Reynolds & Stokes - [2022] FedCFamC1F 901

Federal Circuit and Family Court of Australia
(DIVISION 1)
Reynolds & Stokes [2022] FedCFamC1F 901

File number(s): MLC 5473 of 2019

Judgment of: HARTNETT J

Date of judgment: 17 November 2022

Catchwords:
FAMILY LAW – BIAS – Apprehended – Where the husband alleges bias at hearing of further evidence after judgment reserved and subsequent leave granted to adduce further evidence – Where there was no proper basis to the application – Application for recusal dismissed.

FAMILY LAW – CHILDREN – Parental responsibility – Where each party seeks sole parental responsibility – Where there are allegations of family violence – Where the wife seeks for the children to live with her in Suburb H – Where the husband seeks for the children to live with him in Suburb F – Where the husband is involved in a child’s sporting team and seeks the children remain in their same school and sporting teams – Where the parties are unable to communicate effectively – Sole parental responsibility to the wife – Where permission for the wife to change the school of the children – Where the children live with the wife and spend substantial and significant time with the husband – Where a moratorium on the husband’s time with the children.

FAMILY LAW – PROPERTY – Division of property interests – Where the wife seeks a payment equivalent to 55% of non-superannuation assets – Where the husband seeks to retain the former matrimonial home – Where the husband proposes to refinance a mortgage under his name – Where both parties have contributed to the asset pool – Where both parties have worked throughout the relationship – Where contributions are equal – Where s 75(2) matters favour the wife – Where asset pool is small.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61DA, 68Q, 69ZW, 75, 79, 90SM, 102NA, 117

Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) r 10.17

United Nations Convention on the Rights of the Child art 12(1)

Cases cited:
Bell & Nahos [2016] FamCAFC 244

Bevan & Bevan (2013) FLC 93-545

Blinko & Blinko [2015] FamCAFC 146

Dickons & Dickons (2012) 50 Fam LR 244

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Johnson v Johnson (2000) 201 CLR 488

Mallet v Mallet (1984) 156 CLR 605

Mulvany v Lane (2009) FLC 93-404

Russell & Close [1993] FamCA 62

Stanford v Stanford (2012) 247 CLR 108

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 1 First Instance

Number of paragraphs: 243

Date of hearing: 23-25 May 2022, 4-5 July 2022, 19 October 2022,
2 November 2022

Place: Melbourne

Counsel for the Applicant: Mr Robinson

Solicitor for the Applicant (on 23-25 May; 4-5 July 2022): Beswick Foulkes Family Law

The Applicant
(on 19 October 2022): Litigant in person

Solicitor for the Applicant (on 2 November 2022): MMH Lawyers

Counsel for the Respondent: Mr Carne

Solicitor for the Respondent: Leslie Family Law

Counsel for the Independent Children's Lawyer: Mr Glezakos

Solicitor for the Independent Children's Lawyer: VM Family Lawyers
ORDERS

MLC 5473 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR REYNOLDS

Applicant

AND:
MS STOKES

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HARTNETT J

DATE OF ORDER:

17 November 2022

THE COURT ORDERS THAT:
Parenting

All previous orders be discharged.
The Respondent wife (“the wife”) have sole parental responsibility for the children X born 2011 (“X”) and Y born 2014 (“Y”).
Notwithstanding Order 4 herein, the wife is permitted to engage the services of, without consultation with the Applicant husband (“the husband”), a counsellor or psychologist in her local geographical area, to assist the children in dealing with the parents separation and high conflict relationship since such separation.
In exercising parental responsibility for the children, the wife shall:
(a)advise the husband via the communication app utilised by them in accordance with these orders, of any decision she intends to make;
(b)seek the husband’s written response and input in relation to such decision;
(c)consider any response received by the husband with regard to the best interests of the children (or either of them); and
(d)advise the husband as soon as reasonably practicable of her decision.
The children live with the wife.
For the period up until the day following the last day of school in December 2022 (“contact moratorium period”), the husband, his servants and/or agents be and are hereby restrained from spending time with or communicating with X and Y by any means, including mail, telephone, email, text message or social media.
During the contact moratorium period:
(a)in the event X and/or Y contact or communicate with the husband, the husband shall not respond to such contact or communication and shall report such contact or communication to the wife via email within 24 hours of him receiving it;
(b)in the event X and/or Y attend upon the husband at his home or any other location save as explicitly outlined in these Orders, the husband shall report same to the wife and shall do all things necessary to facilitate X and/or Y’s return to the wife;
(c)the husband shall be at liberty to contact the children’s school in a manner approved by the school but not to include the husband’s personal attendance at the school to obtain updates in relation to their progress, and the husband shall be at liberty to provide a copy of these parenting orders to the children’s school as authority for same;
(d)the husband shall otherwise be restrained from contacting or personally attending upon X and Y’s school.
Upon the expiration of the contact moratorium period, Orders 6 and 7 herein be discharged and X and Y spend time with the husband as follows:
(a)during school term, each alternate weekend from the conclusion of school on Friday (or 3:30pm) until the commencement of school (or 9:00am) on Tuesday;
(b)for one week of each school term holiday period, commencing on the first Saturday after term ends at 9:00am and concluding at 5 pm on the middle Saturday;
(c)during each long summer holiday period:
(i)commencing on the first Saturday after term ends at 9:00am, until 9:00am on the following Saturday; and
(ii)from 9:00am on 2 January until 9:00am on 16 January; and
(d)as otherwise agreed between the parties in writing.
Irrespective of any other Order herein, the children spend time with their parents as follows:
(a)with the husband for Christmas:
(i)in even numbered years from 12:00 noon on 23 December until 12:00 noon on 25 December;
(ii)in odd numbered years from 12:00 noon on 25 December until 12:00 noon on 27 December;
(b)with the wife for Christmas:
(i)in even numbered years from 12:00 noon on 25 December until 12:00 noon on 27 December;
(ii)in odd numbered years from 12:00 noon on 23 December until 12:00 noon on 25 December;
(c)on X and Y’s birthdays, with the parent they are not otherwise spending time with:
(i)if a school day, from 3:30pm until 6:30pm; and
(ii)if a non-school day, from 10:00am until 3:00pm.
The COURT ORDERS, BY CONSENT, THat:
Irrespective of any other Order herein, the children spend time with their parents:
(a)with the wife on Mother’s Day weekend from conclusion of school on Friday until commencement of school on Monday; and
(b)with the husband on Father’s Day weekend from the conclusion of school on Friday until the commencement of school Monday.
Each of the parties facilitate the children, or either of them, communicating with the other parent at reasonable times and for reasonable durations by telephone or other electronics means as requested by the children, save for in the contact moratorium period.
Changeovers not occurring at the children’s school/s, shall occur at the McDonald’s Restaurant in Suburb B unless otherwise agreed by the parents in writing.
THE COURT FURTHER ORDERS THAT:
The parties shall forthwith do all things necessary to cause X and Y to be enrolled to commence at C School at the commencement of the first school term in 2023.
In the event the husband refuses to comply with the previous Order, the wife shall have liberty to enrol X and Y in C School without the husband’s signature, and the wife shall be at liberty to provide the school with a copy of these orders as authority for same.
THE COURT FURTHER ORDERS, BY CONSENT, THAT:
The parents shall communicate with one another via the AppClose mobile parenting application or such other application as agreed in writing, such communication to be only in relation to parenting and care arrangements for the children.
Each parent shall keep the other informed at all times of their residential address, telephone number and email address, and advise any change thereto within 48 hours of such change.
Each party shall advise the other of any serious illness or injury suffered by the children, or either of them, whilst in their care as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
Notwithstanding Order 2, the parents be, and are hereby, authorised to communicate with any medical or allied practitioner upon whom the children, or either of them, attend to obtain information regarding the children, or either of them.
Notwithstanding Order 2, the parents be, and are hereby, authorised to be enrolled on any school communication application (such as Compass) and receive at their expense all school reports, school photograph order forms and newsletters.
The parents by themselves, their servants and/or agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other, or their family; and
(b)discussing these, or any other, proceedings between the parents
to or in the presence or hearing of the children, or either of them and/or from permitting any other person to do so.
The parents by themselves, their servants and/or their agents be and are hereby restrained by injunction from requesting the children, or either of them, to relay message/s to the other parent.
The parents be, and are hereby, restrained by injunction from posting any posts on any form of social media which denigrate, criticises or belittles the other parent or their family.
The Independent Children’s Lawyer be requested to explain the terms of these orders to the children, and thereafter their appointment be discharged.
the Court Further orders that:
In the event they have not already done so, the parties within three months hereof each attend and complete a Post Separation Parenting Course and provide a certificate of completion ( and if one has already been completed, than that certificate of completion) to the other parent and the ICL as soon as practicable.
The husband attend and complete a Men’s Behavioural Change Program within 4 months of this date and provide a certificate of attendance and completion to the solicitor for the wife within 21 days of such completion.
Both parties do all things necessary to apply for and maintain current passports for X and Y, including by renewing the children’s passports upon their expiry at the equal expense of the parties, and the passports shall be ordinarily held by the wife.
In the event the husband does not comply with the preceding Order, the wife shall be authorised and permitted to apply for and receive an Australian passport for the children X born 2011 (“X”) and Y born 2014 (“Y”) without first obtaining the written consent of the husband.
The parties be permitted to travel internationally and domestically with X and Y during X and Y’s Court-Ordered time with them, on the following basis ONLY:
(a)for international travel of up to 14 consecutive nights, upon the giving of 70 days’ written notice to the non-travelling parent, including:
(i)proof of the purchase of all airfares;
(ii)a detailed itinerary of the proposed travel dates, destinations and contact details for all stages of the travel; and
(iii)confirmation that the non-travelling parent may contact X and Y electronically no less than once every four days of travel;
(b)for domestic travel, upon the giving of 28 days’ written notice to the non-travelling parent, including:
(i)proof of the purchase of all airfares, if any;
(ii)a detailed itinerary of the proposed travel dates, destinations and contact details for all stages of the travel; and
(iii)confirmation that the non-travelling parent may contact X and Y electronically no less than once every four days of travel.
The wife forthwith be permitted to bring the children into contact and have communication with her partner Mr D unreservedly and Mr D be permitted to live with the children.
Pursuant to s 68Q of the Family Law Act 1975 (Cth), to the extent to which Order 29 is inconsistent with any Intervention Order made in proceedings N11788696, and/or any other current Intervention Order obtained by the husband, Order 29 shall prevail.
Both parties and the wife’s partner Mr D shall be at liberty to provide a copy of these orders and reasons for judgment to:
(a)the Magistrates’ Court of Victoria;
(b)Victoria Police; and
(c)the Department of Fairness, Families and Housing.
The husband is not permitted to assist the children in any of their sporting endeavours and nor is he to be involved in their training in respect of those sporting endeavours for those periods the children are in the wife’s care.
The parents be at liberty to post on social media images of themselves and/or the children, or either of them on private settings, where such images are not available to the public.
Property
Within 60 days of the date of these orders, the husband make payment to the wife in the sum of $123,640 (“the payment”).
In the event the husband fails to make the payment to the wife in accordance with the previous order, then within 14 days of such default the husband shall do all things and sign all documents necessary to effect a sale of the property at E Street, Suburb F in the State of Victoria (“the FMH”), and the following shall apply:
(a)the property shall be listed for sale with such real estate agent as agreed between the parties and failing agreement within 14 days, by an agent nominated by the president of the Real Estate Institute of Victoria at the request of the parties or either of them;
(b)the sale price and mode of sale to be agreed between the parties and failing agreement, as nominated by the real estate agent;
(c)the Husband is to co-operate with the real estate agent in relation to the sale of the property, including by making the keys available, allowing inspections at all times reasonably requested and ensuring the property is clean, neat and in good order at the time of inspection by any prospective buyer;
(d)the proceeds of sale of the property be distributed as follows:
(i)firstly, to pay the costs and commissions of the sale;
(ii)secondly, to discharge any mortgage and any other bank loan secured over the property;
(iii)thirdly, to pay any amount outstanding to the wife from the payment to be made to her by the husband in accordance with these orders together with any and all legal costs incurred by the wife in respect of the sale and interest on the payment or any part of the payment outstanding to be calculated in accordance with rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); and
(iv)fourthly, the balance remaining to the husband.
Pending the sale of the property:
(a)the husband shall retain sole right to occupy the property and during such occupation the husband shall be responsible for all past, present and future mortgage payments, rates and outgoings on the property as they fall due up to and including the settlement date;
(b)the parties hold their respective interest in the property upon trust pursuant to these Orders; and
(c)neither party shall encumber the property without the consent in writing of the other party and/or of any mortgagee.
Unless otherwise specified in these orders:
(a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;
(b)insurance policies remain the sole property of the owner/beneficiary named therein; and
(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
Within 21 days of her receipt of the payment as provided for in Order 34 herein the wife comply with Order 5 of the consent orders made 18 November 2019, and Order 10 of the Orders made 13 August 2021.
Each party shall bear their own costs.
There is liberty to apply with respect to the operation of these orders in the event of a sale of the FMH.
Otherwise, all extant applications are dismissed and the matter removed from the list.

