Putnam & Putnam - [2025] FedCFamC1F 176

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Putnam & Putnam [2025] FedCFamC1F 176

File number(s): ADC 3570 of 2020

Judgment of: BERMAN J

Date of judgment: 21 March 2025

Catchwords:
FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Where the children live with the mother and spend day time only with the father – Where the father seeks time with the children each alternate weekend – Where the mother opposes overnight time – Consideration of risk – Where the father’s home is considered to be unsafe – Consideration of where time spending is to occur – Best interests – Order made for no overnight time.

FAMILY LAW – PROPERTY – Where there is substantial agreement as to their property interests – contributions – where the father came in with a significant portion of the asset pool – Future needs – where the mother has the primary care of the children – Orders.

Legislation:
Evidence Act 1995 (Cth) s 97.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61D, 69ZN, 69ZT, 75, 79, 90XT.

Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001.

Federal Circuit and Family Court of Australia (Family Law) Rules 2012 r 12.06

Planning, Development and Infrastructure Act 2016 (SA) ss 42, 156.

Hague Convention on the Civil Aspects of International Child Abduction.

Cases cited:
Bevan & Bevan (2013) FLC 93-545,

Chorn & Hopkins (2004) FLC 93-204,

Clifford & Lodge [2000] FamCA 1666,

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

G&G [2000] FamCA 793,

Kowaliw & Kowaliw (1981) FLC 91-092,

Omacini & Omacini (2005) FLC 93-218,

Pierce & Pierce [1998] FamCA 74,

Rosati v Rosati (1998) FLC 92-804,

Stanford & Stanford (2012) 247 CLR 108,

Vass & Vass (2015) 53 Fam LR 373.

Division: Division 1 First Instance

Number of paragraphs: 412

Date of hearing: 17 – 21 February 2025

Place: Adelaide

Counsel for the Applicant: Mr K. Tredrea

Solicitor for the Applicant: Eastern Legal

Counsel for the Respondent: Mr D. Praolini

Solicitor for the Respondent: Howe Jenkin
ORDERS

ADC 3570 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS PUTNAM

Applicant

AND:
MR PUTNAM

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

21 MARCH 2025

THE COURT ORDERS THAT:
Parenting
1.In relation to X born 2015 , Y born 2017 and Z born 2018 (collectively “the children”), the applicant do have sole responsibility in relation to decision making concerning the children’s health and education but that as to other long term decisions, the parties have joint and equal responsibility.
2.The children live with the applicant.
3.Until the respondent is able to present to the applicant a certificate or report that certifies or confirms that the swimming pool enclosure at B Street, Suburb C in the State of South Australia (“the Suburb C property”) complies with the requirements of s 156 of the Planning, Development and Infrastructure Act 2016 (SA) and pursuant to s 42 complies with any Practice Direction issued by the State Planning Commission, the children shall spend time with the respondent each alternate Sunday from 9.00 am to 4.00 pm.
4.Upon the respondent providing information as required in Order 3 hereof, the children shall spend time with the respondent as follows:
(a)Each alternate weekend on Saturday and Sunday from 9.00 am to 4.00 pm; and
(b)Such further and other times as the parties may agree.

5.With such time to take precedence over any other order, the children spend time with the respondent as follows:
(a)For Christmas/Boxing Day:
(i)In 2025 and each alternate year thereafter on 26 December from 9.00 am to 4.00 pm; and
(ii)In 2026 and each alternate year thereafter on 25 December from 9.00 am until 2.00 pm.

(b)For Easter:
(i)In 2025 and each alternate year thereafter on Easter Sunday from 9.00 am to 4.00 pm; and
(ii)In 2026 and each alternate year thereafter on Easter Monday from 9.00 am until 4.00 pm.

(c)For the children’s birthdays:
(i)In 2025 and each alternate year thereafter on the said children’s birthdays if the children are not ordinarily in the respondent’s care:
A.When such day is not a school day, from 9.00 am to 2.00 pm; and
B.When such day is a school day, from the conclusion of school until 6.00 pm.

(d)For Father’s Day each year from 9.00 am until 4.00 pm provided that the respondent’s time with the children is suspended on Mother’s Day.

6.All handovers which do not occur at the children’s school shall occur at the home of the parent who is receiving the children, or such other place as may be agreed between the parties.
7.The parties use text message or any other method as agreed in writing between them for the purpose of communication as to parenting matters except in the case of emergency when communication shall be by telephone.
8.The applicant do use her best endeavours to ensure that each of the children shall speak with the respondent by video call each Tuesday and Thursday between 5.30 pm and 6.00 pm (unless the children otherwise spend time with the respondent on any of those days).
9.The parties do facilitate the children communicating with the other parent at all reasonable times as may be requested by the children.
10.The parties inform the other in writing of any changes to their telephone number, email address and residential address within twenty-four (24) hours of the change.
11.The party with the care of the children do inform the other of any serious illness or injury suffered by any of the children while the children are in their care as soon as reasonably practical by way of phone call.
12.The parties be permitted to liaise directly with the children’s school in order to receive notices, reports, newsletters and other information or documentation relating to the children (at their own separate expense).
13.The parties are permitted to attend parent/teach interviews, or other school sporting and extra-curricular activities and events to which parents are ordinarily invited to attend.
14.The applicant do all such things and sign all documents as may be necessary to ensure that the ~~applicant~~ respondent is listed as a secondary emergency contact for the children at the children’s school, any medical service provider and any extra-curricular activities.
15.The ~~applicant~~ respondent is restrained and an injunction granted restraining him from taking the children to the former matrimonial home until such time as he provides to the applicant a certificate or report that certifies or confirms that the swimming pool enclosure at the Suburb C property complies with s 156 of the Planning, Development and Infrastructure Act 2016 (SA) and any Practice Direction issued by the State Planning Commission pursuant to s 42 of the said Act.
16.In the event that the respondent refuses or neglects to sign any documentation necessary to enable the applicant to apply for (or renew) Australian passports for the children, within seven (7) days of a request to do so, then in such case the applicant shall be at liberty to apply for the relevant passports in circumstances where the respondent’s consent is not contained within the application.
17.The applicant do retain possession of any passports held in the names of the children and be at liberty to renew any such passports from time to time.
18.The parties be restrained and an injunction restraining each of them from travelling with the children to a country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction without the prior written consent of the other party.

Property
19.In full and final settlement of any claim which either party may have for settlement of property alteration of interest in property:
(a)That within a further fourteen (14) days of the date of this Order, the parties shall do all things necessary and sign all documents as may be required to transfer the balance of the parties joint Bank D Account …40 to the applicant and thereafter do close the said account;
(b)That within sixty (60) days of the date of this Order (“the settlement date”):
(i)The respondent do pay to the applicant the sum of FIVE HUNDRED AND NINETEEN THOUSAND EIGHT HUNDRED AND FORTY ONE DOLLARS ($519,841) (“the settlement sum”); and
(ii)The respondent do discharge the existing mortgage (Memorandum of Mortgage …) registered on the Title of the property situate at and known as B Street, Suburb C being the whole of the land comprised and described in Certificate of Title Volume … Folio … together with all improvements thereon (“the Suburb C property”).

20.Within fourteen (14) days of the date of this order, the parties do all things necessary to transfer the balance of the following joint bank accounts held on trust for the children to the respondent:
(a)…40 X’s account;
(b)…40 Y’s account; and
(c)…40 Z’s account;

PROVIDED THAT the respondent shall be restrained from drawing or disbursing any of the funds held by him on trust for the children until each child attains the age of eighteen (18) years whereupon the amount held on trust shall be transferred to each child respectively for their use absolutely.
21.Within fourteen (14) days of the date of this Order, the parties do all things and sign all documents necessary to transfer the balance of any other joint bank accounts held in their names to the respondent and thereafter do close the said account.
22.The respondent do retain his interest in the following:
(a)The Suburb C property
(b)E1 Pty Ltd.;
(c)E2 Pty Ltd.;
(d)F Pty Ltd.;
(e)G Trust; and
(f)J Partnership.

23.The parties do each retain their respective savings, motor vehicles, furniture and household effects and any other items of property in their respective possession or registered in their names.
24.In default of payment of the settlement sum by the respondent by the settlement date, the respondent do pay interest on any unpaid balance at the rate set by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and should such default continue for a period of more than thirty (30) days, then the Suburb C property shall be listed for sale and the following shall apply:
(a)The parties shall be appointed as the trustees for the said sale and each of them shall do all acts and things and sign all necessary documents to list for sale by private treaty the Suburb C property and for that purpose the following shall apply:
(i)The said sale agent shall be agreed between the parties in writing within seven (7) days from the final date of default or failing agreement as nominated by the secretary of the Real Estate Institute of South Australia;
(ii)The listing price of the said former matrimonial home shall be for such amount as agreed between the parties in writing or failing agreement the list price and any conditions of sale shall be nominated by the said sales agent;
(iii)The parties shall co-operate with all directions provided by the said sales agent in relation to the marketing of the said former matrimonial home for sale, including the provision of any keys upon request, permitting open inspections to take place at all times reasonably requested by the said agent and ensuring that the property is left in a clean, neat and tidy order at the time of the open inspection.

(b)The proceeds of sale of the Suburb C property shall be paid in the following manner and priority:
(i)To meet all reasonable costs of sale including payments to the sales agents commission, advertising or other expenses, if any, payable on the sale;
(ii)Payment of the conveyancing costs and outlays relating to the sale, including reimbursement to any party for any advertising or sales expenses which are to be agreed between the parties;
(iii)The settlement sum to the applicant together with interest calculated to apply from the date of the default to the date of payment in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; and
(iv)The balance payable to the respondent.

25.The parties each indemnify and keep each other indemnified in respect of:
(a)Any past, present or future taxation liability;
(b)Any liability registered in their separate names;
(c)Any credit card liability registered in their separate names; and
(d)Any future liability of each of the parties.

