Vedastus & Alvar - [2023] FedCFamC1F 1073

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vedastus & Alvar [2023] FedCFamC1F 1073

File number: SYC 4704 of 2020

Judgment of: BRASCH J

Date of judgment: 13 December 2023

Catchwords:
FAMILY LAW – PARENTING – Where orders made by consent for children to live with the mother and she have sole parental responsibility – Where father guilty of assaulting the mother – Where the children did not spend time with the father for three years post-separation – Where some supervised time thereafter – Where supervised time ordered for a further six months for both children – Where graduating unsupervised time for younger child thereafter – Where older child to spend time according to her wishes following the supervised time.

FAMILY LAW – PROPERTY – Where contributions found to be equal – Five per cent adjustment made in the wife’s favour on account of care and control of the children and income disparity.

Legislation:
Child Support (Assessment) Act 1989 (Cth)

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, VIII, VIIIAB ss 4AB, 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA, 64B, 65AA, 65D, 75(2), 79, 79(1), 79(2), 79(4), 114

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

Bevan and Bevan (1995) FLC 92-600; [1993] FamCA 95

Black and Kellner (1992) FLC 92-287; [1992] FamCA 2

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27

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

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

Dovgan & Dovgan [2021] FamCA 306

Fielding and Nichol [2014] FCWA 77

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

G & C [2006] FamCA 994

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

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

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

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

Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27

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

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

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

Martell & Martell [2023] FedCFamC1A 71

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

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

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

R & C [1993] FamCA 62

S & S [2005] FamCA 1304

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

Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142

W v W (1997) FLC 92-723; [1997] FamCA 3

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Division: Division 1 First Instance

Number of paragraphs: 329

Date of last submissions: 24 November 2023

Date of hearing: 12–13 September 2022 and 3–6 October 2023

Place: Sydney

Counsel for the Applicant: Mr Todd (12-13 September 2022)
Mr Livingstone (3-6 October 2023)

Solicitor for the Applicant: Axegal (12-13 September 2022)
Mack Lions Lawyers (3-6 October 2023)

Counsel for the Respondent: Mr Levet

Solicitor for the Respondent: Mills Oakley Lawyers

Counsel for the Independent Children's Lawyer: Ms Mahony (12-13 September 2023)
Mr Alexander (3-6 October 2023)

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

SYC 4704 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR VEDASTUS

Applicant

AND:
MS ALVAR

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BRASCH J

DATE OF ORDER:

13 DECEMBER 2023

BY CONSENT IT WAS ORDERED ON 3 OCTOBER 2023:
1.That the mother shall have sole parental responsibility for the children X born 2009 and Y born 2012 (hereinafter “the children”) provided that in the exercise of such parental responsibility the mother shall:
(a)notify the father of any proposed decision relating to the long-term care and welfare of the child or children and:
(i)ensure that such notification is given to the father in writing via email as soon as is reasonably practicable and in any event no less than twenty‑eight (28) days before a final decision is made, except in the case of an emergency;
(ii)reasonably consider any views expressed by the father in respect of such proposed decisions;
(iii)communicate to the father in writing her decision in the exercise of parental responsibility within 48 hours of having made any such decision.

2.That the children shall live with the mother.
3.That without admission, neither party is to use the email address of the other party other than to give effect to this Order.
4.The mother’s application to relocate with the children to Country B is withdrawn and dismissed.
5.The parties are to ensure that they provide to the other an email address which is monitored by each of them at least weekly.

THE COURT FURTHER ORDERS THAT:
Supervised time
1.The children spend time with the father for a period of six (6) months from the date of these Orders under the continued supervision of C Contact Service:
(a)On each Saturday (including school holidays) for a period of three (3) hours, at such times nominated by C Contact Service, or such other times and duration as the parties may agree with the supervision service;
(b)If necessary, the parties are to forthwith do all things and sign all documents required by C Contact Service to continue the appointment of C Contact Service as the supervisor; and
(c)The parties must:
(i)Comply with any requests and the rules of C Contact Service;
(ii)Comply with requests and directions from the staff of C Contact Service to arrange the supervised time; and
(iii)The father is to bear the costs of the supervision; and

(d)Unless otherwise agreed by the parties in writing, the father is not to permit any other person to attend the time supervised by C Contact Service.

Unsupervised time
2.Following the six (6) months of supervised time as specified in Order 1 of the disputed orders, and unless otherwise agreed in writing between the parties, X shall spend time with the father consistent with her wishes.

3.Following the period of six (6) months of supervised time as specified in Order 1 of the disputed orders, and unless otherwise agreed in writing between the parties, Y shall spend unsupervised time with the father as follows:
(a)For the first three (3) months immediately after the conclusion of the supervision period, each alternate Saturday for six (6) hours from 9.00 am to 3.00 pm;
(b)For the next three (3) months, each alternate weekend, from 9.00 am Saturday to 9.00 am Sunday;
(c)Thereafter, each alternate week during the school term, from the conclusion of school or 3.00 pm on Friday to the commencement of school or 9.00 am on Monday;
(d)The time in Orders 3(a) and 3(b) shall continue during school holidays as they arise during these periods of time;
(e)Upon Y spending Friday to Monday time with the father, then, during the short school holiday periods being after Terms 1, 2 and 3:
(i)For the second half of such holidays commencing from 9.00 am on the second Saturday and concluding at 9.00 am on the Saturday immediately preceding the first day of the new school term.

(f)For the end of Term 4 holidays in 2024 Y shall spend:
(i)Two (2) non-consecutive weeks (being seven (7) night weeks) with the father;
(ii)The father must advise the mother which two (2) weeks by the start of Term 4; and
(iii)The two (2) non-consecutive weeks must be at least one (1) week apart from each other.

(g)Commencing at the end of Term 4 holidays in 2025:
(i)In even numbered years, from 9.00 am on 24 December until 9.00 am on 9 January; and
(ii)In odd numbered years, from 9.00 am on 8 January until 9.00 am on 22 January.

(h)Upon unsupervised time occurring, on Fathers’ Day from 9.00 am until 6.00 pm, if not already in the father’s care pursuant to these orders; and
(i)If Y is spending time with the father on Mothers’ Day, then Y’s time with the father shall end at 9.00 am on the morning of Mothers’ Day and Y will remain in the mother’s care until the next period of time between Y and the father pursuant to these orders.

4.Unless otherwise agreed between the parties in writing, and where changeover does not occur at school, changeover shall occur at the mother’s residence, and:
(a)The father is not to enter the curtilage of the mother’s residence; and
(b)The mother is at liberty to remain inside her residence.

Communication
5.The father is to provide the mother with 48 hours written notice if he is unable to attend time with the child/ren.
6.Each of the children be at liberty to communicate with the parent with whom they are not spending time by Our Family Wizard and for the purposes of this order within seven (7) days of the date of these Orders:
(a)Each parent must establish a parent account at
(b)Each parent enrol in the Our Family Wizard program with a two year subscription, with such subscription to include ToneMeter and the children’s messenger function;
(c)Each parent will meet the cost of their respective subscriptions; and
(d)Nothing in this Order prohibits the children communicating with the father by other electronic means.

Restraints
7.Pursuant to s 68B of the Act, each party is restrained from:
(a)Discussing these proceedings with either of the children, or in their presence or hearing;
(b)Showing either of the children any documents produced for the purpose of, or related to, these proceedings;
(c)Questioning either of the children in relation to their views or preferences concerning their living arrangements or the time they spend with each of the parties;
(d)Encouraging either of the children to express particular views or preferences in relation to their living arrangements or the time they spend with each of the parties; and
(e)Using the children as intermediaries in matters of parental dispute, or to convey messages or requests to the other party.

8.Neither party shall denigrate, nor allow any third party to denigrate, either of the children’s parents or members of the children’s family in the presence or hearing of either child or in a manner likely to come to their attention.
9.Each party be restrained by injunction from physically disciplining, hitting or striking either child, or allowing, causing or permitting any third party to do so.

Information Sharing
10.Using Our Family Wizard, each party is to give the other party 14 days’ notice of any proposed change to the residential address of the children, with such notice to include the full residential address of the place where it is intended that the children will live.
11.The parties be permitted to provide a copy of these orders and reasons to any counsellor, psychologist and psychiatrist attended by either party or child.
12.The parties be permitted to provide a copy of these orders and reasons to the children’s school/s.
13.The father is at liberty to request and receive a copy of all school reports, progress reports and photo order forms from the children’s schools, at his cost.
14.The father is at liberty to communicate with each of the children’s medical providers and allied health practitioners in relation to the health and wellbeing of each child and, to facilitate such communication occurring, the mother shall:
(a)Using Our Family Wizard, within 14 days of the date of these orders, and within seven (7) days of the children commencing with a new medical provider or allied health practitioner, the mother is to provide the father with details of each of the children’s current treating General Practitioners, psychologists or allied health practitioners (including but not limited to speech therapist and occupational therapist) with such details to include the practitioner’s, name, practice address and contact telephone number; and
(b)Do all things and sign all documents required by the medical and allied health practitioners to facilitate the father being able to obtain information in respect of the children, or either of them.

Independent Children’s Lawyer
15.The Independent Children’s Lawyer is discharged.
16.Within 28 days of these orders each party is to pay $8,022.50 to Legal Aid NSW on account of the costs of the Independent Children’s Lawyer.

Property
17.On or before the expiration of 90 days from the date of these orders (“the due date”) and simultaneously:
(a)The husband will transfer to the wife the whole of his right, title and interest in D Street, Suburb E NSW (“the Suburb E property”);
(b)The wife will discharge at her sole cost the mortgage to F Bank secured over the Suburb E property, or otherwise re-finance it to remove the husband’s name from any mortgage secured over the Suburb E property;
(c)The wife will transfer to the husband the whole of her right, title and interest in:
(i)G Street, Suburb H NSW (“the Suburb H property”);
(ii)J Street, Suburb K NSW (“the Suburb K property”);
(iii)L Street, Suburb M NSW (“the Suburb M property”);
(iv)N Street, Suburb P NSW (“the Suburb P property”)

(“the husband’s properties”); and
(d)The husband will discharge at his sole cost the secured mortgages over the husband’s properties, or otherwise re-finance them to remove the wife’s name from any mortgage secured over any of those properties.