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

For over three years the parties have been involved in litigation in the Court primarily over with whom the parties’ two children should live and what time the parties’ two children should spend with the other parent. Additionally, property orders have been sought by each of the parties that have mainly been directed to what sum, if any, the applicant husband (“the husband”) should pay to the respondent wife (“the wife”) to effect a just and equitable property settlement in circumstances where he would retain the former matrimonial home situated at and known as E Street, Suburb F in the State of Victoria (“the FMH”). In the absence of any payment made to the wife by the husband, the wife has sought orders that the FMH be sold and the net sale proceeds divided between the parties to provide a payment to the wife.
On 28 January 2022, the husband filed a Further Amended Initiating Application seeking orders that he be granted sole parental responsibility for the parties two children, X born (“X”), and Y born 2014 (“Y”) (collectively “the children”). He further sought orders that the children live with him and spend time with the wife including each alternate week, from the conclusion of school Thursday until the commencement of school Monday; for one week during the school term holidays; for designated weeks in the long summer school holidays; for the children to remain at their current primary school; and for the children to continue with their sporting arrangements, and any other extra-curricular activities as arranged by the husband, all of which to be were in the Suburb F area and close to the husband’s home. The husband sought property orders that he retain the FMH and make no payment in respect thereto to the wife; that the wife withdraw the caveat lodged by her over the FMH; and that the mortgage secured by the property be refinanced into his sole name.

On 1 March 2022, the wife filed a Further Amended Response to Initiating Application seeking that she be granted sole parental responsibility for the children; that the children live with her and spend time with the husband during the school term in a three-weekly cycle, on the first weekend from the conclusion of school on Friday (or 3.30pm) until 6.00pm Sunday and on the third weekend from the conclusion of school on Friday (or 3.30pm) until 6.00pm Sunday; one half of the school holiday period; half of the long summer holidays; and on special occasions. The wife further sought the children be enrolled at C School at the commencement of the next school term, subject to the children’s wishes; that the children continue to play sport with G Sporting Club with the husband to be responsible for delivering the children to, and collecting them from their one session of mid-week sport training each week with changeover to occur at Suburb B McDonald’s. The wife sought that she retain the children’s passports and that the parties be permitted to travel internationally and domestically with the children during their designated time. In relation to property, the wife sought an equal division of the parties’ non-superannuation assets, including a sale of the FMH as an alternative order to a payment.
Neither party sought a splitting order of their superannuation interests, or any adjustment to their other property interests on account of their respective superannuation balances.
By the commencement of the hearing in May 2022, the orders sought by each party had varied slightly and were set out in respective case outlines. Those slight alterations are relevantly set out elsewhere within these reasons or appear as consent orders at the commencement of the reasons. What is of note is that by the filing of their material as referred to in [2] and [3] above, sole parental responsibility was sought by each of the parties.
At the conclusion of the trial on 5 July 2022, the Independent Children’s Lawyer (“ICL”) proposed final parenting orders that supported those orders as sought by the wife for the most part. In particular, the ICL sought orders for the wife to have sole parental responsibility for the children, for the children to live with her, and for the children to attend the primary school of the wife’s choice in her local area, being the Suburb H area. The ICL also sought in submissions made at the conclusion of the hearing on 2 November 2022, relevantly, that the children should receive some therapeutic intervention to assist them in dealing with their parents conflict, and that the parent having sole parental responsibility, if such an order was made, should select such therapist.
MATERIAL RELIED UPON
The husband relied on the following material:
a Further Amended Initiating Application filed 28 January 2022;
his trial affidavit filed 28 January 2022;
his affidavits filed 11 March 2022, 5 October 2022, 25 October 2022;
his Financial Statement filed 27 January 2022; and
a Case Outline filed 1 April 2022.
The wife relied on the following material:
a Further Amended Response to Initiating Application filed 1 March 2022;
a Further Amended Response to Initiating Application filed 26 October 2022;
her trial affidavit filed 1 March 2022;
her further affidavit filed 9 September 2022;
her Case Outline filed 19 May 2022;
her Financial Statement filed 1 March 2022;
affidavit of Mr D, the wife’s partner, filed 26 October 2022; and
affidavit of Ms J (valuer).
The ICL relied upon a Case Outline filed 31 March 2022. Both the parties and the ICL relied upon the Family Report of Ms K, the Court Child Expert (“the single expert”) dated 20 January 2022. The ICL and husband relied upon the Family Report of Ms L (“Ms L”) dated 28 January 2020.
The ICL did not file any additional documents, but relied upon:
a s 69ZW Response by the Department of Families, Fairness and Housing (“DFFH”) dated 31 October 2022; and
the evidence given by Ms M (“Ms M”), N School Wellbeing Officer, pursuant to subpoena issued to Ms M.
Statements of fact in these reasons are findings on fact on the balance of probabilities.[1]
[1] Evidence Act 1995 (Cth) s 140.
It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. However, every piece of evidence relied upon by the parties has been read and carefully considered by me.[2]
[2] Bell & Nahos [2016] FamCAFC 244 at [28]; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62].
Credit of the parties
The wife was a timid witness, who at times became completely overwhelmed and needed time to recover in order to provide an answer to a question asked of her. She appeared fearful of the husband and controlled by him. Nevertheless, she was determined to pursue the proceeding to advance the best interests of the children, as she perceived those interests. She wanted the husband’s abusive behaviours to cease, and for the parties to co-parent the children in a supportive environment where the husband refrained from denigration of her to the children, and to her, and where he did not try to alienate the children from her.
I found the wife to be a reasonable and credible witness who made concessions where appropriate, and who had been prepared to consider an array of options over time.
The husband appeared at trial as self-righteous, aggressive at times, dismissive and highly critical of the wife’s capacity as a mother following separation, albeit on his evidence, she “was a wonderful mother” prior to the parties separation.
The husband continues to consider his own position as the only position. He conceded little, including the relevancy of important factual matters, and had little insight into the promotion of the best interests of the children. He remains incapable of seeing, at times, the catastrophically adverse impact his behaviour has had on the wife and children.
I found the husband to be an unreliable witness in some parts of his evidence.
I accept the evidence given by Mr D (“Mr D”), the wife’s partner, who presented as a straightforward witness who made appropriate concessions. Mr D was clearly dismayed to be caught up in the husband’s manipulation of the children and endless preoccupation with what is happening in the wife’s household. The husband’s wish to control the wife has extended now to Mr D being excluded from the wife’s household and from the lives of the children as is described hereafter at [68].
The hearing
The matter was heard over its initial listing days commencing 23 May 2022 and concluding 25 May 2022 and thereafter for a further two days of hearing being 4-5 July 2022. On 5 July 2022 judgment was reserved. The wife then filed an Application in a Proceeding on 9 September 2022 seeking leave to adduce further evidence. That application was listed to 19 October 2022. On 19 October 2022, the husband and ICL also sought to adduce further evidence. Orders were made allowing for that to occur in respect of each of the parties and the ICL.
On 2 November 2022, further evidence was adduced by the parties.
Application for disqualification
Before proceeding to hear further evidence on 2 November 2022, the husband, as a litigant in person, made an oral application that I disqualify myself from further hearing the matter. Such application was not made through his counsel, who appeared pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) on that date. I note that the same counsel had represented the husband throughout. On that date, I dismissed the husband’s application for recusal and subsequently, after seeking the view of all three counsel at the bar table, and as agreed to by them, indicated that I would incorporate my reasons in respect of the disqualification application, in the reasons provided for the making of orders in the substantive proceedings.
The husband submitted that there were a number of matters which went to his application. The application was made in respect of matters which he said occurred on days four and five of the trial, together with further matters which occurred on 19 October 2022. I note that throughout the five days of trial, the husband was legally represented by his counsel. No application for disqualification was made at any time, nor was any application made when the husband appeared as a litigant in person on 19 October 2022.
The matters about which complaint was made by the husband, as essentially articulated by him, and with no transcript or other suitably particularised reference, were as follows:

(a) the s 102NA of the Act Order made by me on the 19 October 2022 was unfair as it prevented the husband from having his evidence cross-examined and it would require a 12 week waiting period for Legal Aid which restricted the husband’s time to seek Legal Aid;
(b)        on 19 October 2022, the Court was advised that the husband had sought an Intervention Order (“IVO”) on behalf of the children against Mr D, the wife’s partner. The husband asserted that I told him he had no right to apply for those orders and afforded him no opportunity to express himself before those orders were put in place. Further that during the five day trial I had no issue with the fact that the wife had sought an IVO against the husband and did not give the husband an opportunity to represent himself until some seven months later before the husband actually got an opportunity to speak to a Judge;
(c)        on 19 October 2022, Ms M (“Ms M”), the children’s Wellbeing Officer at N School, was called, under direction from the Court Registrar the husband was told Ms M would appear on the day and was subpoenaed accordingly. The husband was berated by me for calling her as a witness and was told this was the ICL’s responsibility. When the husband told me that the ICL did not call her which is why he called her, I then included as a clause in the orders that the husband would not have a right to call Ms M from any point onwards;
(d)        on 19 October 2022, I stated “we all know that DHHS false reports and false claims” and indicated that I thought the husband had put these false claims and reports to DHHS despite the children having spoken to a Doctor, Victoria Police and Wellbeing Officer who have an obligation to report any domestic abuse or family issues to those authorities;
(e)        on 19 October 2022, I dismissed that both children had spoken to their lawyer and told their lawyer that Mr D had attempted to assault and head butt the husband, and that the wife and Mr D were both swearing and filming the husband. I shook my head and rolled my eyes with a lack of concern for the children;
(f)        on 19 October 2022, when the ICL raised that X would be scared if he were to see Mr D, again I dismissed this rolling my eyes and shaking my head;
(g)        on 19 October 2022, when the ICL expressed X’s self-harming in the wife’s care and said it was due to what happened at the school and partly what happened with everything being lost around Suburb F, I turned this into an issue with the husband, “saying he was at fault, that we all knew this would happen at the trial, the [husband] has not agreed to the move and is simply digging his heels in which is why the children were self-harming”. I dismissed any concerns whatsoever the children were self-harming in the presence of the wife whilst the children had never self-harmed in the husband’s presence;
(h)        during day four and five of the trial, as the wife was answering questions directed by the husband’s legal team, I stepped in and answered those questions and directed her towards other ways, leading her into ways of answering in ways other than her own;

when questioned why the wife had no friends in the area and why the wife had moved over the years, before the wife could respond I gave those answers that this was due to COVID lockdown restrictions. When it was brought to the point that this was approximately six to nine months over the four years, I continued to push the COVID answer and refused to let the wife give any clear evidence as to why she had not made any reference to why the children had not made any friends rather than “I’ll try better”;

(j)         when asked why the wife had not provided any financial paperwork over the four years the wife’s response was that she “had it all in a folder in the car”. I told the wife she could bring that folder in and enter that evidence in the middle of a trial. This evidence was provided but had no substance in it whatsoever, yet during days one to three of the trial the husband was required to contact his accountants and bring up to date financial evidence to be put into place and expected to supply everything;
(k)        when the wife was questioned over acts of domestic violence she was shown text messages of her abuse towards the husband, I dismissed all this by saying “she said fuck a few times move on” and did not allow the text messages to be entered into evidence. Yet on the first three days of the trial the wife’s legal counsel produced a large amount of text messages that the husband and his legal team had not seen and was allowed to be cross-examined upon this by her barrister and have this entered into evidence. I claimed the husband had created domestic violence by abusive language and dismissed the wife’s domestic violence in her text messages;
(l)         when the wife was questioned over her physical abuse, specifically smashing holes in the wall and slamming shower screens, I dismissed this saying “she said she did not do it move on”;
(m)       when Ms L, the Family Therapist expressed concern over the wife’s mental ability to cope with the boys if they were forced to move against their wishes, I dismissed this saying “the [wife] had plenty of help with her support and if the [husband] gets on board it should not be an issue”;
(n)        I dismissed Ms L’s report recommendations that the children should not move schools or sports, despite it being clear both children did not want to do this;
(o)        the second Family Therapist had four recommendations, three of those four were focused on the children staying at the school and in sport, the fourth being that the children relocate only if the wife was found to be at risk of family violence. Neither therapist indicated evidence of family violence but that the wife’s lived experience is that she has suffered family violence. When the Family Therapist was asked whether she would still recommend the wife move closer to the children’s school in Suburb F if Her Honour was fit to make this order, I interjected and told the wife not to answer as “we all know that I am not making that ruling”;
(p)        in the middle of a five day trial I made a change to Boymal J’s 2020 orders as recommended by Ms L, removing the order that the children be taken to all sport activities including training and games. The husband claimed these orders were made not in the children’s best interests but simply in the wife’s interests;
(q)        the wife has intentionally caused acts of perjury by signed affidavits and sworn testimony whilst sitting in the stand, which has been brought to the court’s attention. These acts have continued to be dismissed and have been allowed to be continued by myself. The husband claimed the wife has continued to lie about her living arrangements and the stability of where the children are going to live and attend school which is the foundation of the dispute;
(r)        the change of schools to Suburb H and the constant relocation of homes were brought to the Court, even though the evidence was clear in the husband’s affidavits tendered to the Court that the wife denied this had happened and I dismissed this;
(s)        I dismissed concerns and provided little weight that the wife lied in the Suburb P Magistrates’ Court transcript, which related to child abuse in the way the wife was filming and interrogating the children;
(t)         when it was brought to the Court’s attention that Y had returned to the husband’s care bleeding from his bum and the husband had taken him to see a doctor, I said to the husband “do you think it was wrong that I put him under that pressure to see a doctor?” and the husband should have just taken the answer of what the wife had given;
(u)        I found the children’s absences, specifically X having 26 days off school and Y having 16 days off kindergarten, in the wife’s care with no sickness or medical certificates, to be not harmful to the children’s education and brushed aside;

when X was assaulted by the maternal grandmother this was brought to the indication of the Court, along with photo evidence of the bad bruising to his butt cheek and leg. This was dismissed by me again with the shaking of my head with zero concern for the safety of the boys in the wife’s care;

(w) when the husband explained in the witness box he was fighting for his children’s wishes to maintain the stability, I told the husband that far too much weight has been put on what the children want and that this is only one small part of evidence at place; and

under United Nations Convention on the Rights of the Child art 12(1), the children’s rights and wants have been dismissed constantly since this matter has entered Court. I said to the husband this is straightforward, the children would move in with the wife and change schools and sports and there is plenty of good ones down at Q Region.

Whilst the husband relied on no authority it was clear, and as confirmed by me with all counsel, that the husband made his application on the basis that there was an apprehension of bias, not actual bias.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the joint judgment of the majority of the High Court contains, relevantly, the following:
19Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
20This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
21It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.
22The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.
23Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence.
24In Webb v The Queen, a case concerning a juror, Deane J identified four distinct, though overlapping, categories of case involving disqualification by reason of the appearance of bias: interest; conduct; association; and extraneous information. It is not necessary to decide upon the comprehensiveness of such categorisation, and its utility may depend upon the context in which it is employed. However, it provides a convenient frame of reference. (footnotes excluded)