26.Pending payment of the settlement sum, the respondent be restrained and an injunction granted restraining him from disposing of, further encumbering, securing or otherwise dealing with the Suburb C property SAVE AND EXCEPT with the written consent of the applicant and for the purpose of giving effect to the payment of the settlement sum and the discharge of the mortgage whereupon the injunction shall be discharged.
27.In relation to the respondent’s superannuation entitlement with Superannuation Fund 1 (member number …) (“the fund”):
(a)The Court allocate for the purposes of s 90XT(4) of the Family Law Act 1975 (Cth) of a base amount of FORTY ONE THOUSAND SEVEN HUNDRED AND SIXTY NINE DOLLARS ($41,769) to the applicant from the respondent’s entitlement in the fund;
(b)Pursuant to s 90XT(1)(a) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable in respect of the respondent’s entitlement in the fund the applicant shall be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of FORTY ONE THOUSAND SEVEN HUNDRED AND SIXTY NINE DOLLARS ($41,769) pursuant to sub-paragraph 27(a) herein and there shall be a corresponding reduction in the entitlement the respondent would have had in the fund but for this Order;
(c)Order 27(a) herein shall take effect from the operative time being the fourth (4^th) business day after the day the order is served upon the trustee of the fund;
(d)Having been afforded procedural fairness, the trustees of the fund shall be bound to observe the provisions of this order and the requirements pursuant to the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001;
(e)The parties and the trustee shall do all things and sign all such documents as may be necessary to comply with the provisions in sub-paragraph 27(a) herein and the requirements pursuant to the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001;
(f)Within seven (7) days of the date of this Order being made:
(i)The applicant shall serve a copy of this order upon the trustees of the fund; and
(ii)The applicant shall give notice in writing to the trustee of the fund pursuant to regulation 72 of the Family Law (Superannuation) Regulations 2001; and

(g)The parties shall each pay one half of any fees charged by the trustees of the fund in administering the payment split pursuant to these Orders.

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

Ms Putnam (“the applicant”) and Mr Putnam (“the respondent”) are unable to reach agreement in respect of parenting matters for the parties’ three children, namely X born 2015 , Y born 2017 and Z born 2018 (collectively “the children”).
The parties are also unable to agree a division of property and accordingly, seek orders as to the division of property pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”).
Since separation in 2019, the children have lived with the applicant and spent limited day time with the respondent. Initially, the applicant supervised the respondent’s time with the children however, Ms H commenced providing professional supervision in accordance with Orders made on 7 April 2022.
Ms H provided supervision for eight time spending occasions between June 2022 and October 2022. At the conclusion of the supervised visits, she produced a supervision report dated September 2022 (“Ms H’s report”). Ms H provided supervision for an additional four time spending occasions between October 2022 and December 2022.
On 22 December 2022, orders were made by consent that the respondent spend time with the children commencing 1 January 2023 from 10.00 am until 1.00 pm each alternate Sunday. This time was extended by one hour to conclude at 2.00 pm as and from 29 January 2023.
The time spending regime as set out in the Orders of 22 December 2022 has continued until present date. The children have not spent any overnight periods with the respondent.
The applicant asserts that the relationship was characterised by family violence in the form of emotional, psychological and physical abuse, and that the respondent’s propensity for violence has impacted the children and continued post-separation.
The applicant considers that at best, the respondent is a well-meaning safety risk to the children and at worst, the respondent lacks any insight into his behaviour which is at times, physical and aggressive but in any event, fails to consider the best interests of the children by exposing them to violence.
The applicant seeks a continuation of the status quo being that the children live with her and spend time with the respondent each alternate Sunday from 10.00 am until 3.00 pm together with additional time during the school holidays and on special occasions. The applicant does not promote or support any overnight time and additionally, she seeks an order conferring her with sole responsibility in relation to major long-term issues.
It is the applicant’s position that the parties do not have the capacity to reach any agreement and therefore, time spending needs to be set out in the orders. Whilst it would be ideal if the parties could reach agreement with respect to any other time the children may spend with the respondent “as agreed”, the applicant considers that it is unlikely that the parties will be unable to reach any consensus or accord. It is for a similar reason that the applicant seeks an order for sole parental responsibility.
The applicant considers that it is important for the children to maintain a relationship with their father however, she contends that the children are at risk of emotional and physical harm in the respondent’s care.
A further issue remains as to whether the respondent should have any overnight time with the children given the state of the property situate at B Street, Suburb C in the State of South Australia (“the Suburb C property”) in which the respondent now resides. The applicant considers that the Suburb C property is a risk to the safety of the children in circumstances where it is unsafe and unhygienic.