The wife’s Suburb E property
18.In the event the wife cannot comply with Order 17(b) (“the wife’s non-compliance”), the parties will, within 14 days of the wife’s non-compliance, do all acts and things and sign all documents necessary to execute an Agency Agreement with Q Real Estate (“the agent”), to sell the Suburb E property by public auction (“the auction”).
19.Simultaneously with Order 18 above, the parties do all acts and things and sign all documents necessary to instruct a solicitor or conveyancer to act on the sale as agreed between them, or failing agreement:
(a)Within seven (7) days, the husband nominate three (3) local solicitors or conveyancers to act on the sale;
(b)Within seven (7) days thereafter the wife select one (1) of the solicitors or conveyancers nominated to act on the sale; and
(c)If the wife or husband do not comply with their obligations under this Order, then the other party will select the solicitor or conveyancer.

20.The parties are to cause the auction of the Suburb E property:
(a)Within 90 days of the wife’s non-compliance;
(b)Using a reserve price as agreed between the parties not less than 14 days prior to the auction; and
(c)In the event the parties cannot agree on the reserve price, the parties will adopt the advice of the agent as to the reserve price.

21.In the event the Suburb E property is to be auctioned, the wife is to keep the property in a reasonably neat and clean state for inspections and auction and cooperate with the agent in relation to open houses and inspections for the purposes of the sale.
22.In the event the reserve price for any Suburb E property is not reached at the auction, then:
(a)The parties, by this Order, will instruct the agent to negotiate with the highest bidder or other interested party subsequent to the auction;
(b)The parties will sell the Suburb E property for the highest price negotiated by the agent through this process unless otherwise agreed in writing; and
(c)In the event a contract for the sale of the property is not exchanged within 14 days of the auction, then the parties do all acts and things and sign all documents necessary to instruct the agent to conduct further auctions at eight (8) week intervals until the property is sold on the same terms and conditions provided for herein, save and except that the reserve price decrease by five per cent, or as otherwise agreed by the parties in writing, at each successive auction until the property is sold.

23.The proceeds of sale of the Suburb E property shall be paid in the following manner and priority:
(a)The amount required to discharge the mortgage to F Bank;
(b)Payment of the sales agent’s commission and expenses;
(c)Payment of the legal cost and outlays relating to the sale; and
(d)The balance be paid according to the calculation clauses at Orders 38 and 39.

The husband’s properties
24.In the event that the husband cannot comply with Order 17(d) herein (“the husband’s non-compliance”) the parties will, within 14 days of the husband’s non-compliance, do all acts and things and sign all documents necessary to execute an Agency Agreement with Q Real Estate (“the agent”), to sell by public auction (“the auction”) whichever of the husband’s properties is/are required to be sold to discharge the mortgage/s or re‑finance, and the husband will elect which property/s are to be sold.
25.Simultaneously with Order 24 above, the parties do all acts and things and sign all documents necessary to instruct a solicitor or conveyancer to act on the sale as agreed between them, or failing agreement:
(a)Within seven (7) days, the husband nominate three (3) local solicitors or conveyancers to act on the sale;
(b)Within seven (7) days thereafter the wife select one (1) of the solicitors or conveyancers nominated to act on the sale; and
(c)If the wife or husband do not comply with their obligations under this paragraph, then the other party select the solicitor or conveyancer.

26.The parties are to cause the auction of the relevant property/s:
(a)Within 90 days of the husband’s non-compliance;
(b)Using a reserve price/s as agreed between the parties not less than 14 days prior to the auction; and
(c)In the event the parties cannot agree on the reserve price/s, the parties will adopt the advice of the agent as to the reserve price/s.

27.In the event any of the husband’s properties are to be sold, the husband is to keep the property/s in a reasonably neat and clean state for inspections and auction and cooperate with the agent in relation to open houses and inspections for the purposes of the sale.
28.In the event the reserve price/s for any property is not reached at the relevant auction/s:
(a)The parties, by this Order, will instruct the agent to negotiate with the highest bidder or other interested party subsequent to the auction/s;
(b)The parties will sell the property/s for the highest price negotiated by the agent through this process unless otherwise agreed in writing; and
(c)In the event contracts for the sale of the property/s are not exchanged within 14 days of the relevant auction/s, then the parties do all acts and things and sign all documents necessary to instruct the agent to conduct further auctions at eight (8) week intervals until the relevant property/s are sold on the same terms and conditions provided for herein, save and except that the reserve price decrease by five per cent at each successive auction until the relevant property/s are sold.

29.The proceeds of sale of the husband’s property/s shall be paid in the following manner and priority:

(a)The amount required to discharge the mortgage over the property;
(b)Payment of the sales agent’s commission and expenses;
(c)Payment of the legal cost and outlays relating to the sale; and
(d)The balance be paid according to the calculation clauses at Orders 38 and 39.

Family Trust
30.Within 28 days of this Order, the husband, as Trustee of the Vedastus Family Trust (“the Trust”), must do all things and sign all documents to:
(a)Receive the Trust’s share of the sale proceeds from the sale of R Street, Suburb S NSW into the Trust; and
(b)Declare and distribute one half of the funds held by the Trust to himself, and the other half to the wife using a bank account nominated by her.

31.Each party is responsible for any tax consequences arising from the distribution of Trust funds set out in the previous order.
32.Within 28 days of the distribution to the wife required by Order 30, the husband will provide to the wife’s solicitors a Deed of Release for the wife to be removed as a beneficiary of the Vedastus Family Trust.
33.No later than 14 days after receiving the Deed of Release, the wife will execute the Deed of Release and provide it to the husband’s solicitors.

Joint bank accounts
34.Within 14 days of this Order, the husband is to provide the wife’s solicitors, all documents necessary to close the parties’ joint bank accounts.
35.No later than 14 days of receiving the documents necessary to close the joint accounts, the wife will execute and return those authorisations.
36.The husband will attend to the closure of the joint bank accounts and shall be entitled to transfer to himself any credit balances.

Cash adjustments and re-calculation
37.In the event no properties are required to be sold, then the wife will pay the husband $78,758 within 28 days of the date of this order.
38.In the event any properties are sold, the parties will use the nett sale proceeds to re‑calculate the pool (“the re-calculation”) and arrive at a 55 per cent adjustment to the wife and 45 per cent to the husband, using the following items and values:
The wife to retain:
(a)The Suburb E property valued at $2,300,000 with a mortgage of $605,333, or the nett proceeds if sold;
(b)The wife’s bank accounts, with the individual balances as set out in the notes to Item 23 in Annexure A to these orders, with a total value of $862,127;
(c)Superannuation Fund 1 with a value of $1,509; and
(d)50 per cent of the Trust funds required by Order 30.

The husband to retain:
(a)The Suburb H property valued at $840,000 with a mortgage of $585,187, or the nett proceeds if sold;
(b)The Suburb K property valued at $1,020,000 with a mortgage of $601,428, or the nett proceeds if sold;
(c)The Suburb M property valued at $510,000 with a mortgage of $379,890, or the nett proceeds if sold;
(d)The Suburb P property valued at $650,000 with a mortgage of $309,695, or the nett proceeds if sold;
(e)The husband’s bank accounts and the parties’ joint accounts with the individual balances as set out at Items 6 to 10 in Annexure A to these orders, with a total value of $11,258;
(f)The husband’s shares with the individual balances as set out at Items 11 to 20 in Annexure A to these orders, with a total value of $423,578;
(g)Motor Vehicle 1 with a value of $6,000;
(h)Superannuation Fund 2 with a value of $109,569;
(i)Superannuation Fund 3 with a value of $126,639;
(j)50 per cent of the Trust funds required by Order 30; and
(k)The husband’s liabilities with the individual balances as set out at Items 33 and 34 in Annexure A to these orders, with a total rounded up value of $1,482.

39.On the above re-calculation, if the property retained by the either party has a value greater than the overall adjustment of 55 per cent to the wife and 45 per cent to the husband, then the party who stands possessed of assets greater than their entitlement will make such cash payment to the other to achieve the overall adjustment of 55 per cent to the wife and 45 per cent to the husband.

Section 106A
40.In the event that either party refuses or neglects to execute any Deed, document or instrument necessary to give effect to all or any of these Orders, then a Registrar of the Federal Circuit and Family Court of Australia shall be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such Deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the Deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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).
ANNEXURE A
(excludes blank rows, and parties’ Notes, save for Item 23)

Joint Balance Sheet Note: This document can be sent by electronic means between the parties prior to it being filed at court.			Name
			File No	SYC4704/2020
			Date	22.11.2023		Time am/pm
			Before	The Honourable Justice Brasch
Ownership		Description	Applicants value		Respondents value
ASSETS
1	Joint	D Street, Suburb E NSW	$2,300,000.00		$2,300,000
2	Husband	J Street, Suburb K NSW	$1,020,000.00		$1,020,000
3	Joint	L Street, Suburb M NSW	$510,000.00		$510,000
4	Joint	N Street, Suburb P NSW	$650,000.00		$650,000
5	Joint	G Street, Suburb H NSW	$840,000.00		$840,000
6	Husband	CBA bank account	$4,083.33		$4,083
7	Joint	NAB bank account	$4,944.29		E$4,944
8	Joint	Westpac bank account	$40.25		E$40
9	Husband	T Bank account	$100.00		E$100
10	Husband	ANZ bank account	$2090.50		E$2090
11	Husband	Shares	$225,161.75		E$225,161
12	Husband	Shares	$8,775.00		E$8,775
13	Husband	Shares	$4,000.00		E$4,000
14	Husband	Shares	$7,213.93		E$7,213
15	Husband	Shares	$118,533.28		E$118,533
16	Husband	Shares	$6,520.00		E$6,520
17	Husband	Shares	$1,000.00		E$1,000
18	Husband	Shares	$51,680.00		E$51,680
19	Husband	Shares	$195.00		E$195
20	Husband	Shares	$498.75		E$498
21	Husband	Motor Vehicle 1	$6,000.00		E$6,000
22	Husband	U Pty Ltd	$0.00		NK
23	Wife	Various bank accounts (detailed in footnote)	$862,127		$862,127
24	Joint	The Vedastus Family Trust – proceeds of sale of Suburb S	$1,436,575.50		$1,436,575
Total		$ 8,059,538.58		E $ 8,059,534 + NK
LIABILITIES
27	Joint	Home loan Suburb E	$605,332.82		$605,332
28	Husband	Mortgage on Suburb K	$601,428.40		$601,428
29	Joint	Mortgage on Suburb M	$379,890.40		$379,890
30	Joint	Mortgage on Suburb P	$309,694.76		$309,694
31	Joint	Mortgage on Suburb H	$585,186.56		$585,186
32	Husband	Total income tax assessd [sic] and unpaid in previous financial years. [NB: this is not included in the Balance Sheet as found by me]	$50,000		NIL

