Tavarus & Tavarus - [2023] FedCFamC2F 845

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tavarus & Tavarus [2023] FedCFamC2F 845

File number(s): BRC 8965 of 2019

Judgment of: JUDGE WILLIS AM

Date of judgment: 20 July 2023

Catchwords:
FAMILY LAW – PARENTING – Family Violence perpetrated by father towards mother and children – where mother has solely provided for the children – where mother cares for a total of six children – where children of this relationship have experienced violence and trauma at the hands of the father directly and in witnessing violence towards the mother – where father has kept mother and children under surveillance and engaged in multiple acts of family violence over years – where State Magistrate satisfied that father has been keeping the mother under surveillance and a Restraining Order under section s359F of the Criminal Code (Qld) and a Domestic Violence Order issued and remains in force – father denies all violence and has no insight into the effects of his violence upon others – where father represents unacceptable risk to the children – where no contact order made – mother’s application to relocate is granted – mother to have sole parental responsibility

FAMILY LAW – PROPERTY – where husband has retained occupation of the former matrimonial/family home – where husband refused two occasions to allow access to the wife to retrieve her belongings contrary to two Court Orders to do so – where husband refused to disclose documents and delayed paying for and facilitating valuations contrary to Orders – where husband withdrew three lump sums from his superannuation for his own use – addback – where husband took redundancy in 2017 and did not return to the workforce during marriage – where the wife was the sole income earner and provider for the children from 2017 and beyond – where husband pays no child support – where the husband has a number of qualifications and ability to work when he chooses to do so – where it is just and equitable to divide the property on a 65/35 basis – where husband is provided an opportunity to pay out the wife’s property entitlement and transfer the mortgage of the former matrimonial home into his sole name – where wife to be sole trustee for sale of the former matrimonial home in the event that the husband fails to pay her out

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC(2), 60CC(3), 60CG, 69ZX(3)(b)

Family Law Reform Act 1995 (1997) FLC 92-755

Cases cited:
A and A Relocation Approach (2000) FLC 93-035

AMS v AIF (1999) 92-852

Bevan & Bevan [2013] FamCAFC 116

KB & TC (2005) FLC 93-224

Briginshaw v Briginshaw (1938) 60 CLR 336

C & C (2005) 33 Fam LR 414

Ferraro and Ferraro (1993) FLC 92-335

Franklyn & Franklyn [2019] FamCAFC 256

In the Marriage of Hickey (2003) FLC 93-143

Lansa & Clovelly [2010] FamCA 80

M and M (1988) FLC 91-979

McCall & Clarke (2009) FLC 93 405

Rod & Bloomberg [2008] FamCA 487

Stanford & Stanford (2012) FLC 93-495

Taylor & Barker [2007] FamCA 1246

U & U [2002] FLC 93-112

Division: Division 2 Family Law

Number of paragraphs: 457

Date of last submission/s: 4 April 2023

Date of hearing: 21, 23, 26, 27, 28 September 2022, 3 March 2023 (total hearing time: 6 days)

Place: Brisbane

Counsel for the Applicant: Mr Walsh

Solicitor for the Applicant: Raiti Lawyers

Counsel for the Respondent: Mr Seewald

Solicitor for the Respondent: Legal Aid Queensland

Counsel for the Independent Children's Lawyer: Ms Lyons

Solicitor for the Independent Children's Lawyer: Ms Hawdon
ORDERS

BRC 8965 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS TAVARUS

Applicant

AND:
MR TAVARUS

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE WILLIS AM

DATE OF ORDER:

20 JULY 2023

THE COURT ORDERS ON A FINAL BASIS:
PARENTING
Live with mother
1.That the children, X born in 2009, Y born in 2011, and Z born in 2016 (“the children”), live with the mother in the Region B area.
2.That the mother shall have sole parental responsibility for the children in relation to all major long-term decisions as defined within the Family Law Act 1975 (Cth) (“the Act”)

No time or communication with father
3.That the children will spend no time with the father of any kind whatsoever and will not communicate with the father in any way.
4.That the father will spend no time with the children of any kind whatsoever and will not communicate with the children in any way (directly or indirectly or through an agent).

AND THE COURT NOTES:
A.That these Orders state that there will be no time at all between the children and the father, or the father and the children. It is therefore not open to the father to make arrangements to spend time with the children or contact the children outside of the terms of these Orders.

AND THE COURT FURTHER ORDERS ON A FINAL BASIS:
Restraints and injunctions
5.That the father is hereby restrained, and the following injunctions shall issue pursuant to section 68B of the Act for the personal protection of the mother and the children. The father is restrained from:
(a)Communicating with or asking someone else to communicate all or any of children and/or the mother by any means whatsoever;
(b)Filming or recording all or any of children and/or the mother, or asking someone else to film or record all or any of the children and/or the mother;
(c)With the exception of an appearance in Court, approaching to within one hundred (100) metres of where any of the children and/or the mother live, work, go to school, or any place where they are spending time (including but not limited to shopping centres, sporting venues, or any public place);
(d)Locating, or attempting to locate, or asking someone else to locate, any of the children and/or the mother; and
(e)Asking any person to bring or deliver up all or any of the children to him (or to another person or place), or communicate with all or any of the children on his behalf.

6.That the father is hereby restrained and an injunction shall issue pursuant to section 68B of the Act restraining the father from attending upon or removing all or any of the children from the care of the mother, or from any person, place or institution where all or any of the children have been placed by the mother (including but not limited to school/daycare/afterschool care and/or any extracurricular activities and/or from the care of any friend or relative of the mother) without a specific Order from this Court permitting him to do so.

International travel and passports
7.That for the purposes of Section 11 of the Passports Act 2005 (Cth), this Order expressly permits the issue of a passport or travel documents (within the meaning of the Passports Act 2005 (Cth)) for the children, X born in 2009, Y born in 2011, and Z born in 2016 (“the children”), upon application by the mother without the consent or signature of the father. So that there is no confusion, the passport is to issue notwithstanding the failure of the father to sign the passport application or any other travel documents.
8.That the mother shall retain the children’s passports in her possession.
9.That the mother is permitted to remove the children from the Commonwealth of Australia for the purpose of a holiday at dates and times at her sole discretion.

Other Orders
10.That the Court is satisfied that exceptional circumstances exist to satisfy the terms of section 64D(2) of the Act so that these Orders cannot be replaced by a subsequent parenting plan and can only be varied by a subsequent Order of the Court.
11.That the Independent Children’s Lawyer is discharged thirty (30) days from the date of this Order or upon the expiration of any appeal period.
12.That all outstanding parenting applications are dismissed and removed from the pending cases list.

PROPERTY
THE COURT ORDERS ON A FINAL BASIS:
13.That by way of final property settlement, the net property of the parties (as identified in paragraph 387 of the judgment) is to be divided on the basis of 65% to the wife and 35% to the husband.

To effect such property division, the following Orders will apply
14.That the husband is to pay funds to the wife in the sum of $157,809.00 within twenty eight (28) days of today’s date.
15.That, contemporaneously with such payment referred to in Order 14 above, the husband is to refinance the existing joint mortgage so as to remove the wife from all financial responsibility in relation to the existing joint mortgage over the property situated at C Street, Town D, more particularly described as Lot … on Registered Plan … (“the former matrimonial home”) and from that time the husband shall release and indemnify the wife in relation to all liabilities arising from the current mortgage over the former matrimonial home.
16.That, contemporaneously with the husband’s compliance with both Orders 14 and 15 herein, the parties are to do all such acts and things and sign all such documents necessary to transfer to the husband, at the expense of the husband, all of the wife’s right, title, and interest in and to the former matrimonial home. Thereafter the husband is to indemnify and hold indemnified the wife against all liability arising from the former matrimonial home.

Husband responsible for charges associated with the former matrimonial home
17.That until the husband has fully complied with Orders 14 and 15 herein, or failing that, all of the default provisions referred to in Orders 18 to 25 for the sale of the former matrimonial home, the husband is to pay and is to be solely responsible for the mortgage repayments as and when they fall due and other standing charges associated with the former matrimonial home (including the rates). In the event that the husband defaults in this obligation in making these payments, the amount of such default is to be deducted from his share of the sale proceeds as provided for in Order 25 herein.

Default Order in the event that the husband fails to pay out the wife
18.That in the event the husband fails to comply with the strict terms of Orders 14 and 15 herein then the following Orders shall apply forthwith.
19.That the parties are to do all acts and things and sign all such documents necessary to forthwith effect the sale of the former matrimonial home.
20.That the wife is appointed as the sole trustee for sale of the former matrimonial home.
21.That the wife as sole trustee is authorised by these Orders to have the sole conduct of the sale of the former matrimonial home in all respects on behalf of both parties. This includes (but is not limited to) doing all acts and things necessary to list the former matrimonial home for sale and for this purpose:
(a)The former matrimonial home shall be listed for sale by private treaty with E Real Estate or such other agent as determined by the wife as sole trustee;
(b)The listing price for sale by private treaty will be such an amount as determined solely by the wife as sole trustee and in consultation with the real estate agent and any other enquiries the wife as sole trustee wishes to make;
(c)The husband is to cooperate in every way with the directions of the wife as sole trustee in relation to working with the real estate agent in relation to the marketing of the former matrimonial home for sale, including making the key available, allowing unimpeded inspection of the former matrimonial home at all reasonably requested times by the agent or trustee, ensuring the former matrimonial home is in a clean, neat, and good order at the time of the inspections/auctions/open houses, vacating the property prior to any inspections as directed by the sole trustee or real estate agent to enable any prospective buyers to have access to and properly inspect the former matrimonial home in the absence of the husband. So that there is no misunderstanding, the husband is to vacate the former matrimonial home completely and leave the precincts of the former matrimonial home as and when requested to so by the sole trustee, the auctioneer or the real estate agent;
(d)The husband is restrained from taking any action which causes any interference with any real estate agent, prospective purchasers, or the process of the sale, or with the responsibilities or obligations of the wife in her role as sole trustee;
(e)The husband is not to confer/communicate/discuss with any agent relating to the sale without the prior written consent of the wife as sole trustee, give any permission to sell, or exercise sole or exclusive agency in respect of the former matrimonial home.

