Morishita & Vartanian - [2024] FedCFamC1F 26

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Morishita & Vartanian [2024] FedCFamC1F 26

File number(s): CAC 1369 of 2021

Judgment of: GILL J

Date of judgment: 23 February 2024

Catchwords:
FAMILY LAW – PARENTING – Both parties seeking sole parental responsibility – Where the father has been diagnosed with PTSD and a major depressive disorder as a result of workplace-related injuries – Parenting capacity – Nature of the relationship between the father and the children – Whether the mother has undermined the relationship between the children and the father –Emotionally abusive conduct by the father directed to the mother – Where the father accepted that the children and the mother had experienced him as frightening at times – Children resistant to time with the father – Failure of supervised time – Where the parties do not have a working coparenting relationship – Sole parental responsibility – Children to live with the mother – No order for time with the father.

FAMILY LAW – PROPERTY – Where the father has been declared totally and permanently incapacitated and is receiving various payments following his medical retirement – Characterisation of these payments – Impact of reduction in super balance on the father’s payments – Father’s payments do not allow him to accumulate superannuation – Consideration of present and future needs – Global division 55/45 in favour of the mother – Father resistant to splitting of his superannuation interest – Mother seeking splitting of superannuation at less than 55/45 – Balance of adjustment from current assets – Difference in characteristics between superannuation and current assets.

Legislation:
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA, 65Y(2)(b); 90SF, 90SM & 90XT

Family Law (Superannuation) Regulations 2001 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 21

Cases cited:
Archer v Comcare (2000) 101 FCR 30

Bevan & Bevan [1993] FamCA 95

Dickons & Dickons (2012) 50 Fam LR 244

Eastley & Eastley [2022] FedCFamC1A 101

Grier & Malphas (2016) 55 Fam LR 107

Isles & Nellisen [2022] FedCFamC1A 97

Marsden & Winch (No 3) [2007] FamCA 1364

Mazorski v Albright (2007) 37 Fam LR 518

Stanford v Stanford [2012] HCA 52

Trevi & Trevi [2018] FamCAFC 173

Welch & Abney [2016] FamCAFC 271

Division: Division 1 First Instance

Number of paragraphs: 368

Date of hearing: 31 October 2023, 1-2 November 2023, 27-29 November 2023 and 1 February 2024

Place: Canberra

Counsel for the Applicant: Mr Haddock

Solicitor for the Applicant: Gabbedy Milson Lee

Counsel for the Respondent: Dr Behrens

Solicitor for the Respondent: Neilan Stramandinoli Family Law

Counsel for the Independent Children's Lawyer: Ms Yu

Solicitor for the Independent Children's Lawyer: Infinity Legal
ORDERS

CAC 1369 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR MORISHITA

Applicant

AND:
MS VARTANIAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

GILL J

DATE OF ORDER:

23 FEBRUARY 2024

THE COURT ORDERS THAT:
PARENTING
1.All previous parenting orders be discharged.
2.The mother shall have sole parental responsibility for the children X, born 2012 and Y, born 2014.
3.For any long-term decisions made in relation to the children:
(a)The mother shall notify the father of the proposed decision by email not less than fourteen (14) days prior to making the decision;
(b)Within seven (7) days of receiving the mother’s email, the father is to provide his views in relation to the proposed decision to be made;
(c)The mother is to consider any views expressed by the father in relation to the proposed decision; and
(d)Notify the father in writing once she has made a final decision.

4.The children are to live with the mother.
5.The mother is permitted to relocate the children’s residence.
6.The mother is to provide the father with an address to which the father may send the children cards and/or gifts for their birthdays and Christmas.

Information Sharing
7.The mother is to provide the father with an update by email as to the children’s circumstances once per month.
8.In the event that either child suffers an illness or medical emergency that requires immediate medical attention the mother will, as soon as practicable:
(a)Advise the father of the nature of the child’s condition including any diagnosis, treatment and prognosis;
(b)Advise the father of the full name and contact details for any health care practitioner or facility the child may attend upon for assessment or treatment;
(c)Authorise the health care practitioner or facility to contact the father in relation to the child’s diagnosis, treatment and prognosis and provide to the practitioner or facility with the father’s contact telephone number and email address to facilitate the same.

9.The mother shall do all thing necessary to authorise the father to receive, directly from the children’s school, a copy, at the father’s expense, of all information and documents ordinarily made available to parents, including but not limited to school reports, newsletters and photo order forms.
10.The mother and father are to keep each other informed of their email addresses and mobile phone numbers and are to advise one another of any changes to these details within 48 hours.

