Fisher & Fisher - [2022] FedCFamC1F 921

Federal Circuit and Family Court of Australia
(DIVISION 1)
Fisher & Fisher [2022] FedCFamC1F 921

File number(s): CSC 191 of 2019

Judgment of: BAUMANN J

Date of judgment: 2 December 2022

Catchwords:
FAMILY LAW – PARENTING – Where the mother contends for a final order for sole parental responsibility and for the children to live with her and communicate with the father in accordance with the children’s wishes – Where the father and the Independent Children’s Lawyer contend for a change of residence to the father’s care and a moratorium of time with the mother – Order made for the children to live with the mother

FAMILY LAW – PROPERTY – Two pool approached – Assessment of contributions – final property division orders to be made that achieve justice and equity for both parties

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 69ZX(3)(b), 79, 75.

Cases cited:
Chorn & Hopkins (2004) FLC 93-204

Coghlan & Coghlan (2005) FLC 93-220

Duarte & Morse [2022] FedCFamC1A 66

Hall & Hall (1979) FLC 90-713

Hickey & Hickey (2003) FLC 93-143

Jabour & Jabour [2019] FamCAFC 78

Stanford & Stanford [2012] HCA 52

Division: Division 1 First Instance

Number of paragraphs: 141

Date of last submission/s: 17 January 2022

Date of hearing: 25–29 October 2021 and 2 December 2021

Place heard: City B (25–29 October 2021); City J (2 December 2021)

Place delivered: Brisbane

Counsel for the Applicant: Ms McArdle

Solicitor for the Applicant: Reaston Drummond Law

Counsel for the Respondent: Mr Fellows

Solicitor for the Respondent: Cameron Law

Counsel for the Independent Children’s Lawyer: Mr Jacobs

Solicitor for the Independent Children’s Lawyer: Lehmann Featherstone
ORDERS

CSC 191 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS FISHER

Applicant

AND:
MR FISHER

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

BAUMANN J

DATE OF ORDER:

2 DECEMBER 2022

THE COURT ORDERS:
Parenting
1.That all previous Orders concerning the children, X born 2010 and Y born 2011 (“the children”) be discharged.
2.That the mother have sole parental responsibility for the children provided she advises the father in writing within seven (7) days of any decision made in the exercise of her sole parental responsibility.
3.That notwithstanding Order 2, the children’s primary residence shall not move from the City B area without the father’s prior written consent or order of the Court.
4.That the children shall live with the mother.
5.That the children shall spend time and communicate with the father in accordance with their wishes.
6.That the mother shall ensure at all times that:
(a)she has an internet service and that each of the children have the email address for the father whereby the children can communicate directly with the father;
(b)the father’s current mobile telephone number and email address are displayed in the children’s bedrooms, so the children are aware of the father’s contact details, to enable them to contact him at any time they wish to do so; and
(c)there is a photo of the father and their brother in each child’s bedroom.

7.That the father is at liberty to send the children cards, gifts, photos and other written communications from time to time and the mother is to ensure that the children receive such communications.
8.That the mother shall notify the father in writing of all medical appointments of the children and advise of the reason for the appointment and the contact details of the health professional, within seven (7) days of any appointment.
9.That the mother shall do all necessary things to authorise and direct any psychologist, psychiatrist, counsellor, specialist, therapist or other medical or health practitioner who has consulted with the children to provide the father any and all information (including the children’s present condition or prognosis) relating to the children; and in the absence of such authority these orders are sufficient authority for the relevant professional to provide any and all information in relation to the children to the father.
10.That the mother shall do all acts and things necessary to ensure the father is provided with a copy of any reports by any such psychologist, psychiatrist, counsellor, specialist, therapist or other medical or health practitioner within seven (7) days of receiving such report.
11.That the mother shall do all acts and things necessary to give all revocable authorities necessary to ensure that whichever school the children may attend, the school can forward directly to the father copies of all the children’s school reports, merit cards, school photograph order forms and any written material pertaining to the children’s academic and extracurricular activities.
12.That each parent shall advise the other parent and keep the other parent advised of their current residential address, email address and that of the children, and contact telephone number (including both landline and mobile phone number (if applicable)) and shall advise the other parent of any changes to these details within forty eight (48) hours of any such change occurring.
13.That the mother and father are restrained from discussing these court proceedings and allegations raised in these proceedings in the presence of or hearing of the children.
14.That the parents are to remove the children from the hearing and vicinity of any person who is discussing these court proceeding and/or the allegations raised in these proceedings.
15.That the parents will not denigrate each other or members of the other parent’s family to the children or within the children's hearing.
16.That a family consultant explain these Orders to the children advising them that:
(a)their father loves them and wants to spend time with them but accepts their wishes that at this point in time they do not want such contact; and
(b)if at any time in the future either child decides they wish to communicate or have contact with their father that he is happy for this lo occur, as is their mother, and that the mother will provide them with an email address and phone number so that they can contact their father directly.

17.That the mother is to present the children to the City B Registry of the Court on a date agreed to enable Order 16 to be fulfilled.
18.That the Independent Children’s Lawyer is granted leave and is directed to provide a copy of these Reasons to the mother’s counsellor Mr C, the children’s counsellor Ms D, Dr E, and the family consultant explaining these Orders to the children.
19.That the Independent Children’s Lawyer be discharged after thirty (30) days from the date of this Order.

Property
20.That the property proceedings be adjourned to a date to be fixed after procedural fairness has been afforded to husband’s superannuation fund.

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

The dispute between the Applicant mother Ms Fisher and the Respondent father Mr Fisher concerns both parenting and property issues, although the parenting dispute has consumed the most time and is the most controversial – as the competing proposals below reveal.
It is appropriate that the Court deal with the competing parenting applications first.
Parenting applications
Although the parents separated on 31 January 2019, and have been litigating since March 2019, the proceedings have been shaped by delays which are unfortunate.
By the time of the final written submissions filed 17 January 2022, the competing proposals were starkly polarised as outlined below.
Mother
The mother seeks the orders set out in her case outline filed 30 July 2021 and annexed to these Reasons marked Appendix One. In short, the mother says the children should live with her and communicate with the father “in accordance with their wishes”. She seeks an order for sole parental responsibility, with an obligation to inform the father of any major decisions made by her. Her written submissions filed on 17 January 2022 explain why the mother contends such orders are in the children’s best interests.
Father
The father, in his written submissions filed 7 January 2022, broadly adopted the orders proposed by the Independent Children’s Lawyer (“ICL”) with the outcome that there will be a change of residence and a moratorium where the children spend no time with the mother for a period of six months. There are some slight differences in what is to occur after the initial six month period, to permit the children to recommence spending some time with the mother.
ICL
In the ICL’s submissions filed 16 December 2021, which were the first filed by any party after the evidence closed, the ICL articulates why the orders proposed in this difficult case are in the children’s best interests. Taken from the ICL’s written submissions are the proposed orders annexed to these Reasons and marked Appendix Two.
Principles
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the children.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
Credit issues
Although at times the parties made submissions described as “credit issues”, in my assessment I found most of the assertions really are better described – not as a clear factual dispute – but rather a reflection of the perception each parent held, after being exposed to cross-examination, shaped by the history of their relationship and why and how the children, they say, have been affected by the chronic parental conflict.
This has been a highly emotional conflict where both parents (as my Reasons will discuss), can be accused of embellishment at times and demonstrating a lack of insight. In the end, each parent had developed a rigid and almost inflexible position.
In short, I did not regard either parent as “untruthful” – but rather the litigation journey has shaped their fixed beliefs about the other parent, and those beliefs have fuelled this litigation. As required, on a discrete event of relevance, where I prefer one version of the facts over the other I explain why I have come to that conclusion.
The Court is mindful that the effect of the orders made will cast a significant emotional burden on the children and I deal with the possible effects later in these Reasons. So often in parenting cases the assumption is asserted that past behaviour is a solid predictor of future behaviour. This is not always the case, and simply because parents are often able to learn from their mistakes and demonstrate a more child focussed attitude or insight than might have seemed possible. I am also conscious that these children are, of course, the children of each parent well beyond their eighteenth birthday. Making adverse findings against a parent can have a lasting effect on the future relationship between a child and a parent, when more often the children need the guidance and support of their parent who loves them for who they are.
The affidavits of the parties raise many issues, but I see no need – or in fact little benefit – in seeking to deal with all such issues. Few of them have really been the sole catalyst for the entrenched positions now – it is more the personalities and dynamics of the parents and their relationship which have caused the uncomfortable position the children are now in. Not dealing with every event or submission is of course a matter of style but is supported by authority (see Duarte & Morse [2022] FedCFamC1A 66 at [30])
To provide some context for the discussion that is required, a hopefully uncontroversial background is set out next.
Contextual background
Statements of fact which follow shall be construed as findings of fact.
Both parents were born in 1974 and are now aged 48 years. In 1998, at the age of 24 years, the mother was involved in a serious car accident suffering various injuries. In 2003, the mother received a payout for damages, being over $900,000 (exclusive of costs).
In 1999, the mother gave birth to her son Mr F who is now 23 years of age. The mother’s relationship with Mr F’s father ended in 2001.
The parents were both living in New South Wales when they commenced a relationship in 2008 – with cohabitation occurring in 2009, followed by their marriage later that year.
At least by early 2010, the father was acutely aware of the mother’s health condition, when she was taken to G Hospital after a medical episode.
In 2010 X (now aged 12 years) was born, followed by Y in 2011 (now aged 11 years).
Between 2012 to late 2014, the parties were initially living in City H and after the father was discharged from the Defence Force in 2013, at a time when the father was serving in City J. In late 2014, the father re-joined the Defence Force and was posted to Melbourne, and it seems the mother and the children continued to live in City B, even when the father was moved closer by the Defence Force to K Town towards the end of 2016. It is likely, the fact that the parents over these few years, were separated because of the father’s service with the Defence Force, caused tensions in the relationship, with the father travelling from K Town to City B most weekends to be with his family.
By early 2017, the father had been diagnosed with a major depressive condition. The letter/report by Psychiatrist Dr L to the father’s general practitioner Dr M of 12 April 2017, after suggesting a “biological vulnerability” arising from a “significant family psychiatric history”, opined:
[Mr Fisher] has suffered a chronic moderate major depression with anxiety, non-melancholic type, whereby he has felt overwhelmed by a culmination of psychological stressors and especially the challenge of balancing competing work and family commitments…[Mr Fisher] has suffered a similar mixed anxiety and depressive reaction several years earlier…there has been a partial limited treatment response and untoward side effects” [from prescribed medication]
In mid-2017, the parties sold their home at Suburb N for $872,000 and rented for a time before purchasing the family home at P Street, Suburb Q for $850,000 a few months later.
During the later months of 2017 I am satisfied tensions in the marital relationship were escalating even though the father had reached an arrangement with the Defence Force to work with more flexible hours, allowing him to be home more often. This was confirmed by the evidence from officer Mr R (see affidavit filed 18 September 2020). In late 2017, the mother obtained a mental health plan based on her statements to her doctor that she was finding the relationship with her husband difficult.
It needs to be observed that whilst these parents were experiencing these marital difficulties, their young daughters were inevitably exposed to the parental conflict.
By mid-2018, the mother felt so concerned (including that the father had access to a weapon), that she consulted Police alleging emotional/verbal abuse but no allegation of physical abuse of herself or the children was raised. The mother felt subject to controlling behaviour from the father. In about mid-2018, the mother told the father she intended to leave him. A further argument arose from the father’s decision to bring home a safe – noting the mother’s earlier expressed concern about her fears relating to the father’s access to weapons. The mother in mid-2018 raised her fears with the father’s superiors in the Defence Force. These concerns were taken seriously; resulted in the convening of an Individual Welfare Board (IWB) enquiry which resulted in a conclusion that the mother’s claims were “vexatious”. Such an enquiry caused extreme embarrassment to the father – only further exacerbated by the mother’s complaint to the Defence Force in early 2019 that the father “was conducting fraudulent activities” – a further complaint found to be “vexatious”. The mother does not allege the father threatened to use a weapon, but a combination of all these factors (the father’s vulnerable mental health; the mother’s fears and the constant arguing) meant, I find, the last six months of the relationship before separation were very volatile. There were short periods of separation and reconciliation. It must have been very confusing for the young girls (then aged eight and seven).
The mother admits to suffering a medical episode whilst at home in or about mid-2018, causing her to be hospitalised. This was the first serious event relating to her health condition for 10 years.
Somewhat surprisingly, considering the tensions, the parents decided to travel with the children to S Region in late 2018 for a family holiday for Christmas (having again reconciled). During this trip an incident between Y and the father occurred with a mother asserting the father “pinched [Y] under her arm” when she did not want to be kissed by the father.
It seems the holiday had some positive effects (if not long-lasting) because on return in early 2019 the mother and the girls relocated to K Town (where the father was posted) to live, and the mother was offered employment locally.
After an incident between seven year-old Y and the father over a remote control (the mother claiming the father deliberately threw the remote at the child hitting her face; the father claiming it was an accident), on 31 January 2019 final separation occurred, with the mother returning to City B with the children. Both parties made reports to (different) Police stations and after a s 93A interview of the child, when the child was unable to particularise the incident sufficiently to persuade Police to prosecute, no action was taken. However, this “remote control” incident and the earlier “pinching” incident seemed, on the evidence, and I say disproportionately, to be the catalyst for the failure to be able to maintain any real connection between the father and the children, despite many attempts and Orders from the Court – where the mother had commenced proceedings in the Federal Circuit Court of Australia on 27 March 2019. The mother’s Initiating Application was that the children spend no time with the father until the release of a family report.

