement or property alteration order be made at all. This was so despite 37 years of marriage and contribution by the wife. Hence section 79(4) contribution, even 37 years of it, was not to be conflated with the section 79(2) “just and equitable” requirement but should be considered separately.
Apart from the general observations about section 79 the High Court also observed that it should not be concluded that the making of an order is just and equitable only because of, or by reference to, the matters in section 79 without a separate consideration of section 79(2).
The majority observed at [42]:
[42]In many cases where an application is made for property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice by made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and the wife. No less importantly, the express implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship... And the assumption that any adjustment of those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4) (and/or section 90SM(3)).
Each party here contends that it is just and equitable that I make section 90SM property alteration orders. Because of those matters, principally the Property being in Mr Tarabi’s sole name and the parties no longer having the shared use of it, I find that it is just and equitable to make property alteration orders in this case.
In Stanford the High Court did not go on to comment upon how section 79(4)  should be applied where it was just and equitable that a property alteration or settlement order be made.  Stanford was not concerned with the nuts and bolts of how section 79(4) was to be applied in the ordinary run of cases, to the extent there is such a thing.
The preferred approach
In Keskin & Keskin and Anor (2019) FLC 93-932 (‘Keskin’) the Full Court, Strickland, Kent & Austin JJ, at [44] approved what was the age old and pre-Stanford “preferred approach” as to the how the nuts and bolts of section 79(4) (and therefore its de facto counterpart at section 90SM(4)) fitted together as set out in Hickey and Hickey and the AG for the C’lth of Australia (2003) FLC 93-143 (‘Hickey’) at [39]. Hickey set out the preferred approach as follows:
[39] The case law reveals that there is a preferred approach to the determination of an application pursuant to the provisions of section 79. That approach involves four interrelated steps. Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of hearing. Secondly the court should identify and assess the contributions of the parties within the meaning of section 79(4)(a), (b) & (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly the court should identify and assess the relevant matters referred to in section 79(4) (d), (e), (f) & (g) (“the other factors”) including, because of section 79(4), the matters referred to in section 75(2) so far as they are relevant and determine the adjustment study (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
(Citations omitted and emphasis added)
Many family lawyers find that failing to have regard to the preferred approach in negotiations, mediation or litigation (including submissions) is likely to widen the areas of dispute and make resolution by agreement more difficult and often results in a party, or both, merely seeking what he or she simply wants or regards as fair from his or her point of view, at a time of intense grief and trouble due to the breakdown of their marriage, rather than seriously contemplate, with advice, what the law of the land provides. The law of the land is the Act and the authorities guiding its application.
The preferred approach assists me in making a principled and orderly determination of the parties’ property dispute.
APPLICATION OF THE PREFERRED APPROACH
I now turn to the application of the law as set out in Stanford and Keskin to the parties’ cases and the facts of the case.
Step one: identify the property and liabilities
I turn now to step one of the preferred approach, being the identification of the property pool and making findings as to any disputes.
The Property was purchased in 2015 for $370,000 in the sole name of Mr Tarabi. A deposit paid at around that time was $73,000, and stamp duty was $7,435.
In mid-2021, a real estate agent appraised the Property to have a potential sale price of between $530,000 and $560,000. That appraisal was adopted by consent and the value of the Property was agreed as $600,000. The Property was appraised at $560,000 approximately one year before the final hearing, and the parties agreed that it would be worth an additional $40,000 a year later.
The parties’ positions of assets and liabilities can be conveniently described (all figures rounded) as follows:

JOINTLY OWNED PROPERTY MR TARABI’S ($) VALUE MS ODAWA’S ($) VALUE

1 The Property 600,000 600,000

2 Mortgage debt on the Property (285,000) (285,000)

3 Water rates (from Ms Odawa’s outline of case) ( 7,362)

4 Equity in the Property 307,639 307,639

MR TARABI’S ‘KEEP’ (assets he retains)

5 Real or personal assets Negligible Negligible

6 Debts to various persons (24,000) Not included

7 TOTAL MR TARABI’S ‘KEEP’ (24,000) Negligible

MS ODAWA’S ‘KEEP’ (other assets she retains)

