Castaneda & Castaneda

Case [2023] FedCFamC1F 1017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Castaneda & Castaneda [2023] FedCFamC1F 1017

File number(s): SYC 8412 of 2021
Judgment of: ALTOBELLI J
Date of judgment: 29 November 2023
Catchwords:

FAMILY LAW – PARENTING – Where each party seeks the children live with them and spend significant and substantial time with the other parent – Where a child has special needs – Where the mother has always been the primary carer – Allegations made by the father that the mother has mental health issues – Family violence allegations – Children’s schooling – It is ordered that the children live with the mother and spend time with the father.

FAMILY LAW – PROPERTY – Where the father is employed as a professional and has always had a high income earning capacity – Discussion of post-separation contributions – Where the father has significant financial resources – It is ordered that an adjustment be made in favour of the mother for future needs.

FAMILY LAW – SPOUSAL MAINTENANCE –Where the father has capacity to pay – Where it is found the mother is in need of spousal maintenance.

FAMILY LAW – CHILD SUPPORT ORDERS – Application for departure from the administrative assessment of child support made pursuant to Child Support (Assessment) Act 1989 (Cth) s 116.

Legislation:

Child Support (Assessment) Act 1989 (Cth) ss 116, 117

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 74, 75, 79
Cases cited:

Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116

Bilts & Broigalman [2013] FamCA 578

Carter & Wilson [2023] FedCFamC1A 9

Chorn and Hopkins (2004) FLC 93-204; [2004] FamCA 633

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

F v M [2021] EWFC 4

Ferraro and Ferraro (1993) FLC 92-335; [1992] FamCA 64

Hall v Hall (2016) 257 CLR 490; [2016] HCA 23

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

Illgen & Yike [2018] FamCA 17

Marsh & Marsh (2014) FLC 93-576; [2014] FamCAFC 24

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Ramzi & Moussa [2022] FedCFamC2F 1473

Re G: Children’s Schooling (2000) FLC 93-025; [2000] FamCA 462

Saxena v Saxena (2006) FLC 93-268; [2006] FamCA 588

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

Trask & Westlake (2015) FLC 93-662; [2015] FamCAFC 160

Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Division: Division 1 First Instance
Number of paragraphs: 205
Date of last submission/s: 29 September 2023
Date of hearing: 25-29 September 2023
Place: Sydney
Counsel for the Applicant: Mr Dura
Solicitor for the Applicant: Lander & Rogers
Counsel for the Respondent: Ms Rebehy
Solicitor for the Respondent: Brigid Justice Ltd

ORDERS

SYC 8412 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR CASTANEDA

Applicant
AND:

MS CASTANEDA

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

29 NOVEMBER 2023

THE COURT NOTES THAT:

A.The following definitions apply for…

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Castaneda & Castaneda [2023] FedCFamC1F 1017
Case
[2023] FedCFamC1F 1017
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CaseChat Overview and Summary

This case involves a dispute between Mr and Ms Castaneda over the care and upbringing of their two children, X and Y, and the division of their property. The father, a professional with a high income, and the mother, who has primarily been the children's caregiver, have differing views on the parenting arrangements and the division of assets post-separation. The court had to determine the best living arrangements for the children, considering their relationship with both parents, the risk of harm, and the likelihood of change causing harm. The court also needed to decide on the division of property and financial orders, including spousal maintenance.

The court found that both parents have meaningful relationships with the children and that the children would benefit from continued contact with both. The court was particularly concerned with the mother's capacity for emotional regulation, given the father's allegations of her emotional dysregulation. However, the court did not find that the mother's emotional state would significantly harm the children if she remained the primary caregiver. The court decided that the children should live with the mother but spend significant time with the father, with specific arrangements for school terms and holidays to minimize disruption and transitions for the children. The court also ordered that the father pay spousal maintenance to the mother and made specific orders regarding the division of property, including the transfer of the matrimonial home to the mother and the management of financial accounts and retirement funds. The court further addressed communication between the parties and the children, the management of the children's passports, and the care and education of the children.