Overseas Travel
11.Pursuant to s 65Y(2)(b) of the Family Law Act 1975, the mother is permitted to travel with the children outside of the Commonwealth of Australia provided that she gives notice to the father of her intended departure and re-entry dates in writing no less than 28 days prior to departing Australia.
12.Pursuant to s 11(1)(b)(i) of the Australian Passports Act 2005, the mother is permitted to apply for, or renew, a passport for the children without the consent of the father.

Change of Name
13.The mother and father are to do all things required by the Births, Deaths and Marriages Registry to change the names of the children to as follows:
(a)X to X Morishita-Vartanian; and
(b)Y to Y Morishita-Vartanian.

14.For the purposes of Order 13 above:
(a)The mother will provide to the father’s solicitor a signed Change of Name form for each child within fourteen (14) days of this order;
(b)The father will sign the forms and return them to the mother’s solicitor within fourteen (14) days from receipt of same;
(c)The mother will lodge the forms with the Births, Deaths and Marriages Registry as soon as practicable thereafter; and
(d)The mother will be responsible for the payment of any application fees associated with changing the children’s names.

15.In the event of non-compliance with Order 14 above, a Judicial Registrar may sign the necessary documents on either parent’s behalf pursuant to s 106A of the Family Law Act 1975.

Restraints
16.The parties are restrained by injunction from:
(a)Physically disciplining the children; or
(b)Denigrating the other parent or members of their family in the presence or hearing of either of the children.

PROPERTY
17.All previous property orders be discharged.

The Suburb D Property
Sale of Property
18.Within 30 days of the date of these Orders (“the Due Date”), the parties do all such acts and things and sign all necessary documents to list the property known as C Street, Suburb D, Region B (“the Suburb D Property”) for sale.
19.For the purposes of Order 18 above:
(a)The parties place the Suburb D Property with an agent for sale to be agreed between the parties or in default of agreement with an agent (“the Agent”) nominated by the President of the Real Estate Institute of Region B.
(b)The market value of the property be as agreed between the parties or failing such agreement as determined by a valuer nominated by the President of the Real Estate Institute of Region B, such determination to be paid for equally by the parties.
(c)If the Suburb D Property is not sold within three months of the Due Date or if the Suburb D Property is sold and the sale subsequently does not proceed to completion the parties do all things necessary to offer the Suburb D Property immediately for sale by public auction by the Agent, the reserve price being the market value determined in accordance with Order 19(b).
(d)The parties execute all documents requested by the Agent as auctioneers for the sale of the Suburb D Property by auction.
(e)The parties execute a contract of sale.
(f)The parties cooperate in every way with the Agent in relation to the auction of the Suburb D Property including making the keys available for an inspection of the Suburb D Property at times requested by the Agent and ensuring that the Suburb D property is in a clean and neat condition at the time of inspection by the prospective purchasers.
(g)If the Suburb D Property is not sold at the auction within 21 days thereafter the parties shall meet the market price and sell the Suburb D Property at the best price, then obtainable and as determined in accordance with Order 19(b).

20.That parties do all things necessary to cause the proceeds of the sale of the Suburb D Property to be distributed as follows:
(a)To pay all costs commissions and expenses of the sale.
(b)To pay the usual rates adjustment.
(c)To pay the amount required to repay the loans secured by way of mortgage against the Suburb D property.
(d)To pay the balance then remaining (the net proceeds) as follows:
Payment to the father = 45% ($1,047,858 + the net proceeds) - $621,517
Payment to the mother = 55% ($1,047,858 + the net proceeds) - $426,341

21.That the liberty be reserved to either party to apply to the Court on seven days' notice to the other with respect to the terms and conditions of the sale.
22.That from the date of these Orders until completion of the Suburb D Property sale:
(a)The mother have the sole right to occupy the Property.
(b)Neither party shall mortgage or otherwise offer the Property for security.
(c)The mother shall bear the liability for the rates and utilities incurred during that period.

