Vehlo & Linehan - [2023] FedCFamC1F 584

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vehlo & Linehan [2023] FedCFamC1F 584

File number(s): MLC 10175 of 2019

Judgment of: MCNAB J

Date of judgment: 20 July 2023

Catchwords: FAMILY LAW – PARENTING – Where the children currently spend fortnightly supervised time with the father – Where the mother seeks for the current arrangement to continue – Where there is a substantial history of family violence – Where the father seeks time which is unsupervised – Where there is substantial expert evidence that the father is a risk to the children – Where the father withdrew from proceedings on the last day of trial.

Legislation:
Australian Passports Act 2005 (Cth)

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
B and B (1993) FLC 92-357

Bant & Clayton [2019] FamCAFC 198

Betros & Betros [2017] FamCAFC 90

Blinko & Blinko [2015] FamCAFC 146

Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5

Germain & Germain [2017] FCCA 1980

Isles & Nelissen [2022] FedCFamC1A 97

Johnson & Page (2007) FLC 93-344

Kennon & Kennon [1997] FamCA 27

M v M (1988) 166 CLR 69

Medlon & Medlon (No 6) (2015) 54 Fam LR 1

R & C [1993] FamCA 62

Slater & Light [2013] FamCAFC 4

Stanford & Stanford (2012) 247 CLR 108

Stott & Holgar [2017] FamCAFC 152

Division: Division 1 First Instance

Number of paragraphs: 251

Date of last submission/s: 28 April 2023

Date of hearing: 31 January 2023 – 3 February 2023; 26 April 2023

Place Melbourne

Counsel for the Applicant Ms S Tatarka

Counsel for the Respondent Mr D Carne

Solicitor for the Respondent Accessible Family Law

Counsel for the Independent Children’s Lawyer Ms I Braun
ORDERS

MLC 10175 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR VEHLO

Applicant

AND:
MS LINEHAN

Respondent

order made by:

MCNAB J

DATE OF ORDER:

20 JULY 2023

THE COURT ORDERS THAT:
1.All previous parenting and property orders be discharged.
2.The mother have sole parental responsibility for the children X born 2012 and Y born 2014 ("the children").
3.The children live with the mother.
4.The children spend time with the father as follows:
(a)Each alternate Sunday from 10.00 am to 2.00 pm with such time to be supervised by the B Support Services (or such other professional supervision service as may be agreed in writing) at the father's expense; and
(b)The father shall be at liberty to reduce the frequency of time that the children spend with him pursuant to paragraph 4(a) of these orders to either monthly (to occur on the first Sunday of each calendar month) or bi-monthly (to occur on first Sunday of each alternate calendar month) provided that he gives the mother no less than fourteen (14) days prior written notice of same in accordance with paragraph 9 of these orders.

5.For the purpose of the time spent pursuant to paragraph 4 of these orders:
(a)The father shall inform the mother in writing, in accordance with paragraph 9 of these orders, no less than seven (7) days prior to each occasion of such time occurring that he intends to facilitate and attend such time; and
(b)In the event that the father fails to facilitate and/or attend the time referred to in paragraph 4 of these orders on more than two (2) consecutive occasions then the mother shall no longer be required to make the children available for such time.

6.All time that the children spend with the father pursuant to paragraph 4 of these orders shall be strictly subject to the children's wishes and the children shall be at liberty to opt out of such time on any occasion with such wish to be conveyed by the mother in accordance with paragraph 9 of these orders.
7.The time the children spend with the father pursuant to paragraph 3 of these orders shall be suspended:
(a)On Mother's Day (noting that the children shall instead spend the equivalent time with the Father on the Saturday of the Mother's Day weekend); and
(b)If the mother intends travelling either in Victoria, interstate or overseas with the children or either of them for a period of 14 days or during the school holidays, then the mother give the father 14 days' notice of such travel and time between the father and children is suspended for the said period.

8.Unless otherwise agreed in writing all changeovers shall occur at the Suburb C Club carpark and shall be effected by the mother or her agent and the supervisor.
9.The parties shall be restrained by injunction from contacting each other directly and all communication between the parties pursuant to these orders shall be in writing between Mr D (on behalf of the mother) and the father.

THE COURT DECLARES THAT:
10.Pursuant to ss 7 and 11 of the Australian Passports Act 2005 (Cth) and the court being satisfied that it is not practicable to obtain the consent of the applicant father to enable the children of the relationship X born 2012 and Y born 2014 to obtain an Australian Passport to travel internationally, the Court makes the following orders:

THE COURT ORDERS THAT:
11.The mother of the children X born 2012 and Y born 2014 be permitted to apply for an Australian Passport to enable the children to travel internationally notwithstanding that the father of the children has not signed the passport application form and furthermore the said children be permitted to travel internationally without the permission of the applicant father.
12.The children's passports be held by the respondent mother for safekeeping.

Information
13.The father shall be at liberty to obtain copies of the children's school reports, newsletters and photographs at his own expense and shall be at liberty to view the children's school Seesaw portal and the mother shall provide all necessary authorisations to the school for this to occur.

Restraints
14.The father is restrained from contacting or communicating with the children's treating medical or allied health practitioner/s.
15.Save for in accordance with paragraph 9 of these orders, the father is restrained from contacting or communicating with any school, extra-curricular or religious organisation in which the children are enrolled/attend.
16.The parties be and are hereby restrained from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other's household or family in the presence or hearing of the children or either of the children or from permitting any other person to do so; and
(b)Discussing these proceedings in the presence or hearing of the children or either of the children or permitting any other person to do so save as reasonably necessary for the mother to explain the effect of these orders to the children.

17.The mother be at liberty to provide a copy of these orders to the following:
(a)Any medical practitioner and/or allied health practitioner (including any mental health practitioner) upon the whom the children may attend from time to time;
(b)The principal of any school that the children attend;
(c)The Department of Families, Fairness and Housing; and
(d)The Magistrates Court of Victoria.

18.Pursuant to Section 64B(2)(g) of the Family Law Act 1975 (Cth) ("the Act") the father be restrained from making any application under Part VII of the Act in relation to X and/or Y without first making an ex-parte application seeking and obtaining leave from a Judge in Division 1 of this court and for that purpose:
(a)The father must file an application setting out the specific orders sought and an affidavit setting out the evidence and reasons for seeking these orders; and
(b)Unless otherwise ordered such application is not to be served on the mother or any other person.

19.The Appointment of the Independent Children's Lawyer be discharged from 9 August 2023.

PROPERTY
20.Within one hundred and twenty (120) days of the date of these orders, the mother shall pay to the father the total sum of one hundred and forty thousand, eight hundred and twenty-five ($140,825) ('the payment') being the sum of $146,675 less the sum of $1,850 fixed and reserved in the mother's favour on 18 November 2019 and less the sum of $4,000 in satisfaction of the costs order made against the father in favour of the mother on 25 March 2021.
21.Contemporaneously with the payment the parties:
(a)Do all acts and things and sign all documents as are necessary to transfer to the mother at the mother's expense all the father's right, title and interest in the property at E Street, Suburb F, Victoria ("the E Street Property") and more particularly described in Certificate of Title Volume … Folio … ('the E Street transfer'); and
(b)The mother shall thereafter indemnify the father against all claims, demands, proceedings and judgments in respect of liability pursuant to any mortgage and all rates, taxes and other outgoings with respect to the E Street Property of whatsoever nature and kind.

DEFAULT SALE
22.If the mother fails to pay the father the payment or part thereof in accordance with paragraph 20 of these orders, the parties shall do all acts and things and sign all necessary documents to effect the sale of the E Street Property ("the default sale") and for that purpose the following shall apply:
(a)The E Street Property shall be listed for sale with such real estate agent as is agreed between the parties and failing agreement within 14 days from the date of the default the real estate agent will be as nominated by the then President or Vice President of the Real Estate Institute of Victoria at the request of the parties or either of them;
(b)The mode of sale, list price and/or reserve price of the E Street Property shall be such as is agreed between the parties and failing agreement within 14 days of the date of the default the mode of sale, list price and/or reserve price will be as nominated by the real estate agent;
(c)The sale price of the E Street Property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 90% of the list price or reserve price shall be accepted by the parties as the sale price;
(d)The parties are to co-operate in every way with the real estate agent in relation to the marketing of the E Street Property for sale including making the key readily available, allowing inspection of the E Street Property at all times reasonably requested by the agent and ensuring that the E Street Property is clean, neat and in good order at the time of inspection by any prospective buyer;
(e)Upon agreement being reached for sale of the E Street Property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the E Street Property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor; and
(f)The proceeds of sale of the E Street Property shall be paid in the following manner and priority:
(i)payment of the costs and commissions of the sale;
(ii)discharge of any mortgage over the E Street Property;
(iii)payment to the father (or such thereof that remains outstanding) together with interest from the date of default at the rate prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); and
(iv)the balance to the mother.

23.Pending the payment or the default sale referred to in Order 20, 21 and 22 herein:
(a)The mother shall have the sole right to occupy the E Street Property and during such right of occupation the mother shall be responsible for all mortgage payments, rates and outgoings of the property as they fall due up to and including the settlement date;
(b)The parties hold their respective interest in the E Street Property upon trust pursuant to these orders; and
(c)Neither party shall encumber the E Street Property without the consent in writing of the other party or any mortgagee save as necessary for the mother to comply with paragraph 20 of these orders.

24.In order to effect the E Street transfer pursuant to paragraph 21(a) of these orders or the default sale pursuant to paragraph 22 of these orders the following shall apply:
(a)Within fourteen (14) days of the date of these Orders the mother's solicitors shall write to the father's solicitors (or, in the event that the Father is no longer legally represented, by prepaid post to the father at G Street, Suburb H, Victoria and also by email to …@... to provide him with a copy of these orders and seek that he appoint a conveyancer or lawyer to act on his behalf in the E Street transfer;
(b)Should the father fail to appoint a conveyancer or lawyer to act on his behalf in relation to the E Street transfer or any default sale of same within fourteen (14) days of such request being made pursuant to the previous sub-paragraph herein then the mother shall be appointed as trustee and be authorised to do all things and sign all documents on behalf of the father to facilitate these orders including but not limited to, where applicable:
(i)client authorization;
(ii)discharge of mortgage documents;
(iii)Transfer of Land documents;
(iv)State Revenue Office documents; and
(v)in the case of a default sale, the Section 32 statement, contract of sale and other documents required to effect the sale;

(c)The production of a sealed copy of these orders shall constitute all necessary authorisation for the mother to act pursuant to paragraph 22(b) of these orders.

