Kensit & Kensit (No 2) - [2023] FedCFamC1F 775

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kensit & Kensit (No 2) [2023] FedCFamC1F 775

File number: SYC 8643 of 2020

Judgment of: BRASCH J

Date of judgment: 8 September 2023

Catchwords:
FAMILY LAW – PARENTING – Where the mother proposed the children’s time with the father be reduced from the current week about to four nights a fortnight – Where the Single Expert recommended the children remain in a week about arrangement – Where children want week about to continue – Where the mother seeks sole parental responsibility for all major long-term issues – Where the father and the Independent Children’s Lawyer propose the mother have sole parental responsibility for major long-term health issues, but sharing of all other issues –– Order made for the parents to share parental responsibility for non-medical major long-term decisions – Week about to continue.

FAMILY LAW – PROPERTY – Where parties in dispute about addbacks – Where both parties have loans from parents – Contributions and s 75(2) of the Family Law Act 1975 (Cth) factors in dispute – Neither addbacks nor loans included in the pool – Adjustment made in wife’s favour for income disparity and continuing role in the children’s complex medical needs.

FAMILY LAW – SPOUSE MAINTENANCE – Where interim spouse maintenance order made in wife’s favour – Where wife sought spouse maintenance on a final basis for a period of two years – Where s 72 of the Family Law Act 1975 (Cth) threshold not met – Application dismissed.

FAMILY LAW – COSTS – Where the second and third respondents loaned money to the parties to purchase a property – Where the wife disputed the loan – Where consent orders were ultimately made for the loan to be repaid – Where the second and third respondents sought costs – Costs order made in favour of the second and third respondents.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pts VII, VIII, VIIIAB, ss 60B, 60CA, 60CC, 60CC(2)(a), 60CC(2)(b), 60CC(2A), 60CC(3), 65D(1), 61DA, 65DAB, 65DAC, 72, 74, 75(2), 79, 79(1), 79(2), 79(4), 117, 117(1), 117(2), 117(2A)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17(1)(a)

Education Act 1990 (NSW) s 23

Cases cited:
AJO & GRO (2005) FLC 93-218; [2005] FamCA 195

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; [1981] HCA 1

Atwill and Atwill (1981) FLC 91-107

Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124

Beach Petroleum NL v Johnson (1995) 57 FCR 119

Bevan and Bevan (1995) FLC 92-600

Brown & Brown (2007) FLC 93-316; [2007] FamCA 151

C & C [1998] FamCA 143

Clauson & Clauson (1995) FLC 92-595

Conrad & Conrad (2020) 61 Fam LR 301; [2020] FamCAFC 255

Cotton & Cotton (1983) FLC 91-330; [1983] FamCA 18

Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Dovgan & Dovgan [2021] FamCA 306

Fielding and Nichol [2014] FCWA 77

Gabel & Yardley (2008) FLC 93-386; [2008] FamCAFC 162

G and G (2000) FLC 93-043; [2000] FamCA 1075

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78

Kowalski and Kowalski (1993) FLC 92-342; [1992] FamCA 54

Latoudis & Casey (1990) 170 CLR 534; [1990] HCA 59

Lenova & Lenova (Costs) [2011] FamCAFC 141

Loddington & Derringford (No 2) [2008] FamCA 925

Maine & Maine (2016) 56 Fam LR 500; [2016] FamCAFC 270

Mallet& Mallet (1984) 156 CLR 605; [1984] HCA 21

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157

Mitchell & Mitchell (1995) FLC 92-601

M & M [1998] FamCA 42

Newlands & Newlands (2007) 209 FLR 30; [2007] FamCA 168

Nutting & Nutting (1978) FLC 90-410

PBF (as child representative for AF (Legal Aid Commission of Tasmania)) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158

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

Poulos and Poulos (1984) FLC 91-515

Prantage & Prantage (Costs) [2014] FamCA 850

Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52

Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142

Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

W v W (1997) FLC 92-723

Division: Division 1 First Instance

Number of paragraphs: 403

Date of last submissions: 15 August 2023

Date of hearing: 30 January 2023, 1–2 February 2023 and 28 April 2023

Place: Sydney

Counsel for the Applicant: Mr Blank

Solicitor for the Applicant: Mills Oakley Lawyers

Counsel for the First Respondent: Mr Givney

Solicitor for the First Respondent: Hillcrest Family Lawyers Pty Ltd

Solicitor for the Second and Third Respondents: Pikes & Verekers Lawyers

Counsel for the Independent Children's Lawyer: Mr Fermanis

Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates

ORDERS

SYC 8643 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR KENSIT
Applicant

AND:
MS KENSIT
First Respondent

MS M KENSIT
Second Respondent

MR N KENSIT
Third Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BRASCH J

DATE OF ORDER:

8 SEPTEMBER 2023

THE COURT ORDERS THAT:
Parenting
1.All prior orders shall be discharged.

Parental responsibility and health information sharing
2.The mother shall have sole parental responsibility for making major long-term health decisions for the children X born 2008 and Y 2011 (“the children”) and:
(a)The mother shall inform the father within 24 hours of making an appointment with any specialist practitioner, including but not limited to the practitioner’s details and her reasons for making the appointment;
(b)Prior to the appointment the father may provide written information to the practitioner with any proposed input;
(c)The mother shall facilitate the father’s access to all reports; and
(d)The father is entitled to communicate with all health care practitioners who treat the children, but any such communication is not to occur at the same time the children are attending an appointment, unless the parents otherwise agree in writing.

3.Unless the mother gives her written consent 48 hours prior to any appointment, the father is restrained from attending medical/health appointments at the same time, immediately before, or immediately after the children’s appointments.
4.Pursuant to s 65DAC of the Family Law Act 1975 (Cth) the parents shall otherwise share parental responsibility for the children for the following major long-term decisions:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s name; and
(d)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

5.The mother shall provide the father, in writing, of the following:
(a)A summary of any attendance before a specialist;
(b)A copy of prescribed medication which shall include the dosage of such medication; and
(c)A copy of any referral letter as is applicable.

6.Each of the parents shall ensure that the children are provided with and consume all prescription medications in accordance with the directions made by the prescribing medical practitioner.
7.The father is at liberty to book and pay for his own follow up appointments with any specialist or treating practitioner nominated by the mother subject to Order 3.
8.Subject to Order 10, the father is at liberty to take the children to a general practitioner when the children are in his care to address any such medical issue at the time.
9.The mother and father shall notify the other as soon as practicable in the event that either of the children suffers any illness or injury requiring attendance at or admission to a hospital or requiring specialist medical treatment.
10.With respect to the children's non-urgent medical treatment each of the parents shall provide the other with 24 hours' prior written notice of any medical appointment scheduled for the children or either of them.
11.Pursuant to s 65DAE of the Family Law Act 1975 (Cth) whilst the children are in each parent’s care, that parent is not required to consult the other about decisions relating to the day-to-day care of the children.

Time arrangements
12.The children shall live with each parent in a week about arrangement with changeover to occur at 4.00 pm on Sunday.
13.The parents’ time during the school term is suspended during the school holidays and the children shall spend time with each parent:
(a)For one half of each school holiday period as agreed between the parents in writing; but
(b)Failing agreement, with the father for the first half in even numbered years and the second half in odd numbered years; provided that:
(c)Until Y commences at the same school as X, X will stay with the mother for the duration of the period whilst Y is still at school;
(d)In calculating half school holiday time, unless otherwise specified, the parents shall count the number of nights commencing on the last day of the school term to the night before the new school term including pupil free days. In the event there are two midpoint days, then the time shall commence or conclude as the case may be on the second midpoint day; and
(e)Changeovers for school holidays will be at 4.00 pm on the midpoint day as calculated above.

14.The children shall spend time with each parent on special occasions as agreed between the parents in writing, or failing agreement as follows:
(a)During Christmas in years ending in an odd number:
(i)With the father from 4.00 pm on 24 December until 4.00 pm on 25 December;
(ii)With the mother from 4.00 pm on 25 December until 4.00 pm on 26 December; and

(b)In years ending in an even number:
(i)With the mother from 4.00 pm on 24 December until 4.00 pm on 25 December;
(ii)With the father from 4.00 pm on 25 December until 4.00 pm on 26 December; and

(c)During Easter:
(i)From 10.00 am on Good Friday until 4.00 pm on Easter Saturday with the father in years ending in an even number.
(ii)From 4.00 pm on Easter Saturday until 10.00 am on Easter Monday with the mother in years ending in an even number;
(iii)From 10.00 am on Good Friday until 4.00 pm on Easter Saturday with the mother in years ending in an odd number;
(iv)From 4.00 pm on Easter Saturday until 10.00 am on Easter Monday with the father in years ending in an odd number.

(d)If the children are not already with the father, from 4.00 pm on the day immediately preceding Father's Day until 4.00 pm on Father's Day, with the father;
(e)If the children are not already with the mother, from 4.00 pm on the day immediately preceding Mother's Day until 4.00 pm on Mother's Day, with the mother;
(f)On the children's birthdays, with the parent they are not otherwise living:
(i)On a school day from after school until 6.00 pm, with the parent they are spending time with to collect both children from school and return the children to the other parent at 6.00 pm; or
(ii)On a weekend, from 9.00 am to 1.00 pm, with the parent they are spending time with to collect the children from the other parent at the commencement of the time and return the children at the conclusion of the time.

(g)At all such other times as may be agreed between the parents and for the purposes of this Order each parent shall facilitate any ad hoc arrangements of the children as reasonably requested by the other parent.

Changeover
15.For the purposes of either parent spending time with the children pursuant to these Orders, where changeover does not occur at the commencement or conclusion of school, the parent who is to commence spending time with the children is to collect the children from the other parent’s home, unless otherwise agreed by the parents in writing.

Communications
16.The children be at liberty to communicate with the parent with whom they are not otherwise living pursuant to these Orders via telephone or video call as reasonably requested by the children and each parent shall ensure the children have access to a charged mobile telephone device for this purpose.

Schooling
17.Notwithstanding any other Order, each parent be at liberty to attend:
(a)Parenting/teacher meetings;
(b)School concerts in which the children are involved;
(c)End of year speech days;
(d)End of year concerts;
(e)The children's sporting activities, including training sessions, matches and presentations; and
(f)Any other activity at which parents are invited to attend.

