Leena & Leena (No 3)

Case [2025] FedCFamC1F 254

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Leena & Leena (No 3) [2025] FedCFamC1F 254

File number(s): PAC 2225 of 2023
Judgment of: ANDERSON J
Date of judgment: 17 April 2025
Catchwords:

FAMILY LAW – PARENTING – Where the mother asserts that the father presents a risk to the children – Where the elder child has been diagnosed with an Attention Deficit Hyperactivity Disorder, Autism Spectrum Disorder and a general Anxiety Disorder – Where the younger child has been diagnosed with Autism Spectrum Disorder, a sensory processing disorder, and an attention deficit hyperactivity Disorder – Where the mother asserts that the father is unable to provide the children with structure and routine in his household – Where the mother asserts that the father has failed to accept and is resistant to accepting medical advice and diagnoses for the children – Where the mother asserts that the father has failed to properly administer the children’s medications – Where the mother asserts that the father has an impaired parenting capacity by reason of family violence, alcohol use and mental health issues – Where the Court finds that the father does not present a risk to the children – Where the Court finds that the mother has caused the children psychological harm

FAMILY LAW – PROPERTY – Alteration of property interests – Where parties had a ten year relationship – Where wife asserts that her financial contributions were superior to the financial contributions of the husband – Where the wife has dissipated monies received from a compensation award and a part distribution from her late mother’s estate in the period subsequent to separation – Where the wife asserts that she owes her mother’s estate monies but failed to identify the terms of any loan – Where the wife asserts that the terms of her mother’s estate are the subject of challenge by family members but failed to provide disclosure to support such a conclusion – No matters of principle
Legislation: Family Law Act 1975 (Cth) ss 60CC, 75(2), 79(1), (2), (4)
Cases cited:

Bevan & Bevan (2013) 279 FLR 1

Biltoft & Biltoft (1995) FLC 92-614

NHC & RCH [2004] FamCA 633

Clauson & Clauson (1995) FLC 92-595

Dickons & Dickons (2012) 50 FamLR 244

Garrett & Garrett (1984) FLC 91-539

Hayne & Hayne (1977) FLC 90-265

Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143

In the Marriage of Biltoft (1995) FLC 92-614

Kennon v Kennon (1997) FLC 92-757

Lambert & Jackson [2010] FamCA 357

Leena & Leena [2024] FedCFamC1F 135

Phillips & Phillips (2003) FLC 93-104

Rodgers v Rodgers (No 2) [2016] FamCAFC 104

Roverati and Roverati [2021] FamCAFC 89

Stanford v Stanford (2012) 247 CLR 108

Steinbrenner & Steinbrenner [2008] FamCAFC 193

Trevi & Trevi [2018] FamCAFC 173

Wallace & Wallace [2022] FedCFamC1F 536

Wardman & Hudson (1978) FLC 90-466

Waterman & Waterman [2020] FamCA 369

Waters & Jurek (1995) FLC 92-635

Watson & Ling (2013) 49 Fam LR 303

Division: Division 1…

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Leena & Leena (No 3) [2025] FedCFamC1F 254
Case
[2025] FedCFamC1F 254
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CaseChat Overview and Summary

The matter before the court involved a dispute between Ms Leena and Mr Leena regarding the parenting of their two children, X and Y, and the division of their matrimonial assets. The central issue was whether the father posed a risk to the children, which would justify restricting his time with them. The mother alleged that the father's parenting was inadequate due to his inability to provide structure and routine, his resistance to accepting medical advice, and his failure to properly administer the children's medications. Additionally, the mother claimed that the father's parenting capacity was impaired by family violence, alcohol use, and mental health issues. The court examined the evidence presented by both parties and the children's medical diagnoses, which included Attention Deficit Hyperactivity Disorder, Autism Spectrum Disorder, and sensory processing disorder. The court found that the father did not present a risk to the children and that the mother had caused the children psychological harm through her actions. The court also addressed the property settlement, considering the financial contributions of both parties and the significant inheritance the wife would receive from her late mother's estate. Ultimately, the court ordered a 57:43 division of non-superannuation and superannuation assets in favor of the husband. The court made detailed orders regarding the children's living arrangements, time-sharing schedules, communication between the parents, and the administration of the children's medical needs and extracurricular activities. The court also outlined the process for obtaining passports and traveling with the children, as well as restrictions on the parents' behavior and communication with the children. The final orders included specific financial arrangements and conditions for the sale of certain properties in the event of non-compliance.

