Paton & Paton - [2024] FedCFamC2F 676

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Paton & Paton [2024] FedCFamC2F 676

File number: SYC 7752 of 2019

Judgment of: JUDGE BECKHOUSE

Date of judgment: 28 June 2024

Catchwords:
FAMILY LAW – CHILDREN –Where the father has refused to disclose details of his mental health – Where the father has inability to manage and control his aggression –Where father’s use of force and excessive disciplining of children leaves them at risk of harm in his care – Where father lacks insight - Where mother found to have acted protectively– Where father’s tendency to lie about his conduct and his negative narrative about mother to external agencies’ responsible for protecting children has exposed children to harm – What weight to place on views of eldest child who is resistant to spending time with the father.

FAMILY LAW – PROPERTY – Value of property.

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Contribution by third party – Future needs.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 75, 78, 79

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

Af Petersens & Af Petersens (1981) FLC 91-095

Hickey & Hickey & Attorney-General for the Commonwealth (Intervener) (2003) FLC 93-143

Keane & Keane (2021) 62 Fam LR 190

Mallet v Mallet (1984) 156 CLR 605

Rolfe & Rolfe (1979) FLC 90-629

Stanford v Stanford (2012) 247 CLR 108

Division: Division 2 Family Law

Number of paragraphs: 328

Date of hearing: 27 November 2023 to 29 November 2023 & 15 February 2024

Place: Sydney

Counsel for the Applicant: Ms Lawson

Solicitor for the Applicant: Watkins Tapsell

Counsel for the Respondent: Mr Blackah

Solicitor for the Respondent: Marsdens Law Group

Counsel for the Independent Children's Lawyer: Ms Rebehy

Solicitor for the Independent Children's Lawyer: Legal Aid NSW
ORDERS

SYC 7752 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS PATON

Applicant

AND:
MR PATON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

28 JUNE 2024

ON A FINAL BASIS THE COURT ORDERED ON 25 JUNE 2024:
1.All previous Orders are discharged.

PARENTING
Parental responsibility
2.The Mother have sole parental responsibility for the children X born in 2013, Y born in 2015 and Z born in 2017, collectively referred to as (“the children”).

Live with
3.The children live with the Mother.

Spend time with
4.X spend time with the Father as agreed between the parties noting that the parties will have regard to his views.
5.Y and Z spend supervised time with the Father, until Y completes term 3 of Year 7, each fourth Sunday for four (4) hours supervised by the supervised contact service B Contact Service or such other supervised contact service as agreed between the parties in writing.
6.Y and Z spend additional time with the Father, if they are not already, as follows:
(a)On Christmas Day each year for a period of four (4) hours at times as agreed between the parties, and failing agreement, from 1.30 pm – 5.30 pm; and
(b)On Father’s Day each year for a period of four (4) hours at times agreed between the parties, and failing agreement, from 1.30 pm – 5.30 pm

and this additional time with the Father will be supervised until Y completes term 3 of Year 7.
7.As to the independent professional supervision required under these Orders:
(a)The Father shall be responsible for the costs of such supervision.
(b)Each party will be responsible for the individual costs of their intake sessions with the supervision service.
(c)If the Father is not able to attend a visit, he shall provide the supervision service with no less than 24 hours’ notice of his inability to attend unless in case of a medical emergency, in which case he shall provide as much notice as is practicable and thereafter provide a medical certificate no later than 48 hours after the missed visit.
(d)If the Mother is unable to make a child available for a visit, she shall provide the supervision service with no less than 24 hours’ notice of her inability to provide the child unless in the case of a medical emergency, in which case she shall provide as much notice as is practicable and thereafter provide a medical certificate no later than 48 hours after the missed visit.
(e)The Mother and Father shall each comply with all reasonable directions from the supervision service, including directions as to whether supervised time can continue to be offered in the event of cancelled visits.

8.At the conclusion of Order 5, Y and Z spend time with the Father in accordance with their wishes.
9.Should X express an interest to be included in the supervised time with the Father, the parties will facilitate this inclusion.

Family therapy
10.The parties shall continue to attend upon family therapy through C Centre, or such other family therapist as agreed between the parties, for such time as recommended by C Centre/the family therapist and for that purpose:
(a)the Mother shall ensure that X attends family therapy as recommended;
(b)the parties shall follow the recommendations made by the therapist/s including facilitating the participation of Y and Z in family therapy; and
(c)the parties shall pay for any sessions that they personally attend with a child and if a child attends alone, they will equally share the costs of any therapy sessions involving the child/children.

11.Prior to Y and Z spending unsupervised time with the Father in accordance with Order 8, the parties shall attend family therapy through C Centre, or such other family therapist as agreed between the parties.

Communication
12.The parties shall each facilitate telephone or video calls between Y and Z and the other party on any day when Y and Z are with the other party which falls on a birthday for any of the children (including X as he wishes) or the other party.
13.The parties will maintain email and mobile phone accounts and shall keep the other party informed as to their email, mobile numbers and residential addresses and notify them of any change within 24 hours.
14.With regards to the children’s medical treatment:
(a)Twenty four (24) hours before any unsupervised time between the Father and the children, the Mother shall advise the Father of any medications prescribed to X, Y and Z and the Father shall ensure he has a supply of the prescribed medication when the children are in his care and will follow the prescribing medical professional’s directions for administering medication to the children.
(b)The Mother shall provide the Father with the names and contact details of any psychologist, psychiatrist or medical practitioner that the children commence attending upon a regular basis within seven (7) days of engagement with that practitioner.

Miscellaneous
15.Within 14 days of these Orders or within 14 days of a child’s subsequent engagement with a medical practitioner, the parties shall sign any authorities or other documents (if any) as may be required to authorise any doctor or specialist upon whom the child/children attend to communicate with and forward to the other party, at the requesting party’s expense, copies of any medical reports.
16.Within 14 days of these Orders or within 14 days of a child’s subsequent enrolment at any school, the parties shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the other party copies of all of each child’s school reports and merit cards, any written material pertaining to each child’s academic and extracurricular activities and that the other party otherwise be authorised to communicate with the school regarding matters pertaining to the children.

Restraints
17.The parties be restrained from:
(a)Denigrating or criticising the other party and/or members of their respective extended family to and/or in the presence of and/or within the hearing of the children.
(b)Using physical discipline on the children or allowing someone else to do so.

18.The Father will not attend any of the children’s events (school, social or sporting) without the express written consent of the Mother, and in the event that he finds himself inadvertently at a venue or event attended by any of the children, he will immediately leave.

International travel
19.The Mother is permitted to travel internationally with the children during her ordered time with them upon providing the Father with written notice of destination, departure and arrival dates, not less than 28 days prior to the departure date.
20.Pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth) (or any Act replacing that Act and making like or similar provisions), the Mother, Ms Paton, be permitted to apply for and have issued to her an Australian passport for each of the children, X born in 2013, Y born in 2015 and Z born in 2017 or renew such passport in the absence of consent or otherwise of the Father, Mr Paton, AND IT IS REQUESTED THAT the Department of Foreign Affairs and Trade provide whatever assistance is necessary in relation to the issue or renewal of such passport/s.

BY CONSENT AND ON A FINAL BASIS THE COURT ORDERS THAT:
PROPERTY
21.Upon the making of these Orders, that the Husband's Solicitors Marsdens Lawyers do all acts and things to distribute the funds currently held in Controlled Monies Account with D Bank ending #...86 as follows:
(a)In full payment of the costs of the Independent Childrens Lawyer (Legal Aid NSW), which stand at $21,586;
(b)In payment to the Husband in the amount of $12,786 to Marsden Law Group’s trust account with the following details:
BANK: CBA
BSB: …
ACCOUNT: …69
REF NO: …; and
(c)In payment to the Wife all sums remaining after the payments set out in Orders 1.1 and 1.2 to Watkins Tapsell Solicitors Trust account with the following details:
Watkins Tapsell Law Practice Trust Account
Bank: Westpac
Address: 341 George St, Sydney, NSW 2000
BSB: …
Account No: …99

22.Within 14 days of the date of these Orders the Wife will do all acts and things and sign all documents required to:
(a)close Commonwealth Bank Account ending #...51 that is presently held in the joint names of the parties and any funds contained within those accounts will become the sole property of the Wife; and
(b)remove the Husband as a signatory to the Commonwealth Bank accounts held in trust for the children ending #...84 and #...76

23.Except as otherwise provided for herein, each party will retain, to the exclusion of the other party:
(a)All furniture, jewellery, motor vehicles and other chattels currently in their respective possession, custody or control;
(b)Any shareholdings in any company currently in their respective names;
(c)Any funds standing to his or her credit in any Bank, Credit Union or Building Society account; and
(d)Any superannuation fund in which he or she has an entitlement.

24.Each party hereby releases the other from all actions, proceedings, claims, demands, personal loans, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other in respect of any act, cause, matter or thing.
25.In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders, then the Registrar of the Court shall be appointed pursuant to section 106A of the Family Law Act 1975 (Cth).

THE COURT NOTES THAT:
A.Orders 3, 12 – 13, 14(b), 17, 21 - 25 are made by consent.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