18.Each parent shall do all things necessary to authorise and direct the children's school/s to provide to the other parent at the requesting parent’s expense, copies of all school reports, school circulars, school notices, school invitations, school correspondence and other documents concerning the education and school activities of the children.
19.In the event either or both of the children do not attend school, or leave early, the parent with whom the children are living at that time shall notify the other parent in writing by 9.30 am if the child/ren is/are not attending school, or as soon as practicable if the children, or either of them, leave school early.
20.In the event either or both children do not attend school, or leave early, the parent with whom the children are living at that time shall notify the child/ren’s school by 9.30 am, or as soon as practicable if the children, or either of them, leave school early.

Non-denigration and restraints
21.The mother and father are restrained from denigrating the other or permitting any other person to denigrate the other in the presence of or in the hearing of the children.
22.The parents are restrained from encouraging the children to gain access to weapons or to obtain a weapons license.
23.Each of the parties are restrained from providing any documents relating to these proceedings and/or discussing the proceedings with the children or allowing any third party to do so.
24.Each of the parties are restrained from filming or recording the other without the written permission of the other.

Overseas travel
25.In relation to the children vacationing with either parent overseas (when the children would be with them), the travelling parent shall provide the other parent with at least 28 days prior written notice of travel during school holiday periods, of the dates of travel, destination(s), and contact details for the period of travel, unless otherwise agreed by the parents.

Passports
26.Within 28 days of receipt of an Application for Passport of each of the children from the travelling parent, the non travelling parent will return the signed application to the travelling parent and within 14 days thereafter the travelling parent shall cause a copy to be signed and lodged with the Passport Office.
27.The children's Passports shall be held by the mother who shall make same available to the father in the event the father wishes to travel and provides the requisite notice in accordance with these Orders.
28.Upon request by one of the parents, all original documents including but not limited to the child/ren’s birth certificates and passports be made available to the other party.

Information
29.Each parent shall be permitted to provide to the children’s schools and medical practitioners a copy of these orders.

Independent Children’s Lawyer
30.The Independent Children’s Lawyer shall within seven (7) days of delivery of judgment meet with the children and explain the Orders and such particulars as the Independent Children’s Lawyer believes is necessary to advise the children as to the reasons for the decision.
31.Upon each parent receiving their entitlement from the s 79 property proceedings, the mother and the father shall each pay $8,662.50 to Legal Aid New South Wales.
32.Upon the Independent Children’s Lawyer receiving the payments in Order 31, the Independent Children’s Lawyer is discharged.

Property
Sale by private treaty
33.Within 28 days from the date of these Orders the husband and the wife shall forthwith do all such things as may be necessary to list the property situated at and known as K Street, Suburb J in the State of New South Wales being all of the land comprised in Folio Identifier … (“the Suburb J property”) for sale by private treaty with a real estate agent agreed and failing agreement with a real estate agent nominated by the President of the Real Estate Institute of New South Wales or his/her nominee on the application of either party and to sell the Suburb J property for the best price reasonably obtainable as soon as practicable.

Sale by auction
34.In the event that contracts for the sale of the Suburb J property by private treaty have not been exchanged within three (3) months of listing the sale by private treaty, then the husband and the wife shall thereupon do all such things as may be necessary to list the Suburb J property for sale by auction with a real estate agent agreed and failing agreement with a real estate agent nominated by the President of the Real Estate Institute of New South Wales or his/her nominee on the application of either party upon the following terms and conditions:
(a)The auction shall take place within six (6) weeks after the date three (3) calendar months for sale by private treaty has elapsed;
(b)The reserve price shall be as agreed between the husband and wife and failing agreement as determined by the auctioneer;
(c)Both the husband and wife shall attend at the auction and in the event that the Suburb J property is passed in they shall negotiate with the highest bidder and shall accept any offer to purchase the Suburb J property at no less than 90 per cent of the reserve price; and
(d)In the event that the Suburb J property does not sell at auction or does not sell by private treaty within two (2) weeks after the date of the auction then the husband and wife shall relist the Suburb J property for sale by auction at intervals of no more than six (6) weeks upon the same terms and conditions as set out herein until the Suburb J property is sold.

Distribution
35.Upon the Suburb J property being sold by private treaty or at auction the husband and wife shall distribute the proceeds of such sale as follows:
(a)In payment of real estate agent’s commission and expenses on the sale;
(b)In payment of the auctioneer’s costs (if applicable);
(c)In payment of proper legal costs and disbursements of each of the husband and wife of and incidental to the sale;
(d)In discharge of the mortgage to ANZ Bank secured over the Suburb J property;
(e)In adjustment of rates, levies and taxes on the Suburb J property;
(f)The balance left after the payment of (a)–(e) being the net proceeds (“the net proceeds”);
(g)The net proceeds will be added to the following assets and liabilities:
(i)H Pty Ltd with a value of $36,640 to be retained by the husband;

(ii)ANZ Savings Account (ending …22) with a value of $229 to be retained by the husband;
(iii)CBA Savings Account (ending …03) with a value of $518 to be retained by the wife;
(iv)CBA Account (ending …77) with a value of $27 to be retained by the wife;
(v)O Shares with a value of $2,046 to be retained by the husband;
(vi)P Shares with a value of $4,080 to be retained by the wife;
(vii)Jewellery with a value of $11,000 to be retained by the wife;
(viii)Superannuation Fund 1 with a value of $198,101, with $160,000 to be retained by the wife and $38,101 to be retained by the husband;
(ix)Superannuation Fund 2 with a value of $251,221 to be retained by the husband; and
(x)Superannuation Fund 3 with a value of $129,028 to be retained by the wife.

(h)The net proceeds and assets and liabilities being the revised total (“the revised total”); and
(i)Taking account of the items each party will retain and at what value pursuant to (g) above, the husband and wife will then calculate what distribution is required to each party from the revised total to achieve the overall adjustment of 57.5 per cent to the wife and 42.5 per cent to the husband (“the overall adjustment”).

36.That simultaneously and with compliance by the husband and the wife with the preceding Orders herein the husband and wife shall do all acts and things and sign all documents as may be necessary to close the Joint ANZ Offset Bank Account ending …06 and any other joint bank account, with the balance remaining to be divided 57.5 per cent to the wife and the balance to the husband and in the event of any deficit the husband and wife shall bear the costs in the same proportions.

Payments
37.The wife shall pay to the husband from her s 79 entitlement:
(a)the sum of $500 in respect of an Order for costs;
(b)the sum of $600 attributable to half payment of family therapy fees;
(c)the sum of $9,350 attributable to half payment of Single Expert’s (Dr C) fees;
(d)the sum of $2,750 attributable to half payment of Mr Q’s fees; and
(e)the sum of $360 attributable to payment of jewellery valuation fees.

38.The wife shall pay to the second and third respondent from her s 79 entitlement the sum of $10,000.
39.The husband shall pay to the wife from his s 79 entitlement outstanding arrears of spousal maintenance to the date of this Order and interest.

Superannuation
40.The Court allocates as required by s 90 XT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), a base amount of $160,000.00 to Ms Kensit out of Mr Kensit’s (customer number …) interest in Superannuation Fund 1 account number (…) (“the Fund”) of which R Limited is the Trustee (“the Trustee”).
41.In accordance with s 90 XT(1)(a) of the Act, whenever a splittable payment becomes payable in respect of Mr Kensit’s interest in the Fund:
(a)Ms Kensit is entitled to be paid an amount, using the base amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”); and,
(b)There is a corresponding reduction in the entitlement to Mr Kensit, or such other person to whom a splittable payment may be made, would have had but for this order.

42.Whenever the Trustee makes a splittable payment out of Mr Kensit’s interest in the Fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in paragraph 40 of this Order in accordance with the requirements the Act and the Regulations.
43.Orders 40 to 42 have effect from the operative time and the operative time is four business days after the service of these orders on the Trustee of the Fund.
44.Order 40 to 42 of these orders are binding on the Trustee of Superannuation Fund 1.

Spouse Maintenance (going forward as opposed to the arrears)
45.The wife’s application for (future) spouse maintenance is dismissed.

THE COURT NOTES THAT:
A.On 15 August 2023, the parents and the Independent Children’s Lawyer provided a table that set out where they were agreed and where they are in dispute. Orders 9, 16, 17, 19, 21 and 28 were agreed as provided by the table.
B.The Trustee of the Superannuation Fund 1 has been afforded procedural fairness in accordance with r 1.12(6) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

