Jansen & Kwan

FAMILY COURT OF AUSTRALIA
Jansen & Kwan [2021] FamCA 85

File number(s): SYC 1403 of 2020

Judgment of: ALTOBELLI J

Date of judgment: 1 March 2021

Catchwords: FAMILY LAW – PARENTING – Interim parenting orders – Where children currently living in a shared care nesting arrangement in the family home with both parents moving in and out – Where such arrangement is no longer feasible – Where parents are unable to decide with which parent the children should live and how much time they should spend with the other – Where single joint expert report available – Where mother adduced evidence from her treating practitioners – Where greater weight given to single joint expert report – Children to live with father and spend time with mother

Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA.

Cases cited:
Goode & Goode [2006] FamCA 1346;

Marvel & Marvel [2010] FamCAFC 101;

MRR v GR [2010] HCA 4;

Pinson & Pinson (No 2) [2020] FamCAFC 111.

Number of paragraphs: 132

Date of last submission/s: 15 January 2021

Date of hearing: 15 January 2021

Place: Sydney via videoconference

Counsel for the Applicant: Mr Dickson QC with Ms Wald of counsel

Solicitor for the Applicant: York Law Family Law Specialists

Counsel for the Respondent: Mr Dura of counsel

Solicitor for the Respondent: Horton Rhodes Legal
ORDERS

SYC 1403 of 2020

BETWEEN:
MR JANES
Applicant

AND:
MR KWAN
Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

1 MARCH 2021

THE COURT ORDERS THAT:
1.The orders made on 23 April 2020 under the heading ‘Parenting’ be discharged save for orders 9, 10, and 11.
2.The children, X born … 2010, Y born … 2013, and Z born … 2016 live with the parties as follows:
(a)During the school term, the children live with the father and spend time with the mother on the following basis:
(i)In week 1, from after school or 3:30pm on Thursday to the commencement of school or 9am on Monday; and
(ii)In week 2, from after school or 3:30pm on Thursday to the commencement of school or 9am on Friday.

(b)During the New South Wales school holiday periods, the children spend half of each school holiday period with each party as agreed between the parties, and in the absence of agreement:
(i)For the Term 1, Term 2, and Term 3 school holiday periods:
A.In even numbered years, with the father in the first half of each school holiday period and with the mother in the second half of each school holiday period.
B.In odd numbered years, with the mother in the first half of each school holiday period and with the father in the second half of each school holiday period.

(ii)For the Term 4 Christmas holiday period:
A.In even numbered years, with the father in the first week and each alternate week thereafter, and with the mother in the second week and each alternate week thereafter.
B.In odd numbered years, with the mother in the first week and each alternate week thereafter, and with the father in the second week and each alternate week thereafter.

3.On special occasions, time in accordance with order 2 be suspended and the children spend time with each parent as follows:
(a)With the father from 5pm the night before Father’s Day to 5pm on Father’s Day;
(b)With the mother from 5pm the night before Mother’s Day to 5pm on Mother’s Day;
(c)On the children’s birthdays as follows:-
(i)If the child’s birthday falls on a school day, with the parent with whom the child is not residing from the conclusion of school until 6pm, and
(ii)If the child’s birthday falls on a non-school day, with the parent with whom the child is not residing from 9am to 2pm.

(d)With the father on the father's birthday as follows:-
(i)If the father's birthday falls on a school day, from the conclusion of school until 6pm, and
(ii)If the father's birthday falls on a non-school day, from 9am to 2pm.

(e)With the mother on the mother’s birthday as follows:-
(i)If the mother’s birthday falls on a school day, from the conclusion of school until 6pm, and
(ii)If the mother’s birthday falls on a non-school day, from 9am to 2pm.

(f)During the Easter period as follows:
(i)In even numbered years, with the father from 9am Good Friday until 12 noon Easter Sunday and with the mother from 12 noon Easter Sunday until 9am on the Tuesday following Easter Monday, and
(ii)In odd numbered years, with the mother from 9am Good Friday until 12 noon Easter Sunday and with the father from 12 noon Easter Sunday until 9am on the Tuesday following Easter Monday.

(g)For the period from Christmas Eve to Boxing Day as follows:-
(i)In even numbered years:
A.With the mother from 9am Christmas Eve until 3pm Christmas Eve;
B.With the father from 3pm Christmas Eve until 3pm Christmas Day and;
C.With the mother from 3pm Christmas Day until 3pm Boxing Day, and

(ii)In odd numbered years:
A.With the father from 9am Christmas Eve until 3pm Christmas Eve;
B.With the mother from 3pm Christmas Eve until 3pm Christmas day; and
C.With the father from 3pm Christmas Day until 3pm Boxing Day,

(h)On New Year’s Eve as follows:
(i)In even numbered years, with the father from 2pm New Year’s Eve until 2pm New Year’s Day and each alternate year thereafter.
(ii)In odd numbered years, with the mother from 2pm New Year’s Eve until 2pm New Year’s Day and each alternate year thereafter

4.For the purposes of orders 2 and 3, where changeover does not occur upon the conclusion of school, changeover is to occur at the home of the parent whose time with the children is concluding.
5.The parents do all acts and things and ensure that X and Y continue to attend at B School in 2021 and until further order of the Court,
6.Pending further order, the child Z attend the B School C Program in 2021 and attend at B School in 2022.
7.Both parents advise and keep the other advised of their respective residential address, landline, mobile telephone numbers, email address, Skype address and any changes thereto at all times and within 24 hours of the same occurring.
8.In the event that either parent moves from where they live, that parent will notify the other two (2) weeks prior to such move of any change of address and within 24 hours of change of telephone numbers where that parent can be reached.
9.Each parent inform and keep the other informed at all times of the children's health and/or health related issues, and in the event that the children are required to undertake a medical procedure, each parent must consult with the other as soon as is practicable.
10.Each parent inform the other in writing as soon as practicable of any specialist medical appointments (but not general medical general practitioner appointments) including appointments with any dentist or other health professional and provide the names, contact telephone numbers and addresses of all treating health care professionals attended by the children.
11.Each parent provide to the other a copy of any report prepared by any such specialist medical consultant or relevant health professional within 48 hours of receipt of same and otherwise in a timely manner.
12.In the event that the children or any of them is involved in a medical emergency such parent shall notify the other immediately and provide details of the health care professional or medical facility that the children or any of them attends.
13.The parties continue to use the "Our Family Wizard" App for the parties’ communication about parenting issues referrable to the children.
14.Forthwith both parties enrol and complete the online course run by D Services and within 7 days of completion of the course each of the parties furnish the other with a certificate of completion.
15.The parties attend upon:
(a)Ms E or Mr F from D Services; or
(b)Mr G,

for the purposes of family therapy to assist the parties with communication and trust issues between the parents. The parties to consult one of the experts above on the basis that the person who can offer earlier appointments will be the appointed expert to undertake the therapy.
16.Dr H, the Court appointed Single Expert, produce to the Court all his notes, records and all of the documents in relation to the assessment that he carried out in respect of this matter and which culminated in the issue of his single expert report (this order does not require Dr H to produce the Subpoenaed documents or the Court documents that were furnished to him bv the parties).
17.That upon Dr H producing his documents, the parties have access to the notes and otherwise have leave insofar as is necessary, to provide a copy of the notes to any other person who the lawyer concludes ought to have access to the said documents for the purposes of the case.
18.That the time for the mother to ask questions of the Single Expert Dr H pursuant to r 15.63 be extended to 30 days from the date that Dr H produces his file and leave is granted to inspect the same.
19.The matter be referred back to the Docket Registrar for case management.