8 Motor Vehicle 1 (Ms Odawa’s assertion not disputed) 24,000 24,000

9 Household contents 15,000 15,000

10 TOTAL MS ODAWA’S KEEP: 39,000 39,000

11 TOTAL ASSETS AND LIABILITIES 322,639 346,639

SUPERANNUATION

Mr Tarabi’s super’n (Mr Tarabi’s value not disputed) 27,900 27,900

Wife’s super’n (Ms Odawa’s position not disputed) Nil Nil

TOTAL SUPERANNUATION 27,900 27,900

The dispute about the asset pool came down to whether Mr Tarabi’s debts should be included in the pool. I am not satisfied the debts claimed by Mr Tarabi relate to the period of cohabitation of Mr Tarabi and Ms Odawa or to the acquisition of the property. Some of the debts may well relate to the long period between the end of the relationship and the final hearing. Debts are usually taken into account as at the final hearing unless that would not be just and equitable. In the circumstances of the parties having separated long ago and having led entirely separate lives since including with new or different partners and at times in different countries, I am not satisfied it appropriate and just and equitable to take into account Mr Tarabi’s debts as debts that should be borne by him and Ms Odawa.
The equity in the Property comes almost entirely from the movement in the market since the purchase of the home. The relationship only survived for about six months, at most, after the purchase of the Property. I am not satisfied Ms Odawa’s account of the value of her household contents is accurate or that it is just and equitable that Mr Tarabi share in her inexpert opinion of the value of her home contents.
Hence I find the assets and liabilities are as follows:

JOINTLY OWNED PROPERTY

1 The Property 600,000

2 Mortgage debt on the Property (285,000)

3 Water rates (from Ms Odawa’s outline of case) ( 7,362)

4 Equity in the Property 307,639

MR TARABI ‘KEEP’ (assets he retains)

5 Real or personal assets Negligible

6 Debts to various persons Not included

7 Property purchased in Country D Negligible

8 MR TARABI’S ‘KEEP’ Negligible

MS ODAWA’S ‘KEEP’ (other assets she retains)

9 Motor Vehicle 1 (Ms Odawa’s estimate not disputed) 24,000

10 Household contents Some modest value

11 Ms Odawa’s interest in the business with her new partner Not valued or know but of some real value

12 TOTAL MS ODAWA’S KEEP: 39,000

13 TOTAL ASSETS AND LIABILITIES 331,639

14 SUPERANNUATION

Mr Tarabi’s super’n (Mr Tarabi’s estimate not disputed) 27,900

Ms Odawa’s super’n (Ms Odawa’s position not disputed) Nil
Step two: Section 90SM(4)(a), (b) & (c) contributions

