Pelham & Jupp - [2022] FedCFamC1F 879

Federal Circuit and Family Court of Australia
(DIVISION 1)
Pelham & Jupp [2022] FedCFamC1F 879

File number(s): ADC 1987 of 2020

Judgment of: BERMAN J

Date of judgment: 11 November 2022

Catchwords: FAMILY LAW – CHILDREN – Parental Responsibility – Where each party seeks an order for sole parental responsibility – Where the ICL initially promoted an order for equal shared parental responsibility – Where at the conclusion of the trial the ICL held no confidence that the parties could communicate effectively in relation to major decisions – Where there is merit in the parties retaining equal shared parental responsibility for health and education – Orders.
FAMILY LAW – CHILDREN – With who a child lives with and spends time with – Best interests of the children – Where the children spent time with the respondent until 2020 – Where the applicant made allegations that the respondent sexually abused the children and thereafter ceased time spending – Where the applicant does not support a restoration of a relationship between the children and the respondent – Where the proposal of the applicant would result in there being no effective relationship between the children and the respondent – Where the evidence does not permit a finding of sexual abuse or that the respondent presents as an unacceptable risk to the children – Where the Court finds that the applicant presents as a risk to the children by intentionally manipulating evidence for the purpose of severing or significantly restricting, the children’s relationship with the respondent – Where the ICL does not consider that the applicant can protect the children from her view of the respondent – Where the ICL promotes orders that reverse the primary care arrangements – Where the respondent seeks that the children live in his primary care if the Court finds that the applicant has fabricated the allegations of sexual abuse – Consideration on the effect of separating the children from either of the parties or the person with whom the children have been living with – Orders.
FAMILY LAW – PROPERTY – De facto relationship – Where the parties are not agreed as to the length of the relationship – Where the applicant contends that the relationship was 13 years and the respondent contends that it was 5 years – Where the respondent held significant assets prior to the commencement of the relationship – Where the respondent made significant financial contributions during a period of separation – Where the respondent has the capacity to earn significantly greater income than the applicant – Orders.
FAMILY LAW – PROPERTY – Superannuation – Where the respondent held a significant superannuation interest at the commencement of cohabitation – Consideration of employer contribution component – Where the applicant seeks an equalisation of the parties’ superannuation – Where the respondent seeks to allocate to the respondent a base amount of $100,000 – Where a 60/40 adjustment is ordered.

Legislation:
Evidence Act 1995 (Cth) s 140(2)

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 69ZT, s69ZT(3), 69ZN, 90SF, 90SM.

Cases cited:
Baglio & Baglio [2013] FamCA 105

Bant & Clayton [2019] FLC 93-924

Bevan & Bevan (2013) FLC 93-545

Briginshaw v Briginshaw (1938) 60 CLR 336

Champness & Hanson (2009) FLC 93-407

Chorn & Hopkins (2004) FLC 93-204

Cotton & Cotton (1983) FLC 91-330

Dennison & Wang [2010] FamCAFC 182

Ferraro & Ferraro (1993) FLC 92-335

Finlayson v Finlayson and Gillam (2002) FLC 93-121

Harridge & Harridge [2010] FamCA 445

Mallet v Mallet (1984) FLC 91-507

Mazorski v Albright [2007] FamCA 520

McCall & Clark (2009) FLC 93-405

Muldoon & Carlyle (2012) FLC 93-513

Pierce & Pierce (1999) FLC 92-844

Sigley v Evor (2011) 44 Fam LR 439

Stanford & Stanford (2012) 247 CLR 108

St Claire & St Clair and Ors [2013] FamCA 108

Wang & Dennison (No 2) [2009] FamCA 1251

Vass & Vass (2015) 53 Fam LR 373

Division: Division 1 First Instance

Number of paragraphs: 401

Date of hearing: 21-25 February 2022, 11 April and 13 April 2022

Place: Adelaide

Counsel for the Applicant: Ms Hume

Solicitor for the Applicant: Jacqui Ion Lawyers Pty Ltd

Counsel for the Respondent: Mr Jordan

Solicitor for the Respondent: Jordan & Fowler Family Lawyers

Counsel for the Independent Children’s Lawyer Mr Dillon

Solicitor for the Independent Children’s Lawyer Legal Services Commission of South Australia

Table of Corrections

27 January 2023 In paragraph 383, the figure $1,621,958 has been amended to $1,242,698.

In paragraph 384, the figure $729,881 has been amended to $559,214.

In paragraph 386, the figure $729,881 has been amended to $559,214 and the figure $660,881 has been amended to $490,214.
ORDERS

ADC 1987 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS PELHAM

Applicant

AND:
MR JUPP

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

BERMAN J

DATE OF ORDER:

11 November 2022

THE COURT ORDERS THAT:
1.The applicant have sole parental responsibility for X born … 2015 (“X”) and Y born … 2018 (“Y”) (collectively “the children”) save and except that the parties shall have shared parental responsibility for major issues that impact upon the children’s education and health.
2.The applicant advise the respondent of any decision arising by email as soon as practicable on receiving notice of the same and the respondent be at liberty to put his view about those issues by return email.
3.The children shall live with the applicant.
4.The children shall spend time with the respondent as follows:
(a)During school term:
(i)Each alternate weekend from the conclusion of school or pre-school (or if not a school day then 4.00 pm) on Friday until the commencement of school or pre-school (or if not a school day 10.00 am) on the following Monday, commencing 18 November 2022;
(ii)In the intervening week from the conclusion of school or pre-school (or if not a school day then 4.00 pm) on Thursday to the commencement of school or pre-school (or if not a school day then 9.00 am) on Friday.

(b)For one half of all school holidays on a week about basis.

5.As and from term one in 2023, the children shall spend time with the respondent as follows:
(a)During school term time, from the conclusion of school on Thursday (or if not a school day then 4.00 pm) until the commencement of school on the following Tuesday (or if not a school day then 10.00 am).
(b)For one half of all school holidays on a week about basis.

6.All handovers that do not occur at the children’s school or pre-school do occur with the party who is to receive the children into their care to collect the children from the residence of the other party.
7.All communications between the parties be by email or SMS text message unless agreed otherwise.
8.Each party is authorised to receive copies of all educational correspondence with each party to be at liberty to attend any school or extracurricular activity for which parents are ordinarily invited to attend.
9.The children are to attend P School at Suburb O and each party is restrained from changing the children’s school without the written agreement of the other or order of the Court.
10.Each party is to follow the advice of any treating doctor, specialist or allied health professional who may be treating the children.
11.Each party is authorised to consult with and receive reports and advice from any treating doctor and/ or any specialist or allied health professionals who may be treating the children.
12.The respondent be restrained and an injunction is granted restraining him from providing medication to the children and that the parties be restrained from administering medication to the children not recommended by and prescribed for them by their treating medical practitioner.
13.The appointment of the Independent Children’s Lawyer is discharged.
14.In full and final settlement of any claim that either party may have against the other for settlement of property or alteration of interests in property, pursuant to Part VIIIB of the Family Law Act 1975 (Cth) (as amended),:
(a)That within sixty (60) days of the date of this order, the applicant do vacate the property at Q Street, Suburb R;
(b)That contemporaneously with the applicant vacating the Suburb R property, the respondent do pay to the solicitors for the applicant for and on her behalf, the sum of ~~SIX HUNDRED AND SIXTY THOUSAND EIGHT HUNDRED AND EIGHTY ONE DOLLARS ($660,881)~~ FOUR HUNDRED AND NINETY THOUSAND TWO HUNDRED AND FOURTEEN DOLLARS ($490,214) (“the settlement sum”);
(c)That in default by the respondent of the payment of the said settlement sum and should the default continue beyond a period of fourteen (14) days from the settlement date, then the properties situate at S Street, Suburb T (“the Suburb T property”) and at V Street, Suburb U (“the Suburb U property”) shall be placed on the market for sale upon such terms and conditions as may be agreed between the parties or in default of agreement, as may be fixed by this Honourable Court and upon the settlement of the sale of the Suburb T property, and if necessary the Suburb U property, the proceeds of sale shall be distributed as follows:
(i)Firstly, in payment of all costs of sale including agents fees, marketing costs and conveyancing fees;
(ii)Secondly, to discharge in full any mortgages secured over the Suburb T and/or Suburb U property;
(iii)Fourthly, to pay the unpaid balance of the settlement sum to the applicant together with the default interest provided that from the settlement sum, the applicant do pay to the respondent a sum equal to 45% of any capital gains tax payable upon the sale of either the Suburb T and/or Suburb U properties; and
(iv)To pay the balance remaining to the respondent.

15.That subject to the terms of these orders, the property in the following shall vest in the applicant absolutely, free of all further claim or demand or right or entitlement of the respondent:
(a)Furniture, furnishings and personal effects in the applicant’s possession;
(b)The applicant’s separate savings;
(c)The applicant’s superannuation entitlements; and
(d)Any other real or personal property or financial resources in the applicant’s name and/or possession otherwise specified herein.

16.That subject to the terms of these orders, the property in the following shall vest in the respondent absolutely free of all further claim or demand or right or entitlement of the applicant:
(a)Furniture, furnishings and personal effects in the respondent’s possession;
(b)The Suburb R, Suburb T and Suburb U properties;
(c)The respondent’s separate savings;
(d)The respondent’s superannuation entitlements;
(e)Any other real or personal property or financial resources in the respondent’s name and/or possession otherwise specified herein.

17.That as to the respondent’s member interests in Super Fund 1 (member number …78) (“the fund”):
(a)There shall be a superannuation split from the respondent’s interest to the applicant.
(b)Pursuant to s 90XT(4) of the Family Law Act 1975 (as amended) (“the Act”), the base amount allocated to the applicant out of the respondent’s interest is $118,458.
(c)Pursuant to s 90XT(1)(a) of the Act, whenever a splittable payment becomes payable from the respondent’s interest in the fund, the applicant shall be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount and there shall be a corresponding reduction in the entitlement that the respondent could have but for these orders.
(d)This order shall have affect from the operative time and the operative time shall be the fourth business day after the day on which a certified sealed copy is served on the trustee of the fund.
(e)That having been afforded procedural fairness, this order is binding on the trustee of the fund.