The parties are the applicant mother, Ms Paton (“the mother”) and the respondent father, Mr Paton (“the father”).
They are the parents of three boys, X who is 11 years old, Y who is eight years old and Z who is seven years old (collectively “the children”).
The children have primarily lived with their mother and spent time with their father since the parents’ separation in 2019. However, since March 2022, X has not spent any time with his father.
The parents have been in a high conflict relationship since they separated in November 2019. The following issues need to be considered in reaching a decision on what outcome is in the children’s best interests:
(a)Whether the father has been a perpetrator of family violence towards the mother and children;
(b)What are the risks to the children in the father’s and mother’s households and do those respective risks pose an unacceptable risk of harm to the children;
(c)Whether the risks to the children can be mitigated;
(d)What arrangements are in the best interests of X, who at the time of the hearing was resisting spending time with his father; and
(e)What arrangements are in the best interests of the two younger children, Y and Z.
The parties also seek orders about the adjustment of their property interests following the breakdown of their relationship.
EVIDENCE
Both parties were legally represented at the hearing.
The Court was assisted by an Independent Children’s Lawyer (“ICL”).
Each of the parties and the ICL filed Case Outline documents setting out the material relied upon.
The mother relied upon the following documents:
·Amended Initiating Application filed on 26 September 2023
·Minute of Orders filed on 20 October 2023
·Affidavit of Ms Paton filed on 3 November 2023 (“the mother’s affidavit”)
·Financial Statement of Ms Paton filed on 3 November 2023
The father relied upon the following documents:
·Minute of Orders filed on 27 October 2023
·Affidavit of Mr Paton filed on 7 November 2023 (“the father’s affidavit”)
·Affidavit of Ms E filed on 23 May 2022
·Affidavit of Ms F filed on 23 May 2022
·Financial Statement of Mr Paton filed on 3 November 2023
·Affidavit of Mr Paton filed on 24 November 2023 (“the father’s supplementary affidavit”)
The ICL relied upon the following documents:
·Single Expert Report of Dr G (“the single expert”) dated 13 February 2023 (“the Single Expert Report”)
·Family Report by Family Consultant, Ms H dated 28 July 2021 (“the Family Report”)
·Affidavit of Mr J (“the family therapist”) filed 24 November 2023 annexing the Report of Mr J dated 23 August 2023 (“the August Report”) and the Report of Mr J dated 22 November 2023 (“the November Report”)
·Chronology filed 10 November 2023
The witnesses called were the mother, father, the single expert, and the family therapist.
It has not been possible to refer to every aspect of each of the parties’ evidence. However, I have taken all the evidence into account.
There were some factual matters in dispute that I have had to determine. Section 140 of the Evidence Act 1995 (Cth) sets out the standard of proof in these proceedings as the balance of probabilities, and in what follows, statements of fact constitute findings of fact.
SHORT HISTORY OF THE RELATIONSHIP AND THESE PROCEEDINGS
The mother was born in 1982 and is aged 41 years old.
The father was born in 1978 and is aged 45 years old.
In 2006, the parties commenced cohabitation and they married in 2008.
In 2013, X was born.
In 2015, Y was born.
In 2017, Z was born.
On 1 November 2019, the parties separated.
On 15 November 2019, the mother filed an Initiating Application commencing parenting and property proceedings.
The final hearing proceeded over three days on 27, 28 and 29 November 2023. The single expert was unable to give evidence on those days and the hearing was adjourned until 15 February 2024 for this purpose.
On 29 November 2023, and before the matter was adjourned, an oral application by the mother was made to vary the interim parenting Orders. The matter was listed for interim hearing on 6 December 2023 for this purpose.
On 6 December 2023, some of the Orders made by Judge Boyle on 17 April 2023 were discharged and alternative Orders requiring the father’s time with the children to be supervised were made.
As at the date of the final hearing:
(a)The mother was living in a small home placed on the maternal grandmother, Ms K (“the maternal grandmother”) and maternal step grandfather, Mr L’s property in Suburb M (“the Suburb M property”).
(b)The mother works on a part-time basis as a public servant.
(c)The mother has not re-partnered.
(d)The father was living at Suburb N in a rented home.
(e)The father works on a casual basis as a tradesperson.
(f)The father has not re-partnered.
CREDIT OF THE PARTIES
Generally, the Court is reluctant to make adverse findings in respect to a party’s credit in parenting proceedings (see Adamson & Adamson (2014) FLC 93-622). However, it has been necessary to do so in this matter because of the competing allegations and accounts given. In this case, I cannot discharge my statutory obligation to make orders that are in the children’s best interests unless I assess the parties’ accounts of their behaviour during the relationship.
The mother’s credit
Counsel for the father directed me to make an adverse finding of credit against the mother. He argued that the way she gave evidence was troubling because she obfuscated on simple propositions. He also referred to some oral evidence she had given, arguing that it was inconsistent with independent evidence.
I formed the view that the mother listened carefully to the questions asked of her, answered those that she could thoughtfully, sometimes cautiously, and was reflective about her own behaviour. While there were occasions throughout these proceedings where she has demonstrated a hesitancy about encouraging more time between the father and the children, she was frank when she was questioned about her reasons for doing so.
The father’s credit
I have several concerns about the evidence given by the father. He failed to disclose material information about his mental health including his treatment for depression and anxiety over a three year period and up to as recently as late 2023.
In paragraph 29 of the Family Report, Ms H reported that:
[Mr Paton] said that he has no mental health history, but has experienced anxiety over the past 18 months living separately from the children. He said that he saw a psychologist for about ten months for support after the separation.
To the single expert he “denied taking antidepressants or other psychotropic medication,” and “did not endorse any symptoms of depression, anxiety, psychotic illness or any other psychopathology”.