I now turn to step two of the preferred approach, that is the direct and indirect financial contributions including contributions as home make and parent that the parties have made at the commencement of the relationship, throughout the relationship and post-separation and in a wholistic manner.
The thrust of the authorities of the Full Court, which I endeavour to apply, is that all direct and indirect contributions, financial and non-financial, made long ago or made recently must be considered and had regard to in a holistic manner. I am assisted by statements of the Full Court, including in Fields & Smith (2015) FLC 93-638[5] where at [43], the Court observed:
[42]If it is necessary to make the point again, and to highlight it for the purpose of this appeal, we add our endorsement to what has been made clear… that the words of s 79 (and/o section 90SM) do not provide endorsement for any category of contribution related to any class of property (for example, high wealth) being, by virtue of that category or class, more valuable or important that another. In each case the contributions made by the parties must be evaluated in the context of the facts particular to that case.
[5] In assessing section 90SM(4) contributions, I also acknowledge and apply Dickons & Dickons [2012] FamCAFC 154 (‘Dickons’) at [24], Hurst & Hurst (2018) FLC 93-851 (‘Hurst’) at [23], Lovine & Connor and Anor (2012) FLC 93-515, [2012] FamCAFC 168 (‘Lovine & Connor’) at [40] to [42].
I am mindful of the Full Court’s observations in Dickons as recently restated in Benson & Drury [2020] FamCAFC 303, and although a case dealing with a “Kennon” claim, the observations of the Court are apposite. Those observations include the following:
[35]… all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one again the remainder.
[36]That principle has a counterpart in the application factors prescribed in section 75(2) or section 90SM(3) of the Act. Any adjustment to the parties contribution-based- entitlements should be determined inclusively after considering all relevant factors; not by aggregating incremental adjustment in respect of each relevant factor.
[Citations omitted]
It is clear that the terms of section 90SM(4) require that I take into account all contributions within the terms of section 90SM(4)(a),(b) and (c) whenever they were made, and that it is an error to give greater or lesser weight to any particular type of contribution. However, a contribution is not to be disregarded merely because it was made long ago. Further, as stated in Wallis & Manning (2017) FLC 93-759 (‘Wallis’) at [105]:
The length of the marriage can be seen to be of considerable importance in the assessment of contributions.
In this case, the parties were together for almost 9 years and had 4 children together. Both parties agree that Mr Tarabi should transfer the title of the Property to Ms Odawa. The main dispute is whether there should be any sum paid by Ms Odawa to Mr Tarabi, and if so how much that payment should be, in order to make these property arrangements just and equitable.
In this matter, the parties are in dispute as to who paid the deposit for the Property. At final hearing, I raised the matter of Parshen & Parshen (1996) FLC 92-720 (‘Parshen’) with the parties, and I read out the below passage from Parshen:
In our view, in the absence of evidence to the contrary, it should be inferred in proceedings pursuant to the provisions of s 79 that moneys howsoever received by a party during the course of the parties' cohabitation, are used by that party for the benefit of the family unit. Such moneys, in those circumstances, thus constitute a financial contribution by the party who received the moneys.[6]
[6] See Parshen, 83665.
The consequence of the authority is that unless proven otherwise the income of the parties should be regarded as being applied to the purposes of the relationship. Hence exactly who and in what proportions the deposit the deposit was paid does not inform the contribution dispute. If Mr Tarabi or Ms Odawa pair it he or she paid it with income earned during the relationship and the other earned income or made home making contributions while the other party was earning the income applied to the deposit. If the deposit was paid from the community fund Ms Odawa obtained her entitlement from income earned during the relationship.
Counsel for the Mother raised that, despite having scant documentary evidence or transaction history for her own side, there was scant documentary evidence from his side to show any money spent on the family. Ms Odawa did raise that she has five years’ of evidence showing that the Mother has paid all costs in relation to the Property and all school fees since separation.
The limited available banking records from the time of the property purchase (see exhibit F5 at page 10 and page 31) are consistent with Mr Tarabi’s accounts of the payment of the deposit.
Ms Odawa submits that at the commencement of the relationship, neither had any assets of significance. Mr Tarabi asserts that at that time he paid around $95,000 and acquired some debts in order to pay for the wedding, some dowry gifts and cash payments to Ms Odawa’s family members.
Ms Odawa says that during the relationship, Mr Tarabi made next to no financial contributions to the running of the household and minimal contributions to homemaking or raising the children. Mr Tarabi disputes this and claims that he gave significant money to Ms Odawa and Ms Odawa’s parents, and that he assisted in various aspects of parenting.
In cross examination Mr Tarabi gave the following evidence:
MS MORRIS:             [Mr Tarabi], in 2015 just prior to you purchasing the house, you had quite a significant amount of money coming through in your income, sometimes $16,000 a fortnight. Did you consider paying back those debts when you were bringing in that amount of money?
]MR TARABI]:          No. Because I was planning to buy a house as soon as I could.
MS MORRIS:            Over a period of, perhaps, six months you were bringing in that significant amount of money. That would have been, let’s say, 30,000 at least a month. But the deposit that was paid was only seemingly about $56,000. Is that correct?
[MR TARABI]:          Yes, that’s correct. Yes.
MS MORRIS:            So, effectively, we’ve got a significant amount of money left over that you could have put towards these outstanding debts. Is that right?
[MR TARABI]:          Yes. But I was – the money – I did not use the money. I was stupid at the time. I was using that money on my – you know, on my family and the – and my in-laws. I was not only using that money on me. I do shopping and I give them the money sometimes to pay for the movies and things like that. So, really, I thought I was part of the – part of the family because I don’t have any family member in Australia with me except my kids and my in-laws. So I put myself as the child that is successful, maybe, at the time – I was thinking that I was going to be successful. So, therefore, it would have to be their son and call them my parents. But I don’t know where – I did not know, whatsoever, that things would go this way. But guess what? Things happen, and we learn from them. So, yeah, I made a mistake for not using those money properly. That was stupid of me.
MS MORRIS:            In your affidavit you’d said that you’d paid to the wife’s family roughly 35,000 at the start of the relationship in 2008 and 45,000 at the time of marriage as a form of dowry, is that correct?
[MR TARABI]:          Yes. But that’s not relevant, because it’s not part of the thing – you know, not part of the thing that, you know, we’re claiming here.
MS MORRIS:            Okay. Around the time of the wedding, which is in 2011, 2012, you claim that you had paid 45,000 as a dowry, but you’d also taken in loans?
[MR TARABI]:          Yes.
MS MORRIS:            At the time?
[MR TARABI]:          Yes.
MS MORRIS:            Okay?
[MR TARABI]:          And, beside that, I have to give – you know, the in-laws, during the wedding, have to give the in-laws, when we talk, the traditional ..... talk. All the in-laws have to watch their mouth. The brothers-in-law, sisters-in-law, aunties, uncles – and I paid 35,000 – I put the $35,000 into the envelopes then, boom, gone.
MS MORRIS:            Okay. I – with respect to your bank statements of 2020, I think you provided perhaps three different bank statements. Actually, I withdraw that: sorry, your Honour. Sorry, can you confirm, [Mr Tarabi], when you became unemployed?
[MR TARABI]:          I became unemployed in – when was that? Actually, as soon as I – you know, like, it was in 2016, something – something like 2016. Or, you know, until, maybe, early, you know, like let’s say the first half of 2017.
MS MORRIS:            Okay. And so after you finished with [Q Company] around mid-2016, what did you – so you were unemployed after that period of time?
[MR TARABI]:         Until, maybe, early – you know, like, let’s say the first half of 2017.
MS MORRIS:            Okay. And, so, after you finished with [Q Company] around mid-2016, what did you – so you were unemployed after that period of time?
[MR TARABI]:          I was working.
MS MORRIS:            What were you doing?
[MR TARABI]:          I was working in a factory in [Town R]. It’s a place – I don’t think you know – you’ve ever heard of it.
MS MORRIS:            Okay. And how long were you working there?
[MR TARABI]:         Possibly around six months or so. Something like six months or more than six months, yes.
MS MORRIS:            Okay. So that brings us to, maybe, the end of 2016 start of 2017?
[MR TARABI]:         Yes.
MS MORRIS:            And what did you do after that?
[MR TARABI]:         After that, did nothing.
MS MORRIS:            So you’ve been unemployed since 2017?
[MR TARABI]:         Yes.
…
MS MORRIS:            [In March], there’s a cash deposit for $130. [March]– sorry, $450. April, $700. April, there’s quite a number of small deposits, so $50, $60, $100, $100 and $500. And that’s – so that’s it for the period of March and April. Are you able to comment on these cash deposits and where they came from?
[MR TARABI]:         Yes, there are a few things: (1) people – you know, like, people send – you know, like, we have this thing called [T]. People put money – you know, like, people bring the money in to me – you know, to me, they can put money into the account, then I will take the money to the – you know, to the person responsible for [T]. Sometimes, people, you know, just support me. They say, “[Mr Tarabi],” you know, like, “things are hard for you.” They give me some money, put money into their – into the account to support me. So there are many activities. Some people, you know, put money to the account so that I will take them to the people that send money to [Country D], in [Country D], in [Country F], because we have these small companies of people that transfer money overseas. So what they – what these – what people do is, “[Mr Tarabi], I will put money into your account, and then this money go and send them – send – send them in for me.” So I do that. We have – in the community, we have some old – old women and old men, people who don’t know, you know, like, how things operate. They – they – they just send me. So I – and the fact that I was not working, I was free to move around, they just, you know, send me here and there and do activities for them.
MS MORRIS:            Okay. So some of the money, you say, was given to you by other people so that you could send it to [Country D]?
[MR TARABI]:         Send them on their behalf, yes.
MS MORRIS:            Okay?
[MR TARABI]:         And some people, they send – put the – put the money into account to just support me because they know that I’m struggling.