The respondent denies the allegations of family violence or that he poses a safety risk to the children either by virtue of the state of the Suburb C property or his alleged inability to place the children’s best interests over his propensity for violent behaviour.
The respondent agrees that the children should live with the applicant. He seeks final orders for the parties to have joint parental responsibility (now decision making) and that the children spend time with him for a period of four weeks from each alternate weekend from 10.00 am on Saturday until 4.00 pm on Sunday, and thereafter from the conclusion of school (or 10.00 am if a non-school day) on Friday until 4.00 pm on Sunday. The respondent proposes that the children spend time with him for three nights in Term 1 holidays, four nights in Term 2 holidays and from Term three in 2025 for five nights during the short-term school holidays and on a week about basis during the Christmas school holidays.
Further orders are proposed by the respondent including that there be FaceTime communication on three occasions per week and that there be an injunction restraining the parties from travelling with the children to a country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).
In respect of the allegation that the Suburb C property is in complete disarray, whilst the respondent denies the same and asserts that he has cleaned and has partially addressed other issues hygiene issues in the house, he correctly identifies that no order is sought prohibiting the respondent from taking the children to the former matrimonial home. A separate matter arises with respect to the issue pertaining to the swimming pool enclosure and whether it merits a certified compliance certificate.
The applicant asserts that the respondent was aware that an impediment to overnight time was the state of the Suburb C property and that it was a relevant and live consideration. Notwithstanding the same, the respondent has failed to address the issue. The applicant considers that this is yet another example of the respondent’s inability to change and place the children’s best interests and safety first.
The issue of safety is made more complex in circumstances where Y had been exhibiting behaviour indicative of an autism diagnosis. There have been occasions whereby the applicant concedes that she is bereft of a way forward in Y’s management.
The applicant’s primary concern is that the respondent is unable to regulate the children, in particular Y. Whilst she concedes that the respondent does not deliberately intend to physically harm the children, she considers that he lacks the insight and understanding in how to adequately parent the children and as such, he often resorts to physical discipline and strong language.
The respondent, however, says that he has been open to learning new techniques to navigate Y’s behaviours and that he has taken advice from the applicant in relation to the same.
BACKGROUND
The applicant was born in 1980 and is 44 years of age. The respondent was born in 1972 and is 53 years of age.
The parties commenced cohabitation in late 2013, were married in late 2014 and separated on a final basis on 8 April 2019.
It is not in dispute that the applicant has been the children’s primary carer since their respective births. The respondent has only spent limited day time with the children that became unsupervised as of December 2022. The children have not spent any overnight time in the respondent’s care.
The applicant deposes to a history of family violence perpetrated by the respondent, often in the presence of the children, during both the relationship and post separation. She considers that on multiple occasions that she was supervising time between the respondent and the children, incidents occurred that warranted her intervention.
Since unsupervised time commenced, there have been several incidents which the applicant contends have subjected the children to a risk of physical and emotional harm but which the respondent considers are “no big deal”.
In early 2021, the respondent took the children to a fast food outlet. The respondent and the children were in the carpark when an altercation arose between the respondent and another man, leading to a verbal altercation. The respondent asserts that the other man started shouting abuse at him in the carpark whilst he and the children were in the car.
The respondent reacted by leaving the children in the parked car, approaching the other man who was filming the respondent on his mobile phone. The respondent proceeded to take the man’s phone out of his hands, put it in the pocket of his pants and he told the man he could collect his phone from the police station.
Whilst the respondent conceded that he should have never approached the man and instead should have driven away, the applicant highlights this as an example of the respondent’s poor decision-making and his inability to make child focussed decisions.
In mid-2021, the applicant arrived at the paternal grandparents’ home to pick up the children. Upon her arrival, she was met by the paternal grandfather whom she asserts said to her “go and get your son before he gets hurt.” The applicant alleges that she walked into a room and saw Y crying and struggling to free himself from the respondent’s arms. Y had been misbehaving and the respondent, in an effort to stop the behaviour and discipline him, resorted to physically restraining him.
The applicant asserts that the respondent told her that he sat on Y using his whole body weight until Y stopped misbehaving. The respondent concedes that he physically restrained Y who was being physically aggressive however, he denies that he sat on the child.
The respondent considered that the way he dealt with Y’s behaviour was justified and proportionate.
In mid-2024, the respondent took the children to an exhibition. Upon the children returning to the applicant’s care, the applicant says that X started crying and told her that the respondent had grabbed him around the neck and threw him to the ground. The respondent explained that X was hurting Y and in an effort to stop him, he placed his thumb and forefinger around X’s neck, applying pressure and causing him to squirm thereby stopping the physical interaction between X and Y.
The applicant says that later that evening, all three children told her that the respondent had hit X on the back after pushing him to the ground and that the respondent had said “fuck, I don’t want to see you again.”
The applicant considers that the foregoing incidents highlight the lack of insight the respondent has into his behaviour and the impact it has upon the children. It is further alleged that the respondent poses an ongoing risk to the children by minimising the issues and maintaining a propensity to act in an aggressive manner.
Notwithstanding the allegation of physical and emotional risk asserted by the applicant, there is a further risk in respect of the children’s safety if time spending were to occur at the Suburb C property.
One of the impediments for the children spending time with the respondent was the disarray and the state of the Suburb C property. The applicant alleges that the property is dangerous, unsafe and uninhabitable. The respondent considers that the Suburb C property was at one point in a state of disarray in circumstances where he was unable to pay for his legal fees and could not afford any renovations.
Historically, the respondent has agreed that the Suburb C property was not a suitable location for extended time spending with the children to occur. In fact, during his interview with Ms K in 2023, his proposal was that time spending should be day visits then overnight at his parents’ house or, in the alternative, at a holiday park.
Initially, the respondent states that he had kept the house “clean and tidy.” However, he ultimately conceded that the carpets were infested with insects and that whilst he vacuums fortnightly, it is near impossible to move all the furniture required to consistently vacuum up the insects.
The respondent now considers that the property has been appropriately cleaned and that there is no longer hygiene issues.
There remains a live dispute as to the safety risk of the swimming pool and enclosure at the Suburb C property. Some work was done in 2020, but the applicant remains concerned that the enclosure is inadequate.
Consideration needs to be given to the risks posed in Y’s erratic and often physical behaviour. In early 2025, Y was diagnosed with Autism Spectrum Disorder (“ASD”) (Exhibit “2”), however notwithstanding a diagnosis, Y has always exhibited behaviour that is challenging and unpredictable.
The uncertainty surrounding Y and his behaviour and how he will react is entirely unknown. Further, more uncertainty lies around how the respondent will be able to manage or deal with Y’s unpredictable behaviour.
The respondent has never been the children’s primary carer and has only spent nominal time with them. Irrespective of whether the respondent hopes to change his behaviour to be able to adequately parent the children, but in particular Y, there is no evidence to suggest that he is able to.
DOCUMENTS RELIED UPON
The applicant seeks to rely upon the following documents:
(1)Amended Initiating Application filed 16 December 2024;
(2)Affidavit of the applicant filed 16 December 2024 (“the applicant’s trial affidavit”);
(3)Affidavit of the applicant filed 15 February 2025 (“the applicant’s affidavit in reply”);
(4)Financial Statement filed 16 December 2024;
(5)Affidavit of Ms K filed 12 December 2024 (annexing reports dated 27 March 2023 (“the first report”) and 24 September 2024 (“the updated report”); and
(6)Outline of Case Document dated 16 February 2025.
The respondent seeks to rely upon the following documents:
(1)Further Amended Response filed 10 February 2025;
(2)Affidavit of the respondent filed 10 February 2025 (“the respondent’s trial affidavit”);
(3)Financial Statement filed 10 February 2025;
(4)Affidavit of Ms L filed 10 February 2025;
(5)Affidavit of Ms H dated 7 February 2025 (annexing supervision report dated 20 September 2022);
(6)Affidavit of Ms M filed 7 February 2025 (annexing therapeutic report dated 4 April 2024); and
(7)Outline of Case Document filed 14 February 2025.
TREATMENT OF THE EVIDENCE
The proceedings involve both financial and parenting issues.
The provisions of Div 12A of the Act apply to “child related proceedings” as set out in s 69ZN(4).
Division 12A to proceedings that are either wholly under Part VII but also to the extent that part of the proceedings are considered as “child related proceedings”.
Whilst parties can consent to Div 12A and the treatment of evidence pursuant to s 69ZT of the Act, without consent the Evidence Act 1995 (Cth) (“the Evidence Act”) applies in whole to the financial component of the proceedings, whereas in relation to the child related component of the proceedings the application of the Evidence Act is subject to Div 12A.
A court must give effect to the five principles as set out in s 69ZN. Child related proceedings differ from other proceedings where the parties seek orders as between themselves. In child related proceedings, the orders impact primarily on a child hence the Court is obliged to consider an outcome that is in the best interests of a child as its paramount consideration.
Neither party sought for the Court to dispense with the provisions of s 69ZT of the Act and apply the excluded parts of the Evidence Act.
Whilst the applicant alleges that the respondent presents as a risk of harm to both her and the children by reason of family violence, neither party asserts that they present as an unacceptable risk of harm to the children. The applicant’s contention is that whilst the respondent presents a serious risk of physical, emotional or psychological harm to the children, the risk can be adequately managed by the orders that she proposes.
The respondent does not significantly challenge the ability of the applicant to properly parent the children as reflected by the notionally modest orders sought by the respondent. He challenges the thrust of the applicant’s case that his time with the children should be the subject of substantial restriction by reason of his aggressive demeanour and conduct, poor temper management control and a lack of insight in terms of how his behaviour adversely impacts the children.
Given that the parties did not consent to the application of Div 12A to the financial issues, I considered that the best way forward was to manage the proceedings by retaining the application of s 69ZT of the Act noting that a consideration of the weight to be given to evidence normally excluded would be given.
I do not consider that an initial decision to apply the provisions of s 69ZT precludes the Court, during the course of the proceedings, from considering whether excluded provisions of the Evidence Act should apply to a particular tranche of evidence. The issue arose in the course of the proceedings in relation to evidence of a physical altercation between the respondent and his father in 2016 as relied upon to support a propensity argument. Whilst the application of s 97 of the Evidence Act (notwithstanding the initial ruling that s 69ZT applies) appears inconsistent, as will be discussed, I consider that the evidence of the altercation should be excluded.
THE EVIDENCE
The applicant
The applicant relied upon her trial affidavit filed 16 December 2024 and her affidavit in reply filed 15 February 2025.
The applicant sets out the history of domestic violence and child abuse during the course of cohabitation in paragraphs 21 to 39 of her trial affidavit.
The gravamen of the applicant’s evidence is that the respondent had demonstrated aggressive and controlling behaviour. It is her contention that the respondent’s aggressive conduct escalated following the birth of X.
In broad terms, the applicant says that the respondent was authoritarian in his control of the family and that she did not feel comfortable to voice her own view if it was contrary to that expressed by the respondent.
The applicant relied upon a purported physical altercation between the respondent and his father at work in early 2016. Whilst the applicant was not present at the alleged altercation, I accept her evidence that an incident occurred and that she was informed about it by the respondent.
It is not suggested by the applicant that the incident with the respondent’s father had in some way a direct connection with the children given that X was very young at the time. Rather, the applicant sought to rely upon the incident to argue propensity or tendency of the respondent to resort to violence.
Section 97 of the Evidence Act applies to both civil and criminal proceedings and its purpose is to prohibit the admission of evidence of “character, reputation, or conduct” of a person.
The evidence was not sought to be relied upon for any other purpose than tendency.
In the circumstances of the proceedings, I do not consider that the purported incident had sufficient relevance to be admissible in any event. Rather, the applicant’s reliance upon the incident was likely to be more prejudicial than probative.
Whilst s 97 of the Evidence Act is one of the excluded provisions pursuant to s 69ZT of the Act, I determined that the evidence was likely to be of little assistance to my determination and as such it was excluded.
Paragraph 37 of the applicant’s trial affidavit sets out the “emotional, physical and psychological abuse” perpetrated by the respondent and according to the applicant, its escalation following the birth of Z.
The alleged behaviour is confined to 2019 and early 2020 noting that the parties separated on 8 April 2019.
Some of the behaviours resulted in six mandatory notifications being made to the Child Abuse Report Line between 2019 to 2021. The applicant denies that she was the notifier however, her evidence enables a finding that whilst she may not have been the notifier, she was likely to have been the instigator by the referral of children to police and other agencies for assistance.
The applicant gave evidence of specific occasions when she observed the respondent smack or discipline the children.
In June 2019, the applicant observed the respondent smack X for throwing gravel, and in October 2019 and November 2019 the respondent was observed to swear at X and to threaten X and Y on the latter occasion.
In broad terms, the applicant’s evidence was that leading up to separation the respondent displayed authoritarian behaviour and easily lost patience with X and Y.
Following separation, the applicant was prepared to support the children spending time with the respondent but was not confident that they would be safe in his care and for a significant period she supervised the children’s time with him.
The applicant’s evidence is that whilst she facilitated time spending, she remained concerned that the children were at risk in the respondent’s care. Over and above the applicant’s concerns as to the respondent’s behaviour and lack of insight, she considers that the respondent’s home presents as a separate risk to the children arising from the swimming pool enclosure that the applicant considers is inherently dangerous and a lack of appropriate amenity within the Suburb C property.
A significant concern of the applicant arises from an incident in early 2021 wherein she alleges that the respondent engaged in a road rage incident with a stranger in a fast food outlet carpark. The issue is that the incident allegedly took place in the presence of the children in circumstances where the applicant could have de-escalated attention and walked always but rather, he sought to engage aggressively.
Whilst the applicant was cross-examined on her understanding of what had taken place in the carpark, she was not present and relied upon what she had been told by the respondent and X.
The applicant also places significant weight on an incident that occurred in mid-2021 when she arrived to collect the children from the paternal grandparents’ home. It is her evidence that upon arrival, the paternal grandfather told her that Y was at risk of coming to harm in the care of the respondent. The applicant’s evidence is that Y threw a toy at the front door of the home, then started to hit the respondent who sought to calm him down by physically restraining him with the whole of his body.
The applicant says that she observed Y regressing in his behaviour evidenced by him resuming thumb sucking and needing a comforter.
The applicant’s evidence was credible in terms of her initial conversation with the paternal grandfather, her subsequent observations of the respondent restraining Y, and her account of the respondent’s explanation for his use of physical force to restrain Y during his dysregulated state.
The applicant was not challenged as to her observations of difficult and, at times, troubling behaviour of the children, particularly in respect of Y but to a lesser extent, X and Z.
It is apparent from the tenor of correspondence forwarded by the applicant’s solicitors to the respondent’s solicitors that she considers some of the behaviour and presentation by the children to be regressive and likely to be caused by the children spending time with the respondent.
Whilst I accept the accuracy of the applicant’s observations of the children, there is scant evidence that it can be explained by the children spending time with the father and scant evidence that it confirms and corroborates the assertion that the respondent is aggressive in his demeanour and unnecessarily disciplines the children.
Y’s behaviour has been challenging. It is likely that the applicant’s observation of Y becoming more dysregulated is accurate, as is his propensity to disobey the applicant’s reasonable direction.