18.A Judicial Registrar of the Federal Circuit and Family Court of Australia Division 1 be appointed pursuant to section 106A of the Act to execute any document and/or instrument necessary to give effect to the terms of these orders in the event of any of the parties refusing or neglecting to execute such document within seven (7) days of the date on which they are required to do so pursuant to these orders, and being requested to do so by any other parties or by the other party’s legal representative.

the court notes that:
A.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pelham & Jupp has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 27 January 2023
BERMAN J
Introduction

Ms Pelham (“the applicant”) and Mr Jupp (“the respondent”) are unable to reach agreement in respect of the future parenting arrangements for X born in 2015 (“X”) and Y born in 2018 (“Y”) (collectively “the children”).
The parties are also unable to reach agreement in respect of settlement of property arising from a de facto relationship which commenced in 2009 and ended on 1 May 2018. The parties are not agreed as to the extent, if any, of periods of separation during the course of the relationship.
The applicant seeks sole parental responsibility for the children and that the children live with her and spend time with the respondent as may be ordered by the Court, with such time to be supervised by the children’s paternal aunt, Ms D.
The orders sought by the applicant are problematic in seeking that I exercise discretion and make orders that are in the best interests of the children, only feted by the condition of supervision. It is unlikely that the applicant seeks to leave the resolution of the further parenting arrangements entirely at the discretion of the Court. A further difficulty is the admission of the applicant that she had previously opposed the paternal aunt supervising the respondent’s time with the children.
The respondent seeks sole parental responsibility for the children, that they live with him and only spend time with the applicant under supervision and until further order. I am uncertain whether the respondent intends that the parenting proceedings will be dealt with on an interim basis, with final orders to be adjourned pending further evidence.
A more significant difficulty, is the extent to which a final order that a party’s time with a child or children should be the subject of long term supervision, has utility and is even viable.
Neither party presented any evidence that would enable a proper consideration to be given that might justify supervision over an extended period. Given the lack of assistance provided by the parties in support of the order for supervision as sought by each of them, in reality, the effect is that the children spend no time with the subject party.
Even on the most pessimistic presentation by each of the parties, it is not contemplated that the children should not be permitted to have a relationship with either the applicant or the respondent.
The applicant concedes that following separation, she believed that the children should have a meaningful relationship with the respondent and by her own concession, acknowledged that up to mid-2020, the respondent came and went from her home and spent unfettered time with the children. She also accepts that the parties communicated on a daily basis with each other and spent time with the children in a family setting.
The applicant withdrew her acceptance of the unregulated time the children spent with the applicant as from September 2021, when she contends that the children made disclosures to her that she considered indicated that the children had been subject of sexual abuse by the respondent.
Further, the applicant refers to her discovery of the respondent being charged with “knowingly possessing child pornography and dissemination of child pornography” in 1998. It is not controversial that the respondent entered a plea of guilty but that the charges were dealt with without recording a conviction.
For his part, the respondent considers that the allegations of sexual abuse were confected by the applicant and given that the applicant continues to make unsubstantiated reports of purported disclosures made by the children, the applicant has embarked upon a deliberate strategy to fracture the respondent’s relationship with the children and to cause him loss of career and livelihood.
The parties are not agreed as to the assets and liabilities that should be brought to account however, the more significant areas of contention are as to the extent of the respondent’s interest in the property situate at Q Street Suburb R (“the Suburb R property”), the value of items of personal property but in particular, the value to be attributed to the respondent’s bicycles and the extent to which a substantial liability of the respondent to the Australian Taxation Office (“ATO”) should be brought to account.
In broad terms, the applicant seeks a settlement that the property of the parties be divided to equality and that there be a superannuation split from the splittable interest of the respondent, to effect an equalisation of the parties’ superannuation entitlements.
The respondent seeks to highlight what he considers is the significant contribution made by him at the commencement of cohabitation, together with significant contributions made during the periods of separation and following final separation. However, he concedes that if the children would remain in his primary care, the property of the parties should be adjusted as to 80/20 in his favour, whereas if the children remain in the primary care of the applicant, then her entitlement should be based on a 45 per cent division.
The respondent concedes that there should be an order for a superannuation split but considers that it should be limited to a lump sum of $100,000.
Documents relied upon
The applicant relies upon the following documents:-
(1)Further Amended Initiating Application filed 11 February 2022.
(2)Trial Affidavit of the applicant filed 11 February 2022.
(3)Financial Statement filed 11 February 2022.
(4)Affidavit of Ms Z filed 11 February 2022.
(5)Case outline filed 21 February 2022.
The respondent relies upon the following documents:-
(1)Response to Initiating Application filed 31 May 2021.
(2)Trial Affidavit of respondent filed 17 February 2022.
(3)Financial Statement filed 14 February 2022.
(4)Affidavit of Ms D filed 16 February 2022.
(5)Affidavit of Mr AA annexing psychiatric report prepared by Doctor BB filed 15 February 2022.
(6)Case outline filed 18 February 2022.