I accept Mr Tarabi’s evidence that he earned a substantial income and that he made some contribution to the family expenses. I accept he has lately struggled financially for some considerable time. I am unable to discern the cause of the rapid change in Mr Tarabi’s fortunes. I am satisfied that prior to the purchase of the Property Mr Tarabi was earning a substantial income. I am satisfied that some significant part, but not all, of Mr Tarabi’s substantial income was applied to the purposes of the relationship. I am satisfied that directly and indirectly, in ways that are not able to be precisely discerned both parents should be regarded as contributing to the deposit. Direct contribution to the deposit does not determine the property case. It is but one aspect of many years of cohabitation and contributions since separation.
It is not in dispute that since separation (late 2015 or early 2016), Ms Odawa has taken 100% of the burden of raising the children and 100% of the burden of paying the costs of the Property, including mortgage debt. Mr Tarabi says that he misses the children and has been stopped from making contact with them by Ms Odawa. Mr Tarabi also says that the payments that Ms Odawa has made toward the property are more akin to an informal rent which he allows as his children live in the Property.
Ms Odawa has had since separation the entire burden (and joy) of the care of the children and that is a significant contribution. Ms Odawa has made all mortgage payments since separation. It is only because of Ms Odawa’s diligent payment of mortgage debt for the many years post separation that any equity survives to this day.
I am satisfied that directly or indirectly both parties contributed equally to the deposit. The parties many years of contribution before the home was purchased and since overwhelm the contribution of the deposit payment.
Ms Odawa’s overall contributions, including after the end of the relationship, are much greater Mr Tarabi’s. I also take into account that Ms Odawa by all her contributions should be regarded as indirectly contributing to Mr Tarabi’s superannuation.
The equity in the Property arises from the increase in value of the Property after the relationship ended. The Property remains in the ownership and possession of the parties because of Ms Odawa’s efforts to service the mortgage after separation. Had Mr Tarabi sought to disturb the status quo of Ms Odawa in possession of the home with the title and debt in his sole name that would likely have been successful. By his acquiescence in that arrangement and Ms Odawa servicing of the mortgage the parties are able to share in the benefit of the significant movement in the market since purchase.
Mr Tarabi undertook the legal burden of the entire borrowing for the Property purchase. He has not disturbed that arrangement now for many years and remained and remains liable for that debt in his name. He has left Ms Odawa the use of that debt and the Property for many years. I regard those matters as contributions pursuant to section 90SM(4). He did have the benefit of those arrangements providing a home for his children.
I do not accept that Mr Tarabi has made a nil or no contribution, direct or indirect within the meaning of section 90SM(4), to the Property.
I regard Ms Odawa as making about more than double the overall contribution of Mr Tarabi but not three times the overall contribution. I assess section 90SM(4) contribution overall as being roughly in the proportions of 70/30 in Ms Odawa’s favour.
In dollar terms that translates to contribution by Mr Tarabi of about $100,000 or 30% of the pool of non-superannuation of about $331,600 (rounded).
Step three: Section 90SF(3) factors
I now turn to third step of the preferred approach recited earlier.
I refer to the observations of the Full Court regarding section 75(2) (and therefore it’s equivalent de facto provision at section 90SF(3)).
The observations of the Full Court in Clauson & Clauson (1995) FLC 92-595 (‘Clauson’) have guided judges and practitioners since 1995. In Clauson the Full Court did not interfere with a contribution assessment of 75/25 in the husband favour. But on a re-exercise of discretion, the Full Court made a section 75(2) adjustment of 25% and included the observation (at 81,911) about consideration of section 75(2) factors that:
…in any event it is the real impact in money terms which is ultimately the critical issue.
In Rosati v Rosati (1998) FLC 92-804 (‘Rosati’) the Full Court had reason to re-exercise the discretion in the division of the parties’ assets in a $1,500,000 pool of assets back in 1998. After finding that section 79(4) contribution should be regarded as 60/40 in the Husband’s favour the Full Court found a 10% adjustment on account of section 75(2) factors was appropriate. But it is significant how the Full Court addressed the income disparity on account of section 75(2), way back in 1998, and it was addressed as follows at 85,046:
On our adjusted figure for the value of the parties net assets ($1,503,863), adjustment of 10% in the wife’s favour results in an increase in her entitlement of $150,386, and a corresponding reduction in the husband’s entitlement, producing a differential movement between them of $300,772 …
Decisions where the Full Court finds error and re-exercises the discretion or decision are always of particular assistance to Judges and practitioners where the facts are similar enough to be roughly comparable.
In Wayne & Wayne [2010] FamCAFC 33 (‘Wayne’), the Full Court dealt with an appeal where the total asset pool was $937,000 (in 2010 dollars), the parties had 4 children aged 18, 16, 10 and 8. The 18-year-old could be regarded as independent and the 16 year old, having left school, and was soon enough to be working or looking for work. The 10- and 8-year-old children lived in a 5/9 nights per fortnight in school term and shared holiday arrangement, with the Husband for the 9 nights. The 16-year-old also lived with the Husband. The Husband was found to have a full-time earning capacity of $45,000 to $50,000 and the Wife worked 35 hours per week and had slightly less earning capacity[7]. Contribution was found to be 48/52 in the Wife’s favour and that was not interfered with on appeal.
[7] See at [58] and despite complaint the Full Court did not interfere with those findings.
