Sastry & Sastry - [2023] FedCFamC1F 816

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sastry & Sastry [2023] FedCFamC1F 816

File number: PAC 5927 of 2017

Judgment of: BRASCH J

Date of judgment: 26 September 2023

Catchwords:
FAMILY LAW – PARENTING – Where the children have lived with the mother 10 nights per fortnight and four nights per fortnight with the father since 2019 – Where the father sought to reverse the living arrangements – Orders made for the children to remain with the mother 10 nights per fortnight – Where the mother and ICL sought the mother have sole parental responsibility – Where the father sought sole parental responsibility in his favour - Order made for the mother to have sole parental responsibility – Where father and ICL contend the mother’s partner posed an unacceptable risk to the children –Where the mother agreed to a restraint if the Court found unacceptable risk – Unacceptable risk to the children found – Restraint made.

FAMILY LAW – PROPERTY – Balance sheet, contributions and s 75(2) of the Family Law Act 1975 (Cth) factors in dispute – Where monies said to be a loan from 2004 is statute barred – Where both parties contend for add backs- Where both parties have contributions from their parents – Contributions adjustment made in husband’s favour – Adjustment made in wife’s favour for continued care of the children and financial resource of the paternal grandmother.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pts VII, VIII, VIIIAB ss 60B, 60CA, 60CC(2), 60CC(2)(a) 60CC(2A), 60CC(2)(b), 60CC(3), 61DA, 65DAA, 75(2), 79(1), 79(2), 79(4)

Cases cited:
Af Petersens and Af Petersens (1981) FLC 91-095

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; [1981] HCA 1

Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124

Bevan and Bevan (1995) FLC 92-600

Biltoft and Biltoft (1995) FLC 92-61

C & C [1998] FamCA 143

Cotton & Cotton (1983) FLC 91-330; [1983] FamCA 18

Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Dovgan & Dovgan [2021] FamCA 306

Fielding and Nichol [2014] FCWA 77

Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251

G and G (2000) FLC 93-043; [2000] FamCA 1075

G & C [2006] FamCA 994

Gabel & Yardley (2008) FLC 93-386; [2008] FamCAFC 162

Halstron & Halstron [2022] FedCFamC1A 65

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395

Hickson & Matthew [2022] FedCFamC1A 161

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78

Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127

Kowalski and Kowalski (1993) FLC 92-342; [1992] FamCA 54

Line and Line (1997) FLC 92-729

Loddington & Derringford (No 2) [2008] FamCA 925

M & M [1998] FamCA 42

M v M (1988) 166 CLR 69; [1988] HCA 68

Maine & Maine (2016) 56 Fam LR 500; [2016] FamCAFC 270

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

Mayne v Mayne (2011) FLC 93-479; [2011] FamCAFC 192

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Meadows & Meadows (No 3) [2020] FamCAFC 124

AJO & GRO (2005) FLC 93-218; [2005] FamCA 195

Perrin & Perrin(No 2) [2018] FamCAFC 122

Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52

Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173

W v W (1997) FLC 92-723

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [1998] FCA 806

Division: Division 1 First Instance

Number of paragraphs: 327

Date of hearing: 6 June 2022, 25–27 October 2022, 15–18 May 2023, 15–16, 21 and 23 August 2023

Place: Parramatta and Sydney

Counsel for the Applicant: Mr Watkins

Solicitor for the Applicant: John & Co Lawyers

Counsel for the Respondent: Mr Richards (6 June 2022, 25–27 October 2022, 15–18 May 2023, 15–16 August 2023)

Counsel for the Respondent: Mr Shaw (21 and 23 August 2023)

Solicitor for the Respondent: King & York Lawyers (6 June 2022, 25–27 October 2022, 15–18 May 2023)

Counsel for the Independent Children's Lawyer: Ms Stolier

Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates
ORDERS

PAC 5927 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS SASTRY

Applicant

AND:
MR SASTRY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BRASCH J

DATE OF ORDER:

26 SEPTEMBER 2023

THE COURT ORDERS THAT:
PARENTING
1.The mother shall have sole parental responsibility for all major long term decisions concerning X born 2008 and Y born 2011 (“the children”), but prior to making any such decisions:
(a)The mother shall consult the father with regard to any significant medical optical or educational issues and invite the father’s response in writing;
(b)The mother will consider the father’s response; and
(c)If no agreement is reached, then within 14 days the mother will make the final decision and advise the father in writing of that decision.

2.The children shall live with the mother other than when they are to spend time with the father as set out in these orders.

School Terms
3.The children shall spend time with the father as agreed between the parties in writing, and in default of agreement, each alternate week from the conclusion of school on Friday until the commencement of school on Tuesday with the father to collect the children from and deliver the children to their respective schools.

School Holidays
4.For the purposes of these Orders, school holidays shall be the holiday dates posted on the children’s schools’ websites.
5.Order 3 shall be suspended during school holidays and the children shall spend time with each parent as agreed between the parties in writing, and in default of agreement, as follows:
(a)For the short New South Wales school holidays:
(i)With the mother for the first half and the father for the second half in odd numbered years; and
(ii)With the father for the first half and the mother for the second half in even numbered years.

(b)With the father for the first half and the mother for the second half in summer holidays;
(c)For the purposes of calculating the school holiday period, and unless otherwise agreed in writing between the parties:
(i)School holidays commence from the conclusion of school on the last day of the school term and conclude at the commencement of school on the first day of the school term;
(ii)In the event that the children’s school holiday periods do not coincide, the school holidays are deemed to commence at the conclusion of the school term of the child whose school term finishes later, and conclude when the first child resumes school;
(iii)Changeover half-way through a school holiday period shall occur at 6.00 pm on the day that is the middle day of the first day and last day; and
(iv)In the event there are two (2) middle days, changeover shall occur at 6.00 pm on the first of the two (2) middle days.

Special Occasions
6.The children shall spend the following special occasions with each parent as agreed between the parties in writing, and in default of agreement, the children shall spend time with each parent as follows:
(a)With each parent during Christmas:
(i)With the father from 3.00 pm Christmas Eve until 3.00 pm Christmas Day, and the mother from 3.00 pm Christmas Day until 3.00 pm Boxing Day in odd numbered years; and
(ii)With the mother from 3.00 pm Christmas Eve until 3.00 pm Christmas Day, and the father from 3.00 pm Christmas Day until 3.00 pm Boxing Day in even numbered years.

(b)With each parent during the Easter period, irrespective of whether the Easter long weekend falls during school holidays or not, as follows:
(i)With the father from the conclusion of school on the Thursday before Good Friday until 6.00 pm on Easter Saturday, and with the mother from 6.00 pm on Easter Saturday until 6.00 pm on Easter Monday in odd numbered years; and
(ii)With the mother from the conclusion of school on the Thursday before Good Friday until 6.00 pm on Easter Saturday, and with the father from 6.00 pm on Easter Saturday until 6.00 pm on Easter Monday in even numbered years.

(c)With the parent with whom they are not ordinarily spending time with pursuant to these Orders on the children’s respective birthdays as follows:
(i)From the conclusion of school until 7.00 pm on a school day; or
(ii)From 4.00 pm until 9.00 pm on a non-school day; and
(iii)The parent with whom the child is ordinarily spending time with shall do all things to ensure the other child’s attendance on such occasions.

(d)If the father’s birthday falls on a day when the children are not ordinarily in his care, the children shall spend time with the father:
(i)From the conclusion of school until 9.00 pm on a school day; or
(ii)From 12.00 pm to 9.00 pm on a non-school day.

(e)If Father’s Day falls on a Sunday when the children are ordinarily in the mother’s care, the children shall spend that particular day with the father from 10.00 am to 8.00 pm.
(f)If the mother’s birthday falls on a day when the children are not ordinarily in her care, the children shall spend time with the mother:
(i)From the conclusion of school until 9.00 pm on a school day; or
(ii)From 12.00 pm to 9.00 pm on a non-school day.

(g)If Mother’s Day falls on a Sunday where the children are ordinarily in the father’s care, then the children shall spend that particular day with the mother from 10.00 am to 8.00 pm.
(h)If Diwali falls on a day when the children are not ordinarily in the mother’s care, the children shall spend time with the mother:
(i)From 6.00 pm until 9.00 pm on a school day; or
(ii)From 4.00 pm until 9.00 pm on a non-school day.

Changeover
7.All changeovers shall take place at the children’s schools where this is possible, otherwise changeover shall occur at a public venue as agreed to by the parties in writing and in the absence of such agreement at McDonald’s Restaurant at K Street, Suburb A.

Information and arrangements
8.Whilst the children are living with or spending time with each parent, that parent shall:
(a)Notify the other parent via text message and/or telephone call as soon as practicable should any of the children suffer a medical emergency, injury or illness requiring medical attention whilst in their care, and notify the other parent of the name and address of the health care professional or service that provides treatment for the children;
(b)Advise the other parent of any appointments for the purpose of each parent attending; and
(c)Consult with the children’s treating health care professional or service.

9.The parent with whom the children are living/spending time with shall:
(a)Be responsible for day-to-day decisions concerning the care, welfare and development of the children;
(b)Take the children to any extra-curricular activities or sporting activities the children are currently enrolled in and any other activities as agreed between the parties; and
(c)Inform the other party of all sporting, religious, cultural and educational activities in which the children are involved.

10.The mother shall do all acts and things and sign all documents necessary to authorise the father to:
(a)Obtain from the children’s school/s all notices, letters, newsletters, school reports, invitations or otherwise any other document pertaining to the children’s school and education;
(b)Attend parent/teacher interviews and/or other activities to which parents are invited;
(c)Discuss the children’s progress with their respective teachers; and
(d)Obtain copies of any medical documents including but not limited to reports, letters, tests, scans etc. from any of the children’s treating health care professionals and/or services.

11.The parties shall advise the other of any change to their landline and/or mobile telephone numbers and/or email addresses within 24 hours of such change occurring and any change to their residential address no later than 48 hours prior to such change occurring.
12.The parties shall encourage and not undermine each child’s relationship with the other party.
13.The father shall ensure that the children sleep in their own beds when they are in his care.

Communication
14.Each parent shall be at liberty to communicate with the children via any audio-visual communication mediums (including but not limited to telephone, FaceTime, Viber, WhatsApp, Skype or e-mail) whilst the children are living/spending time with the other parent, provided:
(a)Such communications are at reasonable times with reasonable frequency; and
(b)The other parent does not interfere with such communication or encroach on the children’s privacy during such communications.

Travel
15.Each party shall each be permitted to take the children on interstate and overseas holidays as agreed between the parties in writing, and in default of agreement, as follows:
(a)The proposed interstate and overseas holidays must coincide with the children’s normal school holidays and the children’s holiday time with the relevant parent;
(b)In the event a parent takes the children on holidays to any destination outside of the Sydney Metropolitan areas but within New South Wales, then the travelling parent shall, no later than 48 hours prior to the commencement of the holiday, inform the non-travelling parent of such travel, including the location/s and date/s of such travel;
(c)In the event a parent takes the children on holidays to any destination outside of New South Wales or Australia, then the travelling parent, no later than four weeks prior to the commencement of any overseas holiday and two weeks prior to the commencement of any interstate holiday, furnish to the non-travelling parent:
(i)An accurate itinerary including the state/states and/or country/countries that the travelling parent and the children will be travelling to, and the approximate dates on which the travelling parents and children will arrive and depart in each country/state; and
(ii)Contact telephone numbers and addresses at which the travelling parent and children will be staying during such travel;

(d)Whilst the children are out of Australia, the non-travelling parent shall be at liberty to communicate with the children via any audio-visual communication mediums (including but not limited to telephone, FaceTime, Viber, WhatsApp, Skype or e-mail) during such period; and
(e)The non-travelling parent will not seek an order for the immediate return of the children in the event their return to Australia has been held up for a reasonable period by unforeseen circumstances such as airline strikes, delay in flights or adverse weather conditions beyond the travelling parent’s control.

