Kent & Kent
[2023] FedCFamC2F 1509
•23 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kent & Kent [2023] FedCFamC2F 1509
File number(s): PAC 6659 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 23 November 2023 Catchwords: FAMILY LAW – PARENTING – Best interests of children – Orders made.
FAMILY LAW – PROPERTY – Just and equitable Orders made.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 75, 79 Cases cited: Lotta & Lotta [2017] FamCA 50
Saif & Saif [2020] FamCA 119
Division: Division 2 Family Law Number of paragraphs: 232 Date of hearing: 6–9 November 2023 Place: Parramatta Counsel for the Applicant: Ms Druitt Solicitor for the Applicant: Commisso & Associates Counsel for the Respondent: Ms Mahony Solicitor for the Respondent: Family Law Matters Counsel for the Independent Children's Lawyer: Ms Breeze Solicitor for the Independent Children's Lawyer: Laura K Law ORDERS
PAC 6659 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KENT
Applicant
AND: MR KENT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
23 NOVEMBER 2023
ON A FINAL BASIS THE COURT ORDERS THAT:
PARENTING
Parental responsibility
1.The parties have equal shared parental responsibility for the children X born in 2013, Y born in 2015 and Z born in 2017 (“the children”) for all major long-term decisions.
2.The children live with the mother.
3.The children spend time with the father as agreed between the parties in writing and failing agreement as follows:
(a)From the making of these Orders, and continuing until the conclusion of 12 weeks thereafter:
(i)Each Wednesday from the conclusion of school or 3.00 pm to the commencement of school or 9.00 am on Thursday; and
(ii)In week 2 of every fortnightly period from after school Friday or 3.00pm until 7.00 pm on Saturday;
(b)From the conclusion of the 12 week period in Order 3(a) herein and continuing until the conclusion of 12 weeks thereafter:
(i)In week 1 of every fortnightly period from the conclusion of school or 3.00 pm on Wednesday to the commencement of school or 9.00 am on Thursday; and
(ii)In week 2 of every fortnightly period from the conclusion of school or 3.00 pm on Friday until 7.00 pm on Sunday;
(c)From the conclusion of the 12 week period in Order 3(b) herein and continuing thereafter:
(i)During school term times as follows:
A.In week 1 of every fortnightly period from the conclusion of school or 3.00 pm on Wednesday to the commencement of school or 9.00 am on Thursday;
B.In week 2 of every fortnightly period from the conclusion of school or 3.00 pm on Friday until the commencement of school or 9.00 am on Monday.
School holidays
4.From the date of these Orders until the conclusion of the time period in Order 3(b) above the school term time continues throughout all school holiday periods.
5.From the commencement of the time period in Order 3(c) herein during Term 1, 2 and 3 school holidays the children shall spend equal time with each parent as agreed between the parties in writing and failing agreement as follows:
(a)With the mother in week 1 in odd numbered years and in week 2 in even numbered years; and
(b)With the father in week 1 in even numbered years and in week 2 in odd numbered years.
6.During the 2024 Term 4 school holiday periods, the children shall spend one half of the Term 4 school holiday period with each parent as agreed between the parties in writing and failing agreement as follows:
(a)With the mother in weeks 2, 4 and 6;
(b)With the father in weeks 1, 3 and 5.
7.During the 2025 Term 4 school holiday period and all Term 4 school holiday periods thereafter, the children shall spend one half of the Term 4 school holiday period with each parent as agreed between the parties in writing and failing agreement as follows:
(a)With the mother for the first half of the Term 4 school holiday period commencing in even numbered years and the second half of the Term 4 school holiday period commencing in odd numbered years;
(b)With the father for the second half of the Term 4 school holiday period commencing in even numbered years and the first half of the Term 4 school holiday period commencing in odd numbered years.
8.For the purposes of Orders 5 to 7 herein, the Term 1, 2 and 3 school holidays and Term 4 Christmas school holidays are deemed to commence at the conclusion of school or 3.00 pm on the last day the children are required to attend school and changeovers shall occur at 3.00 pm on the middle day of the holidays.
Occasions and events of special significance
Easter
9.If the Easter long weekend takes place during a school holiday period, the children will spend time with the parent that does not otherwise have the care of the children on Easter Sunday for 4 hours as agreed and, failing agreement, between midday and 7.00pm.
10.If the Easter long weekend does not take place during a school holiday period, then the children will spend time with the parents as follows:
(a)From the conclusion of school on Easter Thursday until 7.00 pm on Easter Saturday in 2024 and each alternate year thereafter with the mother;
(b)From 7.00 pm on Easter Saturday until 7.00 pm Easter Monday in 2024 and each alternate year thereafter with the father;
(c)From the conclusion of school on Easter Thursday until 7.00 pm on Easter Saturday in 2025 and each alternate year thereafter with the father; and
(d)From 7.00 pm on Easter Saturday until 7.00 pm Easter Monday in 2025 and each year thereafter with the mother.
Christmas
11.During the Christmas period the children will spend time with the parents as agreed between the parties in writing and failing agreement as follows:
(a)In even numbered years:
(i)With the father from 7.00 pm on Christmas Eve until 2.30 pm on Christmas Day;
(ii)With the mother from 2.30 pm on Christmas Day until 7.00 pm on Boxing Day.
(b)In odd numbered years commencing 2025:
(i)With the mother from 7.00 pm on Christmas Eve until 2.30 pm on Christmas Day;
(ii)With the father from 2.30 pm on Christmas Day until 7.00pm on Boxing Day.
Children’s birthdays
12.On each of the children’s birthdays the parent who would not otherwise have care of the children shall spend time with the children for 4 hours that 4 hour period to be agreed in writing between the parents and failing agreement from 3.00 pm to 7.00 pm.
Father’s Day and Mother’s Day
13.If the children are not otherwise spending time with the father on Father’s Day in accordance with these Orders, the children shall spend time with the father from 9.00am to 7.00 pm on Father’s Day;
14.If the children are not otherwise spending time with the mother on Mother’s Day in accordance with these Orders, the children shall spend time with the mother from 9.00 am to 7.00 pm on Mother’s Day;
Parents’ birthdays
15.Should the parent’s birthdays occur on days when the children would not otherwise be spending time with them then:
(a)The children will spend time with the mother on the occasion of the mother’s birthday:
(i)From 3.00 pm until 9.00 pm if a school day;
(ii)From 9.00 am to 7.00 pm if the mother’s birthday falls on a weekend.
Changeovers
16.Changeovers shall occur as follows:
(a)On a school day, changeover shall occur by the parent whose time is to conclude delivering the children to school;
(b)On a non-school day or in the case of a child not attending school for reasons of illness then the parent whose time is to conclude shall deliver the children to the residence of the parent whose time is to commence.
(c)For the purposes of Orders 16(a) and 16(b) herein, “parent” includes the parent or their nominee.
(d)Where a parent intends to effect changeover for the purposes of Order 16(b) herein through their nominee the parent shall notify the other parent in writing of the nominee not less than 1 hour prior to the changeover.
Communication
17.The parties shall communicate via a communications app such as Our Family Wizard save and except in cases of medical emergency when the parties shall be at liberty to communicate by text or voice call.
Ancillary
18.Each parent is at liberty to attend all events involving the children, including but not limited to extra-curriculars, school events, and volunteer roles at school.
19.Each parent is at liberty to receive reports, copies of any correspondence, newsletters or other written material produced by the school and distributed to parent, discuss with the children’s school about the children’s attendance and progress, and attend and fully participate in all and any activities at the school or connected with the school.
20.Each parent is restrained from denigrating or criticising the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.
21.The parents shall advise the other parent and keep the other parent advised of their current contact telephone numbers (including both landline and mobile phone number if applicable), email address and residential address and advise the other parent of any changes to these details within seven days of such change occurring.
Travel
22.Each parent is at liberty to travel outside the Commonwealth of Australia with the children provided that:
(a)The travel occurs during their time with the children pursuant to these Orders;
(b)Written notice of the intended travel is provided to the other parent no less than 28 days prior to the intended travel;
(c)A detailed travel itinerary is provided to the other parent no less than 7 days prior to the intended travel including:
(i)Flight or ship outbound and inbound details including flight or ship number, departure and arrival times and dates;
(ii)Accommodation details;
(iii)Confirmation of travel insurance certificates for the travelling parent and the children for the duration of the travel.
Passports
23.Both parties shall do all things necessary to ensure that the children are issued with a current Australian passport at all times with at least 6 months’ validity.
24.The mother shall:
(a)Hold all passports issued to the children in safe keeping;
(b)Provide to the father a photocopy of the details of each passport including any updated details as the passports reissue.
25.In the event that the father notifies the mother of intended travel pursuant to Order 22(b) herein the mother shall forthwith and not less than 48 hours following receipt of said notification pass the passports to the father for safekeeping.
26.The father shall return the children’s passports to the mother for safekeeping no later than 7 days upon returning to Australia.
Medical treatment
27.Each parent is to keep the other informed as soon as practicable of any significant medical problems, illness or injury suffered by the children while in their care.
28.The mother shall provide to the father the details of the children’s current GP for the children and in the event of a change in GP, shall provide the new details within seven (7) days of their first appointment.
29.Notwithstanding Order 2 herein, both parties are at liberty to:
(a)Attend with the children at any health appointment which occurs during the time the children are in their care;
(b)Have access to copies any correspondence, report or other communication from a treating health practitioner which would normally be provided to a responsible parent of a minor.
Non-denigration and restraints
30.Both parties are hereby restrained by injunction from denigrating the other party or members of the other party’s family in the presence and/or hearing of the children or allowing the children to remain in the presence and/or hearing of any third party who so does.
Independent Children’s Lawyer
31.The Independent Children’s Lawyer (ICL) is directed to speak to the children face to face to explain the above Orders to them, in particular the Orders relating to them spending time with the father. The ICL shall endeavour to speak to the children in this regard before they are next due to spend time with the father under these Orders.
PROPERTY
32.From the B Bank Term Deposit in the parties’ names, the wife shall be paid the sum of $645,016, and the husband shall be paid the sum of $193,444, and the parties shall forthwith take all necessary steps and sign all necessary documents to enable such payments to be made.
33.Save as is otherwise provided in these Orders, the wife is declared the sole owner both at law and in equity of:
(a)Her cash in bank;
(b)Her superannuation entitlements;
(c)Any chattels, goods, furnishings and other property which are in her possession or control; and
(d)All other property of whatsoever kind or nature presently in her possession or control.
34.Save as is otherwise provided in these Orders, the husband is declared the sole owner both at law and in equity of:
(a)His cash in bank;
(b)His motor vehicle;
(c)His interest in C Company;
(d)His superannuation entitlements.
35.Each party will otherwise retain any other personal liabilities, credit cards, loans or debts in their name and will indemnify the other parties in relation thereto.
36.That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument.
37.Liberty to the parties to seek to relist the proceedings on 7 days’ notice in the event of any difficulty in implementing or facilitating the above Orders.