Ownership Description Applicants value Respondents value

33 Husband NAB Visa Card $1,430.47 $1,430

34 Husband VISA Card $51.57 $51

Total $2,533,014.98 $2,483,011

SUPERANNUATION

Member Name of Fund Type of Interest Applicants
value Respondents value

35 Husband Superannuation Fund 2 Accumulation $109,569.11 $109,569

36 Husband Superannuation Fund 3 Accumulation $126,638.96 $126,638

37 Wife Superannuation Fund 1 Accumulation $1,509.00 $1,509

Total $237,717.07 $237,716

TOTAL NET ASSETS INCLUDING SUPER E $5,814,239 + NK
Notes

23.	H: W: Value in accordance with Schedule of Wife’s Bank accounts and balances at 14.09.2023
Bank	Account number	Account	Balance at 14.09.23
V Bank	…90	Everyday	1,000
V Bank	…28	Savings	2,001
V Bank	…82	Savings	0
V Bank	…06 (was …65)	Term deposit	300,000
V Bank	…36	Retirement	0.20
ANZ	…66	Access Advantage	.50
ANZ	…31	Online Saver	4.15
ANZ	…85	Progress saver (X)	25,090
Westpac	…57	Choice	0.80
Westpac	…10	E Saver	1,457
CBA	Accounts operated by Husband	NK	NK
CBA	Account operated by Husband	NK	NK
NAB	…71 – Account operated by Husband. Wife has no access	NK	NK
NAB	…71 – Account operated by Husband. Wife has no access	NK	NK	W Bank	…90	Everyday	.90
W Bank	…87	Savings	3,000
W Bank	…39	Savings	0.01
Z Bank	…29	Savings	9.37
Z Bank	…32	Savings	83.70
Z Bank	…58	X Savings	90,000
Z Bank	…72	Y Savings	90,000
AA Bank	…61	Savings account	11.52
AA Bank	…16	Savings	11,000.27
AA Bank	…00	Term deposit	231,000
AA Bank	…07	Term deposit	100,000
T Bank	…38	Every day	.60c
T Bank	…61	Savings	.01c
BB Bank	…94	Savings	0.64c
BB Bank	…33	Savings	102.09
BB Bank	…22	X Statement ac	0
BB Bank	…16	X Savings	10,000 (but nil for purpose of Financial statement as account is in Trust for X)
BB Bank	…02	Y Statement account	90,000(but nil for purpose of Financial statement as account is in Trust for Y)
CC Bank	…23	Savings	0.57c
…65	7,364
Total = $862,127

REASONS FOR JUDGMENT
BRASCH J:
INTRODUCTION

The parties are in dispute about how their property ought be divided between them, and whether either or both of the two children ought spend time with the father.
Mr Vedastus (“the father”) commenced these proceedings on 15 July 2020 in the Federal Circuit Court, as it then was. Ms Alvar (“the mother”) filed her Response on 16 December 2020. On 25 March 2022, the proceedings were transferred to Division 1 of the Federal Circuit and Family Court of Australia.
The mother and father (“the parties”) commenced cohabitation in 2008 and were married in 2008. X was born in 2009, and Y was born in 2012 (“the children”).
In early 2020, the husband assaulted the wife. He subsequently plead guilty to an offence.
On 16 March 2020, the mother and father separated, with the mother and children vacating the home they shared with the father and paternal grandparents. Apart from Family Report interviews in October 2021, the children did not see the father until February 2023.
On 27 January 2021, interim orders were made for non-reportable therapy for the children and the appointment of Dr DD, psychiatrist, as the Single Expert.
The matter first came before me for an interim hearing on 25 July 2022. On that occasion the parties advised that Dr DD, would be retiring later in 2022 and if the matter had not progressed to final hearing by then, a new Family Report Writer would be required. To avoid this, the parties agreed to list the matter in September 2022 so the Single Expert could be cross‑examined. That occurred and Interim Orders were also made for the children to spend weekly, supervised time with the father. The balance of the trial should have been heard in January 2023, but as the parties had not complied with the interim orders, the January 2023 dates were vacated and the trial resumed and concluded in October 2023. The parties made written submissions thereafter.
THE PARENTING DIPSUTE
Despite the September 2022 Order for weekly supervised time, time did not start until February 2023 and seemed to only occur on a roughly monthly basis. At the October 2023 part of the trial, the father complained about the costs of supervision. Yet, the father’s Financial Statement of September 2023 indicated he had an interest in five encumbered properties, almost $40,000 in bank accounts, and more than $420,000 in shares.
However, it is also clear from the emails between the mother and therapist, and I find, the mother was tardy in engaging X in therapy. Therapy was a condition precedent to supervision occurring. Further, on the texts between X and the mother, I find the mother inappropriately permitted X to decide whether she would go to therapy, even though there was an Order in place requiring it happen. It was not until the ICL said she would re-list the matter that some progress was made.
When the trial resumed on 3 October 2023, the parties agreed that the children live with the mother and she have sole parental responsibility for major long-term decisions albeit after consultation with the father. I made Consent Orders to that effect.
It is worth now setting out the parties’ competing proposals. In particular, the parenting proposals speak to the parties’ changing views of what each said was in the children’s best interests.
The father’s parenting proposals
At the commencement of the hearing in September 2022, the father proposed the parties have equal shared parental responsibility, the children spend six months of weekly supervised time with the father and then a graduated time regime culminating in the children spending four nights per fortnight with him. He also sought orders with respect to special occasions, half holidays, communication orders, information sharing and non-denigration orders.
By the close of evidence on 6 October 2023, the father changed his position from the slow graduation of time in his September 2022 proposal, to a move straight from supervised time with the children (which had occurred roughly each month on seven occasions since February 2023) to unsupervised, alternate weekends and half holidays (Exhibit 21). His written submissions were consistent with that.
The mother’s parenting proposals
At the start of the hearing in September 2022, the mother sought an order for sole parental responsibility and that the children spend no time with the father. The no time order had been the mother’s consistent position since her original Response filed on 16 December 2020.
The mother’s no time case remained her position during the September 2022 part of the trial and in all of the October 2023 trial, until just before the evidence closed. About five court minutes after the mother confirmed in cross-examination that her position remained no time, the mother’s counsel announced the mother adopted the ICL’s proposal. That proposal was for six months of supervised time on alternate Saturdays and then time to occur as the children wished. It also provided for communications and other specific issue orders. No reasons were offered for this stark volte-face.
By the time of written submissions, the mother again changed her position and, unsurprisingly, largely adopted the ICL’s new, post-trial Minute of Order (as discussed below, but essentially time for Y as agreed by the parties). The curiosity of this is that a major plank to the mother’s case from the inception of the matter was that the mother said she feared the father (and his family) and could not communicate with him. Yet, her position in written submissions proposed she do exactly what she had eschewed for years – communicate with the father about time for Y.
The ICL’s proposals
At the close of evidence in October 2023, the ICL’s Minute of Order (Exhibit 20) provided the children spend six months of supervised time with the father, then the children elect what happens next.
However, by the time of written submissions, the ICL proposed that X spend time with the father as she wished and that Y spend time as agreed between the parents. The submissions acknowledged that it was unlikely the parents would agree. In reality then, the ICL proposed a no contact order, but one where the conflict between the parents would continue – the father asking for time, and the mother most likely saying no. Communication orders were also proposed.
THE PROPERTY DISPUTE
The property dispute was very much the poor cousin to the parenting dispute. For example, the balance sheets in each party’s outlines were deficient and I was told to disregard them. Yet, I still did not have a joint balance sheet by the last day of trial. That was not for a lack of asking. I added a notation to the directions dated 6 October 2023 setting a timetable for written submissions, asking that the joint balance sheet be provided to chambers “as expeditiously as possible”. Nothing arrived. Chambers followed up with a request for the joint balance sheet from the parties on 31 October 2023. It did not arrive.
Nevertheless, the wife’s written submissions said, “A Joint Financial Statement is before the Court”. Except it still was not.
Upon the husband filing his submissions, a balance sheet was still not before me. Accordingly, I made the following order on 20 November 2023:
THE COURT ORDERS THAT:
1.The husband and wife are directed to provide a Joint Balance Sheet to the Chambers of the Honourable Justice Brasch (via […@...]) by 4.00 pm on Wednesday 22 November 2023.
2.In the event a Joint Balance Sheet is not provided as required by Order 1, the matter will be listed on a date to be fixed to consider dismissing the property proceedings for non-compliance.
THE COURT NOTES THAT:
A.Her Honour made a number of requests for a Joint Balance Sheet during the trial on 3-6 October 2023.
B.Notation B of the orders made on 6 October 2023 required the parties to provide the Joint Balance Sheet to Chambers “as expeditiously as possible”.
C.A follow up email was sent to the practitioners on 31 October 2023, drawing their attention to Notation B, and again requesting the Joint Balance Sheet as expeditiously as possible.
D. As at the date of this order, a Joint Balance Sheet has not been provided.
Finally, the joint balance sheet was provided on 22 November 2023. I will address the issues in dispute when I come to the property proceedings.
Similarly, the parties’ proposed property orders, scant as they were, were only exchanged on the afternoon of the last day of trial.
During the trial, very few questions were asked about property matters by either party. I will do the best I can on the property dispute with the limited assistance I have received on the topic.
The husband’s property proposal
The husband sought an overall property adjustment of 60 per cent in his favour. He sought orders for the Suburb E property to be transferred to the wife subject to the mortgage, and the wife transfer her interest in all other real properties to him along with their respective mortgages.
The husband also sought an order that the wife be declared to have no right title or interest in the Vedastus Family Trust. This is a Trust where the husband is the appointor, and the parties were both trustees until the husband removed the wife after separation. They both remain beneficiaries, as do the children and paternal family members.
The Trust ought have received $1,436,575.20 prior to Financial Year End 2023 from the proceeds of a sale of property at Suburb S, which the parties and the husband’s friends acquired during the relationship. The husband said in cross-examination he had asked EE Company(his friends) to not pay the proceeds to the Vedastus Family Trust “because of the family court I asked [EE Company] to put it [the payment to the Trust] on hold”. He confirmed he had asked EE Company to not pay the $1.4 million until after these proceedings had concluded. Pursuant to a Consent Order of 30 August 2022, the husband ought have done as followed:
4.The Husband shall do all things and sign all documents necessary to cause any share of sale proceeds to which the [Vedastus Family Trust] is entitled to be paid into a controlled monies account standing in the joint names of the solicitors of the Husband and the Wife, and that such monies remain there pending further order of the Court;

