Franco & Daley - [2023] FedCFamC1F 960

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Franco & Daley [2023] FedCFamC1F 960

File number(s): MLC 9994 of 2020

Judgment of: MCNAB J

Date of judgment: 8 December 2023

Catchwords: FAMILY LAW – PARENTING – Where children are living with a grandparent – Where parents have been seconded overseas– Where the parents have moved for postings leaving children with the grandparent – Where the children have spent a substantial amount of their lives living with the maternal grandmother - Where the mother’s visits with the children have been supervised for an extended period of time – Whether continued supervised time is in the best interests of the children – where application is made to discharge and remove the evidence of a single expert from the Court record where that expert has had their licence to practice as a psychologist suspended following the preparation of family reports and giving evidence.

Legislation:
Australian Passports Act 2005 (Cth) ss 7 and 11

Child Support (Registration and Collection Act)1988 (Cth) s 111C

Family Law Act 1975 (Cth) Pt VII ss 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65Y, 68B, 68C, 72, 79, 81, 114, 114AB

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
AJO & GRO (2005) FLC 93-218

Babett & Falconer (2015) FLC 98-067

Champness & Hansen (2009) FLC 93-407

Child Support Registrar & Vladimir and Anor (2017) FLC 98-073

Dickons & Dickons [2012] FamCAFC 154

DJM v JLM (1998) FLC 92-816

Dovgan & Dovgan [2021] FamCA 306

Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143

Jabour & Jabour [2019] FamCAFC 78

Kowaliw & Kowaliw (1981) FLC 91-092

Marriage of Bieganski (1993) 16 Fam LR 353

Moose v Moose (2008) FLC 93-375

Mortimer & Mortimer [2023] FCWA 117

Perrin & Perrin (No 2) [2018] FamCAFC 122

Re C & J (1996) 20 Fam LR 930

Townsend & Townsend (1995) FLC 92-569

Slater & Light (2013) 48 Fam LR 573

Stanford v Stanford (2012) 247 CLR 108

U v U (2002) 29 Fam LR 74

W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

Re W (Sex abuse: standard of proof) (2004) FLC 93-192

Division: Division 1 First Instance

Number of paragraphs: 230

Date of last submission/s: 4 December 2023

Date of hearing: 31 July 2023, 1 – 2, 10 – 11 August 2023

Counsel for the Applicant: Ms McCreadie

Solicitor for the Applicant: Ms Vella

Counsel for the First Respondent Mr Testart 31 July – 2 August 2023
Litigant in Person 10 – 11 August 2023

Solicitor for the First Respondent: Ms Elsner

Counsel for the Second Respondent: Ms Clark

Solicitor for the Second Respondent Ms Finch

Counsel for the Independent Children’s Lawyer Mr Dunstan
ORDERS

MLC 9994 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS FRANCO

Applicant

AND:
MS DALEY

First Respondent

MR DALEY

Second Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

8 DECEMBER 2023

THE COURT ORDERS THAT:
Parenting
1.The maternal grandmother and father have equal shared parental responsibility for X born 2009 and Y born 2011 (“the children”) to the exclusion of the mother, including but not limited to, decisions regarding:
(a)where the children live;
(b)the children's education and where they attend school;
(c)the children's health including any medical/surgical/dental procedures that are not urgent;
(d)the children's religion; and
(e)all other long-term issues about the care, welfare and development of the children.

2.The children live with the maternal grandmother.
3.The children spend time and communicate with the mother as follows:
(a)by telephone or video call between 5:00 pm and 5:30 pm each Wednesday with the mother to initiate the call and the maternal grandmother to facilitate the call;
(b)for three hours per fortnight under professional supervision, save as otherwise agreed in writing between the mother, father and maternal grandmother in accordance with paragraph 3(c) below;
(c)subject to the children's wishes (including with regard to the removal of the requirement for supervision) such further or other time as agreed between the mother, father and maternal grandmother in writing, with such time only to occur during the children's time with the maternal grandmother;
(d)notwithstanding paragraph 3(c) above, the maternal grandmother, mother and father will use their best endeavours to organise for the children to spend time with the mother in accordance with paragraph 3(b) or 3(c) as relevant, on Mother's Day, the children's birthdays and at Christmas;
(e)the time in paragraph 3(b) and 3(c) be supervised by either B Family services, C Family Services or another professional supervision service as nominated by the maternal grandmother and subject to the availability of the supervisor, with the requirement for such supervision to remain until 8 December 2026 unless otherwise agreed in writing;
(f)when the children spend time with the mother changeover occur as agreed and failing agreement as follows:
(i)The mother and supervisor are to collect the children from the Town D store; and
(ii)The maternal grandmother is to collect children from Town E McDonald's carpark.

(g)the children's time with the mother be suspended on one fortnight in the long summer holidays to facilitate travel and/or holidays with the father (meaning they will be in the father’s uninterrupted care for up to three weeks) upon the father providing the mother with not less than 45 days’ written notice of such time, and with such time not to occur on 24 to 26 December;
(h)upon providing not less than seven days’ notice in writing, the children's weekend time with the mother may be missed as long as make up time is organised as soon as practicable within the following six weekends, to facilitate the children's engagement in social and/or sporting activities;
(i)the mother shall solely meet all costs of and related to the supervision of the children's time with her;
(j)the mother shall not be affected by alcohol levels exceeding 0.05 in the eight hours prior to spending time with the children and shall not consume alcohol during her time with the children;

4.With respect to the telephone/face time calls referred to in paragraph 3(a) the maternal grandmother is permitted to remain in the vicinity and shall terminate the communication in the event:
(a)inappropriate adult issues are raised by the mother;
(b)the mother becomes distressed, angry and/or abusive during the communication in a manner that is likely to cause the children distress;
(c)the children or either child becomes distressed and cannot be soothed by the mother.

5.The father spend time with the children at times agreed between him and the maternal grandmother subject to these times being in conflict with times spent with the mother pursuant to these orders. The father’s work schedule and location are not static or known. The maternal grandmother and father co-operate, and the children wish to spend time with the father. The maternal grandmother and father can facilitate that time.
6.The maternal grandmother and father do all such things and sign all such documents to request and authorise the school at which the children attend from time to time to provide copies of all reports, notices, information, newsletters, photographs, invitation to parent teacher interviews and other information relating to the children's or either child's education to the mother and this order shall act as authority for this purpose;
7.The parties shall immediately inform each other of any serious illness and/or injury suffered by the children or either of them whilst in their care and provide all available information related to treatment received.
8.The father and the maternal grandmother have liberty to provide a copy of these orders to any school and/or medical practitioner the children may attend.
9.The parties keep each other informed of any change of address or telephone number within seven days.
10.The parties communicate any changes to the parenting arrangements in writing via text message or email.
11.The maternal grandmother, father and mother, their servants and agents, be and are hereby restrained by injunction from:
(a)denigrating any of the other parties and/or a member/s of their family and/or household in the presence or hearing of the children or either of them;
(b)using any form of inappropriate discipline on the children, including physical discipline;
(c)discussing these proceedings in the presence or hearing of the children; and/or leaving any documents and/or information relating to these proceedings in a manner that children may access;
(d)exposing the children, whether directly or indirectly, to family violence.

12.The parties be permitted to provide to any court hearing any matter involving the father/mother/maternal grandmother, such as the Magistrates' Court of Victoria, copies of the Family Report of Dr F dated 23 March 2021, updated Family Report of Dr F dated 1 November 2022, the psychiatric report of Dr G dated 25 June 2021, any affidavits filed in these proceedings, a copy of Final Orders made in these proceedings and if a final judgement by the Honourable Justice McNab is made, a copy of the reasons for judgement.
13.That pursuant to section 68B of the Family Law Act 1975 (Cth) the mother either personally or by her servants or agents be restrained by injunction from the following:
(a)Attending or going within 200 metres of AJ School or any other school or after school care the children attend;

without the written consent of the maternal grandmother and save as expressly provided for by these orders.

THE COURT DECLARES THAT:
14.Pursuant to ss 7 and 11 of the Australian Passports Act 2005 (Cth) and the Court being satisfied that it is not practicable to obtain the consent of the respondent mother to enable the children of the relationship X born 2009 and Y born 2011 to obtain an Australian Passport to travel internationally, the Court makes the following orders:

THE COURT ORDERS THAT:
15.The maternal grandmother and father of the children of the relationship X born 2009 and Y born 2011 be permitted to apply for an Australian Passport to enable the children to travel internationally notwithstanding that the mother of the children has not signed the passport application form and furthermore the said children be permitted to travel internationally without the permission of the respondent mother.
16.The respondent mother’s Application in a Proceeding filed 6 September 2023 be dismissed.
17.The ICL explain the orders to the children and upon satisfaction of the order the ICL be discharged.

PROPERTY
1.Sixty days after this Honourable Court has made a determination on any costs application in these proceedings further to Order 11, the father make a cash payment (the Payment) to the mother of $497,315.19 which is 37.5% of the net assets of the parties excluding superannuation, less $20,778.56 being the mother’s 50% share of payments made or that will be made by the father on the mother’s behalf as listed in paragraph 3, with such payment amount to be adjusted in accordance with any determination of costs;
2.The father retain the following sums, and there be a corresponding reduction in the entitlement the mother would have had in accordance with this order:
(a)the sum of $550 being the mother’s 50% share of the costs of the Super Fund 5 valuation made by Court Orders dated 8 September 2021 at paragraph 10;
(b)the sum of $472.50 being the mother’s 50% share of the costs of the Form 6 Applications for the Super Fund 1 and Super Fund 4 obtained in relation to the valuation of Super Fund 1 and Super Fund 4 by Super Fund 5 in accordance with Court Orders dated 8 September 2021 at paragraph 10;
(c)The sum of $935 being the mother’s 50% share of the costs of the H Group valuation made by Court Orders dated 8 September 2021 at paragraph 12;
(d)The sum of $495 being the mother’s 50% share of the costs of the H Group valuation made by Court Orders dated 14 December 2020 at paragraph 24;
(e)The sum of $6,082 including GST being the mother’s 50% share of the costs of the updated Family Report by Dr F, plus the provision of interest on the costs of this report from 28 March 2022 being at the rate pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), payable at the time this payment is payable, in accordance with the Court Orders dated 28 March 2022, and Rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth);
(f)The sum of $12,244.06 to J Pty Ltd being the sum owed by the mother to her former solicitor K Lawyers for her outstanding legal fees.