Whilst hearsay, the applicant reports feedback from Y’s childcare in 2022 that highlights the level of dysregulation. The incident in late 2022 involved Y throwing chairs at staff and other children at childcare requiring an evacuation. Further complaints continued throughout late 2022 evidencing Y’s inability to control his anger requiring significant and regular intervention by the applicant to remove Y from childcare.
Y at age seven years was assessed in early 2025 as satisfying significant diagnostic criteria for ASD (Exhibit “2”).
The diagnosis of ASD is relevant to enable a consideration of whether the manifestation and management of Y’s presentation presents as a factor requiring consideration when attempting to assess the advantages and disadvantages of the parties’ separate proposals.
The assessment of Y has significance in the proceedings for both decision making but also the extent of time that the children should spend with the respondent.
It is now likely that the underlying explanation for Y’s presentation arises in respect of his ASD diagnosis. The proper focus is then on the better management of the children, but specifically Y.
It is not controversial that the applicant, whilst at times finding it frustrating and challenging, has developed appropriate parenting skills to better manage Y’s behaviour. It is likely that the respondent is ill-equipped to deal with Y and has resorted to techniques utilising his size, strength and weight in attempting to restrain Y in the hope that his intervention will cause Y to calm down.
The applicant is concerned that the respondent has historically been either unable, unwilling or simply stubborn in his refusal to accept Y’s diagnosis. Whilst the respondent would seek to place a different gloss on Y’s behaviour, the applicant’s evidence as to the respondent’s resistance for Y’s engagement in appropriate and targeted therapy, ultimately culminating in an assessment and diagnosis of ASD, is to be accepted.
A corollary of Y’s diagnosis is in part to explain his difficult and troubling behaviour and to provide a possible alternative explanation, namely that Y’s behaviour may not be a result of the respondent’s lack of insight but rather a symptom of Y’s underlying presentation.
The applicant relies on reports of the children which she says is consistent with the respondent acting aggressively towards them. In early 2024, the applicant says that the respondent called her at 2.30 pm and asked if she could collect the children at an earlier time as he could not get them to leave a public venue at the end of an outing.
Y told the applicant that in an attempt to get Y to leave the venue, the respondent shoved him to the ground, kicked him and dragged him by his arm.
A similar allegation arises from the respondent’s evidence that in mid-2024, when the children returned to her care, X asserted that the respondent had grabbed him around the neck and threw him to the ground. It was further alleged by X that the respondent had thumped him on the back and used inappropriate language when frustrated with his inability to control the children’s conduct.
I accept that the applicant accurately recollects the reports of the children but given that she was not physically present, the extent to which the evidence of the respondent’s aggressive interaction with the children is of assistance depends upon the weight that it is to be given.
The applicant presented as being focused on the care and wellbeing of the children.
It is an important observation that the applicant does not seek to terminate the respondent’s time with the children, nor does she seek ongoing supervision but rather, that the children’s time be limited and not include overnight time.
I am alive to the focus of each of the parties on whether the children should spend overnight time with the respondent. It is not to be assumed that, without evidence, there is something inherently risky about overnight time. If the children are at risk, then it is arguable that the five hours of unsupervised time proposed by the applicant is sufficient for a risk to manifest itself in terms of actual harm. I appreciate that psychological and emotional harm may well be exacerbated by a longer period of time spent.
A secondary aspect that the applicant considers should speak against overnight time is the state of the Suburb C property.
As part of the property settlement proceedings, the Suburb C property has been the subject of two real estate valuations both of which commented on state and condition of the respondent’s property.
The applicant remains concerned that the Suburb C property is unsafe and unhygienic. The parties commenced renovation and improvement to the property shortly prior to separation and the evidence supports a finding that the respondent did little or nothing to progress the home renovations. Whether it was a strategy designed to keep the valuation of the property low or whether, as asserted by the respondent, he did not have the financial resources to be able to progress the home improvements, to a large degree it does not matter.
I accept that there may well be some substance to the applicant’s evidence that the manner in which the empty pool is fenced is inadequate and presents as a risk. The valuation reports support a finding that the Suburb C property may be marginal in terms of whether it is suitable for habitation. The respondent rejects the applicant’s contention that the property is unsafe and unhealthy.
The evidence of the applicant is compelling particularly given that the respondent acknowledged the Suburb C property was not suitable for the children to remain overnight. It was his proposal if the children were to spend overnight time with him, it would be taken at a holiday park as an alternate to his parents’ home.
It is unfortunate that any risk posed by the Suburb C property was not the subject of specific and direct evidence, in particular as to the adequacy of the pool enclosure.
The applicant does not resile from her proposal namely that the children spend between 10.00 am and 3.00 pm each alternate Saturday and for two days during the school holidays despite her other misgivings.
At times, the applicant’s evidence supported a finding that was inconsistent with the orders sought by her.
The applicant presented as a credible witness focussed on the ongoing care of the children but in circumstances where, realistically, she did not consider that there could be a working relationship with the respondent.
The respondent
The respondent relies upon his trial affidavit filed 10 February 2025. The respondent’s primary evidence is by way of response to the matters raised by the applicant.
The tenor of the evidence is that the respondent does not accept that he exhibits overtly aggressive conduct and, in particular, conduct which has caused the children distress, anxiety or engendered fear of him.
Whilst his time with the children has been of limited duration, in broad terms the respondent considers that it has been enjoyable and that the children have not been placed at risk.
At present, the extent of the respondent’s time with the children is comprised of FaceTime calls that occur on Monday, Thursday and each alternate Saturday evening between 5.30 pm and 6.00 pm together with each alternate Sunday from 10.00 am until 3.00 pm.
Whilst the parties are not able to agree the extent to which FaceTime communication will continue, as discussed, the core issues that separate the parties are in respect of parental responsibility and whether orders should be made that would allow the children to spend overnight periods with the respondent.
The respondent confirmed that he told the applicant about the incident that occurred in early 2021 in the fast food outlet carpark.
The respondent’s version is that he was approached by a stranger who was agitated and apparently upset arising from a dispute as to whether a carpark spot next to the respondent’s motor vehicle was available.
The respondent’s contention is that he felt confronted by the stranger’s behaviour and, whilst acknowledging that the children were in the car and likely to observe his conduct, approached the stranger.
The respondent agreed that he had taken the stranger’s mobile phone and then when contacted by the police about the incident attended at a police station and returned the phone.
The relevance of the incident is not necessarily how it started or whether the respondent or the stranger was the aggressor, but rather that the respondent had a number of options available to him; one of which was to disengage with the stranger and leave the carpark with the children. The respondent accepts that he chose the least preferrable option.
As such, the respondent’s evidence lays a foundation for a consideration as to the level of insight that the respondent demonstrated. A further aspect is that given the applicant’s demonstrated hypervigilance concerning the children spending time with the respondent, reports of the respondent engaging in aggressive conduct was likely to confirm the applicant’s mistrust of the respondent.
The second aspect arising from the respondent’s evidence is that when he spoke to a single expert about the incident, he did not consider that it was a matter of significance.
As was to be anticipated by the respondent, his conduct in mid-2021 involving him physically restraining Y who presented in a dysregulated state was explored.
Again, whilst the respondent attempted to provide a nuanced explanation for the manner in which he restrained Y, given the observations of the paternal grandfather and his warning to the applicant upon her arrival that she needed to intervene, the respondent’s behaviour could not, by his evidence detailing the manner in which he restrained Y, be accepted. I find that the respondent used his entire body weight to restrain Y.
The respondent’s evidence confirmed that he restrained Y with sufficient force to stop him moving.
There is some uncertainty as to whether the thrust of the examination of the respondent on the incident of mid-2021 was to establish whether he intended to hurt or harm Y, or was reckless as to that possibility, as opposed to his conduct being well meaning but misguided. A possible explanation is that the respondent simply did not have the necessary parenting skills to manage the children generally, and particularly Y given his difficult and at times challenging presentation.