In addition, the Court is to consider the Family Assessment Reports prepared by Family Consultant Dr M dated 9 June 2021 (“the first report”) and the family report prepared by Court Child Expert Ms DD dated 21 January 2022 (“the second report”).
The Independent Children’s Lawyer (“the ICL”) relies upon the evidence of Dr M and Ms DD as well as a submitted case outline document.
At the outset of the proceedings, the ICL was not satisfied that the respondent represented an unacceptable risk.
The ICL sought the following orders as set out at paragraph 7 of the case outline document:-
a. Equal shared parental responsibility;
b.A graduated increase in the father’s time so that by the time both children attend school the children spend each alternate weekend, from end of school or 3pm Friday until commencement of school or 9am on Monday with the children spending an additional overnight with the father in the intervening week on a weeknight;
c.The children spend one half of school holidays with each parent and special occasions to be shared; and
d.An injunction restraining the father from [supplying] medication for or treating the children himself – without the direction of the children’s nominated General Practitioner or Specialist.
Background
The applicant was born in 1976 and is now aged 46 years.
The respondent was born in 1973 and is now aged 49 years.
The applicant maintains employment on a casual basis as a health professional. The respondent is employed as a medical professional.
The respondent was raised in Victoria. He commenced a relationship with Ms EE in 1993. At the time, the respondent was a student but also working part-time as an allied health professional. Ms EE was a health professional.
In 1997, the respondent was charged with transmitting objectionable material and with knowingly possessing child pornography between August 1997 and December 1997. The charge came about as a result of Victoria Police attending the respondent’s home in December 1997 and removing and taking possession of his computer. The basis of the charge arose from the information discovered by police following an inspection of the respondent’s computer.
The charge was heard in the Magistrates Court in 1998. The respondent pleaded guilty and without a conviction being recorded, was required to enter into a good behaviour bond for a period of two years together with the payment of a fine in the sum of $2,000.
The respondent and Ms EE moved to Adelaide in 1998.
In or about 2003, the respondent and Ms EE purchased the property at Q Street, Suburb R (“the Suburb R property”).
The respondent and Ms EE separated in 2005. She remains registered as a joint proprietor of the Suburb R property. Neither the respondent nor Ms EE brought a claim for settlement of property. The respondent contends that he does not have any agreement with Ms EE in respect of her interest and neither he, nor Ms EE, have brought any claim for settlement of property.
The applicant and the respondent met in 2005. At that time, the respondent was employed as a medical professional and the applicant as a health professional. The parties met as a result of their shared employment in Adelaide.
The respondent’s father died in 2006. Following a challenge to his father’s will, the respondent reached a resolution with potential beneficiaries who had a claim on his father’s estate and following the payment of a settlement sum, the respondent now holds an equitable interest in a farming property in Victoria near FF Town (“the Victorian farm”). Even though the respondent does not appear as the registered proprietor of the Victorian farm, he concedes that it should be brought to account in the proceedings at its full agreed value of $250,000.
There is significant dispute as to the status of the parties’ relationship. The applicant contends that the parties commenced living together in 2005. The respondent considers that the commencement of cohabitation, and therefore the start of their de facto relationship, commenced when the applicant moved into the Suburb R property in 2009.
The relationship between the parties was complex. The applicant asserts that their relationship was marred by the respondent’s continued infidelity. The respondent does not necessarily deny the applicant’s assertion and describes his conduct under the rubric of making poor lifestyle choices.
The timeline of the parties’ relationship is relevant in that the respondent considers that having entered into a de facto relationship with the applicant in 2009, they separated on 21 October 2011 and only resumed a relationship in early 2015, finally separating in May 2018. In summary, the respondent considers that the total period of cohabitation, and therefore the duration of the de facto relationship, was some five years and eight months whereas the applicant considers that, despite the level of dysfunction, the parties were in a de facto relationship for 13 years.
The respondent considers that the parties separated for the first time on 21 October 2011. As discussed, the applicant does not agree. The respondent confirms the date of separation as being the date upon which the applicant vacated the Suburb R property and he received a text message from her, acknowledging that the relationship was over.
The respondent considers that the parties reconciled in early 2015, being the date that the parties resumed cohabitation and the applicant was pregnant with X. As at the respondent’s date of separation in 2011, he had savings of $757,907 whereas at the date of reconciliation, his savings had increased to $929,166.
It is a feature of the respondent’s financial circumstances that as at the date of trial, the respondent had not lodged an income tax return since the 2013 financial year. Accountants had been instructed to prepare returns for the period 2014 to 2021. The significance is that no tax had been deducted from the respondent’s income.
Following X’s birth in 2015, the respondent says that he slept on a mattress in the lounge room and then shortly thereafter, he assumed the role of primary carer for the child. He considers that he was home seven days a week and that he slept alongside X to assist the applicant in her post-natal depression and a difficulty arising from a medical complaint.
The applicant does not accept the respondent’s summary of his care of X and contends that the respondent prevented her from resuming care of the child, that he was aggressive in his interaction and that she could not understand why the respondent insisted on co-sleeping with the child.
In July or August 2017, the respondent advised the applicant that the relationship was over however, the parties remained living separately but under the same roof until the respondent left the Suburb R property and moved to the Suburb T property on 1 May 2018. The parties are agreed that this is the date of the final separation.
It is accepted that the respondent held a superannuation interest with Super Fund 1 which as at 30 June 2018, had a balance of $344,647 and as at 20 June 2018, he had savings in a CBA Account of $592,367.
Following the final separation, the parties attempted to resolve their differences. Whilst there was no concluded agreement, a consequence of the parties’ discussions enabled the applicant to remain living in the Suburb R property.
The respondent spent significant time with the children until the respondent’s time ceased following allegations that he had sexually assaulted the children.
The police also investigated an allegation that the respondent possessed an unlicensed firearm, had made sex tapes involving the applicant without her consent and had improperly supplied prescription drugs.
A range of materials were removed by the police from the Suburb R property in November 2020.
The charge of possession of unlicensed firearms was dropped in June 2021. In July 2021, the police sought an order compelling the father to provide passwords for his electronic devices that were obtained by the police, following a search in November 2020. The father challenged the Magistrates decision and following a Judicial Review in the Supreme Court of South Australia, the ex-parte order was discharged.
Thereafter, no further charges were pending. There is still an investigation being undertaken by CC Association, consequent upon reports made to the regulatory body by the applicant.
The issue of access to the respondent’s electronic devices whilst they were being held by the Police, was a live issue during the course of the proceedings.
The respondent’s position was that subject to certain protocols being put in place, the respondent would allow access to the applicant and the ICL. The respondent’s offer was not taken up and at that point, the respondent collected and presumably has retained, his electronic devices.
As at the date of trial, the respondent is subject to a Child Support Assessment although there remains a contention as to the extent of the outstanding arrears and the amount being collected by the Child Support Agency (“CSA”) as opposed to the amount being debited.
The evidence
At the commencement of the trial, the Court highlighted the provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular, whether the Court should dispense with the provisions of s 69ZT of the Act and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Whilst neither party spoke against the application of the provisions of 69ZT of the Act, I considered that the principles pursuant to s 69ZN of the Act, would be better served by the application of the provisions of the Evidence Act.
It is integral to the applicant’s case that the respondent poses a risk to the children, arising out of the counts of the purported disclosures by the children that he is a perpetrator of family violence and further, that he presents as a risk to the children by reason of the following:[1]
a.        the supply and use of medication to the children,
b.        his failure to properly secure the children in vehicles while in the care,
c.        his illustrated attitude to leaving the children unattended in vehicles and
d.his ongoing facilitation of the children’s contact with his pet dog who has bitten X on the face on three occasions.
[1] Respondent’s Case Outline filed 21 February 2022, page 13.
The applicant has pursued criminal proceedings against the respondent and there is an open and ongoing CC Association investigation.
I consider that the circumstances are exceptional and I have had regard to the provisions of s 69ZT(3) of the Act. In particular, a relevant matter arises from the orders that the applicant seeks namely, that the child should live with her and only spend time with the respondent under supervision. As discussed, the likely result of such an order, is that the respondent will spend no time with the children and there would be no possibility of him maintaining a meaningful relationship with them.
Accordingly, I consider that the provisions of the Evidence Act should apply to the following matters:-
(1)The applicant’s allegation that the respondent has sexually abused the children.
(2)The applicant’s allegation that the respondent inappropriately uses and/or supplies prescription medication.
(3)That the respondent has engaged in sexual exploitation or the accessing, use or distribution of child exploitation material.
The applicant
As at the date of trial, X was aged 6 years and Y was aged 4 years. X attends P School and Y has now started at the pre-school. Both children are on the same campus.
The applicant acknowledged that whilst X struggled with behaviour and other issues in 2021, this year he has not displayed any problematic behaviours.
The applicant gave evidence that she remained concerned as to the respondent’s history of infidelity, his inappropriate use of medication and sexual abuse allegations. The applicant remained convinced that the respondent had sexually abused the children and accordingly, had obtained information from the Director of the pre-school aimed at assisting children to identify what would make them feel safe. In addition, the applicant took X to see a counsellor in early 2020. It appears that the focus of the therapeutic intervention was directed to the potential consequence of a child who has been the victim of sexual abuse. The applicant agreed that the allegations of sexual abuse were predominantly directed to Y and not X.
The applicant repeated her concern that the respondent’s sexual conduct with other people constituted risky behaviour.
The impact of the proceedings on the applicant was apparent from her concession that whilst she was not necessarily consumed by the proceedings, after the litigation is over she will return to work four days per week. If so, then her income would be between $1,000 and $1,500 per week.
A significant aspect that underpins the applicant’s allegation of sexual abuse, is her observation of X’s behaviour that she describes as “humping”. The applicant raised the issue of X’s humping behaviour with the Director of the child’s pre-school in September 2019. The suggestion to the applicant was that the behaviour may be a form of self-soothing. The applicant and the respondent agreed that the matter should be further considered and an appointment was made with Ms HH at JJ Psychology in January 2020.
X’s behaviour was considered by the applicant against Y’s purported disclosures on 23 September 2020, when the child complained of a sore bottom and referred to “daddy hole”.
On 24 September 2020, the applicant further raised with X the discussion about “daddy’s hole” and the applicant alleges that X then said “daddy asked Y to tickle the end of his penis”. The applicant makes further allegations that X observed the respondent hitting his penis which the applicant has interpreted as the respondent masturbating.
X underwent a forensic interview conducted by a Child Protection Services (“CPS”) worker in November 2020. At that time, the applicant was told that X had not made any disclosures.
Following the interviews with the children, the applicant agreed that she had reported finding a sex tape, the existence of the firearm and she had concerns that the respondent was inappropriately supplying prescription medication.
The applicant agreed that in November 2020, she made a lengthy police statement which included a report that the respondent was in possession of a firearm.
The police attended at the respondent’s house in November 2020 and seized the firearm and then the respondent’s electronic devices.
The applicant was purportedly frightened by the existence of the weapon. When questioned, the applicant conceded that the firearm had been in the house for a number of years and was owned by the respondent’s father. Moreover, the firearm was located in the cellar in an unlocked box. She conceded that the respondent had never threatened her with the gun.
It was not controversial that following separation, the respondent spent significant time with the children on most weekends and often during the working week. The applicant agreed that the respondent was in almost daily attendance at the Suburb R property.
Furthermore, the parties spent time together as a family.
The applicant agreed that the respondent had bonded with the children and came and went from the Suburb R property as often as he wanted to do so.
The firearm charge was withdrawn in June 2021. On that date, the applicant made a further complaint in respect of a purported disclosure by Y. There was some investigation in relation to the notification however, nothing eventuated. The applicant acknowledged that she made further notifications in January 2022 and as recently as February 2022. It is not disputed that the applicant’s allegations, based upon purported disclosures by the children, have been the subject of exhaustive investigation with no confirmation that sexual abuse had occurred.
The applicant acknowledged that the children had not repeated the disclosures made to her but explains the lack of disclosure by considering that the children are aware of what is happening and did not want to get the respondent into trouble.
The applicant was unconvincing in her justification for reading a body safety book to X at age two and a half. The inference is that the applicant sought to create an atmosphere that would prompt the children to make allegations as opposed to her mere concern that the children may have been abused.
A more curious aspect of the applicant’s conduct arises in respect of her instructing a private investigator in April 2021, to sweep her property for electronic devices and surveillance equipment, for the sum of $1,000. The applicant’s concerns were apparently enlivened by her belief that the respondent was attempting to access her emails and other communications.
The electronic sweep did not find any evidence that the respondent had the applicant under surveillance.
The applicant’s evidence of her fear that the respondent was hacking into her emails and had her under electronic surveillance, was unconvincing.
The applicant’s report to the police was the catalyst for the search of the respondent’s premises and their seizure of his electronic devices, work equipment and both his and his mother’s medication.
The applicant considered that her statement to the police was justified on the basis that the community at large needed to be protected from the respondent. In forming this view, she conceded that the issue of the respondent supplying medication inappropriately was known to her both during their relationship and certainly as, and from, the date of the final separation.
The applicant considered that the respondent adopted a liberal attitude to medication in particular, for the children.
A particular focus of the applicant was the children being given Codeine Linctus and Painstop Night Time Pain Reliever (“Painstop”) if they were unwell. Various scripts for Codeine Linctus were then used for the children. It was the applicant’s contention that the respondent would use prescriptions for other people including the applicant, the children, members of the respondent’s family and his sexual partners.
The applicant tendered a history of prescription medication supplied by the respondent between 2016 and 2019. She sought to highlight those medications that had been prescribed to the applicant. The applicant considered that she felt compelled by the respondent, to administer the prescribed medication including, Nurofen and Codeine. The applicant did so even though she believed it was against medical recommendation for children under the age of twelve years to use Codeine medication.
The applicant agreed that she was a well-qualified health professional and that initially, the medication that she and the respondent gave to the children, had been available over the counter but then required a prescription when a ban was imposed on Codeine based products being freely available.
Exhibit “2” comprises text messages between the parties relating to the applicant administering Painstop. An example of the applicant’s use of Painstop is demonstrated by the following messages:-
2/11/2017[X] is a mess…I’ve given him painstop…he’s just constantly      clutching at his right ear…he’s s…[sic]
1/11/2017       He’s asleep. Pain stop/warm milk/lap/lullaby’s all work together.
8/12/2017Ok…[X’s] awake and quite grumpy at me so I’ll be dosing him up on painstop for mood improve…
3/11/2017The painstop has either kicked in or the pain has settled…he’s now snuggling up with me and his bl…[sic]
The applicant did not call expert evidence to establish that administering Codeine and/or Nurofen based medication to the children, was either not advisable from a medical perspective or was not appropriate in respect of a medical professional misusing a prescription for medication for a family member.