3.That contemporaneously with the Payment:
(a)The father withdraw the caveat he lodged over the property situate at L Street, Suburb M, Region AK being the whole of the land more particularly described in the Certificate of Title Volume … Folio … (the City N Apartment) with the father to pay the requisite PEXA fees, registration fees and any other legal fees with respect to the withdrawal;
(b)The mother do all such acts and things and sign all such documents to facilitate the withdrawal of caveat by J Pty Ltd to be registered, with the mother to pay the requisite PEXA fees, registration fees and any other legal fees with respect to the withdrawal;
(c)In the event that either party fails to sign and do all things necessary to engage and enable the withdrawal of caveat to be registered in paragraphs 4 (a) (b) to occur within 30 days of the date of these orders, pursuant to section 106A of the Family Law Act 1975 (Cth), the non-defaulting party may sign and do all things necessary in the place of the defaulting party.
(d)The mother do all such acts and sign all such documents as may be required to transfer to the father at the expense of the father all of her right, title and interest in the City N Apartment (the Transfer);
(e)In the event that either party fails to sign and do all things necessary to engage and enable the transfer of land in paragraph 4 (d) to occur within 40 days of the date of these orders, pursuant to section 106A of the Family Law Act 1975 (Cth), the non-defaulting party may sign and do all things necessary in the place of the defaulting party.
(f)The parties do all such things and sign all such documents so as to transfer or assign the lease in respect to the real property situate at and known as L Street, Suburb M, Region AK being the whole of the land more particularly described in the Certificate of Title Volume … Folio … (the City N Apartment) currently between Ms Daley, Landlord and the tenants of the City N Apartment into the name of Mr Daley as Landlord and the current tenants of the City N Apartment;
(g)In the event that either party fails to sign and do all things necessary to engage and enable the transfer or assignment of lease in paragraph 4 (d) to occur within 40 days of the date of these orders, pursuant to section 106A of the Family Law Act 1975 (Cth), the non-defaulting party may sign and do all things necessary in the place of the defaulting party.
(h)That after the completion of the Transfer, the father indemnify the mother against all payments and liability pursuant to all apportionable rates, taxes and outgoings of or with respect to the City N Apartment of whatsoever nature or kind.

4.That from the date of these Orders and pending the Payment and Transfer of the City N Apartment:
(a)The mother have the sole use and occupation of the City N Apartment and during such right of occupation the mother pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the City N Apartment as they fall due;
(b)The mother ensure that the current utilities such as gas, water and electricity are maintained during such right of occupation and she wholly indemnify and keep the father indemnified in relation to any outstanding rates, gas, water and electricity, or mortgage and tax payments during her time of occupation;
(c)The parties hold their respective interests in the City N Apartment upon trust pursuant to these orders;
(d)The mother must ensure adequate home and contents insurance is maintained for the City N Apartment;

5.The father retain his right, title and interest in the following property to the exclusion of the mother (including choses in action):
(a)In the real property situate at and known as O Street, Suburb P (the Suburb P Property) being the whole of the land more particularly described in Certificate of Title Volume … Folio …;
(b)The Commonwealth Bank Account ending …59;
(c)The Commonwealth Bank Account ending …67;
(d)The Commonwealth Bank Account ending …36;
(e)The Commonwealth Bank Account ending …99;
(f)All shareholdings in the father's sole name;
(g)All superannuation accounts in the father's name including in his Super Fund 1 fund, save for as provided for in Order 10 below regarding the Super Fund 2.

6.The mother retain her right, title and interest in the following property to the exclusion of the father (including choses in action):
(a)Her National Australia Bank Account ending …88;
(b)Her Q Bank Account ending …85;
(c)Her Commonwealth Bank Account ending …91; and
(d)ZZ Shares held in the name of Ms Daley on trust for Y and X.

7.The father wholly indemnify the mother and keep the mother wholly indemnified against all payments and liability pursuant to the Commonwealth Bank Mastercard Credit Card ending …53 and the mortgage to the Commonwealth Bank, Loan Account ending ...99 secured against the Suburb P Property.
8.The mother wholly indemnify the father and keep the father wholly indemnified in relation to all actions, claims, suits and demands as may be made against him in relation to the Commonwealth Bank Mastercard Credit Card ending …27.
9.There be an equalisation of superannuation entitlements accrued by the parties during their marriage, over the period 30 November 2008 to 20 November 2020 as follows:
(a)Orders 10 (b) to (f) inclusive are binding on the trustee of Super Fund 2.
(b)A superannuation splitting order be made in relation to the interest of the father in the Super Fund 2.
(c)The base amount of $105,000 be allocated to the mother out of the interest of the father in the Super Fund 2 (Base Amount).
(d)Whenever a splitable payment in respect of the superannuation interest of the father is payable in the Super Fund 2:
(i)under section 90XT(1)(a) of the Family Law Act 1975 (Cth), the mother be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the Base Amount; and
(ii)there be a corresponding reduction in the entitlement of the person to whom the splitable payment would have been made but for this order;

(e)Order 10 (d) have effect from the Operative Time;
(f)For the purpose of order 10 (e), the Operative Time is four business days after the date of service of these orders on the Trustee of the Super Fund 2.

(g)The father make a cash payment to the mother, in the sum of $147,815 in lieu of superannuation.

10.Unless otherwise specified:
(a)each party be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at the date of these orders;
(b)monies standing to the credit of either party in any bank accounts registered in their respective names either solely or held together with another individual will remain the sole property of the party named on the account;
(c)benefits under any frequent flyer or other rewards points system will remain the sole property of the party named on the account;
(d)each party foregoes any claim they may have to any employment benefits belonging to or earned by the other;
(e)all insurance policies remain the sole property of the owner named thereunder;
(f)either party forgoes any claim they may have to the other's inheritance;
(g)each party be solely liable for and indemnify the other against any liability encumbering any asset(s) to which that party is entitled pursuant to the orders; and
(h)any joint tenancy in any real or personal property is otherwise expressly severed.

11.The grandmother and father file submissions regarding costs both in terms of liability and quantum within 21 days of these orders and;
12.The mother file any submissions in response by 19 January 2024.

NOTATIONS
A.In accordance with section 65DAE of the Family Law Act 1975 (Cth), the maternal grandmother may make all day-to-day decisions for the children while they are in her care including, but not limited to, the children’s attendance at school or school related activities and extra-curricular activities or social events and general medical appointment and treatment.
B.In accordance with section 65DAE of the Family Law Act 1975 (Cth), the father may make all day-to-day decisions for the children while they are in his care including, but not limited to, the children’s attendance at school or school related activities and extra‑curricular activities or social events and general medical appointment and treatment.
C.Pursuant to Section 81 of the Family Law Act 1975 (Cth) the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

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 pseudonyms Franco & Daley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McNab J
INTRODUCTION