In Wayne, in those circumstances, the Learned Trial Judge made a section 75(2) or third step adjustment of 10%. The Full Court found the extent of that adjustment to be an error of law and decided the adjustment should be only 4% in the circumstances. The rational of that decision can be easily discerned from the following paragraphs of the appeal decision:
[107]It is also important to recall what was said in Phipson & Phipson [2009] FamCAFC 28 when the Full Court was dealing with another appeal from the trial Judge in the present proceedings:
[39]It is always important to keep in mind that an adjustment of X% for s 75(2) factors leads to a disparity in the value of property received by the parties representing 2 x X%. It is that disparity, measured in “money terms”, that requires consideration in determining whether the result is just and equitable: see Campbell v Kuskey (1998) FLC 92-795 at 84,928.
[108]The 10% adjustment his Honour made on account of s 75(2) factors has led to a disparity in favour of the wife equivalent in value to 20% of the assets. In money terms this represents $187,733 out of a total asset pool of $938,665. Apart from the issues associated with the care, accommodation and maintenance of the children, the s 75(2) factors largely balanced out (save that as a result of the assessment of contributions the wife would have more capital than the husband). The husband was going to have whatever responsibility remained for the care, accommodation and maintenance of J. Both parties would have significant responsibility for the two younger children. It is true the wife will have the children with her about 20% more of the time than the husband, but this amounts to only a little more than 70 additional days a year.
[109]In our view an assessment leading to a disparity of $187,733 in the capital/superannuation to be received by each party was outside the reasonable ambit of the trial Judge’s broad discretion, even taking into account the matters found by his Honour relating to the non-payment of child support in the period after the husband gave up his employment. Our conclusion is sufficient to enliven appellate intervention (House v The King (1936) 55 CLR 499 and Norbis v Norbis (1986) 161 CLR 513). The appeal will therefore be allowed.
…
[112]In our view, given that the children will be with him around 40% of the time, the husband’s accommodation needs for the children would not be significantly different to those of the wife. However, in light of the agreement in relation to child support, we accept that the wife will bear the greater proportion of the burden of maintaining the two younger children (at least for the time being). The husband, on the other hand, will have whatever responsibility remains for accommodating and maintaining J. The other s 75(2) factors, in our view, are evenly balanced, save for the fact that as a result of the assessment of contributions the wife will have 4% (or $37,546) more of the assets/superannuation than the husband.
[113]Taking these matters into account, and the failure of the husband to pay child support after giving up his employment, we consider there should be a 4% adjustment for s 75(2) factors, creating a disparity of 8% between the parties – or in money terms an amount of $75,093.
In Lovine & Connor another Full Court approved the observations in Wayne and demonstrated that the percentage, the actual dollar amount of the adjustment and the disparity the adjustment creates should be taken into account when considering a section 75(2) adjustment.
The disparity that a 15% adjustment made between the parties in Lovine & Connor contributed to that Full Court finding that such an adjustment was wrong in that case. However, the facts of that case are very different to this one and so that case does not assist with what would be an appropriate adjustment in dollar or percentage terms but the cited principle remains applicable. In Wallis the Full Court, after a discussion of the section 75(2) factors applicable to that case, concluded:
[169]In our view, s 79(4)(e) requires those matters to be taken into account in arriving at orders that are just and equitable as between the parties. In arriving at an appropriate assessment for those factors, a dollar value of it should be uppermost in our minds [79] and, of course, the ultimate disparity in entitlements which it might produce. That dollar value is, in turn, dependent upon the value of the interests in property of the parties.
In Varnham & Moses (2021) FLC 94-007 the Full Court again approved the “real money” approach of Wayne, and of Phipson & Phipson [2009] FamCAFC 28 (cited in Wayne), and of Lovine & Connor.
There can thus be no doubt that settled law requires, when considering all relevant section 90SF(3) factors that the “real money” as well as the “percentage” must be considered, as well as the disparity between the parties, that any adjustment creates.
I now turn to the factors to be taken into account pursuant to section 90SF(3). I recite only part of the provision in the heading for convenience but take into account the whole of the relevant provision.
Age and state of health
Ms Odawa is 34 years old and suffered depression when in the relationship with Mr Tarabi.
The Husband is 44 years old and, I infer from a lack of evidence otherwise, in good health.
Income, property, financial resources and capacity for employment
Ms Odawa is currently employed in two jobs. In her financial statement she wrote that she earns $350 per week on Centrelink payments and has expenditures of $350 per week, and that her current partner earns $600 per week. At final hearing, she said that she was earning roughly $750 per week working as a support worker, although that amount fluctuates depending on the available shifts. She also says that she runs a business with her current partner and earns approximately $4,000 per week, although it is not clear whether that amount is earned by her alone or jointly with her partner. Together, she earns around $4,750 per week or $250,000 per annum. She pays $1,500 per month toward the mortgage, plus other household expenses.
Although not valued or referred to in her financial statement, and not hidden (referred to by Ms Odawa to the family report writer) Ms Odawa has an interest or connection with a business that she and her partner operate and that provides income to her. The nature of value of that interest is not known to me. There is no suggestion Mr Tarabi has made any contribution to that interest.