The evidence as presented by the applicant, supports a finding that the parties were in agreement as to administering the Painstop with no support for the contention that the applicant was compelled to administer the medication by coercive or controlling behaviour of the respondent.
The applicant did not resile from her view that the respondent is a serial paedophile and that the children are at serious risk if left in his care unsupervised.
The applicant revealed that she had held concerns about the respondent’s inappropriate interest in the children by observing that the children often had what she considered was a “suspicious look”.
The applicant was asked to consider the following paragraphs from her affidavit filed 28 June 2021:-
28.On [...] April 2020, I attended a further session with the psychologist. The psychologist reported to me that the father had suggested that I was overly anxious regarding the children and over-anxious generally.
29.At that session I told the psychologist that I do not think that I was ‘overly anxious’, but that I considered that the father took risks with the children that I did not think acceptable. I gave her the example of [X] travelling in the front seat of the car without a car seat while in the father’s care. As soon as I told her that story I panicked. I had told [X’s] speech pathologist the same story and she had told me that she needed to make a notification as a mandatory notifier. I burst into tears when she (the speech pathologist) told me this because I did not want a report made against the father.
30.I immediately asked the psychologist (after telling her the driving story) whether she had to make a report about the story. I told her I did not want her to make a report. I did not want conflict to result between the father and me from the story I told.
31.When we moved on from that story, the psychologist told me that she was not concerned about [X] by anything she had seen or heard, but that developmentally he needed input. She suggested that the father and I have a joint session together to ensure that we were on the same page with that developmental input, routines and parenting, and about how the boys understood our separation.
32.I can recall at the time feeling as though the father and the psychologist had dismissed my concerns regarding [X] and the humping and his difficulty. At that time however, [X’s] humping had decreased and I decided to put [X’s] anxiety and humping to the general stress of our lives and what was happening six months prior with the father’s relationship with [Ms LL].
The applicant agreed that she had gained no support for her concerns in respect of the respondent’s alleged conduct. It is apparent from the applicant’s presentation that she was either unable or incapable of accepting the opinion of various health professionals that the children’s conduct was not indicative of them being the subject of sexual abuse by the respondent.
A further concern of the applicant was that the respondent has now retained the children’s dog. Apparently, in mid-2021, the dog bit X. The applicant considered that in some way, the respondent was responsible for the dogs’ errant behaviour. The applicant is concerned that the respondent will not protect the children from the dog.
The applicant’s evidence was confused and was inconsistent in circumstances where if the dog genuinely presented as a risk to the children, it first arose at a time when the children and the dog were in the applicant’s care.
The applicant also reported a concern that the respondent had placed X, unrestrained, in the front seat of his car.
A further issue was a view held by the applicant that the respondent was cavalier with his use of work equipment with the potential for the children to injure themselves.
I did not consider that at its highest, the applicant’s evidence could support a finding that the respondent’s behaviour in managing the dog, transporting the children or ensuring that the children were in an unsafe environment.
The applicant informed the Court Child Expert of her concern regarding the 1997 charges involving the charge of sexual exploitation. The concern in respect of the historical charges were matters raised before Judge Heffernan. The applicant considered that the respondent’s explanation of the particulars of the charges, was unsatisfactory. I find that the respondent made significant efforts to obtain information and that any lacuna is not as a result of a lack of effort by the respondent, but rather a result of the efflux of time.
The applicant conceded that despite the various investigations as to the alleged conduct of the respondent, her position is that she will always believe that the respondent had sexually abused the children.
The applicant gained corroboration for her belief that the children were at risk in the respondent’s care, from a number of unrelated incidents and observations.
Whilst at a hotel, X was observed to run up and down the dining room with two men apparently looking at him. The applicant remembers that the respondent urged caution in that the strangers could be “paedophiles”.
On another occasion, the children spent the weekend with the respondent during which period, Y suffered bad diarrhoea. The respondent reported Y’s condition to the applicant. The applicant was concerned that the use by the respondent of Vaseline around the child’s anus, was consistent with sexual abuse.
Further concern arose from X refusing to wear short pyjamas in circumstances where previously, he was happy to do so.
It was against this background that X was taken to see Ms HH in respect of the applicant’s concern that his “humping” behaviour was sexualised.
As matters transpired, the humping behaviour reduced and the applicant considered that X was now better able to modify his behaviour.
The applicant’s evidence as to the justification for the continued view held by her that the children had been subjected to sexual abuse by the respondent, lacked merit and perspective.
The applicant’s evidence was unreliable.
The applicant reports that Y told her that the respondent had tickled him on his bottom and blew on his body. The applicant’s concern was that for this to have occurred, Ms D would not have been supervising.
In all, six reports were made by the applicant suggesting that the respondent had acted inappropriately with the children and that they may be at risk. This resulted in two forensic interviews involving each of the children. It is conceded that there is no current investigation by police.
It must be remembered that the rules of evidence are to apply in circumstances where the allegations promoted by the applicant, sought a finding that the respondent had sexually abused the children and he was therefore an unacceptable risk. The result would be no time with the children.
The issue of risk, as may be presented by the respondent in respect of his alleged propensity to supply and administer codeine based medication, had a more sinister genesis in an allegation made by the applicant in her affidavit of 3 February 2021 in the following terms:-
35.I am concerned that the respondent had available to him the ability to obtain pharmaceutical medication that would have allowed him to sexually exploit the children while they were under the influence of that medication. I am sickened by the thought that the children may have been exposed to sexual abuse while ‘drugged’.
The historical allegation was the subject of comment by the ICL who submitted that the allegation was not in the applicant’s trial affidavit and was not the subject of evidence from the applicant. The allegation was however, put to the respondent. It is suggested that it was improper for the applicant’s counsel to do so.
Ms Z (“Ms Z”), a friend of the applicant, asserts in her affidavit filed 11 February 2022, that she observed X lying on a couch with his legs in the air and his hand over his bottom with his middle finger over his anus.
X was overheard to say “Daddy does it and I love it”. Ms Z interpreted the child’s behaviour as consistent with the child “pleasuring himself”.
Ms Z also observed behaviour by X that she considered was humping and regarded it as sexualised behaviour.
Ms Z conceded that there may be a range of explanations for the children’s behaviour, one of which might be that the children have seen their father touching his penis.
Ms Z was keen to emphasise that she was an advocate for the children, given her observation and acceptance of the mother’s history that the children displayed sexualised behaviour.
Ms Z admitted that her current memory was poor and was undermined by her current high level of stress. The manner in which the affidavit was drafted, made it clear as to the extent that Ms Z supported the applicant and was prepared to accept, without challenge, not just the applicant’s observations but rather her interpretation of the children’s behaviour that it was sexualised and was as the result of the respondent’s persistent sexual abuse of the children.
The evidence of Ms Z lacked balance and was inherently unreliable. Her evidence was of little assistance in the proceedings.
The respondent
The respondent conceded that he had not filed a tax return for a number of years.
The issue of the potential liability arising from the failure of the respondent to lodge his returns, loomed large in the proceedings in that at one point, the respondent considered that his ATO debt could be as high as $480,773.
At the conclusion of the evidence, the respondent amended his position and was prepared to accept that his ATO debt was $18,548. The applicant did not seek to challenge the amended ATO liability being brought to account.
After the proceedings had concluded, the respondent filed an Application in a Proceeding seeking to reopen the evidence on the basis that the potential tax liability could well be as high as $320,248.
Subsequently, the respondent filed a Notice of Discontinuance on 10 August 2022 and conceded that, for the purposes of the proceedings, the original figure of $18,548 should be brought to account.
Whilst there is an outstanding costs application pending in respect of the Application in a Proceeding, I consider that the concession by the respondent is sufficient for the Court to determine the respondent’s outstanding taxation liability.
In February 2022, the respondent became aware that even though the previous SAPOL investigations were finalised as in November 2021, a further investigation was being undertaken arising from new DCP intakes.
Exhibit “4” provides the email communication between the respondent and SAPOL. In February 2022, Sergeant KK advised that SAPOL had reviewed the new information and following a consultation with CPS, a decision was made that the investigations remain closed.
The concern of the respondent was that the applicant continued to make notifications that were without substance.
The respondent also confirmed that as at February 2022, there was a current and ongoing CC Association investigation concerning his professional conduct. The respondent is represented by solicitors and the matter is ongoing.
It is a reasonable assumption that the professional investigation has come about following a complaint or referral by the applicant.
There was considerable focus on the 1997 charges of transmitting objectionable material between August 1997 and December 1997 and with knowingly possessing child pornography.
The respondent’s evidence is that he was 24 years of age at the time of the offences. He contends that as a result of downloading a music sharing file, he received unwanted child pornography.
The police attended his home in December 1997 and were given full access to the respondent’s electronic devices. He states that he made a full statement to the police and admitted that because of he had been on a holiday, he did not delete the material that he contends he was not able to stop being transmitted to his computer.
There is no evidence of the proceedings in the Magistrates Court in June 1998 given by the respondent.
The respondent acknowledges that four offensive images were tendered and that he agreed it was his account that received the images. Where there is contention between the parties, is the respondent’s position that the prosecutor and Magistrate accepted a submission that he was naive in receiving and not deleting the objectionable images but that he was not the perpetrator, producer or transmitter of child pornography.
It appears uncontroversial that upon the respondent’s plea of guilty, no conviction was recorded but that he was required to give an undertaking to be of good behaviour and enter into a bond for a period of two years.
The bond and undertaking expired on 29 June 2000.
It is an important consideration that the respondent took significant steps to seek details from courts in Victoria as to any documents that might remain relating to the charges. A Freedom of Information Application was also made.
The contention on behalf of the applicant, was to challenge the respondent’s position that even though he pleaded guilty, he received no conviction. When speaking to the Family Consultant, the respondent spoke of the criminal charges related to child pornography but did not specifically acknowledge that he had entered a plea of guilty.
The issue of the respondent’s conduct in respect of the 1997 charges was the subject of persistent cross-examination. I accept that the applicant’s counsel could do no more however, ultimately I am not persuaded that there is a more sinister background than has been the subject of concession by the respondent.
The respondent was also challenged as to the extent of his cooperation with requests by SAPOL to provide the necessary passwords to enable the ceased electronic devices to be accessed.
Whilst the applicant considers that an adverse inference should be drawn against the respondent because of his refusal to provide passwords at first instance, the evidence is that the respondent was prepared to cooperate with the SAPOL investigation but only in circumstances where the access to his electronic devices was the subject of joint observation by both the SAPOL Forensics Division and an expert nominated by the respondent.
As discussed, SAPOL were unsuccessful on judicial review in seeking an order that would compel the respondent to divulge the necessary passwords.
The potential relevance of the respondent’s electronic devices was a live issue during the proceedings. The respondent indicated a preparedness to have the content of his electronic devices made available to the Court which was not taken up by the applicant.
Whatever issues may have arisen as between the respondent and SAPOL, the evidence for the purposes of these proceedings supports the respondent’s contention that he was prepared to facilitate the electronic devices being returned by the police to the Court rather than to the respondent’s care. The intent was to maintain the integrity of the chain of evidence.
It would be improper to draw an adverse inference or conclusion from the respondent’s initial refusal to provide his passwords in circumstances where he was entitled to do so.
The respondent was asked to consider whether the purported “humping” behaviour was sexualised. The respondent did not consider that it was sexualised behaviour but rather consistent with a small child exploring his genitals.
Nonetheless, the respondent took X to see Ms HH and reported back to the applicant that whilst there were some anxiety and sensory perception issues, there was no issue in terms of X’s behaviour being considered as sexualised.
The respondent conceded that he did seek professional assistance arising from thoughts of self- harm, although not at the level of suicidal thoughts or ideation. He conceded that he had been prescribed antidepressant medication.
Given that the respondent holds significant skill as a medical professional, his evidence spoke to him having considerable insight in respect of his condition and his ability to develop and maintain a strong emotional attachment to the children.
There remained some uncertainty as to the precise chronology of the periods when the parties were together and then had separated.
The respondent acknowledged his various infidelities during the relationship with the applicant. As a necessary part of that conduct, the respondent admitted that he had lied to his various partners in order to continue with his multiple relationships.
Whilst I do not accept the applicant’s contention that the parties period of cohabitation effectively spaned thirteen years, the conduct of the respondent in maintaining multiple relationships, has the consequence of blurring the lines that would otherwise enable the Court to have some certainty as to when the parties were in a marital like relationship, as opposed to a clear period of separation.
The respondent was challenged as to his readiness to supply and administer codeine based medicine to the children.
The applicant and the respondent are both health professionals. Whilst the respondent is a medical professional, the applicant is a health professional. The use of codeine based medicine is well understood by each of them.
It may well be that a medical professional should be cautious about supplying certain medications to family members but the contention of the applicant is that the conduct of the respondent placed the children at risk and on that basis, the children remain at risk if they spend substantial time in his care.
No expert evidence was called to enable the Court to better understand whether the prescription and medication history undertaken by each of the parties, should be considered as placing the children at risk.
There is no evidence that the conduct of the parties, albeit possibly ill advised, did place the children at risk.
I am not satisfied that the evidence would support a finding that either of the parties, but in particular the respondent, is not able to control propensity to supply and administer codeine based medication.
Moreover, I am satisfied that the orders sought by the ICL namely, that the respondent be restrained from supplying medication to the children, would be complied with.
I consider that the respondent was a reliable witness and made concessions where it was appropriate to do so.
Ms D
Ms D, is the respondent’s sister. She has known the children throughout their lives.
She was appointed a supervisor of the time spent by the children with the respondent, by order made 2 August 2021.
Her periods of supervision were frequent and ongoing.
She confirmed that throughout the periods of supervision, the children were not left alone with the respondent other than when she had to use the toilet.
She made favourable observations of the interaction between the children and the respondent. Her evidence did not suggest that the children were fearful of the respondent.
Whilst she has indicated she would be willing to undertake a continuation of her supervisory role, she maintains a significant work commitment as an administration officer.
Ms D presented as an impressive witness.
Section 65L Report
As a result of information that was provided to SAPOL, X was referred to Child Protection Services (“CPS”) to investigate and explore whether the purported disclosures made by him to the applicant on 23 and 24 September, support the applicant’s contention that the children are at risk in the care of the respondent.
On 7 May 2021, the ICL filed an affidavit annexing a copy of the CPS report dated 7 January 2021 (“the CPS report”). The CPS report was not able to find that either of the children had been exposed to inappropriate sexual material, sexual abuse or sexual assault by the respondent.
The CPS report did observe that the children may be adversely impacted by “the extensive chaotic and fragmented relationship [the applicant] and [the respondent] had shared, underpinned by their own personal functioning struggles, and that both [X] and [Y] had been exposed to this throughout the entirety of their lives”.[2]
[2] Child Protection Services report dated 7 January 2021, p 13

