Farrer & Farrer
[2023] FedCFamC2F 538
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Farrer & Farrer [2023] FedCFamC2F 538
File number(s): SYC 7926 of 2018 Judgment of: JUDGE MORLEY Date of judgment: 12 May 2023 Catchwords: FAMILY LAW – parenting – application for final orders – where children have not spent time with Father since 2018 and 2020 respectively – where it is in the best interests of the children to see the father only in accordance with their wishes – where family therapy is ordered in an attempt to rebuild the relationship between the Father and the youngest two children.
FAMILY LAW – property – application for final orders – long marriage – assessment of contributions – where it is just and equitable to alter the parties’ interests in the property 67.5% to the Wife and 32.5% to the Husband.
Legislation: Evidence Act 1995 (Cth), s 144
Family Law Act 1975 (Cth), ss 4AB, 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB, 65DAC, 65DAE, 65Y, 68L, 75, 79
Cases cited: A & A & The Child Representative [1998] FamCA 25
AJO v GRO (2005) 191 FLR 317
Bevan & Bevan (2013) 279 FLR 1
Dickons & Dickons [2012] FamCAFC 154
Fields & Smith [2015] FamCAFC 57
Fontana [2018] FamCAFC 63
Grella & Jamieson [2017] FamCAFC 21
Grier & Malphas (2017) 55 Fam LR 107
Harridge and Anor & Harridge and Anor [2010] FamCA 445
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (‘Hickey’) [2003] FamCA 395
Johnson & Page [2007] FamCA 1235
M & M (1988) 166 CLR 69
Masoud & Masoud [2016] FamCAFC 24
Napier & Hepburn [2006] FamCA 1316
Shan & Prasad [2018] FamCAFC 12
Stanford & Stanford (2012) 247 CLR 108
Talbot & Talbot [2015] FamCAFC 132
Trevi & Trevi [2018] FamCAFC 173
Vass & Vass [2015] FamCAFC 51
W & W (Abuse Allegations: Unacceptable Risk) [2005] FamCA 892
Division: Division 2 Family Law Number of paragraphs: 310 Date of hearing: 24-26 October 2022 Place: Sydney Counsel for the Applicant: Mr Weightmann Solicitor for the Applicant: Southern Waters Legal Counsel for the Respondent: Mr Havenstein Solicitor for the Respondent: Swifte Law Counsel for the Independent Children's Lawyer: Mr Cairns Solicitor for the Independent Children's Lawyer: Holmes Donnelly & Co Solicitors ORDERS
SYC 7926 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FARRER
Applicant
AND: MR FARRER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE MORLEY
DATE OF ORDER:
12 May 2023
THE COURT ORDERS THAT:
PARENTING
1.That the Mother have sole parental responsibility for the children, X born in 2005 (“X”), Y born in 2008 (“Y”), and Z, born in 2011 (“Z”) (“the children”).
2.In exercising sole parental responsibility:
(a)The Mother shall inform the father, by communicating with him using the Divvito app, in relation to all major long term, non-urgent issues for the children of her proposed decision no less than 14 days prior to such decision being made; and
(b)In the event that the Father wishes to provide input in relation to the proposed decision, such input is to be provided to the Mother by responding to her communication in the Divvito app within a further 7 days from the date of the Mother’s Divvito communication; and
(c)The Mother shall consider the Father’s input in making any decision in relation to major long-term issues for the children, however she will have the final authority to make decisions in this regard.
3.That the children live with the Mother.
4.That X spends time with the Father in accordance with her wishes.
5.That the parties engage in family therapy with a qualified family therapist to be identified by the parties or by Dr B if the parties are unable to reach a decision by 4:00PM on 9 June 2023.
6.That Y and Z engage in family therapy only as recommended by the family therapist, and X be at liberty to engage in family therapy at her election if invited to join by the family therapist.
7.That the family therapist be provided with a copy of the Family Report dated 21 January 2021, the Court’s final orders contained herein dated today and Reasons for Judgment dated today.
8.That the Father bear the full costs of family therapy as between himself and the Mother.
9.That subject to Y and Z’s participation in family therapy, Y and Z spend time with the Father in accordance with their wishes.
10.That if the children or any of them wish to spend time with the Father pursuant to the orders contained herein, the Father is restrained from consuming alcohol in the 24 hour period prior to the children or any of them spending time with him pursuant to these orders, and at all times during the time that the children or any of them are in his care pursuant to these orders.
11.That the parties shall ensure that at all times they have a current version of the Divvito app installed and working on their personal phones and shall communicate with each other in relation to the children using the Divvito app. IT IS NOTED in this regard that the Mother currently has the Divvito app installed on her phone and that the Father will need to reinstall the app using his initial email details he used to set up the app on his phone so that he can connect with the Mother via the app.
12.That the children be permitted to travel outside of the Commonwealth of Australia without the written consent of the Father.
13.That the Mother be at liberty to sign passport applications and renewal of passport applications for the children without the consent, input, or execution of the Father.
14.Each of the parties is restrained from denigrating the other parent, any member of the other parent’s family, or any member of the other parent’s household in the presence of the children or within the hearing of the children.
15.Each of the parties is restrained from allowing the children, or any of them, to remain in the presence of any third party who is denigrating the other parent, any member of the other parent’s family, or any member of the other parent’s household in the presence of the children, or within the hearing of the children.
16.The children or any of them be at liberty to communicate with the father by telephone or by other selected electronic communication means in accordance with their wishes.
17.That the parties shall ensure they keep each other informed of their current mobile phone numbers.
18.That the parties shall ensure that the other is kept informed of:
(a)Any medical problems or illnesses suffered by the children whilst in their care; and
(b)Any medication that has been prescribed for the children and shall ensure the other party is provided with this medication while the children are in the other party's care.
19.The parties shall each inform the other party in writing as soon as practicable of any specialist medical appointments with any medical consultant, psychologist, psychiatrist, counsellor, or therapist (hereinafter referred to as 'consultant') in relation to the children.