IT IS NOTED THAT
A.Orders 3, 4, 5, 7, 8, 9, 10, 11, 12, and 13 are made by consent save for order 3(g) which is made by the Court.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jansen & Kwan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Altobelli J

This case concerns three children, X who is nine years old, his brother Y who is seven and a half years old, and his other brother Z who is nearly five. The Court had to decide what further interim parenting orders were to be made relating to the children, as to which parent they live with and how much time they spend with the other parent.
BACKGROUND
The mother is the Applicant in this case. She is 46 years old and describes herself in her Affidavit as a home maker. The Respondent father is 40 years old. He describes himself as an investment manager. The parents commenced co-habitation in the United Kingdom in late 2006 and married there in 2009. In 2013 they moved from the United Kingdom to Country J, and then in 2016 from Country J to Sydney. The parents and the children live in suburbs in northern Sydney. The parents separated in mid-February 2020 after a period of co-habitation of between 13 and 14 years. Later in 2020 the mother commenced the present proceedings.
On 23 April 2020 the parties initiated what is often described as a nesting arrangement, whereby the children remained living in the former matrimonial home and the parents cared for the children on an equal time basis, but each moving to other accommodation on the off week. This arrangement was entered into by consent and is reflected in orders made on that date by Judge Kemp, in the Federal Circuit Court.
The proceedings were subsequently transferred to the Family Court of Australia. Dr H prepared a single joint expert family report which is dated 20 July 2020. On 12 August 2020 Dr H provided a further report, providing answers to some questions administered to him on behalf of the father.
The matter came before me for interim hearing on 15 January 2021. The mother was represented by her senior counsel Mr Dickson, and junior counsel Ms Wald. The father was represented by his counsel, Mr Dura. The parents were sensibly able to enter into interim consent orders dealing with the financial aspects of their dispute. By the time of the interim hearing it was apparent to both parents that the current nesting arrangement was no longer feasible, as they needed to vacate the family home due to it being required by the owner of the property.
COMPETING PROPOSALS AT THE INTERIM HEARING
The mother’s proposal was contained in the document described as the Second Further Amended Minutes of Order sought by the wife, within the mother’s case outline document that was filed 13 January 2021. This document is reproduced in the first schedule to these reasons. By way of overview, she proposed that the children live with her, and spend time with the father for four nights each fortnight during the school term, and for one half of New South Wales school holidays. On an alternative, and on a without concession basis, the mother proposed that the children would live in an equal shared care arrangement with the parents on a two:two:five:five basis.
The mother also proposed orders in relation to special occasions, overseas travel and a number of ancillary matters which will be identified, and discussed below, where appropriate.
The father’s proposal is contained in a document described as an Amended Minute of Order which comprises part of his case outline document filed 14 January 2021. By way of overview, he proposed that the children live with him and spend time with the mother for three nights each fortnight, such order continuing during school holiday periods, and also on special occasions. The orders proposed by the father are likewise reproduced in the second schedule to these reasons.
During closing submissions, counsel informed the Court that a number of the orders sought by the mother in her proposed minute were either consented to by the father, or not opposed by him, with the father also consenting to mirror orders that provide for the mother to spend time with the children on special occasions. Thus, order 2.3, with the exception of order 2.3.4, was agreed to with minor changes. In relation to order 3, counsel for the mother indicated that the mother agreed to instead adopt order 5 of the Amended Minute of Order sought by the father. Order 4 is in dispute, relating to overseas travel, but orders 5 to 11 and 24.1 (but not 24.2) were agreed. Orders 27, 28 and 29 were not opposed but not agreed to by the father. The issue in relation to order 24.2 relates to Z’s attendance at B School, and the nature of the transition program he participates in.
There are some relatively minor issues in relation to the interaction of the orders proposed, and the orders made 23 April 2020.
The main issue for determination by the Court is whether the children should live with their mother, or father, or in a shared care arrangement. If the children live in a shared care arrangement, what form should that take? If the children live with either their mother, or father, what time should they spend with the other parent?
There is an issue about which prep school program Z should participate in this year.
There is an issue about whether an order should be made in relation to international travel.
There are other relatively minor and incidental issues that will also be addressed, where necessary.
From the Court’s perspective, the obvious issue is what orders are in the best interests of the children. The answer to this question will involve a consideration of the expert and other evidence that is led in this case and in particular the weight to be given to the evidence of the single joint expert, as well as the evidence of the mother’s treating experts. As will become apparent, this is a case where each parent makes quite serious allegations against the other, some of which are, in reality, somewhat inconsistent with the proposals that they themselves advance. An important but difficult issue for the Court is to assess the significance, on the available evidence, of the mother’s mental health, and in particular her ability to regulate her own emotions in the presence of the children, and the extent to which this either presents a risk of harm to the children, or impedes her capacity to parent them. This issue remains important, despite the strong impression formed by the Court from the available evidence that the mother was the primary carer of these children for most of their life until the nesting arrangement was entered into in April 2020. The father had a very active and important role in parenting the children nonetheless, at all relevant times.
THE EVIDENCE BEFORE THE COURT
In support of her case, the mother sought to rely on the following documents:
(a)Her Affidavit filed 23 December 2020 and corresponding exhibit bundle;
(b)Affidavit of Mr K filed 23 December 2020 and corresponding exhibit bundle;
(c)Her Financial Statement filed 23 December 2020;
(d)The father’s Financial Statement filed 23 December 2020;
(e)A Notice of Risk filed 2 March 2020;
(f)Orders of Judge Kemp dated 23 April 2020;
(g)Expert Report of Dr H dated 16 July 2020 and his subsequent short letter/report dated 12 August 2020;
(h)A Case Outline document filed 13 January 2021; and
(i)A tender bundle of documents provided to Chambers electronically.
In support of his case, the father sought to rely on the following documents:
(a)His Affidavit filed 20 April 2020 and corresponding exhibit bundle;
(b)His Affidavit filed 21 April 2020 and corresponding exhibit bundle;
(c)His Affidavit filed 23 December 2020 and corresponding exhibit bundle;
(d)His Financial Statement filed 23 December 2020;
(e)A Case Outline document filed 14 January 2021;
(f)Expert Report of Dr H dated 16 July 2020 and his subsequent short letter/report dated 12 August 2020; and
(g)A tender bundle of documents provided to Chambers electronically.
THE APPLICABLE LAW
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.

At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)       Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)        the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)       the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)       how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
THE CASE LAW
In MRR v GR [2010] HCA 4, the High Court referred to s 65DAA(1) and said:
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said at [13]:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
However, that is not to say that the Court is restricted to only considering uncontentious matters at an interim stage. As explained by the Full Court in Marvel & Marvel [2010] FamCAFC 101 at [122]-[123]:
122. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
OUTLINE OF REASONS FOR JUDGMENT
In this case it is necessary to closely consider the evidence given by Dr H, the single joint expert. Dr H’s report is dated 16 July 2020 and was released to the parties on 20 July 2020. In addition, Dr H provided a supplementary report which is dated 12 August 2020 and this document is attached to the father’s Affidavit filed 23 December 2020.
After considering Dr H’s report, the medical and other evidence led in the mother’s case will also need to be considered in detail. The reports in question were annexed to the mother’s Affidavit filed 23 December 2020, but there is also the evidence of her treating psychologist, Mr K, contained in his Affidavit, also filed 23 December 2020.
Some preliminary observations about the expert evidence need to be made. Any decision made by the Court is made by reference to all of the evidence, including the expert evidence. This is an interim hearing. None of the evidence has been tested in cross-examination, including that of Dr H. Nonetheless, as long as the Court adopts a cautious approach, it is open to the Court “to rely upon the admissible expert evidence, even though still untested”, to make provisional findings: Pinson & Pinson (No 2) [2020] FamCAFC 111.
In the present case, Dr H had the benefit of an extensive amount of information by the time he interviewed the parents and prepared his report. He is clearly an expert. He is an independent expert whose duty lies primarily to the Court, and not to the parents. He has had the benefit of meeting the parents, and the children, and observing their interactions. The Court accepts that the evidence led in the mother’s case is also expert evidence, but it is not independent evidence. None of the mother’s treating professionals had the benefit of the nature and extent of the material that was before Dr H. The mother’s experts did not have the benefit of meeting with the father and the children, or being able to make observations of the interactions between these people. The mother’s experts did not have a forensic role in the sense, for example, that they were able to rigorously reality test what the mother told them, or cross-reference the information she provided to other data. In assessing the weight to be given to the expert evidence in this case, and subject to a critical assessment of the totality of the evidence in this case, the evidence of Dr H has the advantage of being expert, independent, and having a forensic purpose.
THE EVIDENCE OF DR H
Dr H interviewed both parents and the children on 29 June 2020 and then subsequently spoke by telephone with both parents on 10 and 11 July 2020. He identifies the extensive documentation with which he was briefed. In discussing Dr H’s evidence, the Court will focus on those parts of his report that are pertinent to the issues in question.
Dr H observed the children interact with their father. At page 12 of his report, he summarises this observation:
The boys were well behaved but their father did not appear to be exercising a more controlling form of authority over them. In fact he was very good at involving all of the children in their activities. X presented as a thoughtful boy who was less animated than his younger brothers. Y was very chatty and he seemed to be quite an alert and inquisitive boy. Z also showed himself to be quite articulate, with an imaginative approach. Y and Z were excited by the office chairs, around which they crawled constantly and spun until their father brought out the game they could play together.
I later asked Mr Kwan how representative the boys’ behaviour had been when I saw them with him. He said that they were their usual selves.
Dr H’s impression of the father is summarised in a paragraph on page 12:
Mr Kwan presented as a rather careful, composed and reserved man. He had a rather serious demeanour throughout, including when I saw him with the boys, although he displayed a little more humour and vivacity then. He expressed perplexity that his wife experienced him as over controlling. He tended to not respond to questions in an immediate and categorical way. His style was to reflect out loud on the issue, thinking of this or that aspect of it before formulating a final response. This was associated with a certain degree of hesitancy. However he did not appear to be particularly pedantic.

