Sabet & Abdoo - [2024] FedCFamC2F 1562

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sabet & Abdoo [2024] FedCFamC2F 1562

File number(s): PAC 6761 of 2021

Judgment of: JUDGE NEWBRUN

Date of judgment: 7 November 2024

Catchwords:
FAMILY LAW – PARENTING – Orders made in the best interests of the children.

FAMILY LAW – PROPERTY – Just and equitable property adjustment orders made.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61D, 75, 79

Cases cited: Lotta & Lotta [2017] FamCA 50

Division: Division 2 Family Law

Number of paragraphs: 298

Date of hearing: 14 – 18 October 2024

Place: Parramatta

Counsel for the Applicant: Mr Finch

Solicitor for the Applicant: Pannu Lawyers

Counsel for the Respondent: Ms Mahony

Solicitor for the Respondent: A Plus Legal

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

Table of Corrections

12 December 2024 In paragraph 280, the reference to “42 per cent” has been corrected to “42.5 per cent”.

ORDERS

PAC 6761 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS SABET

Applicant

AND:
MR ABDOO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

7 NOVEMBER 2024

ON A FINAL BASIS THE COURT ORDERS THAT:
Parenting
1.The mother shall do all things to facilitate any request from X born in 2009 and Y born in 2011 (“the children”) (or either of them) to spend time or communicate with the father including facilitating any practical arrangements to enable that time or communication to occur.
2.Each parent is restrained and injuncted from denigrating the other parent or any member of the other parent’s family in the presence or hearing of the children and shall use their best endeavours to ensure that no third party or any other member of that parent’s family denigrates the other parent or any member of the other parent’s family in the presence or hearing of the children.
3.Each parent is restrained and injuncted from using any form of physical discipline or physical chastisement on the children.
4.In the absence of agreement between the parties, the children shall continue to attend B School and the parents shall be jointly responsible for any fees associated with the children’s attendance at that school.
5.These Orders shall constitute authority for each of the parents to communicate with and attend any meetings at the children’s school and to obtain updates and school reports directly from the school in relation to the children’s progress.
6.These Orders shall constitute authority for each of the parents to communicate with any health provider involved in providing care or treatment to either of the children and each parent shall be entitled to obtain information and updates from any health practitioner involved in the children’s care or treatment.
7.The mother shall notify the father forthwith of the names and contact details of any medical or health practitioner (including any mental health treatment provider) with whom the children are engaged and shall notify the father of any proposal to engage the children with a new medical or health practitioner no less than seven days prior to the children attending upon that practitioner.
8.Each parent shall notify the other parent as soon as is reasonably practicable of any serious medical incident or hospitalisation of the children and shall provide the other parent with the name of the hospital and the name of the treating doctor at the time such notification is given.
9.The parties shall resume their attendance upon Ms D of C Centre for the purposes of family therapy and shall facilitate the children’s attendance at this therapy until such time as Ms D confirms in writing that their attendance is no longer beneficial.
10.To facilitate Order 9 above, each of the parents shall make contact with C Centre within seven days of the date of these Orders.
11.The parents shall share equally in the costs of the fees payable to C Centre, subject to any Medicare or private health insurance rebate.
12.Each parent shall complete the following courses within 12 months of the date of these Orders:
(a)A Parenting After Separation course of no less than six hours’ duration;
(b)Tuning Into Teens.

13.The mother shall within 28 days enrol in and commence financial counselling.
14.Leave is granted to the Independent Children’s Lawyer to provide a copy of these Orders and a copy of the Court’s Reasons for Judgment to Ms D, the family therapist.
15.By consent, subject to any waiver granted by Legal Aid NSW and otherwise within three months of the date of these Orders, the father pay the Independent Children’s Lawyer’s costs in the amount of $8,291.59.
16.By consent, subject to any waiver granted by Legal Aid NSW and otherwise within three months of the date of these Orders, the mother pay the Independent Children’s Lawyer’s costs in the amount of $12,581.59.
17.All outstanding parenting applications are otherwise dismissed.

Property
18.The funds held in the trust account of E Law Firm from the net proceeds of sale of the Suburb F property be paid in equal shares to the parties and the parties shall within seven days provide all necessary authority as to cause the funds to be distributed in compliance with this order.
19.Upon completion of the foreclosure sale of the property known as and situate at G Street, Suburb H (“the property”) the proceeds of the said sale shall be disbursed in the following manner and priority:
(a)in discharge of the mortgages and loan accounts encumbering the property including the judgment debt in favour of the Commonwealth Bank of Australia (the judgment creditor);
(b)payment of the judgment debt against the husband in favour of Ms J in the sum of $582,728;
(c)payment of the husband’s outstanding loan debt to Mr K in the sum of $72,000;
(d)payment to the wife’s father Mr L of the sum of $19,475;
(e)the balance divided between the husband and the wife so that, taking into account net $248,980 retained by the husband (in assets unrelated to the property) and $61,501 retained by the wife (in assets unrelated to the property), there be a distribution of the net total assets of 50 per cent to the husband and 50 per cent to the wife.

20.The parties shall pending the sale and in compliance with any direction from the judgment creditor:
(a)Maintain the property in a clean state and reasonable state of maintenance at all times;
(b)Vacate the property and remain vacated one hour prior to and two hours after any nominated inspection date and time;
(c)Vacate the property and remain vacated as directed;
(d)Remove all of their belongings and effects from the property at the time that they vacate in accordance with Order 20(c) herein.

21.The husband shall be and is hereby declared to be the sole and absolute owner at law and in equity as against the wife:
(a)Any motor vehicle in his possession;
(b)All items of furniture and contents in his possession;
(c)All savings or monies in his possession, custody or control, other than stated above;
(d)His business assets;
(e)His contributions and accumulated entitlements with respect to or arising from his membership of any superannuation fund, other than stated above; and
(f)His employment related entitlements including but not limited to annual leave, sick leave and long service leave.

22.The wife shall be and is hereby declared to be the sole and absolute owner at law and in equity as against the husband:
(a)Any motor vehicle in her possession;
(b)All items of furniture and contents in her possession;
(c)All savings or monies in her possession, custody or control, other than stated above;
(d)Her contributions and accumulated entitlements with respect to or arising from her membership of any superannuation fund, other than stated above; and
(e)Her employment related entitlements including but not limited to annual leave, sick leave and long service leave.

23.In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity an operation to the deed, document or instrument, upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 12 December 2024
JUDGE NEWBRUN:
INTRODUCTION

These are the Reasons for Judgment relating to a final parenting and property hearing held before the Court on 14 to 18 October 2024.
The father/husband in these proceedings was born in 1977 in Country M and lived there until he moved to Country N in 2001.
The mother/wife in these proceedings was born in 1980 in Country M and moved to Country N in 1998.
The parties commenced their relationship in about 2002.
In 2004, the parties were legally married in City O, Country N.
In 2004, the parties were traditionally married in Country N.
There are two children of the parties’ relationship, X, born in 2009, currently aged 15, and Y born in 2011, currently aged 13 (hereinafter collectively referred to as “the children”).
The parties moved to Australia in 2012 with the children and they were granted permanent residency in 2013.
On 13 December 2021, the mother commenced proceedings in this Court by filing an Initiation Application seeking both parenting and property orders.
The parties divorced in late 2022.
Parenting orders were made by consent on 30 November 2022. The effect of those orders allowed for the children to spend time with each other for three hours each Sunday and for all parties to attend family therapy.
At the time of the interim orders, the younger child Y was living with the father and the eldest child X was living with the mother in a property next door to the father.
This above arrangement occurred until around December 2023, when Y relocated to her mother’s home after an incident occurred, relating to her being disciplined by the father.
Since December 2023 the children have been living exclusively with the mother, and not spending any regular time with the father.
With respect to the property aspect of these proceedings, there is a property located at G Street, Suburb H (“the Suburb H property”). The matrimonial property comprises of two homes of which the husband occupies one and the wife occupies the other.
The proceedings were originally listed for final hearing commencing 25 March 2024 but were not reached.
MATERIAL RELIED UPON
The applicant mother/wife relied upon:
(a)Affidavit of Dr P filed 15 December 2023;
(b)Further Amended Initiating Application filed 25 March 2024;
(c)Her affidavit filed 25 March 2024;
(d)Affidavit of Mr L filed 25 March 2024;
(e)Affidavit of Dr R filed 24 March 2024;
(f)Affidavit of Dr Q filed 27 March 2024;
(g)Affidavit of Service of Dr S filed 25 March 2024;
(h)Family Report of Ms T dated 20 September 2024;
(i)Affidavit of Mr L filed 7 October 2024;
(j)Financial Statement filed 10 October 2024;
(k)Case Outline filed 13 October 2024.
The respondent father/husband relied upon:
(a)Further Amended Response to Initiating Application filed 11 September 2023;
(b)His affidavit filed 21 February 2024;
(c)His affidavit filed 13 September 2024;
(d)Affidavit of Mr U filed 21 February 2024;
(e)Affidavit of Mr V filed 21 February 2024;
(f)Affidavit of Mr W filed 21 February 2024;
(g)Affidavit of Ms Z filed 21 February 2024;
(h)Affidavit of Mr AA filed 4 March 2024;
(i)Case Outline filed 13 October 2024.
The Independent Children’s Lawyer (“ICL”) relied upon:
(a)Child Impact Report of Ms BB filed 6 April 2022;
(b)Affidavit of Dr P filed 15 December 2023;
(c)Case Outline filed 22 March 2024.
The following documents became exhibits:
(a)Exhibit A: Order of the Supreme Court of NSW dated late 2024, pp 2 to 3 of the Husband’s Tender Bundle (“HTB”);
(b)Exhibit B: Email from Ms CC to DD Law Firm dated 27 October 2023;
(c)Exhibit C: Email correspondence dated 29 November 2023;
(d)Exhibit D: Email correspondence dated 20 December 2023;
(e)Exhibit E: Email correspondence from the husband’s solicitors to the wife’s solicitors dated 24 January 2024;
(f)Exhibit F: Email from the husband’s solicitors to the wife’s solicitors dated 5 February 2024;
(g)Exhibit G: Document signed by the parties dated October 2013;
(h)Exhibit H: Hospital records from EE Hospital;
(i)Exhibit I: COPS record;
(j)Exhibit J: Handwritten letter of the husband;
(k)Exhibit K: pp 11 to 29 of the Wife’s Tender Bundle (“WTB”); Caveat pp 31 to 32 WTB; FF Company pp 46 to 53 WTB; Ledger from E Law Firm pp 86 to 88 WTB; Child Support assessments pp 97 to 108 WTB; 2019 Financial Statement of GG Pty Ltd pp 193 to 219 WTB; pp 376 to 417 WTB; pp 558 to 559 WTB email dated 30 July 2021 from husband’s solicitor to the wife; Notice to Admit pp 704 to 706 WTB and response; pp 775, 776 to 784 WTB (cash withdrawals of 2020); Letter from CBA dated 9 October 24 pp 808 to 809 WTB; Email from wife’s solicitor re: release of the husband’s superannuation dated 23 September 2024 pp 810 to 824 WTB;
(l)Exhibit L: Family Report of Ms T dated 20 September 2024;
(m)Exhibit M: Affidavit of Dr P filed 15 December 2023 with annexed report;
(n)Exhibit N: Child Impact Report prepared by Ms BB dated 6 April 2022;
(o)Exhibit O: Sheet of hours worked by the husband with HH Pty Ltd between October 2022 and October 2023 and the gross earnings received by HH Pty Ltd from JJ Company;
(p)Exhibit P: Bank records in relation to $200,000 loan on 29 October 2018;
(q)Exhibit Q: Account …77 transaction dated 4 February 2019 and supporting bank cheque;
(r)Exhibit R: CBA withdrawal voucher;
(s)Exhibit S: Change of employment status remuneration document;
(t)Exhibit T: District Court judgment – Ms J v Husband;
(u)Exhibit U: Joint balance sheet;
(v)Exhibit V: Bundle of bank statements;
(w)Exhibit W: Police report relating to events of mid-2024;
(x)Exhibit X: ICL tender bundle;
(y)Exhibit Y: ICL proposed minute of order;
(z)Exhibit Z: Report of Mr KK dated 6 March 2024.
PARENTING
Proposals
The mother sought orders in accordance with the minute annexed to her Case Outline, inter alia, that she have sole parental responsibility, and that the children live with her and spend time with the father in accordance with their wishes. In final submissions she pressed a live-with order for the youngest child only.
The father sought the dismissal of all parenting applications with no orders as to parenting.
The ICL sought orders in accordance with her proposed minute of order (Exhibit Y), inter alia, no orders as to live-with or parental responsibility, that the eldest child spend time with the father in accordance with her wishes, and that the youngest child spend specified day time with the parent with whom she is not living on alternating Fridays and Saturdays.
Evidence
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact, the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence of the parties relevant to the Court’s determination will be considered in this section and whilst addressing the section 60CC considerations (i.e. section 60CC of the Family Law Act 1975 (Cth) (“the Act”)) (see below). In the event of any conflict between the evidence in this section and evidence referred to under the Court’s discussions under section 60CC, the latter evidence shall take precedence.
Both parties presented unremarkably when giving their oral evidence. They were calm and sought to give responsive answers to questions asked of them.
Mother’s evidence
The Court does not propose to set out the entirety of the mother’s affidavit and oral evidence.
In the context of disciplining children, it was put to the mother that the children rarely listened to her, to which the mother responded that they still do not listen to her. A short time later she stated that she was not a very strict parent.
The mother confirmed that between late 2019 and early December 2023 the father was solely responsible for parenting the youngest child and met all expenses relating to her care. The mother confirmed that she made no contribution to the child’s financial support (during that period).
The youngest child had been living with the mother since early December 2023 and presently she does not spend time with the father.
The mother stated that the youngest child had not been attending school regularly after coming into her care in early December 2023. In this context, the mother referred to the child having been unwell for some years.
The mother stated that she had recently called the police because the youngest child was violent towards her. She also referred to the children physically fighting each other with the mother stating that the youngest child was then out of control. The mother stated that the youngest child is not listen to her.
It was put to the mother that the children’s needs were not being fully met in her care to which she answered in the affirmative.
It was put to the mother that the children make decisions regarding their living arrangements that suit them, to which the mother responded that in the past they have done so. The mother agreed that if the youngest child returned to live with the father there was nothing she could do to stop that happening. The mother stated that if the children want to live with the father she will not stop them. The mother stated that she accepts the children may well change their views as to their living arrangements from time to time given the youngest child has already done so.