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
JUDGE NEWBRUN:
INTRODUCTION
These are Reasons for Judgment relating to a final parenting and property hearing held before the Court on 6–9 November 2023. The final parenting hearing relates to X born in 2013, Y born in 2015, and Z born in 2017 (“the children”).
The parties married in 2018. They separated on a final basis on 21 July 2019.
For ease of reference, in these Reasons for Judgment, the applicant shall be referred to as the wife or the mother, and the respondent as the husband or the father.
The parties commenced cohabitation in about 2010 and separated in about March 2021. Post separation to date, the children have lived with the wife.
Post separation, X and Y spent each Monday and alternate Saturday/Sundays with the husband, and the youngest child Z spent time with the husband on the alternate weekend.
Since about April 2022, following an interim parenting hearing, the children have spent time with the husband each Monday for 3.5 hours, and each Saturday from 9.00 am to 5.00 pm in week 1, and each Sunday from 9.00 am to 5.00 pm in week 2. Since about July 2023, following consent interim parenting orders, inter alia, this time with the husband was increased by adding each Wednesday afternoon during school term and some daytime time during school holidays.
MATERIAL RELIED UPON (BOTH PARENTING AND PROPERTY)
The wife relied upon the following documents:
(a)Her Further Amended Initiating Application filed 12 October 2023;
(b)Her affidavit filed 22 September 2023;
(c)Her affidavit filed 13 October 2023;
(d)Affidavit of Ms AA, maternal grandmother, filed 22 September 2023;
(e)Affidavit of Mr E, maternal grandfather, filed 3 November 2023;
(f)Her Financial Statement filed 6 September 2023;
(g)Her Parenting Questionnaire filed 8 December 2021;
(h)Her Financial Questionnaire filed 8 December 2021;
(i)Her Amended Notice of Child Abuse, Family Violence or Risk filed 1 February 2022;
(j)Her tender bundles;
(k)Her Case Outline filed 3 November 2023.
The husband relied upon the following documents:
(a)His Amended Response to Initiating Application filed 12 May 2023;
(b)His Financial Statement filed 11 September 2023;
(c)His affidavit filed 22 September 2023;
(d)His affidavit filed 25 October 2023;
(e)Affidavit of Ms F filed 22 September 2023;
(f)Affidavit of Ms G filed 22 September 2023;
(g)Affidavit of Mr H filed 26 September 2023;
(h)His Case Outline filed 1 November 2023.
The Independent Children’s Lawyer (“the ICL”) relied upon the following documents:
(a)The wife’s Further Amended Initiating Application filed 12 October 2023;
(b)The husband’s Amended Response to Initiating Application filed 12 May 2023;
(c)Affidavit of Dr K, Single Expert, dated 15 December 2022;
(d)Child Impact Report by Ms J, Court Child Expert, dated 20 April 2022;
(e)Report of Dr M dated 7 December 2022;
(f)Her Case Outline filed 5 November 2023.
The following documents became exhibits:
(a)Exhibit A: Minute of Final Orders proposed by the father (amended 9 November 2023);
(b)Exhibit B: Annexures to mother’s affidavit filed 22 September 2023;
(c)Exhibit C: Joint Balance Sheet (amended 9 November 2023);
(d)Exhibit D: Bundle of documents from L Psychology;
(e)Exhibit E: Bundle of documents from N Psychology;
(f)Exhibit F: Bundle of documents from P Psychology, mother’s psychologist;
(g)Exhibit G: Record from O Group;
(h)Exhibit H: Bundle of documents from Q Day Care;
(i)Exhibit I: Bank statement;
(j)Exhibit J: Correspondence;
(k)Exhibit K: Two pages produced from R School;
(l)Exhibit L: Three pages from the child Z’s allergist;
(m)Exhibit M: 3 x CCTV footage from McDonalds (contained on USB drive);
(n)Exhibit N: 3 x police interview footage (contained on USB drive);
(o)Exhibit O: Mother’s video exhibits to affidavit filed 13 October 2023 (contained on USB drive);
(p)Exhibit P: Amended Minute of Orders proposed by the ICL;
(q)Exhibit Q: One page report of Dr M dated 7 December 2022;
(r)Exhibit R: Unsigned Binding Child Support Agreement;
(s)Exhibit S: Child Impact Report dated 20 April 2022.
PARENTING
Proposals
The Independent Children’s Lawyer seeks orders as set out in her Minute of Order (Exhibit P), inter alia, that the parties have equal shared parental responsibility for the children, and the children live with the wife. Further, in relation to time between the children and the husband, the ICL proposed that the husband spend unsupervised time with the children on a graduating basis, with overnight time commencing and leading to 4 nights each fortnight during school term times.
The husband’s proposed parenting orders are set out in his proposed Minute of Order (Exhibit A).
The wife seeks orders as set out in her proposed Minute of Order, annexed to her Case Outline.
EVIDENCE
The Court has had regard to all of the documentary evidence referred to above, together with the oral evidence of the parties, the maternal grandparents, and the Single Expert. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed. However, those that are relevant to the Court’s determination will be considered either in this section or whilst addressing the s 60CC factors (see below). Evidence referred to under the s 60CC considerations shall, in the event of any conflict with the evidence referred to in this section, take precedence.
Both father and mother presented reasonably well as witnesses and sought to give responsive answers to questions asked of them. They were both quite well composed despite lengthy cross-examinations.
Evidence of the wife
The Court does not propose to set out the entirety of the wife’s evidence.
In cross examination by counsel for the husband of the wife, the wife stated she had not considered the possibility that the children may not be telling her the truth in relation to the husband. It was drawn to the wife’s attention that the child Y had reported to her psychologist that she sometimes does not tell the wife the truth, and the wife stated that that did not change her view that Y was telling her the truth regarding her relationship with the husband.
The wife confirmed that Y had taken on a protective role towards her. She did not agree that Y may not be telling her the truth because she wanted to protect the wife.
The wife stated that the benefits of the children spending time with the father, on her proposed final parenting Orders, included the children having a male role model in their lives, they would be provided with two different types of parenting and different experiences. The wife conceded that her proposed final parenting orders restricted the children obtaining such benefits. Nevertheless she stated that she did not believe there was any detriment to the children.
The wife stated that should the children spend short amounts of time with the father she did not consider that there was any unacceptable risk of harm posed to the children. As to any risk of harm posed to the children post separation in relation to the father, the mother stated that she was reliant upon what the children told her after they had spent time with him.
The mother stated that recently she was shaking at a changeover and the children would have seen this occurring.
The mother was asked what she might do better in the future to decrease conflict with the father. She stated that she could not be reactive to the children’s emotions. In this context she stated that she is at times reactive and she gets frustrated and raises her voice.
The mother, in relation to paragraph 216 of her affidavit filed 22 September 2023, agreed that it would have been preferable if she had told the youngest child Z that the father had the cough medicine and that both parents were able to give him this medicine, rather than telling the child that the father wanted to give him the medicine himself. She agreed that she did not believe that the father could administer such medicine to the child. She agreed that at times she indicated to the children, through her tone of voice, the way she reacted, and the words she used, that the father was unsafe in caring for them.
The mother was asked questions in relation to the father’s evidence that he had consulted with Z’s teacher about his reading difficulties and had begun to spend a little time with that child reading to him. The mother stated that this child had raised with her that the father was reading to him incorrectly and which had led the mother to cause her solicitors to write a letter to the father’s solicitors about this issue.
The mother was asked why she did not first consult with the father without approaching her solicitors. In response, the mother stated that in the past the father usually did not respond to her requests, and that she finds it extremely difficult to communicate with the father. The mother stated that she did not see a problem with herself relying upon what Z, a 6 year old, had told her because he told her the truth.
The mother was asked whether there was anything that she could do better to communicate with the father (in relation to parenting). The wife stated that she admitted that she had shut down a bit in relation to communication with the father but that she feels that communication with the father does not go anywhere. She stated that the father was not on board with her when it came to communication. She stated that she would in the future attempt to communicate again with the father. She agreed that the father did not have to agree with her on parenting matters and could parent differently to her and that was not a risk to the children.
The mother stated that she had not told the father of a proposed speech therapy assessment for the child Z, and which had occurred in early 2023. She stated that she could have told him about this proposed assessment but that in the past the father was not interested.
The mother agreed that post separation the father had not said to her that the mother could do what she wanted in relation to the children’s medical needs. On the other hand, she stated that post separation not once had the father told her that he wanted to be involved in relation to the children’s medical needs. The mother stated that during the parties’ relationship the role that she adopted was that she looked after the children’s medical needs.
The mother agreed that she had not told the father about having obtained an appointment for the child Z to see an allergist. She agreed that the father had contacted her asking whether she had certain allergy results for the child Z and that she did not give them to him; she agreed that that may have placed the child Z in a difficult position.
The mother agreed that she and the father had participated in speech assessment for Y which occurred in 2017. She stated that the parties had sat together and answered questions posed by the speech therapist. The mother stated that she was interacting with S Centre as she had already had concerns with Y’s interactions socially.
The mother accepted that the father had a genuine interest in being involved in the children’s lives, their medical care and schooling.
The mother confirmed that in mid-2019 she had reported to Y’s occupational therapist (“OT”) that Y was having tantrums dressing in the morning, that her behaviour was stressful for the family unit, and that she was anxious in new settings. She did not dispute that she had told the OT that Y was very attached to her parents, and that Y was very receptive to her emotions, her stress and anxiety. The mother confirmed that Y was experiencing, in mid-2019, tantrums three times per week and that her episodes could last between 1 to 40 minutes. She had reported that Y was easily overwhelmed and frustrated, that she was demonstrating aggressive behaviours to others, and that she had an “angry tummy” when she was having a meltdown.
The mother accepted that Y does not like changes to her routine.
The mother stated that she did not accept the children were not reporting matters to her accurately. She then stated that she accepted that the children might keep things from her that they were worried might upset her including spending time with the father. She stated that the children do tell her positive things about the father, for example, the child Y had told her that the father took them on a bike ride which was good. The mother did not accept that the children might say negative things about the father to her as they know she did not like him. She stated that nothing she did as a parent might lead the children to think that she does not support the father’s parenting of them.
The mother agreed that she had engaged N Psychology in mid-2023 for Y, having made that decision herself. N Psychology provided psychology services. The mother did not inform the father of her initial meetings with N Psychology because she wanted to see if they were the right fit. She stated that N Psychology told her that she could come in first and then they would speak with the father.
The mother stated that Y was now comfortable with her psychologist Ms T. She stated that the father is now involved with her treatment and that the father had a session booked with Ms T.
The mother’s attention was drawn to a meltdown that Y had in about late 2023 in relation to, inter alia, possible uncertainty as to whether she would be seeing the father at her school. The mother was asked whether she had considered contacting the father as to whether he was going to the child’s school. The mother responded that Y had asked her not to contact the father. It was then put to the mother that it was not Y’s decision to make to which the mother responded that she did not want Y not to trust her. The mother did not contact the father. The mother conceded that her decision not to contact the father had contributed to Y’s adverse reaction the next day when she saw the father at school and that both parents could have done better in this situation.