Orders

Orders of the court

PAC 2225 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS LEENA

Applicant

AND:

MR LEENA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUSTICE ANDERSON

DATE OF ORDER:

17 APRIL 2025

THE COURT ORDERS THAT:

PARENTING

Parental Responsibility

1. All previous parenting orders in relation to the children, X born in 2015 and Y born in 2018 (“the children”) be discharged.

2. The parties have equal shared parental responsibility and joint decision-making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) (‘the Act’) affecting the children.

Children’s living arrangements

3. The children live with the mother.

4. The children spend time with the father during school term periods as follows:

(a) As and from the commencement of Term Two, 2025, in each alternate week from the conclusion of school on Friday (or 9.00am if school is not in session) to the commencement of school on Tuesday (or 9.00am if school is not in session);

(b) At such further or other times as agreed between the parties in writing.

5. That during school holiday periods, the children spend time with each of their parents as follows:

(a) During the Term One school holiday period in 2025:

(i) With the father pursuant to the terms of paragraph 4(a) herein; and

(ii) With the mother at all other times;

(b) During the Term Two school holiday period in 2025:

(i) With the father pursuant to the terms of paragraph 4(a) herein save that on one occasion only, the children’s time with the father shall be extended such that in lieu of 9.00am on Tuesday, such time be extended to 5.00pm on the following Wednesday NOTING it is the intention of this order that the rotation provided at paragraph 4(a) herein shall continue in any event; and

(ii) With the mother at all other times;

(c) During the Term Three school holiday period in 2025:

(i) With the father pursuant to the terms of paragraph 4(a) herein save that on one occasion only, the children’s time with the father shall be extended such that in lieu of 9.00am on Tuesday, such time be extended to 5.00pm on the following Thursday NOTING it is the intention of this order that the rotation provided at paragraph 4(a) herein shall continue in any event; and

(ii) With the mother at all other times;

(d) As and from the Christmas school holiday period in 2025/2026 and in each Christmas school holiday period thereafter, the children spend time with each of their parents on a week about basis at times as may be agreed between them in writing or in default of agreement as follows:

(i) With the father for one period of seven consecutive nights commencing on the Friday on which the children would ordinarily be in the care of the father pursuant to the terms of paragraph 4(a) herein and concluding at 5.00pm on the following Friday and in each alternate week thereafter;

(ii) With the mother at all other times save and except as expressly provided by these orders;

(e) As and from the Term One school holiday period in 2026 and in each short-term school holiday period thereafter, the children spend one half of each short school holiday period with each of their parents at times as may be agreed between them in writing or in default of agreement as follows:

(i) With the father for one period of eight consecutive nights commencing at 5.00pm on the Friday on which the children would ordinarily be in the care of the father pursuant to the terms of paragraph 4(a) herein and concluding at 5.00pm on the following Saturday (being eight nights later);

(ii) With the mother at all other times NOTING it is the intention of these orders that the rotation provided at paragraph 4(a) herein shall continue in any event.

Special occasions

6. The children spend time with each of their parents at times as may be agreed between them in writing but in default of agreement as follows:

(a) On the occasion of Christmas:

(i) With the mother in 2025 and in each alternate year thereafter from 3.00pm on Christmas Eve to 3.00pm on Christmas Day;

(ii) With the father in 2025 and in each alternate year thereafter from 3.00pm on Christmas Day to 3.00pm on Boxing Day;

(iii) With the father in 2026 and in each alternate year thereafter from 3.00pm on Christmas Eve to 3.00pm on Christmas Day;

(iv) With the mother in 2026 and in each alternate year thereafter from 3.00pm on Christmas Day to 3.00pm on Boxing Day;

(b) With the mother on the occasion of Mother’s Day from 9.00am to 5.00pm;

(c) With the father on the occasion of Father’s Day from 9.00am to 5.00pm.