Orders

Orders of the court

SYC 8412 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR CASTANEDA

Applicant

AND:

MS CASTANEDA

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

29 NOVEMBER 2023

THE COURT NOTES THAT:

A. The following definitions apply for the purposes of these orders:

(a) “the children” means Y and X collectively;

(b) “Family Dogs” means the parties’ family dogs;

(c) “the Father” means Mr Castaneda;

(d) “Y” means Y born 2013;

(e) “X” means X born 2011;

(f) “the Mother” means Ms Castaneda;

(g) “non-school day” means a public holiday or any other day that the children are not required to attend school during any particular school year;

(h) “parent” means Mr Castaneda and/or Ms Castaneda;

(i) “parties” means Mr Castaneda and Ms Castaneda;

(j) “school” means any primary or high school that X or Y is enrolled in and attends; and

(k) “Suburb D property” means the property known as and situated at C Street, Suburb D in the State of New South Wales being the whole of the land comprised in Certificate of Title Folio Identifier ….

THE COURT ORDERS THAT:

1. All previous orders are hereby discharged.

Parental Responsibility

2. The Mother and the Father have equal shared parental responsibility for all major long‑term decisions regarding the children which includes the children's health, education, religious and cultural upbringing and any changes in living arrangements which make it significantly more difficult for the children to spend time with a parent.

3. The Mother and the Father shall have sole responsibility for making decisions about the day to day care, welfare and development of the children during periods when the children are in his/her respective care.

Time

4. The children live with the Mother, conditional upon her continuing to attend counselling/therapy with and follow the recommendations of her mental health practitioners in relation to her emotional and mental health.

5. Unless otherwise agreed between the parties in writing, the children spend time with the Mother and the Father during school terms, on a fortnightly basis, as follows:

(a) In Term 1, 3 and 4, on a fortnightly basis:

(i) In week one:

A. With the Mother from 3.00 pm or the conclusion of school on Monday to 3.00 pm or the conclusion of school on Thursday;

B. With the Father from 3.00 pm or the conclusion of school on Thursday to 3.00 pm or the conclusion of school on Monday;

(ii) In week two:

A. With the Mother from 3.00 pm or the conclusion of school on Monday to 3.00 pm or the conclusion of school on Thursday;

B. With the Father from 3.00 pm or the conclusion of school on Thursday to 3.00 pm or the conclusion of school on Friday;

C. With the Mother from 3.00 pm or the conclusion of school on Friday to 3.00 pm or the conclusion of school on Monday;

(b) In Term 2, on a fortnightly basis:

(i) In week one:

A. With the Mother from 3.00 pm or the conclusion of school on Monday to 3.00 pm or the conclusion of school on Thursday;

B. With the Father from 3.00 pm or the conclusion of school on Thursday to 3.00 pm or the conclusion of school on Friday;

C. With the Mother from 3.00 pm or the conclusion of school on Friday to 3.00 pm or the conclusion of school on Monday;

(ii) In week two:

A. With the Mother from 3.00 pm or the conclusion of school on Monday to 3.00 pm or the conclusion of school on Thursday; and

B. With the Father from 3.00 pm or the conclusion of school on Thursday to 3.00 pm or the conclusion of school on Monday.

6. Unless otherwise agreed between the parties in writing, the children spend time with the Mother and the Father during the school holiday periods, as follows:

(a) For the Term 1 school holiday period:

(i) With the Mother, for the first 13 nights of the school holiday period, with changeover to occur at 3.00 pm on the day after the 13th night;

(ii) With the Father, from 3.00 pm on the day after the 13th night of the school holiday period until the conclusion of school on the first day of Term 2 that either or both the children are required to attend;

(b) For the Term 2 school holiday period:

(i) With the Father, for the first 13 nights of the school holiday period, with changeover to occur at 3.00 pm on the day after the 13th night;

(ii) With the Mother, from 3.00 pm on the day after the 13th night of the school holiday period until the conclusion of school on the first day of Term 3 that either or both the children are required to attend;

(c) For the Term 3 school holiday period:

(i) With the Father, for the first half of the school holiday period;

(ii) With the Mother, for the second half of the school holiday period, until the conclusion of school on the first day of Term 4 that either or both the children are required to attend; and

(iii) Changeover will occur at 3.00 pm on the middle day of the school holiday period, and if there is no middle day, the children are to spend an additional day with the Mother.