These proceedings concern property and parenting issues. The parties are the mother aged 48 years, the father aged 53 years and the maternal grandmother aged 73 years. The children of the parents are X born 2009 aged 14 years and Y born 2011 aged 12 years. The proceedings commenced as a parenting application made by the grandmother filed on 15 September 2019.
The parents married in 2008 and separated on 20 November 2020. Whilst it is disputed by the mother, it is the maternal grandmother's (“the grandmother”) evidence that Y has lived with her from about late 2012 until about January 2018 and then from November 2019 and continuing. It is the grandmother’s evidence that X spent significant time with her before he commenced living with her in 2016. There have been times, for instance, in about January 2018, that the children lived with the parents in City N from about January 2018 to November 2019. During this period, the children spent time with the grandmother during school holidays. Since November 2019 both children have resided with the grandmother. For reasons outlined below, where there is a dispute between the evidence of the mother and any other party, I prefer the evidence of the other party. The grandmother and father have a cooperative relationship. There is no cooperative relationship between the mother and the grandmother or father.
BACKGROUND
The parents married and commenced cohabitation in late 2008 in Suburb R. The father has been employed in a government department since mid-2003 and in that employment has been regularly posted overseas. He has spent substantial time in postings in places that are quite dangerous and are considered hardship posts. At the commencement of the relationship the mother was working for the Australian Defence Force. The mother gave evidence she was employed as a professional around 2010 and in her affidavit evidence, filed on 11 December 2020, she noted she was a professional working part-time in a government department.
After the parents married, the father was posted to City S from 2009 - 2012. Initially the mother remained in Australia as she was pregnant with X. The father returned to Australia for the birth of X for six weeks and subsequently after about eight weeks the mother joined the father in City S with X. The grandmother joined the parents in City S for about three months to assist. Whilst the parents lived in City S they had the assistance of a full-time nanny, maid and driver. The mother commenced full-time employment in City S about six months after the birth of X. The mother returned to Melbourne for the birth of Y as did the father who remained in Australia until about late 2011. The mother and both children returned to Country T in about early 2012 and remained there until the conclusion of the posting in about mid-2012. The mother recommenced full-time employment and the parties had the assistance of a nanny, maid and driver however both parents were involved in the care of the children.
In mid-2012 the father was posted to Brisbane. The grandmother gives evidence that Y commenced living with her full-time from August 2012 and says that the mother chose for the child to live with the grandmother as she could not cope with both children. The grandmother deposes that X started living with her in about 2016, with the grandmother reporting that he was unsettled and disruptive at school in Brisbane. X attended a school near the grandmother’s residence from mid-2016. In about December 2018 the parents purchased a property in Suburb U, City N and the children relocated to City N to live with the parents from that time, with the children attending schools in City N. The children spent school term and long summer holidays with the grandmother.
In early 2019 the father commenced an 18-month posting to Country V with two months in country and one month in Australia. In September 2019 the children relocated to Victoria to live with the grandmother. The children were enrolled in the W School and have remained living with the grandmother.
The mother disputes the times that the children have spent with the grandmother and the reasons for them living with the grandmother. She says that the child Y did not live with the grandmother in 2012 and that the time spent with the grandmother was intermittent. She says that the time that Y in fact spent with the grandmother was from about September 2016 and February 2017.
The documents tendered by the mother from the Z Childcare Centre in Brisbane confirm the father’s evidence that X lived with the mother and father in Brisbane and attended that childcare centre every weekday in 2014 until starting school in 2015. The father tendered documents from a childcare centre in Suburb BB, Victoria, which show Y attending that childcare centre (which was nearby to the grandmother’s house in Suburb P) from 2012 to 2016. Mr Daley gave evidence, which was confirmed by the grandmother, that both children lived with the grandmother from 2016 to 2018. I accept the evidence of the father and grandmother in this regard.[1]
[1]Father’s trial affidavit 19 January 2022 at [71]-[77] Court Book (“CB”) 1191.
It is agreed that the children resided with the mother in City N from about January 2018 to September 2019. The father had been relocated to Melbourne and the children returned to live with the grandmother in about September 2019 and commenced schooling at the W School as noted above. The children have remained in her care since that time.
In mid-2020 an application was made by the police for an intervention order with the grandmother and children named as affected family members and the mother as the perpetrator. A short time later a Final Intervention Order was made against the mother on a without admissions basis, with the grandmother and children named as affected family members. Those orders operated until late 2020.
The Magistrate dealing with the interim IVO application requested the Department of Health and Human Services (“DHHS”) furnish a report regarding the safety and wellbeing of the children. The report dated 17 June 2020 states inter alia:
the children appeared well looked after by their maternal grandmother. [The mother] is not concerned too much about the MGM’s care but with the level of influence she has had on her children….
There is no evidence that [the children] could be at risk of significant harm in the care of their mother. [The mother] plans to resume caring for the children once [the father] returns [from Country V]. Furthermore, [the mother] has informed child protection workers that she is not intending to take the children into her care until she relocates to [Suburb P], Victoria sometime in [mid/late] 2020.
Child protection does not have evidence that [the mother] poses any immediate risk or danger to her children. It therefore follows that [the mother’s] relationship with her children needs to be promoted and supported given that she intends to have their full care in future.
[The father] is opposed to the idea that the children should be moved from the current care with the grandmother. He has intended that if [the mother] removes them from her care, he will consider legal action.
In September 2020, the grandmother issued an application in the Federal Circuit Court for parenting orders. On 24 September 2020 the Department of Health and Human Services issued a report pursuant to s67Z of the Act. That report notes in relation to the children:
Both [the children] were interviewed [in] 2020. [X] said we used to stay just the two of us and Mum, Dad used to come but not as much. [X] stated that Mum used to get drunk, and she would change her attitude, from being happy to angry, she would hit us on the face with a wooden spoon. [Y] said this made her uncomfortable, angry and sad. [X] added that Mum used to buy us junk food when she is moody, and when drinking her friends would come to the home. [Y] said mum used to leave us alone, and come about 12:00 midnight, sometimes sleeping the whole night and I would feel scared. She would say she was at the pub and would come back in the morning. Sometimes a babysitter would come but mum would fight with babysitters. When they had contact with Mum the previous week, their aunt, [Ms CC], was supervising. [X] said it was strange that her attitude had suddenly changed as she didn't hit us anymore. [Y] stated that she fears going back to [City N] because mum bashes us. [X] stated that mum would give us medication to make us sleep, and you would feel drowsy. She last gave us the tablet in [mid] 2019. [Y] advised that if mum doesn't get angry and violent, I am fine with her coming to see us. [X] said I want to live with Nan. Mum can come and see on weekends, but she has to make appointments. If we see her in public, we are afraid because she may take us to [City N]. [X] stated that me and [Y] would like to stay with nan, we feel safe, and she cares for us.
Under risk assessment the report stated inter alia:
Since the children have been in [the grandmother’s] care, the children have been attending the same school in [Town E], which has provided them with a sense of stability that they previously had not had. Furthermore, [the grandmother] has continued to act protectively and in the children’s best interest to protect them from further harm. [The father] has also expressed his wishes, which clearly articulate that he wants the children to remain in the care of their grandmother, … Both [X] and [Y] have articulated their views, wishes and concerns, and these are clearly that they want to reside with their grandmother, and continue to have regular contact with their mother.
On the first return of the matter before Judge Carter (as she then was) on 14 December 2020 orders were made for the children to live with the grandmother and spend time with the mother each alternate weekend with the time supervised by Ms CC or Mr DD. Orders were also made for the parties to attend upon Dr F for the preparation of a family report.
Following the release of the Family Report on 23 March 2021 and a Psychiatric Report from Dr G on 25 June 2021, orders were made by the Senior Judicial Registrar on 26 July 2021 for the grandmother and father to have equal shared parental responsibility for education, medical and allied health matters. On 8 September 2021 (as amended 14 September 2021), the Senior Judicial Registrar made orders for the mother to have professionally supervised time with the children. On 21 December 2021 a Senior Judicial Registrar made orders specifying the supervised time for four hours on 24 December 2021 and at other time as agreed between the parties and in conjunction with the supervision service.
On 9 February 2022 Judge Carter made orders discharging all previously ordered supervised time and made orders for the children to spend supervised time with the mother for up to three hours once per fortnight on a Saturday. On 1 August 2022 (as amended 11 August 2022) a Senior Judicial Registrar made orders giving the grandmother and father liberty to enrol the children in a school as agreed by them and requiring them to inform the mother of that decision.
PROPOSALS
In substance, the grandmother seeks orders that:
(a)she and the father have equal shared parental responsibility for the children except as and when the father is outside the jurisdiction of Australia or not immediately contactable and then the grandmother have sole parental responsibility;
(b)that the children spend professionally supervised time with the mother for six hours (daytime) every third weekend or on Mother's Day for three hours and for no more than six hours during the Christmas period;
(c)that there be restraints on the mother attending the children’s school.
The father seeks orders largely in line with the grandmother, seeking orders for joint parental responsibility with the grandmother and limited professionally supervised time with the mother. Those orders are supported by the Independent Children’s Lawyer (“ICL”).
In substance, the mother seeks orders that she and the father have equal shared parental responsibility, the children live with her and spend time with the father in a shared care arrangement when he is residing in Australia; and the children spend one weekend per month with the grandmother or such additional time as agreed between the mother and the grandmother.
THE COURSE OF THE TRIAL
At the commencement of the trial on Monday 31 July 2023, counsel for the mother sought an adjournment of the hearing on the basis that he had returned from an overseas holiday on the Tuesday prior to the commencement of the hearing and requested more time to prepare for the hearing. That application was refused. The matter ran from 31 July – 2 August 2023 and was adjourned to resume on 10 August 2023. On 10 August 2023 counsel and solicitors for the mother sought leave to withdraw on the basis that the relationship between the mother and her legal representatives had irreconcilably broken down and that the mother was refusing to follow advice. Leave to withdraw was granted further to orders of 10 August 2023. The mother proceeded unrepresented from 10 August 2023 and made an application for an adjournment which was refused.
EVIDENCE
The grandmother relied upon:
(1)Further, Further, Further Amended Application filed 14 July 2023;
(2)Trial affidavit of Ms Franco filed 14 July 2023;
(3)Affidavit in reply filed 31 January 2022;
(4)Trial affidavit filed 20 January 2022;
(5)Affidavit of Ms CC filed 19 January 2022;
(6)Affidavit of Dr EE filed 23 December 2021;
(7)Affidavit of Dr FF filed 22 July 2021;
(8)Affidavits of Dr F filed 4 November 2022 and 20 August 2021;
(9)Affidavit of Dr G filed 7 July 2021.
The mother relied upon:
(1)Further, Further Amended Response to Initiating Application and Outline of Case filed 26 July 2023 by the mother;
(2)Trial affidavit of the mother filed 26 July 2023;
(3)Affidavit of Ms GG filed 25 July 2023;
(4)Affidavits of Mr JJ filed 11 May 2023, 7 October 2022, 19 January 2022, 7 September 2021 and 27 August 2021;
(5)Affidavits of the mother filed 26 October 2022, 3 February 2022, 10 September 2022, 23 August 2022, 27 July 2022, 27 August 2021, 9 June 2021 and 14 December 2020;
(6)Affidavit of Ms HH filed 10 October 2022;
(7)Affidavit of Mr KK, Victoria Police, filed 15 July 2022;
(8)Affidavit of Dr LL filed 8 April 2022, 8 November 2021 and 8 September 2021;
(9)Affidavit of Ms Franco filed 23 November 2020 by the applicant grandmother.
The father relied upon:
(1)Third Further Amended Response to Initiating Application for Final Orders filed 14 July 2023;
(2)Trial affidavit filed 14 July 2023;
(3)Financial statements filed 14 July 2023 and 19 January 2022;
(4)Affidavits of Ms HH dated 14 July 2023, 20 March 2023 and 22 July 2022;
(5)Further Amended Application for Final Orders filed by the applicant grandmother on 31 January 2022;
(6)Affidavits of applicant grandmother filed 31 January 2022 and 19 January 2022;
(7)Affidavits of the father filed 26 January 2022 and 20 January 2022;
(8)Amended Application for Final Orders filed by the applicant grandmother on 19 January 2022;
(9)Amended Response to Final Orders filed by the second respondent father on 19 January 2022;
(10)Affidavit of Mr MM, H Group filed 14 January 2022;
(11)Affidavit of Mr NN, AH Pty Ltd filed 12 January 2022;
(12)Affidavit of Ms OO filed 12 January 2022;
(13)Affidavit of Dr EE filed 23 December 2021;
(14)Affidavit of Dr F filed 4 November 2022 and 20 August 2021;
(15)DFFH S67Z Response to Notice of Risk filed 7 July 2021;
(16)Affidavit of Dr G filed 7 July 2021;
(17)Notice of Risk filed 2 December 2020 by the second respondent father;
(18)DFFH S67Z Response to Notice of Risk dated 24 September 2020;
(19)Notice of Risk filed by the applicant grandmother on 15 September 2020;
(20)DFFH Report filed 17 June 2020.
The ICL relied upon:
(1)Affidavits of Ms HH filed 13 July and 20 March 2023, 31 January 2022, 8 November and 7 September 2021;
(2)Affidavits of Dr F filed 4 November 2022 and 20 August 2021;
(3)Affidavit of Dr G filed 7 July 2021;
(4)Outline of Case filed 8 February 2021;
(5)DFFH Report filed 17 June 2020;
(6)DFFH s 67Z Response filed 7 July 2021 and 24 September 2020.
PARENTING PROCEEDINGS LEGAL PRINCIPLES

Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
EVIDENCE
There is a very significant body of evidence that has been filed. There are numerous medical reports which have been filed in relation to the mother's mental health. Those reports have been comprehensively summarised in the family reports prepared by Dr F. Whilst the mother has been vehemently critical of Dr F and her reports and her written and oral evidence, no challenge was made to the admissibility of those reports by counsel for the mother and there was very little by way of cross-examination on the contents or the conclusions reached and the recommendations made by Dr F by counsel for the mother.
Dr F prepared two family reports with addendums: a report of 23 March 2021 with an addendum of 6 July 2021 and 4 August 2021 and a further family report of 1 November 2022. For the purposes of the first report Dr F interviewed each of the parents, the grandmother and the children. She conducted psychometric tests on each of the adults.
In the first Family Report Dr F gave an account of her impressions of the mother summarised as follows:
Assessment of [the mother] found a woman with an unusual presentation. She appeared keen to provide a positive impression but gave an account that was often contradictory. She seems to have a history of complicated and chaotic relationships. She makes frequent complaints about others as being responsible for her difficulties. Her presentation was strongly suggestive of an individual with some chronic, difficult personality features. I support a psychiatric assessment but suspect that treatment options are likely to be limited.[2]
[2]Dr F, Family Report dated 23 March 2021 at page 38 of 52, CB 1720.
The report of Dr F canvassed the views of the children and their experiences of living with the mother in City N in 2017 – 2019.[3] Dr F made the following assessment:
My assessment suggests that the children have a strong and trusting relationship with their maternal grandmother and father, but that [the father] is not always physically, emotionally, or psychologically available.
There appears to be some risks from the children’s exposure to their mother’s personality features which on my assessment of her are likely to include some inconsistent moods, difficulty getting on with others (and the model this provides to the children), and variable responsiveness to their needs.
It is for the court to determine the risks about physical abuse, lack of supervision, alcohol abuse and other allegations facing [the mother]. However, children raised by parents with difficult personality features tend to have a range of psychological difficulties over their lifetime related to poor attachment and reduced self-esteem and identity development.
In relation to the children’s time with their mother, I recommend that until a psychiatric assessment provides some clarity, the children are likely to require some monitoring and supervision, if only to motivate [the mother] to manage her behaviour. To avoid the children experiencing even more conflict, a formal supervision service is recommended.
I cannot make any further recommendations until there is a determination by the Court on the allegations of risk to the children.[4]
[3]Dr F, Family Report dated 23 March 2021 at page 26 of 52, CB 1708 – 1709.
[4]Dr F, Family Report dated 23 March 2021 at page 39 of 52, CB1721 of 6294.
In accordance with the recommendations, a psychiatric report was obtained in relation to the mother from Dr G and this report is dated 25 June 2021. Dr G was not required for cross-examination in relation to his report.
Dr G's report contains a comprehensive summary of the evidence that was then available about the mother's conduct and her responses. He surveys the available psychiatric reports in relation to the mother including a report of Professor PP which was dated 6 December 2005. In regard to this Dr G stated the following:
3.Perusal of [the mother’s] past psychiatric history is strongly suggestive of a mood-related psychiatric condition. She was assessed by [Professor PP], a known Expert in mood disorders, and the history is quite clearly consistent with such a disorder as described and noted by him dating back to her teenage years whereby she was noted to experience episodes lasting several days during which she might drink to excess, would be sexually more active, energetic, talkative and very bubbly interposed with periods where she was quite down, felt fearful, helpless and hopeless. She would also have emotional outbursts and become inappropriately irritable, saying it was difficult for her workmates at times because on the one hand she would want to be close and interacting interpersonally with them, and on the other hand would be very defensive about herself, and had experienced further depression in the year of the assessment. Such symptoms and behaviours have been described by [the father] and also the Maternal Grandmother in identical form which strongly suggests that [the mother] does have an untreated psychiatric condition which she is unaware of or denies completely. Certainly at interview she was dismissive of such suggestions, noting however that during her time in the [Australian Defence Force], concerns were raised about her to similar effect, resulting in what appear to be disciplinary proceedings, and it was formally recommended that she should show cause why she should not be placed on a formal warning for a period of twelve months with further comments in the ‘redress of grievance update’ document. ‘Her behaviour and performance […] both pre-deployment and during deployment strongly suggest to me that she had no place in the [Australian Defence Force] and I have considered recommending that her commission be terminated.’
4.Throughout her account, [the mother] impressed as having little awareness of matters or had simply put them out of her mind. In either case she impressed as having little insight into what appears to be an ongoing untreated psychiatric condition which has serious implications for her ability to manage, live with and care for the children safely.[5]
[5]Dr G, Psychiatric Report dated 25 June 2021, page 16 of 17 at [3] – [4], CB 1795.
Dr G diagnosed the mother with an untreated mental health condition and possible personality disorder.
Dr G's account of the mother's demeanour and her conversational style and approach accords with the impression that I gained of the mother in the witness box. The mother presents as keen to cooperate or appear to be reasonable then conducts herself or gives a response which is entirely uncooperative.
The mother would also adopt the approach of not admitting or actively denying something and requiring proof of the matter before acknowledging the truth of the allegation. This was even the case when she was referred to emails and text messages she had written and sent. An example of this is that she initially denied that she ever claimed that the father and the grandmother were in a sexual relationship. When her own affidavits and correspondence were presented to her which stated that the grandmother and father were in a “romantic liaison,”[6] or where she alleged that the father and the grandmother were sleeping in the same bed, she initially denied that she had claimed that there was a relationship between the father and the grandmother. In the witness box she instead claimed that the grandmother and father cohabit or are in a symbiotic relationship. The fact is that the mother has alleged in her affidavit material and has repeated to Dr F that she believes that the father and the grandmother are in a sexual relationship.
[6]Affidavit of the mother sworn 19 January 2022 at [144], CB 777.
I accept the observations of Dr G and the evidence of the grandmother, the father and the mother's sister Ms CC that the mother has a highly conflictual style of communication and is often in conflict with people that she deals with, both within her family and outside of her family.
This pattern has emerged through her professional life in the Australian Defence Force as outlined by Dr G. Latterly, the school attended by the children has engaged solicitors to correspond with the mother, such is the frequency and vehemence of her communication. The evidence from subpoenaed documents from the school[7] sets out the mother’s very hostile tone in dealing with the school and individual teachers.
[7]Exhibit A2 CB 5153 – 5154.
The father gives evidence of the mother's conduct over the years where the mother's behaviour was raised within foreign embassies where they were stationed, particularly after the mother had been drinking alcohol. There is also evidence of conflict between the mother and professional supervisors some of which is set out at [64] – [66] below. Whilst the mother may characterise that conflict as an expression of the level of frustration that she feels as a result of being burdened with what she regards as a completely unreasonable requirement that she has her time professionally supervised, again her behaviour goes beyond ordinary frustration. By way of example, I refer to correspondence from Ms HH[8] which is attached to the father's affidavit of 20 January 2022. Another supervisor (RR Contact Services) also withdrew their services because they refused to deal with the mother.[9] The mother has subjected the ICL and supervisors with numerous emails. The ICL in correspondence states that they had received over 100 emails in a month. The father sets out some of the text messages received from the mother as recently as 12 June 2023.[10] The texts are very lengthy, incoherent and raise questions about the mother's mental health.
[8]Exhibit A2, CB 1486.
[9]Exhibit PS 5 to the affidavit of Mr Daley filed 20 January 2022, CB 1265.
[10]Affidavit of the father filed 14 July 2023 at [50] – [52], CB 1455 – 1456.
The Mother’s Case
The mother asserts that she is the best parent for the children, with the grandmother being too old aged 73 years and having health issues and the father being an absent parent. There was no evidence presented which affirmed that the grandmother is not able to care for the children because of her age or ill health. The father has taken overseas postings during the relationship but most of these were undertaken with the mother and the children, or the children were left in the care of the grandmother. The mother made accusations that the father and grandmother were in some sort of sexual relationship, both in her affidavit and in her reports to the Family Report Writer which has been addressed above at [38].
The mother repeatedly asserted that the father was an instigator of violence by giving the oldest child a bruise on his face, which was attributed to her, and that he was an absent parent, being out of the country for extended periods of time. The cause of the bruise does seem to have been initially attributed to the mother, and the child explained there had been an incident where the father had accidentally bruised the child’s face, but the mother had difficulty accepting this, instead steadfastly using this information to affirm that she had been wronged by the system.
The mother relies heavily on the initial DHHS Report which is referred to at [11] above dated 17 June 2020.
In relation to her own mental health the mother relied on affidavits from her treating psychiatrist Dr LL and psychologist Dr JJ in support of the proposition that she did not present any risk to the children and that supervised time was unwarranted.
The Father’s Case
The father broadly supports the parenting orders sought by the grandmother which provide for the children’s time with the grandmother to be supervised. The father states the mother exhibited what he regarded as paranoid and delusional behaviour throughout the marriage and that she was often in conflict with him and others. The daughter had spent most of her life in the care of the grandmother and after both children spent time living with the mother in City N through 2018 – 2019 and his concerns were such that he arranged for the grandmother to take care of the children just prior to the mother's and father's separation. He makes mention of reading the reports of supervisors as part of supervised visits between the mother and the children, and that he recognised incidents reported of the mother's behaviour to be indicative of adverse behaviour he had experienced with the mother during their time together:
Having read this email from [the supervisor] and her observations describing [the mother’s] behaviour, I hold concerns for [the mother’s] mental health. [The mother] suggests that an independent supervisor is colluding against her. This is similar to the paranoid and delusional behaviour I observed [the mother] to engage in during our marriage.[11]
[11]Father’s trial affidavit filed 14 July 2023 at [28].
He further notes:
Without the additional level of safety and security of having a professional supervisor, I hold fears that [the mother] will continue to fail to regulate her own emotions and control her anger. There is an unacceptable risk that our children will continue to be victims of her verbal abuse and her attempts to denigrate [the grandmother] and undermine their relationship with her. The fact that [the mother’s] behaviour in front of a professional supervisor has led to a supervised visit being terminated as recently as [mid] 2023 due to [the mother's] behaviour and then the service withdrawing [a month later] because of [the mother’s] hostility towards [the grandmother’s] and attempts to embroil the service in the conflict, raise very serious concerns about the behaviour the children would be exposed to without a supervisor there.[12]
BEST INTERESTS – PRIMARY CONSIDERATIONS
Section 60CC(2)(a)
[12]Father’s trial affidavit filed 14 July 2023 at [29].
The Benefit of the Child having a Meaningful Relationship with Both Parents
The observations made by Dr F of the children’s interactions with their mother, in her report dated 23 March 2021, noted that the mother was warm and loving towards her children and that her approach in that observation session was “reasoned and calm.” At page 34 of that report Dr F states that the children’s behaviour with their grandmother, father and mother were “trusting and confident” and that:
The affection that that the children showed for their grandmother, father and mother was manifested in all their interactions with them. [The children] also appeared confident that each caregiver would respond to them with, kindness and love.
Plainly, the children love each of their parents and the grandmother and wish to have a relationship with all of them. The observations of Dr F on that day occurred in a controlled setting and do not reflect day-to-day life.
I am satisfied that it is not in the best interests of the children for the mother to care for the children on a day-to-day basis because of her personality type and her lack of capacity to check herself and focus on the children. However as discussed below, the children have expressed the view that they wish to remain living with the grandmother and to spend supervised time with the mother. I do not accept that the children have been unduly influenced by the grandmother or any other person to express those views. The children are old enough to recall the experience of living with the mother and I do not accept that their views have been unduly influenced by the grandmother, the father or any other person.
The mother’s behaviour over a long period, combined, with the father’s particular circumstances as a result of his employment, have meant that for a long period the children have been in the primary care of the grandmother. The father has effectively handed over parental responsibility to the grandmother where he has not been able to co-parent with the mother. This is a case where it is in the best interest of the children for the children to have a limited relationship with the mother. In the lives of these children, it is some time since the mother was their primary carer. The orders proposed by the grandmother and father enable the children to maintain a meaningful relationship with the mother albeit a limited one. It is more likely that she will have some relationship with the children if orders are made for supervised time as opposed to the likelihood of having no relationship if some other spend time arrangements were ordered. When cross-examined, the grandmother acknowledged the bond between the children and the mother and was willing to encourage that. The mother is unlikely to encourage a relationship between the grandmother and the children because of the enmity that she feels towards the grandmother and a breakdown of that relationship would not be in the best interests of these children.
Section 60CC(2)(b)
The Need to Protect the Child from Physical or Psychological Harm from being Subjected to, or Exposed to, Abuse, Neglect or Family Violence.
The evidence in this case does not support a finding that the children will be exposed to risk of abuse or neglect in the care of the grandmother and father. The children are old enough to protect themselves from physical risk. The risks in this case arise from the mother’s personality type, her quick changes in temper and unpredictability in relation to her responses. The children wish to have a relationship with the mother, but also wish to be protected from the risk of becoming embroiled in the highly charged conflict that she engages in with the grandmother, the father and third parties including school staff and medical professionals.