A summary of the observations of the mother’s interaction with the children is found at page 23:
The children seemed to relate very warmly to their mother and the younger boys were particularly demonstrative with her. She managed to involve all three of them quite actively in the dot game and to shift her attention from one to the other appropriately. Y and Z were quite animated in their communication with her, and they were a bit competitive for her attention. On a couple of occasions one of them, I think Z, used some language which I could not hear fully which resulted in Ms Jansen telling him not to say things like that.
At the beginning of the session, Z was quite annoyed that his mother would not allow him to play a game on her phone. He became quite tearful when she explained that the battery was flat because the other two boys had used it up. It was not until they started playing the dot game that he calmed down, and then he was fine. By this stage it was clear that the issue was that he had not got his own way, although I had initially thought that he was just tired.
I later asked Ms Jansen how representative the boys’ behaviour had been when I saw them with her. She said that they had been quite typical. She said they generally get on quite well although they tend to compete over electronics.
Dr H’s impression of the mother is found in a paragraph at page 24:
Ms Jansen spoke quite quickly and rather loudly, and she was very direct in what she said. Although she was quite articulate and organised in her account of the children’s development, she quickly became quite dysphoric, aggrieved, angry and tearful when speaking about her relationship with Mr Kwan and also with her family, and her voice rose in volume and speed. Particularly when she was agitated, a small number of profanities crept into her account and when describing a couple of outbursts towards her husband, she described her behaviour in rather flippant terms. For instance, she described the impulsive purchase of a $10,000 watch for her husband as being an exercise in seeing whether she could (spend that amount), and also “a big fuck you”. Particularly when she was upset, it became quite difficult to follow her narrative as she moved quickly from one incident to another, at times seeming to conflate them. It was also very difficult to move onto other subjects beyond her grievances about her husband and her parents. Overall she created an impression of a capacity for impatience, impulsiveness and self-absorption.
Dr H deals with the psychiatric history of the father at pages 9-10, and the mother commencing from page 17 of his report. The father’s psychiatric history is largely unremarkable. Dr H raises no concerns in relation to him. The Court observes that what the father told Dr H is largely consistent with his own evidence and the evidence before the Court. In short, there are no issues about the father’s psychiatric history or current mental health.
By contrast, the situation in relation to the mother’s psychiatric history and mental health is more complex. He records that the mother disclosed to him her depression as a teenager and her experiences with bulimia as a teenager and young adult. She reported anxiety in her thirties. At page 18, and specifically in the context of the mother explaining her engagement with her counsellor, Mr K, Dr H reports at paragraph 4:
She told me that leaving her husband has been a four-year process. She said in the last 18 months she has finally been able to see a counsellor Mr K who has been able to help her and who has connected with her in a way in which other psychologists and counsellors she has seen have not. She said that she had decided she had to find a way of managing her anger and he was one of the names that was recommended, and he also worked quite close to where they lived. She said he has also been able to help her to deal with the concept of getting divorced, and to do it without the support of her family. She told me that she initially saw Mr K on a weekly basis, then every second week, and she now sees him about every three weeks.
The issue of the mother’s ability to regulate her own emotions, particularly in front of the children, is a significant one in this case. Clearly, the mother acknowledged to Dr H that managing her anger was an issue for her, and it was one reason why she engaged with Mr K.
In the penultimate paragraph of Dr H’s report, on page 18, he writes:
I asked her whether Mr K had focussed on tools to help her with anger management. She could recall only one session where they had focussed particularly on this, although she commented that one of the things that had brought her to him in the first place was that he works with men with anger management problems and she also read that he had had other experience with domestic violence.
On page 19 of Dr H’s report he continues his line of inquiry about the mother’s ability to manage her anger. Dr H records the following in the first two full paragraphs on page 19:
After Ms Jansen had described a number of grievances in relation to her parents and Mr Kwan, during which she had become very distraught, I asked her about her capacity to manage her anger. She said that the problem is that she could not have a discussion with Mr Kwan. She gave as an example a prospective visit by her parents to Country J after his parents had visited them there three times. If I understood correctly, he objected to this on the basis of a number of issues including her poor relationship with her parents and the cost of the blender. She added that he also objected to the way that she spoke and her accent, I believe referring to the way he felt her angry mood was being expressed. She essentially painted a picture of increasing frustration and rising rage. In relation to the incident when the police had been called in Country J, she said that ultimately after an argument like this she had gone into the bathroom in order to turn on the shower to drown out the sound of his voice. In the process of this, she slammed the door so hard that it jammed.
I asked her whether the children had been exposed to aggressive outbursts. She said that sometimes she might throw a toy or a box of nappies across the room. She said that when “this shit goes through my mind” she becomes extremely frustrated and angry.
From the Court’s perspective, it is clear that the mother was acknowledging to Dr H that she did struggle sometimes to manager her anger, and that the children had been exposed to her aggressive outbursts.
Dr H goes on to record the mother’s history of suffering distress, depression and anxiety, which she contextualised as being relationship issues.
At page 21 of Dr H’s report, he refers to an affidavit of Dr N, the mother’s consultant psychiatrist, sworn 16 April 2020, as well as the documents obtained under subpoena from her practice. The two paragraphs, including over to page 22, are significant in this case because of the mother’s own admissions.
I note the affidavit of Dr N, Consultant Psychiatrist sworn April 16th 2020 and the documents obtained under subpoena from her practice. She first saw Ms Jansen in April 2018 on one occasion, probably as a result of Ms P’s recommendation, then on three further occasions in early 2020. At the initial consultation on April 5th 2018, she records a reasonably detailed background history, the more relevant elements including marital problems, finding her husband controlling, and a history of depression including first when she was 16 and treated with an antidepressant fluoxetine, then an eating disorder for about ten years, then postnatal depression after all three of the children and for the two years since moving to Australia. She had seen two psychologists whom she regarded as unhelpful. She reported that her husband did not listen to her, and that she is powerless about their financial situation and living arrangements. She said she was staying for the children. Her husband was not violent but he was aggravating, like her father was. She reported that she wanted to work on self-esteem and making decisions. She reported that she had thrown a pot at her husband as well as coat hangers and she had slammed doors, and that he has called her violent. She expressed that “separation would be bliss”. Dr N found her to be a bit pressured and angry in her presentation, and that she was a bit disorganised in her thoughts. In her letter back to the referring doctor, it appears that Dr N was tending towards a diagnosis of depression but she made no specific recommendations about changes to medication and apparently had scheduled four further appointments, although these do not appear to have occurred.
There are then three further consultations in February, March and early April 2020. At the first consultation on February 24th 2020, her husband was refusing to move out and her parents were apparently supporting him. She indicated that he did not accept what she was saying about getting a divorce. She reported screaming, swearing and throwing things, but not at him. She also reported that her parents had sent her another critical email. She notes that her husband had accused her of alcoholism. She said that she occasionally has a night time drink, up to three but no more. She goes on to describe her commitment to the children and she comments that she sometimes swears, apparently at her husband, but that she is not abusive to the children. She refers to once having slapped Y after he called her a f-ing bitch. At a further consultation dated March 29th 2020, she reported that mediation had gone nowhere. She described what sounded like a tug of war over the children between she and her husband under the then circumstances in their home. She goes on to describe her activities with the children, rebutting her husband’s accusation that she is a poor parent. At a consultation on February 3rd 2020 Ms Jansen reports that her husband had taken out an AVO against her the previous day after the incident with the trampoline. She described having disagreement about where to put a trampoline but she bought it anyway. She said that her husband has alleged that she had intimidated and threatened him which she denied. She explained that she had a pole (part of the trampoline) in her hand and she told her husband to f-off but she had no intention to hit him, however her husband kept goading her to. Apparently she also felt burdened by X who wanted to talk with her about bullying, and she felt she was at breaking point. She said the AVO was just another way of trying to control her. Her plan was to move into the play room. She wanted her husband to move out but he was refusing. Dr N has also prepared a report for Ms Jansen’s legal representatives which is dated April 8th 2020. This is very brief. She notes that Ms Jansen’s depression appeared to be in remission. Nevertheless she recommended that she continue to take the antidepressant which she had been taking, and that she continues to see her psychotherapist Mr K.