7. For the Term 4 school holiday period, unless otherwise agreed between the parties in writing, the children spend time with the parties as follows:

(a) With the Mother from the commencement of the school holiday period until 3.00 pm on Christmas Day in even-numbered years, or until 3.00 pm on Christmas Eve in odd-numbered years;

(b) With the Father from 3.00 pm on Christmas Day until 3.00 pm on New Years Day in even numbered years or 3.00 pm on Christmas Eve until 3.00 pm on New Years Eve in odd numbered years;

(c) With the Mother from 3.00 pm on New Years’ Eve in odd-numbered years or from 3.00 pm on New Years Day in even-numbered years until 3.00 pm on 10 January;

(d) With the Father from 3.00 pm on 10 January until 3.00 pm on 24 January; and

(e) With the Mother from 3.00 pm on 24 January until the end of the school holiday period.

8. For the purpose of implementing these orders:

(a) School holidays commence at 3.00 pm on the last day of each school term that either or both the children are required to attend school;

(b) Week one is defined as the first week of each school term that either or both the children are required to attend school one or more days; and

(c) In the event there is a discrepancy between X and Y’s academic calendars, the parenting arrangements will be determined by X’s academic calendar.

9. Notwithstanding the above orders, the children spend time with the Mother and the Father as follows:-

(a) With the Mother:

(i) On Mother’s Day from 10.00 am until 3.00 pm or the conclusion of school on Monday;

(ii) On the children’s birthdays, from 3.00 pm or the conclusion of school on the day before the child’s birthday until 3.00 pm or the conclusion of school on the child’s birthday;

(iii) On the Mother’s birthday, from 3.00 pm or the conclusion of school on the day before the Mother’s birthday until 3.00 pm or the conclusion of school on the Mother’s birthday;

(iv) On Thanksgiving, in odd-numbered years, from 3.00 pm or the conclusion of school until 3.00 pm or the conclusion of school the following day.

(b) With the Father:

(i) On Father’s Day from 10.00 am until 3.00 pm or the conclusion of school on Monday;

(ii) On the children’s birthdays, from 3.00 pm or the conclusion of school on the child’s birthday until 3.00 pm or the conclusion of school the following day;

(iii) On the Father’s birthday, from 3.00 pm or the conclusion of school on the day before the Father’s birthday until 3.00 pm or the conclusion of school on the Father’s birthday;

(iv) On Thanksgiving, in even-numbered years, from 3.00 pm or the conclusion of school until 3.00 pm or the conclusion of school the following day.

(c) And at such other times as agreed between the parties.

10. All changeovers which do not occur at school or Outside School Hours Care (“OSHC”) shall occur at the Mother’s home at the commencement of the Father’s time with the children, and at the Father’s home at the commencement of the Mother’s time with the children.

11. Both parents are at liberty to attend the children's extra-curricular activities, performances or sporting games notwithstanding the care arrangements above.

Schooling

12. Unless otherwise agreed between the parties in writing:

(a) X shall attend E School, commencing Year 7, 2024; and

(b) Y shall attend E School commencing in Year 7, 2025.

Travel

13. The Mother and the Father are at liberty to travel interstate within Australia with the children during any periods that the children are living with them pursuant to these orders, or otherwise as agreed between the parties in writing, and that the travelling parent shall provide to the non-travelling parent notice of at least four days prior to the intended travel taking place written notice and available details of the proposed trip including travel dates, flight/transport details, accommodation and contact telephone number during the trip.