It was put to the mother that her complaints to the police were contributing to the youngest child’s mental health issues, to which the mother denied. The mother stated that this child’s mental health was significantly damaged.
It was put to the mother that she and the youngest child was still engaged in shouting matches, to which the mother denied. She then stated that the last shouting match was one week ago.
The mother agreed that the youngest child was often still awake after midnight. She agreed that this was detrimental to her capacity to attend school, however she also stated that this child’s incapacity to attend school was caused by the child’s anxiety and depression which were always there.
The mother conceded that in early 2019 the eldest child had run away from her residence after she and this child had an argument. She had contacted the father and stated that the eldest child had run away and that she couldn’t manage the children.
The mother agreed that the children had made statements of wanting to hurt themselves whilst in her care.
The mother stated that she will call the police if the youngest child hits her on the head or somewhere delicate. The mother stated she had called the police two weeks ago, who attended her residence, after the youngest child had hit her and the maternal grandmother. The mother stated that the youngest child was used to the police attending her residence.
The mother stated that both herself and the youngest child were in therapy.
The mother agreed that she had engaged mental health treatment in Country N previously. She stated that she had not provided records from her Country N psychologist to any of her present health practitioners, including Dr R.
The mother stated that if the youngest child went to live with the father she would not stop her. The mother agreed that prior to receiving advice from a counsellor she had said to the youngest child many times, as a threat, “go and live with the father”. The counsellor had told her that because of the mother saying this to the child, the child was self-harming.
The mother stated that she does talk to the children about a possible mortgagee sale of their home and becoming homeless, and she stated that she blames the father when talking to them in this context.
The mother stated that she may have badmouthed the father in front of the children.
The mother stated that the youngest child had attempted self-harm once when living with her when this child had suicidal ideation.
The youngest child had briefly run away (from about 6.00 pm to about 10.00 pm) from the mother’s residence in mid-2024 before returning.
The mother stated that if she became homeless she would consider sending the eldest child to live with the father if she wanted to, but not the youngest child.
The mother stated that the eldest child does not want to change her school. She stated that the youngest child hates the school she presently attends and wants to attend another school in the area.
In terms of decisions to be made for the children, the mother stated that she was happy to involve the father in discussions relating to medical issues pertaining to the children. She stated that she did not want the father to dictate to herself and the children where they lived.
The mother stated she is having doubts about the Family Report writer’s recommendation that the youngest child spend time with the father for two days every fortnight. She then stated that if it was safe for this child to spend such time with the father then it would be appropriate. She stated, however, that it would be necessary for this child to say she was comfortable spending time with the father because presently she has a panic attack on seeing the father, she has been traumatised, she is scared of the father, and she is presently not spending time with him by choice.
The mother stated she was happy to complete parenting courses, including Tuning Into Teens.
Evidence of the maternal grandfather
The mother’s father stated that conflict between the mother and the youngest child was still continuing. He had observed a screaming match between them the previous week. He stated that the youngest child hit the mother and the mother then held her and told her to calm down. He stated he was concerned about the level of conflict between the mother and the youngest child. He stated that the eldest child was coping with this conflict because she was mature and calm and a pleasant girl, and she tries to keep away from arguments.
Evidence of Dr R
This psychiatrist, in her report dated 31 January 2024, stated, inter alia, that the mother was assessed and reviewed between July 2023 and January 2024 on four occasions. The diagnosis made was major depressive disorder and generalised anxiety disorder, partially treated. She stated the mother’s anxiety and depressive symptoms were of mild to moderate severity. She stated that the mother’s chronic pain conditions further compound her mental health conditions. The mother had been ingesting an antidepressant at the time of her assessment which had helped to reduce the severity of the mother’s anxiety and depression symptoms. She stated that the mother’s concentration, attention and memory were moderately affected by her mood conditions. She stated her psychiatric prognosis was guarded due to the interrelationship of her mood condition with her pain conditions. She stated that until the mother’s physical health issues were stabilised or resolved it was likely that the mother will continue to have residual mood symptoms. She stated that the mother’s persistent mood disorders later led to a reduced capacity for employment.
In oral evidence the psychiatrist stated she had not been provided with the mother’s mental health records from Country N. She stated that the mother’s pain conditions had had a significant impact on the mother’s mood. She stated that her focus was the mother’s pain condition. She stated that the mother’s work capacity for health care work was affected by her mental health condition. However, she stated that she had not been provided with any information since January 2024 regarding the mother’s work capacity which would allow her to comment on the mother’s present work capacity.
Evidence of Dr Q
By reference to her written report, this specialist treated the mother over six consultations from April 2022 to January 2024.
The doctor diagnosed the mother with a medical condition. She prescribed medication. Different therapies were prescribed. She anticipated that the mother would require ongoing treatment for the foreseeable future. She stated that the prognosis for the mother’s medical condition is highly variable.
In oral evidence, the doctor stated that she had had consultations with the mother since January 2024. She stated that the new therapy was continuing and there had been a positive response to this treatment by the mother. She stated that her report did not include any assessment of the mother’s employment capacity.
Father’s evidence
The father stated that he had lodged a conviction appeal against a guilty verdict of common assault against the youngest child. He stated that there was an upcoming mention in the District Court of NSW. He stated that he was not guilty of the charge. He denied slapping the child on the face. He stated that the youngest child had recently called him from school to pick her up.
He agreed that some repair of his relationship with the youngest child was needed. He stated he was willing to engage with the youngest child’s therapist and would consider accepting the recommendations of this therapist to repair their relationship. He stated he would do whatever it takes to repair his relationship with the youngest child.
He stated he was prepared to do a parenting courses to communicate better with the mother.
He believed that the mother would deal with the children’s medical needs on a day-to-day basis appropriately. He stated that he would like to be there as well if his presence was needed.
He acknowledged that having regard to the youngest child’s therapy, a lead time was possible before he could spend time with her. He acknowledged that these proceedings had created a lot of uncertainty and there had been a negative impact on the children’s mental health by reason of these proceedings.
He denied putting his hands around the neck of the mother in a choke position in relation to an alleged incident at the family home in late 2019. He denied then pushing her neck back to such an extent that it caused the mother pain. He recalls that when the police attended the home there were no marks on the mother’s face. He agreed that he was charged with an offence however the matter was later withdrawn by the police.
He stated that Ms J was one of his close friends who cared for the children when he needed support as a single parent. He stated that the children did have a good relationship with her having previously spent time with her. He stated the children haven’t seen her for at least one year.
The husband stated that he is still living in one room at the Suburb H property. He has located an alternative place to live at Suburb LL being a two-bedroom residence. He stated that he could easily furnish that residence for the children. He stated that if the mother was homeless he could accommodate the children.
He stated that probably from about September 2023 he had other people living in the Suburb H property, being three female adults in their early 20s and hailing from Country MM. Before then it was only himself and the youngest child living in his residence there. He stated that he had advertised online because he wanted somebody financially stable. He said it was his intention to have live-in nanny support because he was a single parent, he was struggling with his health, and he needed support to care for the youngest child. He stated that one of the young women was working towards becoming a community worker.
He stated that presently he exchanges text messages with the eldest child. The last day he saw her was on Father’s Day.