These are parenting, property and spouse maintenance proceedings as between the mother and father. In these reasons, I refer to the mother and father as the parents, to distinguish between the other parties in this matter. The other parties are the second and third respondents – the father’s parents – who bring a costs application against the mother.
Mr Kensit, born in 1976 (“the father”) (“the husband”), commenced these proceedings on 15 February 2021 by filing an Initiating Application for Final Orders in the Family Court of Australia (as it was then). Ms Kensit, born in 1977 (“the mother”) (“the wife”) filed her Response on 25 April 2021. The father’s parents, Ms M Kensit (“the second respondent”) and Mr N Kensit (“the third respondent”), filed a Response on 3 May 2021.
The parenting aspect of the proceeding relates to the two children of the relationship. X was born in 2008, and Y was born in 2011 (“the children”). The parenting dispute consumed the great majority of the time in the trial and in submissions.
With respect to decision making, the mother seeks orders that she have sole parental responsibility for all major long-term issues, but that the father be at liberty to book and pay for follow-up appointments with the children’s treating health providers. The mother further proposes the father be restrained from attending any of the children’s specialist health providers when the children are attending unless she gives her written consent.
The father and Independent Children’s Lawyer (“the ICL”) propose the mother have sole parental responsibility for all major long-term health decisions, but the parents otherwise share parental responsibility. The ICL and father propose the mother advise the father of the children’s health appointments and the father be at liberty to provide written input to those providers. Their order further requires the mother to facilitate the father’s access to any medical reports and for him to be able to communicate with the health providers.
As for time, the mother proposes that the children’s time with the father be reduced from the current week about arrangement to four nights a fortnight (Thursday after school to Monday each alternate week). Both the father and ICL propose that the current week about regime continue (4.00 pm Sunday to 4.00 pm Sunday).
The mother, father and ICL all propose a form of half-holidays and the sharing of special days, but do not agree on the form of orders. A raft of specific issue orders are sought by the parents and the ICL.
The property aspect of the proceedings featured some disputes about what ought be included in or excluded from the pool, and then the overall adjustment to the father and mother. The father proposed a 53 per cent adjustment in the mother’s favour on his pool (Exhibit 17, paragraph 40), but 51 per cent and 53 per cent in oral submissions. The father included the parents’ superannuation in the one pool.
The mother sought a 62.5 per cent division in her favour for the non-superannuation pool (Exhibit 13, p.21), which included a number of add-backs (Exhibit 16). The mother also sought an equal division of the parents’ superannuation entitlements (Exhibit 13, p.22). I was told in submissions in reply this was about 59 per cent overall to her. The mother’s counsel submitted that if the mother succeeds on those proposals, spouse maintenance is not pressed. However, if the mother achieved a lesser outcome in the s 79 dispute, she then sought spouse maintenance in the sum of $400 per week for two years, with yearly CPI adjustments.
The second and third respondents seek their costs of proving a loan they had made to the mother and father. The mother initially resisted the loan, but ultimately entered into consent orders that the second and third respondents be repaid the loan. They seek their costs.
BACKGROUND
The father and mother commenced cohabitation in 2005. They married in 2007 and separated on a final basis, under one roof, on 19 August 2020. In November 2020 the mother and children left the former matrimonial home at K Street, Suburb J and moved to rental accommodation in the same suburb. A Divorce Order was made in early 2022.
Both children have considerable health challenges. For example, X has expressed suicidal thoughts prior to and post separation, and at times was admitted to a children’s hospital. For example, upon X holding a kitchen knife in early 2018, he was taken to S Hospital and referred to child psychiatrist Dr E. Thereafter, X was diagnosed with major depressive disorder and generalised anxiety disorder. In late 2020, X was again admitted to hospital after expressing suicidal thoughts. Then, a short time later, X and Y had an argument. The mother then found X with a butter knife in his hand. He had placed it against himself saying, “I’m going to kill myself”. The mother called an ambulance. Obviously, the 2020 incidents occurred in and around the parents’ separation.
The mother has also raised concerns that X’s appetite was suppressed, he was losing weight, and that he had stomach aches and diarrhoea. X had been engaged with Dr D, a paediatrician. He has seen a host of other specialists and allied health providers.
For Y, he met his development milestones when little, but was non-verbal. Between 2017 to 2019, Y was engaged in intense speech therapy. He and X have also had school refusal problems both before and after separation, although it seems that the school refusal has been more acute post-separation and when in the mother’s care more so than the father’s.
Both children have been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and dyslexia. Both have had vision or eye difficulties.
Over the last two years, the children’s health needs have been a significant cause of conflict between the father and mother. In short, the father felt excluded by the mother from the children’s health decision making and complained medical decisions were made only on the mother’s input. He added that by the time he could engage with the doctor, the decisions/diagnoses had already been made. Conversely, the mother said she felt intimidated by the father being present at appointments and that he was hostile to her and the health practitioners. This has had unfortunate outcomes for the father who wanted to be involved, and more so for X and Y who needed care; for example:
(a)In late 2020, Dr D wrote to the father setting out boundaries for any further communications with him. The doctor wrote about receiving an excessive number of phone calls and emails from the father before and after planned consultation times. The doctor then stipulated that he would not see the parents together and would no longer accept emails or correspondence. Phone calls to the doctor’s rooms were to be limited to booking consultations or to discuss medication (Annexure MK14 to the mother’s affidavit filed 29 December 2022, p.65);
(b)By letter of March 2021, Dr E wrote of her attempts to encourage the parents to address the difficult conflict between them because of its impact on X. To that end, the doctor also recommended that X have counselling and his parents seek therapy and counselling. Even though the doctor’s motivation was to assist X, the doctor recorded this:
…[Mr Kensit] expressed to me during a phone call in [late] 2020 that he did not consent to [X] attending counselling that might imply that family violence occurred prior to the marital separation.
(Annexure MK5 to the mother’s affidavit filed 29 December 2022, p.38)
...it has not been possible for him [X] to experience a family and home life without conflict between the adults entrusted with his care.
(Annexure MK5 to the mother’s affidavit filed 29 December 2022, p.39)
(c)In March 2021, Dr E and the parents were emailing about appointments. Dr E referred to the “amount of ongoing conflict it has generated between you both”. The father replied, in part, “I am not sure where you are getting this story from about constant conflict”. The doctor added:
Hi [Mr Kensit] and [Ms Kensit],
As indicated previously, I will not be scheduling any further appointments for [X] until you can both agree on the logistics and purpose of these sessions. The appointment this morning did not occur as I cannot be party to [X] being pulled between the two of you in this way.
There will be no further appointments for [X] with [U Family Services] unless I hear from you both that you can agree for this to occur in a calm and supportive manner for him.
(Annexures MK15 and MK16 to the mother’s affidavit filed 29 December 2022, p.68 and p.76)
(d)In April 2021, X and the mother (and the father by phone) attended an appointment with Dr D, who informed the parents after the appointment that they could no longer attend appointments together (Mother’s affidavit filed 29 December 2022, paragraph 78);
(e)In June 2021, Dr D again set out stipulations for consultations in his private practice:
…For future appointments, I will only be speaking to the one parent who attends the appointment face to face, with the child. There will be no phone link in. If the mother wishes to make an appointment that too can be face to face, but will be without the father being present. If the father wishes to make a sperate [sic] appointment that too can be face to face, but will be without the mother being present…
(Annexure MK17 to the wife’s affidavit filed 29 December 2022, p.83)
(f)On 14 September 2021, the mother deposed that a Dr T advised X needs to see a psychologist, but “Husband refuses consent”;
(g)In late 2021, the mother took Y to the orthodontist and proceeded to book a later appointment to remove some teeth and insert an expanding plate. The father said the first he knew of this was when the clinic emailed him and asked for part payment for the procedure. The father then suspended all pending procedures until he had more details. The father subsequently consented to the treatment (Father’s affidavit filed 23 December 2022, paragraph 199);
(h)In September the father emailed the mother, a psychology practice and his solicitors, that “I DO NOT give consent” for X to attend the V Psychology Service appointment that was scheduled for September 2021. He complained about not being involved, and not being able to give input. He told the mother (and the practice) she is in contravention of the final parenting orders (Annexure MK8 to the mother’s affidavit filed 29 December 2022);
(i)In October 2021, Clinical Psychologist Ms W emailed the parents, “[t]o confirm, given [Mr Kensit] is no longer consenting for me to see [Y], we will need to discontinue sessions moving forward. Sorry this had to end abruptly in this way” (Annexure MK6 to the mother’s affidavit filed 29 December 2022);
(j)In late 2021, the mother was to attend upon Dr D for an appointment for the children. The father deposed that the mother failed to facilitate his involvement so he withdrew his consent for Dr D to treat the children (Father’s affidavit filed 23 December 2022, paragraph 198). The father emailed the doctor explaining that he is to be involved, adding:
Failing this, I am officially informing you, [Dr D] that I will withdraw my consent for you to treat my son [X] at this afternoons appointment and I will have no option but to get my legal representation involved.
(Annexure MK7 to the mother’s affidavit filed 29 December 2022)
(k)The father made good on involving his lawyers, who wrote to the doctor confirming the father’s consent was withdrawn and directing the doctor to cancel any future appointments for the children (Annexure MK19 to the mother’s affidavit filed 29 December 2022).
The father spoke to some of these instances in his material or otherwise did not challenge the contents of the letters from the various health professionals above. I accept what is documented in the letters from health professionals. Whilst the father was obviously frustrated at feeling “constantly excluded”, he nevertheless put his needs or priorities ahead of the therapeutic recommendations of the children’s specialists and threatened the children’s continuity of care.
In the meantime, the parents’ conflict is sadly in circumstances where, as summarised by Dr C:
[X] had first presented with mental health problems following a big parental argument. [X] had pinned a note to his door saying: "I'm done with it all. I'm going to end my life." [Mr Kensit] saw a connection between [X's] growth spurts and his vulnerable mental health, when he ''went down the rabbit hole". This was confirmed by [Dr E] when contacted by the report writer. That said, within half an hour, his mood would improve. At the time of separation, [X] had declared to his mother that he was going to kill himself. She had taken him to [S Hospital] and [Mr Kensit] was called to pick up [Y] from the hospital.
(Emphasis in original)
(Exhibit 1, paragraph 21)
X also told Dr C “[h]e had previously considered suicide on four or five occasions. He explained that he had seriously considered this. He had written three notes and told people who had told his parents” (Exhibit 1, paragraph 142).
Dr E told Dr C that the high conflict parental relationship had contributed to the relapse of X’s anxiety and depression, which adversely affected his regular school attendance. It was her observation that X’s distress increased in response to the escalating parental conflict. Whilst each parent was keen to point the finger at the other in these proceedings, it probably matters little to X (or Y) which parent is to blame. The parents’ conflict has been a serious source of X’s distress. Notwithstanding what was said in Dr C’s report and what was said by Dr Z (family therapist) about using a neutral parenting App to try and reduce conflict, neither parent took any steps to do so.
Y too has had many challenges to his health, speech delays and poor literacy at school. Dr D diagnosed ADHD - Predominantly Inattentive presentation with associated learning difficulties and related to dyslexia.
During the course of the trial, the father conceded that the mother have sole parental responsibility for all major long-term health issues.
Post separation, both the father and mother have called the police to address domestic difficulties. For example, in late 2020, the mother and father had a disagreement about access/copying documents and:
…The VIC claims she was denied access to the documents initially before being able to get the documents but them being told she could not use the printer. This has made the VIC upset and she has attended [Suburb BB] Police Station to report the incident.
(Annexure X to the father’s affidavit filed 23 December 2022, p.324)

