Fletcher & Parkins - [2022] FedCFamC1F 804

Federal Circuit and Family Court of Australia
(DIVISION 1)
Fletcher & Parkins [2022] FedCFamC1F 804

File number(s): BRC 1728 of 2018

Judgment of: BAUMANN J

Date of judgment: 28 October 2022

Catchwords:
FAMILY LAW – PROPERTY – Disputed pool- what orders achieve justice and equity

FAMILY LAW – PARENTING – Father seeks equal time and mother seeks to reduce time between the children and the father – Parental responsibility – Father’s mental health challenges – Children to spend substantial and significant time – Order made for equal shared parental responsibility

Legislation: Family Law Act 1975 (Cth) s 60B, 60CC, 61DA, 65DAA, 75, 79

Cases cited:
C & C (2005) FLC 93-220

Duarte & Morse [2022] FedCFamC1A 66

Fletcher & Parkins [2020] FCCA 96

Goode & Goode (2006) FLC 93-286

Hickey & Hickey (2003) FLC 93-143

Jabour & Jabour [2019] FamCAFC 78

Kennon & Kennon (1997) FLC 92-757

Kowaliw & Kowaliw (1981) FLC 91-092

Mayhew & Fairweather (2022) 64 Fam LR 633

Preston & Preston [2022] FedCFamC1A 157

Rosati & Rosati (1998) FLC 92-804

Stanford & Stanford (2012) 247 CLR 108

Surridge & Surridge (2017) FLC 93-757

Townsend & Townsend (1994) 18 Fam LR 505

Vallans & Vallans (2019) 60 Fam LR 193

Welch & Abney (2016) FLC 93-756

White & Tulloch v White (1995) FLC 92-640

Division: Division 1 First Instance

Number of paragraphs: 127

Date of last submission/s: 21 December 2021

Date of hearing: 6-8 May 2020

Place: Brisbane

Counsel for the Applicant: Mr Jordan

Solicitor for the Applicant: Rostron Carlyle Rojas Lawyers

Counsel for the Respondent: Mr Drysdale (as he then was)

Solicitor for the Respondent: Hopgood Ganim Lawyers
ORDERS

BRC 1728 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR FLETCHER

Applicant

AND:
MS PARKINS

Respondent

order made by:

BAUMANN J

DATE OF ORDER:

28 OCTOBER 2022

THE COURT ORDERS:
1.That all previous parenting Orders be discharged save for the Orders for term time the children spend with the father which shall continue until the end of the 2022 final school term.

Parental responsibility
2.That the parents have equal shared parental responsibility for the children X born 2006 (“X”) and Y born 2010 (“Y”) (collectively “the children”).
3.That notwithstanding Order 2 herein, the mother and father shall each be responsible for the day-to-day care, welfare and development of the children while the children are in their respective, individual care.

Live with arrangement
4.That the children live with the mother when they are not living with the father.
5.That unless otherwise agreed in writing between the parents, commencing at the start of the children’s 2023 school year and during school terms, the children shall spend time with the father as follows:
(a)For X:
(i)from Thursday after school (or 3.00pm if a non-school day) to Monday before school (or 9.00am if a non-school day) in the first week and each alternate week thereafter; and
(ii)from Thursday after school (or 3.00pm if a non-school day) to Friday before school (or 9.00am if a non-school day) in the second week and each alternate week thereafter.

(b)For Y:
(i)from Thursday after school (or 3.00pm if a non-school day) to Tuesday before school (or 9.00am if a non-school day) in the first week and each alternate week thereafter; and
(ii)from Thursday after school (or 3.00pm if a non-school day) to Friday before school (or 9.00am if a non-school day) in the second week and each alternate week thereafter.

School holidays and special days
6.That during school holiday periods, the children’s usual time with each parent pursuant to Order 5 herein be suspended and the children live with each parent, unless otherwise agreed in writing, for one half of each school holiday period with dates to be as agreed between the parents and failing agreement:
(a)in odd numbered years, with the father for the first half of the school holiday period and with the mother for the second half of the school holiday period; and
(b)in even numbered years, with the mother for the first half of the school holiday period and with the father for the second half of the school holiday period.

7.That for the purposes of Order 6:
(a)“school holidays” means the actual school holidays for the school attended by Y at that time and includes “pupil free” and public holidays, even if those school holidays differ from the school attended by X;
(b)a school holiday period is deemed to commence at the conclusion of the last day of school term and conclude at the commencement of school on the first day of school term (or the immediately following day where the first day of that term is a pupil free day or public holiday);
(c)any provision for time in this Order that is inconsistent with school holiday time (save for arrangements contemplated in Order 8 herein) be suspended during Queensland gazetted school holiday periods and will commence again at the commencement of school on the first day of school term (or the immediately following day where the first day of that term is a pupil free day or public holiday);
(d)changeover is to occur as agreed between the parents and failing agreement at 9.00am on the day that is the last day of the first half of any holiday period; and
(e)the number of nights shall be used to calculate any period that the children are to spend time with each parent during any school holiday period and where the aggregate number of nights comprising any school term holiday period is an uneven number, during odd numbered years, the children will spend one (1) more night of that school holiday period with the father than the children spends with the mother in those years, and during even numbered years the children will spend one (1) more night of that school holiday period with the mother than the children spends with the father in those years.

8.That notwithstanding any of the provisions contained in Orders 5 and 6 herein, unless otherwise agreed in writing, the children shall spend time with the parents as follows:
(a)With the father from 5.00pm on the day immediately preceding Father’s Day until 5.00pm on Father’s Day;
(b)With the mother from 5.00pm on the day immediately preceding Mother’s Day until 5.00pm on Mother’s Day;
(c)On a child’s birthday, with the parent with whom the children are not otherwise living, for a period of not less than three (3) hours and in default of agreement, from after school until 6.00pm on a school day and from 9.00am until 2.00pm on a public holiday, non-school day or pupil free day;
(d)With the father from 9.00am Good Friday to 6.00pm Easter Monday in odd numbered years, and with the mother from 9.00am Good Friday to 6.00pm Easter Monday in even numbered years;
(e)For Christmas Day:
(i)in even numbered years, from 12.00pm Christmas Eve to 12.00pm Christmas Day with the mother, and from 12.00pm Christmas Day to 12.00pm on Boxing Day with the father; and
(ii)in odd numbered years, from 12.00pm Christmas Eve to 12.00pm Christmas Day with the father, and from 12.00pm Christmas Day to 12.00pm on Boxing Day with the mother.

(f)For Easter:
(i)in even numbered years: from 9.00am on Good Friday to 6.00pm on Easter Monday with the Mother;
(ii)in odd numbered years: from 9.00am on Good Friday to 6.00pm on Easter Monday with the Father;

9.That in the event the special occasion time Orders are inconsistent with the Orders regarding the children’s regular or school holiday time with the father, the special occasion time Orders are to take priority.

Changeovers
10.That except as otherwise provided herein or agreed in writing, the parents shall collect the children from and return the children to school during times they have the children, and if the children are not attending school:
(a)the children shall be collected by the father from the mother at the commencement of time with the father from the mother’s residence; and
(b)the children shall be collected by the mother from the father at the conclusion of time with the father from the father’s residence.

Telephone and/or electronic communication
11.That the parents be at liberty to communicate with the children, when the children are not in their care, via telephone or videoconferencing between 6.00pm and 8.00pm (in the children’s location) or at any other reasonable hour as agreed.
12.That the parent with whom the children are then living or spending time with shall facilitate calls and shall afford each child privacy when that child or the children are speaking with the other parent.

Parental communication
13.That the parents correspond via text message or email to discuss care arrangements for the children except in cases of emergency.
14.That the parents keep each other informed of their respective current residential address, mobile telephone number and email address on which they can be contacted in relation to the children, and advise each other of any changes to those details within twenty four (24) hours of any change occurring.

Other
15.That each parent have liberty to attend all school and extracurricular and sporting activities involving either X and/or Y or both of the children no matter who has the care of the children at the time.
16.That these Orders are sufficient authority for any school attended by a child from time to time to release to the parties information in relation to the child’s educational progress and other school related activities and to supply each parent with copies of school reports, photographs, certificates and awards as and when requested and at the expense of the parent making the request.
17.That the mother retain possession of the children’s passports, other than in the event the father travels internationally with the children, in which case:
(a)the mother do all things necessary to deliver the children’s passports to the father at least twenty four (24) hours prior to the date of departure from the Commonwealth of Australia; and
(b)the father do all things necessary to return the children’s passports to the mother within twenty four (24) hours of the date of returning to the Commonwealth of Australia.

18.That in the event X and/or Y suffer any significant injury or illness, the parent who has the care of X and/or Y shall inform the other parent without delay of the nature of the injury or illness and the name and address of any health professional on whom X and/or Y has been referred.
19.That the parents advise each other of any medical/allied health treatment appointments to be provided to either of the children and provide the contact details of the relevant treating health professional/s or service provider/ practitioner to the other parent.
20.That the parents continue to do all things and sign all documents necessary to ensure each of the children continue to receive psychological treatment as recommended by their treating psychologist from time to time and for such period as that treating psychologist may recommend.
21.That the parents be at liberty to attend and be present with X or Y in the event X or Y are hospitalised, no matter who has the care of the children at the time.
22.That the parents ensure that whilst the children are in their care they administer medication to the children as recommended by their medical practitioner or specialists and for this purpose, in the event either of the children are required to take medication, the parents ensure that the medication travel with the relevant child at changeover.
23.That pursuant to s 68B of the Family Law Act 1975 (Cth), the parents be restrained and an injunction hereby issues restraining them from:
(a)consuming alcohol at any time they have the care of one or both of the children to the extent that they have a blood alcohol concentration (BAC) greater than 0.05; and
(b)consuming illicit substances at any time.

24.That without admission as to necessity, the parents are to refrain from:
(a)denigrating or causing the denigration of the other parent to or in the presence of the children or raising any matter which may reasonably cause, or be likely to cause, the children to think less of the other party, or a member of the other party’s family;
(b)involving the children in any discussion of these proceedings, including but not limited to the allegations made by either parent, or any aspect of it including the orders sought by either parent; and
(c)having any discussion concerning these proceedings, including any of the allegations made by either parent, or any aspect of it including the orders sought by either parent in the presence of either or both of the children and shall take all reasonable steps to prevent or remove the children from any such discussion if instituted by any third party.