It is not entirely clear from the above whether Dr H is simply setting out his summary of Dr N’s report and documents, or whether it is based on what the mother told him, or whether it is a combination of the two, or indeed something else. Nonetheless, no submission was made in the mother’s case that Dr H’s summary was factually incorrect. Indeed, a report from Dr N, dated 8 April 2020, is exhibited to the mother’s Affidavit, and is not inconsistent with Dr H’s summary. The Court observes the mother’s admission that the father was “not violent”. The Court notes her admission that she had thrown a pot at the father, as well as coat hangers, and that she had slammed doors. She seems to have acknowledged that the father called her violent. She presented as angry. The mother admits that she once slapped Y. In relation to the trampoline incident, the mother admitted that, “She told her husband to f-off, but she had no intention to hit him”, all in the presence of the children.
Dr H reports on his interviews with the children. For present purposes, the focus will continue to be on the issue of the mother’s capacity to regulate her emotions in front of the children. At page 26, in the context of his meeting with X, Dr H records :-
I asked him why his parents were no longer living full time at home. He said that it was because his mother was getting angry at their father because he was bossy and she had a tantrum about that. By tantrum, he explained that she had been yelling and calling their father names. He told me he did not like watching this. He said his father does not have tantrums although if I understood him correctly, Z does at times. He went on to tell me about his mother having a tantrum about the trampoline. I asked him to explain what had happened. He said that she wanted to have it in the front of the house, and she started to unpack it and put it together. Their father arrived home when she was doing this and told her that she had to put it out the back. He said his mother starting throwing pieces of the trampoline at the fence and that was what led to everything changing. He added that the pets had been pretty scared because they heard the fight. He went on to explain that his mother had not wanted the trampoline at the back of the house because her garden is “her happy spot”.
I asked him what he meant by his father being bossy. He basically described their father being quite organised and when it is time for them to do something, he tells them when they have to go. He added that his father’s “happy spot” is his study.
I asked him how he had felt when his mother got angry about the trampoline. He did not seem to want to talk about this, so I asked him how he felt about the current arrangements of each parent coming into the home for two days at a time and whether he would change them at all if it was up to him. He initially said that he would leave the arrangements the same as they are at the moment, but then he added that sometime he would like each of his parents to have their own home. He thought that their mother would get a house in the bush because she likes the bush and the garden, and that his father would get a house that had a Playstation V. He said that he would call his father’s home the “electronic” house. He went on to say that his mother would get her brothers to help her build a house in the bush. He told me he would be excited if both of these houses were built because then he would get two things he really likes – electronics and trees. He also talked about building a treehouse.
In relation to Y, Dr H records at page 30 :-
I asked how he felt about the current arrangement. He said he feels angry about it. When asked, he said if he had the chance to change it, he would make it the way it used to be, by which he meant his whole family living together. I asked him why they were not living together any more. He said it is because his mother does not want to live with his father. He said that she did not like sleeping with him and if I understood him correctly, there was a little while when she had slept in the same room as he and Z. He went on to add that his mother had said that their father did not let her do anything. I invited him to tell me a bit more about that. He said they used to fight and his mother would fight in a mean voice. He added that his father has said that whatever their mother says is a lie. He told me he thinks that too. He said that his father just tries to solve the problem but his mother just gets angry and swears.
Whilst this evidence is untested, it is nonetheless independent expert evidence. The unfortunate impression formed is that the mother has historically struggled to manage her emotions, including anger, in front of the children who have been exposed to her aggression. Certainly, Y and X appear to be conscious of the differences between their mother and father.
Dr H’s conclusions and recommendations commence from page 32. What follows is only a summary. Based on the accounts of both parents, as well as X and Y, it was clear that the children had been exposed to a significant amount of conflict between the parents, which has resulted in them picking up each parent’s views about the other. Nonetheless, it is clear that both parents have been quite involved with the children throughout their lives, with the mother probably being the primary carer overall, but with the father also being quite involved with them, particularly in the area of more structured activities, but not limited to that. The children related quite warmly to both of the parents, and the parents engaged well with the children.
At the top of page 33, Dr H states in the top two paragraphs:
I felt that the children have quite a good relationship with both parents under the circumstances. However I felt there was something of a differential in the children’s behaviour with each of the parents. They seemed to enjoy their time with each of them, but in different ways. With their father, their behaviour tended to be fairly orderly and there was a focus on following the rules and taking turns, although not to an oppressive extent. With their mother, they were more exuberant, physical, spontaneous and expressive. I think I picked up some bad language by Z although I could not identify exactly what was said, just that Ms Jansen seemed to tell him not to talk like that.
Overall I formed the view that the boys have a good attachment to both of the parents. It was not clearly apparent to me at the assessment that they felt more anxious or insecure around their mother as their father alleges, although the nature of his account, X’s avoidance of the subject, and Ms Jansen’s own references in the records to having turned her anger on X, suggests that this could easily be the case. It also did not appear to me that a desire by the father to control things had extended into the boys’ lives in a way which has been harmful, or has caused them to be more vigilant or in a degree of fear of him.
Dr H felt that the two older boys expressed views commensurate with their age and also partly responsive to the climate within the home. He felt that there was nothing from anything the boys said or from Z’s behaviour to suggest that they would like anything other than spending as much time as they could with both parents.
Dr H felt that the relationship between the parents and the children was affected by long standing conflict, but in his view:
“The element of that which has had the greatest impact on the children has been their mother’s volatility, particularly directed towards her husband, but also at times, and probably known to the children, towards her own family, with occasional outbursts being directed toward the children” (page 33).
Dr H felt that both parents were willing to facilitate and encourage the children’s relationship with the other parent, but that the mother would have more difficulty putting this into action consistently due to her high level of reactivity to what she perceives as controlling or critical behaviour by the father.
Dr H records his concerns about issues of parental capacity, commencing from page 34:
I note my comments above. In this context, I formed the view that Mr Kwan has been quite involved with the children, perhaps not as deeply as his wife in some areas, but significantly more consistently and predictably. While I think that Ms Jansen understands the children quite well and has a reasonably good appraisal of their needs, the instability of her mood is a substantial problem which causes the children to be a bit intimidated by her to the extent that they find her a bit hard to predict in terms of how she might react. It appears that there have been incidents in which her rage has been turned on the children, although fairly infrequently, but much more often there seems no doubt that the children have been exposed to her rages at her husband which at times have had a fairly threatening tenor. I am also of the view that she either significantly underestimates the effect that this has had on her children, or she cannot control her rage at their father in front of them, or both.
I note later that I felt that an element of Ms Jansen’s character is that she is rather distractible and impulsive. I think it is likely that this has permeated her parenting such that she is less likely than Mr Kwan to follow routines, particularly the more boring and repetitive routines, involved in the day to day care of three children. Mr Kwan gave me a fairly detailed account of what he used to do and still does on his days, which I largely accept. While normally one does find some difference between even more or less equally committed parents in respect of routines, the way those parents often balance this matter up is that they either consciously or subconsciously divide the routines among each other. In this family I think it is likely that Mr Kwan has been responsible for maintaining the continuity of most of the routines in the household, which he has almost certainly done in a fair, responsive and consistent way, whereas Ms Jansen is probably significantly more capricious in this regard, although not by any means uncaring. Another problem I think is that she is an impatient person and this is also a characteristic which provides challenges when parenting three boys whose ages are only five years apart.
I think it is likely that both of the older children are consciously distressed by their mother’s unpredictability, and it is having a similar effect on Z although at a less conscious level in the form of disorganizing his behaviour and copying her. Particularly if Ms Jansen has relatively little to do with Mr Kwan in the future, hopefully her grievances about him will abate somewhat and she will also become more capable of managing her temper which will lead to her being less volatile with the children. However I am concerned that one challenge for her as the children grow older is that when they enter their adolescent years, they may become more oppositional with her which she may find quite provocative and not handle very well.
Both parents have also had different particular strengths. In Mr Kwan’s case, these seem to lie in the area of routine, sports and aesthetics. In Ms Jansen’s case, they probably lie better in the area of less structured outdoor activities. I also felt that she can be better attuned to the boys’ emotional state, which at times she responds to and at other times she ignores, particularly if it is a response to her behaviour.