16.The children’s passports and travelling documents shall remain in the care and control of the mother, except for those periods that the father will be travelling overseas with the child in accordance with these orders.
17.If the children are to travel overseas with the father, the mother shall provide the children’s passports to the father within three (3) days of receiving a written request from the father, and the father shall return the passport to the mother within three (3) days of the children’s return to Australia.
18.The parents shall ensure the children hold a valid Australian passport at all times and for that purpose, at least six (6) months prior to the expiration of the child’s passport, the parents shall do all acts and things and sign all documents necessary to submit a passport renewal application with the Australian Passport Office and shall bear the costs of the renewal equally.
19.If either parent does not sign the documents necessary to renew the children’s passports, the other parent can apply for a renewal of passport without the parent’s consent, and their consent is waived.

Restraints
20.Each parent is restrained from:
(a)Denigrating the other parent, members of their family, and/or any other person with whom the other parent may maintain a genuine domestic relationship, in the presence or hearing of the children;
(b)Causing or allowing any third party to denigrate the other parent, members of their family, and/or any other person with whom the other parent may maintain a genuine domestic relationship with in the presence or hearing of the children;
(c)Exposing the children to violence including physical or verbal threats or intimidation, whether such violence, threats or intimidation is directed at the children, either parent, any member of either parent’s household and/or any person with whom either parent may maintain a genuine domestic relationship with;
(d)Discussing these proceedings in the presence or hearing of the children or permitting any third party to do so; and
(e)Making critical or derogatory remarks in relation to the other parent or referring in any way to the proceedings on social media.

21.The parties shall be restrained from relocating with the children outside a 60km radius of the present place of residence of the children, without the written consent of the other party or without Court Orders.
22.The mother be restrained from permitting or allowing the children to have any contact or communications with her partner Mr B. Compliance with this order, is a condition for the remainder of the above orders to remain in place.

Independent Children’s Lawyer
23.The Independent Children’s Lawyer shall be discharged 12 months from the date of these orders.
24.Upon receiving their entitlement from the s 79 property proceedings, the mother and the father shall each pay $18,351.49 to Legal Aid New South Wales.

PROPERTY
25.The parties shall do all acts and things and sign all documents necessary to affect the sale of the property situated and known as L Street, Suburb A NSW and more particularly described in the Certificate of Title Folio Identifier … (“the Suburb A Property”).
26.For Order 25 above, the following shall apply:
(a)The property shall be listed for sale by way of private treaty with a real estate agent as agreed between the parties with the wife providing a list of three (3) agents to the husband within seven (7) days from the date of these orders and the husband selecting one agent from that list within seven (7) days thereafter;
(b)Should the husband not select one agent from the list of three (3) agents provided by the wife pursuant to Order 26(a) above, then the wife shall select one (1) agent in the area of her choice;
(c)The parties shall jointly appoint an independent solicitor to conduct the conveyancing of the property within 14 days from the date of these Orders and failing agreement, the appointed real estate agent shall appoint a solicitor or conveyancer to conduct the sale of the property;
(d)The list price of the property shall be such amount as is agreed between the parties and failing agreement the list price will be nominated by the appointed real estate agent;
(e)The parties shall co-operate in every way with the real estate agent in relation to the marketing of the property for sale, including (without limiting the generality of the foregoing):

(i)Making the key readily available to the agent;
(ii)Allowing inspection of the property at all times reasonably requested by the agent;
(iii)Ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer;
(iv)Doing or saying nothing to hinder or prevent a sale being affected; and
(v)Signing all documents requested by the agent in relation to the listing for sale of the property except the contract or agreement for sale which has not been authorised by the parties’ solicitors;

(f)Upon agreement being reached for the sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor;
(g)The contract of sale shall provide for completion within 42 days after the date of the contract for the property;
(h)Neither party may confer on any agent without the consent of the other party any right to any agency arrangement whatsoever in respect of the proposed sale of the Suburb A Property or to any arrangement for commission;
(i)The party not in possession shall be entitled upon reasonable notice once per fortnight to enter and view the state of repair of the Suburb A property.

27.The proceeds of sale of the Suburb A property shall be paid in the following manner and priority:
(a)To discharge the outstanding mortgage on the property;
(b)Payment of any outstanding rates and in respect of the property;
(c)Payment of the agent’s selling commission, advertising, auction (if applicable) or other expenses, if any, payable on the sale only;
(d)Payment of the legal costs and disbursements relating to the sale only;
(e)The balance then remaining to be distributed as follows:
(i)The amount of money that represents 50 per cent of the net total matrimonial pool of assets to the wife (plus the costs order of $2,635), payable to the trust account of the wife’s solicitor, with the 50 per cent to take into account the items she is to retain with a value of $121,143, being:
A.Commonwealth Bank account with a value of $727;
B.Commonwealth Bank account with a value of $442;
C.Home contents with a value of $10,000;
D.Motor Vehicle 1 payout with a value of $150; and
E.Superannuation Fund 1 with a value of $109,824;

(ii)The amount of money that represents 50 per cent of the net total matrimonial pool of assets to the husband (less the costs orders of $2,635) with the 50 per cent to take into account the items he is to retain with a value of $163,925, being:
A.M Bank account with a value of $1,187;
B.Commonwealth Bank account with a value of $2;
C.Motor Vehicle 2 with a value of $1,750;
D.Home contents with a value of $2,250; and
E.Superannuation Fund 2 with a value of $158,736;

28.If the Suburb A property is not sold by way of private treaty within three (3) months from the date of these Orders pursuant to Order 26, then the parties shall do all acts and sign all documents as are necessary to sell the property by public auction and for that purpose, the following shall apply:
(a)The property shall be listed with the agent appointed under Order 26(a) or 26(b) for auction with an agreed auctioneer, or if not agreed by the parties, then chosen by the agent (hereinafter called “the auctioneer”) for sale by auction within a further three (3) months;
(b)The parties shall execute all documents requested by the agent/auctioneer for the sale of the property by public auction; and
(c)The reserve price of the property shall be such amount as is agreed between the parties and failing agreement being reached between the parties within 21 days prior to the auction, then the reserve price shall be nominated by the auctioneer.

29.The parties agree to co-operate in every way with the agent/auctioneer in relation to the sale by auction including:
(a)Making the key readily available to the agent/auctioneer;
(b)Allowing inspection of the property at all times reasonably requested by the agent/auctioneer;
(c)Ensuring that the property is clean, neat and in good order at the time of any inspection and on the day of public auction; and
(d)By not doing or saying nothing to hinder or prevent a sale being affected.

30.The proceeds of sale of the Suburb A property shall be paid in accordance with Order 27 above.
31.If the Suburb A property is not sold at the auction pursuant to Order 28 above or within 14 days after the date of the auction by further negotiation, the parties:
(a)Shall cause a further auction of the property to be held within three (3) months after the date of the first auction;
(b)Shall accept the highest offer to purchase the property at no less than 80 per cent of the reserve price; and
(c)For this order, the provisions of Orders 28, 29 and 30 shall apply.

32.Pending the sale of the Suburb A property:
(a)The husband shall be solely responsible for all the mortgage repayments, rates and taxes of the property including but not limited to Council rates and water rates, as and when they fall due, and up until the contract of the sale of land completion date;
(b)The husband shall, at his expense, maintain the property in good order and condition;
(c)Each party shall cause to be repaired, any damage to the property caused by them, and such repair shall be at such party’s own expense;
(d)The parties shall not encumber the property without the consent in writing of the other party; and
(e)The parties shall ensure that they do or say nothing to hinder or prevent a sale being affected.

33.If either party does or says anything to hinder or prevent a sale being affected, the other party shall have liberty to apply to have the matter relisted within three (3) days.

34.Within 14 days from the date of these Orders the husband and wife shall do all things and sign all documents necessary to close any bank accounts held in joint names, and the proceeds standing to the credit of the parties, if any, shall be equally divided between them.
35.The parties shall hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
36.The wife shall be solely liable for all other debts and credit card balances standing in her sole name and shall indemnify the husband in respect of the same.
37.The husband shall be solely liable for all other debts and credit card balances standing in his sole name and shall indemnify the wife in respect of the same.

INTERPRETATION AND IMPLEMENTATION
38.Should the parties default in signing or executing such document(s) referred to in these orders, the Registrar of the Federal Circuit Court of Australia be empowered to sign and execute such documents for and in the name of the defaulting party pursuant to Section 106A of the Family Law Act 1975 (Cth) (as amended) and further it shall be sufficient evidence of a default in signing the necessary document(s) or instrument(s) if the party requiring it to be executed forwards same to the party or his/her solicitors and within seven (7) days thereof the same is not properly executed and returned to the party requiring its execution.
39.Liberty is granted to each of the parties to restore this matter on seven (7) days notice with respect to the interpretation or implementation of these orders herein.