The police went to the former matrimonial home to remove the father’s weapons and talked to the father and the children:
…[Y] told Police that he actually showed his mother how to make copies on his printer after he saw his parents arguing and she did not use this opportunity to make copies.
(Annexure X to the father’s affidavit filed 23 December 2022, p.325)
No action was taken against the father other than the removal of his weapons as required. It is a shame Y found himself in the position of having to dispute the mother’s complaint about such a trivial thing.
In late 2020 the mother again unnecessarily bothered the police:
VIC attended [Suburb BB] Police Station to report an incident that had occurred earlier that morning. The VIC stated the POI had taken a photo of the VIC and the children whilst they were eating breakfast. The VIC has requested to see the camera roll of the phone in which the POI has showed there were no photos on the phone.
(Annexure Y to the father’s affidavit filed 23 December 2022, p.334)
Unsurprisingly, the police took no action.
The mother also called the police and ambulance when X was upset at her house after his Grade 6 graduation in late 2020. The father offered to collect X so he could calm down, but the mother said no and called the police and arranged for an ambulance to transfer X to S Hospital. The mother told the Child Impact Report writer that the father had been “trying to take [X] away from me”. Yet, the mother deposed, “I called the police as I was concerned that [Mr Kensit] would stop the ambulance from giving [X] the medical attention he needed” (Mother’s affidavit filed 29 December 2022, paragraph 135). The conflict that arises in this matter is really about the father wanting to be involved in medical care. Whilst the father has been bombastic about issues of consent for routine appointments, there is no evidence before me that he would stop emergency care for either child. Indeed, at other times the mother called the father to assist in emergency care for X; see the mid-2021 entry below.
The mother also called the police in early 2021 to report the father had not returned the child at 4.00 pm. He was running late. The mother again called the police in mid-2021 when Y was having a “meltdown”, and felt Y’s aggression had escalated to such a dangerous level that she needed to call the police. The police came and the police officer spoke to Y and the officer calmed him down (Mother’s affidavit filed 29 December 2022, paragraph 229).
The father has also involved the police, for example in mid-2021, when the mother was struggling with Y’s rude and aggressive behaviour. The mother phoned the father and asked for his assistance. The father then called the police to report the mother for failing to get Y to school (Mother’s affidavit filed 29 December 2022, paragraphs 200–201).
Neither parent covered themselves in glory when calling on police resources to deal with their conflict and dysfunction. More importantly though, the children also found themselves dealing with or seeing the police come to their homes. That was not in the least bit child focused of either parent.
Yet, despite this background of conflict, on 6 November 2020, the father and mother attended mediation and resolved the parenting arrangements on a final basis by consent (“the consent orders”). On 21 December 2020, a Registrar made the final parenting consent orders. The orders provided for the children to graduate from two nights a fortnight, to a short stint at nine nights over four weeks, and then to an equal time arrangement in School Term 4, being September 2021.
However, X self-placed with the mother almost a year after the consent orders were made and thereafter refused to spend time with the father. Nevertheless, by the time the matter came before me for trial in January and April 2023, Y had been living in the week about arrangement since September 2021 (per the consent orders) and X since April 2022.
Returning to the basic chronology, in early 2021 the father dismissed the mother as an employee of H Pty Ltd. The mother brought proceedings for unfair dismissal. Eight days later, the mother discontinued her claim. The father had sought that the mother pay his legal costs of some $7,553 for those short-lived proceedings in these property proceedings. That claim was not pressed in final submissions.
On 15 February 2021, the father commenced proceedings for final property orders.
On 24 November 2021, orders were made by consent providing, inter alia, for the father and mother to forthwith repay the father’s parents $100,000 which the second and third respondents had loaned them. I will consider the second and third respondents’ costs application at the end of these reasons.
In November 2021, the mother filed a Response document in which she sought property orders and that the December 2020 consent parenting orders be set aside. The father sought, but then withdrew, an application that the parenting order sought by the mother be summarily dismissed. The Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) hearing was set down for hearing before Justice Rees, but it seems that the parents came to terms on how to deal with the Rice & Asplund issue. The parents litigated before me over five days, and there was not a peep about it.
On 17 December 2021, the father filed an Application – Contravention against the mother. On the same date, the mother filed an Application in a Proceeding seeking various property orders and a suspension of the parenting orders made in 2020. The mother filed a Response on 2 February 2022. Ultimately, the parents were able to resolve many of the orders sought in these applications leaving only the payment of the Family Report and family therapy fees and whether the mother ought receive spousal maintenance for interim determination. I heard those matters on 28 July 2022 and made trial directions. I ordered the father to pay the report and therapy costs at first instance. I also ordered interim spouse maintenance in the mother’s favour.
Material relied upon
All parties filed a Case Outline. Various iterations of a balance sheet came before me as the trial progressed. The father and mother also provided written submissions and Minutes of Orders in addition to the oral submissions made at the end of April 2023. Helpfully on 15 August 2023 the parents and the ICL provided a table of agreed and not agreed competing orders.
The applicant father relied upon:
·Affidavit of Mr Kensit filed 23 December 2022;
·Further Further Amended Application for Final Orders filed 31 March 2022; and
·Financial Statement filed 29 December 2022.
The father also facilitated the filing of affidavits from two Single Experts in the property proceedings:
·Affidavit of Mr Q filed 24 January 2023; and
·Affidavit of Mr CC filed 25 January 2023.
Mr CC valued the former matrimonial home. Only Mr Q was required for cross-examination about the company’s losses and the husband’s ability to access a Director’s loan account without it being a tax event. At the end of the day, the parents agreed on the value of the husband’s interest in H Pty Ltd. No submissions were made about the losses or loan.
The mother relied upon:
·Affidavit of Ms Kensit filed 29 December 2022;
·Amended Response to Initiating Application filed 23 December 2022;
·Financial Statement filed 23 December 2022;
·Affidavit of Ms DD filed 23 December 2022 but through a combination of paragraphs not read or struck out, only paragraphs 10, 14(h), 14(i), 17, 19 and 20 remained in evidence;
·Affidavit of Mr EE filed 23 December 2022; and
·Affidavit of Ms FF filed, but only paragraphs 1, 2, 10 and 11, but not the first four lines of paragraph 11.
The affidavits of some of the mother’s witnesses listed in the outline were not read: Ms GG filed 23 December 2022 and Mr HH filed 11 July 2022. I discarded their affidavits. Neither Mr EE and Ms DD (the maternal grandparents), nor Ms FF (the mother’s sister) were required for cross-examination. Unsurprisingly, the maternal grandparents and the sister were supportive of the mother and critical of the father.
The ICL relied upon:
·Single Expert Report of Dr C filed 19 December 2022 (Exhibit 1);
·Child Impact Report dated 13 July 2022 (Exhibit 2); and
·Assessment & Feedback Report of Dr Z (Exhibit 5).
The father sought to rely upon a Tender Bundle. I would not accept the whole Tender Bundle into evidence but rather asked counsel to tender specific documents in the usual way. Counsels for the mother and ICL also tendered documents during the course of the hearing. Seventeen Exhibits came into evidence.
The standard of proof is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject- matter of the proceeding; and
(c)       the gravity of the matters alleged.
It is well settled that it is not necessary for a trial judge, in reaching a decision, to refer to every piece of evidence or argument presented during the trial. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
PARENTING PROCEEDINGS – LEGAL PRINCIPLES.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children.
Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions under s 61DA (presumption of equal shared parental responsibility) and s 65DAB (parenting plans, which is not relevant here). Section 60B of the Act sets out the objects and principles of Pt VII as follows:
(1) The objects 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.
In Masson v Parsons (2019) 266 CLR 554, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted at [8] that the focus of the objects was on “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”.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that 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.
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 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 family violence. Further, if the presumption does apply, then it 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.
Here, the father, mother and ICL propose the mother have sole parental responsibility for major long-term health issues. Incidental to that, the parents and ICL proposed various other orders dealing with health issues. I will consider those orders later.
I consider it in the children’s best interests that sole parental responsibility be ordered in the mother’s favour for major long-term health issues. First, the parents and ICL propose it. Second, the parents have not demonstrated the capacity to reflect, consider other views, or compromise. The examples about health disputes in the background section of these reasons reveal significant conflict and discord between the parents over health issues, where compromise is not easily achieved. Third, the children have serious health presentations and need various forms of health care administered to them along with the ability to attend upon health providers in a timely fashion; they do not need two parents arguing about how, when or why any of that is to occur. Fourth, I am satisfied that on the evidence before me, the mother is attuned to the children’s health needs and accessed appropriate health care prior to separation without much by way of demur from the father. Indeed, the father told Dr C the mother “had been a brilliant and attentive mother” although he added in cross-examination “when she was younger”. That health care has included attendances upon a psychiatrist, psychologist, speech therapist, occupational therapist, paediatrician, and others. The father worked full time so whilst he may have attended some appointments, it was the mother who carried the load for the appointments and corresponding exercises. Fifth, put bluntly, the parents have amply demonstrated they cannot equally share decision making about major long-term health issues.
Having allocated one aspect of parental responsibility for major long-term issues to the mother (health), the issue is then how the remaining aspects of parental responsibility for the balance of major long-term decisions is to be allocated.
The mother seeks sole parental responsibility for all major long-term issues, and the father and ICL propose the parents have equal shared parental responsibility for those remaining aspects of parental responsibility. It is probably more faithful to the Act to say the ICL and father seek orders that decisions about the remaining major long-term issues be made jointly as required by s 65DAC of the Act (Newlands & Newlands (2007) 209 FLR 30 at[90]).
This labelling of sole or equal is really much ado about nothing – the parents agreed in cross‑examination that no other major long-term decisions were required, other than health.
There is no decision required about either child’s major long-term education (both current and future); Y has already been enrolled to follow X at JJ School next year (2024). The same applies to each child’s religious and cultural upbringing; it is not in issue. There is no dispute about either child’s name. There is no suggestion of any changes to the children's living arrangements that make it significantly more difficult for the child to spend time with a parent.
It seems the parents were more engaged with the label or symbol of “sole” or “equal” parental responsibility, than looking at what, if anything, was actually required. I will make an order pursuant to s 65DAC of the Act that the parents are to share parental responsibility for the children where the exercise of that parental responsibility involves making a decision about a major long-term issues in relation to the children, other than health. That section requires the decision be made jointly by these parents. It further provides:
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
I make this order so neither parent has some form of symbolic ascendency over the other for issues that are not actually in dispute.
I will make a further order pursuant to s 65DAE so that it is abundantly clear to the parents they do not have to consult the other parent with respect to day to day decisions about the children whilst in their care. I do so to avoid further conflict.
Best interests of the child
Section 60CA of the Act provides that “[i]n deciding whether to make a particular parenting order in relation to the children, a court must regard the best interests of the children as the paramount consideration”.
The best interests of a child are determined by an examination of the considerations set out in s 60CC of the Act. In Tibb & Sheean (2018) 58 Fam LR 351 at [74]–[78], the Full Court made clear that while the Court must consider each of the primary and additional considerations in s 60CC, express discussion is not necessary. The relevant considerations are determined by the way in which the parties presented their cases.
The primary considerations set out in s 60CC(2) of the Act are as follows:
(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.
In balancing these considerations, s 60CC(2A) of the Act requires the Court give greater weight to s 60CC(2)(b).
Section 60CC(2)(a): a meaningful relationship
In Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”) Cronin J held at [169]:
169.There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
In Loddington Cronin J further added at [173] that an assessment of the benefit to the child must be made according to “the peculiar facts of what the parents are offering”.
In Cotton & Cotton (1983) FLC 91-330 (“Cotton”), Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
… that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
In McCall & Clark (2009) FLC 93-405 (“McCall”) at 83,476, the Full Court said at [122]:
122.…No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests.