The mother agreed that Y’s psychological treatment had commenced in 2019 before separation. She agreed that she was given particular strategies in 2019 and 2020 to help Y’s behavioural regulation.
The mother confirmed that she had not placed the father’s name and contact details on a particular form she had completed for the child Z’s day care service, having stated that this service told her she did not need to provide the father’s details.
The mother stated that she was not alleging that the father forces the child X to eat lollies against his will. When asked why she had put that in her trial affidavit, the mother stated that X had told her that the father was forcing him to do that. It was then put to the mother X was exaggerating that statement to the mother, to which the mother responded by stating not always.
The mother stated that she did have experience of children telling half-truths. She accepted the possibility that the children might not accurately represent what was happening in the father’s household, however she stated that what she was told by the children was not consistently inaccurate.
The mother confirmed that an allergist, Dr U, had provided a written report dated 15 March 2023 regarding the child Z’s allergy assessment and that this report was not provided to the father until 24 April 2023. The mother stated that she had not been in contact with the father as she progressed with an allergy plan in relation to the child Z consuming certain foods; she stated that this was probably not the right decision by her for this child. The mother stated that she was not suggesting that the father was incapable of following a recipe if she was to give a recipe to him. The mother stated that she could have done better in involving the father in the treatment plan for Z.
The mother was asked questions about the child Y and intolerances to certain things. The mother was asked whether she was suggesting that the father purposefully gave Y foods that she was intolerant to, to which the mother responded that Y says that to her.
It was suggested to the mother that if both she and the father attended a medical specialist for a child it would be useful that they both provided information. The mother agreed but stated that she would feel very uncomfortable in doing that. She explained that she feels intimidated by the father and that she gets put down by him for relying on the children’s information provided to her.
It was put to the mother that the father states that he was not feeding the children food that they were intolerant to, to which the mother responded that she did not believe the father. The mother was then asked what she might do to enable her to trust the father, to which the mother responded that she had asked the father to show her the foods that he was feeding the children but that he did not respond to her.
The mother stated that she had not considered whether the children were reporting negative things about the father by reason of pressure on them to do so.
It was suggested to the mother that changeovers at school had gone without incident, to which the mother replied that the child X had expressed a problem on one occasion.
The mother stated that there was a heated discussion between the parents in front of the child X in early 2023 in relation to which parent should pick up this child at a particular time. The mother stated that this was not ideal to occur in front of X. The mother stated that X had told her that he was not comfortable with the father in the car. She stated that she had moved X’s sports class to Tuesday at his request because he had begged the mother to do so and the mother was trying to keep him calm. The mother agreed that facilitating X’s request reinforced this child feeling unsafe with the father. Nevertheless, the mother stated that she thinks that what the children tell her is correct most of the time, and she believed that the children are unsafe with the father in a car.
The mother was asked some questions about an alleged event between Y and the father when Y was in a bedroom at the father’s residence with the father and he locked the door. It was suggested to the mother that Y had discussed that event with her psychologist and reported no concern, to which the mother replied that she believed the event was a concern for Y albeit that she had not read the notes of Y’s psychologist.
As to changeovers, the mother stated that she believed it was in the best interests of the children that changeovers occurred at public venues where there were lots of people.
It was suggested to the mother that it was in the best interests of the children that changeovers occur when the mother was not shaky and stressed, to which the mother replied that that did not happen regularly and the children often do not see that. The mother agreed that it was in the children’s best interests that they never see her physically shaking in the father’s presence.
The mother was questioned about a recent occurrence at Y’s regional sports carnival held in late 2023 which event was not on school grounds. The afternoon of that day was a day the children were to spend time with the father. The child Y was standing next to the mother and the father arrived standing between 5 to 10 metres behind the mother and Y. The mother stated that she had formed the view that the father had arrived to pick up Y. However, the mother stated that rather than simply telling Y that the father had arrived and that she was now to go with him, she had instead asked Y whether she wanted to speak to the father. The mother conceded that she had placed Y in a position where Y had to make a choice as to whether she went with the father or not.
The mother stated that when she sees the children in distress, she will have regard to the children’s mental health. She stated that it causes her distress to see distress in the children. The mother agreed that she was escalating her own anxiety in these circumstances, which caused her distress, and which impacted the children.
The mother agreed that she had reported to P Psychology that she did not feel comfortable with the telephone calls between the children and the father. She had reported to her psychologist that she was experiencing stress and fatigue in relation to this issue. She agreed that in early 2023 she had met with P Psychology again and spoke about her distress and the emotional toll of abiding by court Orders. She had discussed the children’s symptomatology when speaking to the father on the telephone including fear, panic, headaches, nausea and stomach issues. She agreed that she had reported significant anxiety herself in having the children do something that they did not want to do. She agreed that the children were probably exposed to her anxiety.
The mother confirmed that she had reported to her psychologist that she found the Court proceedings exhausting. She confirmed that she had reported that her stress was extreme and relentless, and that she experienced stress in encouraging the children to spend time with the father when they did not want to. The mother confirmed that since late 2022 to late 2023 she had reported her own high levels of stress and anxiety. The mother stated that her psychologist had told her that she was doing okay with her mental health. She stated that she did not believe that she needs medication for her mental health at this time.
The mother stated that the current Orders were not working as the children did not want to spend as much time with the father (as the Orders required). The mother stated that if the Orders reverted back to the children spending time with the father for one afternoon (each week) and one weekend day (each week) then she would not need to comfort the children nor encourage them to spend time with the father.
The mother stated that on occasion the children are happy to spend time with the father.
The mother stated that Our Family Wizard App was her preferred way to communicate with the father.
The mother was questioned as to her allegations that the father was controlling of her social engagements with particular people. The mother conceded that she did socialise with certain people during her relationship with the father, and that the father supported her going to the gym. The mother stated that in late 2020 the father had told her not to attend a particular work event where a man named Mr V was to be in attendance. The mother agreed that at this time her marriage with the father was in trouble.
The mother stated that the father had given her money on occasion and that she had access to the parties’ joint bank account. She stated that she had taken $40,000 from that account at separation because she had to, and that she had access to other money at this time. The mother stated that she used a joint card (for the joint account) for paying doctor’s bills and that she didn’t have to ask the father to do this.
The mother was asked questions in relation to her allegations that the father had acted in a sexually aggressive manner towards her post separation, such as by entering the shower when she was in the shower. It was put to the mother that the parties had regularly showered together to which the mother denied stating that against her express statements to the father that this not occur he still did it and belittled her. The mother agreed that she never reported this issue to her treating health professionals, to the police nor DCJ.
The mother was questioned about the children’s reports to the psychiatrist Dr K in respect to an incident at separation. The mother conceded that the children’s account of this incident to Dr K was somewhat consistent with the father’s report to Dr K about this incident. However, the mother stated that the children were scared of repercussions from the father and that they appease him by not saying what had really occurred.
The mother stated that the child Y used to be attached to the father.
The mother agreed that post separation the father had asked for certain additional time with the children and she had refused.
The mother stated that the July 2023 Orders providing for additional time between the children and the father in the school holidays did not progress.
The ICL cross-examined the mother.
The mother stated that the children were complaining that changeovers were distressing. They appear reluctant to go with the father at changeovers.
The mother referred to the changeovers which occur at Suburb W McDonald’s. She stated that she usually waited on the outside door of the entrance to McDonald’s when delivering the children and the children would walk inside with their bags. When the children were being returned to her she would be standing on the inside. The children’s distress was exacerbated by one parent being inside and one parent being outside the restaurant. She stated that she does not say hello to the father at changeovers and tries to avoid speaking to him. She avoids eye contact with him.
The mother was questioned in relation to an incident at McDonald’s in early 2023 involving the children, the father and the maternal grandfather. The mother confirmed her understanding that the children and the father had assumed that she would be present at the changeover at this time (the Court interpolates that in fact the mother was not present at this changeover).
The mother stated that she had been reluctant to change the venue of the changeover because the father was critical of her in the past for changing the venue. She stated that she was not happy with Suburb W McDonald’s as the changeover venue. As to other options for the changeover venue, the mother stated that she was open for changeover to occur at a parent’s residence if the drop-off parent left straightaway.
The mother stated that she could not afford the cost of supervised changeovers.
The mother stated that the child Y does speak to the father when she spends time with him. She stated that Y’s level of distress lies in not knowing (ahead) what the father wants to do on the weekends when spending time with the children. She stated that the father should tell Y on the previous Wednesday what he proposes to do with the children on the weekend.
The mother stated that if the Court ordered any overnight time between the children and the father the parents would need to speak to the children to prepare them for such time. Further, if the children were to speak with the ICL on this issue then that should occur face-to-face.
The mother was asked whether she has a high level of mistrust and antipathy towards the father, to which the mother responded that she only distrusts him.
The mother’s attention was drawn to the view of Dr M that both parties saw the other as being the instigator of conflict, to which the mother responded that she can now see how each parent can contribute to that occurring.
The mother confirmed that she had completed two courses, Parenting After Separation in late 2022, and Z Program in late 2022. The mother stated that over the last year she had lived with the children being in distress three times a week. She had seen her own psychologist and she could revisit the above courses again which would help. The mother confirmed that the current situation with the children was untenable. She stated that she was prepared to do a parenting program to assist with co-parenting.
The mother stated that her own psychologist did not suggest medication for her anxiety and she is not presently considering the consumption of medication.
The mother was asked how she would ensure the facilitation of Orders which the father was seeking, if such Orders were made. She stated that she would be positive with the children about their experience with the father, she would talk to them and prepare them for such time, and provide them with comfort articles. The mother stated that her position is that she does not believe overnight time with the father should occur because the children don’t want it and it will cause them distress.
The mother stated that she does not believe the father’s assertions that the children are happy spending time with him. She stated that the children enjoy spending short periods of time with the father.
As to overnight time between the children and the father, the mother stated that she would be happy for overnight time to occur if there was a level of positive engagement between the children and the father which was consistent. The mother stated that the children were regularly reporting distress having spent time with the father and it was only rare occasions recently when the children stated that they had had an enjoyable time with the father.
The mother was asked whether she had any concerns at all that there might be any sexual impropriety occurring between the father and the children. She stated that she thought that some of the things that the father does with the children raises questions, which could be a form of manipulation, but it was not sexual. The mother stated she had spoken to her former psychologist, Ms BB, and she did not report any concern of sexual impropriety by the father to the police.
Evidence of Ms AA
The Court does not propose to set out the entirety of Ms AA’s evidence.
Ms AA was the maternal grandmother.
In cross-examination, Ms AA stated that it was important for the children to have an ongoing relationship with the father.
Ms AA was asked what positive features the father can offer the children. She stated that he was the father, he likes to be with the children, he would play with them at different times and interact with the children which they enjoyed. She denied that she had quite a negative view of the father.