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

This is an application for parenting and property orders made by the mother, Ms Sastry born in 1981 (“the mother”) in relation to the two children, X born 2008 (“X”) and Y born 2011 (“Y”) (“the children”). The father in this matter is Mr Sastry, born in 1980 (“the father”).
The children live with the mother and spend time with the father four nights per fortnight during school terms. Holidays are equally shared. These arrangements have been in place since 11 December 2019.
The mother seeks sole parental responsibility and that the children continue to live with her and continue to spend four nights a fortnight with the father.
The father seeks the same as the mother but in reverse; that is, sole parental responsibility to him and the children spend four nights a fortnight with the mother. He also seeks restraints enjoining the mother from allowing the children to come into contact with the mother’s partner, Mr B and/or his son. The issue of Mr B’s son is not something that was developed at trial.
In terms of property, the mother sought a property adjustment of 72.5 per cent of the pool to her. If the children were to live with the father 10 nights a fortnight, then it was submitted her entitlement would reduce by six per cent.
By the time of final submissions, the father sought a 62.5 per cent adjustment for contributions in his favour. He proposed an additional five per cent for s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) for the parent with whom the children lived.
BACKGROUND
The parties were both born in Country F, and both moved to Australia during their childhoods.
The father said the parties commenced living together in 2000 at the maternal grandparent’s home at Suburb N, Sydney. The mother said cohabitation commenced when the parties married in 2002.
The mother no doubt contends for the later date as she claims a unit bought in 2001 in her name was an initial contribution by her alone. The father says the opposite; that they had been cohabitating for almost a year by the time the Suburb A unit was acquired and he contributed funds to its acquisitions. Neither party was cross-examined about this, nor were any submissions made about the date of cohabitation.
However, the maternal grandfather was asked in cross-examination if he remembered the parties living with him at Suburb N before they were married. He replied, “yes I do”. Counsel for the father asked if this was after the purchase of the Suburb A unit, to which the maternal grandfather responded “yes” but added that he helped “them” purchase the unit, but for the mother. The reference to “them” can only be the mother and father. On the strength of the maternal grandfather’s evidence, I conclude that a genuine domestic relationship commenced prior to marriage; he confirmed that to be so. Doing the best I can on the poor state of the evidence, I also conclude the parties were in a genuine domestic relationship prior to the unit purchase because the maternal grandfather helped “them” with the purchase. I consider it improbable that the maternal grandfather would have helped “them” if the mother and father were only, say, casually dating.
In 2008 the parties’ first child X was born. In 2011 the parties’ second child, Y was born.
The parties separated in April/May 2017 and continued to live separately under the same roof until 15 September 2019, when the mother left the former matrimonial home with the children.
From some time in 2017, the mother was in a relationship with Mr O. In mid-2017, Mr O sent the father vile and threatening text messages. Mr O died in 2018.
In late 2017, the mother took a meat cleaver to the door of the main bedroom (“the meat cleaver incident”). Subsequently, a provisional AVO was made in the father’s favour, and then a final AVO for a period of 12 months commencing early 2018. The mother was also convicted of malicious property damage and placed on a good behaviour bond.
What precipitated this was that in the mother’s absence, the father changed the lock to the bedroom door. He agreed he did not tell the mother. He then went out with the children and also agreed he did not alert the mother. The mother came home and had no idea where the children were and then saw the lock on the door. In an act of violence, she then used a meat cleaver to open the door; she left the home. The mother told the police she thought the father may have poisoned the children. Before me she said she was extremely worried the children had been hurt and she panicked. The father and children came home and the children saw the door and assumed it was their mother. The father called the police in the presence of the children. When the mother returned to the home, he told her to wait outside, again in the presence of the children. The children saw the police at their home.
On 27 November 2017, parenting and property proceedings were commenced by the mother.
In mid-2019, the mother commenced a relationship with Mr B.
On 26 August 2019, interim parenting orders were made for an equal care arrangement, for the father to have sole occupation of the home upon the mother receiving $50,000, and an injunction issued restraining the mother from bringing the children into contact with her new partner, Mr B.
The parties were back in court again on 11 December 2019, where it was ordered that the children live 10 nights a fortnight with the mother and four with the father. The restraint concerning Mr B was varied to allow Mr B to have some time with the children but supervised by and in the presence of the mother. Mr B was not to sleep overnight during periods the children were with the mother. A restraint was also made enjoining the father from permitting or allowing the children to have any contact with respect to his mother’s former partner, Mr C.
On 19 March 2020, the mother deposed that she had stopped seeing Mr B. However, in early 2020 the mother resumed her relationship with Mr B. It continues to this day.
In early 2020, the father caused a subpoena to issue to the New South Wales police for records concerning Mr B. He or his lawyers inspected that material in mid-2020. Two days later the father withheld the children. Two days after that, the mother wrote saying Mr B had never been charged with or convicted of any criminal activities. If the mother had seen the material, then that was an incredible thing to say. If she had not seen the material, then she either did not ask Mr B about the allegations, or he was untruthful to her about his long and extensive criminal history including assaults on former female partners.
In mid May 2020, both parties filed Applications in a Case, which were heard on 5 June 2020. Orders dated 15 June 2020 re-instated the restraints concerning Mr B and left the 10-four arrangement in place. Thus, apart from the short period of withholding by the father, the children have lived 10 nights a fortnight with the mother and four nights a fortnight with the father since 11 December 2019.
THE TRIAL
The trial in this matter had an inauspicious start and an equally ominous attempt at progressing to an efficient conclusion. The first set of trial dates commencing 6 June 2022 for four days were vacated due to the husband’s counsel contracting Covid. The second set of trial dates, being in October 2022 for four days, only proceeded to lunchtime on the second day of hearing as the husband’s counsel again became unwell. The matter was then adjourned to four days commencing 15 May 2023 but the evidence was not concluded at the end of this time. The mother’s case had closed and the father was still under cross-examination.
It transpired on the afternoon of 18 May 2023 that the father’s counsel had misunderstood the status of the mother’s “Tender Bundle of Exhibits Referred to in the Affidavit of Ms Sastry filed 13 May 2022”. I had said to the parties at the start of the May hearing week that I would not be receiving tender bundles or court books, in toto, into evidence. Rather documents could be tendered in the usual way. However, I also said documents annexed or exhibited to affidavits would be received.
Primarily for the benefit of the father’s counsel, I made the following order:
1.With respect to the document called “Tender Bundle of Exhibits Referred to in the Affidavit of [Ms Sastry] filed 13 May 2022”, which is a 79 page document, Counsel for the Father and Independent Children’s Lawyer are granted leave to cross examine the Mother in relation to those documents upon the hearing recommencing on 15 August 2023, and the Mother’s Counsel may, if relevant, re-examine the Mother on those documents.
On the return to court on 15 August 2023, the wife’s counsel indicated he only read three of the exhibits to the affidavit: FF, GG and MM of the 79 page exhibits document. The husband’s counsel said that he wanted to cross-examine the wife on those documents, but later said he needed time to take instructions about them. The father’s counsel subsequently sought leave to cross-examine the mother about topics beyond those three exhibits to the affidavit. He wished to cross-examine her about recent optometrist reports, her change of address, and that X ran away one night for a short period of time. The ICL made helpful suggestions about how the father’s belated requests could be accommodated with limited prejudice to the other parties.
Eventually, the cross-examination of the father concluded, and his counsel had no re‑examination of his client, the father. The balance of the father’s witnesses were called and cross-examined. His case was closed.
Then, even though the father’s counsel previously said he had no re-examination of his client, and his case was closed, he asked for and was given the significant indulgence to re-examine his client on the topic of optometry reports and tendered reports re same.
The mother was then recalled and her counsel given leave to adduce some evidence in chief about her change of address and rental circumstances. The father’s counsel was then at liberty to cross-examine the mother on whatever he wanted from those three exhibits to the affidavit and the mother’s change of address and rental circumstances. That occurred.
Ms J, the Family Report writer, gave evidence on 16 August 2023 and parenting submissions were made. Late in the day, the father’s counsel said he was feeling unwell, so it was agreed the property submissions would be made commencing at 10.00 am on Monday 21 August 2023. I excused the Independent Children’s Lawyer (“the ICL”) and the ICL’s counsel from further attendance. That date of 21 August 2023 was discussed between the bench and the bar table in the presence of the parties. The father’s counsel indicated he might be unwell on that date too. I had my associates provide the father with s 79 and s 75 of the Act and very clearly said that if the father’s counsel was unavailable on the Monday, then the father could do what many litigants do in this Court – act for himself and make submissions.
There was no suggestion on the father’s behalf that 10.00 am on Monday 21 August 2023 was in any way inconvenient to him.
However, on the Monday neither Mr Richards of counsel nor the father were present in court. Yet the paternal grandmother and another witness in the father’s case were in the back of the court, obviously well alert to the 10.00 am proceedings. I was told the father was at work. There had been absolutely no demur from the father about the Monday 21 August 2023 date when it had been listed by agreement the previous week.