25.Within twenty-eight (28) days of the date of these orders the parties do all things and sign all necessary documents to transfer to the father at the father's expense Motor Vehicle 1 registration number ….
26.The father retain his interest and associated liabilities in the following real properties:
(i)J Street, Suburb K, Victoria;
(ii)L Street, Suburb M, Victoria; and
(iii)G Street, Suburb H, Victoria.

27.The father retain the following assets to the exclusion of the mother:
(a)All savings in his bank accounts, including the funds held in the CBA Offset Account …17 together with the benefit of all funds applied by the Father toward his legal fees taken from that offset account;
(b)All of his superannuation entitlements;
(c)The Motor Vehicle 1 referred to in paragraph 23 of these orders; and
(d)All personal items and property otherwise in his possession.

28.The mother shall retain the following assets to the exclusion of the father:
(a)All savings in her bank accounts;
(b)Her motor vehicle;
(c)All of her superannuation entitlements;
(d)All of the chattels in the E Street Property; and
(e)All personal items and property otherwise in her possession.

Registrar to Sign
29.That:
(a)Each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of this order within fourteen (14) days of being requested to do so; and
(b)If either party refuses or neglects to sign or execute and return a document within fourteen (14) days of a written request to do so then the Registrar of the Melbourne Registry of the Federal Circuit and Family Court of Australia is hereby appointed under Section 106A of the Family Law Act 1975 (Cth) to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.

COSTS
30.That the mother file and serve a schedule of party/party costs claimed within 14 days of the date of this order.
31.That within 14 days of being served the father to respond to the mother's Schedule of Costs claimed.
32.That the court will determine the quantum party/party costs on the papers in chambers.
33.The father pay 60% of the mother's party/party costs as determined by the court.

OMNIBUS
34.Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these orders;
(b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears, any joint account shall be divided equally;
(c)Each party hereby foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these orders;
(d)All insurance policies are to become the sole property of the owner named hereon;
(e)Each party be solely liable for and indemnify the other against any liability in their sole name including any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(f)Any joint tenancy of the father and mother in any real or personal estate is hereby expressly severed.

AND THE COURT NOTES THAT:
A.Counsel for the Independent Children's Lawyer has agreed to meet with the children by 9 August 2023 for the purpose of explaining these orders and the mother shall do all things necessary to facilitate that occurring in a timely manner.
B.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the annexure and these particulars are included in these Orders.
C.Pursuant to Section 81 of the Family Law Act 1975 (Cth) the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

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

This matter is a parenting and property application filed by the applicant father, Mr Vehlo ("the father") on 6 September 2019. The respondent mother in this matter is Ms Linehan ("the mother"). The children in this matter are X, born 2012, and Y born 2014 (collectively "the children").
BRIEF BACKGROUND
The parties commenced cohabitation in 2007, married in 2009 and separated in December 2016.
The trial in this proceeding commenced on 30 January 2023 and ran until 3 February 2023 at which time the matter was adjourned part-heard to 26 April 2023. During the hearing each party and the ICL were represented by counsel.