The husband stated that he considered the children had been coached to tell the Family Report writer that they did not have a good relationship with Ms J. The husband was asked whether he would accept a restraint upon the children seeing this woman whilst they were in his care, to which he replied in the affirmative if it was considered to be in the best interests of the children.
He stated that he was aware that the youngest child had been admitted to hospital in mid-2024 in relation to a self-harming incident. He stated he had not spoken to the mother regarding the youngest child in this regard. He had become aware of mental health treatment this child was receiving subsequently from Mr NN and he had spoken to this psychologist.
Evidence of Mr V
This witness made a short affidavit and gave some brief oral evidence. The Court does not propose to set out the entirety of his evidence.
He stated that he recalled an incident that occurred at his house in Country N in late 2004 whilst the parties stayed one night there. That night he and his partner were woken by a shouting/noise. His partner went into the room the parties were staying in. He saw the father sitting on the bed looking dazed and the mother standing next to him. Then everyone went into the living room. The mother told he and his partner that the father was having a bad dream and she panicked and so she yelled out because she was concerned for him.
He stated that no stage did the father look upset or hurt. He did not see any marks on the father. He stated that the next morning there was no real discussion about the incident. He did not recall seeing the mother looking upset. He did not observe any behaviour to suggest that she was scared or hurt in any way.
Evidence of Ms J
This witness swore an affidavit and gave oral evidence. The Court does not propose to set out the entirety of her evidence. The witness impressed as an honest and convincing witness and the Court accepts her evidence.
The witness stated that she was a friend of the father and she had known him since school.
The witness denied being the father’s mistress and otherwise denied the adverse allegations made by the children to the Family Report writer in relation to herself.
Family Report
The author of the Family Report dated 29 September 2024 (“the Family Report”) was Ms T, Regulation 7 Family Consultant. She interviewed the family in August and September 2024.
An earlier Family Report had been prepared by Dr P, which was also entered into evidence.
The Court does not propose to set out the entirety of the Family Report.
The eldest child was interviewed by the Family Report writer. At paragraphs 77 and 78 the Family Report writer stated, inter alia:
77.… [X] described how her relationship with her sister, [Y], has become particularly strained since [Y] moved in with her and her mother full-time. [X] attributed this to being annoyed, angry and frustrated at how [X] acts towards their mother, describing [Y] as rude and disrespectful towards their mother and that she screams “all day long”. [X] further added that generally, she enjoys spending time in her own company, and reflected that has also been impacted by [Y] moving into the home.
78.When speaking about her mother, [X] was observed to soften in her features and facial expressions, relax and smile. [X] stated that she loves her mother and her mother is the only one with whom she is affectionate. [X] described her mother as “way too nice” and protective of her and her sister. [X] added that she believes her mother is very smart and discussed how recently her mother has been assisting her to understand mathematical concepts to her, so that she not only knows the answers, but understands them. [X] sadly reflected that since [Y] has moved in with her and her mother, she has not been able to spend the same quality time with her mother as she used to, commenting, “there’s someone else who always wants to tag along”. [X] did not have any worries about her mother and described her mother as being very understanding and comforting of her. [X] reported that she has never been scared of her mother, although has been frustrated by the way her mother does not discipline [Y], and feels this has been outsourced to her. [X] further elaborated that she does not perceive her mother to have any rules in their house and that even if her mother does try to articulate household rules, they are never enforced and there are no consequences if the rules are broken. Overall, [X] reflected, “I’m really happy she’s my mum”.
The youngest child was interviewed by the Family Report writer. At paragraphs 84-86 the Family Report writer stated, inter alia:
84.[Y] was noticed to calm within herself when she spoke of her mother. [Y] described her mother as “really nice”, “really calm and “really understanding”. [Y] reported that she and her mother cook food together and watch a lot of movies together. … [Y] reported that she does identify her mother as someone who comforts her and also reported that her mother does not follow through with any consequences or enforce any rules in their home.
85.When speaking of her father, [Y] reflected “when he’s not angry, he’s a really good parent and is nice and stuff”. [Y] declined to elaborate on whether her father was angry a lot or to provide other details about her father, however, [Y] spoke about how her father did not prevent [Ms J]’s ill-treatment of her and that she believed [Ms J] would manipulate her father to make him also treat her poorly. [Y] also commented her father had cheated on her mother with [Ms J] and when asked how she knew, [Y] attributed this to [Ms J]’s frequent presence. [Y] could not recall anything she enjoyed doing with her father and commented that her father was working “most of the time”. [Y] reported that she does worry about her father, although again, when asked what about, [Y] listed hypothetical scenarios which she confirmed have not happened to date. [Y] reported that she does not identify her father as someone who comforts her, reporting that “he would give me a lecture” instead. [Y] reported that in contrast to her mother, she described her father as strict and that there were a lot of rules in his house. [Y] reported that if she broke those rules, she would have her device taken away or receive a slap. [Y] reported that when her father became angry, “he was really abusive” and as such, she was scared of her father in these times.
86.[Y] confirmed that she has not been spending time with her father at the moment and acknowledged that recently on Father’s Day that [X] spent time with their father, however, she did not. [Y] attributed this to still being asleep at the time, and not for any other reason. [Y] reported that in terms of her parenting arrangements, her only concern was that she be with [X]. [Y] wishes to live with [X] and only wants to spend time with her father, if [X] is also there. [Y] reported that she feels better with [X], wants to stay with her and would refuse to spend time with her father if [X] was not also there. [Y] further added that she strongly wishes to change schools and she is upset that the final hearing occurs on her birthday, and as such impacts on her birthday celebrations.
Under the heading Evaluation, the Family Report writer stated, inter alia:
91.… [X]’s familial relationships appear to be significantly impacted by the current dispute. [X]’s relationship with her mother appears to be emotionally close, although impacted by the lack of boundaries [Ms Sabet] has implemented. [X]’s relationship with her father is distant and whilst [X]’s relationship with [Y] could be viewed as typical in many ways, it also appears to be under significant strain, which in turn, has also placed strain on [X]’s relationship with her mother. Developmentally, [X] is an adolescent and as such, would be defining herself through her relationships. As such, the current difficulties in her familial relationships are likely to be having a significant impact on [X]’s overall well-being.
92.[Y] (aged 12 years) is an extraverted and talkative young woman who may also be using her animated presentation to mask her underlying feelings. Information from [Ms Sabet], [Mr Abdoo] and [Y], combined with the report writer’s observations, suggests that [Y] is currently under significant stress, which appears to be heightened by her being untethered from the majority of her previous supports. Whilst [Y] was previously positively engaged with her primary schooling, she has experienced significant cyberbullying at high school, which has resulted in [Y]’s current school refusal. [Y] is no longer engaged with her significant [extracurricular activities], although the reason for this is unclear. [Y] has also relocated her physical residence and has disconnected herself from her father, who was her primary caregiver for four years. As [Y] is currently in the process of re-building her relationship with her mother, who had become a virtual stranger to her when she lived with her father, it would seem [Y] derives her primary sense of safety from her relationship with her sister, [X]. This is further complicated by [X] seemingly not reciprocating the same sentiment and feeling frustrated by feeling the pressure to parent [Y]. Developmentally, [Y] is on the cusp of adolescence and would be beginning to try and define herself through her relationships, which, given the above, is currently exceptionally complicated for [Y]. [Y]’s current lack of relational safety would be contributing to [Y]’s current deteriorating mental health and psychological well-being.
…
94.The main risks identified for [X] and [Y] are that they will be unsafe in their father’s care due to family violence, as well as at risk of being physically harmed and subject to harsh discipline. [X] and [Y]’s psychological safety and well-being are also at risk due to the significant ongoing conflict between [Ms Sabet] and [Mr Abdoo].
…
100.… [Mr Abdoo] has been subjected to multiple legal proceedings with regard to multiple apprehended violence orders and criminal charges. The current proceedings have also been protracted and have been ongoing since December 2021.