It was not until a subpoena was issued to the family therapist that this information became known. Subsequently, subpoenas were issued to the father’s general practitioner, Dr P. Dr P’s consultation notes indicated that he had prescribed and printed prescriptions for a range of medications.
The final hearing was listed to commence on 27 November 2023. On 24 November 2023, the father filed a supplementary affidavit without leave. In that affidavit, he disclosed having symptoms of mild depression only and despite being prescribed medication to treat his depression said that he “did not use the medication at this time.” He was cross-examined at length on his assertion that he had never used prescription medication. He downplayed the seriousness of his mental health condition even when he was questioned on Dr P’s consultation notes, which on different occasions referred to father as:
·presenting with a complaint of “despairing thoughts” in early 2020;
·having “suicidal thoughts – no plan, depressed mood” in early 2020;
·having “mental health issues…reports suicidal thought” in mid-2020; and
·having “occasional suicide thoughts” in mid-2020.
A referral to psychologist, Mr Q, was also made by Dr P on 7 July 2020, which contained the father’s “DASS21 scores…severe for anxiety and depression”.
At all times during cross-examination, the father continued to deny ever filling a script for medication prescribed for his mental health condition. This contrasted with the consultation notes of Dr P. For example, Dr P noted in early 2021 that the father had “travelled to Town R, forgot to carry his script, requests fax to the pharmacy, script faxed”. His consultation notes in mid-2020 also recorded “moods getting better; medication has helped stabilise his mood a lot”.
I do not accept the truthfulness of the evidence he gave in relation to his mental health and conclude that he gave evidence to improve his prospects of success.
The father also gave evidence about his behaviour, and particularly in answer to questions and allegations that he engaged in aggressive behaviour and had poor impulse control. To the single expert he “denied that he has any problems managing his anger”.
When asked about his work history, the single expert noted at paragraph 103 of the Single Expert Report that:
He denied being terminated because of being aggressive but claimed that he was unfairly dismissed on one occasion because [Ms Paton] questioned his annual leave, which reportedly upset one of the Directors.
Records of the father’s former employer of seven years, S Company, were also subpoenaed. This subpoena was issued after his meeting with the single expert. During the final hearing, he was asked to direct the Court to any document in that material that supported his contention that he was dismissed due to the mother’s conduct. He could not do so.
He was asked to comment on a formal written warning to him dated late 2017 about an alleged written confrontation with his manager, which included the words “[w]e believe your behaviour to be insubordinate, aggressive and intimidating”. His evidence was that he had never received or seen the warning letter.
He was asked about receiving a second written warning in late 2018, about an allegation of negligence which potentially caused catastrophic damage to a machine. He said he had not received that written warning either. He agreed that he had been dismissed by S Company. He said that he was unfairly dismissed and commenced a Fair Work Commission action. Despite doing so, he could not recall what allegations his employer made against him.
The father was also taken to records produced under subpoena by another former employer, T Company. This subpoena was also issued after the single expert met with the father. The father denied ever receiving a written warning whilst at T Company. He was asked to read a document described as a “first warning notice" dated mid-2021 which alleged that he had engaged in workplace harassment. His evidence was that he had never spoken to anyone about workplace harassment whilst employed by T Company. He also denied receiving a second warning notice. He could not explain why he was unaware of any of the conduct complaints contained in the S Company and T Company subpoena records. I do not accept the evidence he gave about the workplace complaints. I conclude that the evidence he gave was untruthful.
The father was asked about a NSW Police COPS entry, …, regarding a road rage incident alleged to have taken place in late 2022 (“the late 2022 incident”). The father was listed as a person of interest. He admitted to driving his motor vehicle at the time and place of the alleged incident. But of the incident itself, he claimed that it “didn’t happen”, ”it didn’t occur” and that “it’s ridiculous”. He provided no rational explanation for the account given to Police by witnesses. He was unable to offer any introspection when asked whether there was anything about his behaviour that he would do differently. Whilst there was insufficient evidence for me to make findings about this incident, I do not find the father’s evidence about this incident either frank or particularly reliable.
The father deposed that he was paying child support to the mother. He relied upon his bank statements that described transactions as “child support”. He conceded that those transactions related to money transferred from one bank account in his name to another bank account also in his name. There was no evidence that the mother had ever received child support from the father. The father’s actions were entirely disingenuous, and I do not accept his evidence that he was told by the Child Support Agency to do this.
As a result of these examples, I will treat the evidence given by the father in these proceedings with extreme caution.
PARENTING
Background to parenting
During their relationship and post-separation, the mother alleged that the father perpetrated family violence against herself and the children, including acts of aggression and incidents of road rage.
In late 2019, the mother left U Street, Suburb N, (“the former matrimonial home”) and moved to the Suburb M property with the children.
In late 2019, the mother made a complaint to Police about an incident that occurred in late 2019 where the father allegedly hit X, and an incident in late 2019 where the father allegedly encouraged the children to lie to the mother regarding their supervision (“the late 2019 incident”). The mother took photographs of red marks that she had seen on X’s body. The Police determined that there were insufficient grounds to apply for an apprehended domestic violence order (“ADVO”), as they noted a very faint bruise on X’s back but could find no other markings.
In late 2019, the father attended Region V Police Station and complained that the mother was making false statements about him (“the father’s late 2019 complaint”). The father then requested that Police conduct a welfare check of the children. This took place that evening at 7.30 pm without concern.
Between late 2019 and early 2020, the children spent no time with the father.
In early 2020, X was enrolled at W School by the mother.
On 1 February 2020, the children commenced spending time with the father each alternate Saturday and Sunday.
In mid-2020, the father completed a Parenting After Separation course.
On 18 May 2020, the parties attended a Child Dispute Conference.
In February 2021, the mother asserted that the father attended Y’s second day of school and stood at the entrance gate filming the mother with his phone (“the February 2021 incident”). The father then went to the mother’s residence and took photos of the property. The mother contacted Police who applied for a provisional ADVO against the father. This was later dismissed.
In February 2021, the father asserted that the mother withheld the children due to a disagreement regarding the changeover location. The mother asserted that from February 2021 to March 2021 the father did not spend time with the children of his own volition.
In April 2021, the children resumed spending time with the father.
In late 2021, Y reportedly “told his teacher ‘Dad hits [me] with weapons, which reportedly occurred at a time when he was in trouble” during a contact visit with the father (“the weapons incident”). This disclosure led to a notification to the Department of Communities and Justice (“DCJ”).
In early 2022, X’s teacher informed the mother that X had disclosed that his father “kicks him up the butt” and “he is scared of going to dad’s”. When the mother spoke with X about this, she claimed he told her that “dad hurts me” and “he whacks me on the shoulder and butt”.
That evening, X did not want to spend time with the father, but the mother took him for his scheduled visit. During changeover, X refused to go with the father and the mother alleged that the father pushed and forced X into his vehicle. The father denied this and claimed that he carried X to his car and that X calmed down shortly after leaving the changeover location (“the March 2022 changeover incident”).
In March 2022, when the mother collected the children from the father, she observed bruising on X’s lower back. X allegedly told the mother that the bruising was a result of the father grabbing him and wrestling him into the car during the March 2022 changeover incident. In March 2022, the school principal, Ms AA, made a mandatory notification about this and reported the incident to Police. The mother also made a complaint to the Police.
Interim Orders for supervised time were made on 24 May 2022. A notation was also included that X not be made to spend time with the father if he showed signs of being upset or distressed at spending time with the father.
On 3 June 2022, the mother received an application form for B Contact Centre completed by the father. In June 2022, the mother claimed she contacted B Contact Centre to make enquiries and was informed that the time slots nominated in the father’s application could not be offered and that the father was not permitted to be present at the changeover.
Between June 2022 and July 2022, correspondence was exchanged between the mother’s legal representative and the father’s legal representative in relation to issues with the implementation of supervised time with B Contact Centre.
In July 2022, the father attended Y’s sports games. The mother and the children were in attendance. The mother asserted that X was distressed when he saw the father.
On 1 August 2022, the father submitted an application to B Contact Centre.
On 24 September 2022, the father commenced spending time with Y and Z, supervised by B Contact Centre. In 2022, the father participated in four supervised visits with Y and Z, and the last supervised visit occurred on 5 November 2022.
The parties could not reach an agreement for supervised contact visits over the 2022/2023 Christmas holidays. On 17 January 2023, B Contact Centre informed the father that the service was unable to negotiate back and forth between the parties. The mother was informed of the same on 27 January 2023.
On 17 April 2023, interim Orders for overnight weekend time for Z and Y were made by consent. On 5 May 2023, Y and Z spent their first overnight visit with the father.
During April 2023, the mother alleged that she was contacted by Ms BB, an ex-girlfriend of the father, via messenger. The mother claimed that this was unprompted communication. In those messages, Ms BB:
·described the father as “a very very very [sic] dangerous man”;
·opined that the father “needs a lot of professional mental help” observing him to be “dangerous and mentally unstable”;
·remarked of his excessive alcohol consumption; and
·recommended to the mother that the father’s time with the children be supervised.
In mid-2023, Z informed his teacher that the father had thrown him off the couch and smacked him hard while he and Y were staying the weekend at the father’s home. He also reported that he had red marks on his stomach (“the mid-2023 incident”).
In mid-2023, the mother completed the Parenting After Separation course.
In late 2023, Y said to his teacher “in the holidays, my dad hit me with a weapon on my leg”. Y reported that he hit his brother Z with the weapon and so the father “whacked” him with the weapon so he “could learn the consequences”. Y also reported that the father was “whipping Z with an object ” (“the late 2023 incident”).
On 6 December 2023, interim Orders were made for the father to revert to visits with Y and Z supervised by B Contact Centre (“the current interim Orders”). The father had supervised visits on 16 December 2023, 25 December 2023, and 30 December 2023.
Parenting proposals
The parties agreed to a range of orders being made by consent. They have been incorporated into the final Orders made.
Issues in dispute
The mother handed up a final Minute of Order on the last day of the final hearing. In summary, her position is that:
(a)The mother have sole parental responsibility.
(b)The children live with the mother.
(c)The father’s time with Y and Z be supervised by an independent professional supervisor and occur once monthly from 1.30 pm to 5.30 pm.
(d)Y and Z spend additional supervised time with the father on Christmas and Father’s Day.
(e)The father be responsible for the costs of supervision.
(f)X spend time with the father according to his wishes.
(g)The mother be permitted to travel overseas with the children and retain the children’s passports.
(h)Both parties be restrained from denigrating or criticising the other parent and discussing the proceedings in the presence of the children.
(i)The father:
(i)refrain from any physical discipline of the children;
(ii)enrol into the Tuning into Kids program; and
(iii)only attend the children’s events with the express written consent of the mother.
The father handed up a final Minute of Order on the last day of the final hearing. In summary, his position is that:
(a)The parties have equal shared parental responsibility of the children.
(b)The children live with the mother.
(c)Y and Z spend overnight time with the father during the school term each alternate week from 3.00 pm Thursday until 8.30 am Tuesday.
(d)X and the father participate in joint family therapy sessions and then commence spending time from 1 September 2024.
(e)The children spend time with the father for half of school holidays.
(f)Additional special occasion time on Father’s Day, Christmas and Easter.
(g)Changeover at school or Suburb N McDonald’s with the mother ensuring that Mr L is not present.
(h)Both parties be permitted to travel overseas with the children with the passports to be retained by an independent third party.
(i)Both parties be restrained from denigrating or criticising the other parent and discussing the proceedings in the presence of the children, using physical discipline and recording the changeovers.
(j)The mother obtain a referral and assistance for her mental health.
The ICL handed up a final Minute of Order on the last day of the final hearing. The ICL proposed that:
(a)The mother have sole parental responsibility of the children.
(b)The children live with the mother.
(c)X spend time with the father as agreed between the parties and with regard to his wishes.
(d)Y and Z have supervised time with the father until Y completes term 3 of Year 7, once a month, for four hours.
(e)Subsequently, Y and Z spend time with the father in accordance with their wishes.
(f)The parents continue to attend family therapy and follow the recommendations made by the therapist.
(g)Both parties be restrained from denigrating or criticising the other parent and/or members of their extended family in the presence of the children and using physical discipline or allowing someone else to do so.
(h)The father be restrained from taking photographs of any alleged injuries or abuse of the children during time spent with them.
(i)A notation that the father’s time with the children may progress to unsupervised time subject to the father demonstrating a number of conditions including meaningful engagement in psychological treatment for a period of not less than two years.
The issues that require judicial determination are:
(a)Parental Responsibility.
(b)Spend time arrangements for the father with Y and Z. The Court needs to consider whether:
(i)the father’s time should be supervised, as proposed by the mother, and if so, for what period; or
(ii)should Y and Z spend five nights with the father each fortnight, as proposed by the father.
(c)The spend time arrangements for the father with X. The Court needs to determine whether:
(i)the parents should respect and facilitate X’s wishes, as proposed by the ICL and the mother; or
(ii)X’s time with the father should recommence after joint family therapy.
(d)International travel with the children including the issuing and retention of passports for the children.
The single expert
The Single Expert Report was prepared on 13 February 2023.
The interviews for the Single Expert Report were conducted in August 2022, approximately 18 months before the final hearing.
The single expert made the following recommendations in her Report:
(a)The children would benefit from the opportunity to have a meaningful relationship with both parents and be shielded from ongoing parental conflict.
(b)Y and Z would benefit from spending time with both parents in a shared care arrangement starting with alternate weekends with a gradual increase to a 5/9 night arrangement, and equal time in the holidays should commence immediately.
(c)A gradual increase of time for X as therapy progresses and his resistance reduces, starting with alternate weekends.
(d)Changeovers should be at school wherever possible and otherwise at a local police station or McDonald’s.
(e)An equal time arrangement should be considered when the children approach high school years.
(f)Family therapy is required and must start as soon as possible.
(g)The mother would benefit from therapy with a clinical psychologist to help process her past trauma and treat her anxiety. This was because the single expert was concerned about the impact of the mother’s anxiety on her parenting capacity, concluding that it has contributed to her mistrust of the father.
(h)The father would benefit from the Tuning into Kids program to improve the way he responds to children’s emotional needs. If the Court finds that he has perpetrated family violence, he may benefit from undertaking a Men’s Behaviour Change program.
In reaching those recommendations, she observed at paragraph 228 of the Single Expert Report:
a.…that the children had an established and close relationship with both parents; that [X]’s relationship with his father is currently strained (likely due to a combination of being aligned with [Ms Paton], and [Mr Paton]’s response to [X]’s resistance dynamics); that the children are not at appreciable risk of abuse or neglect in either parents’ care; and that they would benefit from the opportunity to have a meaningful relationship with both parents and be shielded from ongoing parental conflict.
…
g. …that the children have been adversely affected by the changes in parenting arrangements, and being withheld from [Mr Paton]. [X] has not spent time with [Mr Paton] since March 2022 [sic] due to his resistance/refusal. Although [Ms Paton] claimed that this has reduced [anxiety], the avoidance has only exacerbated his irrational fears and anxiety. This is concerning… given that he has also been in therapy for two years. To my mind, it suggests that [X] needs intensive family therapy with [Mr Paton] (and [Ms Paton]) with a clinician experienced in family law and resist/refuse dynamics, and that he also needs to spend time with [Mr Paton] to reality test his irrational thoughts and fears. If he continues to avoid time with [Mr Paton], it seems most unlikely that his fears will abate.
…
l. …that the children have been exposed to high levels of parental conflict and mistrust, and that they have all experienced torn loyalties. [X] is experiencing anxiety that likely exacerbates his [medical condition] and drives his rejection of [Mr Paton]. It also seems likely that the younger two are confused and distressed about the allegations of family violence and not seeing their father.
m. …[Ms Paton] is anxious and struggles to cope with stress or conflict, and that she is currently experiencing significant levels of stress and distress. While this may not impair her day to day functioning, these would likely impact her parenting…
[Mr Paton]’s attempt at positive impression meant that the formal testing was not valid. However, [Ms Paton] has claimed that he lacks empathy and has problems with anger management. If her view is accurate, this would affect his parenting and should be addressed.
n. … [Ms Paton]’s mental health issues appear mild but would impact the way she parents and co-parents. If [Mr Paton] has problems managing his temper, this would also impact the way he parents.
o. …both parents would benefit from family therapy with a practitioner with extensive experience in family law. Unless both parents can improve their insight and understanding of the situation, and improve their capacity to communicate and co-parent, the children will remain at risk of psychological harm.
p. …Both parents appear resistant to intervention, probably because they maintain that the other parent is the source of the problem. Unless both parents engage in treatment, self-reflect, and make changes, however, the children will continue to be caught in the centre of the dispute, and will remain at risk of developing psycho-social problems later in life.