20.Each party shall do all acts and all things to ensure that the other party is provided with all reports by any such consultant.
21.Within fourteen (14) days of the children's subsequent enrolment at any school the parties do all acts and things and sign all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that that school forward directly to the Father copies of all of each child's school reports and merit cards, any written material pertaining to each child's academic and extra-curricular activities.
22.Within fourteen (14) days of the children's subsequent enrolment at any school the parties do all acts and things and sign all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the Father copies of the children's school photos at the Father's own cost.
23.During any periods referred to in these orders, in the event of the children being hospitalised or receiving medical attention, the parent spending time with the children shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital and that both parents shall be permitted to attend upon the medical facility the child/children is attending as a result of their medical condition irrespective whether the children are in their care pursuant to these orders.
PROPERTY
24.Pursuant to section 79 of the Family Law Act (Cth), the Court orders that:
(a)That within seven (7) days of the date of these Orders the parties shall do all acts and things and sign all documents as may be required to direct Southern Waters Legal to pay to the parties the funds currently held in trust by them on behalf of the parties, being $661,224.85 to the Wife and $133,461.15 to the Husband, with any interest accumulated on the funds to be split as to 67.5% to the Wife and 32.5% to the Husband.
(b)That within twenty-eight (28) days from the date of these Orders the Wife shall do all acts and things and sign all documents necessary to relinquish all beneficial entitlements and/or loan accounts in C Pty Ltd and or the Farrer Family Trust in favour of the Husband.
(c)That simultaneously with Order 24(b), the Husband in both his personal capacity and in his capacity as a former Director of C Pty Ltd will do all acts and things and sign all documents necessary to discharge and release the Wife from and indemnify the Wife against any and all manner of actions, suits, causes of action, arbitrations, liabilities, debts, dues, costs, interests, tax liabilities (including penalties and interest) and demands whatsoever both at law and in equity which C Pty Ltd and/or Farrer Family Trust has past, present, or future.
(d)That save as otherwise provided in these orders the Husband shall be declared the sole owner both at law and in equity of:
(i)any chattels, goods, furnishings and other property of whatsoever kind or nature which are, as at the date of the orders, in his possession; and
(ii)any monies, shares, debentures and superannuation entitlements, which stand in his sole name as at the date of the orders.
(e)That save as otherwise provided in these orders the Wife shall be declared the sole owner both at law and in equity of:
(i)any chattels, goods, furnishings and other property of whatsoever kind or nature which are, as at the date of the orders, in her possession; and
(ii)any monies, shares, debentures and superannuation entitlements, which stand in her sole name as at the date of the orders.
(f)Each party will otherwise retain any other personal liabilities, loans or debts in their sole name and will indemnify the other parties in relation thereto.
(g)In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders then the Registrars of the Court are appointed pursuant to section 106A of the Family Law Act 1975 (Cth), to execute such deed or instrument in the name of such party and to do all things necessary to give validity and operation to the deed or instrument.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Farrer & Farrer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:
INTRODUCTION
These are parenting and property proceedings under the Family Law Act 1975 (Cth) (“the Act”) between Ms Farrer, born in 1979 (“the mother/the wife”), and Mr Farrer, born in 1977 (“the father/the husband”).
The parents have three children, X born in 2022, Y born in 2008 and Z born in 2011 (“the children”).
The parents commenced cohabitation in 2000 and married in 2001.
On the mother’s evidence, the parents separated on a final basis on 7 May 2018.
On the father’s evidence, the parents separated on a final basis on 15 May 2018.
The final hearing took place over three days from 24 to 26 October 2022.
The mother was represented by Mr Weightman of Counsel, the father by Mr Havenstein of Counsel, and the Independent Children’s Lawyer (“the ICL”), Mr Duncan Holmes, by Mr Cairns of Counsel.
THE PROCEEDINGS
The mother commenced the proceedings by filing an Initiating Application filed on 11 December 2018 seeking property settlement orders, to which the father responded on 23 February 2019. The first return date before the Court as on 25 February 2019. The parties were ordered to attend a Conciliation Conference with a Registrar on 11 April 2019, at which the matter did not settle.
On 16 April 2019 comprehensive orders were made by consent for valuation of disputed components of the property, being:
(a)The former matrimonial home at D Street, Suburb E, NSW (“the D Street, Suburb E property”), which since sold prior to the final hearing;
(b)The value of the husband’s interest as sole shareholder in a private corporation C Pty Ltd Pty Ltd (“C Pty Ltd”), which was not an asset forming part of the property at the time of the final hearing; and
(c)A Motor Vehicle 1.
The effect of the orders was that a Single Expert Witness was identified by the parties and appointed pursuant to the Rules.
On 5 July 2019 the mother filed an Amended Initiating Application adding parenting issues to the proceedings, to which the father responded by filing an Amended Response on 21 October 2019. On 16 September 2019 an order was made for the parties to attend a Child Inclusive Conference on 11 December 2019. The resulting Family Consultant memorandum became Exhibit A7 in the proceedings.
On 3 February 2020 interim orders were made requiring the husband to:
(a)Pay all arrears of council rates and water rates on the D Street, Suburb E property and thereafter to make payments in relation to council and water rates as and when they fall due;
(b)To make all payments as and when they fall due on all loans secured by way of mortgage on the D Street, Suburb E property; and
(c)Pay all instalments due and payable in relation to house and contents insurance with Company F insurance on the D Street, Suburb E property.
Interim parenting orders were also made on 3 February 2020 providing for:
(a)The three children to live with their mother;
(b)X to spend time with their father in accordance with her wishes;
(c)Y and Z to spend time with their father each alternate weekend from 10:00AM on Saturday until 5:00PM on Saturday and from 10:00AM on Sunday to 5:00PM on Sunday; and
(d)For all of the children to have electronic communication by telephone or FaceTime each Monday, Wednesday and Friday between 6:30 PM and 7 PM.