On 25 April 2023 (being a public holiday) counsel for the father informed the court by email, copying in the mother's representatives and the ICL, that the father had instructed him that he no longer wished to take part in the proceeding and would not be seeking to be heard in relation to any of the orders to be made in the proceeding as to parenting or property.
The father then sent another email to the court at 6.59 pm on 25 April 2023 which reiterated that he had withdrawn from the proceeding and wished to make no submissions. That email was highly critical of the mother, Ms N the Family Report Writer, counsel for the mother and the Court.[1]
[1]Exhibit ICL 1.
Counsel for the father appeared as a matter of courtesy to the court on 26 April 2023 and sought leave for himself and his instructing solicitor to withdraw - which leave was granted. In circumstances where the father had clearly stated that he had withdrawn from the proceeding, the trial proceeded with Ms N, the Family Report Writer, giving evidence. Ms N had been copied into the father's email to the court of 25 April 2023 and had been addressed in that email. The terms of the father's email to the court sheds considerable light in relation to his behaviour through the relationship with the mother and the children and his conduct during this litigation. The email is written in circumstances where he appears to be emotionally disordered.[2] The following day he then wrote an email expressing his apologies for writing that email. That email relevantly states:
Dear all
I apologise for my email below.
I'm upset and it feels like have [sic] lost everything. I'm disappointed the court process was unable to help the children & I.[3]
[2]Exhibit ICL 1
[3]Exhibit ICL 2
Further background information is provided in Annexure 1 by way of a chronology in full.
The children are currently living with the mother and spending supervised time with the father each alternate Sunday for a period of up to four hours according to orders made on 25 March 2021 and confirmed in orders made on 22 October 2021. The mother is currently working 70% of full time hours as an educator in regional Victoria, and earns $86,000 per annum. She is living in rental accommodation with the children. The mother has three adult children of a previous relationship. Mr O born in 2000 aged 23 years, Ms P born in 2002, aged 21 years and Mr Q born in 2003 aged 20 years. Ms P is subject to disabilities and remains in the care of the mother. At [34] of her trial affidavit, the mother details Ms P's conditions noting that: "… [she] requires assistance with all aspects of her life and will require lifelong high-level care. [Ms P] suffers [from multiple conditions] and has an IQ of 61."
The father is employed as a health professional and was earning $186,931 per annum. His current declared earnings per annum as at 30 January 2023 are $125,000. He has re-partnered and lives in a property purchased with his partner in Suburb H.[4]
[4]Applicant’s Outline of Case filed 30 January 2023 at page 12 of 14.
The current spend time arrangements were fixed by orders made on 25 March 2021 and confirmed in orders made on 22 October 2021. Those orders were made against the background of the significant allegations of family violence committed by the father. According to the orders each of the children has been spending supervised time with the father; the daughter, Y has attended these times without complaint. The child X has at times been resistant to spending time with the father, the father blames the child's resistance on the mother.
In affidavits filed in the proceeding, the father has been unrelentingly critical of the mother. The mother has made allegations that the father has perpetrated significant family violence over an extended period and has continued to do so including by the way that he has conducted himself over the course of this proceeding.
For the reasons that are set out below I have formed the view that the best interests of the children are served by making orders in relation to spend time arrangements largely as proposed by the mother and supported by the ICL being that the father spend time with the children in a supervised setting. I do find that the father has engaged in serious family violence over a considerable period of time which has involved the children and I have no confidence in his capacity to contain himself or in his partner being able to manage his behaviour so as to ensure the safety of the children whilst they are in his care. This is a serious finding to make, particularly having regard to the fact that the father is a health professional. However, the evidence in this case is such that those orders are in the best interests of the children.
The Father's Proposals
In relation to parenting, the father filed an Amended Initiating Application on 31 December 2022, in which the father is seeking equal shared parental responsibility for the children. He is seeking shared time with the children six nights per fortnight and half of the school holidays. In relation to property, the father is seeking a 60%/40% division of the matrimonial asset pool in favour of the mother.
The father is also seeking an order that the mother undergo anger management treatment and assessment by a qualified psychologist. He also seeks specific restrictions against the mother in relation to:
(1)Denigrating the father in the presence and/or hearing of the children (or either of them) or allowing anyone else to do so.
(2)Physically disciplining the children or either of them or allowing anyone else to do so.
(3)Inciting other persons to act aggressively or to act in a derogatory manner towards the children, the father or any of his family or agents.
(4)Using profanity in front of the children or either of them or allowing anyone else to do so.
(5)Exposing the children to firearms, bullets, explosives or other firearms paraphernalia including, but not being limited, to printed material indicating the death of humans or animals suffering from use of firearms.
(6)Exposing the children to alcohol and/or alcohol affected persons.
The Mother's Proposals
The mother is seeking sole parental responsibility for the children and states that the presumption in s 61DA(1) of the Family Law Act 1975 ("the Act") is rebutted by the significant history of family violence. She is seeking for the children to live with her, and spend supervised time with the father each Sunday from 12.00 pm - 4.00 pm, and the children to have discretion not to attend supervised time. She acknowledges that orders for indefinite supervision are difficult, but she submits they are appropriate in this case given the nature of the risk, which is discussed in detail below. These orders are in line with the recommendations of the Family Report Writer, Dr N, in her updated report.
The ICL supported the parenting orders sought by the mother.
In relation to property, the mother is seeking a division of matrimonial assets 65%/35% in her favour. She is seeking this division be effected through her maintaining possession of the family home and a cash payment of $80,000 in lieu of a superannuation splitting order and says this represents a 25% discount on what would follow if a splitting order was made.[5]
[5]Respondent’s Closing Submissions at [43] – [44].
The father relied on the following documents:
(1)Amended Final Application filed 24 January 2023
(2)Financial Statement filed 30 December 2022
(3)Affidavit in reply filed 24 January 2023
(4)Affidavit of applicant filed 30 December 2022
(5)Affidavit of Ms R filed 29 December 2022
(6)Affidavit of Mr S filed 27 December 2022
(7)Affidavit of Dr T filed 30 December 2022
The mother relied on the following documents:
(1)Outline of Case filed 24 January 2023
(2)Amended Response filed 9 January 2023
(3)Financial Statement filed 9 January 2023
(4)Affidavit of respondent filed 9 January 2023
(5)Family Report of Dr N filed 6 September 2021
(6)Family Report of Dr N filed 26 September 2022
(7)Affidavit of Dr U filed 4 October 2021
(8)Affidavit of Mr V filed 21 December 2021
(9)Affidavit of Ms W filed 5 October 2022
(10)Affidavit of Ms Z filed 25 January 2023
(11)DFFH Report filed 14 November 2019.
The issues in dispute are as follows:
(1)The allocation of parental responsibility and whether the presumption of equal shared parental responsibility being in the children's best interests is rebutted in this case;
(2)What living arrangements are in the children's best interests;
(3)Whether the children are at risk of harm in the care of the father, and if so, what conditions are required to reduce the risk of harm;
(4)Whether the father's partner is an appropriate person to supervise time with the children and the father; and
(5)What division of the matrimonial asset pool is just and equitable.
THE FATHER'S EVIDENCE
This proceeding, in which Mr Vehlo is the applicant, has been on foot for more than three and a half years. Allegations of family violence said to have been perpetrated by the father are central to this proceeding, the father's evidence in his affidavits and in the witness box focused on portraying the mother as the instigator of that family violence. Mr Vehlo, by his evidence in chief[6] and in reply asserts the following (using his own words):
[6]Including but not limited to the Applicant’s affidavit in response filed 24 January 2023 which was affirmed one week prior to the commencement of the final hearing in this matter at pages 28-87 of the Applicant Court Book (“ACB”).
(a)Ms Linehan was the instigator of the aggression between the two parties;[7]
[7]Applicant’s trial affidavit filed on 31 December 2022 at [11], ACB page 91 of 253. See also the applicant’s response affidavit filed 24 January 2023 at [3] – [4], ACB page 30 of 253.