The Family Report writer referred to the prospect of the children experiencing significant instability should a relocation be required noting the impending for sale of the Suburb H property.
At paragraph 109 the Family Report writer stated in relation to the father:
109.[Mr Abdoo] does not appear to have a sound understanding of [X] and [Y]’s psychological needs. [Mr Abdoo] did not appear able to mentalise how [X] and [Y] may be feeling, given both have made their own separate allegations of physical harm against him or that [Y] was so frightened that she ran to the home of her mother, whom she had previously feared. It may be that that [Mr Abdoo] has not learnt effective strategies on how to manage emerging challenging adolescent behaviour which will only increase as the children grow older. Both [Ms Sabet] and [Mr Abdoo] spoke about their understanding of [X] and [Y]’s educational needs, although this appeared to be a greater priority for [Mr Abdoo], whereas [Ms Sabet] prioritised the children’s psychological well-being. Both [Ms Sabet] and [Mr Abdoo] may also benefit from attending a parenting program, such as ‘Tuning into Teens’ may assist both parents to understand the impact of their behaviour on [X] and [Y] as well as learn strategies to better manage [X] and [Y]’s behaviour as well as provide for their emotional needs.
In relation to the effect of the parties’ conflict upon the children the Family Report writer stated at paragraph 110:
110.It would appear that in the absence of [Ms Sabet] and [Mr Abdoo] making protective decisions to reduce the children’s exposure to the high conflict between them, [X] and [Y] have attempted to make the decisions regarding their parenting arrangements independently. As neither [X] and [Y] would not have had the maturity to make such decisions, it would appear that both [X] and [Y] have learned maladaptive strategies to have their needs met, such as their outbursts of anger, running away and oscillating between their parents, which have been reinforced by the ongoing conflict between their parents.
In relation to the Court making an order that the youngest child spend time with the father, the Family Report writer stated, inter alia, at paragraph 115:
115.[Y] has expressed feeling unsafe with her father and fearful of spending time with him. [Y] has also articulated that she would only feel safe spending time with her father, if the relational safety she has in her relationship with [X], was also present. However, making [Y]’s parenting arrangements dependent and contingent upon [X], would again misattribute the parenting responsibility to [X] which is inappropriate for [X]. Forcing [Y] to spend time with her father prematurely, that is, before she feels safe to do so, would likely be detrimental to her current and long-term mental health. However, allowing [Y] to have agency and choice over her level of contact with her father, may allow [Y] to reach out to him when she feels psychologically safe and ready to do so.
Under the heading Recommendations, the Family Report writer stated, inter alia:
122.Should a plan be made for [Y] to spend time with her father, that the family be engaged with a skilled therapist who has expertise in both family violence and reintroductions between children and their parents. The therapist can work with [Mr Abdoo] to assist him to take the responsibility to repair his relationship with [Y], as well as ensure he is aware of how to provide both actual and a felt sense of safety to [Y]. The therapist could assist preparing [Y] to spend time with her father and to feel safe in the time she spends with her father. Should [Ms D] have this expertise, her pre-existing relationship with the family, may make her the preferred therapist. Consideration should also be given to any recommendations that [Y]’s CAMHS clinician has with regard to the impact spend time arrangements have on [Y]’s mental health and her current treatment plan for stabilisation.
…
126.The family to re-engage with family therapy with [Ms D], once deemed appropriate by [Y]’s current CAMHS clinician.
127.[Ms Sabet] and [Mr Abdoo] to complete ‘Tuning into Teens’. [Ms Sabet] and [Mr Abdoo] should not attend the course together.
128.[Ms Sabet] and [Mr Abdoo] to attend a course such as ‘Parents not Partners’ in efforts to improve their communication. [Ms Sabet] and [Mr Abdoo] should not attend the course together.
The Family Report writer gave oral evidence. The Court does not propose to set out the entirety of that evidence.
Counsel for the father cross-examined the Family Report writer.
MS MAHONY:          Now, assume for a moment that his Honour will not make findings of family violence that have caused you concern in your report. Do you accept that that parental conflict is the most likely explanation for these children’s conduct?
WITNESS:Yes.
MS MAHONY:          And if that’s the case, making parenting orders is probably not the solution for them, is it?
WITNESS:In what way?
MS MAHONY:          Well, making an order — well, you’ve already accepted the proposition from his Honour that there’s a possibility that next week something happens in - - -?
WITNESS:Yes.
MS MAHONY:          - - - this family’s life and they jump the fence again. Maybe not the literal fence this time, but they walk with their feet?
WITNESS:Yes.
MS MAHONY:          Having parenting orders — having a live with order, particularly — in a family with intractable conflict which they have had to use litigation in multiple forms to resolve is likely to heighten the conflict that these children are exposed to, isn’t it?
WITNESS:Yes.
MS MAHONY:          And that is even so if the parents accept that the children can live wherever they want. And assume for a moment both parents have given that evidence. That wherever the children choose to go or spend time no one feels that they’re — they have the capacity to stop them or intervene?
WITNESS:Mmm.
MS MAHONY:          Having a parenting order which allows the parents to re-enter litigation is a significant risk for these children?
WITNESS:It is.
MS MAHONY:          And it is perhaps the highest risk, isn’t it, for the children’s continued exposure to parental conflict if his Honour finds that parental conflict is the big issue?
WITNESS:Yes.
The Court accepts the evidence of the Family Report writer, subject to any view of the Court to the contrary, whether express or implied, as discussed below in relation to s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
Relevant legal principles
Section 60B of the Act sets out the objects of Part VII of the Act relating to children and the making of a parenting order.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
The Court must have regard to the factors outlined in section 60CC of the Act before determining what is in the child’s best interests. The matters to consider are set out in subsection (2) of section 60CC and, if the child is an Aboriginal or Torres Strait Islander child, the Court must have regard to the matters set out in subsection (3).
The Court, or any other person cannot require the child to express his or her views in relation to any matter: section 60CE. Although, the Court can have regard to any views that are expressed by a child where such views are contained in a report given to the court: section 60CD(2)(a).
When making a parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child the Court may provide for joint or sole decision-making in relation to all or specified major long-term issues: section 61D(3).
The best interests of the children
Section 60CC considerations
(2)(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(2A)(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child);
(2A)(b) any family violence order that applies or has applied to the child or a member of the child’s family;
The above considerations will be considered together.
History of family violence orders
There were ADVO proceedings against the father in about 2012 for the protection of the mother following disputation between the parties, with a provisional ADVO being dismissed by the Local Court in mid-2013.
In late 2019 the mother had alleged to the police that the father had assaulted her and the eldest child, and a provisional ADVO was made against the father for the protection of the mother, which was later dismissed in the Local Court.
In late 2021 an ADVO was made against the mother for the protection of the father and Ms J. This order expired in mid-2024.
In late 2023 a provisional ADVO was issued against the father for the protection of the child Y. The father was convicted in the Local Court of slapping the youngest child in the face during disputation with her and he has appealed that conviction to the District Court of NSW. A final ADVO was made and expires in mid-2026.
Family violence and conflict
The mother makes allegations against the father of family violence including coercive and controlling family violence. The father denies these allegations. In turn, the father makes allegations against the mother of coercive controlling family violence which is denied by the mother. On the balance of probabilities, the Court makes the following findings in relation to these allegations:
(a)The Court does not accept that the father perpetrated family violence, including coercive controlling family violence, against the mother as alleged by her. And the Court does not accept that the mother perpetrated family violence, including coercive controlling family violence, against the father as alleged by him;
(b)During the parties’ relationship, the parties were often involved in regular significant verbal disputation between each other. It is likely that the children were often exposed to this disputation.
The mother alleges that the father slapped the youngest child on the face with an open palm in late 2023 during an argument between them. The father denies this allegation. He was convicted of common assault against this child in mid-2024 in the Local Court. However, the father appeared for himself at the Local Court and decided to not cross-examine this child nor the mother. He has appealed the conviction to the District Court of NSW. There was little oral evidence adduced at the final hearing on this issue. The Court does not have the transcript before it relating to the Local Court proceedings. In the circumstances, the Court declines to adopt the finding of guilt and declines to draw any implicit finding against the father from such conviction.
As to parenting arrangements which would promote the children’s safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm), it is premature to make final orders that the youngest child spend time with the father because this child’s former meaningful relationship with the father has become strained since ceasing to live with him in December 2023. Family therapy at least needs to continue with a view to repairing this child’s relationship with the father. A specific final parenting order that this child now spend time with the father would carry the real risk that the child would be oppositional to spending such time with him resulting in a further deterioration in their relationship, and further, would carry the real risk that this child’s mental health would deteriorate further. Such an order may also result in further conflict between the parties with adverse effects upon the children.
The mother seeks a specific final parenting order that the youngest child live with her. The father, for his part, seeks no live-with or time-with order. However, whilst the youngest child would presently appear to want to remain living with the mother, this desire is being significantly driven by her wish to live with and be close to the eldest child. The eldest child, for her part, on the other hand, does not hold any significant wish that the youngest child live in the same residence as her. Importantly, in this context, there has in recent times been significant disputation between the children, including a physical melee resulting in the mother calling the police to attend the residence to manage this conflict between the children. There has also been verbal disputation between the youngest child and the mother resulting in each person yelling at the other, again resulting in the mother calling the police. And relevantly, the youngest child’s present mental health is unstable, and she has been school refusing. In all these circumstances, and noting the view of the mother that she will abide by the children’s live-with and time-with wishes, there probably exists a real chance, in the not so distant future, that the youngest child will seek to return to live with the father; should this occur, then, in the view of the Court, a real risk arises that the mother, having the benefit of a parenting order that the youngest child live with her, will commence fresh parenting proceedings (and quite possibly involve the police) resulting in further conflict between the parties to the detriment of the children’s psychological wellbeing. In this context, the Court observes that there have been, historically, a significant number of legal proceedings between the parties. Accordingly, to minimise these risks, the making of no order as to the parent with whom the youngest child lives with will be in the best interests of this child.
The mother seeks an injunction against the father restraining him from bringing the children into contact with Ms J. Again, the Court accepts the evidence of Ms J as well as the father’s evidence in relation to Ms J. The father and Ms J have not ever been in a romantic relationship and nor have they ever been involved in a sexual relationship. The Court does not accept that Ms J has previously sought to demean the mother to the children or that she has been involved in gaslighting behaviour with the children. Such a proposed injunction will be unnecessary to promote the children’s safety. The Court would expect the father, exercising common sense, to act cautiously, at least in the near future, in relation to exposing the children to Ms J, in view of their attitudes towards Ms J expressed to the Family Report writer.
(2)(b) any views expressed by the child;
The eldest child told the Family Report writer that she needed to live with the mother, although her belief that the father has had an affair with Ms J (which the Court does not accept), and the fact that the mother is the more lenient parent may have influenced this view. She expressed an interest in spending some time with the father.
The youngest child reported that in terms of her parenting arrangements, her only concern was that she be with her sister. She stated that she wishes to live with her sister and only wants to spend time with her father, if her sister is also there. She reported that she feels better with her sister, wants to stay with her and would refuse to spend time with her father if her sister was not also there. The youngest child’s present mental health is unsatisfactory and she has been experiencing some suicidal ideation and self-harm.
The Court would give significant weight to the views of the eldest child to live with the mother and spend some time with the father, but only some weight to the views of the youngest child.
(2)(c) the developmental, psychological, emotional and cultural needs of the child;
The Family Report writer had stated, in relation to this consideration, inter alia, that the continued exposure to conflict by the children is not developmentally appropriate for them. The Court regards this issue of minimising the children’s exposure to conflict between the parties as being particularly important relating to its determinations as to what parenting orders will be in the best interests of the children.
(2)(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
The father, compared to the mother, is probably less attuned to the emotional sensibilities of the children. He will be best placed to improve in these areas by engaging in family therapy and completing the “Tuning Into Teens” course. Otherwise, he has such capacities.
The mother, compared to the father, is struggling to impose behavioural boundaries where appropriate upon the children. She readily concedes she is not a strict parent. Further, she is struggling to manage disputation between the children and between the youngest child and herself, having to inappropriately resort to the police attending upon her home and managing the issue. She will also be best placed to improve in these areas by engaging in family therapy and completing the “Tuning Into Teens” course. Otherwise, she has such capacities.
(2)(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
The children have positive relationships with each parent, albeit that the youngest child’s relationship with the father has become strained since about December 2023. The children will benefit from having a close and positive relationship with each parent. Again, such a close and positive relationship with each parent will be promoted by the parents participating in family therapy and completing the “Tuning Into Teens” course as discussed above.
(2)(f) anything else that is relevant to the particular circumstances of the child.
The ICL seeks an order that the mother within 28 days enrol in and commence financial counselling. The ICL expresses to the Court a concern that the mother may well injudiciously spend any sum of money coming into her possession from the property orders of the Court resulting in housing uncertainty for the children, noting that the Commonwealth Bank has an order for possession of the Suburb H property. The Court refers to its Reasons in relation to property proceedings below, including in relation to the mother’s contended liabilities. Such an order will be in the best interests of the children.
In relation to the ICL’s proposed final parenting orders, Exhibit Y, the mother, in submissions, informed the Court that she agreed with the ICL’s proposed Orders 1, 5 to 7, 9 to 10, 12 to 13, 16, and 18. In relation to the ICL’s proposed orders, the father informed the Court, during submissions, that in the alternative to his primary submission that no parenting orders should be made, he would not oppose Orders 5 to 18.
In the view of the Court, the ICL’s proposed Orders 5 to 18 will be orders in the best interests of the children because they minimise the risk of conflict between the parties occurring, and Order 8 regarding the children continuing to attend B School promotes the children’s stability (with the Court proposing to add the words, “In the absence of agreement between the parties” at the beginning of proposed Order 8). The Court has not overlooked that the youngest child told the Family Report writer that she is having difficulties at her school including bullying and friendship issues, however productive family therapy, in particular, may lead to some resolution of these issues. The proposed orders otherwise promote the parents’ involvement in the children’s schooling, facilitate the parents maintaining contact with the children’s health practitioners, promote family therapy, and mandate parenting courses for both parties.