Superannuation
23.That the father is restrained from reducing the total amount of superannuation in his Superannuation Fund 1 interest to below $250,000 until such time as Order 25 has been implemented.
24.Orders 3-6 of the Orders dated 19 October 2022 (“superannuation flagging orders”), are hereby discharged and the payment flag on the member’s account be lifted allowing a payment split to occur.
25.That in accordance with section 90XT(l)(a) of the Family Law Act 1975 (“the Act”) whenever a splitable payment within the meaning of Section 90XE of the Act becomes payable to or on behalf of Mr Morishita from his interest in the Superannuation Fund 1, Ms Vartanian is entitled to be paid by the Trustee of the Superannuation Fund 1, the S Corporation (“the Trustee”), the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $200,000 and that there be a corresponding reduction in the entitlement Mr Morishita would have had but for this order.
26.The operative time for Order 25 be four business days after the service of a copy of the original final sealed Orders on the Trustee.
27.That Orders 25 and 26 bind the Trustee of the Superannuation Fund 1.
28.IT IS NOTED: The parties note that this Order, and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations 2001 which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.

Other Property
29.The mother retain the following assets for her sole use and benefit, free from claim by the father:
(a)Her Motor Vehicle 1;
(b)Her entitlements to the following accounts:
(i)E Financial Services Managed Funds/Shares;
(ii)CommSec Portfolio; and
(iii)Commsec Shares.

(c)Monies in all bank accounts in her sole name;
(d)Furniture and household contents in her name, possession or control; and
(e)Her superannuation entitlements with Superannuation Fund 1.

30.The mother is liable for and shall indemnify the father in respect of the CommSec Loan.
31.The father retain the following assets for his sole use and benefit, free from claim by the mother:
(a)His Motor Vehicle 2;
(b)His Motor Vehicle 3;
(c)The trailer;
(d)Monies in all bank accounts held in his sole name and held in joint names;
(e)Furniture and household contents in his name, possession or control; and
(f)Save as otherwise provided for in these orders his superannuation entitlements with Superannuation Fund 1.

32.Except as otherwise provided for in these Orders, the father shall be solely responsible for and shall indemnify the mother in relation to all liabilities in his sole name.
33.Except as otherwise provided for in these Orders, the mother shall be responsible for and shall indemnify the father in relation to all liabilities in her sole name.

Procedural Orders
34.That each party shall do all acts and things reasonably required by the other, including the signing or execution of all necessary documents, to give effect to the provision to these Orders within 14 days of written request to do so.
35.That if either party refuses, fails or neglects to sign or execute and return the document within 14 days of written request to do so pursuant to these Orders, then the Judicial Registrar, Deputy Registrar or any other Officer of the Registry of the Federal Circuit and Family Court of Australia is hereby appointed under Section 106A of the Family Law Act 1975 (Cth) to execute or sign such document on behalf of that party upon lodgement of such document and the filing of an Affidavit by the requesting party as to the neglect or refusal.

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
GILL J
BACKGROUND AND OVERVIEW

This dispute concerns both the parenting arrangements for X and Y and the adjustment of property interests between the parties following the end of their relationship.
The applicant father is Mr Morishita, born in 1982. The respondent mother is Ms Vartanian, born in 1985.
The parties commenced living together in early 2012 and separated in January 2019. X, born in 2012 and Y, born in 2014 (“the children”) are the two children of this relationship. The children live with the mother and at present spend no time with the father.
The parties have adopted polarised primary positions in relation to what they assert is in the best interests of the children. Their positions are set out in more detail below but in general terms the mother says that the children should live with her and spend no time with the father. The father seeks that the children live with him and have a hiatus in their time with the mother.
A number of issues emerged as prominent in relation to the parenting dispute.
It was uncontroversial that, as a result of work-related injuries, the father has been diagnosed with PTSD and a mental health disorder. In significant dispute are the consequences of such.
The purported consequences include aggressive and frightening behaviour by the father to which the mother and children were exposed, and significant limitations upon the father’s availability and capacity to provide for the children emotionally. The mother contends that the relationship between the father and children is deeply fractured, such that the children cannot spend time with him unless their view of him changes.
The children live with the mother and have not spent time with the father since September 2022. The ending of their time with the father followed a period of refusal by the children, resulting in the withdrawal of handover services by the professional supervision centre, E Family Services.
The mother’s case is that the refusal is a consequence of the father’s limited engagement with the children during the relationship, their exposure to aggressive conduct by him, and his manner of engagement with the children post separation.
The father’s case is that the hostile expressions by X do not reflect her true feelings toward him and are a product of adverse influence by the mother that has undermined his relationship with the children.
The parties do not have a working coparenting relationship.
The parties’ dispute in relation to their property was more limited, the parties agreeing in most part as to the composition of the property of the relationship.
The prominent contentious issues in the property dispute related in large part to the significance of the father’s work-related mental health issues (the father having been medically retired from his work, and the characteristics of and qualifications upon the payments that he receives as a result of these issues.
ORDERS SOUGHT
The precise orders sought by the parties are annexed to this judgment.
Applicant father
In relation to parenting, the father seeks sole parental responsibility and that the children live with him. He seeks that the children do not spend time with the mother until a period of one month from the making of final orders, then for up to six hours one day each weekend for a period of one month, and then for a period of six months for the children to spend one overnight each alternate weekend, then for a period of three months each alternate weekend from after school Friday until 4 pm Sunday. Finally, there would be a transition to each alternate weekend from after school Friday until before school Monday and half of the school holiday periods.
In the alternative to the above, the father seeks the parties have equal shared parental responsibility, the children live with the mother and spend time with him from after school Friday to before school on Wednesday each alternate week.
The father seeks the mother undertake psychological counselling and that the children and he undertake therapeutic counselling.
In relation to property the father seeks the Suburb D property be sold and that he receive 65 per cent and the mother 35 per cent of the proceeds of sale. He seeks no order in respect of superannuation.
Respondent mother
At the end of the case the mother adopted the minute of orders in relation to parenting as proposed by the Independent Children’s Lawyer (“the ICL”) (subject to a minor change to the ICL’s proposed order 10 regarding communication).
The regime proposed by the ICL provides that the children should remain living with the mother, that she should hold sole parental responsibility and be at liberty to move with the children to Victoria, that the children should be able to spend time and communicate with the father in accordance with their wishes, and that the mother be required to regularly provide information about the children to the father.