Mr Shaw of counsel appeared on behalf of the father on Monday 21 August 2023, essentially, seeking an adjournment. Mr Shaw had been given a very poor understanding of where the case was at; for example, he had not been told that the evidence was closed or that the parenting submissions had been made. He understood there was still some cross-examination to go.
Mr Watkins of counsel for the mother very properly acknowledged there were difficulties proceeding in the absence of the father and Mr Shaw not having any instructions about the property dispute. It was ultimately agreed the matter would be adjourned to 2.15 pm on 23 August 2023 for the making of property submissions.
Mr Shaw quite properly and appropriately indicated he could not resist the wife’s application for costs thrown away. I adjourned the matter to 23 August 2023 and made a costs order against the father. That can be paid from his s 79 entitlement. I also ordered that in the event the father did not attend on 23 August 2023, or if he withdrew his instructions from Mr Shaw, the matter would proceed in any event.
On 23 August 2023, the father and Mr Shaw of counsel appeared, as did the mother and Mr Watkins of counsel for the mother. Submissions on property were made. The trial finally ended.
All in all, 16 court days were devoted to this matter, but six days lost to the father’s counsel’s illnesses and another day was lost as neither the father nor his long-standing counsel appeared. The various adjournments also meant it has taken more than a year for the trial to conclude, having initially been set down for four days commencing on 6 June 2022. Property submissions were finally made on 23 August 2023. I pause to observe that it is the father who is seeking a change of residence of the children.
DOCUMENTS RELIED UPON
All parties filed Case Outlines.
The mother’s Amended Application for Final Orders was on filed 20 January 2021. In addition, she relied upon the following documents:
·Affidavit of Ms Sastry filed 16 December 2020;
·Affidavit of Ms Sastry filed 13 May 2022;
·Tender Bundle of Exhibits to the 13 May 2022 affidavit, filed 13 May 2022, ultimately limited to Exhibits FF, GG and MM;
·Affidavit of Ms Sastry filed 1 May 2023;
·Proof of Evidence of Ms Sastry filed 27 October 2022 (Exhibit 3);
·Affidavit of Mr B filed 20 January 2021;
·Affidavit of Mr B filed 13 May 2022;
·Affidavit of Mr P filed 20 January 2021;
·Affidavit of Mr P filed 13 May 2022;
·Financial Statement of Ms Sastry filed 24 October 2022;
·Affidavit of Ms Q filed 2 June 2022 (not required for cross-examination); and
·Minute of Order (Exhibit 1).
The respondent father relied upon the following documents:
·Affidavit of Mr Sastry filed 17 December 2020 including annexures;
·Affidavit of Mr Sastry filed 21 October 2022;
·Affidavit of Mr Sastry filed 13 May 2022 including annexures;
·Affidavit of Mr Sastry filed 12 May 2023;
·Financial Statement of Mr Sastry filed 12 May 2023;
·Affidavit of Ms R filed 17 December 2020 including annexures;
·Affidavit of Ms R filed 13 May 2022 including annexures;
·Affidavit of Mr C filed 17 December 2020;
·Affidavit of Mr S filed 21 August 2020;
·Subpoena aide memoir of NSW Police COPS entries (attached to the Outline); and
·Minute of Order (Exhibit 2).
I remain at a loss why the affidavit of Mr S was filed. The father’s former counsel said the mother had forged some receipts from a bedding supplier to establish an alibi that the delivery people were at the home when Mr B was there, contrary, it was said, to a restraint in place. Ultimately, no submissions were made about this in the parenting or property proceedings.
The ICL relied upon the following documents:
·Family Report of Ms J dated 6 November 2019 (Exhibit 9);
·Updated Family Report of Ms J dated 26 April 2022 (Exhibit 10);
·Orders and Reasons for Judgement of Judge Newbrun dated 11 December 2019; and
·Orders and Reasons for Judgement of Judge Newbrun dated 15 June 2020.
In total 31 Exhibits came into evidence throughout the duration of the proceedings. At the end of the trial, the mother and the ICL set out a number of specific Exhibits in their respective Lists of Documents, I have not included them in the documents relied upon, but reviewed them along with all Exhibits. The father did not comply with my request for an updated List of Documents.
The standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject-matter of the proceeding; and
(c)       the gravity of the matters alleged.
It is well settled that it is not necessary for a trial judge, in reaching a decision, to refer to every piece of evidence or argument presented during the trial. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
PARENTING PROCEEDINGS – LEGAL PRINCIPLES.
Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII. These are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or, family violence.
Further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. I have determined that it is not in the best interests of the children for the presumption to apply. First, there is, a complete lack of cooperation between the parents. Second, these parties have been litigating since 2017, and whilst the matter started with a consent order in August 2019, the ability of the parties to cooperate or trust each other has deteriorated to the point of being non-existent. True, both parents agreed with many aspects of the ICL’s Minute of Orders, but they were rather obvious things like half-holidays and special days. The standard specific issue orders were also agreed. Yet they could not agree on a change over time, for example, whether it was 2.00 pm or 4.00 pm on Christmas Eve, Christmas Day and Boxing Day. Compromise was a lost art for 2.00 pm or 4.00 pm, or something in between.
Third, it was the father’s curious submission that from his perspective his dealings with the mother changed for the better upon receipt of the Family Report in late April 2022. Yet he seeks sole parental responsibility in his favour. Further, when his counsel was given an indulgence to re-examine the father only last month (even though he had previously said he had no re-examination and his case was closed) the father continued to be critical of the mother about the mother’s failure to provide information about Y’s eyes. The father also wanted to cross-examine the mother (upon her being re-called for a different discrete issue) about: the mother changing her residential address; X running away; and, Y’s eyes. I consider the parties remained in conflict after the 2022 Family Report was received and continued thereafter.
Fourth, both parties seek an order for sole parental responsibility. That says to me neither parent has the sufficient trust or capacity to cooperate with the other parent. I accept what the father had to say about decision-making, being, “we have too many conflicts. Nothing gets solved between me and her”.
Accordingly, I will make an order for sole parental responsibility. I will order sole parental responsibility in favour of the mother. I do so because (for reasons subsequently given) the children will be primarily living with her. I will however require the mother consult with the father and consider his views before making any major long-term decisions. In making an order for sole parental responsibility, I accept the observations and opinion of the Family Report writer that:
59…Each parent said that the other is either unwilling to compromise and/or ignores their communications about the children, and although several years have passed, it appears that there has not been substantial improvement in their ability to coparent and communicate effectively for the children. As previously recommended, it is likely to assist the children in having timely decisions made for them without conflict arising, for the parent that they primarily live with to hold sole parental responsibility for them. It appears likely that, if the parents hold shared parental responsibility, there will be ongoing dispute about every issue that arises for the children, they will likely take the children to various professionals, and it will affect the parenting arrangements for the children if one or both parents decides to retain the children to achieve their own goal. An order providing sole parental responsibility to the parent with whom the children mostly live does not preclude that parent advising the other of decisions made, and also advising them of issues such as medical emergencies.
(Exhibit 10, paragraph 59)
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC(2)(b) of the Act.
A meaningful relationship
In McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at 83,476, the Full Court said at [122]:
…No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests.
In McCall and Clark at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a “prospective” one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
In Jurchenko & Foster (2014) FLC 93-598 at 79,420, the Court noted at [123] that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
In Loddington & Derringford (No 2) [2008] FamCA 925 Cronin J held at [169] that:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
(Emphasis added)
In Loddington at [173] Cronin J further added that an assessment of the benefit to the child must be made according to ‘the peculiar facts of what the parents are offering’.
In Cotton & Cotton (1983) FLC 91-330, Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
And that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
In this matter, each parent sought the children spend 10 nights with them and four nights with the other parent. They both propose orders sharing school holidays. They are both therefore proposing the children have a meaningful relationship with each parent. I agree; the children have much to benefit from having both parents in their lives and in a meaningful way.
Protection from harm
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or violence.
The mother does not say the children are at an unacceptable risk of harm when with the father. I agree.
The father loudly says the mother’s partner, Mr B, poses an unacceptable risk of harm to the children. The ICL shares this position. For the reasons subsequently given, so do I.
Inexplicably, even though this trial was due to start on 6 June 2022, and then had more time in October 2022, May 2023 and again in mid-August 2023, the father’s long-term counsel was unable to tell me on the afternoon of 16 August 2023 whether he was running an unacceptable risk case against the mother, as a separate issue from Mr B. Without a positive submission that she poses such a risk, and noting the father proposes orders that the children have four nights a fortnight with the mother, half-holidays and overseas travel (with the restraint about Mr B), it simply cannot be that the father says the mother alone poses an unacceptable risk of harm to the children.
I turn then to the mother’s partner Mr B.
In Isles & Nelissen (2022) FLC 94-092 (“Isles”), the Appeal Division of this court summarised the authorities on unacceptable risk since M v M (1988) 166 CLR 69 (“M v M”). The Court said that only the relevant historical facts need be proven on the balance of probabilities. However, assessing risk into the future is a predictive exercise about possibilities. Or, as Austin J far more eloquently explained in Fitzwater & Fitzwater (2019) 60 Fam LR 212 and accepted by the Isles Court as being the correct statement of the law:
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter [2007] FamCA 350; (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
If I conclude Mr B poses an unacceptable risk to the children, then I must consider what conditions may ameliorate that risk.
Exhibit 26 is Mr B’s criminal history; it is extensive and significant and involves dishonest conduct and violent and threatening behaviour, including to former, female partners. It also contains numerous driving offences. In cross-examination, Mr B said the following:
·He agreed he had been convicted of “a number” of common assaults against women;
·He agreed he had threatened to kill a former partner, and this formed part of the five year ADVO for the benefit of that partner, which expires in 2024;
·He could “not remember” assaulting the mother of his child in 2006 to the point she lost consciousness or had been violent and injured her. This is an earlier relationship than the aggrieved in the five year ADVO above;
·He could not remember threats made to an ex-partner in 2001, where he was yelling and swearing at her and then threatened to harm her and her flatmate, who was also in the unit;
·He agreed he had assaulted the mother of his child in 2000. The relevant COPS entry says he called her names such as “slut”, “fucking bitch” and “you are nothing but a fucking slut”. He then approached the mother of his child and grabbed her by both her upper arms. He grabbed both her feet and dragged her off the lounge onto the timber floor. At another point, the victim said Mr B lifted an object about 10kg and approached her. He lifted the object above the victim’s head. The record also indicates the child started crying but Mr B would not let the victim/mother go to the bedroom to soothe the child. Mr B left the scene. The police arrived and during this time Mr B made many calls to the victim making her feel guilty for getting the police involved;
·He agreed he had committed two separate assaults on the mother of his child;
·He agreed he assaulted a female partner in 1996. The relevant entry says that Mr B and his then partner were driving and had a heated argument, forcing the victim to pull the car over. Once the victim stopped, Mr B elbowed the victim in the arm, and she retaliated by hitting him in the face. Mr B then grabbed the victim around the body, punched her in the face, and bit her on the top of the head. The victim broke free and ran towards a service station. Mr B asked her not to call the police but she did. He then struck the victim in the head with a closed fist causing her to fall to the ground. The record also says Mr B made full admissions to the offence;
·He agreed he had been violent to women with whom he had been in relationships going back to 1994; and
·He agreed an AVO was taken out against him by a partner in 1994.