Ms AA stated that at times the children were upset if something happened at changeover.
Ms AA stated that she agreed with the mother’s assertion that the children were usually unhappy on returning from having spent time with the father. A short time later she stated that on coming home the children will say that they have had a good time having spent time with the father or that something happened which upset them in his care.
Ms AA stated that the children have been exposed to conflict between the parties which has affected them.
Evidence of Mr E
The Court does not propose to set out the entirety of Mr E’s evidence.
Mr E was the maternal grandfather.
In cross-examination, Mr E stated that it was possible that his recollection of events of an incident at Suburb W McDonald’s in early 2023 as set out in his affidavit filed 3 November 2023 may not be as accurate as it was in early 2023. A short time later he stated that his recollection had changed (since the incident).
Mr E was asked whether in hindsight he would have done anything differently to what he did in early 2023 at Suburb W McDonald’s, to which he replied that there probably could be and it was a highly charged situation. He stated that he had been very frustrated because he wasn’t getting anywhere, and that he was possibly just as involved with trying to get the children into the car.
Mr E told the Court that the father had initially objected to him taking the children from Suburb W McDonald’s but that the father eventually relented by reason of the children’s extreme reactions.
Evidence of the husband
The Court does not propose to set out the entirety of the husband’s evidence.
In cross-examination, the father agreed that the child Y was having difficulties with her emotional regulation and that such difficulties had been quite long-standing. He stated that those difficulties have been exacerbated by the parties’ separation.
The father stated that sometimes, when Y is told that she cannot do something, she overreacts.
The father stated that he had listened to a recording from the mother’s side relating to the child Y having a meltdown. He stated that he was surprised by the sound and Y’s distress. On listening to this recording he felt sad for this child. When the father was asked whether he had experienced that sort of behaviour from Y this year he stated, “not to that extent.”
The father stated he did see Y benefit from attending her current psychologist. He agreed that Y was not an average child and that she had vulnerabilities not present in the two boys.
The father agreed that each of the children have significant issues of a health nature regarding their diet.
The father confirmed that the parties use the communication App called Our Family Wizard. He confirmed that this App prevented the parties using offensive language.
The father confirmed that he had contacted D Centre not long after recent school holidays in respect to his concern for the children. He explained that the children had been affected by the parental conflict and he had stated in this context that the children witness the parties not communicating (with each other).
The father was asked whether he took responsibility for not communicating with the mother to which he replied in the affirmative. He agreed that there were many occasions in the past where he was told of something pertaining to the children by the mother and he did not reply. He was asked how he proposed to change this occurring, to which he responded that there needed to be more communicating.
The father stated that he had not kept the mother informed of the children’s extracurricular activities.
The father denied that he yelled or screamed at the children although he occasionally raised his voice when they were naughty or crossing the road. He stated that he did not believe that when he raised his voice with the children that it caused them fear.
The father stated that there had been a miscommunication in respect to the mother collecting the child Y from a regional sports event. He stated that he could do better in communicating with the mother.
The father stated that his last face-to-face verbal conversation with the mother was in about mid-2023 at a sports game which was unpleasant. Before that occasion, he stated his last face-to-face verbal conversation with the mother was about 12 months ago. He stated that the parties hardly speak to each other.
The father stated that he made errors of judgment in early 2023 in respect to an incident in front of the children with the maternal grandfather. He clarified by stating that his errors of judgment included speaking to the maternal grandfather and possibly not leaving the restaurant area.
The father stated he recalled that the maternal grandfather had attended one previous changeover. The father agreed that the maternal grandfather and himself had not had any problems prior to early 2023.
The father stated that the child Y had asked him to leave the restaurant area. He stated that going against Y’s wishes was not a good move in retrospect. He agreed that having noticed that the maternal grandfather was inside the restaurant, if he had simply left the scene, the children would not have been exposed to the event.
The father was asked whether the fact that the mother was not present at the changeover at the restaurant made him angry, to which the father responded by stating he was not angry, but rather he was confused as to why the mother was not present.
The father confirmed that after the incident he went to the police. He stated that he didn’t think what that might do to the children.
The father stated there was an error in his affidavit filed 25 October 2023 at paragraph 48 where he had stated that he had immediately attempted to remove himself and the children from the situation; he stated that his present recollection was different from what the video showed.
The father stated that he was agitated at the restaurant. He agreed that he allowed his emotions to get the better of him.
The father agreed that having observed the maternal grandfather inside the restaurant, he could have simply sent a text message to the mother asking her if she was content for the children to be taken home by the maternal grandfather.
The father stated that he still believes that the mother was having an affair during their relationship and he did not believe that the mother was telling the truth about Mr V.
The father was cross-examined by the ICL.
The father accepted that the parties’ conflict was affecting the children, both at changeover and at sporting events, however he stated that if he was with the children on his own they were fine but when the mother turned up they were different.
Child Impact Report of Ms J, Family Consultant, dated 20 April 2022
Ms J had separate meetings conducted remotely with both parents on 5 April 2022, and a meeting with X, Y and Z in the form of separate interviews on 19 April 2022.
Under the heading, “The history of the children and their relationships”, the Family Consultant said:
3.[Ms Kent] expressed concerns regarding the children’s, particularly [X]’s and [Y]’s, emotional wellbeing. [Ms Kent] described [X] as “sensitive” and said that he “doesn’t tell people a lot about what is going on inside his own head” but she believes he would benefit from counselling to build resilience; she identified that he is on a waitlist for a psychologist. [Ms Kent] also identified that [X] has experienced sleep disturbance, including fears around going to sleep. [Ms Kent] described [Y] as a “real over thinker” who “aims to please” and experiences anxiety. She reported a history of emotional and behavioural difficulties for [Y], which have led her to query whether [Y] has ADHD or an autistic spectrum disorder, and identified that [Y] has seen a psychologist since she was four years old. [Ms Kent] reported that [Mr Kent] is a “massive trigger” for [Y]’s emotional and behavioural difficulties at present, indicating that [Y] demands “the truth” from [Mr Kent] and becomes distressed when she perceives [Mr Kent] as lying. She also indicated that [Y] has been confrontational with her regarding parenting arrangements, following [Mr Kent] sharing information with the children, which has led to “a screaming match” between her and [Y] but identified that [Y] has also said that she ([Y]) has “to protect you” because [Mr Kent] is “nasty to you”. Neither parent provided specific information to indicate that the current arrangements are having a significant adverse impact on [Z]’s emotional wellbeing. …
…
5.Each of the parents identified that the children have positive relationships with [Ms Kent], with [Ms Kent] also describing the children’s relationships with her as “respectful”. [Mr Kent] indicated that [X] in particular is “very close” with [Ms Kent] whereas he ([Mr Kent]) is closer with [Y] and [Z]. The parents provided differing accounts of the children’s relationships with [Mr Kent], with [Ms Kent] describing their relationships as “turbulent” and indicating that the children’s experiences of [Mr Kent] are dependent on [Mr Kent]’s mood. [Mr Kent] identified that the children have “great” relationships with him, reporting that the children enjoy physical affection from him and, while he is “not a huge disciplinarian”, the children listen to him.
6.While [Mr Kent] stated that he has “never really asked” the children about their views regarding parenting arrangements, he expressed a belief that the children “want to come and stay” and “want me to be in their life”. …
7.[Ms Kent] acknowledged that the children have asked to extend the time they spent with [Mr Kent] but indicated a belief that this is due to influence by [Mr Kent]. She expressed a belief that the children are not coping very well currently.…
8.[X] (aged 8 years [at the time of interview]) identified that he is currently spending time with [Mr Kent] “about two days” per week due to it being school holidays but typically sees him on Saturday or Sunday. He identified [sports events] with each of his parents as the only positive aspect of the current arrangements and reported that a negative aspect is [Y]’s behaviour.…
9.… [X] identified no significant concerns or worries regarding either parent. [X] indicated awareness that his parents do not have a positive parenting relationship but provided limited information regarding how he came to form this view, other than that “Mum does tell us some stuff”. He also reported that [Y] has said that “Mum hates Dad” but stated that this is not true and that [Ms Kent] “just dislikes his behaviour”; he indicated that he has not witnessed such behaviour.
10.… [X] clearly expressed a preference to not spend overnight time with [Mr Kent]. He became teary when discussing the possibility of overnight time and reported that he is scared of the dark due to monsters; he identified that he has two comfort items ([CC & DD]) and light through the window in his bedroom assists him to feel safe.
11. [Y] (aged 7 years [at the time of interview]) identified that she finds her brothers annoying at times and reported that [Z] pinches her while they are in the car. She indicated that [Ms Kent] assists her to regulate her “anger” when at home (e.g. by telling her to play outside) and [Y] described feeling “frustrated” at times if her siblings accidentally or intentionally hurt her.
12. [Y] identified that she sees [Mr Kent] approximately three times per week and described the current arrangements as “not really good”. She stated that she does not want to spend time with [Mr Kent] at times because he “doesn’t tell the truth that much” and “needs to see a doctor about that”. [Y] provided a number of examples in which she believes [Mr Kent] is lying following [Ms Kent] telling her about a situation beyond her lived experience and then [Mr Kent] denying the incident occurred when she ([Y]) asks him about it. [Y] identified that she feels confused when given conflicting information but that she believes [Ms Kent] over [Mr Kent]’s account. She also indicated that she feels a sense of responsibility to confront [Mr Kent] over incidents disclosed to her by [Ms Kent]. [Y] also described being exposed to a number of verbal altercations between her parents in which her parents have verbally abused each other; her account was suggestive that she felt a sense of responsibility to intervene in these situations, including instructing her parents to separate and not speak to each other. [Y] stated that she felt “frustrated and sad and confused” during incidents of conflict and concerned that her parents would hurt each other.
13. [Y] otherwise identified positive attributes regarding each parent and identified that [Mr Kent] “normally makes me happy a little bit”, indicating that she enjoys activities she does with him. [Y] stated that she currently spends too much time with [Mr Kent], providing an account of seeing him five days per week, and suggested that she spend time with him approximately three times per week. She expressed a preference to spend no overnight time with [Mr Kent] because she and her siblings would “miss Mum a lot” but identified that she had told [Mr Kent] she would want to spend overnight time with him “because I didn’t want to make him sad”.
14. [Z] (then aged 5 years) presented as shy and provided vague and contradictory information regarding childcare. … [He had] limited capacity to engage.
Under the heading “Risk and Harm Considerations”, the Family Consultant stated:
16. [Ms Kent] provided an account of [Mr Kent] perpetrating coercive controlling family violence, including sexual violence, against her during their relationship…
18. [Mr Kent] acknowledged that he had asked [Ms Kent] to stop communicating with one specific male colleague due to concerns regarding the content of their communications (e.g. text messages stating “I’ll be dreaming of you”) but did not otherwise identify behaviours consistent with a pattern of coercion or control. He denied that either parent had perpetrated family violence against the other.