(b)Ms Linehan undermines and does not genuinely support his involvement in the children's lives;[8]
[8]Applicant’s trial affidavit filed 31 December 2022 at [12], ACB page 91 of 253.
(c)His aggressive and violent behaviours toward Ms Linehan and/or her elder sons, including such behaviours in the presence of X and/or Y, were in response to Ms Linehan and the older siblings disrespecting him as a father figure;[9]
[9]Applicant’s trial affidavit filed 31 December 2022 at [13], ACB page 91 of 253.
(d)There is an "onslaught" of Ms Linehan's older children and her extended family influencing X and Y to turn away from Mr Vehlo;[10]
(e)Ms Linehan is determined that the children carry her fury and hatred towards Mr Vehlo;[11]
(f)Ms Linehan is "white-anting" the children's time with Mr Vehlo;[12]
(g)Since access to the children resumed in December 2020, after Mr Vehlo had not been able to spend time with the children since July 2019, Ms Linehan has reignited X's "despair";[13]
(h)Ms Linehan is "grooming the children to not expect or ask for too much" in relation to Mr Vehlo;[14]
(i)Ms Linehan ignores how controlling she is … [sees] herself as righteous and well‑meaning … [and] is unable to acknowledge her intrusive behaviours";[15]
(j)Ms Linehan "resents [his] life progressing and is fixated on proving his blame for [the] marriage ending";[16]
(k)Ms Linehan is "probing and quizzing the children to find fault" in him;[17]
(l)The children are "perceptive to [Ms Linehan's] blame" (of Mr Vehlo) and are aware that if they do not acquiesce, their mother will withdraw from them;[18]
(m)X's fear and wanting to co-sleep with Ms Linehan "is a direct manifestation of [Ms Linehan] involving X in [the parents'] conflict and denigrating and blaming" Mr Vehlo. Ms Linehan "is helping create anxiety" in X.[19]
[10]Applicant’s trial affidavit filed 31 December 2022 at [14], ACB page 92 of 253.
[11]Applicant’s trial affidavit filed 31 December 2022 at [15], ACB page 92 of 253.
[12]Applicant’s trial affidavit filed 31 December 2022 at [19], ACB page 92 of 253.
[13]Applicant’s trial affidavit filed 31 December 2022 at [22], ACB page 92 of 253.
[14]Applicant’s trial affidavit filed 31 December 2022 at [139], ACB page 118 of 253.
[15]Applicant’s trial affidavit filed 31 December 2022 at [141 f.], ACB page 120 of 253.
[16]Applicant’s trial affidavit filed 31 December 2022 at [235], ACB page 139 of 253.
[17]Applicant’s trial affidavit filed 31 December 2022 at [299], ACB page 151 of 253.
[18]Applicant’s trial affidavit filed 31 December 2022 at [308], ACB page 153 of 253.
[19]Applicant’s trial affidavit filed 31 December 2022 at [311], ACB page 154 of 253.
The father's case focuses around the mother allegedly attempting to align the children with her to prevent him from having a relationship with the children. The father is of the belief that the children are suffering and unhappy, and his relationship with them is the worst it has ever been; and he blames the mother and her family for this. The following examples from his trial affidavit filed 31 December 2022 demonstrate the tone and content of much of his lengthy trial affidavit:
13. [X] is surrounded by his step-siblings [Mr Q], [Ms P] and [Mr O] who have been involved in denigrating me, with the tacit support and at times encouragement of their mother….
14.I am now facing losing [X] and [Y] with the onslaught of the older siblings and [Ms Linehan's] family influencing the children to turn away from me. …
15. I can see no other explanation for the children's mother's behaviour apart from her being determined that they carry her fury and hatred towards me. They are being taught by her subjugation of their joy, creativity and openness while with me. They are being taught to align with her and her family's outlook. The children are acquiescing to their mother's, her family's and their older siblings [sic] outlook, that I am undeserving as a father and being taught it is wrong to share joy and happiness and love with me.
16. [X] and [Y] are surrounded by negative attitudes towards me. [Ms Linehan's] family have put me down, insulted me and opposed me, dating back to before separation in 2016. They are often in the lives of [X] and [Y]. [Ms Linehan's] siblings and their children - cousins to [X] and [Y], live or mostly live in [the Town BB] area where [Ms Linehan] lives.
I also refer to his affidavit in reply filed 24 January 2023:
3.As previously stated in my trial affidavit filed herein I highlight my concerns about the fact that [Ms Linehan] admitted to Child Protection in […] 2019 that she had been violent to me in front of the children, that I was not the only perpetrator of this in front of the children. She has since, at no time, admitted this further or shown any evidence that she has addressed her capacity to do this, the causes behind it or any reports as to how she has addressed this, other than claim to Child Protection that she was supposedly acting protectively for herself and towards the children. As stated I am especially concerned about [X], the influence of his mother, the step-siblings and her family on him and in relation to [Y] about me being a father to them and spending as much time as possible in their lives.
4. Early observations of supervised time with the children in comparison to what is happening now with [X] I believe indicates that he is being seriously influenced by his mother and the surrounding stepchildren and the extended family. I understand that [X] may have some memories of aggression and violence that occurred in the relationship, but as I have set out in my trial affidavit I was not the aggressor and was responding to the aggression of [Ms Linehan]. I take responsibility for my actions and any impact upon the children and deeply regret any behaviour that has affected them. I am trying to understand why [X's] reluctance to spend time with me has escalated to the point where he is indicating that he does not want to spend time with me.
The father maintained the position that the mother was the main aggressor in the relationship in the witness box. When passages of his affidavit were read to the father, and he was asked whether it was true that his case was that the mother was the main aggressor, and that she is turning his children against him, his response was to state that "polarising language is not good for the children", notwithstanding that his own affidavit was being read to him. He seemed to attempt to distance himself from his own evidence about the mother.
The father was asked about his proposal for equal shared parental responsibility in the context of the high level of conflict between himself and the mother. He maintains that it is in the best interests of the children for the parents to have shared parental responsibility, but when asked about how it would work in a practical sense, he was unable to provide a response. He spoke in a general sense about how it was his hope that they would be able to make joint decisions, but acknowledged their current capacity to do so is non-existent.
The father is seeking shared time with the mother, with the children to spend six nights per fortnight with him and the remainder with the mother. In the context of the children spending four hours per fortnight with him in a supervised setting, the father was asked how he would implement such an arrangement and how the children would cope. He acknowledged that this would be a significant change and would likely require a gradual increase over time.
Family Violence and the Father's Mental Health
The mother gave evidence that the father has exposed herself and the children to family violence and erratic behaviour. She gave evidence that the father's behaviour began deteriorating from the birth of X in 2012, with a major deterioration in 2016 following the death of his mother. She gave evidence that this coincided with "dark moods, angry outbursts, and emotional violence… with occasions of significant property damage, aggressive behaviour and some minor assaults" of the children[20].
[20]Dr N, Family Report Writer, Family Report dated 6 September 2021 at [5], Respondent Court Book (“RCB”), page 283 of 591.
The father describes these incidents as occurring in the context of the mother being the aggressor by "undermining [his] role and belittling" him.[21] In his Notice of Risk filed 6 September 2019, he alleged that she had been physically and verbally aggressive towards him in the presence of the children[22] and that she had allowed the mother's family to show the children "images of children with guns and injured animals".[23]
[21]Applicant’s trial affidavit filed 31 December 2022 at [308], ACB page 153 of 253.
[22]Applicant’s Notice of Risk filed 6 September 2019.
[23]Applicant’s Notice of Risk filed 6 September 2019 at page 6 of 7, point 2.
The father repeatedly describes the mother as damaging his relationship with the children. At [37] of the Family Report, Dr N summarises:
[Mr Vehlo] added, "I've tried so hard to take responsibility for what I did. I can't… [Ms Linehan] has said in front of the kids, "I'll make sure there's no one sitting in the front row at your funeral." He then went off on a tangent. When brought back, he clarified that he felt [Ms Linehan] had "expunged" the good memories of him from the children's minds and not allowed him an opportunity to repair those relationships. He described [Ms Linehan] as unable to forgive and that nothing he could do could change the "monster perception." [Mr Vehlo] said, "My ability to repair and take ownership has been taken from me." [24]
[24]Dr N, Family Report Writer, Family Report dated 6 September 2021 at [37], RCB page 292 of 591.
The mother gave extensive evidence about the family violence she experienced in the relationship.