14. Pursuant to s 65Y(2) of the Family Law Act 1975 (Cth) (“the Act”), the Mother and the Father shall be permitted to travel overseas with the children during any periods that the children are living with them pursuant to these orders, or otherwise as agreed between the parties in writing, provided that there is full compliance with the following:

(a) The travelling parent shall provide to the non-travelling parent at least 21 days’ written notice prior to the intended departure date for the travel, with written details of the following:

(i) The names and places outside of the Commonwealth of Australia where it is proposed that the children will travel;

(ii) The proposed travel dates and itinerary of travel, including departure and arrival dates to and from each country to which it is intended travel occur; and

(iii) Contact details whilst the children are outside the Commonwealth of Australia including telephone numbers and addresses of all places where it is proposed the children will be staying overseas.

(b) If the travelling parent has given written notice in accordance with these orders, the non-travelling parent shall release the children's passports to the travelling parent (if necessary) in accordance with Order 15, and the non-travelling parent shall sign all documents necessary for the children to travel with the travelling parent, including any visa applications.

15. Notwithstanding the above Order 14, in the event of a family emergency:

(a) The Mother and the Father are at liberty to travel overseas with the children on short notice and shall inform the non-travelling party as soon as practicable;

(b) In the event such urgent travel falls within the non-travelling party's usual time with the children pursuant to these orders, then the travelling parent shall arrange make-up time on days and times as agreed between the parties and within six months from the day of return from such travel; and

(c) For the purpose of this order, family emergency is defined as serious illness including any diagnosis of such serious illness, serious injury or death in the children's immediate family.

16. In respect of the children's passports:

(a) In respect of the children's Australian passports:

(i) The Father will commence all processes required to obtain inaugural Australian passports for the children within 14 days of these orders being made;

(ii) Each party will take all steps necessary to secure inaugural Australian passports for the children; and

(iii) The processes and costs of obtaining or renewing the Australian passports shall be managed by the Father;

(b) In respect of the children’s American passports:

(i) Each party will take all steps necessary to renew the children’s American passports by no later than six months prior to the expiry date; and

(ii) The processes and costs of renewing the American passports shall be managed by the Mother;

(c) The Father shall hold X’s Australian and American passports and:

(i) The Father shall provide X’s passport/s to the Mother within 14 days of a confirmed departure date for the purposes of the children’s overseas travel pursuant to Orders 14 and 15; and

(ii) The Mother shall return X’s passport/s to the Father within 14 days of returning to Australia, or at the first in-person changeover of the children, whichever comes first.

(d) The Mother shall hold Y’s Australian and American passports and:

(i) The Mother shall provide Y’s passport/s to the Father within 14 days of a confirmed departure date for the purposes of the children’s overseas travel pursuant to Orders 14 and 15; and

(ii) The Father shall return Y’s passport/s to the Mother within 14 days of returning to Australia, or at the first in-person changeover of the children, whichever comes first.

Communication

17. The Mother and the Father shall communicate exclusively via the Our Family Wizard (or other agreed parenting application), unless for emergency situations.

18. Each parent be permitted to reasonably communicate with the children by telephone, text message, email or any other electronic means save and except on changeover days unless for emergencies or urgent matters. For this purpose, the parties will provide a restricted use mobile phone device to the children or a device to each child for the purpose of communicating with the children and nothing in this order prevents the children from communicating with either parent at any reasonable time.

19. Each parent be restrained by injunction from:

(a) Denigrating or defaming the other parent, or members of the other parent's family:

(i) to the children; or

(ii) in the presence of the children; or

(iii) via social media; or

(iv) to the other parent's family, friends or colleagues; or

(v) in any way which may impact the other parent’s profession and/or employment.

(b) Discussing these proceedings with or in the presence of the children or show to the children any document connected with these proceedings;

(c) From passing denigrative or negative information or messages through the children to the other parent; and

(d) On a without admissions basis, physically disciplining the children.