Father’s continuing mental health treatment
25.That the father continue to attend regular appointments with his treating specialists who are assisting him to manage the symptoms related to his several mental health and dependency issues and complying with the treatment recommended by those treating specialists.
26.That the father written provide authority to this treating specialists, namely Dr B, Dr C and Ms D (and any other treating psychologists, psychiatrists or mental health professionals whom the father consults in substitution for these treating specialists) as may be required by his treating health professional to provide a report to the mother on at least a six monthly basis, about:
(a)the number of consultations the father has had with them since the last report;
(b)whether, in their opinion, the father is complying with their recommendations; and
(c)if they have a concern that the treatment being offered and accepted by the father is not providing the necessary support to the father to allow him to function without risk to himself.

27.That the father shall inform the mother in writing within seven (7) days of ceasing the therapeutic relationship with any of the said treating health professionals and if he has elected to change (for whatever reason) his treating health professionals, he shall provide the mother with details of the name, practice address and telephone number for that new practitioner.

Overseas travel
28.That during any period the children are in their care, the parents be permitted to take either child or the children on holiday overseas, and for this purpose:
(a)the travelling parent provide to the non-travelling parent the following, not less than twenty eight (28) days prior to the proposed travel:
(i)copies of flight tickets;
(ii)a proposed itinerary, including but not limited to details of transport, locations to be travelled to/from and dates of travel; and
(iii)details of accommodation and contact details for where the children will be staying including an address, telephone number and email address for each place of accommodation;

(“the travel information”)
(b)the travelling parent advise the non-travelling parent of any changes to travel information as defined immediately upon becoming aware of any changes;
(c)the children shall not travel to any country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, unless otherwise agreed in writing or unless the travel is in accordance with a school program;
(d)the children shall not travel to any country for which the Australian Government has issued a “do not travel” or “exercise a high degree of caution” warning during the proposed period of travel;
(e)the travelling parent shall initiate and facilitate communication between the non-travelling parent and the children via telephone or video conferencing every third day from the first date of travel; and
(f)the non-travelling parent is at liberty to communicate with the children via telephone or video conferencing at any reasonable hour.

29.That the mother retain possession of the children’s passports, other than in the event that the father travels internationally with the children, in which case:
(a)the mother do all things necessary to deliver the children’s passports to the father at least twenty four (24) hours prior to the date of departure from the Commonwealth of Australia; and
(b)the father do all things necessary to return the children’s passports to the mother within twenty four (24) hours of the date of returning to the Commonwealth of Australia.

30.That the parents do all things and sign all documents necessary to obtain and keep current Australian passports for the children, with the parties to equally share the costs associated with any application for and renewal of the children’s Australian passports.

Property proceedings
31.That the property proceedings be listed for further submissions as to the form of final property order, at 10.30am on 17 November 2022 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane, by telephone.

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 Fletcher & Parkins has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:

These Reasons are in two parts. I firstly deal with the competing proposals for parenting orders and then the competing proposals for property adjustment orders.
parenting applications
The competing proposals between the parents (noting there had not been an Independent Children’s Lawyer appointed) at the close of evidence in May 2020 were articulated as follows:
(a)The Applicant father sought orders detailed in his case outlined filed 1 May 2020. They are reproduced and annexed to these Reasons as Appendix One; and
(b)The Respondent mother’s orders as proposed were tendered as Exhibit 13 and are reproduced and annexed to these Reasons as Appendix Two.
It is important to note that although the orders in dispute are important, the differences are narrow and essentially concern whether it is in the best interests of X and Y to:
(a)reduce the time they spend with their father, as the mother contends; or
(b)increase the time they spend with their father; and
(c)if increased, is it in the best interests of the children to spend equal time, as the father contends.
As the background which follows reveals, the major (but not only issue) that has required some assessment is the father’s mental health. I make findings about that issue discretely, however to the mother’s credit but indicative, I find, of her support of the children’s relationship with their father, no submission was made by the mother that the father presents as an unacceptable risk to the children when in his care, and no supervision of time is sought, or appropriate.