The applicant also complains of the respondent’s behaviour involving Y in early 2024. The respondent took the children to a public venue and was to attend the handover at a McDonald’s Restaurant. The respondent and the children exited the venue, but he then encountered a difficulty with Y who wanted to return to the venue store to purchase a wooden toy. The respondent was not prepared to exceed to Y’s request which then prompted him to experience a tantrum that the respondent was unable to deal with affectively.
Y said that the respondent had shoved him to the ground, kicked him and then dragged him by the arm. X later reported his observations of the respondent pushing Y to the ground and kneeling on him as a response to Y misbehaving.
Of more recent date, the applicant has alleged that in mid-2024, X said that the respondent had thumped him on the back, pushed him to the ground and had used inappropriate language towards the children. The respondent denies the allegation and says that whilst he did not engage in aggressive conduct with the children, he did observe X hit Y on the back whilst he was attempting to drink from a water fountain.
Again, the respondent’s evidence was more corroborative of a lack of insight and the necessary parenting skills to appropriately manage each of the children’s separate presentation than evidence in support of the respondent being overtly aggressive.
The respondent agreed that he had entered into a verbal agreement with the applicant that he would not take the children to the Suburb C property. The respondent agreed that works needed to be done and that they are still outstanding.
The respondent was unsure whether he had told Ms K that the house was not suitable for overnight time and that an option was that the children would spend time with him at a holiday park.
The respondent’s evidence on the topic of the Suburb C property was unimpressive. It is difficult to know whether the respondent did not undertake improvements to the property deliberately in order to limit its value, or whether he did not do so because he did not have the financial resources, or whether he was depressed as to his circumstances and the breakdown of the relationship with the applicant.
The applicant’s concerns in respect of the Suburb C property have been long standing and well known to the respondent. He also had the advantage of reading the valuation reports which all comment on the condition of the property.
It would have been a relatively straight forward exercise for the respondent to obtain a separate report or call evidence that the Suburb C property was habitable and did not present either a health risk or a physical risk to the children. He did not do so other than that of a swimming pool enclosure that was supplied and installed in late 2020. Whilst the respondent relies upon a number of pictures of the Suburb C property and his assertion that (even though the property needs significant renovation and improvement) it does not present a risk to the children, his assertions are not credible.
The applicant has been clear in her concern that the swimming pool enclosure presents a significant risk to the children. The valuer observed that the pool was empty, cracked and would require a substantial upgrade. Whilst it is apparent that there is some pool fencing, there is no evidence that would satisfy the requirement pursuant to s 156(5) of the Planning, Development and Infrastructure Act 2016 (SA) and the subsequent practice direction issued by the State Planning Commission pursuant to s 42 of that Act.
Whilst there is some uncertainty as to whether the respondent’s swimming pool is covered by the practice direction and other regulations, there is a process whereby the applicant can request an inspection of the pool and its enclosure to ensure that the swimming pool safety features are installed, replaced or upgraded to afford safe operation, particularly for young children.
The order sought by the applicant is that the respondent be restrained from taking the children to the Suburb C property until such time as he provides to her a certified compliance certificate. Whilst it is uncertain whether a certificate can be provided, there is no reason why the respondent could not obtain an appropriate report as to the safety of the swimming pool that would satisfy the orders sought by the applicant.
It is an unusual circumstance that the applicant focuses on the safety of the swimming pool and its enclosure as the only basis for the respondent being restrained from taking the children to the Suburb C property, whereas the respondent’s own evidence is that the current state of the property is not amenable to overnight time.
The respondent presented as an unreliable witness and was unable to finally accept that the relationship between the parties was over without hope of a reconciliation.
I do not consider that the respondent’s evidence enables a finding that he was malicious in his intent to harm or hurt the children, but rather that his parenting skills were significantly limited and he lacked necessary insight. The difficulty for the respondent is magnified when taking into account Y’s presentation and the respondent’s difficulty in managing him particularly when he is in a dysregulated state manifesting in a tantrum.
Ms M
Ms M is a clinical counsellor and therapist focussing on domestic and family violence and in particular male aggressive conduct.
Ms M was provided with court documents that set out the issues between the parties and the allegations of the applicant as to what she considers is the family violence perpetrated by the respondent prior to separation and his ongoing aggressive conduct both with her but also the children.
The respondent commenced his therapeutic involvement with Ms M in May 2023, completing a number of sessions by January 2024.
There is some uncertainty as to why the respondent ceased his therapeutic intervention.
It is apparent from the evidence of Ms M and her report dated 4 April 2024 that she had a sufficient understanding of the issues of concern.
Ms M reports that the respondent did not understand why the parties had separated but nonetheless had gained some insight into matters clearly of concern to the applicant.
The respondent is also recorded as expressing frustration as to the “barrage of allegations” concerning his behaviour and the lack of cleanliness of the house. The respondent did not think that the allegations were fair nor reasonable.
When speaking to Ms M, the respondent appears to have placed a gloss over some of the more egregious conduct as evidenced by his take on the confrontation with a stranger in the fast food outlet carpark.
Ms M summarises her observations of the respondent in the following terms:
There is a potential difficulty in [the respondent’s] inability to model the potential risky outcomes that could've come, not from his own actions but from the other person's action. The writer suggests that [the respondent] is learning and becoming aware of his safer and more honourable choices in those situations.[1]
[1] See the ANTC Counselling Report of Ms M dated 4 April 2024 at page 9 of 18 as contained in Annexure “B” of the Affidavit of Ms M filed 5 February 2025.
Ms M concluded that the respondent had taken some responsibility for his conduct and lack of communication in the relationship and his dealings with the applicant.
Of more significance, Ms M considered that the respondent was now able to better understand and gain insight into the effect of confronting situations with aggression but importantly she observed that “however due to expressions of grief from the breakdown of the relationship, he is as yet unable to address them in detail due to shame felt about his entire predicament.”[2]
[2] See the ANTC Counselling Report of Ms M dated 4 April 2024 at page 13 of 18 as contained in Annexure “B” of the Affidavit of Ms M filed 5 February 2025.
The respondent is reported as continuing to deny allegations of acts of violence and the possibility that either the applicant or the children had experienced his adverse behaviour.
A further recommendation was that the respondent continue to engage in therapy to “transition to respectful and considerate parenting, and to manage upcoming frustration that may occur between the parents.”[3]
[3] See the ANTC Counselling Report of Ms M dated 4 April 2024 at page 14 of 18 as contained in Annexure “B” of the Affidavit of Ms M filed 5 February 2025.
Ms M was not able to advise as to the extent of future therapy that may be required before a therapeutic milestone or goal was reached. Moreover, there was a concession that the therapeutic sessions represent a financial impost to the respondent.
Ms H
By letter dated 13 April 2022, Ms H was instructed to provide supervision for the respondent spending time with the children. An order was made that there be a report prepared at the conclusion of the children spending six supervised periods with the respondent.
Ms H provided a report dated 20 September 2022. Other than the intake appointments the report states that she supervised the children’s time with the respondent on eight occasions between June 2022 to October 2022.
The following summary as appears in the report is of assistance:
The [respondent] consistently presented as warm, appropriate, and attuned to the children. He demonstrated patience and a capacity to diffuse sibling altercations before the situation could escalate and the children become emotionally dysregulated. He was balanced and measured in his attention to the children. This is important to note as [Y] and [Z] were very demanding of the father's attention.
The [respondent] categorically denies that he is the perpetrator of family violence. Furthermore, he denies that he has hurt the children as the mother alleges.
The [respondent] also asserted that he does not struggle with alcohol and that there is no indication that he abuses alcohol.[4]
[4] See the Supervision Summary Report of Ms H dated 20 September 2022 as contained in Annexure “B” of the Affidavit of Ms H filed 7 February 2025 at page 11.