Since the Application was filed, the parenting arrangements have been broadly shaped by the Orders made in the case, save to further observe that in early 2019 a domestic violence trial in a State Magistrates Court was conducted, which resulted in an order being made for the protection of the mother (and the children), with the father named as the respondent. That Domestic Violence Order has now expired.
Procedural history
After the mother’s Application was filed, the father responded on 13 May 2019 seeking on a final basis that the children live in a “week about” arrangement but that on an interim basis the children spend two hours each weekend supervised time with the father.
On 4 April 2019, the girls attended their first counselling appointment with Ms D.
On 14 May 2019, a Federal Circuit Court of Australia judge appointed an Independent Children’s Lawyer; ordered the family attend a Child Inclusive Conference (“CIC”) and apart from orders relating to the financial dispute, adjourned the matter.
The CIC memo dated 6 September 2019 recorded the children making allegations of the father hitting them; pinching them and calling them names. The Family Consultant observed the children presented as “scared” of the father. The CIC memo records that the parties agreed for the children to attend therapy (which they did with Ms D) and to move to supervised time, but those Orders for time to be supervised by Ms T were not made until 25 September 2019 (after the first family report of Mr U dated 22 September 2019 was released) in the following terms:
2.That the parties do all acts and things to engage [Ms T] as the children’s supervisor in this matter, including providing [Ms T] with the following documents:
a.Report from psychologist [Ms D] dated 29 July, 2019;
b.Report from [V Psychology] ([Dr W] and [Mr AA]) dated 13 March, 2019;
c.The Protection Order dated 30 April, 2019;
d.The CIC Memorandum by family consultant [Mr BB] dated 6 June, 2019; and
e.The Family Report by Social Worker [Mr U], dated 22 September, 2019.
3.For the purpose of the above paragraph, leave be granted to the Independent Children’s Lawyer to provide the Family Report and CIC memorandum to [Ms T] and to the children’s counsellor [Ms D] (or such other counsellor as the children may attend from time to time) and t any other counsellor or practitioner treating the children or parents.
4.That [Ms T] be at liberty to liaise with the children’s counsellor or [Y’s] treating professionals in relation to the children.
5.That the children meet with [Ms T] to familiarise themselves with her ad the supervision process prior to supervised contact commencing.
6.That upon [Ms T] being satisfied that the children are familiar with her and the supervision process supervised contact is to commence between the children and the father only at least once per week commencing at one hour duration and otherwise as directed by [Ms T] and then progressing to two hours after the first four sessions subject to [Ms T’s] approval.
7.Compliance with Order 6 is subject to [Ms T’s] availability.
8.That the costs of the supervised time be paid for by the father.
9.That [Ms T] be requested to provide a report as to the contact at the conclusion of a three month period commencing on the date of the first supervised contact between the father and the children with the costs of preparation of the report to be shared equally between the parents.
Despite the attempts by Ms T to encourage the children to spend time with the father, as her reports made clear, the children consistently said they did not want to see their father, and in the report of 6 December 2019, both girls made very dramatic statements that, inter alia:
(a)X said she would run away from the father’s home if forced to see him; and
(b)Y said she wanted to kill the father.
At the very least the continual therapy from Ms D seemed to have no positive impact on modifying the children’s views about their father. Ms D in a letter dated 2 February 2020 after seven sessions of therapy confirmed the children’s expressed and clearly fixed views, noting they were telling the counsellor they were scared of the father. The matter was transferred to the Family Court of Australia on 4 February 2020. Prior to the transfer of the matter, the ICL had procured an independent psychiatric assessment of the parents, by Consultant Psychiatrist Dr CC. However, after hearing submissions from all parties on 2 December 2021, and with Dr CC not being available for cross-examination, the evidence was not before me, either directly or through Mr U’s updated family report.
At the time of the transfer to the Family Court of Australia (as it was then known), the mother’s position (articulated in her amended Initiating Application) was that the children have no contact with the father other than gifts, letters and cards. The father’s amended Response filed 7 April 2020, for the first time, articulated that there should be an order for the children to live with him and spend no time (or at least supervised time) with the mother.
The matter was listed for a four day hearing in City B commencing 6 October 2020, however on 1 October 2020 the mother filed an Application in a Case seeking the following orders, effectively to engage in reportable intensive family therapy (“RIFT”) to be conducted in City B by experienced Melbourne Psychologist Dr E.
When the matter came before me on 6 October 2020, the trial as listed did not proceed, however by consent the following orders were made:
1.That the parents by this Order re-engage [Ms T] to supervise the children’s [X] born […] 2010 and [Y] born […] 2011 (“the children”) time with the father.
2.That the parents agree that the children’s supervised time with the father shall occur as follows:
a.Once or twice a week depending on [Ms T’s] availability and preferably on weekends at times to be nominated by [Ms T];
b.Occur at locations at the discretion of [Ms T], including but not limited to her office, [and various recreational venues];
c.[Ms T] will collect the children from the mother’s residence, school or as otherwise arranged; and
d.The parents share the costs of [Ms T].
3.That both parents are to follow all reasonable directions by [Ms T] including any request for intake(s) to occur before supervised time takes place.
4.That the father be at liberty to email the children by sending any proposed email to [Ms T] and then [Ms T] is at liberty to forward that to the children when and if she thinks appropriate.
5.That the mother shall, with the assistance of [Ms T], explain the operation of the Orders to the children, including the fact that they were made by consent.
6That should the children wish to email the father, the mother shall facilitate such communication.
7.That the parents forthwith engage [Dr E] to engage in reportable intensive family therapy. If thought beneficial by [Dr E], the parents authorise [Dr E] by this Order to discuss the matter with [Ms T] and the Independent Children’s Lawyer. The parents are to share the costs of such therapy. It is noted that the parents do not object to the provision of the trial affidavits and the audio recording dated 2 January 2019.
8.That the father be at liberty to send the children gifts via [Ms T] or directly to the children during any time occurring as provided for in Order 2.
9.That the mother advise the children’s school in writing that:
a.she has no objection to the father accessing the school Facebook page and the Seesaw app;
b.the parents agree and this Order hereby authorises the father to attend any school based activity where the children are not present;
c.she has no objection to the father attending the school office during school hours; and
d.in the event that there is any school-based end of year activity such as a religious service, that the father is permitted to attend provided he does not approach the children.
RIFT was conducted in December 2020, and [Dr E] was the subject of cross-examination (as the first witness) at the trial. I deal with this important evidence more fully below.
Sadly, the RIFT did not result in any agreed arrangements for the children to spend time with the father – the parents’ positions becoming even more fixed, if that were possible. Attempts to have a final hearing in August 2021 were scuttled by Covid-19 restrictions, with the trial finally commencing in City B on 25 October 2021. I also record that family report writer Mr U had prepared an updated report without seeing the children or the parents, but was based on significant new material (since his first report was completed) identified in the report under “sources of data”. Mr U had access to and read reports from Dr E; Dr CC; Ms T and Ms D as well as affidavits more recently filed. Mr U was the subject of cross-examination on 2 December 2021 (his report was dated 10 November 2021) and that evidence closed the case, save for the written submissions earlier referred to.
In these Reasons I will deal with some discrete issues first.
EVidence of Dr E
Considering the positions adopted by the parties, the fact that they agreed to engage Dr E (as reflected in the consent Order made 6 October 2020) in RIFT was construed by me as a genuine attempt (with some expense involved) in finding some pathway forward in this difficult matter. Dr E was the subject of cross examination on her report dated 24 February 2021, filed on 4 March 2021.
The parties were, in their cross examination, directed to various aspects of Dr E’s observations and opinions. The family report writer Mr U read the report before reaching his ultimate recommendation in support of a change of residence.
It is appropriate to record that notwithstanding the accepted expertise of Dr E, her opinions are just part of the evidence the Court must consider in this matter. It is clear that Dr E had hoped the RIFT would result in a “breakthrough” but sadly it has not been the case. The further evidence of the children’s counsellor Ms D made it clear that the views expressed to her by the girls about their father in the four sessions in 2021, showed no real modification.
Dr E was at pains to express on more than one occasion that the therapy she undertook in City B between 14 and 17 December 2020 was not parental “insight therapy” and considering her overall assessment that the current situation is a “parent/parent problem” – I suspect she may have hoped the RIFT might have led to a reflection by the parents of their contribution to the “problem”. As these Reasons will reflect, I have no confidence that has occurred.
Little point is served in seeking to incorporate large portions of the 144 page report – as it is well known to the parents, however for context and to demonstrate the Court’s appreciation of the effect of this therapeutic intervention, the following matters arising from the report and Dr E’s cross examination deserve noting:
(a)Dr E at pages 1 – 6 of her report identified the collateral material she had read before setting out the “goals of therapy”, being:
(i)to assist X and Y with their anxiety particularly in managing their relationship with their father assertively and confidently, with the assessment of the appropriateness of promoting the relationship between the children and their father as a “peripheral focus”. She said she tried to write the report to “help everyone”; and
(ii)exploring the potential of parent-child and parent co-parent relationships, including reconciliation between the mother and Mr F, Mr F and his grandparents and Mr F and his sisters in addition to promoting goodwill and cooperation between the parents. Dr E said one aim was to seek to achieve that “the parents can be in the presence of each other”.
(b)In describing the mother “cheerfully” suggesting the father was traumatising the children by repeated attempts to see them, she meant to convey that her sense by the end was the mother was “not particularly co-operative and her motivation was not to support therapy being successful”. The mother disagreed with this opinion;
(c)On 14 December 2020, Dr E allowed the mother and the girls an open discussion with the father of their complaints – and the father who listened to the complaints was somewhat “dismissive”. When the children arrived, they clung to their mother and carried stress balls “which they pulled at in an overtly dramatic way”. The mother spoke in front of the children about “[Mr F’s] alleged disloyalty to her. She said she would never forgive him”;
(d)On 15 December 2020, it was agreed the children would spend some time with the father without their mother present with the intention that they would do some Christmas shopping and find a Christmas present for their mother. When the father arrived, the children were somewhat “standoffish with him” and held Dr E’s hand “in an overt show of anxiety”. Dr E opined their behaviour “was somewhat dramatic and not genuine fear”. The children shopped with the father for around two hours before they called the mother to collect them;
(e)Dr E later on 15 December met with the father and Mr F together. Although Mr F complained about his mother’s behaviour to him during adolescence, at the same time he “showed a desire to reconcile with his mother and sisters, particularly his maternal grandparents to who he said he had been close”;
(f)When Dr E gave feedback to the mother about the day, the mother reported the children alleged the father “had become angry at times during the shopping trip and had trouble controlling himself”. Dr E told the mother “this was not my observation of [Mr Fisher’s] behaviour”. This feedback occurred in the presence of the father causing Dr E to observe when seen together “[Ms Fisher] impressed as oversensitive to criticism and [Mr Fisher] as reactive”. On all the evidence during the trial, I assess this observation of the parents as reflected in their cross-examination as well;
(g)It was agreed that the following day (16 December) the children would spend time with their father at a roller-skating rink. The observations on that day were notable in that:
(i)the girls, although hot and thirsty, refused to drink the water their father had purchased until encouraged by Dr E;
(ii)playing cards in the park thereafter the children relaxed and there were “many jokes and playful alliances”. When Y had to go to the toilet (accompanied by Dr E), X happily continued the card game with the father and could be heard laughing;
(iii)although the mother was scheduled to arrive at 2.15pm, the mother arrived early (at 1.50pm) and when on returning from the toilet Dr E observed “[X] was standing beside her mother with a stricken look, and [Y] went to cling to the mother” who then left with the girls. The mother was asked in cross-examination why she turned up early (25 minutes), but I found her explanation about having collected her parents from the airport and it essentially being more convenient to collect the children early, not convincing. In my view, the mother should not, by her actions, have caused the session to finish early, as inevitably occurred; and
(iv)After the children left, the father spoke to Dr E in “strong language”; was critical of the mother and her behaviour and expressed a view that there was no change in the children’s behaviour and “there was no solution”. Dr E says she criticised the father about his behaviour when, the day earlier, he had not been compliant with her advice when engaging with the mother – which the father sought to justify.
(h)Later on 17 December Dr E went to the mother’s house to meet her parents, and was told by the mother that Y had “suffered a meltdown after seeing the father” although Dr E did not observe the child being “distressed”. The afternoon meeting between the mother and father was generally polite although the father “again reacted angrily at one time”, during the discussion of the mother’s list of complaints (set out at page 12 of the report), particularly when the mother alleged he had hit Y. He found it difficult to “contain himself”;
(i)It being agreed that the next day (17 December) the children would attend a recreational park, the children were at the entrance at commencement and clung to their mother “in an overtly dramatic way”. Dr E observed the mother made no effort to encourage the children to greet their father; gave long hugs to their mother, with the children returning to their standoffish approach. It appeared the more positive observations of the day before had not returned immediately. Finally, after some interaction, the children “then sat with their father and happily ate his food and picnic lunch. They chatted and appeared relaxed”. The relaxed chatter continued when the father drove them to a shopping centre as planned. At the shopping centre the children appeared very comfortable although they were “unenthusiastic” about buying presents for their cousins with the father later expressing “resentment that the children do not have a close relationships with his family members”. When Dr E asked X and Y about the chance of resolving family conflicts, they were both adamant that their mother “would not reconcile with [Mr F], saying ‘mum will never forgive him’”;
(j)When Mr F was assisted to make his apology to his grandparents, and did so, it might have been hoped that would be a “breakthrough” moment. The evidence at the trial before me some 10 months later suggest it was not;
(k)Mr F went to speak to the girls at the park. They were initially standoffish with him. Dr E encouraged the mother to show approval for Mr F to allow the girls to talk with him. Although in cross examination the mother disputed that she was “reluctant” to do so, I accept the evidence of Dr E that she was. Importantly, the next observation by Dr E was not disputed, namely “[n]evertheless, a short time later, the girls and [Mr F] were sitting on a piece of play equipment talking naturally.”
(l)Post therapy, the mother told Dr E that:
(i)she has no desire to see Mr F “again”;
(ii)the father had not changed and was still a “very cruel man”;
(iii)she perceives herself as having to “protect” the girls; and
(iv)the children might eventually accept a telephone call from their father or read an email but her opinion was that “she doubted the children would ever forgive their father”.
(m)Post therapy, on the suggestions of Dr E, the father attempted to telephone the children “but they had refused to speak with him” and his emails to the children were unanswered. After giving the father a few days to decide whether he wished to have her produce a report – after explaining to the father the potential for a report to further harm his relationship with the children – the father said he wanted a report, expressing the views that he now knows “deep down they love their Dad and brother” and that he would “feel I have let them down if I didn’t head back to Court once the adjournment is over”.
After the therapy, Dr E completed the assessment of Psychometric Testing and opined that:
(a)Mr Fisher’s responses were consistent with his account to me and his clinical presentation but inconsistent with Ms Fisher’s allegations about him; and
(b)Ms Fisher’s defensive approach to testing suggests she is reluctant to admit fault and may be inclined to deny responsibility for her behaviour and actions, instead tending to see any misfortune as caused by others. The clinical scales scores were consistent with her clinical presentation of suffering a profound psychological wounding through the end of her relationship with Mr Fisher and perhaps an exaggerated response to it.