Financial stressors as the parental relationship deteriorated before separation (under the one roof initially) in May 2017 were a factor that has impacted on the children, most obviously around the capacity for the children to attend private schooling. Thankfully, by the time of final submissions, agreement on schooling had been reached, with X to continue to attend E School Suburb F and Y to attend (from the commencement of the 2021 school year) G School Suburb H.
Although the history since separation has no doubt contributed to tensions which both parents demonstrated, considering the compass of the disputes, the affidavit material – particularly from the mother – was more voluminous than became necessary. The father’s trial affidavit contained 155 paragraphs (relating to parenting issues and some annexures) – the mother’s trial affidavit contained 455 paragraphs (relating to parenting issues and some annexures). That cross-examination was competently contained is a tribute to the advocacy of Counsel for the father Mr Jordan and Mr Drysdale, for the mother, who restricted cross-examination to only relevant matters.
As a result, it is worth noting that a judge is not required, in any reasons, to deal with every issue raised in the material relied upon by the parties in a case. As the Full Court recently observed in Duarte & Morse [2022] FedCFamC1A 66 at [30]:
…A judge is not required to mention in the reasons for judgment every fact or argument relied on by the losing party as relevant to an issue (Fox v Percy (2003) 214 CLR 118 at 132…Only the rejection of a substantial argument need be explained. Reasons need only usually identify the relevant principles of law, refer to relevant evidence, state the judge’s findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the judge (DL v The Queen (2018) 266 CLR 1 at [32] and [130]–[131]).
In a case of this nature, this is even more important so as not to burden a party with a finding about an issue raised (or an incident) which might trouble parents who are otherwise working day-to-day in some form to manage the best interests of their children. If reasons for judgment only deal with truly forensic issues, then affidavits, trials and reasons for judgment would all be shorter and more focused.
Before moving firstly to the background and then a couple of discrete issues before I discuss the evidence and make findings within the matrix of the relevant primary and additional considerations prescribed by the Family Law Act 1975 (Cth), I am compelled to express my regret to the parties for the delay in the publication of these parenting orders and my reasons for finding they do meet the best interests of the children. I appreciate a delay has left the parents and the children in a state of uncertainty. Whilst the financial aspects of this case were always likely to delay judgment on those issues, oral submissions were made on the parenting dispute and the parties were entitled to expect a more timely judgment would be delivered.
I also record however that before the release of these Reasons, I contemplated whether, on the Court’s own initiation, the parties should be invited to consider if they wished to provide further evidence. They did, as the history reveals, seek to “reopen” the financial matters, which by consent was granted by Order made 16 September 2021, after which written submissions were filed and completed by 21 December 2021.
This is therefore no new evidence offered as to any failure to comply with the interim Orders current at the time of the trial, or of any major issues which have affected the children since May 2020. As both parents have had the benefit of legal representation, I infer they would have been advised of their right to seek leave to reopen and adduce further evidence. As a result, the Reasons can only be based on the evidence which concluded in May 2020.
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) 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.
In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s 61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s 65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.
Relevant background
To provide a context for this dispute, the following background is provided, mostly uncontroversial. Some of it is more relevant to the property dispute.
Statements of fact which follow in this Judgment should be construed as findings of fact.
The father is now 51 years of age and the mother is now 49 years of age. In 1990 the husband enlisted in the Defence Force and was ultimately discharged in late 2005, having ceased active employment months earlier.
The parties commenced cohabitation in City J in late 1996/early 1997 and were married in late 2002.
After cohabitation, the parties lived in Defence Force quarters; purchased a home at K Street, Suburb L (for $149,000); and the husband was at times deployed overseas serving in Country M and Country N. It is the husband’s service in these war zones which have been the catalyst for some significant mental health issues.
The wife, a professional, secured a position working in Country O, which she commenced in early 2004, with the husband joining her in City P, Country O shortly after. As the husband was on leave from the Defence Force (pending his discharge), he was able to undertake further tertiary studies.
The parents’ first child X was born in 2006, living firstly in Country O, before moving to City Q, Country R in mid-2007, when the wife secured another position in that country. Whilst working as an educator, the husband completed further studies, attaining in 2010 a tertiary degree (which complimented an earlier degree the father obtained in 2005).
In late 2007, whilst still living in Country R, the parties purchased the property at S Street, Suburb T for $720,000. The parties moved into the home in around early 2011 after returning to Brisbane in mid-2010 for the birth of Y, who was born in 2010, and after the birth of Y returning to Country R to prepare for the permanent return to Australia.
In late 2010, the wife commenced employment with U Pty Ltd, as a manager. Although not required for cross-examination, the mother’s employer through an affidavit from Mr V, provided details of the mother’s work duties and role within the company, until her redundancy in early 2019, receiving a net payment on termination of $257,235.
In early 2012, the husband commenced employment as a scientist – an occupation/employment that continued until early 2016 when the husband commenced receiving benefits from the Department of Veterans Affairs (“DVA”), as a result of claims he made for a service related incapacity pension. I accept the husband’s income significantly reduced at that time, even though the husband was approved to receive a pension in mid-2016 (backdated to when his claim had been accepted in mid-2016).
In early 2017, the parties sold the Suburb L property for a nett return of $597,336.
The parties agree they both accepted the marriage was finished by June 2017, however they lived separate but under one roof until the father moved out of the family home in mid-2018. His ability to move was assisted by a payment from available funds of $50,000 pursuant to an order of a Federal Circuit Court of Australia Judge on 23 July 2018.
Those Orders (arising after the father commenced proceedings in the Court on 19 February 2018) relevantly prescribed for the mother to have sole use and occupation of the Suburb T home; for the children to live with her and for the children to spend time with the father each alternate weekend from after school Friday to before school Monday, and on two occasions each week after school until 6.00pm. This interim Order appears to have been made by consent. I naturally have no reasons for the Orders, but the Court record suggests the Judge who made the Orders had before him the first family report of Psychologist Mr W (filed 17 July 2018) and a psychiatric assessment by Dr Z (of both parties) filed at or around the same time in 2018. Although Mr W (who prepared a second family report) was cross-examined before me, Dr Z was not and his report was not relied upon, and therefore not read by me.
In June 2018, the father filed an application for a protection order, and although the application was subsequently withdrawn only days later, the contents of the application were raised during the father’s cross-examination and were a subject of oral submissions.
The interim Orders of 23 July 2018 (amended 28 August 2018) provided for the time the children were to spend with the father to increase from 3 November 2018 to affectively five nights a fortnight in two blocks:
(a)alternate Friday after school to before school Tuesday; and
(b)alternate Monday overnight as well as each Wednesday until 6.00pm.
The Orders, in their terms, were highly prescriptive about at least:
(a)casual care of the children if a parent is not available (Order 5);
(b)the father remaining in South East Queensland and attending medical appointments for his mental health (Order 6);
(c)the parties’ care of their children around issues like homework and “screen time” (Order 7);
(d)counselling for the children (Orders 13, 14 and 15);
(e)completing parenting courses etc (Order 16);
(f)restraints under s 68B (Orders 17 and 18).
Relevantly, Orders 19 to 21 provided that:
19.These orders authorise the Father’s treating specialists, namely [Dr B], [Dr C] and [Ms D] (and any other treating psychologists, psychiatrists or mental health professionals whom with the Father consults from time to time) to contact and inform the Mother, if:
(a)they suspect that the Father is to suffer a relapse of his mental health conditions ([…]) to a degree that it would impact negatively on the children; or
(b)the Father is failing to comply with any of their recommendations from time to time.
20.For the purpose of compliance with the preceding order, the Mother’s solicitors forthwith cause a copy of these orders and a copy of the expert reports of [Dr Z] and [Mr W] to be served on [Dr B], [Dr C] and [Ms D] (and any other of the Father’s treating psychologists, psychiatrists or mental health professionals from time to time).
21.In the event that any of the Father’s treating specialists or mental health practitioners contact the Mother pursuant to the preceding orders, that the Father’s overnight time pursuant to these orders be suspended pending further Court order and the parties have liberty to relist the matter.
These Orders were the orders in force at the time of the hearing before me in May 2020.
Little point now is served to try and make some sense of how these proceedings between July 2018 and transfer to this Court on 19 December 2019 progressed. Certainly a number of interim applications were made; at least six Federal Circuit Court Judges had involvement with the case; a number of interim property Orders were made; a trial which finally began on 5 June 2019 was adjourned part-heard and then listed by a different Judge to hear which was then unable to proceed; applications for certificates under s 10 of the Federal Proceedings (Costs) Act 1981 were successful on 5 June 2019 after the first part trial and then again on 19 December 2019 when the next attempt at a trial failed. I can well appreciate the parties’ growing frustrations.
The Reasons of Judge Middleton delivered 21 January 2020 (see Fletcher & Parkins [2020] FCCA 96) explain the circumstances and give reasons for the Orders made on that day, including Order 2, which ordered the father to pay indemnity costs of $50,240, with the payment to be made “by way of deduction from any cash sum payable to the husband, if any, under the final orders for property settlement.”
I am satisfied that immediately upon the father becoming aware of the Orders of Judge Middleton on or about 21 January 2020, he had a severe mental health reaction which, on advice from his treating Psychiatrist Dr B required immediate admission to AA Hospital. The interim Orders meant time between the children and the father was suspended, however after his discharge some weeks later in 2020, time resumed, and by the time the trial commenced on 5 May 2020, the children had resumed spending time with the father under the interim Orders of July 2018.
The trial before me occurred in May 2020.
It is helpful to make some assessment and findings about the father’s mental health, not because the mother seeks to supervise his time with X and Y, but because it is a clear contention she maintains the father is at a risk of relapse and is otherwise in some circumstances vulnerable.
I will then assess the expert evidence of Mr W, the family report writer, who after his first report prepared early in the proceedings completed:
(a)an updated family report dated 14 May 2019 from interviews and data available by 10 May 2019; and
(b)and addendum dated 1 June 2019 following correspondence from the mother’s solicitors sent after the updated family report.
Father’s mental health challenges
The findings which follow are more succinct than might have been necessary if I was urged to make a finding that the father’s mental health challenges manifest in him exposing the children to an unacceptable risk of harm – which I was not.
The expert evidence that I have been offered included:
(a)the affidavit filed 24 April 2020, and cross-examination of the father’s treating psychiatrist Dr B. In her role (which commenced with an initial consultation in late 2015), she has provided treatment to the father. She was the health practitioner who the father contacted after he became aware of the costs Orders made 21 January 2020. She has provided reports for these proceedings and to the DVA, some of which are attached to her affidavit. See also letter of 3 May 2016 to VVCS (Exhibit 6). From these reports and cross-examination, I accept that:
(i)the father has a diagnosis of several mental health and dependency issues, with some in remission;
(ii)the father is medicated including antipsychotic medication; appears to be compliant with his medication and appointment regime, which includes ongoing therapy, designed to address his difficult and chronic symptoms;
(iii)he displays good insight into his illness and increasing ability to discuss emotional issues. He will require ongoing and long-term psychiatric input from a psychologist and continuing psychological therapy;
(iv)the father had, as at the time of the report dated 1 May 2019 “made significant improvements in terms of his mental health over the last four years”. Not surprisingly, after the father’s admission to AA Hospital, in early 2020, Dr B was invited to provide a further report. Her report dated early 2020 (and the notes of her consultation on that date) are before me (Exhibit 8). Dr B opined the father required hospitalisation as he “suffered an acute exacerbation of […] symptoms”, but engaged well with therapy during the admission, and on discharge was “euthymic and had learned new psychological strategies to manage his symptoms”;
(v)as a result of the mental health condition, mood and anxiety symptoms can mildly fluctuate and he continues to suffer from re-experiencing phenomena such as nightmares and “flashbacks”;
(vi)Dr B indicated she generally agreed with Dr BB's report dated early 2020 (pages 101 to 115 of the mother’s annexures - Exhibit 2), procured by solicitors retained by the father for a civil legal claim, which concluded that the father “is totally and permanently incapacitated from undertaking any form of remunerative employment and has been so since mid-2016.”
I accept the evidence of Dr B acknowledging (as she does) that as a treating psychiatrist she is not entirely independent. However, her longitudinal engagement with the father persuades me to accept her opinions where they may differ from those expressed by Dr BB – who conducted a cross-sectional/one off examination with less data available to him (and was not tested in cross-examination).
(b)the affidavit of Dr C attaching his report of late 2019. The report identifies that:
(i)in late 2016 the father was admitted to a specialist unit of the CC Hospital “for purposes of detoxification and to attend the 2 week inpatient program”;
(ii)subsequently, he has maintained ongoing regular follow-up and has described abstinence since at least early 2018, and his assertion has been supported by testing; and
(iii)the father is considered to be in prolonged remission with no evident present functional impact or symptoms, and given his extended period of abstinence and motivation not to continue abstinence “his risk of relapse to […]” is low.
Dr C has seen the father since the report of late 2019 (and I infer after the father’s hospital admission in early 2020), and he deposed that “there have been no significant changes in relation to substance abuse or Mr Fletcher’s frequency of follow up contact and he continues to have blood tests (liver count and CDT)”. Dr C was not required for cross-examination. I accept his evidence and opinion;
(c)the affidavit filed 23 April 2020 and cross-examination of the father‘s current treating Clinical Psychologist Ms D. In her role as the father‘s treating Psychologist since mid-2017, Ms D has provided specific psychological therapy. She was aware of his hospitalisation in early 2020 and that from his most recent consultation in early 2020, she formed the opinions that:
(i)he was coping well;
(ii)post discharge his normal sleep pattern (being 50% in bed/50% on sofa) had returned and the father told her his nightmares had reduced; and
(iii)although financial issues do not arise often in consultations, (the father having the benefit of an unlimited number of consultations funded by the DVA) the paramount issue for him is the parenting issue. She opined that it would have a negative impact on the father if reduction in his time with the children occurred;
(iv)he “turns up” for appointments. Ms D works “collaboratively” with Dr B. She expressed, and explained, her concerns about being obliged to report to the mother about the father’s treatment and functioning, as it could affect their therapeutic relationship.
I accept the evidence of Ms D.
conclusion