Changeovers were ordered to occur at the McDonald’s family restaurant at Suburb G. An injunctive order was made restraining the father from consuming alcohol in the 12 hour period prior to the children spending time with him and at all during the time the children were in his care. A suite of other interim ancillary parenting orders were made in fairly standard terms. An order was made under section 68L of the Act appointing an ICL to represent the interests of all three children in the proceedings.
On 10 June 2020 Senior Registrar H (as his Honour then was) conducted an interim hearing and ordered that the interim orders made on 3 February 2020 continue. Orders were also made in relation to:
(a)The time Y and Z would spend with their father over the Christmas period, on Father’s Day, the children’s birthday and the father’s birthday, and with their mother on Mother’s Day, the children’s birthdays and the mother’s birthday;
(b)The father undertaking a liver function test and Carbohydrate Deficient Transfer (CDT test) upon request from the mother’s solicitor; and
(c)That in the event that the father failed to pay arrears of school fees in future of school fees on the date they were payable, the mother was permitted to enrolled the children in the nearest public school relative to her home.
On 17 December 2020 orders were made by consent in Chambers that the D Street, Suburb E property be sold and the proceeds of sale applied to pay:
(a)The costs of X’s “braces”;
(b)$2000 for X’s school laptop for 2021;
(c)$50,000 to the husband’s then solicitors, J Law Firm;
(d)$50,000 to the wife or as she may direct; and
(e)The balance into a trust account with Southern Waters Legal, the wife’s solicitors.
An order was made that “the adjustment of council and water rates on settlement be treated as an interim distribution to the Husband and recorded as such on any Balance Sheet at a Final Hearing or to be considered when the parties finalise a property settlement”. A notation was made that the council rates owing at the date of the orders were $6,812.67 and the arrears of water rates at the date of the orders were $2,150.15. An order was made for the wife to retain certain items of personal property listed in an annexure to the orders, to be delivered to the wife by the husband, and an order was made for the sale of a dog trailer with the proceeds of sale to be paid into the trust account of Southern Waters Legal to be held on behalf of both parties.
Interviews for preparation of the Family Report took place on 23 November and 1 December 2020. The Family Report dated 28 January 2021 prepared by Family Consultant Ms K was released by an order on 8 February 2021.
On 12 November 2021 Senior Judicial Registrar L made orders that the husband was permitted to sell the Motor Vehicle 1 motor vehicle at a price agreed between the parties with proceeds of sale to be “retained by the husband’s solicitors by way of part property settlement pursuant to s.79 of the Family Law Act 1975.”
The matter was set down for a three day final hearing before Judge Obradovic from 23 to 25 March 2022, but did not proceed as an application for an adjournment made by the father was granted. The matter was listed before me on a date to be advised for the purpose of allocation of hearing dates. Orders were made by consent by Her Honour, adding the father’s former solicitor, Mr J trading as J Law Firm, as a Second Respondent, and:
Noting that the Applicant Wife’s case is that the First Respondent Husband is not entitled to any of the monies held in the Southern Waters Legal Trust account, if the Court orders that any of the monies are to be paid to the First Respondent Husband by way of property settlement, each of the parties consent to an order that the first $65,458.66 of the amount ordered to be paid to the First Respondent Husband, or any such lesser amount ordered to be paid to the First Respondent Husband by way of property settlement, is to be paid to [J Law Firm].
Her Honour noted that an application by the wife for costs was “stood over to be determined at the conclusion of the substantive proceedings, if pressed.”
The matter returned to me as the docket judge and was listed for Call-Over on 5 August 2022, at which time it was allocated final hearing dates over three days from 24 October 2022.
Materials relied upon at hearing
The mother relied upon the following documents:
(f)Outline of Case Document filed on 18 October 2022, and the Outline of Case Document filed on 21 March 2022 only relation to the “Applicant’s Proposed Minute of Order” attached thereto;
(g)Initiating Application filed on 11 December 2018;
(h)Affidavit of the mother adopted by electronic signature pursuant to the then current practice direction and filed on 30 September 2022;
(i)Affidavit of Mr M (mothers partner) adopted by electronic signature pursuant to the then current practice direction on 20 October 2022 and filed on 21 October 2022; and
(j)Financial Statement of the mother adopted by electronic signature in accordance with the then current practice direction and filed on 30 September 2022;
The mother also relied upon the following exhibits:
(a)Exhibit A1 – being three binder folders of containing exhibits attached to the Mother’s affidavit sworn 30 September 2022.
(b)Exhibit A2 – being NSW Police Force criminal history record documents in the name of Mr Farrer notes paginated as pages 60 and 61 inclusive;
(c)Exhibit A3 – being NSW Health Region N Local Health District patient notes in the father’s name paginated as pages 62-66 inclusive;
(d)Exhibit A4 – being Ms O clinical counselling notes with Y dated 3 October 2019, 5 March 20, 24 January 2020. Notes with Z dated 3 October 2019 and notes with X 5 September 2019 paginated as pages 3, 4, 5, 6 and 11 inclusive; and
(e)Exhibit A5 – being a letter from Dr P to Dr Q dated 18 July 2018 paginated as pages 20 and 21 inclusive.
The father relied upon the following materials:
(a)Respondent’s Case Outline prepared by Mr Havenstein of Counsel dated 23 October 2022;
(b)Minute of Orders sought by the father (Exhibit R1);
(c)Amended Response filed on 13 May 2020;
(d)Affidavit of the father sworn and filed on 18 October 2022 (incorrectly marked on the front as sworn on 8 March 2022); and
(e)Financial Statement of the father sworn or affirmed on 14 October 2022 and filed on 18 September 2022.
The Independent Children’s Lawyer (“ICL”) relied upon the following documents:
(a)Outline of Case Document filed 21 March 2022; and
(b)Minute of Proposed Orders sought by the ICL (Exhibit ICL 2).
The ICL also relied on the Family Report dated 28 January 2021 prepared by Family Consultant Ms K (Exhibit ICL1).