In her summary and conclusion, Dr E said it was “inappropriate” for her report to include recommendations for the parenting arrangements, however in her opinion it is unlikely that any type of family therapy will be effective “due to the entrenched nature of each parent’s beliefs about the other”. I agree with this assessment.
I also accept the further opinions expressed by Dr E that:
(a)the father has an unhealthy reliance on Mr F. Having him swear and file an affidavit in support of his case was, in my view, an error in judgement, only slightly ameliorated by the decision not to rely upon the evidence in the trial;
(b)Mr Fisher has rigid beliefs about the mother and showed a lack of insight into his own behaviour;
(c)At times Ms Fisher seemed to hold rigid beliefs, and her unforgiving approach to Mr F “seemed disproportionate to the conflict between them”;
(d)X impressed as “having a more confident approach to life and social relationships than her sister… she is outspoken and, when relaxed, shows a good sense of humour”. X is “very loyal to her mother but showed enjoyment and confidence when she relaxed with her father”;
(e)Y impressed as a somewhat shy young woman, however over the four days of therapy there were “no overt signs of ASD in [Y]” and her language showed good pragmatic and social knowledge”;
(f)Some of the themes that emerged in the therapy involved:
•The children are influenced by their mother’s beliefs and allegations against their father (whether these are valid or not is for the determination of the Court)
•The children’s behaviour with their father, when allowed to relax, shows pleasure and confidence in him.
•The children’s behaviour with their father when their mother is present reverts dramatically to a show of anxiety.
•Jealousy and resentment about each parent’s family of origin
•[Ms Fisher’s] resentment that [Mr F] is aligned with [Mr Fisher].
•[Mr Fisher] perceives the girls’ complaints as entirely false and makes no concessions about his behaviour.
•[Ms Fisher] describes herself as a victim of coercive control and violence and suggests that [Mr Fisher] is cruel and unfeeling in his behaviour towards her and the girls.
•[Mr Fisher] claims that [Ms Fisher] has an undiagnosed serious mental health condition that includes making outrageous lies and counterclaims that she physically and verbally abused him.
•[Mr Fisher] shows a passionate commitment to the children; but also expresses hopelessness about solutions that sometimes appears to be like a self-fulfilling prophecy.
(g)A change of residence is unlikely to “change the mother” and would be a big issue for these children but there are a few potential strategies that can be employed with this family.
reports and evidence of Court child expert mr U
As earlier noted, the first family report dated 22 September 2019 (just seven months after separation) guided the Court in making the order for supervised time on 25 September 2019 and was consistent with the recommendations made by him. Relevantly at the time of this first report:
(a)Mr U observed the children at the mother’s home with the mother and her parents but did not observe the children with the father;
(b)interviewing the children was difficult (as paragraphs 100 to 107 demonstrate); the report writer recording it “was evident that I was not going to obtain a lot of answers from the girls” who both informed him they did not want contact with their father. When asked why, Y noted “I hate him”, with X noting “I don’t like him” and that her father was “mean” and that he had followed them in the shopping centre. The mother was mostly present sitting beside the children for this interview;
(c)the report writer was of the view that the children have been exposed to the family violence in this matter and prophetically opined (at paragraph 202) that:
[X] and [Y] already have enough to deal with in their own issues, it is now up to both parents to deal with their individual issues in the best interests of [X] and [Y].
Sadly, by the time of the hearing before me and all of the evidence, both parents can be fairly criticised for not dealing with “their individual issues”.
The second report dated 10 November 2021 was acknowledged to be limited by the fact that Mr U had not interviewed or observed X or Y since September 2021, but acknowledged the children are “rapidly approaching adolescence and as such there is limited time for changes to be made in this matter”.
At paragraph 33, the report writer expressed the opinion, based on a review of the additional data, he was left with no option but to recommend to the Court that X and Y live with “the father and although the girls will require therapeutic assistance in the change process without changes now, it is this writer’s professional view that the chances of [X] and [Y] having a relationship with their father and brother as it stands will not occur given the demonstrated behaviour of [Ms Fisher]”.
As would be anticipated, the recommendation made in the report filed less than one month before Mr U was scheduled to be cross-examined on 2 December 2021, caused the testing of his evidence to be a significant focus (particularly by the mother’s Counsel), and arising from the updated report and cross-examination I note the following matters:
(a)He considered the impact on the mother and the children of the mother’s allegations of family violence and the Reasons of the Magistrate in the family violence proceedings. X’s decision to record the father in the car, and that incident, was evidence of the children being exposed to family violence;
(b)He had no data verifying physical harm;
(c)He read the report of the mother’s treating psychologist Mr C and took into account the only source of information for Mr C was the mother. He accepts if the Court found the father had perpetuated family violence upon the mother, it would cause a lot of mental health issues for the mother, and could cause her to withdraw and feel a need to protect the children;
(d)The reports of Ms T and Ms D had been read by him where the children’s strong views about not having contact with the father were noted;
(e)He continued to hold the view expressed at paragraph 97 of the first report, that neither child had the capacity to understand the long term consequences of their wishes. Because Y showed different behaviour when she did not think he was observing her, he could not discount the possibility that the mother’s presence during the interview was “coercive”. I took this evidence to suggest subtle influence rather than some overt behaviour by the mother;
(f)Use of such a strong word as “hate” by a child is more consistent with “influence”, which he said is likely to have occurred;
(g)He accepted that a change of residence is likely to cause trauma to the girls which could manifest in an increase in anxiety and depression in the girls;
(h)Because he formed the view the mother influenced the girls in their expressed feelings about the father, this, I find, diminished the weight that Mr U applied to the girls’ wishes;
(i)When directed properly, by Counsel Ms McArdle for the mother, to the criticisms of the father’s behaviour by Dr E in her report, Mr U said although he accepted those concerns, he was still of the opinion that the father provides the best opportunity for the girls to have a relationship with both parents, and it has not occurred because of the influence of the mother. I accept this opinion of Mr U;
(j)He believes less than a three month moratorium is too short a time to expect the type of changes in the girls’ thinking to occur, even with the necessary assistance of therapists; and
(k)Dr E spent more time with the children and the father together than any family report writer is able to achieve, and he considered the observations revealed:
(i)quite a dramatic change in the children’s behaviour in the way they relaxed around their father when the mother was not present;
(ii)their behaviour contradicted their “words”; and
(iii)some support for his initial concerns that the children’s presentation “did not seem right”.
It is trite to record that a Court is not bound to follow or adopt a report from a Court Child Expert (Hall & Hall (1979) FLC 90-713) however if the Court finds the opinions are soundly based on the evidence as found by the Court, the Court is entitled to give the expert’s opinion some weight. Mr U said his recommendation “is not made lightly” and this is a difficult case. I do apply some weight to Mr U’s reported opinions and final recommendation, but not determinative weight. I have considered the criticisms of the report writer and the process, contended for by Counsel for the mother at paragraphs 76 to 95 of the written submissions. I do not accept many of those submissions and still take the view some weight can be applied to the opinions expressed by the family report writer. I do accept that Mr U “provided no pathway nor recommendation as to how such a shift (in residence) ought be facilitated (paragraph 93 of the submissions).
Other experts
Ms T, who had attempted to facilitate supervised visits, gave evidence but was not required for cross-examination. Her evidence demonstrates the ever present difficulties to overcome in this matter.
The mother’s Psychologist Mr C began treating the mother from 3 October 2018 and his report of 16 September 2020 was relied upon by the mother. He had also provided a further updating report on 26 October 2021, which was after the RIFT had taken place. Mr C confirmed he had seen no documents or reports and, not surprisingly, his sole source of information was therefore the mother. Based on the information the mother has provided, he has maintained his diagnosis that the mother suffers complex and chronic Post-Traumatic Stress Disorder arising entirely from the history of abuse she has experienced from the father.