The High Court also considered the issue of bias in Johnson v Johnson (2000) 201 CLR 488. There the High Court dealt with and ultimately dismissed an appeal against a decision of the Full Court of this Court, which in turn dismissed an appeal against a refusal by a judge of the Family Court of Western Australia to disqualify himself. The High Court said at 492-494:
11…It is not contended that Anderson J was affected by actual bias. It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
12 That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision". The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".
13 Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case". Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
14 There was argument in this Court, prompted by Anderson J's explanation of what he intended to communicate, about whether the effect of a statement that might indicate prejudgment can be removed by a later statement which withdraws or qualifies it. Clearly, in some cases it can. So much has been expressly acknowledged in the cases. No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation. (footnotes excluded)
Consideration
The orders made on 19 October 2022 were as follows:
1.The parties be granted leave to re-open the evidence subject to the judgement reserved on 5 July 2022.
2.The matter be listed on 2 November 2022 at 10.00am before Justice Hartnett for final hearing, with an estimated hearing time of one day.
3.The requirements of a s 102NA(2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring on the adjourned date.
4.The Applicant and Respondent be granted leave to rely upon their respective affidavits filed in support of the Applicant’s Application in a Proceeding filed 9 September 2022, and the Respondent’s Response to an Application in a Proceeding filed 5 October 2022 at the final hearing.
5.The Applicant be at liberty to file the following documents by 4.00pm on 26 October 2022:
(a)       Further Amended Response to Initiating Application; and
(b)a single affidavit in relation to each further witness upon whom the Applicant intends to rely.
6.The Respondent be at liberty to file the following documents by 4.00pm on 26 October 2022:
(a)       Further Amended Initiating Application;
(b)       affidavit in support; and
(c)a single affidavit in relation to each further witness upon whom the Respondent intends to rely.
7.Save as ordered herein, the parties shall be restrained from filing and/or relying upon any further documents without leave of the Court.
8.        The costs of the parties are reserved.
9.There is leave to the Independent Children’s Lawyer to issue a subpoena filed by 4.00pm on 21 October 2022, with service to occur by 4.00pm on 25 October 2022 to:
(a)[Ms M] Wellbeing Officer at [N School], for the production of her notes and/or her attendance at Court on the adjourned date;
(b)the Principal of [N School], for the production of documents only; and
(c)Subpoena Management Unit Victoria Police, for the production of documents only.
10.Pursuant to s 69ZW of the Family Law Act 1975 (Cth), the Department of Families, Fairness and Housing (“DFFH”) provide a Report to the Court as a matter of urgency, such Report to outline:
(a)any notifications to the DFFH of suspected abuse of [X] born […] 2011 and [Y] born […] 2014 (“the children”) to whom the proceedings relate or of suspected family violence affecting the children;
(b)any assessments by the DFFH of investigations into a notification of that kind or the findings or outcomes of those investigations;
(c)any reports commissioned by the Agency in the course of investigating a notification; and
(d)in the event the DFFH have an ongoing investigation in relation to the children, any recommendations for the future arrangements of the children taking into account the orders sought by the parties in these proceedings.
11.The parties be restrained from issuing any subsequent subpoena to the DFFH seeking documents that have otherwise been produced pursuant to these orders, except with the leave of the Court.
12.At the time of the delivery of the documents to the Court the Agency is to advise the Registry Manager in writing as to whether the documents contain material that may identify a person who made a notification or contain information considered by the Agency to be sensitive and requiring consideration by the Court prior to release to the parties.
13.In the event that the documents or information identifies the person who made a notification no access to the material is allowed pending further order of the Court.
14.In the event that the documents or information do not identify a person who made a notification, the legal representatives for the parties, any self-represented party and any Independent Children’s Lawyer are authorised to inspect such material subject to the following:
(a)the material may be photocopied on the basis that all copies are to remain within the control of the legal representatives of the parties, the Independent Children’s Lawyer with such copies to be destroyed or returned to the Court at the end of the appeal period following the finalisation of the proceedings; and
(b)any use or disclosure of the information contained within the documents produced, other than use in the conduct of the case before this Court, is not permitted.
AND THE COURT NOTES THAT:
A.The information produced by the DFFH is confidential and cannot be disclosed to any other person without an order of this Court.
B.       The parties have each been advised by the Court:
i.that pursuant to those requirements, neither party may cross examine the other party personally;
ii.that pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;
iii.as to the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
iv.that a copy of these orders will be provided by the Court to Victoria Legal Aid which administers the said scheme.
These orders are relevant to some of the husband’s complaints. They do not support those complaints.
At the outset I observe that the husband was represented by experienced counsel during the five day trial. There was no criticism of my conduct of the proceeding throughout the entirety of that period, let alone an application for disqualification, nor was the issue of bias raised by the husband when he was a self-represented litigant on 19 October 2022. That is, the trial had concluded, evidence and submissions had been heard, and no application was made prior to closure.
I do not propose to place any weight on the husband’s submissions that I “rolled my eyes” and/or “shook my head”.
In respect of (a) in [23] above, I note a s 102NA of the Act Order was firstly made by the Court on 30 January 2020, well prior to the 19 October 2022, and throughout the litigation was always relevant and its prohibitions understood by the parties. On 19 October 2022, the husband sought to have that Order removed so he could personally cross-examine the wife. I indicated to him that in the circumstances of the case I would not do so, but also invited the ICL to make submissions as to that matter. Neither the ICL nor the wife sought a discharge of the s 102NA of the Act order. The ICL however, proposed in submissions, that there be a continuity of counsel representing the husband if that was possible. I responded that the husband’s former counsel, Mr Robinson, should be advised by counsel for the ICL of the re-opening of the evidence, as agreed to by all of the parties; of the further date for the hearing of such evidence; and of the husband’s inability to cross-examine the wife (because he was then a litigant in person). Discussion continued in respect of an enquiry being made by counsel for the ICL as to whether Mr Robinson would be available and willing to represent the husband further, on the basis of a Victoria Legal Aid grant being made. Thereafter the Court advised the parties that my chambers would approach Victoria Legal Aid to request an urgent grant of aid be provided for the limited purpose of cross-examination of the wife at the further evidence hearing, and that such correspondence would mention Mr Robinson. The Court otherwise made brief mention of the pro bono scheme. What then occurred was that Mr Robinson was engaged on a Victoria Legal Aid grant and appeared on 2 November 2022 to represent the husband. He kindly did so throughout the day.
In respect of (b) in [23] above, it is difficult to understand quite what it is the husband’s asserts in this ground, one not supported by the evidence in any event. The exchange which occurred, in respect of the husband’s obtaining of an IVO following judgment being reserved in this matter (which had as one of its consequences the inability of the wife’s partner Mr D to remain residing in the wife’s household) canvassed the following matters; the manner in which the IVO was obtained, namely ex parte; the likely delay in the other party being able to put their case before the Magistrates’ Court being a delay until March 2023; whether any criminal charges were pending – there were not; the fact at trial no complaint was made that Mr D was a risk to the children; and otherwise the Court’s ability to make an order in these circumstances pursuant to s 68Q of the Act. As to the balance of this complaint, judgment is reserved in respect of the issues raised at trial and in that process the husband was represented by experienced counsel and solicitor and was able to put before the Court those matters he wished to be placed before the Court.
In respect of (c) in [23] above, Ms M is the Wellbeing Officer at the N School. This is the school attended by the parties’ children. The husband issued a subpoena to Ms M to appear in person on the 19 October 2022, which I described as “most unfortunate” given that no evidence from Ms M was required to be given on that day, the interlocutory hearing being about whether or not there would be leave to adduce further evidence in the trial. In exchanges had before the Court, counsel for the ICL agreed that the attendance in person or otherwise of Ms M to give evidence was really an issue for the ICL and submitted further that it was necessary and appropriate for the ICL to speak to Ms M and obtain information. Thereafter, the ICL would determine whether Ms M was needed in person and/or to produce her notes for inspection by the parties. Otherwise the orders speak for themselves and there is no clause as asserted by the husband.
In respect of (d) in [23] above, the evidence does not support the claim made by the husband. Rather I noted that notifications to the Department were made by anonymous persons and were notifications, not proof, notifications often being made by the parties to the proceedings. Otherwise, the exchange which occurred in the courtroom was in the context of what further material needed to be before the Court in respect of the limited further evidence to be adduced. It was agreed that evidence would include not only the evidence of Ms M or production of her notes, but also evidence from Victoria Police and the DFFH, the latter being in the form of a s 69ZW Report if the DFFH was able to provide such report in the short time frame available to the Department. In fact the DFFH did so.
In respect of (e), (f) and (g) in [23] above, these subparagraphs concern competing allegations made by each of the parties in affidavit material, and submissions made by counsel for the ICL on 19 October 2022. Those submissions dealt with what the children allegedly told the ICL about the physical altercation between their father and Mr D on 22 July 2022; the children’s comments about their mother and Mr D including alleged arguments had between them; the children being fearful for their safety; and X’s self-harming in the wife’s care as a result of a number of possible factors. A discussion ensued between counsel for the ICL and myself about these matters, including X’s self-harming and its cause, which might include, amongst other things, leaving the Suburb F area, his friends and activities. During the course of that discussion, I indicated that the evidence at trial was that the husband did not support the children’s movement away from Suburb F; and that the wife had great difficulty coping in the face of the husband’s behaviours and manipulation of the children. I further observed that the evidence at trial was that the wife needed to be out of reach of the husband and his control so that she could properly parent the children and that the husband was ‘digging in’. These were observations made as to the concluded evidence before the Court after five days of hearing and submissions as to the evidence by each of the parties counsel. Such observations and recollections of the evidence were not disputed by counsel for the ICL.
In respect of (i) in [23] above, this subparagraph appears to refer to comments made by me, in limited context, and where the totality of the transcript should be reviewed, to counsel for the husband when cross-examining the wife as to her lack of action in securing friendships for the children in the Q Region area. My comments were, relevantly, as follows:[3]
HER HONOUR: So we keep repeating this two and a half years, three and a half years, friends, what have you done, and (1) there’s limited time, and (2) COVID has prevented that sort of socialisation for both parties. So it’s a bit hard to – you know, .. it’s not fair to put to the witness that, “You haven’t done this for these three and a half years.” Her opportunities were very limited in the COVID periods.
MR ROBINSON: In my submission, I would be negligent in my operation as a member of counsel, acting for my client, if I didn’t put that clear weakness to this .. witness whenever it arose. And for her to say to the court now, “I will work really hard on doing something I have not done for three and a half years” - - -
HER HONOUR: Yes I understand that. But we need to add COVID as well. When you’re talking about the timeframe over which this has occurred, there are months and months of COVID in two of those years, where there was no prospect.
MR ROBINSON: Possibly. Six to nine months of COVID lockdowns in that three and a half years. I agree with that.
HER HONOUR: Anyway, it’s another factor. That’s all.
[3] Transcript 25 May 2022, p.318 lines 19-23.
In respect of (j) in [23] above, on day three of the trial the wife was asked why one the children had missed five weeks of school. The wife responded that the child was sick, and further “there’s lots of reasons. I have a folder with all the absent days printed off from the compass site from the school. It’s in the car actually, that I have all the explanation.” I indicated to the wife she could bring that folder to the courtroom after the lunchtime adjournment and provide it to her counsel and the husband’s counsel.[4] Subsequently, in the cross-examination of the wife, counsel for the husband, having moved onto a different topic involving financial matters, asked the wife whether she had any proof that she had paid for expenses other than childcare. The wife responded that she had a folder of documents going to proof of her assertion. The wife conceded that such documents had not been produced to the husband. Thereafter, counsel for the husband proceeded with his cross-examination as to financial matters.[5]
[4] Transcript 25 May 2022, p.249 lines 10-26.
[5] Transcript 25 May 2022, p.255 line 36.
In respect of (k) in [23] above, the totality of the transcript as to this subject provides context, but I have found a section where in the proceedings, I made comment to the witness during cross-examination of her, as to the content of some of her emails to the husband, as follows:[6]
It’s all right. It’s all right. No. Just – go on. You've used the word “fuck” on more than one occasion, it would appear. …
At trial, the wife admitted she had sent a number of emails and text messages to the husband that were abusive but claimed that she otherwise did not use derogatory terms critical of him.[7] The wife stated that the worst thing she said to the husband, was when she found out about an affair that was continued over some years, was “go fuck bitch”.[8]
[6] Transcript 25 May 2022, p.291 lines 26-28.
[7] Transcript 25 May 2022, p.289 lines 20-29.
[8] Transcript 25 May 2022, p.289 lines 41-45.
In respect of (p) in [23] above, the husband merely asserts his disagreement with the interim orders made and further is making a reference perhaps, to his response in the negative to my question to him on day two of the trial:[9]
do you think it would save a lot of conflict in the future to not have the order of Boymal J of the 30 January in respect of spot(sic) and that you each enrol the children in whatever it is you wish to in your respective weekends?.
Order 11 of Boymal J’s orders made 30 January 2020 were suspended by me in orders made 25 May 2022. I made a further order which is set out in [63] below. This order was discussed with counsel for each of the parties before the order was made.
[9] Transcript 24 May 2022, p.128 lines13-16.