I would not make a finding that the father is an unacceptable risk to his children. The history of treatment and the symptoms support a conclusion, as the mother asserts, that since the early 2000’s, the father has demonstrated mood and emotional difficulties at times. Some of the father’s behaviour (arising from his diagnosis and not of itself a criticism of him) would have been witnessed by the children.
However his insight; history of compliance with both appointments and prescribed medication and abstinence, are all positives and reflect positively on the father’s endeavour to deal with “his demons”.
It is however fair to assess that, when compared to the mother, he is more vulnerable, and future events, like the delivery of these Reasons and the effect of the financial adjustment orders, could trigger a reaction. I cannot completely ignore that possibility – although his immediate actions in early 2020 and the effect of his therapeutic support which followed, is comforting.
Children of a parent who suffers mental illness, particularly as the children develop and mature, are able to bring an understanding to how a parent’s behaviour may vary. All the evidence suggests these children have a degree of empathic awareness of their father’s past difficult history, but love him no less for it.
Family report
Experienced Psychologist Mr W was engaged privately by the parties to provide some guidance to them about, in his view, suitable parenting arrangements. In doing so, of course, he engaged the children in interviews on two separate occasions:
(a)Firstly in mid-2018; and then
(b)Secondly in mid-2019.
Mr W was the subject of brief cross-examination at the hearing. It is proper to observe that Mr W confirmed he had not spoken to the children since mid-2019 (12 months before the trial I conducted) and had not viewed any further material in the case. The expert Mr W had been, therefore, unaware of the father’s hospitalisation in early 2020.
It is trite perhaps to remind the parents that the Court is not bound to adopt the recommendations and opinions of a child expert even one as experienced as Mr W. To the credit of the parents, it is clear that the interim Orders were broadly shaped by the first family report. My impression is that these intelligent parents are prepared to consider advice from other child experts or health professionals and do not lightly depart from advice.
Because of the narrowness of the dispute as to time to be spent with each parent, it is not necessary to incorporate in these Reasons large “slabs“ of the evaluation by Mr W, about which he was not challenged, and which is entirely consistent with the history from the evidence.
Mr W’s capture (albeit 12 months ago) of the children’s thoughts and wishes, and his cross-examination are, in this case, of particular relevance and, in those respects, I record the following matters:
(a)The first interviews took place before the interim Orders had taken place, whilst the second interviews occurred some 10 months after the Orders, and therefore can be seen to be shaped by the children’s experiences of those Orders;
(b)Whilst he said he would be guided by the expert reports about the father’s mental health (if excepted by the Court) he opined that on his observations he “couldn’t really discriminate between the parents”, who he assessed as capable parents who are different and therefore parent differently. I accept this observation;
(c)He accepted that ideally week about arrangements, where significant sharing of care occurs, are best for children when communication between the parents is effective. After the first interviews with the parents, and with a structure and more certainty coming from interim Orders, he was hopeful the parental communication had improved. At paragraph 10.6 of his second report, Mr W refers to the father’s communication being “less accusatory in nature compared to previous times” however there have been occasions “when he has lapsed by making blaming or critical comments about” the mother. He assessed the mother “has appeared to communicate with Mr Fletcher in a polite fashion, limiting content to day-to-day issues (appointments and the like)”. Mr W had not seen the parties’ trial affidavits, however in a letter dated mid-2019 (in response to queries raised by the lawyers for the mother after the second family report issued), Mr W, by reference to the father’s protection order application, confirmed he was concerned by the statements made, and if the father had not modified his attitude to the mother, that would be a concern. I find the affidavits are filled with criticisms and “points to make”. I regard respectful and effective parental communication is not occurring consistently (or they disguise their true feelings) with the potential to lapse into an incident of conflict that the children could hear or perceive. Both parents have attended and completed the nominated parenting courses – however, I find, issues of poor communication still occur and are likely in the future;
(d)Based on the children’s wishes, taken longitudinally, Mr W express the following opinions, whilst accepting that the children’s awareness of their parents’ different proposals, means their wishes must be cautiously considered. All the evidence establishes the deep love these children have for their mother and father and the clash of loyalties and a reluctance to be seen to say something that could upset one of the parents is a context to be considered. However, to return to Mr W‘s opinions explored in cross-examination, I summarise his views as follows:
(i)Equal shared care “would not appear to be an arrangement that the children are adverse to. However, [X] may not have sufficient assertiveness to state clearly if she prefers to maintain the current arrangement”. He opines adopting a cautionary approach in increasing time for X (paragraph 10.26);
(ii)In Y’s case “it would be reasonable to extend the time that he spends with his father to six nights rather than seven so that he is not separated from [X] for more than one night each fortnight”, although other structures could be considered (paragraph 10.26);
(iii)He was not “sufficiently convinced by either child’s comments” that it is the case as the mother contends that the children reach “their limit of tolerance after five nights with their father”, to recommend anything other than an equally shared school holiday arrangement”, subject to parents being available (paragraph 10.27);
(iv)X was aware that the mother held concerns about the father, but said she felt she could cope with equal time;
(v)If an order for sole parental responsibility was made to be exercised by the mother, the father might feel he is not involved and this could create further conflict between the parents;
(vi)The mother expressed a concern about the father’s capacity or willingness to support the children’s interaction with their peers when with the father, and the expert detected some support for this view from his discussions with the father;
(vii)He was aware that Y is diagnosed with ADHD and is medicated and X suffers elevated anxiety and is diagnosed with ADHD. His recommendations were made with this awareness and collateral information provided to him, particularly by Ms EE, the counsellor for X;
(viii)If the Court accepts the mother’s evidence that Y is unsettled when he returns from his father and/or manifests some behaviour which the mother says reminds her of her experiences with the father, that would be a legitimate concern to take into account;
(ix)Although Mr W assessed Y as having a “persecutory manner“ which he “could be picking up“ from his father, this was strongly rejected by the father and in the absence of more evidence (including any evidence from the child’s therapist) I am not persuaded, if it was even necessary, to make any such finding;
(x)It would be appropriate for the Court to look at the capacity for the parents to provide for the children, when in their care, a consistent structure/routine, homework regime and remain emotionally “attuned” to the children. Although the mother continued to contend that her parenting style was more open and “nurturing”, and the father’s style more “military and authoritarian”, Mr W did not agree – whilst noting their styles were different.
I give weight to the opinions expressed by Mr W, although some further new nuances arose from the evidence of the parties and their trial material.
Certainly, nothing in the evidence overall supported the children’s time with the father being reduced – contrary to the children’s feelings and wishes as captured by him over the two occasions when he interviewed the children.
Primary considerations
The proposals of both parents reflects, consistent with their testimony, that they both accept the children will benefit from having a meaningful relationship with each of them. I agree.
Neither child is at risk of physical harm, abuse, neglect or family violence in the care of either parent. The level of parental disagreement, although passive at times, is not, in my assessment, causing the children psychological harm – however if it erupts after this Judgment (which I could not totally discount), these mature sensitive children will pick up on the tensions. At their developmental stages, there is a risk that if the children sense their parents are more interested in fighting between themselves over little issues, and less interested in supporting the children’s growing needs for independence, they could easily “align” with one parent, more out of a desire for a more calm and comfortable life. Ultimately, the extra day here or there is not likely to be seen by the children as important, as being in an environment where they can do their homework, see and develop their relationships with their peers through school and extra-curricular activities, and simply grow as people. Sadly, the parents will learn (if they have not already identified) that they are not the centre of their children’s every thinking and waking moment.
Additional considerations
I make the following findings, within the matrix of the relevant s 60CC(3) considerations, relying upon earlier findings without necessarily repeating them, and in a narrative style.
I take into consideration the wishes and feelings expressed by the children to Mr W contained in his second family report are paragraphs 7.1 to 7.21 (X) and paragraphs 7.22 to 7.34 (Y). I accept that those wishes were expressed after the children had adjusted to and experienced the change of routine prescribed by the consent interim order. X described living across two houses as “pretty simple”; expressed no preference for a change of routine; wants to see her father “at least once a week”; was less certain about how her father could help with homework; knew her father “wants more time”; and exhibited a “very close attachment with each parent”.
Y expressed some worries around his experience with peers; said he “wants week-about time with each parent so that he has the same with each”; observed he likes having friends over at his mother’s home but “that doesn’t happen much at dad’s”; knew his father wants equal shared care “but he did not know what his mother wants”.
Although both parents do provide some evidence of statements they say the children have made to them about parenting arrangements, I do not regard these statements as definitive. I take the children’s expressed views into consideration.
The children have a strong relationship with each parent and each other. I accept the evidence of Mr W that if the arrangements for the children with the parents included Y having slightly more time with the father then does X, that would not adversely affect the sibling relationship.
These parents have properly maintained the children and generally participated in making decisions about them since separation. I accept there have been disputes about child support and other financial issues and also payment of private school fees, however the parents were, by final submissions, able to agree on the children’s secondary education schools and, I infer, have “worked out” ways to pay the fees associated with those schools.
In my assessment and conclusions below, I deal with the likely effect of any changes to the children’s circumstances (s 60CC(3)(d)).
There are no practical difficulties or expenses in the children spending time or communicating with each parent.
I rely upon earlier findings about the parents’ capacity and attitude to parenting. These are very capable parents who, although they exhibit at times slightly different styles, are both heavily invested in the parenting and future development of their children. Frankly, both children are fortunate to have parents of such quality who love and care for them.
Family violence issues do not arise in this case, nor are there any family violence orders in existence.
The Court’s desire is to make orders which are less likely to lead to further proceedings. In my assessment, much will depend on how the parents react to the orders I now pronounce. In that regard, I also accept the property adjustment orders will be an important context as to how the parents react. If X and Y feel (after two opportunities for them to express their wishes to Mr W) they are in some way “responsible” for the disappointment or even frustration exhibited by the parents, that could be a tension on these children which may have long term negative consequences for them. Their anxiety might be seen by an unhappy parent as a factor arising from what is happening in the other household. That can be a catalyst for bringing fresh applications. The parents should think carefully before doing so.
Parental responsibility
Despite the oral submissions made, and without ignoring the evidence of ineffective communication between the parents at times, I am comfortably satisfied that it is in the children’s best interests that the parents are vested with equal shared parental responsibility. Put another way, and considering the value I assess each parent can offer to a discussion on a major long term issues when each has substantial time with their children, there is no principled reason on all the evidence to depart from the statutory presumption, or to depart from the interim Orders already made for parental responsibility. Also, to support the mother’s proposal for sole parental responsibility (even with the conditions proposed in the mother’s orders at 4 to 7) could cause the father to feel excluded and/or marginalised and this is not in the children’s best interests (see the discussion in Vallans & Vallans (2019) 60 Fam LR 193).
Form of order
As a consequence of an order for equal shared parental responsibility, the Court is required to consider whether an order for equal time is in the best interests of the children and reasonably practical and if not, whether in order for substantial and significant time should be made.
I confess that it is often difficult to articulate reasons acceptable to a parent seeking equal time (in this case the father), why an order for slightly less time than equal time is preferable. Notions of parents (and often children like Y) that equality is equitable or fair because each parent is equally as good, influences thinking. However it is more important for consideration to be given to how a routine works in the best interests of the children – both collectively and individually – rather than counting nights spent in the home of each parent.
In the exercise of my discretion, I find the orders set out at the commencement of these Reasons are in the best interests of both X and Y, and explain some of the orders which were in dispute (save for drafting differences as follows):
(a)X will spend five nights a fortnight with the father – maintaining in essence the current amount of time. Y will spend six nights a fortnight with the father – being only an extra night, but importantly every alternate Monday night he will have one on one time with the father. Although I accept the mother’s evidence that after Y returns from time with his father he takes a little longer to “settle down”, I am not persuaded that this is a reaction to spending time with the father. Rather, this child is trying to adjust to the slightly different households. I do not accept the mother’s position that five nights is the limit the children can cope with;
(b)The slightly greater mental health vulnerability that the father carries; the need for X in the final years of her schooling to take responsibility for the rigours of homework and study which I find for her at this stage is best achieved on balance in the mother’s home; the need for Y to feel comfortable to invite his friends home as well as the other findings, persuade me that the arrangement set out are preferable for the children than a week about routine;
(c)I assess that with only a few weeks until the end of the 2022 school year, it is better for the current interim arrangements to continue and to start the new routine at the start of the 2023 school year. Conscious of how the father may react to an order not entirely as he seeks, it will also give him an opportunity, if he needs it, to seek some therapeutic support;
(d)As to other specific orders, I begin with a basic view that the thought that the more orders pronounced leads to less disputes, is in most cases a furphy. Parenting involves daily exercises of intuition and application of common sense. I assess these parents have these qualities although not always consistently demonstrated in the “heat of battle”. There are likely to be events in the years to come (considering Y is only 12 years old) where the orders even I pronounce will not comfortably accommodate a special event, maybe even unforeseen at this time. That is when the qualities of “good” parents should kick in. However to the extent I regard it as important to prescribe various matters in the orders, I do so. When I do not make a specific order sought by a parent it should be inferred that not making an order on that issue is, in my assessment, better than making one. It is trite to remind the parents that the Court is not bound by the parties’ proposals;
(e)School holidays should be shared equally. I am not persuaded, that for holidays, the father does not have the capacity to care for the children for seven days or more. At the age of these children it is likely that some of every holiday they will seek to engage with their peers. Having the end of year school holidays in two blocks means that a longer period with a parent could allow an interstate holiday or even one overseas. This is likely, if achievable, to be in the children’s best interests. I broadly, as a result, adopt the father’s proposal for school holidays;
(f)Although the parties agreed for the children to spend time on special events or days, I prefer the mother’s proposal for changeover times at 5.00pm rather than the father’s proposal of 6.00pm. I make no provision for the parent’s birthdays. I adopt the father’s proposal for the children’s birthdays;
(g)The children’s celebration of Easter is the subject of separate proposals. The father’s proposal is at order 6(e) and 7; the mother’s proposal is at 12(e). I prefer the simplicity of the mother’s proposal. Of course in most years Easter celebrations fall at the start, end or middle of the end of term one school holidays. Noting the children attend faith-based schools, I can anticipate they may be required to attend a school event on one of these days. However, to permit a parent (at least once every two years) to have a chance to practice the children’s faith with them, the mother’s order at 12(e) is appropriate. I also included for clarity the mother’s proposed order 13;
(h)The celebration of Christmas festivities seem to be another area of dispute (compare the mother’s proposal at 12(f) and the father’s proposal at 6(f) and (g)). Whilst my preference, if for example a child in the first half of the holidays is away from Brisbane, is not to interrupt that holiday; and further not to have a changeover on Christmas Day at 12 noon, both parties appear to want their children to do so. I adopt the mother’s proposal at 12(f) as well as order 13. Hopefully, on a yearly basis, some common sense to suit these children can arise, noting that the orders for time can be varied by written agreement by the parents;
(i)Changeovers, telephone communication and parental communication orders appear to be agreed, as well as the common authorities to school and medical practitioners;
(j)Although it should not be necessary for order 16 of the mother’s proposal, I will incorporate an order compelling the parents to keep the other parent informed of medical appointments;
(k)With the care arrangements I have ordered, I do not regard it as necessary to make provision for “occasional care” and first “right of refusal” if they are unavailable. Suitable arrangements often need to be made by parents with the care of children. Depending on the circumstances and nature of the unavailability, I have confidence that each of these parents (probably after consultation with the children) will contact the other parent if that is the best option. This does not seem to have been an issue in the past and such “controlling” orders are not necessary. Similarly, I will not make an order that the parents “substantially care for and supervise the children“. Again, such an order is (whatever the words might mean) has the potential to lead to questioning of the children unnecessarily and a sense that when a child is in one parent’s care they are entitled to know everything that goes on in the other parent’s home. Simply, they are not. I will make, for the children, orders about medication;
(l)I will incorporate restraints about the use of alcohol and illicit substances and a non-denigration order and the usual orders about discussing proceedings and the like;
(m)I am satisfied that it is in the best interests of the children that the mother receive a report about the father’s continuing treatment and compliance – but not to an extent that it becomes intrusive or could interfere unreasonably with the father’s therapeutic relationship with his psychiatrist, counsellor or substance support treatment. The mother’s proposed orders on this issue at paragraphs 36 to 39, in my view, on the findings about the father’s mental health, go too far and are likely to undermine the therapeutic relationships the father holds. This was the cautionary evidence of the father’s treating health professionals who were cross-examined. They indicated they were bound by “client confidentiality” and their patient’s instructions;
(n)Whilst I acknowledge every one of the father’s treating health professionals would be bound by the State legislation as to the mandatory reporting if they are of the view a child is at risk, I assess that the appropriate order that ensures balance of all legitimate interests is as set out at Orders 25 to 27; and
(o)Both the father (at proposed orders 29 to 32) and the mother (at proposed orders 22 to 24) seek travel orders be made. They are drafted in similar terms and with the same effect. I propose to make orders 22 to 24 as the mother’s proposed orders contend.