(d) On the occasion of each child’s birthday:

(i) If the children are not otherwise in the care of the father then with the father as follows:

A. If a school day from the conclusion of school to 6.30pm;

B. If a non-school day, from 8.00am to 2.00pm;

(ii) If the children are not otherwise in the care of the mother then with the mother as follows:

A. If a school day from the conclusion of school to 6.30pm;

B. If a non-school day, from 8.00am to 2.00pm.

Changeovers

7. That handovers occur at the children’s school if school is in session and otherwise, at a fast food outlet located at F Street, Suburb G in the State of New South Wales.

Telephone communication

8. Each parent shall ensure that he/she facilitates telephone contact between the children and the other parent at any reasonable time that the children express a wish to communicate with the other parent.

Psychiatric review

9. Within fourteen (14) days of the date of these Orders, the parties do all acts and things necessary to make an appointment with Dr H, paediatrician, for the purposes of obtaining a referral to a paediatric psychiatrist in respect of the child, X, for review and to assess the need for psychotropic medication and for this purpose:

(a) Each parent is to attend all appointments with the paediatrician and psychiatrist;

(b) Each parent is to share one half of ‘out of pocket expenses’ after receiving any applicable rebate from Medicare and/or the National Disability Insurance Scheme;

(c) The parties shall provide Dr H and the psychiatrist engaged by them with a copy of the following:

(i) The report prepared by Dr J, specialist psychologist, dated 11 June 2024;

(ii) These parenting orders;

(d) The parties shall comply with the recommendations of the paediatric psychiatrist with respect to X’s ongoing treatment including recommendations made with respect to the provision of or cessation of medication.

Medical Issues and administration of medication

10. Each parent shall comply with all recommendations made by the children’s treating medical practitioners with respect to the provision of medication to the children (or either of them).

11. Within twenty-four (24) hours of a parent making an appointment for the children (or either of them) with a medical practitioner or allied health care professional, the relevant parent is to provide details of that appointment to the other parent in writing with such notice to include the date, time and location of the said appointment and thereafter, each parent is at liberty to attend the appointment subject to the discretion of the treating professional at all times.

12. Each parent shall advise the other parent as soon as practicable of any major medical issue affecting the children (or either of them) and each parent shall keep the other parent informed of any treatment or medication prescribed for the children (or either of them).

Extracurricular activities

13. Each parent shall facilitate the attendance of the children (or either of them) at all extracurricular activities in which they are enrolled whilst the children are in his/her care NOTING THAT the children are currently enrolled to attend an extracurricular activity.

14. Each parent is restrained, and injunction is granted restraining each of them from enrolling the children (or either of them) in any other extracurricular activities without the written consent of the other parent.

Authorities, Provision of Information and Communication between the parties

15. Each parent is:

(a) Permitted to communicate directly with the children’s school/s, sporting bodies, and medical practitioners to obtain any information and/or documentation about the children’s progress and this Order shall constitute sufficient authority for such communication;

(b) Permitted to attend at parent-teacher interviews for each of the children provided that each parent makes his/her own separate appointment;

(c) At liberty to attend at events to which parents are ordinarily invited such events to include but not be limited to assemblies, sports days, concerts and end of year presentation nights.

Communication and Notification of Details

16. The mother and the father communicate as follows in relation to the children:

(a) By telephone in the case of an emergency; and

(b) By the “Our Family Wizard App” in relation to any other matters relating to the parenting arrangements prescribed by these Orders or the health, welfare and development of the children.

17. The mother and the father keep each other advised of his/her residential address and telephone number and advise the other parent of any change to these details within 48 hours of such change.

Passports and overseas travel

18. Each parent do all acts and things and sign all documents necessary to obtain Australian passports for the children within fourteen (14) days of being requested to do so by the other parent with the costs of obtaining or renewing the children’s passport(s) to be at the joint and equal expense of the parties.