From the mother’s perspective, her behaviour is simply a response to the situation she has found herself in, where she is only seeing her children for limited times in an unsupervised setting, where she believes that she has lost her children to the grandmother as a result of an arrangement between the father and the grandmother. The evidence, including the employment and health records referred to by Dr G supports a finding that the mother’s difficult behaviour has been longstanding and that the children have a limited capacity to deal with that whilst trying to get on with their own lives.
In relation to risk, the mother's case is that her behaviour presents no issue of risk to the children or indeed to anyone else. She places heavy reliance on the DHHS report dated June 2020 which has been referred to above at [11]. That report stated that there was no evidence that the children could be at significant risk in the care of their mother and that the relationship between the children and their mother needs to be promoted so that she could resume caring for them, as she intended to have their full-time care in the future.
The opinions expressed in the June 2020 report have to be viewed against the subsequent, more detailed reports from the Department and the evidence generally. When cross-examined by counsel for the mother, Dr F, referred to the June 2020 report as a “relatively superficial examination”[13] it is self-evidently a brief initial report prepared for the purposes of a hearing in the Magistrates’ Court.
[13] Transcript p 6 at line 31.
The s 67Z response from the Department dated September 2020[14] sets out the notes of the interviews conducted with the children for that report. That report noted:
[14]CB 1797.
… [The grandmother] stated that both children started by coming for holidays, and each time they returned from their mother’s, they would cry. When she asked them, they said she was drinking a lot and giving them tablets. [The grandmother] stated that [the mother] has been violent towards the kids, and that the kids told her that Mum used to smack them with a wooden spoon. [The grandmother] stated that the kids said, ‘why do you give us back to Mum, she used to hit us with a wooden spoon’. [The grandmother] stated if the children go back to [the mother] she would hurt them, she doesn't hit them in the face but at the back. [The grandmother] said she has seen [X] with bruises. [The grandmother] stated that when [the mother] gets angry, she becomes uncontrollable'. [The grandmother] stated that [the mother] can have contact with the children if they want to do it.[15]
…
[15]Department of Health and Human Services, Report (“DHHS”) dated September 2020, CB 1798.
Risk Assessment:
There have been three reports to Child Protection this year in relation to [X] and [Y]. These reports have raised concerns around the children being physically disciplined by [the mother], and the flow on consequences of this on the children’s emotional wellbeing.
Since the children have been in [the grandmother’s] care, the children have been attending the same school in [Town E], which has provided them with a sense of stability that they previously had not had. Furthermore, [the grandmother] has continued to act protectively and in the children’s best interest to protect them from further harm. [The father] has also expressed his wishes, which clearly articulate that he wants the children to remain in the care of their grandmother [name omitted]. Both [X] and [Y] have articulated their views, wishes and concerns, and these are clearly that they want to reside with their grandmother, and continue to have regular contact with their mother.
Given that the children are currently in the care of their maternal grandmother, there is no further role for Child Protection at this time. Therefore, Child Protection recommend that [Y] and [X] remains in the care of their maternal grandmother [name omitted] on a full-time basis, to ensure their ongoing safety, stability and wellbeing. It is recommended that [X] and [Y] have contact with [the mother] on a regular basis, to ensure that both children are able to build a positive relationship with their mother.[16]
[16]DHHS, Report dated 24 September 2020, CB 1802.
In a report dated July 2021 the Department sets out notes of interviews with the children’s school principal. That report provides inter alia:
Child Protection spoke with the children's school principal [name omitted] who advised the children are very happy in the care of [their grandmother] and the school were aware there was ongoing acrimony and legal issues between [the mother] and [the grandmother]. The teachers and principal are in constant contact with [the grandmother] and held no concerns for her capacity to care for the children. They maintained a high level of academic performance and attendance. They [sic] children were always well groomed and cared for. There was also an aunt who offered support to [the grandmother] at times. The children were well engaged with school, activities and have positive social skills. They appeared to struggle with the unpredictability of [their mother]. No concerns had been noted for their behaviors and they are respectful at school. [The father] was still involved and had contact with the children on weekends, in the form of either staying with [the grandmother] on a Friday night or taking them out for the day. School raised no concerns for the presentation or health of [the grandmother]. [The grandmother] appeared well, well-spoken and active with the children. The school acknowledged that she is getting older, however no visible concerns for her health or ability to care for the kids. The MGM was open about the legal updates and how the children are going, she keeps the school well up to date and appeared to demonstrate typical parent behaviors. School believes [the grandmother] would be getting tired of dealing with the stress and unpredictability of the situation with the mother. This had worn down some staff members who needed extended leave due to the mother's actions and behaviors. The school have contacted a legal team and have them involved to navigate the relationship with [the mother] … [The school principal] advised the children appeared to get anxious around Mother’s Day and [Y] had asked 'does my mother have to come', implying she did not want the mother to come to the school. Child Protection safety planned with the school to contact Child Protection if they were to hold any significant concerns for the children to report these concerns. The case was assessed as suitable to close at intake as the follow up had indicated that [the grandmother] continued to provide a clear and appropriate level of care, support and parenting to the children and no concerns were noted for the children or [the grandmother’s] presentation. There appeared to be insufficient information to suggest that the children were at an immediate risk of harm whilst in the care of [the grandmother] and therefore Child Protection did not intervene at the time and the Family Law Court (FLC) was the best arena to make decisions regarding the long-term care arrangements for the children.[17]
[17]Department of Families, Fairness and Housing (“DFFH”), Report dated July 2021, CB 1805 – 1806.
A report of April 2022 sets out the history of nine reports on the children.[18] In relation to the then most recent report from the mother raising concerns about the grandmother's capacity to care for the children, the Department found that those concerns were unsubstantiated. The same finding was made in an earlier report dated February 2022.[19] The provision of any of these reports to Dr G or Dr F would not have materially assisted the mother's case. Dr F was cross-examined about the DFFH reports, and it did not emerge that any of the material would have impacted positively for the mother.
[18]DFFH, Report dated April 2022, CB 1809 – 1812.
[19]DFFH, Report dated February 2022, CB 1813.
The Mother’s Criticism of Dr F and Dr G
I address this subject at this time as the evidence of Dr F and Dr G is relevant to the assessment of risk. In support of her submissions that she does not present any risk to the children, the mother has been particularly critical of the evidence of Dr F and Dr G. The mother feels that the process of evaluation by Dr F and Dr G was fundamentally flawed because they failed to have regard to DHHS reports which were available at the time those reports were prepared. The mother made a wide range of derogatory and critical remarks regarding Dr F in her affidavit evidence. It was put to the mother in cross-examination by counsel for the ICL that the mother’s doubt about the Court system and the reports of Dr F were unreasonable or irrational. The mother is entitled to express doubts and concerns about the system and in particular the conduct and the use made of the opinion of child court experts. I do not regard the fact that the mother is critical of Dr F or the use of Family Reports or her criticisms of the family law system as an indication of irrationality or unfitness to parent.
In her affidavit evidence the mother was critical of Dr F including that Dr F:
… never provided a single recommendation to consider the best interests of the children … did not ask me to sign a disclosure and she rushed me through my psychometric testing, talking on the phone outside my testing room … very loudly denigrating another mother in a separate case, then refusing to let me view my results in any of my assessments. [Dr F] refused to provide me any feedback … [did not report] in the best interest of my children, nor family. I remain shocked at her recommendations that demote me and have left me on supervision paying higher than average living costs for no reason.” [20]
[20]Mother’s affidavit filed 25 July 2023, page 4 of 141 at [13] - [14], CB 429.
She states that she is “the target of repetitive criticism and conjecture again, in a failed attempt to keep me separated from my children.[21] She contends it is “[Dr F’s] recommendations alone, [which] has stopped my children being returned to my permanent care.”[22]
[21]Mother’s affidavit filed 25 July 2023, page 18 of 141 at [68], CB 443.
[22]Mother’s affidavit filed 25 July 2023, page 5 of 141 at [15 d.], CB 430.
She criticises both Dr F and the ICL because they did not step in “to adjust any court orders” which created a “silence, promoted [the grandmother] to manipulate my access via coercive control and FV.”[23] She further asserts she “was the target of [Dr F’s] reports to remove [the mother’s] access to [her] children, which permitted family violence by coercive control …”.[24] She further accuses Dr F of breaching court orders “that were handed to her by [the ICL] (initial ICL who later withdrew when I raised these same facts in court), and I sought an order against [Dr F] to repeat her findings”.[25] The mother then criticises the ICL because they “enforced supervision even though the family court reporter and DFFH found no findings against me” and criticises both Dr F and the ICL because they “never engaged to review the findings and provide any mechanisms to increase my time [and left the mother to] fight this battle alone”.[26]
[23]Mother’s affidavit filed 25 July 2023, page 6 of 141 at [16], CB 431.
[24]Mother’s affidavit filed 25 July 2023, pages 12 of 141 at [51], CB 437.
[25]Mother’s affidavit filed 25 July 2023, pages 12 of 141 at [50], CB 437.
[26]Mother’s affidavit filed 25 July 2023, page 8 of 141 at [30], CB 433.
The mother holds Dr F responsible for the grandmother’s actions:
… she permitted [the grandmother] to continue to manipulate the court system with ease and relied upon delay to forcibly and unethically separate me from my children.[27]
[27]Mother’s affidavit filed 25 July 2023, page 13 of 141 at [51 f.], CB 439 of 6294.
The mother accuses Dr F of influencing Dr G, the ICL, Ms HH (supervisor) and the applicant’s counsel in a conspiracy with Pearson’s Law Firm. She sees herself as a whistleblower in relation to unethical behaviour going on in the court system and states she has been able to:
highlight the unethical standards and practise of manipulating court process at the federal and state level, most importantly expose incompetent and unethical family court report procedures from [Dr F]. [Dr F] then appointed her colleague, [Dr G] both were appointed by Pearson's law firm and clearly demanded by [the grandmother] (via [ the applicant’s counsel] at initial hearing).[28]
[28]Mother’s affidavit filed 25 July 2023, page 8 of 141 at [33], CB 433.
The mother believes Ms HH is also employed by the same law firm because she let the mother know “on numerous occasion … ‘I do alot [sic] of work from Pearson’s’ … How would [Ms HH] know this information and write to me stating ‘supervision is not removed’ unless she was engaging with other parties or lawyers?” [29] When Ms HH blocked the mother when she called more than four times in one day, withdrew as supervisor shortly before the trial and referred to Dr F as an expert witness, the mother asserted this proved that she was working for Pearsons in a conspiracy against the mother,[30] which included “[Dr F] who was also appointed by Pearson’s law firm I perceived a subtle pattern of bias emerging ...”[31]
[29]Mother’s affidavit filed 25 July 2023, pages 9 - 10 of 141 at [37] – [38], CB 434 - 435.
[30]Mother’s affidavit filed 25 July 2023, pages 9 - 10 of 141 at [37] – [38], CB 434 - 435.
[31]Mother’s affidavit filed 25 July 2023, pages 9 - 10 of 141 at [43], CB 435.
The mother blames Ms HH for “appearing to make me argumentative or aggressive” [32] and blocking her, which she claims had a knock-on effect of adversely affected Dr F’s report:
[Dr F] most likely would have supported removal of supervision, and would have easily endorsed [Dr F] to remove supervision and provide clear written recommendations as to how to go about this”[33]and as a consequence the mother had to keep paying high costs for supervision which “kept the unregulated business of family court reporters and independent court supervisors on a very high unregulated salary.”[34]
… this would conveniently to keep me on supervision to continue to pay high supervisory costs.[35] [and that this evidence] … supports the ruthless and unregulated family court report writers’ ability to unethically and unlawfully influence other (supposedly independent) court professionals. The court professionals easily and blatantly manipulate the unfavoured parties and I raised this with AHPRA, as well as sharing my medical files without my permission with [Dr F] through an unsafe postal system.[36]
[32]Mother’s affidavit filed 25 July 2023, page 25 of 141 at [91], CB 450.
[33]Mother’s affidavit filed 25 July 2023, page 26 of 141 at [91 c], CB 451.
[34]Mother’s affidavit filed 25 July 2023, page 26 of 141 at [91 c], CB 451.
[35]Mother’s affidavit filed 25 July 2023, page 24 of 141 at [88], CB 449.
[36]Mother’s affidavit filed 25 July 2023, page 24 of 141 at [88], CB 449.
The mother states AHPRA took no action but that they replied, “the court had made orders so I must be wrong to expose such ruthless practices.”[37]
[37]Mother’s affidavit filed 25 July 2023, page 24 of 141 at [88], CB 449.
The mother has made trenchant criticisms of the Family Court System:
… I raised complaints to your court numerous times and filed contraventions, referencing no regulations for court report writers and independent supervisory services that are controlled by any justice nor department.[38]
… The FCFCOA court system backlog permits judicial promiscuousness based alone on [Dr F’s] appointment and the professional alignment of alleged independent representatives from the court, deliver substandard and unethical practices at unaffordable costs that are unprecedented compared to today’s cost of living. [39]
[38]Mother’s affidavit filed 25 July 2023, page 13 of 141 at [51 f.], CB 438.
[39]Mother’s affidavit filed 25 July 2023, page 29 of 141 at [93], CB 454.
Subsequent to the hearing, the mother as a self-represented litigant has raised in correspondence to the ICL and the other parties, that Dr F’s registration as a psychologist has been suspended. The mother states that she had raised matters in relation to Dr F’s professionalism and conduct in both of the court’s jurisdictions. The website maintained by AHRPA confirms that Dr F’s registration has been suspended 28 September 2023 and will be cancelled from 1 December 2023. In an oral application made to the Court on 29 November 2023 (at a hearing when the mother’s Application in a Case filed 6 September 2023 was dealt with and which is discussed below) the mother sought orders that the Dr F’s oral and written evidence be removed from the Court record and that her evidence be disregarded entirely.
In Mortimer & Mortimer [2023] FCWA 117 (“Mortimer”) O’Brien J of the Family Court of Western Australia had to consider the application of the wife to discharge a single expert witness (SEW) who was a psychologist and was the subject of a complaint to APRHA arising from matters raised in a podcast entitled “False Witness.” At the time of the application, the psychologist was not suspended from practice and the Court did not accept a submission that, after considering the contents of the podcast, a prima facie conclusion could be drawn that the psychologist would be suspended from practice as a result of the matters, the subject of the podcast and the complaints to APRHA at [44].
At [27], the court set out the propositions to be applied regarding the treatment of SEW and their evidence:
27. There can be no suggestion that an SEW is anything more than just that – a witness. The power and responsibility to determine the dispute fall `to the judge. There is no “magic” in a single expert report, and while the views of a SEW will normally have weight with the court, the question of how much weight will depend on the individual case and the whole of the evidence. Single experts are not witnesses of fact, except as to matters that they directly see or hear; rather, they express opinions by applying their expertise to the consideration of certain factual assumptions. Their opinions “can only ever be as reliable as the facts upon which they are premised”, and they will run the risk of “breach[ing] their remit if they are drawn into an expression of opinion about the underlying factual conflict”.
28.Once it is understood that the proper role of the SEW is as a witness, albeit one whose opinion evidence is admissible by virtue of expertise, and not as a finder of fact let alone a decision-maker, the principles which apply to a consideration of any application to discharge the appointment of a SEW are clear.
(Citations omitted)
In Mortimer, the Court declined to make the orders sought discharging the SEW on the basis that the conduct of the SEW during the course of preparing the Expert Report could be challenged at trial[40], the investigation into the allegations raised about the SEW had not been completed and that it was the role of the APRHA to conduct that investigation and not a matter for the Court to reach conclusions regarding the matter under investigation until the investigation had concluded.[41]
[40] Mortimer & Mortimer [2023] FCWA 117 at [30] (“Mortimer”).
[41] Mortimer at [57] - [62].
In the present case, there is no evidence that the SEW was suspended at the time that she saw the parties and the children, prepared her reports and gave evidence. The mother made allegations about the SEW in her affidavit evidence and Outline of Case and she had the opportunity to test that evidence when the SEW was in the witness box.
At trial, counsel for the mother did not put to Dr F that she had conducted herself unprofessionally or in breach of her obligations to the Court or the parties in relation to the preparation of the reports in this proceeding. Nor did he put in cross-examination that Dr F was under investigation by AHPRA, or that any matters raised by that investigation were relevant to the opinions she expressed in this case. I do not raise this as a criticism of counsel: he may have formed the view that there was no evidence available to him to form the basis of cross-examination on those grounds given the contents of the reports that had been prepared in this case.