Family therapy was commenced after the release of the Single Expert Report.
During the first three days of the final hearing, some evidence came before the Court that was not available to the single expert during her interviews. Some of this material has already been outlined. The family therapist had also filed an affidavit outlining his work with the family. The parties agreed that it would be appropriate for the single expert to listen to the evidence of the family therapist and then give her evidence. The family therapist and the single expert were scheduled to give evidence on 29 November 2023 but due to an unexpected event, the single expert was unable to do so. Accordingly, the matter was adjourned part heard to 15 February 2024. Before adjourning, I granted leave to the ICL to provide a copy of the transcript of proceedings on 27, 28 and 29 November 2023 and the exhibits tendered to the single expert. The single expert was invited to provide an Addendum Report if she considered it appropriate.
On 15 February 2024, the family therapist gave evidence, and the single expert was present during his cross-examination.
The single expert gave evidence that, with the benefit of considering further evidence and hearing the evidence of the family therapist, she had changed her recommendations. Her evidence on this can be summarised as follows:
(a)The father was not frank in his interview with her.
(b)He appeared to lack insight into his mental health.
(c)His lack of compliance with treatment recommendations impacts upon his parenting capacity and the risk he poses to children in his care.
(d)Depression can be associated with reduced frustration tolerance. Medication can have side effects such as an increase in aggression or rage, as does alcohol consumption. The father’s depression, use of medication and alcohol consumption could place the children at risk in his care.
(e)She was concerned about several independent accounts suggesting that the father has difficulties with aggression. This included the following three examples that she opined reflected a pervasive pattern of behaviour that went across both public and intimate settings:
(i)Ms BB’s concern that he was dangerous.
(ii)His recent employment history and complaints about his aggression and harassment in the workplace.
(iii)The late 2022 incident of road rage where people reported feeling intimidated and traumatised.
(f)Since writing her Report, Y and Z have complained of excessive discipline and physical violence by their father which she found concerning.
(g)She was further concerned that since the release of the Single Expert Report the father has demonstrated poor insight and deflected responsibility, especially about the children’s ongoing exposure to high conflict.
(h)She was critical of his failure to engage in the Tuning into Kids program and a Men’s Behavioural Change program as recommended, opining that he has not demonstrated a capacity or willingness to make changes to improve his parenting.
(i)Since the release of the Single Expert Report, changeover and communication between the parties has not improved.
(j)The children continue to be exposed to inappropriate filming and high conflict.
Having regard for these matters, the single expert made the following recommendations:
(a)An order for equal shared parental responsibility is not viable due to the poor changeovers and the lack of improvement in the parental communication.
(b)That the father’s time with Y and Z remain supervised by a professional agency in a community setting on a monthly basis.
(c)That supervised time should continue until the father has done the following:
(i)completed a Men’s Behavioural Change program;
(ii)undertaken a course of individualised therapy;
(iii)completed the Tuning into Kids program;
(iv)engaged with a clinical psychologist for therapy and followed all treatment recommendations; and
(v)complied with all recommendations by Dr P or his psychiatrist to take prescribed medication.
(d)That X continue to engage in family therapy and that he spends time with the father in accordance with his wishes.
(e)That the mother engages in trauma focussed therapy.
(f)That once the father has engaged in the treatment outlined in (c) above for a period of two years and can demonstrate compliance, the Court might consider lifting the supervision requirements. If not, the supervision should continue until Z has attained the age of 10 or is settled in high school.
(g)Prior to transitioning to unsupervised time, the family might again engage in family therapy. She also recommended that any orders might provide for a supervised changeover to protect the children from ongoing conflict.
The family therapist
The family therapist commenced his engagement with the family in mid-2023 and his work is ongoing. As noted in the Orders of 17 April 2023, the goals of the therapy were:
i. To assist [X] to repair and rebuild their relationship with the Father, and the other children as recommended by the family therapist.
ii. To assist the parents to support the children to have a positive relationship with each of their parents; and
iii. To guide the parents on what they can do to support the children to repair and rebuild their relationship with their Father.
In the August Report, the family therapist made the following observations and recommendations that:
05. … [X] is not ready to commence spending time with his father.
…
10. …[B]oth parents continue to engage in family therapy and aim to attend fortnightly appointments and…follow all reasonable recommendations made in therapy.
11. … [Mr Paton] consider completing an anger management course/group or individualised program.
In reaching those recommendations, he observed that:
02. … [X] continues to be rejecting of his father.
…
04. At this early stage, minimal progress of all members engaged in therapy has been noted and therapy may require more time to determine if it can achieve viable change.
In the November Report, he made the following observations and recommendations that:
39. … [X] continue to engage in individual family-focused therapy and that additional family members be involved in therapy as deemed appropriate by the therapist.
40. … [Ms Paton] would benefit from additional therapeutic support to assist her in navigating challenges, should they arise, in relation to the children living across two households.
…
42. …[I]t is unclear if [Mr Paton] has acted on the recommendation to complete an anger management or similar individualised program. My opinion regarding this recommendation remains unchanged.
The family therapist was pleased that X was finding that the sessions assisted his wellbeing and that he wanted them to continue.
He had placed all therapy sessions with the father on hold because the father appeared to communicate a perfect understanding of his management of parenting interactions, and he had been advised that in order for things to progress:
(a)he needed to pivot his blame away from the mother; and
(b)prioritise the completion of a course or individualised program targeting the management of anger.
He observed that the mother had engaged consistently in therapy, appeared to take on his recommendations, and apply strategies. He did however, express a concern that the mother was “challenged in letting go of the idea that Mr Paton is unsafe” and she needed to display an ongoing commitment to reassuring the children about their safety in the father’s care.
The family therapist did not change his views under cross-examination.
Importantly, he expressed the view that continuing family therapy with the involvement of the father may, at this point, undermine the progress of this therapy and further triangulate the children in the conflict.
The children – X, Y and Z
The children live with their mother in a small home which is on the Suburb M property. They have access to a swimming pool at the property.
X was 11 years old at the time of the final hearing. He attends W School. He has longstanding issues with emotional and behaviour regulation.
The mother described X as “a sensitive soul who is very loyal to his friends and who is regarded by others as very polite … [and] he can be stubborn”. The father described X “as a very intelligent[,] beautiful little boy who takes on a lot and feels the weight of the world on his shoulders”.
Psychologist, Ms CC has treated X regularly since separation for anxiety, panic, and other medical conditions. X has suffered from a medical condition for which he was prescribed medication. Contact with his father can trigger his medical condition. However, Ms CC reported on 23 November 2022 that he had “made excellent gains and his medical condition has now resolved”. Ms CC was also treating X’s symptoms of a medical condition which “appears to be anxiety induced” and triggered by his father. Following 16 sessions, she updated that X still has “elevated symptoms of trauma and anxiety”.
X has resisted spending time with his father since March 2022.
The father argued that the views expressed by X are not based on his lived experience of his father, but rather are the result of the mother undermining their relationship.
The family therapist observed, at paragraph 9 of the November Report, that:
[X] has described experiencing symptoms often associated with panic, including difficulty breathing in the absence of physical exertion. He has also reported experiencing flashbacks/intrusive thoughts in relation to past experiences which he alleges involved [Mr Paton].
He further noted, at paragraph 39 of the November Report, that:
Over the course of therapy, [X] has reported an improved general sense of wellbeing and mental health. He has expressed a developing confidence in relation to addressing his past grievances with his father and stated that he would like to continue with sessions.
The family therapist saw X on one occasion before the final hearing and reported that he had not expressed any desire to see his father. The family therapist was asked about an email he received from the mother in early 2024. She wrote seeking advice on managing X after he had received a birthday present from his father who later attempted to communicate with him on FaceTime. X became upset with this. The mother claimed that later that day X thought he saw the father’s car and panicked. The family therapist opined that, if this was true, it reflected that X is still not ready to see his father and is experiencing high levels of distress.
Y was eight at the time of the final hearing. He attends W School where he is progressing well.
The mother described Y as “a very cuddly child who has a happy-go-lucky disposition.” The father “described Y as bubbly, funny, affectionate, tough and knockabout type of boy.”
Y enjoys good health but has been diagnosed with an anaphylactic allergy to medication, an allergy to some foods, and asthma.
Z was six at the time of the final hearing. He also attends W School.
The mother described Z as “very caring, smart…and conservative.” The father described Z as “funny and cheeky.”
The children are involved in a range of extracurricular activities.
Ms H completed the Family Report on 28 July 2021. At that time, she observed that the children enjoyed a warm relationship with each parent.
However, since the parties separated, the children have been exposed to extreme parental conflict. The mother alleged that the father constantly denigrates and undermines her and the maternal family to the children. She has set out a range of examples in her affidavit.
The mother deposed that the parental conflict intensified after separation. She complained that the father immediately began to denigrate her to the children. She also complained that they struggled to co-parent, saying that the father attempted to enrol Z at a preschool near him without notice to her, that he refused to facilitate recommended psychological treatment for X, and refused to take X to his sports matches.
The father levelled similar complaints about the mother, and he argued that the children’s exposure of the mother’s negative views of him have led to the breakdown of his relationship with X. This was supported by the single expert who found that X’s account suggested a negative view of his father and a positive view of his mother. Her initial view was that X had been exposed to and influenced by negative views of the father. The mother denied that this was intentional but admitted that there were occasions when X may have overheard conversations about the father.
X also disclosed this to the family therapist who observed, at paragraph 12 of the November Report, that:
At points during therapy, [X] has spoken in a manner which indicates he is aware of details relating to Court proceedings which, in my opinion, is inappropriate for his age. He stated that he and his brother's had read the report (presumably referring to the report of expert witness [Ms DD]) on an iPad whilst in the care of his father. He also reported that he was aware of how much his mother had spent on legal costs.
(As per the original)
Despite Orders restraining the parties from discussing the proceedings with the children or in their presence, they have failed to do so. Some examples of the children’s direct exposure to the parental conflict include:
(a)In late 2020, X required specialist dental treatment which the mother booked. The mother asserted that the father objected to the specialist appointment and cancelled it. The mother also asserted that in late 2020, the father obtained a second opinion for X and requested a different paediatric specialist.
(b)In early 2021, the mother took X to his appointment with Ms CC, and Mr L accompanied her as a support person. The father also attended the appointment. The mother alleged that an outburst occurred in the presence of X which made him feel scared. The session notes taken by Ms CC recorded: “I requested that the parents do not behave like this in front of X”.
(c)The February 2021 incident where the mother asserted that the father filmed her from the school entrance gate as she was bringing the children inside the school.
(d)On 31 March 2021, Ms CC recorded in her session notes that:
•[X] reports there are some fights at drop off and pick up, but he said he looks away and ignores it so that he does not get very sad.
•[X] expressed sadness that his dad hates his mum.
(e)In mid-2023, the father alleged that Mr L was present at changeover and yelled at the father and threw his arms up with a closed fist in front of the children. Z then started crying.
(f)In mid-2023, the father asserted that the mother’s brother, Mr EE (“the maternal uncle”), attended changeover and recorded the interaction on his phone.
In the November Report, the family therapist also observed that the father had been asking Y and Z to pass messages to X, including: “You're going to come home soon, don't worry", "you still love me", and "you can come back home".
The children have also been exposed to family violence between their parents. The mother alleged that the children have been physically harmed by their father. These allegations will be assessed further below in this judgment.
The mother
The mother has been the primary carer for the children since their birth.
She has worked as a public servant since 2012. The single expert observed that her medical records indicate that her capacity to work was significantly impacted by her mental health issues from 2018 to 2020.
There is no doubt that these proceedings have taken their toll on her. In mid-2022, she was diagnosed with a medical condition and spent seven days in hospital. She said it arose from the severe stress caused by the family law proceedings. While she has made a full recovery, her recovery was slow, which required her to use a wheelchair, then a walker and crutches. In addition to the medication for her physical health, the mother has been prescribed antidepressants by her general practitioner since mid-2022 to help manage her stress.
The single expert administered a mental health and personality functioning test. At paragraph 40 of the Single Expert Report, she concluded that the mother:
…has minimised her experience of stress and all mental health issues, likely to avoid any potentially negative assessment on her parenting capacity. While there is no indication that her mental health issues have seriously impaired her parenting capacity, it seems likely that [Ms Paton] has had difficulty coping with stress. The separation, legal proceedings, and her physical ailments have no doubt exacerbated her stress, despite her reticence to admit this …
The single expert recommended that the mother may benefit from trauma focussed therapy.
The father alleged that the mother presents a risk to his relationship with the children, or at least does not facilitate a meaningful relationship between them. He alleged that the mother speaks negatively about him to the children and this impacts upon their ability to enjoy a meaningful relationship.
The father also criticised the mother of excluding him from playing a meaningful role in the children’s lives since separation. For example, he complained that:
(a)In mid-2020, the mother enrolled Y into FF Preschool. The father said this was done without consultation or his consent.
(b)The mother failed to facilitate his participation in extracurricular activities undertaken by the children. For example, he was excluded from participating in X’s music lessons.
(c)The mother provided him with inadequate information about the children’s medical and dental needs and treatments. He alleged that:
(i)In mid-2020, the mother booked X for an appointment with a specialist, did not consult with him, and refused to provide details about the appointment.
(ii)He was not consulted about changing X's school enrolment from GG School to W School, nor the preschool for Y and Z.
(iii)In early 2021, the father asserted that X had surgery without his knowledge.
(iv)The mother has not facilitated his participation in X’s psychological treatment.
The mother holds a negative view of the father.
Whilst her own anxiety and trauma has impacted upon the relationship she has with the father, she has engaged in treatment since separation to ensure that it does not impair her own parenting capacity.
There are also some justifiable reasons why the mother has adopted a negative view of the father. These are explored further below in this judgment. However, it is unfortunate that she has communicated her negative view of the father to the children, and they are aware of it from her discussions with family members, which often occurred in the presence of the children.
To the mother’s credit, she has taken steps to improve the father’s relationship with X. The mother has also facilitated the attendance of X on Ms CC for multiple sessions over several years and the focus of that therapy has often been to restore X’s relationship with his father.
For example, Ms CC’s notes of 10 January 2023 show that the session was focussed on what X would say in a conversation with his father. X was reported to only have “3 negative things he would say to dad”. When X was unable to provide Ms CC with positive memories of his father, the mother was invited in to help. While Ms CC recorded that she was trying hard to think and “the options appeared limited”, the mother made a list.
The mother was also proactive in writing to Ms CC on 16 April 2023 after Orders were made for family therapy to commence. She asked Ms CC to see X and work with him over his concerns that time with his father might recommence.