In relation to the property aspect of the dispute, by the end of the trial the mother indicated that, on the basis of conceded add-backs as set out in the agreed balance sheet, there should be a 60‑40 division in her favour, incorporating a superannuation split of a base amount of $200,000 from the father’s account in favour of the mother. The effect of this is that the settlement would be weighted more heavily in favour of the mother in respect of the non-superannuation pool, and more heavily in favour of the father in relation to the superannuation pool.
By the end of the trial the parents and the ICL agreed that the children’s surnames should be changed to “Morishita-Vartanian”.
STRUCTURE OF THIS JUDGMENT
Given the divergence in the issues that relate to the parenting and the property disputes, discussion of the parenting dispute will be addressed first before analysis of the relevant legal principles and factual issues that relate to the property dispute.
PRINCIPLES IN RELATION TO THE PARENTING DISPUTE
The paramount consideration in determining what parenting order should be made is, pursuant to s 60CA of the Family Law Act 1975 (“the Act”), the best interests of each of the children. Those best interests are to be determined on consideration of the matters set out at s 60CC of the Act, to the extent that they arise in a particular case, and in accordance with the objects and principles set out in s 60B, and, where applicable in accordance with the reasoning process set out at s 65DAA.
In an individual case both the objects and principles and the s 60CC considerations may point in conflicting directions, and toward different outcomes. It is their synthesis that determines best interest. In relation to the interplay between the considerations, in Marsden & Winch (No 3) [2007] FamCA 1364, Warnick and Thackray JJ observed that a primary judge is:
… of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.[1]
[1] Marsden & Winch (No 3) [2007] FamCA 1364, [78].
The two primary considerations focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from being subjected to abuse, neglect or family violence. Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations, that is, protecting the children from abuse, neglect or family violence.
However, Warnick and Thackray JJ also noted that:
It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.[2]
[2] Ibid [77].
The primary considerations, described as the “twin pillars” upon which the considerations rest by Brown J in Mazorski v Albright (2007) 37 Fam LR 518, frequently subsume a number of the additional considerations. For example, the additional consideration at s 60CC(3)(f) which concerns the capacity of a parent to provide for the needs of a child, including emotional and intellectual needs will often form a part of the primary consideration relating to the benefits of meaningful relationship.
In this case, a focus of the parties and the ICL was on the benefits of meaningful relationship with each of the parents, a consideration that necessarily involves the assessment of the nature of the relationships of the children with each of the parents, and each parent’s capacity to provide for the physical, emotional and psychological care of the children. It is a consideration that also involves an assessment of the views and characteristics of each of the children, and how they would be impacted by a change in the parenting arrangements that currently subsist.
Emphasis was also placed by the mother upon the risk of harm to the mother and children by virtue of their previous, alleged, exposure to family violence by the father, combined with the father’s mental health issues, and for the potential for further exposure to such. In contrast, the father emphasised risk of harm to the children flowing from the mother’s alleged undermining of the children’s relationship with him. Accordingly, each parties’ case required consideration of risks and consequences to the children arising in the future.
As identified in the Full Court case of Isles & Nellisen [2022] FedCFamC1A 97, the consideration of risk “is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm.”[3]
[3] Isles & Nellisen [2022] FedCFamC1A 97, [138] (Alstergren CJ, McClelland DCJ, Aldridge, Austin and Tree JJ).
In Eastley & Eastley [2022] FedCFamC1A 101 the Full Court observed the need for a trial judge to consider the whole of the evidence in determining the question of risk, rather than merely dealing with each allegation in an isolated fashion:
…the law did not require the primary judge to assess the potency of the risk of harm posed to the children by reference to the evidence concerning individual events in isolation from the remainder of the evidence. On the contrary, the primary judge was required to assess the level of risk posed to the children on the whole of the evidence, since the strength of the evidence lies in its cumulative effect, much like how the strength of rope derives from the combination of its individually weaker strands (Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 127–130 and 141; Savage v Lunn [1998] NSWCA 203; J.D Heydon, Cross on Evidence (LexisNexis Australia, 13th edition, 2021) at [1110] and [9040]).[4]
[4] Eastley & Eastley [2022] FedCFamC1A 101, [33] (Austin, Williams and Harper JJ).
It may be considered that the various considerations emphasised in this case are interconnected and are unable to be considered in isolation.
FACTUAL ISSUES