The parties provided a jointly prepared Balance Sheet dated 24 October 2022 and each made submissions in relation to that document. The document was based on a previous iteration of the Balance Sheet and the “Notes” section of the Balance Sheet provided to the Court by the parties do not correspond with the item numbers on the Balance Sheet. I have given no attention to that “Notes” section.
The competing proposals of the parties and the ICL
The mother sought the following orders as set out in her Case Outline document dated 21 March 2022:
PROPERTY
1.That within 7 days of the date of the Orders the parties shall do all acts and things and sign all documents as may be required to direct Southern Waters Legal to pay to the wife the funds currently held in trust by them on behalf of the parties.
2.That within 7 days of the date of the Orders the parties shall do all acts and things and sign all documents as may be required to close any jointly held bank accounts with any balance therein to be equally divided between the parties.
3.That within twenty-eight (28) days from the date of these Orders the Wife shall do all acts and things and sign all documents necessary to relinquish all beneficial entitlements and/or loan accounts in [C Pty Ltd] and/or the [Farrer] Family Trust in favour of the Husband.
4.That simultaneously with Order 3, the Husband in both his personal capacity and in his capacity as a former Director of [C Pty Ltd] will do all acts and things and sign all documents necessary to discharge and release the Wife from and indemnify the Wife against any and all manner of actions, suits, causes of action, arbitrations, liabilities, debts, dues, costs, interests, tax liabilities (including penalties and interest) and demands whatsoever both at law and in equity which [C Pty Ltd] and/or [Farrer] Family Trust has past, present or future.
5.That save as otherwise provided in these Orders the Husband shall be declared the sole owner both at law and in equity of:
(a)any chattels, goods, furnishings and other property of whatsoever kind or nature which are, as at the date of the Orders, in his possession; and
(b)any monies, shares, debentures and superannuation entitlements, which stand in his sole name as at the date of the Orders
6.That save as otherwise provided in these Orders the Wife shall be declared the sole owner both at law and in equity of:
(a)any chattels, goods, furnishings and other property of whatsoever kind or nature which are, as at the date of the Orders, in her possession; and
(b)any monies, shares, debentures and superannuation entitlements, which stand in her sole name as at the date of the Orders.
7.Each party will otherwise retain any other personal liabilities, loans or debts in their sole name and will indemnify the other parties in relation thereto.
8.In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these Orders then the Registrar of the Court is appointed pursuant to Section 106A of the Family Law Act, to execute such deed or instrument in the name of such party and to do all things necessary to give validity and operation to the deed or instrument.
PARENTING
9.That the parenting orders made by the Court on 3 February 2020 and 10 June 2020 be discharged.
10.That the mother have sole parental responsibility for the children, [X], born 2005 (“X”), [Y], born 2008 (“[Y]”) and [Z], born 2011 (“Z”) (“the children”).
11.In exercising sole parental responsibility:
(a)The mother shall inform the father, by communicating with him using the Divvito app, in relation to all major long term, non-urgent issues for the children of her proposed decision no less than 14 days prior to such decision being made; and
(b)In the event that the father wishes to provide input in relation to the proposed decision, such input is to be provided to the mother by responding to her communication in the Divvito app within a further 7 days from the date of the mother’s Divvito communication; and
(c)The mother shall consider the father’s input in making any decision in relation to major long-term issues for the children, however she will have the final authority to make decisions in this regard.
12.That the children live with the mother.
13.That the children spend time with the father in accordance with their wishes.
14.That the father be restrained from consuming alcohol in the 12 hour period prior to [Y] and [Z] spending time with him pursuant to these Orders, and during the time the children are in his care pursuant to these Orders.
15.That the parties shall ensure that at all times they have a current version of the Divvito app installed and working on their personal phones and shall communicate with each other in relation to the children using the Divvito app. IT IS NOTED in this regard that the mother currently has the Divvito app installed on her phone and that the father will need to reinstall the app using his initial email details he used to set up the app on his phone so that he can connect with the mother via the app.
16.That the children be permitted to travel outside of the Commonwealth of Australia without the written consent of the father.
17.That the mother be at liberty to sign passport applications and renewal of passport applications for the children without the consent, input or execution of the father.
18.Each of the parents is restrained from denigrating the other parent, any member of the other parent’s family, or any member of the other parent’s household in the presence of the children or within the hearing of the children.
19.Each of the parents is restrained from allowing the children, or either of them, to remain in the presence of any third party who is denigrating the other parent, any member of the other parent’s family, or any member of the other parent’s household in the presence of the children, or within the hearing of the children.
20.Pursuant to s.65DA(2) and s.62B, 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.
The father sought the following orders contained a Minute of Order dated 24 October 2022:
Parenting Orders:
1.That all previous parenting orders be discharged.
2.That the parties have equal shared parental responsibility for the children [X] born 2005, [Y] born 2008 and [Z] born 2011.
3.That the children live with the Mother.
4.That [X] spend time with the Father in accordance with her wishes.
5.That [Y] and [Z] spend time with the Father as follows:
School Terms:
5.1Until 31 December 2022 from 9:00am to 5:00pm on Saturday in Week 1 of each fortnight.
5.2From 9:00am on Saturday to 5:00pm on Sunday in Week 1 of each fortnight from 1 January 2023.
School Holidays:
6.Unless otherwise agreed in writing between the parties that the children shall spend time with the Father for half of all school holiday periods being the first half in even-numbered years and with the Mother for the second of all school holidays periods in even-numbered years commencing in 2022 and each alternate year thereafter.
7.Unless otherwise agreed in writing between the parties that the children shall spend time with the Mother for half of all school holiday periods being the first half in odd-numbered years and with the Father for the second of all school holidays periods in odd-numbered years commencing in 2023 and each alternate year thereafter.