On the admissions made by Mr B, I find, on the balance of probabilities, that he has been a violent and threatening man with demonstrated form for committing assaults and family violence on intimate partners. In the list above, where he said he could not remember doing things, I conclude that he did. What he cannot recall fits entirely within the make-up of a person who threatens and has been harmful to intimate partners.
In cross-examination, Mr B was a polite, yet, agitated, witness. He focused on why questions were being asked, or where the line of questioning was going, as opposed to simply listening to the question and answering the question. For example, when asked about a Facebook post featuring him by a different name, he did not answer the question, but told Counsel for the father that looking through his Facebook “was pathetic”. It is hard to see how he would be calming influence on the mother. Having watched Mr B give evidence, it is easy to see him getting agitated if things were not going his way.
Rather incredulously, the mother could not remember being sent a letter from the father’s solicitors on 13 May 2020, which set out graphic particulars of matters raised against Mr B in the COPS reports. Some of the matters raised include:
…
Whilst our client always had suspicions that [Mr B] is somewhat of an unsavoury character, he had no idea whatsoever that the allegations were as serious as what has now come to light. These are just some of the incidents that appear on COPS entries involving [Mr B]:
•Numerous instances of physical violence perpetrated against former partners, reported to police by both victims and third-party witnesses, including:
•Victim 1:
•Punching his partner in the head;
•Kicking his partner whilst she is on the ground;
•Grabbing his partner by the chest and stomach while she is kicking and screaming;
•Victim 2:
•Destroying his partner’s property by crushing her phone;
•Pushing and choking his partner;
•Lifting his partner by the neck off the ground before pushing her against a tree until she lost consciousness, and slapping her awake;
•Victim 3:
•Holding a knife to his partner’s throat after accusing her of having an affair;
•Punching his partner in the face, kicking her in the chest, pulling her hair, shoving a candle in her ear;
•Preventing her from leaving for several hours;
•Chasing her and jumping onto her car when she attempted to leave.
•Thousands of threats sent via text message to his former partner, saying:
•I’m going to fucking smash your head open and believe me, you won’t know when I’m coming, you dirty slut;
•I swear on my mother… I am going to kill you, I swear to God, I will go to jail for you slut;
•I’m going to kill you… watch and see, I will go to jail, I would love to go to jail for you, as long as I kill you with my bare hands I will be happy;
•I’m going to break every bone in your fucking body;
•I’m in a [sic] make you a fucking cripple;
•You’re going to be fucking brain dead, I got a [sic] smash your fucking brains out;
•I’m going to kill you, liar cunt dog;
•I’m going to smash your head in.
These messages above were sent as recently as February and April last year.
•Threats to kill other individuals over work-related disputes;
•Links to [a] Gang […];
•Numerous instances of failing to comply with bail conditions, driving suspensions and other directions.
We further note that there is a current AVO in place in relation to [Mr B’s] most recent ex-partner. ...
(Annexure Q to the father’s affidavit filed 17 December 2020, p.106–107)
It beggars belief that the mother could not remember such serious matters contained within that letter. The mother’s evidence was she did not raise this with Mr B. I find that incredulous. Mr B’s conduct has been a giant plank in the father’s case for a change of residence. I do not accept the mother failed to remember. Rather, her attitude fits with her pattern of minimising and excusing his conduct.
A reply was sent on the mother’s behalf on 15 May 2020, which must have been sent on her instructions. It said:
Allegations against [Mr B] as to his "unsavoury" character
We note you have not provided any evidence, and we are inclined on our client's instructions to believe no such evidence exist to indicate that [Mr B] has been charged or convicted of any criminal activities. Rather, you have simply referred to COPS entries which, as we are sure you are aware, refer to allegations that are not substantiated. The purpose of the COPS database is to allow for police to document all incidents reported by victims or witnesses which are assumed to require some police action, however, by no means do COPS entries in and of themselves, constitute a finding of fact or guilt. We trust that you would be of the similar view that, if offences of such a grave nature were really to have been committed, then [Mr B] would have been duly charged and there would be evidence to indicate same. Our client has firmly instructed us that [Mr B] has never been charged. Any such unsubstantiated allegations as to his character and to suggest his violence, control and dominance over women, are generalised, presumptive and unreasonably opinionated.
(Emphasis added)
(Annexure Q to the father’s affidavit filed 17 December 2020, p.109–110)
In reality, Mr B had been charged and convicted of assaults against female partners. Plainly, the matters raised in the father’s letter were not taken seriously by the mother. Even though the documents subject of the subpoena to the New South Wales police were returned in early 2020, and despite what the father said in his letter of May 2020, the mother nevertheless deposed as follows in her 13 May 2022 affidavit:
233.To the best of my knowledge, [Mr B] has never abused another female person, let alone disrespect them. I have never been informed of anything to this effect aside from the allegations made by [Mr Sastry's] lawyers, nor have I ever observed anything to this effect...
(Mother’s affidavit filed 13 May 2022, paragraph 233)
After a lengthy cross-examination of the mother on this topic, the mother’s position was, in short, that she accepted the underlying facts of physical violence and threats where there was a conviction, but did not accept what was said against Mr B when the matters remained as allegations.
When pressed by the father’s counsel, the mother eventually accepted that the facts underlying the convictions were horrible. But, she maintained that in the four years she had been with Mr B, she had never seen that side of him. That, respectfully, misses the point. Mr B has demonstrated over a long period of time, and with different partners that he is capable of intimate partner violence, and threats to intimate partners.
Consistently, the mother also seemed rather taken aback when it was suggested to her that Mr B has demonstrated a capacity to act in such a way to domestic partners. She maintained he had done nothing in the presence of the children of his earlier relationship/s. However, one of the assaults for which Mr B was convicted occurred when Mr B was feeding his child. Plainly, Mr B has conducted himself in a violent and abusive fashion in the presence or hearing of his son.
It was squarely put to the mother that she had placed her relationship with Mr B over the needs of the children. She denied this was so. I do not agree. The mother was minimising of the serious violence and assaults Mr B had committed on other partners. For example, when taken to awful threats Mr B had made against a former partner, the mother said, “he didn’t act on it”, and then blamed the victim.
Further, more recently an ADVO was taken out against Mr B in 2019 for a period of five years. The mother said she was aware of the ADVO but was not aware it was in place for five years. The ADVO concerned threats by Mr B to kill that partner. Again, the mother seemed rather un-phased about these serious matters.
The mother relied on an affidavit from a Ms Q, a counsellor Mr B saw when undertaking the PP Program. It was the agreed position of the legal representatives that all that would be read of Ms Q’s report was the following lines from page 14:
[Mr B] undertook this program voluntarily and was able to understand the implications of abuse, in all its forms, on family members and the community at large. Initially when [Mr B] started the program he believed that he was the subject of 'abuse' and felt that he had been dealt with unjustly through the system. After the many weeks working through the [PP Program] [Mr B] was able to come to understand the effects that he has on those around him and has worked through and understood the different levels of abuse and their implications on his life and those he comes in contact with.
At all times [Mr B] was engaged and demonstrated an understanding of the program and was able to see that his behaviour could have a negative effect on those around him. He participated in all the written work required of each Module and was able to articulate the changes he needed to make.
Throughout the program and my discussions with [Mr B] he was open and honest with the differences he felt he needed to make and wanted to put the past difficulties behind him and have a meaningful and happy relationship again. At all times he presented well dressed with a happy spirit and wanted to face his past indiscretions, understand ways to change and start living a more peaceful life.
I believe that this CBT program is a progressive therapeutic approach that address all forms of aggression with a positive way to understand alternative approaches to communication. I do not believe that [Mr B] presents as needing to have further behavioural therapy.
I wish [Mr B] well with his endeavours to have a more peaceful life and know that if he continues to use the skills he has learned he will not re-offend.
(Affidavit of Ms Q filed 2 June 2022, p.14)
I have no idea what Mr B told this therapist about his “past indiscretions”. It is either a very poor and minimising description by Ms Q, if given accurate information by Mr B. Or, Mr B minimised his past conduct to the therapist. Neither option help Mr B establish he is a changed man.
Mr B said he did a behaviour management program and said that was an eye-opener. When asked what were the eye-opening aspects, he said it was the techniques he had learnt to deal with conflict, including breathing exercises, walking away, removing himself from the situations, and thinking before acting.
It is noteworthy that what Mr B considered to be “eye-opening” were the techniques to deal with conflict, not the many behaviours and words of his that constitute family violence. When pressed by counsel for the ICL, he subsequently acknowledged that he had committed acts of family violence and that had been a revelation to him too.
Mr B said he became a different person when he met the mother. I do not accept the mother had such an influence on him given she minimised Mr B’s violence and did not have a skerrick of concern for herself or the children despite Mr B’s convictions for intimate partner violence.
The maternal grandfather gave evidence largely supportive of his daughter and his daughter’s position. However, he agreed that “anyone” would be worried about a person with a long history of violence and threats to intimate partners. Ultimately though that is a matter for me. He was very keen to impress that Mr B had always been kind to his family and he had never seen any violent or threatening attributes.
When the matter was first before me in 2022, the mother amended the orders she sought to include the following:
22.That in the event the Court determines that [Mr B] poses a risk to the children, the mother be restrained from permitting or allowing the children to have any contact with or communications with her partner [Mr B]. Subject to compliance with this order, the remainder of the above orders remain in place.
(Emphasis added)
(Exhibit 1, p.6)
That remained the mother’s position in final submissions. In other words, the mother did not offer that restraint voluntarily, putting the children front and foremost in protective behaviours. Rather she only sought that order if the court determined that Mr B was an unacceptable risk. The submission was made the mother ought have freedom of relationships. She can have whatever relationships she likes, but that is not my concern. My concern is the best interests of the children, including their protection from an unacceptable risk of harm.
Should the children witness Mr B committing coercive control on the mother or see/hear acts of domestic violence and abuse on her, then the harm to these children will likely be considerable. That is so given these highly conflictual proceedings, and the conflict they would have experienced with the long separation under one roof. In those circumstances, I accept Ms J’s opinion that they are already vulnerable. Further, as X is exhibiting some anti-social behaviours his trajectory will likely be very poor should he be exposed to such violence and abuse/coercion and control of the mother.
The question whether there is a possibility Mr B will commit acts of coercive control/family violence on the mother, must be answered in the affirmative. I am not satisfied Mr B is a changed man or actually has any meaningful understanding of what constitutes family violence. He conceded a significant criminal history of intimate partner violence. I consider it very possible that he will eventually inflict such conduct upon the mother. I am also not satisfied the mother understands the gravity of the risk in which she places herself and the children. For the mother’s minimising of his past actions, I have no confidence that she would be able to extract herself from such a situation before something terrible happens. I accept the father’s position that if something terrible happens, then it is too late for the children for her to then extract herself from Mr B after the event. The children will have seen what they have seen and heard what they have heard. I also have no confidence that the mother would understand if she was being coercively controlled by Mr B. Given the detrimental effect on the children of being exposed to any of this, the magnitude of the risk posed by Mr B to the mother and children is unacceptable.
Accordingly, I find Mr B constitutes an unacceptable risk of harm to the children. I cannot see any tools or circumstances to adequately mitigate that risk, other than the conditional order sought by the ICL:
21.That the mother be restrained from permitting or allowing the children to have any contact with or communications with her partner [Mr B]. Subject to compliance with this order, the remainder of the above orders remain in place.
(Emphasis added)
I will make the order proposed by the ICL, agreed to by the father and accepted by the mother if I found (and I have) Mr B is an unacceptable risk of harm. If that means the end of the mother’s relationship with Mr B then so be it. The children ought be the mother’s priority. They certainly are mine.
The ICL proposed he remain in the matter for six to 12 months. That was on two bases: first (and primarily) to keep an eye on, and, if necessary, facilitate the counselling for X that I ordered on 16 August 2023. Second, to hear any allegations that the mother is still with Mr B. The ICL will be able to talk to the children. I will not discharge the ICL until 12 months have elapsed since the making of this Order. I select that longer period to enhance the prospects of embedding X’s counselling and to keep a watching brief on compliance with the restraint.
Additional considerations
Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard. I will consider each in turn.
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
The first Family Report occurred when the children had been living in a week about arrangement for a short period of time. That Report recommended the children’s time with the father reduce, which occurred in the December 2019 orders. By the time of the second Family Report interviews on 21 April 2022, the children had been in the 10-four arrangement for more than two years.
X told the Report Writer that the current arrangements (the 10-4) were “OK” for him:
45.[X] said that the change in his parenting arrangements that occurred in December 2019 was “different, but it was alright” and he commented that he feels the current arrangements are more stable for him.
…
48.[X] stated that he would be happy for the current arrangements to continue, but he does not want to live with [Mr B]. When asked why, he stated that [Mr Sastry] has told him that [Mr B] has done something “wrong”...
(Exhibit 10, paragraphs 45 and 48)
Y said she might like 50-50 but was “OK” too with the current arrangement, as she was used to it.
The Family Report evaluated that, “both children presented as having become accustomed to the current arrangements, and [X] in particular considered it had provided more stability for him” (Exhibit 10, paragraph 53). I have no reason to discount that opinion and will place considerable weight on the children’s views, especially X’s, given his age.
(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child);
X told the Report Writer this:
46.[X] said that his relationship with [Ms Sastry] is “fine”. He said that there is nothing about her that he would change, and he said that he enjoys seeing his extended maternal family members. He also described his relationship with [Mr Sastry] in similar terms. He said that both parents talk to him about any misbehaviour, and they both ground him.
(Exhibit 10, paragraph 46)
Y said this:
51.[Y] spoke positively about her relationships with each of her parents, and described that they have similar discipline strategies. She also spoke positively about both her extended maternal and paternal families.
(Exhibit 10, paragraph 51)
I am satisfied the children have a positive and beneficial relationship with each parent and their extended families.
The children do not have a positive relationship with Mr B and felt their mother ought have spent more time getting to know Mr B before introducing him to them. X told Ms J this:
48.…When asked about when he briefly did have contact with [Mr B] prior to the June 2020 orders, [X] said that he mostly stayed in his room when [Mr B] was present, and he is a stranger to him. He added that he does not want to get to know him and does not like him.
(Exhibit 10, paragraph 48)
Ms J indicated their reaction was a normal reaction to a parent’s new partner, but the paternal family fuelled the children’s views of Mr B either by direct words or more subtle messaging. I will be restraining the mother from bringing the children into contact or communication with Mr B, meaning their relationship with him will be non-existent.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long‑term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
These considerations do not arise. No submissions were made they did.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