In McCall at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents will be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
Both parents and the ICL propose orders which they say would allow for the children to have a meaningful relationship with the other parent. The dispute is quantum – seven nights a fortnight on one hand, or four nights a fortnight on the other. On both parents’ cases and that of the ICL, holidays will be shared. Both parents and the ICL are thereby saying there will be a positive benefit for the children in having a significant relationship with both parents.
Section 60(CC)(2)(b) Protection from harm
The second primary consideration in determining a child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Neither parent argued the other parent posed an unacceptable risk to the children as that concept is understood from, say, Isles & Nelissen (2022) FLC 94-092. Given the parents’ dispute is between equal time or significant and substantial time, such a position would have been remarkably odd.
The children do however need to be protected from the harm that has been caused to them by the parents’ conflict over health issues. The order for sole parental responsibility for major long-term health issues ought have an ameliorating effect in that regard.
Section 60(CC)(2A) balancing the primary considerations
The balance plainly favours the desirability of the children maintaining a meaningful relationship with both parents. That is all the more so with the making of a sole parental responsibility order in the mother’s favour for major long-term health issues - the harm to the children from the parents’ dispute over their health ought now be fundamentally reduced.
Section 60CC(3) - Additional Considerations
The Court must have regard to each of the “additional considerations” under s 60CC(3) of the Act, separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child's best interests. These are as are set out below.
(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;
The author of the Child Impact Report, Ms KK, saw the children on 6 July 2022. She wrote:
Both [X] and [Y] said that they wished to continue spending equal time with both parents in a week-about fashion. There was no evidence in their interviews that either child had felt pressured to take a position by either parent, and due to their ages their views should be given some weight in determining on-going arrangements for them.
(Exhibit 2, paragraph 16)
Dr C saw the children in November 2022. In his report he said “[X] presented in a clear, direct, and articulate manner when discussing his experience” (Exhibit 1, paragraph 127) and recorded X’s views as follows:
He discussed the weekabout shared care arrangement between his parents: "Yeah. I do like it. I agree with that. I do like to see both parents. I don't want to miss out on what the other parent does." He explained that when with his dad, they would do activities. They would work on motors in the garage. With his mum, they would watch movies and go to putt putt golf. In his view, the half-half arrangement allowed him to get the best from both parents, "and I wish it to stay that way".
(Exhibit 1, paragraph 134)
[X] was explicit in his wish to maintain the current 50-50 shared care arrangement. ... Given [X's] age and evident developmental maturity, significant weight should be given to his wishes.
(Exhibit 1, paragraph 216)
Dr C recorded Y’s views as follows:
He found the weekabout shared care arrangement to-work well. He said that he'd prefer the changeovers to happen after school on Mondays because then he could play with friends and relax on the weekends and not have to have a changeover. There was nothing else he wanted to be different.
(Exhibit 1, paragraph 161)
[Y] also preferred maintaining weekly contact with each parent. ... [Y's] less mature proposal to tweak these arrangements was unlikely to be a well thought out position. Limited weight should be given to his proposal in this regard. That said, he was also motivated to maintain weekabout shared care.
(Exhibit 1, paragraph 216)
Both parents agree the children said these things, but the mother “does not believe” that is what the children actually want and that X told her he (X) “was not free to express his opinion”. The mother told Dr C this, adding “[X] had said that he could not be honest because his father would find out and he would get into trouble.” The mother accepted X may be telling her what he (X) thinks she (the mother) wants to hear. Dr C was therefore alert to the possibility X was not being frank with him.
When asked whether he thought X’s views were genuine, Dr C said:
[DR C]:... it was clearly a genuine view.
...
[DR C]:….the first thing to say is that there was a consistency between the views expressed to myself and some months before with the child impact report. Secondly, [X] spoke about his – and certainly, it was the opinion of the – of the author of that report that the children were expressing their views and had not been excessively influenced when reporting their views in that context. When I interviewed [X] he had an understanding of the nature of the circumstances. He presented in a clear, direct and articulate manner. When interviewed he, you know, spoke positively about his experience of – of both parents. He, you know, did not present as being polarised in his view. ... and so there was nothing to suggest that he was presenting in a – in a manner where he was excessively influenced in his views by either parent.
(Transcript 1 February 2023, p.7 line 26 to p.8 line 4)
Dr C was also of the view that Y’s views were genuine:
[DR C]: He spoke to his lived experience in a balanced manner. He felt comfortable about saying what he agreed with and what he didn’t agree with. It was evident that he had been – you know, that his views about aspects such as the police attending and, you know, the removal of the [weapons] when the – the – he was discussing that issue it was evident that that was, you know, based on discussions that he had had with his – with his father, but, nonetheless, you know, he spoke positively about living with his mum. He spoke positively about living with his dad but was able to state that his dad was a little bit bossy, so again, there was not a – a – kind of a – a – any evidence of a polarisation or an alienation dynamic evident. There was no indication that he lacked the capacity to identify what he did or did not agree with or like about his experience in – in the two households.
(Transcript 1 February 2023, p.8 lines 13-24)
I accept Dr C’s opinions about the genuine nature of each child’s views. Dr C was not shaken in that opinion. Conversely, the mother has not persuaded me that X did not feel free to express his true views. The children have expressed clear and consistent views about week about not only to Dr C, but also in the Child Impact Report.
Given the ages of the children, and the longevity and strength of their wishes, I place considerable weight on their views. It is also the case that the children are not expressing a view about an untested or untried proposal. They have lived week about for some time.
(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);
X described his experience of his father to Dr C:
As a dad, he is really nice. We do lots of physical things together. We go to my grandparents' [place]. I enjoy helping out with the [animals]. He is nice but he is not a friend. If we do something out of line, he will tell us to do it and we will fix it up”.
[X] stated that his father had always been like this, "always nice and if you do something wrong, he will tell you and there will be a consequence".
(Exhibit 1, paragraphs 131-132)
Of the mother, X said she was:
... really nice and caring. Sometimes she can be a little bit overprotective. She is very wary of what I do and the decisions I make. Until the beginning of Year 7, I was not even able to cross the road without her being there.
(Exhibit 1, paragraph 133)
Y said:
When asked about living with his mum, he told me that she was pretty nice, she cooked sausages. He denied that there were any problems with her. When asked about living with his dad, he responded, "dad is also okay. Sometimes he does get a little bossy, but that's okay."…
(Exhibit 1, paragraph 161)
Dr C described that a loving and engaged relationship was observed between both children and with each of their parents. They were observed to enjoy a close sibling bond. A positive engagement was also identified with the paternal grandmother.
I have no reason to doubt Dr C’s observations; what he recorded was not the subject of challenge. Given the orders proposed by the parents and ICL, they all must accept that to be so too.
(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;
The father has very much wanted to be involved in health care decision making, so much so that he has withdrawn his consent to treatments when he could not give input. But that means he put his desire to be included ahead of actual treatment for the children by professionals.
Now that the mother will exercise sole parental responsibility for all major long-term health decisions, this area of conflict ought abate. Other than that, little turns on this. No submissions were made that it did.
(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;
The father pays child support as assessed of approximately $300–$320 each week (the parents had different figures) and then also has the costs of the children when with him. The mother deposed that the father is “up to date with his child support payments” (Mother’s affidavit filed 29 December 2022, paragraph 24).
The mother too has the costs of the children when they are with her. The mother further deposes she has been solely responsible for paying for the children’s medical fees and specialist treatment.
Little, if anything turns on this. No submissions were made that it did in the parenting proceedings.
(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; (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The mother proposes a change to the living arrangements by reducing the children’s time with the father. The father proposes the week about continue. In cross-examination, Dr C said this:
[DR C]:…it is my view that the children would experience additional frustration, resentment. It would be a recipe for the precipitation of further angry behaviour in the mother’s household and oppositionality, and I think that that would be in part due to their own experience of frustration, and I have no doubt that communication from their father would contribute to their, you know, frustration as well because I have no doubt that he would say, “Listen, mate, I tried – I tried everything I could to, you know, kind of keep seeing you regularly, but, you know, kind of, your – your mother and the court, you know, kind of stopped that from happening”, and that would not be – and – and it’s my view that that would be a problematic arrangement.
[ICL’S COUNSEL]: And do you perceive that other problems for the children might filter into performance at school, effects in their social lives and effects in relation to their relationships with either parent?---
[DR C]: Yes, I think there would be a – likely to be a knock-on effect in – in all of those regards. ... It is important to – to note that once a child or adolescent has already experienced significant depressive symptoms and has expressed suicidal ideation and behaviour, by definition they are more vulnerable to a recurrence of such emotional and behavioural disruption in comparison to the normal population. There are a whole host of vulnerability factors that could be exacerbated under such circumstances.
(Transcript 1 February 2023, p.10 lines 5-31)
Week about has been in place for some time now. When X saw Dr E on 11 June 2021, X was anxious about increasing the time with the father from two nights. Dr E added:
…This is not to imply that [X] does not want to spend time with either of his parents, just that he is very unsure of how he will be able to adjust to their communication patterns when he is required to move between two homes more frequently than he currently does. He is already anticipating increased conflict.
(Annexure AB12 to the mother’s affidavit filed 29 December 2022, p.61)
However, that increase occurred and increased again to the current week about. It was Dr C’s more recent assessment that:
[DR C]:…he [X] has adapted to a significant change in his – in his living arrangements. He certainly did not express anxiety to me about continuing to spend – neither [X] nor his younger brother expressed concern – anxiety to me about spending half the time in his father’s care because there had been a change in their circumstances, and both boys were used to the experience of spending half the time in – in each – in each household.
(Transcript 1 February 2023, p.20 lines 44 to p.21 line 2)
Critically, Dr C added:
[DR C]:…although [X] continues to require assertive psychological and psychiatric intervention and medication for his conditions – that there has been a stabilisation in his mental state and functioning since that time. He is no longer depressed, anxious or suicidal, based on my assessment.
(Transcript 1 February 2023, p.21 lines 6-9)
Dr C’s opinions about the importance of continuing the week about arrangements is something I give considerable weight. I have already determined to give the children’s views about this considerable weight too. Conversely, it is hard to see how a change to reduced time would bring benefits to the children greater than listening to their views, where the children are used to week about, and X’s mental state and functioning has stabilised.
(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;
No one raised anything under this heading.
(f) the capacity of: (i) each of the child's parents, to provide for the needs of the child, including emotional and intellectual needs; (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;
By virtue of the orders each parent seeks, they must be saying the other parent has sufficient, or good enough capacity to parent.
Nevertheless, both parents have some failings. Cross-examination of the mother revealed she took a relaxed approach to the children attending school. It was really left to the children whether they attended or not. True, the children decline to go to school at times, but the mother simply permitted the relevant child to have the day off without much by way of encouragement or direction that they attend school. Indeed, the mother accepted in cross-examination that she would not even ask the child why he did not want to go to school, and that they would he would be absent in her care “without reason”. For X, the mother said he (X) made the decision not to go to school, as if she was absolved from such a responsibility. The mother then agreed it was very poor parenting to allow a child to decide whether they would go to school.
It transpired that on the day of physical separation, both grandmothers were present, the paternal grandfather attended, the paternal grandmother may have been filming. The mother deposed she was afraid things would escalate and the tension levels were high. Ms DD, the maternal grandmother, deposed she felt “very intimidated” and the paternal grandmother was “shoving paperwork in my face”. The two grandmothers (or the maternal grandmother’s case), exchanged words. The maternal grandfather described a tense scene too.
Notwithstanding the mother’s concerns things would escalate, the mother said in cross‑examination, “[X] chose to stay home that day.” In her affidavit, the mother deposed,
He said, “I want to see what happened the day my parents separated”. At that point, I found the tension in the house was overwhelming. [Ms M Kensit] yelled “we should have got rid of you years ago!” and “you couldn’t lie straight in bed!”. [Mr Kensit] and [Ms M Kensit] walked over yelling “leave!”, “hurry up!” and “just leave!” to me and my parents...
(Mother’s affidavit filed 29 December 2022, paragraph 166)
That was precisely a day X should have gone to school where he would have been shielded from the “high levels of tension” and the mother’s concern that things might escalate – and on her case, they did. Instead, the mother permitted X to be present. On her account to Dr C, X heard a paternal grandparent call the mother a “fucking bitch”. There is every chance X saw or heard the grandmothers’ exchange words.
Parenting brings with it obligations and responsibilities, one of which is to get children to go to school, save where there a reasonable excuse such as, say, COVID or hospitalisation. The mother however has shirked these responsibilities and taken the path of least resistance without even asking the child for a reason why he ought not go to school.
The mother and father have also played silly games with the school over a child’s non‑attendance. For example, in late 2022 the father advised the mother that Y was not well and would not go to school. When the school contacted the mother, the mother texted the school to speak to the father. That was unhelpful of the mother to not relay the information to the school. However, the father had obviously not informed the school either.
Accordingly, I will make the order proposed by the mother, father and ICL, that each parent inform the other if the child is not attending school or leaving early. In the circumstances just described, I will also make an order that if either child is not attending school, the parent they are with must also advise the school by 9.30 am that day (adopting the same time proposed for one parent advising the other). That is just a plain matter of courtesy and respect for the educators.
It was also unhelpful of the mother to text the father when the children were sick, but if he wanted more information, the mother referred the father to the child. That is not child focused on the part of the mother.
It was also truly appalling for the mother to tell X “your dad didn’t even fight for you and doesn’t care or want you”. The parents had been to mediation that day. It is all very well for the mother to regret saying this, but, the cat was out of the bag once the words fell from her mouth. The mother said she apologised to X, but the words were already in his ears. It also seems the case that the mother does not actively promote the parenting arrangements with the children; for example in early 2021 she took the children to the father’s house but X refused to go. The mother “explain[ed] to [X] that ‘there are orders’ and ‘I need you to follow them or I will be in trouble’” (Mother’s affidavit filed 29 December 2022, paragraph 262). This is hardly embracing of orders at least for the benefit of the children. It was a guilt trip.