8. That for the purposes of these orders school holidays are defined as follows:
8.1The school holidays commence from the conclusion of the school on the last day of the school term;
8.2Changeovers shall occur on the middle day of the school holiday period at 5:00pm;
8.3In the event that there are an uneven number of days in the school holidays the parent with the care of the child during the first half of the school holidays shall have an additional day;
8.4The school holidays end at 5:00pm on the Sunday before the commencement of the first day of the new school term;
8.5In the even there is a pupil free day on the first or last day of school term the pupil free day will be treated as part of the school holidays.
9.Unless otherwise agreed in writing between the parties that the children’s time with the Father pursuant to Order 5 herein shall be suspended during school holidays and shall resume on the first Saturday after the new school term commences.
Significant Time:
10.Notwithstanding any other orders in relation to special occasions the children shall spend time with their parents as follows:
a. Christmas:
i. In even numbered years:
1.From 10:00am to 4:00pm on 25 December with the Father.
2.From 4:00 pm on 25 December until 4:00 pm on 26 December with the Mother.
ii. In odd numbered years:
1.From 10:00 am on 25 December until 4:00 pm on 25 December with the Mother.
2.From 4:00pm on 25 December until 4:00 pm on 25 December with the Father;
b. Easter time:
i.In odd numbered years with the Father from 5:00pm on Easter Thursday until before school on the Tuesday immediately following Easter Monday;
ii.In even numbered years with the Mother from 5:00pm on Easter Thursday until before school on the Tuesday immediately following Easter Monday.
Children’s Birthdays:
iii.On each child’s birthday if the children are not otherwise in the care of a parent at all on their birthday then with the non-carer parent from the end of school until 8:00pm if the child’s birthday falls on a school day and from 9:00am until 2:00pm if the child’s birthday falls on a non-school day.
Father’s Birthday:
c. From 9:00am to 5:00pm on the Father’s birthday.
Father’s Day:
d. From 9:00am to 5:00pm on Father’s Day each year.
Mother’s Day:
e.The Father’s time shall be suspended on the Mother’s Day weekend from after school on the Friday immediately preceding Mother’s Day until the start of school on the Monday immediately following Mother’s Day;
11. At any other time as agreed between the parties.
Changeover:
12.Any changeover that does not occur at the children’s school/s is to occur by the Father attending upon the public pathway at the front of the Mother’s residence to collect and deliver the children and the Mother is to attend upon the public pathway at the front of the Father’s residence to collect and deliver the children.
Communication:
13.That the children have liberal communication with the Father.
14.The parties shall communicate with each other by email or text message in relation to matters affecting the welfare or wellbeing of the children and that communication such be civil and respectful.
Passports:
15.Both parents are to do all acts and things and sign all documents necessary to enable each child to have an Australian Passport at all times including doing all acts and things and signing all documents to renew the children’s passports at least 6 months before they expire.
16.That each parent shall provide the other parent with the passport for the child for whom they usually retain the passport at least 48 hours before any travel with the other parent and the other parent shall return the passport to the parent who usually retains that passport within 48 hours of his return to Australia.
Travel:
17.That both parents must obtain the other parent’s written consent to travel outside of the Commonwealth Australia at least 42 days before the trip except in the event of an emergency (such as a death in the family) in which case the parents must obtain the other parent’s written consent to travel outside of the Commonwealth Australia at least 48 hours before the trip.
18.That neither parent travel with the child to or through a non-Hague Convention country without the authenticated written consent of the other parent.
19.That neither parent unreasonably withhold consent to the child travelling through a non-Hague Convention country.
20.If either parent intends taking the child out of the Commonwealth of Australia with the written consent of the other parent they are to advise the other parent in writing not less than eight (8) weeks prior to the planned departure date and are to provide the other parent with a full itinerary including documentary evidence of return airfares, proof of any inoculations recommended by the child’s GP and contact details including details of all accommodation and telephone numbers at which the child are to stay whilst overseas.
21.That each parent notify the other parent at least one week in advance of the proposed departure date of any interstate travel and provide each other with a copy of the itinerary and proposed return date and details of all accommodation and telephone numbers at which the child are to stay whilst interstate.
Other Orders:
22.Each of the parties is restrained from making comments derogatory of the other parent, any member of other parent’s family or any member of the other parent’s household in the presence or within the hearing of any of the children.
23.Each of the parties is restrained from allowing any of the children to remain in the presence of or within the hearing of any other person making comments derogatory of the other parent, any member of the other parent’s family or any member of the other parent’s household.
24.The Father is restrained from consuming more than the legal limit of alcohol for driving a motor vehicle 24 hours prior to and during his time with the children.
25.Both parents are to do all things to ensure that during the times the children are in their care that the children participate in the extracurricular activities in which the children or either of them are enrolled.
26.Each party is to notify the other parent within 24 hours of there being any change in their residential address, email address or contact telephone number.
27.In the event that the child suffers a medical emergency requiring medical attention while spending time or living with either parent the other parent is to be notified as soon as possible and provided with full details of the medical practitioner or medical facility which the child attends and the medical practitioner or facility is to provide access to both parents to the child’s medical information or records retained by them by request.
28.That the Mother and Father attend family therapy to improve their co-parenting relationship and the cost of the therapy is to be paid by the Mother and Father in equal shares.
29.Each party is restrained from discussing these proceedings with the children or either of them or in the children’s (or either of them) presence or hearing and from allowing any other person to discuss these proceedings in the presence of or within the hearing or children or either of them with the exception of the Independent Children’s Lawyer discussing these proceedings with the children in the proper course of their duties.
Property Settlement:
1.The court notes that the parties have sold the property known as and situate at [D Street, Suburb E] being Folio Identifier … (“the former matrimonial home”) and that the nett proceeds are held in the trust account of Southern Waters Legal.
2.That the nett proceeds of the sale of the former matrimonial home be paid as follows in the following order: -
a.Payment of legal fees in the sum of $65,458.66 to [Mr J];
b.The balance of the nett proceeds such as to effect an overall division of the nett asset pool as to 45% to the Husband;
c.The balance of the nett proceeds of the sale to the Wife.