22.That in the event that the former matrimonial home has not been sold by or before a date two (2) months from the date it was listed for sale by private treaty (or other date determined solely by the trustee), then the parties shall make all arrangements and do all acts and things and sign all documents as may be necessary to procure a sale by public auction of the former matrimonial home upon the following terms:
(a)The auctioneer shall be appointed by the wife as sole trustee for sale of the former matrimonial home;
(b)The auction shall take place as soon as possible after the deadline date for the sale of the property by private treaty;
(c)The reserve price shall be such an amount as determined by the wife as sole trustee and in consultation with the real estate agent and any other enquiries the wife as sole trustee wishes to make;
(d)In the event that the former matrimonial home is not sold by auction or by private negotiation within fourteen (14) days after the auction then the parties are to do all acts and sign all necessary documents to procure a second auction within a further five (5) weeks (or other time as directed by the sole trustee) of that date upon the same terms and conditions as applied to the first auction;
(e)In relation to the preparation of the former matrimonial home for the auction and any other subsequent auction, all of the provisions set out in Order 21(c)‑(e) inclusive apply.

23.That the wife as sole trustee will appoint the conveyancing solicitors to handle the conveyance of the former matrimonial home (whether by private treaty or by auction) and the sale proceeds will be directed into a trust account nominated by the wife.
24.That in the event that the husband refuses to comply with the Orders and conditions for sale herein, or in any other way impedes the sale process, the wife has leave to apply on an urgent basis for sole occupation of the former matrimonial home as well as any other ancillary Orders necessary to effect the sale.
25.That upon completion of the sale of the former matrimonial home (whether by private treaty or by auction) the proceeds of sale are to be applied as follows:
(a)To pay all costs, commissions and expenses of the sale/auction;
(b)To discharge the mortgage secured against the property subject to the provisions relating to the husband being solely responsible for the mortgage repayments as and when they fall due and any other standing charges associated with the former matrimonial home;
(c)The balance of the proceeds of sale are to be divided so as to achieve an overall property settlement of 65% to the wife and 35% to the husband, after:
(i)Taking into account the assets or superannuation already in the possession of each of the parties, as indicated in the list of assets comprising the property pool (at paragraph 387 of this judgment);
(ii)Deducting from the husband’s share prior to distribution the amount of any outstanding costs orders of this Court and with such sum to be paid into the account nominated by the recipient, Legal Aid Queensland;
(iii)Deducting from the husband’s share prior to distribution any further amount owing as a result of the husband’s failure to comply with Order 17 herein.

Registrar to sign
26.That each of the parties shall do all acts and things and sign all necessary documentation to give effect to the terms of these Orders. In the event that the husband refuses or neglects to sign (within two (2) days of a written request to do so) any document necessary to effect the terms of these Orders, a Registrar of the Federal Circuit and Family Court of Australia is hereby appointed pursuant to section 106A of the Act to execute such documents on behalf of the husband, including signing contracts and bank or mortgage transfers. An affidavit filed by the wife deposing to such failure to sign will be sufficient evidence of the husband’s failure.

Upon completion of the terms of these Orders, the following Orders apply
27.That unless specifically provided for in these Orders, the parties are solely entitled to the exclusion of the other to all other property and chattels (including superannuation) in the possession of each of the parties as at the date of the making of these Orders.
28.That unless otherwise provided for in these Orders, the husband and wife are to each remain solely liable for and will indemnify the other for any and all credit card debt or any other liability whatsoever held in their own respective names.

COSTS
29.That the husband is to pay Legal Aid Queensland the costs of and incidental to the final day of trial on 3 March 2023, fixed in the sum of $4,252.00, such sum to be paid within twenty eight (28) days.
30.That in the event the husband defaults in his obligation to pay costs pursuant to Order 30 above, the sum of $4,252.00 is to be deducted from his share of the sale proceeds as provided for in Order 25 herein.
31.That all outstanding property applications are dismissed and removed from the pending cases list.

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

The applicant in this matter is Mr Tavarus (“the father/husband”). The respondent is Ms Tavarus (“the mother/wife”). The father was born in 1977 and was aged 45 at the time of trial. The mother was born in 1988 and was 34 years of age at the time of trial. The mother was born and raised in Country F and spoke Country F language as her first language, not English, when she met the father, who was working in Country F.
The parties have three children:
(a)X born in 2009. X was 13 at the time of trial.
(b)Y born in 2011. At the time of trial Y was aged 11.
(c)The third child is WW born in 2016. This child prefers to go by the name Z and so that is how he is referred to in this judgment. Z (WW) was aged 5 (turning 6) at the time of trial.
The parties moved to Australia from Country F in 2009 where they had met. They have lived for most of their life in the Queensland town of Town D, separating finally on 3 February 2019.