At [38] of her trial affidavit, the mother gave a history of IVO proceedings in this matter, which the father largely denies, as follows:
a)[In mid] 2016, a full exclusionary IVO was obtained by Victoria Police in relation to a family violence incident at the family home. The IVO named me and my five children as protected persons. A day later […] I retracted my statement given to Victoria Police and sought that a limited IVO instead be made. A limited IVO was made by consent and remained in place until [mid] 2017.
b)[In mid] 2019, another full exclusionary IVO was obtained by Victoria Police in response to another family violence incident that took place at the family home. A Final IVO was made by consent [in late] 2019 and expired [in late] 2020.
c)[In mid] 2019 [Mr Vehlo] applied for an IVO against me. An Interim IVO was made by the Court. [In late] 2019 [Mr Vehlo] withdrew his application.
d)[In early] 2021, I applied for and obtained a full exclusionary Interim IVO against [Mr Vehlo] in response to him moving into a house 400 metres down the road from my home in [Town BB].
e)[In early] 2021, [Mr Vehlo] applied for an IVO against me, my parents, my sister [Ms CC] and my brother [Mr EE]. [Mr Vehlo] was granted an Interim IVO against me and my sister [Ms CC]. [In late] 2021, [Mr Vehlo] withdrew his application against my family members, but has continued to pursue his IVO application against me.[25]
[25]Applicant’s trial affidavit at [38], RCB page 53 of 591.
In his affidavit in response, in response to [38] of the mother's affidavit, the father criticises the mother for her "denial of her contribution to the aggression and violence in the relationship".[26]
[26]Applicant’s affidavit in response filed 24 January 2023 at [37], ACB page 49 of 253.
At [39] and at [55] - [70] she details the incidents leading up to IVOs being issued and significant incidents of family violence (which the father largely denies or for which he blames the mother) including:
(a)The "Laptop Incident" in April 2016, in which the father took the son's laptop and smashed it on the ground. The father was locked out of the house, and then broke in through climbing onto the roof and through the attic. He then took the other child's iPad and smashed it. The mother admits that she then threw the father's laptop at him, saying "break your own", which she regrets. She and the children then left, staying with her sister for a few days;
(b)The "Headbutt Incident" in mid-2016 during which the father came to the family home and an argument ensued, and the father threw a bowl of pasta against the ceiling, then when the mother tried to get him to leave, he "goaded" her into strangling him, and he then head-butted her, resulting in a bloody nose. He then picked up a weapon and pointed it at himself. The mother then barricaded herself and the children in the basement and called the police. As a result, the father was charged on two counts and an IVO was taken out. The mother gave evidence that she felt pressured by the father to withdraw her statement since any criminal charges would affect his career as a health professional. In mid-2016, she submitted a statement to the police taking responsibility for the incident and criminal charges against the father were dropped. She gave evidence that the statement she made in mid-2016 is not true in that she did not consume alcohol, nor did she mock or laugh at the father ;[27]
(c)The "[Instrument] Incident" in mid-2019, in which the father forced his way into the family home, physically assaulted the mother and smashed the gate. The mother says the father forced his way through the front gate despite her attempts to stop him, and that he then grabbed and shoved her down several steps. The children were present during this incident, and she said they were visibly frightened. As she gathered the children to go to the police station, the father had come back to fix the front gate. The mother asked him to leave and he refused. The mother called the police and they issued an IVO. The mother declined to make a statement to police as she did not want criminal charges laid. It was submitted by the mother that this incident is noteworthy as X has nightmares about this incident and refers to it.
(d)The mother gave evidence that the whole family (including the older children) went on holiday to Country DD in late 2016. She described the father's moods as dark and with him become unreasonably frustrated with normal things such as queuing. The mother described the effect of the father throwing a tantrum and leaving the mother in the care of five children.
(e)The "Sledgehammer Incident" in December 2016 where the father flipped the kitchen table over, then when the mother and children righted the table, the father flipped it again, then grabbed the table, dragged it into the courtyard of the home and smashed it to pieces with a sledgehammer. After being shut out of the house, he broke in via the roof through the attic, and all the children hid. The father found them hiding and tried to take the child's phone, which had recorded him destroying the table with the sledgehammer. The neighbour heard the yelling, came over and removed the father. The mother did not inform the police. The mother describes that she and the children were terrified by this incident.
[27]Mother’s trial affidavit at [39](a)(v), RCB 55 of 501.
Following the sledgehammer incident, the father left the family home although he would return to have dinner on occasions for dinner or to speak the mother. The mother describes this as a period where she was actively working with the father to save the marriage. She gave evidence that around December 2017 - January 2018 things started to improve and the father returned to the family home to live in the basement with the view to him becoming reintegrated into the family.[28] Unfortunately, things did not proceed well and the mother describes in detail an incident in January 2017 where the father exposed himself to the wife and children, assaulted the older boys and tried to pull their pants down leading to an altercation involving the younger children. The incident as described is frightening and would have been terrifying for all the children.[29] I do not accept the comments of the father and those of Dr T that the father was "playing the fool" by pulling his pants down and behaving as described. The conduct may not have been sexual but it was a show of power by the father.
[28]Respondent’s trial affidavit at [61], RCB page 65 of 591.
[29]Respondent’s trial affidavit at [63], RCB page 66 of 591.
The mother details an incident in early 2021 as she and the children were moving to Town BB, the father sent an email to the mother saying he was moving to Town BB as well. This was in circumstances where the previous IVO had expired a month earlier. The mother immediately applied for an interim IVO.[30]
[30]Respondent’s trial affidavit at [112], RCB page s77-78 of 591.
In early 2021, the father took out IVOs against the mother and all of her immediate family, including her parents, brother and sister. They had had no contact with the father since May 2018. The interim IVO meant the mother was prevented from accessing the main street of Town BB and was no longer able to take the children to school via the fastest route. The application against her family was withdrawn in late 2021. The interim IVO against the mother remained listed for early 2023.
The father disagreed with the majority of the mother's accounts of these incidents. His evidence follows a pattern of giving detail about the events leading up to the family violence, and submitting that he was provoked and undermined by the mother and children, and he "lost control". He often describes the mother "mocking" or "strangling" him and him reacting. He gave evidence that many of the incidents the mother describes in her evidence are recent fabrications which he believes she has added to support her case, and that many of the accounts of incidents which he agrees occurred have been embellished and exaggerated over the years so that her accounts are inconsistent.
The father provides his own account of many of the incidents described by the mother in her affidavit and he was cross-examined about these events:
(a)The "[Instrument] Incident"- the father sets out the incident at [48] of his trial affidavit:
[In mid] 2019, I texted [Ms Linehan] that I was attending the family home at [E Street], [Suburb F] to collect [Y's musical instrument] - this was after 5 or so times during the week prior I requested her to provide it to me. [Y] was looking forward to playing the [instrument], she'd chosen it. [Ms Linehan] refused to get it for me and walked away, slamming the gate so hard that it smashed. When I went through the gate into the back yard to get the [instrument], [Ms Linehan] and [Mr O] physically launched at me and began attacking me. I managed to move away and [Ms Linehan] launched at me again. I then spent time repairing the gate, worried that it undermined the security of the residence. I also asked [Ms Linehan] to assist me with the repair for the sake of the children seeing that, despite the incident, both parents were able to work together to resolve the dispute. While I was doing the repair, [Mr O] swore at me recurrently and gave me the finger in front of the younger children when I asked him to turn on the light. The little kids saw this. I went to leave after fixing the gate, but [Ms Linehan] had taken my car keys. When I asked for my keys [Mr O] gave me the finger again.
(b)The "Headbutt Incident" - the father gives his account of this incident at [31] of his affidavit:
In [mid] 2016, [Ms Linehan] involved the police in an action against me. After she had been drinking, we had an argument. [Ms Linehan] attacked me and strangled me at length. She also recurrently punched me. [Ms Linehan] made a police report admitting she was intoxicated, also, that she had been belittling and ridiculing and undermining me. Also that she had been punching and strangling me. She claims that I head-butted her but she attacked me. I did not deliberately head-butt [Ms Linehan], - I would never do this - and her police statement goes some way to clarify this - we both bent down at the same time and clashed heads. [Ms Linehan] made a point to single out this issue when we next saw each other in court when she told me repetitively she knew I would never head-butt her. She acknowledged her own violence, something she now avoids. The children were in bed at the time. After 6 months and about 8 court appearances, the charges were dropped.
In his affidavit in reply, in response to the mother setting out her version of the incident, the father provides a five-day timeline, in which he depicts the mother as ridiculing him repeatedly. He does not mention the head-butt.
In relation to the "sledgehammer incident" - he states at [34] of his affidavit:
We finally separated in mid-December 2016. Over the two months prior, I had requested that we have a family Christmas at home, rather than a Christmas with her family and staying for a prolonged period with them, and only having a small hot cabin. On 11 December 2016, [Ms Linehan] humiliated me, told the kids to ignore me and told me to get out several times, whilst I was trying to do family washing. I recurrently told her I didn't want to leave. I was called pathetic and childish, and out of frustration I regret that I took the table outside and smashed it. I then left to stay at my late mother's home in the same street. Unfortunately, I was not to be with my children that Christmas as [Ms Linehan] took them to be with her extended family in [Town AA]. I did not see my children for six weeks.
I accept the mother's accounts of these events. She was cross-examined about them and gave credible responses. Her evidence about these matters has been consistent.
The mother annexes to her trial affidavit numerous text messages between the parties. These text messages demonstrate the mother attempting to reach out to the father and arrange for him to see the children, and expressing concerns about the father's health. The father's responses are largely abusive. Counsel in cross-examination referred to a few examples which demonstrate the tone of the bundle of communications:
26 April 2017
Mother: I would like to work with you to organise care between us for the kids - all of them, they all need you.
I want to be able to work with you.
I said I needed time - I don't know if I can get over my hurt.
I am willing to talk tonight at 6.30 if you are able to.
Please text me if you would like the kids before then.
Father: Fuck you for spoiling my time.[31]
[31]RCB at page 113 of 591.
2 May 2017
Mother: I am sorry we are not able to organise things ahead. Today [X] has second hep injections so I'm getting him early from school. I am happy to bring him after.
He has swimming lessons at 4.30, he likes to swim held your [sic] before and play, practice.
Also just reminding about his parent teacher conference tomorrow night and [Mr Q’s] music performance afterwards. I hope we can manage this. I would like to be in [sic] the same page with you for them.
You're also welcome to come to the injection and help with them.
Father: I'm not interested in your scraps.
I'm taking him to school tomorrow.
Mother: I'm trying to organise a schedule. With your input too. So the kids know what to expect. I hope we can agree without the use of lawyers for good times for all kids and us. I'm open to working well with you.
Father: You don't get to decide when and if I'm good enough. You've made your decision. Fuck off.
14 September 2017
Mother: It's not for me [Mr Vehlo].
I'm so sorry you're hurt. [X] is hitting at school, he is working with an educational aid and I didn't know that.
I want him to see you.
He needs you. I hope you will be open.
[…] seeing him first thing.
Father: You fucking bitch, you fucking monster bitch. I hate you so much, you self righteous condescending bitch
Fuck you, they are all yours now, fuck you, fuck you.
These communications were raised in cross-examination. The father sought to avoid addressing these messages on the basis that they were focussing on negative things. He also gave evidence that he was responding to the wife as she was the instigator and as bad as he was. The father produced no evidence of the mother addressing him abusively in writing.
The mother annexes to her trial affidavit emails between the parties from 2020 relating to attempts to negotiate a parenting plan. On 25 January 2020, the father sent an email response including the "nonnegotiable [sic] proposition" that the mother sign a letter that he prepared on her behalf, which he would then forward to Child Protection 'correcting' her errors (the "Confession Letter").[32] The letter, which is purported to be written by the mother but was in fact written by the father, includes the following:
The key inaccuracies follow & relate to 5 areas, I will summarise each, then provide more details. They relate to my behaviour which I have hidden successfully, and which I have avoided sharing. I provide this letter to give accuracy & balance. For the last year, my focus, at the expense of the 5 children's wellbeing, has become a fixation on creating an image of [Mr Vehlo's] behaviour as being poor.
•Physical Violence. In relation to the physical violence between [Mr Vehlo] & I during the years since May 2016, I have described my behaviour as being one of reacting to [Mr Vehlo] & of protecting the children. This is incorrect. The opposite is true. I have been the one to instigate physical violence between us. On every occasion, I have attacked [Mr Vehlo] physically. He has not responded with physical violence. On the contrary, in the lead up he has often tried to avoid escalation. On many occasions, I have allowed both of our older sons to imitate me & also be violent towards [Mr Vehlo]
•Verbal denigration. In relation to verbal denigration between [Mr Vehlo] & I in front of the children, during the years since May 2016, I have made allegations that [Mr Vehlo] has denigrated me verbally in front of them. This is incorrect. I have no evidence that he has done this & as far as I am aware he has never done that. On the contrary, I have repeatedly denigrated him in front of the children. I have done this numerous times always in front of the children. I have involved all the children in exposure in many formats to my denigration of him. There have been occasions I have also allowed my extended family to denigrate him in front of our children.
•Undermining [Mr Vehlo's] time with the children since late 2018. Since late 2018, I have made a concerted effort to reduce the time our 2 youngest children spend with their father. Until the July 2019 intervention order, our 2 youngest children had regularly been with [Mr Vehlo] 6 out of 14 nights ([around] 40% of the time). I persistently applied pressure on him to have the children less, CP incorrectly state [Mr Vehlo] has demanded to have more regular time with the children. This is incorrect & has never occurred. I made it difficult for our 2 youngest children to adapt to their routine with him. I was not flexible to virtually all of [Mr Vehlo's] requests regarding the children. I dismissed [Mr Vehlo's] advocacy as a parent for the children. I placed pressure on him in many interactions & was unyielding. I blamed him repeatedly & involved all the children. Since 2018, I have notified [Mr Vehlo] to CP numerous times & also contacted the police about him 4 times. I understand [Mr Vehlo] has had no interaction with CP at all until soon after the events [in mid] 2019.
•Inappropriately stating [Mr Vehlo] is mentally unwell. My marked escalation in involvement of CP & the police has occurred since late 2018 & I have repetitively involved the police & CP, & I have described [Mr Vehlo] as "mentally unwell" including in the IVO. There is no evidence of this. The involved psychiatrist also confirmed there is no evidence of mental illness over that period. The psychiatrist who is also a specialised psychotherapist in family relationships, has assisted [Mr Vehlo] & I together & separately since early 2016. By my actions, I have caused [Mr Vehlo] great distress over that period, & managed to convey to CP a very poor & incorrect image of [Mr Vehlo's] mental health. I have included the children in this. The young children now raise with [Mr Vehlo] my telling them that he is sick. Myself & my family have in the past, used [Mr Vehlo's] mental wellbeing as a point of blame & weakness. I have also avoided raising my own mental health problems & medications & dismissed [Mr Vehlo's] efforts in self-care & his attempts addressing our joint problems.
•Hunting & shooting fanaticism. I have conveyed my extended family's behaviour in relation to hunting as a hobby & appropriate. This is incorrect. They are fanatics in this regard. The dismissal of most other subjects means it is very difficult for the young in my extended family to develop without assuming the same position, there is a clear expectation that the most important attainment as they grow, is to obtain a shooting license & take up the cause of the right to hunt & shoot. This has been particularly so for [Mr O], [Mr Q] & now [X] as I have excluded their father, [Mr Vehlo], dismissed & not supported [Mr Vehlo's] values & heavily emphasised contact with my own father & brother's values. My father & my brother & now nephews & sons fixate on this subject. The children for a prolonged period, have been exposed to the creation of an extreme argument of the right to hunt & shoot, also, verbal & written details of political lobbying regarding the subject. [Mr Vehlo] has never opposed hunting, he has requested on numerous occasions for the lobbying & fixation to stop, and particularly for the revolting imagery shown to young children to cease. This did not occur as I did not support his view.
[32]RCB 151- 157 of 591.