As a result of the investigation, the respondent was not permitted to spend time with the children. The respondent brought an application to resume spending time with the children which was dismissed by Judge Heffernan on 16 December 2020. It appears that his Honour considered that until the SAPOL investigation had run its course, and an ICL was appointed, it was premature to consider a resumption of the children’s time with the respondent.
At the time that the proceedings came before me on 13 May 2021, the various investigations had not been entirely finalised although I found that SAPOL had been made aware of the Victorian conviction in 1997/1998 which prompted them to explore whether the respondent’s electronic devices contained inappropriate images.
At the time of the interim hearing, the respondent had not been charged with any relevant offence and there did not appear to be any current evidence which implicated the respondent. Moreover, the CPS report did not implicate the respondent. The residual area of uncertainty, was the applicant’s concern that the children were fearful of the respondent, that there was unlikely to be any emotional attachment between the respondent and the children and in circumstances where she considered that there was an absence of meaningful relationship and there should be no time spent pending an opportunity to present comprehensive evidence.
I ordered that a Family Consultant observe the interaction between the children and the respondent, pursuant to s 65L of the Act, on two separate occasions.
Family Consultant Dr M (“Dr M”) observed two periods of supervised time in June 2021 and provided a 65L Report on 9 June 2021.
Dr M sets out in her report that she observed as follows:-
8.… [the respondent] demonstrated unwavering attention to the children. He made appropriate comments in relation to their focus of interest. He was not observed to be overly intrusive, but seemed respectful of the boys’ ‘personal’ space and appeared interested in the toys that they were playing with.
The summary/evaluation of Dr M’s report is helpful:-
18.The four hours that the children spent with the [respondent] over the two supervised sessions raised no concerns about the [respondent’s] ability to emotionally attune to the children, and support their development. Of the two boys, [X] was immediately positive and affectionate towards the [respondent]. [Y] took longer to relax into spending time with [the respondent], and there was an overall sense that [Y] was still processing this relationship, in the context of [the respondent’s] lengthy absence in his life, the unfamiliar physical environment in which he has recommenced spending time with [the respondent] (the court child care), and the [applicant’s] apparent concerns about the nature of the [respondent’s] relationship with the boys. [Y’s] need for [the applicant] towards the end of the session suggests that he is emotionally dependent on her, as is consistent with his age, and is suggestive of a close emotional relationship. His capacity to spend extended time away from [the applicant] in unfamiliar environments may need to be taken into account.
19.The [respondent’s] ability to support the children’s development was noted throughout the supervised time. He appears to be able to understand the world from the children’s perspective, and to connect emotionally and cognitively with them at their level of interest. These skills are considered important in building good quality, secure, parent-child relationships.
Family Consultant
By order made 8 June 2021, Ms DD (“Ms DD”), in her capacity as a Court Child Expert/Family Consultant, prepared a Family Assessment Report dated 21 January 2022.
Ms DD holds relevant tertiary qualifications.
She has relevant work experience and she has practiced as a Family Consultant from 2018 to present.
Ms DD had the advantage of a raft of court documents but of greater relevance, is her accurate consideration of the current arrangements (the children spending time with the respondent each Wednesday and Saturday between 11.00 am and 5.30 pm, supervised) and the family background, which accurately sets out the involvement with DCP and the criminal investigation.
In part, the role of a Court Child Expert is to consider the separate proposals of the parties in order to better understand the impact of those proposals on a child or children.
In that regard, Ms DD correctly identified the applicant’s position that she does not support the children spending direct time with the respondent and at that stage, she continued to harbor concerns that the children had made disclosures that were consistent with them having been the subject of sexual abuse by the respondent.
At that time, the respondent sought an equal shared care arrangement however, if the Court considered that the applicant was vexatious in her promotion of the allegation of sexual abuse by the respondent, then the children should remain in his primary care.
The parties each considered that the other may suffer from mental health issues. The applicant considered that she presented with severe anxiety which she attributed to the ongoing litigation and her relationship with the respondent.
For his part, the respondent had engaged with Dr BB, Psychiatrist, and he had been prescribed medication to ameliorate the symptoms of reactive depression. Notwithstanding the diagnosis, it does not appear that the respondent’s mental health issues have adversely impacted upon his ability to remain in his current employment.
Ms DD considered that despite the conflict between the parties, each of them appeared to be respectful, insightful and child focused.
The respondent based his proposal for an equal shared care arrangement as enabling the children to maintain a strong relationship with each of them. It was an important concession by the respondent that he recognised the strength of the children’s relationship with the applicant and in particular, that a significant change in the primary care arrangements may well be initially harmful to the children.
Ms DD determined that the children had been exposed to a chaotic and conflicted relationship between the parties. As a result, the parties were unlikely to be able to co-parent cooperatively and that at the time of interview, the applicant did not resile from her strongly held belief that the respondent had sexually abused the children.
Consistent with the s 65L supervised time, the observations of interaction between the respondent and the children appeared insightful and child focused.
A similar observation was made as between the children and the applicant. An important observation of Ms DD appears in the Family Assessment Report:-
99.Overall, the observations suggested that the parties’ had the necessary parenting skills to support the children’s development.
Whilst not tasked with determining the veracity of the applicant’s allegation that the respondent sexually abused the children, Ms DD noted that in the Family Assessment Report:-
106.…the [applicant’s] narrative and details of the children’s alleged disclosures seemed vague and somewhat lacking in detail, noting some difficulties recalling details due to the trauma she stated she experienced having heard the specifics of the children’s disclosures. Whilst the impact of trauma on memory is not disputed, the subsequent impact of on the [applicant’s] mental health remains unknown. …
Ms DD considered that the respondent’s narrative was consistent in terms of his denial of any inappropriate sexual behaviour towards the children. Whilst a number of issues require judicial determination, if the Court found that the respondent did not pose an unacceptable risk, then there should be a cautious increase in the children’s time with him. If the Court found that the allegations of sexual abuse have validity, then a much more cautious approach should be adopted which would be at least in part informed by the respondent receiving ongoing psychiatric intervention and support.
Ms DD did not consider that it would be in the interests of the children for there to be no time with the respondent. Equally, the entirely dysfunctional and mistrustful relationship as between the parties would speak strongly against the respondent’s proposal seeking shared care.
The approach supported by Ms DD, in the absence of any finding of unacceptable risk, was to cautiously promote the children’s time with the respondent on an unsupervised basis. She supported a gradual increase of the children’s time with the respondent such that by the time Y is in year two, the children would spend time with the respondent each alternate weekend from the conclusion of school Friday until the commencement of school on Monday together with a further increase in time during the school holidays.
The extent to which the evaluation and/or recommendation of a Court Child Expert or Family Consultant are determinative were considered in the decision Muldoon & Carlyle (2012) FLC 93-513, namely:-
104.It is not in doubt that the evidence of an expert, suitably qualified and based on an appropriate foundation, will carry substantial weight. Departure from it in such circumstances requires careful consideration; however the ultimate decision must be that of the trial judge: Friscioni & Friscioni [2010] FamCAFC 108, Hall and Hall (1979) FLC 90-713 at 78,819, D & P [2006] FamCA 170, Andrew & Delaine [2009] FamCAFC 182, and Hannigan & Sorraw [2010] FamCAFC 257 at [136].
Principles relating to parenting
I consider it necessary that I adopt the approach that considers the practical reality of the separate parenting proposals of the parties. I bring to account the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
Section 60CA of the Act requires that I have the best interests of the children as the paramount consideration. The best interest test is to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I propose to adopt the following approach:-
(1)Give consideration to the separate proposals put by each of the parties as they were identified to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the children’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act, namely the benefit to the child of having a meaningful relationship with both of the children’s parents and the need to protect the children from physical or psychological harm, if applicable;
(5)Have regard to the additional considerations under s 60CC(3) of the Act; and
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to ss 60CC(2) and (3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation or comment.
Parenting considerations
The parties are not agreed as to parental responsibility.
The proposal of the applicant would result in there being no effective relationship between the children and the respondent. The applicant concedes that there had been a relationship prior to the purported disclosures in 2020 but that thereafter, the risk to the children of unsupervised time spent with the respondent is unacceptable.
The respondent’s proposal is that his time with the children should increase significantly and then should be reflected by the children’s care being shared. If the Court finds that the applicant has fabricated the allegations of sexual abuse, then the children should be placed in his primary care.
In Bant & Clayton [2019] FLC 93-924, the Full Court considered whether the child was at risk in circumstances where the Court found that a child might suffer emotional harm if removed by the father to a foreign jurisdiction. The Full Court also needed to consider the treatment by the trial judge in the imposition of the father’s time being supervised until the child turned 18 years of age.
The Full Court considered the concept of unacceptable risk as follows:-
39.It is to be remembered that the concept of “unacceptable risk” referred to in
M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).
40.The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:
151. …Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …
41.As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.
As considered, the applicant does not support attempts to restore a relationship between the children and the respondent other than by the imposition of long term supervision.
The relationship between the children and the respondent was considered by Dr M in the s 65L supervised sessions. The observations were favorable and even though the children had not spent time with the respondent, arising out of the investigation by SAPOL and DCP, there was observed to be a strong emotional attachment.
The Family Assessment conducted by Ms DD, was at a more comprehensive level given that the Court Child Expert had the advantage of being able to consider the separate proposals of the parties and how they may impact and affect the children.
The applicant now considers that any time that the children should spend with the respondent should be seen against the background of sexual assault and family violence that caused the applicant fear. The respondent considers that his time with the children should be forthwith reinstated on an unsupervised basis and rapidly progress to shared care.
In Mazorski v Albright [2007] FamCA 520, Brown J commented on the definition of “meaningful” and said:-
26.What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”… when considering the primary considerations and the application of the object and principles, a meaningful relationships or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405, the Full Court said:-
119.We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
I must therefore consider orders that serve the best interests of the child and must weigh up the competing primary considerations, namely the benefit to the child of having a meaningful relationship with both parents but also, the need to protect them from physical or psychological harm.
The latter consideration therefore requires a focus on whether the child is at risk of being subjected to physical or psychological harm or being exposed to abuse, neglect or family violence.
In Cotton & Cotton (1983) FLC 91-330, Nygh J at 78,252, considered that whilst it was generally desirable for a child to maintain a meaningful relationship with both parents:-
…that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. …
In Sigley v Evor (2011) 44 Fam LR 439, in the context of a relocation case, the Full Court undertook a review of the authorities with a view to defining “meaningful relationship” and in doing so at [136], quoted the following from the decision of Champness & Hanson (2009) FLC 93-407 (“Champness”) at 83,502:-
103.The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all the other relevant factors. …
(Emphasis in original)
In Champness (supra), the Full Court said at 83,513:-
191.The first and very important observation we would make about this complaint is that the expression “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a “meaningful relationship”.
In St Claire & St Clair and Ors [2013] FamCA 108, Cronin J was confronted with a seven year old child who had not had any contact with their father for three years. The child’s 13 year old sibling had an entrenched negative view of the father and any contact that was to occur between that child and the father, was subject to the child’s consent. The final orders provided for the younger child to spend time with the father in accordance with a strict therapeutic regime conducted over a period of 12 months. His Honour said:-
209.It is a primary consideration in s 60CC that the children have the benefit of having a meaningful relationship with both parents. In Pishke & Rupp; Bannon & Rupp [2010] FamCA 632 Murphy J noted with approval the comments of Nygh J in Cotton & Cotton (1983) FLC 91-330 at 78,252, where the question was asked whether there was a chance of a meaningful relationship which was beneficial to the children but also whether both parents had ‘something to offer’ the children.
(Emphasis in original)