Dr H was not of the view that the father suffered from any diagnosable mental illness or personality disorder. His impression was that obsessional rigidity was not a central part of the father’s character.
By contrast, however, Dr H had significant concerns about the mother’s mental health. He discusses this at pages 35 to 36 of his report:
I felt that Ms Jansen does have significant mental health problems. She has a history of recurrent depressive symptoms since her late teenage years, a prolonged eating disorder in her 20s, depressive symptomatology after each of the children’s births, and conflict and volatile relationships, initially with family and recently with Mr Kwan, if not others. However what is probably most significant is that she also seems to be quite an impulsive, verbally and physically aggressive person who takes relatively little responsibility for what she says or does, preferring to blame the perceived aggressor. This also appears to be referred to in the records of previous therapists, particularly Ms W and more recently Dr N and possibly also Mr K. Indeed, she is very inclined to blame others – her husband and her family principally – for treating her in unacceptable ways.
Both Dr N’s opinion and mine was that in personal interactions, she talks loudly, quite fast. During my interviews, she made some rather unusual and quite flippant statements which seemed to amount to personal justification for some quite impulsive actions such as purchasing a $10,000 watch for her husband. In the context of the Family Court matters that I see, it is rather unusual to come across a woman with her degree of disinhibition, in terms of what she says, how she says it, and the record of her behavioural outbursts. This leads me to wonder whether in fact beneath her mood problems, she has a basically unstable, impulsive type of personality or even an untreated Attention Deficit Disorder. In any event, the important matter is that if she does, she has relatively little insight into it. Her interview with me was dominated by her desire to blame others for intemperate action rather than to take responsibility for it, or for the impact on her children.
I note that she has been seeing a counsellor whom she told me initially has been focussing on anger management, Mr K. This was not evident from his report, and I would strongly recommend that his records be subpoenaed to ascertain the extent to which she has been candid about the nature and depth of her problem, as well as the extent to which she has put into practice whatever recommendations he may have made.
In terms of prognosis, it is likely that her behavioural issues represent a life long pattern which will be difficult to change. If indeed she does have an underlying Attention Deficit Disorder (perhaps with Hyperactivity), then it may be that medication treatment may be of a great deal of assistance. However if that is not the case, then anger management therapy in properly qualified hands may be of most assistance. It is probable that whatever personality factors underlie her behavioural problems, they have made her vulnerable to other conditions including mood problems and eating problems. Whatever the cause and the relationship between her various mental health issues, it is not my view that these are going to resolve quickly, and certainly not within the range of Z’s primary school years for example, as at least 6 years of periodic counselling and antidepressants appears to have had little or no effect so far. They may settle over a longer time frame, partly due to maturational factors which hopefully will be accelerated by more specific treatment.
Interestingly, notwithstanding his concerns about the mother’s mental health, Dr H’s view was that prior to a final hearing, the current arrangement should be rationalised without actually changing the distribution of the children’s time with each of their parents. He added, however, “beyond that, it is my view that Mr Kwan can provide a more stable family environment for the children, and one which the children will accept and in which they will flourish”.
He went on to express the view that the mother was the main contributor to an atmosphere of family violence to which the children had been exposed. This has mostly been verbal, and turned upon the father, but the children have frequently witnessed this and also periodically been the object of her ferocity. He was of the view that this amounts to a form of emotional abuse and that unless the mother is able to contain herself more effectively in the future, he believed that there was a risk that the older and the stronger the boys become, the more likely that her temper outbursts will be directed towards them, possibly even at times in the form of physical violence.
Dr H felt that the mother did not have sufficient capacity to communicate and cooperate with the father for an equal time arrangement to be beneficial to the children.
He then specifically addresses the “spends time with” proposal at pages 37-38 of the report:
I note that the children currently reside in the matrimonial home and it is the parents who move back and forth from the home on a schedule which entails both parents having their own two day block each week, the mother Tuesday and Wednesday nights and the father Thursday and Friday nights, with the remaining three nights a week being balanced between the parents to essentially provide an equal time arrangement. While the younger boys seem to be reasonably content with this at the moment, I think that at this early stage it is probably largely because they see it as a fair (symmetrical) arrangement between their parents. However X is more aware of the intrinsic failings of such an arrangement for parents whose potential for conflict is still high. I also note that the changeovers are face-to-face and occur in the home at 7.30 in the morning on school days and at 9am on other days.
In my view there are several issues which will make this arrangement either unsustainable or too distressing to the boys, or both, during what is likely to be an extended period until the Final Hearing. It is my view that the number of changeovers required by such an arrangement are unnecessary and that they could be reduced to either one a week if it was basically a week-about arrangement, or to two a week if the boys spent five days one week and two days the other week with each parent to include alternate weekends. This could be arranged so that Ms Jansen still has the children every Monday and Tuesday night and Mr Kwan has them every Wednesday and Thursday night. I would favour this because it represents little change from the current arrangement and it will test the mother’s patience less than will a week about arrangement. In addition, because the changeovers would occur on a weekday, they could occur through school which would avoid the parents needing to come into direct contact with each other. Finally, the school holidays could be split equally between the parents in larger blocks.
At this point in my view, the preferred long-term arrangement for the children would be one where they live longer with their father and spend less time with their mother. Depending on how she manages the children and herself prior to the Final Hearing, I would recommend either a five nights a fortnight or a three nights a fortnight arrangement during school terms, and half school holidays.
Dr H’s further report dated 12 August 2020 was in response to specific questions asked on behalf of the father. The questions are reproduced below:
1. In the event that the interim orders determined at the upcoming interim hearing remain in place until 2022 or later, could you please comment on:
a. The impact of the Mother's "significant mental health problems" (page 35, point h) on the children pending a final hearing.
b. The impact on the children of an equal time arrangement pending final hearing, if the Mother's parenting is marked by "behavioural outbursts which are part of a "unstable, impulsive type of personality" (page 36 of your report)
c. The impact on the children's emotional and psychological health if the Mother has not completed anger management treatment.
2. You noted that the Mother was distractible and impulsive (page 35). The youngest child Z is 4 years of age (his date of birth is in 2016) and will be commencing school in 2022.
a. Did you form a view as the Mother's capacity to manage the children's day to day organisational needs in relation to school and extra- curricular attendance? If so, what is your view.
b. ls there a risk that the children would be exposed to the Mother's volatility and outbursts (page 33, point d) in these circumstances.
3. You now have a copy of Mr K's subpoena notes. Do those notes indicate that the Mother is undergoing the therapy as recommended in your report at page 36? Do Mr K's notes change your recommendation in respect of interim orders you propose?
(errors in original)
In his subsequent report Dr H deals with the issue of Dr K’s records. He observes that the issue of the mother’s anger management was rarely mentioned by the mother and was in fact mentioned by the father when he met Mr K. Nonetheless, Mr K’s records referred to an admission by the mother that she had thrown objects at her husband and had lost her temper with the children. Whilst Mr K did provide the mother with some material about anger management treatment, this does not appear to have led to a refocusing of the counselling.
In answering the first question, Dr H states:
1. In the event that the interim orders determined at the upcoming interim hearing remain in place until 2022 or later, could you please comment on:
a. The impact of the Mother’s “significant mental health problems” (page 35, point h) on the children pending a final hearing.
My concern was that Ms Jansen has long standing mood problems beneath which there is a basically unstable, volatile, impulsive type of personality or an untreated Attention Deficit Hyperactivity Disorder. I also note that Mr K reports that Ms Jansen had been more organised, settled and calmer since the separation, which I accept. However when I saw her about three months after the separation, she still presented as extremely reactive and volatile, which lead me to the above conclusions, and that her problems would be ongoing without further intervention. Indeed Mr K’s decision to ask her to complete an ADHD questionnaire in June 2020 suggests that he may have had concerns that there was an underlying volatility and irritability which may not be explained fully by relationship difficulties with Mr Kwan.
So your question is what impact could that degree of fluctuating attention, volatility and irritability have on the children over a period which may be as long as two years or so in a shared care arrangement. My view is that it is likely that this would have significant adverse effects on the children. I have pointed out in my report the particular vulnerabilities of each child in this regard. Should the mother’s emotional and behavioural problems persist for two years or so, it is also likely that they will play an important part determining each child’s personality into adulthood, with the general principle being that the older the child the greater the effect because they have been exposed to it longer. There are a range of impacts of this type of behaviour which include fear that their mother’s anger will be turned on them, insecurity and anxiety over when their mother will next be angry or distraught, blaming themselves for fluctuations in their mother’s mood and attentiveness, and imitating their mother’s aggressive behaviour in conflict situations.
He then deals with the second part at page 3, namely the impact on the children of an equal time arrangement
b. The impact on the children of an equal time arrangement pending final hearing, if the Mother’s parenting is marked by “behavioural outbursts which are part of a “unstable, impulsive type of personality” (page 36 of your report).
I am concerned that the parents do not have the capacity to communicate and cooperate to the degree which is required for an equal time arrangement. My concern is that the principle instigator of problems in this area will be the mother, and that her contribution to communication and cooperation will be characterised by volatility and aggressiveness towards the father to which the children will be exposed. It is primarily for that reason that I indicated in my report a preference for an ultimate arrangement in which the children live predominantly with their father on either a 9:5 or an 11:3 arrangement. Both of these arrangements would provide for most of the mother’s time occurring on weekends and school vacations.
I formed the view from my assessment that her parenting strengths lie primarily in less structured time and activities as these are more congruent with her high energy level, less focus on rigid routine, and capacity to shift focus quickly. It is also my view that time with their mother under less structured circumstances is less likely to give rise to conflict with the children during which she could air her frustration and impatience inappropriately. Mr Kwan in contrast is a highly organised person who is reasonably patient, quite persistent, and who sets consistent standards which he expects to be met within the children’s reasonable capabilities. I think that he would manage the differently demanding school week parenting responsibilities in a much calmer manner than would Ms Jansen.
Then Dr H also deals at page 3 of his supplementary report with the issue of the mother not having completed anger management treatment:
c. The impact on the children’s emotional and psychological health if the Mother has not completed anger management treatment.
It appeared to me that Ms Jansen did not articulate to Mr K a detailed account of the extent of her capacity for volatility, verbal violence and intimidating behaviour. Nevertheless it seems that he did gain some sense of this from her presentation over time and also from Mr Kwan’s account to him. However despite she telling me that she had consulted him for assistance with anger management, it does not appear that this was ever the primary focus of his quite structured therapy. I conclude from this that Ms Jansen has not embarked on any anger management treatment up until the time that I saw her.
Reading Mr K’s notes, it seems likely that he made some attempt to focus on anger management, but Ms Jansen consistently shifted the focus away from that to blaming her husband and her family of origin. I conclude from this she is going to be quite a challenging person to engage in anger management treatment as her acknowledgment of this as a critical issue is fleeting at best.
In terms of the impact of this on the children, poor anger management is one of the most important and damaging element of the significant mental health problems to which I refer in Response 1 (a). It affects her capacity to parent consistently, fairly, and in an emotionally measured way, and it risks the children continuing to be exposed to inappropriate emotional, verbal and possibly at times physical abuse. Another concern is her strong inclination to blame others in conflict situations, which could lead to her inappropriately blaming the child, even if she is the one who is losing control.
(error in original)
In this regard, the Court notes that the mother provided a report from her psychologist, Mr Q, dated 26 October 2020. This will be discussed below. In the remainder of his report, Dr H expresses concern that the mother’s impatience or experience of negative emotions which could lead to a loss of control would hinder her ability in terms of the day to day organisational needs of the children in relation to school and extracurricular activities.
It is clear that once Dr H became appraised of the unfortunate reality in this case that a final hearing is probably as far away as 2022, he suggested implementing a 5:9 arrangement during school terms, where the children spend five nights in a fortnight with their mother and nine nights in a fortnight with their father, and alternate weekends. The orders will reflect this, with the mother’s time to commence on a Thursday each week. This arrangement gives the mother the same weekday after school each week to organise herself and maintain regular contact with the boys’ school, as well as providing a very predictable routine for the boys.
It is clear to the Court that Dr H was seeking to balance clear concerns about the mother’s ability to regulate her emotions in front of the children, with the fact that they have a good relationship with her and she was probably the primary carer for them. In short, he felt that any risks could be managed by limiting the mother’s time with the children to five nights out of 14, thus ensuring that they continue to have a meaningful relationship with her.
THE EVIDENCE FROM THE MOTHER’S TREATING EXPERTS
In the mother’s Affidavit at paragraphs 108-116 she addresses her mental health issues. It is in this context that a number of reports from her treating doctors become evidence.
The first report is from her GP Dr R, dated 6 February 2020. This explains that the mother was diagnosed with postnatal depression in 2016, confirmed in 2017. This was managed by antidepressant medication and psychological treatment. Dr R’s diagnosis was revised in September 2017 to melancholic depression, with a resulting change in antidepressant medication. Dr R currently assesses the mother as suffering from depression with continuing symptoms due to relationship difficulties.
The second report is from Dr N and is dated 8 April 2020. Dr N was referred to in Dr H’s report. She describes herself as the mother’s treating psychiatrist since April 2018. When the mother initially presented, Dr N notes that she was distressed, angry, very stressed and tearful. She later presented as “upset, frustrated, and tearful with loud speech”.
The mother was taking an antidepressant, Duloxetine 60 milligrams. At her last consultation, on 3 April 2020 Dr N writes:
…she was markedly distressed, frustrated and angry which she attributed to her husband’s recent behaviour. She was disappointed that mediation had not been helpful. She was anxious about her children and their wellbeing…
The next report is from Dr S and is dated 26 October 2020. The mother consulted Dr S in the context of seeking expert evidence. A mental state examination was conducted on 14 September 2020. The mother presented as frustrated but settled and did not raise her voice. Dr S noted that the mother’s mood and affect were euthymic. She records that:
Thought, form and speech were circumstantial and she was very hard to keep on track. With respect to thought content she was extremely preoccupied with her husband’s treatment of her, which she labelled as emotionally abusive…
A further mental state examination conducted on 29 September 2020 again referred to the mother as circumstantial but composed in her behaviour.
Dr S was of the view that the mother does not have ADHD, a matter of course which is referred to by Dr H. Indeed, it is clear that Dr S had available to her Dr H’s report. In a paragraph found on page 3 of her report, Dr S writes:
I also asked her about possible current symptoms of ADHD as mentioned in Dr H’s report, such as impulsivity, which I do not think she has, but quickly changing hobbies – which it seems on questioning she does not – and aggression, which I think is in the context of extreme frustration at the marital situation.
It seems as if Dr S also came to the view that the mother’s liver function tests did not support the contention that the mother drank excessively.
The final report relied upon is one from the mother’s current treating psychologist, Mr Q. His report is dated 15 December 2020. It is clear from this report that the context of the referral was for him to primarily focus on anger management issues. There were seven counselling sessions between 17 August and 7 December 2020. Mr Q acknowledged that there was no interview with the father or other family members, and thus he “acknowledged that there can be risks of bias regarding the clinical judgment presented in this letter, due to the above limitations”.