I have already referred to the husband having a significant bundle of shares and bank accounts, but no mention of these was made in his Minute. It is also not clear to me whether the property orders proposed by the husband (Exhibit 21) equate to 60 per cent. There is no provision for the payment of money from one party to the other to achieve such an outcome. The husband’s written submissions remained consistent with the 60 per cent adjustment.
The wife’s property proposal
In her Case Outline filed 3 October 2023, the wife sought an overall property adjustment of 65 per cent in her favour. By the time of her written submissions, her counsel sought “at least sixty five per cent (and possibly up to seventy per cent in favour of the Mother and thirty five per cent in favour of the Father”. However, the submissions then set out what the cash adjustments to the wife would be on a 55 and 60 per cent adjustment to her, along with 65 and 70 per cent. Perhaps that was to be helpful.
By her Minute of Order dated 6 October 2023, the wife sought the same outcome for the real properties as did the husband – she keep Suburb E and he keep the other real properties and their encumbrances. The wife proposed orders for the sale of properties if either party was unable to take on or discharge the relevant mortgages; that is, if she could not take over the Suburb E mortgage then it be sold, and if the husband could not take over the mortgages for the properties he was to keep, they be sold.
The wife sought a further order that the husband, in his role as Trustee of the Trust, declare and pay a distribution in the sum of $833,203 to her as beneficiary. I have no idea how that sum was derived. Like the husband, the wife made no mention of the husband’s shares. Like the husband’s orders, I have no idea if the wife’s proposal actually equates to the 65 per cent sought by her.
Material
All parties filed Outline of Case Documents and written submissions. The wife was given the opportunity to file submissions in reply, but did not.
The husband relied upon the following documents:
·Initiating Application filed 15 July 2020;
·Affidavit of Mr Vedastus (and exhibit “MV-1”) filed 31 August 2022;
·Affidavit of the paternal grandfather Mr FF filed 29 August 2022;
·Affidavit of Mr Vedastus filed 26 September 2023; and
·Financial Statement filed 26 September 2023.
The wife relied upon the following documents:
·Response to Initiating Application filed 16 December 2020;
·Affidavit of Ms Alvar filed 29 August 2022;
·Affidavit of Ms Alvar filed 22 September 2023; and
·Financial Statement filed 22 September 2023.
The ICL relied upon the following documents:
·Family Report of Dr DD released 8 December 2021 (“Exhibit 1”).
Twenty-one Exhibits came into evidence during the course of proceedings.
The standard of proof is the balance of probabilities; see s 140 of the Evidence Act 1995 (Cth).
It is well settled that it is not necessary for a trial judge, in reaching a decision, to refer to every piece of evidence or argument presented during the trial; see Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62] per Gleeson CJ, McHugh and Gummow JJ. See also Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386 per Mahoney JA.
PARENTING PROCEEDINGS – LEGAL PRINCIPLES
Orders with respect to children are made under Pt VII of the Family Law Act1975 (Cth) (“the Act”), where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
In Masson v Parsons (2019) 266 CLR 554, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted at [8] that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA). The Act sets out the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
Parental Responsibility
At the start of the October 2023 part of the trial, I made consent orders which saw the wife having sole parental responsibility for major long-term decisions for the children. That means I am not mandated to follow s 61DA of the Act which would otherwise require I consider equal time, and significant and substantial time. In short, my consideration is “at large”, albeit conditioned by the relevant considerations in Pt VII of the Act.
Best interests of the child
The best interests of the child is the paramount consideration (s 60CA) and is determined by an examination of the considerations set out in s 60CC of the Act.
In Tibb & Sheean (2018) 58 Fam LR 351 at [74]–[78], the Full Court made clear that while the Court must consider each of the primary and additional considerations in s 60CC, express discussion is not necessary. The relevant considerations are determined by the way in which the parties presented their cases.
Section 60CC(2) contains two primary considerations – in short, the benefit to the child of having a meaningful relationship with both parents, and, the need to protect the child from the harm of being subjected to or exposed to abuse, neglect or family violence. In balancing these considerations, s 60CC(2A) requires the Court give greater weight to s 60CC(2)(b), being protection from harm.
Section 60CC(2)(a): a meaningful relationship
In Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”) Cronin J held at [169] that for there to be meaningful relationship, it must be “healthy, worthwhile and advantageous to the child”.
In Cotton & Cotton (1983) FLC 91-330 (“Cotton”), Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
… that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
In McCall & Clark (2009) FLC 93-405 (“McCall”) at 83,476, the Full Court said at [122]:
122.…No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests.
In McCall at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said, in summary, that the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
I have already set out the mother’s and ICL’s October 2023 end-of-trial proposal, and subsequent change in written submissions. The former allowed for some form of children‑father relationship. The latter, in reality, did not. The prospect of the parents agreeing on time for Y is extremely low but the prospect of that causing conflict between the parents is extremely high.
Conversely, both the father’s September 2022 and October 2023 Minutes must be predicated on the idea of the children having or developing a meaningful relationship with the father. It is plain to me the father is most desirous of such a relationship, but that is not the test. Rather, my focus must be on the children and whether there is “a chance of a meaningful relationship, which is beneficial to the child” (Cotton).
The Report writer said Y took a “hard line” approach to rejecting the father in interviews, but he “had to keep a distance and watch for a little bit and then he started – on his own accord, he started to engage his father”. She said, under the right circumstances, “the relationship could be renewed”.
As for X, the Report writer said she needs to be challenged by seeing her father for herself, as opposed to through the mother’s eyes, and, it “is not in her best interests to avoid” the father.
Dr DD agreed it was important the children’s relationship with their father be renewed. I accept her cross-examination was before the supervision reports, and I say more about what I can make of those later.
Section 60(CC)(2)(b) Protection from harm
This subsection requires protecting a child from physical or psychological harm and, from being subjected to or exposed to abuse, neglect or family violence.
As will become evident under the s 60CC(3) family violence factors, I find the father assaulted the mother in early 2020, and, in the presence or hearing of the children. I also find the paternal grandfather pushed the mother in early 2015 in the house in which the children were present.
Both events were harmful to the mother, and for the children to see or hear the family violence, or at the very least, to feel the adult tensions.
The father enrolled in an anger management course on a “without admission basis”. He explained that to mean, “I volunteer myself to go to that to try improve myself”. He said he did not have a problem with “controlling anger”. He told the ICL when “not happy or angry, you need to think of different degree or different things to calm things down so make things say ‘oh this is no good’. Yeah so I do learn a lot from those course yeah”.
With the parent’s separation in 2020, the prospects of the children being exposed to further abuse or family violence as between the parents, and as between the mother and paternal grandfather, are low. I say that because (as discussed on the family violence sub-section later) the last finding of family violence arose out of the assault in early 2020. I also accept Dr DD’s opinion that the children would not be at a risk of harm with the father into the future, if nothing more occurred between the adults since that early 2020 assault. That is the case here.
The mother alleged that the father exposed Y to pornography, but this was not put to the father. It was also alleged the child would pull down his pants. The mother was asked that if the child was watching pornography and pulling his pants down as regularly as she alleged, then the paternal grandparents would see. The mother replied, “they didn’t care about that”. None of this was put to the paternal grandfather, nor were any submissions made on this topic by the ICL or the mother. The mother holds the onus with these serious allegations but I am not persuaded the father exposed Y to pornography or the child regularly pulled down his pants.
No one sought a finding in written submissions that either party posed an unacceptable risk to the children (Isles& Nelissen (2022) FLC 94-092). The evidence does not support that. I find neither party poses and unacceptable risk of harm to the children.
Instead, the mother submitted:
17.There are further problems with any potential “spend time with” regime involving [Y]. One of these is the classic B v B issue of whether contact between the children (or either of them) and the Father would adversely impact on the Mother’s parenting capacity. Having regard to the report of [Dr DD], and having observed the Mother’s reaction in court to the Father and members of his family, it is submitted that the Court would entertain a significant concern as to whether ongoing contact between the children and the Father might cause psychological distress to the Mother of such magnitude as to adversely effect her ability to care for the children (or either of them) on a day to day basis.
(Mother’s written submissions filed 4 November 2023, paragraph 17)
That is a different argument to family violence, which I will consider later under capacity to parent. That said, the submission needs to be considered alongside: (a) the consent order which sees the mother consulting with the father on major long-term decisions; (b) the mother’s position at the end of trial that the children have six months of supervised time with the father; and, (c) the mother’s position in subsequent written submissions that Y spend time as agreed between the parents; that is, the mother proposed some kind of communications with the father to agree time or not. These three matters are notwithstanding what was said at her paragraph 17 extracted just above.
Section 60(CC)(2A) balancing the primary considerations
In applying the considerations set out in s 60CC(2), I must give greater weight to the harm considerations in s 60CC(2)(b).
As determined, the father does not pose an unacceptable risk to the children. I also consider the prospects of the children being exposed to family violence as between the parents, or the mother and paternal grandfather, to be minimal. I will however make an order that when changeovers are to occur, the father remain outside of the curtilage of the mother’s residence, and that the mother is at liberty to remain inside the home. I do not make that order because I consider the father to be a risk of doing harm. Instead, I will make the order so the mother sees there is some physical distance between the parties and to quarantine the children from any tensions that may arise if the parents see each other.
But, just because I have determined protection from future harm to a low prospect, that does not automatically mean I must fashion orders to provide for a meaningful relationship between either child and the father. Instead, I must look prospectively and consider whether I would be making time orders for the sake of time orders, or whether such a future relationship would be beneficial, healthy and advantageous to each child. I have also been invited to consider the impact on the mother of making orders for time.
It was ultimately Dr DD’s evidence that even if I found long standing family violence at the hands of the father against the mother (which I do not, as set out later), the children need to have exposure to the father “so that they can have their own experience of their father, so that they’re not left always looking or thinking about him through their mother’s lens”. The Single Expert added:
[DR DD]: ...if they’re left with this sense of their father is merely an assaultative, violent person, unfortunately, that leaves those traits available for them to identify with and – in the sense of, you know children think, you know, “There’s this bit of me – of dad in – there’s this bit of dad in me, there’s this bit of mum in me”. If all the children have as a role model is this violent man who was too – too violent that the judge thought he was too big a risk to them, then the children’s identification goes to a very dark place, and I – I do have concerns about that. So just for them to be able to make their own assessments, particularly, you know, over time, and especially when they gain maturity, they can perhaps see something else about their father, which is something better for them to identify with.
(Transcript 12 September 2022, p.17 lines 18-28)
I accept the expert’s evidence about this, as it makes sense. I return to the theme of this evidence a number of times in these reasons.
Section 60CC(3) - Additional Considerations
The Court must have regard to each of the “additional considerations” under s 60CC(3) of the Act, separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child's best interests. These are as set out below.
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
X will turn 15 soon. X told the Family Report Writer:
…she would not want to spent time with them [the father and paternal grandparents] alone (she was given the example of about four hours, at the beach/zoo etc).
However, if their time together was supervised, she responded "maybe, if not for too long ... one-two hours (would be) OK".
(Exhibit 1, p.8)
However, Dr DD added, “I’m sure she would prefer just to get rid of him and get on with her life and look after mum as she is doing and not think about it, but, of course, that’s not good developmental strategy” (Transcript 12 September 2022, p.7 lines 4–6).
The ICL submitted that weight should be given to X’s views given her age. Yet, it was also submitted that notwithstanding X’s expressed views, she had engaged and communicate with the father in recent supervision reports. (ICL’s written submissions filed 20 October 2023, paragraphs 59-60).
Y is 11. Y is diagnosed with Autism Spectrum Disorder (“ASD”) and was observed by Dr DD to exhibit immature/autistic like behaviours (Exhibit 1, p.10). Y told the Family Report Writer that he did not want to see “[Mr Vedastus] [the father] and his parents” (Exhibit 1, p.8).
When the children were asked whether they would like to send a message to me via the Family Report Writer, X declined but Y said:
I want to stay with my Mum and my sister. I don’t want to stay with my Dad and his parents. Give some money from [Mr Vedastus] [the father] because he’s working Monday to Friday. I don’t want to see [Mr Vedastus] [the father] and his parents.
(Exhibit 1, p.9)
I conclude the mother (advertently or inadvertently) has allowed Y to understand adult issues about money. I do so because what Y said is also consistent with the mother using X to ask the father for money. For example, X texted the father as follows:
Daddy, can you buy us [fast food]
Why mummy credit card no working
Did you do something to it? We cant buy [fast food]
(Exhibit MV1 to the father’s affidavit filed 31 August 2022, p.30)
The mother was asked about the fast food text and whether she thought it a good idea to use X in this way – X was all of 11 years at this point. The mother was argumentative and non‑responsive. Eventually the mother said it was not a matter of being a good idea or not, but “the children needed food”. She added “[Mr Vedastus] didn’t care about the children”.
Similarly, X sent the following to the father:
Daddy dent forget child support every week $2000
No bargaining. Dont said love to us,, if you bargaining.
Daddy you lie to grandpa,, said it’s momy that want separate.
It’s you daddy who want to separate.
…
(As per the original)
(Exhibit MV1 to the father’s affidavit filed 31 August 2022, p.31)
Again, on balance, X has been involved in or come to understand these adult issues from the mother. In cross-examination, the mother was not troubled by her involvement of X in adult issues such as child support, bargaining and separation.
The Family Report Writer described X to be “[v]ery knowledgeable about Court matters” (Exhibit 1, p.29) – which could only have come from the mother.
The mother readily accepted in cross-examination that the children are aware of her views of the paternal family. The mother also told the children of the ADVO, although “not 100 per cent of the stipulations”. The mother said the children “had to know” “not to get close to” the paternal family. The mother also confirmed, the “kids know I don’t like the father’s family” and that “they know” she is stressed about the children having a relationship with the father and paternal family.