Whilst I do not ignore that the respondent has maternal aboriginal heritage, no evidence was presented that would support the issue of culture, ethnicity and background being a significant factor in the proceedings.
The aspect that at the heart of the proceedings is the extent to which the Court can have confidence that if the children remain in the applicant’s primary care she will either be able to support the children’s relationship with the respondent or at the very least, would not seek that it be actively disrupted.
The finding that the evidence presented by the applicant, even if taken at its highest, falls far short of establishing that the respondent presents as an unacceptable risk may well act as a timely reminder to the applicant that the children’s interests will be enhanced by them having a supported relationship with each of the parties. The issue, as highlighted by the submissions of the ICL, is finally poised.
Ongoing litigation that may highlight unsubstantiated allegations against the respondent may well add weight to the submission of the respondent and ICL in support of a change in primary care.
I do not ignore the matters raised by the applicant that the respondent engaged in family violence. The relationship between the parties was conflicted and redolent with mistrust arising from the respondent’s ongoing infidelity. I do not find that the respondent was financially controlling nor do I consider that there is sufficient evidence to support a finding of coercive control. I do not ignore that the respondent’s sexual proclivities may well have been distressing to the applicant which may have contributed to her belief that the respondent was capable of perpetrating sexual abuse.
Parental responsibility
The parties each seek sole parental responsibility. The ICL promotes an order of equal shared parental responsibility.
Parental responsibility is to be informed by what is in the best interests of a child.
The respondent has had little to do with the major and day to day issues that impact upon the children’s lives. The applicant has effectively exercised sole parental responsibility which must be considered against her conduct which involved the children in respect of unsubstantiated notifications concerning the respondent.
The ICL initially sought an order for equal shared parental responsibility which was altered in final submissions on the basis that the ICL had no confidence that the parties had any capacity to communicate effectively in respect of the major decisions that may relate to the children.
Whilst I do not necessarily consider that once the proceedings are concluded, the ability of the parties to communicate for the benefit of the children is forlorn of hope, in the absence of any application in support of equal shared parental responsibility although at least in part supported by Ms DD, I consider there is merit in the parties retaining equal shared parental responsibility for health and education but with the applicant to retain sole parental responsibility in respect of other major issues that may affect the children from time to time.
The focus on the children’s health and education is not an arbitrary consideration.
It must be remembered that each of the parties are qualified and highly skilled health professionals. In that regard each of them have much to offer. I do not consider that there is any evidence to suggest that either of the parties have been, or would be, cavalier in regards to the children’s medical and ancillary health needs. There will be a positive advantage to the children of having parents with the skill set available to them.
A similar consideration applies to the children’s ongoing education. The retention of the children at their current school is supported by each of the parties although, there is some uncertainty as to where the applicant will reside when she vacates the Suburb R property. There is good reason for the parties to explore an agreed outcome as to where the children will continue their education if it is not to be at their current school.
Conclusion
I propose that the children remain in the primary care of the applicant for the reasons expressed.
I consider that the evidence of Ms DD supports a significant increase in the time that the children spend with the respondent. The recommendation is that following Y’s fourth birthday, the respondent’s time increase to an overnight each Saturday which could then increase to two nights during school holidays when Y commences reception. As and from year one, it is proposed that the children’s time with the respondent increase to Friday through to Sunday each alternate weekend and then a further increase from the conclusion of school Friday to the commencement of school on Monday, representing three nights per fortnight.
The cautious approach adopted by the Family Report writer, is predicated upon the applicant’s hypervigilance and the consideration that overnight time may well have a negative impact on the applicant which she would then transmit to the children. Ms DD considers that time should be extended as the children develop a greater sense of agency.
Given the evidence as presented, the concern of Ms DD is not that the children would be unable to cope with a significant change in their circumstances represented by them spending more time with the respondent but rather, out of difference to the applicant’s potential for hypervigilance.
The evidence supports a finding that the children’s interests will be best served by a rapid transition to more extensive time spent with the respondent. Such an outcome is supported by the ICL even though I have fallen short of accepting the submission of the ICL for a change in the children’s primary care.
X is currently seven years of age and Y is four years of age. I propose to extend the time that the children spend with the respondent from Friday at the conclusion of school or pre-school to the commencement of school or pre-school on the following Monday and each alternate week thereafter, together with one overnight period in the intervening week from the conclusion of school or pre-school on Thursday to the commencement of school or pre-school on Friday.
As and from the commencement of first term in 2023, the respondent’s time will increase to five nights a fortnight in one block.
Whilst not supported by the applicant, there is merit in the orders sought by the ICL that the children should spend one half of each of the school holidays with each of the parties.
I propose to order that the children continue at their current school subject to their future agreement.
The parties also agree that an order can be made by consent that the respondent be restrained from supplying and/or administering medication not recommended or prescribed by their treating medical practitioner. Given the evidence, I consider that the order be expanded to include both parties.
Property settlement
Whilst the parties concede that they were in a de facto relationship, they are not agreed as to the period of cohabitation. The applicant considers that the period of cohabitation was thirteen years whereas the respondent argues a total of five years and eight months. Specifically, the parties do not agree as to the commencement of cohabitation. The applicant considers that the parties’ relationship commenced in 2005 whereas the respondent says that the cohabitation commenced in mid-2009 to 21 October 2011 and thereafter from early 2015 to 1 May 2018.
The children were born during the final tranche of the relationship.
The relevance of the period of cohabitation is the respondent’s contention that at the commencement of the relationship in 2009, he held assets to the value of $857,900 and between 21 October 2011 and January 2015 (a period during which he asserts the parties were separated) he acquired assets of $171,259.
The parties are agreed that upon the settlement of the proceedings, the applicant will vacate the Suburb R property.
The parties are not agreed as to the weight to be given to their separate financial and non-financial contributions.
The respondent seeks that his contributions should be recognised as 80/20 in his favour but that if the children remain in the primary care of the applicant (as opposed to his primary care) then there should be an adjustment of 25 per cent. In circumstances where I propose to order that the children remain in the applicant’s primary care, but spend significant and substantial time with the respondent, I am uncertain as to the basis upon which the respondent concedes a s 90SF adjustment of 25 per cent.
At the commencement of the proceedings, the orders sought by the applicant would have seen the children remaining exclusively in her care with little or no time with the respondent. The orders that the respondent sought would have been either shared care or the children’s transition to his primary care.
As is apparent, I propose to make orders that do not coincide with the proposals of each of the parties but rather is within the ambit of my discretion based upon the evidence of the parties, a consideration of the evidence of the Family Consultant and the submissions made on behalf of the ICL.
The parties are agreed that there should be a superannuation split from the splittable interest of the respondent in Super Fund 1, in favour of the applicant. The respondent considers that a base amount of $100,000 should be transferred whereas the applicant initially considered that the interest of the parties should be equalised and in this case, that would represent a base amount of $190,315 being allocated from the respondent to the applicant.
By way of general observation, it is notable that the parenting component of the proceedings consumed much of the parties’ attention to the evidence. I have not been assisted by the affidavit material filed on behalf of either party in respect of property settlement and division. The cross examination on topics that would have been relevant to my determination, is scant.
The parties are not agreed as to the assets and liabilities available for division.
There is however, agreement in respect of the value of the Suburb R property, the property at S Street, Suburb T (“the Suburb T property”), the property at V Street, Suburb U (“the Suburb U property”) and the farming lands at FF Town (“the Victorian property”).
No attempt was made to undertake valuations of the parties’ personal effects and other property in their separate possession and control, nor was there evidence as to the current savings of the parties.
Having regard to the assets and liabilities, as asserted by the applicant, if the agreed value of the real estate is removed, the balance remaining is $146,027. The same exercise in respect of the respondent’s assets and liabilities, produces a figure of $100,500.
Whilst there are variations between the two balance sheets, the significant difference is the value attributed by the applicant to the “respondent’s cycles” at $50,000. That item is not included by the respondent.
No evidence was presented in that regard, nor was the respondent the subject of any challenge that would enable a finding to be made of the value of bicycles in the respondent’s possession over and above the bicycle which has an agreed value of $3,500.
Given that the parties are agreed as to the value of the Motor Vehicle 1 and Motor Vehicle 2 in the possession of the applicant and noting that there is no valuation in respect of the furniture and personal effects held by each of the parties, I propose to adopt the assets and liabilities as set out by the respondent in her written submissions, it being more likely to be an accurate summary of the non-superannuation assets of the parties.
The respondent seeks to addback a figure of $55,958, being 50 per cent of funds paid to discharge the Suburb R mortgage which is a sum recoverable from the joint registered proprietor of the Suburb R property, namely EE.
In addition, the respondent seeks to addback litigation funding of $50,000 paid to the applicant by order of 26 October 2021.
It appears that the parties are agreed as to the liabilities which principally comprise outstanding mortgages in respect of the Suburb T and Suburb U properties.
As considered, the parties agree the current entitlements of each of the parties as to superannuation with Superannuation Fund 1 but are not agreed as to the manner of division.
Is it just and equitable to proceed?
In Stanford & Stanford (2012) 247 CLR 108 ("Stanford") the majority held:-
35.It will be recalled that s 79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
36.The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. …
(Footnotes omitted).
In Bevan & Bevan (2013) FLC 93-545 at [73], the Full Court considered that the decision of Stanford (supra) could be reduced to “three fundamental propositions” summarised as follows:-
1.Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
2.The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
3.A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
(Emphasis as per the original)
The parties both consider that it is just and equitable for there to be an order for property settlement made pursuant to s 90SM of the Act where the legal and equitable interests in property will need to be adjusted.
Assets and liabilities
Suburb R property
The Suburb R property has an agreed value of $645,000. The respondent seeks to bring to account his one half interest in the property to the value of $322,500. It is not controversial that the respondent’s former partner Ms EE, still retains a one half interest.
The respondent met Ms EE in 1993. The respondent and Ms EE commenced a relationship and she moved with him initially to Melbourne and then to Adelaide in 1998. At the time, the respondent was employed in allied health but engaged in full time study.
In 2003, the respondent and Ms EE purchased the Suburb R property for $330,000 with the majority of the purchase price funded by a mortgage loan.
The respondent and Ms EE remained in the Suburb R property until they separated in 2005. At that point, Ms EE returned to FF Town and whilst there was some discussion as to Ms EE receiving value for her interest in the Suburb R property, no action was taken.
The respondent remained in the Suburb R property and paid the mortgage which ultimately resulted in the respondent calculating that his mortgage payments were both in respect of his obligation under the mortgage loan but also for Ms EE.
It does not seem that Ms EE has contributed to the property in terms of the outgoings and the payment of utilities, maintenance and repairs since she and the respondent separated in 2005.
The issue as between the parties, is the extent to which Ms EE’s interest in the Suburb R property should be brought to account as property of the respondent.
Ms EE was not called to give evidence either by the respondent nor by the applicant.
The respondent’s position is that he is the registered proprietor as to one half of the property and as such, the value that should be brought to account is as to one half.
The respondent was not significantly pressed as to the arrangements in respect of the Suburb R property and what action he proposes to take in terms of Ms EE remaining as a registered proprietor.
I am not able to speculate as to the likely future arrangements nor is there evidence that would enable me to find that Ms EE, or her interest in the Suburb R property, is in reality the alter ego of the respondent.
Accordingly, I propose to bring to account one half of the value of the Suburb R property but I will also addback the amount, as conceded by the respondent, namely the benefit Ms EE has received by the respondent’s payment of her share of the mortgage loan in the sum of $55,958.
As discussed, I prefer the list of assets as set out by the respondent to that of the applicant.
Proceeds of sale of Suburb NN
In September 2021, the applicant sold the Suburb NN property. Upon sale, the applicant received $75,000 from which she paid back monies to her parents of $9,000, her credit card of $3,000 and an overdraft of $2,000. The balance of the funds have been expended.
The applicant was not significantly challenged about her expenditure and whilst on one view, the expenditure by the applicant of $60,000 from September/October of 2021 to 11 February 2022, being the date of the applicant’s trial affidavit, might seem significant, in the absence of any other evidence I am not able to find that the proceeds of the sale of the Suburb NN property either remain and therefore should be brought back to account, or have been expended in such a way that would support a finding that the applicant has been wanton or reckless in her use of the net proceeds.
I do not propose to bring the net proceeds of the Suburb NN property to account.
ATO debt
As considered, the respondent has now reconfirmed that his outstanding ATO debt is $18,548 rather than the significantly higher amount as set out in the course of the proceedings.
There does not appear to be any significant dispute between the parties, although it must be highlighted that the uncertainty in respect of the respondent’s ATO liability arises from his manifest failure to lodge income tax returns as and when he was required to do so.
Addbacks
Legal Fees
The parties are not agreed as to the extent to which there should be an amount added back in consideration of the expenditure of each of the parties on legal fees.
The respondent seeks to add back the sum of $50,000 paid by way of litigation funding, pursuant to orders made on 26 October 2021.
As at 8 August 2022, the applicant has incurred costs in the sum of $92,133 of which $87,404 has been paid.
The respondent’s costs, as at 11 April 2022, are in the sum of $199,853.44 of which $142,327.50 has been paid. There are costs outstanding for counsel fees in the sum of $22,210.
The respondent concedes that $132,000 has been paid from savings.
Chorn & Hopkins (2004) FLC 93-204 (“Chorn & Hopkins”) considered the treatment of the legal fees of the parties where they may have been sourced from “matrimonial property” or borrowed funds.
Following a consideration of the authorities, in Chorn & Hopkins (supra), their Honours said as follows:-
50. In Gartner [2000] FamCA 793, Kay, Holden & Mullane JJ said:
…
47.Whilst the principle the (sic) emerges from Farnell (1996) FLC 92-681 is that where prepayment of legal costs has the effect of depleting the pool of assets available for division, it is usual to notionally include those prepaid costs in the pool, such a finding is normally dependant upon evidence as to the source of the prepayment. In the absence of any such evidence it would be entirely speculative of this Court to guess where the monies came from. If this was an issue that was important it should have been raised at the trial by Counsel so that the Judge could have dealt with it and made the necessary findings. It is too late to raise it on appeal. (Suttor v Gundowda Pty Ltd (1950) 81 CLR 418).
(Emphasis in original)