All of the children have lived with the mother since separation. The father has remained in the former matrimonial home at C Street, Town D (“the former matrimonial home”) since separation. The mother and children have been in rental accommodation.
The mother has re-partnered post separation and has two children with her subsequent partner though they do not live together. The father has not re-partnered.
The parties are unable to agree about the future parenting arrangements of their children or the division of their property.
In all, the parenting and property trial proceeded over 6 days, which included a few hours on a further final day allocated for cross-examination regarding the property issues arising from the father not having evidence of his ability to pay out the wife by the conclusion of the trial.
Each of the parties were legally represented in this matter following the making of a section 102NA order. An Independent Children’s Lawyer (“ICL”) represented the three children.
I will initially deal with the application for parenting and once this is determined I will then turn to the property application.
A statement in these Reasons represents a finding of fact unless otherwise stated.
In recounting the facts and making findings in the parenting matters, it is noted that some of this history will be relevant to both the parenting and property matter.
PARENTING
Parenting Orders Sought - Father
The father commenced this litigation on 1 August 2019 seeking final parenting orders only that the children live with him and spend time with the mother each alternate Wednesday from after school through to the following Friday, meaning two (2) nights each alternate week and no weekends. Some special days during the year were included. The father sought an order for equal shared parental responsibility. The father also sought orders that the mother attend at the Town D Police Station on Saturday and Sunday for the purpose of an alcohol breath test and subsequent blood test. The father also sought a restraint that the mother was not to remove the children beyond a radius of 20 kilometres from the Town D Courthouse. The father sought a restraint that the mother not remove the children from the Commonwealth of Australia. Other non-controversial orders were also sought.
In that Application, the interim orders also sought were that the children live with him and that the mother have supervised time only with the children for two (2) hours each weekday at all times as facilitated by the contact centre. An interim order was sought as in the final order that the mother attend the police station on Saturday and Sunday for an alcohol blood and breath test, and the other restraints. The father described his occupation as a student.
By the end of the trial, the father sought that the children live with him and an order for equal shared parental responsibility. As to the mother’s time with the children, the father proposed that the children spend time with the mother two (2) nights a fortnight on alternate weekends from Friday to Sunday afternoon, half the holidays, and special days. He also sought other orders about telephone time, FaceTime, and authorities given to schools. The father also sought an order that the mother was not to relocate the children more than 20km from the former matrimonial home where the father now lives in Town D. In other words, he is opposed to the mother’s orders sought that the children live with her in the Region B area.
The father is opposed to the orders sought by the mother for no contact. The father proposes that if the Court determines that he is an unacceptable risk, that he be granted an ongoing order for supervised time at a contact centre each alternate weekend. If the Court considers that a final order for supervision should not be made, Counsel for the father says that the supervision should stop after a period of time, and the Court should make an order for unsupervised time.
Parenting Orders Sought - Mother
In her Amended Response filed 22 February 2022 and at the trial the mother sought an order that the children live with her in the Region B area and that she have sole parental responsibility.
As to the father’s time with the children, the mother proposed orders that if the Court finds it is not in the children’s best interests to spend time with the father, then the children will spend no time with or communicate with the father. This is her primary position.
If the Court found it was in the children’s best interests to spend time with the father, the mother proposed supervised time only at a contact centre for two (2) hours per fortnight or much less frequently, down to several times a year. The primary position though is that mother is strongly opposed to the children spending time with the father.
There are a raft of restraints sought by the mother pursuant to section 68B which include a restraint for the personal protection of the mother and children; that the father be restrained from communicating with the mother; that the father be restrained from filming and recording the mother and children; approaching the mother or children where they are living or at any place (except for the attendance at court); and from locating attempting to locate or having others locate the mother and children or removing or asking someone else to remove the children from the care of the mother. The mother also sought orders that she be permitted to remove the children from the Commonwealth of Australia for the purposes of holidays and further that she be permitted to obtain passport documents for the children upon request by her without the consent of the father and that she retain the children’s passports.
Orders Sought - Independent Children’s Lawyer
The Independent Children’s Lawyer supports the mother’s position of the children living with her in the Region B area, that she have sole parental responsibility and authority, and that the children have no contact with the father.
BACKGROUND
The mother is of Country F descent, having met the father, who is Australian, when he was working with G Company in Country F. The parties married in Country F in 2008. The mother says that the parties knew each other for around nine days before they were married in Country F in 2008.
The father described his occupation as an artist aged 30 on the marriage certificate and the mother was aged 19 and described as doing domestic duties.
English is not the mother’s first language and she gave evidence that she learnt a lot of her English, including swear words, from the father. The mother said in her material that when the parties met [Mr Tavarus] was very kind and softly spoken, I thought he was lovely, and when he proposed to me a week after we met, I said yes because I wanted to start a family and [Mr Tavarus] seemed like a nice person.[1] While the mother speaks and understands English well, she has a different style of English as she has learned to speak it in Country F. There were various times when the Court had to stop and clarify with the mother what word it was that she used. Also, her sentence structure is often in a different pattern than might be expected of a native English speaker. The mother was nonetheless able to explain most things very well, but there were some concepts that she was not quite familiar with and at which point she would ask for the Court’s assistance to clarify.
[1] Affidavit of Ms Tavarus filed 12 September 2022, paragraph 77.
At the time the parties commenced their relationship the mother was employed full time, working for a company and also selling items, and the husband was working with G Company. The mother was pregnant with their first child shortly after they met and married. When she was pregnant in 2009 they decided to move and live in Australia which is where the father was born and where his family lived.
The mother described the first incident of domestic violence occurring to her when they were packing to leave Country F and during an argument she said that the father started screaming at her. This was the first time she had seen the father react like this and she was shocked. When the mother looked back at the father, after having put something in to her suitcase, the mother said [Mr Tavarus] slapped me hard across my face. At the time the mother was heavily pregnant.
The parties moved to Australia in 2009. Shortly after arriving their first child, X, was born in 2009. At the time of this trial, X is 13. The mother became a stay-at-home parent and primarily looked after baby X and the household. Two years later in 2011, the second child, Y, was born. The mother continued to be the primary carer for these two young children whilst the father was in the workforce.
Initially when the parties arrived in Australia they lived with the father’s parents in Town D. This was a difficult time for the mother. Apart from not speaking English as her first language, she did not have friends and family in Town D and she had a very challenging relationship with the father’s family, namely her parents-in-law. The mother found the father and her mother‑in‑law both very controlling in terms of telling her what to wear, what to eat, and gave her lectures about being a good wife to the father.
The difficulties in the mother’s relationship with the father came to the attention of the Police in 2015. Whilst the parties were still together and married, the Police (on behalf of the mother) sought a Protection Order against the father in which the mother was named as the aggrieved and the father as the respondent. The mother has described serious events of violence that occurred. The father denies all allegations of Family Violence.
The parties’ third child Z was born in 2016. The mother continued to be the parent primarily responsible for caring for the now three children. Z has advised the Family Report Writer he likes to be called Z.
Between 2009 and 2017 the father worked long hours including 10 hour days. When the father was home he spent a lot of time on his computer working on his art. He often did this after work and stayed in the “computer room” until 1 or 2am.
In late 2017, when Z was aged around 12 months, the father ceased employment. He received a redundancy of $21,800. After that he refused to return to work telling the mother he wished to focus on his arts career.
Whilst the mother was home with the three children, she had undertaken some studies in allied health care. In 2017, the mother completed her allied health studies. The mother worked at a company on weekends and in 2018 secured a second job as an allied health worker with J Company. The mother worked in these two jobs to earn an income to support the family and pay the mortgage repayments.
The father it seems remained unemployed after his payout in 2017. His evidence is that he is an artist, however it is just a hobby.
There were significant disputes between the parties and a high level of conflict escalating through 2018 up to a point at which the parties separated on 3 February 2019. The mother and father both say that there was conflict and arguments in the presence of the children.
In late 2018 just three months prior to their separation, the parties purchased a matrimonial home for the sum of $260,000. They secured a joint mortgage of $130,000. In circumstances which I will come to later the father insisted that the house be purchased on the basis of tenants in common with the father held a 70% interest and the mother held a 30% interest albeit they had a joint mortgage in which each of the parties were jointly or severally liable for the mortgage debt.
After separation on 3 February 2019, the mother left the matrimonial home with the three children and the father remained in sole occupation of the former matrimonial home. That remains the case as at the trial some four years later.
The mother found a rental place for herself and the children and worked for her own and the children’s financial support in order to provide shelter, accommodation, food and other daily expenses necessary for their survival. Since the separation the mother has been solely financially responsible for the children as the husband has not paid any child support from 4 February 2019 up to and including the date of trial.
At the time of separation the husband was occupying himself with some of his various interests from home. The mother gave evidence that when they were together the husband did not engage with the family but usually spent most of his time pursuing his own interests on the computer or otherwise; he would come out for cups of tea and coffee and then retreat to the computer.
The day after separation the mother returned to the former matrimonial home with the Police to collect some belongings. The father refused to allow the mother to remove her own or the children’s belongings. He also refused to allow her to take one of the two cars that the parties owned. The Police encouraged the father to give the mother a car to get the children around in, however he refused. Consequently, the mother was left needing furniture, belongings, and transport. The father subsequently gave away the second car to his brother. The mother explained in the immediate post-separation period how she used to walk to and from the former matrimonial home to collect the children (if they were with the father during the day) and then walk the children back to her rental home while she was continuing to work post-separation. She had been, it seems, the only income earner after the father received his redundancy.
In February 2019, or around that time, when the father had sole occupation of the former matrimonial home, the father took in some workers to live in the house with him. Under cross examination the father explained that he permitted up to 12 people at once to live in the former matrimonial home, but said that no one paid any rent. At that time the matrimonial home was a relatively new home which they had purchased only in late 2018; a couple of months prior to separation.
In March 2019, just after separation, the mother attended Centrelink to seek financial assistance. She was informed by Centrelink that the father had been receiving the Family Tax Benefit payments for X since his birth in 2009 and further that he did so by setting up a MyGov account in the mother’s name.[2] The mother did not know anything about this account during the relationship. It was only when the mother attended the Centrelink office were the payments then transferred to the mother’s name.
[2] Affidavit of Ms Tavarus filed 12 September 2022 at paragraph 205.
In March 2019 the mother applied for a second Domestic Violence Order listing the father as a respondent, and a temporary order was made, with a final order being made the following year.
In mid-2019 the father physically abducted Z directly from the mother’s care while she was out shopping with all of the children. The father was assisted by his own parents who took Z and handed him to the father, who was hiding. I have transcribed and summarised the audio recording of this incident that the father submitted as part of his evidence and have indicated what the father was saying into his phone and separately what could be heard on the audio:
The father: “we came up from elevator and I’m staying by Woolworths and [Ms Tavarus] and the boys and mum and dad have gone into Big W but I’m staying far away”.
Audio: Few minutes go past. Can hear children. Can hear the father start to shuffle/run.
The father repeatedly saying: “you’re breaking the law, get away, don’t do it – you’re breaking a DVO get away from me, let go of my boys. [Ms Tavarus] go away!”
The mother crying: “call the police please, he’s trying to steal my son.”
Audio: Children crying.
The father: “you’re breaking a DVO and she’s taking my child, get her away from me.”
Audio: Can hear bystanders interrupt. Verbal altercation.
The father: “I am not going to, I have the son. You’re breaking a DVO, leave me alone.”
Audio: Big argument. Overlapping voices.
Children screaming: “Dad! Stop!”
Audio: Multiple people screaming – “you’re breaking a DVO.”
The father: “let go of my arm” x 10.
Audio: The father hysterically screaming. Children screaming.
Unknown Man: “let go of the child right now. Let go of the child. You need to let go of the baby.”
The mother: “you’re hurting me” – screaming.
Unknown Man: “let go of the child mate.”
The father: “why are you doing this to me? Let go of my arm. You have to let go of my arm, you’re assaulting me. Let go of my arm. You have to let go of me. Give my son back. Let me walk away, let go of my arm.”
Unknown Man: “no mate. I’m not letting go.”
Audio: verbal argument between unknown man and the father. Inaudible.
The mother’s evidence of this event is in her trial affidavit as follows (noting that Mr Tavarus is the father, Mr M is the paternal grandfather, and Ms N is the paternal grandmother):
221. [In] mid-2019, I was shopping with the children in the [O Shopping Centre]. As I was leaving, I saw [Mr Tavarus] and his parents coming up the travelator. To avoid them, I turned and went into Big W. I tried not to let the boys know that I was worried.
222. I heard [Ms N] calling to the older boys to come to her. [X] told her “no, go away you’re trying to hurt my Mother” and the boys ran away. [Z] was in the trolley that I was pushing.
223. I was afraid and tried to get help. [Mr M] came around a shelf and picked [Z] up and out of the Trolley. I told him that he wasn’t allowed to take [Z] without my permission and [Mr M] responded with: “yes I am, I’m allowed to give him a hug as a grandparent”.
224. [Mr M] started walking away with [Z] and I saw him give [Z] to [Ms N] who started running away with [Z] towards the exit. A friend of mine, [Mr P], was nearby and he asked if I needed help. I told him that I did and asked him to call the Police.
225. I ran after [Ms N] and saw her give [Z] to [Mr Tavarus]. I saw that [X] was also with [Mr Tavarus] and [Ms N] going down the Travelator. I followed and saw that [X] was yelling and trying to pull [Z] away from [Mr Tavarus], [Z] was screaming. I was afraid but followed them, calling out for them to stop. [Y] followed along behind me.
226. I managed to catch up to [Mr Tavarus] and tried to pull [Z] back into my arms. [Ms N] and [Mr Tavarus] pushed me backwards, stopping me from reaching [Z]. I called for help and several people and Security came running.
227. [Mr Tavarus] and [Ms N] pulled [Z] between them and tried to lay on the floor with [Z] between them and the floor. People grabbed [Mr Tavarus] and held him down. Security pulled [Z] from [Mr Tavarus] and returned him to me. [Z] was crying and I tried to calm him down.
228. When the Police arrived, they told me to take the boys and make a statement the following day.
229. [In] mid-2019, I applied for a Domestic Violence Orders naming [Mr Tavarus'] parents as the Respondents. A Temporary Protection Order was made that day.
In August 2019 the father commenced parenting proceedings in this Court. However, the father did not manage to serve his material on the mother until 28 January 2020, the day prior to the matter being listed for mention before the Court.
In April 2020 and in July 2020, the husband withdrew $10,000 and then $8,000 from his superannuation fund.[3]
[3] As will be seen, another withdrawal was found to have been made in 2021 at the trial.
There was a Child Inclusive Conference ordered by Judge Howard (as he then was) and then an interim hearing on 7 April 2020 after which Orders were made that the children would spend supervised time with the father at the City Q Contact Centre. The father has continued to have supervised time for the two years subsequent to that Order up to the time of trial.
In late 2020, the mother commenced a casual relationship with her now partner, Mr R. The mother and Mr R subsequently had a daughter. Mr R and the mother do not live together. They have nonetheless continued a relationship and now have a second child. The mother and Mr R are in a happy and supportive relationship and they spend regular time together parenting their two young children on weekends and other at times, who were aged two years old and eight months old at the time of trial. Mr R, who is in the full-time workforce, has complied with his obligation to provide financial support for his two daughters, and he helps the mother when he can by staying with her on weekends he has off.