Apart from the ICL’s proposed Orders 5 to 18 inclusive, the making of no final parenting orders otherwise will be least likely to expose the children to conflict and thereby minimise the risk of them suffering further emotional harm. Whilst the making of no final parenting orders otherwise may possibly result in some conflict between the parties, it will not afford either party the opportunity to, in effect, weaponise a parenting order resulting in further conflict with consequential adverse effects upon the children.
Parental responsibility
The mother seeks an order for sole decision-making responsibility relating to all long-term decisions affecting the children, which is opposed by the father. The parents do not presently enjoy a significant co-parenting relationship, in that the communication between them is not satisfactory. The mother is significantly distrustful of the father in relation to past financial issues. She harbours concerns in relation to the father’s ability to appropriately parent the children during times of conflict between the father and the children.
The father, for his part, has significant concerns in relation to, inter alia, the mother’s lack of discipline and boundaries with the children. However, both parents are content to abide by the children’s wishes as to the parent they live with or spend time with, and, as discussed above, there is a real prospect in the not so distant future, for example, that the youngest child may choose again to live with the father, noting that she lived with the father for some four years without spending any time with the mother prior to December 2023.
In the past, the parties were able to reach agreement in relation to the children’s present school. The children are currently attending high school. Should the Court make no order for parental responsibility, requiring the parties to reach agreement on any major decision for a child, each parent will be able to provide input into the making of the decision which is beneficial for both the children and the parents. The father has taken a particularly non-adversarial position in relation to the making of parenting orders at this final hearing. Both parents are conscious that the children will likely make their own decision as to the parent they wish to live with or spend time with. In the circumstances of this family, it will not be in the best interests of the children to make an order that the mother have sole decision-making responsibility for all long-term decisions affecting the children.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view that it will be in the best interests of the children to make the following final parenting orders:
1.The mother shall do all things to facilitate any request from X born in 2009 and Y born in 2011 (“the children”) (or either of them) to spend time or communicate with the father including facilitating any practical arrangements to enable that time or communication to occur.
2.Each parent is restrained and injuncted from denigrating the other parent or any member of the other parent’s family in the presence or hearing of the children and shall use their best endeavours to ensure that no third party or any other member of that parent’s family denigrates the other parent or any member of the other parent’s family in the presence or hearing of the children.
3.Each parent is restrained and injuncted from using any form of physical discipline or physical chastisement on the children.
4.In the absence of agreement between the parties, the children shall continue to attend B School and the parents shall be jointly responsible for any fees associated with the children’s attendance at that school.
5.These Orders shall constitute authority for each of the parents to communicate with and attend any meetings at the children’s school and to obtain updates and school reports directly from the school in relation to the children’s progress.
6.These Orders shall constitute authority for each of the parents to communicate with any health provider involved in providing care or treatment to either of the children and each parent shall be entitled to obtain information and updates from any health practitioner involved in the children’s care or treatment.
7.The mother shall notify the father forthwith of the names and contact details of any medical or health practitioner (including any mental health treatment provider) with whom the children are engaged and shall notify the father of any proposal to engage the children with a new medical or health practitioner no less than seven days prior to the children attending upon that practitioner.
8.Each parent shall notify the other parent as soon as is reasonably practicable of any serious medical incident or hospitalisation of the children and shall provide the other parent with the name of the hospital and the name of the treating doctor at the time such notification is given.
9.The parties shall resume their attendance upon Ms D of the C Centre for the purposes of family therapy and shall facilitate the children’s attendance at this therapy until such time as Ms D confirms in writing that their attendance is no longer beneficial.
10.To facilitate Order 9 above, each of the parents shall make contact with C Centre within seven days of the date of these Orders.
11.The parents shall share equally in the costs of the fees payable to C Centre, subject to any Medicare or private health insurance rebate.
12.Each parent shall complete the following courses within 12 months of the date of these Orders:
(a)A Parenting After Separation course of no less than six hours’ duration;
(b)Tuning Into Teens.
13.The mother shall within 28 days enrol in and commence financial counselling.
14.Leave is granted to the Independent Children’s Lawyer to provide a copy of these Orders and a copy of the Court’s Reasons for Judgment to Ms D, the family therapist.
15.By consent, subject to any waiver granted by Legal Aid NSW and otherwise within three months of the date of these Orders, the father pay the Independent Children’s Lawyer’s costs in the amount of $8,291.59.
16.By consent, subject to any waiver granted by Legal Aid NSW and otherwise within three months of the date of these Orders, the mother pay the Independent Children’s Lawyer’s costs in the amount of $12,581.59.
17.All outstanding parenting applications are otherwise dismissed.
PROPERTY
Proposals
The wife seeks orders as set out in her Case Outline, inter alia, that she be appointed trustee for the completion of incomplete building works on the Suburb H property, and thereafter as trustee for the sale of the property; the transfer of the Suburb H property into the wife’s name free of any encumbrance; and a division of the proceeds of sale to give effect to an overall split of 70 per cent to the wife and 30 per cent to the husband.
The husband seeks orders as set out in his Case Outline, inter alia, that the sale proceeds from the Suburb F property held in trust be divided equally; that the proceeds from the impending mortgagee sale of the Suburb H property be applied to discharge the mortgagee and loan accounts encumbering the property, including the judgment debt, and the balance divided 60 per cent to the husband and 40 per cent to the wife. Such orders were said to give effect to an overall split of approximately 90 per cent to the husband and 10 per cent to the wife.
Evidence
The Court has considered the documentary material relied upon by the parties discussed above, and the parties’ oral evidence. The standard of proof applied by the Court in respect to the evidence is the balance of probabilities. The Court does not propose to set out the entirety of the evidence. Relevant evidence relating to the issues to be determined will be set out below and under the headings, “Balance sheet”, “Contributions”, and “Section 75(2)”. Where there is any conflict between the evidence referred to below and in those sections of these Reasons, the evidence under the headings “Balance sheet”, “Contributions” and “Section 75(2)” shall take precedence.
The presentation of each parent during their oral evidence was unremarkable; each usually sought to give responsive answers to questions asked of them.
The wife’s evidence
The wife stated that herself and the husband are residing in the building without an occupation certificate.
It was put to the wife that her litigation funding lender OO Company should be repaid from her share of the Court ordered property adjustment, to which the mother disagreed. She stated that she had to spend money by reason of things that the husband had done. She referred to the husband having allegedly lied to lawyers, inadequate disclosure, and wastage of insurance monies.
It was put to the wife that she had drawn out the proceedings, to which she denied.
The wife agreed that she had travelled overseas in mid-2015, and on three occasions each in the years 2016 and 2017. She stated that either herself or the husband paid for these trips or her father paid.
The wife agreed that the Commonwealth Bank was commencing eviction action. The wife stated that if this occurred, she would seek to live for three months in a domestic violence refuge and then live elsewhere. She stated that her father was presently living with her.
The wife commenced employment as a health care worker at a clinic in mid-2021. She was working about 65 hours per fortnight on average which was later reduced to 37.5 hours. The wife stated that it was her medical condition that led to her seeking reduced hours. The wife stated that it was her intention to return to part-time work as a health care worker. She stated that possibly early next year she would make an application for such employment.
She stated that she had graduated in 2002 as a professional.
The wife stated that Ms J’s caveat on the property at Suburb H was preventing a subdivision from occurring.
The wife stated that since early 2024 she had spent $84,000 on living expenses sourced from her litigation funder. She had spent $20,000 on living expenses sourced from her father. She stated that these expenses included furnishings for the children’s bedrooms.
The wife stated that rental accommodation near her present residence, for a three-bedroom house, can be between $700 and $1,000 per week.
The wife stated that her father expected to be paid back for monies lent to her.
In re-examination, the wife stated that she had been involved in the construction work of the Suburb H property in numerous respects, including liaising with the architect for the house plans, and she carried out project management type work to the extent of about 75 per cent of this work, compared to the husband’s approximate 25 per cent. She stated that the construction work was now finished.
The husband’s evidence
The husband was shown a letter he wrote to a Local Court Magistrate in late 2012 in which he stated, inter alia, that the parties were happily married with two children. He stated that he recalled the letter.
Later, in re-examination, he stated that at the time of that letter he was applying for Australian permanent residency. He stated that the AVO (the subject of the Local Court proceedings) put that application on hold. He stated there was no guarantee that he would obtain Australian residency. He stated he wrote this letter so that he could support the mother, for the sake of the children, to obtain permanent Australian residency. He stated that if he had not written the letter he would have had to exclude the mother from the Australian residency application.
The husband stated that he recalled an email letter he sent on 28 November 2012 to a broker referring to having notified his solicitor that his wife’s name should be added to the contract for purchase of the Suburb H property.
The husband stated that he did present himself and the wife as a family to other people.
The husband was cross-examined about financial arrangements between his company GG Pty Ltd, HH Pty Ltd, and JJ Company. He denied that he had diverted income to HH Pty Ltd.
The husband stated that in late 2024 he was terminated from his position with HH Pty Ltd. His poor performance was one of the reasons for such termination.
The husband’s attention was drawn to BAS statements of GG Pty Ltd from January 2021 to March 2021 and from April 2021 to June 2021. The husband stated that the reduction in total sales of GG Pty Ltd recorded for the latter period was because he was not in a capacity to work at the time and was medically unwell. He was asked how much he was contracted to carry out after March 2021, to which he responded that he contracted out the services to HH Pty Ltd to manage on his behalf. He stated he did not have direct employment with JJ Company.
The husband denied that he had presented his income to the court as lower than what it actually was, and lower than what his capacity to earn was.
In relation to a loan obtained by the husband from Ms J for about $200,000, in late 2018, the husband stated that there had been an original handwritten contract that he signed at about that time. The husband stated that subsequently, in about 2021, retrospective loan agreements were entered into.
The husband confirmed that in 2020 he had lost $210,000 in relation to a business investment. The husband stated that he was aware of risks related to these investments. He stated that the two persons that he dealt with appeared to be representing a legitimate looking business. He had logged onto their laptop in their presence in 2020 on different occasions. He would observe his account balance increasing on their laptop. In late 2020 he observed a balance of $680,000. He was asked whether he considered paying that balance towards the mortgage loan, to which he answered in the affirmative and stated that business owners were going to transfer his funds to a physical wallet but they were due to return with this the following week.
The husband confirmed that in early 2021 he had received about $205,000 from PP Company in compensation monies relating to the original builder for the Suburb H property which was disbursed to his friends by virtue of their loans to him.
The husband stated that as at September 2023, at a time when QQ Law Firm, solicitors for the CBA bank, were demanding on behalf of the bank payment of $20,847, he did not believe he had a capacity to pay that sum.
The husband was asked whether in relation to a further loan allegedly made to him by Ms J in May 2022 of $100,000 any security was afforded to Ms J. The husband stated that he believed a loan agreement was made for him to repay that amount.
The husband acknowledged receiving $19,500 by way of loan from Ms J to him in February 2024. He acknowledged receiving a further $75,000 by way of loans to him from Ms J in March 2024. He stated that he is yet to sign loan agreements at with her in relation to these loans but which he will sign. He stated that these loans were for legal fees incurred throughout these proceedings. It was put to the husband that these alleged loan funds were effectively his money and that Ms J was simply holding those funds on his behalf, to which the husband denied. He denied that these funds represented a financial resource that he had with Ms J.
The husband denied that he held as a financial resource monies allegedly diverted by him to HH Pty Ltd since April 2021.
The husband agreed that when he started working with HH Pty Ltd that he was paid a fixed salary irrespective of the exact hours he worked. The husband stated that since April 2021 his work hours had been less than 40 hours per week.
The husband stated he was trying his best to meet his child support obligations.
The husband did not dispute that at least by late 2021 the Suburb H property had been placed on the market for sale. He confirmed that it was his intention by listing this property for sale that Ms J and other lenders to him would be repaid their loans. His intention was that such lenders would be repaid their loans in priority to the parties receiving any monies from the proceeds of sale of the property.
The husband stated that all lenders to him had paid in cash apart from Mr K.
The husband stated that he had prepared loan agreements between himself and the various lenders to him which had been backdated to the date of the loans.
The husband acknowledged that, having already utilised the $205,000 insurance payout from PP Company received in early 2021 to pay off loans, it became necessary to apply funds from the sale of the Suburb F property to complete construction of the Suburb H property.
As to a total sum of $33,154, referred to by the wife’s father in Annexure C to his affidavit regarding Suburb F mortgage payments, the husband stated that although he was not aware that he had made these repayments, the sum representing these mortgage payments could be repaid to the wife’s father.
The husband agreed that the (original) builder relating to the Suburb H property construction was paid $727,000 from the construction loan.
As to the report of Mr AA, building expert, the husband stated, inter alia, that where this expert did not accept a variation, the product had in fact been installed.
The husband disputed that he had available funds from 2020 to repay anyone that he had borrowed money from.
It was put to the husband that instead of using the insurance payout funds from PP Company he could have used monies from his investment to repay the lenders to him. The husband stated, inter alia, that this investment was booming in 2020, and that time was the right time to invest. He stated that he made a choice to invest in this company thinking that by the end of 2020 he would withdraw the funds and pay out, inter alia, the mortgage debt.
The husband acknowledged that in late 2022, early 2023, his solicitor was writing to the wife asking permission to release funds from the Suburb F trust funds to pay RR Company, being the builder who was to complete the incomplete and/or defective works (of the original builder).
The husband stated that he was not renting rooms at the Suburb H property from about March 2020. He denied that between March 2020 and May 2023 he was earning $500 per week in rent. He agreed he advertised the rental of rooms in March 2023. The husband stated that in June 2023 he had boarders living in his home however they were more like a nanny service and no rent was received from them. He denied receiving $510 per week rent from June 2023. He denied receiving rental income between January 2024 and April 2024. He denied presently having cash monies totalling about $119,000 from rental income since June 2023.
He confirmed to the court that he received rental income from April 2024 to September 2024; he was renting out three rooms and had received cash from his tenants and now had about $25,000 in cash from this rental income.
The husband acknowledged that his business GG Pty Ltd had purchased a new motor vehicle in February 2021 for $40,000.
The husband stated he had commenced proceedings in NCAT in early 2019. He stated that construction of the Suburb H property commenced in early 2016. Construction was expected to take 26 weeks. At the end of 26 weeks construction was not completed; he stated that he did not think about claiming additional compensation from the builder ($50 per day) pursuant to the building contract at that time.
The husband confirmed there was no occupation certificate for the property.
The husband acknowledged that the wife was instrumental in obtaining certificates for work completed and that she worked with the surveyor. He acknowledged that the parties’ original goal was to subdivide the Suburb H property once construction works were completed. The husband stated that his view was that the proposed subdivision was off the table once the CBA bank obtained an order for possession of the property. In this context he stated that it was now too late to obtain an occupation certificate, despite an occupation certificate being advantageous to a potential purchaser of the property.