The parenting orders at the commencement of these Reasons are in the children’s best interests.
Property applications
The competing final proposals of the parties (who in this part of the Reasons I shall call the “husband” and “wife”) are reflected in the following articulated outcomes, both said to achieve justice and equity for both parties, namely:
(a)the Applicant husband contends for an adjustment of the parties’ property and interests as to 60% to the husband and 40% to the wife, in accordance with the orders set out in the husband’s case outline filed 1 May 2022. Relevantly, the husband is prepared to allow the wife 30 days to be able to make a required payment to retain the former matrimonial home at S Street, Suburb T (“the Suburb T property”), and if the wife is not able to do so, the home should be sold. The husband does not seek any superannuation splitting orders, including in respect of his interest in his Superannuation Fund 1 (“Superannuation Fund 1”), being superannuation in its payment phase; and
(b)the Respondent wife submits for an adjustment of the parties’ property and interests as to 55% to the wife and 45% to the husband. The wife seeks an opportunity to try and retain the Suburb T property. The form of orders sought by the wife are set out at Annexure “A” to the written submissions filed on her behalf on 20 December 2021. The wife seeks no splitting order in respect of the husband’s Superannuation Fund 1 interest, but in an endeavour to create some further potential liquid cash benefits for the husband (as the wife asserts would the case), the wife proposes that a base sum of $200,000 be allocated to the husband from her Superannuation Fund 2 benefit.
Principles
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:
(a)to identify the pool of assets and liabilities generally, and usually at the time of hearing;
(b)to assess the relative contributions of both the financial, non-financial, direct and indirect nature as specified by s 79(4);
(c)to consider the factors as are relevant contained in s 75(2) of the Act; and
(d)finally, consider the ultimate analysis to determine whether the order the Court proposes to make is just and equitable to both parties.
Both parties contend it is just and equitable to make an order (s 79(2)). In the wife’s submissions at paragraphs 30 to 32, reference is properly made to the High Court decision in Stanford & Stanford (2012) 247 CLR 108 and the principles set out in that decision. I agree.
Background
The contextual background set out at paragraphs 1 to 37 of these Reasons is adopted, but as will become apparent as I analyse the evidence in respect of contributions in particular, some further events during this relationship, which began with cohabitation in 1997 and changed with the parties’ separation (under the one roof) in or about June 2017 require noting.
Fundamental to understanding what orders may achieve justice and equity for both parties, is what constitutes the pool of interests available for alteration.
I make those findings next.
the pool
At the time of the close of the trial in May 2020, the parties reduced to a form of “joint balance sheet”, the document tendered as Exhibit 1. That balance sheet, on its face, identified areas of agreement and disagreement. I deal with the following issues identified in Exhibit 1 and further explained by the parties’ written submissions as follows.
Valuation of the Suburb T property
After orders for a limited re-opening were made on 16 September 2021, further expert evidence was adduced as to current market value of the Suburb T property. The parties now adopt a figure “as at [late] 2021” of $1,500,000.
Bank accounts
Whilst there is a degree of illogicality in including bank accounts for the parties (at early 2020) when separation occurred some years earlier, as both parties seek to do so, I include them. A dispute arises as to a bank account for Y ($10,452) and one for X ($18,824). The wife says they should be excluded because they were created “for the children’s benefit” from “savings deposited from time to time”, I infer during the marriage.
Whilst the wife says she felt agreement was reached that the accounts be “excluded”, the husband’s submission is they should be “included…given they are in the wife’s possession”. In the absence of evidence about the existence of a formal trust, and whilst the children might be upset if they were told “their money” has been dealt with – as a matter of law, either party could, on the evidence, access the funds they control (see wife’s affidavit at paragraphs 479 and 480), immune from any lawful claim by the infant child. For these reasons, the funds will be included as property of the party with control, namely:
(a)the husband for X of $18,828; and
(b)the wife for Y of $10,452.
Previous gems and stones and furniture
Each party denies they have these items in their possession. No reliable probative valuation (even if they still exist) is offered to the Court. The wife’s assertions at paragraphs 481 to 490 of her affidavit do not persuade me it is just and equitable to include any amount in the balance sheet for these items. The husband, it is agreed, left the Suburb T property in July 2018. The wife says it was not until late 2018 that she found the safe unlocked and emptied. The husband, in correspondence dated 8 January 2019 (from his solicitor) denies he emptied the safe after mid-2018. His position was not challenged in cross-examination. The wife has maintained insurance since separation and could, I infer, have filed an insurance claim for any property “stolen”. She has not done so. No amount will be included in the balance sheet. A bracelet was the subject of a valuation and is included in the pool.
All Asset Appraisals were appointed as a single expert to inspect and value items of furniture. An affidavit by Expert Mr DD was filed in which he estimated the value of a number of items as follows:
(a)In the Suburb T property (occupied by the wife) – $15,125; and
(b)In the Suburb FF property (occupied by the husband) – $13,375.
Mr DD was not required for cross-examination. The wife’s assertions at paragraphs 492 to 495, as I understand them, are that the husband removed items from the Suburb T property not then inspected by Mr DD, and therefore not valued. The wife, at paragraphs 496 to 503 refers to correspondence relating to the dispute as to items and an allegation the husband hid items that should have been valued in a storage shed. The best evidence of items inspected and their value is the evidence of Mr DD. The husband was not the subject of cross-examination on this issue. I propose to include in the balance sheet the amounts that were estimated by the valuer.
Financial loss caused by the husband ($146,900)
Exhibit 1 made it clear this item was disputed. The husband submits this claim by the wife “was effectively not pursued at trial to any real extent” and that it seemed to be based on the wife’s evidence at paragraph 463. The “claim” is a self-assessed quantification to support an allegation by the wife relating to matters such as:
(a)lost interest if the parties funds were invested. Considering the number of applications made by both parties, I was not directed to any application seeking funds to be invested; and
(b)amounts the wife purports to particularise at “GG 10” being ATM cash withdrawals; purchase of new vehicle (already included in the balance sheet); miscellaneous “costs and shopping”.
Considering how much effort and time the wife must have devoted to the creation of “GG 10”, I am at loss when the husband was available for cross-examination why the wife’s case – effectively an argument that the husband, the wife claims (at paragraph 463(b)), unilaterally withdrew $97,075 from the home loan account prior to separation and spent the funds wastefully. The husband, in his affidavit at paragraph 247 conceded he accessed funds of $97,075 and used those funds as follows:
(a)$17,500 for mortgage payments;
(b)$8,000 off the credit card account;
(c)$2,200 for an expert psychiatrist assessment;
(d)$15,000 for purchase of Motor Vehicle 1
(e)$38,500 to his bank account - $35,000 of which was paid for legal expenses.
Considering the evidence, the wife has not established that the principles in Kowaliw & Kowaliw (1981) FLC 91-092 have application. In my view however, using “joint funds” to pay $35,000 to his lawyers is akin to a premature disposition (in a Townsend & Townsend (1994) 18 Fam LR 505 sense) and should be included in the pool.
Legal costs
Sadly, the sums paid by these parties for legal expenses are significant, and although two Orders for costs certificates to be granted provided small reimbursement (in the region of $15,699 each) those small sums should not be “added back”. The evidence establishes that broadly the husband, who has had modest income, contributed to his legal expenses through some of the receipts by him of partial property settlement orders (which I deal with below), as well as from the funds of $97,075 earlier referred to in these Reasons. The wife says, and I accept, that she funded her legal expenses from partial property orders, a loan from her parents of $100,000 (which she seeks to include in the balance sheet) and her post separation earnings.
In the absence of persuasive evidence of use of partial property settlement orders for a reasonable living expenses, they ought in my view generally be “added back” so that when a final adjustment to made, a distortion by one party receiving more than another party does not create inequity. Often Judges leave the “characterisation” of interim property orders to the trial Judge – but even if an interim characterisation is identified, the trial judge is not necessarily bound by that characterisation.
Parties are entitled to use funds provided as they wish, in the knowledge that generally the funds will be “added back”. It is not the role of the Court to reconcile parties’ legal costs. The principles applied to “add backs”, which is often expressed as the “exception to the rule”, do not generally apply to a party using post separation income to pay legal fees, as the wife has done. The evidence in this case is far from clear. Disputes exist (for example the wife seeks a sum of $312,948 to be “added back” in the husband’s benefit for legal expenses and the husband only concedes $225,000).
As I understand the husband’s written submissions, he contends that the wife has used “no less than $133,340” of joint fund towards her legal expenses, a claim in part disputed by the wife who directs the Court’s attention to the inclusion of $99,309 in her balance sheet (item 14) and the receipt of the partial property payment of $115,000 (item 24).
Where the Court has not had the benefit of oral submissions; where the husband was not even cross-examined to any degree about financial matters (and the wife’s cross-examination was very limited), in the exercise of my discretion about “adding funds” back in the categories of legal costs and interim or partial property settlement orders, I make these findings:
(a)On 23 July 2018, the Order in favour of the husband for available joint funds to be the source of a payment of $50,000 for relocation expenses, was made by consent. The husband was not required, by that Order, to account for those funds. They should not be added back, but the benefit the husband received represents a contribution in part by the wife;
(b)On 12 April 2019, a Judge ordered the husband receive:
(i)$110,000 to be paid to his lawyers to be used “solely for legal fees”; and
(ii)a further $40,000 directly to the husband’s bank account “to be characterised”.
As far as I am concerned, both sums ought be “added back”.
(c)On 8 October 2019, a Judge ordered in chambers by consent that each party receive from the funds held jointly, and paid to their lawyers, $11,500. These funds should be added back;
(d)On my calculations, the “joint funds” being the nett proceeds from the Suburb L property, was the source for a total of at least $415,000 distributed to the parties. The joint account … 23 balance is brought into account in a sum of $48,071. As I understand the evidence, the husband also had access to $97,000 approximately previously discussed in these Reasons.
Based on these findings, I regard it as just and equitable to “add back” a total sum of $265,000 received by the husband and $115,000 received by the wife. The wife’s decision unilaterally to borrow $100,000 from her family to fund legal expenses, is a decision she must bear sole responsibility for and, as a result, it should not be included as a liability.
I well understand that the Court may be invited to determine a costs application after these Reasons are published and orders made, however that is the proper way for a party to be ordered to contribute to costs of the other party (if justified in the circumstances considering the factors set out in s 117(2A)), not through some application of the exceptional principles around “add backs”.
Any assertion by the wife that the husband has an interest in property on AB Town fails for proof of the limited basis an interest might arise (see White & Tulloch v White (1995) FLC 92-640).
Liabilities
As to liabilities, the parties’ contended balance sheets in final submissions are slightly different for the Commonwealth Bank of Australia (“CBA”) account …08 and each party’s credit card accounts. I propose to adopt the mean figure for what I understand to be the mortgage account, between $63,815 (wife) and $64,273 (husband) of $64,044. I do not include the parties’ CBA credit card liabilities or the husband’s “HH credit card”. The balances, so many years post separation, represents how each party chose to use their credit facilities and income. A prudent party should not be required to contribute to a liability created by a less prudent party.
The parties seemed to agree that liabilities the wife has for some form of dental plan should be included, and I therefore do so. I have no evidence as to a “tax liability” for the 2019 tax year and without better evidence I do not include anything. The argument advanced by the wife in submissions that if one party (presumably the wife) retains the Suburb T property, a burden of Capital Gains Tax will arise on its ultimate sale because of the use the parties made of the property when overseas to generate rental income. If the wife does not retain the Suburb T property, and the home is sold jointly, any Capital Gains Tax incidence can be allowed for in the orders. However, in circumstances where, if the wife retains the property:
(a)there is no evidence of any immediate or foreseeable intention to sell (see Rosati & Rosati (1998) FLC 92-804); and
(b)no reliable evidence of the likely tax payable by the wife,
no allowance in the balance sheet should be made in my view.
For completeness, claims by the wife that allowances for repair work to the Suburb T property totalling $48,701 are not sustained on the evidence for at least the following reasons:
(a)The home has been valued and any defects, if at all, should properly have been taken into account by the single expert in determining the opinion as to market value and
(b)I am not satisfied, on the evidence, the works are necessary (as distinct from desirable) or the actual estimates of repairs from a qualified expert, should be adopted.
Simply if, as I understand is the case, the wife wishes to retain the home, defects or the like are a matter for her to take into account.
Superannuation
Both sets of submissions propose that the parties’ superannuation interests be included in the same pool, notwithstanding the preferred approach identified in C & C (2005) FLC 93-220. I adopt the approach contended for by the parties.
I was particularly confused that both Counsel included in final submissions a sum (although apart by nearly $70,000) for a valuation, prepared by Mr JJ, of the husband’s Superannuation Fund 1 interest.
Where no splitting order is sought, it has been settled law for some time that (see Preston & Preston [2022] FedCFamC1A 157):
There was no need to ascribe a capitalised value to the military pension when no splitting order was sought in respect of it under Pt VIIIB of the Act because, as the Full Court established in Carron & Laninga (2019) FLC 93-909:
36.In property settlement proceedings, there is no need to ascertain the capitalised value of a superannuation interest, much less one in the payment phase being paid in the form of a non-commutable pension, unless a superannuation-splitting order is sought in relation to the interest (Welch & Abney (2016) FLC 93-756 (“Welch & Abney”) at [33]–[34], [61]; Surridge & Surridge (2017) FLC 93-757 (“Surridge”) at [30]). At trial, neither party sought a superannuation-splitting order in respect of the wife’s MSBS pension.
37.The Act only provides that a superannuation interest must be valued before it is amenable to a splitting order (s 90XT(2)), for which purpose the Family Law (Superannuation) Regulations 2001 (Cth) (“the Regulations”) make provision for the manner in which different superannuation interests are valued. …
(Emphasis omitted)
The husband’s superannuation, in its payment phase, cannot be neither commuted nor alienated and it is “no more than a right, entirely personal to the husband, to receive defined income…”
However the features of the husband’s pension make it readily identifiable as a financial resource rather than an asset (see Carron & Laninga), and observations to a similar effect made by the Full Court in Mayhew & Fairweather (2022) 64 Fam LR 633 at [15]–[23].
Of course the husband’s entitlements will not be ignored, as the Court’s discussion of the factors that arise for consideration under s 75(2) demonstrate.
Based on the findings made, I determine the pool of interests available for adjustment to be as follows:

Ownership

Description

Value

Assets

Joint

Suburb T property

$1,500,000

Joint

Motor Vehicle 2

$13,500

Joint

Motor Vehicle 3

$7,800

Husband

Motor Vehicle 1

$7,000

Wife

Bank accounts (including Y’s account)

$45,557

Husband

Bank accounts (including X’s account)

$22,084

Joint

CBA account …23

$48,071

Wife

Hopgood Ganim Trust Account

$99,309

Husband

Rostron Carlyle Trust Account

$1,257

Joint

Precious gems and stones

$Nil

Husband

Furniture and chattels

$13,375

Wife

Furniture and chattels

$15,125

Wife

Bracelet

$5,000

ADD BACKS

Husband

Premature distribution to husband used for legal expenses

$35,000

Husband

Partial property Orders

$265,000

Wife

Partial property Orders

$115,000

$2,193,078

LIABILITIES

Joint

CBA account …08

$64,044

Wife

Dental plan liability

$4,663

$68,707

Nett property

$2,124,371

SUPERANNUATION

Wife

Superannuation Fund 2

$308,178

Husband

Superannuation Fund 3

$105,172

$413,350

TOTALL NETT POOL

$2,537,721

Contributions

Although Mr Drysdale of Queen’s Counsel submits (at paragraph 76) that there “is no requirement” to asses contributions “by reference to a percentage and adjust that percentage by considering the relevant s 75(2) factors”, nor does the Act mandate that approach, a long line of well-known authority makes it clear that is the preferred approach. I intend to analyse the facts adopting the preferred approach.
At the time of cohabitation in 1997, it is now agreed the husband’s initial contributions were in the range of $142,000 – comprising an interest in a house at Suburb LL and an estimated $45,056 member benefit in the Superannuation Fund 1, the husband having enlisted in 1990. The wife had minimal assets. I take these initial contributions into account although these contributions need to be seen in the context of a myriad of diverse contributions thereafter made by each party to a relationship that lasted over 20 years, and where both parties continued to make contributions post separation, of both a financial and non-financial character.

7.   In the event that Easter adjoins a school term holiday period then the parent with whom the children are living with for that Easter in accordance with Order 6 shall nominate adjacent days before or after Easter (but not both) to form one half of the school term holiday period inclusive of Easter and the children shall live with the other parent for the other half of the school term holiday period. The parent with whom the children are to spend Easter with will give the other parent at least four ( 4) weeks written notice of the dates nominated by him or her.
8.   In the event the Applicant Husband or the Respondent Wife has other commitments or is not personally able to care for and supervise the children for a period equal to or more than 24 hours, the other parent have the option, in the first instance, to care for the children and in the event that the other parent is unavailable or does not respond to a message on Our Family Wizard within 4 hours if care is required within 48 hours or within 48 hours if care is required outside the 48 hours period, that either Ms KK, Mr MM, Ms NN, Ms OO, Mr PP and/or Ms QQ care for the children.’
Changeovers
9.   That for the purpose of facilitating these arrangements, unless otherwise agreed in writing, changeovers shall take place on a school day at the children's respective schools and shall otherwise take place at the residence of the parent into whose care the children are from time to time coming.
Telephone and/or electronic communication
10. That the parties be at liberty to communicate with the children, when the children are not in their care, via telephone or videoconferencing between 6.00pm and 8.00pm (in the children’s location) or at any other reasonable hour as agreed.
11. That the children be at liberty to contact either parent at any time that they express a wish to do so, with the parent who has care of them at the time to facilitate the telephone or video conferencing.
12. The parent with whom the children are then living or spending time shall facilitate calls and shall afford each child privacy when that child or the children are speaking with the other parent.
Relocation
13. That neither parent will relocate the children's residence to a place where it is not reasonably practicable for the other parent to spend time with the children as provided for in these Orders without the prior written agreement of the other parent or, failing agreement, an Order of the Court.
Communication
14. That unless otherwise agreed, the Respondent Wife and the Applicant Husband will only communicate with each other by use of the Our Family Wizard App in relation to matters pertaining to the children’s care welfare and development except in the case of an emergency or for the purpose of facilitating communication with the children pursuant to paragraph 10 and 11 when communication by telephone will be permitted.
a.   Each parent shall pay their own costs associated with using Our Family Wizard.