In respect of (u) in [23] above, I made the following relevant comments to the wife during her cross-examination by counsel for the husband on the topic of school and kindergarten absences:[10]
Okay, all right. Can I say, I’m not concerned if you can’t recall how many days your children missed at school last year. I would think everyone in this courtroom, if they were asked at a particular point in time if they could remember how many days their children missed school last year, might have some difficulty. So just try and relax. We will take a break?---Sorry.
Just try and relax and just answer the question truthfully. If you don’t know, just say you don’t know?---Okay.
[10] Transcript 25 May 2022, p.250 lines 32-44.
In respect of (v) in [23] above, I made the following comments:[11]
HER HONOUR: I’m not sure. What’s the relevance, Mr Robinson?
MR ROBINSON: Any suggestion that my client is responsible for bruising to a child that resulted in a notification of the Department of Human Services – in my submission, I’m entitled to ensure that that is not a conclusion drawn.
HER HONOUR: All right. Well, the witness has answered no, not the husband, no.
[11] Transcript 4 July 2022, p.365 lines 6-12.
In respect of (h), (l), (m), (n), (o), (q), (r), (s), (t), (u), (v), (w), and (x) the complaints are not related to the evidence and/or an accurate description of the evidence and/or are submissions and/or allege findings which had not been made, the reasons for judgment remaining reserved.
Additionally, there is no substance to the totality of the complaints of a type that would result in my recusing myself.
I consider that an objective view of the evidence would not lead a fair-minded lay observer, properly advised, to form the view that there was implied bias in any of my remarks during the trial, and further hearings, or in the manner of conduct of the proceeding.
In my view, the totality of the circumstances before me fell well short of justifying my recusal.
Background
The husband was born in 1977 and was 44 years at trial. The husband is self-employed and runs a business known as R Company. The husband resides in Suburb F in the FMH. He has a girlfriend with whom he does not reside.
The wife was born in 1982 and was 40 years at trial. The wife is employed on a permanent part-time basis as a service worker at S Company. She works approximately 21-22 hours per week. The wife is residing temporarily in Suburb T in the home of her sister and in the company of her sister, mother and mother’s partner. The wife is in a committed relationship with Mr D.
The parties commenced a relationship in November or December 2006 and commenced cohabitation in 2007. In 2016, the parties married following the birth of the two children of the marriage, X aged 11 years at trial, and Y aged eight years at trial. The parties separated in or about October 2018.
In October 2018, the husband travelled without the wife to Country U (“Country U”) for a holiday. It was the wife’s evidence that while the husband was in Country U, the parties separated. The husband asserted they had already ended their marriage before he left for Country U. In any event, the parties’ marriage was in difficulty around this time with the parties attending couples counselling and the husband acknowledging an affair and his sending of lewd texts to other women, including the mother of a boy in one of the children’s sporting teams. The wife determined that she and the children would leave the FMH whilst the husband was in Country U, and take up residence in Suburb V in the home of the maternal grandmother. The wife needed her mother’s support. Suburb V is approximately 75 kilometres from the FMH.
Upon the husband’s return from Country U, the children commenced to spend time with the husband on a regular basis and as agreed to by the wife.
In January 2019, the wife and children returned to Suburb F, as desired by the husband, and commenced to reside in rental accommodation as obtained by the wife. The wife’s evidence as to her return to the Suburb F area at that time was that she did so to try and make things work for the children’s sake.
In early 2019, the parties reached an agreement regarding the children’s ongoing time with the husband, which included significant overnight time each week.
In early 2019, however, the wife had cause to obtain an Interim IVO against the husband naming the wife and the children as protected persons. The need for such an order was the husband’s harassment of the wife in the form, in particular, of denigrating and abusive text messages.
On 21 May 2019, the husband issued proceedings in the then Federal Circuit Court of Australia (now Division 2 of the Federal Circuit and Family Court of Australia). At this time, the children were spending nine nights with the wife and five nights with the husband in each fortnightly cycle.
On 5 July 2019, the wife and children returned to Suburb V to the maternal grandmother’s home. The wife could not cope with the controlling behaviours of the husband when living in close proximity to him, nor could she cope with his extreme verbal abuse of her. The husband had also made a protective notification to the DHHS (as it then was) about the care of the children when with the wife and maternal grandmother. Such notification resulted in a case closure at intake phase without alteration of the children’s care arrangements.
On 12 August 2019, interim orders were made by consent formalising the parties’ existing arrangements with respect to their children’s care. The orders, relevantly, stated that the parties have equal shared care of the children; that the children live with the wife and spend time with the husband during the school term from the end of school each Wednesday until the commencement of school on Thursday; each alternate weekend from the end of school Friday until the commencement of school Monday; for one week of the school term holidays and three weeks in the long summer vacation; each Tuesday and Thursday via telephone for half an hour; for the husband to be entitled to attend all extra-curricular activities; changeover to occur at the children’s primary school and at McDonald’s Suburb B; weekend time be suspended during school holidays and recommence in the following term; and for the children to continue with the extra-curricular activities in which they participated, with the wife to facilitate the children attending all training and games whilst the children were in her care.
In late 2019, the husband consented, without admissions, to a final IVO for 12 months provided the children were removed as protected persons. The wife remained the sole protected person. The wife at this time also consented to a written undertaking without admission in response to an IVO application made by the husband against her in August 2019.
In late 2019, the children’s primary school, N School, issued a 12 month Trespass Order against the husband following an incident between the husband and a staff member.
In late 2019, the wife made an application to vary the Final IVO to restore the children’s names on the IVO. The application was struck out due to the wife failing to appear.
On 30 January 2020, interim orders were made, relevantly, that the husband’s alternate weekend time with the children commence at 7.00pm with changeover to occur at Suburb B McDonalds; that both parents be restrained from taking the children or either of them to any mental health practitioner without the prior written consent of the other parent or further order; that both parents be at liberty to post on social media images of themselves and/or the children; that both parents ensure the children attend all training and games and activities, including but not limited to presentations and the like associated with teams in the Suburb F area; that both parents be at liberty to telephone the children by initiating a call to the other parent’s mobile; and that both parents be restrained from recording any conversations between the other parent and children at any changeovers or any venue at which both the parents and children were present, without consent of the other. These orders were made in the context of a trial date fixed for 20 May 2020. That is they were contemplated to operate for a limited duration of approximately three and a half months. The Order was very onerous upon the mother and required her to undergo extensive weekly travel to ensure the children continued to play sports matches in the father’s geographical location, and under his control, including his coaching control. The order extended beyond matches to including training sessions. The father consistently threatened the mother with a breach of Court orders if the mother did not have the children attend their sports training and/or games. When the mother informed the father that X had a tummy bug, and was feeling nauseous, and that she would not be able to get Y to training because she had to care for X, the father responded with:
[Y] is required at training. The Federal Court orders are very clear. If you cannot get them to training or, again, your mother or her partner are to do so. I will be notifying the court of yet another breach of these orders. Once again, your actions will be hurting the children and causing great embarrassment with [Y] having to start on the bench because your refusal to follow the orders and bring him to his sport.
On 12 October 2020, with no trial having occurred, the matter was transferred to the then Family Court of Australia (now Division 1 of the Federal Circuit and Family Court of Australia).
In October 2021, the wife and children moved to live in Suburb H, which is approximately 50 kilometres from the FMH. They moved initially into the home of the maternal grandmother, who had moved to that location, and then into rental accommodation at the wife’s expense. The wife was assisted in the obtaining of that rental accommodation by Mr D. He was a joint applicant to the tenancy, which made it possible for the wife to obtain the rental accommodation. Although he did not reside in that property initially, Mr D spent time there with the wife and children until such time as he did move into the property in the later part of this year, being at a time after the trial and closing of the evidence, when renovations were commenced to his Suburb H home. The wife, the children and Mr D had also resided together in Mr D’s home in 2020, for a period of approximately two months during a COVID lockdown. The husband contacted Mr D’s employer and complained they were breaching lockdown restrictions, and made life very difficult for the wife, who did not believe there was any breach by her. Regardless, the wife wished to avoid further harassment by, and conflict with the husband, and returned with the children to her mother’s home in Suburb V. Throughout the period following separation, until her securing of rental accommodation in Suburb H in November 2021, the wife’s need to live with her mother was for both emotional support and financial assistance. She did not work for a time immediately following separation because emotionally, she struggled. She received during this time no child support from the husband of any significance or at all.
On 23 May 2022, the trial commenced. On 25 May 2022, the matter was adjourned part-heard to July 2022. Orders were made on 25 May 2022, being interim orders, relevantly providing that:
1. Order number 11 of the orders made 30 January 2020 is suspended in its operation.
2.For the purposes of the extra-curricular activities of the children of the marriage, [X] born […] 2011, and Y born […] 2016, the children shall continue to play [sport] with the [G Sporting Club] for the reminder of the 2022 [sporting] season and the husband shall be responsible for delivering the children and collecting them from their mid-week [sports] training on Wednesday night each week, being the night the children are in the care of the husband.
…
Order 11 of Boymal J’s interim orders on 30 January 2020 was as follows:
The mother and father ensure that [X] and [Y] attend all training and games and activities, including but not limited to presentations and the like associated with teams in the [Suburb F] area.
The effect of my orders was to provide some travel respite to the wife and children, and to allow for the children to spend the time they had with their mother not constantly being subjected to the demands of the husband. The wife had, for nearly two and a half years at that time, been subject to an onerous and controlling regime. The orders made by me were supported by the evidence, including the unchallenged evidence at the time of the single expert.
In mid-2022, and following the trial, an altercation occurred between Mr D and the husband. The wife and Mr D drove to the children’s primary school to collect a suitcase packed and prepared for X’s camp, by the wife. It had in it various items purchased by the wife, and belonging to the wife, which she required the return of. Accordingly, the wife had communicated with the husband her need to collect the suitcase. The wife’s attendance at the school on this occasion, for this purpose, was arranged between the wife and the husband through text message. What occurred on this day is set out in [130] and [132]-[135] hereafter.
In mid-2022, the husband filed an IVO against Mr D listing the children as protected persons.
In mid-2022, there was made, at the Magistrates’ Court of Victoria at Suburb P, an ex parte Family Violence Interim IVO against Mr D, on the application of the husband. That order listed the children as protected persons. Included in the orders made was a prohibition on Mr D contacting or communicating with the children or either of them and/or approaching or remaining within five metres of the children or either of them. Mr D was further not to go to or remain within 200 metres of any place where the children lived or attended school. The effect of these orders was that Mr D was required to leave the rental premises he was then occupying with the wife for all those times that the children lived with their mother. This order continues in operation. Mr D is residing in his Suburb H home.
In mid-2022, the Magistrates’ Court of Victoria at Suburb P also made an ex parte Interim IVO wherein Mr D, was the named respondent, and the husband, the applicant.
In late 2022, the parties adduced further evidence in particular, evidence relating to the physical altercation that occurred in mid-2022 between the husband and Mr D.
Parenting
Legal principles
Pursuant to s 60CA of the Act:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child, contained in s 61DA of the Act, does not apply in certain circumstances. If the presumption of equal shared parental responsibility does apply, or the Court is otherwise satisfied on the evidence that it is in a child’s best interests to make an order for equal shared parental responsibility, then the Court must consider whether it is in a child’s best interests and reasonably practical to spend equal time with each parent or, if not equal time, whether it is in a child’s best interests and reasonably practical for a child to spend substantial and significant time with each parent.
Where there are reasonable grounds to believe that a parent has abused a child the subject of the proceedings or another child of that parent’s singular household at the time or engaged in ‘family violence’, as defined in s 4AB of the Act, the presumption is rebutted. Further, the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
To determine the best interests of the child, “the Court must consider the matters set out in s 60CC of the Act, subsections (2), (2A) and (3).”[12] Sections 60CC(2) and 60(2A) set out the primary considerations as follows:
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
[12] Family Law Act 1975 (Cth) s 60CC(1).
Section 60CC(2)(a) of the Act requires the Court to weigh up the benefit to the child of having a relationship with both parents. In doing so, the Court must give primary consideration as to whether there is an unacceptable risk of physical and/or psychological harm to the child in spending time with either parent. The High Court considered in M & M (1988) 166 CLR 69 what magnitude of risk would justify a Court denying a parent access to a child and held that the test was best expressed as to whether there was an unacceptable risk to the child.[13]
[13] M & M (1988) 166 CLR 69 at [25].
Upon establishing the existence of an unacceptable risk, the Court must then determine whether that risk “is able to be sufficiently managed or ameliorated”.[14]
[14] Blinko & Blinko [2015] FamCAC 146 at [83] referring to Russell & Close [1993] FamCA 62.
The Court must also consider the additional considerations under s 60CC(3) of the Act, as far as they are relevant to this proceeding.
In Mulvany & Lane (2009) FLC 93-404 it was observed by Finn, May and Thackray JJ that:
76. It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis in Original)
Whilst the additional considerations as set out in s 60CC(3) must be considered by the Court, specific reference to each and every of those considerations is unnecessary in these reasons.[15]
[15] Mulvany & Lane (2009) FLC 93-404 at [77].
Proposed parenting orders
I shall refer to the parties as the children’s father and mother (not husband and wife) for the purposes of my consideration of what parenting orders are in children’s best interests.
On 1 April 2022, the father filed a case outline where he sought relevantly sole parental responsibility of the children and for the children to reside with him. The father further sought orders that the children spend time with the mother from the conclusion of school Thursday until the commencement of school Monday; one week during the term holidays; half of the long summer holidays; and for changeover to occur at McDonald’s in Suburb F.
At trial, the mother sought final parenting orders as set out in her Case Outline filed 19 May 2022, which provided for her to have sole parental responsibility for the children, and for the children to live with her. The mother further sought orders that the children spend time with the father on each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday; for half of the term holidays; and in the long school term holidays for the first week and from the 2 January until 12 January. The mother also sought orders regarding special occasions; birthdays; international travel; for changeover to be at McDonald’s in Suburb B; and for all communication to occur between the parties via the mobile application “AppClose”. The mother additionally sought an order that the father be restrained from consuming or being under the influence of illicit and/or non-prescription substances 24 hours prior to or during any period that the children were in his care; and for both parties to complete a post separation parenting course. The mother proposed orders that the children continued to play a sport with the G Sporting Club for the remainder of the 2022 sporting season. The father sought orders that the children continued both their sports at their Suburb F clubs and that both parties ensure the children’s attendance. The mother did not propose any orders in regards to the children’s second sport.