In late 2020, due to the father’s conduct towards the mother, the father faced charges of stalking and two breaches of the Domestic Violence Order in the Town D Magistrates Court. That contested hearing occurred in September 2020.
Orders were made in this Court on 3 September 2020 relating to disclosure documents and Order 7 comprehensively listed out all of the documents that were required. The father has failed in his obligation of disclosure. At Order 9 of the Orders, under the heading of “Collection of the respondent’s personal property,” the mother was given liberty to give notice to the father of her intention to attend at the former matrimonial home for a period of six hours to collect all of the items set out from (a) through to (x). The father was to vacate the property to enable the mother to collect the items and not return until the six hour period had expired. An Order restraining the father and injuncting him from dealing with or attempting to deal with the items listed at Order 9 until the mother had collected them was issued.
The Orders also provided for a process whereby H Company were jointly engaged to undertake a valuation of the household contents and S Company were engaged to value the former matrimonial home. Orders were made in relation to each of these valuations that the husband was to be responsible for the costs. It took around 12 months, and many requests, for the father to do this.
The 3 September 2020 Orders also provided for the husband to attend upon a psychiatrist as directed by the ICL for a psychiatric assessment (subject to funding being made available). The ICL did not secure funding. Therefore a further Order was made for the father to organise for a psychiatric assessment at his own expense. The father did not do this. Instead, he approached two different psychologists to undertake personality inventories. The first test he did twice as he was not happy with the results of the first one.
In October 2020, through her solicitors, the mother requested permission to attend at the joint property, being the former matrimonial home, in accordance with the provisions of the Orders of the Court of 3 September 2020. The correspondence received from the solicitors acting for the father advised that he refused to vacate the property and he would not allow the wife to collect her personal property. The wife attended three days later to collect her personal possessions. The husband remained inside the property and refused to leave. The husband blatantly ignored the terms of the Orders of this Court and refused to comply with them.
In December 2020, the mother was advised by the school attended by the children that the husband was failing to meet the children’s school fees and that there was an outstanding debt of $13,162.50 (“the school fees debt”). The mother entered into a payment plan with the school and became solely responsible for payment of the outstanding debt. The mother has paid the children’s ongoing school fees which are $7600 per annum. The mother borrowed money from family and ultimately cashed in some of her own superannuation and put $5,000 towards payment of that debt. She has paid off the balance of the school fees debt.
On 8 March 2021, Orders were again issued in this Court by his Honour Judge Howard (as he then was) permitting the wife to attend the Town D family home. The Orders provided that the husband was to vacate the property temporarily for six hours to enable the wife to collect her personal goods and not return until the six hour period had expired.
A further Order was made that the father (and his servants and agents) are restrained and an injunction issue to prevent the father from dealing with or attempting to deal with the items listed at Order 9 of the previous Orders made on 3 September 2020, until the wife collects those items.
Correspondence was then sent on that same day to the husband’s solicitors giving them notice, as required by the Orders, that the mother intended to go to the property on 20 March 2021 and requested that the husband vacate the joint property in line with the provisions of the Orders.
On 20 March 2021 the wife attended the jointly owned former matrimonial home to collect her personal goods. The husband, and others it seems, however remained inside the property. He still refused to vacate the property in compliance with this Court’s Orders, despite the Police (who were in attendance) showing the father the correspondence sent to the husband’s solicitors giving notice within the notice period as required and despite the Orders of this Court requiring him to do so.
On 22 March 2021 further correspondence was then sent to the husband’s solicitors putting them on notice again that the wife intended to go to the property on 3 April 2021 and requesting again that the husband vacate the property. On that day when the wife attended to collect her personal goods, she found the house was locked. The father again refused to comply with the Orders of the Court. The mother said that the father had put some of her property outside under a tarpaulin having refused her permission to attend as provided for in the Orders of the Court. Many of the wife’s goods were damaged, wet, and mouldy and some were missing.
In May 2021 correspondence was sent to the father’s solicitors requesting that the father either meet the whole of the costs of the children’s school fees or consent to the children changing schools as the mother could not afford to pay all of these fees. No response was received until almost two months later, when correspondence was received from the father’s solicitors[4] advising that the father does not agree to the children changing schools. Nor did he offer to pay the costs of their current school.
[4] The Men’s Legal Service.
The father was asked again on 19 July 2021 in correspondence sent to his then solicitors whether he would be prepared to meet the costs of the children’s school fees. No reply appears to have been received. Four months later on 14 September 2021 further correspondence was sent to the father’s solicitor requesting that he pay the cost of the children’s schooling. The letter also queried whether or not he would meet the costs of the valuation required for the family home per the Orders.
There were various follow-up letters requesting the husband pay the cost of the valuation of the former matrimonial home. The father further accessed his own superannuation in late 2021 for a third time being a further $8,000. Leading into the trial, no disclosure had been made about any of these withdrawals, but during the trial, after documents were called for, the documents were able to be examined and then the total of his withdrawals (3) was agreed to be approximately $26,000.
On 4 August 2021 the matter came before his Honour Judge Vasta and a notation was made on his Honour’s Orders that if the father did not meet the children’s school fees (noting that the father was refusing to pay the fees and refusing to give permission that they could attend another school) the mother will be permitted to change the children’s school.
On 14 September 2021, subsequently, correspondence was sent to the father querying whether he was going to pay the costs of the school fees and whether he has met the cost of the valuation of the property as ordered on 3 September 2021.
As a result of the father not being willing to pay the school fees, which the mother ultimately paid solely, the mother was given permission by Orders of this Court to change the children’s schools. The children commenced at their new schools: T School and U School in Town D. The fees for T School are paid by the mother alone and the fees are less than the college the children were attending.
In December 2021 the mother contacted and engaged with “V Centre” for support with X’s behavioural issues. X was then aged 12 and his behaviour had become extremely violent and problematic. X told his mother he did not wish to spend time with the father; both before and after he had spent time with the father.
The mother now has the three children of this relationship living with her, plus the child W born in 2018 (“W”) who came into the mother’s care as part of a traditional cultural Country F adoption since close to the child’s birth. Final Orders were made by Consent by her Honour Judge Firth on 16 February 2022, formalising this arrangement for W to live with the mother as her primary carer and that the mother have sole parental responsibility.[5] Those Orders include a restraint preventing the birth-mother from bringing W into direct or indirect contact with the father in this matter (Mr Tavarus) and/or the paternal grandfather (Mr M). As will be seen in this Judgment, the father knows of this restraint, but has worked his way around it.
[5] Exhibit ICL-5 in these proceedings.
The birth-mother is also restrained from giving information about the mother to the father and/or paternal grandfather. Details such as the mother’s telephone number, address, any professional care providers of the child, details of travel, details about the child’s school or day-care, are included in the topics of restraint the birth-mother is prevented from passing onto the father and/or paternal grandfather.
The mother also has her two younger children she has with Mr R living with her; one daughter aged two years old and a baby daughter aged eight months.
THE LAW
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). Section 60B(1) and (2) refers to the objects and principles underlying the Act. Those principles referred to are ensuring that children have the benefit of both parents in their lives when it is safe to do so and protecting children from physical and psychological harm or from being subjected to or exposed to abuse neglect or family violence.
Those principles are embodied in the two primary considerations referred to at section 60CC(2).
Section 60CC(2)(a) of the Act provides that (except where it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives).
Section 60CC(2)(b) states that there is the need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence. The Court is to give greater weight to the consideration in s60CC(2)(b); highlighting the priority given to the need to protect a child from abuse, neglect, and/or family violence.
When deciding what parenting orders to make, the best interests of the children are the paramount consideration. In determining where those best interests lie, the Court must consider the two primary considerations and the additional considerations set out in s.60CC(3) which includes issues such as the nature of the relationship between the children and each parent, family violence involving the children or a member of the children’s family, the views of the children, and the capacity of each parent to provide for the intellectual and emotional needs of the children.
Family Violence under section 4AB of the Act means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples of behaviour that would constitute family violence include assault, stalking, repeated derogatory taunts, intentionally damaging or destroying property, and preventing the family member from making or keeping connections with their family, friends, or culture.
Section 60CG states that the Court, in considering what parenting order to make, must do so, to the extent possible, consistently with the child’s best interests being the paramount consideration and ensure that the order is both consistent with any family violence order and does not expose a person to an unacceptable risk of family violence. Section 60CG(2) explains that this provision enables the Court to include in a parenting order any safeguards that it considers necessary for the safety of those affected by the order.
Where there are significant allegations of family violence or abuse, positive findings should not be made unless the Court is satisfied on the balance of probabilities (Evidence Act 1995 (Cth) at s140) in having regard to the gravity of the matters alleged, and that proof should not be produced by inexact proofs, indefinite testimony, or indirect inferences. These factors were stated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at page 362:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
In M and M (1988) FLC 91-979 (High Court) their Honours Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ considered the tests appropriate to define the magnitude of the risk which will justify a court in denying a parent access (now contact) to a child. The majority of the High Court concluded that to achieve a proper balance the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of … abuse.
This matter involves the mother seeking an application to relocate the children. There is a long line of authorities to guide me in my approach to considering the relocation aspect of this matter including the High Court decision in AMS v AIF (1999) 92-852 where Justice Kirby set out the general principles to be followed; A and A Relocation Approach (2000) FLC 93-035; U & U [2002] FLC 93-112 a High Court decision; KB & TC (2005) FLC 93-224; Franklyn & Franklyn [2019] FamCAFC 256 at 93-224; Taylor & Barker [2007] FamCA 1246; McCall & Clarke (2009) FLC 93‑405; Family Law Reform Act 1995 (1997) FLC 92-755; and Lansa & Clovelly [2010] FamCA 80.
Whilst each parent may have a right of freedom of movement; in parenting cases that right must give way to the best interests of children.
THE ISSUES IN DISPUTE
Overwhelmingly this matter involves allegations of severe Family Violence by the perpetrated by the father against the mother.
As can be seen, the issue of Family Violence is a significant matter in these proceedings and one which will require credit findings. I will therefore turn to consider the s60CC(2)(b) primary consideration of protecting the children from abuse, neglect, and family violence first.
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The mother was cross examined about a range of incidents of domestic violence that she says occurred during the marriage. These include physical and controlling violence and the father keeping the mother and children under surveillance for years.
The father has also made allegations against the mother. They include that the mother is violent towards the children, that she has tried to kill them by deliberately running the car off the road, and that she has psychologically harmed the children and was abusive towards them.
2009
As referred to earlier in this judgment, the first incident of Family Violence referred to by the mother happened in 2009, when the mother said that the father slapped her hard across the face during an argument when she was pregnant, prior to her moving to Australia with the father. The mother’s cousin was present. The mother was shocked and very scared about the violence towards her. The father screamed at her but she could not understand what he was saying. She started to walk away and the father followed her. The mother said leave me alone. She and the cousin left. When the mother went back to their house her grandfather was there and he told the father to calm down. The mother said that the father apologised for hitting her and said he had lost it because he was stressed and that it wouldn’t happen again.
2012
When they first moved to Australia the parties lived with the paternal grandparents for around 3 years until 2012. The mother’s evidence was that leaving Country F and moving to live with the paternal grandparents and the father was a very difficult period for her. The mother explained that her mother-in-law was very controlling and regularly told her that she was doing things wrong with baby X and would snatch X out of her arms and tell the mother she was a horrible mother. If the mother tried to leave the parents-in-law’s house with X without the consent of her mother-in-law, the house would be locked with the key so that the mother couldn’t leave. Her mother-in-law would scream and yell where do you think you are going. When the mother complained to the father he would tell her she was overreacting and to let it go.
The mother explained that the father holds, and the paternal grandmother held (she is now deceased), very strong religious views and used religion and their interpretation of the Bible as a way to control her. In keeping with the views of the father and his parents the mother said she was not allowed to celebrate Christmas or Easter. They told the mother that this is pagan. That is not a celebration of his death, and Easter is a day celebrating the murder of children.[6]
[6] Affidavit of Ms Tavarus filed 12 September 2022 at paragraph 87-88.
Regularly the mother was told by the father if you aren’t a good wife, you are a godless woman and you will go to hell and the people who don’t serve God go to hell, and this is the way you work your way into heaven.
When X was around three months old, the father wanted to spread the true Word of God to the Country F community, and he wanted her to record verses and his interpretation of them. The mother said she did not want to do this but the father said if you’re a Christian you can do anything to serve the Lord and in Christianity if you want a place in heaven you have to work your way in by doing something for the Lord.[7] The father shut the mother in a room and made her recall the things he wanted her to say over and over until he was happy with them.
[7] Affidavit of Ms Tavarus filed 12 September 2022 at paragraph 89.
In 2012 the parties moved into their own house. The mother said that the husband purchased cameras for the house and left them recording in different places in the house. When she queried why they were inside the house he said it was for security and after this there were always multiple cameras inside the house recording.
2013
The mother also gave evidence that in around late 2013, [Mr Tavarus] started recording me on his phone and on the voice-recorder. At the time the mother asked him to stop, but the father said it was for his protection. After this, he selectively recorded the mother and provoked her by calling her names like fat cow or swearing at her and calling her a fucking cunt, and he then recorded her reaction. She explained he also provoked her by turning lights on and off at night, or waking up the children in the middle of the night, until she finally got angry with him, and then he would start filming her. She said this selective filming happened once or twice per week. Through 2013 to 2015, his behaviour became increasingly worse, and he became physically violent and verbally abusive to her around once a week. The mother’s evidence was that when he was angry, he yelled, screamed, pushed and pulled me around the house.