These are horrible burdens for the mother to impose on the children.
The mother added in cross-examination that:
[THE MOTHER]: Sometimes I speak to my daughter about being bitter and saying that I didn’t like and then perhaps that’s where [Y] heard it.
[ICL’S COUNSEL]: And when you say talking to your daughter about being bitter, do you mean bitter about the children's father?
[THE MOTHER]: yes, but I didn’t explain it in detail I just said “I don’t like him”.
[ICL’S COUNSEL]: Is this right? You said to [X] “I do not like your father”?
[THE MOTHER]: Yeah I told [X] and perhaps [Y] heard me and that sometimes I don’t like [people from Country GG] because of what I experienced. But I didn’t need to tell her, [X] had experienced it.
[ICL’S COUNSEL]: Well, it’s more you didn’t need to tell her, did you? It can’t help a child to be told that you don’t like that child’s father, can it?
[THE MOTHER]: Could you repeat that?
[ICL’S COUNSEL]: Sure. It must be harmful for a child to be told their mother does not like her father, mustn’t it?
[THE MOTHER]: Although or I just I remember I said to [X] I don’t like [Country GG] people, you see the suffering that I and you have had.
[ICL’S COUNSEL]: Alright and you meant the suffering that you and [X] had had at the hands of [Country GG] people and in particular the paternal family, is that right?
[THE MOTHER]: Yes.
The mother should not be speaking to the child about being bitter, but she did. Similarly, the mother could not accept any detrimental impact on the children of saying “I do not like [Country GG] people, you see the suffering I and you have had”. Both children have Country GG heritage.
Y also expressed the mother’s views about Country GG people to the Family Report Writer:
Explaining why they last saw their father "a long time ago" (a year), [Y] declared "because my Mum not like [people from Country GG]"…
(Exhibit 1, p.3)
[Y] added (in a monologue) "My mother hates [Country GG people] now. Dad did something wrong ... hitting, shouting, pointing, angry and very mad, not good to my mother, and separated and kill my mother and [X] (because he's not good to my mother). He want a new mother to marry. My mother hate [Mr Vedastus] because he's not good to us.
(Exhibit 1, p.7)
The fast food text, the money texts, telling them about the ADVO, expressing her bitterness about the father to at least X, and, her views about Country GG people are but a few of the many examples which lead me to find the mother has inappropriately involved the children in adult matters and is incapable of shielding the children from her views about the father and the paternal family.
On the strength of the mother’s inappropriate involvement of the children in the adult dispute and expression of her views to them, I cannot make much of what the children say as being anything other than a reflection of the mother’s palpable bitterness towards the father.
The High Court decision of Bondelmonte v Bondelmonte (2017) 259 CLR 662 made it clear that the child’s best interest will not be overridden by the children’s age and their expressed wishes. The Bondelmonte children were 17 and 15 years.
(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);
Save for the Family Report interviews in 2021, the children did not see their father from March 2020 to February 2023. I have already described the supervision reports, but also the limitations on what I can make of them. I have also concluded that the mother has inappropriately involved the children in her views of the father, cannot shield them from her bitterness and views, and, caused the children to do her bidding about money and child support.
Dr DD described the relationship between X and the mother as:
…[X] appeared to be her mother's confidant and has tried to support her in what, at times, became a role reversal.
(Exhibit 1, p.29)
In cross examination, Dr DD added:
[DR DD]: ...what has really concerned me, too, your Honour, just while I think about it, reading her affidavit over the weekend, I think somewhere in it [Ms Alvar] comments on she wouldn’t be able to make [X] go. [X] is nearly 14 and she wouldn’t be able to make her go, and then she talks about the father being a physical risk to the children and that [X] would need to go with [Y] if they spend time with their father to keep [Y] safe, and I think that’s a huge responsibility to put on a child that – and if that’s what [X] is picking up on that, “Mum expects me to keep [Y] safe from our father who’s capable of harming – physically harming us”, then the child, [X], is really being burdened by mum.
(Transcript 12 September 2022, p.7 lines 34–42)
Dr DD expanded on this later in her evidence:
[ICL’S COUNSEL]: And what, if any, do you see as being the longer term consequences for [X], firstly, of having to continue that burden?---
[DR DD]: Well, she will be a parentified child – she probably already is – where she takes responsibility for her mum, and, I mean, I think there’s a – there was a small example of it in my – in my report when on the second occasion, the family came late and mum was – got herself very anxious, and then [X] had to find the solution about what to do, how to find her way – or their way down to my office, where [X] starts to problem solve and look after [Ms Alvar]. So a parentified child, a child who takes on more responsibility than really she should, which – which sort of cuts into her – the time she has to devote to her own development and finding out who she is and what she is rather than who she needs to be for mum.
(Transcript 12 September 2022, p.29 lines 24–34)
I accept X parents the mother and that that is inappropriate. The examples just above support that finding, as do the words that fell from the mother in cross-examination such that she had X put cream on her bruises caused (the mother said) by the father, along with the texts for money, food and child support (extracted previously). Similarly, when the mother was asked if separation was an anxious and stressful time for the family, the mother replied, “[X] supports me”. That is not how it should be. The mother should support X (and Y) not the other way around. X was 11 years at the time.
The Report writer also spoke of Y’s awareness of the mother’s feelings about his father, and described Y as enmeshed with the mother. She said he had a general sense of “us against Dad”. I accept her opinion as it accords with the evidence before me.
On the strength of the texts (see the children’s views section above), X’s parenting of the mother, Y’s sense of “us against Dad” and the mother’s inappropriate sharing of her views with the children (for example her bitterness, what she said about Country GG people and the paternal family generally), I find the children have a close, but unhealthy relationship with the mother.
The father said that he thought he had a “very good” relationship with X and his relationship with Y is “just building up”. He said that he was confident that X wants to be at the visits and see him. I do not share the father’s, unnuanced, simplistic views given the children did not see the father for several years and have not been spared the mother’s views of him and his family. I have already set out the limitations of the supervision reports.
In cross-examination, Dr DD said she observed X making a connection with her father; “she did sit with her father for quite a long time and – and they were able to chat and talk. She accepted his food. She wasn’t affectionate, but she certainly sat with him and listened to him and answered him a little bit”.
Of Y, Dr DD said:
[DR DD] …Young – young [Y], who as I have described sort of rejected any contact with his family – paternal family, but left to his own devices and given time, he started to – he was the one who initiated contact with his dad through the toys, which is what you would expect for a child. He – and – and dad was able to engage him, so that they both ended up laughing and enjoying the contact with each other. So clearly, those types of interactions would – would certainly be positive and – and be – be positive about – well, give me hope, at any rate, that things might be able to progress…
(Transcript 12 September 2022, p.26 lines 26–33)
Rightly or wrongly, the passage of time between separation to supervised time meant the children had a non-existent physical relationship with the father. Those relationships have resumed with supervised time. One of the big questions in this matter is whether I ought bring the relationships to an end, or craft orders that allow the children to see the father through their own eyes (not the mother’s), and, to give the prospect of a healthy relationship re-developing going forward.
I now turn to the C Contact Service supervision reports (Exhibit 6). At face value, X appears to engage with the father, but I do not know if that was simply because she is a compliant child, or as the father said, “she’s a good girl”. Or, it may be she enjoyed her time with the father.
The reports also look like Y disengaged with his father and that he did not want to be there. However, for all I know, Y may have been angry with the father for the father’s long absence in his life. Or, Y distanced himself from the father as a protective measure for fear that the father may again disappear from his life. Or, it may be that he did not want to be there and did not want to engage with the father. Or, Y felt he had to be negative to the father because he knew that would please the mother or was otherwise expected of him.
For the practical reasons of Dr DD’s retirement, I do not have the benefit of her expertise in interpreting the children’s portrayal in the supervision reports. I am not therefore prepared to put much weight on the observations of the children in the reports and more so, what they might mean.
However, what I do know is that both children attended the visits, and there is no reporting of refusal or defiance at attending. They both get in the supervisor’s car and go. There are no reports of any hysterics or refusing to get out of the car. No visits were stopped because the children were distressed.
I accept that the children previously had a close relationship with the paternal grandparents, having lived with them until separation. However, from the children’s perspective, the experiential relationship came to an end some time ago.
So, on one hand, the children have an unhealthy, aligned relationship with their mother. On the other, they have resumed a fledgy relationship with their father but have a non-existent experiential relationship with the paternal grandparents.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
The father has not been involved in any decision making about major long-term issues for the children since separation occurred in March 2020.
The father commenced spending supervised time with the children in February 2023 following the orders of 13 September 2022. The ICL was critical of the father’s delay in commencing supervised time with the children in written submissions. However, that overlooks the fact (as already found) that the mother was tardy in getting X to therapy and inappropriately allowed X to decide if she would attend, despite orders.
Going forward, the parties entered into consent orders for the mother to make the major long‑term decisions for the children, but after consulting the father.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
The father accepted in cross-examination that he had not paid any child support since separation, and that Y has complex needs and requires support that the mother is solely responsible for funding.
However, the father paid $4,000 towards the mortgage and other expenses for the Suburb E property from separation in 2020 to February 2023. That was when the father’s salary decreased and he had the additional cost of C Contact Service.
The father said he was “open” to child support but the mother had never contacted him about it. Yet, the father said he had not made an application for child support himself. The father said he had been “carrying the burden of the mortgage for four years”.
The father’s failure to financially assist the mother since February 2023 does not reflect well on him, although I accept he has been meeting the costs of C Contact Service on a roughly monthly basis.
Yet, the mother made no application for child support. Instead, the mother caused X to threaten the father in texts about child support and has obviously conveyed the understanding to Y that the father should give them money. The mother also used X as the messenger for some fast food.
The mother’s actions were the antithesis of child focus and insight.
Equally, child support, or the direct lack thereof, gives a window into the mother’s acrimony toward the father. The mother was asked if time was ordered, would she say it should be supervised. The mother answered:
[THE MOTHER]: Yes, I want my children to see their father with a supervisor until they are aged 18. I want to use [C Contact Service] because I want the safety of the children. Without a supervisor I don’t know what influence they would put onto my children. That’s one type of justice.
HER HONOUR: What does that mean?
[THE MOTHER]: What I mean is that’s fair or just because all this time, these four years, I’ve been bringing up the children.
HER HONOUR: Thank you.
[ICL’S COUNSEL]: I don’t understand what you mean by that.
[THE MOTHER]: Because the father has not paid anything in these four years, for food, for living costs, for food, for school, for health, for other things, in illness. I’ve covered all of that. That’s fair.
It was abhorrent for the mother to use the father’s lack of financial support (but he paid $4,000 per month for several years) as the motivator for parenting arrangements. That was, (a) the mother putting money ahead of the children’s prospects of having a meaningful relationship with the father, and, (b) consistent with the mother inappropriately involving the children in the adult dispute even by enlisting both children as child support collectors.
These considerations do not reflect well on either parent, but in particular the mother in terms of her attitude and motivators.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The children have solely lived with the mother since separation in early 2020 and only commenced spending supervised time with the father in February 2023. The children had previously lived with their parents and the paternal grandparents in the paternal grandparents’ home.
The varying positions of the parties and ICL has different implications for this consideration. For example, when the ICL and mother said at close of evidence in October 2023 that supervision continue for six months, that was not a practical change for the children.
The subsequent written submissions of the ICL and mother said X should have time with the father consistent with her wishes. At almost 15 years old, there is merit in X having some self‑determination for her future.
The father’s position was that X (and Y) be compelled to attend time with the father until she turned 18 years. That lacked insight and child focus on the part of the father about X’s developmental needs to individuate from her parents and to start charting her own course. The father was also unable to accept that compelling X (and Y) to 18 years may well be counter‑productive.
For Y, the subsequent written submissions of the ICL and mother, were for his time to be as agreed between the parents. That means Y will be placed in the middle of adult disputes going into the future, where the mother will no doubt involve him in the dispute and her views. That involvement in the mother’s bitterness is no real change for Y, but hardly a desirable, healthy or beneficial outcome for him.
The father’s October 2023 position that the children move from (roughly) monthly supervised time to alternate weekends and half holidays, is a significant change for the children. That is also in circumstances where the father could not articulate any substantive strategies to assist with such a transition. The father’s plans were to talk to Y, play and go to the playground. He also spoke of taking things slowly and “let him know I am here for him. Be patient. His heart will open”.
In all likelihood, the mother and ICL’s proposal (in written submissions) will see the father removed from the children’s lives. Y’s memory of the father will therefore be coloured by the mother’s perspective and not formed from his own, more recent experiences. However, Dr DD spoke of the profound detriments this could cause the children for their own sense of identity if they only had the mother’s lens on the father (see Transcript 12 September 2022, p.17 lines 18-28 extracted earlier in these reasons).
If I acceded to the ICL and mother’s final proposal, the children will not have the opportunity to experience the father through their own eyes. They will only have the mother’s perspective and the potential problems that may rise for each child’s sense of self as expressed by Dr DD.
If I acceded to the father’s final proposal, then the children would experience a giant leap from seven supervised day time visits, to unsupervised significant and substantial time. That may well be a leap too great for the children.
In the meantime, it is common ground the children will live with the mother. That is no change for the children, but keeps them within an unhealthy, aligned relationship with their mother.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The children attended seven supervised visits with the husband by the time of trial in October 2023. The husband said the C Contact Service costs are “a little bit high” but if more supervised time was necessary, he was “prepared for it”. He was not keen on paying for the costs of supervision going forward, but that may well be the price he has to pay to grow his relationship with the children.
As will become apparent later, these parties command a property pool of almost $6 million. Both will leave the proceedings with ample resources.
(f) the capacity of: (i) each of the child's parents, to provide for the needs of the child, including emotional and intellectual needs; (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The father’s capacity to parent is largely untested since separation. There is no suggestion in the supervision reports that he did or said anything untoward or inappropriate.
The mother has day-to-day capacity to parent when it comes to housing, food and education. However, for reasons already given, she lacks capacity when infecting the children with her views. In addition, the children live in an environment where the mother has disproportionate fears of everyday events. I give some examples below.
Disproportionate reporting to the police
The mother was cross-examined on a number of complaints she made to the police about the father or paternal grandfather. As set out below, the complaints do not go to family violence, but demonstrate the mother’s disproportionate fear of innocuous things, and ultimately, the household environment in which the children reside.