19. On receipt of the children’s passports, the parties shall cause the same to be delivered to the Parramatta Registry of the Federal Circuit and Family Court of Australia with such passport not to be released to either parent save and except on proof by the travelling parent of compliance with the terms of Order 20 herein.

20. Each parent is permitted to remove the children from the Commonwealth of Australia for up to twenty-one (21) days per annum or for any alternate duration as may be agreed between the parties in writing on the following conditions:

(a) The travelling parent shall provide the other parent no less than forty-two (42) days’ notice of the proposed travel;

(b) The travelling parent shall provide to the other parent an itinerary, which includes particulars of airline flights and accommodation whilst overseas;

(c) The travelling parent shall provide to the other parent a contact telephone number for the purposes of communication with the children during the period of any travel.

21. The travelling parent shall return the children’s passports to the Parramatta Registry of the Federal Circuit and Family Court of Australia within fourteen (14) days of the children’s return to the Commonwealth of Australia.

Restraints

22. The parties be restrained and an injunction is hereby granted restraining each of them from:

(a) Facilitating the attendance of the children or either of them on Ms E;

(b) Denigrating the other parent to or in the presence or hearing of the children or allowing any third party to do so;

(c) Denigrating any member of the other parent’s family to or in the presence or hearing of the children or allowing any third party to do so; and

(d) Permitting the children to access or read any documents filed in these proceedings or any correspondence or reports prepared in relation to these proceedings.

Discharge of Independent Children’s Lawyer

23. The appointment of the Independent Children’s Lawyer be discharged.

Other

24. Pursuant to s 62B of the Family Law Act 1975 (Cth) (as amended), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

25. Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth) (as amended), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

26. All other applications pursuant to Part VII of the Family Law Act 1975 (Cth) (as amended) are dismissed.

FINANCIAL APPLICATIONS

In full and final settlement of all claims for settlement of matrimonial property:

27. Within forty-two (42) days of the date of these Orders, the Applicant Wife (“the wife”) do pay to the Respondent Husband (“the husband”) a sum of $659,136.

28. Within forty-two (42) days of the date of these Orders, the wife do pay to the husband a sum of $5,500 being monies owed to the husband by the wife on account of the wife’s share of fees payable with respect to the preparation of a report by Dr J, specialist psychologist.

29. That contemporaneously with Order 27 herein, the husband do all acts and things and sign all documents as may be necessary to transfer to the wife all his right, title and interest in and to the property known as and situated at L Street, Suburb K in the State of New South Wales being the whole of the land contained within Certificate of Title Folio Identifier …/… (“the Suburb K property”).

30. That simultaneously with the transfer of the Suburb K property referred to at Order 29 herein, the wife shall at her own expense do all acts and things and sign all documents as may be necessary to refinance the mortgage secured over the Suburb K property into her sole name provided that the husband sign the appropriate discharge authorities within seven (7) days of the same being presented to him for his signature.

31. That contemporaneously with Order 27 herein, the husband do all acts and things and sign all documents as may be necessary to transfer to the wife all his right, title and interest in and to the property known as and situated at M Street, Town O in the State of New South Wales being the whole of the land contained within Certificate of Title Folio Identifier …/… (“the Town O property”).

32. That simultaneously with the transfer of the Town O property referred to at Order 31 herein, the wife shall at her own expense do all acts and things and sign all documents as may be necessary to refinance the mortgage secured over the Town O property into her sole name provided that the husband sign the appropriate discharge authorities within seven (7) days of the same being presented to him for his signature.

33. In the event that the wife fails to pay the sums referred to at Order 27 and/or Order 28 herein, and should such default continue for a period of thirty days or more, then:

(a) The wife shall pay interest on such sum as may be outstanding at the rate prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 from the date that payment of the sum was due until payment is made in full; and

(b) The Suburb K property shall be placed on the market for sale.