At [52] of Chorn & Hopkins (supra), their Honours referred to the decision of the Full Court in Clifford and Lodge [2000] FamCA 1666, where the following was said:-
52.It will be seen from the table of the parties’ assets and liabilities contained in his Honour’s judgment … that his Honour included as assets the legal fees already paid by each party. There seems to be no argument but that it was open to him to do this.
At [54] of Chorn & Hopkins (supra), their Honour’s also referred to the decision of Finlayson v Finlayson and Gillam (2002) FLC 93-121, where the Full Court said:-
345.If this were a payment of his legal costs of the proceedings from the husband’s own capital resources, it would be in accord with decisions of this Court, including Farnell and Farnell (1996) FLC 92-681 and Townsend and Townsend (1995) FLC 92-569 for the trial Judge to have included this as a “notional asset” in the hands of the husband for the purposes of the s.79 proceedings. If, on the other hand, this were a payment by the husband of his costs of the proceedings from funds borrowed by him from and still owing to a third party, the appropriate course would have been to disregard both the payment and the debt to the third party in calculating the total net property of the parties for the purpose of the s.79 proceedings. Alternatively, if the payment were brought to account as a “notional asset”, then the liability of the husband to repay the debt would also have to be taken into account in arriving at the net property of the spouses.
In Vass & Vass (2015) 53 Fam LR 373, the Full Court said:-
138.There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan & Bevan (2013) FLC 94-545 - or, more particularly, the decision of the High Court in Stanford & Stanford (2012) 247 CLR 108 - is authority for any necessary contrary solution. Some statements made by the High Court may lead to the conclusion that references to “notional property” as have been referred to in decisions of this court and at first instance may need to be reconsidered.
(Emphasis in original)
Accordingly, I propose to add back the sum of $50,000 received by the applicant by way of litigation funding, the sum of $132,000 paid by the respondent from his savings at separation and the amount of $55,958 that the respondent considers is recoverable from Ms EE.
Adjusted Assets and liabilities
Assets
I find the assets of the parties to be as follows:-

ASSETS AMOUNT

Applicant’s (50%) interest in Suburb R property $322,500

Suburb T property $306,000

Suburb U property $480,000

Victorian farm property $250,000

Motor Vehicle 2 $7,500

Motor Vehicle 1 $8,000

Bicycle $3,500

Motor Vehicle 3 $3,000

Motor Vehicle 4 $1,000

Motor Vehicle 5 $2,500

TOTAL $1,384,000

ADD BACKS AMOUNT

Funds recoverable from Ms EE re: Suburb R property $55,958

Litigation funding paid to applicant $50,000

Legal fees paid by respondent from savings $132,000

TOTAL $1,621,958
Liability

I bring to account the following liabilities:-

LIABILITY AMOUNT

Suburb T mortgage $49,946

Suburb U mortgage $310,766

ATO debt $18,548

TOTAL $379,260

NET ASSETS $1,242,698
Superannuation

I find the superannuation of the parties to be as follows:-

FUND AMOUNT

Super Fund 1 (Applicant) $168,968

Super Fund 1 (Respondent) $549,599

TOTAL $718,567
Contributions of the parties

I am required to consider the direct and indirect financial and non-financial contributions of, made by or on behalf of the parties to the acquisition, conservation or improvement of property (s 90SM(4)(a) of the Act) and the contributions made by the parties to the welfare of the family in their capacity as parent or homemaker (s 90SM(4)(c) of the Act).
Mallet v Mallet (1984) FLC 91-507 at 79,110-111 is authority for the proposition that:-
2.…. The Act does not indicate the relative weight that should be given to different circumstances, or how a conflict between opposing considerations should be resolved – those things are left to the court’s discretion, which must, of course, be exercised judicially.
The equality of contributions is not a starting point. I am obliged to consider the separate contributions of the parties and the value that should be afforded must be considered by reference to the evidence.
The parties are not agreed as to the period of cohabitation. The applicant contends that the parties commenced their relationship in 2005, whereas the respondent says that it commenced in 2009.
The applicant modified her position by reference to her trial affidavit, wherein she concedes that cohabitation commenced in early 2006.
It is likely that the parties separated for an extended period of time as, and from, 21 October 2011 to 2015 but maintained some level of relationship during that period until their reconciliation in 2015.
I find that the history of the relationship between the parties, as set out by the respondent, is to be preferred to that of the applicant. In particular, as to the commencement of cohabitation with there being less certainty during the period of the separation between 2011 and 2015.
It is surprising, given the significant expenditure incurred by the parties on their legal fees that even the most basic of information was not presented as evidence which may have assisted the Court in determining the dispute as to the periods of cohabitation.
What is less contentious, is the assertion of the respondent that at the commencement of cohabitation, he brought to account property to the value of $857,900 as compared with that of the applicant in the sum of $70,000.
Whilst there was no valuation evidence presented as to the interest that the respondent held in the Suburb R property, the Suburb T property and the Victorian farm property, no challenge was mounted to the value being ascertained by reference to the Valuer General’s valuation for each of the properties.
Whilst there could be some argument that the Motor Vehicle 3 purchased by the respondent in 2009 for $33,000 had maintained its value, I am satisfied from the evidence provided by the respondent that he held substantial cash savings in various CBA accounts together with Super Fund 1 superannuation in the sum of $45,346.
A similar consideration applies to the pre-cohabitation property interests of the applicant, predominantly made up of equity in the Suburb NN unit and her Super Fund 1 superannuation entitlement of $50,000.
At the commencement of cohabitation, each of the parties were employed. The respondent was employed as a medical professional earning about $281,000, whereas the applicant was employed as a health professional earning about $40,000.
The respondent confirms the date of the first separation on 21 October 2011 by reference to a text message and that the applicant left the Suburb R property. At that time (October 2011) the respondent had retained significant savings. When the parties reconciled, he had total savings of $929,166.
The parties are not agreed as to the care arrangements in respect of the children.
Whilst the respondent considers that he was actively engaged in the care of the children, it is likely that the applicant took on the role of homemaker.
Following final separation, the applicant has had the advantage of remaining in the Suburb R property without any contribution to the mortgage repayments. The respondent had discharged the mortgage on 26 October 2021 from savings held in his CBA account of $592,367.
The parties did consider a resolution by way of property settlement which allowed the applicant to have the sole use and occupation of the Suburb R property until Y turned 18 years of age, that the respondent would pay all mortgage payments, rates and taxes and insurance as and when they fell due without contributions from the applicant and that extensive renovations would be undertaken to the property totalling approximately $100,000.
In Ferraro & Ferraro (1993) FLC 92-335 at 79,572, the Full Court considered how the separate contributions of the parties, where one is the bread winner and the other a homemaker, should be considered:-
…Firstly, it involves making a crucial comparison between fundamentally different activities, and a comparison between contributions to property and contributions to the welfare of the family. Secondly, whilst a breadwinner contribution can be objectively assessed by reference to such things as that party's employment record, income and the value of the assets acquired, an assessment of the quality of a homemaker contribution to the family is vulnerable to subjective value judgments as to what constitutes a competent homemaker and parent and cannot be readily equated to the value of assets acquired. This leads to a tendency to undervalue the homemaker role.
In Pierce & Pierce (1999) FLC 92-844, the Full Court emphasised that an original contribution should not be subject of a mathematical approach in attempting to carry forward the potential financial impact of a contribution, but rather, they said as follows:-
28.In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the former matrimonial home.…
I bring to account the financial and non-financial contributions of each of the parties. I do not approach the matter by way of an arithmetical calculation and whilst I recognise aspects of the parties’ contributions during the period pre, post and during cohabitation, I consider the assessment of contributions holistically.
At the commencement of the relationship, the respondent was a qualified allied health professional and well advanced with his postgraduate studies. There were no children of the relationship at that time and the parties were able to make equal contributions by reason of the respondent’s employment as an allied health professional and the applicant’s employment as a health professional.
This is not a case where it could be said that the contribution and effort of the applicant was necessary to enable the respondent to gain his qualifications.
The focus of the parties’ contributions changed as, and from, the birth of the first child and post separation. The applicant has been the children’s primary care giver even though the respondent might argue that he was denied an opportunity for more extensive involvement with the children.
I consider that the contributions of the parties should be reflective as to 70/30 in favour of the respondent. The differential is 40 per cent which results in an amount of about $497,000.
Section 90SF(2) factors
The parties are in reasonable health and are able to maintain employment. The applicant confirms that she will return to employment at the conclusion of the litigation. The respondent continues in his employment as a medical professional.
The applicant has returned to work on a casual basis and as the children progress to their primary school and then high school education, the applicant anticipates that she will increase her hours.
At present, she is reliant upon the child support payable by the respondent and some financial support provided by her parents.
I am not assisted by any evidence presented on behalf of the applicant as to her future financial circumstances in terms of likely income and expenditure upon her leaving the Suburb R property.
Given the orders that I propose to make that provide for the respondent to have significant and substantial care of the children, the opportunity for the applicant to engage in more hours of employment is a reality. A similar consideration applies to the respondent, in that his ability to work at his current level may also be compromised albeit, in a manner not able to be defined.
The significant factor as between the parties, is the ability of the respondent to earn income in excess of $338,000 per annum. I acknowledge the financial information provided by the respondent in his financial statement filed 14 February 2022 and note that there is a significant Child Support Assessment payable by the respondent of $708 per week.
There is a dispute between the parties as to the extent of the current outstanding Child Support. The arrears of Child Support, in the absence of agreement, is not a matter that I can bring to account by way of enforcement.
I am cognisant of the employment circumstances of the respondent and given that there is now a taxation return upon which a Child Support Assessment can be undertaken, the applicant can have some reasonable confidence that Child Support can be both assessed and if necessary, enforced.
The respondent does not get credit for the payment of his proper obligation in respect of Child Support but in circumstances where the amount is significant, it becomes a relevant consideration in terms of the overall financial obligations of the applicant.
In all the circumstances, I consider that there should be an adjustment of 15 per cent in favour of the applicant.
Conclusion
The adjusted net non-superannuation asset pool is $1,242,698.
At 45 per cent, the applicant is to receive $559,214.
The applicant is to retain the following:-