The parties commenced living together around about early 2012. X was born in 2012 and Y in 2014.
In 2017 the father suffered a serious mental health condition through his work.
The parties lived separately from early 2018, with the father staying with his parents or at a friend’s house, finally separating in early 2019.
Both of the parties have re-partnered. The father called his partner, Ms G as a witness in his case. The mother has not identified who her partner is, alleging that she considers that the father has stalked her and is concerned that he will stalk the new partner and his children. While there was no evidence presented to support the notion that the father has stalked the mother’s current partner, after the breakdown of the relationship between the father and the mother the father accused the mother on numerous occasions of having a new relationship and was abusive of her regarding the prospect of such.
It was accepted that the mother has always been the primary carer for the children, taking almost a year off from work following the birth of X before returning to work part-time, and not returning to work after Y’s birth.
There was contest between the parties regarding the nature and degree of the father’s involvement with and care of the children prior to 2017 when the father suffered his work‑related mental health condition. The mother contended limited involvement with and tolerance of the children and described that the father would yell at the children when they were quite young. This was in a context where the father was engaged in shift work. In her oral evidence the mother accepted that the father had some involvement with the children. Despite describing limited involvement by the father with the children, the mother accepted that the father tried his best until 2019, but did so in circumstances where work, his mental health and their relationship were all “tough.” The bleak assessment given by the mother of the level of the father’s involvement with the children during the relationship was weakened by her concession given under cross-examination.
However, of greater significance is what has occurred since the work-related injury in 2017. The primary issues pursued by the parties were largely confined to this period, and involved the father’s mental health, the nature of his relationship with the children, whether the mother undermined the father’s mental health and relationship with the children, and the extent and nature of family violence between the parties.
It was the issues that arose during this period that are pivotal to determining the parenting dispute.
The father describes, uncontroversially, that he has had PTSD and a mental health disorder since 2017. He says that that while he had previously been “fragile” he is no longer so, although he was unable to identify when this had changed. Although he says that he still experiences “quite a lot of distress”, he contends that his mental health is now well managed and has been so since about 2020. He says that although he experiences stress, he knows how to deal with it. The father described that he has had passive suicidal ideation, without a plan, for years. He claimed that no treating team had been concerned in relation to this and denied that it played a part in his (voluntary) hospitalisations.
In describing that previously he had experienced triggering and hypervigilance, he attributed this (in part) to the mother’s conduct.
As to his current mental health the father asserted that it would not prevent him from meeting X and Y’s needs, including on a full-time basis, and including in circumstances of distress experienced by the children from being separated from the mother.
The father has attended upon a number of mental health professionals, including his psychiatrists, a Dr H, Dr J, Dr K, and currently Dr M. He has also seen a Dr N who conducts a program directed to workers, such as the father. The father has for a long time, and currently attends upon a psychologist, Ms L.
However, the father called no direct evidence from a treating practitioner, instead relying upon letters and reports from various treating practitioners, and his assertions as to their views of him. This constituted a significant weakness in the father’s case.
As noted above, the parties commenced living separately in about February 2018. At that stage it appears that they were not separated, but that the father’s mental health was significantly prejudiced.
Following the parties starting to live separately, during 2018 the father spent limited time with the children, constituted by daytime periods and a small number of overnight periods when the father’s brother was also present. These were facilitated by the mother.
In about early 2018 the father had his first period of hospitalisation due to his mental health, commencing with an admission of several weeks at the O Health Service facility in City P. He said that this was the quickest way to gain access to a psychiatrist.
The father accepted that he frightened both the children and the mother in the leadup to his admission to O Health Service. He said that this was as a result of his sudden movements, and manner of shouting which exhibited anger. He described himself as unable to control these startled responses at the time and they may have appeared as anger to an outside observer. He accepted that he was concerned in 2018 as to his level of anger and considered hospital admission because of his anger.