Whilst the parties were married and living together, the mother gave evidence that the father was insistent on asking the mother for the password for her mobile phone. When she refused, he became very angry and made threats about what was going to happen to her, and he would blame her if something happened in a family emergency.
An example of that occurred in 2013 when the father told the mother I need you to give me the PIN for the phone, because we might go somewhere and I need to use your phone to call in an emergency. The mother told him you do not need the PIN to call emergency services, at which point the father became very angry, grabbed her by the arm and pulled her through the house, repeatedly saying, Show me the PIN, and, Your phone is actually the family phone, and Give me the PIN. The mother said that she finally gave her password to the father. He then went through her phone and her messages almost every day.
The mother said that subsequently the Police found contents of her phone downloaded onto the father’s computer when the Police executed a search warrant in 2019. When the father was asked under cross examination whether or not he had downloaded all of the mother’s photos and messages, he said that he did not download her photos and messages from her phone. When pressed, he ultimately accepted that he did download all of her messages and her photos from her phone. However, the father sought to explain his denial by saying that because the mother’s phone was given to him, it is therefore his phone and not the mother’s phone, and therefore he did not download the mother’s messages and photographs as once the phone was given to him they were his messages, photographs, and phone records. The father then explained he had no idea that it would be improper to download anything already on the phone because he owned the phone. This is an example of the father’s distorted explanations he has given in an attempt to explain away his intrusive behaviour.
The mother’s evidence was that whilst the parties were together the verbal abuse became worse and worse and the father called her names such as bitch, cunt and fat cow. The mother said in addition to being pulled around the house by the father he also made me read Bible verses that he said I wasn’t following.
2014
The mother described an incident in 2014 when they were renting a home in AA Street. She said her mother-in-law was extremely controlling and most decisions we made needed to be run past her before [Mr Tavarus] would allow me to do anything. The father became very angry with her for saying that she did not want her mother-in-law involved in the decisions made about the family. The father started yelling and said parents are there to help their children improve their families and you should accept their advice and not react. The mother told the father she had had enough and tried to leave at which point he grabbed her roughly by her arm and pulled her around and said listen to me until the mother was able to get arm free and she then left the house. After that the mother told the father that she could not handle his behaviour and she wanted to leave. The father replied with words to the effect if you ever leave that door you will be classed as a whore.
In 2014 the mother said the father started watching the footage from inside the house and she could hear the father replaying the footage in his computer room. Coupled with this the father regularly told the mother that he had evidence to use against her if she tried to leave him.
As to the ongoing surveillance by the father of the mother through the cameras he set up, the father’s response was: The mother makes up fictional accounts of my alleged surveillance monitoring in her affidavit. [Ms Tavarus] makes up stories about me in her room viewing fantasy life footage from imaginary cameras. When giving his evidence the father said all the allegations of cameras in the house is all lies.[8]
[8] Transcript of 21 September 2022 pages 335-7.
He also said that to do such surveillance, and for him to be going through looking at footage, that You would need to have a streaming camera. We never had them. We never had before – the whole idea of watching cameras in marriage is nonsense and untrue.
The cross-examination of the father became an exercise in the father splitting hairs in order to demonstrate that he did not do what was alleged. He said in relation to the mother saying cameras were set up in 2015 for ongoing surveillance that We never had a security camera as described. Having made these carefully worded denials, the father finally admitted when asked specifically, that they did have a security camera. The father said We did have a dummy security camera (not the one you describe) because there was a neighbourhood dispute at our own address and there was a risk of physical danger, and there was a camera - a dummy cheap Chinese camera pointing out a window for a time, and then that camera was abandoned.
When the father was asked about his use of the word dummy camera, and whether it was actually a camera or something that was set up to look like a camera, or a fake camera, the father finally accepted that it was in fact a working camera. The father kept repeating that it was a static camera.
The father was asked whether he installed the camera to which the father queried the meaning of the word “install” and then said well, you just put it on the windowsill.
2015
In describing her experiences with the father’s obsession with cameras, recording and surveillance of herself, the children, and others, the mother explained that when the family went on a holiday in 2015, the father had packed several cameras and a drone in the suitcase, which meant that they could not fit in the children’s clothes. The mother asked him to leave the drone at home which resulted in the father becoming very angry and abusive. The mother said that this was the first time that she had understood the word she was called, which was you are a cunt. The mother said that, prior to that, she did not know what it meant so she repeated what Mr Tavarus said. The mother said the father was yelling and screaming and she could not understand what he was saying so she left the room. Subsequently the mother and children travelled from Town D to City BB with their clothes, blankets, shopping, and towels, on their laps so that the father could bring his drone.
There were more arguments about the mother’s Facebook password. The father wanted the mother to give him her Facebook password and she did not want to give it to him. She said she wanted to have private dialogue with her family, not with the father involved. On one occasion, the mother was cleaning and washing the dishes; standing at the sink while the children and X and Y were eating at the kitchen table. The father walked in and started putting empty glass bottles into a garbage bag. While doing so, he said to the mother words to the effect, I really want to check what you post and what you do on Facebook. He said that he did not want to have people just turning up at the house which was in the context of the mother selling some second-hand clothes and toys.
The father said I want to know what’s going on in Facebook and the mother said No and that she wanted some privacy adding I don’t have to feel like you are controlling that. The father became very angry and picked up the bag of bottles (which the mother explained he was filling into the bin next to the fridge) and swung it at her and hit her in the head. The mother felt immediate pain and her vision dimmed and she fell onto the bench. The mother put her hand on her head and felt a lump and said, I need help and started to walk out the door. The father said Come back. Come back here. But the mother walked out towards the neighbours and she heard the father on the phone to his parents who came around about 20 minutes later.
The neighbours assisted the mother with her injuries and put ice on her head and offered to take her to the Police station. The mother’s friend, Ms CC, came a short time later and offered to take her to the Police station. When the mother left the neighbours’ house, she saw the paternal grandparents standing with the father, X, and Y. Y saw her and ran over to her but her mother-in-law was there holding back X and telling him to Stay with your father. Your father loves you more than your mother.
The mother said that, at that time, she went to her friend’s house but she was too afraid to go to the Police or the hospital and she was afraid to leave X with the father. And so, that afternoon, she went back to the home. Against the wishes of the father, she managed to get X and Y and she then stayed for two days at her friend’s home.
It was during that time that the mother said she got a phone call from her mother-in-law saying that the father had disappeared and that he had phoned his mother and told her that he was going to commit suicide because he cannot deal with the situation anymore. The mother-in‑law asked the mother, Do you know where he might go? The police are looking for him. The mother did not know where he would go but she received several calls from her parents-in-law and the father’s brother throughout the night.
The mother said that, the next day, she went back to the house and the Police were there. The Police spoke with the mother and with the father. The father apologised for disappearing and said he wanted to clear his head. After the police left, the father said to the mother, If you leave, I will kill myself, several times. The mother said she felt she had no choice but to return.
I accept the mother’s evidence as to the circumstances of this incident. The mother took herself to DD Centre for counselling for help dealing with the father’s behaviour and they said they would arrange couple counselling.
On the following Saturday, when they went grocery shopping, the father again asked her to give him her Facebook password and she refused several times. The father said to her, I think there is something wrong with you. All these things that are happening are because you are using Fakebook and I can’t trust you. The mother asked to leave the shops. The father pulled a face at her and then asked a man in the adjoining aisle whether he and his wife shared a Facebook. When the man said No, the father said, Forget what he said. They are not normal. Then the father started screaming at her, You are not normal. The mother and children left the shop and waited in the car for the father to drive them home.
When the father got back to the car he said to the mother You are a crazy person. You aren’t good up here while pointing to his head. The mother sat in the front seat and the children were in the back. The mother said that the father drove erratically along EE Street and repeatedly asked the mother for her Facebook password. He said that every normal person in the world shares their Facebook passwords, and she continued to refuse.
The father was extremely angry, and when the mother continued to refuse to give him her Facebook password, the father started screaming at her. The mother said that the father leant across my seat and undid my seatbelt and opened the car door. He was driving erratically and repeatedly pushed me on the shoulder, yelling, ‘Get out of the car’. The mother was terrified and she tried to stop him and close the door, and the children were crying, and X yelled, Stop, Dad.
The father finally pulled the car over on the side of the road, grabbed the mother’s handbag (snatched it out of her hands) and threw it out the window. The father continued to scream at the mother to Get out of the car. The mother was terrified but said she was afraid to leave the children so she refused to get out.
The mother called out for help but the father continued to yell at her. She said that he drove erratically and told her they were going to his parents’ house.
The mother still had her phone, so she rang the Police for help. She said the father was yelling at her and the children were crying. When the father saw that she was calling someone, he tried to grab the phone, but he knocked it under the seat. The mother said by this time she had been speaking to the Police and that they remained on the phone. The Police heard the incident that was going on.
The mother said when they got to the parents-in-law’s house, [Mr Tavarus’s] mother walked over to us. I opened my door and walked around to the driver’s side to get my phone from under the driver’s seat where the father was. The father was yelling at the mother and grabbed her shirt tightly so that it was tight around her neck and she had trouble breathing. The mother said that while she was bent over her mother-in-law started hitting her in the back, and the mother told her to stop, but she continued. The mother broke free and ran to the neighbours for help. Her mother-in-law and the father ran after her.
The neighbour witnessed the mother-in-law yelling at the mother and slapping her on the face. The neighbours took her to the Police station and helped her look for her handbag. The Police, who were on the phone throughout the incident, then applied for the Domestic Violence Order on the mother’s behalf after this incident.
The mother said it was very common for the father to involve his parents in the arguments and for both the father and his mother to be physically violent toward her.
When the father was cross-examined about this incident he said the mother’s version of events are completely untrue and he denied that he was driving erratically such that the car was fishtailing. He tried to portray that it was the mother who grabbed the steering wheel, and, when doing so, she dropped the phone and that she caused him to fishtail in the car. The father then said he didn’t fishtail the car and he denied the car had fishtailed. However, only when he was shown the Police report containing the father’s description to Police that he had been in the car while driving and the car had mildly fishtailed, did he then reluctantly accept that the car had fishtailed. I reject the father’s evidence that the mother has tried to kill the whole family by grabbing him or the steering wheel and trying to have the car run off the road. When the father was asked about this incident under cross examination, his explanation kept changing and his evidence was unconvincing. I had a strong impression that the father was making up his evidence and then changing his version of events as the questioning continued. The version that he gave under oath was different to his affidavit. I accept the mother’s version of events as a truthful account of this entire event from beginning to end. I also accept how terrifying this ordeal was for herself and the children. I reject as false the father’s evidence.
The mother has described a horrific event. It was prolonged and it happened with the children in the car, screaming in fear, and asking the father to stop. The father has attempted to open the mother’s car door to push her out of a moving vehicle, with the children watching in fear. The mother says she is still in fear of the father and I have no doubt that that is true.
Central to the whole incident was the father’s desire to have access to the mother’s personal information and to have constant access and surveillance of her private interactions with her family and friends. The father has used all means available to him, including coercive tactics, and then physically terrifying her and having her think that she was about to be pushed out of the car. The father was prepared to do all of this and risk the lives of his children and the mother in order to access the mother’s phone and information. The father was erratic and dangerously out of control. His actions could have resulted in a fatality of one or more persons. He put the safety and lives of the mother and children at risk all in furtherance of his unending desire to access all the information that exists about the mother and keep the mother under his strict surveillance.
After the incidents described, a final Domestic Violence Order was made in 2015. Thereafter the father repeatedly told the mother, I cannot work with a domestic violence order in place. I could snap at any time and go to jail. Because the parties were still married and living together, the father told the mother she had two options; he would either send her back to Country F (the mother was in Australia on a partner visa) and the boys would remain with him in Australia, or she had to go back to the Magistrates Court and cancel the Domestic Violence Order. The mother said she felt like she had no choice and so she completed an application to vary the Domestic Violence Order and sought that it be revoked. The Magistrate declined to revoke the Order and kept the final Domestic Violence Order and the mandatory condition in place for two years.
2017
I accept the mother’s evidence as to the circumstances and events that occurred when her own mother, the maternal grandmother, arrived in Australia in 2017. The father acted in a dominating and controlling manner towards the maternal grandmother. He told his mother‑in‑law she could not leave the house without his permission. During the time the maternal grandmother was staying, the mother bought and paid for a large crate of supplies intended to be taken back to Country F for her own mother and family. When the father found out that the mother had paid for the supplies he became very angry and screamed and swore at the mother. He said that the money she was giving away should be for the boys. The mother and maternal grandmother left and stood outside. The father followed them out. The mother said Leave us alone. The father said to the mother If you leave, you will be a whore just like your mother. The father turned to the maternal grandmother and told her that The word is "a whore" when you have multiple men in your life and I call you a whore, essentially, because you married twice.
The mother set out extensive evidence about the difficulties that she had whilst the maternal grandmother was here wherein the father abused and intimidated the maternal grandmother and the mother. During this time the father had a rant about his current topic of concern; being Facebook. The father’s arguing lead to him telling the mother and maternal grandmother that he wanted them to apologise to him. He would not leave them alone. The mother and maternal grandmother retreated to a room and pushed a set of drawers up to the door. The father shoulder-barged a door they had closed in order to open it. He kept repeating, I want you to apologise to me and What you had said was wrong and that Facebook can destroy families. This whole episode seems to have continued into the evening at which time the father appeared in the dark outside one of the boy's bedroom windows and screamed loudly through a gap You are suffocating the boys and You are trying to kill them. The boys woke up and Z started crying. The mother called out to the father Please leave us alone. We are trying to sleep. He stood outside mumbling for around 10 minutes and then it was quiet.
The next day, the father continued to repeat, Facebook destroys families and I want you to apologise. The mother then told the father Sorry so that he would leave them alone.
I accept the mother’s evidence that if the father wanted her to agree to something, he would ask her repeatedly. Then typically when it got to night time, regardless of the time of night, he would flick the lights on and off until she agreed. If she got angry, he recorded her. An example of this occurred in 2018, again when the maternal grandmother was visiting, and when the father wanted the mother to give him her Facebook password. The mother went to bed that night and at around 1am the father came into the room and started turning the lights on and off and repeating several times, You can just agree to do this. This is to protect our family. Facebook ruins lives (the father refers to it as Fakebook). The mother said she refused to give him her password as this is the only privacy she had with her family and that she told the father he already had access to her email and that she cannot call her family because it is so expensive by phone. The father then said, What are you hiding from me? And the mother said, You have your privacy talking to your family through your phone but I don’t. The father turned the lights on and off continuously for around five minutes before he slammed the door and left. The mother then heard him slam the computer room door and heard the sounds of typing. One of the children reported the father’s behaviour in turning the lights on and off to the Family Report Writer.
2018