Motor Vehicle 2 $7,500

Motor Vehicle 1 $8,000

Bicycle $3,500

Litigation funding $50,000

TOTAL $69,000

The applicant is entitled to the sum of $559,214 and accordingly, she is to receive a settlement sum of $490,214.
Superannuation
Taking into account the age of the parties, it is unlikely that they will satisfy a condition of release for a significant period.
I have not been provided with a copy of the superannuation trust deeds but I am satisfied that each of the parties hold an interest in an accumulation type fund and that the agreed superannuation entitlements of each of the parties, is sufficient for me to be satisfied that the parties separate interests have been properly considered and identified.
The respondent’s superannuation entitlement with Super Fund 1 is $549,599, whereas the applicant’s superannuation entitlement with Super Fund 1 is $168,968.
The parties agree that the Court should adopt a two pool approach. In circumstances where the parties will not be eligible for a release of their superannuation entitlements for a number of years, such an approach is to be preferred.
The respondent seeks to bring to account that during the period of separation from October 2011 to early 2015, he contributed $175,000 to his superannuation entitlement. He contends that it be deducted and the adjusted sum, taking into account the amount accrued by way of his contributions and his employer’s contribution, should be reflected by a lump sum of $100,000 to the applicant.
I do not consider that the approach proposed by the respondent should be adopted.
I do not propose to consider the superannuation interests of the parties and in particular, their contributions, by an unnecessarily rigorous mathematical approach.
The extent to which the respondent’s superannuation interests have accumulated throughout the period of cohabitation, is a relevant consideration.
I bring to account the significant interest held by the respondent at the commencement of cohabitation and consider that whilst his ability to contribute to his superannuation was as a result of his employment as a well paid medical professional, the nature of his superannuation interest required a substantial contribution from his employer.
I also bring to account the future financial circumstances of the parties, noting that whilst it would be impermissible to bring to account the respondent’s income both as a relevant factor in respect of s 90SF(2) of the Act and also as a factor in respect of superannuation, the employer component is relevant.
The total superannuation of the parties is $718,567. I consider that an appropriate adjustment would be 60/40 per cent in favour of the respondent and as such, the applicant is entitled to $287,426. Given that she retains $168,968, there should be an order by way of a superannuation split from the splittable interest of the respondent in his Super Fund 1 superannuation fund, to a fund nominated by the applicant, in the base amount of $118,458.
Capital gains tax
I am uncertain as to how, or by what means, the respondent proposes to pay the settlement sum to the applicant. It may be that he intends to retain the properties and to obtain funds to enable the settlement sum to be paid.
It may also be the case that he will choose to sell property. If so, it is likely that there will a capital gains tax liability.
As such, I propose to include in the order of default, a provision that if a property is to be sold, any capital gains tax that may be levied is to be borne by each of the parties consistent with the adjustment of property.
I make orders as appear at the commencement of these reasons.

I certify that the preceding four hundred and one (401) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.
Associate:
Dated: 11 November 2022

File number(s):	ADC 1987 of 2020
Judgment of:	BERMAN J
Date of judgment:	11 November 2022
Catchwords:	FAMILY LAW – CHILDREN – Parental Responsibility – Where each party seeks an order for sole parental responsibility – Where the ICL initially promoted an order for equal shared parental responsibility – Where at the conclusion of the trial the ICL held no confidence that the parties could communicate effectively in relation to major decisions – Where there is merit in the parties retaining equal shared parental responsibility for health and education – Orders. FAMILY LAW – CHILDREN – With who a child lives with and spends time with – Best interests of the children – Where the children spent time with the respondent until 2020 – Where the applicant made allegations that the respondent sexually abused the children and thereafter ceased time spending – Where the applicant does not support a restoration of a relationship between the children and the respondent – Where the proposal of the applicant would result in there being no effective relationship between the children and the respondent – Where the evidence does not permit a finding of sexual abuse or that the respondent presents as an unacceptable risk to the children – Where the Court finds that the applicant presents as a risk to the children by intentionally manipulating evidence for the purpose of severing or significantly restricting, the children’s relationship with the respondent – Where the ICL does not consider that the applicant can protect the children from her view of the respondent – Where the ICL promotes orders that reverse the primary care arrangements – Where the respondent seeks that the children live in his primary care if the Court finds that the applicant has fabricated the allegations of sexual abuse – Consideration on the effect of separating the children from either of the parties or the person with whom the children have been living with – Orders. FAMILY LAW – PROPERTY – De facto relationship – Where the parties are not agreed as to the length of the relationship – Where the applicant contends that the relationship was 13 years and the respondent contends that it was 5 years – Where the respondent held significant assets prior to the commencement of the relationship – Where the respondent made significant financial contributions during a period of separation – Where the respondent has the capacity to earn significantly greater income than the applicant – Orders. FAMILY LAW – PROPERTY – Superannuation – Where the respondent held a significant superannuation interest at the commencement of cohabitation – Consideration of employer contribution component – Where the applicant seeks an equalisation of the parties’ superannuation – Where the respondent seeks to allocate to the respondent a base amount of $100,000 – Where a 60/40 adjustment is ordered.
Legislation:	Evidence Act 1995 (Cth) s 140(2) Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 69ZT, s69ZT(3), 69ZN, 90SF, 90SM.
Cases cited:	Baglio & Baglio [2013] FamCA 105 Bant & Clayton [2019] FLC 93-924 Bevan & Bevan (2013) FLC 93-545 Briginshaw v Briginshaw (1938) 60 CLR 336 Champness & Hanson (2009) FLC 93-407 Chorn & Hopkins (2004) FLC 93-204 Cotton & Cotton (1983) FLC 91-330 Dennison & Wang [2010] FamCAFC 182 Ferraro & Ferraro (1993) FLC 92-335 Finlayson v Finlayson and Gillam (2002) FLC 93-121 Harridge & Harridge [2010] FamCA 445 Mallet v Mallet (1984) FLC 91-507 Mazorski v Albright [2007] FamCA 520 McCall & Clark (2009) FLC 93-405 Muldoon & Carlyle (2012) FLC 93-513 Pierce & Pierce (1999) FLC 92-844 Sigley v Evor (2011) 44 Fam LR 439 Stanford & Stanford (2012) 247 CLR 108 St Claire & St Clair and Ors [2013] FamCA 108 Wang & Dennison (No 2) [2009] FamCA 1251 Vass & Vass (2015) 53 Fam LR 373
Division:	Division 1 First Instance
Number of paragraphs:	401
Date of hearing:	21-25 February 2022, 11 April and 13 April 2022
Place:	Adelaide
Counsel for the Applicant:	Ms Hume
Solicitor for the Applicant:	Jacqui Ion Lawyers Pty Ltd
Counsel for the Respondent:	Mr Jordan
Solicitor for the Respondent:	Jordan & Fowler Family Lawyers
Counsel for the Independent Children’s Lawyer	Mr Dillon
Solicitor for the Independent Children’s Lawyer	Legal Services Commission of South Australia

Table of Corrections
27 January 2023	In paragraph 383, the figure $1,621,958 has been amended to $1,242,698.
In paragraph 384, the figure $729,881 has been amended to $559,214.
In paragraph 386, the figure $729,881 has been amended to $559,214 and the figure $660,881 has been amended to $490,214.

ADC 1987 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS PELHAM Applicant
AND:	MR JUPP Respondent
INDEPENDENT CHILDREN’S LAWYER

order made by:	BERMAN J
DATE OF ORDER:	11 November 2022

ASSETS	AMOUNT
Applicant’s (50%) interest in Suburb R property	$322,500
Suburb T property	$306,000
Suburb U property	$480,000
Victorian farm property	$250,000
Motor Vehicle 2	$7,500
Motor Vehicle 1	$8,000
Bicycle	$3,500
Motor Vehicle 3	$3,000
Motor Vehicle 4	$1,000
Motor Vehicle 5	$2,500
TOTAL	$1,384,000
ADD BACKS	AMOUNT
Funds recoverable from Ms EE re: Suburb R property	$55,958
Litigation funding paid to applicant	$50,000
Legal fees paid by respondent from savings	$132,000
TOTAL	$1,621,958

LIABILITY	AMOUNT
Suburb T mortgage	$49,946
Suburb U mortgage	$310,766
ATO debt	$18,548
TOTAL	$379,260
NET ASSETS	$1,242,698

FUND	AMOUNT
Super Fund 1 (Applicant)	$168,968
Super Fund 1 (Respondent)	$549,599
TOTAL	$718,567