Zidan & Omran - [2023] FedCFamC2F 615

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Zidan & Omran [2023] FedCFamC2F 615

File number(s): MLC2127 of 2021

Judgment of: JUDGE HARLAND

Date of judgment: 25 May 2023

Catchwords: FAMILY LAW – parenting and property –father seeks sole parental responsibility – mother’s non-compliance with orders – mother fails to demonstrate understanding of the children’s needs – mother’s lack of insight –whether or not there is an unacceptable risk to the children in the mother’s care - mother facing homelessness –small asset pool – 15 year marriage

Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 75(2), 79

Cases cited:
DPP v Shah [2017] VCC 1448

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

MRR v GR [2010] 240 CLR 461

Waterford & Waterford [2013] FamCA 33

Zaia v R [2020] VSCA 9

Division: Division 2 Family Law

Number of paragraphs: 213

Date of last submission/s: 31 March 2023

Date of hearing: 29, 30 and 31 March 2023

Place: Melbourne

Solicitor for the Applicant: Mr Bevan-Rhys James of Bevan-Rhys James

Counsel for the Respondent: Mr Combes

Solicitor for the Respondent: Zouki Lawyers

Counsel for the Independent Children's Lawyer: Ms Crotty

Solicitor for the Independent Children's Lawyer: VM Family Lawyers
ORDERS

MLC2127 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS ZIDAN

Applicant

AND:
MR OMRAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE HARLAND

DATE OF ORDER:

25 MAY 2023

THE COURT ORDERS THAT:
1.All previous orders in respect of the children X born 2007, Y born 2007 and Z born 2015 (“the children”) be and are hereby discharged.
2.The father have sole parental responsibility for the children.
3.The children live with the father.
4.The children spend time and communicate with the mother on terms as may be agreed between the parties in writing from time to time.
5.As and by way of property settlement, the net proceeds of sale of the former matrimonial home of B Street, Suburb C, held in trust by the solicitor for the father, Zouki Lawyers, be distributed as follows:
(a)70% to the mother; and
(b)30% to the father;

Taking into account the part property payments the parties have already received.
6.For the purpose of sub-paragraph 5(a) of these orders, Zouki Lawyers is to pay the mother’s entitlement to the trust account of the mother’s solicitors, Bevan-Rhys James.
7.Save as provided at paragraphs 5 and 6 of these orders:
(a)Each party shall be solely entitled to the exclusion of the other to all other property (including superannuation and choses-in-action) held in the name or possession of that party as at the date of these orders;
(b)Each party shall be solely entitled to the exclusion of the other to all shares, debentures, units in trusts and monies in bank, credit union or building society accounts in their sole name;
(c)Each party shall be solely liable for and indemnify the other against any liability, bill or account in the name of that party;
(d)Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(e)Each party forgoes any claim they may have had to any superannuation benefit belonging to the other.

8.The Independent Children’s Lawyer be discharged.
9.Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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 Zidan & Omran has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND

This is a sad case that involves cultural issues and allegations of family violence. The parties have three children: Z, born 2015 aged seven, and twins X and Y born 2007 aged 15. The mother has not seen the three children since October 2021. The parties are from Country D and married in Country D in 2005. The mother came to Australia the following year. The mother subsequently became an Australian citizen. She does not say when. The parties separated in February 2020.
The mother commenced proceedings on 26 February 2021 seeking parenting and property orders. It is significant that she is the Applicant as she invoked the Court’s jurisdiction but has refused to comply with several Court orders. In addition to final orders, she sought various interim orders including that the parties and children attend upon a court child expert for a report. Despite this, the mother has refused to comply with this order and many other orders over a period of many months, which I will address.
There is a lack of evidence in this case with respect to both parenting and property aspects. In part this is because no other witnesses were called to provide evidence, but with respect to the children’s matters, this is because of the mother’s non-compliance with Court orders. The financial pool is small. The disclosure by the father has been unsatisfactory.
ISSUES IN DISPUTE
The parties have been unable to resolve parenting and property issues. There are also allegations of family violence and cultural issues, which are relevant to both parenting and property issues, which I discuss in detail below.
The children currently reside with the father since orders were made on 21 October 2021. The children have not seen or spent time with the mother since that date.
The mother’s case is simple. She says in her culture her whole purpose in life is to be a good mother and wife and that she has fulfilled those roles. She will not accept any outcome other than the children being in her full-time care. The mother has refused to comply with orders that would have assisted her case and the Court.
The mother does not accept what the Independent Children’s Lawyer (“ICL”) says about the children’s views and their feelings that she has abandoned them.
The mother seeks parenting orders for the parties to exercise equal shared parental responsibility and for the children to live primarily with her. She says that the children should spend alternate weekends with the father but only offered this position when pressed during the trial. I have real doubts about her willingness and ability to facilitate the boys’ relationship with their father. This is particularly given her track record, her inability to accept that she has done anything wrong and her apparent inability to accept that others may legitimately have opinions that are different to her own.
The father seeks sole parental responsibility for the children. There is no effective communication between the parties and they are unable to make decisions jointly. The father seeks that the children remain living with him. He presented as being somewhat at a loss as to how to manage the mother's relationship with the children, given her steadfast refusal to engage in any family report and to undergo psychiatric assessment.
The mother is fortunate to be represented by her lawyer who has represented her during most of the proceedings. He is owed approximately $40,000 in legal fees. He has issued various subpoenas to good effect with respect to the loan application the father made. He has also tried to assist the mother with issues beyond the scope of his duty such as restoring her Centrelink benefits. He has continued to act for her in difficult circumstances where the mother has outright refused and failed to comply with orders making her case all the more challenging. He was at pains to explain the mother’s position in both her case outline and her affidavits and to emphasise that the mother does not understand the Court process and that she has not been able to accept and move on from the position of the children being in her primary care.
The ICL has also been in a difficult position and initially submitted that the trial with respect to parenting matters could not proceed given the absence of any family report and psychiatric report of the mother. Whilst the absence of this evidence certainly hampers the Court’s task, it is clear and was confirmed by the mother several times throughout the hearing that she will not participate in those processes, therefore there is of no utility in adjourning the proceedings.
The issues I must determine with respect to parenting and children’s issues are:
(1)Should the parties exercise equal shared parental responsibility or should the father exercise sole parental responsibility?
(2)Who should the children live with?
(3)What spend time arrangements should be in place for the children?
In addition to the children’s issues, I must determine the parties competing property applications in respect to their small asset pool.
With respect to the financial aspect of the proceedings, the mother submits that the father has failed to provide financial disclosure despite numerous requests; forcing her lawyer to issue a number of subpoenas in order to try and understand the financial position. The mother says that she never had access to the father’s finances or had any understanding of what his financial position was during the relationship. The father disagrees with this.
The issues I must determine with respect to property and financial issues are:
(1)What is the asset pool?
(2)What are the parties' respective contributions?
(3)What are the relevant s.75(2) factors?
Before addressing the substantive issues and in order to understand and to put into context the current situation, it is necessary to set out some of the procedural history with respect to the various orders that have been made by the Court and the mother’s noncompliance with respect of these orders.
FATHER’S APPLICATION TO PROCEED UNDEFENDED AND THE MOTHER’S NON-COMPLIANCE WITH ORDERS
The father sought to proceed on an undefended basis due to the mother’s repeated breaches of orders and the late filing of her trial affidavit. The mother’s lawyer was not able to explain why he filed and served her affidavit 12 days after she had signed it. I refused the application to proceed on an undefended basis, granted leave for the mother to rely on her late filed trial affidavit, but granted the father leave to lead evidence in chief about issues he was not able to respond to due to the late filing of material by the mother.
The Mother’s Non-Compliance with Orders
The parties appeared before a Senior Judicial Registrar on 11 May 2021 where they entered into interim consent minutes for the children to live with the mother and spend initially supervised time with the father before progressing on an incremental basis to unsupervised time as well as FaceTime calls for half an hour every Monday and Thursday. The Senior Judicial Registrar further ordered the parties to attend upon a court child expert for a Child Inclusive Conference on 30 July 2021 and a Conciliation Conference on 11 August 2021.
The Child Inclusive Conference and the Conciliation Conference did not proceed. The father attended his interview for the Child Inclusive Conference on 30 July 2021. The mother and the children did not attend. The mother’s lawyer indicated to the court child expert that he advised the mother to attend his office for the conference but she did not attend. During cross‑examination, the mother initially claimed not to remember being contacted by the court child expert and did not remember talking to her lawyer about it. This is not credible and is more likely that she was unable to reconcile her positions and does not want to engage with the reality that she has been obstructive and non-compliant with the Court process. She eventually conceded that she refused to attend the interview because she wanted it to occur face-to-face.
In many ways, Court appearances in person are easier and convey the seriousness of Court events however, some Court events are conducted online. This was particularly necessary in 2020 and 2021 when Melbourne was the subject of repeated, extensive lockdowns due to Covid-19. If the Court delayed conferences until they could be conducted in person, the Court’s backlog would be significant. The mother knew she was required to attend and the manner in which she would be required. She had a lawyer who would have explained to her the importance of these events and complying with Court orders. She did not agree with it and made the choice not to do it.
The father attended the Conciliation Conference, again, the mother did not. The mother advised her lawyer that day that she would not be attending or engaging in the conference. The conference could not proceed and the father’s costs were reserved.
The mother did comply with some of the orders for the father to have supervised time by making the children available. On one occasion, she did not make the children available because Z had a cold and she was unwilling to send the older two boys without him. The supervisor discussed make up time for the father for the missed visit which the mother refused. When asked about this, the mother said she did not have any excuse and did not have anything to say. When the father’s Counsel suggested that the answer is that she does not want the boys to have a relationship with father, the mother said she had never said that and then talked about the father attacking her and holding a weapon against her in front of the children. She then said she was scared because of the violence and was shocked and traumatised.
Due the mother’s repeated breaches of orders to facilitate FaceTime calls between the father and children as well as not making the children available to spend time with him, the father filed a contravention application on 23 June 2021. The mother failed to attend the first hearing for the contravention application on 12 August 2021.
On 18 August 2021, a Senior Judicial Registrar made orders for the children to live with the mother and spend time with the father unsupervised commencing every second Monday at 3.30pm until the commencement of school 9.00am Tuesday and commencing every second weekend from 3.30pm Thursday until the commencement of school 9.00am Monday. The mother again did not comply with Court orders by failing to bring the children to changeover on 23 and 26 August 2021. The Senior Judicial Registrar vacated the listing date for the contravention application scheduled for 26 August 2021 and adjourned it to 21 October 2021. The contravention application was subsequently adjourned on a date to be fixed.
On 2 September 2021, a Senior Judicial Registrar made interim orders for the children to live with the father and for the children to spend time with the mother. The mother was ordered to deliver the children to the father and failing this, a recovery order would issue. The mother failed to comply with the orders, which subsequently led to the children being recovered by the Australian Federal Police on 7 September 2021 and the children being placed into the father’s care.
The father delivered the children to the mother on 9 September 2021 but again the mother failed to return the children to the father on 13 September 2021.
On 14 September 2021 a Senior Judicial Registrar ordered a further recovery order pending compliance of the mother returning the children to the father by 17 September 2021 and ordered the mother to attend a post parenting separation program. The Senior Judicial Registrar noted that the mother has a history of non-compliance with orders since May 2021 in facilitating the children’s time with the father.
The mother agreed that she did not comply with the Court order to attend a post parenting separation program as she does not believe that she needs any assistance with her parenting. The aim of those types of courses is to assist separated parents in communicating with each other for the children's benefit and understanding the impact of separation and high conflict on the children.
The mother returned the children on 17 September 2021 to the father but again failed to provide the children to the father on 21 September 2021.
On 7 October 2021, a Senior Judicial Registrar issued a second recovery order for the children to be returned to the father and made interim orders for the children to live with the father and for the mother’s time with the children to be suspended. The children were recovered by the Australian Federal Police and returned to the father for the second time.
The matter returned before a Senior Judicial Registrar on 21 October 2021 to determine interim issues. Interim orders were made for the children to spend weekly supervised time with the mother for two hours supervised by a family contact service with the cost to be met by funds held in trust from the sale of the former matrimonial home. The mother gave sworn oral evidence that day. The Senior Judicial Registrar stressed to the mother the importance of complying with Court orders even if she disagreed with them. I pause here to note that the mother has made no attempts to enrol in the supervised visitation service and has not seen or spoken to the children since 21 October 2021.
The contravention application was marked as finalised on 21 October 2021 but it is unclear as to whether the contravention application was heard on its merits that day or not.
A further order was made for the parties to attend upon Dr F for a psychiatric assessment with the cost to be met by the funds held in trust. The father did not think he needed a psychiatric assessment just as the mother does not believe she needs a psychiatric assessment but despite this, he complied with the order for both parties to be assessed by Dr F. Dr F’s report with respect to the father, assists in addressing issues of risk and the father's capacity.
I explained to the mother during an exchange with her that the father had submitted himself to spending professionally supervised time with children, and also attended Dr F for an assessment even though he disagreed with the requirements, but did so as the orders required him to. The father complied with the order for his time to be professionally supervised, which resulted in there being evidence before the Court as to his relationship with the children and his time being able to progress to unsupervised time. Further, because the father attended for the psychiatric assessment, the also Court has evidence with respect to his interactions with the children and his mental health.
This is in contrast to the mother’s statements and the Court not having evidence about her interactions and relationship with the children, her mental health and her personality functioning. Ultimately, this is a great disservice to herself and the children.
It is quite clear that the mother is only prepared to engage with the Court and other Court processes on her own terms regardless of the consequences that it may have for her.
CULTURE