Overall, in relation to the financial and non-financial contributions during the marriage, I am satisfied that they are equal.
Step 3 – Section 75(2) factors
The wife is aged 35 and the husband is eleven years older at 46 years of age.
There is no evidence that either party has any medical condition likely to impair their capacity to work.
In terms of the husband’s qualifications he has significantly more qualifications and thus has a higher income earning capacity. The husband completed Grade 12. The husband did some study; it was not completed. The husband then went into fulltime work. The husband obtained post graduate qualifications, so he applied his skills in that context. The husband then worked in a number of other employers in primary industry.
The husband also said: I have another diploma. The husband has a qualification that enables him to do commercial work. The husband also said that when he moved to Country F he did so in working for a company and the K Company; doing freelance and consulting work. The husband also has a qualification which enables him to work online. In the past the husband has worked for himself and he has an ABN number.
The husband works permanent part-time at the moment – enough to pay his bills – he and has not been looking for other work. The husband has also done a tertiary qualification; he says he has not done the workplace part but he has started the next part of the course and that will be a short-term goal; in other words, he has passed all of the theory for the qualification but is yet to do the placement and has instead started on further study. The husband has a hobby in arts and denied that he made money from it. The husband likes playing a musical instrument. The husband described himself as mostly a bedroom artist.
The husband has current employment since the start of last year; he works about 24 hours a week and then adds other work to it. Of interest to me in listening to him talk about this work was that he knew exactly how to answer a question responsively. The husband is very proud of his achievements; he offered up a lot more information than was asked and he was not avoidant. The husband did not try and give garbled responses, as he did to so many of the other matters asked of him that are of relevance to the substantive issues.
The husband seems to say that he has a taxable income of $31,000, though his tax return shows around $51,000 as I have said earlier. The husband’s financial statement shows he has a weekly income of $600.00 working for L Company. The husband has a number of other qualifications as I have said and seems to fluctuate in terms of how he chooses to earn income. He has also been doing farm work. That father said in his evidence that some sort of seasonal work is available to him all year. The husband did subsequently agree that his that his current taxable income is $52,000, not $31,000.
The wife does not earn an income as she is not in the workforce and her Financial Statement shows Family Benefits and Parenting Payments are her sole source of income. The wife has an obligation to share in the support her two youngest children from her subsequent relationship. The wife also has an obligation to provide financially for W.
Much has been made by the husband about the wife’s partner, Mr R (father of her two youngest children), and the fact that Mr R provided a car for the wife to use and that he pays child support once a month or so. Mr R also paid for a pram and some other items. That evidence has been extrapolated by Counsel for the father to suggest that the wife’s partner is wealthy and that the wife will be receiving significant financial support from him. There is no evidence to that effect.
The facts are that the wife and her partner Mr R do not live together, but they hope to one day in the future. The wife has three children of the relationship with the husband in this matter, plus the child she adopted culturally (W), and she receives no child support from the husband. The wife has two children with her partner Mr R. Mr R is an employee in primary industry and came to Court to give evidence. Mr R indicated that he helps the wife out with the costs of raising his two children by giving her regular amounts of money to cover the costs of their children and that he sometimes buys things like a pram (and then a second pram when the second baby came) and he provided her a car to use. The husband in this matter, who has done neither of these things, wishes to elevate what I would regard as normal support by a father of two shared young children to being a factor that should reduce the wife’s otherwise applicable s75(2) factors.
There is no evidence that the wife has an unlimited financial source for her own use from her partner, nor is there evidence to satisfy me that she can reasonably expect her partner to support her with any financial need or deficiency. Mr R is providing financial support as a father of his two daughters and provided the mother with a car for their transport. He gave evidence that he did not mind if she spent the money he gave her on the other children or some on herself. Nothing further was asked by Counsel for the father. Mr R has decided to comply with his moral and legal obligation to support two children. The evidence goes no further than that.
I have taken account of the financial support provided by Mr R to the wife for the support of her children and the car he has made available for her use. I have also taken into account that the husband did not pay the school fees post separation and the wife had to (amongst other things) access some of her own superannuation to pay out the $13,000 school fees.
The father’s Counsel submitted that the mother’s non-live-in partner was a significant factor and one which should the Court should take account of and accordingly reduce the mother’s overall section 75(2) uplift factors to 2.5 %. This was for the mother of three children of this relationship, with no child support being paid by the father and the mother having a legal obligation to support her culturally adopted child. I do not accept the uplift factor put forth by Mr Walsh of Counsel.
The wife has significant parenting obligations in raising the parties’ three children, plus the two children of her post separation relationship, and her culturally adopted child. The wife is very unlikely to have any financial assistance from the husband into the future for raising their children given the husband’s decision to not pay any child support for years (from post separation in February 2019 onwards).
I am not satisfied that the husband as any legitimate basis for the non-payment of child support. The husband’s been able to pay his lawyers over $50,000 and work on the farm to get additional money when he needs it. The husband has multiple qualifications and is capable of earning of $50,000 per year (with his latest tax return showing such income). The husband has been able to give away a car.
The wife also has two other children, who are very young, in her fulltime care. The wife also has legal responsibility for, and is the primary carer of, W, aged 4; the child she has culturally adopted. The reality is that the wife will be preoccupied in her primary role of parenting the children. The wife has her allied health worker qualifications that enable her to work in allied health. The wife did so from 2017 onwards; up to and beyond separation.
The husband has spent time undertaking courses to improve his qualifications. In terms of his many qualifications, I consider that his earning capacity is higher than the wife’s earning capacity, given the range of skills and experience that the husband has; including the ability to set up his own company again.
Overall, I am satisfied that the 75(2) factors strongly favour the wife. The submission is made on behalf of the husband that the uplift factors for the wife should be 2.5%. I find this wholly inadequate.
I accept the submissions made on behalf of the wife that the uplift factors in her favour should be no less than 15%. Overall, that brings the distribution of property between parties to a 65/35 basis with the wife to receive 65% of the overall property pool and the husband to receive 35%.
It is submitted on behalf of the wife that in order to achieve a 65% to the wife, if the husband is to pay her a cash sum, she will need to receive 70% of the value of the house.
I note that the non-superannuation asset pool (assets minus debts) totals $216,506.24. That figure multiplied by 65% = $140,728. The superannuation totals $28,653.89 x 65% = $18,624.00. The total of those two figures is $159,352.00. The wife has $1543.00 in her possession as superannuation bringing the figure to $157,809.00.
I am satisfied that if the husband is to pay out the wife a cash sum, in exchange for transferring the mortgage into his sole name, that the amount that the husband is to pay to the wife is $157,809.00 with the wife retaining her own superannuation.
In terms of the orders sought, the wife seeks an order for the sale of the property forthwith and for the proceeds to be divided. The submissions on behalf of the wife are that the husband has not established that he can secure a bank loan and that the evidence of Mr M is that he is uncertain about how much he will lend the husband.
The husband is seeking to pay out the wife and retain ownership of the former matrimonial home. The evidence the husband has placed before the Court that he has the ability to do so is less than convincing. My impression was that the husband had been conversing with the bank about taking over the mortgage only, and that the offer by the bank was subject to a range of conditions which I am not sure that the husband would satisfy.
In relation to the evidence of Mr M, he gave evidence that explained that when the husband asked him to borrow cash to pay out the wife he was not really focused. Mr M explained that he is 72 years old and that he could not drive to Court as he is very frail and emotionally delicate because his wife had passed away recently. The responses of Mr M were tentative, and, at a point, he indicated that while he would try and help his son, he would need to consider how much he could actually advance his son.
The final position of the husband was that he now had an unnamed friend who would just give him the money necessary to pay out the wife in a few weeks. The husband did not name the friend. This offer raised further questions about the transparency of the husband in his financial matters as he had been given an opportunity to obtain evidence from his father or others that he say will lend him the funds which he has not done.
Whilst I am doubtful that the husband will obtain the finance, I intend to make Orders that provide for the husband to be able to pay out the wife her full entitlement of 65% of the asset pool as he says he can, within 28 days, and to simultaneously have the joint mortgage transferred into his sole name. If the husband could do this, it would be a simpler process than going through with the sale. If this is not possible within that strict time frame, thereafter the house is to be sold immediately and the proceeds divided.
If the husband fails to pay out the wife as provided for in these Orders, the former matrimonial home is to be listed for sale by private treaty. If the property has not sold after a period of 2 months, then the property is to be listed for auction. In the event of the default provisions applying, the overall settlement remains at 65% to the wife and 35% to the husband. The costs of sale will need to be paid out of the sale proceeds. Thereafter the division of the proceeds should be made, taking into account the property already in the possession of each party, as indicated on the list of assets and liabilities at paragraph 382.
The husband is to continue to pay the mortgage, rates, and all costs associated with his sole occupation of the home. If he fails to do so, the arrears are to be deducted from his share of the sale proceeds.
Default position – wife as trustee for sale
In the event that the home is to be sold, as indicated to the parties, I do not consider that the parties could work together to achieve a sale. I raised the issue of the wife being appointed trustee for sale. The husband submitted that he wanted to be a joint trustee. I have considered his request and I do not have confidence that the husband will deal with the wife honestly or that he pay any respect to her views.
The husband has shown nothing but contempt for the wife as explained earlier in these reasons. This is because the husband does not want this to happen and he has a history of not complying with Orders if he does not agree with them.
The husband has engaged in other acts of family violence as I have referred to in these reasons. The power imbalance and dynamics in this relationship are such that the prospect of the husband being appointed sole or joint trustee in order to sell the property he is occupying, and which he wishes to retain, is entirely unworkable.
I therefore decline the request of the husband to be a joint trustee for sale. I intend to include Orders that the wife is appointed trustee for sale of the former matrimonial home and that she have sole conduct of all aspects of the sale. An Order will be made that the Registrar can sign any documents (including signing contracts and bank or mortgage transfers) if the father fails to sign such documents within 24 hours of a request to do so.
The husband assures the Court that if there is a sale of the property ordered, that he will comply with the Court’s Orders. However, if the husband refuses to comply with reasonable requests of the agent to maintain the property in a saleable condition, enable potential buyers to inspect the property, engage in open homes or other methods of sale, or in any other way impedes the sale process, as I indicated during submissions, the wife will have leave to apply on an urgent basis for sole occupation and that the husband is to leave the home, as well as any other ancillary Orders necessary to effect the sale.
Step 4 – Just and Equitable
I consider that it is just and equitable to make these property alteration Orders. I consider that the Orders proposed are just and equitable given the length of the relationship, the arrangements for the children, and having taken account of the parties’ respective contributions and the section 75(2) factors.
COSTS
FURTHER BACKGROUND
The wife is funded by Legal Aid who seek costs of and incidental to the legal costs associated with the extra time allocated by the Court for the husband to provide evidence of his ability to pay out the wife.
This extra time was solely due to the husband failing to produce the relevant evidence he said he relied on at the final trial. The husband had been told, throughout the mentions and other Court appearances in this matter, that if he wished to pay out the wife he would need to refinance the current joint mortgage into his sole name and then be able to borrow funds to pay out the wife her entitlement in the property division, so as she could then transfer her interest to him.
At the trial the husband insisted that he had such evidence, however, a close examination of the evidence confirmed that it was all tentative as far as the bank was concerned. The husband gave evidence that, essentially, notwithstanding what was written in the expired offer from the bank, he was assured by the bank that they would be able to lend him funds to pay out the wife and that the bank would be willing to lend the husband a sum of around $162,000. As I have said, the bank’s original offer was very much dependant on what the husband had told the bank being accepted along with other conditions.
In acquiescing to the husband’s request and allocating another hearing date, the Court made very specific Orders as to the information that would be required. The Order said that the husband had to:
2.   file and serve an affidavit with supporting evidence… providing evidence of the following:
a.   His financial ability to forthwith transfer the existing joint mortgage on the property situated at [C Street, Town D] in the State of Queensland (“the property”) into his sole name to remove the wife from the mortgage; and
b.   His financial ability to also borrow funds (from an institution or family member/other person) sufficient to pay out the wife her percentage interest in the overall property settlement as determined by the Court, noting that:
i.The current net property pool after deduction of the mortgage ($118,755) and debts is valued at $248,061;
ii.The wife is seeking an Order for 65% of the entire pool which amounts to a cash payment to her of approximately $162,000.
3.   If funds are to be provided by a family member or other person, an affidavit from that person is required to be filed within the same time frame as referred at Order 2 herein, setting out confirmation of their willingness to provide a loan and the amount. That family member (or other person) will be required to be available for cross examination.
4.   Once the supporting affidavit has been filed and served by the Husband as referred at Order 2 herein, the Wife is to advise the Court whether cross-examination of the husband is required on that affidavit, within 7 days. If so, a date to do so will be allocated.
5.   Alternatively, if the Husband’s further inquiries show that he is not able to secure loans in order to solely assume legal responsibility for the existing mortgage and also payout the Wife her interest, he should advise the Court accordingly and without delay, and by no later than 21 days from today's date.
At the resumed date, the husband had prepared affidavit material which did not address the specific issues but rather consisted of the husband having another opportunity to tell the Court why he should be believed about a range of issues and other irrelevant information and opinions. The Court struck out most of the affidavit as being irrelevant.
The husband’s evidence at the resumed date still did not comply with the terms of the Orders. There was no updating material from the bank. The husband’s father’s (the paternal grandfather’s) evidence was somewhat equivocal.
The husband’s final suggestion that an unnamed friend would just give him the cash was a suggestion made without any evidence from such friend despite there being a specific Order made to this effect for the preparation for the further hearing date. It was unable to be taken seriously by the Court or the wife as the husband did not have an affidavit from this unnamed friend and there was no explanation as to why this was so, given the specific Orders made.
In terms of the costs application, the husband is opposed to costs being ordered and part of his reasoning is that he did not have Legal Aid to represent him at the final day and that this was unfair because the wife did. I have read the father’s submissions on costs.
THE LAW
Section 117(1) of the Family Law Act 1975 states the usual position which is that each party pay their own costs. Section 117(2) states that when the Court considers that there are circumstances that justify it doing so, the Court may make such Order for costs as it considers just. The Court is required to have regard to the considerations set out in section 117(2A).
In Collins and Collins (1985) FLC 91-603 at page 79,877 the Full Court referred to the broad discretion the Court has when deciding if the circumstances justify an Order for costs and that the circumstances are not to be read in a restrictive way.
In the High Court matter of Penfold v Penfold[34] referred to by the Full Court, their Honours in a joint judgment, Stephen, Mason, Aickin and Wilson JJ, at p 216 stated that it needs to be firmly understood that section 117(1) must yield to section 117(2) when a judge determines that there are circumstances justifying an Order for costs and beyond that, there is nothing in the interrelationship between the two provisions, that imposes a special onus on an applicant for costs.
[34] (1980) HCA 4; (1980) 28 ALR 213.