The letter ends with "I make this submission of my own free will, as a statement of truth, and without intention to alter these details".[33]
[33]RCB 150- 157 of 591.
His allegations against the mother, which are denied, largely relate to:
(1)Her attacking him, often while he is holding the children;
(2)The children running to him for safety when the mother is angry and/or violent;
(3)The mother encouraging her older children to attack, swear at, and spit at him;
(4)The mother invading his home and screaming at him, and taking Y away;
(5)The mother kicking the dog repeatedly in front of the children;
(6)The mother smashing the gate, glassware, a window, a lounge chair;
(7)The mother throwing a laptop at him; and
(8)The mother invading the car when the children were with the father and X locked the mother out of the car.
The mother's response to these allegations is conveniently summarised at [41] and [42] of the second Family Report dated 26 September 2022:
41.With respect to invading [Mr Vehlo's] home and taking [Y], [Ms Linehan] reported that she presumed [Mr Vehlo] was referring to the incident at his [Town FF] property where he was living during their temporary separation in 2017. [Ms Linehan] reported that she drove to his property to confront him over matters of alleged infidelity and she did scream and try to push her way into the house to talk to him but he slammed the door on her. She said [Mr Vehlo] then left the house with [Y] still inside so she had no choice but to take [Y] with her when she left otherwise [Y] would've been left unsupervised. [Ms Linehan] denied ever kicking the dog or smashing/breaking property as alleged. In the follow up call [Ms Linehan] added that she had since recalled once breaking down a wooden kitchen chair into smaller pieces so it could go in the bin but never in anger and never a lounge chair. Like [Mr Vehlo], [Ms Linehan] reported that [Mr Vehlo] had flipped the narrative; "These are things he did and says I did".
42.[Ms Linehan] reported that she presumed "throwing a laptop at him" referred to the time in May 2016 when she threw [Mr Vehlo's] laptop at his feet while he was smashing the children's iPads and laptops and she told him to smash his own instead. This incident was referred to in the first Family Report. [Ms Linehan] denied ever "invading" or attempting to break into the car when [Mr Vehlo] had the children or [X] ever locking her out except recently when he was refusing to spend time with his father. [Ms Linehan] reported that it was exhausting to be constantly responding to [Mr Vehlo's] lies and fabrications.
The mother gave evidence that throughout these proceedings the father has attempted to shift complete blame for the family violence and deterioration of the marriage onto her. She referred to numerous correspondence that the father has sent to Child Protection, educational institutions, X's psychologist, FDR providers and single experts in which he blames the mother. One such letter resulted in X's psychologist, Dr HH, withdrawing. She also referred to the father filing six interim applications and lengthy affidavits which blame her for the deterioration of his relationship with the children.
The mother gave evidence that the father has often refused to engage in these proceedings, and at [81] of her trial affidavit, gave evidence of him not participating in four court hearings and a conciliation conference between November 2019 to December 2020. She also gave evidence of the father's repeated filing of interim applications, in each of which the father accused the mother of undermining his relationship with them. She denied this, and said the father is unable to acknowledge his own responsibility in his circumstances. She gave evidence that the frequent applications and material that levels allegations against her seems like ongoing abuse.
The mother gave evidence in her trial affidavit that the older child X has struggled with his emotions relating to his experience of family violence and his relationship with his father, and that he saw a child psychologist, Ms HH, from early 2019 until late May 2022.[34] She says the younger child, Y, "was very young and … has only a limited memory of the family violence incidents".[35]
[34] Respondent’s trial affidavit filed 9 January 2023 at [26], RCB page 52 of 591.
[35]Respondent’s trial affidavit filed 9 January 2023 at [31], RCB page 52 of 591.
Having considered the evidence in relation to family violence, I conclude that over a period beginning from since at least 2016, the wife and children have been subjected to significant family violence instigated by the father. I find that that family violence in the form of coercive control has continued through the course of these proceedings and I have little confidence that it will stop. I do not accept the father's evidence that the mother has been a provocateur. There are no doubt instances where she has responded to the father's behaviour, which he has regarded as a provocation or challenge to his role as a parent but I do not accept the father's evidence that he is simply responding to the wife's behaviour.
As I understand the father's position (without having had the benefit of final submissions) he feels that he is a perfectly good parent and that he could continue to be such if he was simply left to parent without interaction with the mother, her elder children, her family and supervisors. Unfortunately, his behaviour, in particular his ongoing fixation on the perceived faults of the mother and her elder children, means that there is likely to be ongoing and significant risks to the children in his unsupervised care.
The Father's Involvement with the Children post-May 2018.
The father left the family home in mid-2018 and attended the GG Health Service seeking psychiatric assistance. At that time the GG Health Service made a report to Child Protection and informed the mother that Child Protection had contacted JJ Family Services regarding concerns for the children in the father's care. The father subsequently discharged himself from the GG Health Service and admitted himself to the KK Hospital where he remained a voluntary patient for about three weeks. After his discharge he then flew to Country LL where he remained for about 4-5 weeks. He did not spend time with his children through this period.
The parties sought to negotiate arrangements whereby the father would spend six nights per fortnight with the children. There were disagreements about how the arrangements would work however whatever arrangements were in place came to an end after the instrument incident in mid-2019 when the Victoria Police took out an IVO against the father and the DFFH became involved.
The mother gave evidence that up until mid-2019, when DFFH became involved, the mother and father had attempted to negotiate parenting arrangements. She said the negotiation process was very difficult, as the father would "disappear and not see the children for several weeks, and then return and intensely want to spend long stretches of time with them and could not understand [her] reservations". She annexes examples of the text communications about arrangements with the children to show her attempts to manage his "erratic and unpredictable behaviour". I have set out a number of these above.
In around October 2018, the parties reached an agreement for the children to spend equal time. She gives evidence that despite their agreed arrangements, the father would hold the children longer than agreed, or change days at the last minute.
The mother gave evidence that during this shared care arrangement the children seemed anxious and she believed they were not coping. She asked the father to alter arrangements, but he refused. She said these arrangements ceased after the instrument incident.
In mid-2019, after the instrument incident, the mother was informed of an anonymous complaint made about her to the MM Institute saying that she was physically violent towards her ex-husband, her behaviour was dangerous and that there was gun violence in her extended family. It was submitted that the only person who could have made this complaint was the father. He denies making this complaint.
The mother through her solicitors sent a letter on 20 and 27 November 2019 which proposed supervised time with the children in line with interim orders made on 18 November 2019. The father did not respond.
On 25 January 2020, the father sent an email asking to see the children, enclosing a letter referred to at [44] above. He insisted she sign the letter before he would agree to spend time with the children.
During the long summer holidays in 2020/2021, the father spent supervised time with the children, with mutual friends acting as supervisor. Rather than agree to the mother's proposal to continue this arrangement, the father requested they attend mediation, which occurred on 27 November 2020, but did not reach an agreement.
On 5 December 2020, the father spent one session of supervised time with the children, but after that session, the supervisor said she was no longer willing to supervise. Throughout December 2020/January 2021, the father spent time supervised by family friends Mr NN and Mr OO, who the mother gave evidence would criticise the mother for seeking the father's time be supervised. She has annexed these text messages in her affidavit.
The mother was also made aware that the father was being left with the children unsupervised. On 19 January 2021, she instructed her lawyer to suggest time take place with a professional supervisor. In response, the father filed an Application in a Case on 19 February 2021, seeking time continue to be supervised by Mr NN and Mr OO, as well as his partner, Ms R. Orders were made on 25 March 2021 that supervised time take place under professional supervision.
Since early 2021, the father has had approximately 50 supervised sessions with QQ Family Services and B Support Services. The mother gave evidence that X has often had issues with these sessions, including not wanting to go, being anxious leading up to sessions, or having nightmares.
The mother gave evidence that after sessions the father will send emails complaining about the mother's treatment of the children, including:
a)That [she is] keeping the children up too late the night before they spend time with him, so they are too tired to engage in activities with [Mr Vehlo].
b)That [she is] neglecting the children because [she does] not dress them appropriately. There has been occasion where [Y] has insisted on wearing particular shoes, which had a hole in them and/or has [sic] worn a light flowing dress that was too short - on this occasion [Y] had an eczema flare up and light fitting clothes were most comfortable for her.
c)        That [Y] is overweight.
d)That [she is] allowing [X] to play computer games that are inappropriate for his age.
e)        That [X] is obsessed with shooting animals because of [her] family.
f)        That [she has] denigrated [Mr Vehlo's] partner to the children.
g)        That [she is] influencing [X] to not want to spend time with [Mr Vehlo].
h)        That [she is] involving the children in court proceedings. [36]
[36]Respondent’s trial affidavit filed 9 January 2022 at [120], RCB pages 79 - 80 of 591.
The supervisor's reports have been annexed to the affidavit of Ms Z, filed on 25 January 2023. They affix 33 reports from B Support Services for sessions between October 2021 and January 2023 and the reports of these supervised sessions indicate that the time has been going well for the most part. The reports indicate the children often greeted the father with a hug and that the children cuddled into their father at other times and generally enjoyed the time together. [37]
[37]Affidavit of Ms Z filed 25 January 2023, Annexure TS-1, RCB 483 – 581 of 591.
The father noted in his evidence under cross-examination that these reports demonstrated a pattern of the mother saying the children do not want to spend time with him, and then the opposite was demonstrated where the children seemed to enjoy time with him.
The mother raised some concerns about the father using his contact visits to try to "buy" the children's affection and she referred to the expensive outings to places like SS Venue, and the frequent gifts the father would purchase for the children. She was cross-examined about a few comments the children made about feeling that their father was trying to "bribe" them to enjoy time with him. She conceded that while she had never spoken to the children about her concerns, she had not been entirely able to hide her annoyance when the children returned from contact visits with gifts or discussing expensive outings.
There were a few contact sessions that X refused to attend including 7 November 2021, 22 April 2022, 28 August 2022, 9 October 2022, 6 November 2022, 20 November 2022 and 8 January 2023.
A number of these refusals to attend by X coincide with his psychologist, Ms HH, withdrawing her services in May 2022 due to several emails and calls to her unadvertised private number from the father. The mother gave evidence that Ms HH's withdrawal left X without support to manage the visits with the father, and he shortly after began having nightmares about the father.
The supervisor's report includes references to text messages sent by the father to the facilitator of supervised time, including a text messages sent on 21 November 2021, following a visit earlier that day:
I am upset [Ms Z]. I am sad. It is getting worse with them. I feel I am losing them. I know I invited your suggestions, but it is so raw, and has been for so long and is now worse again.
I am happy to hear their perspective, through you. I can handle that. Suggestions on specifics is too hard.
Please do not talk about them not seeming interested in people from their past. It is my and their past, it hurts to read it dismissed in a phrase. They have not seen these people for over 2 ½ years only two people allowed is horrible. It seems pointless to arrange now. I am sick of it.
Please don't mention her, hearing she is cooperative is not pleasant. I have been accused of every growing outrageous lie and it is worsening a lot currently, and all offers to progress ignored or refused. It is a constant hell.
Please I don't need suggestions of where to go I have no need of suggestions, I'm very good at creating I have tried so much, and I am tired of this hell.
I appreciate your help today. Also changing [workers] ([Mr Vehlo] requested change in worker) I now have to become familiar with the 50th person […] who will have yet another of their own different perspective. It is a constant microscope and dissecting. I appreciate what you've done.
Don't think anything you suggest could address the sense of losing them.
I would like to keep these interactions to weekdays in working hours if possible it's on my mind all this all the time. The last request over the cup weekend really impacted on one of my first breaks in a long time.[38]
[38]RCB page 494 of 591.
The report also notes that the father has written a number of lengthy emails "accusing the children's mother with historical allegations …"[39]
[39]RCB page 495 of 591.
On the last recorded visit on 8 January 2023 which X did not attend, the father cancelled the visit with Y after learning that X would not be attending, despite Y looking forward to seeing her father. He was asked about this at trial and gave evidence that he was too upset and unable to compose himself, and that it would have been bad for Y to see him that upset. He requested to leave early from the session on 17 July 2022 and X asked to leave early on 4 December 2022.
The supervisor noted that X began referring to the father as "[Mr Vehlo]" when he had previously been calling him "dad" in the report of the session on 24 December 2022.
In his trial affidavit filed 30 December 2022, the father gave evidence that X has grown increasingly reluctant to spend time with him, and places blame on the mother and her children of a previous relationship, giving evidence he has heard about her undermining his relationship with his children. As an example of this change in attitude, he gave an example that the children "have gone from requesting overnight time to being apprehensive", and he does not understand.
The father has been criticised for his behaviour during one supervised session on 14 August 2022, where out of earshot of the supervisor, he read the following passage to X from a book called "Co-Parenting with Your Toxic Ex":
Sometimes when moms and dads get divorced they have a hard time sharing their children with the other parent. That doesn't make them a bad person. But they might do things to try to make their children think their other parent doesn't really love them or care about them. It can be tough for kids when that happens. Sometimes it's easier for kids to choose one parent over the other than to have to go back and forth and deal with that. I bet it's not always easy for you to go back and forth between two homes. Sometimes I or your (mom/dad) might ask you to do something that the other doesn't want you to do and that can be confusing. But usually there's a way to work things out. If I ever do something that makes you feel as if you have to choose me over (Mommy/Daddy) please let me know. I really don't want to do anything that makes you feel that you have to pick me over (Mommy/Daddy). And if (Mommy/Daddy) ever does something that makes you feel that you have to choose (him/her) over me please remember that you really do not need to choose. You can love and be loved by both of your parents. If you ever feel otherwise, please remember to come and talk with me so that we can work together to find solutions that feel right for you. You're a smart and brave kid and I know you can handle this. [40]
[40]RCB page 339 of 591, Exhibit R1.
The father was asked whether he thinks reading this to X was inappropriate. The father disagreed and strongly believed the book was child focused, and stated he had been recommended this book by the facilitator of a Men's Behavioural Change Program. The father gave evidence that X responded well to him reading this passage and hugged him afterwards. When asked why he read this passage to X, he responded that he believed X had been struggling and had been repeatedly told that the father was responsible for continued violence. Notably, X did not attend the following session. The father denied that his having read this passage was a reason for the non-attendances.
The mother gave evidence that she has had difficulties in getting X to attend these supervised sessions, and he would often experience extensive anxiety and nightmares leading up to the scheduled visits. The mother gave evidence that she has always encouraged X to spend time with his father, and in the last two years has been engaging with X's former child psychologist, the supervision service, and that she has done her own research to develop strategies to assist X. She gave evidence that X is fearful of the father.
The father was asked if he believed that X had a genuine fear of him and he conceded that X may hold some level of fear, however, he insisted that this fear was the result of the mother's influence rather than his own behaviour.
The father was asked about his proposal of having the children for six nights per fortnight and how this proposal would work in circumstances where X was refusing to attend supervised visits once per fortnight. He was unable to provide a response, other than saying that his relationship with X is currently toxic, and this has been "triggered" by the mother not wanting him to have a relationship with his children.
The father is proposing that if the court orders supervised time that his partner, Ms R, be permitted to be the supervisor. The mother opposes this. Ms R has filed an affidavit in these proceedings on 31 December 2022 and was subject to cross-examination. As per orders made in October 2022, Ms R was permitted to and did attend the last six supervised visits with the children. X did not attend three of these sessions.