There is an issue between the parties about the children spending time with their parents during the period of Christmas Eve to Boxing Day. The father proposes that the mother spend time with the children from 9am on the 23rd of December to 9am on Christmas Day in even numbered years, and then from 9am on Christmas Day until 9am on 27 December in odd numbered years. The mother’s concern is that she misses out on Christmas Eve with the children on each alternative year. Christmas Eve is a very special family time for the mother.
The mother proposes that she would spend time with the children each Christmas Eve, but that the children would spend time with their father from 3pm Christmas Eve until 3pm Christmas Day during even numbered years. Presumably this gives to the mother and children the benefit of spending Christmas Eve together each year, at least until 3pm in alternate years. The benefit to the children of the mother’s proposal is that they get to spend time with both parents on Christmas Day, each year. In even numbered years, they would spend Christmas Day with their father until 3pm, when they would go to their mother, and, conversely, in odd numbered years, they would spend Christmas Day with their mother until 3pm then go to their father. Accordingly, the Court will make order 2.3.4 of the mother’s order but the order which she added about overseas travel will not be included.
There is an issue between the parents as to Z, who is attending B School in 2021, but the parents are unable to agree as to which prep program he should be involved in. The father says that Z should continue in the three-day prep program on the basis that he is not ready to proceed to five days. The father seems to be relying on a statement made by Ms BB, Z’s teacher at B School. According to the father, Ms BB suggested to him that continuing in the three day program presents less of a change for him, which was important in a context where she understood that there was quite a bit of change to occur in Z’s life. The mother’s evidence on this issue is found at paragraphs 152-159 of her Affidavit. She contends that Z’s teachers have advised her that Z will derive greater stimulation by attending what is known B School’s C program, which is five-day per week school readiness program. She deposes that Z’s friends are moving into this program, and that Z will be on the same campus as his older brothers. The mother also deposes to negotiations with the father about the costs of Z attending the transition gold program, and offered to, in effect, meet the cost, once the final settlement was completed.
The issue is clearly an important one for Z, but the quality of the evidence presented to the Court to assist in making this decision is not very high. Obviously, this decision cannot be made on the basis of whether, and if so what advice was given to the parents by Z’s teachers. On balance, the Court prefers the mother’s proposal, particularly if it means that Z will continue in the company of friends, as well as being on the same campus as his older brothers. Accordingly, the order will be made as per 24.2 of the mother’s orders.
Further interim orders will be made to reflect the Court’s findings above. There may need to be some rationalisation in order to achieve consistency between the existing order, and the proposed order. That will be reflected in the orders made.
In a document titled Minutes of Consent Orders received by the Court on 26 February 2021, it was indicated that the father neither consents to, nor opposes, orders 28-32 of the orders made on 23 April 2020 remaining in full force and effect. The Court has considered those orders. Orders 28 and 29 pertain to property and has been dealt with in the orders made by consent on 15 January 2021. Orders 30-32 are general orders relating to parenting and the Court sees no issue with their continued operation alongside the orders made today.
It is unclear whether the parents agreed to orders for family therapy and parental education. In any event this court believes that these orders would be in the best interests of the children, and that the parents would benefit from this. The orders will be made.
Doing the best the Court can do, it considers these orders to be in the best interests of the children.
The Court records that it has considered expediting this case but quite apart from the issue of whether the property aspect of the matter can be ready for a hearing in 2021, there are no objective factors suggestive of expedition being granted to this case. The matter will be referred back to a registrar for further case management.