Ms H also noted that on occasion the respondent was upset and distressed at his recognition that the parties were unable to effectively co-parent.
Whilst the focus was upon the respondent’s time with the children, Ms H noted that the applicant presented as warm and appropriate in her interaction.
Ms H was not required for cross-examination. Her observations of the respondent and his interaction with the children over the eight recorded sessions is without contest.
On each occasion, there was no observation that any of the children were fearful of the respondent but rather that they delighted in their interaction with him.
Ms H observed that, at times, the children exhibited difficult and challenging behaviour. In late 2022, X presented as being aggressive with his father, kicked him on two occasions and was demanding in his language. The respondent was observed to manage X’s behaviour calmly.
Ms H noted that X’s behaviour lasted for about five minutes at the conclusion of which X then sought comfort from him.
In general, Ms H observed that the children enjoyed praise from the respondent who was attentive to their needs and reasonable in his approach particularly when they were energetic, aroused and boisterous.
The evidence of Ms H is significant in that it underpins that there is a meaningful relationship between the children and the respondent.
Ms K
Ms K is a clinical psychologist who operates her own private psychology practice. She has specialised in the assessment of children, their caregivers and parenting recommendations, and has undertaken numerous Family Assessment Reports and given evidence as a single expert in court. There is no challenge to her expertise.
Ms K was jointly engaged by the parties to undertake a Family Assessment Report dated 17 March 2023 (“the first report”) and an update Family Assessment Report dated 24 September 2024 (“the second report”).
For each of the two assessments, Ms K interviewed the parties and the three children, observed interactions between the children and the parties, and considered a raft of court documents that provided adequate background and an understanding of the parties’ separate proposals.
The first report
The first report involved interviews and observations in February 2023. At the time, the children lived with the applicant and spent time with the respondent each alternate Sunday from 10.00 am to 2.00 pm pursuant to Orders made 12 February 2023 but noted that time was to increase from 10.00 am to 3.00 pm on alternate Sundays.
As matters have transpired, the time the children spent with the respondent has remained unchanged across the two assessment periods.
Ms K properly acknowledged the orders sought by each of the parties.
The first report acknowledges that the respondent understood the importance of the children spending time with the respondent and considered that a meaningful relationship was important.
The applicant restated to Ms K her concerns in respect of issues of risk and neglect and relayed what was described as the road rage incident in the fast food outlet carpark.
Ms K was also aware of the applicant’s allegation that in mid-2021 the respondent had physically restrained Y by using his entire body weight.
It is important to note that Ms K was acutely aware of the matters of concern to the applicant and the response of the respondent which sought to place the incident in context of Y becoming dysregulated, throwing a tantrum and needing to be safely restrained.
The observed interaction of each of the parties with the children is of assistance. Ms K did not observe any inappropriate or frightening conduct by the respondent even when confronted with difficult and challenging behaviour by X and to a lesser extent Y.
Z was openly affectionate toward the respondent, and he was sufficiently in tune with her that she was confident to ask him to take her to the toilet.
The following observations of Ms K from the first report sets out the challenges for the respondent as presented by the children and her observations of his ability to manage them:
The children were further observed interacting with their father at the conclusion of their interviews, during which time [X] and [Y] built the train-track. While initially, co-operative, [X] was quick to anger when [Y] pushed his train and knocked the signals over. When the writer suggested they stand the signs back up, the boys complied and resumed play. [X] soon expressed anger again, thew [Y’s] trains off the track and threw the train tracks. [The respondent] advised the boys to share and take turns, but when [X] continued to whinge loudly, [the respondent] informed they would need to pack up the train-set. He advised [Y] of the need to compromise and [Y] responded “I'm not listening”. [Z] engaged in colouring, then became particularly concerned when she noticed a small speck of texta on her finger. [The respondent] assisted her to wash her hands. On her return [Z] remained unhappy about the texta on her finger and repeatedly asked her father to “scratch it off”. [The respondent] attempted to wash the texta off for a second time but [Z] remained dissatisfied. He suggested she wait until collected by her mother, as she would have “special soap”. [Z] chatted with her father as she sat on his lap while [the respondent] listened to [X] and [Y’s] respective complaints about the other’s behaviour. He advised both children they needed to work together given it was a joint activity.[5]
[5] See the Family Assessment Report of Ms K dated 17 March 2023, pp 6 and 7.
The observed interaction between the children and the applicant was less challenging. It is likely that the children considered they were able to push the boundaries of behaviour when with the respondent than with the applicant. The interaction between the children and the applicant demonstrated a close emotional attachment unsurprising in circumstances where the applicant has been effectively the sole parent.
In separate interviews, the children said that they enjoyed their time with the respondent.
While X was positive in respect of the relationship with the respondent, he expressed concern when the respondent disciplined them and that he was scared of his father’s angry voice. Sometimes he would have a nightmare after being disciplined.
The respondent’s angry demeanour was a matter of some moment to X who said that he wished his father would take the children out to more places and not get angry.
Y was more upbeat about his time with the respondent and said that he thought the respondent was good fun but, similar to X, expressed a sentiment to go to more fun places.
Z reported being happy with each of the parties and that there was nothing about the respondent that caused her concern.
Ms K considered that the orders allowing the respondent to spend more time with the children had a beneficial effect. Whilst the respondent sought overnight time, the children did not raise it as an issue. Ms K summarised the position adopted by each of the parties as to overnight time as follows:
The children did not raise the option of sharing overnight time with [the respondent], likely attributed to them having no memory of [the respondent] providing care in this capacity. Despite his application for overnight time, [the respondent] reported in interview he had not progressed with renovations at the former family home post separation and did not consider the environment sufficiently safe. He proposed the option of an overnight stay at a [Holiday Park] at a future time. [The applicant] was not opposed to this in the longer term (noting she was averse to overnight time at the paternal grandparent’s home), but referred to the need for forward planning, given her experience [Holiday Park] bookings were confirmed well in advance. [The applicant] indicated support for the children commencing one overnight stay with their father at a local [Holiday Park] during a school holiday period, but considered it important the children had access to their preferred activities on weekends during the school term, albeit sport (given [Y’s] desire to play [sport]), playdates, birthday parties with friends…[6]
[6] See the Family Assessment Report of Ms K dated 17 March 2023, p 23.
Ms K found that the co-parenting relationship was poor and whilst the applicant considered it dysfunctional and the respondent did not, it is beyond question that the relationship between the parties is problematic.
Ms K also considered that the respondent demonstrated lack of support for the children attending counselling to address developmental needs is a matter of concern. Ms K was left in no doubt that Y, and to a lesser extent X, would benefit from ongoing therapeutic intervention which would be of more benefit if both parties were in fulsome support.
The second report
The second report covers the updated assessment involving interviews with the parties and the children in August 2024.
X was reported to be keen on the idea of “a sleepover” with the respondent but only if that house was clean. X referred to the state of the Suburb C property as “like a pig’s mud pile”.[7]
[7] See the Family Assessment Report of Ms K dated 24 September 2024, p 5.
As a reminder of the lack of consensus between the parties, the respondent reported clinically significant concerns in respect of X’s aggression and other adverse behaviours whereas the respondent expressed no concern.
In interview, Y said that he enjoyed his time with the respondent. However, the observed interaction with the father did not take place in circumstances where, in the playroom, Y became distressed when the respondent told him not to flick his toy at the glass in the door.
To his credit, the respondent followed Y outside and attempted to persuade him to return by offering snacks and a drink.
As matters transpired, the interaction between the respondent and Y was observed by Ms K. The respondent offered Y a hug and appeared sensitive to his circumstance. Whilst it took an hour, the respondent ultimately was successful in persuading Y to return.
Ms K recorded an interesting observation by X that Y has been difficult with the respondent in the past but did not necessarily repeat the behaviour when with the applicant.
Z reported that she enjoyed her time with the respondent but also acknowledged that Y’s behaviour was difficult and frustrating.
Ms K reported that the applicant was now not supportive of overnight time and considered that the children may be at risk and, while it was important that they maintain a relationship with the respondent, supervision may now be necessary.
The children did not express significant reluctance in spending time with the respondent. It could not be said that they indicated they had a strong or positive relationship with him unlike the applicant, but they enjoyed their time.
Ms K recorded the views expressed by X and Z as follows:
With regard to views expressed by the children, [X] reported he felt okay going to his father’s house but “not the south east side of the garage, there [is engine stuff]”. [X] reported having visited the former family home six to eight weeks prior to play with toys left there. (It is unclear if [the applicant] has knowledge of this visit to the former family home, given it was not raised in interview.) [X] proposed visits with [the respondent] occur each Sunday because he and [Y] played [sport] on Saturday. He also suggested an increase in time by one hour i.e. 9am to 3pm as he thought that was enough. [Z] reported her father’s house needed to be fixed up so that she could play. She did not like the garage at [the respondent’s] house or the old play house because there might be redback spiders. [Z] reported the telephone calls with [the respondent] were okay but sometimes she was tired and did not have anything else to say. [8]
[8] See the Family Assessment Report of Ms K dated 24 September 2024, p 18.
Ms K noted that in the initial assessment the respondent conceded that the state of the Suburb C property was not sufficiently safe for the children and again in the second assessment the respondent reported that there had been no progress with renovations to the property.
The respondent’s reluctance to engage and support an ASD assessment for Y was noted as a matter that spoke against the parties being able to appropriately co-parent.
Ms K was concerned as to the respondent’s perspective in not focussing on the children’s best interest but rather his own concerns.
As such, the children remain concerned and at times fearful of the respondent and his potential for unpredictable aggression.
On the topic of overnight time, Ms K considered that subject to the Suburb C property not presenting as a physical risk to the children, overnight time for X and Z was not problematic. However, the overarching concern was the lack of confidence in the respondent’s ability to manage Y’s behaviour especially when he is dysregulated resulting in him throwing a tantrum.
It is not to suggest that Y’s behaviour is more egregious only when in the respondent’s care but rather, to acknowledge that the applicant has developed better management skills and is more attuned to the needs of the children, in particular Y, than the respondent is.
In short summary, Ms K did not consider that the circumstances would permit overnight time but that it was not out of the question.
STATUTORY FRAMEWORK
I consider it necessary that I adopt the approach that brings to account the practical reality of the separate parenting proposals of the parties.
Section 60CA of the Act requires that I have the best interests of the children as the paramount consideration. The best interests test is to be considered by the application of the two objects of s 60B of the Act and requires the Court to have regard to the provisions of s 60CC to determine in each case what is in the children’s best interest.
Subject to the parties seeking a consent order, s 60CC(1) of the Act requires the Court to consider the general considerations as set out in s 60CC(2) and (2A) which places emphasis on any history of family violence, abuse or neglect, and any family violence order if consideration is to be given to arrangements that would promote the safety of either a child or a party from family violence, abuse, neglect or other harm.
The focus of the relevant provisions of the Act are to ensure the best interests of the children, as opposed to the parties, is the paramount consideration.
I consider that whilst the Act does not make specific mention of the importance to the children to having a meaningful relationship with each of the parties, it is likely that the best interests of a child will be served if a relationship with a party, parent or another person who may be significant to the child is maintained providing it is in all the circumstances safe to do so and will be of an advantage to the child.
Section 61D gives consideration to parenting orders and parental responsibility. Section 61D(1) of the Act provides that:
A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
I consider that the determination as to whether an order should be made under s 61D(3) of the Act concerning the allocation of responsibility for major decision making is informed and to be determined by a consideration of the best interests of the child consequent upon the application of the considerations in s 60CC.
PARENTING CONSIDERATIONS
Are the children at risk?
The applicant contends that the respondent has perpetrated family violence during the period of cohabitation both as to physical harm and by reason of coercive and financial control. Furthermore, the applicant considers that the children are at risk of physical harm arising from her assertion that the respondent lacks emotional control, has poor anger management and lacks insight as to the needs of the children. The applicant considers there are potential adverse consequences to the children arising from the respondent’s sometimes unpredictable behaviour.
The respondent denies that the children are at risk in his care. As considered, I prefer the evidence of the applicant in respect of various occasions when the respondent has acted aggressively, such as the incident in the fast food outlet carpark in mid-2021 in the presence of the children. There are other examples of egregious conduct by the respondent, particularly the evidence of the applicant concerning the respondent physically restraining Y whilst he was in the throes of a dysregulated state.
An important consideration is that the applicant does not assert that the respondent presents as an unacceptable risk and whilst admittedly she was more cautious in the second assessment with Ms K and in her evidence, she still maintained that it was important for the children to maintain a meaningful relationship with the respondent.
Ms K’s evidence enables a finding that the children benefit from an ongoing relationship with the respondent and as such the question is not whether there should be a relationship, but the terms and conditions that should apply.
The children did not express fear of the respondent but rather expressed some concern as to his propensity to be angry, and the state and condition of his home.
I accept the evidence of the applicant that the respondent has demonstrated poor anger management control, but I do not consider that he is malicious in his intent or deliberate in his behaviour so as to cause harm to the children or be reckless and indifferent to that outcome.
The respondent, by necessary implication, recognises that his behaviour fell far short of what was required by his attendance upon Ms M for a number of sessions and the successful completion of appropriate parenting courses.
It might be argued that the respondent’s attendance in therapy and parenting courses is only to pay lip service to the process and to in effect ‘tick a box’. I am not satisfied that such a consideration adequately incapsulates the respondent’s position.
Ms M presented with a significant skill set in matters directly relating to anger management and family violence perpetrated by men.
The respondent is reported to have gained some level of insight following the extensive therapy engaged but Ms M acknowledged that whilst progress had been made, more was needed.
Whilst there is no evidence of the development undertaken and experienced by the respondent as a result of his attendance at various parenting courses, it is a reasonable assumption that, even if a person undertakes the programs and therapy with disinterest and poor intention, if the process is extensive enough then some advantage will benefit and will likely ensue. I consider that this is an adequate depiction of the respondent’s current state.
Ms K observed that the children reacted and responded well to the respondent in the first assessment and certainly, as far as X and Z are concerned, similar observations were made in the second assessment. As highlighted in the second report, the difficulty that arises from Y’s behaviour and management manifest.
Ms K was satisfied that the diagnosis of ASD provides an appropriate explanation for Y’s adverse and, at times, oppositional behaviour. I find that Y’s conduct is not a result of fearful interaction with the respondent but rather, arises directly from Y’s diagnosis of ASD. The issue is the ability of each of the parties, in particular the respondent, to manage Y when he is in a dysregulated state and presents with oppositional and defiant behaviour.
The applicant is well versed in Y’s behaviour and the appropriate management tools that need to be used. The respondent is not. The respondent remains to some degree in denial of the extent of the difficulty that Y presents and as such, in the past, his ability to control Y and de-escalate dysregulated behaviour has been to apply physical force and restraint. I do not accept that the respondent intends to hurt Y but rather, he responds in the only way that he knows how.