19. [Mr Kent] reported that [Ms Kent] has been controlling the children’s time and relationships with him (e.g. not allowing him to FaceTime the children, refusing for the children to spend overnight time with him, and not informing him about the children’s extracurricular activities). He identified that he feels “very excluded”, which he described as “quite frustrating”, and identified that he wants to be “totally involved” in the children’s lives, including social and school activities, medical appointments, and decision making regarding the children.
Under the heading “Developmental Considerations”, the Family Consultant stated:
20.While each of the children appear to have been exposed to parental conflict, [Y] appears to have been particularly adversely impacted by this and to have aligned herself with [Ms Kent] in order (to) manage confusion caused by the parents providing her conflicting accounts of incidents and issues beyond her lived experience. It is highly likely, given each of the parents’ accounts, that [Y]’s emotional and behavioural difficulties are due to, or at least exacerbated by, her being exposed to parental conflict and that any intervention to address these is likely to be unsuccessful without a significant reduction in [Y]’s exposure to parental conflict.
21.While [X]’s anxiety about sleeping, and therefore about spending overnight time with [Mr Kent], does not appear solely related to [Mr Kent], it is likely to require consideration regarding the appropriateness of the children spending overnight time with [Mr Kent]. [X] is likely to experience heightened anxiety regarding any commencement of overnight time, which is highly likely to be exacerbated if one or both parents do not respond to this sensitively and in a child-focused manner. If [X] is to commence spending time with [Mr Kent], it is likely to be of benefit for him if this is a planned rather than abrupt transition with each parent ensuring that strategies are implemented (e.g. comfort objects being able to transition with [X] between the parents’ care and use a night light in [Mr Kent]’s home if required) to minimise [X]’s anxiety.
Under the heading “Parental understandings of the children’s needs”, the Family Consultant stated:
23. [Mr Kent] was visibly teary at times during interview, particularly when discussing the children. He acknowledged that he gets upset when talking about the children, who he described as “my world”, and identified that it is difficult for him to not see the children daily. He stated that he tries to not expose the children if he is upset but identified that he is an emotional person and that he does become teary at times if he is comforting the children. [Mr Kent] also presented as still wanting him and [Ms Kent] to reconcile their relationship but acknowledged that this would not occur. While [Mr Kent] stated that he is coping “a lot better now” with the parental separation and has personal and professional support, concerns were raised on the basis of his presentation regarding his ability to differentiate the children’s needs from his own in order to ensure the children’s needs are prioritised and met.
24.Concerns are raised based on information provided by both [Y] and [Ms Kent] regarding the dynamics of their relationship and that [Y] appears to be assuming a protective role towards [Ms Kent] and the role of mediator in the parental disputes. It is possible that this is due to [Ms Kent], intentionally or unintentionally, utilising [Y] as an ally regarding her negative perceptions of [Mr Kent]. Irrespective of the reasons why [Y] has assumed such a role, significant concerns are raised regarding the potential impact of this on her psychological wellbeing and on her ability to maintain appropriate parent-child relationships with each parent.
Under the heading “Key considerations and opportunities for resolution”, the Family Consultant stated:
25.Given each parents’ accounts regarding the children’s, particularly [Y]’s, emotional wellbeing and the likelihood that exposure to parental conflict is having a detrimental impact on her wellbeing, it is important that the children’s exposure to further parental conflict be minimised both in order to reduce the adverse impact on the children’s psychological wellbeing but also to support the children’s relationships with each parent. Ideally each parent would choose to prioritise the children’s needs above their own and act in a manner that protects the children. …
26. [Mr Kent]’s presentation during interview is suggestive that he experiences ongoing difficulties adjusting to the parental separation. It is positive that he has engaged in counselling and it is recommended that this continue in order to support his emotional wellbeing and minimise the likelihood that his own difficulties in adjusting would have an adverse impact on the children.
The Court accepts the evidence of the Family Consultant subject to any contrary view of the Court, whether express or implied, as indicated below under s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
Dr M, psychologist
Dr M, psychologist, was appointed to conduct some family therapy and her brief report dated 7 December 2022 (Exhibit Q) is now set out:
I have seen the parties electronically only. I have spoken with [Mr Kent] on three occasions and [Ms Kent] on two occasions. The last scheduled session with the mother has needed to be rescheduled.
The parties each present with the high level of mistrust and antipathy towards the other. They seem to have limited capacity to engage with each other in a co-parenting capacity. They appear to have a strong need to be critical of the other for their behaviour prior to and since the separation.
The issues that arise between the parties seem to become a reason for them to vent their acrimony and they appear to find it difficult to reach a resolution without creating a lot more complexity around issues than seems necessary. This was exemplified in the manner in which they dealt with changeover venue change. Each of them also feels that the other exercises surveillance when it comes to the children and uses opportunities to discredit the other or make suggestions that the children are at risk.
Both parties indicate that they love the children and feel concerned for the impact of the conflict on the children. However, they perceive the other as being the instigator and make allegations that the other involves the children in inappropriate conversations that belong in the adult domain. They seem to be locked in a tug-o-war over the arrangements for their children. [Mr Kent] is seeking to increase his time with the children and to be an involved parent and he perceives [Ms Kent] and her family as thwarting that. [Ms Kent] perceives [Mr Kent] [sic] to be a satisfactory father when he is stable. However, she considers him to have limited relationship with the children while they were married and engaged with them to a minimal degree.
Psychiatric report of Dr K
The Court appointed Single Expert was psychiatrist Dr K. His psychiatric report is dated 15 December 2022. He interviewed the family on 28 October 2022.
The Court does not propose to set out the entirety of Dr K’s report.
Dr K interviewed the father:
[Mr Kent] said that [in early] 2021, he asked for the mother’s parents to attend “to witness me confronting her about repeatedly contacting this other man. I admit I raised my voice and I regret doing that. The children were in the house, and they heard it all. I told her I didn’t believe her denials and I wanted her to explain why she was doing this. I think her mother and father knew that we were having issues and her parents seem to know that she had been communicating with another man, and they sided with her. Her mother moved to hit me, and [Ms Kent] intervened and asked her mother to leave. The children saw all of this commotion and then they were taken to their grandparents to stay the night.” [Mr Kent] said that during the argument, “I kept seeking an explanation from her, and her father would keep reassuring me that they were only friends, and I said that I would go and contact him, so I left the house to go for a drive. I called and asked him to leave my wife alone.”
…
In relation to current contact with the children, [Mr Kent] said that he was seeing the children on alternate weekend days, and on Monday evenings. He said that he had to pick up [Z] from a neutral location “because I'm not allowed to go to her house.” He said that he would drop [X] off at [sports], then make dinner, and then return the children to the mother by 6.30pm.
In relation to his desired contact with the children, [Mr Kent] said that he was seeking for equal time and shared responsibility, although said that “I need to consider what the children need.” He acknowledged that “they have been with [Ms Kent] for 20 months and they have not stayed with me overnight at all at that time. I would need to take their feelings into consideration and will have to take things slowly. [Z] asks to stay with me most times and [Y] would ask to stay, but now realises that she has to go to mum's. [X] never says much.” In relation to his beliefs about what the children needed, [Mr Kent] said “they need stability, lots of love, and I think that they need their father to be in their life to co-parent and to be a role model.” He expressed an opinion that the children were “very confused about what was going on, and I understand that it’s upsetting for them and I can see the sadness in their faces when I drive off.” He expressed an opinion that “I think they understand it by thinking that their mum and dad had an argument and they're not happy.”
…
In relation to the future, [Mr Kent] said that “I would like to think that I would be able to communicate with [Ms Kent] about the kids. I have seen the family therapist three times now and the Court has asked [Dr M] to help us with co-parenting. I believe that [Ms Kent] is not engaging with the process, and it seems to be dragging on. I want to communicate with [Ms Kent], but I get the feeling that she is being very negative, and I'm trying my hardest to do everything that I can to move forward. I'm enrolled in a program with the [EE Centre] that aims to help parents who are separated with working on parenting issues. The main issue for me is to understand how to better help the kids, but I can’t remember the name of the course. I know that the ICL recommended it to my lawyer, and my lawyer said it could be good, so I agreed because if it helps the children, it’s only a good thing.”
In relation to [Mr Kent]’s concerns about the children’s environment, [Mr Kent] said that “… I’m [sic] not said anything about the proceedings to the kids, but they are always mentioning things to me about Family Court and I don't know if she is involving them, but they may be just overhearing things.” [Mr Kent] said that “the kids come to me, and they aren't happy. I just want to co-parent and I believe that I’m not being given an opportunity to co-parent.” [Mr Kent] said that the mother “accuses me of being threatening and I’ve tried to accommodate by moving pickup and drop-off venues..”
Dr K had an interview with the children together, with brief periods of time spent with Y alone, and X and Z together:
… The children confirmed the current contact arrangements, whereby they saw their father for 3.5 hours on a Monday, and a full weekend day, each week. [X] said that “I’m fine spending time with Dad.” [Y] said, “I’m not fine going to places that I don’t want to go, although I’m fine with going with dad if I don’t have friends or other things on.” [Z] was reluctant to express his thoughts, and asked [X] to speak on his behalf. [X] said that “ [Z] really like watching TV with dad and playing [games].”
…
When asked whether the children thought that they should have more time with their father, [X] said that “I like the amount of time that we have him, and I don't know why I don’t want more time.” [Y] said that “I want to see him less because I want to spend more time with mum, and I like that with mum I get to see our friends more often. With dad, he doesn't have any fun ideas about what to do every week.” [X] interjected and said that “even if dad does have fun ideas, [Y] won’t want to do them anyway.” [Z] did not offer an opinion.
When asked about whether they were fearful of their father, [Y] said that “he raises his voice at me a lot when I start to punch [Z] and [X] because I get annoyed at them a lot. He’ll also scream at me if I get annoyed, and he normally says ‘stop it,’ or ‘no,’ to me in a loud voice.” [X] and [Z] did not offer a response. When asked if their father had hit them, [Y] paused for a moment and then said “no.” When asked if there was a reason for the pause, she replied in the negative. [X] said that “one day he pulled me down the stairs,” to which [Y] interjected and insisted that “that never happened.” [X] explained himself further and said that “dad pulling me down the stairs was an accident.” [Y] insisted that “dad has never hit us on purpose.” [X] interrupted [Y] and said that “one-time [Y] threw a knife at me, and he got upset so he took us home to mum.” [Y] said “dad asked why I did it, and I don’t remember what I said, but he then took us home. Yes, obviously I was trying to hurt [X].” Both [Y] and [X] then said that “we’ve stopped throwing things at each other now.” Both [X] and [Y] later clarified that “dad would smack us on the bum when mum and dad were together, but never since then. It would only happen when either of us got into a fight.”
In relation to their mother, [Y] said that “mum is really nice because she doesn't grab us by the arm or take us outside when she is grumpy, and she doesn't do the things that dad does.” [X] agreed and said that “we do more with her than we do with dad. I enjoy spending time with mum more and she has things planned out, like seeing friends, going out, and other stuff like that.” [Z] spoke independently for the first time at this point and said that “I think that dad is really nice to me and I think mum is nice and sometimes she isn’t. I just don't want to talk about it.”