I certify that the preceding one hundred and thirty-two- (132) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.
Associate:
Dated:       1 March 2021
SCHEDULE A
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
ATSYDNEY   File No. SYC1403/2020
BETWEEN   MS JANSEN
(Applicant)

AND MR KWAN
(Respondent)

SECOND FURTHER AMENDED MINUTES OF ORDERS SOUGHT BY WIFE
AT INTERIM HEARING ON 15 JANUARY 2021
Parenting Orders
1. That the children, X born … 2010, Y born … 2013 and Z born … 2016 ("the Children") live with the Mother.
2. That the children spend time with the Father as follows:-
2.1.During school term:-
2.1.1.In week 1 and each alternate weekend from after school Friday until just before the commencement of school on Monday; and
2.1.2.In Week 2 and in each alternate week, from after school Wednesday until just before the commencement of school on Thursday.

2.2.During school holidays for one half of all NSW School holidays with the parties to agree as to which half but in absence of agreement, the Father to have the first half in odd numbered years and the second half in even numbered years, however:
2.2.1.When the borders reopen and the Government declares that it is safe to travel to either Europe or Africa, the following shall apply:
(a)     If the Mother is travelling to Europe, then the Father’s time with the children during the July school holiday will be suspended;
(b)     If the Mother is travelling to Africa, then the Father’s time with the children from conclusion of school to no later than 30 December is suspended;
(c)     The travel and suspension of time only applies to one overseas travel per year.

2.3.On special occasion:-
2.3.1.on Father’s Day from 9:00 am to 6:00 pm;
2.3.2.on the Children’s birthdays as follows:-
(a)     if the children's birthdays fall on a non-spend time with school day then with the Father from the conclusion of school until 6:00pm, and
(b)     if the children's birthdays fall on a non-spend time with weekend then with the Father from 9:00am to 2:00pm.
2.3.3.on the father's birthday as follows:-
(a)     if the father's birthday fall on a school day then with the father from the conclusion of school until 6:00 pm, and
(b)     if the father's birthday fall on a non-live with week then with the father from 9:00 am to 2:00 pm.
2.3.4.for the period from Christmas Eve to Boxing Day as follows:-
(a)     in even numbered years with the Father from 3:00 pm, Christmas Eve until 3:00 pm, Christmas Day, and
(b)     in odd numbered years with the father from 3:00 pm, Christmas Day until 3:00 pm, Boxing Day,
however, if the mother is allowed to travel overseas during the Christmas holiday, then the Father's time referred to herein is suspended.
2.3.5.for the period Good Friday to Easter Monday as follows:-
(a)     with the father in even numbered years from 9:00 am, Good Friday until 12:00 noon, Easter Sunday, and
(b)     with the father in odd numbered years from 12:00 noon, Easter Sunday until 6:00 pm, Easter Monday.
2.3.6.from 2pm NYE until 2pm NYD in even numbered years and each alternate year thereafter.

3. That the changeover occur at the Children's school except on the Saturday/Sunday or school holidays where on those occasions the changeover is to occur outside the Mother's home.
3A.That without concession should Order 2.1 hereof not be made, the children shall live with the parties as follows:
(i)During school terms, the children shall live with each of the parents as follows on a 14 day cycle:
(A)from 9am Monday until 9am Wednesday with the Mother;
(B)from 9am Wednesday until 9am the following Friday with the Father;
(C)from 9am Friday to 9am Wednesday with the Mother; and
(D)from 9am Wednesday until 9am Monday with the Father.

Overseas Travel
4A.That Orders 10 and 11 of the Orders made on 23 April 2020 be discharged,
4B.that in the event that Orders 10 and/or 11 of the Orders of 23 April 2020 are not discharged or suspended, then the wife seeks the making of Order 4 below.

4. That when the travel restrictions ease and the borders re-open and when the Commonwealth Government declares it safe for overseas travel, the wife be permitted once per year to remove the children out of the Commonwealth of Australia for the purposes of taking the children on a holiday either to Europe or to Africa and to this end:
4.1.if Order 4A above is not made, then: Order 10 of the Orders made 23 April 2020 be suspended during the travel period;
4.2.if Order 4A above is not made, then: The Father hand to the Mother the children’s passport not less than 3 weeks prior to the intended travel;
4.3.The Mother provide the Father with notice about her intention to take the children on an overseas vacation not less than 4 weeks prior to the intended travel together with an itinerary showing the departure date and return date; the email telephone number and address where the children will spend the majority of their time overseas;
4.4.if Order 4A above is not made, then: Within 14 days of the children's return to Australia, the wife is to return the children's passports to the Husband.

Telephone Number and Address of Children
5.   That both parents advise and keep advised the other of their respective residential address, landline, mobile telephone numbers, email address, Skype address and any changes thereto at all times and within 24 hours of the same occurring.
Change of Address
6.   That in the event that either parent moves from where they live that parent will notify the other (2) weeks prior to such move of any change of address and within 24 hours of change of telephone numbers where that parent can be reached.
Children’s Medical Information
7.   That each parent inform and keep the other informed at all times of the Children's health and/or health related issues, and in the event that the Children are required to undertake a medical procedure, consult with the other as soon as is practicable.
8.   That each parent inform the other in writing as soon as practicable of any specialist medical appointments (but not general medical general practitioner appointments) including appointments with any dentist or other health professional and provide the names, contact telephone numbers and addresses of all treating health care professionals attended by the Children.
9.   That each parent provide to the other a copy of any report prepared by any such specialist medical consultant or relevant health professional within 48 hours of receipt of same and otherwise in a timely manner.
10. That in the event that the Children or either of them is involved in a medical emergency such parent shall notify the other immediately and provide details of the health care professional or medical facility that the Children or either of them attends.
OFW
11. That the parties continue to use the "Our Family Wizard" App for the parties communication about parenting issues referrable to the children.
Furniture and artworks and effects
12A.That the wife be entitled to retain all of the furniture, furnishings and household effects and artworks situated at the L Street Suburb N.
12B.That the Husband be entitled to remove from the L Street Suburb N property his personal effects, clothing and personal papers.

Spouse Maintenance
13. That pursuant to s.72 of the Family Law Act, the Husband pay as and when fall due to the wife or for her benefit or as directed by her the following:-
13.2.the Husband is to pay to the wife or das directed by her:
13.2.1.The cost of removalist for the wife to remove the furniture, furnishings and household effects in the Suburb N property to the wife’s new accommodation;
13.2.2.Rental bond of 4 weeks on property she will rent up to $6,400;
13.2.3.The wife's 4 week rent in advance of $6,400;
13.2.4.The wife's rent as and when it falls due up to $1,600 per week.

13.3.Maintain the Wife in the Private Health Insurance cover with top cover for hospital and extras;
13.4.Pay the landline phone at the home the wife occupies;
13.5.Pay the wife's mobile phone account as and when it falls due;
13.6.Pay the registration and comprehensive insurance and al repairs and maintenance to the motor vehicle the wife drives;
13.7.Arranges forthwith a car permit for parking for the wife's motor vehicle and do the same each year around the time of renewal of registration;
13.8.Renews and provide to the wife each year the yearly National Park Parking Permit;
13.9.Pay the wife by way of periodic spouse maintenance the sum of $1,750 per week.

Noting the payments to be made under this order is an obligation against the Husband (and not by way of trust distributions that he may cause to be made by the trusts he controls).
Distribution of beneficiary accounts in wife’s name
14. That forthwith the Husband in his capacity as the Appointor/Controller of the following Trusts, do all acts and things and sign all necessary documents and cause the Trust to distribute to the Wife the unpaid beneficiary accounts that the Wife has in the Trusts being:-
14.1.Kwan Family Trust;
14.2.T Family Trust; and
14.3.V Family Trust.

Injunctions
15. That the Husband be retrained by inunction from making any distributions to the wife from any of the following trusts, unless the distributions to be declared are physically paid to the wife
15.1.Kwan Family Trust;
15.2.T Family Trust; and
15.3.V Family Trust.

16. That the Husband be restrained by injunction from dealing with the proceeds of sale of the Qantas bond sold on or about 8 October 2020 save and except as provided for the purposes of giving effect to Orders 17 and 18 herein.
Partial Property Settlement
17. That within seven (7) days from the date of making of these Orders the Husband pay to the Wife the sum of $150.000 by way of partial property settlement.
Interim Costs
18. That within fourteen (14) days from the making of these Orders, the Husband pay to the Wife's solicitors, York Law Family Law Specialists Pty Ltd the sum of $250,000 by way of interim costs.
19. That in the alternate to Order 18 and without concession, within seven (7) days after any payment by or on behalf of the Husband of accounts rendered by his solicitors (or counsel or any expert or for any other disbursement) in relation to expenses associated with this case, the Husband pay or cause to be paid the same sum of money to the solicitors for the Wife.
20. That within 24 hours after any payment by the Husband of his own account the Husband cause to be given to the Wife's solicitors a memorandum stating the amount or amounts paid.
21. That any payment by the Husband of his own account shall be held in trust by the Husband's solicitors and not applied in payment of their account until such time as the payment to the Wife's solicitors as required by Order 19 hereof has occurred.
22. That in the event that the payment to the solicitor for the Wife referred to in Order 19 hereof is not made within 7 days then the Husband is to thereupon direct his solicitors to pay 50% of any payments made by the Husband to the Wife’s solicitors.
23. That the amounts that the Wife's solicitors receive from the Husband or the Husband's solicitors as per Orders 19-22 hereof are to be applied only to meet the Wife's legal costs and disbursements.
Other Parenting Orders
Schooling

24. That the Parties do all acts and things and ensure that:
24.1.The children, X and Y continue to attend at B School in 2021 and until further order of the court;
24.2.the child Z attend in 2021 the B School C Program and attend at B School in 2022 and until further order of the court.