Respectfully, this submission is not terribly illuminating, for example, allowing me to infer how did the violence make the mother’s contributions more arduous?
The reference to “Kennon” (Kennon v Kennon (1997) FLC 92-757 (“Kennon”)) is a reference to what the majority of the Court held at 84,294:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.
…
(Emphasis added)
More recently in Martell & Martell [2023] FedCFamC1A 71 Aldridge J rightly highlighted that any violence is unacceptable and that trying to limit Kennon cases to exceptional or narrow cases “has no basis in principle” (at [22]). His Honour continued:
24.For the reasons given, the words “significantly” and “more arduous” are not to be read as coterminous with “exceptional”. Rather, they arise from the basis of the principle itself which focuses on contributions. If the nature and extent of a person’s contributions are made more difficult or harder so that they should be accorded greater weight, such that they should be taken into account in the determining of the outcome, they have therefore been “significantly impacted” or made “more arduous”. The focus is not on the conduct per se, but on its effects on contributions.
25.The threshold for recognition is therefore met by conduct which has a discernible effect on the contributions of the other party such that it should be recognised in determining the respective contributions of the parties.
A “course of violent conduct” was examined by the Full Court in S & S [2005] FamCA 1304 at [65]:
65.The term “course of conduct” is a broad one. We do not think that conduct must necessarily be frequent to constitute a course of conduct though a degree of repetition is obviously required. The wife’s evidence does establish periodic behaviour and its consequences throughout the period of cohabitation.
In this matter, I have found that that paternal grandfather pushed the wife in 2015 and the husband assaulted the wife in early 2022. As reprehensible as was that conduct, it does not demonstrate a course of conduct on the part of the husband.
There is also a lack of appropriate evidence from which I could infer that there was a “nexus between the conduct and the relevant contributions” Britt & Britt (2017) FLC 93-764 (“Britt”) at [74].
The wife’s Kennon claim has not been made out.
Evaluation of contributions overall
In his Outline, the husband sought a 10 per cent adjustment in his favour for contributions, and in written submissions, argued:
25. The Initial contributions favour the husband.
26. During cohabitation contributions favour the husband it was his family who provided accommodation and child care during the relationship. This was offset to a degree by the gift that the parties received from the wife’s family towards the purchase of [Suburb E].
27. Post separation the Respondent made the overwhelming parenting contribution however there were aspects of that contribution which were suboptimal for the reasons identified above.
28. Following separation the wife’s extraordinary and sustained interference in the Applicant’s employment are also relevant. The husband left [his company] and a role he enjoyed. The Respondent made his continued employment there unrealistic.
(Husband’s written submissions filed 17 November 2023, paragraphs 25-28)
I have not accepted the husband contributed $80,000 at the start of the relationship. I accept the paternal family provided $100,000 to buy the Suburb K property. I also accept the paternal grandparents provided housing for the parties and the children, but also accept the concession that this was offset to a degree by the $270,000-$350,000 contribution by the maternal family to the Suburb E property. There is also the $50,000 supplied by the maternal grandfather for the Suburb S property. I do not accept the submissions at paragraph 28 above, in so far as it suggested the mother’s conduct caused the husband to move jobs. The husband’s evidence was that he was not meeting his targets. The submissions about post-separation parenting contributions are appropriate. In the meantime, the husband has been meeting the mortgages for the rental properties (and contributing to Suburb E) but also receiving the rental income with the concomitant likely opportunity to negatively gear his affairs if he wanted.
The wife submitted that I would assess contributions as equal, and highlighted:
25. …
(a) The Mother's Family provided $350,000-00, of which $270,000-00 was used as the deposit for the [Suburb E] property. $270,00-00 of this amount is conceded by the Father. The balance is in issue - s79(4)(a). The Mother has not called her father to give evidence on the issue, and it is conceded that a Jones v Dunkel inference is available against her.
(b) The equity in the [Suburb E] property was used as a springboard for the acquisition of further property- s79(4)(a) including a contribution the initial capital of the [Vedastus Family Trust]
(c) The Mother's credit was pledged to enable the purchase of the [Suburb E], [Suburb P], [Suburb M] and [Suburb H] properties - s79(4)(a)
(d) The Mother engaged in employment […] from […] 2009 until […] 2018 and contributed her income to the welfare of the family - s79(4)(a)
(e) The Mother has met most of the mortgage payments of the [Suburb E] property since separation
(f) The Mother has made the following contributions to the welfare of the family - s79(4)(c):-
(i) Primary homemaker and parent prior to separation;
(i) Sole homemaker and parent after separation, including managing [Y's] disabilities
(As per the original)
(Wife’s written submissions filed 4 November 2023, paragraph 25)
As for (a) above, in the overall scheme of things, I do not consider very much turns on whether the sum was $270,000 or $350,00. Either way, it is a valuable contribution. As to (b) I would add that the wife secured $50,000 from her father. The husband accepted (c) to be so, adding words like “she had to” be a party to the mortgages. The husband accepted (d). The wife said she earned about $10,000 a year, which is modest sum, but a financial contribution nevertheless.
As for (e), the mother did not say she met “most” of the mortgage payments; see her affidavit filed 29 August 2022, paragraph 94(b). The husband paid $4,000 a month from separation in 2020 to February 2023. The wife said he did not pay all of the required Suburb E costs, but $4,000 a month for three years is still a valuable contribution. Point (f) is incontrovertible.
Standing back, what I see over this long relationship is a couple working as an economic unit, with each contributing as best they could over the various spheres in which contributions are assessed. Both parties have been blessed to have the financial and in-kind support of their parents. Certainly, the husband earned more money, but the wife pledged her credit when buying various properties. The husband rightly accepted he could not make various property acquisitions without her signature. Post separation the wife has had the overwhelming share of the parenting, including for Y and his special needs. The husband has serviced mortgages but had options to negatively gear if he wished.
In those circumstances, the parties’ various contributions culminate in an overall assessment of equality.
On a pool of $5,814,241, that realises $2,907,120.50 to each party.
SECTION 75(2) FACTORS
No submissions were made for a number of the s 75(2) considerations being subsections (d), (e), (g), (h), (ha), (j), (k), (l), (n), (naa), (p) and (q).
Subsection 75(2)(a) – the age and state of health of each of the parties
The husband is 41 years old and of reasonable health. The wife is 40 years of age and of reasonable health.
Nothing turns on this.
Subsection 75(2)(b) – the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
The wife has income of $776 per week and said she has expenditure of $3,031 (Financial Statement filed 22 September 2023, p.2). Her income is comprised entirely of Government benefits; $380 per week in JobSeeker payments and $396 per week in Family Tax Benefit and carers allowance (Financial Statement filed 22 September 2023, p.3). Despite receiving the means tested JobSeeker payment, the wife has $862,127 in the bank. Since the husband stopped contributing to the costs of and mortgage for Suburb E, the wife has made several modest payments towards the mortgage.
When the wife last worked outside of the home for remuneration, she earned about $10,000 a year at her business. That is about $190 a week.
The husband has income (including rent) of $3,880 per week and said he has expenditure of $9,359. That expenditure figure however included his personal Financial Statement Part N expenses of $600 per week for food just for him, $200 a week in clothing, $100 a week for entertainment/hobbies, $200 a week for holidays, and $70 a week for gifts. The husband pays the mortgages for the investment properties but receives rent from them.
In cross-examination the husband said he met the excess of outgoings over income from savings and sale of shares. In his current employment of three months (at time of trial) the husband said he earned $90,000 a year. In his prior employment, he earned $200,000 to $250,000 per year during 2014 to 2020 (Husband’s affidavit filed 26 September 2023, paragraph 14). It is clear to me the husband has the capacity to earn a considerable income.