The difficulty for the respondent is that he presents no evidence that satisfies the Court that the sale of his interest in the E group is either inevitable or reasonably foreseeable. It is only that the respondent seeks the order that the potential for the transfer of his interest in the E group is a live issue.
The respondent’s evidence was unconvincing as to the inevitability of the sale of his business interests. No attempt was made to introduce evidence of the memorandum and articles of association of E1 Pty Ltd and F Pty Ltd, nor in respect of the partnership to better assess what restrictions may apply to the terms and conditions of sale.
Moreover, even were the Court to make the order, there is no jurisdiction to require a non-party to enter the sale process.
By way of example, were there to be a default by the respondent the applicant would be required to bring enforcement proceedings to claw back and bring to account the estimate of tax given that she would have no direct remedy against the respondent’s father.
There is also no evidence as to whether the purported intended sale of the respondent’s business interests is necessary given that the Suburb C property is freehold and presumably capable of supporting a mortgage to secure part or the entirety of any settlement sum ordered to be paid.
The applicant does not seek to limit the options for the respondent, but argues to the sale of his business interests should not be considered a foregone conclusion, inevitable or even reasonably foreseeable. It remains as an option for the respondent but does not pass the threshold test given consideration by the Full Court in Rosati necessary to support the inclusion of the estimated tax payable as a liability of the parties.
Children’s bank accounts
The parties, in their joint names, set up three accounts on trust for the children currently in the total sum of $8,157. The initial position of the applicant is that she would transfer her interest as trustee for each of the children, but only on the basis that it be brought to account as property retained by the respondent.
The position adopted by the applicant was surprising given that there was clear agreement between the parties that the monies deposited into the three accounts was to be held on trust for the children and should not be the subject of access by either party.
During final submissions, agreement was reached that the respondent would remain the sole account holder in respect of the three accounts in favour of each of the children and that he would be restrained by way of injunction from accessing those monies other than to transfer the separate balances to each of the children as they reach the age of 18 years. Whilst I do not ignore that the relationship between the parties is poor, I propose to give the parties the opportunity to vary the injunction as may be agreed between them.
Balance of funds received from the sale of the P Street property
The applicant seeks that the sum of $190,173 being the balance of funds received by the respondent from the sale of the P Street property should be added back.
The trust was the owner of the P Street property. A decision was made by the trustees to sell the P Street property in 2019. The net proceeds of sale formed part of the corpus of the trust and having regard to the first valuation prepared by N Financial Servicesdated February 2021, the respondent’s interest in the trust was valued in the sum of about $500,000. Associated with the value of the respondent’s interest was a loan owed to him arising from his notional share of the sale proceeds of the P Street property.
The respondent sets out the deposits that he received between 25 August 2021 and 25 July 2024 totalling $498,995.45.
As discussed, the sum of $231,500 was placed into the Bank D Account in the joint names of the parties. That sum now appears in the balance sheet in the sum of $242,880.
In addition, the applicant accepts that the respondent discharged the mortgage over the Suburb C property in April 2022 in the sum of $77,321.68.
Leaving a balance of $190,173.77 which is the amount that the applicant seeks by way of an addback.
The respondent sets out the further disbursement of the P Street property distribution received by him at paragraphs 392 to 401 of his trial affidavit.
Counsel has conveniently summarised the disbursements paid by the respondent totalling $58,037.32. I am satisfied as to the accuracy of the calculation undertaken by counsel and consider that the amount sought to be added back by the applicant should be reduced at least by the disbursements paid by the respondent.
In Omacini & Omacini (2005) FLC 93-218 (‘Omacini’), the Court considered the categories of cases where it was appropriate to notionally add back to the parties’ pool of assets. The first is where the parties have used property to pay legal fees, the second is where there has been a premature distribution of a matrimonial assets, and the third is where a party has undertaken a course of conduct that either has the effect of reducing or minimising the value of property or has acted in a reckless, negligent or wanton fashion (see Kowaliw & Kowaliw (1981) FLC 91-092).
The applicant relies upon the second stated category, namely that there has been a premature distribution of property.
In Omacini, the Full Court considered treatment by the trial judge of monies received from the sale of shares and real estate as an addback and at paragraph 39 said:
Her Honour seems to be saying that the mere fact that a party has expended money realised from the disposition of assets that existed as at the date of separation, will result in that expenditure being added back “in the usual way” as a premature distribution of assets with nothing more. If that is what her Honour is saying, in our view, she is being unduly simplistic. In our opinion, it was a necessary requirement for her Honour to examine and make some assessment of the reasonableness or otherwise of the expenditure. The need to satisfy that requirement was particularly critical in a case such as this because:
(a)The appellant respondent had at least prima facie provided a full explanation and accounting as to how the money had been expended; and
(b)Much of the expenditure was incurred after the appellant respondent had accepted a redundancy package on 18 June 2002 which has not been available to him, it being frozen by court…
Following an application for spousal maintenance, the parties reached agreement on 7 April 2022 that the respondent would pay to the applicant spousal maintenance in the sum of $300 per week. Whilst there is scant evidence as to how it was paid, it appears from the submissions of counsel that the spousal maintenance payment was paid over 150 weeks totalling $45,000. Moreover, the funds utilised for the payment of the spousal maintenance was derived from the respondent’s savings but given his impecunious circumstances and a prolonged period of unemployment, it is likely that a substantial component of monies paid was derived from the sale proceeds of the P Street property.
I do not know to what extent any component of the spousal maintenance payments should be brought to account, but it seems that it would be an inappropriate outcome if the applicant had unknowingly contributed to her spousal maintenance from her own resources. As such, I can see no good reason why the respondent should be permitted to satisfy his obligation pursuant to an order by using matrimonial property. I propose to exclude the total sum of $45,000 representing spousal maintenance paid since 7 April 2022 from the calculation to determine the extent of any addback.
The respondent has disclosed bank statements for his Bank D Account account …89 for the period 4 May 2021 to 2 November 2024. The thrust of the applicant’s argument in respect of the add back of monies commences with the sum of $198,750 being deposited into the respondent’s account in late 2021 noting that by 2 May 2024, the closing balance was $8,293. Other than credit interest that accrued, it does not appear that any other amounts were deposited into the account.
The applicant’s counsel has undertaken an exercise in tracing debits from the respondent’s account for the payment of his legal fees.
The exercise has a level of imprecision but by reference to the respondent’s Costs Notice in Exhibit “1” he has paid a little more than $100,000 for his legal fees not including counsel fees and disbursement costs. The exercise undertaken by the applicant’s counsel accounts for legal fees in the sum of $74,000.
The balance is likely to have been made up of monies provided by the respondent’s family.
I propose to add back the respondent’s legal fees, however this then leads to a shortfall of about $30,000.
Whilst there were aspects of the respondent’s evidence that were unsatisfactory, I do not find that he was profligate in his spending and it is noted that whilst the subject of complaint by the applicant, he was generous with the children when he saw them.
I cannot find on the balance of probabilities that the balance of the monies retained by the respondent should be considered as either a premature distribution or a wanton reckless or neglectful use of the funds available to him.
Whilst it is also a contribution issue, I do not ignore the provenance of the P Street property as forming part of the corpus of the trust that was in existence prior to the commencement of cohabitation of the parties.
It is also noted that the applicant refers to the sum of $50,000 in her solicitors’ trust account in anticipation of legal fees and disbursements outstanding consequent upon the completion of the trial.
I do not have information as to the source of those funds.
In those circumstances and given that there is no evidence presented by the respondent that the applicant had access to property of the parties, it is open for me to find that money that remains in the applicant’s solicitors’ trust account has been sourced from her personal savings or monies provided by her family.
I propose to add back the sum of $74,000 being the amount calculated by the applicant’s counsel and $45,000 being the proceeds used to pay spousal maintenance to the applicant.
ADJUSTED SCHEDULE OF ASSETS AND LIABILITIES
Assets