Course and Family Therapy
25. That forthwith both parties enrol and complete the Online course run by D Services and within 7 days of completion of the course each of the parties furnish the other with a certificate of completion.
26. That the Parties attend upon:
26.1.Ms E or Mr F from D Services; or
26.2.Mr G,

for the purposes of family therapy which family therapy is to assist the parties with communication and trust issues between the parents. The parties to consult one of the experts above on the basis that the person who can offer earlier appointments will be the appointed expert to undertake the therapy.
27. That Dr H. the Court appointed Single Expert is directed to produce to the Court all his notes, records and all of the documents in relation to the assessment that he carried out in respect of this matter and which culminated in the issue of his single expert report (this Order does not require Dr H to produce the Subpoenaed documents or the Court documents that were furnished to him bv the parties.
28. That upon Dr H producing his documents, the parties have access to the notes and otherwise have leave in so far as is necessary, to provide a copy of the notes to any other person who the lawyer concludes ought to have access to the said documents for the purposes of the case.
29. That the time for the Respondent Mother to ask questions of the Single Expert Dr H pursuant to Rule 15.63 be extended to 30 days from the date that Dr H produces his file and leave is granted to inspect the same.
Other Orders
30. That Orders 28, 29, 30, 31 and 32 of the Orders made on 23 April 2020 be continued.
Costs
31. That the Husband pay the Wife's costs of and incidental to these proceedings.
Date: 13 January 2021
SCHEDULE B
Respondent Husband/Father’s AMENDED Minute of Order for interim hearing 15 January 2021 before Justice Altobelli
Parenting
1. That Orders 1, 2, 3, 4, 6 and 7 of the 23 April 2020 Orders be discharged.
2. That Order 5 of the 23 April 2020 Orders be varied as follows:
2.1. That the children X born 2010, Y born in 2013 and Z born in 2016 (“the children”) live with the Father and spend time with the Mother as follows:
a. In week 1, from after school until 6pm on Tuesday; from after school on Friday until 5pm Sunday;
b. In week 2, from after school on Tuesday until before school on Wednesday.

3. That the children’s time with each parent pursuant to Order 2 continue during school holiday periods.
4. That the children spend time with each parent during special occasions as follows:
4.1. With the Father from 5pm on the Saturday prior to Father’s Day until 5pm on Father’s Day;
4.2. With the Mother from 5pm on the Saturday prior to Mother’s Day until 5pm on Mother’s Day;
4.3. For a period of 3 hours on each child’s birthday and each parent’s birthday as agreed in writing between the parents, and, failing agreement, the parent the children are not spending time with on that day shall spend time with the children from 3pm until 6pm on a school day and from 11am until 2pm on a non-school day;
4.4. With the Mother from 9am on 23 December until 9am on Christmas Day in 2022 and each even ended year thereafter; and with the Father from 9am on Christmas Day until 9am on 27 December in 2022 and each even ended year thereafter;
4.5. With the Mother from 9am on Christmas Day until 9am on 27 December in 2021 and each odd even numbered year thereafter; and with the Father from 9am on 23 December until 9am on 25 December in 2021 and each odd numbered year thereafter;

4.6. With the Mother from 9am on Good Friday until 9am on Easter Sunday in 2022 and each even numbered year thereafter; and with the Father from 9am on Easter Sunday until 9am on the Tuesday after Easter Sunday in 2022 and each even numbered year thereafter;
4.7. With the Mother from 9am on Easter Sunday until 9am on the Tuesday after Easter Sunday in 2021 and each odd numbered year thereafter; and with the Father from 9am on Good Friday until 9am on Easter Sunday in 2021 and each odd numbered year thereafter.
4.8. With the Mother from 9am on New Year’s Eve 2021 until 9am on New Year’s Day and each odd numbered year thereafter;
4.9. With the Father from 9am on New Year’s Eve 2022 until 9am on New Year’s Day and each even numbered year thereafter.

5. That changeover of the children occur at the children’s school on school days, and, if it is not a school day, changeover occur at the home of the parent whose time with the children is concluding.
6. That the parents do all things and sign all documents necessary for Z born in 2016 to remain enrolled at B School at Suburb M from Wednesday to Friday in 2021, and it is noted that Z is scheduled to commence Kindergarten in 2022.
7. That the parents do all things and sign all documents necessary for Z born in 2016 to remain enrolled at B School at Suburb M for 2021.
8. That the parents do all things and sign all documents necessary for X born in 2010 and Y born in 2013 to remain enrolled at B School.
9. That within 7 days the Mother do all things and sign all documents necessary for the children’s medical records to be returned to Suburb M Medical Practice and that the parents be restrained from changing the children’s general practitioner from Suburb M Medical Practice without the written consent of the other (except in the case of an emergency).
10. That each parent be restrained from organising specialist medical appointments and/or mental health appointments for the children without the written consent of the other parent.
11. That each parent keep the other informed at all times of the children’s health and/or health related issues.
12. That each parent keep the other informed of their contact details including landline and mobile telephone numbers, email addresses, Skype addresses and any changes thereto within 24 hours of such change.
13. That each parent give the other no less than 14 days notice of any change to his/her residential address.
14. That the parents continue to use the MyFamilyWizard App for communications between them.
15. That the Mother be restrained from disseminating information concerning these proceedings (including any financial disclosure documents), or any information which makes reference to these proceedings and/or the family report prepared by Dr H for the purpose of these proceedings to any person or entity without the leave of this Court.

Property
16. That within 28 days, the Husband pay to the Wife the sum of $200,000 by way of partial property settlement in satisfaction of the relief she seeks at her proposed Orders 13.1 to 13.2, 13.4 to 13.9, 17 and 18.
17. In the event that the Husband makes the payment at Order 16 above as a distribution to the Wife either from the Kwan Family Trust of the T Family Trust, that the Husband:
17.1. Provide to the Wife all documents necessary for the Wife to record this payment by way of income in her taxation return for the financial year ended 30 June 2021; and
17.2. That the Husband pay to the Wife the sum which represents any tax payable by the Wife as a result of the distribution from the trust.

18. That within 14 days the Husband transfer to the Wife the motor vehicle 1 registration number … and that the Wife have the exclusive use of the motor vehicle from the date of the transfer to her.
19. That the Husband have exclusive occupation of the former matrimonial home at L Street, Suburb N until the conclusion of the lease on that property and it is noted that the current lease shall terminate on 16 March 2021.
20. That the Husband continue to maintain the family private health insurance policy at the current level with the Wife as a member of the policy.
21. That the Wife be entitled to all of the furnishings and home contents at the former matrimonial home except for all items in the Husband’s home office, the Husband’s personal effects, personal items and the items below:
21.1. Crystal wine glasses - 6 X small Claret, 5 X tall glass (name unknown).
21.2. Beer mugs/glasses.
21.3. 4 X Framed wall hangings (3 gold, 1 wooden).
21.4. 4. Grandmother’s wall hanging embroidery.
21.5. Cupboard and all its contents.
21.6. Half of the children’s toys, books, hanging awards/certificates.
21.7. Safe and 2 X keys.
21.8. Art piece.
21.9. Keyboard.
21.10. Hifi equipment.
21.11. Half of the children’s clothes.
21.12. Children’s baby ornaments/silverware.

[2021] FamCA 85

1 March 2021

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Expert Evidence

Procedural Fairness

File number(s):	SYC 1403 of 2020
Judgment of:	ALTOBELLI J
Date of judgment:	1 March 2021
Catchwords:	FAMILY LAW – PARENTING – Interim parenting orders – Where children currently living in a shared care nesting arrangement in the family home with both parents moving in and out – Where such arrangement is no longer feasible – Where parents are unable to decide with which parent the children should live and how much time they should spend with the other – Where single joint expert report available – Where mother adduced evidence from her treating practitioners – Where greater weight given to single joint expert report – Children to live with father and spend time with mother
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA.
Cases cited:	Goode & Goode [2006] FamCA 1346; Marvel & Marvel [2010] FamCAFC 101; MRR v GR [2010] HCA 4; Pinson & Pinson (No 2) [2020] FamCAFC 111.
Number of paragraphs:	132
Date of last submission/s:	15 January 2021
Date of hearing:	15 January 2021
Place:	Sydney via videoconference
Counsel for the Applicant:	Mr Dickson QC with Ms Wald of counsel
Solicitor for the Applicant:	York Law Family Law Specialists
Counsel for the Respondent:	Mr Dura of counsel
Solicitor for the Respondent:	Horton Rhodes Legal

SYC 1403 of 2020
BETWEEN:	MR JANES Applicant
AND:	MR KWAN Respondent

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	1 MARCH 2021