Although the mother expressed to him she was distressed “by trying to cajole and coerce her children to see the father in compliance with Court Orders despite there being a Domestic Violence Order in place and despite their resolute resistance in doing so”, he seemed surprised when he was told in cross-examination that the Court Orders were made with the consent of the mother.
The mother reported to him “being exhausted by the process of the intervention of [Dr E]” and her hope was that the process “would assist the Court to gain greater understanding of what she and the girls had reportedly been through” but through all of this “she was becoming stronger and clearer about the inappropriateness of forcing the girls to see their father against their will”.
The report of 26 October 2021 also noted that the mother’s Post-Traumatic Stress Disorder symptoms had been triggered again by the events after the RIFT – including the father’s intention to proceed to a final hearing and to seek residence of X and Y.
Mr C said he had not explored with the mother a possible change of residence but, if that occurred, he expected the mother’s mental health “will exacerbate”. He also confirmed that the mother believes Mr F has been “brainwashed’ and it is a highly sensitive issue which, I infer from Mr C’s evidence, he has not sought to deal with specifically with the mother. It would, in my view, be helpful if he did, and for this reason the Court will direct the ICL to provide a copy of these Reasons to Mr C. Whether he chooses to read them is, of course, a matter for him.
The children’s counsellor Ms D (a Psychologist since 2001) provided a report to the ICL dated 27 April 2020, relied upon by the ICL. She was the subject of cross-examination, and importantly had four sessions in 2021 with the girls after the RIFT by Dr E. A constant report to her by the children, is a firm view that they do not wish to have contact with their father, and Y talks about potentially “harming” her father whilst X talks about “running away”. Before cross-examination commenced, the opinion of Ms D had not changed from that expressed in her report, namely:
… the only option with respect to the girls softening their views about contact/communication with their father, is to facilitate contact/communication if, and/or when the girls request to be able to do so.
This is an opinion relied upon by the mother to support her proposal.
Ms D reported that on 16 October 2021 she was informed Y was now medicated and had a few days of school refusal.
When asked by Counsel for the mother about the children’s possible adverse reaction to a change of residence, Ms D identified the following concerns:
(a)The children’s strong attachment to the mother being affected;
(b)A likely increase in Y’s “meltdowns” and school refusal;
(c)Increased sibling conflict;
(d)X would become more withdrawn;
(e)The girls would suffer more anxiety and would need to be “screened” for symptoms of depression;
(f)It would be a challenge to Y to move into a home with more children;
(g)Social relationships for the girls might take time to be maintained; and
(h)Any “moratorium” would be very difficult for the girls as they rely upon the mother for physical and emotional support.
When cross-examined by the father’s Counsel Mr Fellows, Ms D confirmed she has not sought any version of the history from the father; has not read the family report or the report from Dr E, and emphasised her counselling does not proceed on the basis that the girls are “unsafe” with their father.
Ms D was taken to some of the observations made by Dr E, and properly found it impossible to comment on behaviour observed by Dr E as she was not present, however she seemed uncomfortable in accepting that the children were overdramatic and did not exhibit “genuine fear” of the father. She was surprised the children sat with the father and happily ate his food.
The children continue to tell her they are fearful of their father (see Exhibit 15 and the note of 17 July 2021) and Ms D acknowledged that the friendly behaviour exhibited by the girls during the RIFT (at times), contradict the expressed words of the children to her. As it seems Ms D will continue to provide therapeutic support to the girls, similarly to Mr C, the ICL is directed to provide Ms D with a copy of these Reasons.
Family violence
It is clear that the mother asserts she and the children have been the subject of emotional, physical, controlling and coercive behaviour by the father during the relationship. To some extent, I understand that the mother’s claims, from her perspective, is the critical issue because it explains totally:
(a)the cause of her Post-Traumatic Stress Disorder and the reasons why she acts so strenuously to “protect” the children from their father and the prospect of future abuse of them by him, if he were to have any time with them; and
(b)why the children have consistently expressed that they do not wish to have any contact with the father, including by telephone or email.
The mother entirely rejects that her beliefs have influenced the children’s wishes or behaviour as she asserts she does not speak negatively about the father, and they are mature enough to assess the history of the parental relationship and conflict, in such a way that they genuinely fear their father.
The father, in my assessment, adopted a highly defensive response to any allegation of family violence having been perpetrated by him and emphatically denied he has ever hurt or would hurt the children.
Although I regard the evidence of alleged family violence offered to the Court as extremely important, I am not satisfied that the findings that now follow are conclusively determinative of the parenting dispute. Ultimately, the past events, some of which I now deal with, are clearly a prescribed additional consideration (under s 60CC(3)(j)), and more importantly, a factor to be given weight when assessing risk, as I will further address when making findings within the matrix of the relevant s 60CC(2) and s 60CC(3) considerations.
To illuminate the pathway to the overall assessment relating to family violence (conscious of the wide ambit set out in s 4AB of the Act), I find that:
(a)both parents at times have, during the relationship, treated the other parent poorly and have conveyed hurtful and denigrating remarks towards the other parent – at times in the presence of the children. The children have reported that they felt their father has at times yelled and criticised the mother. I accept he did;
(b)the difficulties the father experienced in managing his mood variations and the tensions in wishing to be an active parent whilst being the primary earner for the family through his military service (posted at times away from the family unit) did cause him at times to act in a manner which was verbally aggressive towards the mother – I assess often out of a sense of frustration;
(c)the father has in the past called the children names (like “sook”) and threatened to discipline them with words that he did not, but should have, understood would upset these two little girls;
(d)on the evidence, I am not persuaded that the father “pinched” Y in S Region with intent to cause her harm. Rough play between a parent and a child can often be miss interpreted. The mother did not assist her credibility by suggesting that the father “pinched” the girls regularly – up to 30 to 40 times. It makes no sense to me, if that had occurred, that this hyper vigilant and protective mother would have allowed such abuse to occur. I regard her allegations in this regard as embellished and exaggerated;
(e)the “remote control” incident was in my assessment an accident, although it was contributed to some extent by what I find was the father’s impatience and anger at the time. I do not accept, on the balance of probabilities, that the father threw the remote control at the child with the intent to injure or maim the child. However, despite hugging Y and apologising, he could have handled the aftermath better. Having said that, I find that the mother, to some degree opportunistically, used the “accident” as a catalyst to demonstrate her belief the children are at risk and, as we know, sadly the events of 31 January 2019 (curiously after a family holiday to S Region only weeks before), have disproportionately shaped the children’s a relationship with the father and, I find, the counselling from Ms D which began on 4 April 2019.
The Court may take into consideration findings made by another court (s 69ZX(3)(b)). In this regard, Exhibit 5 is a transcript of the oral reasons for judgment delivered by a Magistrate in City B in 2019 which founded the protection order made in the mother’s favour against the father. In those reasons, the learned Magistrate refers to “control exerted over the aggrieved, by the respondent”; the numerous text messages and emails trying to hold the relationship together but inconsistent with his allegation the mother was a liar, and his unauthorised surveillance of the mother’s electronic device at separation.
I adopt these findings, but note the mother’s legal representative only sought an order for two years, and further, there is no evidence of any breach of the order (before its expiry in 2021) causing the police to commence action against the father or any new application by the mother for a family violence order.
The mother also points to the way in which the father has conducted these proceedings – and in particular the financial proceedings where the family home has been sold, and she says, she and the girls have been forced to live in temporary accommodation. It is to be acknowledged that the mother is the Applicant in this Court and has, from the earliest days of the litigation manifested a reluctance to support the children spending time with their father, contrary to their wishes, save for the consent Order made in September 2019 which did not result in any actual time being spent. The father was perfectly entitled to the challenge the mother’s position and has done so vigorously.