The wife accepted they were both responsible for the care of the children and the household, but denied he was “very involved with the children” and maintained the husband did not take them to medical appointments and would not get up at night to tend to them. The wife denied the husband was “very involved” discussing education in 2019 and added that she always made the decisions about school and activities and took X to the gym.
The husband accepted that the mother had been the primary carer of the children when they were younger.
The husband complained about when the wife paid off a credit card during the relationship, and, that the unit proceeds were about $100,000 but the mother only contributed $60-$70,000 of that to L Street. He said she unilaterally appropriated the balance. How they chose to live their financial lives when together is not a matter for audit (Mayne v Mayne (2011) FLC 93-479 at [78] per May J), “[i]t is not the Court’s function to conduct an audit of the marriage or of the relationship finances. The parties’ remedies for resolving disputes about expenditure while they are together are centred on them and them alone”.
Both the maternal grandfather and paternal grandmother helped the parties through the course of the relationship and thereafter.
For example, the wife deposed that her father assisted the parties financially by providing $200–$300 each week. She said this started upon X’s birth. The husband claimed he did not know about this, but I prefer the evidence of the wife as it is consistent with her father’s evidence and his provision of financial support helping to buy and renovate the Suburb A unit and his contribution for the purchase of L Street.
The wife also said her parents paid for several trips for the family including airfares accommodation transport and food for her, the husband, and the children. She said her parents took them on holidays to Country EE and to Country FF, Country F, and Country GG. The maternal grandfather said he also paid for holidays to Brisbane, Region HH and Town JJ. The husband accepted the maternal family paid for holidays. The maternal grandfather provided the parents with two cars for their use during parts of the relationship, and gave them a lawn mower, barbeque, trampoline and swing set. The parties also lived with the maternal family for the first few years of their relationship, but I have no context to what that meant.
The wife accepted the paternal grandmother would purchase items for them including furniture, appliances and clothing and maintained these were gifts (not loans). The wife also accepted that the paternal grandmother funded renovations to L Street, but the wife did not agree with all of the items on the paternal grandmother’s list. In cross-examination she said she did not agree “with most of the list” but did accept that the paternal grandmother gave them Motor Vehicle 1 in early 2012. She said the paternal grandmother organised and took the family on a trip to Country F.
A major part of the husband’s case is the financial support he contends was provided by the paternal grandmother. The paternal grandmother adds to this claim in both of her affidavits. Both of the father’s counsel accepted that if I did not include Item 14 in the pool, then whatever I made of the paternal grandmother’s support ought be considered as contributions.
At paragraph 40 of the paternal grandmother’s 2020 affidavit, the paternal grandmother set out various items that she says are costs she paid for the renovation of the L Street property, totalling $73,870. None of the entries at paragraph 40 contain any dates and all but the barest of descriptions. Of that list the mother accepted the following in cross-examination:
•Hy-mix concrete supply – back verandah renovations               $1,309
•Tiling – labour (verandah, kitchen, front porch and laundry)       $3,605.86
•Shower screen installing   $550
•Garden shed – shed and;  $700
•Tiles – garage tiling  $700
•Labour – tiling for garage   $1,800
(As per the original)
(Exhibit 14, p.1)
Obviously, the $8,665 accepted by the wife is a far cry from what the paternal grandmother asserts.
At paragraph 41 of that same 2020 affidavit the paternal grandmother set out a range of white goods, furniture and linen she asserted she had purchased for the husband and wife. That totalled $25,585.42. Of this list the wife accepted:
•Rangehood  $1,000
•Refrigerator       $1,000
•White sofa  $3,778
•Ottoman  $1,699
•Coffee table   $749
•Mattresses, pillows, bedding  $1,600
•A rug for the living area  $159
•Sheet set  $45.84
•2 quilt sets and 2 quilt covers  $303.57
•Queen cover and single bed sheet sets  $87.68
(As per the original)
(Exhibit 14, p.1)
Plainly, the almost $10,500 accepted by the wife is less than half of that which is asserted. Again, the assertions in paragraph 41 have no dates to support what is said. The wife quite appropriately said she could not make any evaluation of an item listed as “[CC Company] – miscellaneous items for $3,628.04”. Paragraph 40(ll) referred to “[KK Company] – Pest Control for $165”. There is an invoice at page 127 of the paternal grandmother’s Annexure B which is from KK Company, but it is dated 15 November 2019 – the parties had not only been separated for more than two years but the wife was not even living at L Street by this time. It is hard to see how that could be a loan to the parties, per the paternal grandmother’s contention at paragraph 61 of her affidavit that Annexure B is “a schedule of funds lent and copies of various invoices and statements showing funds loaned to [Mr Sastry] and [Ms Sastry] and purchases made on their behalf”.
At paragraph 42 of the same affidavit the paternal grandmother sets out money she says she provided to the husband and wife totalling $38,569.40. One of the items is $18,000 for the deposit of in the former matrimonial home. I have already accepted that and will not double count that here. The wife was not asked about the building insurance in the sum of $569.40. The wife was asked about the $20,000 but said she had no idea from where those funds came. Paragraph 42(c) gives no date for the asserted loan of $20,000. Exhibit 13 is a Bpay credit to the husband and wife’s mortgage of $20,000 on 11 October 2010. Nothing on that document gives any indication as to the source of those funds. Curiously, the paternal grandmother annexed more than 160 pages of invoices, receipts and bank statements said to support the money the husband and wife owe her, but I was not taken to any statement that shows the $20,000 coming from an account in her name, corresponding to the deposit that is Exhibit 13.
At paragraph 43 the paternal grandmother then set out a whole list of items she said she purchased or paid for the parties, totalling $32,863.11. This included things such as cleaning products, a Dyson vacuum, Optus Internet and so on. I have no dates in the affidavit to support anything that is asserted. The wife accepted none of these items, and added, as an example, she and the husband had never owned a Dyson Vacuum (paragraph 43(c) in the sum of $580). In the bundle of documents annexed at Annexure B to the paternal grandmother’s affidavit, page 92 is a reference to a Dyson in the same amount, purchased in late 2018; I ignore the handwriting on it as it is not part of the business record. The parties were well and truly separated at this point (albeit living under one roof) so it is hard to see how this was provided to them as a couple – not that the invoice itself proves that in any event.
The paternal grandmother gave other evidence for example at paragraph 50 where she said, “the costs associated with me purchasing cars, or lending funds to purchase cars, totalled $59,000”. Of the four cars listed in Exhibit 14 the wife accepted Motor Vehicle 1 at a value of $11,500 was provided by the paternal grandmother.
At paragraph 60, the paternal grandmother said she gifted X a GoPro in 2018, “which cost me over $5,550”. Annexure B is identified as funds loaned to the parties. At page 93 there is an invoice for a GoPro purchased in 2018 but it is in the sum of $547 and post-separation.
Next on Exhibit 14 is holidays totalling $2,094.34. The wife accepted two of the three holidays were provided for the paternal grandmother but denied an entry called “[State LL] shopping” for $214.74.
The penultimate heading on Exhibit 14 was children’s expenses totalling $1,789. The wife accepted the paternal grandmother provided a piano at a value of $1,350.
The final item on Exhibit 14 was the paternal grandmother’s funding of the $50,000 partial property order that had been made in the wife’s favour. In Exhibit 14 it was said that almost $40,000 of that amount was still owed by the husband to the paternal grandmother. I considered that liability in item 15 on the balance sheet. Whilst I am not including the loan on the balance sheet, it is though a demonstration of the paternal grandmother’s generosity and financial support to her son.
I accept the paternal grandmother made the contributions where the wife conceded that to be so. I accept the wife’s concessions against interest. What do I then do with the balance of assertions made by the paternal grandmother, but not accepted by the wife in cross‑examination?
Annexure B to the paternal grandmother’s affidavit is labelled a “summary list of funds loaned/goods and services paid to/for [Mr Sastry] and [Ms Sastry] from/by [Ms R]”. It is clear from paragraph 61 of the paternal grandmother’s 2020 affidavit that Annexure B is held out to support what the paternal grandmother says about funds lent to and purchases made for the husband and wife.
Annexure B to the affidavit of Ms R filed 17 December 2020 comprised 167 pages of invoices, bank statements and receipts with many handwritten, anonymous, and undated annotations which simply cannot form part of the business record. For example, page 9 is an illegible, incompletely dated document on OO Company letterhead. Somebody has written “[…] Fridge $1000” on it but the identity of that person is unknown and when that occurred is a mystery. More so, it cannot be that that handwriting formed part of the original business record. The same applies to many of the other business records in Annexure B, where someone has written commentary upon the document; for example, pages 24–25, 39, 41– 44, 47, 91-93, 95–96, 102, 120, 126, 128-134, 157 and 168.
Similarly, many of the documents are bank statements, passbooks or cheque books upon which someone has, at some unknown time, handwritten annotations about the alleged purpose of the transaction (for example pages 10, 12, 15-23, 38, 49, 52, 54–55, 60-90, 147, 149, 152 and 154). It simply cannot be that those handwritten annotations form part of the business records. No one made a submission that they did.
Accordingly, I disregard the anonymous and undated annotations contained within Annexure B; they are not part of the business record.
Unhelpfully, none of the documents are referenced to any particular paragraphs in the affidavit. Similarly, the items listed in the affidavit are not in the same order as the documents attached. For example, paragraph 40(a) refers to “[NN Company] – cables, switch fittings and labour for $1,349”. However, the first document at Annexure B (page 8) is a MM Retailer invoice for a range hood canopy in the amount of $1,000. Paragraph 40(b) is “[NN Company] – gangs power points and switches for $233”. However, the second page of Annexure B is someone writing on OO Company letterhead “[…] Fridge - $1000”. Paragraph 40(c) again refers to “[NN Company] – downlights and labour for $995”. The third page of Annexure B (page 10) is a M Bank portfolio loan statement of the paternal grandmother with some handwriting on the bank record. I do not know who wrote that or when. And so it goes.
Equally unhelpfully, a number of the documents referred to the paternal grandmother, on the face of the document, making a purchase for something. But that does not establish it was a purchase made for the benefit of the husband and wife in this matter. See for example pages 27, 31, 33, 35, 37, 103–104 (addressed to Mr C), 107–108, 101, 114–115, 118–119, 121 (addressed to Mr C), 164-167 and 169 (entry on right).
Some documents were not referable to anyone other than perhaps the salesperson, much less than the paternal grandmother or the husband. See for example page 45, 57–59, 95–101, 105–106, 109, 111-113, 116, 125–126, 135-142, 144–146, 150, 162–163, 169 (entry on left), 170. Some documents were quotes, for example pages 122–124, 158, and others comprised somebody’s handwriting on pieces of paper, for example 159–161.
Some were double ups, for example, 56 and 143, 122 and 123, 107 and 108, whilst others were completely irrelevant to the issue of alleged loans to the parties, for example page 148, which is an expletive ridden message headed “Hi [Mr QQ]”.
Annexure B is also not confined to items asserted to be loans to the parties (or contributions in the alternate). I have already given the example of the GoPro. The very next page of Annexure B, being page 94, is a receipt in the name of the husband for the payment of school fees on 21 February 2020 well and truly after separation. A further demonstration of the inadequacy of Annexure B is at, for example, pages 95 and 99 (just to name two pages) which are illegible save for somebody writing their own notations on the document.
It is a completely unsatisfactory bundle of documents, which do not prove what the husband and paternal grandmother contend (loan or contribution), other than where the wife made concessions against her interests.
In addition to the paucity of evidence that is Annexure B, the mother was not cross-examined on the items she refuted. Exhibit 14 clearly sets out what she disagreed with, but the wife was not then taken to any of the documents in Annexure B to challenge her denials.
It is the husband who is making the case with respect to the paternal grandmother’s contributions. Accordingly, the onus is on him to satisfy me, on the civil standard, that these contributions were in fact made. Other than the wife’s concessions, for the many reasons set out above, Annexure B does not make out the quantified case contended for. Further, the wife’s specific, individual denials were not challenged with any specificity and none of the documents were put to her. Accordingly, the husband has not discharged the onus upon him to persuade me to quantify his mother’s support as deposed.
However, I accept that the paternal grandmother was and has been generous to the parties and post-separation to the husband. I accept that such generosity is a contribution in the husband’s favour. However, I cannot quantify that generosity in the way the paternal grandmother calculates with specific dollar figures in her 2020 affidavit.
On 13 May 2022 the paternal grandmother filed a further affidavit, deposing, amongst other things, that she had found more receipts, including: a $1,000 contribution to the wife’s superannuation in 2007 (paragraph 248); a coffee table and sideboard in 2004, the receipt for which had been included in Annexure B to the 2020 affidavit (page 40), but not in the list deposed to in the body of the affidavit and annexed summary table. The paternal grandmother also recalled she paid for the family dog to be put down in early 2022 at a cost of $3,553.
With respect to the alleged superannuation contribution, someone has added an annotation “contribution from [Ms R] towards [Ms Sastry’s] super a/c” on what looks like a deposit slip at Annexure A to the 2022 affidavit. The annotation is not part of the business record and will be disregarded. As mentioned, I have pages and pages of bank statements from the paternal grandmother as part of her 2020 Annexure B, but again, curiously, there is no such corresponding withdrawal to show me the source of the funds came from the paternal grandmother.
With respect to the coffee table and sideboard, the invoice at page 40 of Annexure B does not prove it was for the parties.
With respect to the vet bills at Annexure C to the 2022 affidavit, invoices are attached most of which are in the husband’s name. None establish the paternal grandmother actually paid. More so, the invoices cover 2019 and 2022. This is well past separation and can hardly be a loan to both parties or a contribution during the relationship. If the paternal grandmother maintains the husband must pay her back, then that is a matter for them.
However, the wife did not deny the extent of the renovation work almost 20 years ago, which I set out in full to do justice to what the father, paternal grandmother and Mr C did:
366. ... The bathroom was renovated entirely, and we even added another bathroom connected to the laundry at the back of the property.
367. All of the bedrooms with built-in robes had new built-in wardrobes and sliding doors installed, and the rumpus was converted into a fourth bedroom.
368. Many of the fixtures, including lights, light fittings and blinds were replaced throughout the entire home. I also sanded the floors and ceilings and painted them.
369. The backyard and front yard were also renovated. A large concrete verandah was built with tiles laid at the back. A verandah was also built in the front section of the house and tiled. The driveway also had fresh concrete laid, and the garage walls and ceiling were completely renovated.
...
371. My mother and [Mr C] also assisted. They would come to the home early, help renovate the house, collect the rubbish and place them in skip bins, every day. I was immensely grateful for their assistance. They even did a lot of the very physically demanding work, such as demolishing walls.
...
395.     ... I carried out renovations to the former matrimonial home. This included:
a.         Sanding the floors in all bedrooms and the main living area;
b.        Painting the walls and ceilings;
c.         Erecting a substantial covered balcony at the rear of the home;
d.        Painting the garage;
e.         Renovating the main bathrooms, including laying new tiles;
f.         Putting furniture together; and
g.        Decorating and furnishing the entire house.
(Husband’s affidavit filed 17 December 2020, paragraphs 366–369, 371 and 395)
The unchallenged evidence of the paternal grandmother is as follows:
26. [Mr Sastry] again performed a number of renovations to the former matrimonial home, this time with [Mr C’s] and my assistance. I sourced and organised the tradespeople and contractors for the renovations, negotiated quotes, and I also sourced the materials and fittings myself, and made myself available for delivery to receive them. [Mr C] and I also did a lot of the shopping for paint and other materials ourselves wherever possible.
27. There were a number of tasks, however, that were more substantial and required the assistance of tradesmen.
28. We installed a new shower screen in the existing bathroom, and added an additional bathroom as part of the laundry in the rear of the property, added a shower, re-tiled and re-painted this entire area completely. We also hired a plumber to install a new vanity, mirror, tap fittings, bath tub, towel rail, soap dish and a new laundry tub, and a water proofer to do all of the water proofing in the main and second bathroom and laundry.
29. The built-in robes in the first and second bedrooms were also old and in poor condition, so we had them rebuilt with new mirrored sliding doors. The third bedroom and the rear rumpus rooms did not have built-in robes at all, so we had these installed as well. The rumpus room was also converted into a fourth bedroom.
30. We also removed the old horizontal blinds, replacing them with more modern, vertical blinds. All of the light fittings were removed and changed to downlights and other more modern fittings. [Mr C], [Mr Sastry] and I also demolished walls and completely refurbished the kitchen area.
31. We then discovered that there was no electrical safety switch in the power box, so we had a new power box and switches installed.
32. We also sanded the living room ceiling and re-painted it. The old, marked flooring in all of the bedrooms were sanded down and repaired. [Mr Sastry] did some of this sanding, but he later hired someone to finish the rest of the flooring throughout the home.
33. In the backyard area, there was no balcony or verandah. We built a large concrete verandah across the rear of the property and had it tiled. A contractor was also hired to build a roof over the verandah. The clothesline was also falling apart, with the wind-up mechanism completely broken, so we had it replaced and repositioned.
34. There was also no front porch or verandah, so we added a new wide verandah and had it fully tiled.
35. The garage was rundown, so we had Gyprock installed in the ceilings and walls, and added a large window and a new side door. Fresh concrete was also laid on the front driveway.
36. We also would attend to all of the cleaning each day after the renovations, removing all rubbish and placing them in skip bins.
37. [Mr C], [Mr Sastry] and I also attended to tasks such as choosing and putting furniture together, purchasing whitegoods, providing furnishings and decorating the house.
(Affidavit of Ms R filed 17 December 2020, paragraphs 26–37)