20. Each parent shall be permitted to liaise directly with any doctor, hospital or other medical practitioners treating the children to obtain information about the physical and/or mental health of the children and the progress of any treatment he or she may be receiving, and that these orders authorise the release of such information, including copies of any medical reports, to each of the parties.

21. The parties must notify the other parent as soon as practicable of any serious medical problems or illnesses suffered by the children whilst in their care, including but not limited to, details of any treating medical practitioners and any medication prescribed for the children.

22. Each party will keep the other informed of their current residential address, a telephone number and an email address and will otherwise advise the other party of any change to those details, at least seven days prior to any change in residential addresses and within 24 hours of any changes to telephone number and email address.

Property and Spousal Maintenance

23. The Father pay to the Mother spousal maintenance in the amount of $3,000 per month for a period of three years from the date of these orders, with such payment to be made into the Mother’s nominated bank account on the 17th day of each month.

24. Until compliance with Order 25(a) of these orders:

(a) The Father shall pay, by way of further spousal maintenance, as and when they fall due, the monthly mortgage repayments for the Suburb D property; and

(b) The Father is restrained from further encumbering his interest in the Suburb D property; and

(c) The Mother is declared to have a caveatable interest in the Suburb D property.

25. By way of alteration of property interests, no later than 31 December 2024, the Father is to do all things necessary to:

(a) Pay off, in full, and discharge the mortgages secured on the title of the Suburb D property (namely F Bank Home Loan #...64 and F Bank Home Loan #...65); and

(b) Pay the sum of $147,287.90 to the Mother.

26. Within seven days of compliance with Order 25 of these orders, the following shall occur simultaneously:

(a) The Father and the Mother shall do all acts and things and sign all documents necessary to transfer to the Mother all his right, title and interest in the Suburb D property, at the Mother’s sole cost; and

(b) The Mother shall indemnify and keep indemnified the Father in respect of all mortgage repayments and outgoings with respect to the Suburb D property.

27. The Mother have exclusive occupation of the Suburb D property.

Joint accounts and retirement funds

28. Within seven days, the parties are to do all acts and things necessary to contact G Investments to remove the stop transfers from the following G Investments Retirement and Non-Retirement accounts so that full account access and transaction authority is restored to enable the parties to implement these orders:

(a) Roth IRA Acct #...16 held in the name of Mr Castaneda;

(b) Traditional IRA #...96 held in the name of Mr Castaneda;

(c) Traditional IRA #...51 held in the name of Mr Castaneda; and

(d) Non-Retirement Fund #...35 held jointly in the names of Mr Castaneda and Ms Castaneda.

29. Within 21 days of the date of these orders, the parties shall do all things necessary to transfer the joint account G Investments #...35 Growth & Income Fund (Non-Retire) into the Father’s sole name.

Family dogs

30. Within 30 days of the date of these orders, the parties do all acts and things necessary to ensure that the Family Dogs are registered to, possessed by and owned solely by the Mother.

General orders

31. Subject to the above orders, the Mother shall retain all interests in, and entitlement to:

(a) All personal and real property now in her respective possession or control;

(b) All superannuation interests in her possession or control; and

(c) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name respectively and all interests in life insurance policies and superannuation funds standing in her sole name respectively.

32. Subject to the above orders, the Father shall retain all interests in, and entitlement to:

(a) All personal and real property now in his respective possession or control;

(b) All superannuation interests in his possession or control;

(c) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his sole name respectively and all interests in life insurance policies and superannuation funds standing in his sole name respectively; and

(d) All financial resources including future shares and rights granted pursuant to employee share schemes.

33. The Mother is hereby declared solely liable for all liabilities in her sole name respectively and shall indemnify and keep indemnified the Father in respect of same.

34. The Father is hereby declared solely liable for all liabilities in his sole name respectively and shall indemnify and keep indemnified the Mother in respect of same.

35. Both the Father and the Mother hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.

36. Each party shall do all things necessary including providing all consents to give effect to these orders in the time periods prescribed in these orders.