The findings in respect of family violence have already been made and discussed in the context of s 60CC(2)(b).
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to further litigation in relation to the child
It was the mother’s evidence that the children need finality and stability in their living and schooling arrangements to provide a resolution to the exhausting school transit they face several times each week,[95] amongst other things as discussed elsewhere in these reasons.
[95] Wife’s Case Outline filed 19 May 2022, p.11.
It was also the father’s evidence that there be certainty as to the living arrangements for the children into the future.[96]
[96] Husband’s Case Outline filed 1 April 2022, p.5.
The making of orders as sought by the mother and ICL may lead to future litigation as instigated by the father on the facts of this case, whether that be in the Court or in other courts. The father has at times bordered on being vexatious in his pursuit of litigation. He is very combative. It is clearly not preferable though, for orders to be made, at the behest of the father, because of his tendency to litigate. It was the mother’s evidence that following the conclusion of the trial on 5 July 2022, the father “upped the ante against” her. She feels “hopeless” and “suspects he may never stop”.[97] The mother stated the children have been caught in the middle, and will continue to be if the father continues to engage them with police and the Magistrates’ Court to have them repeat his false allegations.[98]
[97] Wife’s affidavit filed 9 September 2022, paragraph 68.
[98] Wife’s affidavit filed 9 September 2022, paragraph 68.
Section 60CC(3)(m) any other fact or circumstance that the Court thinks is relevant
It was the mother’s evidence that final orders should include strict requirements around the tenor of the parties’ communications with one another, and the removal of the father’s ability to jeopardise important co-parenting decisions, and to harass and insult her, which will lessen the parental conflict in the children’s best interests.[99]
[99] Wife’s Case Outline filed 19 May 2022, p.11.
During the course of the evidence, evidence was given by Mr D and the father as to Mr D having a criminal record. That criminal behaviour occurred in 2019. In 2019, Mr D walked over to a man who had assaulted the mother at a night club as alleged by the mother to him. Mr D was angered and intoxicated. He hit the man causing him to fall on to the ground. In early 2022, Mr D attended the Magistrates’ Court and pleaded guilty to intentionally causing injury. He received a fine and a 24-month good behaviour bond without conviction. Mr D is remorseful and admits that this was unacceptable behaviour. There had been no prior criminal behaviour by him of this type, and has been none since.
In early 2022, the police issued Mr D an infringement notice for being intoxicated in a public place. It was Mr D’s evidence that he was not causing any disturbance, but admitted he had too much to drink. Mr D paid a fine for this infringement. He has since this time, reduced his alcohol consumption when out socially and also in the home, though there had been no issues in the household by either the mother or Mr D in respect of excessive alcohol consumption. Whilst those matters were serious and needed to be addressed, on the totality of the evidence, there is no risk to the children when in the care of Mr D as found by me.
Conclusion
In the circumstances of this case, the presumption of equal shared responsibility is rebutted. I find that the parties are unable to communicate; that there is a significant history of family violence as perpetrated by the father upon the mother and children; and that the mother is extremely fearful of the father. Sole parental responsibility for the children should rest with the mother.
The father’s continued lack of insight as to the impact of his behaviours upon the mother, in the single expert’s opinion, affects the mother’s ability to be a protective parent. The single expert considered this a quite significant matter.
It was the evidence of the single expert that any future ability between the parties to co-parent on a daily basis was low due to allegations of family violence, and the parties’ inability to compromise and resolve conflict independently.
I accepted the single expert’s evidence that if the children continued extended travel to and from school, for changeovers, and attendance at sporting engagements, their emotional wellbeing and development would be impacted, potentially resulting in reduced academic performance or resist and refusal behaviours.
In her report the single expert expressed that “a change of schools to support [the mother’s] decisions will disrupt the children’s current constant protective factor, and increase the risk of the children’s emotional wellbeing and development being impacted; due to having less time with [the father], and a need to establish new peer networks and navigate a new school”.[100]
[100] Family Report dated 20 January 2022, paragraph 76.
In cross-examination, however, the single expert stated that the children could always acquire new peer structures at school, or new sporting endeavours allowing them to adopt new friendships, given the fact they are “very sociable children”. The single expert stated that “it’s a normal pattern of behaviour for children and growth that they actually change their peer structure depending on their development”.[101]
[101] Transcript 5 July 2022, p.429 lines 21-25.
The single expert recommended, given geography is a large feature of this parenting dispute, the children go to school and attend sports closer to the place of their primary residence. The totality of the evidence supports this recommendation.
Property
The parties were married for nearly two years and in a de facto relationship for nine years prior to marriage. Their cohabitation period was thus approximately 11 years.
Legal principles
Section 79(1) of the Act provides that the Court may make such orders as it considers appropriate altering the interests of the parties in property. Section 79(2) of the Act provides as follows:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
If the Court is so satisfied that it is just and equitable to make an order altering the interests of the parties in property, s 79(4) of the Act sets out the matters which the Court must take into account when considering what order (if any) should be made.
The High Court of Australia (the “High Court”) in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) revisited the process for trial judges in altering property interests of parties pursuant to s 79 of the Act for married parties, and s 90SM of the Act for de facto couples. The High Court emphasised the requirement for the Court to establish firstly, that it be just and equitable in the particular circumstances of the case to make any alteration of property interests. In this process, the question presented by s 79(2) of the Act, namely, “whether, having regard to those existing interests, the Court is satisfied that it is just and equitable to make a property settlement order,”[102] must not be merged with, or supplanted by the inquiries under ss. 79(4)/90SM(4) of the Act.[103] In determining whether it is just and equitable to make an order, the matters which can be taken into account do “not admit of exhaustive definition.”[104] However, there must be a “principled reason for interfering with the existing legal and equitable interests of the parties to the marriage.”[105]
[102] Stanford v Stanford (2012) 247 CLR 108 at [37] (“Stanford”).
[103] Stanford at [51].
[104] Stanford at [36] referring to Mallet v Mallet (1984) 156 CLR 605, 608 per Gibbs CJ.
[105] Stanford at [41].
The parties seek that the Court make property settlement orders, each conceding that there must be a division of their property in the circumstances of the facts as described in these reasons.
Issues for determination
Matters going to the total asset pool were asserted by the parties as follows:
(a)It was the wife’s evidence that the husband has two motor vehicles: Motor Vehicle 1 and Motor Vehicle 2. The husband’s evidence was that Motor Vehicle 2 is owned by his mother, that it was purchased by his mother in 2021 for around $17,000, is registered in her name, and insured by her.[106] It was accepted by the parties that the husband has been driving Motor Vehicle 2 for at least a year and a half, if not longer. At trial, the husband assumed Motor Vehicle 2 would be worth approximately $10,000.[107] There was no valuation evidence before the Court nor evidence from the husband’s mother. The Court was unable to make a finding to the necessary standard of proof and made no adverse inference. The asset shall not form part of the assets of the parties.
(b)The husband conceded the value of Motor Vehicle 1 at $2,000. The wife asserted its value to be $10,000. The husband purchased Motor Vehicle 1 at a time prior to 2018, for approximately $23,000 with an ANZ bank loan, a part of which remains outstanding. There was again no valuation evidence or other evidence to support the Court making any finding beyond that conceded by the husband – a value of $2,000. I note additionally that a sum of $7,000 was advanced toward the maintenance and/or repair of this motor vehicle from the husband’s overdraft account, and that remains a benefit solely derived by the husband.
(c)Each of the parties have chattels of unknown value. There was not any sufficient evidence before the Court to ascribe value to these chattels.
(d)The husband asserted the wife’s Motor Vehicle 3 had a value of $1,000. The wife asserted a nil value. No valuation evidence was before the Court nor Red Book valuation. In these circumstances, given the age of the car and lack of evidence, the Court ascribed no value to the vehicle.
(e)Each of the parties have outstanding legal fees to be met by each of them personally. No adjustment, save as to costs orders if any, shall be made in respect of those fees.
(f)The debts personal to each of the parties are not included as joint liabilities of the parties, being almost entirely incurred post separation.
[106] Husband’s affidavit filed 11 March 2022, paragraph 39; Transcript 23 May 2022, p.19 lines 24-25.
[107] Transcript 23 May 2022, p.20 line 30.
Ultimately, it is the equity in the FMH that is available for division between the parties. The husband’s proposal was to pay to the wife a sum of $50,000 as representing her entitlement in a division of the parties’ assets and liabilities. That sum represented approximately 22.3% of the assets of the parties excluding superannuation entitlements. The wife sought 55%.
The husband’s taxable income for the financial year ending 30 June 2021 was $24,539. This evidence at trial was that he receives approximately $1,000 per week after tax income from his business. There was no corroborative of current evidence before the Court as to the income, expenses, profit and loss, overdraft debit nor the history, and/or value of the husband’s business in financial years other than 2020/2021. The Court found the husband to be vague and unreliable in his evidence as to the hours worked by him, and the income earnt by him. On the evidence, he does not exercise his earning capacity as a tradesman.
The husband’s evidence was that the ANZ business overdraft account secured by the FMH was approximately $27,000 in debit. Counsel for the wife put to the husband that the overdraft around the time of separation was not in debit. The husband denied that was the case and asserted that a motor for Motor Vehicle 1 owned and used by him costing approximately $7,000, was outstanding on the overdraft account at that time.[108]
[108] Transcript 24 May 2022, p. 155 lines 1-5, p.156 line 20-26.
The asset pool
The following table outlines the legal and equitable interests of the parties as determined by the Court including superannuation:

Assets

Ownership

Value

E Street, Suburb F

(Less Mortgage to EE Finance)

Husband

$600,000

Less $377,200

Equity = $222,800

FF Bank account ending #...00

Wife

Nominal

Motor Vehicle 3

Wife

NIL

Westpac account ending #...27

Husband

Nominal

Motor Vehicle 1

Husband

$2,000

R Company

Husband

Unknown (no evidence as to value before the Court)

Assets subtotal

$224,800

Liabilities Post-separation and debts personal to the wife

Value

Westpac Credit Card

Wife

$3,010

NAB Credit Card

Wife

$972

GG Credit Card

Wife

$800

Liabilities personal to the husband

Value

ANZ Bank Business Overdraft

Husband

$27,524

HH Company (Husband’s business liability post separation)

Husband

$5,500

JJ Council rates debt (incurred by the husband almost entirely post separation as conceded by him)

Husband

$6,000

Superannuation

Ownership

Value

Super Fund 1

Wife

$69,445

Super Fund 2

Husband

$72,400

TOTAL NET ASSETS EXLCUDING SUPERANNUATION AND PERSONAL/POST SEPARATION LIABILITES

$224,800

TOTAL NET ASSETS INCLUDING SUPERANNUATION BUT EXLUDING PERSONAL/POST SEPARATION LIABILITES

$366,645

Stanford consideration

I am satisfied that in all of the circumstances of this case it is just and equitable to make orders adjusting the parties’ property interests. Each of the parties seek that I make such adjustment and can reach no agreement as to how that should occur. There is no common use of the parties’ property post separation. The implicit and express assumptions the parties may have had as to the arrangements made by them concerning their property interests were brought to an end at separation and thereafter.
Whilst I have considered as a precondition to making an order for property settlement whether it is just and equitable in all the circumstances of the particular case to make such an order, the Full Court of the Family Court in Bevan & Bevan (2013) FLC 93-545 at [86] made clear that the just and equitable consideration is one that “permeat[es] the entire process”.
I will now turn to the contributions of the parties.
Contributions
An assessment of contributions is “holistic” in nature.[109] It is nevertheless of assistance to consider that evidence of contributions in the manner as set out below to provide some structure to the task.
[109] Dickons & Dickons (2012) 50 Fam LR 244.
Commencement of the relationship
The husband purchased the FMH in 2006. He paid $275,000 and had a mortgage of approximately $240,000 on the property. It was his evidence that by the time the parties commenced a relationship in 2007, a short time after his purchase of the FMH, he had substantial equity in the property, being approximately $85,000; “approximately $12,000” in his bank accounts; and “a motor vehicle for private use, a [motor vehicle] used for work, and some furniture”.[110] It was further his evidence that the wife owned a motor vehicle “worth approximately $1,000” and had $6,000 in debt.
[110] Husband’s Case Outline filed 1 April 2022, p.7.
The husband provided no documentary or other corroborative evidence of his claim to have significantly increased his equity in the FMH by 2007 and I am unable to find on his evidence alone that he did so. I found the husband to not be a credible witness as to his financial position.
The wife’s evidence was that at the commencement of cohabitation she was unaware of the husband’s financial circumstances except that he was the sole registered proprietor of the FMH. It was her evidence that she had “superannuation entitlements[;] $5,000 [in] savings[;] and no credit card debt or any other liabilities”.[111] I accept her evidence.
[111] Wife’s Case Outline filed 19 May 2022, p.13.
At the commencement of cohabitation, both parties were working. The husband as a plumber and the wife as a childcare educator.
During Cohabitation
The parties’ cohabitated for some 11 years between 2007 and 2018. During that time, the parties maintained separate bank accounts.
Both parties worked on a full-time basis prior to the birth of the children, although in 2008, the husband had a surgery and took some time off work.
In 2011, the husband became self-employed and ran the business R Company. It was his evidence that he was “able to support the family from [his] earnings, except…in 2018 [when he] had a bad debt due to a [contractor] not paying [him]”.[112]
[112] Husband’s affidavit filed 28 January 2022, paragraph 167.
The wife took time off work for the birth of the parties’ two children. Five months after the birth of X she resumed part-time work. Shortly thereafter, at the behest of the husband and until the birth of Y, the wife commenced working a second part-time job before resuming full-time work until shortly before the birth of Y.
It was agreed between the parties that the wife desired to be a stay at home mother. It was the husband’s evidence that the wife’s desire to stay home caused “financial pressure on the family”.[113] The husband conceded that he was committed to the wife going back to work.[114] His evidence was that the wife worked “three and half days” each week, and that when X commenced primary school “[the wife] dropped one day”.[115] It was the wife’s evidence that she worked almost 36 hours a week until the children went to primary school.
[113] Transcript 23 May 2022, p.23 lines 26-27.
[114] Transcript 23 May 2022, p.23 lines 45-47.
[115] Transcript 23 May 2022, p.23 lines 45-47.
It was common ground between the parties that the wife held a qualification as an educator, worked in an educational facility, and that upon her resumption of employment, after the birth of each child, the wife’s employer permitted her to bring the children to work with her. The wife accordingly would look after the children to the extent she could in her employer environment. When the children commenced primary school, the wife reduced her work days in order to accommodate the children’s school hours and school activities. I am satisfied that the wife was the primary carer of the children during the parties’ cohabitation until their separation, and that she was also the person who performed most of the home duties. The husband also cared for the children around his working hours.
The daily household expenses were shared between the parties. The wife paid all health and childcare expenses, and the husband solely paid the mortgage repayments until early 2018. The wife commenced contributing to the mortgage jointly with the husband from early 2018 until separation. The husband otherwise paid all other outgoings.
Just prior to separation, the parties refinanced the mortgage over the FMH, which raised the mortgage from approximately $280,000 to approximately $380,000. By doing so, the parties paid out a number of credit cards debts and loans that the wife had accrued in the sum of $50,000 and a debt arising from the husband’s business in the sum of approximately $30,000. I am satisfied on the evidence that the wife’s borrowings were applied toward the benefit of the family including to meet her share of the parties’ living expenses. The husband disputed this fact but on his own evidence conceded that no holidays, travel, expensive clothing, outings or furniture was a feature of the lifestyle of the parties and/or of the wife. There was no suggestion of gambling, drinking, or things of that nature requiring expenditure by the wife. I accept the wife’s evidence that she applied all of her income and borrowings toward the family and its advancement.
Post Separation
Both parties have struggled financially since separation. It was the husband’s evidence that he has struggled financially and has had to rely on family and friends to provide funds for his legal costs. It was the wife’s evidence that she was unemployed for a period of more than two years before moving into casual and now part-time work. During this time, she has borrowed money from her family to assist her in meeting her and the children’s costs of living including accommodation costs. The husband has remained in occupation of the FMH and made mortgage repayments.