I accept that there is a proper basis for making those submissions and take that into account.
Section 75(2) Factors
The mother is 49 years of age and other than having to cope with the stress caused by these proceedings, is in good health. She is currently working full time as an educator and earns $86,000 per year, plus an additional $386.34 in family tax and carers payments.
The father is aged 55 years and is in good health. He is working four days per week. The mother states he was earning approximately $186,000 per year. His Financial Statement of 30 December 2022 notes his current average weekly income as $2,591.[86]
[86]Respondent’s Financial Summary filed 31 December 2022, ACB page 17 of 253.
The mother will have the full-time care of the children and the father’s capacity and willingness to contribute is uncertain financially to the care of the children. He has stated that he wishes to have no further involvement with the Child Support Agency and wishes to make a child support agreement (but there is no evidence that he has sought to enter into one).[87] There has been a reduction in the father’s child support contributions from $2,424.50 per month to $1,671 per month as a result of his decision to reduce working hours.
[87]Applicant’s trial affidavit at [280], ACB 148 of 253.
The father has superior earning capacity even when working on a part-time basis. The children are due to receive $100,000 from the father’s mother’s estate when they turn 21, but that will be the children’s money not the mothers.
The mother will continue to have the responsibility to provide life long, high level care to her daughter Ms P.
Issues in Relation to Child Support Payments
The mother disputes the father’s claims that she has access to trust monies from her former deceased father’s estate, saying this has been invested by the maternal grandmother, to be given to the children on reaching the age of 26. While the children were at school, she had access to these funds for the sole purpose of paying educational expenses, but now the children are no longer in secondary school, she no longer has access to these funds.
The mother receives $2,424.50 per month in child support, as assessed by the child support agency. At the time of trial, the father’s payments were up to date. The mother gave evidence that she had issued trying to get the father to pay child support. She initially attempted to contact Centrelink in December 2016, but she states the father was furious, and refused to give any information to Centrelink including his address. The mother states she had to pass on any relevant forms to him directly, and he would often write angry messages on the forms or letters. From mid-2017 to September 2018, the father refused to provide consistent child support and had been in arrears of approximately $22,000. The mother notes that these issues are now historical and the father has been paying child support as assessed.
The mother gave evidence that from December 2016 through mid-2017, the father provided financial support through a debit card provided by his workplace, where his wages were deposited fortnightly. When the card expired in mid-2017, the father refused to give the mother access to the new card.
It was submitted by counsel for the mother that the court ought to make an adjustment in line with Kennon & Kennon [1997] FamCA 27 (“Kennon & Kennon”) to adjust for the impact of the family violence on the mother’s contributions.
Kennon & Kennon states that when a party has engaged in violent or abusive behaviour that has had an adverse impact on the other party's contributions to the acquisition, conservation or improvement of property, the court may adjust the property settlement in favour of the victim to account for their contributions that were affected by the violence. This adjustment may take the form of a greater share of the property pool or other appropriate remedies to address the impact of the violence on the victim's contributions.
CONSIDERATION ON PROPERTY
The parties have separated and neither parties submits that order should not be made distributing the assets of the parties.
The asset pool is as set out above at [199].
I find that the fathers initial contributions were greater than the wife’s, which creates an allowance in his favour of 5%. I do find that the wife's contributions as a homemaker and through her employment will have been made substantially more difficult because of the conduct of the father over a considerable period. I make reference to his behaviour in moving residence to Town BB after the mother had relocated there as one example of the campaign that he has waged against the wife, and to some extent, her family who she is close to. This is outlined in [31 d.], [35] - [36] and [103] above.
The stress and anxiety caused by having to deal with that kind of behaviour must have made her contributions more onerous. For significant periods she has had to be a parent to five children, one of whom has high needs. This has all been done whilst trying to deal with the explosively erratic and self-centred behaviour of the father. This is also while working through the period and having to meet legal costs which have been inflated because of the conduct of the father. I assess the overall contributions to be 55%/45% in favour of the wife.
The section 75(2) factors weigh considerably in favour of the wife as outlined from [219] above particularly ss 75(2)(c) and (e). These include her having full-time care of the children, loss of some or all child support contributions, the superior earning capacity of the father and the mother's responsibility to provide life-long, high level care to her daughter Ms P.
Pursuant to s 75(2) (o) of the Act, I take into account that the mothers contribution in relation to the care of the children and indeed to just getting from day to day will have been made more difficult and stressful as a result of the conduct of the father over a long period of time. I do not see that the father will become any easier to deal with for the foreseeable future. I make an allowance in favour of the wife of 10% in respect of s 75(2) factors.
Rather than seeking an equalisation of superannuation entitlements which would result in the mother receiving a superannuation split of $107,279 from the father, which would have been just and equitable, she seeks a further cash component of $80,000 in lieu of a super split payment from the father. In her Closing Submissions she stated that this amount represents a discount of 25% on what she would receive in superannuation if a splitting order was made[88]. I am satisfied that such an approach is appropriate and just and equitable. It leads to the mother being in a position where she may retain the Suburb RR property. On the basis of the superannuation assets being treated in that way, I find that division of the non- superannuation assets 65%/35% in favour of the mother would result in a just and equitable distribution of those assets. These orders may enable the mother to retain real property whilst the father retains an interest in three real properties. This arrangement reduces the cash payment that the mother must make to the father in order to retain the property, but provides him with a 25% greater share of the superannuation funds.
[88]Respondent’s Closing Submissions at [43] – 44].
Applying these findings to the asset pool as determined has the following effect:
Net non-superannuation assets
Total net non-superannuation assets  $2,420,500
Split  $1,573,325     65%     (wife)
$ 847,175      35%     (husband)
Total current assets of the pool retained by each party
$1,800,000     (wife)
$620,500        (husband)
Wife has $1,800,000 - $1,573,325 = wife owes husband:    $226,675
50/50 superannuation assets
Total super  $393,960
Split  $196,980        50%     (wife)
$196,980        50%     (husband)
Wife currently has $89,701 in super
$196,980 (50% of split) - $89,701 (wife’s superannuation) $107,279
Wife proposes that in lieu of super split of $107,279 she receives a cash component of $80,000.
Wife owes $226,675 - $80,000 cash in lieu of
superannuation split      $146,675
Less unpaid amounts of costs in the sum of
$1,850 and $4,000        $ 5,840
$146,675 - $5,840   $140,825 (wife to pay husband)
Application for Orders Pursuant to s 64B(2)(g)
Section 64B(2)(g) of the Act provides:
64(2) A parenting order may deal with one or more of the following:
… (g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
The mother seeks an order that:
Pursuant to Section 64B(2)(g) of the Family Law Act 1975 (Cth) (‘the Act’) the father be restrained from making any application under Part VII of the Act in relation to X and/or Y without first making an ex-parte application seeking and obtaining leave of a Judge of the Federal Circuit and Family Court of Australia and for that purpose:
(a)The father must file an application setting out the specific orders sought and an affidavit setting out the evidence and reasons for seeking these orders;
(b)Unless otherwise ordered such application is not to be served on the mother or any other person; and
(c)if possible, any such application for leave be listed before the Honourable Justice McNab.
I am mindful of the need to not to unnecessarily constrain a person right of access to justice to the Court however in this case the restraint as sought by the mother should be imposed. The mother has been faced with the father issuing the application and then not engaging in the proceeding at his option. The father has caused a trial to commence and the then conduct it over 4 days to withdraw prior to its conclusion. I am concerned that the father will continue to use proceedings as a means of controlling the mother unless some restraint is imposed. The father continues to be able to bring proceedings but the restraint requires him to do that on an ex parte basis without causing the mother to respond to the application and thereby incurring costs. Other than requiring the father to file an application and an affidavit in support of the orders sought, the order does not prescribe what the father must do prior to filing any further application.
COSTS APPLICATION
The mother sought in her final submissions an order that the father pay her costs of and incidental to these proceedings. She submits that in this case, circumstances warrant an order for costs for the following reasons:
(a)The father was the applicant in these proceedings, and after three and a half years of proceedings involving seventeen appearances, he has withdrawn from the proceedings, effectively at the last minute;
(b)The trial was adjourned part-heard from 3 February 2023 on the basis that that the father intended to cross-examine Dr N, Dr U and Ms W. At around 4.40 pm on 24 April 2023, the day prior to resumption of the trial (excluding the public holiday on 25 April 2023), the father sent an email advising that he no longer intended to cross-examine any of the experts;
(c)The father has not at any stage meaningfully particularised his property relief sought, and he failed to attend the court-ordered conciliation conference on 20 July 2020;
(d)The father has made significant and sustained allegations against the mother in these proceedings, to which she has been required to respond at length and she has then been left to proceed after the father’s withdrawal from these proceedings. This has caused her to incur significant costs.
CONSIDERATION IN RELATION TO COSTS
The starting point provided by s 117(1) of the Act is that each party shall bear their own costs. Section 117(2) provides that the court may make an order for costs which it considers just when the circumstances justifying doing so.
When considering whether to make an order for costs, the court shall have regard to each of the matters set out in s 117(2A) with no factor prevailing over the other, and with the weight ascribed to each matter being a matter within the discretion of the court (Medlon & Medlon(No 6) (2015) 54 Fam LR 1).
The father has been on notice that the mother is seeking costs by her response and outline of case. The mother has been required to respond to very lengthy affidavit evidence put on by the father. The mother has been placed in the entirely unsatisfactory position of having gone through the stress and cost of preparing for and conducting a trial, being cross-examined and having the conclusion of the trial delayed, because the father indicated that he wished to cross‑examine experts and then withdrew.
I also take into account the father’s conduct throughout these proceedings which are outlined at [85]- [94] of the mother’s trial affidavit. There have been periods where the father disengaged from proceedings for considerable periods of time, including between November 2019 to December 2020, where the father failed to attend four court events and a conciliation conference. At the first court event before Judge Boymal on 18 November 2018, the father left the court precincts before the matter was heard and the matter proceeded in his absence.
The father has failed to meaningfully participate in the conciliation of property matter or engage in Family Dispute Resolution. The letter dated 25 January 2020 drafted by the father (the mother’s “Confession Letter”) was sent by the father, with him insisting that the wife sign the document as a condition of him resuming time with the children. The mother’s evidence is that she has tried to negotiate arrangements but that those efforts have been rejected or negotiated on terms fixed by the father (such as signing the “Confession Letter”). The numerous applications and correspondence sent by the father will have increased the mother’s costs.[89]
[89]See annexure ML16 to the respondent’s trial affidavit as a sample of that correspondence, AD 202- 209 of 591.
This is a case with the usual position that each party where their own costs has been displaced by region of the fathers conduct through the course of this litigation. In particular, the father’s contact in making numerous applications, supported by very lengthy and often argumentative and vituperative affidavit evidence has substantially increased the wife’s costs. The father has put the mother to the expense of responding to his lengthy affidavit evidence, had his solicitor and counsel prepare for a defended hearing brought on his application to be told that he is withdrawing from the proceeding the night before the final day of hearing. In his letter to the court he makes an accusation that the Court was impartial in the course of the hearing. The father was represented by very experienced counsel who put the father’s case in a fair and balanced way and was in a position to object to questions asked by opposing counsel or counsel for the ICL. He was also able to raise any issue in relation to the conduct of the trial or raise any issue of impartiality. No objection was raised. The father was rankled when any constraint was imposed on him on how he gave evidence in response to questions and was plainly upset when he became aware that the hearing would not be conducted on the terms imposed by him. There was nothing in the way in which counsel for the mother conducted himself in the hearing which warranted the personal attacks on him by the father.
The mother has incurred costs of approximately $200,000. She is seeking costs on scale of $100,467.00. There has been no breakdown of how those costs are calculated and I am therefore not in a position to ascertain whether an order for costs in that sum would be reasonable. I find that it is appropriate for the father to pay 60% of the mother’s party/party costs. I will make orders for the mother to file and serve a schedule of costs claimed within 14 days of the date of this order. I will provide 14 days for the father to respond and I will determine the quantum of costs on the papers in chambers. The amount of costs determined may be deducted from the payment from the mother to the father referred to in Order 20.
In addition to those costs I will also take into account the reserved costs order in the sum of $1,850 made against the father on 18 November 2019 when the father left the court before the matter was heard and an unpaid costs order made against the father in the sum of $4,000 on 25 March 2021. It is appropriate that those reserved costs be paid by the father.
The father’s conduct of the proceeding has substantially increased the mother’s costs and I have regard to that as required by s 117(2A)(b). For these reasons I will make an order for costs in the sum sought by the wife and I assess them as reasonable on a party/party basis.
CONCLUSION
To give effect to the findings that I have made in relation to the asset pool as outlined at [200] above and the appropriate division of assets as outlined at [236] above, the mother will have to make a payment of $140,825.
This is $226,675 less the $80,000 deduction of the discounted cash payment in lieu of an order for a superannuation split and a deduction of the reserved costs order of $1,850 against the father made on 18 November 2019 and of $4,000 on 25 March 2021, both of which remained unpaid.