The mother and her lawyer were keen to portray the mother as having great difficulty understanding Court proceedings and her obligations due to cultural issues and that it was not the mother disrespecting the Court process. The mother however has never articulated what she meant by this. I am mindful of considering the cultural factors at play in this case but the Court is bound by evidence and the lack of it.
It is also important to note that both parties are from Country D.
The mother failed to address cultural issues in any meaningful way in her trial affidavit. Paragraph 6 of her trial affidavit states “in my culture, the children are the mother’s concern”, referring to herself as being a “good and obedient wife”, and a “super mum”. She also says she looked after the father and children very well however she does not provide any further details.
The father does not address culture in his affidavit. When cross-examined the father denied the mother’s assertion that the mother is responsible for the children in their culture and said that both parents have responsibility for the children.
The reality is that neither party gives any detailed descriptions of their cultures and how that has informed their behaviours, understandings and beliefs. The mother understands and speaks some English but needed the assistance of an interpreter during the trial. The father did not need an interpreter at the trial. It would be dangerous for the Court to make any assumptions based on stereotypes or popular culture.
It is the mother's case that she has little understanding of Australian culture and has been unable to understand and engage with Court orders and the obligations imposed on her. This extends not only to Court orders, but also other obligations such as Centrelink requirements. She and her lawyer were keen to emphasise this argument. However, this oversimplifies her position and her interactions in the courtroom particularly when being cross-examined where she showed a different presentation to the Court. The mother has been living in Australia since 2006 and is an Australian citizen despite the date of citizenship being unknown.
The only reference to religion is found in Dr F’s report, where the father told him the family were Catholic and arrived in Australia in 1995 after leaving Country D due to persecution. Given the mother’s reliance on the issue of culture, it is necessary for the mother to place evidence about her culture before the Court. Issues of the mother’s culture and her understandings of the Court proceedings and her obligations would have been explored by Dr F and possibly the court child expert had she complied with Court orders.
In any event, having had the benefit of observing the mother and her interactions both whilst sitting in the body of the Court over three days and giving evidence, I am satisfied that she is not simply a person overwhelmed by a foreign system and culture who is at a loss as to understanding how to navigate it. She made it very clear in several interactions that she understands what the orders say but as she disagrees with them she will not comply with them. It is trite to say parties are obliged to comply with Court orders regardless of whether they agree with them or not.
FAMILY VIOLENCE
Unhelpfully, the mother’s affidavit includes lengthy extracts from previous affidavits she filed which results in it being repetitive and not in chronological order. The mother alleges that during the relationship the father was frequently aggressive and violent. She says she was afraid to report the violence to police. She also says that she was subjected to financial and physical abuse during the relationship and says that the father's family was awful to her. The mother makes these assertions but does not provide evidence as to what she alleges occurred apart from the incident at separation.
The mother says the father and his family told her that she was a good and obedient wife and that she would be looked after and that she never had any knowledge of his finances. She complains that the father’s mother criticised her when she complained about the father’s aggression towards her.
At paragraph 27 of the mother’s trial affidavit, she states that during the relationship she and the children experienced the father’s aggression and violence and that she believed it was normal that she had to obey him and his family. The mother says the father would yell and scream, smash plates, and punch walls, and that she was concerned that her sons would grow up believing this is how they should treat their wives. The mother says that the children are also taught by the father’s family to treat the mother as an inferior person and to be treated with violence and put down if she expressed an opinion that was different to the father’s and his family. Again, the mother does not provide any details with respect to these incidents nor any time frame or context.
When cross-examined the father did not accept the contentions by the mother and denied the family violence, in particular, being violent towards the mother and denied that his family was controlling and abusive towards her.
During cross-examination by the mother's lawyer, the father claimed he was not a violent person and that his family loved the mother and were neither abusive nor controlling. The father's trial affidavit is again silent in respect to the issues raised by the mother. The father says the children witnessed their parents arguing but denied any family violence apart from the incident in 2019 that led to separation where he admits he pushed the mother.
The father did not accept the contention by the mother’s lawyer suggesting that the mother does not understand how the financial system works in Australia and is not able to work. The father replied that the mother has been living in Australia for 16 years and she could learn if she chose to. He also said that he explained everything to her including working, Centrelink, courses, and money, and denies that he and his family controlled the finances.
Incident leading to initial separation
An incident occurred in early 2019 that led to a brief separation. Paragraph 16.6 of the mother’s trial affidavit states:
[In early] 2019, we separated when [Mr Omran] left the former matrimonial home after he tried to strangle me and threatened me with a [weapon] and saying he would kill me if I called the police. I was too frightened to go the police.
On that date, the mother was upset that the father had taken the children to see his brother’s children without her permission. The mother said that the father’s brother and sister did not respect her and as a result, she did not allow the children to go there. The mother agreed that she was angry and acknowledged that they were the children’s cousins, but said that she wanted to see what her children were doing as she did not know what was going on as they would say things about her behind her back to the children when she was not there. She said that the father’s family hated her and have damaged her reputation and said things about her that she did not do.
The father says that when he returned home that night with the children, the mother was upset and they argued near the sliding doors that opened to the backyard. One of the twins was trying to come inside and the mother slammed the sliding door catching their leg. The father admits to pushing the mother as she blocked his path, and left the house.
Counsel for the father asked the mother if she reported the incident to the police or her General Practitioner (“GP”). The mother said she was too scared to report the incident to the police. She also did not see a GP. It is important to keep in mind that it is not necessary for there to be corroboration of family violence in order for a victim survivor to be believed. It is the very nature and insidiousness of family violence that means that it is often not reported. This is even more so when English is not the victim survivors’ first language. The fact that the mother did not report the incident to the police or see a GP about any injuries during the course of the relationship or separation does not reduce her credibility. What makes assessing her allegations of violence difficult is the lack of any evidence from her to determine the nature of what she experienced.
Descriptions of family violence often focus on incident based violence, but coercive control by its nature does not fit into that category as it is a pattern of behaviour that may not be obvious without context. Even in that regard, the mother does not provide any detail or examples of what she alleges she experienced during the relationship.
With respect to the incident in 2019 when cross-examined, the mother claimed that her friend was present and witnessed the incident but she did not want to name that person as she did not want to involve that person in the proceedings. There is no mention of this witness in the mother’s trial affidavit and the father was not cross-examined about a witness being present during this incident. I do not accept that there was a witness present at all.
Reconciliation and final separation
Following the incident in 2019, the parties separated for several months before reconciling briefly.
The mother says that the parties reconciled on or about early 2020 with the father returning to the former matrimonial home. The parties separated for the final time on 20 February 2020 when the father moved out of the home.
The mother says there was another incident of family violence following separation where the father attended the former matrimonial home and was abusive towards her and refused to leave resulting in the police attending in late 2020 and issuing a family violence safety notice. The narrative in the family violence safety notice records the mother saying their relationship was healthy until about 18 months earlier. The narrative in the safety notice is inconsistent with her affidavit evidence.