On the basis of these findings, which I rely upon but do not repeat, further findings below are made.
primary considerations
I rely upon but do not repeat earlier findings made.
I find it is in the best interests of the children and they would benefit from a meaningful relationship with both parents. The father submits he has no relationship with the girls at present, and that is correct. The mother, by her proposal, and consistent with her case and evidence, does not accept that the children will benefit from a relationship with their father. I disagree. One real challenge in this case is whether the toxic dynamic that now exists between the parents will permit the children to have a meaningful relationship with both parents or only one parent nurtured during their infancy.
I am required to give greater weight to the need to protect the children “from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” (s 60CC(2)(b)). Relying on earlier findings I summarise and repeat, on my assessment of all the evidence (expert or otherwise), that:
(a)during the relationship the children were exposed to parental conflict. I regard some of the mother’s allegations as exaggerated and inconsistent, but also find the father at times minimised his behaviour;
(b)the father is focussed on blaming the mother entirely for what she says is the children’s feelings towards him now. I do not accept this perception. It is likely that some of the father’s actions have caused the children to be upset and distressed. The father does not consistently understand his reactive behaviour can cause anxiety to the children. Dr E made similar observations;
(c)although it is not clear when the mother formed the view that the children would not benefit from a relationship with their father – certainly it occurred after the S Region trip and when the brief attempt at reconciliation in K Town on return, failed. However, the mother has formed that view and in my assessment it is entrenched, rigid and unshakeable. Her belief that her position is totally shaped by her desire to protect the children is consistent with the evidence from therapists Ms D and Mr C;
(d)supported by these experts, the mother has developed no current insight about the influence she has had and continues to have upon the beliefs of the children. I do not say that their wishes are coached or without some foundation from their personal experiences, but they are also shaped by what the children believe the mother wants for them. The children’s belief system has not really been challenged since separation, before the RIFT undertaken by Dr E. Their reaction and behaviour in the absence of their mother was telling, but after the RIFT ended, they returned to their previous stance; and
(e)I do not find that the mother is motivated by malice towards the father – but rather she is so fixed in her beliefs that these children know that acting contrary to the mother’s beliefs (and in effect seeking out time with their father) would not be acceptable to the mother. Where the children’s exclusive attachment is to their mother, potentially putting at risk that relationship is not an outcome these children could accept. It is likely they might see a similar result for them as has befallen their brother Mr F. It is a dilemma impossible for them to manage and has, on my assessment, contributed to them aligning entirely with the mother and also the maternal grandparents.
It follows from these findings that I find these children are likely to be exposed to emotional and psychological harm (but not physical harm or neglect) in both parent’s households, but different in character. As Dr E opined and I agree, the problems in this case are “parent/parent” not “child/parent”.
ADDITIONAL CONSIDERATIONS
Although I agree with Mr U that the children’s wishes should be viewed cautiously because of the mother’s influence, it is not appropriate to ignore or discount entirely their views. However formed, they have been consistently expressed for nearly four years, to a number of experts. The challenge for the Court is that the best evidence of the genuineness and/or inflexibility of their expressed wishes, is the observations of Dr E when they were properly prepared for interacting with their father, and did so. It would be, in my view, beyond the capacity of these two girls to “fake” and “pretend” their demonstrated enjoyment of spending time with their father for the periods observed by Dr E during the RIFT. Sadly, whilst the father experienced that interaction and generally saw it as positive, the mother could not accept the children’s enjoyment might have provided a platform or foundation for the future. As soon as the RIFT ended so did any further chance for interaction whilst the girls live in the mother’s household. I do not ignore the obvious skills that Dr E brought to the RIFT, but sadly it developed no momentum.
The strongly expressed views of the children identify some of the issues likely to be encountered in effecting a change of residence as the ICL and father propose. I deal with these concerns later in these Reasons.
As earlier noted, the father (and his extended family) have no real relationship with the children – although the father has a history with them, not all bad as the mother would ask me to accept. The children have not met the father’s partner Ms DD or her children, Ms EE (aged 20 years) and FF (now aged 15 years). Ms DD was interviewed for the first family report by telephone, and Mr U’s summation of the interview is at paragraphs 137 to 143. Somewhat confusingly, when interviewed then she used a different surname than she currently uses. It is very difficult to make any assessment of the strength or stability of the father’s new relationship. This uncertainty is a slight concern to the Court. I have considered a combination of Mr U’s interview (when the relationship between Ms DD and the father was only six months old) when Ms DD expressed she was very comfortable in the way the relationship was developing and her affidavit filed 4 September 2020 (some 12 months later and 12 months before the final hearing). Ms DD was not required for cross-examination. She is a healthcare professional and, it is reasonable to infer, she has continued to offer emotional support to the father which is a positive for him. Even if, as the father and Ms DD says, this new relationship is strong, stable and growing, the household (noting the father lives in the home of Ms DD), is still a totally foreign environment for the children X and Y.
The father, since early 2019, has had no opportunity to participate in making decisions about or spending time with the children – but not by his choice.
The parties live in the same region and the mother no longer intends to relocate further south as she had expressed previously.
I assess both parents, given the chance, have the capacity to provide for the physical needs of the children. X, at her age on the cusp of teenage-hood, and Y with her ASD diagnosis and anxiety issues (which I accept she has), do present challenges around meeting their emotional and intellectual needs. Although I am critical in these Reasons about her insight, I have a sense that the mother is emotionally attuned to her daughters. However, she is unable to modify their views – preferring as she repeated in her evidence more than once – a need to “validate” the children’s views. This could, and in my view is more probable than possible, create some clashes between the mother and the girls as they get older and seek growing levels of independence and interaction with peers. This was an opinion expressed by Mr U.
If, as I infer, the mother might experience difficulties in managing these children’s behaviour and expectations, then when the father has had no interaction for four years; the children are still expressing firm negative views and he is trying to maintain a relationship with Ms DD, the father’s capacity (not willingness) will be tested I suspect on a daily basis if the children live with him. Furthermore, on the father and the ICL’s proposal, a moratorium of six months will be in place – seemingly to ensure the children are not exposed to the mother’s influence. However, the moratorium will also mean the children have no contact with the parent who has met their day to day needs for four years. Although the father acknowledges the transition will be difficult for the children, I am not totally satisfied the best Counsellor in the area (or even Dr E remotely in Melbourne), will be able to provide enough therapeutic support when required to ameliorate the likely manifestations of anxiety and distress all experts (Dr E; Mr U; Ms D) predict is likely to occur for these children.
I have already made observations and findings about the parties’ attitude to parenting. The quest is never to achieve a “perfect parent” as such a person probably does not exist but certainly does not come before the Court. I have formed the view that both parents have demonstrated an inability to separate what they know is in the best interests of their children, from their beliefs about the other parent and why that parent is to blame totally for the situation their children find themselves in.
I rely upon earlier findings relating to family violence and the context for the earlier family violence order, which has expired.
Section 60CC(3)(l) requires the Court to consider whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings. This issue is dealt with further in the discussion below (as well as s 60CC(3)(d)) – namely the likely effect of any changes in the children’s circumstances).
Discussion
In my assessment, the presumption of equal shared parental responsibility does not apply both because it is rebutted by the findings I have made about family violence and further because it is not in the best interests of X and Y to apply the presumption or to make such an order.
In a practical sense it is in the best interests of the children that the parent who they live with exercise such responsibility, although so as not to totally exclude the other parent, the parent exercising the power shall have an obligation to inform the parent before they make a major long term decision and give the other parent an opportunity to express a view.
The critical issue, and the one which creates the most issues for consideration, is where do the children live. In this regard the parties’ proposals as earlier identified define the dispute that requires determination.
When a judge is asked to make a discretionary decision of such complexities as this one creates, illuminating the pathway to the outcome, is likely to challenge both parent’s hopes and beliefs, but I think an attempt to summarise from the findings and conclusions about the advantages and disadvantages for X and Y of each proposal will hopefully assist. I entirely accept that there is nothing I can say to the parents which will change the deep sense of loss or unfairness they will feel if their proposal is not accepted. Sadly, this is not a case where any alternate proposal or “middle ground” compels consideration – nor was one offered.
Inevitably, advantages with one proposal create disadvantages with the other proposal, however a more succinct summation of the issues I have weighed up include:
(a)If residence does not change, then:
(i)there are no orders likely to be easily enforceable that will enable the children to spend time with the father. This will mean that until the children have true independence, and are prepared to exercise it, the father would have to wait for the girls (or one of them) to initiate contact. I do not discount this could occur, but could not predict if or when it might happen;
(ii)the result of the lack of time will extend to the children’s sibling Mr F, unless the mother’s expressed reluctance to “forgive” Mr F changes and means she genuinely welcomes him back into her family;
(iii)the father’s extended family will not spend time with the children to celebrate family events and gatherings;
(iv)as a consequence of (i), (ii) and (iii) above, this may create a lifelong estrangement and be a loss to the children’s sense of identity and confidence, which extensive counselling and maturity may not overcome. They will not benefit from what the father wishes to offer them, including his love;
(v)staying where they are living with their mother is in accordance with the consistently expressed wishes since early 2019;
(vi)the children have experienced a level of stability living with their mother who has demonstrated a commitment to them gaining support from counsellors and, I find, dealing with all the usual issues that arise for children of this age, like negotiating school, peer relationships and normal female biological developments;
(vii)the children, and particularly Y, will not need to navigate and adjust to a totally new living environment with the father (with whom they have not lived for nearly four years) but also his partner Ms DD and her children. Even if the father, as he says he would, limits the engagement of the girls with Ms DD and her children for a period, this is not a long term option if the father (as he is perfectly entitled to do) wishes to sustain, preserve and develop his relationship with Ms DD as his partner. I accept that this finding includes a degree of “speculation”; and
(viii)the evidence is consistent from Ms D, Dr E and Mr U that a change of residence would be very difficult transition for the children, and I accept this evidence. It means if the transition does not occur, then the risks of exacerbating X’s anxiety and capacity to withdraw and Y’s reactions to anxiety like “meltdowns” and school refusal, are less likely to occur.
(b)If residence does change, then:
(i)the father hopes that he will be able to repair his estranged relationship with the children such that after a period where they have no contact with the mother, they can begin to more realistically establish a relationship with the mother that could lead to the children having a meaningful relationship with both parents;
(ii)the father will be in a position to facilitate contact between the girls and his family, including his parents, siblings and his nieces and nephews (who I infer are the children’s cousins) and importantly Mr F, and in this way provide a context to their family history;
(iii)with counselling and his day to day positive parenting (which he is desperate to demonstrate to the children), the father expects to educate and inform the children about his qualities and how much he cares about them. My assessment that the process the father will adopt, will be to challenge the perceptions the children express about their history with him; his past behaviour; and more likely that the mother’s stories about him are not true. Whether he can achieve this transformation for children of this age, and with the journey they have endured over the last few years before separation and since, is by no means certain. This could all “backfire” with emotionally destructive effect, despite the father’s best endeavours and those of counsellors;
(iv)how the children will also cope with living in a new household with people they do not know and without support or contact from their mother is a significant uncertainty, which could result in reactions from the children that are very difficult to manage;
(v)X has said she would “run away” from the father’s home if she had to live there. Whilst this might be a mere idle threat, it is quite possible the child could do so – even after the father takes the child to school. The school cannot enforce orders and the school is not a fortress. If X does not settle down as quickly as the father hopes, then repeated recovery order type applications (or at least further proceedings) are very likely;
(vi)Y has threatened to “harm” the father and whilst I have no concerns about the father preventing physical harm to him, he cannot supervise the child’s every waking moment, and there is a distinct possibility that Y’s reactions to Ms DD’s children could be problematic. The father, in my assessment, minimises the likely behaviour management issues that X and Y could demonstrate. I accept he says he will be able to take two months off work to give the children his full attention. There is a risk that the reactions, at these children’s ages, might not have subside within that period. In this regard, no independent evidence of an expert psychologist who has a full understanding of the background in this case, to provide an opinion of how likely counselling will assist, was offered to the Court; and
(vii)Although the father takes the view that none of his past behaviour could have created a sense of fear in the girls about him, that is what they say. Living with him with such a fear (even if irrational or not soundly based on facts) does not, for a child, remove such a fear in a way that the relatively short and facilitated time by Dr E and in her presence was evident at times during the RIFT.
Conclusion
Mr Fellows, in his well-articulated submissions at paragraphs 2.6 to 2.8 contends, correctly, that the Court “has not shied away from “controversial” or “difficult” decisions such as proposed by the father.
Whether the Full Court in other difficult cases did not find error when a trial judge changed longstanding residence arrangements is not the issue. Of course, the power to do so exists in the exercise of discretion, if it is in the best interests of the child to do so.
I honestly admit I have found this decision difficult, because in some ways the mother’s negative influence on the children, from the time of separation so far as the time the children spend with the father, has been a significant contributing factor. However, the test is not that a parent who could have done things better or differently should suffer the consequences of their actions – whatever the effect on the children. Similarly, it is not the test that the Court must apply, that a persistent and loving parent like the father should be rewarded or compensated for the actions of the mother and the loss he has suffered by not spending time with his daughters.
The paramount (but not only) consideration is the best interests the children.
Applying that test, and the various findings and concerns raised in these Reasons, I have come to the conclusion that it is in the best interests of the children that they continue to live with the mother, and that the mother has sole parental responsibility. At paragraph 2.5 of the father’s submissions, he concedes an order for sole parental responsibility is “inevitable” in such an outcome.
In the final analysis, the opinion of Dr E that the solution lies in the parents’ relationship, is correct. Neither parent was able to concede any significant contribution to the impasse – directing nearly all their allegations to the other parent. I have no confidence that the parents have an insight into their behaviour, and without insight, modification of behaviour is very difficult. I also accept the submission of Counsel for the mother that this is not a case where there is no basis for some of the children’s concerns, based on the father’s behaviour, even if their response can be seen as disproportionate.
Because my hope for an empowered initiation by the children lies in firstly a change in the mother’s beliefs, the ICL shall have leave to provide a copy of these Reasons to Mr C. Similarly, with a change in the mother’s capacity to support the children exploring a relationship with their father (if that can occur in the future), Ms D has a role to play and she also should get a copy of these Reasons.