The parties annexed to their affidavits and tendered hundreds of pages of correspondence between their legal representatives on issues relating to the children.
This correspondence dealt with at length the decisions around the schools the children were to attend, activities they were engaged in, and health treatment. While it is entirely possible that the father felt excluded from the day-to-day decision making, in reality, he has spent supervised time with the children for extended periods of time since separation. It was not unreasonable that the mother made day-to-day decisions without consulting with him from time to time. Although I am not going to make findings on each of the father’s allegations, in any event, the evidence did not satisfy me that the mother had deliberately and consistently excluded the father from making decisions about the children.
The father
The father described himself as “employed on a casual basis as a tradesperson”.
He lives in Suburb N, approximately 20 to 30 minutes from the children.
He was diagnosed with major depression during 2020 by Dr P. At that time, he was prescribed medication and referred to Mr Q. In late 2023, Dr P reported that his condition “has been stable for over a year” and that he is off his prescribed antidepressant medications.
The father deposed to having no issues with his parental capacity. In reference to his completion of the Parenting After Separation course, the father deposed that he had not learned anything new, and that it had simply “reaffirmed” his parenting approach. At the final hearing, the father tendered what he described as “proof” of his completion of the Parenting After Separation course. The tendered document contained an email confirming that he had completed the “final quiz” and that he could log back on in 24 hours to obtain his certificate.
He also deposed that he played an active role in the children’s lives during the relationship.
Pursuant to the current interim Orders, the father spends time with Y and Z under the supervision of B Contact Centre. B Contact Centre have made positive reports of their time with the father. In their recent notes dated 16 December 2023, they observed that the father demonstrated care and competence with Y and Z, and he provided appropriate food. They also observed that the father displayed positive communication and engagement.
The family therapist made a similar observation at paragraph 16 of the November Report:
[Mr Paton] has communicated that he is highly motivated to restore his relationship with [X] and has spoken with love and affection for his son and for his children in general. He reported that he sees himself as a competent father, and that his friends and other adults have commended him on his parenting.
When the family therapist asked the father about how he handled parenting situations, the father responded “with examples which indicated an extremely high level of parenting, very much reflective of material often presented in parenting programs and textbooks”.
Yet, when any incident was put to him that reflected a less than satisfactory approach or attitude to parenting, the father’s response was to deny the version of the event. For example, when the family therapist “raise[d] allegations made…[about] interactions at changeovers, and X's alleged experiences which he says involved his father[,] Mr Paton unfailingly denied allegations and accused Ms Paton and X of being untruthful” (November Report, paragraph 17).
Ultimately, in late 2023 the family therapist paused family therapy sessions with the father and noted that he believed that the father had “nothing further to gain from ongoing sessions at that stage”. He further noted, at paragraph 25 of the November Report, that:
[Mr Paton] was advised that it was the therapist’s impression that [Mr Paton]’s examples of how he had managed parenting interactions were seemingly perfect, and that feedback regarding a need for [Mr Paton] to pivot from his blame of [Ms Paton] was communicated on several occasions. Furthermore, the proposal that [Mr Paton] complete a course or individualised program targeting the management of anger could be prioritised over ongoing sessions for the father.
Following cross-examination of the family therapist, I asked the family therapist whether his use of the term “seemingly perfect” was to express his concern that the father gave the right answers but that this did not seem to translate into his actions. He agreed with this proposition.
The mother does not seek child support payments from the father through the Child Support Agency. Her reasons for doing so were not clear. The father deposed contributing half of the school fees for the children, half of X’s psychologist’s costs, making contributions towards school activities, and the children’s therapeutic support.
I found the evidence given by the father about his financial support for the children to be, at best, contradictory and on occasion disingenuous. For example:
(a)The mother gave evidence that the father had only paid half of the semester school fees for two of the children and deposed: “That’s the only payments I’ve received or that he has contributed to the children’s schooling” (As per the original).
(b)The father gave evidence that he paid child support directly to the mother. This has already been referred to above.
(c)The family therapist gave evidence that the father had agreed to contribute towards the costs of the family therapy sessions. However, payment for two sessions remained outstanding despite the family therapist making a personal request to the father and multiple reminders from his staff.
The mother alleged that the father has not always administered medication to the children as prescribed, including Y's asthma medication and X's medication to assist with his health routine. X also reported to Ms CC that his father did not “believe that he had health issues”, that he was not given medication when he was in the father’s care and complained that the father poured his medication down the sink. The father denied this in his affidavit and to Ms CC on 31 May 2022. I prefer the account given by the mother and X.
The mother also complained that the father does not follow the medical advice received for the children. For example, in late 2021, X’s nurse emailed the parents to advise that X was referred to a paediatric specialist. The mother sent a text to the father requesting his consent to take X to these specialists and the father did not provide consent. The mother contended that the father did not respond to her or the nurse. The mother sent the father a follow up text in early 2022 and notified the father she had booked an appointment.
The mother is also concerned that the father disregards some of the diagnoses made about the children. For example, she alleged that the father refuses to acknowledge that Y suffers from allergies to some foods and medications. She alleged that, in early 2022, the father fed Y food he was allergic to and he was returned to her care with hives, vomiting and suffering from respiratory issues.
The father raised concerns about X’s mental health and sought that an in-depth psychological assessment be conducted. The family therapist said that an in-depth psychological assessment was not something he would recommend for X. This was also supported by Ms CC. Counsel for the father persisted in a line of cross-examination about whether X would benefit from a psychological assessment and continued to maintain this position in final submissions.
The mother complained about the father’s inattentiveness to the children’s needs. For example, on 1 October 2023, she alleged that Y and Z were due to be returned to her care having spent a week during the school holiday period with their father (“the October 2023 incident”). About 40 minutes before she was due to collect the boys, she received a message from the father advising her that the boys were "a little sunburnt.” She alleged that the boys were returned to her dehydrated, complaining of feeling ill and nauseous. They complained that they had been out with the father without sunblock.
Other relationships
The children enjoy strong family ties to the maternal grandparents who live in Suburb M where the children presently reside.
Mr L and the maternal grandmother were interviewed by the single expert.
The relationship between the father and Mr L is highly conflictual. Mr L has regularly attended at changeovers and the father deposed that he feels intimidated in Mr L’s presence.
The father complained that the mother and her family have failed to encourage the children’s relationship with him. For example, he complained that:
(a)In late 2021, the maternal grandmother interfered during the changeover by holding X’s hand and refusing to let go. The father alleged that she made the changeover difficult and protracted by making comments like: "You don’t have to go if you don't want to X", "Mummy wants you to stay", and "X doesn't want to go”.
(b)The mother routinely attended changeover with at least one support person.
(c)In late 2019, a provisional ADVO was issued to protect the father from Mr L. This occurred after Mr L attended the former matrimonial home in the absence of the parties and attempted to interfere and remove the security cameras installed on the property.
The relevant legal principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) guides the process in relation to the making of parenting orders.
Pursuant to s 60CA of the Act, the Court must regard the best interests of the children as the paramount consideration when making a parenting order. Subsections 60CC(2) and (3) set out the particular matters that the Court must take into account when determining the children’s best interests.
There are two primary considerations. The Court must balance the benefit to the children of having a meaningful relationship with each parent (s 60CC(2)(a)), with the primary consideration of protecting them from physical or psychological harm, from being subjected or exposed to abuse, neglect or family violence. The need to protect the child from harm takes precedence over the benefit of both parents having a meaningful involvement in the child’s life to the maximum extent consistent with their best interests (s 60CC(2)(b)).
There are 13 additional circumstances which are set out in s 60CC(3).
As stated in s 60B, the best interests of the child are met by ensuring they benefit from both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests, and protecting them from physical or psychological harm, and from being subjected to or exposed to abuse, neglect, or family violence.
I now turn to the issues that I will need to determine in order to make a decision about what orders are in the children’s best interests.
Discussion of unacceptable risk
Does the mother pose an unacceptable risk to the children?
While some risks were identified by the father about the mother’s capacity to care for the children, the father supported them remaining in her care. Accordingly, I find that the mother does not pose a risk to the children, nor is her ability to care for or parent the children currently impaired.
Does the father pose an unacceptable risk to the children?
The mother’s evidence
During the relationship, the mother alleged that she observed several incidents involving acts of aggression and/or excessive discipline by the father towards the children. The mother made the following allegations in her affidavit:
(a)In early 2018, the father smacked Z, who was then 12 months old, on the right leg. She said that this left a handprint on Z and caused bruises.
(b)In mid-2019, X woke up from sleep, and the father attended to him. When the mother heard X scream, she went to his room and observed the father standing over X and pinning down his legs. She said that the father then forced his hand over X’s mouth and told him to “shut up”, and she begged him to stop. The father eventually left the room.
(c)In mid-2019, she reported that the father, in an act of discipline, “threw Y on the floor” in anger. She claimed that “Y was screaming in pain”.
(d)In late 2019, X wet his bed. She said that X begged her not to tell the father, but he found out and “became aggressive” towards the mother and “yanked the sheets” from her when she attempted to clean X’s bed. This happened in the presence of X and Y “who each looked petrified”.
(e)In late 2019, “X complained that his leg hurt because [the father] had hit him with an object the previous day, leaving a red mark on his leg”.
(f)The late 2019 incident whereby the father allegedly hit X.
Since separation, the mother has consistently expressed concern about the children’s physical safety in the father’s care. She claimed that he snaps and gets angry and may be extreme in his disciplinary techniques.
From 1 November 2019 to February 2020, the children spent no time with the father. The mother claimed she did not facilitate the father’s time with the children because of his aggressive behaviour. On 22 January 2020, the mother’s legal representative sent the father correspondence indicating that the mother would allow the father to spend time with the children if he agreed to give an undertaking. She said that she sought assurances from the father that he would return the children to her care and would not physically discipline the children. On 29 January 2020, the father signed, on a without admissions basis, an undertaking to that effect, and the father began spending time with the children in February 2020.
However, between 2022 and 2023, the following events occurred that caused the mother’s concerns about the father to continue:
(a)The March 2022 changeover incident, which resulted in a provisional ADVO protecting X from the father.
(b)The messages from Ms BB in early 2023.
(c)The mid-2023 incident.
(d)Of the late 2023 incident, the mother claimed that Y and Z made the following complaints to her:
(i)Y complained that he and the father were arguing and the father “hit him hard” with a weapon. He said that when he complained to the father about the pain, the father told him to “shut up” because “it didn’t really hurt”.
(ii)Z complained that the father had flicked him hard with an object and was also told to “shut up” by the father when he complained.
Under cross-examination, the mother maintained that the children were not safe in the father’s care. She said:
The last weekend that the children went to [Mr Paton]’s, they came back and said that [Y] had been dragged naked out of the shower, and he reported it to his teacher and he was thrown in his bedroom for being naughty. They were mucking around in the shower. So there are still incidents occurring.
(Transcript 27 November 2023, p.52 lines 15-18)
It is unclear whether she was referring to the late 2023 incident where Y and Z were spending unsupervised time with the father and Z complained that the father flicked him with an object.
She gave further evidence that Y and Z’s visits to the father’s house had not been going well and that:
There are times where they come back and indicate that they have been harmed and that’s – or they come back and cry. Those times aren’t going well.
(Transcript 27 November 2023, p.60 lines 38-39)
She also deposed that the children had returned from the father’s care and regularly complained that their father "hits", "pinches", "scares " and "hurts" them. But after the release of the Single Expert Report, she told the children to tell their teachers, because school is their “safe place”, and she was concerned that she would be criticised for making false allegations.
The mother did not depose in her affidavit the incidents that Y and Z alleged occurred in mid and late 2023 because she was unaware of them at the time of filing her affidavit.
The father’s evidence
The father categorically denied the mother’s allegations. At paragraph 210 of the father’s affidavit, he deposed:
I strongly deny and reject any allegation that I have been physically abusive towards [X] or any of my other children. I strongly deny and reject the allegations that I have kicked [X] up the bum.
In relation to the allegations made by Y regarding the late 2023 incident, the father opined that Y was “coached” by the mother and that she “embellished” the story. When the notes of mandatory reports made by Y’s teacher of the late 2023 incident were read out to him by counsel for the ICL during cross-examination, the father deposed that the Court should also disregard the school notes, because they are the product of the mother coaching the children to make up allegations.
In the course of his evidence, he said that the children are not in any danger in his care, regardless of whether the risk of harm alleged was physical or psychological.
The independent evidence
1. Ms CC
Ms CC’s treatment notes recorded the following from her sessions with X:
(a)In early 2021, X claimed that the father “had previously dragged him around the house by the collar and choked him”.
(b)In early 2021, X recalled an incident where the father threw objects at the mother after she had just been released from hospital. He reported that he stood in the firing line to protect his mother, but the objects hit her and one of his siblings. During the same session, X also recalled an incident where the father had pushed his jaw down on the kitchen bench.
(c)In mid-2021, X reported that he felt upset that he did not tell Ms H about what his dad had done to him.
(d)In late 2021, X reported that he had a “rough weekend” with his father. He disclosed that “Dad hurt me and Y” and “daddy whacked Y on the side… with a weapon”. Ms CC made a mandatory report of this the following day.
(e)In early 2022, X reported that the father had given him a kick to his buttock on the last contact weekend and he was sent to his room. X reported the kick was “angry but not super angry” and that it had “left a mark that has now gone.”
(f)In early 2022, X told Ms CC that he was:
being kicked by dad approximately 5 times-1 time in [early 2022], 2x on his birthday weekend, 2x in [early 2022]. Reported the kicks leave marks and really hurt. Reported dad hitting (smacking) him on shoulder. Reported his dad held his arm and twisted it when he had to go to his dads a few weeks ago and put the seat belt on hard and bruised his waist. Advised they have told the police this information. [X] reported he is worried about dad being angry they told the police. [X] reported telling the police that his dad "use to hurt me and is still hurting me".
(As per the original)
(g)In early 2022, the mother reported that X thought he saw his father outside the home. He became overwhelmed with fear and had a medical episode .
(h)In mid-2022, X reported a medical episode on two occasions connected to his father.
(i)In mid-2022, X reported that “my daddy has hurt me my whole life”:
•… When I asked in what way, he reported the following recollection:
•Age 2-3- small whacks;
•Age 4-5- Hits harder and threaten to punch;
•Age 6-7-8-9- flicks [object], kicking, hitting as hard as he can, threatening to punch, smashing my jaw on the bench, pushing.
•Reported he does not want to see his daddy until he is nice. When asked how daddy can improve, reported:
•be nice to mum
•be nice to me
•stop hitting me for at least one year (questioned why one year and he was unable to say why that amount of time specifically).
(As per the original)
When asked what he was worried about during this session X reported: “Daddy knocking out the contact centre person”.
(j)In late 2022, Ms CC observed that X “shut down and curled into a ball when I mentioned letter from dad”.
2. The family therapist