An interim intervention order was made in late 2020 naming the mother and the three children as the protected individuals. A final order was made in early 2021 which expired in early 2022. The father further denies the family violence allegations made against him by the mother and consented to the Final Intervention Order without admissions.
Department of Families, Fairness, and Housing
The Department of Families, Fairness and Housing (“DFFH”) issued the first s.67Z response dated 13 April 2021 in response to the mother’s initiating application dated 23 June 2021. The response refers to receiving a report with concerns about the risk the father poses to the children in his care. DFFH refer to the information on the family violence portal referring to an incident that occurred in late 2020. The police recorded the father attending the home and was abusive. The second incident reported was in early 2021 and was a breach of an intervention order made in early 2021where the father attended the home and followed the mother and children into the house arguing about the intervention order. When asked about the breach of the intervention order, the father said he went to see the children as a Court order had been made allowing him to see them. This is incorrect. There were no Court orders made in March 2021 allowing him to see the children. DFFH noted that E Support Service had followed up with the mother, who indicated that she had good supports and that she felt supported and connected with her community. DFFH noted that there was no information indicating that the mother was not acting protectively and closed the report at intake.
The second s.67Z response dated 21 July 2021 was in response to the father’s Responding material filed 23 April 2021. In that response, DFFH referred to the concerns about the mother yelling and being physically abusive towards the children. No further details about these incidents were provided. DFFH closed the report at intake.
THE FATHER’S CONCERNS ABOUT THE MOTHER’S PARENTING
The father’s Counsel put to the mother that the father raised serious concerns in his trial affidavit about her care of the children for example pinching the children to which whilst under cross examination she said she did not remember.
Counsel for the father further alleged that the mother would lock the children in their rooms and would forcibly separate the twins. The mother responded that she would do this sometimes when the children would not listen and she wanted to talk to them.
In her trial affidavit, the mother denied the father’s allegations that she regularly yelled at the children and slapped them. However, when cross-examined she said it was because they did not listen to her. She said she raised her voice and that it was not a big deal with respect to the allegations of her slapping the children. She said she never hurt her kids but went on to say she might slap them on the hand or foot but this did not hurt them.
The mother agreed with the contention that in 2021 she had difficulty managing the children’s behaviour. She then complained that she had all the responsibility and that the pressure was on her as the father had been violent and abused her.
At paragraph 33 of the mother’s trial affidavit she states that she does not believe that the twins have learning disabilities and are entitled to access the National Disability Insurance Scheme (“NDIS”) and refers to attending parent teacher meetings and that this was not mentioned to her by the father and sought that the father provide evidence. This is inconsistent with her oral evidence where she clearly acknowledged being familiar with the cognitive assessments and conclusions of the assessments, rather that she disagrees with them.
The father told Dr F that the twins’ diagnosis was a big shock for both of them which strained their relationship.
Much of the mother’s trial affidavit, particularly with respect to the children’s issues are submissions, not evidence. Paragraph 27 for example says:
I am the mother and I cannot understand why my children were taken from my care by the police in [late] 2021. I know I am a good mother and I believe I know what is best for my children. I want to protect them and the children learned bad things from the father.
The mother states that she wants the children returned to her care as she is the mother and as their mother she knows how to care for them however she does not engage with the concerns of the Court. Her attitude was clear in relation to this throughout the cross-examination as well.
The mother is facing homelessness. From her own evidence it seems likely that Centrelink cut her job seeker payments about 6 months ago because the mother did not comply with Centrelink’s requirements to look for jobs. It is concerning that the mother when pressed in cross examination was unable to even accept the reality that to have the children returned to her care and the impracticality of this as she has been staying in temporary accommodation and has been unable to secure rental accommodation. She was utterly unable to acknowledge the practicalities and the impact that her proposal would have on the children.
The mother said that she applied for a course but was told her language was not good enough. She acknowledged that Jobseeker required her to look for work, but said she did not have time. As I have previously noted, the mother has not seen the children since October 2021, and therefore has not had any childcare responsibilities. It is also not surprising that the mother has been unsuccessful in applying for rentals when she has no source of income and no capacity to pay rent. The mother appears utterly unable to engage with the reality of her circumstances.
It is clear also from her answers in cross-examination that the mother blames the father for her difficulties with the children. She is convinced that the father is influencing the children negatively towards her.
The mother’s family
It is telling that the mother has family in Melbourne but is also estranged from them. She has a brother and sister-in-law and an aunt living in Melbourne. She says she did not ask her brother and sister-in-law if she could stay with them in 2020 or 2021 and said she had not seen them in five years following a disagreement with them. When Counsel for the father attempted to explore this issue, the mother was vague about what the dispute was about and said that there were a lot of problems in the family and a lot of disputes. The father’s Counsel then asked the mother that despite those disputes even though she was desperate for accommodation, was it the case that they were not prepared to help her? The mother said that they were against her and that they wrecked her reputation and abused and controlled everything in her life.
She was then asked about her aunt. The mother said that she does not have a good relationship with her and that her aunt did not support her when she had a difficult time. In cross‑examination the mother stated she did not ask any of them to support her in these proceedings and complained that she had a lot of problems and was lonely and that as her family did not support her in the past that they could not support her now in the proceedings.
The mother acknowledged her sister visited from Country H in 2022 and stayed with her for a month. She further acknowledged that her sister spent time with the children and attempted to facilitate the mother seeing the children. The mother said her sister told her to come and see the children for a short time but refused as she wanted the children to be with her all the time.
Withholding of the children and recovery orders
Orders were made for the father to have unsupervised time with the children to stay with him on alternate weekends. The mother said she could not recall the dates but remembers that the boys were allowed to stay there two or three times, but then they started to talk against her and came back not listening and she then unilaterally stopped the children from seeing their father because of changes to their behaviour.
The mother over held the children several times. The mother acknowledged that she was told she needed to take the children to the police station so that the father could collect the children but did not take them. Again, the mother referred to the children coming back from their father or grandparents acting strange and saying things against her and sending messages to people using their laptops and refusing to show these messages to her.
The mother acknowledged that her lawyer told her that the police would attend and collect the children. She said that she did not agree that they should not take the children in that way from her house. The mother agreed that the police attending the home was frightening for the children, and commented on the youngest son who was shaking and referred to the situation being very difficult for her. She also conceded that she knew that there was a further order made and that the police would attend her home and remove the children again if she did not comply. She said she was expecting her lawyer to stop this through the Court, particularly given that the children were already previously removed from her care. I do not accept that the mother thought that the police would not attend a further time. I have no doubt that her lawyer would have advised her bluntly as to what would occur if she breached the orders again.
The mother was unable to acknowledge how the police attending her home and the trauma that she and the children experienced not once, but twice was only because of her own refusal to return the children. When asked if the mother had thought that in hindsight she could have done something differently to avoid the police removing the children from her she replied yes and that the police should not take the children from her in that way. She was redirected to focus on whether or not she could have done anything and she responded by saying that she told the police that she did not want her children to go to the father’s house. The mother said she blames the father by sending the police and that this is not the way to remove the children that she did not do anything wrong.