There is no suggestion from the wife in any of her affidavits that she assisted with any of this. I accept she worked full time, but so did the husband. The paternal grandmother and Mr C are strangers to the marriage. The wife agreed in cross-examination that the paternal grandmother spent money on the renovations and added “I agree she renovated the house but I don’t agree with the full list” being Exhibit 14. The wife also agreed the husband helped renovate L Street but was “not sure” if the renovation details set out in the affidavits occurred.
I consider the husband’s work on the renovations to be part and parcel of the husband and wife each contributing when and where they could. I will consider the maternal grandfather’s and paternal grandmother’s contributions, along with all other contributions of the parties, in the evaluation later in these reasons.
Post separation contributions
From the date of separation in April/May 2017 until the wife vacated the home in September 2019. The parties paid half of the mortgage repayments every month and half of all utilities. The wife said she bought the vast majority of the weekly groceries, and laundry items. During this period of time under one roof, both provided care for the children in what can only have been a stressful, dysfunctional and tense time for the adults and the children.
Upon the wife moving out of the home with the children, the parties eventually refinanced the home loan. The husband then serviced the mortgage of $338 per week (Husband’s Financial Statement filed 12 May 2023, p.4) whilst the wife paid rent of between $450-500 per week for the property in which she resided.
Apart from a short period of time where week about was in place and the month in which the husband held-over the children, the children have lived 10 nights a fortnight with the wife. The children have spent half holidays with each of the parents since December 2019.
The wife continued to receive the $200-300 a week from her father. The husband continued to receive financial support from his mother, including some $280,000 in legal fees she has provided him. On that topic, the wife owes over $300,000 in legal fees. The husband did not file an updated Costs Notice as I had required, so it may well be more. The total of at least $580,000 is almost half of the pool. The acrimony, high conflict and parental dysfunction has not only come at a cost to the well-being of the children, but also to each parent’s hip pockets. But, that is a consequence of the choices each made to prosecute and defend claims and counter-claims against each other.
Assessment of contributions
It was the wife’s submissions that contributions favoured her 60 per cent and 40 per cent to the husband. In contending for that assessment, the wife identified that she brought the BB Street property to the relationship. Further, when that property sold, some $60–$70,000 of the proceeds of the sale went into the purchase of the L Street property. The wife contends for a springboard argument. I do not accept that. I have already found the unit was acquired in the early stages of the relationship with monies referable to the husband and wife, and not brought into the relationship by the wife.
The wife also submitted that when the wife vacated the former matrimonial home in August 2019 that resulted in the husband having four years in that home. It was said this was an indirect contribution by the wife to the husband’s occupation of that property. I was taken to the decision of Meadows & Meadows (No 3) [2020] FamCAFC 124 which said one party’s occupation of the former matrimonial home is an indirect contribution by the other. That case goes on to add, the party’s occupation included payment of the mortgage, rates and taxes on the property.
In reply, the wife’s counsel reminded me that the maternal family contributed to the husband and wife and took me to the wife’s affidavit at paragraph 38 which referred to the holidays paid for by the wife’s father.
It was the husband’s submission that when I look at contributions holistically, I would land on a 62.5 per cent adjustment in the husband’s favour. It was said the husband had made “major attempts” to care for the children and other non-financial contributions. It was submitted there was “strong evidence” to demonstrate the paternal grandmother saved money on the husband’s behalf allowing him to provide $10,000 for the purchase of the Suburb A unit. It was said the only reason that unit was in the wife’s name was so she could attract the First Home Owners Grant.
Previous counsel said the paternal grandmother’s support would warrant an 80 per cent adjustment in the husband’s favour, but nothing of the kind was said in final submissions.
It was also submitted for the husband that he had been particularly active in 2017 and 2018 in his non-financial contributions and “the wife’s paramour” was a “source of distraction for the mother’s capacity to focus” on, I assume homemaker responsibilities. It was said the “paramour did not fade away”.
The husband said I would not accept the wife’s springboard argument because the BB Street proceeds were $100,000 but only $60,000 was used.
Standing back, looking holistically, I do not see much between the husband and wife’s contributions. They each did what they could, when they could, and where they could. But then adding into the overall mix is:
Support from the maternal grandfather:
(a)Accommodation at Suburb N from the start of the relationship to the purchase of L Street (but as an abstract concept with no evidence about what that actually meant);
(b)$10,000 for renovations for the unit;
(c)$10,000 to buy the unit;
(d)Some tiling and blinds work on the unit;
(e)Close to $20,000 to buy L Street;
(f)Some modest household chattels;
(g)The provisions of holidays;
(h)$200-300 a week from X’s birth and on-going; and
(i)Care of the children from time to time.
Support from the paternal grandmother:
(a)Close to $20,000 to buy L Street;
(b)Funding of the items accepted by the wife;
(c)The physical work on L Street as set out above;
(d)The purchase of items “including furniture, appliances, and clothing” (Wife’s affidavit filed 17 December 2020, paragraph 35);
(e)The Motor Vehicle 2 and funds to buy Motor Vehicle 4 and Motor Vehicle 3;
(f)Conveyancing for the properties;
(g)Loan advice when buying L Street;
(h)The provision of $50,000 to fund the partial property order in favour of the wife;
(i)Care of the children from time to time; and
(j)Continued financial support post separation to the husband.
I do not accept the wife’s argument for a 10 per cent adjustment in her favour on contributions because I do not accept she brought the Suburb A unit to the relationship, but I do accep her father’s financial support. I also do not accept the husband’s approach that holistically I would assess contributions at 62.5 per cent in his favour. In my view, that places too much weight on the paternal grandmother’s contributions (which I cannot quantify in the way the husband and his mother propose) when I must look at all contributions and not just single out one for special attention or special weighting.
Taking all these factors into account – the contributions by the husband, the wife, and their respective parents - I form the view that it is just and equitable to make a five per cent adjustment in the husband’s favour.
An adjustment of five per cent is $59,786 in money terms. That adjustment is also a 10 per cent differential which equates to $119,572. I consider that to be just and equitable.
RELEVANT S 75(2) FACTORS PURSUANT TO S 79(4)(E)
Subsection (2)(a) – the age and state of health of each of the parties
The wife was born in 1981 and is 42 years of age. The husband was born in 1980 and is 43 years. No health issues were raised.
Nothing turns on this.
Subsection (2)(b) – the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
In his financial statement the husband said he earned $930 per week, which is just under $50,000 gross per annum.
The wife confirmed in cross-examination that she earns a base salary of $59,000 with bonuses taking that to about $62,000 per annum.
I am alert to the fact that the wife owes legal fees in the vicinity of $300,000 which will come from her entitlement on the resolution of these proceedings. That will reduce what she receives in her hands.
The same may be said for the husband if he chooses to repay the paternal grandmother what they allege is owed. If so, that will decrease what he actually gets in his hands.
Both parties will equally meet the ICL’s costs from their entitlements.
It was the husband’s submission that the wife is able to support herself. In reality the parties’ income earning is of a similar nature.
It was the wife’s submission that the paternal grandmother was and remains a financial resource for the husband. She pointed to the conceded payments and purchases and provision of legal fees as examples. It was said the paternal grandmother will continue to financially assist her son as she has done in the past. When asked whether she will continue financially supporting her son, the paternal grandmother said, “of course. He is my son”. I have no doubt that she will continue to financially support her son.
Yet, the maternal grandfather has also been financially supportive of his daughter, the wife in this matter. He continues to provide $200-$300 per week to her, some of which goes to the children and some of which the wife is able to use. Yet that $200-300 a week (or approximately $10,400-$15,600 per annum) is not in the same league as the paternal grandmother’s provision of, say, almost $300,000 provided to the husband for this litigation.
The income of the parties is much of a muchness and they both have the benefit of parents who provide them with financial support. However, the husband is in a slightly better position with respect to his mother, than the wife with her father. Accordingly, this factor marginally favours the wife.
Subsection (2)(c) – whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
The wife will maintain the position of having more care of the children than the husband, but they are now school-age children who do not have the same level of needs as a toddler might. That said, I accept X can be a handful.
The wife’s counsel appropriately conceded that if I made orders that the children primarily live with the husband then her s 75(2) adjustment would be reduced by six per cent.
The husband’s counsel made submissions that if the children live with the wife that would warrant a five per cent adjustment in her favour and if they were with the husband of five per cent adjustment in his favour.
This factor favours the wife as the children will be primarily living with her.
Subsections (2)(d) - (na), (p) and (q)
No submissions were made about these various factors. Although the husband pays child support as assessed averaging at approximately $45 per week (Husband’s Financial Statement filed 12 May 2023, p.5).
Subsection (2)(o) – any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
In the section above concerning add backs I observed that the Trevi Full Court observed that it may be more technically correct to consider asserted add backs under s 75(2)(o). I do not consider anything turns on the wife’s accessing of superannuation in the modest sum of $10,000 and the partial property payment to her. Equally I do not consider the husband selling two cars post separation, using some of the proceeds for school fees and general living expenses, to warrant any kind of adjustment either.
Evaluation of s 75(2) factors
The wife sought a 12.5 per cent adjustment on her favour based on: her care of the children; the paternal grandmother as a financial resource; and, the paternal grandmother’s care of the children. I accept the first two, but not the last. Each party has the support of their parents who both assist with the children.
The husband sought a five per cent adjustment in his favour if the children lived with him, “subject to counterbalancing” other relevant factors.
I accept that, primarily, the care and control of the children, and modestly, the financial resource that is the paternal grandmother to the husband (compared to the wife and her father) warrants an adjustment in the wife’s favour. I assess that those two factors when combined warrant a five per cent adjustment in the wife’s favour.
In monetary terms that is $59,786 or a differential of $119,572.
OVERALL EVALUATION
As a result of my determinations on contributions and s 75(2) factors, the pool of $1,195,718 will be divided 50 per cent to the husband and 50 per cent to the wife. In money terms that is $597,859 to each.
As said, I accept that the wife has legal fees to come from that, and the husband may choose to pay money back to his mother. Both have the costs of the ICL and the husband will have a very modest costs order to meet from his entitlement arising from when neither he nor his then counsel attended court on the agreed date last month to make property submissions.
Yet, as also said, their respective legal fees are a consequence of the parties’ inability to compromise. Sober reflection by both parties much earlier in the proceedings about their conduct of the litigation and return on the investment of legal fees, would unquestionably have provided a better financial outcome for both.
WHAT PROPERTY ORDER IS APPROPRIATE TO ACHIEVE A JUST AND EQUITABLE OUTCOME?
When I balance all the relevant factors, I consider the outcome of 50 per cent and 50 per cent, and in the money terms set out just before, to be just and equitable.
The next issue is the striking of an appropriate order.
The husband stands possessed of:

M Bank account

$1,187

Commonwealth Bank account

$2

Motor Vehicle 2

$1,750

Home contents

$2,250

Superannuation Fund 2

$158,736

Sub-total

$163,925.00

The wife stands possessed of:

Commonwealth Bank account

$727

Commonwealth Bank account

$442

Home contents

$10,000

Motor Vehicle 1 payout

$150

Superannuation Fund 1

$109,824

Sub-total

$121,143

The nett value of the home is $910,000.
The husband sought 90 days to pay out the wife. That would mean he would have to raise $476,716. I reach that figure by taking the $597,859 due to the wife, less the $121,143 she has.
There is no evidence before me that the husband has the capacity to raise almost $477,000 and re-finance the mortgage of $240,000. For example, an order was made in 2019 for the husband to attend upon a counsellor. He said he was unable to afford the $350 a session. The husband had proposed a small payment of cash to the wife ($45,000) and a larger superannuation split ($130,360), but that was on his pool and his per centage. The kind of funds he will have to find is well and truly outside the $45,000 he must have been able to source.
Therefore, I will order the property be sold.
I will also not make a superannuation splitting order as I have no evidence the Trustee has been given procedural fairness of the order sought by the husband. Even if I did, I am content to leave the parties superannuation as is. Neither will be able to access their entitlements for many years other than by, say, small hardship payments. Further, both parties have similar superannuation interests and many years ahead of them able to increase their respective retirement funds.
Both parties had standard sale orders. The husband proposed appointing a valuer if the parties could not agree on a listing price, and that they equally pay the valuer’s costs. The parties do not need to be put to any more expense than necessary. I will therefore use the sale orders proposed by the wife, being her proposed Orders 6–11 at Exhibit 1 save for the distributions she proposed.
Once sold, the proceeds of sale after the usual costs will be distributed 50 per cent to the husband (less the costs order) and 50 per cent to the wife (plus the costs order), after taking account of what each will keep pursuant to [314] and [315] above.
I will make the wife’s proposed Order 12 pending the sale of L Street. They are orders that work to both parties’ advantage by ensuring the property is in good order and the property not be further encumbered unless agreed. I will also make Order 13 for re-listing if there any problems hindering the sale.
Order 14 tidies up any loose ends with bank accounts, so I will make that. The husband sought the same. Orders 15 and 19 are unnecessary and are covered by the retention clauses in my Order (that is, who retains what property at what the value). I will make Orders 16–18, 22 and 23 as they are standard orders finalising financial matters between the parties.
I turn to the husband’s minute at Exhibit 2. The husband’s proposed Orders at 1–5 are now superfluous. I have already determined not to make a superannuation splitting order as proposed at Order 6. I know nothing about valuation costs at proposed Order 7 and will therefore not make it. Order 8 is about closing bank account and was also proposed by the wife. I will make it.
I know nothing about Orders 9 and 10 and will not make them. Orders 11 and 12 are already covered by my retention orders. As for Order 13, that will be a matter between the husband and his mother whether any monies will in fact be repaid. I will make a variation of the husband’s Order 14, so that each party is responsible for any credit card/s they have. Order 15 is covered by the indemnifications proposed by the wife which I will make. I have already determined to make a s 106A order as sought in Order 16.
The wife sought her costs. The husband’s Minute (Exhibit 2) was silent on this. If the parties feel inclined to pay for more litigation, then, the rules provide a mechanism by which they can apply.

I certify that the preceding three hundred and twenty-seven (327) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch.
Associate:
Dated: 26 September 2023

File number:	PAC 5927 of 2017
Judgment of:	BRASCH J
Date of judgment:	26 September 2023
Catchwords:	FAMILY LAW – PARENTING – Where the children have lived with the mother 10 nights per fortnight and four nights per fortnight with the father since 2019 – Where the father sought to reverse the living arrangements – Orders made for the children to remain with the mother 10 nights per fortnight – Where the mother and ICL sought the mother have sole parental responsibility – Where the father sought sole parental responsibility in his favour - Order made for the mother to have sole parental responsibility – Where father and ICL contend the mother’s partner posed an unacceptable risk to the children –Where the mother agreed to a restraint if the Court found unacceptable risk – Unacceptable risk to the children found – Restraint made. FAMILY LAW – PROPERTY – Balance sheet, contributions and s 75(2) of the Family Law Act 1975 (Cth) factors in dispute – Where monies said to be a loan from 2004 is statute barred – Where both parties contend for add backs- Where both parties have contributions from their parents – Contributions adjustment made in husband’s favour – Adjustment made in wife’s favour for continued care of the children and financial resource of the paternal grandmother.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) Pts VII, VIII, VIIIAB ss 60B, 60CA, 60CC(2), 60CC(2)(a) 60CC(2A), 60CC(2)(b), 60CC(3), 61DA, 65DAA, 75(2), 79(1), 79(2), 79(4)
Cases cited:	Af Petersens and Af Petersens (1981) FLC 91-095 Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; [1981] HCA 1 Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124 Bevan and Bevan (1995) FLC 92-600 Biltoft and Biltoft (1995) FLC 92-61 C & C [1998] FamCA 143 Cotton & Cotton (1983) FLC 91-330; [1983] FamCA 18 Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154 Dovgan & Dovgan [2021] FamCA 306 Fielding and Nichol [2014] FCWA 77 Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251 G and G (2000) FLC 93-043; [2000] FamCA 1075 G & C [2006] FamCA 994 Gabel & Yardley (2008) FLC 93-386; [2008] FamCAFC 162 Halstron & Halstron [2022] FedCFamC1A 65 Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395 Hickson & Matthew [2022] FedCFamC1A 161 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78 Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127 Kowalski and Kowalski (1993) FLC 92-342; [1992] FamCA 54 Line and Line (1997) FLC 92-729 Loddington & Derringford (No 2) [2008] FamCA 925 M & M [1998] FamCA 42 M v M (1988) 166 CLR 69; [1988] HCA 68 Maine & Maine (2016) 56 Fam LR 500; [2016] FamCAFC 270 Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21 Mayne v Mayne (2011) FLC 93-479; [2011] FamCAFC 192 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 Meadows & Meadows (No 3) [2020] FamCAFC 124 AJO & GRO (2005) FLC 93-218; [2005] FamCA 195 Perrin & Perrin(No 2) [2018] FamCAFC 122 Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52 Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173 W v W (1997) FLC 92-723 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [1998] FCA 806
Division:	Division 1 First Instance
Number of paragraphs:	327
Date of hearing:	6 June 2022, 25–27 October 2022, 15–18 May 2023, 15–16, 21 and 23 August 2023
Place:	Parramatta and Sydney
Counsel for the Applicant:	Mr Watkins
Solicitor for the Applicant:	John & Co Lawyers
Counsel for the Respondent:	Mr Richards (6 June 2022, 25–27 October 2022, 15–18 May 2023, 15–16 August 2023)
Counsel for the Respondent:	Mr Shaw (21 and 23 August 2023)
Solicitor for the Respondent:	King & York Lawyers (6 June 2022, 25–27 October 2022, 15–18 May 2023)
Counsel for the Independent Children's Lawyer:	Ms Stolier
Solicitor for the Independent Children's Lawyer:	Brian Samuel & Associates

PAC 5927 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS SASTRY Applicant
AND:	MR SASTRY Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BRASCH J
DATE OF ORDER:	26 SEPTEMBER 2023

M Bank account	$1,187
Commonwealth Bank account	$2
Motor Vehicle 2	$1,750
Home contents	$2,250
Superannuation Fund 2	$158,736
Sub-total	$163,925.00

Commonwealth Bank account	$727
Commonwealth Bank account	$442
Home contents	$10,000
Motor Vehicle 1 payout	$150
Superannuation Fund 1	$109,824
Sub-total	$121,143