34. It is a condition of Order 33(b) herein that:

(a) The parties shall do all things necessary to appoint an agent to list for sale and sell the Suburb K property and failing such agreement as to the identity of the agent within 45 days of the default referred to at Order 33 herein, the parties shall appoint such agent as is nominated by the President of the Real Estate Institute of New South Wales upon the written request of either party;

(b) The parties shall do all acts and things necessary to appoint a solicitor or licensed conveyancers to act on the sale of the Suburb K property by agreement and failing such agreement within 45 days of the default referred to at Order 33 herein, the parties shall appoint such solicitor or conveyancer as is nominated by the President of the Law Society of New South Wales upon the written request of either party;

(c) The sale price at which the Suburb K property be listed be mutually agreed upon by the parties, or in the absence of agreement, as nominated by the agent appointed pursuant to these orders;

(d) The parties cooperate in every way with the agent appointed pursuant to these orders including but not limited to:

(i) Making the key available to the agents;

(ii) Allowing inspection of the Suburb K property at all reasonable times requested by the agent;

(iii) Ensuring the Suburb K property including its grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers;

(e) Neither party may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the Suburb K property or to any commission;

(f) Pending the sale of the Suburb K property the wife shall be solely responsible for maintaining the outgoings of the property including all mortgage payments.

35. In the event that the Suburb K property is not sold by public auction within three (3) months of the date of default, the parties are to do all acts and things and sign all documents necessary to relist the Suburb K property for sale by private treaty or public auction every six weeks on the same terms and conditions referred to at Order 34 herein save that, unless otherwise agreed, the sale or reserve price shall be reduced by five (5) percent at each auction until the property is sold.

36. On settlement of the sale of the Suburb K property, the proceeds of sale shall be applied in the following manner and priority:

(a) In discharge of the mortgage secured against the Suburb K property;

(b) All costs and expenses of sale including legal costs and disbursements, agents’ commission and auction expenses;

(c) The amounts required to pay all municipal rates, water rates or land tax due in respect of the property;

(d) Such sum as is necessary to satisfy the monies owing to the husband pursuant to Order 27 and Order 28 herein or such sum as is outstanding together with interest calculated pursuant to the terms of Order 33(a) herein;

(e) A sum of $5,500 to the husband being monies owed to the husband by the wife on account of the wife’s share of fees payable with respect to the preparation of a report by Dr J, child psychologist and child psychotherapist;

(f) The balance then remaining to the wife.

37. In the event that the net proceeds of sale are insufficient to satisfy the monies owing to the husband pursuant to Order 27 herein and/or Order 28 herein or such sum as is outstanding together with interest calculated pursuant to the terms of Order 33(a) herein and/or if the wife fails to comply with the terms of Order 33(b)herein then and in that event, the Town O property be placed on the market for sale on the same terms and conditions as Orders 33 and 34 herein and the net proceeds of sale shall be distributed in the same priority and manner as described at Order 36 herein.

38. The husband do all things and sign all documents as may be necessary to transfer ownership at law and in equity in respect of the following accounts to the wife:

(a) ANZ Account ending #46;

(b) P Investment Member Number ...

39. The wife is declared to be the sole owner in equity and at law to the exclusion of the husband to the following:

(a) Any funds standing to her credit in any account held by her with any financial institution;

(b) Motor Vehicle 1 Registration Number …;

(c) Motor Vehicle 2;

(d) P Investment;

(e) Any superannuation fund in which the wife has an interest;

(f) Any and all life insurance policies in the wife’s name;

(g) All and any annual leave or long service leave or other employment benefits or entitlements;

(h) Her interest in the Estate of the late Ms Q.

40. The husband is declared to be the sole owner in equity and at law to the exclusion of the wife to the following:

(a) Any funds standing to his credit in any account held by him with any financial institution;

(b) Leena Pty Ltd;

(c) Any superannuation fund in which the husband has an interest;

(d) Any and all life insurance policies in the husband’s name;

(e) All and any annual leave or long service leave or other employment benefits or entitlements.