Mr Tarabi is on Centrelink benefits and has largely been so since separation. He says that he pays $220 per week in rent, and at final hearing had next to no money in savings. He also has had an impressive tertiary education that may allow him to take up employment in many different fields. However, his lack of ability to hold down jobs in Australia for any length of considerable time shows that he perhaps does not have a significant capacity for long-term employment. I hope he proves me wrong. Ms Odawa is in a superior position financial position to Mr Tarabi but works much harder.
Care of children under 18 years
Ms Odawa has the sole care of the children of these proceedings, plus two children from her current partner. Ms Odawa will continue to have the burden. Ms Odawa works hard to provide for the children, including their private school education, and Mr Tarabi makes no contribution to those expenses and is unlikely to.
Mr Tarabi has the obligation to care for the one child of his current relationship, although that child lives overseas with its mother.
Commitment of each of the parties to support themselves or a child
I find that each of the parties have their own commitments. Ms Odawa will have the substantial expense of the care of the children. It is unclear what commitments Mr Tarabi has to his current relationship in Country F.
Responsibilities of either party to support any other person
The parties did not provide any indication that this factor was relevant in these proceedings.
Pension or benefit
Neither party has significant superannuation due to spending substantial time on Centrelink benefits and self-employment.
Reasonable standard of living
Mr Tarabi has almost no money at present. I accept he struggles to make ends meet. Ms Odawa has a substantial, relative to Mr Tarabi, income.
Would maintenance assist education or training
This factor is not relevant in this case. Mr Tarabi is highly educated, and Ms Odawa has two significant income streams and has not provided any evidence that she intends to study, nor does she need to.
Effect on creditors
Mr Tarabi says that he has several debts to community members from the time of the wedding. Given Mr Tarabi’s income in the time leading up to the purchase of the Property, the existence of debts from years before, and the non payment of them, is implausible and I do not accept the alleged debts on the balance of probabilities. While Mr Tarabi claims that some or all of those debtors are angry with him, he has provided no indication that they will take legal action to enforce the debts. To an extent that I cannot be certain of, I am satisfied that he has a moral obligation to deal with some people he has received money from in recent times.
Effect of a party contributing to the earning capacity and property of the other
Mr Tarabi obtained significant education during the marriage, although he claims that he was also working full-time and contributing as he studied. Neither party submitted this factor was significant in this case and I will not speculate as to the effect of that on his income.
Duration of marriage and the extent any earning capacity has been affected
The parties did not provide any indication that this factor was relevant in these proceedings.
Protect parties’ role as a parent
I do not find that there is any need for any adjustment on account to protect either party’s role as a parent.
Whether party cohabiting with another person
Ms Odawa is cohabitating with her current partner, Mr E. They have the benefit of the use of the Property and have done so for the last 6 years, albeit they have paid down the mortgage, paid all the bills and expended costs in maintenance of the Property.
Mr Tarabi does not currently cohabit with his current partner as she lives overseas in Country F. He lives in a shared rental accommodation, an apartment with shared facilities, and has the burden of that cost and that housing insecurity.
Child support to be provided
Mr Tarabi has considerable arrears in child support, as discussed above. I am not satisfied he ever will pay any proper or regular child support notwithstanding that he should if he were employed.
Any fact or circumstance required to take into account
The Property is and has been the home of Ms Odawa and children for many years.
Conclusion as to section 90SF(3) factors
Balancing all these factors I am satisfied there should be an adjustment on account of section 90SF(3) of 15% to Ms Odawa. That adjustment is in dollar terms about $49,000 and creates a disparity on account of section 90SF(3) factors of about $98,000. That adjustment is several years of Mr Tarabi’s JobSeeker income and about half Ms Odawa’s annual income but much less than a proper contribution to the children’s private school fees or other costs.
Step four: Just and equitable and conclusion
I now turn to step four of the preferred approach, applying the principles of a just and equitable conclusion in all the circumstances.
With my assessment of contribution as 70/30 in Ms Odawa’s favour and a 15% adjustment on account of section 90SF(3) in Ms Odawa’s favour, that provides an overall 85/15 division of the asset pool or 15% to Mr Tarabi.
15% of $331,639 is $49,746 (rounded). That will require Ms Odawa to refinance the existing debt of roughly $285,000, plus raise or finance the further $49,746 payment to Mr Tarabi, a total potential borrowing of $334,746 plus borrowing costs.
Standing back and looking at those findings and calculations I am satisfied that orders for such a payment to Mr Tarabi is just and equitable.
CONCLUSION - PROPERTY
I am satisfied that orders for the Husband to transfer all his right title and interest in the Property at the same time as the Wife refinances the mortgage debt into her sole name and pays the Husband $49,746 is just and equitable. In default of refinance and payment the home should be sold and the Husband paid 15% of the sale proceeds after payment of mortgage debt, sale costs and encumbrances plus $3,600 being 15% of the value of the motor car. There should be liberty to apply as to any difficulty with implementation of these orders or any default sale. I am satisfied that post the banking Royal Commission more time than the once standard 60 days to organise funds and refinance should be provided. The Wife should have 90 days to make the payment and refinance the mortgage.