The Court does not propose to set out the entirety of the husband and Ms J’s evidence in this context.
The husband stated that original handwritten loan agreements between himself and Ms J from 2016 to 2019 were all kept at the wife’s residence. He stated that since moving out of the family home in 2019 he does not have access to those documents. The Court accepts this evidence.
Ms J stated she had lent $200,000 to the husband in late 2018 and paid him in cash. She stated she had not withdrawn this cash from her bank account but that it was sourced from her father, in particular. She stated that she had used a withdrawal slip, relating to a transaction with her mother, to evidence the loan to the husband.
Ms J stated that she had lent $10,000 to the husband in late 2018 and paid him in cash.
Ms J stated that she had lent $58,000 to the husband in early 2019 and paid him in cash at this time. She stated that she had a lot of cash with her on many occasions. She agreed that on the same date she had purchased a car for $58,000 (from WW Pty Ltd). The Court accepts her evidence in this context, inter alia, that she had used the withdrawal slip relating to the car purchase to evidence the loan of $58,000 made to the husband.
Ms J stated that she had lent $35,000 to the husband in mid-2019 and paid him cash. The witness stated that the $35,000 was originally intended for her father’s friend’s son Mr XX to whom she had previously given money before. However, this person had come back to her and told her he didn’t need the money. The witness denied having given $35,000 to this person and not to the husband.
Ms J stated that she had lent $100,000 to the husband in mid-2022 and which was transferred to the husband electronically. This loan was evidenced in the husband’s bank statements.
Ms J stated that the typed loan agreements attached to her affidavit and marked A were not signed at the time the loans were advanced to the husband. They were created retrospectively. She stated that they would have been signed in mid-2021. She stated that these documents were used to commence proceedings in the District Court of NSW (relating to the indebtedness of the husband to her relating to the alleged loans). She stated that when she came to Court for these proceedings, having been added as a party, she was told by the Court that a caveat means nothing and that she should get a judgment, which she did.
Not without relevance, particularly in relation to the wife’s contention that the alleged loans from Ms J to the husband were a sham, Ms J stated that she does not care where the monies come from to repay the judgment debt and she expects to be repaid.
The Court observes that Ms J engaged lawyers, YY Law Firm, to prepare a caveat on her behalf, and she instituted proceedings in the District Court of NSW in relation to the judgment debt she ultimately obtained there.
The Court accepts the husband’s evidence that there were significant periods following commencement of the building works for the Suburb H property when he was experiencing financial stress arising out of, inter alia, the considerable variation costs that he paid in cash to the builder and tradespersons.
As to the costs of the variations for the construction work for the Suburb H property, the court accepts the evidence of the husband where in conflict with the evidence of the building assessor Mr AA. In particular, the Court accepts the evidence of the husband as to the payments he made for variations for the construction work at the Suburb H property in relation to which he could not produce documentation required by Mr AA; for example, the Court accepts the husband’s evidence that certain variations that he paid for were referred to in text messages.
The Court observes that the wife conceded that the husband was responsible for paying the construction costs for the Suburb H property without applying her own employment income.
The Court observes that the wife conceded that the husband was solely responsible for the financial support of the youngest child while she lived with him during the approximate four-year period prior to about December 2023.
The Court observes that the husband’s loans from Ms J were initially due to be repaid in about 2019, apart from the loan made in late 2022 which was repayable in 2023.
The Court observes that the 15 per cent interest rate imposed by Ms J in relation to the loan of $100,000 made to the husband in mid-2022 was accepted by the husband and there was no significant evidence before the Court to indicate that such interest rate was unreasonable in circumstances, in particular, where Ms J had not been repaid previous loans made to the husband.
Item 18 shall remain in the balance sheet.
As to item 19, this was a contended loan in the sum of $72,000 owed by the husband to Mr K, which the wife disputed.
The Court accepts the husband’s evidence in relation to this loan.
There was no affidavit from Mr K, however on 29 March 2022 the wife sent an email to the husband’s lawyers stating, inter alia, that she had noted from the husband’s CBA bank accounts the loan from Mr K of $65,000 and that the husband had told her about this in 2021. She had also asked the husband’s lawyer why the husband had not declared this loan.
The Court observes that in May 2021 when the husband requested from this lender a loan of $15,000, the husband accepted an interest rate charged at 4.7 per cent based upon daily balances for the period until all the funds had been repaid in full. The Court also observes that in May 2021 when the husband requested from this lender a loan of $50,000, the husband accepted an interest rate charged at 4.7 per cent again based on daily balances for the period until all the funds have been repaid in full.
Item 19 shall remain in the balance sheet.
As to items 20 and 25, item 20 was the wife’s income tax liability in the sum of $18,397, and item 25 was the wife’s toll debt to various providers in the sum of $7,000, which were both disputed by the husband.
The wife gave no particulars in her trial affidavit relating to these items. The income tax debt of $18,397 was stated by the wife in her Financial Statement filed 10 October 2024 to relate to the financial year ending 30 June 2021 which is a post-separation alleged debt. There is no evidence that the toll debt arises out of the parties’ relationship.
These items shall be removed from the balance sheet.
As to item 21, a contended loan from the wife’s father to the wife in the sum of $72,492, the wife’s father stated in his affidavit filed 7 October 2024 that since March 2024 to date he has loaned $68,750 to the wife being for her legal fees and living expenses for herself and the children. Such legal fees are not recoverable as a liability of the wife arising out of the parties’ relationship. Any living expenses relating to the loan would appear to arise well after separation date in November 2019. Item 21 shall be removed from the balance sheet.
As to item 22, item 22 was an alleged loan liability of the wife to her father, in the sum of $170,000. The wife stated that some of this amount was owed for legal fees.
As to sums totalling $49,925 being for the purpose of “[Suburb H] Joint Use” and referred to in annexure C to the wife’s father’s affidavit, the wife’s father stated that the wife had told him that she used these monies for both legal fees and personal expenses. In this context, there is no evidence available to the Court to distinguish between what was spent on legal fees and what was spent on personal expenses, and further there is no available evidence relating to the nature of such personal expenses.
As to monies referred to as “Personal + Children” or “Personal – car” in annexure C, being a total sum of $24,525, the wife’s father stated that these were monies he lent the wife for her personal needs or the needs of the children at her request. The Court observes that these sums of money substantially postdate separation in November 2019. The wife provides no significant particulars as to her expenditures in this context, apart from referring to certain expenditure made by her after the youngest child came into her care in about December 2023, being a date well after separation in November 2019.
As to monies referred to as “[Suburb F] loan repayment” in annexure C, and totalling $33,154, the wife’s father referred to a Court order of 23 February 2022 relating to the wife repaying him $20,000 for money he had spent paying the mortgage loan for the property at Suburb F. He stated he gave authority for the wife to use that money to pay criminal legal fees but that he regards this sum as still owing. The difference between the two figures is $13,154.
As to monies referred to as “Personal” in annexure C, they substantially arise on dates after separation in November 2019. Other isolated expenditures in annexure C also postdate the date of separation in November 2019.
The Court observes that the sum of $20,836 is referred to as the wife’s legal fees for DD Law Firm incurred in about November 2022. There is another sum of $20,000 referred to for criminal law fees. These sums do not arise out of the parties’ relationship being for legal fees.
The husband conceded that the sum of $19,475 could be treated as a matrimonial liability. This sum shall appear as the entry for item 22.
As to item 23, the liability of the wife to OO Company for litigation funding, in the sum of $492,000, the wife obtained such funding in April 2023 in her own name. The wife was the only person who had access to this litigation funding. The wife stated that this funding was mainly used for her legal fees and interest payable. She stated she also spent about $84,000 on living expenses from such funding. The wife acknowledged she had received income separately from government (family) payments and child support. The Court does not accept that OO Company ever agreed to the wife utilising such litigation funding to make mortgage repayments on the Suburb H property, and in any event it never was so used.
As to the alleged $84,000 spent on living expenses from such litigation funding, the Court is not persuaded that such living expenses arise out of the parties’ relationship with the Court observing that the parties finally separated in November 2019 and the litigation funding loan was taken out in April 2023. Item 23 shall be removed from the balance sheet.
As to item 24, the wife’s contended costs to complete construction (at the Suburb H property) in the sum of $14,500, there is no significant evidence before the Court to establish this liability, and this item shall be removed from the balance sheet.
As to items 31 to 34, under the heading Financial Resources, these were not the subject of significant evidence or submissions, and they shall be removed from the balance sheet.
The Court finds that the parties’ balance sheet is as follows:

BALANCE SHEET

Ownership Description Value

Assets

1 H G Street, Suburb H $3,595,000

2 H Investment $8,045

3 H Cash at Bank – CBA - #...06 $526

4 H Household Contents $5,000

5 H Cash from Rental Income $25,000

6 J Monies in Trust – E Law Firm $18,208.07

7 W Cash at Bank – CBA - #...28 $8

8 W Cash at Bank – CBA - #...58 $96

9 W Cash at Bank – Country N - [omitted] (…16) $38

10 W Motor Vehicle 1 $8,000

11 W Household Contents $9,000

12 W Jewellery $10,000

Total $3,678,921

Liabilities

13 H Judgment debt – CBA $1,378,838

14 H Judgment debt – Ms J $582,728

15 H Loan – Mr K $72,000

16 J Loan – Mr L $19,475

Total $2,053,041

Superannuation

Member Name of Fund Type of Interest Value

17 H Super Fund 1 Accumulation $172,814

18 H Super Fund 2 $25,117 Country M 0.67 Accumulation $25,117

19 H Super Fund 3 $3,337 Country N x0.92 Accumulation $3,336

20 W Super Fund 3 $16,295 Country N x0.92 Accumulation $15,472

21 W Super Fund 4 Accumulation $9,821

Total $226,561

Net Total Assets

Total $1,852,441

Financial Resources

35 H - Motor Vehicle 2 $15,000

Accordingly, the Court finds that the parties’ assets are $3,678,921. The parties’ liabilities are $2,053,041. The parties’ net assets excluding superannuation are $1,625,880. The parties’ superannuation assets are $226,561. Their total relevant net assets including superannuation are therefore $1,852,441.
SECTION 79(2) OF THE ACT
The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity.
CONTRIBUTIONS
The parties married in 2004 in Country N.
On the balance of probabilities, the Court finds that whilst the parties separated for about 12 months in 2010 in Country N and from about 2012 to about 2015 in Sydney (during which latter period time they lived together under the one roof), by about late 2015, when they jointly purchased a property at Suburb F, they had likely resumed their relationship, and they lived together until about November 2019 when they separated.
In this context, the Court accepts the husband’s evidence, given in his re-examination, explaining why in his letter to the Local Court dated late 2012 (Exhibit J) he had stated the parties were happily married when in fact that was not the case, the Court accepting the husband’s evidence as to events relating to a separation in mid-2012. The Court accepts the husband’s evidence that he had stated in the letter that he was happily married because he had not wanted to prejudice a permanent residency application to the Australian Government. The Court accepts the evidence of Mr U relating to his discussions in 2013 with the husband relating to the husband having separated from the wife. A child support assessment was registered on 14 May 2014, with the Court observing that child support was only collectable by the Child Support Agency since 21 December 2020 (see the AAT Reasons for Decision of mid-2021 in Tab 9 of Exhibit MRA1 to the husband’s affidavit filed 21 February 2024). The wife, in annexure P to her affidavit filed 25 March 2024, in an email dated 17 June 2021 to ZZ Company refers to an earlier email dated 17 December 2014 in which she referred to the parties’ plan to build a house on the Suburb F property. And finally, the Court observes the significant joint purchase by the parties of the Suburb F property in about late 2015.
As at cohabitation commencement, the husband owned a property at Suburb AB, Country N, which he had purchased for $300,000 in late 2003. It was worth $330,000 at cohabitation. He funded the purchase and paid the mortgage for this property. The initial mortgage loan was $280,000. The husband also had $40,000 cash in bank as at cohabitation, together with superannuation from Country M in the sum of $12,500. At cohabitation the parties lived in the Suburb AB property.
As at cohabitation commencement, the wife had a student loan in the sum of about $20,000. She had cash $12,000.
In 2004 the husband purchased a block of land in Suburb AC, Country N. Each party contributed $10,000 towards the deposit. An additional mortgage expense of $14,200 was paid by the husband. The husband met the mortgage loan contributions. This property was sold by him in 2005 for a profit of $10,000.
In 2005 the husband purchased a property in Suburb AD, Country N, for $310,000. The parties lived in this property. The property was subdivided into two properties, 1 and 2. The husband paid the mortgage, rates, plans, building and development costs through his income. When the parties were renting other premises during development, the husband paid the rent. The husband, after subdivision, had sold the main house for $285,000. He sold No 1 for $440,000 in 2009.
The wife worked in employment in Country N during the parties’ relationship during certain periods as asserted by the husband. She had ceased working in employment in Country N to care for the first child in 2009. She likely contributed some part of her income at least for the payment of household expenses (as did the husband) whilst earning income prior to ceasing employment in 2009.
In 2009 the parties purchased a property at AE Street, Country N for $410,000 through a mortgage loan. Again, the eldest child was born in 2009 (see below for the Court’s findings regarding care of the children). The husband paid for the mortgage loan expenses relating to this property. The property was rented. This property was sold in 2013 for $575,000.
The parties moved to Australia and resided in a rental property at Suburb UU from mid-2011 until early 2013. They rented premises at G Street, Suburb H in late 2013. The husband’s income paid the rent and bills.
In late 2013 the Suburb H property was purchased for $600,000 in the husband’s name. On the balance of probabilities, the parties both contributed financially towards the deposit for this property, likely sourcing funds from the sale of Country N assets. The wife’s father had lent the parties about $75,000 (later repaid) to assist with the deposit. The husband carried out repairs to this property, including a garage conversion to accommodation. He paid rent prior to settlement. In 2016 the old home was demolished for a house construction.
The husband paid the mortgage and utilities for the Suburb H property from settlement to about late 2022 (albeit he was in arrears by that time) when mortgage arrears were paid from the Suburb F sale proceeds (see below).
In late 2015 the husband paid a deposit of $36,050 for the property at Suburb F with the purchase price being $360,500. Both parties were recorded as purchasers of this property. Settlement of the purchase occurred in early 2017. The bank held the Suburb H property as security to finance the purchase. The husband had also made a payment of $14,000 to AF Company as this was a builder lot, stamp duty $6,732, and conveyancing fees of $1,900. The husband met the mortgage loan repayments for this property up to about January 2021. However, the wife’s father assisted with mortgage repayments in the sum of about $46,649 between early 2019 to August 2021. In January 2017 the wife’s father had transferred $7,990 to the husband by way of loan to him. This property was forced to be sold in June 2021 by the developer; there had been a builder clause in the contract which required completion of the build by late 2021. The property was sold for $790,000 with the net proceeds, after paying off the mortgage loan, amounting to $433,271, and which funds were placed in trust.
In respect of additional costs for the construction of the work at the Suburb H property, the husband was required to obtain personal loans from family and friends. The builder did not complete the construction work and walked off the job. The husband’s income had funded the construction.
The Court accepts the husband’s evidence that he experienced significant financial pressure and loss by reason of, inter alia, the delays in completion of the construction work for the property, prolong payment of rental, and additional costs for the construction work.
The husband borrowed moneys from various third parties to assist him in meeting his financial obligations, including in relation to mortgage loans obtained in respect to the Suburb H property. He repaid most of these loans however there are significant funds owed to Ms J. He also owes money to a lender being Mr K.
The husband made a report to Fair Trading regarding the builder for the construction and NCAT proceedings ensued which the husband conducted. Ultimately a rectification order was made by Fair Trading which the builder complied with partially but not completely. A final order was made by NCAT in mid-2020. Then the husband dealt with PP Company seeking a money order for his losses. He eventually obtained an agreement with PP Company in the sum of $199,223. He utilised these funds to repay some of his personal loans.