The mother’s case outline, although blunt to the extent that the children will need to initiate contact with the father, is not even remotely like, or could be construed as, a “no time” order. The other provisions in the mother’s proposed order are not only sensible but give the father some opportunity to continue to be informed as to the children’s welfare and education. It is to be hoped, and I certainly do not discount this possibility, that with the shadow of litigation removed, and with a more fulsome context provided to Mr C and Ms D, some positive outcome for these children could occur.
I need to acknowledge the efforts of the ICL in this difficult case, who I accept was the catalyst for the RIFT conducted by Dr E – a genuine attempt to create a positive forward momentum. I do not lightly depart from the submissions of Mr Jacobs (for the ICL) or the final recommendation by Mr U.
In the end, the effect on the children and uncertainties of a change of residence, coupled with a desire to make orders less likely to lead to further proceedings – proceedings which would engulf the children in more assessments and awareness of parental disharmony at time of their development when they deserve some “clear air – weigh in favour of the mother’s proposal.
For the reasons provided, I find the parenting orders set out at the commencement of these Reasons are in the children’s best interests.
property applications
It is clear that the parties’ focus during the trial was the complex parenting proceedings. The financial dispute occupied virtually no time in cross-examination, and in final submissions both parties concisely articulated their position and the length of the submissions demonstrated that the property dispute was very much a secondary issue where:
(a)the husband’s submissions occupied four pages out of a total 20 pages. Without intended criticism of Mr Fellows, the submissions did not seek to contend for any particular percentage divisions relating to contributions and then an adjustment for the relevant s 75(2) factors. Both Counsel accepted that the parenting decision would have some impact, however the husband, adopting the expectation the children would live with him, submitted a division of the total pool of assets as to 65% to the husband and 35% to the wife would be just and equitable; and
(b)the wife’s submissions (in response) are similarly succinct and no criticism for this economical approach adopted by Ms McArdle is intended in the circumstances. The wife’s property submissions were contained within four pages out of a total of 30 pages. The wife’s submissions, similar to those of the husband, did not contend for a particular percentage adjustment on contributions, with a further adjustment for the relevant s 75(2) factors. However, on the basis that the children would live with her, the final alteration of interests, with the wife to receive 65% and the husband 35% (of the total pool), was submitted to be just and equitable.
The wife seeks a “split” of the husband’s superannuation. I am not aware of any evidence that the trustee of the husband’s Superannuation Fund 3 has been offered procedural fairness. As I indicate later in these Reasons, until I am so satisfied, because I do intend to make a splitting order, I am not able to pronounce final orders.
PrinCiples to be applied
Shortly stated, but more concisely and elaborately described in the Full Court decision in Hickey & Hickey (2003) FLC 93-143, in a property settlement case, the Court must adopt a well-known four-step process, essentially:
(c)to identify the pool of assets and liabilities generally, and usually at the time of hearing;
(d)to assess the relative contributions of both the financial, non-financial, direct and indirect nature as specified by s 79(4);
(e)to consider the factors as are relevant contained in s 75(2) of the Act; and
(f)finally, consider the ultimate analysis to determine whether the order the Court proposes to make is just and equitable to both parties.
Both Counsel submit, and I agree, that it is just and equitable within the meaning of s 79(2) of the Act to make an order (see Stanford & Stanford [2012] HCA 52).
Pool
The brevity of submissions is perhaps also reflective of the fact that the pool of interests is agreed. The only dispute, identified at paragraph 9.2 of the husband’s submissions, is whether the KK Finance loan for $8,361.43 should be included as a liability. The wife’s submission (at page 121) says that issue has been resolved and the “add back has been removed”. It was never an “add back” and no detail of how the issue was resolved is given to the Court. However, if the debt incurred (post separation) to buy a motor vehicle (post separation) is excluded, so should the value attributed to the vehicle ($8,000).
I did not have the benefit of oral exchanges with Counsel, after written submissions, and it was not until preparing these Reasons that some items in the “agreed” balance sheet caused me some reflection, for example:
(a)how can “rates paid from house sale” be an “add back”, which Annexure A to the husband’s submissions reveals (and apparently accepted by the wife) is a benefit the wife received. Without any satisfactory explanation in the parties’ evidence, I do not include that sum – although I acknowledge later when discussing contributions, the wife’s occupation of the house post separation;
(b)it seems accepted that a debt to “GG Company” of $52,320 exists and that the wife should carry that liability (and also the HELP debt), but it is not clear to me how the debt arose and why it is just and equitable for the wife to solely take responsibility for it. Where it seems to be an agreed position, I do not disturb the agreement; and
(c)the “add backs” for legal expenses and partial property distributions all are agreed. That two highly experienced Counsel, fully aware of the discretionary legal principles to be applied with notational “add backs” (particularly for legal expenses – see for example Chorn & Hopkins (2004) FLC 93-204) concede the treatment of these additions to the pool, I again see no reason to disturb the agreement.
On that basis, the items in the pool are agreed, as are their values, at the date of the trial (noting the parties adopt a valuation by an expert Mr HH of the husband’s superannuation) at a date of 31 May 2021. During the period the judgment was reserved, neither party had made an application to reopen to seek to adduce evidence of any variation in the value of the husband’s interest in Superannuation Fund 3, and therefore the value at 31 May 2021 must be adopted. I return to this issue below.
I find it is appropriate that a two pool approach be adopted consistent with the preferred position articulated by the Full Court in Coghlan & Coghlan (2005) FLC 93-220. In the absence of any opportunity to clarify this position by oral submissions (which I usually find helpful), the way Annexure A to the husband’s submissions is set out, a “differential” splitting of the interests (to achieve the desired outcome each party seeks), is set out. Where Ms McArdle adopts Annexure A in her submissions, I infer she also agrees with a two pool approach. In any event, as I have expressed, I propose to adopt such an approach, and consistent with authority, the respective contribution based entitlements shall be so assessed. On this basis, with the concessions made by Counsel, I find the pools of interests to be as follows:

POOL ONE

Ownership Description Value

ASSETS

Joint Balance of sale proceeds of the house $282,916

Wife Motor Vehicle 1 $44,992

Wife Recreational vehicle 1 $46,182

Husband Chattels and furniture $1,000

Wife Chattels and furniture $5,000

Husband Guns $1,500

$381,590

ADD BACKS

Wife Wife’s legal fees – payment to RDL 13 September 2021 $50,000

Wife Wife’s legal fees – payment to JJ Finance 13 September 2021 $51,325

Husband Husband’s legal fees – 9 November 2021 $40,000

Wife Wife’s legal fees – payment to JJ Finance 9 November 2021 $51,134

Wife Partial property settlement – 9 November 2021 $20,000

Wife Wife’s legal fees – payment to RDL 10 November 2021 $73,865

Husband Sale proceeds of Motor Vehicle 1 $28,000

Husband Sale proceeds of Recreational Vehicle 2 $17,500

$331,824

$713,414

LIABILITIES

HELP debt $28,408

Motor Vehicle Finance $29,183

GG Company $52,320

$109,911

TOTAL NETT POOL ONE INTERESTS $603,503

POOL TWO

SUPERANNUATION

Wife Superannuation Fund 1 as at 30 June 2021 $58,259

Husband Superannuation Fund 3 as at 31 May 2021 $861,443

TOTAL POOL TWO INTERESTS $919,702

TOTAL COMBINED POOL $1,523,205

contributions

At the time of cohabitation in 2009 when the parties were around 35 years of age, to their credit both had a home and other personal property.
The wife (at paragraph 220) estimated her nett assets at $707,500. I accept her evidence that “many of my assets I had at the start of the relationship were funded by a personal injuries payout”. In that regard, the wife was seriously injured in a car accident in 1998 and received over $900,000 (nett) in 2003. Although the wife was not the subject of cross-examination about her “lay” opinion as to the estimated value of her Motor Vehicle 2 and household furniture (estimated at $5,000), her estimate of the value of her home at LL Street, Suburb MM of $554,500 is fairly based on the sale price achieved in early 2010. The wife says, and I accept, she had a modest superannuation entitlement with Superannuation Fund 2 of approximately $23,073.
The husband (at paragraph 19 of his trial affidavit) set out his assets and liabilities at the time of cohabitation. He was not the subject of cross-examination on his “lay” opinion as to the value of his chattels and motor vehicle, but his major asset was a property in City J which he said had a value of $260,000 and a mortgage of $115,000. The husband says in mid-2009 he sold the City J property and received “about $130,000”. The parties agree that after their respective properties were sold, they paid out the wife’s motor vehicle loan; purchased a new Motor Vehicle 3 and then purchased the NN Street property for around $630,000 with a modest mortgage around $100,000 to $140,000. The husband’s evidence (at paragraph 36) about purchasing the property at Suburb MM for $630,000 conflicts with the wife’s evidence (at paragraph 221) about selling her Suburb MM property and purchasing a property at NN Street. The wife’s evidence seems more plausible, however little turns on the order of sale of properties in the end, when I accept they moved funds from the sale of a property to the purchase of a different property.
The final family home at P Street, Suburb Q was purchased (with proceeds of sale of the other home) for $850,000 in mid-2017. The sale of that home allowed nett funds to be held, post separation, and the agreed “add backs” comprise some access to funds. The balance still held in trust at the time of the final hearing was agreed to be $282,916. It is worth observing that the “add backs” are more than the actual nett non-superannuation interests.
Leaving aside the issue of the husband’s superannuation, I find that the wife’s initial contributions were approximately double in value to the husband’s initial contributions. Notwithstanding the myriad of other financial and non-financial contributions discussed below, I regard this differential in a relationship to the time of the hearing in 2021 of 12 years as a factor of some weight favouring the wife.
The husband (at paragraph 19(f) of his affidavit filed 8 September 2020) estimated his superannuation at the time of cohabitation at “approximately $450,000”. This seems to be after the expert evidence of Mr HH had been received as contained in his report dated 13 June 2019. That report revealed that the husband joined Superannuation Fund 3 in 1993 – 16 years before cohabitation – and the valuation figure opined retrospectively was $217,496. I can only assume no concerns as to methodology are raised, as the same process was used by Mr HH to arrive at a valuation of the husband’s interest at 31 May 2021 of $823,607, which both parties accept.
Accordingly, I accept at cohabitation the husband’s superannuation benefit was $217,496 not $450,000 and not $341,966 (being an estimated escalated value in 2021 (absent of any contributions). I return to that argument shortly.
The history of employment of the husband; extra training by the wife post cohabitation (supported by the husband) and respective non-financial contributions as a homemaker and parent, are not really controversial. To the date of separation, I would assess (save for the initial contributions to both pools) contributions as equal. I do not ignore the unchallenged evidence of the wife, corroborated by her mother Ms OO (paragraph 27) that gifts were provided to the wife between late 2009 and late 2017 of $28,000 (although $5,000 of that sum was a “wedding payment”), but still find the contributions roughly equal.
In the post separation period, as we know, despite the husband’s earnest endeavours, he has spent no time with the children but has continued to pay child support as assessed, which I accept has varied but has been around $352 per week. The husband says in his Financial Statement that he now pays $394 per week. The husband has, post separation, made contributions to his Superannuation Fund 3 interest, which no doubt has been a factor in the healthy member benefit now. Mr HH’s estimation of what the husband’s interest in Superannuation Fund 3 (from a base of $217,496 at cohabitation and after 16 years of Defence Force service) would be at 2021 if untouched was $341,966.
I take this evidence into account when considering the contribution based assessment of the parties to the pool two interests.
Considering the myriad of contributions identified in these Reasons, for the period from cohabitation in 2009 to trial as required by authority in a holistic way (see Jabour & Jabour [2019] FamCAFC 78), I estimate contribution based entitlements to be:
(a)in respect of pool one (non-superannuation interests) – the wife $70%; the husband 30% - a differential of 40% on the nett pool of $603,503, being approximately $240,000; and
(b)in respect of pool two (superannuation interests) – the wife 35%; the husband 65% - a differential of 30% on the pool two interests of $919,702, being $275,910.
Section 75(2) considerations
I have considered the husband’s submissions at paragraphs 11.1 to 11.7 and his evidence, and the mother’s submissions at paragraphs 134 to 139 and her evidence, and find that:
(a)the parties are of a similar age and, subject to the mental health issues which have been referred to in these Reasons, they both enjoy such good health there is unlikely to be an impact on their working life;
(b)the husband has now, and in the future will continue to enjoy a greater income from his employment in the Defence Force then will the wife, however she uses her skills and qualifications to generate income. In that regard, I find both parties supported and contributed to the other party’s qualifications and employment situation, during the relationship;
(c)sadly, the non-superannuation interests are now modest – with it seems significant available funds being expended in this litigation. This means that the share they receive from available nett proceeds of the house sale is all either of them will really have to move forward;
(d)because I do intend to make a splitting order in respect of the husband’s interest in Superannuation Fund 3, and considering the parties’ ages, those benefits will not be accessible to them for some years – but at least from this time, post splitting orders being put into effect, they can both build on their balances. I accept the husband, with a more significant balance and greater income, is likely to achieve a higher balance when he decides to retire than can the wife; and
(e)the outcome of the parenting orders means that the mother will bear the responsibility for the care of X and Y until they reach 18 years of age. I am satisfied the husband will pay child support as assessed – as he has done consistently since separation. This reduces his after tax income, but appropriately so;
(f)Mr Fellows submits at paragraph 11.7 that:
If the findings of the Court are that, by virtue of the mother’s behaviour “nothing can be done” concerning the children the husband argues that, in terms of s. 75(2)(o) “justice” requires that he not be visited with a significant s. 75(2) adjustment…
Whilst I understand the intent of the submission, as I have found, the future care is not the only issue (and in fact not the major contribution) when assessing any adjustment to the contribution based entitlements. The husband takes from the marriage superior capacity to earn income and contribute to his superannuation, all of which compels a further adjustment to the wife.
In respect of the modest nett pool one interests, I would adjust the parties’ entitlements by a further 15% to the wife – effectively a notional payment to the wife by the husband of approximately $90,000.
I see no basis to adjust the parties’ contribution based entitlements to the pool two superannuation interests.
What orders achieve justice and equity?
It is, of course, the effect of orders not mere percentages which need to be considered to be satisfied that justice and equity has been achieved.
On the two pools identified, if the parties were to receive 55% (the wife) and 65% (the husband) of the pool two interests, a spitting order of $263,636 is required, calculated as follows:

35% of $919,702 = $321,895

Less the wife’s superannuation $58,259

Splitting order $263,636

which would leave the husband with a balance of $597,807 in his Superannuation Fund 3 membership.

If the wife is to receive 85% of the nett pool one interests of $603,503, this computes to an entitlement of $502,978 approximately, made up as follows:

Motor Vehicle 1 $44,992

Recreational Vehicle 1 $46,182

Chattels $5,000

Add backs $246,324

$342,498

Less debts $109,911

$232,587

Plus share of monies in trust $270,391

$502,978

The husband’s 15% share of the nett pool one interests of $603,503 computes to $90,525 approximately made up as follows:

Chattels $1,000

Weapons etcetera $1,500

Add backs $85,500

$88,000

Plus share of monies in trust $2,525

$90,525

As indicated, I cannot make orders until evidence of procedural fairness has been offered to the husband’s superannuation Trustee.
I would like to make orders, consistent with these Reasons, on property division before 22 December 2022 if possible. I direct the wife’s solicitors to prepare an order consistent with these Reasons, which as to form should not be controversial, and when procedural fairness can be proved, I will make orders in chambers.
Any applications for costs, if pressed, can be dealt with as the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) permit.

I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.
Associate:
Dated: 2 December 2022
APPENDIX ONE
Children
1.That all previous orders concerning the children, X born 2010 and Y born 2011, be discharged.
2.That the mother have sole parental responsibility for the children provided she advises the father in writing within 7 days of any decision made in the exercise of her sole parental responsibility.