I certify that the preceding two hundred and fifty-six (256) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.
Associate:
Dated: 3 November 2023

File number:	MLC 5506 of 2019
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	3 November 2023
Catchwords:	FAMILY LAW – final parenting orders – final property alteration orders – de facto relationship – where father has not had time with the children since separation in 2016 – weight to be given to children’s wishes – weight to be given to mother making all mortgage payments since 2016 – restrictions on fact finding due to section 102NA – former relationship home and mortgage registered in sole name of father – whether father should be regarded as making any contribution at all – mother solely responsible for expenses of four young children – father to communicate with children by letters, cards and presents, and as agreed in writing with the mother – property orders determined on basis of a 70/30 assessment for contributions and section 90SF factors adjustment of 15% in mother’s favour – payment to father within 90 days and transfer of former relationship home to mother.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4, 4AB, 60CA, 60CC, 60CF, 60CG, 61DA, 65DAC, 79, 90SF, 90SM, 102NA Marriage Act1961 (Cth)
Cases cited:	Adamson & Adamson (2014) FLC 93-622 Benson & Drury [2020] FamCAFC 303 Browne v Dunn (1893) 6 R 67 Clauson & Clauson (1995) FLC 92-595 Dickons & Dickons [2012] FamCAFC 154 Fields & Smith (2015) FLC 93-638 Fox v Percy (2003) 214 CLR 118 Hickey and Hickey and the AG for the C’lth of Australia (2003) FLC 93-143 Hurst & Hurst (2018) FLC 93-851 Keskin & Keskin and Anor (2019) FLC 93-932 Litigants in Person Guidelines [2001] FamCA 348. Lovine & Connor and Anor (2012) FLC 93-515, [2012] FamCAFC 168 Parshen & Parshen (1996) FLC 92-720 Phipson & Phipson [2009] FamCAFC 28 Rosati v Rosati (1998) FLC 92-804 Stanford v Stanford (2012) FLC 93-518 Varnham & Moses (2021) FLC 94-007 Wallis & Manning (2017) FLC 93-759 Wayne & Wayne [2010] FamCAFC 33
Division:	Division 2 Family Law
Number of paragraphs:	256
Date of hearing:	30 May – 1 June 2022
Place:	Melbourne
Counsel for the Applicant:	Ms A. Morris
Solicitor for the Applicant:	Mayek Legal
The Respondent:	Litigant in person
Counsel for the Independent Children's Lawyer:	Mr R. Allen
Solicitor for the Independent Children's Lawyer:	Aitken Partners Pty Ltd