37. In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of the Court shall be appointed pursuant to s 106A of the Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

THE COURT FURTHER NOTES THAT:

B. In his affidavit filed 4 September 2023, the Father deposes to his intention to meet 100 per cent of the children’s private health insurance premiums and out of pocket medical, optical and dental expenses, all school-related expenses and agreed extracurricular activities.

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.

Background

Background to the litigation

These reasons for judgment explain the orders that the Court has made in a dispute between two parents about their children, and about the division of their property. The first part of these reasons will deal with parenting, and the second with property and financial issues.BACKGROUND The father is the applicant in this case (“the father”). He is 46 years old and describes himself as a professional at B Pty Ltd. The mother is the respondent in this case (“the mother”). She is 42 years old and is currently employed as a manager on a temporary contract but has been unemployed for most of the relationship. The parties commenced cohabitation in 2003 or 2005 in City H, United States of America (“USA”), and were married in 2006. The parties relocated to City J, United Kingdom in 2010 and then to Sydney, Australia in 2013 due to the father’s career opportunities. The parties separated on a final basis in January or February 2021. Both parties are dual citizens of the USA and Australia. The parties have two children: X who is 12 years old and Y who is 10 years old (“the children”). Pursuant to consent orders made on 14 December 2021, the children currently live with the mother in the former matrimonial home in Suburb D (“the Suburb D property”) and spend time with the father for five nights each fortnight at his home in Suburb K. It is an undisputed fact that throughout the marriage, the father was the primary income earner and the mother was the primary carer of the children and responsible for the household. Ms L (“the Expert”) was appointed to prepare an Expert Report which is dated 1 August 2022 (“the Report”).THE EVIDENCE BEFORE THE COURT In support of his case, the father relies on the following documents:(1)Amended Initiating Application for Final Orders filed 28 November 2022;(2)His affidavit filed 4 September 2023;(3)Affidavit of Ms M filed 4 September 2023;(4)Affidavit of Mr N of P Valuers filed 25 September 2023;(5)Affidavit of Mr Q filed 25 September 2023;(6)Financial Statement filed 4 September 2023;(7)Single Expert Report of Ms L dated 1 August 2022;(8)Case outline filed 22 September 2023; and(9)Various documents tendered during the proceedings, marked Exhibits A1–A21. In support of her case, the mother relies on the following documents:(1)Amended Response to Final Orders filed 23 February 2022;(2)Her affidavit filed 5 September 2023;(3)Financial Statement filed 6 September 2023;(4)Case outline filed 24 September 2023; and(5)Various documents tendered during the proceedings, marked Exhibits R1–R19. Further, the Minute of Order with the agreed orders and the updated joint balance sheet were tendered by the Court as Exhibit CA and Exhibit CB respectively. The Court has further tendered Dr R’s subpoenaed material as Exhibit CC and the joint balance sheet with the updated share values for B Pty Ltd received on 13 November 2023 as Exhibit CD.THE COMPETING PARENTING PROPOSALS This is a case where the evolution of the parties’ parenting proposals is relevant. In his first Initiating Application filed 15 November 2021, the father sought orders that the children spend equal time with the parents. Then, one year later on 28 November 2022, the father filed an Amended Initiating Application seeking orders that the children live with him for nine nights per fortnight and with the mother for five nights per fortnight (which remains the arrangement he seeks before me). In the mother’s Response for Final Orders filed 10 December 2021, she sought orders that the children live with her and spend time with the father for four nights per fortnight. On 7 October 2022, she filed an Amended Response for Final Orders which seeks orders for the children to spend time with the father for five nights per fortnight (which remains the arrangement she seeks before me).