…
[Y] was seen alone. She said that “I don't really remember mum or dad or anybody else saying anything about an affair, but I do remember once at nan and pop’s place he kept ringing the doorbell and I asked him to go home and relax and he didn’t.” [Y] said that “I let mum and dad talk about it, but I worry about mum’s safety. She's never said anything, but she has just said that I want to protect you, even though dad has never hurt me or hurt mum, but if I worry that something like that might happen, I will make her leave.”
The boys were seen together. Both [X] and [Z] acknowledged that “yes we disagree with [Y] about mum and dad.” [X] said that “I don’t know why she keeps saying bad stuff about dad. Mum used to hit us before they split up too, and she still hits [Z] when he doesn't know what she wants. Most of the time, she just takes the iPad away from us.” [Z] said that “mum told us that we be seeing dad today and she didn’t say anything else.”
At the conclusion of the interview of the children, they were asked to nominate three wishes in relation to their circumstances. [Z]’s three wishes were “to have a hundred dollars, to be the boss, and to have a pet dog.” [Y]’s three wishes were “to have a pet dog, that we could have a new dad because I hate dad, and that I can be in charge of [X].” [X] said that his wishes were “that we will never have a dog, that this had never happened with mum and dad. I don’t have a third wish.”
When asked to clarify the reasons for her dislike of her father, [Y] said that “I hate dad because he screams at us. If he didn’t scream at us, then I might want to spend more time with him.” [X] agreed and said “dad does scream a lot when we aren’t listening.”
Dr K interviewed the mother:
… [Ms Kent] said that although she initially would have said the relationship soured towards the end, upon reflection, “after leaving, I realised the relationship started to sour after [X] was born.” [Ms Kent] said that “[Mr Kent] told to me that he resented [X] being born because I was taken away from him. There were no issues when I was on maternity leave because I was around, but after [X] was born, he became very controlling of the relationship and started questioning me about what I was spending my money on. I would have to ensure that all the money we had was accounted for, and that the house would need to be always clean, and neatly presented. There were lots of expectations about what a mother should be that came from [Mr Kent].”
…
[Ms Kent] said that in [late] 2020, “I invited [Mr Kent] to come to a social gathering with other [colleagues], and when he attended, he just didn’t seem to be itself and didn't talk. He didn’t say anything to me, and didn’t speak to me on the way home. After that, he just blew up and accused me of having an affair with this friend, and I flat out denied it and said that simply there just good friends.” [Ms Kent] said that “it was only after that I learned that he had been checking on my phone messages.” [Ms Kent] expressed a view that this behaviour was unusual and said that “I told him that he had problems and asked him to see a psychologist. He said that he would and eventually told me that he was seeing a lady who he then said wasn’t helping and stopped.”
[Ms Kent] said that the intervening months were characterised by tension in the household and that “we kept fighting and he kept saying that I was having an affair. Every evening, he'd check on my phone to see if I was messaging or calling my colleague, and this would happen every night.” [Ms Kent] said that over [the next month], the tension was evidently affecting the children that “the kids were getting angry, especially [Y], because she could see us arguing all the time. It just snowballed from there, and [a few months later], he called my parents over but didn’t say why. When I heard that he’d done this, I thought something terrible had happened to the kids.” She said that upon arriving at their house, “I was so relieved that the kids were there and were safe, but then the argument kept going, I asked the kids to go with my mum. He told us that he would go to confront my colleague, and I was concerned that he would do something violent. He called [Mr V] and threatened to hurt him, and I lodged a police report about that.”
[Ms Kent] said that “I didn't leave the relationship that night because I was scared of what he might do, so I planned to leave a few days later. I have seen him physically hurt the older kids, and I didn’t want that to blow up.” [Ms Kent] gave examples of "if [X] got an answer wrong with his homework, he would be hit or have his earlobe pulled, and one night around [early] 2021, [X] and [Y] were fighting and [Mr Kent] just went off. [X] was clinging onto the stairs for dear life, and [Y] was trying to hold him back, and he was just screaming blue murder and yelling ‘I can’t take it anymore,’ about the kids yelling.” [Ms Kent] recalled that she had told her mother about “feeling like I needed to leave, but I was just too scared of what might happen if I did.” [Ms Kent] said that she had lived with her family ever since because she was unable to afford to live independently and did not feel safe in doing so.
…
[Ms Kent] said that she was seeking for contact arrangements to remain unchanged, with the current level of contact being one evening and one weekend a week to remain. She said, “I think the kids don’t want things to change, and the two older kids have told me that when he is asked, they have lied to him because they don’t want to see him.” She acknowledged that “ [Z] would probably want more time because he hasn’t seen him as much, but even he will say that dad is ‘rude’ for not listening to him. The other two seem to be okay when [Mr Kent] is happy, but most of the time he isn’t.”
…
In relation to the children's needs, [Ms Kent] said that she was most concerned about [Y] and said that “she is the one with the most obvious difficulties because she is very expressive, speaks her mind, and demands the truth. She knows a lot more than she should, and we have always had issues with her behaviour she has been very physical with the boys for a long time, but that has improved a bit since we moved in with my parents. [X] is a bit of a concern because he isn’t very resilient, very quiet and tends to keep to himself. Academically he is very intelligent and he is a natural leader but very quiet.” In relation to [Z], [Ms Kent] reported that “he seems to have some speech difficulties and occasional anger outbursts, but he otherwise is tracking along okay.”
In relation to her own mental health, [Ms Kent] said that “most of my difficulties are stress-related.” She currently saw a psychologist and said that “I often vent about what is going on with [Mr Kent] and I, to help with reducing differences and hoping to improve the happiness of our family. I have never been told that I have any diagnosable issues.”
In relation to recent psychiatric symptoms, [Ms Kent] reported that her mood was “frustrated and stressed. I try to push that aside for the kids, but sometimes I feel like I can't keep up with the demands of being a single mum. If I increase my contact with my psychologist that does help, and I use the techniques like slow breathing, grounding strategies and muscle relaxation which seemed to help reduce my stress. She also helped with advice on how to engage with the kids.” She denied persistent periods of depression or low mood. She reported adequate sleep. She denied difficulties with appetite or energy. She denied any thoughts of suicide or self-harm.
In relation to future plans, [Ms Kent] said that “the kids need routine, structure, stability and a happy loving home with safety.” She expressed an opinion that “I do not think [Mr Kent] is very stable, and even though he can be great when he is settled and calm, when he is not good and flying off the handle, I'm scared because I’m not sure what he can do, and I can’t be there to protect them. I know that he is still their father, he is meant to be a good role model and we're meant to be on the same page, however that is just not there and he is not providing the role modelling he should.” She expressed a view that “my main concern with [Mr Kent] is the lack of safety and supervision when he is on his own. Recently when the kids had [sports] lessons, [Mr Kent] sent [Z] into the [the lesson] without a teacher on his own, and he has left [X] unsupervised at [sports] lessons on at least 20 occasions. [Z] told me that dad left him once after he fell out of a tree, and [Mr Kent] didn't tell me about that. [Y]’s also said that she and [X] go out to the park on their own, and she has a phone that she can used to call him. She didn’t tell me, but she told [Ms BB]. [Z] is allowed to use [social media] unsupervised and has had nightmares about things that he’s seen.” [Ms Kent] said that her most significant concern was for [Y], and said that “she told me that he has locked her in the bedroom of our old house after they were naughty. She is treated by him as though she is the female adult, and she is treated differently to the other two. She has also fallen off the bed, but her story didn't add up. [Mr Kent] never tells me anything, and I only ever hear things from the kids. [X] has told me that recently he has had some allergic reactions, and that [Mr Kent] has not been giving him [medication], and there is just no cohesion in the parenting approach.”
On about early 2023, a Provisional ADVO was granted against the maternal grandfather for the father’s protection in relation to the above discussed incident in early 2023. On about late 2023, the ADVO and a related charge were withdrawn by the police.
(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
The Court’s proposed final parenting Orders, as discussed above under the meaningful relationship primary consideration, would be least likely to lead to the institution of further proceedings in relation to the child as compared to the mother’s proposed final parenting orders, and in this regard the Court refers to its discussions above under the primary considerations.
(3)(m) Any other fact or circumstance that the Court thinks is relevant
Not applicable.
Parental responsibility
The presumption of equal shared parental responsibility is probably rebutted. In any event, the Court is of the view that it will be in the best interests of the children that the parties have equal shared parental responsibility in respect to making major decisions for them. In this regard, during the relationship and post separation the father has tended to defer to the mother making major decisions for the children. For example, post separation there was no significant disputation between the parties relating to the choice of school for Z. The father has not objected to the mother’s continued psychological treatment of Y albeit that he has held concerns in relation to his involvement and receipt of information. The father is aware of and has not objected to the children’s treatment in relation to their food intolerances and allergies. His prospective involvement with the children’s health professional treatment will contribute to the children’s health professionals being provided with fulsome information relating to children’s issues in this context. The issue of major decisions for the children being made post separation has not been the significant cause of conflict between the parties but rather such conflict has related to other matters as discussed above under the primary considerations. The children will benefit by having both parents participate in the making of major decisions for them; this will demonstrate to the children that they are valued and that both parents have an interest in their lives.
Whilst the Court acknowledges that the parties’ co-parenting communication is poor, with there being, inter alia, significant distrust between them, and the Court having taken into account this communication issue when crafting Orders as to the extent of time between the children and the father, the Court is of the view that nevertheless there is a significant prospect that the parties will be able to reach agreement in a timely manner without conflict in relation to the making of major decisions for the children.
Neither party ultimately sought equal time.
Summary
Evaluating the above discussed considerations under s 60CC of the Act, and other matters discussed above, the Court is of the view that it will be in the best interests of the children to make the following orders:
Parental responsibility
1.The parties have equal shared parental responsibility for the children X born in 2013, Y born in 2015 and Z born in 2017 (“the children”) for all major long-term decisions.
2.The children live with the mother.
3.The children spend time with the father as agreed between the parties in writing and failing agreement as follows:
(a)From the making of these Orders, and continuing until the conclusion of 12 weeks thereafter:
(i)Each Wednesday from the conclusion of school or 3.00 pm to the commencement of school or 9.00 am on Thursday; and
(ii)In week 2 of every fortnightly period from after school Friday or 3.00pm until 7.00 pm on Saturday;
(b)From the conclusion of the 12 week period in Order 3(a) herein and continuing until the conclusion of 12 weeks thereafter:
(i)In week 1 of every fortnightly period from the conclusion of school or 3.00 pm on Wednesday to the commencement of school or 9.00 am on Thursday; and
(ii)In week 2 of every fortnightly period from the conclusion of school or 3.00 pm on Friday until 7.00 pm on Sunday;
(c)From the conclusion of the 12 week period in Order 3(b) herein and continuing thereafter:
(i)During school term times as follows:
A.In week 1 of every fortnightly period from the conclusion of school or 3.00 pm on Wednesday to the commencement of school or 9.00 am on Thursday;
B.In week 2 of every fortnightly period from the conclusion of school or 3.00 pm on Friday until the commencement of school or 9.00 am on Monday.