The single expert was of the view that X is a young and anxious child. She accepted that his views may be influenced by the mother. However, she was opposed to any suggestion that X should be required to spend time with his father under any circumstances as it would be both distressing and traumatic for him.
Under cross-examination, the father showed no ability to empathise with X nor accept that there was a reasonable basis for his fear of him. He insisted that X needed to speak to him so that he could then “set the record straight”. In the lead up to the final hearing, he used Y and Z to pass messages to X, notwithstanding the distress this might cause X.
If orders were made to allow the father to spend time with X, I would remain concerned that the father would speak to him in a manner that caused him further distress. I formed this view after listening to his evidence on the issue when he was cross-examined by counsel for the mother:
Counsel:Would you want to have that conversation too with [X], “Why are you scared of Daddy? Daddy hasn’t done anything”
Father: Yes, I would have that conversation. Yes.
Counsel:Are you going to try and find out from [X] the source of why he thinks that?
Father:Yes, I would like to find out why he feels the way he feels. Right or wrong that’s how that’s how he’s feeling at this stage.
(Transcript 29 November 2023, p.157 lines 10-16)
The final Orders I make will allow X to join his brothers and spend time with the father whenever he expresses a wish to do so. He cannot, however, be compelled to do so.
The parties agreed to a series of restraints being included in the final Orders. To avoid further distress, especially to X, an additional restraint will be made to ensure that the father does not attend any of the children’s events (school, social, or sporting) without the express written consent of the mother. In the event that he finds himself inadvertently at a venue or event attended by any of the children, he will immediately leave.
To avoid future litigation, I will make orders allowing the mother to be solely responsible for obtaining passports for the children. She will also be permitted to travel internationally with the children for holidays. It is not appropriate for orders permitting the father to travel internationally with the children at this stage, but he may do so in the future with the mother’s consent without requiring a court order.
PROPERTY
I am required to determine how the Court should adjust the parties’ interests in property. The issues in dispute are:
(a)What assets and liabilities should be included in the property pool available for distribution?
(b)How should the contributions of the parties, both financial and non-financial, be assessed?
(c)Whether a further adjustment should be made due to both the future needs and financial resources of the parties.
Proposals
The mother proposed that the funds held in a controlled monies trust account by the legal representative for the father be distributed to her. She also sought a superannuation splitting order with a $50,000 base amount from the father’s superannuation. She proposed that they each keep all property in their possession and control, and liabilities.
The father proposed that the funds held in controlled monies be divided equally between the parties. He also proposed that they each keep all property in their possession and control including superannuation interests and liabilities.
The legal principles
In determining property matters, consideration must be had to Part VIII of the Act, and particularly ss 75, 78 and 79.
A clear framework exists in determining a property division.
The first question that must be asked, as articulated by the High Court in Stanford v Stanford (2012) 247 CLR 108 at [37], is:
…whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
If I conclude that it is, I must then consider the factors set out in ss 79(4) and 75(2) of the Act, so far as they are relevant.
A four-step process is then applied in accordance with the Full Court decision of Hickey & Hickey & Attorney-General for the Commonwealth (Intervenor) (2003) FLC 93-143 at [39]. This process can be summarised as follows:
(a)Identify and value, as at the date of hearing, the parties’ property, liabilities and financial resources.
(b)Identify and assess the parties’ contributions pursuant to s 79 of the Act.
(c)Identify and assess the parties’ ongoing needs, taking into account the relevant factors under ss 79 and 75(2) of the Act.
(d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances of the case.
Consideration must also be given to whether a global or asset-by-asset approach is to be adopted and whether a one or more pool approach is to be taken.
Is it just and equitable to make a property settlement order?
This is a case where the just and equitable requirement set out in s 79(2) of the Act appears to be justified.
The parties have been separated since 2019 and both request a property division. An adjustment of their interests in property is required to enable the parties to move on with their lives. Having made that determination, I will now determine how to proceed with the property division.
Global or asset by asset approach/one or more pool approach?
The Court has a very broad discretion as to how property orders should be structured to achieve an appropriate division of the parties’ property overall. I find it would be artificial to distinguish between the property, other assets, and superannuation interests. Given the length of the marriage, a global approach is appropriate, and indeed, it is the approach that the parties agreed should be adopted.
What is the property of the marriage?
A Joint Balance Sheet was prepared by the parties and tendered. The relevant parts of the joint balance sheet are reproduced below:

Ownership Description Applicant’s value Respondent’s value

ASSETS

1 Joint Sale Proceeds for U Street, Suburb N E237,254 237,254

2 Joint CBA Account ending in #...51 (as at 31 July 2023) 171 171

3 Applicant CBA Account ending in #...62 (as at 21 October 2023) 3,523 3,523

4 Applicant CBA Account ending in #...94 Nil Not Known

5 Respondent ANZ Account ending in #...59 (as at 1 September 2023) 693 693

6 Respondent CBA Account ending in #...84 (as at 30 September 2023) 108 108

7 Respondent JJ Bank Account ending in #...04 (as at 15 October 2023) 11 11

8 Applicant LL Company Shares (Amount of Shares: …, Share Price as at 12 October 2023: $5.64) E 1,793 1,793

9 Respondent RR Company Shares (Amount of Shares: … and Share Price at 12 October 2023: $7.56) E 2,268 2,268

10 Applicant Motor Vehicle 1 26,225 35,000

11 Applicant O Company 48,525 E160,000

12 Respondent Motor Vehicle 2 E3,500 E3,500

13 Respondent Motor Vehicle 3 3,000 3,000

14 Respondent Motor Vehicle 4 400 400

15 Applicant Household Contents Nil Not Known

16 Respondent Household Contents Nil Nil

17 Joint CBA Account ending in #...84 (Held on behalf of Y) (as at 14 April 2023) 3,678 3,678

18 Joint CBA Account ending in #...86 (Held on behalf of Z) (as at 11 November 2019) 989 989

19 Joint CBA Account ending in #...76 (held on behalf of X) (as at 14 April 2023) 4,779 4,779

Total $336,917 $457,167

ADDBACKS

20 Applicant Mortgage Draw Downs Nil Not Known

21 Respondent Super funds withdrawn by the Respondent 20,000 Nil

Total $20,000 $0

LIABILTIES

22 Applicant CBA Personal Loan Account ending in #...50 (Formerly #...89) (as at 13 October 2023) E50,022 50,022

23 Applicant Personal Loan from Mr MM 32,627 Not Known

24 Applicant Personal Loan from Mr EE 25,000 Not Known

25 Applicant Personal Loan from Ms K 37,000 Not Known

26 Respondent CBA Credit Card Account ending in #...61 (as at 18 October 2023) 4,880 4,880

27 Respondent NN Bank personal loan (as at 29 September 2023) 8,495 8,495

28 Respondent Personal Loan from Mr OO N/A 3,225

29 Respondent Personal Loan from Ms F N/A 6,500

30 Respondent Personal Loan from PP Company N/A 9,800

Total $158,024 $82,922

SUPERANNUATION

Member Name of Fund Type of Interest

31 Applicant Super Fund 1
Account ending in #...00 (as at 10 October 2023) Accumulated Interest E142,129 142,129

32 Respondent Super Fund 2 Account ending in #...66 (as at 24 October 2023) Accumulated Interest E184,353 184,353

Total $326,482 $326,482

FINANCIAL RESOURCES

33 Applicant Gift of Land at QQ Street, Suburb M Nil 1,800,000

Total $0 $1,800,000

Net Total Assets (including Superannuation) $525,375 $700,727

Net Total Assets (including Superannuation + Financial Resources) $525,375 $2,500,727