Let me be clear. The mother did do something wrong. The mother breached Court orders, not once, but repeatedly. The mother has conceded that she knew that the police would attend her home again if she refused to return the children to the father. She knew that the first experience was traumatic for them and that it would be traumatic. Despite this, the mother still did not comply with the Court orders causing unnecessary further trauma to the children.
This situation is compounded by the fact that whilst the mother was aware that when she withheld the children for the second time that the police would again attend and remove the children from her, the mother was unable to prioritise the children’s emotional needs. The mother speaks of these situations as if she has been passive and has had no control or influence over the outcome. Her lawyer valiantly attempted to characterise the mother’s behaviour as not understanding the system and what was required of her, but it is very clear from the mother’s own evidence that that is not the situation. Rather, the mother’s view is that she will not comply with orders that she does not agree with. It is most unfortunate and tragic from the children’s perspectives that the mother is unable to place her children’s needs above her own.
There is one person who is responsible for the police attending her home and removing the children. That person is not the father. It is not the ICL. It is not the Court. It is not the police. It is not the mother’s lawyer. It is the mother alone. What is of particular concern is the fact that she was well aware of the trauma that the children would suffer if it were to occur again.
The mother’s capacity
The mother was a poor witness in many respects, often answering that she did not remember and there were too many of the questions asked of her. She also had to be warned on several occasions to listen to the question and answer the question that she was being asked rather than make speeches. The mother was incredibly defensive when being cross-examined and chose to stand through her entire cross-examination with her arms crossed.
It is telling that the mother talks about her family in the same terms as the father’s family as damaging her reputation and standing against her. This is reflective of a rigidity of thinking where people who disagree with the mother are the enemy. As the mother lacks insight it is unlikely that she will seek that help and the status quo is likely to remain.
The sum of $9,000 was put aside from the proceeds of sale to cover the costs of both parties to be psychiatrically assessed by Dr F. Dr F briefly summarised both parties’ evidence in his report dated 11 February 2022.
Dr F refers to the number of attempts to have the mother engage in the family report process without success. He noted that the mother made serious allegations against the father which could not be addressed because of her failure to engage.
Dr F did not identify any concerns about the father’s functioning.
The mother argued that she is not “mad or crazy” and does not see why she has to see a psychiatrist. She said her lawyer told her about seeing a psychologist, but that she was very comfortable and that she does not have any mental health or psychological problem. When asked if she could identify anyone saying she is crazy she said that she has a lot of people who hate her and that they told her she needed to see a psychologist.
The mother’s views and attitudes are so rigid and disconnected that it is suggestive that there may be some underlying personality disorder or ill health. Of course, due to the mother’s refusal to attend upon Dr F that matter cannot be resolved. I am well aware that the mother denies that there are any issues or concerns with her mental health and functioning, but she could have demonstrated that by attending for that assessment as the father did. I accept that there may be cultural issues at play, where there may be shame associated with seeing a psychiatrist or mental health professional, but again this is only a supposition due to the lack of evidence before the Court.
It was clear from the father’s evidence that he is at a loss as to how to deal with the mother’s steadfast refusal to have anything to do with the children unless it is utterly on her own terms. I accept that the father has made attempts to have the mother at least speak with the children and to visit the children with someone there. The mother was steadfast and rejected these as being genuine while under cross-examination. I reject the mother’s characterisation of these attempts and find that the father is genuinely at a loss as to how to restore the mother’s relationship with the children.
The father has had to deal with the children’s distress and confusion as to why they have not had any sort of contact from the mother since October 2021. I accept too that I acknowledge that the father did not seek to have the children in his primary care and if the mother had complied with the orders and been able to facilitate and support the children’s relationship with their father, the children would be in the mother’s care. It is not possible to order time between the mother and the children as she was utterly clear in her evidence that she will only accept the children being in her full-time care The Court cannot have any confidence that the mother would not over hold the children again and subject them to further trauma and further police involvement.
The mother’s all or nothing approach is harmful to the children. It is difficult for the children understand her complete absence in their lives if their memories of her are telephone calls and the acknowledgment of their birthdays.
THE CHILDREN’S VIEWS
The Court has limited evidence as to the children’s views, which is again due to the mother’s refusal to engage with the Court process. It is fortunate that the children have the benefit of an ICL who has recently spoken to the children and conveyed their views to the Court. The ICL referred to the children’s views in her case outline. I acknowledge that it is evidence in an inadmissible form, but nonetheless what the ICL says about the children is important. It is also important to note the mother’s reaction was so far as to file an affidavit responding to the ICL’s case outline out of time, disputing that these were the children’s views at all. This is another telling example of the mother’s rigidity and being unable to accept anything that does not accord with her own views.
When cross-examined by the ICL’s Counsel, the mother was unable to show any understanding or accepting of the children’s views as they did not accord with her own. Counsel for the ICL put to the mother that the ICL met the children the week before the trial and found the children to be respectful and having a close bond. The twins told the ICL that they wanted to live with their father. The mother was adamant that these are not the children’s views as she knows them as she is their mother and that the children love her and want to live with her, the inference being that if the children said that they wanted to live with the father it was because they were told to. The mother was unable to accept that the twins feel abandoned by her. When it was put to the mother that the twins were open to spending times with her, but wanted someone else present so that they could feel safe, the mother responded “this is not right”. The mother absolutely denied there being any difficulties in her relationship with the children and did not accept that she had any responsibility in making the children feel this way. When asked what she would do if the Court makes orders for the children to remain with the father, the mother said:-
I want my kids, I do not accept this. I cannot live my life without them. I cannot do anything, I am by myself … I tell the truth that I feel.
Her answers are telling because there is a complete lack of any empathy for the children’s position and instead a complete focus on her needs and emotions rather than that of the children’s. I accept that the mother is sincere. It is her lack of insight that makes it so difficult.
It is incredibly sad for Z that he tells the ICL that he is not really able to remember his mother. It may well be that this is not literally true, but that Z at his age is unable to process and understand why his mother is not in his life. Given the twins ages, it is of no surprise that they feel abandoned and rejected by their mother and hurt. It must be remembered that these children are aware of the option of seeing a parent through a professional supervised service as they experienced that with their father. Most likely the children are unable to reconcile why the mother would not engage in that process. Worse still, the mother refuses, even to talk to the children via phone or video. I accept that again, it would be hard for the mother to see or talk to the children in such restricted circumstances when she fervently believes that the children are best in her full-time care. However, what this demonstrates is the mother being unable to prioritise the children’s needs over her own.
THE CHILDREN’S NEEDS
There is some evidence of the mother’s inability to consider the children’s needs before the parties separated. The father gives evidence of the mother’s refusal to allow him to seek NDIS supports for the twins. The mother was cross-examined about the assessments of the twins.
The father refers to the twins being diagnosed with learning disabilities when they were aged eight in 2016. The twins’ cognitive assessments are marked as Exhibit A. The twins were cognitively assessed again in 2019. The 2016 cognitive assessment refers to interviews with the parents about their family background and the twin’s developments. X repeated six months of four-year-old kinder before spending six months in Country D with his twin and his mother. The assessor noted that Y received significant small-group assistance throughout his time at primary school and his oral language abilities was an area of concern to his parents and his teacher. Y was also assessed as having a mild intellectual disability. The 2019 cognitive assessment confirmed that X continued to have speech and language difficulties. It was noted that X would benefit from one-on-one support and small-group learning.
The father says the mother never accepted that the children had learning disabilities. Despite the cognitive assessments, the father was unable to access NDIS supports for the twins. The father describes assisting the twins with their homework and says that for a period the twins were given different homework to their peers but did not like this as it made them feel different. As a result, the father asked teachers to give them the same homework. The father says that he assisted the children with their homework, as he had better English language skills than the mother, and also says that he attended all the school and medical appointments and that he had to convince the mother to attend school interviews.
The mother agreed that she blocked the father’s attempts to obtain help for the children in 2016 and 2019 because in her view the twins do not have a disability and do not need NDIS assistance. The mother said that the children needed a little support with studying and said that the father would sometimes help them and said that she followed up with the school all the time. It is however apparent that she has not made any contact with any of the children’s schools since October 2021.
The father’s Counsel read out the conclusion in the cognitive assessment for X. X was assessed as having a mild intellectual disability. The assessor recommended that the parents apply for support for studies with disabilities. Other recommendations were made to assist his learning. The mother confirmed that she had seen that report previously, but that she did not agree with that opinion, and confirmed that she does not believe the children have any disability and do not need NDIS assistance. The mother says that the children are healthy and there was nothing wrong with them, and that the twins do not have difficulty with their ability to understand or communicate, but may need a little extra support with studying.
The mother was asked if the children needed assistance from any other sources, and the mother answered with a question asking clarification as to what type of assistance they would need. The mother’s response is of some concern given it is very clear. in their cognitive assessments and the parents, themselves are referred to as talking about the twin’s delay in their speech when they were young, and it is also clear throughout their schooling as the children have received additional assistance. For the mother to query whether the twins needed any supports at all would mean that either the mother has been so uninvolved with their schooling and development, or that the mother has engaged in a form of wilful blindness where she simply will not accept any view that does not accord with her own regardless of any outside evidence.
Significantly, the mother acknowledged having seen those reports previously. Importantly, she does not accept the contents of those reports because they do not accord with her views of the children. It is a further example of the mother’s inability to provide for the children’s psychological and intellectual needs. I find that the father was simply trying to act on expert recommendations to assist the twins’ development and progress at school.
There is no evidence that raises any concerns about the father’s care of the children. I am satisfied that he is able to provide for the children’s needs from their physical, emotional, intellectual, and psychological needs. The mother has demonstrated that she is not able to provide for the children’s physical, emotional, intellectual, and psychological needs.
THE FATHER’S ATTEMPTS TO ARRANGE FOR THE MOTHER TO SEE THE CHILDREN
The mother was cross-examined about a series of text exchanges in 2022 while the children were in the father’s full-time care. These messages were not translated. The interpreter for the mother was asked to interpret the messages during the course of the mother’s cross‑examination. I note that wherever there was some doubt as to the correctness of the translation, I disallowed it. This is not a criticism of the interpreter. The task of interpreting oral evidence in conversations is a different task to translating a written document. It was clear from the interpreter’s attempts that at times she had some difficulty interpreting the whole of the text exchange because of the use of slang and dialect.
On 20 April 2022, the father messaged the mother asking to talk to her about the children and to see them. It was clear from the exchange that the mother was not interested in talking about the children or meeting the father and the children at Westfield as she only wanted to take the children. She disagreed that this was an attempt by the father for her to see the children and it was clear from her answers that she believes that the father intended for her to feel like she could see the children but that nothing would happen.
The mother does not accept that the father was upset at the situation of the children not seeing the mother and not having any communication with her. It was clear that the mother does not accept that the father was genuine and sees any attempts by the father to organise time between her and the children as further attacks on her. As I have said, the mother is either unwilling or unable to make any concession and has taken an all or nothing approach. It is because of this that the children have not had any communication with and have not spent any time with the mother since 21 October 2021. It seems that this is unlikely to change unless the mother seeks assistance. I am pessimistic about the mother doing this given the rigidity of her position and her consistent lack of insight into the children’s views and needs.
PARENTING GENERAL PRINCIPLES AND CONCLUSIONS
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The two primary considerations are:
(a)The benefit to the child of having a meaningful relationship with both their parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The second consideration prevails over the first when applicable.
There are 13 additional considerations which are set out in s.60CC(3). These considerations include the views of the child, the nature of the child’s relationship with their parents and significant others, the extent to which the parents have or failed to take opportunities to participate in decision-making, spending time with and communicating with the child, the likely effect of separation on the children, the attitude of the parents to the responsibilities of parenthood and the capacity of the parents and significant other persons to provide for a child’s needs.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being paramount.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
The definition of family violence in section 4AB of the Act is broad and covers a range of behaviours. Family violence is defined as:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
The section provides several examples of what may constitute family violence.
In closing submissions, the mother’s lawyer expressed the mother’s ability in doing her best to comply with Court orders. The mother has known nothing else ultimately outside of her role as a mother and a wife in that she has sacrificed her life in the dedication to the father and the children. She cannot accept anything else except that she was a good wife and a good mother. It was submitted that the mother would be devastated if she does not see the children. There is something missing in her understanding in participating in supervised visitations and being psychologically assessed. These submissions do not engage with the assessment I must make of the children’s best interests and protecting them from harm.
The father’s lawyer submitted that the Orders the father seeks is asking the Court to trust him to facilitate time with the mother, as he maintains an optimistic viewpoint about the mother while at the same time acknowledging the significant problems that need to be addressed. The father is open to the mother’s family supervising her time with the children, but unfortunately she has ostracised herself from them. There appears to be no filtering of the mother’s opinion of the father. Further submissions were made by the father’s lawyer about the mother’s allegations of family violence and that police have not engaged in any further proceedings regarding the Intervention Orders. As there was no mention about the Intervention Order by the mother’s lawyer and there being no further evidence provided particularly in regard to the supposed witness by the mother, Counsel submitted, the mother either made it up that another party was present and is prepared to lie or if they were called as a witness any evidence they provided would not support her version. I accept this submission.