Section 117(2) states that the Court may make such order for payment of costs as the Court considers just, which includes the Court making an Order for payment of indemnity costs although such orders are exceptional: Kohan and Kohan (1992) FamCA 116, (1993) FLC 92-340.
In the Full Court decision of Sfakianakis & Sfakianakis [2019] FamCAFC 54 (28 March 2019) their Honours Aldridge, Watts and Austin JJ stated:
It is however, a mistake to think that if a costs order is made, that order can only be on a party and party basis or on an indemnity basis. The words “such order as to costs… as the court considers just” permit the Court to fashion an order that is apt to the circumstances. One such well known example is an assessment on a trustee basis, which is more generous than party and party costs, but falls short of an indemnity. Orders for a partial indemnity or for a particular period are obvious possibilities. The Court may also fix costs in a particular sum, taking account of all relevant circumstances; that type of order too is neither one for party and party costs nor an indemnity costs order. For convenience in these reasons we shall refer to such orders as “special costs order.”
CONCLUSIONS – COSTS
I turn to now apply the section 117 factors to this matter.
The husband at the day of the hearing (the final extra day on 3 March 2023) represented himself and the wife was legally aided.
As to the financial circumstances of each of the parties, I have taken account of the husband’s income earning capacity and the wife’s capacity which is less than the husband’s. The husband remains in the work force when he wishes to and can earn at least $52,000 taxable yearly income. The wife at present has six children in her sole care; three of whom are children of this relationship. The wife also has a duty to support the child she culturally adopted. The wife has two other children from her latest relationship for whom she is the primary carer. The wife has the obligation to contribute to the financial costs associated with her children with her new partner and has sole parental responsibility for her culturally adopted child.
Significantly, the wife is the sole financial supporter of the three children of this relationship. The husband does not pay child support. I give significant weight to this consideration.
I note the terms of the property settlement.
As to the conduct of the parties, I accept the submissions made as to the father’s waste of Court time in:
(a)Not having the relevant evidence ready for the final trial. The sole reason that an additional day was required was because of the husband’s failure to provide sufficient evidence as to his capacity to borrow the necessary funds.
(b)The husband took the opportunity at the final hearing day to file an affidavit that was, in large part, struck out.
(c)The husband has overall been found to have failed in his obligation of disclosure in this matter.
As to written offers, I have taken account of the husband’s offer to pay out the wife $30,000 and wherein he retains the former matrimonial home. That offer was woefully inadequate.
I have noted all of the correspondence sent by Legal Aid in order to have the husband comply with Orders which ultimately he did not do either at the trial or the resumed final day.
I am satisfied that in this matter the provisions of section 117(1) do not apply (where in each party pays their own costs) and it is appropriate that an Order be made pursuant to section 117(2) that the father pay the costs of Legal Aid Queensland. I will fix the sum to save any further public expense being incurred in this matter. The costs as set out by Legal Aid for the additional hearing day total $4,252.00 and that is the amount that I intend to Order.
The Order will be that the husband is to pay Legal Aid Queensland the costs of and incidental to the final day of trial on 3 March 2023, fixed in the sum of $4,252.00, such sum to be paid within 30 days.
If the default provisions apply for the sale of the former matrimonial home, and the husband has not paid such costs by the time the sale proceeds are distributed, the sum is to be deducted from the husband’s share of the sale proceeds prior to the husband’s share being distributed to him. The final orders will be structured to accommodate this eventuality.