Bank Accounts:
3.That within 28 days of the date of these Orders the Husband and Wife shall do all such acts and things and sign all documents necessary to close all joint bank accounts and divide the proceeds equally between them.
Motor Vehicles:
4.That the Wife retain all her right, title and interest in the [Motor Vehicle 2] registration number […] to the exclusion of the Husband.
5.That the Husband retain all his right, title and interest in the [Motor Vehicle 1].
6.That the Husband retain all his right, title and interest in the [Motor Vehicle 3].
7.That the Husband retain all his right, title and interest in the [Motor Vehicle 4].
8.That the Husband retain all his right, title and interest in the caravan.
9.That the Wife retain all his right, title and interest in the dog trailer.
Superannuation:
10.That the Husband shall retain all his right, title and interest in the [Super Fund 1].
11.That the Wife shall retain all her right, title and interest in her [Super Fund 2].
Liabilities:
12.The Husband and Wife shall be solely responsible for all liabilities held in their own names as at the date of these Orders and shall indemnify and keep indemnified the other party from any liability in relation thereto.
13.The Husband and Wife shall be solely responsible for any past, present or future taxation liability payable to the Australian Taxation Office including any capital gains tax liabilities and shall indemnify and keep indemnified the other party from any liability in relation thereto.
Remainder:
14.That, subject to these Orders, each party be declared to be solely entitled to the exclusion of the other of all other shares, bank accounts, furniture, personalty, jewellery, property and chattels of whatsoever nature and kind in the possession of such party as at the date of the making of these Orders and for that purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, insurance policies are deemed to be in the possession of the registered owner thereof and any entitlement to the benefit pursuant to the superannuation policy or superannuation fund shall be deemed to be in the possession of the person in whose name such entitlement stands.
Other Orders:
15.That the parties intend, pursuant to section 81 Family Law Act 1975, that these orders shall finally determine the financial relationship between them and avoid any proceedings between them.
16.That pursuant to section 106A Family Law Act 1975, if an order under this Act has directed a person to execute a deed and instrument and should either party refuse or neglect to comply with the direction or, for any other reason, the court considers it necessary to exercise the powers of the court under this subsection then the court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.
The ICL sought the following orders as set out in the ICL’s Minute of Proposed Orders (Exhibit ICL2):
RECITALS AND DEFINITIONS:
A."Father" means [Mr Farrer] born 1977.
B."Mother" means [Ms Farrer] born 1979.
C."[X] " means [X] born 2005.
D."children" means [Y] born 2008 and [Z] born 2011.
E.The Mother and Father commenced cohabitation in 2000. Final separation occurred 7 May 2018.
F.The parties consent to the making of the following Orders and to those Orders being of the same force and validity as if they had been made after a hearing by the Court.
PARENTING
1.That all previous parenting orders be discharged.
Parental Responsibility
Equal shared parental responsibility
2.The parents have equal shared parental responsibility for [X] born 2005, [Y] born 2008 and [Z] born 2011 and for the purpose of this order the following shall apply:
2.1. The Mother is to contact the Father via the Devitto app in respect of any proposal concerning major long term issues in respect of the children.
2.2. Within 7 days thereafter, the Father respond to the Mother via Devvito App in respect of the proposal.
2.3. Both the Mother and the Father shall make a genuine effort to consult with one another and reach agreement in respect of the proposal.
2.4. In the event that:
2.4.1. The Father does not comply with Order 2; or
2.4.2. Following compliance with Order 2, including for non-urgent matters, that the parties participate in family dispute resolution,
the Mother shall make the final decision.
2.5.In cases of an emergency, Order 2 hereof shall be dispensed with and the Mother will make the decision and inform the Father of the decision as soon as practicable thereafter.
Living Arrangements
Significant and Substantial Time
3.The children live with the Mother.
4.[X] shall spend time with the Father as per her wishes.
5.Subject to the Parties compliance with Orders 13, 14 and 18 the children spend time with the Father as follows:
5.1.From 12.00pm until 2.00pm Saturday, commencing the first Saturday following the Parties compliance with Orders 13, 14 and 18, and continuing each Saturday for 8 occasions.
5.2.From 12.00pm until 5.00pm Saturday, commencing the first Saturday following the conclusion of Order 5.1 and continuing each alternate week for 6 occasions.
5.3.From the 9.00am until 5.00pm Saturday, commencing the first Saturday following the conclusion of Order 5.2 and continuing each alternate week thereafter.
Special Occasions
5.4.Subject to the commencement of Order 5.2, The children shall spend time with the Father on the following special occasions if the children are not already in the Father's care:
5.4.1. From 9.00am until 5:00pm Father's Day.
5.4.2. From 9:00am until 2:00pm Christmas Day in even number years.
5.4.3. From 2:00pm until 7.00pm Christmas Day in odd numbered years.
5.4.4. From 9.00am until 5:00pm on the Friday, and Saturday immediately preceding Easter Sunday in odd numbered years.
5.4.5. From 9.00am until 5:00pm on the Easter Sunday and Easter Monday in even numbered years.
5.4.6. For a period on the children's birthdays as agreed and failing agreement as follows:
5.4.6.1. If the child's birthday falls on a school day from the conclusion of school until 6:30pm.
5.4.6.2. If the child's birthday falls on a non-school day from 9:00am until 2:00pm.
5.4.7. From 9.00am to 5.00pm on the Father's birthday.
5.5. At any other time agreed between the parties.
6.The children shall spend time with the Mother on the following special occasions if the children are not already in the Mother's care:
6.1.From 9:00am until 5:00pm Mother's Day.
6.2.From 9:00am until 2.00pm Christmas Day in odd number years.
6.3.From 2:00pm until 7:00pm Christmas Day in even numbered years.
6.4.From 9.00am until 5:00pm on the Friday, and Saturday immediately preceding Easter Sunday in even numbered years.
6.5.From 9.00am until 5:00pm on the Easter Sunday and Easter Monday in odd numbered years.
6.6.For a period on the children's birthdays as agreed and failing agreement as follows:
6.6.1.If the child's birthday falls on a school day from 6:30pm until 9.30pm.