As the husband’s counsel succinctly put it in written submissions, “it is a debt due to the wife and can be the subject of an order requiring it be paid” (Exhibit 17, paragraph 18). I agree.
Costs the husband seeks the wife pay from her entitlement
The husband seeks the wife pay the following costs. The wife resists these payments, save for Item 14 which is included in her proposed Minute of Order:

Ownership

Description

Husband’s value

Wife’s value

14

W

Wife’s costs owed to the Husband pursuant to Order 3 of the Orders by a Registrar on 26.04.2021

$500

NIL

[but is included in her Minute]

15

W

Costs owed to the Second and Third Respondent

E$23,768

NIL

24

W

Half Payment of Family therapy fees

$600

NIL

25

W

Half Payment of Single Expert’s (Dr C) fees

$9,350

NIL

26

W

Half payment of Mr Q’s fees

$2,750

NIL

27

W

[Half] Payment of jewellery valuation fees

$360

NIL

Item 14: this order has not been satisfied and ought be paid. The wife proposed an order that she pay this sum and any other sum ordered by the Court from her entitlement. I will make the order for the payment of the $500 by the wife from her entitlement.
Item 15: I will consider this at the end of this list as it is not as quickly disposed of as the other items.
Items 24-27: the husband has paid these sums up front and it was left to the trial for me to determine what, if anything, the wife ought contribute.
Section 117(1) of the Act says each party is to pay their own costs. In relation items 24–27, the husband is currently the only contributor to meeting the relevant costs. The Family Therapy was ordered by consent. It was intended to be of benefit to the parents and ultimately the children, but the wife did not end up proceeding with it. Dr C’s report gave both parents the benefit of hearing the children’s views from an expert and to hear the expert’s views on what he considered in the children’s best interests. The valuation reports arose because the parents could not come to agreement themselves.
In considering whether there are circumstances that justify departing from s 117(1), no factors in s 117(2A) attract any greater weight than the other (Prantage & Prantage (Costs) [2014] FamCA 850 (“Prantage”) at [12]). Further, only one factor need be present (PBF (as child representative for AF (Legal Aid Commission of Tasmania)) & TRF & LKL (2005) 33 Fam LR 123 (“Fitzgerald”) at [41]). Section 117(2A)(g) is of wide import and allows me to take account of the benefit or assistance both parents received from these orders (and the children for the proposed therapy and Dr C) in the way described above. Put differently, I see no circumstances to justify departing from s 117(1). The wife will pay her half of these costs from her entitlement.
Second and third respondents’ costs
Item 15: The second respondent, Ms M Kensit, was born in 1947. The third respondent in these proceedings, Mr N Kensit was born in 1941.
For their costs application, the second and third respondents relied upon:
·Response to Initiating Application filed 3 May 2021;
·Affidavit of Ms M Kensit filed 22 December 2022;
·Affidavit of Ms M Kensit filed 3 August 2021;
·Affidavit of Ms TT filed 3 May 2021; and
·Affidavit of Ms SS filed 18 May 2021.
The second and third respondents also filed an Outline of Case Document on 25 January 2023. They seek their costs on a party/party basis in the sum of E$23,768 (Exhibit 16), but it is not clear to me how that sum is derived.
In so far as the second and third respondents were involved, the parties agreed and consented to me making a decision on the issue of costs on the papers in chambers and as part of my wider reasons in this matter. On 30 January 2023 I made the following orders and excused the legal representative for the second and third respondents from further attendance:
THE COURT ORDERS THAT:
1.With respect to the second and third respondents, the Court receives their Case Outline filed 25 January as their written submissions on the issue as to costs.
2.The first respondent has 14 days from 30 January 2023 to provide written submissions in response.
3.The second and third respondents then have seven days from the receipt of the first respondent’s written submissions to make any submissions in reply.
(Emphasis in original)
In accordance with Order 2, the wife filed her written submissions on 13 February 2023. The second and third respondents’ reply was filed on 20 February 2023.
The background to this dispute is as follows. On or about late 2005, the second and third respondents paid $100,000 to the vendors of the former matrimonial home in part payment of the purchase price for the Suburb J home. The husband, wife, second and third respondents entered into a Deed dated late 2005. The Loan Deed is attached to the affidavit of Ms M Kensit filed 3 August 2021 at Annexure 6.
The Deed shows the husband and wife as the borrower of the $100,000. The Loan was repayable in certain circumstances including if the relationship between the husband and wife broke down.
The second and third respondents sent a letter of demand for repayment of the Loan by a letter from Pikes & Verekers Lawyers (PVL) dated 25 January 2021 (Annexure BA1 to the affidavit of Ms M Kensit filed 22 December 2022, p.10–11). That letter very clearly referred to the Loan Agreement, a caveat supported by the Loan and the clause relevant to repayment. It took the wife some eight or so weeks to reply, which she did through her then solicitors UU Lawyers. The wife denied that there was any Loan Deed, denied there was a caveat and asserted, “your demand for monies form my client are ill-conceived and have no merit” (Affidavit of Ms M Kensit filed 22 December 2022, paragraph 12).
The husband joined the second and third respondents to the proceedings by naming them in his Initiating Application filed 15 February 2021. He sought an order they be repaid.
The second and third respondents filed their Response and address for service on 3 May 2021 and sought repayment of the loan and costs.
The wife filed an affidavit on 23 May 2021, deposing that the monies were a gift, not a loan (Second and third respondent’s Outline of Case Document filed 25 January 2023, paragraph 10). Looking at the wife’s submissions, it seems her positon was that:
5.        The wife argued inter alia:
a.         That the loan ought to be characterized as a gift
b.        That she did not sign for the caveats securing the deed over the loan
c. The sum of $100,000.00 was an unconditional gift provided to the her and the husband. The loan deed agreement was signed for the purpose of allowing [Ms M Kensit] to deduct the amount from her superannuation as an ‘investment’. Reference is made to paragraph 10 of the affidavit of the wife filed 23 May 2021 which states:
10.Before we exchanged contracts, I recall a conversation with [Mr Kensit] as follows:
[Mr Kensit]:[Ms Kensit], mum’s going to give us $100,000 for the house purchase. She needs to get it out of her super thought, so legally it needs to be structured as a loan. After it’s all done, you’ll need to sign some paperwork.
[Ms Kensit]     OK.
[see also Notice Disputing Facts filed on behalf of the wife on 23 June 2021]
d. On all facts and circumstances, the second and third respondents were seeking repayment of a loan which was some 15 years old, and well past the statute of limitations period for making of a claim,
(Wife’s written submissions filed 13 February 2023, paragraph 5)
Point 5(c) reveals the wife knew of the loan deed, but essentially called it a sham. On point 5(d), the wife eventually agreed to re-pay the loan despite asserting it was statute barred.
Consequent on the wife’s attitude, the second respondent then the swore an affidavit on 2 August 2021, as summarised in the second and third respondents’ Outline:
8. There is a clear and contemporaneous documentary record establishing the existence of the Loan and its terms:
(a) A letter from [Mr N Kesnit] and [Ms M Kesnit] to [VV Financial] dated [mid] 2005 establishes that [Mr N Kesnit] and [Ms M Kesnit] were prepared to make the Loan, interest free, secured by a Loan Deed and a caveat over the matrimonial home: Affidavit of [Ms M Kensit] 02.08.21 [13] Exh. [MMK]-1.
(b) [Mr N Kesnit] and [Ms M Kesnit] paid $100,000 to the vendors of [K Street] by bank cheque dated [late] 2005: Affidavit of [Ms M Kensit] 02.08.21 [17] Exh. [MMK]-2.
(c) Letter from [XX Lawyers] to the Husband and Wife dated [late] 2005, recording the provision of the Loan and enclosing a short form deed to be executed by the parties recording, inter alia, the entitlement to a caveat: Affidavit of [Ms M Kensit] 02.08.21 [14] Exh. [MMK]-4.
(d) [In late] 2005 the Husband and Wife executed a consent to a caveat over [K Street]: Affidavit of [Ms M Kensit] 02.08.21 [23] Exh. [MMK]-5.
(e) The Loan Deed itself dated [late] 2005, executed by all parties: Affidavit of [Ms M Kensit] 02.08.21 [24] Exh. [MMK]-6.
(f) The second caveat lodged [in mid-] 2015 (also with the consent executed by the Husband and Wife), replacing the first caveat which had been withdrawn to assist the Husband and Wife with the purchase of an investment property in Queensland: Affidavit of [Ms M Kensit] 02.08.21 [27] – [33] Exh. [MMK]-10.
(g) The withdrawal of the second caveat the request of the Husband and Wife in [late] 2016 and the subsequent lodging of a third caveat by [WW Lawyers], instructed by the Husband and Wife, in [mid] 2017: Affidavit of [Ms M Kensit] 02.08.21 [34] – [38].