I certify that the preceding four hundred and fifty-seven (457) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Willis AM.
Associate:
Dated: 26 July 2023

File number(s):	BRC 8965 of 2019
Judgment of:	JUDGE WILLIS AM
Date of judgment:	20 July 2023
Catchwords:	FAMILY LAW – PARENTING – Family Violence perpetrated by father towards mother and children – where mother has solely provided for the children – where mother cares for a total of six children – where children of this relationship have experienced violence and trauma at the hands of the father directly and in witnessing violence towards the mother – where father has kept mother and children under surveillance and engaged in multiple acts of family violence over years – where State Magistrate satisfied that father has been keeping the mother under surveillance and a Restraining Order under section s359F of the Criminal Code (Qld) and a Domestic Violence Order issued and remains in force – father denies all violence and has no insight into the effects of his violence upon others – where father represents unacceptable risk to the children – where no contact order made – mother’s application to relocate is granted – mother to have sole parental responsibility FAMILY LAW – PROPERTY – where husband has retained occupation of the former matrimonial/family home – where husband refused two occasions to allow access to the wife to retrieve her belongings contrary to two Court Orders to do so – where husband refused to disclose documents and delayed paying for and facilitating valuations contrary to Orders – where husband withdrew three lump sums from his superannuation for his own use – addback – where husband took redundancy in 2017 and did not return to the workforce during marriage – where the wife was the sole income earner and provider for the children from 2017 and beyond – where husband pays no child support – where the husband has a number of qualifications and ability to work when he chooses to do so – where it is just and equitable to divide the property on a 65/35 basis – where husband is provided an opportunity to pay out the wife’s property entitlement and transfer the mortgage of the former matrimonial home into his sole name – where wife to be sole trustee for sale of the former matrimonial home in the event that the husband fails to pay her out
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC(2), 60CC(3), 60CG, 69ZX(3)(b) Family Law Reform Act 1995 (1997) FLC 92-755
Cases cited:	A and A Relocation Approach (2000) FLC 93-035 AMS v AIF (1999) 92-852 Bevan & Bevan [2013] FamCAFC 116 KB & TC (2005) FLC 93-224 Briginshaw v Briginshaw (1938) 60 CLR 336 C & C (2005) 33 Fam LR 414 Ferraro and Ferraro (1993) FLC 92-335 Franklyn & Franklyn [2019] FamCAFC 256 In the Marriage of Hickey (2003) FLC 93-143 Lansa & Clovelly [2010] FamCA 80 M and M (1988) FLC 91-979 McCall & Clarke (2009) FLC 93 405 Rod & Bloomberg [2008] FamCA 487 Stanford & Stanford (2012) FLC 93-495 Taylor & Barker [2007] FamCA 1246 U & U [2002] FLC 93-112
Division:	Division 2 Family Law
Number of paragraphs:	457
Date of last submission/s:	4 April 2023
Date of hearing:	21, 23, 26, 27, 28 September 2022, 3 March 2023 (total hearing time: 6 days)
Place:	Brisbane
Counsel for the Applicant:	Mr Walsh
Solicitor for the Applicant:	Raiti Lawyers
Counsel for the Respondent:	Mr Seewald
Solicitor for the Respondent:	Legal Aid Queensland
Counsel for the Independent Children's Lawyer:	Ms Lyons
Solicitor for the Independent Children's Lawyer:	Ms Hawdon

BRC 8965 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS TAVARUS Applicant
AND:	MR TAVARUS Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE WILLIS AM
DATE OF ORDER:	20 JULY 2023