School holidays
4.From the date of these Orders until the conclusion of the time period in Order 3(b) above the school term time continues throughout all school holiday periods.
5.From the commencement of the time period in Order 3(c) herein during Term 1, 2 and 3 school holidays the children shall spend equal time with each parent as agreed between the parties in writing and failing agreement as follows:
(a)With the mother in week 1 in odd numbered years and in week 2 in even numbered years; and
(b)With the father in week 1 in even numbered years and in week 2 in odd numbered years.
6.During the 2024 Term 4 school holiday periods, the children shall spend one half of the Term 4 school holiday period with each parent as agreed between the parties in writing and failing agreement as follows:
(a)With the mother in weeks 2, 4 and 6;
(b)With the father in weeks 1, 3 and 5.
7.During the 2025 Term 4 school holiday period and all Term 4 school holiday periods thereafter, the children shall spend one half of the Term 4 school holiday period with each parent as agreed between the parties in writing and failing agreement as follows:
(a)With the mother for the first half of the Term 4 school holiday period commencing in even numbered years and the second half of the Term 4 school holiday period commencing in odd numbered years;
(b)With the father for the second half of the Term 4 school holiday period commencing in even numbered years and the first half of the Term 4 school holiday period commencing in odd numbered years.
8.For the purposes of Orders 5 to 7 herein, the Term 1, 2 and 3 school holidays and Term 4 Christmas school holidays are deemed to commence at the conclusion of school or 3.00 pm on the last day the children are required to attend school and changeovers shall occur at 3.00 pm on the middle day of the holidays.
Occasions and events of special significance
Easter
9.If the Easter long weekend takes place during a school holiday period, the children will spend time with the parent that does not otherwise have the care of the children on Easter Sunday for 4 hours as agreed and, failing agreement, between midday and 7.00pm.
10.If the Easter long weekend does not take place during a school holiday period, then the children will spend time with the parents as follows:
(a)From the conclusion of school on Easter Thursday until 7.00 pm on Easter Saturday in 2024 and each alternate year thereafter with the mother;
(b)From 7.00 pm on Easter Saturday until 7.00 pm Easter Monday in 2024 and each alternate year thereafter with the father;
(c)From the conclusion of school on Easter Thursday until 7.00 pm on Easter Saturday in 2025 and each alternate year thereafter with the father; and
(d)From 7.00 pm on Easter Saturday until 7.00 pm Easter Monday in 2025 and each year thereafter with the mother.
Christmas
11.During the Christmas period the children will spend time with the parents as agreed between the parties in writing and failing agreement as follows:
(a)In even numbered years:
(i)With the father from 7.00 pm on Christmas Eve until 2.30 pm on Christmas Day;
(ii)With the mother from 2.30 pm on Christmas Day until 7.00 pm on Boxing Day.
(b)In odd numbered years commencing 2025:
(i)With the mother from 7.00 pm on Christmas Eve until 2.30 pm on Christmas Day;
(ii)With the father from 2.30 pm on Christmas Day until 7.00pm on Boxing Day.
Children’s birthdays
12.On each of the children’s birthdays the parent who would not otherwise have care of the children shall spend time with the children for 4 hours that 4 hour period to be agreed in writing between the parents and failing agreement from 3.00 pm to 7.00 pm.
Father’s Day and Mother’s Day
13.If the children are not otherwise spending time with the father on Father’s Day in accordance with these Orders, the children shall spend time with the father from 9.00am to 7.00 pm on Father’s Day;
14.If the children are not otherwise spending time with the mother on Mother’s Day in accordance with these Orders, the children shall spend time with the mother from 9.00am to 7.00 pm on Mother’s Day;
Parents’ birthdays
15.Should the parent’s birthdays occur on days when the children would not otherwise be spending time with them then:
(a)The children will spend time with the mother on the occasion of the mother’s birthday:
(i)From 3.00 pm until 9.00 pm if a school day;
(ii)From 9.00 am to 7.00 pm if the mother’s birthday falls on a weekend.
Changeovers
16.Changeovers shall occur as follows:
(a)On a school day, changeover shall occur by the parent whose time is to conclude delivering the children to school;
(b)On a non-school day or in the case of a child not attending school for reasons of illness then the parent whose time is to conclude shall deliver the children to the residence of the parent whose time is to commence.
(c)For the purposes of Orders 16(a) and 16(b) herein, “parent” includes the parent or their nominee.
(d)Where a parent intends to effect changeover for the purposes of Order 16(b) herein through their nominee the parent shall notify the other parent in writing of the nominee not less than 1 hour prior to the changeover.
Communication
17.The parties shall communicate via a communications app such as Our Family Wizard save and except in cases of medical emergency when the parties shall be at liberty to communicate by text or voice call.
Ancillary
18.Each parent is at liberty to attend all events involving the children, including but not limited to extra-curriculars, school events, and volunteer roles at school.
19.Each parent is at liberty to receive reports, copies of any correspondence, newsletters or other written material produced by the school and distributed to parent, discuss with the children’s school about the children’s attendance and progress, and attend and fully participate in all and any activities at the school or connected with the school.
20.Each parent is restrained from denigrating or criticising the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.
21.The parents shall advise the other parent and keep the other parent advised of their current contact telephone numbers (including both landline and mobile phone number if applicable), email address and residential address and advise the other parent of any changes to these details within seven days of such change occurring.
Travel
22.Each parent is at liberty to travel outside the Commonwealth of Australia with the children provided that:
(a)The travel occurs during their time with the children pursuant to these Orders;
(b)Written notice of the intended travel is provided to the other parent no less than 28 days prior to the intended travel;
(c)A detailed travel itinerary is provided to the other parent no less than 7 days prior to the intended travel including:
(i)Flight or ship outbound and inbound details including flight or ship number, departure and arrival times and dates;
(ii)Accommodation details;
(iii)Confirmation of travel insurance certificates for the travelling parent and the children for the duration of the travel.
Passports
23.Both parties shall do all things necessary to ensure that the children are issued with a current Australian passport at all times with at least 6 months’ validity.
24.The mother shall:
(a)Hold all passports issued to the children in safe keeping;
(b)Provide to the father a photocopy of the details of each passport including any updated details as the passports reissue.
25.In the event that the father notifies the mother of intended travel pursuant to Order 22(b) herein the mother shall forthwith and not less than 48 hours following receipt of said notification pass the passports to the father for safekeeping.
26.The father shall return the children’s passports to the mother for safekeeping no later than 7 days upon returning to Australia.
Medical treatment
27.Each parent is to keep the other informed as soon as practicable of any significant medical problems, illness or injury suffered by the children while in their care.
28.The mother shall provide to the father the details of the children’s current GP for the children and in the event of a change in GP, shall provide the new details within seven (7) days of their first appointment.
29.Notwithstanding Order 2 herein, both parties are at liberty to:
(a)Attend with the children at any health appointment which occurs during the time the children are in their care;
(b)Have access to copies any correspondence, report or other communication from a treating health practitioner which would normally be provided to a responsible parent of a minor.
Non-denigration and restraints
30.Both parties are hereby restrained by injunction from denigrating the other party or members of the other party’s family in the presence and/or hearing of the children or allowing the children to remain in the presence and/or hearing of any third party who so does.
Independent Children’s Lawyer
31.The Independent Children’s Lawyer (ICL) is directed to speak to the children face to face to explain the above Orders to them, in particular the Orders relating to them spending time with the father. The ICL shall endeavour to speak to the children in this regard before they are next due to spend time with the father under these Orders.
PROPERTY
Proposals
The husband’s proposed property orders are set out in his Amended Response. He sought Orders, inter alia, that there be an adjustment of the parties’ superannuation and non-superannuation assets with an adjustment of 60 per cent to the husband and 40 per cent to the wife.
The wife’s proposed property orders are set out in her Case Outline filed 3 November 2023. She sought Orders, inter alia, that there be an adjustment of the parties’ superannuation and non-superannuation assets with an adjustment of 75 per cent to the wife and 25 per cent to the husband.
Evidence
The Court has considered the documentary material relied upon by the parties discussed above, and the parties’ oral evidence. The standard of proof applied by the Court in respect to the evidence is the balance of probabilities. The Court does not propose to set out the entirety of the evidence. Relevant evidence relating to the issues to be determined will be set out below under the headings, “Balance sheet”, “Contributions”, “Section 75(2)”, and “Justice and equity”.
Relevant legal principles
In Lotta & Lotta [2017] FamCA 50 Foster J stated:
281 The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford (2012) 247 CLR 108 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman (2014) FLC 93–592 and Scott & Danton [2014] FamCAFC 203.
282The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
283Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
284There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
285In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
286In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property and the husband contends that there should be no such adjustment.
287It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
288In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties’ present property rights without a consideration of s 79(4) matters.
289Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
290The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92–877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
Balance sheet
The joint balance sheet of the parties is now set out (Exhibit C):
Ownership Description Applicant’s value Respondent’s value Assets 1 J B Bank Term Deposit $838,461 $838,461 2 W GG Bank Account #...66 at Nov 2023 $10,503 $10,503 3 W GG Bank Account #...11 at Nov 2023 $452 $452 4 H C Company $NIL $NIL 5 H Westpac Business Account #...70 as at 30 October 2023 $14,245 $14,245 6 H HH Bank Account #...82 at September 2023 (closed) $ NIL $ NIL 7 H JJ Bank Savings Account #...98 at 30 October 2023 $5,025 $5,025 8 H Motor Vehicle 1 $18,700 $18,700 11 H Work tools $6,000 $6,000 12 H Household contents retained by husband $10,000 $10,000 Total $903,386 $903,386 Addbacks 13 W Partial property settlement $125,000 $125,000 14 H Partial property settlement $125,000 $125,000 15 W Partial property settlement (Motor Vehicle 2, Orders of 22 December 2021) $12,000 $12,000 16 H Cash money that H had at separation that was not deposited into H account $32,000 Nil Total $294,000 $262,000 Liabilities 17 H JJ Company Chattel Mortgage #...84 (Motor Vehicle 1) $10,916 $10,916 18 W GG Bank Credit Card #...06 $637 $637 Total $11,553 $11,553 Superannuation Member Name of Fund Type of Interest Applicant’s Value Respondent’s Value 20 W Super Fund 1 Accumulation $174,244 $174,244 21 H Super Fund 2 Accumulation $429,339 $429,339 Total $603,583 $603,583 Net Total Assets Total $1,789,416 $1,757,416
(Numbering as per original)
The wife asserts that there should be an add back of $32,000, item 16, opposed by the husband. She asserts that there were cash monies at the parties’ home at separation in the sum of $32,000 from the husband’s business. The Court is not persuaded on the balance of probabilities that the husband had such cash monies at separation. There was quite limited evidence adduced in relation to this issue. The husband’s evidence relating to cash from his business indicated that the majority of cash received in his business was declared and deposited to his business bank account. In any event, his evidence relating to post separation contributions included evidence that he paid for certain family expenses (see for example, paragraph 187 of his affidavit filed 22 September 2023) and which the Court would find were reasonably paid. The wife herself had stated that the husband’s cash from his business was constantly used to pay for fresh food, daily living expenses and bills. There will be no add back in the sum of $32,000 and it shall be removed from the balance sheet.