9. In addition to the documents themselves, a solicitor retained by [Mr N Kesnit] and [Ms M Kesnit] and the Husband and Wife, [Ms TT], gives evidence that the four of them attended on her on [early] 2015 and instructed her to prepare what became the second caveat: Affidavit of [Ms TT] 30.04.21 ([Ms TT] aff) [2]. They produced to [Ms TT] the Loan Deed, the letter of [mid] 2005 to [VV Financial] and the letter from [XX Lawyers] dated [late] 2005 and [Ms TT] quizzed the Husband and Wife on their understanding of the purpose of the caveat and the terms of the Loan. She recommended that they obtain independent legal advice but the Husband and Wife each indicated that they understood the caveat was to protect the interests of [Mr N Kesnit] and [Ms M Kesnit]: [Ms TT] aff [3] – [7].
(Emphasis in original)
(Second and third respondents’ Outline of Case Document filed 25 January 2023, paragraphs 8-9)
Despite this considerable body of evidence filed on 3 August 2021, it was not until late 2021 that the wife consented to orders that the husband and wife forthwith pay the second and third respondents the $100,000 from their joint offset account.
The second and third respondents submit:
12. The evidence establishes beyond doubt that [Mr N Kensit] and [Ms M Kesnit] made a loan of $100,000 to the Husband and Wife in [late] 2005, that it was acknowledged in the Loan Deed dated [late] 2005, that they both consented to a caveat to secure repayment of the Loan, initially in [late] 2005 and then subsequently on a number of occasions in 2015 to 2017. The first record of any dispute as to the existence of the Loan is the letter from [UU Lawyers] dated [early] 2021. That letter required the joinder of [Mr N Kesnit] and [Ms M Kesnit] to the proceedings. They were thus required to incur substantial costs to prove the Loan, the key elements of which were admitted in response to the Notice to Admit Facts in June 2021.
13. Finally, Consent Orders were made on 24 November 2021 providing for repayment of the Loan, without limitation or reservation, and it was repaid on 2 and 3 December 2021.
14. Those orders having been made by consent, the Wife should not now be entitled to lead evidence challenging the making of the Loan, as she apparently seeks to do.
(Footnotes omitted)
(Second and third respondent’s Outline of Case Document filed 25 January 2023, paragraphs 12–14)
As to s 117 of the Act, they say:
17. With respect to subsection 117(2)(a), [Mr N Kesnit] and [Ms M Kesnit] submit as follows:
(a) in light of the amount of costs that they seek, to wit $16,107.95 plus the costs of this hearing, the financial circumstances of the Wife do not preclude the making of the order sought;
(b) the conduct of the Wife on this issue in the proceedings has been, for the reasons set out above, wholly unreasonable and has caused [Mr N Kesnit] and [Ms M Kesnit] to have to incur substantial costs to recover the substantial Loan they had made in 2005; and
(c) in the relevant respect, following the Consent Orders made on 24 November 2021, the Wife has been wholly unsuccessful in her opposition to the claim by [Mr N Kesnit] and [Ms M Kesnit].
(Second and third respondents’ Outline of Case Document filed 25 January 2023, paragraph 17)
The husband submits “that the court, if it makes a costs order, should treat this as having to be paid from the wife’s share of the pool” (Exhibit 17, paragraph 12). He otherwise did not wish to be heard on the issue of costs and made no further submissions.
The wife submitted:
3. It is common ground that:
a. [In] or about [late] 2005 [Mr N Kesnit] and [Ms M Kesnit] paid $100,000 to the vendors of the matrimonial home ([K Street]) in part payment of the purchase price;
b. The parties entered into a Deed dated [late] 2005 (Loan Deed), which recorded:
(i)that the Husband and Wife were borrowers from [Mr N Kesnit] and [Ms M Kesnit] of the loan amount of $100,000 (the Loan);
(ii) the Loan was repayable in certain circumstances, including a breakdown in the relationship between the Husband and Wife resulting in their separation;
(As per the original)
(Wife’s written submissions filed 13 February 2023, paragraph 3)
In terms of s 117, the wife submitted:
…
a. That she is unemployed, the husband has repeatedly defaulted on his obligation to pay spousal maintenance to her and, as such, her financial circumstances do preclude the making of a costs order [see financial statement filed on behalf of [Ms Kensit] on 23 December 2022 and Affidavit of [Ms Kensit], under the heading “spousal maintenance
b. The costs as sought by the second and third respondent are excessive and appears to be unjustified where there were 2 court attendances between the day they filed their notice of address for service and the day that orders were made by consent on 22 November 2021
c.         The wife’s conduct was not “wholly unsuccessful” where:
i.         There was no hearing on the issue
ii.        There was no finding made by the court
iii. The wife appears to have conceded payment of the loan to curb costs and avoid litigation on what appeared to be a minute issue which had for some strange reason taken “centre stage” during the first few months of the hearing.
d.Furthermore, it cannot be argued that the wife’s conduct was wholly unreasonable when:
i.         There was a live issue as to the enforceability of the loan
ii.        There was a live issue as to the characterization of the loan
iii. There was a live issue as to whether the wife actually signed the caveats which were lodged against the property to secure the loan
iv.       The wife settled the issue well before the final hearing
e. Regardless of the courts views on the conduct of the wife and the respondents, the court ought not to punish a party with costs orders when an issue was resolved early on during the proceedings by consent. Doing so would set a dangerous precedent and provide a disincentive for litigants to settle for fear that “settling” might be taken to be evidence that the litigant was “wholly unsuccessful”, or “unreasonable” in arguing their case. In any event, the court cannot draw an inference on the wife’s “unreasonableness” or any “success” of her argument when the matter simply didn’t go to trial on this issue.
f. It appears that payment is sought by the second and third respondents on a party party basis. .... The “professional fees” are not itemized, do not state the period of time for which professional fees were incurred or the purpose these “professional fees” were rendered.
g. Finally, it is submitted that the respondents have not rebutted the presumption in 117(1) that each party to proceedings under this Act shall bear his or her own costs. Accordingly, the court is urged to dismiss the application.
(Wife’s written submissions filed 13 February 2023, paragraph 14)
The second and third respondents’ filed a reply. In short, they submitted the loan was not statute barred, but as said, it was the wife who contended it was but consented to repayment anyway. The reply continued: the costs were modest; the two court events ignores the fact the respondents had to “amass” a substantial body of evidence to refute the wife’s claims; her rejection of the loan was on spurious grounds and then conceded; they have been wholly successful; and the wife’s concession was unequivocal. Too late, the second and third respondents sought to put their itemised costs before the court attached to the reply. That is unfair to the wife who cannot make submissions on same.
Discussion and disposition
As discussed previously, s 117(1) of the Act provides that each party will bear their own costs. That general rule is subject to s 117(2), which provides that a court may make such order for costs as it considers just if “the court is of opinion that there are circumstances that justify it in doing so”.
The factors that are to be considered when contemplating the making of a costs order are those set out in s 117(2A) of the Act; albeit the court may give such weight as it considers appropriate to any relevant factor (Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 at [24]).
It is well settled that no single factor in s 117(2A) has priority, nor must more than one factor be satisfied; rather, any one factor may be sufficient (Prantage at [12]; Fitzgerald at [41]).
In Conrad & Conrad (2020) 61 Fam LR 301 the Full Court said at [43]:
… it is accepted that where a non-party to a marriage is joined to proceedings and the action against them is wholly unsuccessful, in the ordinary course this will amount to circumstances which justifies an order for costs in favour of the non-party. Whether or not an order for costs is made will depend on the myriad of factors to which s 117(2A) and the related provisions are addressed.
I turn now to the considerations under s 117(2A) of the Act.
(a) the financial circumstances of each of the parties to the proceedings;
I know nothing about the second and third respondents’ financial circumstances.
The wife submitted that “she is unemployed, the husband has repeatedly defaulted on his obligation to pay spousal maintenance to her and, as such, her financial circumstances do preclude the making of a costs order” (Wife’s written submissions filed 13 February 2023, paragraph 14(a)).
However, I will be making an order that the husband pay his spouse maintenance arrears and an order that the wife receive 57.5 percent of the almost $2 million pool, less some costs. The wife’s submissions thus falls away. In any event, impecuniosity is no bar to a costs order (Lenova & Lenova (Costs) [2011] FamCAFC 141).
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
There is no suggestion that any party is in receipt of legal aid.
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