41. Notwithstanding paragraph 29 above, the husband be permitted to attend at the Suburb K property on a date and at a time to be agreed between the parties or failing agreement on the second Saturday following the date of these Orders between 8.00am and 5.00pm to collect the following:

(a) The husband’s sports Jersey;

(b) All racking in the garage;

(c) Waste oil tank;

(d) The husband’s novelty item;

(e) The husband’s fishing rod;

(f) The husband’s box of magazines located in the garage; and

(g) The husband’s golf clubs.

42. The wife do indemnify and keep the husband forever indemnified in respect of any monies owing by the parties to Services Australia.

43. Unless otherwise provided:

(a) Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder and superannuation entitlements are deemed to be in the possession of the superannuant;

(b) Each party shall be solely liable for and shall indemnify the others against any and all debts attaching or relating to the property in their respective possession, and any debts in their respective sole names, including any individual liability for tax arising out of the sale by the parties of property pursuant to these orders.

44. In the event of any party refusing or neglecting to sign within seven (7) days of a written request to do so any document necessary to implement the terms of these orders a Registrar of Federal Circuit and Family Court of Australia is empowered to execute such documents on behalf of the parties pursuant to s 106A of the Family Law Act (Cth).

45. All outstanding applications are dismissed.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons identified below, I have determined that it is appropriate to divide the non-superannuation and superannuation assets on a 57:43 basis in favour of the husband on account of the significant monies, which the wife will receive from the estate of her late mother.BACKGROUND The wife is aged 40 years. The husband is aged 37 years. The parties commenced a relationship in 2012 and began living together in 2013.[5] Thereafter, the parties married in 2016 and separated on a final basis on 24 September 2022.[6] The parties lived separately under the same roof until the husband moved out in late 2022.[7] [5] Wife’s affidavit filed 6 December 2024, paragraph 6; Husband’s affidavit filed 20 December 2024, paragraph 4.[6] Wife’s affidavit filed 6 December 2024, paragraph 5.[7] Husband’s affidavit filed 20 December 2024, paragraph 32. Regrettably, the parties’ relationship was marked by a series of distressing events. The parties undertook multiple rounds of “IVF treatment”.[8] Regrettably, some embryos did not survive, and the wife had a number of miscarriages.[9] The parties also found themselves in dispute about how to dispose of succumbed embryos and this dispute was the subject of a judgment delivered by the Honourable Justice Riethmuller on 8 March 2024.[10][8] Wife’s affidavit filed 6 December 2024, paragraph 193.[9] Husband’s affidavit filed 20 December 2024, paragraph 13.[10] Leena & Leena [2024] FedCFamC1F 135. Fortunately, and despite these difficulties, the parties have two female children who are the subject of these proceedings. Subsequent to the parties’ separation, the children lived primarily with the wife. The elder child has been diagnosed with an Attention Deficit Hyperactivity Disorder, autism spectrum disorder and a general anxiety disorder. The wife says that consequently, the elder child “struggles with concentration and staying on tasks”.[11] She also says that the elder child “needs and requires routine and consistency as change or disruption to normal routine can cause dysregulation”.[12][11] Wife’s affidavit filed 6 December 2024, paragraph 44(a).[12] Wife’s affidavit filed 6 December 2024, paragraph 44(a). The younger child has been diagnosed with autism spectrum disorder, a sensory processing disorder, attention deficit hyperactivity disorder and eczema.[13] As a consequence of her diagnosis with a sensory processing disorder, the wife says that the younger child is “sensitive to certain sounds and her dislike of certain materials on her body and ultimately resulting in her crying and becoming distressed”.[14][13] Wife’s affidavit filed 6 December 2024, paragraph 44(b).[14] Wife’s affidavit filed 6 December 2024, paragraph 44(b). Subsequent to separation, and in December 2022, the parties attended a mediation. The parties agreed for the husband to spend unsupervised time with the children including on an overnight basis.[15] The husband complained that despite this agreement, the wife would cut short his time with the children on account of commitments with third parties and/or extracurricular activities.[16] Regrettably, in late February 2023, the parties found themselves in dispute as a consequence of the husband’s refusal to return the children to the mother so that the children might participate in sporting lessons. The husband says that the wife unilaterally arranged those lessons in his time with the children without consultation or his consent.[17] The wife’s solicitors then went into print and through her solicitors, the wife insisted that the children’s time with the father be supervised.[18] I will discuss this topic in further detail below. In any event, and after the wife insisted that the children’s time with the husband be supervised, the children did not spend any time with the husband for a period in excess of five months.[15] Husband’s affidavit filed 20 December 2024, paragraph 39.[16] Husband’s affidavit filed 20 December 2024, paragraphs 40 and 41.[17] Husband’s affidavit filed 20 December 2024, paragraph 43.[18] Husband’s affidavit filed 20 December 2024, paragraph 44.