The children have spent nine nights with the wife and four nights with the husband since 2019. The wife has received no child support from the husband and for some time has paid minimal child support payments to the husband.
The wife has survived by accessing credit card facilities and by receiving financial support from her mother. She makes payment of her credit card debt periodically from her limited post separation earnings, which are now in the sum of $555 gross per week, and from receipt by her of government benefits.
Conclusion as to Contributions
Whilst the husband provided a greater initial contribution, over the years of their cohabitation and post separation, I conclude that the parties myriad of contributions, which include the wife’s greater contribution to the care and support of the children post separation, result in an overall assessment of the parties contributions to be equal.
Relevant section 75(2) matters
The husband is 44 years of age and in good health. He is qualified as a tradesperson and has many years of experience. The husband’s evidence was that he quotes $75 an hour for his work and earns approximately $40 an hour after tax and GST. The husband’s initial evidence was that he had a weekly income of $1,000 after tax, which would equate to only 25 working hours a week if he were earning $40 net an hour. I accept the husband’s evidence that “ideally” he would work 30 to 38 hours a week and note that no reliable evidence was forthcoming from him as to why he would not in fact be working those hours, although I note his preoccupation with this and other related proceedings. I am satisfied that the husband has the capacity to earn a higher income, and in particular significantly higher than that earnt by him for the financial year ended 30 June 2021.
The husband has had the benefit of solely occupying the FMH to the exclusion of the wife since separation. In this time, the husband has failed to pay the rates.
The wife is 40 years of age, in good health and has a lower income and earning capacity than that of the husband. At trial, the wife was earning approximately $555 a week gross (approximately $29,000 per annum) on a part-time basis employed as a service worker. The wife indicated that she plans to commence full-time work at some stage in the future.
The children have been in the primary care of the wife since separation and have been, in that time, financially supported by the wife. The husband is unlikely, I find, to make payments of child support to the wife in the future.
Having determined that the children shall primarily reside with the wife, and following my consideration of the other relevant 75(2) matters, including the respective debt position of the parties and their earning capacity, if appropriately exercised, I propose to make a five per cent adjustment in favour of the wife.
Conclusion
It was the husband’s evidence at trial that he had spoken to a finance broker, and as a result, he believed that he had an ability to refinance the FMH to a total mortgage of $500,000. At the time of the trial, it was the husband’s evidence that such loan required payments of approximately $2,700 per month.
Both parties should have a standard of living that is reasonable. That can be accommodated by a division of their assets, excluding superannuation, that provides for a 55/45 per cent adjustment in the wife’s favour. I note that the parties’ superannuation is similar and that neither party seeks a superannuation splitting order.
I am satisfied that is just and equitable that the husband be given the opportunity to retain the FMH provided he is able to make a payment to the wife equal to 55 per cent of the parties net assets. That is a payment to the wife of $123,640. The husband would receive an amount of $101,160. That differential is $22,480. This is a very small differential when considering the respective earning capacities of the parties, and the wife’s greater care of the children. It is an apportionment, as sought by the wife. When considering all the circumstances of this case and whether it was just and equitable to make the orders I proposed, I contemplated also a small contribution adjustment to the husband for his pre-cohabitation contributions, and a greater adjustment, beyond 5 percent, to the wife on the basis of my consideration of s 75(2) matters. That consideration ultimately lead to the same outcome. In the circumstances of the case, I am satisfied with the justice and equity of an outcome providing a 55/45 percentage adjustment in the wife’s favour. In the event that the husband cannot make a payment to the wife in the sum so ordered, the FMH is to be sold and the net sale proceeds to be divided so as to effect a 55 percent division to the wife together with any costs incurred by her and penalty interest.
The husband sought that he be reimbursed half the costs of the first Family Report completed by Ms L and half the costs of the property valuation.
In relation to the cost of the Family Report, on 18 November 2019, the parties entered into consent orders, relevantly, as follows:
The parties attend upon [Ms L] or such other Family Report Writer as may be agreed for the preparation of a Family Report and in respect thereto:-
…..
(c)The Husband meet the cost of the Family Report in the first instance and the Wife reimburse the Husband fifty per cent (50%) of such costs from her entitlement to a property settlement at the conclusion of these proceedings.
(Emphasis added)
In opening address, counsel for the husband submitted the Family Report cost was in the sum of $7,000 and that the wife’s 50 per cent share was $3,500. Counsel for the wife did not address the Court on this matter. I will make an order providing for the payment by the wife to the husband at a time after the wife has received monies from the sale of the FMH.
In relation to the costs of the property valuation, consent orders were made on 18 November 2019 as follows:
6.In the event that the parties are unable to reach agreement as to the value of the former matrimonial home situate and known as [E Street, Suburb F] in the State of Victoria within seven (7) days hereof the property be valued, and in respect thereto:-
(a)The Husband provide to the Wife the names of three (3) suitably qualified valuers to undertake such valuation together with an estimate of their respective valuation costs;
(b)The Wife within seven (7) days thereof nominate from the list so provided the valuer to undertake such valuation;
(c)In the event that the Wife fails to comply with sub-paragraph (b) hereof the Husband shall be at liberty to nominate from the list provided the valuer to undertake such valuation; and
(d)The costs of such valuation be meet equally by the Husband and the Wife
Subsequently, on 13 August 2021, McEvoy J ordered that if no agreement as to the value of the FMH was reached by 16 December 2021 then the parties were to appoint a single expert and pay the cost of any valuation in equal shares. A single expert valuation was filed with the Court on 17 February 2022. Counsel for the husband submitted that the valuation had cost $880 and that the wife had not paid her equal portion in the sum of $440. Counsel for the wife did not address the Court as to this issue. I propose to make an order that the wife comply with the orders made 13 August 2021 in the event she has not already done so, in the same terms as the payment by the wife of the Family Report.
Costs
The husband sought his costs of and incidental to a particular hearing held on 30 January 2020 and his costs of and incidental to the hearing on 19 October 2022.
Section 117(1) of the Act sets out the general rule that each party shall bear their own costs. However, the Court being satisfied that there are circumstances justifying it doing so, may make such order for costs as it considers just in accordance with the Court’s discretion.
In relation to the costs of a particular day of hearing, Counsel for the husband did not address the Court as to why costs should be made. The husband’s Further Amended Application filed 28 January 2022 states that the husband seeks:
The Wife pay the Husband’s costs of the hearing in the Federal Circuit Court held 30 January 2020 which are sought pursuant to paragraph 12 of the Orders of the said Court made on the said date out [sic] and of the hearing of 18 November 2019.
No Court orders were made on 30 January 2020. I note that orders dated 27 April 2020 relevantly provided that:
1.The Mother’s Application filed 8 April, 2020 be adjourned and consolidated with the final hearing fixed for hearing on 20 May, 2020.
2. The hearing on 29 April 2020 be vacated.
3. That all questions of costs be reserved.
Counsel for the husband made a brief submission that the costs of that day pertained to “where the wife attended and sought and obtained an adjournment and the costs of that day were reserved”. He otherwise did not address the Court on this issue.
In relation to the costs of 19 October 2022, the husband, a litigant in person, submitted that he sought the cost of him missing work that day. There was no evidence before the Court to support that submission both as to whether the husband had a working day or not, or any details as to quantum.
There is no basis to depart from the general rule that each party shall bear their own costs. Nor was the Court addressed with any particularity, including those matters set out in s 117(2A) of the Act, such as to award costs against one party in favour of the other.

I certify that the preceding two hundred and forty-three (243) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett.
Associate:
Dated: 17 November 2022

File number(s):	MLC 5473 of 2019
Judgment of:	HARTNETT J
Date of judgment:	17 November 2022
Catchwords:	FAMILY LAW – BIAS – Apprehended – Where the husband alleges bias at hearing of further evidence after judgment reserved and subsequent leave granted to adduce further evidence – Where there was no proper basis to the application – Application for recusal dismissed. FAMILY LAW – CHILDREN – Parental responsibility – Where each party seeks sole parental responsibility – Where there are allegations of family violence – Where the wife seeks for the children to live with her in Suburb H – Where the husband seeks for the children to live with him in Suburb F – Where the husband is involved in a child’s sporting team and seeks the children remain in their same school and sporting teams – Where the parties are unable to communicate effectively – Sole parental responsibility to the wife – Where permission for the wife to change the school of the children – Where the children live with the wife and spend substantial and significant time with the husband – Where a moratorium on the husband’s time with the children. FAMILY LAW – PROPERTY – Division of property interests – Where the wife seeks a payment equivalent to 55% of non-superannuation assets – Where the husband seeks to retain the former matrimonial home – Where the husband proposes to refinance a mortgage under his name – Where both parties have contributed to the asset pool – Where both parties have worked throughout the relationship – Where contributions are equal – Where s 75(2) matters favour the wife – Where asset pool is small.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61DA, 68Q, 69ZW, 75, 79, 90SM, 102NA, 117 Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) r 10.17 United Nations Convention on the Rights of the Child art 12(1)
Cases cited:	Bell & Nahos [2016] FamCAFC 244 Bevan & Bevan (2013) FLC 93-545 Blinko & Blinko [2015] FamCAFC 146 Dickons & Dickons (2012) 50 Fam LR 244 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Mallet v Mallet (1984) 156 CLR 605 Mulvany v Lane (2009) FLC 93-404 Russell & Close [1993] FamCA 62 Stanford v Stanford (2012) 247 CLR 108 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division:	Division 1 First Instance
Number of paragraphs:	243
Date of hearing:	23-25 May 2022, 4-5 July 2022, 19 October 2022, 2 November 2022
Place:	Melbourne
Counsel for the Applicant:	Mr Robinson
Solicitor for the Applicant (on 23-25 May; 4-5 July 2022):	Beswick Foulkes Family Law
The Applicant (on 19 October 2022):	Litigant in person
Solicitor for the Applicant (on 2 November 2022):	MMH Lawyers
Counsel for the Respondent:	Mr Carne
Solicitor for the Respondent:	Leslie Family Law
Counsel for the Independent Children's Lawyer:	Mr Glezakos
Solicitor for the Independent Children's Lawyer:	VM Family Lawyers

MLC 5473 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR REYNOLDS Applicant
AND:	MS STOKES Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	HARTNETT J
DATE OF ORDER:	17 November 2022

Assets	Ownership	Value
E Street, Suburb F (Less Mortgage to EE Finance)	Husband	$600,000 Less $377,200 Equity = $222,800
FF Bank account ending #...00	Wife	Nominal
Motor Vehicle 3	Wife	NIL
Westpac account ending #...27	Husband	Nominal
Motor Vehicle 1	Husband	$2,000
R Company	Husband	Unknown (no evidence as to value before the Court)
Assets subtotal		$224,800
Liabilities Post-separation and debts personal to the wife		Value
Westpac Credit Card	Wife	$3,010
NAB Credit Card	Wife	$972
GG Credit Card	Wife	$800
Liabilities personal to the husband		Value
ANZ Bank Business Overdraft	Husband	$27,524
HH Company (Husband’s business liability post separation)	Husband	$5,500
JJ Council rates debt (incurred by the husband almost entirely post separation as conceded by him)	Husband	$6,000
Superannuation	Ownership	Value
Super Fund 1	Wife	$69,445
Super Fund 2	Husband	$72,400
TOTAL NET ASSETS EXLCUDING SUPERANNUATION AND PERSONAL/POST SEPARATION LIABILITES		$224,800
TOTAL NET ASSETS INCLUDING SUPERANNUATION BUT EXLUDING PERSONAL/POST SEPARATION LIABILITES		$366,645