Given the orders made it is likely that the children will continue to spend most of the time with the grandmother.
Section 75(2)(d) and (e) – commitments of each of the parties that are necessary to enable the party to support himself or herself, and a child or another person that the party has a duty to maintain; and the responsibilities of either party to support any other person.
During the trial the mother noted the cost of supervision to be significant and listed this amount in her Financial Statement filed on 7 June 2023 as $340 a week.
The father states that each party should pay child support for the children as assessed by Services Australia, Child Support. He deposes that he has paid 100% of the children’s school fees, telephone expenses, tutoring expenses and private health insurance from 2020 - 2023 and he believes it is unlikely that the mother will agree or assist to contribute to the payment of the children’s school fees. The father asks that the court takes this into account when making a final property settlement order. I think that it is unlikely that the mother will make any substantial financial contributions to the children’s living and education and expenses whilst they are living with the grandmother.
Subsection (2)(f) – the eligibility of either party for a pension, allowance or benefit under any law of the Commonwealth, of a State or Territory or of another country; or any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party
Both the father and the mother will have access to defined benefit superannuation funds. No submission has been made as to the value of those funds as a pension or benefit in the future.
Section 75(2)(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
I take into account the father’s capacity to earn a higher income than the mother and the benefits of the employment including Long Service Leave which has not presently accrued and the non‑monetary value of Frequent Flyer Points.
The Parties’ Proposals regarding a mental health condition of Non-Superannuation Property
Both parties agree that orders should be made for an adjustment of the property of the parties pursuant to s 79 of the Act. The father seeks an adjustment of 70%/30% in his favour and the mother seeks an adjustment of 70%/30% in her favour.
CONCLUSION AS TO NON-SUPERANUATION ASSETS
The father contributed the majority of the initial property pool and has made substantial contributions to the care of the children. He has a higher earning capacity – he has access to more substantial superannuation and work benefits such as Long Service Leave and the value of Points. It is likely that he will continue to bear the vast majority of the costs of maintaining the children.
The mother has worked throughout the relationship and contributed her income albeit at a lower level than the father. The features of these parties’ employment, particularly the employment benefits when stationed overseas and the arrangements that they have made in relation to having the children cared for by the maternal grandmother, means that both parties’ non‑financial contributions are reduced.
The mother has sought to construct a scenario that she has been required to cease her long-standing employment because of health issues but has not provided evidence at the trial to properly support that proposition. Whilst the mother has, throughout these proceedings, demonstrated that she has issues with her personality through the frequency and tone of her communications with the court and with the parties, she has nonetheless been able to maintain employment.
The mother will have ongoing costs of supervision.
Having regard to the findings regarding contribution and s 75(2) factors, the Court considers that a distribution of non-superannuation property is 62.5%/37.5% in favour of the father is just and equitable.
Total non-superannuation assets are $1,985,754, with $1,241,096.25 as 62.5% to the father and 37.5% as $744,657.75 to the mother.
The mother has already received $190,000, will retain her motor vehicle valued at $26,000 and the children’s shares valued at $5,682 and $4,882. The father proposes to make the remainder as a payment to the mother and that amount is $518,093.75 minus payments paid by the father on behalf of the mother in the amount of $20,778.56 as set out at [227] – [229] below is $497,315.19. The father proposed a further deduction for costs owed by the mother to the father in the amounts of $1,964 and $3,500, but these are to be dealt with by a separate application for costs, so that costs can be dealt with collectively.
SUPERANNUATION
The Father’s Interests
The father has a Super Fund 1 defined benefit fund valued at $802,145. At the commencement of the relationship that fund was valued at $70,751. As at the date of separation, the fund was valued at $784,789 which means that $714,038 was accrued through the course of the relationship.
In addition, the father has a superannuation fund: Super Fund 2 accumulation fund valued at $105,896 and valued at the commencement of the relationship at $100,844 therefore $5051 has been accrued in that fund through the course of the relationship.
Superannuation by way of initial contributions according to the father was: $171,595 by the father and $7,744.05 by the mother. The father relies on a valuation of the superannuation interests of the mother undertaken by Mr NN of the mother’s superannuation interests as at 1 May 2008, at the commencement of the relationship (CB 2176).
The Mother’s Interests
The mother has a Super Fund 4 defined benefit fund of $149,075 which had a value of $7,744 at the commencement of the relationship. She has funds in a Super Fund 3 fund of $82,744 according to her financial statement. That fund had a value of $70,336 at the commencement of the relationship.
Superannuation Accrued During the Course of the Relationship
The total value of the superannuation accrued during the course of the relationship is $930,756. The value of the defined benefits funds of each party was the subject of evidence of Mr NN by an affidavit affirmed on 11 January 2022. That evidence was the subject of a Notice to Admit served on the mother on 8 May 2023 and there was no response to that notice. The affidavit of Mr NN demonstrates that he had the expertise to express the views that he did in relation to the value of the defined benefit funds and that evidence has not been challenged.
Table of Superannuation
The father provided, in his final submissions of 30 November 2023, a table which sets out the calculation of the total superannuation in the amount of $930,756, the value of the superannuation of each party and the calculations leading to the equalisation payment to the mother which includes a payment of $105,896 through a superannuation split and a cash payment of $147,815:

Superannuation

Court Book/ Tender bundle reference

Name held

Estimated value of superannuation accumulated during the relationship

Super Fund 1 Defined Benefit

Balance at separation $784,789 (Page 2188 Court Book)

Mr Daley

less balance at cohabitation $70,751 (Page 2188 Court Book) = $784,789 - 70,751 = $714,038

Mr Daley

$714,038

Super Fund 2

Balance a separation $105,896 (Balance at separation part of tender bundle).