DESCRIPTION OWNERSHIP VALUE

Suburb C property Respondent $650,000

Respondent’s interest in business entities (including Suburb S property) Respondent $734,800

Bank Accounts Respondent $435

Bank Accounts Applicant $3,389

Joint Bank D Accounts Joint $242,880

Furniture & effects Respondent $59,610

Furniture & effects Applicant $12,935

Motor Vehicle 1 motor vehicle Respondent $10,000

TOTAL $1,714,049
Liabilities

There are no liabilities.
Superannuation

DESCRIPTION

OWNERSHIP

VALUE

Superannuation Fund 1

Respondent

$220,917

Superannuation Fund 2

Applicant

$137,380

TOTAL

$358,297

Addbacks

DESCRIPTION

OWNERSHIP

VALUE

Legal fees

Respondent

$74,000

Spousal Maintenance

Respondent

$45,000

TOTAL

$119,000

CONTRIBUTIONS

I am required to consider the direct and indirect financial contributions made by, or on behalf of the parties, to the acquisition, conservation or improvement of property (s 79(4)(a)-(b) of the Act), and the contributions made by the parties to the welfare of the family in their capacity as parent or homemaker (ss 79(4)(c) of the Act).
The relationship and period of cohabitation of the parties was of short duration being nearly six years. The more significant consideration arises from the three children of the marriage.
The parties are in broad agreement as to their separate financial contributions at the commencement of cohabitation.
The respondent held his interest in the Suburb C property freehold at the time of cohabitation. The retrospective valuation of the Suburb C property as at 31 October 2013 in the sum of $270,000, is not the subject of challenge.
In addition, the respondent held his interest in the E Group and whilst this was not the subject of retrospective valuation, it is brought to account at a current figure of $734,800.
A further consideration is the distribution received by the respondent from 2021 arising from the sale of the P Street property sold in 2019. The sum received totalled $498,995. It is a significant contribution. The amount in the joint Bank D accounts totalling $242,880 and the payment of the mortgage in the sum of $77,000 are directly attributable to the distributions received by the respondent. In addition, the applicant argues that the balance of the distributions received should be brought to account as an addback. Whilst I have determined that a lesser sum should be brought to account, the current net pool of property in the sum of $1,833,049 is largely attributable to the Suburb C property, the interest in E Group valued at $734,800 and the use of the distribution received by the respondent much of which can be traced directly to the current pool of property (see Pierce & Pierce [1998] FamCA 74).
I do not ignore that shortly after the commencement of cohabitation, the parties jointly borrowed the sum of $150,000 to effect renovations and improvements to the Suburb C property. The money was expended and over the course of the marriage the mortgage liability was discharged by periodic payment and the final lump sum balloon payment from the trust distribution proceeds.
To the extent that it is a relevant consideration, I accept that given the state and condition of the Suburb C property, as observed by the valuer, the current value is likely to be reflected not by improvement to the property but rather by the gradual increase in market value.
In considering the separate contributions of the parties, I do not ignore the applicant’s evidence that from her income as a health professional she contributed towards expenses, outgoings and costs pertaining to the care of the children.
The more significant contribution arises from the uncontested evidence that the applicant had the overwhelming care for the children, and it is noted that Y presents with special needs now better understood given his diagnosis of ASD.
It is an unfortunate feature of the proceedings that whilst they commenced in 2020 following a separation in April 2019, the parties have been locked in litigation with resultant uncertainty, emotional distress and disruption to the children for a period now approaching five years.
The period during which the applicant had the primary care of the children post separation significantly exceeds the period before cohabitation.
There is no challenge to the quality of care by the applicant. The very real consequence is that whilst she holds a substantial qualification the constraints of parenting the children is such that she is only been able to work on a part-time basis and currently 0.4 Full Time Equivalent (“0.4 FTE”). Whilst I do not conflate the future employment circumstances of the applicant with the period from the date of separation to trial, there is relevance to the extent to which the applicant focussed on the needs of the children even though it adversely impacted upon her ability to generate income.
Following separation, the respondent has remained in the Suburb C property whereas the applicant was required to find suitable rental accommodation for her and the children. Whilst I do not have information as to the historical rental costs of her accommodation, noting that at present it is in the sum of $500 per week, I am able to easily find that the rental costs represent a significant impost on the applicant’s financial resources.
I do not ignore that the respondent consented to an order for the payment of spousal maintenance on 7 April 2022 and whilst it is likely that the payment to the applicant came from the trust distributions received by the respondent, the applicant still experienced a financial shortfall.
Whilst highlighting what I considered to be the separate contributions of the parties, I do not give separate arithmetical consideration to any of the separate contributions noting that it is not an arithmetical exercise but rather a holistic approach. As such, a 65/35 apportionment for contribution in favour of the respondent represents a differential amount of $549,914 which is consistent with the competing contribution factors.
SECTION 75(2) FACTORS
As discussed, the applicant has established that at present, she is only able to work 0.4 FTE of a week given the needs of the children. Of necessity, her income is modest and taking into account her reasonable expenses, the applicant goes forward with a significant level of impecuniosity. The evidence supports a finding that the applicant’s circumstances will continue into the foreseeable future.
The parenting orders that I propose to make include time for the respondent. Whilst there is an attendant cost for the daytime care of the children, the significant consideration is that the current child support is in the sum of $98 which will increase to $130 per week going forward.
Whilst I was not assisted with any evidence as to the costs arising from the applicant’s care of the children, her Financial Statement filed 15 December 2024 provides some insight.
The applicant’s weekly income is in the sum of $1,888 which comprises $826 by way of average salary or wage, cumulative government benefits totalling $664 and child support together with spousal maintenance of $398.
The applicant does not seek continuation of the current order for spousal maintenance. As such, the child support will increase slightly to $130 but without spousal maintenance reducing her total income to $1,620.
The applicant’s total personal expenditure is in the sum of $1,981. The applicant was not challenged as to the individual items of expenditure set out in Part G representing fixed expenditure and supplemented by Part N being discretionary or average weekly expenses.
Whilst I do not consider the applicant’s expenditure in detail, even the most cursory consideration would suggest that she is frugal with the money that she has available to her.
Putting aside the notional share of the fixed expenditures attributable to the children, of the total sum of average weekly expenses of $1,356, the children’s expenses account for $665.
The short summary is that arising from the care of the children, there is a shortfall of $535 when considering the cost of the children offset by the child support to be paid.
That deficit is likely to continue for the foreseeable future taking into account the age of the children and the period that will elapse before each of them reaches the age of 18 years.
Whilst it is perhaps a simplistic measure in the absence of actuarial evidence presented, there will be approximately eight child support years for X, 10 child support years for Y and 14 child support years for Z totalling 14 years. The cumulative total of child support years for the three children is about 31 years.
The total costs of the children, likely to be borne by the applicant with only modest contribution by reason of Child Support Assessment payable by the respondent, is substantial.
The respondent considers that there should be a five per cent adjustment in favour of the applicant. The applicant seeks an adjustment of 10 per cent and whilst I appreciate that her starting point was an apportionment of 40 per cent to represent her contribution, I consider that a 7.5 per cent adjustment equates to $1,366,531 with the resultant differential of $273,304 is all the circumstances just and equitable.
Accordingly, I propose to adjust the property of the parties 57.5/42.5 in favour of the respondent.
CONCLUSION
The total pool available for distribution is in the sum of $1,833,049. The applicant is entitled to 42.5 per cent or $779,045. The applicant retains the following property:

The applicant’s sole bank accounts

$3,389

Bank D joint accounts

$242,880

Household effects and motor vehicle

$12,935

TOTAL

$259,204

Given the applicant is entitled to $779,045 (less the property retained by her) she is to receive a settlement sum of $519,841.
It is not unreasonable that the respondent should have an extended time to pay the settlement sum before consideration is given to enforcement.
It is a matter for the respondent as to how he chooses to obtain the settlement sum. He may decide to sell his interest in E1 Pty Ltd to his father from which the further settlement sum can be paid. Even on the respondent’s case, it was contemplated by him that there would be a payment to the applicant of $474,000.
When the respondent gives the matter further consideration, there may be other opportunities available to him. He may be able to source some or all of the settlement sum from his family or he may take advantage of the Suburb C property being retained freehold and use it as mortgage security for a loan.
In any event, it is not unreasonable to give the respondent 60 days to source the funds necessary to pay the settlement sum.
There is broad agreement that if the settlement sum cannot be paid, then the Suburb C property may well need to be sold if a default occurs.
SUPERANNUATION
Exhibit “6” is a letter from the trustees of the super fund advising that there is no objection to the proposed splitting order being made.
The parties are in agreement as to a superannuation split in the base amount of $41,769 from the splittable entitlement of the respondent in his Superannuation Fund 1 fund.
I make orders as appear at the commencement of these reasons.

I certify that the preceding four hundred and twelve (412) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.
Associate:
Dated: 21 March 2025

File number(s):	ADC 3570 of 2020
Judgment of:	BERMAN J
Date of judgment:	21 March 2025
Catchwords:	FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Where the children live with the mother and spend day time only with the father – Where the father seeks time with the children each alternate weekend – Where the mother opposes overnight time – Consideration of risk – Where the father’s home is considered to be unsafe – Consideration of where time spending is to occur – Best interests – Order made for no overnight time. FAMILY LAW – PROPERTY – Where there is substantial agreement as to their property interests – contributions – where the father came in with a significant portion of the asset pool – Future needs – where the mother has the primary care of the children – Orders.
Legislation:	Evidence Act 1995 (Cth) s 97. Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61D, 69ZN, 69ZT, 75, 79, 90XT. Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001. Federal Circuit and Family Court of Australia (Family Law) Rules 2012 r 12.06 Planning, Development and Infrastructure Act 2016 (SA) ss 42, 156. Hague Convention on the Civil Aspects of International Child Abduction.
Cases cited:	Bevan & Bevan (2013) FLC 93-545, Chorn & Hopkins (2004) FLC 93-204, Clifford & Lodge [2000] FamCA 1666, Finlayson v Finlayson and Gillam (2002) FLC 93-121, G&G [2000] FamCA 793, Kowaliw & Kowaliw (1981) FLC 91-092, Omacini & Omacini (2005) FLC 93-218, Pierce & Pierce [1998] FamCA 74, Rosati v Rosati (1998) FLC 92-804, Stanford & Stanford (2012) 247 CLR 108, Vass & Vass (2015) 53 Fam LR 373.
Division:	Division 1 First Instance
Number of paragraphs:	412
Date of hearing:	17 – 21 February 2025
Place:	Adelaide
Counsel for the Applicant:	Mr K. Tredrea
Solicitor for the Applicant:	Eastern Legal
Counsel for the Respondent:	Mr D. Praolini
Solicitor for the Respondent:	Howe Jenkin

ADC 3570 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS PUTNAM Applicant
AND:	MR PUTNAM Respondent

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	21 MARCH 2025

DESCRIPTION	OWNERSHIP	VALUE
Suburb C property	Respondent	$650,000
Respondent’s interest in business entities (including Suburb S property)	Respondent	$734,800
Bank Accounts	Respondent	$435
Bank Accounts	Applicant	$3,389
Joint Bank D Accounts	Joint	$242,880
Furniture & effects	Respondent	$59,610
Furniture & effects	Applicant	$12,935
Motor Vehicle 1 motor vehicle	Respondent	$10,000
TOTAL		$1,714,049

The applicant’s sole bank accounts	$3,389
Bank D joint accounts	$242,880
Household effects and motor vehicle	$12,935
TOTAL	$259,204