6.6.2.If the child's birthday falls on a non-school day from 3:00pm until 7:00pm.
CHANGEOVER
7.For the purposes of this Order, changeover shall occur at the children's school or when not appropriate changeover will occur at McDonalds [Suburb G].
COMMUNICATION
Phone time
8.The parties are at liberty to communicate with the children at all reasonable times.
9.The Father shall provide his work roster to the Mother, no less then 3 weeks prior to its commencement, in order to facilitate availabilities for the children to contact the Father.
10.The Mother shall discuss with the Children the Father's communication availabilities in relation to his provided work schedule, no less than 1 week prior to his work schedule commencing.
11.Both parties shall facilitate any request by the children to telephone, or otherwise contact the parent with whom they are not currently spending time.
12. For the purposes of Orders 8 and 11 herein:
12.1.The parties shall ensure that the phone which the other parent uses to call the children is on, charged and placed in an area with reception.
12.2.The parties shall ensure that the children are afforded privacy during the phone call.
12.3.The telephone calls not occur by way of speaker phone.
12.4.The Father is at liberty to contact [X] and/or [Y] via their own mobile phone.
Counsellor
13.Prior to the commencement of the Father's time under Order 5, the Father shall engage with a counsellor to draft a letter to each of the children, and [X], addressing:
13.1.The Father's history and acknowledgement of his Alcohol abuse;
13.2.The Father's current circumstances, both generally and surrounding alcohol;
13.3.Any other aspects that the counsellor deems relevant.
14.The Father will communicate with the Mother via the Devvito app, upon the finalisation of these letters, to convey that the letters are finalised, and to provide the Mother with the contact details of the Counsellor. Within 14 days of receipt of the communication with the Father pursuant to Order 143, The Mother will do all acts and things necessary to secure an appointment with the counsellor for the Children and [X] upon receiving communication from the Father that the letters have been finalised.
Communication between the parties via app
15.All communications between the Mother and Father, except in the case of an emergency, shall take place via the 'Devvito Parenting App'(" Devvito App") and for the purposes of this Order the mother and father shall within seven (7) days from the date of these Orders both do all acts and things and sign all documents necessary to cause the Devvito App to be downloaded onto their respective mobile phones, at their own cost, and for the Devvito App to be made available for their use at all times.
EXCHANGE OF INFORMATION
16.Each party advise the other party and keep the other party advised of their current contact numbers (including both landline and mobile phone numbers if applicable) and advised the other party of any changes to these details within seven days of such change occurring.
17.The Father shall advise the Mother of his current residential address and keep the Mother advised of any changes to these details within seven days of such change occurring.
18.Prior to the commencement of the Father's time under Order 5, the Father shall provide to the Mother evidence of his current residence within residential housing.
19.That in the event that the Father ceases to reside in residential housing, the Father's time with the Children shall be suspended until the Father can provide evidence of relocation to a residential property.
20. The parties shall ensure that the other is kept informed of:
20.1.Any medical problems or illnesses suffered by the children while in their care;
20.2.Any medication that has been prescribed for the children and shall ensure the other party is provided with this medication while the children are in the other party's care.
20.3.Any social, school, or religious functions which the children are to attend.
21.The parties shall each inform the other party in writing as soon as practicable of any specialist medical appointments with any medical consultant, psychologist, psychiatrist, counsellor, or therapist (hereinafter referred to as 'consultant') in relation to the children.
22.Each party shall do all acts and all things to ensure that the other party is provided with all reports by any such consultant.
23.The other party be permitted to attend on such appointments, such attendance or attendance to be at the sole discretion of any such consultant.
24.Within fourteen (14) days of the children's subsequent enrolment at any school the parties do all acts and things and sign all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the Father copies of all of each child's school reports and merit cards, any written material pertaining to each child's academic and extra-curricular activities.
25.Within fourteen (14) days of the children's subsequent enrolment at any school the parties do all acts and things and sign all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the Father copies of the children's school photos at the Father's own cost.
26.During any periods referred to in these orders, in the event of the children being hospitalised or receiving medical attention, the parent spending time with the children shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital and that both parents shall be permitted to attend upon the medical facility the child/children is attending as a result of their medical condition irrespective whether the children are in their care pursuant to these Orders.
RESTRAINTS
Non-Denigration
27.The Mother is restrained from denigrating the Father or the paternal family in the presence or hearing of the children and shall ensure that no other person denigrates the Father or the paternal family in the presence or hearing of the children.
28.The Father is restrained from denigrating the Mother or the maternal family in the presence or hearing of the children and shall ensure that no other person denigrates the Mother or the paternal family in the presence or hearing of the children.
Discipline
29.The parties be restrained from physically disciplining the children or allowing or authorising any third party to physically discipline the children.
Drugs/Prescription mediation
30.The parties are restrained from consuming any prescription medication not prescribed to them whilst the children are in their care or for 12 hours prior the children coming into their care, and will remove the children from any place where a third party is under the influence of illicit substances/prescription medication not prescribed to them.
Alcohol
31.The Father is restrained from consuming alcohol 12 hours prior to the children coming into their care and at all times the children are in their care.
32.The parties are restrained from consuming alcohol whilst the children are in their care to an extent that they would not legally be able to drive a motor vehicle, and will remove the children from any place where a third party has consumed alcohol to an extent where they would not legally be able to drive a motor vehicle.
DRUG TESTING
Carbohydrate Deficient Transferrin (CDT test)
33.The Father make an appointment and attend for a Carbohydrate Deficient Transferrin (CDT test) for alcohol testing purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct CDT testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. To give effect to this order:
33.1.Within seventy-two (72) hours of the date of these orders, the Father is required to make an appointment for the purpose of providing a blood sample for testing alcohol purposes;
33.2.Within seventy-two hours prior to any CDT test, the Father must inform the Mother of the company and location performing the CDT testing;
33.3.Each party or their legal representatives is at liberty to provide the CDT testing service with a copy of these orders;
33.4.The Father is to attend at an CDT collection service and submit to the supervised collection of a blood sample from the Father no less than every 3 months;
33.5.The Father is to provide the collector with photographic identification to be recorded before each blood collection and authority, with this order also hereby authorising the CDT Collection Service to provide the results of each test to both parties, the father and the mother, and their legal representatives upon receipt of such test results;
33.6.The CDT test may screen for alcohol EtG and any other drug specified in this order as required.