Evidence

Evidence Before The Court

Ms L (“the Expert”) was appointed to prepare an Expert Report which is dated 1 August 2022 (“the Report”).THE EVIDENCE BEFORE THE COURT In support of his case, the father relies on the following documents:(1)Amended Initiating Application for Final Orders filed 28 November 2022;(2)His affidavit filed 4 September 2023;(3)Affidavit of Ms M filed 4 September 2023;(4)Affidavit of Mr N of P Valuers filed 25 September 2023;(5)Affidavit of Mr Q filed 25 September 2023;(6)Financial Statement filed 4 September 2023;(7)Single Expert Report of Ms L dated 1 August 2022;(8)Case outline filed 22 September 2023; and(9)Various documents tendered during the proceedings, marked Exhibits A1–A21. In support of her case, the mother relies on the following documents:(1)Amended Response to Final Orders filed 23 February 2022;(2)Her affidavit filed 5 September 2023;(3)Financial Statement filed 6 September 2023;(4)Case outline filed 24 September 2023; and(5)Various documents tendered during the proceedings, marked Exhibits R1–R19. Further, the Minute of Order with the agreed orders and the updated joint balance sheet were tendered by the Court as Exhibit CA and Exhibit CB respectively. The Court has further tendered Dr R’s subpoenaed material as Exhibit CC and the joint balance sheet with the updated share values for B Pty Ltd received on 13 November 2023 as Exhibit CD.THE COMPETING PARENTING PROPOSALS This is a case where the evolution of the parties’ parenting proposals is relevant. In his first Initiating Application filed 15 November 2021, the father sought orders that the children spend equal time with the parents. Then, one year later on 28 November 2022, the father filed an Amended Initiating Application seeking orders that the children live with him for nine nights per fortnight and with the mother for five nights per fortnight (which remains the arrangement he seeks before me). In the mother’s Response for Final Orders filed 10 December 2021, she sought orders that the children live with her and spend time with the father for four nights per fortnight. On 7 October 2022, she filed an Amended Response for Final Orders which seeks orders for the children to spend time with the father for five nights per fortnight (which remains the arrangement she seeks before me). By the time of closing submissions, the Court received an updated Minute of Order sought from both parties. The agreed orders were made by consent on 27 September 2023 and can be summarised as follows: the parties are to have sole responsibility for making decisions about day to day care, welfare and development of the children when they are in their care (although parental responsibility for major long-term issues is not agreed); during school terms, the children are to live with each party in alternating weekends (although the live with arrangement during the week is not agreed); the children are to spend time with each party for half of the Term 1, 2 and 4 school holidays (Term 3 school holidays are not agreed); specific provisions for special occasion time including Mother’s Day, Father’s Day, the children’s birthdays, Thanksgiving, the mother’s birthday, and the father’s birthday; changeovers are to occur at school or otherwise at the party’s home who’s time is commencing; the parties are at liberty to travel interstate and overseas with the children; each party will do all things to obtain Australian passports for the children; the father will hold X’s Australian and American passports and the mother will hold Y’s Australian and American passports; the parties are to communicate exclusively via the Our Family Wizard app; each party is permitted to reasonably communicate with the children save and except on changeover days; and the parties are to keep each other informed of the children’s medical information and each other’s residential address and contact information.