15. Each parent will keep the other parent informed of their respective current residential address, mobile telephone number and email address on which they can be contacted in relation to the children and are to advise any changes to those details with the other parent within 24 hours of any change occurring.
16. That without admission as to necessity, the parties are to refrain from:
a.   denigrating or causing the denigration of the other party to or in the presence of the children or raising any matter which may reasonably cause, or be likely to cause, the children to think less of the other party, or a member of the other party's family;
b.   Involving the children in any discussion of these proceedings, including but not limited to the allegations made by either party, or any aspect of it including the orders sought by either party;
c.   Having any discussion concerning these proceedings, including any of the allegations made by either party, or any aspect of it including the orders sought by either party in the presence of either or both of the children and shall take all reasonable steps to prevent or remove the child or children from any such discussion if instituted by any third party.

Health & Education
17. Unless and until the parties enter into a Binding Child Support Agreement with respect to the payment of the children's school fees, which has been lodged with the Department of Human Services in accordance with the Child Support (Assessment) Act 1989, the children shall attend Queensland State Schools, commencing in Term 2, 2020 being that:
a. X shall attend RR School; and
b. Y shall attend SS School.

18. Each parent shall be at liberty to attend at the children's respective schools and to attend all school and extracurricular and sporting and cultural activities involving either or both of X and/or Y no matter who has care of the children at the time.
19. These Orders are sufficient authority for any school attended by a child from time to time to release to the parties' information in relation to the child's educational progress and other school related activities and to supply each parent with copies of school reports, photographs, certificates and awards as and when requested and at the expense of the parent making the request.
20. Each parent shall be at liberty to attend and be present with X and Y in the event that X or Y are hospitalised, no matter who has the care of the children at the time.
21. That in the event X and/or Y suffer any significant injury or illness, the parent with whom has care of X and/or Y shall inform the other parent without delay of the nature of the injury or illness and the name and address of any health professional on whom X and/or Y has been referred.
22. The parents will advise one another within seven (7) days of any other non-essential medical/allied health treatment provided to the children (or either of them) and will provide the contact details of the relevant treating health professional/s or service provider/practitioner to the other parent.
23. These Orders are sufficient authority to enable either parent to obtain any and all information required by that parent from any child's treating medical or allied health practitioner as and when requested and at the expense of the requesting parent.
24. Each parent will provide the other with any prescriptions or prescribed medications for the children and the other parent will administer those medications during the periods when the children are in their care.
25. Each parent continue to do all things and sign all documents necessary to ensure that each of X and Y receive psychological treatment as recommended by their treating psychologist from time to time and for such period as that treating psychologist may recommend.
26. In the event either child is required to attend an appointment with any medical specialist, the parent scheduling the appointment shall inform the other parent of the appointment time(s), invite them to the appointment and enter the details of the appointment into Our Family Wizard.
27. The Father and the Mother ensure that whilst the children are in their care:
a.   the children attend all social events, school and extracurricular and sporting activities;
b.   the children complete any homework, if necessary;
c.    the children's "screen time" is limited to two hours per day; and
d.   they personally care for and supervise the children.

Other
28. Pursuant to section 68B of the Family Law Act 1975 (Cth), the parents are restrained and an injunction granted restraining the parents from:
a. Consuming alcohol at any time they have the care of the children to the extent that they have a blood alcohol concentration (BAC) greater than 0.05; and
b. Consuming illicit substances at any time.

Travel
29. That during any period the children are in their care, the parents be permitted to take either child or the children on holiday interstate or overseas on the conditions that:
a. the travelling parent provides to the non-travelling parent the following, not less than 28 days prior to the proposed travel:
i.copies of flight tickets;
ii.a proposed itinerary, including but not limited to details of transport locations to be travelled to/from and dates of travel; and
iii.details of accommodation and contact details for whether the children will be staying including an address, telephone number and email address for each place of accommodation;

(“the travel Information”)
b.   the travelling parent advises the non-travelling parent of any changes to Travel Information as defined immediately upon becoming aware of any changes;
c.   the children do not travel to any country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, unless otherwise agreed in writing or unless the travel is in accordance with a school program;
d.   the children do not travel to any country for which the Australian Government has issued a “do not travel” or “exercise a high degree of caution” warning during the proposed period of travel;
e.   the travelling parent initiate and facilitate communication between the non-travelling parent and the children via telephone or video conferencing every third day from the first date of travel; and
f.    the non-travelling parent is at liberty to communicate with the children via telephone or videoconferencing at any reasonable hour.

30. That the parties do all things and sign all documents necessary to obtain and keep current Australian passports for the children, within twenty-eight (28) days of receipt of a written request from the other parent, with the parties to equally share the costs associated with any application for and renewal of the children’s Australian passports.
31. The child’s passport on issue at any time is to be retained by the Respondent Wife, to be released to the Applicant Husband when requested but no later than twenty-eight (28) days prior to departure for the purposes of any overseas travel during that parent's designated time with the child, or as otherwise agreed.
32. The Applicant Husband will return any passport on issue for the child to the Respondent Wife within seven (7) days of the child returning to Australia from any overseas travel or within such earlier time as the Respondent Wife may require in the event that the Respondent Wife requires that passport for any impending overseas travel for the child with the Respondent Wife.
Costs
33. The Respondent Wife pay the Applicant Husband’s costs of and incidental to this application on an indemnity basis.
APPENDIX TWO
1.   That upon the undertaking of the Father to provide an irrevocable authority to the Father’s treating medical practitioners to provide to the Mother the information set out in paragraph 37.
2.   That the children X (born 2006) and Y (born 2010) (collectively referred to as the children) live with the Mother.
3.   That all previous parenting orders are hereby discharged.
4.   That the Mother have sole parental responsibility for the children including but not limited to the following:
(a)schooling for the children including decisions about the type of schooling and the schools at which they shall attend and for this purpose:
(i)That X continue to attend her current school namely, E School in Suburb F;
(ii)That Y continue to attend UU School in Suburb TT until the commencement of secondary school upon which the Mother shall be at liberty to decide which secondary school Y attends, provided however that Y attend VV School or G School Suburb H;
(iii)The children may attend an alternative private or state school(s) as agreed between the parents or failing agreement as elected by the Mother;
(iv)That the Father will sign any documents required for the enrolment of the children in the above mentioned schools and return the said documents to the Mother within seven days of receipt of same.

(b)surgery, hospitalisation, specialist and medical treatment required by the children for any serious injury, illness or disability but does not include:
(i)consulting a general practitioner;
(ii)attending a dentist for a check-up;
(iii)taking recommended doses of non-prescription medication;
(iv)attending a hospital emergency ward in circumstances where the parent considers it reasonably necessary to prevent or lessen a serious and imminent threat to the life or health of one of the children.

(c)psychological, psychiatric or other therapeutic counselling for the children;
(d)decisions about religion and religious instruction of and observance by the children; and
(e)decisions about the children playing or being involved in any sporting, cultural, artistic or community activities including concerts, competitions, training or meetings or other developmental or extra-curricular activities that:
(i)are considered an extreme sport (including but not limited to scuba diving, sky diving, motor cycling or any activity involving the use of a
(ii)firearm);
(iii)fall whilst the children are in the care of both parents;
(iv)require both parents to actively be involved in; and/or
(v)require both parents to financially contribute toward.

5.   Before making a major decision in the exercise of her sole parental responsibility of one or either of the children, the Mother is to consult with the Father and consider his views before making such a decision.
6.   The Mother is to keep the Father informed of all decisions she makes in respect of the children in the exercise of her sole parental responsibility including keeping the Father informed of any appointment and treatment.
7.   Notwithstanding the above paragraphs the Mother and Father shall each be responsible for the day-to-day care, welfare and development of the children during those times the children are in their respective, individual care.
8.   That unless otherwise agreed in writing, the children live with and spend time with the Father during the school term (the Father’s regular time) as follows:
(f)each alternating weekend from the conclusion of school on Friday until:
(i)the commencement of school on Tuesday for Y (4 nights), with the Father to collect Y from school on Friday and deliver Y to school on Tuesday;
(ii)the commencement of school on Monday for X (3 nights), with the Father to collect X from school on Friday and deliver X to school on Monday;

(g)each alternating Monday from the conclusion of school on Monday until the commencement of school on Tuesday (1 night), with the Father to collect the children from school on Monday and deliver the children to school on Tuesday;
(h)for Y only, each Wednesday from the conclusion of school until 6.00pm, with the Father to collect Y from school and deliver Y to the Mother’s residence at the conclusion of his time with Y;
(i)for X only, each alternative Friday, when X is not in the Father’s care pursuant to paragraph 8(a), from the conclusion of school until 6.00pm, with the Father to collect X from school and deliver X to the Mother’s residence at the conclusion of his time with X.

9. That unless otherwise agreed in writing, the children live with and spend time with the Father during school holidays (the Father’s school holiday time) each alternating weekend from 3.00pm on Thursday until 3.00pm on Tuesday (5 nights), with the Father to collect the children from and deliver the children to the Mother’s residence.
10. That for the purpose the orders relating to school holiday periods:
(a)school holiday periods shall be deemed to commence at close of the school on the day the school term finishes and conclude at open of the school on the day the children return to school;
(b)in the event the children are attending different schools with different school holiday periods, school holiday periods shall be deemed to commence at the close of school on the last day of the school term for whichever child finishes the school term last and shall be deemed to conclude at the open of school on the first day of the school term for whichever child returns to school first.

11. That the Father have additional time with the children as is agreed between the parties in writing.
12. That unless otherwise agreed in writing, the children spend the following additional “special occasion time” with the parties:
(a)on Mother’s Day: from 5.00pm on the day immediately preceding Mother’s Day until 5.00pm on Mother’s Day;
(b)on Father’s Day: from 5.00pm on the day immediately preceding Father’s Day until 5.00pm on Father’s Day;
(c)on the birthday of each parent: from 5.00pm to 8.00pm on the day with such time to include both children;
(d)on the birthday of each child: with the parent they are not living with on the day from 3.00pm to 6.00pm with such time to include both children;
(e)at Easter:
(i)in even numbered years: from 9.00am on Good Friday to 6.00pm on Easter Monday with the Mother;
(ii)in odd numbered years: from 9.00am on Good Friday to 6.00pm on Easter Monday with the Father;

(f)on Christmas Day:
(i)in even numbered years: from 12.00noon on Christmas Eve to 12.00noon on Christmas Day with the Mother and from 12.00noon on Christmas Day to 12.00noon on Boxing Day with the Father;
(ii)in odd numbered years: from 12.00noon on Christmas Eve to 12.00noon on Christmas Day with the Father and from 12.00noon on Christmas Day to 12.00noon on Boxing Day with the Mother.