I certify that the preceding two hundred and fifty-one (251) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab.
Associate:
Dated: 20 July 2023
ANNEXURE 1 CHRONOLOGY

Date

Event

Source

1967

Father is born, now aged 55 years.

Both parties’ case outlines.

1973

Mother is born, now aged 49 years.

Both parties’ case outlines.

2007

Parties commence relationship, living in the mother’s City WW home.

Both parties’ case outlines.

2009

Mother sells City WW property and received $308,000 in net sale proceeds.

Parties commence residing at father’s property at Suburb AC.

Both parties’ case outlines.

2009

Parties marry.

Both parties’ case outlines.

2010-2011

Parties purchase E Street, Suburb F for $1,060,000.

Applicant’s outline

Respondent’s outline.

Early 2011

Paternal Grandmother gifts parties $301,117.50 to payout mortgage on family home.

Both parties’ case outlines

2012

X is born.

Both parties’ case outlines

2012

Father’s mother gifts the parties $290,000 as part of an early inheritance which was applied to renovations on the family home.

Both parties’

case outlines.

2014

Y is born.

Both parties’

case outlines.

2015

Father’s mother dies.

Father’s

case outline.

March/April 2016

Parties start seeing Dr T.

Father’s

case outline.

March 2016

April 2016

“Laptop incident”

Applicant.

Respondent.

Mid-2016

Victoria Police attend a family violence incident at family home and IVO made, and father leaves family home (“Headbutt incident”).

Mother’s

case outline.

Mid-2016

The IVO varied to limited IVO and father returns to family home.

Mother’s

case outline.

11 December 2016

Parties separate and father leaves.

Mother’s

case outline.

Early 2018

Father returns to family home and lives in the basement, and parties attend marriage counselling.

Mother’s

case outline.

2018

Father is asked to move out of family home. Father signs a contract of purchase for L Street, Suburb M property for $605,000.

Mother’s

case outline.

Early 2018

Father deposits $58,000 for purchase of L Street, which he moves into in mid-2018.

Mother’s

case outline.

May 2018

Parties separate and father leaves family home.

Mother’s

case outline

2018

Father sells Suburb AC property for $868,000 and receives net sale proceeds of $850,000.

Mother’s

case outline

2018

Father purchases J Street, Suburb K for $320,000 from Suburb AC proceeds.

Mother’s

case outline

Early 2019

Mother initiates FDR through Family Relationship Centre (“FRC”).

Mother’s

case outline.

Early 2019

FRC refers mother to family violence workers.

Mother’s

case outline

Mid-2019

Father attends family home, breaks the gate and enters home. Victoria police are called, and an IVO is made by Victoria Police.

Mother’s

case outline.

Mid-2019

Interim IVO made naming mother and children as protected persons.

Mother’s

case outline.

Mid-2019

FRC decides FDR is not appropriate and s60I certificate issued.

Mother’s

case outline.

Mid-2019

Father applies for IVO against mother.

Mother’s

case outline.

6 September 2019

Father files Initiating Application for parenting orders.

Mother’s

case outline

Late 2019

Father’s application for IVO is heard and no order is made.

Mother’s

case outline.

16 October 2019

Mother files response seeking parenting and property orders.

Mother’s

case outline.

Late 2019

Father withdraws application for IVO against the mother.

Mother’s

case outline.

Late 2019

The father goes overseas following orders being made for supervised time. In this affidavit, the father says he was “emotionally and physically crushed by not seeing [his] children.”

Father’s Affidavit filed 31 December 2022.

December 2020

Father starts having supervised time with the children, supervised by friends.

Mother’s

case outline.

Early 2021

Mother relocates to Town BB with children after a hearing before Senior Registrar.

Mother’s

case outline.

Early 2021

Father moves to Town BB and rents property within 400m of mother’s house.

Mother applies for IVO.

Mother’s case outline.

Early 2021

Father applies for IVO against mother and the maternal extended family members.

Mother’s

case outline.

Early 2021

Father starts spending supervised time with children at QQ Family Services.

Mother’s

case outline.

Mid-2021

Father starts having time with children supervised by B Support Services.

Mother’s

case outline.

3 August 2021

ICL appointed.

Mother’s

case outline.

Late 2021

Father withdraws IVO against mother’s family members

Mother’s

case outline.

22 October 2021

Orders made transferring the matter transferred to Division 1 by Judge Boymal and interim orders made for the children to spend time with the father not exceeding four hours each alternate weekend under supervision of B Support Services.

Mother’s

trial affidavit [6].

February/March 2022

Children have first session with Ms W

Affidavit of Ms W filed 5 October 2022/ Mother’s case outline.

30 January 2023

Matter listed for 5 day trial.

Mother’s

case outline.

25 April 2023

Father withdraws from the proceeding.

26 April 2023

Matter resumes for one day.

File number(s):	MLC 10175 of 2019
Judgment of:	MCNAB J
Date of judgment:	20 July 2023
Catchwords:	FAMILY LAW – PARENTING – Where the children currently spend fortnightly supervised time with the father – Where the mother seeks for the current arrangement to continue – Where there is a substantial history of family violence – Where the father seeks time which is unsupervised – Where there is substantial expert evidence that the father is a risk to the children – Where the father withdrew from proceedings on the last day of trial.
Legislation:	Australian Passports Act 2005 (Cth) Family Law Act 1975 (Cth) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:	B and B (1993) FLC 92-357 Bant & Clayton [2019] FamCAFC 198 Betros & Betros [2017] FamCAFC 90 Blinko & Blinko [2015] FamCAFC 146 Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5 Germain & Germain [2017] FCCA 1980 Isles & Nelissen [2022] FedCFamC1A 97 Johnson & Page (2007) FLC 93-344 Kennon & Kennon [1997] FamCA 27 M v M (1988) 166 CLR 69 Medlon & Medlon (No 6) (2015) 54 Fam LR 1 R & C [1993] FamCA 62 Slater & Light [2013] FamCAFC 4 Stanford & Stanford (2012) 247 CLR 108 Stott & Holgar [2017] FamCAFC 152
Division:	Division 1 First Instance
Number of paragraphs:	251
Date of last submission/s:	28 April 2023
Date of hearing:	31 January 2023 – 3 February 2023; 26 April 2023
Place	Melbourne
Counsel for the Applicant	Ms S Tatarka
Counsel for the Respondent	Mr D Carne
Solicitor for the Respondent	Accessible Family Law
Counsel for the Independent Children’s Lawyer	Ms I Braun

MLC 10175 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR VEHLO Applicant
AND:	MS LINEHAN Respondent

order made by:	MCNAB J
DATE OF ORDER:	20 JULY 2023

Date	Event	Source
1967	Father is born, now aged 55 years.	Both parties’ case outlines.
1973	Mother is born, now aged 49 years.	Both parties’ case outlines.
2007	Parties commence relationship, living in the mother’s City WW home.	Both parties’ case outlines.
2009	Mother sells City WW property and received $308,000 in net sale proceeds. Parties commence residing at father’s property at Suburb AC.	Both parties’ case outlines.
2009	Parties marry.	Both parties’ case outlines.
2010-2011	Parties purchase E Street, Suburb F for $1,060,000.	Applicant’s outline Respondent’s outline.
Early 2011	Paternal Grandmother gifts parties $301,117.50 to payout mortgage on family home.	Both parties’ case outlines
2012	X is born.	Both parties’ case outlines
2012	Father’s mother gifts the parties $290,000 as part of an early inheritance which was applied to renovations on the family home.	Both parties’ case outlines.
2014	Y is born.	Both parties’ case outlines.
2015	Father’s mother dies.	Father’s case outline.
March/April 2016	Parties start seeing Dr T.	Father’s case outline.
March 2016 April 2016	“Laptop incident”	Applicant. Respondent.
Mid-2016	Victoria Police attend a family violence incident at family home and IVO made, and father leaves family home (“Headbutt incident”).	Mother’s case outline.
Mid-2016	The IVO varied to limited IVO and father returns to family home.	Mother’s case outline.
11 December 2016	Parties separate and father leaves.	Mother’s case outline.
Early 2018	Father returns to family home and lives in the basement, and parties attend marriage counselling.	Mother’s case outline.
2018	Father is asked to move out of family home. Father signs a contract of purchase for L Street, Suburb M property for $605,000.	Mother’s case outline.
Early 2018	Father deposits $58,000 for purchase of L Street, which he moves into in mid-2018.	Mother’s case outline.
May 2018	Parties separate and father leaves family home.	Mother’s case outline
2018	Father sells Suburb AC property for $868,000 and receives net sale proceeds of $850,000.	Mother’s case outline
2018	Father purchases J Street, Suburb K for $320,000 from Suburb AC proceeds.	Mother’s case outline
Early 2019	Mother initiates FDR through Family Relationship Centre (“FRC”).	Mother’s case outline.
Early 2019	FRC refers mother to family violence workers.	Mother’s case outline
Mid-2019	Father attends family home, breaks the gate and enters home. Victoria police are called, and an IVO is made by Victoria Police.	Mother’s case outline.
Mid-2019	Interim IVO made naming mother and children as protected persons.	Mother’s case outline.
Mid-2019	FRC decides FDR is not appropriate and s60I certificate issued.	Mother’s case outline.
Mid-2019	Father applies for IVO against mother.	Mother’s case outline.
6 September 2019	Father files Initiating Application for parenting orders.	Mother’s case outline
Late 2019	Father’s application for IVO is heard and no order is made.	Mother’s case outline.
16 October 2019	Mother files response seeking parenting and property orders.	Mother’s case outline.
Late 2019	Father withdraws application for IVO against the mother.	Mother’s case outline.
Late 2019	The father goes overseas following orders being made for supervised time. In this affidavit, the father says he was “emotionally and physically crushed by not seeing [his] children.”	Father’s Affidavit filed 31 December 2022.
December 2020	Father starts having supervised time with the children, supervised by friends.	Mother’s case outline.
Early 2021	Mother relocates to Town BB with children after a hearing before Senior Registrar.	Mother’s case outline.
Early 2021	Father moves to Town BB and rents property within 400m of mother’s house. Mother applies for IVO.	Mother’s case outline.
Early 2021	Father applies for IVO against mother and the maternal extended family members.	Mother’s case outline.
Early 2021	Father starts spending supervised time with children at QQ Family Services.	Mother’s case outline.
Mid-2021	Father starts having time with children supervised by B Support Services.	Mother’s case outline.
3 August 2021	ICL appointed.	Mother’s case outline.
Late 2021	Father withdraws IVO against mother’s family members	Mother’s case outline.
22 October 2021	Orders made transferring the matter transferred to Division 1 by Judge Boymal and interim orders made for the children to spend time with the father not exceeding four hours each alternate weekend under supervision of B Support Services.	Mother’s trial affidavit [6].
February/March 2022	Children have first session with Ms W	Affidavit of Ms W filed 5 October 2022/ Mother’s case outline.
30 January 2023	Matter listed for 5 day trial.	Mother’s case outline.
25 April 2023	Father withdraws from the proceeding.
26 April 2023	Matter resumes for one day.