The position of the ICL was for the father to have sole parental responsibility, for the children to live with him, and for the children to spend professional supervised time with the mother. The ICL raised two concerns with respect to supervised time. The first is that the mother would not attend, and the second is that if an order for supervised time were to be made and the mother did not attend, the children would again feel abandoned. It is the ICL’s wish for the mother to be able to send cards and gifts for the children’s birthday, Easter and Christmas, however due to her lack of contact and evidence before the Court it has created a no time case. The mother has failed to attend the Family Report and psychiatric report, and her conduct has led to recovery orders being issued and the children being placed in the father’s care.
Counsel for the ICL further submitted that the presumption of equal shared parental responsibility is clearly rebutted based on the mother’s conduct throughout the proceedings, and it is not in the children’s best interests for equal shared parental responsibility. There is clear evidence that the mother lacks an understanding of parenthood and will not accept change. She lacks insight into her own behaviour or the father’s importance in the children’s lives, and poses a real risk of psychological harm to the children. The mother has not put any evidence before the Court to say she does not pose a risk. While it is clear that the mother loves the children, the mother has not put evidence before the Court to say that she does not pose a risk. The children have a loving relationship with the father and each other. Real weight should be placed on their wishes.
I find that it is in X, Y, and Z’s best interests to have a meaningful relationship with both their parents. The children enjoyed this until the mother ceased contact with them in October 2021. However, there needs to be safeguards in place for the children to re-engage with the mother because of the risks the mother poses.
I propose to make the orders sought by the father with respect to the parenting matters and will discharge the ICL. I am very aware that it is highly unlikely that the mother will take up any invitation to communicate with the children or spend time with the children supervised or with other conditions. The father is prepared to accept given her clear stance that it be all or nothing. It will be open to the mother to bring a further application for parenting orders and establishing a significant change of circumstances.
As it stands, there was no insight shown by the mother as to the fact that the reality is, that at the moment, she does not have suitable accommodation for the children. Yet her position remains that the children should be immediately returned to her care. It is unlikely that the mother is going to be able to secure stable accommodation if she continues to refuse to engage with the requirements of Centrelink and other agencies that she does not agree with.
I certainly accept that cultural issues have a significant role to play in this matter but having had the benefit of observing the mother over three days and hearing her evidence, I am not satisfied that this is the case of the mother being overwhelmed and unable to understand and effectively participate in the Court proceedings. It is not a case of the mother not understanding those requirements; but her deliberate choice not to engage with those requirements. It is clear that her lawyer has persevered in trying to have the mother engage with what is required of her in these proceedings, and indeed it is clear that in that regard, he has been able to do just that.
In fact, it was clear that the mother understood well the importance of Court orders and what they provided for but it was quite clear in her position that if she did not agree with them, she would not comply with them despite at the same time professing to have respect for the Court process.
I find that it is not in the children’s best interests for the parents to exercise equal shared parental responsibility as the mother seeks and I will make an order for the father to have sole parental responsibility for the children. This is not only because of the complete lack of any workable communication between the parties, but also because of the mother’s lack of capacity to address the children’s emotional, psychological and intellectual needs. It is clear that the mother treats any communication from the father with suspicion and sees it as attacking or manipulating her. With respect to developmental and education issues, it is apparent from the mother’s own evidence that she would obstruct attempts to obtain extra assistance for the twins outside of school. Z is only seven. I do not have evidence about Z’s school performance. The father merely says the children are doing well. I am satisfied that if Z does need assistance at some point the father will arrange it and support him.
I have referred to the family violence allegations earlier. I am not satisfied that there was significant family violence. There are inconsistences in the mother’s evidence. I am not satisfied that the mother was mistreated by the father and his family.
I find that it is in the children’s best interests to remain living with their father. There is no evidence to suggest the negative wellbeing of the children’s welfare in their father’s care. The father describes his daily routine with the children in his affidavit and the activities they engage in. The father has extended family support. He is living with his mother and his sister lives down the street with her family. The children attend the same school as the twins. The children each have their own rooms.
I am also satisfied that the father will facilitate the children’s relationship with the mother’s extended family if the opportunity arises. He did so when the mother’s sister visited last year including asking her to see if she could assist with the mother seeing the children.
It is a distressing situation for the children, and my impression is that the father is quite at a loss as to what to do and cannot understand the mother's approach to this. It is completely understandable that he would be fearful that if he allowed the mother to spend unsupervised time with the children she would refuse to return them to him.
I accept the ICL’s submissions about the children’s views. From their perspective their mother has abandoned them without explanation. Their last interaction with the mother was when the Australian Federal Police attended her home for the second time.
The mother is a risk to the children as she is unable to recognise the harm she has caused them. She is unable to identify and protect their emotional needs. She exposed them to trauma of the police removing the children from her, not once but twice. The second time is more egregious as it followed shortly from the first. The mother acknowledged how traumatic it was for herself and the children yet could not acknowledge or accept any responsibility in how her actions alone lead to both these incidents occurring.
There is also a real risk that if the mother spends unsupervised time with the children she will refuse to return them to the father’s care, thereby exposing them to further trauma if it is necessary for the Australian Federal Police to intervene again.
Ultimately, I am bound to make orders that are in the children's best interests. I cannot ignore the risk the mother poses to the children due to her attitudes and ongoing refusal to comply with Court orders that would have placed evidence before the Court enabling it to undertake the assessment it is obliged to do. It is unlikely that this position is going to change. There is no utility making interim orders and giving the mother an opportunity to comply with the orders and put her evidence before the Court.
Indeed, initially in response to my chambers compliance check as to the readiness of this matter for trial, the ICL expressed the view that the matter would need to be adjourned because of the absence of a family report and a psychiatric assessment of the mother. Given the mother's stance, I can have no confidence that the mother would comply with those orders if given a further chance to do so and the mother did not seek that opportunity. Rather she says the Court should simply return the children to her full-time care and rely on her proposal to the Court that she would make the children available to see the father. The reality is that it is unlikely that the children will have a relationship with their mother unless the mother can obtain assistance to help her understand the impact of the rigidity of her views on the children.
As devastating as it will be for the mother, it is simply not possible for the Court to make orders for the mother to spend time with and communicate with the children. Such time and communication would need to be supervised in order to protect the children from further emotional and psychological harm. It will be a matter for the mother to address these concerns and seek supports.
I am satisfied that the father will facilitate the mother’s relationship with the children if it is safe to do so. Unfortunately, it appears more likely that the mother will choose not to have a relationship with the children.
PROPERTY
The parties’ relationship lasted from 2005 to 2020, being 15 years. I will first identify the parties’ existing legal and equitable interests. I will then discuss the parties’ contributions and relevant s.75(2) factors.
THE PARTIES’ LEGAL AND EQUITABLE INTERESTS
The asset pool is small. The main asset of the parties’ is the proceeds of sale of the former matrimonial home at B Street Suburb C, which are held in the father’s lawyer’s trust account in the sum of $160,468 as indicated by the parties on 29 March 2023. The mother has Motor Vehicle 1 worth $7,000 and the father has superannuation of $4,095. The mother will keep her motor vehicle and the father will keep his superannuation.
The parties have agreed to interim distributions of funds from the monies held in trust over the course of the proceedings. The distribution of funds that have been made in the proceedings so far are set out below:
·$9,000 for the cost of the psychiatric reports;