13. That in the event the “special occasion time” orders are inconsistent with the orders regarding the Father’s regular time or the Father’s school holiday time, the “special occasion time” orders are to take priority.
14. That except as otherwise provided, the Father and Mother shall collect the children from and return the children to school during times that they have the children and if the children are not attending school:
(a)the children shall be collected by the Father from the Mother at the commencement of his time with the children from the Mother’s residence; and
(b)the children shall be collected by the Mother from the Father at the commencement of her time with the children from the Father’s residence.

15. That each parent have liberty to attend all school and extracurricular and sporting activities involving either X and/or Y or both of the children no matter who has the care of the children at the time.
16. That the parties be at liberty to attend and be present with X or Y in the event that X or Y are hospitalised, no matter who has the care of the children at the time.
17. That in the event the Father has other commitments or is not personally able to care for and supervise the children for a period equal to or more than 24 hours, the Mother have the option, in the first instance, to care for the children and in the event that the Mother is unavailable or unable to be contacted (after one phone call and text message), that either Ms KK, Mr MM, Ms NN, Ms OO, Ms QQ and/or Mr PP care for the children.
18. That the Father and the Mother ensure that whilst the children are in their care:
(a)the children attend all social events, school and extracurricular and sporting activities scheduled in their time;
(b)the children complete any homework, if necessary;
(c)they personally care for and supervise the children; and
(d)they administer medication to X or Y as recommended by their medical practitioner or specialists and for this purpose, in the event X or Y are required to take medication, the parties ensure that the medication travels with the relevant child at handover.

19. That pursuant to section 68B of the Family Law Act 1975 (Cth), the Father be and is hereby restrained, by injunction, from:
(a)consuming alcohol at any time to a level over the legal blood alcohol limit; and

(b)consuming illicit substances at any time.

20. That without admission as to necessity, the parties are to refrain from:
(a)denigrating or causing the denigration of the other party to or in the presence of the children or raising any matter which may reasonably cause, or be likely to cause, the children to think less of the other party, or a member of the other
(b)party’s family;
(c)involving the children in any discussion of these proceedings, including but not limited to the allegations made by either party, or any aspect of it including the orders sought by either party;
(d)having any discussion concerning these proceedings, including any of the allegations made by either party, or any aspect of it including the orders sought by either party in the presence of either or both of the children and shall take all reasonable steps to prevent or remove the child or children from any such discussion if instituted by any third party.

21. That neither party relocate to a place where it is not reasonably practicable for the other parent to spend time with the children as provided for in these orders without the prior written agreement of the other parent and failing agreement, an order of the Court.
22. That during any period the children are in their care, the parties be permitted to take either child or the children on holiday overseas:
(a)the travelling parent provides to the non-travelling parent the following, not less than 28 days prior to the proposed travel:
(i)copies of flight tickets;
(ii)a proposed itinerary, including but not limited to details of transport, locations to be travelled to/from and dates of travel; and
(iii)details of accommodation and contact details for where the children will be staying including an address, telephone number and email address for each place of accommodation;
(the Travel Information)

(b)the travelling parent advises the non-travelling parent of any changes to Travel Information as defined immediately upon becoming aware of any changes;
(c)the children do not travel to any country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, unless otherwise agreed in writing or unless the travel is in accordance with a school program;
(d)the children do not travel to any country for which the Australian Government has issued a “do not travel” or “exercise a high degree of caution” warning during the proposed period of travel;
(e)the travelling parent initiate and facilitate communication between the non-travelling parent and the children via telephone or video conferencing every third day from the first date of travel; and
(f)the non-travelling parent is at liberty to communicate with the children via telephone or video conferencing at any reasonable hour.

23. That the Mother retain possession of the children’s passports, other than in the event that the Father travels internationally with the children, in which case:
(a)the Mother do all things necessary to deliver the children’s passports to the Father at least 24 hours prior to the date of departure from the Commonwealth of Australia; and
(b)the Father do all things necessary to return the children’s passports to the Mother within 24 hours of the date of returning to the Commonwealth of Australia.

24. That the parties do all things and sign all documents necessary to obtain and keep current Australian passports for the children, with the parties to equally share the costs associated with any application for and renewal of the children’s Australian passports.
25. That the parties be at liberty to communicate with the children, when the children are not in their care, via telephone or video conferencing between 6.00pm and 8.00pm (in the children’s location), or at any other reasonable hour as agreed.
26. That the children be at liberty to contact either parent at any time that they express a wish to do so, with the parent who has care of them at the time to facilitate the telephone or video conferencing.
27. That the parties keep each other informed of their contact details, including telephone number, email address and residential address, and advise the other of any changes within 24 hours of becoming aware of any changes.
28. That the parties correspond via text message or email to discuss care arrangements for the children, except in cases of emergency.
29. That in the event X and/or Y suffer any significant injury or illness, the party with whom has care of X and/or Y shall inform the other party without delay of the nature of the injury or illness and the name and address of any health professional on whom X and/or Y has been referred.
30. That the parties continue to do all things and sign all documents necessary to ensure that X continues to receive psychological treatment as recommended by Ms EE or in Ms EE’s absence, a psychologist whom she recommends.
31. That the parties forthwith do all things and sign all documents necessary to ensure that Y continues to receive psychological treatment as recommended by Mr WW or Mr WW’s absence, a psychologist whom he or Dr XX recommends.
32. That the parties consult X’s and Y’s psychologists to remain attuned to any of the children’s psychological needs and treatments and do all things necessary to comply with the recommendations of the children’s psychologists.
33. That in the event either child is required to attend an appointment with any medical specialist, the party scheduling the appointment shall inform the other party of the appointment time(s) and invite them to the appointment(s).
34. The parties inform and authorise any medical practitioner, psychologist, counsellor, dentist or any other health care professional on whom X and/or Y attends from time to time, to provide the other parent with any reports and/or information regarding X and/or Y, with the party requesting any report and/or information to be responsible for the cost of same.
35. That the parties inform and authorise all relevant organisations, agencies and individuals to provide the parties with any reports and/or information regarding X and/or Y, with the party requesting any report and/or information to be responsible for the cost of same.
36. That the Father continue to attend regular appointments with his treating specialists who are assisting him to manage the symptoms related to several mental health and dependency issues and complying with the treatment recommended by those treating specialists.
37. That these orders authorise the Father’s treating specialists, namely Dr B, Dr C and Ms D (and any other treating psychologists, psychiatrists or mental health professionals whom with the Father consults from time to time) to contact and inform the Mother, if:
(a)they suspect that the Father is to suffer a relapse of his mental health conditions (…) to a degree that it would impact negatively on the children; or
(b)the Father is failing to comply with any of their recommendations from time to time; or
(c)the Father withdraws his authority for his treating specialists’ compliance with these Orders.

38. That for the purpose of compliance with the preceding Order, the Mother cause a copy of these orders to be served on Dr B, Dr C and Ms D (and any other of the Father’s treating psychologists, psychiatrists or mental health professionals from time to time).
39. That in the event that any of the Father’s treating specialists or mental health practitioners contact the Mother pursuant to the preceding orders, that the Father’s overnight time pursuant to these orders be suspended pending further Court Order or agreement in writing.

File number(s):	BRC 1728 of 2018
Judgment of:	BAUMANN J
Date of judgment:	28 October 2022
Catchwords:	FAMILY LAW – PROPERTY – Disputed pool- what orders achieve justice and equity FAMILY LAW – PARENTING – Father seeks equal time and mother seeks to reduce time between the children and the father – Parental responsibility – Father’s mental health challenges – Children to spend substantial and significant time – Order made for equal shared parental responsibility
Legislation:	Family Law Act 1975 (Cth) s 60B, 60CC, 61DA, 65DAA, 75, 79
Cases cited:	C & C (2005) FLC 93-220 Duarte & Morse [2022] FedCFamC1A 66 Fletcher & Parkins [2020] FCCA 96 Goode & Goode (2006) FLC 93-286 Hickey & Hickey (2003) FLC 93-143 Jabour & Jabour [2019] FamCAFC 78 Kennon & Kennon (1997) FLC 92-757 Kowaliw & Kowaliw (1981) FLC 91-092 Mayhew & Fairweather (2022) 64 Fam LR 633 Preston & Preston [2022] FedCFamC1A 157 Rosati & Rosati (1998) FLC 92-804 Stanford & Stanford (2012) 247 CLR 108 Surridge & Surridge (2017) FLC 93-757 Townsend & Townsend (1994) 18 Fam LR 505 Vallans & Vallans (2019) 60 Fam LR 193 Welch & Abney (2016) FLC 93-756 White & Tulloch v White (1995) FLC 92-640
Division:	Division 1 First Instance
Number of paragraphs:	127
Date of last submission/s:	21 December 2021
Date of hearing:	6-8 May 2020
Place:	Brisbane
Counsel for the Applicant:	Mr Jordan
Solicitor for the Applicant:	Rostron Carlyle Rojas Lawyers
Counsel for the Respondent:	Mr Drysdale (as he then was)
Solicitor for the Respondent:	Hopgood Ganim Lawyers

BRC 1728 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR FLETCHER Applicant
AND:	MS PARKINS Respondent

order made by:	BAUMANN J
DATE OF ORDER:	28 OCTOBER 2022

Ownership	Description		Value
Assets
Joint	Suburb T property		$1,500,000
Joint	Motor Vehicle 2		$13,500
Joint	Motor Vehicle 3		$7,800
Husband	Motor Vehicle 1		$7,000
Wife	Bank accounts (including Y’s account)		$45,557
Husband	Bank accounts (including X’s account)		$22,084
Joint	CBA account …23		$48,071
Wife	Hopgood Ganim Trust Account		$99,309
Husband	Rostron Carlyle Trust Account		$1,257
Joint	Precious gems and stones		$Nil
Husband	Furniture and chattels		$13,375
Wife	Furniture and chattels		$15,125
Wife	Bracelet		$5,000
ADD BACKS
Husband	Premature distribution to husband used for legal expenses		$35,000
Husband	Partial property Orders		$265,000
Wife	Partial property Orders		$115,000
$2,193,078
LIABILITIES
Joint	CBA account …08	$64,044
Wife	Dental plan liability	$4,663
$68,707
Nett property		$2,124,371
SUPERANNUATION
Wife	Superannuation Fund 2		$308,178
Husband	Superannuation Fund 3		$105,172
$413,350
TOTALL NETT POOL			$2,537,721