By the close of evidence, some issues had resolved.
The father no longer pressed for the “Gift of Land at QQ Street, Suburb M” to be included in the balance sheet.
There were other contentions that require findings to be made.
Value of the Mother’s Motor Vehicle 1 (Item 10)
The mother attributed a value of $26,225 to the Motor Vehicle 1. However, in her financial statement, she valued the vehicle at $24,650. The mother did not provide any financial disclosure evidencing her asserted value.
The father estimated the vehicle’s value at $35,000 and said it is based on a “Redbook valuation”. This “Redbook valuation” was not tendered. Therefore, the father’s assertion cannot be relied upon as providing an accurate valuation.
I am left with two different values and need to prefer one over the other. On this issue, I prefer the mother’s valuation. This is because it is her vehicle, she insures it and knows what condition the Motor Vehicle 1 is in. I will therefore attribute it a value of $26,225.
O Company (Item 11)
The mother purchased a small home in 2020 for $112,950. It is fixed to the land on the Suburb M property. She lives in the home with the children.
She estimated a value of $48,525. This is based on an email from O Company indicating the buy-back price. The mother’s affidavit indicated that because the home is anchored to the ground it cannot be moved.
The father attributed an estimated value of $160,000. His value is based on current material, labour costs and expenses.
I am satisfied that the mother’s buy-back price reflects the value of the home. I will therefore attribute a value of $48,525 to the home.
Should the personal loans advanced to the mother and father be included?
The mother alleged that she has three personal loans from family members totalling $94,627. They are from:
(a)her father, Mr MM (“the maternal grandfather”) ($32,627);
(b)the maternal uncle ($25,000); and
(c)the maternal grandmother ($37,000).
The mother deposed that she used these funds to purchase her home and to pay for legal fees. She also deposed to taking out a personal loan in the sum of $50,259.
The loan from the maternal grandfather is evidenced by a handwritten noted dated late 2020. It requires the mother to pay the money in full at a later date.
The loan from the maternal uncle is also evidenced by a one-page typed note dated late 2020. It also requires payment in full at a later date.
The loan from the maternal grandmother is evidenced by a more detailed one-page document called a “family loan agreement”. This is dated late 2022, and requires the mother to repay the loan amount of $38,600 at the conclusion of the family law proceedings and upon disbursement of the mother’s money held in trust.
In determining whether a loan is genuine, the Court is required to take into account all of the circumstances of the matter and it may decline to do so where it finds, on balance, that the debt is:
(a)vague or uncertain or;
(b)unlikely to be enforced; or
(c)unreasonably incurred (see Af Petersens and Af Petersens (1981) FLC 91-095 at 76,659).
In relation to the loans from the maternal grandfather and the maternal uncle, it is difficult to find the existence of a loan for the following reasons:
(a)there is no evidence that the mother intended to create a legally binding agreement with them;
(b)there was no formal loan agreement drafted, nor any other documentation to reflect the intention of the parties;
(c)the terms of the loan are vague and uncertain; and
(d)neither were called to test their evidence.
I am not satisfied that the loans from the maternal grandfather nor the maternal uncle are enforceable due to insufficient detail about the conditions for repayment, including a date for repayment and whether interest is payable. I will, however, consider the funds advanced to the mother under s 79(4) considerations.
In relation to the loan from the maternal grandmother, I do find the existence of a loan for the following reasons:
(a)the formal family loan agreement purports to create a legally binding agreement between the parties;
(b)the formal loan agreement reflects the intention of the parties; and
(c)the terms of the loan are clear as well as the source of the repayment.
I accept that the maternal grandmother advanced money to the mother in accordance with the family loan agreement and it will be included as a liability.
The father alleged that he has three personal loans from:
(a)Mr OO ($3,225);
(b)Ms F ($6,500); and
(c)PP Company ($9,800).
He provides no evidence of agreements about the advancement of these loans. For this reason, they have not been included in the pool.
Whether the superannuation funds withdrawn by the father should be considered as an add-back
The mother deposed that the father withdrew $20,000 from his superannuation and spent it, thereby reducing the matrimonial pool available for distribution. No evidence was provided to support this claim. Therefore, I will not include it as an add-back.
Conclusions
The parties otherwise agreed on the identity and value of the other property interests.
For the reasons outlined above, I am satisfied the parties have the following assets and liabilities available for distribution between them:

Ownership Description Value

ASSETS

1 Joint Sale Proceeds for U Street, Suburb N 237,254

2 Joint CBA Account ending in #...51 (as at July 2023) 171

3 Applicant CBA Account ending in #...62 (as at 21 October 2023) 3,523

4 Applicant CBA Account ending in #...94

5 Respondent ANZ Account ending in #...59 as at 1 September 2023) 693

6 Respondent CBA Account ending in #...84 (as at 30 September 2023) 108

7 Respondent JJ Bank Account ending in #...04 (as at 15 October 2023) 11

8 Applicant LL Company Shares (Amount of Shares: …, Share Price
as at 12 October 2023: $5.64) 1,793

9 Respondent RR Company (Amount of Shares: … and Share Price at 12 October 2023: $7.56) 2,268

10 Applicant Motor Vehicle 1 26,225

11 Applicant O Company 48,525

12 Respondent Motor Vehicle 2 3,500

13 Respondent Motor Vehicle 3 3,000

14 Respondent Motor Vehicle 4 400

15 Applicant Household Contents

16 Respondent Household Contents

17 Joint CBA Account ending in #...84 (Held on behalf of Y) (as at 14 April 2023) 3,678

18 Joint CBA Account ending in #...86 (Held on behalf of Z) (as at 11 November 2019) 989

19 Joint CBA Account ending in #...76 (held on behalf of X) (as at 14 April 2023) 4,779

Total $336.917

ADDBACKS

20 Applicant Mortgage Draw Downs

21 Respondent Super funds withdrawn by the Respondent

Total $0

LIABILTIES

22 Applicant CBA Personal Loan Account ending in #...50 (Formerly #...89) (as at 13 October 2023) 50,022

23 Applicant Personal Loan from Mr MM

24 Applicant Personal Loan from Mr EE

25 Applicant Personal Loan from Ms K 37,000

26 Respondent CBA Credit Card Account ending in #...61 (as at 18 October 2023) 4,880

27 Respondent NN Bank Personal Loan (as at 29 September 2023) 8,495

28 Respondent Personal Loan from Mr OO

29 Respondent Personal Loan from Ms F

30 Respondent Personal Loan from PP Company

Total $100,397

SUPERANNUATION

Member Name of Fund Type of Interest

31 Applicant Super Fund 1 Account
ending in #...00 (as at
10 October 2023) Accumulated Interest 142,129

32 Respondent Super Fund 2 Account ending in #...66 (as at 24 October 2023) Accumulated Interest 184,353

Total $326,482

FINANCIAL RESOURCES

33 Applicant Gift of Land at QQ Street, Suburb M

Total $0

Net Total Assets (including Superannuation) $563,002

Net Total Assets (including Superannuation + Financial Resources) $563,002
The assessment of contributions

In determining what orders are to be made pursuant to s 79(4) of the Act, I am required to take into account the parties’ financial and non-financial, direct and indirect, contributions to the acquisition, conservation or improvement of property (s 79(4)(a)-(b) of the Act). I am also required to take into account the parties’ contributions to the welfare of the family (s 79(4)(c) of the Act).
At the time of cohabitation, the mother had approximately $34,000 in personal savings and a an automobile that was worth approximately $17,000. The parties lived with the mother’s parents rent-free from around 2006 until 2009. The mother’s parents gifted the parties approximately $9,000 for their wedding. The maternal grandmother and Mr L also gifted the parties fully paid holidays on several occasions totalling in excess of $10,000.
The mother alleged that the father entered the relationship in personal debt and obtained a personal loan without the mother’s knowledge in mid-2007 in the amount of $12,000 to pay off credit card debt. It is not detailed whom the personal loan was from.
The father submitted that neither party made any significant initial contribution and there were mutual small lump sum contributions. He submitted that in 2004 he received an inheritance of $14,000 which he used to travel with the mother.
Each of the parties have worked throughout the relationship, and the mother was the primary carer of the children. It was undisputed that, throughout the relationship, the mother was primarily responsible for all household and domestic duties, including cooking, cleaning, washing and laundry.
It is well established that work undertaken by a party as a homemaker and parent should be valued equally to that of a party engaged in paid employment, regardless of the income they receive (see Rolfe & Rolfe (1979) FLC 90-629 and Mallet v Mallet (1984) 156 CLR 605).
Since separation, the mother solely paid for the mortgage of the former matrimonial home and household bills for eight months. She has had the sole care of the children and no doubt this has impacted upon her capacity to work. The mother contended that the father has not supported the children or contributed towards the children’s medical expenses. She has not received any child support or spousal maintenance. She is solely responsible for the costs of the children including their school fees which she has paid entirely in 2023, school uniforms and all clothing, a range of extracurricular activities and before and after-school care.
Conclusions on contributions
The parties are in agreement that the contributions should be assessed as 55 per cent in favour of the mother and 45 per cent in favour of the father.

Having regard to the evidence, I consider that a holistic assessment of the parties’ relevant contributions results in the same outcome with the mother being considered to have contributed 55 per cent of the value of the parties’ present interests in property and the father 45 per cent of their value.
Future needs
Having assessed the parties’ respective contribution-based entitlements, I must consider whether it is necessary to make any further adjustment to take into account the parties’ current and future financial positions.
The mother is currently 41 years old and employed on a part-time basis with a yearly salary of approximately $62,000. The mother is generally in good health but suffers side effects from a medical condition.
The mother has been the primary carer of the three children and this majority care will continue in accordance with the Orders made in this judgment. It is also likely that the father will continue to make a limited financial contribution towards the maintenance of the children. The children have a range of ongoing medical needs and therapeutic needs, and it would seem likely that the mother will bear these expenses without assistance from the father.
The father is 45 years old and employed as a casual tradesperson with an income of approximately $800 per week according to his Financial Statement. The father deposed that he is in good health. There is no reason why he cannot be employed on a full-time basis and earning far more than he currently deposes.
The father submitted that the mother has the ongoing financial support of the maternal grandmother and Mr L. He did not press his argument that the mother has a legal or other equitable interest in the land at the Suburb M property, but he asked for it to be treated as a financial resource. The mother currently has her small home on this land, but her parents also live in a home on the property. There was no evidence that would allow me to be persuaded that her ability to live in a small home on her parents’ land is a financial resource of any significance.
An allowance of 10 per cent will be made in the mother’s favour considering those matters set out above. An allowance of 10 per cent represents $56,300 of the net value of the asset and superannuation pool.
This will provide the mother with a division of 65 per cent and the father with a division of 35 per cent the global asset pool.
Conclusion
There are three bank accounts that are in the parties’ joint names and held in trust for the children. These accounts will remain held in trust for the children but the father will be required to do all acts and things necessary to ensure that the mother becomes the sole trustee and signatory on those accounts. They are not included in the table of assets and liabilities for distribution.
If the parties were to retain all assets and liabilities and superannuation entitlements in their sole names, and the mother were to retain the jointly held assets, an adjustment to the father would be necessary as follows:

Applicant Respondent TOTAL

ASSETS

Sale Proceeds for U Street, Suburb N 237,254 237,254

CBA Account ending in #...51 171 171

CBA Account ending in #...62 3,523 3,523

CBA Account ending in #...94 - -

ANZ Account ending in #...59 693 693

CBA Account ending in #...84 108 108

JJ Bank Account ending in #...04 11 11

LL Company Shares 1,793 1,793

RR Company shares 2,268 2,268

Motor Vehicle 1 26,225 26,225

O Company 48,525 48,525

Motor Vehicle 2 3,500 3,500

Motor Vehicle 3 3,000 3,000

Motor Vehicle 4 400 400

Total Assets 317,491 9,980 327,471

LIABILITIES

CBA Account ending in #...50 50,022 50,022

Personal Loan from Ms K 37,000 37,000

CBA Credit Card Account ending in #...61 4,880 4,880

NN Bank Personal Loan 8,495 8,495

Total Liabilities 87,022 13,375 100,397

Total Assets and Liabilities 230,469 -3,395 227,074

SUPERANNUATION

Super Fund 1 Account ending in #...00 142,129 142,129

Super Fund 2 Account ending in #...66 184,353 184,353

Total Superannuation and Net Assets 372,598 180,958 553,556

ADJUSTMENT REQUIRED 65/35 359,811.40 193,744.60 12,786.60
Just and equitable considerations

It is appropriate to step back and consider the proposed orders in the circumstances of this case.
The mother would retain assets and liabilities of $230,469. Without an adjustment, the father would have greater liabilities than assets. But a 35 per cent split in his favour sees the amount of $12,786 paid to him from the sale proceeds.
To facilitate the continuance of family therapy in accordance with the parenting orders, any amounts owing to the family therapist from the father should be deducted from the father’s payment of $12,786.
The mother will be responsible for closing the joint Commonwealth Bank of Australia account ending in #...51 and removing the father as a signatory to the bank accounts held in trust for the children, namely the Commonwealth Bank of Australia accounts ending in #...84, #...86 and #...76. However, if the father neglects to do so, an Order will be made allowing a Registrar of the Court to do so.
I have reflected holistically upon the overall effect of my findings and determinations, and I am satisfied that this is a just and equitable division of the matrimonial asset pool.
Finally, I will make orders providing that each party retains as their sole property in law and in equity as between that party and the other party, any property not otherwise dealt with specifically in these Orders.
CONCLUSION
Accordingly, I make the Orders set out at the start of these reasons.

I certify that the preceding three hundred and twenty-eight (328) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse.
Associate:
Dated: 28 June 2024

File number:	SYC 7752 of 2019
Judgment of:	JUDGE BECKHOUSE
Date of judgment:	28 June 2024
Catchwords:	FAMILY LAW – CHILDREN –Where the father has refused to disclose details of his mental health – Where the father has inability to manage and control his aggression –Where father’s use of force and excessive disciplining of children leaves them at risk of harm in his care – Where father lacks insight - Where mother found to have acted protectively– Where father’s tendency to lie about his conduct and his negative narrative about mother to external agencies’ responsible for protecting children has exposed children to harm – What weight to place on views of eldest child who is resistant to spending time with the father. FAMILY LAW – PROPERTY – Value of property. FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Contribution by third party – Future needs.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 75, 78, 79
Cases cited:	Adamson & Adamson (2014) FLC 93-622 Af Petersens & Af Petersens (1981) FLC 91-095 Hickey & Hickey & Attorney-General for the Commonwealth (Intervener) (2003) FLC 93-143 Keane & Keane (2021) 62 Fam LR 190 Mallet v Mallet (1984) 156 CLR 605 Rolfe & Rolfe (1979) FLC 90-629 Stanford v Stanford (2012) 247 CLR 108
Division:	Division 2 Family Law
Number of paragraphs:	328
Date of hearing:	27 November 2023 to 29 November 2023 & 15 February 2024
Place:	Sydney
Counsel for the Applicant:	Ms Lawson
Solicitor for the Applicant:	Watkins Tapsell
Counsel for the Respondent:	Mr Blackah
Solicitor for the Respondent:	Marsdens Law Group
Counsel for the Independent Children's Lawyer:	Ms Rebehy
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

SYC 7752 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS PATON Applicant
AND:	MR PATON Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE BECKHOUSE
DATE OF ORDER:	28 JUNE 2024

Ownership		Description		Applicant’s value	Respondent’s value
ASSETS
1	Joint	Sale Proceeds for U Street, Suburb N		E237,254	237,254
2	Joint	CBA Account ending in #...51 (as at 31 July 2023)		171	171
3	Applicant	CBA Account ending in #...62 (as at 21 October 2023)		3,523	3,523
4	Applicant	CBA Account ending in #...94		Nil	Not Known
5	Respondent	ANZ Account ending in #...59 (as at 1 September 2023)		693	693
6	Respondent	CBA Account ending in #...84 (as at 30 September 2023)		108	108
7	Respondent	JJ Bank Account ending in #...04 (as at 15 October 2023)		11	11
8	Applicant	LL Company Shares (Amount of Shares: …, Share Price as at 12 October 2023: $5.64)		E 1,793	1,793
9	Respondent	RR Company Shares (Amount of Shares: … and Share Price at 12 October 2023: $7.56)		E 2,268	2,268
10	Applicant	Motor Vehicle 1		26,225	35,000
11	Applicant	O Company		48,525	E160,000
12	Respondent	Motor Vehicle 2		E3,500	E3,500
13	Respondent	Motor Vehicle 3		3,000	3,000
14	Respondent	Motor Vehicle 4		400	400
15	Applicant	Household Contents		Nil	Not Known
16	Respondent	Household Contents		Nil	Nil
17	Joint	CBA Account ending in #...84 (Held on behalf of Y) (as at 14 April 2023)		3,678	3,678
18	Joint	CBA Account ending in #...86 (Held on behalf of Z) (as at 11 November 2019)		989	989
19	Joint	CBA Account ending in #...76 (held on behalf of X) (as at 14 April 2023)		4,779	4,779
Total		$336,917	$457,167
ADDBACKS
20	Applicant	Mortgage Draw Downs		Nil	Not Known
21	Respondent	Super funds withdrawn by the Respondent		20,000	Nil
Total		$20,000	$0
LIABILTIES
22	Applicant	CBA Personal Loan Account ending in #...50 (Formerly #...89) (as at 13 October 2023)		E50,022	50,022
23	Applicant	Personal Loan from Mr MM		32,627	Not Known
24	Applicant	Personal Loan from Mr EE		25,000	Not Known
25	Applicant	Personal Loan from Ms K		37,000	Not Known
26	Respondent	CBA Credit Card Account ending in #...61 (as at 18 October 2023)		4,880	4,880
27	Respondent	NN Bank personal loan (as at 29 September 2023)		8,495	8,495
28	Respondent	Personal Loan from Mr OO		N/A	3,225
29	Respondent	Personal Loan from Ms F		N/A	6,500
30	Respondent	Personal Loan from PP Company		N/A	9,800
Total		$158,024	$82,922
SUPERANNUATION
Member		Name of Fund	Type of Interest
31	Applicant	Super Fund 1 Account ending in #...00 (as at 10 October 2023)	Accumulated Interest	E142,129	142,129
32	Respondent	Super Fund 2 Account ending in #...66 (as at 24 October 2023)	Accumulated Interest	E184,353	184,353
Total		$326,482	$326,482
FINANCIAL RESOURCES
33	Applicant	Gift of Land at QQ Street, Suburb M		Nil	1,800,000
Total		$0	$1,800,000
Net Total Assets (including Superannuation)				$525,375	$700,727
Net Total Assets (including Superannuation + Financial Resources)				$525,375	$2,500,727

Ownership		Description		Value
ASSETS
1	Joint	Sale Proceeds for U Street, Suburb N		237,254
2	Joint	CBA Account ending in #...51 (as at July 2023)		171
3	Applicant	CBA Account ending in #...62 (as at 21 October 2023)		3,523
4	Applicant	CBA Account ending in #...94
5	Respondent	ANZ Account ending in #...59 as at 1 September 2023)		693
6	Respondent	CBA Account ending in #...84 (as at 30 September 2023)		108
7	Respondent	JJ Bank Account ending in #...04 (as at 15 October 2023)		11
8	Applicant	LL Company Shares (Amount of Shares: …, Share Price as at 12 October 2023: $5.64)		1,793
9	Respondent	RR Company (Amount of Shares: … and Share Price at 12 October 2023: $7.56)		2,268
10	Applicant	Motor Vehicle 1		26,225
11	Applicant	O Company		48,525
12	Respondent	Motor Vehicle 2		3,500
13	Respondent	Motor Vehicle 3		3,000
14	Respondent	Motor Vehicle 4		400
15	Applicant	Household Contents
16	Respondent	Household Contents
17	Joint	CBA Account ending in #...84 (Held on behalf of Y) (as at 14 April 2023)		3,678
18	Joint	CBA Account ending in #...86 (Held on behalf of Z) (as at 11 November 2019)		989
19	Joint	CBA Account ending in #...76 (held on behalf of X) (as at 14 April 2023)		4,779
Total		$336.917
ADDBACKS
20	Applicant	Mortgage Draw Downs
21	Respondent	Super funds withdrawn by the Respondent
Total		$0
LIABILTIES
22	Applicant	CBA Personal Loan Account ending in #...50 (Formerly #...89) (as at 13 October 2023)		50,022
23	Applicant	Personal Loan from Mr MM
24	Applicant	Personal Loan from Mr EE
25	Applicant	Personal Loan from Ms K		37,000
26	Respondent	CBA Credit Card Account ending in #...61 (as at 18 October 2023)		4,880
27	Respondent	NN Bank Personal Loan (as at 29 September 2023)		8,495
28	Respondent	Personal Loan from Mr OO
29	Respondent	Personal Loan from Ms F
30	Respondent	Personal Loan from PP Company
Total		$100,397
SUPERANNUATION
Member		Name of Fund	Type of Interest
31	Applicant	Super Fund 1 Account ending in #...00 (as at 10 October 2023)	Accumulated Interest	142,129
32	Respondent	Super Fund 2 Account ending in #...66 (as at 24 October 2023)	Accumulated Interest	184,353
Total		$326,482
FINANCIAL RESOURCES
33	Applicant	Gift of Land at QQ Street, Suburb M
Total		$0
Net Total Assets (including Superannuation)				$563,002
Net Total Assets (including Superannuation + Financial Resources)				$563,002

Applicant	Respondent	TOTAL
ASSETS
Sale Proceeds for U Street, Suburb N	237,254	237,254
CBA Account ending in #...51	171	171
CBA Account ending in #...62	3,523	3,523
CBA Account ending in #...94	-	-
ANZ Account ending in #...59	693	693
CBA Account ending in #...84	108	108
JJ Bank Account ending in #...04	11	11
LL Company Shares	1,793	1,793
RR Company shares	2,268	2,268
Motor Vehicle 1	26,225	26,225
O Company	48,525	48,525
Motor Vehicle 2	3,500	3,500
Motor Vehicle 3	3,000	3,000
Motor Vehicle 4	400	400
Total Assets	317,491	9,980	327,471
LIABILITIES
CBA Account ending in #...50	50,022	50,022
Personal Loan from Ms K	37,000	37,000
CBA Credit Card Account ending in #...61	4,880	4,880
NN Bank Personal Loan	8,495	8,495
Total Liabilities	87,022	13,375	100,397
Total Assets and Liabilities	230,469	-3,395	227,074
SUPERANNUATION
Super Fund 1 Account ending in #...00	142,129	142,129
Super Fund 2 Account ending in #...66	184,353	184,353
Total Superannuation and Net Assets	372,598	180,958	553,556
ADJUSTMENT REQUIRED 65/35	359,811.40	193,744.60	12,786.60