Evidence

Evidence Before The Court

Whatever the scenario, the mother took every opportunity during her oral evidence to criticise the father and his parenting capacity. On occasion, the mother took those opportunities even when her commentary about the father was entirely irrelevant to the question she was being asked. I agree with the submission made by the father’s counsel that the mother’s behaviour could only lead a fair-minded observer to one conclusion. That is, the mother was either unable or unwilling to make any concession, which might cause the father to be viewed in a “positive light” because such a concession would be antithetical to the outcome, which the mother desired to achieve – namely, a significant reduction in the children’s time with the father such that they spend one day per fortnight with him only.Evidence of the father The father also presented as combative and defensive. However, it was my impression that the father presented in this manner in circumstances where he was displeased with the criticisms levelled at him by the mother and annoyed that the parties were engaged in stressful litigation in this Court. At one juncture during his cross-examination by the mother’s counsel, the father simply “shut down” and declined to answer any question put to him in a sensible manner. At that time, the father answered every question with “I don’t know”. Rather than being evasive, it was my impression that the father is simply worn down by this litigation and incensed that his parenting of the children was being so closely scrutinised by the Court and by the mother. Having listened to the parties’ evidence, my impression is that the father’s parenting of the children will never be good enough by reference to the standards set by the mother. Whilst that might be so, the task, which falls to me pursuant to the terms of Part VII of the Act, is to consider the children’s best interests having regard to the criteria referred to in the Act as opposed to the mother’s subjective standard.PARENTING ISSUES TO BE DETERMINED The mother identified the following risk factors by way of her Outline of Case Document:(a)Conflict between the father and the elder child;(b)The inability of the parties to provide structure and routine “that is consistent in both of their homes as recommended by the children’s treating medical practitioners”;(c)The father’s “failure to accept and resistance to accepting medical advice and diagnoses for the children”;(d)The father’s “failure to properly administer the children’s medications during their time with him” and failure to ensure that the children eat lactose free foods;(e)The father’s “impaired parenting capacity by reason of family violence, alcohol use and mental health issues”; and(f)Denigration of the mother by the father.[54][54] Outline of Case Document filed 17 January 2025, Part C. The father identifies that in the post-separation period, the mother has:(a)Restricted his time with the children;(b)Made unilateral decisions for the children without consulting him or obtaining his consent;(c)Been overly critical of his care of the children;(d)Denigrated the father and/or criticised his parenting of the children to educational and health service providers;(e)Restricted the father’s ability to engage with the children’s treating medical practitioners and other health professionals.[55][55] Husband’s Outline of Case Document filed 17 January 2025, pages 2 and 3 of 27.

Decision

Reasons for decision

I find that the parties will incur unreasonable expense if I make orders implementing the nominal reduction proposed by the wife. Accordingly, I will make orders in terms similar to those orders promoted by the husband.CONCLUSION The outcome means that overall and including the inheritance to be received by the wife from the estate of her mother, the wife will retain assets with a value of between $1,290,817 and $1,436,832. The husband will retain assets of $880,013. I am satisfied that overall, this is a just and equitable outcome of these proceedings. The orders of the court will be as set out at the commencement of these reasons for judgment.

Ratio Decidendi

Legal Principle Established

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