3.The children shall live with the mother.
4.The children shall spend time and communicate with the father in accordance with their wishes.
5.The mother shall ensure at all times that:
(a)she has an internet service and that each child has the email address for the father whereby the children can communicate directly with their father;
(b)The father's current mobile telephone number and email address are displayed in the children’s bedrooms, so the children are aware of the father's contact details, to enable them to contact him at any time they wish to do so;
(c)There is a photo of the father and their brother in each child’s bedroom

6.The father is at liberty to send the children cards, gifts, photos and other written communications from time to time and the mother is to ensure that the children receive such communications.
7.The mother shall notify the father in writing of all medical appointments of the children and advise of the reason for the appointment and the contact details of the health professional, within 7 days of any appointment.
8.The mother shall do all necessary things to authorise and direct any psychologist, psychiatrist, counsellor, specialist, therapist or other medical or health practitioner who has consulted with the children to provide the father any and all information (including the children’s present condition or prognosis) relating to the children; and in the absence of such authority these orders are sufficient authority for the relevant professional to provide any and all information in relation to the children to the father.
9.The mother shall do all acts and things necessary to ensure the father is provided with a copy of any reports by any such psychologist, psychiatrist, counsellor, specialist, therapist or other medical or health practitioner within 7 days of receiving such report.
10.The mother shall do all acts and things necessary to give all revocable authorities necessary to ensure that whichever school the children may attend, the school can forward directly to the father copies of all the children’s school reports, merit cards, school photograph order forms and any written material pertaining to the children’s academic and extracurricular activities.
11.Each parent shall advise the other parent and keep the other parent advised of their current residential address, email address and that of the children, and contact telephone number (including both landline and mobile phone number (if applicable)) and shall advise the other parent of any changes to these details within 48 hours of any such change occurring.
12.The mother and father are restrained from discussing these court proceedings and allegations raised in these proceedings in the presence of or hearing of the children.
13.The parents are to remove the children from the hearing and vicinity of any person who is discussing these court proceeding and/or the allegations raised in these proceedings.
14.The parents will not denigrate each other or members of the other parent's family to the children or within the children’s hearing.
15.That a family consultant explain these orders to the children advising them that:
(a)Their father loves them and wants to spend time with them but accepts their wishes that at this point in time they do not want such contact;
(b)If at any time in the future either child decides they wish to communicate or have contact with their father that he is happy for this lo occur, as is their mother, and that the mother will provide them with an email address and phone number so that they can contact their father directly.

16.The mother is to present the children to the City B Registry of the court on a date agreed to enable order 15 to be fulfilled.
17.The Independent Children’s Lawyer be discharged.
18.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.

Property
19.That upon sale of the former matrimonial residence as per the orders of 23 June 2021, the wife retain the balance of the net sale proceeds.
20.Superannuation - In accordance with section 90XT(J)(a) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of Mr Fisher from his interest in Superannuation Fund 3, Ms Fisher is entitled to be paid (by the Trustee of Superannuation Fund 3) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $345,00, and there is a corresponding reduction in the entitlement Mr Fisher would have had but for these Orders.
21.The operative time for order 7 is four business days after the service of these Orders on the Trustee. NOTATION: The parties note that this Order, and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004, the Family Law (Superannuation) Regulations 2001 and the Superannuation Fund 3 Trust Deed which together may provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.
22.That unless otherwise specified in these Orders, and except for the purpose of enforcing the payment of any monies due under these or any subsequent Orders:
(a)Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date;
(b)Monies standing to the credit of the parties in any bank account is to become the property of the person so named;
(c)Each party hereby foregoes any claim they may have to any superannuation benefits or insurance policies belonging to or earned by the other;
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

23.Should either party refuse or not sign (within 14 days of a written request to do so) any documents necessary to give effect to the terms of these orders, a Registrar of the Family Court of Australia is hereby appointed pursuant to Section 106A of the Family Law Act to execute such documents on behalf of such party.
24.That the husband pay the wife's costs of and incidental to the final hearing of this matter.

APPENDIX TWO
1.That all previous orders concerning the children, X born 2010 and Y born 2011, be discharged.
2.That the father have sole parental responsibility for the children provided he advises the mother in writing within 7 days of any decision made in the exercise of his sole parental responsibility.
3.The children shall live with the father.
4.The children shall spend no time and have no communication with the mother for a period of 6 months from the date of these orders. In this regard the mother is restrained from contacting or attempting to contact the children directly or indirectly and from attending at their school/s or residence other than as provided for in order 5.
5.The mother is at liberty to send the children cards, gifts, photos and other written communications from time to time and the father is to ensure that the communications are appropriate before passing same onto the children.
6.A copy of these orders and the reports of Mr U and Dr E are to be provided to:
(a)the mother’s therapist, Mr C, or any other therapist of the mother;
(b)the children’s therapist/s, and
(c)the father’s therapist and psychiatrist (Dr L).

7.This Order is an authority for the therapists referred to at Order 6(a) to (c) to communicate with each other from time to time as to the progress of the children and the parents in their respective therapies.
8.After the 6 months referred to in order 4 has passed the mother spend supervised time with the children as follows:
(a)Time shall be supervised by a professional supervisor agreed to by the parents once a week depending on the supervisor's availability;
(b)Time shall occur at locations at the discretion of the supervisor after consultation with the parents,
(c)The parents shall share the costs of the supervisor.
(d)The supervisor is to be provided with a copy of these orders and is authorised to liaise with the childrens' therapist/s, the mother's therapist and the father's therapist from time to time.
(e)Both parents are to follow all reasonable directions by the supervisor including any request for intake(s) to occur before supervised time takes place.

9.After the 6 months referred to in order 4 has passed:
(a)the mother be at liberty to email the children by sending any proposed email to the father and the father is at liberty to provide same to the children if he thinks it appropriate.
(b)That should the children wish to email the mother, the father shall facilitate such communication.
(c)the mother be at liberty to have face time communications with the children each Friday evening between 6-6.30pm with the mother to initiate the call. The father is at liberty to monitor the calls to ensure same are appropriate and child focussed.
(d)That should the children wish to phone/facetime the mother, the father shall facilitate such communication.

10.The father shall notify the mother in writing of all medical appointments of the children and advise of the reason for the appointment and the contact details of the health professional, within 7 days of any appointment.
11.The father shall do all necessary things to authorise and direct any psychologist, psychiatrist, counsellor, specialist, therapist or other medical or health practitioner who has consulted with the children to provide the mother any and all information (including the children's present condition or prognosis) relating to the children; and in the absence of such authority these orders are sufficient authority for the relevant professional to provide any and all information in relation to the children to the mother, at the expense of the mother.
12.The father shall do all acts and things necessary to ensure the mother is provided with a copy of any reports by any such psychologist, psychiatrist, counsellor, specialist, therapist or other medical or health practitioner which relate to either of the children within 7 days of receiving such report.
13.The father shall do all acts and things necessary to give all irrevocable authorities necessary to ensure that whichever school the children may attend, the school can forward directly to the mother copies of all the children's school reports, merit cards, school photograph order forms and any written material pertaining to the children’s academic and extracurricular activities.
14.The father is permitted to provide a copy of these orders to the children's school/s and any treating medical professional of the children.
15.Each parent shall advise the other parent and keep the other parent advised of their current residential address, email address and that of the children, and contact telephone number (including both landline and mobile phone number (if applicable)) and shall advise the other parent of any changes to these details within 48 hours of any such change occurring.
16.The mother and father are restrained from discussing these court proceedings and allegations raised in these proceedings in the presence or hearing of the children.
17.The parents are to remove the children from the hearing and vicinity of any person who is discussing these court proceeding and/or the allegations raised in these proceedings.
18.The parents will not denigrate each other or members of the other parent’s family to the children or within the children’s hearing.
19.That a family consultant explain these orders to the children.
20.The mother is to forthwith present the children to the City B Registry of the court to enable order 19 to be fulfilled.
21.The Independent Children’s Lawyer be discharged within 30 days of these orders.
22.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.

File number(s):	CSC 191 of 2019
Judgment of:	BAUMANN J
Date of judgment:	2 December 2022
Catchwords:	FAMILY LAW – PARENTING – Where the mother contends for a final order for sole parental responsibility and for the children to live with her and communicate with the father in accordance with the children’s wishes – Where the father and the Independent Children’s Lawyer contend for a change of residence to the father’s care and a moratorium of time with the mother – Order made for the children to live with the mother FAMILY LAW – PROPERTY – Two pool approached – Assessment of contributions – final property division orders to be made that achieve justice and equity for both parties
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 69ZX(3)(b), 79, 75.
Cases cited:	Chorn & Hopkins (2004) FLC 93-204 Coghlan & Coghlan (2005) FLC 93-220 Duarte & Morse [2022] FedCFamC1A 66 Hall & Hall (1979) FLC 90-713 Hickey & Hickey (2003) FLC 93-143 Jabour & Jabour [2019] FamCAFC 78 Stanford & Stanford [2012] HCA 52
Division:	Division 1 First Instance
Number of paragraphs:	141
Date of last submission/s:	17 January 2022
Date of hearing:	25–29 October 2021 and 2 December 2021
Place heard:	City B (25–29 October 2021); City J (2 December 2021)
Place delivered:	Brisbane
Counsel for the Applicant:	Ms McArdle
Solicitor for the Applicant:	Reaston Drummond Law
Counsel for the Respondent:	Mr Fellows
Solicitor for the Respondent:	Cameron Law
Counsel for the Independent Children’s Lawyer:	Mr Jacobs
Solicitor for the Independent Children’s Lawyer:	Lehmann Featherstone

CSC 191 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS FISHER Applicant
AND:	MR FISHER Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	BAUMANN J
DATE OF ORDER:	2 DECEMBER 2022

POOL ONE
Ownership		Description	Value
ASSETS
Joint	Balance of sale proceeds of the house		$282,916
Wife	Motor Vehicle 1		$44,992
Wife	Recreational vehicle 1		$46,182
Husband	Chattels and furniture		$1,000
Wife	Chattels and furniture		$5,000
Husband	Guns		$1,500
$381,590
ADD BACKS
Wife	Wife’s legal fees – payment to RDL 13 September 2021		$50,000
Wife	Wife’s legal fees – payment to JJ Finance 13 September 2021		$51,325
Husband	Husband’s legal fees – 9 November 2021		$40,000
Wife	Wife’s legal fees – payment to JJ Finance 9 November 2021		$51,134
Wife	Partial property settlement – 9 November 2021		$20,000
Wife	Wife’s legal fees – payment to RDL 10 November 2021		$73,865
Husband	Sale proceeds of Motor Vehicle 1		$28,000
Husband	Sale proceeds of Recreational Vehicle 2		$17,500
$331,824
$713,414
LIABILITIES
HELP debt		$28,408
Motor Vehicle Finance		$29,183
GG Company		$52,320
$109,911
TOTAL NETT POOL ONE INTERESTS		$603,503
POOL TWO
SUPERANNUATION
Wife	Superannuation Fund 1 as at 30 June 2021		$58,259
Husband	Superannuation Fund 3 as at 31 May 2021		$861,443
TOTAL POOL TWO INTERESTS		$919,702
TOTAL COMBINED POOL			$1,523,205

35% of $919,702	=	$321,895
Less the wife’s superannuation		$58,259
Splitting order		$263,636

Chattels	$1,000
Weapons etcetera	$1,500
Add backs	$85,500
$88,000
Plus share of monies in trust	$2,525
$90,525