On 15 November 2022 the parties, by consent, agreed to Court orders providing, inter alia, that arrears owing under mortgage loans from the CBA bank would be paid from trust funds held by a trustee solicitor in relation to the net sale proceeds of the Suburb F property. They also agreed to regular instalments in respect of the mortgage, council rates and water rates in respect of the Suburb H property be met from these trust funds for seven months. The wife did not comply with these orders in a timely fashion. Thereafter, requests by the husband through his solicitors to the wife to authorise release of further trust funds for payment of mortgage loan arrears were refused by the wife, including at a time when the CBA were threatening legal action.
The husband was significantly involved in the construction process for the Suburb H property, both in relation to the original builder and the later remedial builder. He was significantly involved in the compensation process with NCAT. The wife also provided significant assistance in relation to the construction process as asserted by her (see for example, paragraphs 78 to 79 of the wife’s affidavit filed 25 March 2024).
The wife has resided in one of the houses at the Suburb H property since separation in November 2019. She made no financial contribution to the mortgage loan for that property relating to that occupation since separation.
The husband has resided in one of the houses at the Suburb H property post separation in November 2019. He received some rental income in relation to the house that he resides in from about April 2024 to date in the sum of about $25,000.
In about 2021 the wife, having obtained a health care qualification, commenced working in employment at clinics, working up 70 hours per fortnight. She reduced her work to about 37.5 hours per fortnight in mid-2023 and later ceased employment. She likely made contributions towards the family’s day to day household expenses from her income.
As to homemaker and parenting contributions, the husband was primarily responsible for vacuuming and cleaning. He usually cooked for the family. The Court would assess that his homemaker contributions from cohabitation date to about the birth of the first child in 2009 were likely greater than the wife’s contributions in this regard. He later assisted with school drop-offs and pickups when the children were of school age. The Court finds he made a significant contribution to the parenting and care of the children but only when he was home and not at full-time work. When he was at work the wife was the children’s primary carer and she probably contributed to other aspects of housework.
Post separation, the youngest child lived with the husband and he cared and maintained her up to December 2023. Post separation the eldest child lived with the wife and she has cared for and maintained her to date, with this child spending little time with the husband since October 2021, noting the husband has been paying child support. From December 2023 to date both children have been living with the wife, and the youngest child has not spent time with the husband and the eldest child little time with him.
The wife has likely indirectly contributed to the husband’s ability to accumulate superannuation through her care of the children during the above periods as discussed.
The wife contended that the parties’ contributions should be assessed as equal.
The husband contended that his contributions should be assessed at 90 per cent and the wife’s at 10 per cent.
Taking into account all the above discussed matters, and viewing the parties’ contributions holistically, the Court finds that the parties’ contributions to the parties’ net assets including superannuation of $1,852,441 should be assessed as 57.5 per cent to the husband and 42.5 per cent to the wife resulting in a disparity of $277,866 in the husband’s favour.
SECTION 75(2) OF THE ACT
The wife is aged 46 years. The husband is aged 44 years.
The husband’s health position is satisfactory albeit he has experienced anxiety and depression in recent years in connection with the family’s financial stresses.
The wife has experienced some anxiety and significant depression for which she received treatment; her treating psychiatrist has not seen her since January 2024. The wife’s medical condition has been the subject of positive treatment this year through a specialist, with that doctor stating that the prognosis for that medical condition is highly variable and patients can achieve long term stability with adequate therapy but can also have relapses and remissions during their lives. The wife suffers from some other conditions but it is not clear whether they impact her working life.
The wife has previously worked as a health care worker earning $1,204 gross per week (see her Financial Statement filed 13 December 2021). She was working about 65 hours per fortnight on average which was later reduced to 37.5 hours by reason of her medical condition in mid-2023. The wife stated that it was her intention to return to part-time work possibly early next year. She is now solely caring for the children.
The wife has professional qualifications in construction and has worked in this field but many years ago.
The husband’s Financial Statement filed 21 February 2024 states that his weekly income in his business is about $120,000 gross per annum. His work for HH Pty Ltd came to an end in late 2024. However, he has previously worked as a professional for a significant period and his income has been as high as about $200,000 gross per annum.
The Court would assess the husband’s income earning capacity as being significantly greater than that of the wife.
The children are aged 15 and 13. The wife has had the primary care of both children since about December 2023 (noting that she had primary care of the eldest child since separation in November 2019). The children are now living with the wife and spending little to no time with the husband. There is a real chance that the children may remain living with the wife for quite some time. There is a real chance that the children will soon begin to spend some time with the husband. There is a possibility that the youngest child may choose to return to live with the husband at some time in the future before she turns 18 years. The husband pays regular child support.
The husband’s superannuation is $201,267. The wife’s superannuation is $25,293.
The wife contended that there should be an adjustment under section 75(2) of 20 per cent.
The husband contended that there should be no adjustment under section 75(2) for either party.
Taking into account the above matters, there should be an adjustment of 7.5 per cent in favour of the wife. This results in an adjusted contributions finding of equality between the parties.
JUSTICE AND EQUITY
The wife sought a number of orders relating to the Suburb H property, including the transfer of the property to her, and her appointment as trustee to cause the completion of building works and obtain an occupation certificate. The husband submitted, correctly, that these orders cannot be made in circumstances where the Commonwealth Bank is in legal possession of the property, and where the wife has conceded that the Commonwealth Bank is not on notice of the orders sought by her and therefore has not been afforded procedural fairness. The Court proceeds on the basis that it is likely that there will be a mortgagee sale of the Suburb H property. The Court has set out below certain calculations based upon its adjusted contribution findings and its findings of asset values and liabilities in relation to the balance sheet. The Court recognizes that a mortgagee sale of the Suburb H property may in fact result in that property being sold for a sum less than the Court’s found value for that property. Accordingly, the Court’s discussions below should be understood subject to that possibility.
The parties should each receive half of the net property pool including superannuation ($1,852,441) being $926,220 each.
Should the wife retain:
(a)Half the monies in trust: $9,104;
(b)Her cash at bank: $104;
(c)Her car: $8,000;
(d)Her household contents: $9,000;
(e)Her jewellery: $10,000;
(f)Her superannuation: $25,293;
leaving net $61,501,
and the husband retain:
(a)Half the monies in trust: $9,104;
(b)His investments: $8,045;
(c)His cash at bank: $564;
(d)His household contents: $5,000;
(e)His cash from rental income: $25,000;
(f)His superannuation: $201,267;
totalling $248,980,
then, from the net proceeds of sale of the Suburb H property, $2,216,162 ($3,595,000 less CBA judgment debt $1,378,838) less the following liabilities of the parties:
(a)Judgment debt Ms J: $582,728,
(b)Loan Mr K: $72,000,
(c)Loan Mr L: $19,475,
such three liabilities totalling $674,203, and when deducted from $2,216,162 leaves net $1,541,959,
then from such sum of $1,541,959, the wife will need to receive $926,220 less her retained assets of $61,501, being net $864,719, and the husband will need to receive $926,220 less his retained assets of $248,980, being net $677,240.
From the wife’s net $864,719, and perhaps also from her half share of the trust monies, $9,104, she will probably need to repay at least these liabilities which did not enter the balance sheet: namely her income tax of $18,397, the sum of $223,017 owed to her father, her OO Company litigation funding debt, $492,000, and toll debt $7,000; these debts total $740,414. From $873,823 ($864,719 + $9,104), having paid off these debts, she would be left with about $133,409; it is readily apparent that the wife’s incurring of these debts, which did not enter the balance sheet, in particular her OO Company litigation funding debt of $492,000, have significantly contributed to this likely practical outcome. Assuming she returns to work, and with potential government family benefits and child support, she will likely have to obtain rental accommodation for herself and the children.
The husband will be left with his retained assets, $248,980, and the above sum of $677,240. He may well be in a position to buy real estate accommodation or rent and invest.
The Court is of the view that its proposed property adjustment orders will represent a just and equitable property settlement between the parties.
The Court makes orders accordingly.

I certify that the preceding two hundred and ninety-eight (298) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.
Associate:
Dated: 7 November 2024

File number(s):	PAC 6761 of 2021
Judgment of:	JUDGE NEWBRUN
Date of judgment:	7 November 2024
Catchwords:	FAMILY LAW – PARENTING – Orders made in the best interests of the children. FAMILY LAW – PROPERTY – Just and equitable property adjustment orders made.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61D, 75, 79
Cases cited:	Lotta & Lotta [2017] FamCA 50
Division:	Division 2 Family Law
Number of paragraphs:	298
Date of hearing:	14 – 18 October 2024
Place:	Parramatta
Counsel for the Applicant:	Mr Finch
Solicitor for the Applicant:	Pannu Lawyers
Counsel for the Respondent:	Ms Mahony
Solicitor for the Respondent:	A Plus Legal
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

Table of Corrections
12 December 2024	In paragraph 280, the reference to “42 per cent” has been corrected to “42.5 per cent”.

PAC 6761 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS SABET Applicant
AND:	MR ABDOO Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	7 NOVEMBER 2024

BALANCE SHEET
Ownership		Description		Value
*Assets*
1	H	G Street, Suburb H		$3,595,000
2	H	Investment		$8,045
3	H	Cash at Bank – CBA - #...06		$526
4	H	Household Contents		$5,000
5	H	Cash from Rental Income		$25,000
6	J	Monies in Trust – E Law Firm		$18,208.07
7	W	Cash at Bank – CBA - #...28		$8
8	W	Cash at Bank – CBA - #...58		$96
9	W	Cash at Bank – Country N - [omitted] (…16)		$38
10	W	Motor Vehicle 1		$8,000
11	W	Household Contents		$9,000
12	W	Jewellery		$10,000
Total		$3,678,921
*Liabilities*
13	H	Judgment debt – CBA		$1,378,838
14	H	Judgment debt – Ms J		$582,728
15	H	Loan – Mr K		$72,000
16	J	Loan – Mr L		$19,475
Total		$2,053,041
*Superannuation*
Member		Name of Fund	Type of Interest	Value
17	H	Super Fund 1	Accumulation	$172,814
18	H	Super Fund 2 $25,117 Country M 0.67	Accumulation	$25,117
19	H	Super Fund 3 $3,337 Country N x0.92	Accumulation	$3,336
20	W	Super Fund 3 $16,295 Country N x0.92	Accumulation	$15,472
21	W	Super Fund 4	Accumulation	$9,821
Total		$226,561
*Net Total Assets*
Total		$1,852,441
*Financial Resources*
35		H - Motor Vehicle 2		$15,000