The husband also has $6,273.33 in savings and some $420,000 in shares.
The husband’s seemingly stretched financial incomings and outgoings are largely a product of him servicing mortgages for investment properties. That is a choice the parties made when together and a choice maintained by the husband thereafter.
Overall, I conclude the husband’s income earning capacity is superior to the wife’s. This favours the wife.
Subsection 75(2)(c) – whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
The consent orders made on 3 October 2023 provide for the children to live with the wife. On the orders I will make pursuant to these Reasons, the wife will retain the lion’s share of caring responsibilities. This favours the wife.
Subsection 75(2)(f) – the eligibility of either party for a pension, allowance or benefit under any law of the Commonwealth, of a State or Territory or of another country; or any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party
The mother is on JobSeeker and other government benefits. I have already taken income into account under s 75(2)(b) and will not double count it here.
Subsection 75(2)(m) – if either party is cohabiting with another person—the financial circumstances relating to the cohabitation
Neither party is cohabiting with a partner.
The husband lives with the paternal grandparents. The husband does not pay any rent to the paternal grandparents.
Subsection 75(2)(na) – any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
The husband was cross-examined about his lack of child support payments. The wife also directed many of her answers in cross-examination (on parenting) to the husband’s lack of child support payments. I have found the husband paid $4,000 a month for the Suburb E property between separation and early 2023.
Neither parent has made an application under the Child Support (Assessment) Act 1989. I therefore cannot advance this subsection any further.
Subsection 75(2)(o) – any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
The Husband submitted:
21. The Court is not in a position to know the value of the Respondent wife’s property, particularly overseas. In such cases the law is well settled
22. While the parties agreed to a single balance sheet it relates only to known and declared assets and liabilities.
23. The clearest example of the of the Respondent wife’s failure to disclose her true financial position were the many was the massive injections of funds which the Respondent received from overseas whilst still claiming job seeker -a means tested benefit. The wife drawing a nexus between eligibility for job seeker and being a victim of domestic violence was incredible.
24. Counsel for the Respondent...appropriately conceded that the Job seeker payment is means tested.
...
29. The wife’s asserted expenditure in her financial statement of 26 September 2023 sworn 20 September 2023 is consistent with her failure to disclose her offshore income. The respondent asserted her outgoings were $3031 per week and her outgoings $776. The offshore income is not mentioned in her financial statement at all. There is no reference to any financial resource and nor does the document refer to the disposal of any asset. The financial statement of is not a piece of evidence on which the court could place weight other than as amplifying the case that the Respondent cannot be accepted on her affirmation.
30. Where there has been deliberate non-disclosure the court will not be unduly cautious about making findings in favour of the other party. It will often be appropriate to err on the side of generosity: Black & Kellner (1992) FLC 92-287; Weir and Weir (1993) FLC 92-338 and Kannis & Kannis [2002] FamCA 1150; (2002) 172 FLR 464.
(Husband’s written submissions filed 17 November 2023, paragraphs 21–24 and 29‑30)
The wife was not asked many, if any, questions about property overseas. The first submission extracted above proceeded on the basis there was property, but I could not know the value. The husband has failed to persuade me of that first proposition (overseas property). I assume the “off shore income” is a reference to the money received by the wife from her parents who live overseas. A significant portion of the wife’s bank accounts includes money from her parents, thus those amounts find their way into the pool. I am not persuaded the wife has off-shore income, but rather, she has parents who have been generous to her.
The husband has not persuaded me that considerations of the Black and Kellner (1992) FLC 92-287 variety arise.
Evaluation of s 75(2) factors
The wife sought a 15 per cent adjustment in her favour for s 75(2) factors and submitted:
26.It is submitted that the Mother's contribution by way of section 75(2) factors is not less than fifteen per cent, made up as follows:-
(a) The Mother by virtue of her poor abilities in English has a considerably lower capacity for gainful employment than the Applicant- s75(2)(b). It is submitted that an allowance of 5% should be made for this
(b) The Mother has care and control of 2 children of the marriage who have not attained the age of 18 years, including one with disabilities - s75(2)(c). It is submitted that an allowance of not less than 2.5% should be made for [X], having regard to her age, and that an allowance of 5%- 7.5% should be made for [Y], having regard to his autism.
(Wife’s written submissions filed 4 November 2023, paragraph 26)
I do not understand the above issues to be “contributions” as submitted, but s 75(2) factors. I also do not accept I should approach the matter with the specific mathematical attributions as the submissions propose.
The husband said in his 2023 Outline that no s 75(2) adjustment would be made, saying the husband had modest income and the wife “has substantial superannuation from her parents”. However, the agreed joint balance sheet attributed just on $1,500 in superannuation to the wife. I do not accept the submission about superannuation. Instead, I infer the husband refers to the financial generosity of her parents. The husband’s parents have been generous too in allowing the husband to live, and to continue to live rent free at their home. Each party has the benefit of generous parents.
The wife will have the primary care and control of the children, and that includes tending to Y’s special needs. I also found that the husband is in a stronger financial position than the wife. Those factors warrant an adjustment be made in the wife’s favour.
I consider a five per cent adjustment in the wife’s favour is appropriate. Five per cent is $290,712. That 10 per cent differential is $581,424.
Given the size of the pool, I consider that is an appropriate adjustment.
WHAT PROPERTY ORDER IS APPROPRIATE TO ACHIEVE A JUST AND EQUITABLE OUTCOME?
Overall the wife will receive 55 percent of the property pool and the husband 45 percent. That is:
(a)$3,197,833 to the wife; and
(b)$2,616,408 to the husband
I consider that to be just and equitable, and now turn to what orders would be appropriate to achieve that outcome.
As part of her entitlement, the wife sought the Suburb E property and $833,203 from the Trust once the E$1.4 million sale proceeds were paid to it. The husband’s orders were silent on the Trust funds.
Exhibit 5 is said to be the tax calculations relevant to the husband if he received the total Trust distribution. That hearsay calculation is based on so many assumptions (and a higher income of the husband) that the Exhibit is of no use to me. From the cross-examination by the wife’s counsel, I understood that if I gave both the husband and wife a share in the funds, then they would each have tax to pay on it, but could make their own arrangements to do so.
Conversely if I gave the husband the entire proceeds, then the wife would get the benefit of the E$1.4 million increasing the pool, but he alone would service the resulting tax consequences. I consider it just and equitable that the husband and wife share in the benefit but also share in the detriment. I do not know if any interest has accumulated on the money, but on the known proceeds each party will receive $718,287.75 being 50 per cent of the $1,436,575.50 sale proceeds. If interest has been paid, then they will share in that. Each will then share in the detriment of whatever tax consequences flow from this.
Consequently, the outcome of $3,197,833 overall to the wife and $2,616,408 overall to the husband may well be increased by any interest paid on the sum, and/or reduced by the tax each may have to pay on the distribution of 50 per cent of the Trust monies. That is the best I can do. No one presented reliable evidence on what the tax consequences would be to each party or to the husband other than Exhibit 5, which was useless.
It is agreed the wife will keep Suburb E and the mortgage that goes with it. The wife will also retain the following property in her sole name (this is on the basis Suburb E is not sold):