·$14,367 to be applied to the twin’s school fees for the 2022 school year;
·$17,645 in orthodontic expenses for the twins; and
·$2,625 each as part property settlement.
On 31 March 2023, the parties agreed to a further distribution of funds in the sum of $20,750 each as a part property settlement.
The sums for the children’s school fees and orthodontic expenses were appropriate.
The father complained about incurring significant legal costs because of the mothers’ non‑compliance with orders. The mother complained about the legal costs she has incurred in issuing subpoenas because of the father's failure to respond to requests for financial disclosure. Both parties have contributed to the increase in costs in these proceedings but their behaviour is to the disadvantage of both of them.
No enquiries have been made of Dr F as to whether or not he is willing to refund the $4,500 for the mother’s assessment which she refused to do. The father’s Counsel made submissions with respect to costs being reserved due to the mother’s non-compliance. As the father complied with that order and underwent that assessment and in light of the reserved costs orders, if the father is able to secure that refund he shall be entitled to keep that sum.
Neither party made any submissions about addbacks of the part property settlements paid to the parties.
The figure used at trial of $160,468 for the net proceeds of sale is prior to the further part property settlement of $20,750 being distributed to each of the parties on 31 March 2023 which I will notionally addback into the asset pool.
I will also notionally addback the earlier part-property payments to the parties of $2,625 each.
With those sums notionally added back, I will have to divide $165,718 between the parties.
ASSESSING THE PARTIES’ CONTRIBUTIONS
The evidence with respect to the parties’ finances is inadequate and their financial circumstances is somewhat opaque. The father says that he is reliant on Centrelink and denies the mother’s assertion that he worked in a family business. He says that occasionally they both helped out in a family business early in their relationship. He says he has occasionally worked for his brother.
The mother did not have assets of any significance at the beginning of the relationship. The father had equity in the property at G Street Suburb J (“Suburb J property”) which he purchased before the parties married when he was aged 20 or 21. The father says he rented that property out and the parties initially lived with his parents before moving into the property after the tenants moved out and the twins were born.
When cross-examined by the mother’s lawyer, the father confirmed that his family had to sponsor the mother for two years as at that time the Suburb J property was being rented out and they were staying with his parents.
The father says that the mother has never engaged in paid employment outside of the home and was reliant on Centrelink benefits throughout the relationship. Despite this, the parties have funded the children attending private school with the father estimating the school fees as being $20,000 a year.
The father claimed that their Centrelink benefits gave them an income of about $3,000 or $4,000 a month and that it was enough to pay the mortgage and family expenses for three children. When pressed further he referred to doing some cash jobs and receiving support from his family. The father provides no evidence as to what support his family has provided over the years and does not provide any evidence about his parents’ financial circumstances.
The father denied the mother’s allegations that he went to work early and returned home late. He did say that sometimes his brother would offer him some work when his brother could see he was struggling financially. When asked how often this occurred he said sometimes once a week. His evidence was vague and unsatisfactory as to how often this occurred over a period of months. He denied working as a tradesperson said he would buy things and deliver things on behalf of his brother and says he does not have any qualifications.
The father agreed that the mother worked at his family’s business a couple of times when they were first married. He claims they would assist from time to time free of charge and that family do not need to be paid for that. He denied working there as an employee and was vague about whether it was his brother or sister who owned the business.
The father claims that the mother could have obtained work after the children started school but chose not to, and says at one point the mother did a course but which she did not complete. The father said there was no expectation of why the mother stayed at home and cared for the children as his own mother is an educator and that their culture is not as the mother portrays it.
When it was suggested to him that the mother has not worked or could not go out of the household, the father said she travelled overseas twice and that he had offered her a part-time job which she refused. With respect to part-time work, it is unexplained as to why the father never obtained employment in his case.
Dr F commented that the father was vague and imprecise and appeared to be engaging in some manoeuvring on his part in regard to his employment. He further noted the Mother’s claim that he worked for his brother in another business.
The father complains that the mother has not provided any financial disclosure. There is no evidence that the mother has any source of income, she would however have a bank account. The mother deposes to setting up an account in her sole name in 2019 to receive her Centrelink benefits.
The father’s account of his work and being involved in a business and his finances were vague which is consistent with this evidence before me. The father’s evidence about his financial circumstances is unsatisfactory. I am not satisfied that he has properly discharged his disclosure obligations.
I have real doubts that Centrelink has been the only source of the parties’ income throughout the relationship as it is difficult to see how they could have afforded to send money to the mother’s family overseas and to send the children to private schools as well as pay daily household expenses. In his trial affidavit, the father deposes that he and the mother shared household duties equally. I have little evidence about this. I accept that it is likely that the mother had the greater responsibility in caring for the children and carrying out homemaking tasks. It is also likely that at various times the father has worked for cash. I do not accept the father’s contention when pressed in cross-examination that the figures “add up” and their Centrelink benefits covered all of their expenses.
Neither party refers to receiving any inheritances or gifts from family.
The father denied controlling the money and says the mother always had access to funds and I accept this given the mother herself referred to the Centrelink payments being paid into a joint account.
The mother’s lawyer cross-examined the father about some of the transactions regarding the statements annexed to the mother’s affidavit after the successful mortgage application of $190,000 was deposited into the account. Various amounts totalling $13,400 were withdrawn where the father said this was to close the P Bank credit card. When questioned about the regular withdrawals of $2,241, the father said those payments were for the mortgage. He said there were further cash withdrawals to assist the mother’s father in Country D as they were in debt and was near to selling their house, which the father did not want them to do. The father claims to have helped both the mother’s brothers for their weddings and sent money to the mother’s family one time via his aunt, and another by arranging someone in Australia to send money. The father also claims that he kept some cash in his wardrobe. He said at one stage they were struggling and the money was there so the mother could use it.
The father sold the Suburb J property in 2013. He purchased B Street Suburb C (“Suburb C property”) in late 2013 for $467,000 in his sole name using the net proceeds of sale of the Suburb J property totalling approximately $250,000 towards the purchase and as well as taking out a mortgage. I will discuss the circumstances in which the father obtained the mortgage below.
In 2017, the father refinanced the mortgage taking out a $191,000 mortgage with ANZ bank. The mother complained that she was not consulted and did not know about the refinance at the time. The father’s trial affidavit is silent in relation to the refinancing of the mortgage and the circumstances of it.
Mortgage and Section 128 Certificate
The father gave oral evidence that he sought the refinancing of the mortgage as the parties were struggling financially. He says the mother was aware of this. He claims that he went to a well‑known mortgage broker in the community who he paid $5,000 - $10,000 to help them obtain the refinance.
It was necessary to grant the father a s.128 certificate pursuant to the Evidence Act (Cth) 1993 with respect to his evidence of obtaining the mortgage.
The mother’s lawyer subpoenaed the loan records from the bank and the finance application was tendered as Exhibit F. The father lodged the finance application with K Bank in February 2013 as the sole applicant. The father claims to be in full-time employment with L Company and claims to have been employed there for five years and two months with a salary of $55,000 per annum gross. He sought to borrow $300,000 for the purchase of the Suburb C property having $200,000 of his own to contribute to the purchase of the property. He also claims to have had $25,000 in superannuation at that time. With the benefit of the s.128 certificate, the father gave evidence that the information in the loan applications was false. The father acknowledged that he knew the broker was giving false information to the bank and that he signed the loan application with this knowledge. During this evidence I expressed my scepticism about the likelihood of a broker engaging in such conduct, which extended to creating false documents such as payslips. The father then claimed that he did not read everything in the application and that as they were desperate at the time, he did not know exactly what the broker was doing.