The final balance sheet accordingly will be as follows:
Ownership Description Value Assets 1 J BB Bank Term Deposit $838,461 2 W GG Bank Account #...66 at Nov 2023 $10,503 3 W GG Bank Account #...11 at Nov 2023 $452 4 H C Company $NIL 5 H Westpac Business Account #...70 as at 30 October 2023 $14,245 6 H HH Bank Transaction Account #...22 at September 2023 (closed) $ NIL 7 H JJ Bank Savings Account #...98 at 30 October 2023 $5,025 8 H Motor Vehicle 1 $18,700 9 H Work tools $6,000 10 H Household contents retained by husband $10,000 Total $903,386 Addbacks 11 W Partial property settlement $125,000 12 H Partial property settlement $125,000 13 W Partial property settlement (Motor Vehicle 2, Orders of 22 December 2021) $12,000 Total $262,000 Liabilities 14 H KK Company Chattel Mortgage #...84 (Motor Vehicle 1) $10,916 15 W GG Bank Bank Credit Card #...06 $637 Total $11,553 Superannuation Member Name of Fund Type of Interest Value 16 W Super Fund 1 Accumulation $174,244 17 H Super Fund 2 Accumulation $429,339 Total $603,583 Net Total Assets Total $1,757,416
Accordingly, the parties’ non-superannuation assets are $903,386. Their addbacks are $262,000. Liabilities are $11,553. Their net non-superannuation assets, including addbacks, are thus $1,153,833. Their superannuation totals $603,583. The total of the two latter figures are $1,757,416.
Section 79(2) of the Act
The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity.
Contributions
The parties commenced cohabitation in about 2010 and finally separated in March 2021; a period of about 11 years.
The wife’s assets as at commencement of cohabitation were a car with about $8,000, personal savings of about $55,000, and superannuation of about $27,249.
At the commencement of cohabitation, the husband’s assets included a three-bedroom house at Suburb LL which he had purchased in 2005 for $470,000 subject to a mortgage of about $300,000. The wife gave evidence that that property would have increased in value since 2005 however there is no relevant evidence before the Court as to its value at the parties’ commencement of cohabitation. The mortgage balance for the Suburb LL property as at 2009 was about $320,463. In 2009, the husband also had bank savings of about $30,000, a vehicle worth about $20,000 and $129,712 in superannuation.
As at commencement of cohabitation, the husband was working full-time for MM Company earnt about $80,000 per annum. The wife at this time was employed full-time an educator and earnt about $66,000 per annum.
In about mid 2010, the husband began working for himself as a tradesperson full-time. Inter alia, he applied his bank savings of $30,000 to the purchase of a vehicle and the tools of trade.
Initially, the parties approximately shared the mortgage repayments on the Suburb LL property, and then in late 2011 the wife began meeting the mortgage repayments. For his part, the husband would pay the remainder of that property’s expenses including utilities, and pay the parties’ day-to-day living expenses, groceries and child-related expenses.
In about late 2011 the wife deposited $50,000 into the husband’s bank account and in early 2012 she used $32,540 to pay the balance of a new car that she had purchased.
The wife had worked full-time until the birth of X in 2013 and then took maternity leave (which was paid) for about one year and then returned to work part-time. That arrangement also continued for the later children.
In about 2013/2014 the husband organised and caused to be paid some renovations to the Suburb LL property, and he also completed much of the work himself including demolition and some installation work. A later renovation to the kitchen was funded from the parties’ joint savings, and again the husband contributed some manual labour. A further renovation was conducted by the husband when the third child was born.
In 2015 the wife had a medical condition and she received a critical illness insurance payout from of about $118,000 in 2015. $100,000 of this amount was paid into the Suburb LL mortgage offset account in about late 2015; these funds were used partly for kitchen renovations but mainly for the parties’ day-to-day living expenses. The husband provided some care to the wife during this illness, including some care of the children.
In about early 2020 the wife transferred the sum of about $12,600, being monies left over from her insurance payout, to the offset account. She spent $5,000 for a blind for the Suburb LL property.
The Suburb LL property was sold in about 2019 for approximately $944,000. Net proceeds were received of about $675,000. The parties and applied these sale proceeds to the purchase of a home at Suburb NN for about $1,400,000 with a mortgage from HH Bank in the sum of $800,000. The parties borrowed more than they required for the purchase of this property and the additional funds were placed into a joint offset account. The husband caused to be carried out various renovations to this property and again supplied some personal manual labour.
During the parties’ relationship, the wife was the primary carer of the children. During the parties’ relationship the wife provided the majority of homemaking duties. These were contributions of substance by the wife. The husband assisted the wife with the care of the children during the parties’ relationship when he was not working as a tradesperson full time.
At separation, the wife left the Suburb NN property with the children and resided at her parents’ home. Since mid-2021 she has been paying monetary board each week by way of rent to her parents. The husband continued to reside in the Suburb NN property until its sale in about early 2022.
Post separation, the husband paid the mortgage loan repayments for the Suburb NN property (noting its sale in about early 2022), whilst residing there, excluding a three month period when repayments were deferred by reason of the pandemic. He also paid that properties’ utilities, he paid the parties’ car repayments and insurances (up until late 2021 when the wife’s car finance was fully paid out) and he paid certain monies to the wife being $4,018 from the husband’s JJ Bank account and about $791 for petrol.
Post separation (a period of about 2.5 years to date), the wife has continued her primary care of the children. Thereafter the husband spent day-time time only with the children.
The Suburb NN property was sold in about early 2022 in the sum of approximately $1,890,000. The mortgage loan was about $765,000. A balloon payment on the wife’s car, previously paid by the wife, was reimbursed to her in the sum of approximately $19,000. The net proceeds of approximately $1,062,000 were deposited into the wife’s solicitor’s trust account. The parties received partial interim property settlements of $125,000 each, and the wife received partial property settlement relating to her car in the sum of $12,000. There is currently $838,461 remaining in the trust account.
Post separation the wife had made a formal child support application and following assessment the husband paid child support. The parties shared the payment of the children’s school fees. The husband paid for some sports lessons for the children. However, post separation the wife alone paid Z’s daycare fees from mid-2021 to early 2023, and she paid the cost of medical appointments and expenses, health insurance, extra-curricular activities and seasonal sport, school uniforms and supplies, and sport uniforms and equipment, for the children.
As to superannuation, the husband entered the relationship with superannuation of $129,712. The wife’s superannuation at cohabitation was $27,249. During the relationship and post separation to date it is likely that each party indirectly enabled the other party to earn income and thereby make superannuation contributions to their individual superannuation asset.
The wife contended that her contributions should be assessed at about 65 per cent.
The husband contended that his contributions should be assessed at about 60 per cent.
Taking into account the above matters, and viewing the parties’ overall contributions holistically, the Court assesses the parties’ contributions to the non-superannuation and superannuation assets to be 52.5 per cent to the husband and 47.5 per cent to the wife, representing a disparity of $87,871 in the husband’s favour.
Section 75(2) of the Act
The wife contended for an adjustment under s 75(2) of 10 per cent in her favour.
The husband contended for no adjustment under s 75(2).
The wife is aged 40 and the husband is 54 years.
The wife will have the primary care of the children who are now aged 6, 8 and 10 years. The father will spend regular time with the children. The wife wishes to re-house herself and the children as they have been living with the maternal grandparents since separation.
The husband now pays formal assessed child support in the sum of $1,013 per month. The parties’ recent Binding Child Support Agreement (Exhibit R) will require the parties to share the cost of school fees, the children’s extra-curricular activities, medical and general dental expenses, orthodontic expenses and other elective surgeries.
The wife works 4 days per week as an educator. She is a long standing educator with that employer and is entitled to work full time, however she presently works 4 days per week to accommodate her primary care of the children. Her present weekly wage income is $1,789 gross. By reason of her primary care of the children she may be unable to advance her career through extra university studies to increase her income earning potential.
The husband works as a self-employed tradesman. His gross weekly income is $1,665. The Court does not accept that the husband is receiving significant cash monies from his business that are not declared to the taxation authorities; the Court accepts his evidence in this context. The Court is not persuaded that the husband’s asserted weekly gross income is inaccurate. The wife contended, inter alia, that it was likely that undisclosed cash resources of the husband was enabling him to meet his asserted weekly expenses as set out in his Financial Statement. The Court does not accept such contentions. The Court observes, inter alia, that the husband, post separation, has had access to funds from interim property division and has had (and continues to have) access to monies in his bank accounts which may well have enabled him to meet his weekly expenses.
The Court would assess that the parties’ income earning capacities are about equal, albeit that the husband will likely exit the workforce earlier than the wife by reason of their respective ages.
The wife has certain debt which did not enter the final balance sheet (see her Financial Statement filed 6 September 2023 and paragraph 344 of her affidavit filed 22 September 2023) namely a car loan in the sum of $20,140.
Having regard to all the above discussed matters the Court allows an adjustment under s 75(2) in favour of the wife of 7.5 per cent. Thus the adjusted contributions finding is 55 per cent to the wife and 45 per cent to the husband. The resulting disparity is $175,741 in favour of the wife.
Justice and equity
The wife’s 55 per cent of the net property pool ($1,757,416) is $966,578, less her addbacks of $137,000 leaves $829,578.
The husband’s 45 per cent of the net property pool ($1,757,416) is $790,837 less his addbacks of $125,000 leaves $665,837.
Should the husband retain:
(a)His bank accounts: $19,270;
(b)His vehicle: $18,700;
(c)His work tools: $6,000;
(d)His household contents: $10,000;
(e)His superannuation: $429,339;
totalling $483,309,
less his liabilities of $10,916,
leaving $472,393,
and the wife retain:
(a)Her bank accounts: $10,955;
(b)Her superannuation: $174,244;
totalling $185,199,
less her liabilities of $637,
leaving $184,562,
then from the BB Bank Term Deposit of $838,461 the wife should receive $645,016 ($829,578 less $184,562), and the husband should receive $193,444 ($665,837 less $472,393).
With each party receiving the above sums of money from the Term Deposit, they may well be able to acquire real estate for accommodation or rent accommodation and invest.
The Court is of the view that its proposed property adjustment orders will represent a just and equitable property settlement between the parties.
The Court makes Orders accordingly.
I certify that the preceding two hundred and thirty-two (232) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Deputy Associate:
Dated: 23 November 2023
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