Suburb E property (or such other sum if sold)

$2,300,000

Wife’s bank accounts (set out at the footnote to Item 23 of the joint balance sheet Annexed to the Orders)

$862,127

Superannuation Fund 1

$1,509

50 per cent of Trust distribution (which may be ultimately more if interest has been paid, but with the wife responsible for the tax thereafter on her distribution)

$718,288

Assets sub-total (with the caveats above)

$3,881,924

Suburb E Mortgage (or such other sum if the property is sold)

($605,333)

Wife’s total

$3,276,591

Less cash to husband to equal the wife’s entitlement of $3,197,833

($78,758)

Wife’s total (with the caveats above)

$3,197,833

The wife will need to pay the husband $78,758.
On the basis no property needs to be sold, the husband will receive:

J Street, Suburb K NSW

$1,020,000

L Street, Suburb M NSW

$510,000

N Street, Suburb P NSW

$650,000

G Street, Suburb H NSW

$840,000

Husband’s and joint bank accounts per Items 6 to 10 of the Joint Balance Sheet Annexed to the Orders

$11,258

Husband’s Shares per Items 11 to 20 of the Joint Balance Sheet Annexed to the Orders

$423,578

Motor Vehicle 1

$6,000

Superannuation Fund 2

$109,569

Superannuation Fund 3

$126,639

50 per cent of Trust distribution (which may be ultimately more if interest has been paid, but with the husband responsible for the tax thereafter on his distribution)

$718,288

Assets sub-total (with the caveats above)

$4,415,332

Mortgage on Suburb K

($601,428)

Mortgage on Suburb M

($379,890)

Mortgage on Suburb P

($309,695)

Mortgage on Suburb H

($585,187)

NAB Visa Card

($1,430)

VISA Card

($52)

Plus cash from the wife to equal the husband’s entitlement of $2,616,408

$78,758

Husband total

$2,616,408

No one sought a splitting order with respect to superannuation.
The wife sought orders that mortgages be discharged. I will vary that. It will be a matter for each party whether they discharge their respective mortgages or refinance them to release the other party from the relevant security. In the event the husband cannot discharge or re-finance the mortgages relevant to his properties, then I will allow him to select which of his properties are to be sold to cause the discharge or re-finance of the mortgages over the properties he will retain. For example, if the husband’s ability to discharge or re-finance the mortgages only needed a modest injection of equity, then it would be disproportional to require him to sell all properties.
Ultimately, I do not know if either or both parties will be able to discharge the relevant mortgages or re-finance. Hence, the wife sought orders for the sale of properties in default of discharge or re-finance, but that the selling party keep the nett proceeds relevant to the sold property.
The problem with that is that I am making an order for a 55-45 per cent adjustment. But, if a property/s is to be sold, then that 55-45 adjustment needs to take into account the nett proceeds of any sales of properties. For example, if the wife had to sell Suburb E and did for say, $3,000,000 then on the wife’s orders, she would solely pocket the uplift. If, say, the husband sold a property for less than the agreed value, then on the wife’s orders he would solely bear the loss. That is not just and equitable.
In the event any property needs to be sold, I will make orders for the parties to re-calculate the pool and apply the 55-45 percentage adjustment to the overall pool after taking account of the nett sale proceeds on the sale of any property.
I consider this outcome just and equitable.

I certify that the preceding three hundred and twenty-nine (329) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch.
Associate:
Dated: 13 December 2023

File number:	SYC 4704 of 2020
Judgment of:	BRASCH J
Date of judgment:	13 December 2023
Catchwords:	FAMILY LAW – PARENTING – Where orders made by consent for children to live with the mother and she have sole parental responsibility – Where father guilty of assaulting the mother – Where the children did not spend time with the father for three years post-separation – Where some supervised time thereafter – Where supervised time ordered for a further six months for both children – Where graduating unsupervised time for younger child thereafter – Where older child to spend time according to her wishes following the supervised time. FAMILY LAW – PROPERTY – Where contributions found to be equal – Five per cent adjustment made in the wife’s favour on account of care and control of the children and income disparity.
Legislation:	Child Support (Assessment) Act 1989 (Cth) Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) Pt VII, VIII, VIIIAB ss 4AB, 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA, 64B, 65AA, 65D, 75(2), 79, 79(1), 79(2), 79(4), 114
Cases cited:	Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124 Bevan and Bevan (1995) FLC 92-600; [1993] FamCA 95 Black and Kellner (1992) FLC 92-287; [1992] FamCA 2 Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8 Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27 Cotton & Cotton (1983) FLC 91-330; [1983] FamCA 18 Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154 Dovgan & Dovgan [2021] FamCA 306 Fielding and Nichol [2014] FCWA 77 G and G (2000) FLC 93-043; [2000] FamCA 1075 G & C [2006] FamCA 994 Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Isles& Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78 Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27 Kowalski and Kowalski (1993) FLC 92-342; [1992] FamCA 54 Loddington & Derringford (No 2) [2008] FamCA 925 Maine & Maine (2016) 56 Fam LR 500; [2016] FamCAFC 270 Martell & Martell [2023] FedCFamC1A 71 Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 Perrin & Perrin(No 2) [2018] FamCAFC 122 R & C [1993] FamCA 62 S & S [2005] FamCA 1304 Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52 Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142 W v W (1997) FLC 92-723; [1997] FamCA 3 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division:	Division 1 First Instance
Number of paragraphs:	329
Date of last submissions:	24 November 2023
Date of hearing:	12–13 September 2022 and 3–6 October 2023
Place:	Sydney
Counsel for the Applicant:	Mr Todd (12-13 September 2022) Mr Livingstone (3-6 October 2023)
Solicitor for the Applicant:	Axegal (12-13 September 2022) Mack Lions Lawyers (3-6 October 2023)
Counsel for the Respondent:	Mr Levet
Solicitor for the Respondent:	Mills Oakley Lawyers
Counsel for the Independent Children's Lawyer:	Ms Mahony (12-13 September 2023) Mr Alexander (3-6 October 2023)
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

SYC 4704 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR VEDASTUS Applicant
AND:	MS ALVAR Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BRASCH J
DATE OF ORDER:	13 DECEMBER 2023

Suburb E property (or such other sum if sold)	$2,300,000
Wife’s bank accounts (set out at the footnote to Item 23 of the joint balance sheet Annexed to the Orders)	$862,127
Superannuation Fund 1	$1,509
50 per cent of Trust distribution (which may be ultimately more if interest has been paid, but with the wife responsible for the tax thereafter on her distribution)	$718,288
Assets sub-total (with the caveats above)	$3,881,924
Suburb E Mortgage (or such other sum if the property is sold)	($605,333)
Wife’s total	$3,276,591
Less cash to husband to equal the wife’s entitlement of $3,197,833	($78,758)
Wife’s total (with the caveats above)	$3,197,833