The father says he needed to refinance the mortgage in 2017 as they were struggling financially and again went to a mortgage broker he found through the community and paid between $5,000 and $10,000 for the broker to fraudulently obtain the loan. He says the broker obtained the loans on both occasions by falsifying documents and providing false information in the loan application as he otherwise would not have been able to obtain a loan being solely reliant on Centrelink benefits.
The mother annexes the 2017 loan application to her affidavit. In that loan application, the father claims to be a tradesperson and claims to have been employed with M Company as a tradesperson for one year, earning $1,000 a week after tax. The mother annexes the bank documents from subpoenaed material, which includes an offer of a home loan in the sum of $470,000 to the father dated mid-2017. In that application, the father claims to have a net average monthly wage of $5,400, and after expenses and amount of $1,438 remaining for the month. There were also payslips attached to the application, including from N Pty Ltd. An email exchange between N Pty Ltd and the mother’s lawyer was tendered as Exhibit D indicating that N Pty Ltd had never employed the father.
I do not accept that the father was not aware that he was engaging in false conduct and when challenged by me he said that he would have gone bankrupt. Again, he said he paid the broker $5,000 to $10,000 for the broker to take care of the application and said that “it is not like I was the first one, others do it.” This does the father absolutely no credit. I am satisfied that the father engaged in dishonesty in order to obtain loans from the bank that he otherwise would not have been granted.
In closing submissions, the father’s Counsel referred to the number of dishonoured fees charged as the account become and remained overdrawn. He said that this was because the father drew down on the mortgage account to pay the mortgage and school expenses. Those statements show consistent withdrawals with little income and are consistent with this.
Helpfully, the father’s Counsel referred to two decisions: DPP v Shah [2017] VCC 1448 and Zaia v R [2020] VSCA 9. Those decisions concerned criminal sentences for mortgage brokers who targeted particular community groups who would assist people by lodging loan applications with false information and documents. I find on the balance of probabilities that the father engaged dishonest brokers to help him obtain mortgages based on false information. I am not satisfied that the father has significant hidden funds somewhere. I find that he has worked for his brother and probably other family members from time to time for cash to supplement his Centrelink income.
The mother lodged a caveat over the Suburb C property in mid-2019 to protect her interests. She says that in early 2020 the father placed the Suburb C property on the market for sale without consulting her. The mother says that the sale eventually fell through as they could not agree on a property division and where she and the children would live. The father gives a different version of events in his affidavit.
The mother says that she received a letter in late 2020 from O Lawyers, a law firm representing ANZ Bank enclosing a default notice due to the mortgage being in arrears. I accept the mother's evidence that this was very distressing and stressful for her. I accept that the mother did not have a good understanding of the parties’ finances. I do not accept the mother’s claim that the father excluded her from such information. It is more likely that her focus was on the children and that she was content to leave the financial details to the father who has better English than her and he had previous experience having previously bought a property.
The father deposes that he offered to pay the bond and first month’s rent for the mother after finding suitable rental properties for her and the children but that the mother did not like them. Although the mother denies this, I prefer the father’s evidence on this point.
The mother also complained that the father charged her rent after he vacated the home. The father disputes this and says that he told the mother that he could not afford to pay all of the mortgage and asked her to pay half of it. He denies charging the mother rent. I accept the father's evidence that he did not ask the mother to pay rent, but rather asked her to contribute to the mortgage. I also accept that the mother may well have understood this to be paying rent rather than contributing to the mortgage.
The mother annexes a series of letters to her affidavit between the parties’ lawyers where the mother's lawyer asked for the father to disclose his financial circumstances in order to pay the arrears of the mortgage so that the Suburb C property did not need to be sold, or alternatively for the father to pay spousal maintenance and moving costs for bond and rent for the mother to move to a new property with the children. She says that the father’s lawyers did not respond.
The mother also annexes several ANZ bank statements with certain withdrawals highlighted. By 2020, the ANZ statements indicated that the account was overdrawn and incurred ongoing dishonour fees for being overdrawn. This continued for several months without any credits being paid and the debt continued to accumulate over the year because of the overdrawn fees and interest charges.
The mother obtained transaction statements from Centrelink to show the benefits that she received over the course of the relationship. She complains that the father did not do the same despite being requested to do so.
The father’s lawyers trust account shows the father making regular payments for his legal fees in 2021 and 2022, although with less regularity the father says this is with family assistance. The mother has not been in a position to pay any of her legal fees.
The father claims that he received carers’ payment for caring for his father up until his death in 2022 however provides no details of this.
The parties have continued to make contributions post separation. For the first 19 months after separation, the mother had primary care for the children and did not receive any significant financial support from the father. The father has had sole care for the children for 17 months and has not received financial support from the mother. Given my findings with respect to the parenting matters, it is likely that this situation will continue.
RELEVANT SECTION 75(2) FACTORS
At the end of the trial, the parties put their respective positions with respect to the appropriate adjustment for contributions and relevant s.75(2) factors which include the income, property and financial resources of the parties, their age and health, the commitments to support any other person and responsibility to care for children.
The father relies on Centrelink benefits for himself and the children.
The mother currently has no source of income and is completely reliant on the part property settlements she has received. The mother is estranged from her family and is without support. If the mother has her Centrelink benefits reinstated, that is likely to be her sole source of income.
The father has the fulltime care of the three children and is unlikely to receive child support from the mother. There is no evidence about the earning capacities of the parties but it is likely to be modest. The mother has never worked in Australia outside of for the family. She speaks conversational English but is not fluent. As mentioned earlier it is likely that the father has worked for family members and may still from time to time.
The children are all at school so the father could work at least part time. The father has not given any evidence about the financial circumstances of his family. He lives with his mother and has support of various family members including living with his mother rent free.
PROPERTY GENERAL PRINCIPLES AND CONCLUSIONS
Part VIII of the Family Law Act governs property, spousal maintenance and maintenance agreement between married couples. The major provisions relating to marital property division are contained in ss.79(1); 79(2); 79(4); & 75(2).
The High Court considered the operation of s.79 of the Family Law Act (which has almost identical terms to s.90SM) in the matter of Stanford v Stanford (2012) 247 CLR 108. In this case, the majority stated at [35]-[36] that:
It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.”
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.” [Footnotes omitted]
The High Court found three fundamental propositions with respect to the application of s.79, which can be summarised as follows:
Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word ‘existing’.
Secondly, although s.79 gives the court a broad power to make property settlement orders it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests.
Thirdly, when considering whether making a property settlement order is just and equitable the court must not assume that one or the other party has the right to a property adjustment order. The court must give separate consideration to s.79(2) in addition to the matters referred to in s.79(4).
In Stanford the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of s.79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation. Both parties seek property adjustment orders.
The High Court also pointed out that what is just and equitable is different in every case.
It is important to have regard to the myriad of contributions the parties have made over the whole of their long relationship and take a holistic approach to the assessment of the parties’ contributions.
At the commencement of the trial, both parties were seeking a 90% adjustment of the net proceeds of sale in their favour. 10% of the adjusted net proceeds is $16,571.80. The father’s Counsel proposed in closing submissions that after the further agreed part property settlement of $20,750, the mother be paid a further $60,000 with the father to retain the remainder. In percentage terms, the mother would receive 62%.
The father says the parties’ contributions should be assessed as equal but did not set out the percentage adjustments with respect to contributions and s.75(2) factors. Under s.75(2) adjustments, the mother seeks 90%. I take this to mean she seeks an overall adjustment of 90% in her favour based on contributions and s.75(2) factors.
With respect to contributions, the father made initial contributions with respect to the equity in the Suburb J property. However, there is no evidence as to the value of the equity in the Suburb C property at the beginning of the relationship. The father claims to have had made several financial contributions to the mother’s family but provided no details. The mother did not concede this.
The mother’s Centrelink benefits were paid into a joint account as well as making homemaking contributions.
The father applied for credit cards with significant limits at the same time as the mortgage. The father obtained the mortgages through deception and it appears likely that the parties struggled to service the mortgage. It is unclear as to how the father will be able to pay the private school fees in the future unless it is with family support or an undeclared income.
The father claims he was able to pay his legal expenses through his Centrelink payments, living with his mother, as well as receiving financial support from his brother in law and other family members.
The father did not answer the question posed by the mother’s lawyer about his family’s resources and simply said his family were just helping out and that he was sure he has to repay them. I do not accept that he has to repay any sums to his family.
During closing submissions, the mother’s lawyer submitted that the mother owes significant legal fees, which he may need to negotiate with the mother given she also needs money for living expenses and to rehouse herself.
The father’s financial position is not clear, as such significant legal fees have been incurred. It is not clear as to whether the father has income from other circumstances, and if he is capable of paying a financial settlement. The father had to be questioned extensively in order to understand his financial circumstances, where he blames the broker for the fraudulent loan application. The father however has to take responsibility for his actions.
The father has other resources and capacity to pay for the children however it is still unknown as to whether he is working or not. The offer provided by the father does not take into account the legal fees incurred by the mother and her further living expenses. It was further submitted that the father has resources from his family that could pay his legal fees and that regardless of the outcome, the mother will suffer for better or for worse.
Counsel for the father sought to clarify the father’s finances by submitting that the father was paying the mortgage and the children’s school fees through the overdraft, and that he had done this throughout the marriage. The father’s initial resources are now depleted save for what is available from the proceeds of sale. There is no prospect for either party to purchase another house. It is highly unlikely that the mother will be able to contribute child support. There is no explanation as to why she is unable to obtain employment, in the least obtain JobSeeker.
His Counsel further submitted the contributions the father has made from October 2021 to the end of the trial have been significant as he has borne the brunt of the care of the children with no help from the mother. A highly relevant factor is the fact that as the father’s case for the children is successful, the father will have the care of the children. The suggestions that the father has worked significantly is mere speculation. There is an explanation for the fraudulent loan applications, and Counsel directed my attention to two decisions I mentioned previously. The father obtained the loans as he was desperate, and his actions were for the benefit of the family. It was submitted that there is no evidence that the father’s superannuation has been drawn down and its current value is under $5,000 and the tendered document of the father not being employed by N Pty Ltd is inappropriate, but cannot be construed as a negative contribution to the family finances.
Further, although the father has failed to disclose documents, the reality is that almost no documents have been provided by the mother and as such I am at a loss as to how she has financially managed to survive. The Court should take a broader view that the parties are essentially on Centrelink and have used this to finance their lifestyle.
The mother has had her Centrelink benefits cut which has resulted in her being homeless and staying at various motels. She has had some savings and received partial property settlements and her lawyer has attempted to assist her in restoring her Centrelink benefits. It seems likely that the mother's benefits were cut because she failed to comply with Centrelink obligations. It is another example of the mothers’ rigidity and inability or unwillingness to do anything that she disagrees with even if it would be to her benefit.
As I have indicated, the mother’s lawyer has acted for the mother often acting beyond the scope of what a lawyer is expected to do. I raised during closing submissions that the mother would need a social worker. Lawyers are not social workers. The mother will need assistance to navigate the various filing of forms and bureaucracy moving forward.
I find that the father made the greater initial contributions having some equity in the Suburb J property and that he and the mother lived with his parents initially. The adjusted net pool is smaller than that. It is important to consider the myriad of contributions the parties made over their relationship and the broad nature of financial and non-financial, direct and indirect contributions that both parties made, including as homemaker and parent, as well as the contributions made post separation.
There are significant s.75(2) factors favouring both parties. While the father has the fulltime care of the children and receives no child support, he also has the benefit of significant family support including rent-free accommodation. There are also aspects of his finances that are unsatisfactory and there is no evidence as to any attempts by the father to secure some type of employment.
Considering all of these factors, I consider it is just and equitable for the father to retain his superannuation, the mother to keep her car, and the adjusted net proceeds of sale to be divided as to 70% to the mother and 30% to the father.
I make the orders at the beginning of these reasons.