Mr Daley

Super Fund 2

Balance a separation $10,896 less co-habitation balance$100 844= 5,051 Balance at cohabitation page 6208 Court Book

Mr Daley

$5,051

Super Fund 4 accumulated during the marriage

Balance at separation $149 075 (Page 2176 Court Book)

Ms Daley

Less balance at cohabitation $7,744 ( Page 2181 Court Book) = $149,075 - $7,744 = $141, 331

$141,331

Uni super accumulated during the relationship

$70,336 (Super Fund 3 statement dated 1 January 2020 part of Second Respondent Husband's tender Bundle)

Ms Daley

$70,336

Ms Daley Sub-total of Superannuation

Super Fund 4 $141,331 + Super Fund 3 $70,336

$211,667

TOTAL SUPERANNUATION

$930,756

Equalisation of superannuation

$465,378

Equalisation to Ms Daley less the superannuation she already retains from Super Fund 4 and Super Fund 3

$465,378- 211,667 = $253,711

$253,711

Equalisation of superannuation less superannuation split from Mr Daley's Super Fund 2

$253,711 - $105,896

$147,815

Cash payment from Mr Daley to Ms Daley in lieu of superannuation to make up an equalisation of superannuation

Cash $147,815 +$105,896 + $211,667 = $465,378

$465,378

The mother did not make detailed submissions in relation to superannuation or property generally. The father proposes that the superannuation that has been accrued throughout the course of the relationship be equalised. He proposes doing this by having the mother retain the superannuation that she has and for her to have transferred to her the Super Fund 2 fund in the father’s name. The father says this would leave a balance of $147,815 owing to the mother. It was proposed that a payment of $88,689, which is the sum of $147,915 less 30% being applied, as the mother gains the benefit of receiving those funds as cash now. I will not make that order as there is no evidence to support it. The father submits that the mother’s future needs are mitigated by the proposed orders providing her with a larger cash payment in lieu of superannuation which she can access now and use to purchase secure housing or another appreciating asset.
He proposes a superannuation splitting order of $105,000 to transfer his benefits in Super Fund 2 to the mother. Thereafter, he proposes orders that the remaining superannuation be paid to the mother as a cash payment to equalise the superannuation accumulated during the relationship. He states this will leave the mother with superannuation of $327,790.27 and a cash payment of $245,856.97 in lieu of a transfer of the father’s defined benefit scheme superannuation.
The mother opposed orders in relation to superannuation in those terms however her reasons for opposing the order were obscure and seemed more motivated by a desire to adopt a contrary position rather than to consider the benefits that might flow to her if orders in those terms were made. She did not make any coherent submission about how superannuation should be split and if so on what basis.
I will make orders dealing with the superannuation in line with those proposed by the father. That is, that the mother retains her accrued superannuation of Super Fund 3 in the amount of $70,336 and Super Fund 4 in the amount of $141,331, along with the father’s Super Fund 2 in the amount of $105,896 and additionally a payment of $147,915 by way of equalisation. I will not apply a 30% discount to that sum as no evidence has been produced to support a discount of that kind.
These orders are just and equitable and provide the mother with access to funds that she is likely to need to establish herself in suitable accommodation. An argument could be made by the father that the split should be in his favour because of his greater contribution to the superannuation assets, however given his proposal of an equalisation of those assets, I will make orders giving effect to that.
The approach contended for by the father has advantages to both parties as it allows him to maintain his deferred benefit superannuation entitlement and provides the mother with cash which she needs in order to fund living expenses. No evidence has been placed before the Court to support a 30% discount on the present cash value of the $147,815 to equalise superannuation payments, or how the discount is calculated and there is no evidence to support it.
Spousal Maintenance
In the course of the final hearing the mother filed written closing submissions (Exhibit R1-9) that in relation to her application for spousal maintenance then before the court in the sum of $700 per week states in relation to that application:
application for spousal maintenance which was not pursued as I withdrew as I did not have a lawyer and know how to present the evidence to succeed.
Since judgement was reserved on 11 August 2023, the mother has filed an Application in a Proceeding on 6 September 2023 which seeks, in summary: parenting orders, spousal maintenance in the sum of $700 per week and a stay of child support payments. The mother also brought a Contravention Application on 26 October 2023 alleging 24 breaches of interim parenting orders in relation to spend time arrangements. The breaches are alleged to have occurred between 12 April 2022 and 10 September 2023. That contravention application is listed before a Registrar to be dealt with on 16 February 2024, after judgement is delivered in this proceeding.
The mother’s Application in a Proceeding was filed 6 September 2023 and supported by an affidavit sworn by her on 2 September 2023. The mother seeks the following orders (copied exactly):
1.        Orders sought to commence from 10 Sep 2023
2.I seek leave to file an Application in a Proceeding in accordance with the Central Practice Direction (Rule 5.22) where the Respondent has filed in excess of two Applications in a Proceeding.
3.        PARENTING
4.[Ms Franco] is to agree to a shared time regime of 3 times per month, the first 3 weekends of each month, with week day time during school holidays (an additional week day).
5.I remain at liberty to attend school functions that parents ordinarily attend, as has occurred during 2023.
6.No Change to drop off/pick up as agreed between the parties at [McDonald's Town E].
7.        FINANCIAL
8.Second Respondent Husband pay me spousal maintenance in the sum of $700 per week.
9.I seek a stay in child support, with the debt ultimately removed, due to my unemployment & children’s supervisory costs I must meet.
10.The father to file an accurate financial statement at item 14, “benefits from the employer”, and all other relevant categories as required under the rules of evidence, as a matter of urgency.
11.      Any such order the court deems appropriate.
On 18 September 2023 the father filed a Response to Application in a Proceeding seeking dismissal of the application with costs.
In relation to the parenting and property orders sought by the mother, the matters raised in the application have been raised in the final hearing. Paragraphs 5 – 6, 9 – 14, 17 – 22, 28 – 30, and 35 – 41 of her affidavit of 6 September 2023 are all matters raised for consideration in the trial. That evidence has been the subject of affidavit evidence by each party and cross-examination. The matters now raised by the mother are not fresh evidence and the re-opening of the case to deal with those matters is not warranted.
As to matters going to the attendance by the mother at the children’s school, the mother attaches an email of a letter from that school dated mid-2023. That letter could have been raised at the final hearing. Re-opening of the hearing to deal with this is not warranted and I note that matters in relation to the mother’s attendance at the school were canvassed in the hearing. The school is not a party to the application, and it is not appropriate for the court to make orders binding the school in those circumstances.
In relation to child support, the mother has not brought an application before the Court to depart from the Child Support Assessment. I note that the Child Support Assessment dated 18 August 2023, which is attached to the mother’s affidavit, records the mother’s estimated annual income at $40,153 and requires the mother to pay annual child support of $792 to the grandmother in respect of support for the two children.
The power of the Court to grant a stay of orders made pursuant to the Child Support (Registration and Collection Act) (1988) (Cth) (“CSRC Act”) arises from and is conditional on s 111C of that Act. That section provides:
Stay orders
(1)      This section applies if a proceeding has been instituted:
(a)       in a court having jurisdiction under this Act; or
(b)       before the Registrar under Part VII; or
(c)       before the AAT for an AAT first review; or
(d) under Part 6A or 7 of the Assessment Act.
(2) A party to the proceeding may, subject to the Family Law Act 1975:
(a) in the case of a proceeding instituted in a court—apply to that court for an order under this section; or
(b) otherwise—apply to a court having jurisdiction under this Act for an order under this section.
(3) Pending the hearing and final determination of the proceeding, the court may make such orders as the court considers appropriate staying or otherwise affecting the operation or implementation of the Assessment Act and this Act if the court considers that it is desirable to do so, taking into account the interests of the persons who may be affected by the outcome of the proceeding.
(4)       The court may, by order, vary or revoke an order made under subsection (3).
(5)      An order under subsection (3):
(a) is subject to such terms and conditions as are specified in the order; and
(b)      operates for:
(i)        such period as is specified in the order; or
(ii) if no period is specified - until a decision of the court, the Registrar or the AAT determining the proceeding becomes final.
In Child Support Registrar & Vladimir and Anor (2017) FLC 98-073 (per Thackray, Strickland and Ainslee -Wallace JJ) held at [47] that the reference in s 111C (1)(a) to a proceeding that has been instituted in a court having jurisdiction under this Act, must involve proceedings involving the exercise of jurisdiction under the CSRC Act. In this proceeding, the mother has not instituted proceedings under that Act. She has not appealed the decision of the Registrar dated 18 August 2023 to this Court and therefore the Court does not have the power to make the orders staying orders of the Registrar.
The mother’s right to Spousal Maintenance is governed by s 72 of the Act which provides:
(1)A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
The mother does not presently have the care and control of the children and is paying minimal child support. She does refer to the high costs of supervised time with the children which she says has become extremely difficult because of her recently reduced income.
The mother states that she is recently unemployed due to musculoskeletal injuries. The mother allegedly became unemployed for health reasons shortly prior to the conclusion of the final hearing. At the final hearing, the mother sought to rely on an affidavit sworn on 10 August 2023 to establish that she had resigned her employment as a result of health issues see [172] – [175].
The mother has received substantial funds (in the sum of $190,000) during the course of these proceedings. The father has been required to fund the litigation and pay child support assessed in the sum of $1,124.68 per fortnight. The mother’s sworn financial statement dated 25 August 2023 discloses in part in that she spends $1,092 on the children per week for items such as food household supplies, gas, electricity, telephone and hairdressing/toiletries in circumstances where the children do not live with her. I do not accept that her financial statement in relation to the expenditure is accurate.