This factor does not arise.
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
This subsection does not arise.
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
Section 4(1) of the Act defines proceedings as follows:
proceedings means a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding.
(Emphasis added)
The second and third respondents submit the wife was wholly unsuccessful. Conversely, the wife submitted (as set out above), that she was not wholly unsuccessful, saying there was no hearing on the issue, no finding made by the court, and she conceded the loan to “curb costs” on this “minute issue”.
I reject the submissions that cost orders can only be made if there is a hearing on the issue or findings made. Section 117(2) explicitly refers to the making of “such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just”. Indeed, the wife accepts responsibility for what can only be an interim costs order made by a Registrar, which she has not paid.
I also reject the submission that the loan was a “minute issue”. For a start if $100,000 was a “minute issue”, what do I make of the wife’s addback claim for $2,000 in the s 79 proceedings. “Minute” seems to depend on the wife’s subjective view at the time.
Further, that submission runs contrary to what the wife deposed to in her trial affidavit, “[t]his loan formed a large part of the current dispute between the commencement of the current proceedings and the orders of 23 November 2022” (Wife’s affidavit filed 29 December 2022, paragraph 358). In that same paragraph the wife still maintains, “I say this alleged loan was a gift, and should never have been characterised as a gift [I assume she means loan], and maintain it was a gift”. Yet the terms of the consent order are clear:
BY CONSENT AND PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.That within seven (7) days of the date of these Orders the parties shall forthwith pay to the Husband’s parents, the Second and Third Respondent’s the sum of $100,000 from the Joint ANZ Bank Offset Account in full and final satisfaction of the loan owing by the Husband and the Wife as recorded in the Loan Agreement dated 9 November 2005 (“the Loan”).
2.That the costs of the Second and Third Respondent are reserved to the final hearing.
...
THE COURT NOTES:
A.That other than Order 2 herein the Second and Third Respondents agree to release the Husband and the Wife from all actions, claims and demands arising out of the advancement of the Loan.
(Emphasis in original)
(Orders made 24 November 2021)
The parties agreed to an unequivocal court order referring to the sum as a loan and was repaid accordingly. I accept the submission of the second and third respondent that the wife was wholly unsuccessful in her opposition to the claim.
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
I am not aware of any offers.
(g) such other matters as the court considers relevant.
Previously, I set out the wife’s submission that “the court ought not to punish a party with costs orders when an issue was resolved early on during the proceedings by consent”. The submission continued that ordering costs would set “a dangerous precedent and provide a disincentive for litigants to settle for fear that “settling” might be taken to be evidence that the litigant was “wholly unsuccessful”, or “unreasonable” in arguing their case (Wife’s written submissions filed 13 February 2023, paragraph 14(e)).
Costs are not about punishing the unsuccessful party, but about compensating the other party who incurred the costs of litigation (Latoudis & Casey (1990) 170 CLR 534). Further, these submissions sit at odds with what the wife said in her “common ground” submissions extracted above: there was a loan and it was repayable on separation. Yet the wife, well aware of the loan deed, ran an argument it was a gift (and still maintains that in her trial affidavit), but then conceded the loan, consenting to an order it be paid. The wife’s gift position put the second and third respondent’s to the expense of proving that which the wife now submits is “common ground”.
I am also unconvinced by the wife’s submission about a “dangerous precedent”. The wife could have been under no doubt that the second and third respondents were seeking their costs; costs were specifically reserved to trial by the Consent Order. As part of “settling” the loan issue, the wife could have negotiated a ‘no order as to costs’ provision, or some other sum. But, for whatever reason the wife consented to the repayment of the loan and consented to costs being a live, unresolved dispute. There is no “dangerous precedent” in a party seeking their costs that have been specifically reserved. There is no “dangerous precedent” in making a costs order in the circumstances described.
I am satisfied that there are justifying circumstances to make a costs order, primarily because the wife was wholly unsuccessful and these strangers to the marriage were put to the cost of defending the loan, which the wife ultimately conceded by a consent order.
I turn to quantum.
The sum of $23,768 is listed in Exhibit 16 (although agreed to be removed from the balance sheet, and, if costs are to be paid, they come from the wife’s entitlement). The second and third respondents’ Case Outline refers to “$16,107.95 plus the costs of this hearing”. Ms M Kensit’s affidavit of December 2022 attaches invoices in the sums of $11,762.95 and $3,465, which total a slightly lesser sum than the $16,107.95.
In their submissions in reply, the same $11,762.95 invoice and part of the $3,465 invoice were attached, but along with long itemised schedules, which the wife is unable to make submissions upon. There is also reference to what looks like a partial invoice for $7,631.25. None of that adds up to the amount in Exhibit 16. I will also not take the additional invoice and schedules into account as that is unfair to the wife who could not make submissions on them. I am therefore left with invoices for $11,762 and $3,465.
The second and third respondents’ evidence as to the quantum of costs is less than satisfactory.
However, to avoid the costs of assessment (Beach Petroleum NL v Johnson (1995) 57 FCR 119 at 120), r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) allows me to fix costs. Thus, I will fix the second and third respondent’s costs in the amount of $10,000, which is to be paid from the wife’s s 79 entitlement.
The wife will therefore be responsible for these payments from her s 79 entitlement:

Wife’s costs owed to the Husband pursuant to Order 3 of the Orders by Registrar on 26.04.2021

$500

Costs owed to the Second and Third Respondent

$10,000

Half Payment of Family therapy fees

$600

Half Payment of Single Expert’s (Dr C) fees

$9,350

Half payment of Mr Q’s fees

$2,750

[Half] Payment of jewellery valuation fees

$360

Total

$23,560.00

She, like the husband, also have the costs of the ICL to come from their respective s 79 entitlements.

I certify that the preceding four hundred and three (403) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch.
Associate:
Dated: 8 September 2023

File number:	SYC 8643 of 2020
Judgment of:	BRASCH J
Date of judgment:	8 September 2023
Catchwords:	FAMILY LAW – PARENTING – Where the mother proposed the children’s time with the father be reduced from the current week about to four nights a fortnight – Where the Single Expert recommended the children remain in a week about arrangement – Where children want week about to continue – Where the mother seeks sole parental responsibility for all major long-term issues – Where the father and the Independent Children’s Lawyer propose the mother have sole parental responsibility for major long-term health issues, but sharing of all other issues –– Order made for the parents to share parental responsibility for non-medical major long-term decisions – Week about to continue. FAMILY LAW – PROPERTY – Where parties in dispute about addbacks – Where both parties have loans from parents – Contributions and s 75(2) of the Family Law Act 1975 (Cth) factors in dispute – Neither addbacks nor loans included in the pool – Adjustment made in wife’s favour for income disparity and continuing role in the children’s complex medical needs. FAMILY LAW – SPOUSE MAINTENANCE – Where interim spouse maintenance order made in wife’s favour – Where wife sought spouse maintenance on a final basis for a period of two years – Where s 72 of the Family Law Act 1975 (Cth) threshold not met – Application dismissed. FAMILY LAW – COSTS – Where the second and third respondents loaned money to the parties to purchase a property – Where the wife disputed the loan – Where consent orders were ultimately made for the loan to be repaid – Where the second and third respondents sought costs – Costs order made in favour of the second and third respondents.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) Pts VII, VIII, VIIIAB, ss 60B, 60CA, 60CC, 60CC(2)(a), 60CC(2)(b), 60CC(2A), 60CC(3), 65D(1), 61DA, 65DAB, 65DAC, 72, 74, 75(2), 79, 79(1), 79(2), 79(4), 117, 117(1), 117(2), 117(2A) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17(1)(a) Education Act 1990 (NSW) s 23
Cases cited:	AJO & GRO (2005) FLC 93-218; [2005] FamCA 195 Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; [1981] HCA 1 Atwill and Atwill (1981) FLC 91-107 Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124 Beach Petroleum NL v Johnson (1995) 57 FCR 119 Bevan and Bevan (1995) FLC 92-600 Brown & Brown (2007) FLC 93-316; [2007] FamCA 151 C & C [1998] FamCA 143 Clauson & Clauson (1995) FLC 92-595 Conrad & Conrad (2020) 61 Fam LR 301; [2020] FamCAFC 255 Cotton & Cotton (1983) FLC 91-330; [1983] FamCA 18 Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154 Dovgan & Dovgan [2021] FamCA 306 Fielding and Nichol [2014] FCWA 77 Gabel & Yardley (2008) FLC 93-386; [2008] FamCAFC 162 G and G (2000) FLC 93-043; [2000] FamCA 1075 Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78 Kowalski and Kowalski (1993) FLC 92-342; [1992] FamCA 54 Latoudis & Casey (1990) 170 CLR 534; [1990] HCA 59 Lenova & Lenova (Costs) [2011] FamCAFC 141 Loddington & Derringford (No 2) [2008] FamCA 925 Maine & Maine (2016) 56 Fam LR 500; [2016] FamCAFC 270 Mallet& Mallet (1984) 156 CLR 605; [1984] HCA 21 Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157 Mitchell & Mitchell (1995) FLC 92-601 M & M [1998] FamCA 42 Newlands & Newlands (2007) 209 FLR 30; [2007] FamCA 168 Nutting & Nutting (1978) FLC 90-410 PBF (as child representative for AF (Legal Aid Commission of Tasmania)) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158 Perrin & Perrin(No 2) [2018] FamCAFC 122 Poulos and Poulos (1984) FLC 91-515 Prantage & Prantage (Costs) [2014] FamCA 850 Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52 Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142 Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 W v W (1997) FLC 92-723
Division:	Division 1 First Instance
Number of paragraphs:	403
Date of last submissions:	15 August 2023
Date of hearing:	30 January 2023, 1–2 February 2023 and 28 April 2023
Place:	Sydney
Counsel for the Applicant:	Mr Blank
Solicitor for the Applicant:	Mills Oakley Lawyers
Counsel for the First Respondent:	Mr Givney
Solicitor for the First Respondent:	Hillcrest Family Lawyers Pty Ltd
Solicitor for the Second and Third Respondents:	Pikes & Verekers Lawyers
Counsel for the Independent Children's Lawyer:	Mr Fermanis
Solicitor for the Independent Children's Lawyer:	Phillip A Wilkins & Associates

SYC 8643 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR KENSIT Applicant
AND:	MS KENSIT First Respondent MS M KENSIT Second Respondent MR N KENSIT Third Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BRASCH J
DATE OF ORDER:	8 SEPTEMBER 2023

Ownership		Description	Husband’s value	Wife’s value
14	W	Wife’s costs owed to the Husband pursuant to Order 3 of the Orders by a Registrar on 26.04.2021	$500	NIL [but is included in her Minute]
15	W	Costs owed to the Second and Third Respondent	E$23,768	NIL
24	W	Half Payment of Family therapy fees	$600	NIL
25	W	Half Payment of Single Expert’s (Dr C) fees	$9,350	NIL
26	W	Half payment of Mr Q’s fees	$2,750	NIL
27	W	[Half] Payment of jewellery valuation fees	$360	NIL