I certify that the preceding two hundred and thirteen (213) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland.
Associate:
Dated: 25 May 2023

File number(s):	MLC2127 of 2021
Judgment of:	JUDGE HARLAND
Date of judgment:	25 May 2023
Catchwords:	FAMILY LAW – parenting and property –father seeks sole parental responsibility – mother’s non-compliance with orders – mother fails to demonstrate understanding of the children’s needs – mother’s lack of insight –whether or not there is an unacceptable risk to the children in the mother’s care - mother facing homelessness –small asset pool – 15 year marriage
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 75(2), 79
Cases cited:	DPP v Shah [2017] VCC 1448 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 MRR v GR [2010] 240 CLR 461 Waterford & Waterford [2013] FamCA 33 Zaia v R [2020] VSCA 9
Division:	Division 2 Family Law
Number of paragraphs:	213
Date of last submission/s:	31 March 2023
Date of hearing:	29, 30 and 31 March 2023
Place:	Melbourne
Solicitor for the Applicant:	Mr Bevan-Rhys James of Bevan-Rhys James
Counsel for the Respondent:	Mr Combes
Solicitor for the Respondent:	Zouki Lawyers
Counsel for the Independent Children's Lawyer:	Ms Crotty
Solicitor for the Independent Children's Lawyer:	VM Family Lawyers

MLC2127 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS ZIDAN Applicant
AND:	MR OMRAN Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE HARLAND
DATE OF ORDER:	25 MAY 2023