MLC 5506 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS ODAWA Applicant
AND:	MR TARABI Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	3 NOVEMBER 2023

Exhibit No:	Description:
Monday 30 May 2022
F1	Response to initiating application
F2	Affidavit from Mr Tarabi, part of F1 response
F3	Financial statement of Mr Tarabi
F4	Bundle of bank statements, starting with statements from bank 1
F5	Bundle of bank statements commencing with bank 2 statement
ICL1	Minute of proposed orders
M1	Mortgage statements. Court Book pages 423-425
M2	bank statements showing movement of money from Ms Odawa’s account to the mortgage account - Page 425 of Court Book
ICL2	LEAP record re: mid-2016 - Page 1-2 of VIC pol bundle
ICL3	NSW police records re: 2010 - pages 14-15 of bundle
Tuesday 31 May 2022
M3	Child Support statement for W
F6	Mortgage statement
ICL4	NSW police records re: 2012 - pages 11-12 of bundle
ICL5	LEAP record re: Court appearance 2020, page 6 of VIC pol bundle
M4	FVIO from 2016
M5	FVIO from 2020
Wednesday 1 June 2022
M6	Bank 3 documents & Title search – Court book pages 274, 278-281
M7	Finance Application – Court book 324-371
M8	Account transactions – Court book pages 424 & 415
M9	Bank 3 home loan application documents – Court book pages 422-425
ICL6	4 December 2020 11F report

JOINTLY OWNED PROPERTY	MR TARABI’S ($) VALUE	MS ODAWA’S ($) VALUE
1	The Property	600,000	600,000
2	Mortgage debt on the Property	(285,000)	(285,000)
3	Water rates (from Ms Odawa’s outline of case)	( 7,362)
4	Equity in the Property	307,639	307,639
MR TARABI’S ‘KEEP’ (assets he retains)
5	Real or personal assets	Negligible	Negligible
6	Debts to various persons	(24,000)	Not included
7	TOTAL MR TARABI’S ‘KEEP’	(24,000)	Negligible
MS ODAWA’S ‘KEEP’ (other assets she retains)
8	Motor Vehicle 1 (Ms Odawa’s assertion not disputed)	24,000	24,000
9	Household contents	15,000	15,000
10	TOTAL MS ODAWA’S KEEP:	39,000	39,000
11	TOTAL ASSETS AND LIABILITIES	322,639	346,639
SUPERANNUATION
Mr Tarabi’s super’n (Mr Tarabi’s value not disputed)	27,900	27,900
Wife’s super’n (Ms Odawa’s position not disputed)	Nil	Nil
TOTAL SUPERANNUATION	27,900	27,900