33.7.The CDT testing service is required to utilise the testing services of an appropriate laboratory accredited to conduct drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body;
33.8.The costs of each CDT test is to be met by the Father.
34. In relation to the CDT test pursuant to order 33:
34.1.The Father is only required to submit to CDT testing not more frequently than once per three (3) calendar months
34.2.If the Father does not produce a CDT test results of less than or equal to 1.7, then children's time with the Father is suspended until the Father produces a 2 consecutive CDT test results, obtained no less than 3 weeks apart, of less than or equal to 1.7;
34.3.Upon the Father's compliance with Order 34.2, the Father's time with the children pursuant to order 5.1 recommences.
35. That in the event that:
35.1. A CDT test result of the Father detects a result of 1.7 or higher; or
35.2. The Father fails to provide a blood sample in accordance with these orders within the timeframe provided for in these orders;
then the following apply:
35.3. Then children's time with the Father is suspended until the Father produces a 2 consecutive CDT test results, obtained no less than 3 weeks apart, of less than or equal to 1.7
COSTS
36.The parties shall pay their own costs of and incidental to these proceedings.
37.The parties shall pay the Independent Children's Lawyer's costs of and incidental to these proceedings.
The mother was cross examined by Mr Havenstein of Counsel for the Father and Mr Cairns for the ICL.
Mr M was not required for cross-examination by the Father or the ICL.
The Father was cross examined by Mr Weightman of Counsel for the mother and Mr Cairns for the ICL.
The Family Report writer Ms K was cross examined by Mr Cairns for the ICL, Mr Weightman for the mother and Mr Havenstein for the Father.
THE EVIDENCE
At the time of hearing the mother was 43 years of age and the father was 44 years of age.
The parents commenced cohabitation at some time during 2000, married in 2001 and separated on either 7 May 2018 on the mother’s evidence or 15 May 2018 on the father’s evidence. They were divorced on 16 September 2019.
At the time of hearing X was 17 years of age, Y 14 years of age and Z 11 years of age. Both parents and the ICL sought orders that X spend time with her father in accordance with her wishes. The mother sought orders that Y and Z spend time with the father in accordance with their wishes, while both the father and the ICL sought orders for Y and Z to spend defined time with their father.
At the time of the final hearing the father had not seen or spent any time with X since 30 November 2018 on the father’s evidence, or 25 December 2018 the mother’s evidence. The father had also not spent any time with Y or Z since 25 October 2020.
Following separation, the mother commenced a relationship with Ms M in about 2018 and they commenced cohabitation in 2021. The father commenced a relationship with Ms R in 2019, however the father asserts in paragraph 40 of his trial affidavit that he does not live in a de facto relationship with anyone. He asserts in Part D of his Financial Statement of 14 October 2022 that there is no other income earner in his household.
X suffers from Type 1 Diabetes and takes insulin every day. X manages her own treatments.
At the time of the final hearing, X was in year 11 at S School, Y in year 8 at S School, and Z in year 5 at S School.
At the commencement of cohabitation the mother owned a Motor Vehicle 5, and had some superannuation entitlements “with a nominal balance” with Super Fund 1. The father owned a Motor Vehicle 1, a Motor Vehicle 6, a Ski boat, a Motorcycle 1, a Motorcycle trailer, a go-kart, and sole shareholding in C Pty Ltd trading as Company T (“C Pty Ltd”), through which he operated a construction business, and some superannuation with Super Fund 1 “with a nominal balance”.
At the time the mother was studying full-time at TAFE for a Diploma and working casually at Employer U, and the father was working full-time as a construction worker for Employer V as a supervisor, subcontracting through C Pty Ltd, and part-time as a community worker for Employer U.
The parties lived with the wife’s parents at Suburb W on a rent-free basis for 18 months after they commenced cohabitation without contributing to household expenses other than the purchase of some groceries from time to time, which enabled them to accumulate savings to a pay a deposit to purchase a home. In 2000 the parties opened a joint account with the National Australia Bank into which their respective incomes were deposited. Both the father and the mother maintained their own separate NAB accounts.
In 2000 the parties purchased the former matrimonial home and D Street, Suburb E NSW (“the D Street, Suburb E property”) for $440,000. They applied the joint savings of $22,000 for the purchase and the balance of the purchase price was borrowed in the joint names to a loan account with the National Australia Bank (“NAB”) secured on the D Street, Suburb E property.
The parties undertook extensive renovations of the D Street, Suburb E property during their cohabitation, applying funds from a refinancing of the loan account secured on the D Street, Suburb E property. The wife’s evidence is that they jointly designed the renovations and jointly organised and liaised with various tradesmen to undertake the renovation, with a lot of the works completed at a discounted rate through the husband’s connections as a professional builder. The wife concedes that the father oversaw the renovations as Owner-Builder. The husband’s evidence is that he alone undertook “all design, ordering of materials, organising of trades and supervision” in relation to the renovations to the D Street, Suburb E property.
During her cross examination by the father’s counsel, the mother agreed that the father had held an Owner-Builders licence and that he had performed work himself, in conjunction with other tradesmen, including adding a storey to the D Street, Suburb E property and that he was “in charge” of the construction and that he built the garage at the property.
Accordingly, I make the parenting orders and the alteration of property orders set out at the start of these Reasons.
I certify that the preceding three hundred and ten (310) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley. Associate:
Dated: 12 May 2023
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party …
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party …;
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage … including any contribution made in the capacity of homemaker or parent; …
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16
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