The father discloses a current income of $6,483 per week and expenditure of $5,256 per week. From that expenditure the father pays $704 per week towards the children. He has the sum of $523 per week remaining after expenses. At the hearing of this application the mother asserted that the father’s income was higher than he has disclosed and referred to a payslip of the father showing gross weekly payments of $20,935 for the period 8 June 2023 to 21 June 2023. That amount includes allowances that may be particular to his service at the time covered by the payslip. However, I note that the gross payments financial year to date at that time were $383,648.62. Whilst the father has a substantially higher income than the mother, that of itself does not establish that he is reasonably able to afford to pay the mother $700 per week. On the evidence that is before me the father does not have the capacity to pay $700 per week as spousal maintenance to the mother.
The mother could have pursued this application during the final hearing and chose not to. The mother has not placed sufficient evidence before the Court to establish that she does not have capacity for work whether on a full-time or part-time basis. The father by his affidavit sworn on 30 June 2023 at [59] deposes that when he subpoenaed the mother’s bank statements in preparation for the final hearing of the matter listed on 9 February 2022, her bank records indicated that she received an average rental income of $450 per week. The mother makes reference to the costs of maintaining the City N property but has not placed evidence before the Court to substantiate those claims. I am not persuaded that it is appropriate to make an order for spousal maintenance whether as a lump sum or as periodic payments on the evidence before the Court.
For these reasons I dismiss the mother’s application for spousal maintenance filed on 6 September 2023.
FINAL ORDERS
The father sought orders that the mother be ordered to maintain treatment in relation to her mental health. The father does not seek an order that compliance with an order of that kind is a condition of the mother spending time with the children. The evidence shows that the mother’s mental health issues are longstanding and that she has received treatment and was seeing a psychiatrist and psychologist who are referred to in these reasons. I do not see the benefits to the children or the parties to require the mother to maintain treatment. Orders of that kind are coercive and are likely to require ongoing supervision by the Court. It is a matter for the mother to make her own decisions about getting assistance and coercive orders are unlikely to assist. The risks identified by the Court are met by the orders the Court makes for supervised time.
I have made orders that the mother not be affected by alcohol levels exceeding 0.05 in the eight hours prior to spending time with the children and that she shall not consume alcohol during her time with the children. The mother denies having any issue with alcohol. There is evidence from the father regarding the mother drinking and its effect on her and the children have made reference to this in reports to the DFFH.
The DFFH report of September 2020 (CB 849) notes:
Both [X] and [Y] were interviewed [in] 2020. [X] said we used to stay just the two of us and Mum, Dad used to come but not as much. [X] stated that Mum used to get drunk, and she would change her attitude, from being happy to angry, she would hit us on the face with a wooden spoon. [Y] said this made her ‘uncomfortable, angry and sad’. [X] added that Mum used to buy us junk food when she is moody, and when drinking her friends would come to the home. [Y] said ‘mum used to leave us alone, and come about 12:00 midnight, sometimes sleeping the whole night and I would feel scared.’ She would say she was at the pub and would come back in the morning. Sometimes a babysitter would come but mum would fight with babysitters.
The grandmother also outlined in her affidavit filed 20 January 2022 reports from the children about the mother’s alcohol use and subsequent behaviour at [30] (CB 245):
30.I initiated proceedings in this matter as I had concerns in relation to [X] and [Y] requiring protection from [Ms Daley] due to excessive physical discipline, verbal abuse, lack of supervision, alcohol misuse and psychological harm.
And further at [63] (CB 249):
63.When [Y] was interviewed she said that she wished to remain living with me. [Y] said that she was worried that her mother would take her back to [City N] and disclosed that in the past her mother has smacked her, shouted at her and left her and [X] unsupervised in the house overnight. She further disclosed that she and [X] had been cared for by different baby-sisters in their lives and that their mother abuses alcohol.
The tone of the mother’s communications between her and the father in the form of erratic, rambling text messages certainly demonstrates concerning behaviour by the mother and whether or not they were composed under the influence of alcohol or when she was sober, the contents of the messages suggest that it would be in the best interests of the children, the mother and any supervisor, that the mother be sober when spending time with the children. An example of this is text messages sent on 12 June 2023 to the father set out in his trial affidavit filed 14 July 2023 at [52] and annexed as PS 3. This short extract of a long message illustrates the tone:
I'm trying to with you Dadda I miss my dad a lot and I don't want my children to ever ever miss you never ever never ever but you never asked me what my plan was okay you know the story you are the plan we were […], hilarious, Stupid. Droupe. Hilarious. If I’m with I can do it. Are you gonna put sperm in someone else’s mouth or vagina it have a gay baby. Guess not too busy with family. Hurry out. I love you Dadda. I love you you’re gonna be so bored of me telling you and thinking you and showing you and being with you promise night my love. Can you spell to correctly which means the world to I laughed cheeky. Hey. Wowsers. Don’t don’t don’t don’t don’t don’t don’t don’t divorce me. Promise don’t are you listening.
For those reasons the Court will make an order placing restraints on alcohol use by the mother when she is spending time with the children.
DISBURSEMENTS/COSTS ORDERS
The father also seeks contribution of 50% of the cost of disbursements which the mother has been previously ordered to pay and costs orders made previously in the father’s favour as outlined in his trial affidavit filed 14 July 2023 at [103] (CB1469) and summarised as follows (excluding costs orders sought):

Payment

Amount

50% of costs of Dr F's Report

$6,082

50% of cost of Super Fund 5 Valuation

$550.00

50% cost of H Group Valuation of the Suburb P property on 1.3.21

$495

50% of cost of H Group Valuation of the Suburb P property and L Street on 7.1.22

$935

Payment to release caveat secured over L Street, Suburb M Apartment to K Lawyers, Family Lawyer

$12,244.06

Total

$20,306.06

The father further sought in his Minutes of Proposed Final Property Orders at 3 (b):
(b)The sum of $472.50 being the Wife’s 50% share of the costs of the Form 6 Applications for the [Super Fund 1] and [Super Fund 4] obtained in relation to the valuation of the [Super Fund 1] and [Super Fund 4] by [Super Fund 5] in accordance with Court Orders dated 8 September 2021 at paragraph 10;
The Court will make orders for those sums be deducted from the moneys ordered to be paid by the father to the mother pursuant to final orders in the amount of $20,778.56.
COSTS
I will make orders that the grandmother and father file submissions regarding costs both in terms of liability and quantum within 21 days of these orders and for the mother to have an opportunity to respond within 21 days from that time, by 19 January 2024. Those submissions should be supported by specific reference to evidence and previous orders by reference to court book pages where such evidence is relied on. The question of costs will be determined on the papers in chambers.

I certify that the preceding two hundred and thirty (230) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab.
Associate:
Dated: 8 December 2023

File number(s):	MLC 9994 of 2020
Judgment of:	MCNAB J
Date of judgment:	8 December 2023
Catchwords:	FAMILY LAW – PARENTING – Where children are living with a grandparent – Where parents have been seconded overseas– Where the parents have moved for postings leaving children with the grandparent – Where the children have spent a substantial amount of their lives living with the maternal grandmother - Where the mother’s visits with the children have been supervised for an extended period of time – Whether continued supervised time is in the best interests of the children – where application is made to discharge and remove the evidence of a single expert from the Court record where that expert has had their licence to practice as a psychologist suspended following the preparation of family reports and giving evidence.
Legislation:	Australian Passports Act 2005 (Cth) ss 7 and 11 Child Support (Registration and Collection Act)1988 (Cth) s 111C Family Law Act 1975 (Cth) Pt VII ss 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65Y, 68B, 68C, 72, 79, 81, 114, 114AB Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:	AJO & GRO (2005) FLC 93-218 Babett & Falconer (2015) FLC 98-067 Champness & Hansen (2009) FLC 93-407 Child Support Registrar & Vladimir and Anor (2017) FLC 98-073 Dickons & Dickons [2012] FamCAFC 154 DJM v JLM (1998) FLC 92-816 Dovgan & Dovgan [2021] FamCA 306 Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143 Jabour & Jabour [2019] FamCAFC 78 Kowaliw & Kowaliw (1981) FLC 91-092 Marriage of Bieganski (1993) 16 Fam LR 353 Moose v Moose (2008) FLC 93-375 Mortimer & Mortimer [2023] FCWA 117 Perrin & Perrin (No 2) [2018] FamCAFC 122 Re C & J (1996) 20 Fam LR 930 Townsend & Townsend (1995) FLC 92-569 Slater & Light (2013) 48 Fam LR 573 Stanford v Stanford (2012) 247 CLR 108 U v U (2002) 29 Fam LR 74 W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 Re W (Sex abuse: standard of proof) (2004) FLC 93-192
Division:	Division 1 First Instance
Number of paragraphs:	230
Date of last submission/s:	4 December 2023
Date of hearing:	31 July 2023, 1 – 2, 10 – 11 August 2023
Counsel for the Applicant:	Ms McCreadie
Solicitor for the Applicant:	Ms Vella
Counsel for the First Respondent	Mr Testart 31 July – 2 August 2023 Litigant in Person 10 – 11 August 2023
Solicitor for the First Respondent:	Ms Elsner
Counsel for the Second Respondent:	Ms Clark
Solicitor for the Second Respondent	Ms Finch
Counsel for the Independent Children’s Lawyer	Mr Dunstan

MLC 9994 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS FRANCO Applicant
AND:	MS DALEY First Respondent MR DALEY Second Respondent

ORDER MADE BY:	MCNAB J
DATE OF ORDER:	8 DECEMBER 2023

Superannuation	Court Book/ Tender bundle reference	Name held	Estimated value of superannuation accumulated during the relationship
Super Fund 1 Defined Benefit	Balance at separation $784,789 (Page 2188 Court Book)	Mr Daley
less balance at cohabitation $70,751 (Page 2188 Court Book) = $784,789 - 70,751 = $714,038	Mr Daley	$714,038
Super Fund 2	Balance a separation $105,896 (Balance at separation part of tender bundle).	Mr Daley
Super Fund 2	Balance a separation $10,896 less co-habitation balance$100 844= 5,051 Balance at cohabitation page 6208 Court Book	Mr Daley	$5,051
Super Fund 4 accumulated during the marriage	Balance at separation $149 075 (Page 2176 Court Book)	Ms Daley
Less balance at cohabitation $7,744 ( Page 2181 Court Book) = $149,075 - $7,744 = $141, 331	$141,331
Uni super accumulated during the relationship	$70,336 (Super Fund 3 statement dated 1 January 2020 part of Second Respondent Husband's tender Bundle)	Ms Daley	$70,336
Ms Daley Sub-total of Superannuation	Super Fund 4 $141,331 + Super Fund 3 $70,336	$211,667
TOTAL SUPERANNUATION	$930,756
Equalisation of superannuation	$465,378
Equalisation to Ms Daley less the superannuation she already retains from Super Fund 4 and Super Fund 3	$465,378- 211,667 = $253,711	$253,711
Equalisation of superannuation less superannuation split from Mr Daley's Super Fund 2	$253,711 - $105,896	$147,815
Cash payment from Mr Daley to Ms Daley in lieu of superannuation to make up an equalisation of superannuation	Cash $147,815 +$105,896 + $211,667 = $465,378	$465,378

Payment	Amount
50% of costs of Dr F's Report	$6,082
50% of cost of Super Fund 5 Valuation	$550.00
50% cost of H Group Valuation of the Suburb P property on 1.3.21	$495
50% of cost of H Group Valuation of the Suburb P property and L Street on 7.1.22	$935
Payment to release caveat secured over L Street, Suburb M Apartment to K Lawyers, Family Lawyer	$12,244.06
Total	$20,306.06