Decision

Reasons for decision

The Court accepts that the children’s relationship with the mother is such that she primarily provides for their physical and emotional needs. This is not to diminish the father’s position in the children’s lives but simply reflects the agreed division of roles throughout the relationship. Opportunity To Participate In Making Decisions The evidence of the parents seeking to, or having been excluded from, the opportunity to participate in making decisions, or spending time with the children are insignificant when viewed in context. The father makes allegations that he has been excluded from making decisions in relation to enrolment of the children in extracurricular activities and that the mother was making unilateral decisions regarding X’s high school. Parental trust is low, and communication is sometimes strained. Both matters are clearly exacerbated by the litigation and what the Court will find was the mother’s experience of the father as being controlling. The issues on which they disagree primarily relate to education, and to a lesser extent, the health of the children, and they have each acted independently at times (for example in relation to school enquiries and enrolments). Once orders are made, and this litigation finalised, the Court sees little risk of this continuing.Fulfilling Obligations As A Parent The father has done everything he can to fulfil his obligations to maintain the children and has, in fact, been exemplary in this regard.Likely Effect Of Change The likely effect of change on the children’s needs, of course, is to be viewed from the perspective of the competing proposals. The mother’s proposal indicates a minimal change except that instead of breaking up five nights with the father into two lots of one night and one block of three nights, the mother proposes one lot of one night and one block of four nights. The Court notes this is also in line with the children’s expressed views. Going from a 1+1+3 arrangement to a 1+4 arrangement involves less changeovers for the children which means the children are less likely to be exposed to any parental conflict (paragraph 113 of the Report). The Expert commented that the 1+1+3 arrangement involves too many transitions and is too cumbersome for the children to switch between the homes and settle into the household (paragraph 120 of the Report). The Expert further stated that it would be prudent to avoid too many changes at any one time for X so if any parenting arrangements were to change, it should occur prior to X starting high school (paragraph 120 of the Report). Further, all of the changeovers proposed by the mother will occur via the school during school terms. The Court has considered a 2+3 arrangement in response to the Expert’s comments in paragraph 120 of the Report referred to in the previous paragraph. However, X is used to spending time with the father in blocks of one night and the Expert advised against too many changes. Therefore, the Court is inclined to agree with the mother’s proposal of 1+4 as changing it to 2+3 will address one issue (switching between homes) but also create more change (two nights instead of one).

Ratio Decidendi

Legal Principle Established

Counsel for the father submitted the mother was unresponsive and used highly emotional language when giving evidence. The Court accepts the mother was also given warnings on at least two occasions to answer the question asked. However, the litigation was difficult for both parents and the emotional impact was more apparent with the mother. In assessing her credibility, the Court cannot ignore her mental health history and her lived experience and assertion that the father has been coercive and controlling throughout the relationship. The mother was indeed frequently unresponsive, and sometimes argumentative, in cross‑examination but, because of the issues identified above, no broad finding about credibility will stem from this. The Court agrees that her emotions often permeated the evidence, but likewise no broad finding about credibility follows this. She was a poorer historian than the father. The mother’s evidence about financial matters, particularly expenses, was confusing. Both parents were prone to minimise their own parental deficiencies but maximise that of the other parent.SECTION 60CC PRIMARY AND ADDITIONAL CONSIDERATIONSMeaningful Relationship In this matter, the Court finds that the children have a meaningful relationship with both parents and will continue to enjoy the benefit of it on either of the proposals before the Court. This is to the credit of both parents in the context of a high conflict post-separation relationship. The Expert also stated that the children appeared to have a “loving and affectionate relationship” with both parents (paragraphs 106–107 of the Report). Risk Of Harm The father’s case for risk of harm to the children, and his main argument for primary care, is centred around the risk of the mother’s emotional dysregulation in the presence of the children whilst in her care. Brief episodes of the mother’s emotional dysregulation were apparent to the Court during the hearing. The Expert emphasised the need to model good emotions in the household, particularly for X who relies on his parents to co-regulate and learning to self‑regulate (paragraph 124 of the Report). The Expert concludes that the parent who has the most capacity for emotional regulation will be best placed to take on the primary carer role for the children. The Court accepts that this is one factor for it to consider. The father also relies on paragraph 125 of the Report which states as follows:…If [Mr Castaneda] can be sensitive to the children, structure his employment around the children so there is routine, and he is emotionally competent and able to regulate his emotions and if [Ms Castaneda] is unable to regulate her mood and emotions and is unable to stop projecting her anxiety onto the children, particularly [X], this would be detrimental to the children and impair the children’s functioning and increase their vulnerability for anxiety. It would be emotionally detrimental to [Ms Castaneda] and significantly impact on her mental health if she were to lose primary care of the children, however the children’s need for routine and a stable and emotionally regulated home environment must take precedence. [Y] will also likely resent [Ms Castaneda’s] approach to disciplining the children if she feels a sense of injustice in being disciplined in line with [X] when it is not warranted.