However, he attributed these events surrounding that admission to the mother, alleging that she had emotionally pushed him in a manner that resulted in acts of aggression on his part, attributing responsibility to the mother for all of the incidents of his aggression set out in the mother’s affidavit. The father later accepted that his actions would have been difficult for the mother.
The father asserted that he is now in a position to manage himself to avoid such responses. It may be observed that there is no report of such responses by the father for a number of years.
One of the acts that he attributed to the mother was that in the leadup to his admission in early 2018 he described that the mother had locked him in a bedroom within the home. It might be observed that the father is significantly larger and more powerful in build than the mother. He explained that being locked in the room led to him punching and damaging a wall. However, in his oral evidence he accepted that there was no lock by which he could have been locked in the bedroom. Despite this concession he, somewhat incongruously, denied that his evidence in relation to this incident was false.
The father described a further incident where he said that he was running to get away from the mother and collided with a double dividing door, damaging the doors. He alleged that the mother was harassing, shouting and screaming at him.
He also acknowledged damage to the front door of the house when he had attempted to shut the mother outside the house by holding the door shut, in order to cause the mother to leave him alone.
It remained unclear as to the nature of the interactions between the parties surrounding these losses of control by the father. On his admission it may be accepted that they were frightening experiences for the mother. On his description they were also distressing for him.
During his hospitalisations at O Health Service in 2018 the father attended upon a psychiatrist, Dr H. The father described that he did not find Dr H to be helpful to him. The father then commenced to attend upon another psychiatrist, Dr J, who he continued to see until July 2022.
The father saw a psychologist Dr Q for “quite some time” starting in about early 2018. He accepted that Dr Q had expressed concerns regarding the father’s suicidal ideation, and that he had discouraged the father from attending a trip. The father had agreed that he was too angry to go on that trip. He disagreed that he was at risk of self-harm, but this was about making poor decisions, that may result in him getting lost. This appeared to be a minimisation on the part of the father.
The father further accepted that in early 2018 he told Dr Q that he was concerned for the safety of staff (at the hospital) should he become angry. He explained that what he meant was that if he wanted to leave he may engage in a physical confrontation with staff in order to get out.
The father described that such reactions were reflexive and without control. However, he says that he is now able to exercise control as he can jump ahead of his responses.
The father was admitted to O Health Service for a further four weeks in mid-2018. He says that this was for the purpose of a medication review.
During his hospitalisation at O Health Service it was noted that the father was not living with the family in order to avoid destabilising the children, but also that he had withdrawn from, and could not deal with parental responsibility.
During this period the mother facilitated the children’s time with the father, sending messages, photos and videos of the children. The mother describes that she took the children to see the father when he was well enough to see them. She says that she sought to involve the father in significant events with the children, and accepted that the father had responded positively to this. She further accepted that in the circumstances of the father’s fragile mental health, his spending time with the girls required a high level of dedication and demonstrated that he loved the children. The mother describes that at times the children did not want to be left with the father, and at times were willing to be left with him. She says that the father told her that he found the visits with the children exhausting and would ask the mother to stay. Under cross‑examination she conceded that this demonstrated that he recognised how his state may affect the children, how his medication might impact his behaviour around the children and a level of attunement to how the children may experience him. It also demonstrated a recognition of the importance of the mother in the children’s lives.
The father was admitted to R Hospital in late 2018.
The parties’ relationship ended in early 2019.
In early 2019 the father moved to live with his brother at Town T, a rural area just outside of City P. He accepted that in 2019 the mother regularly brought the children to spend time with him there. He also accepted that he behaved in a frightening manner around the children, and that he may not have been emotionally available to them. He subsequently spent various periods of time with the children as set out below.
On two dates in June 2019 the father walked the children home from school.
On three dates in July 2019 the father spent time with the children after school.
The father spent time with the children on each of their birthdays in 2019.
In late 2019 the father was again (voluntarily) admitted to a facility, being R Hospital where he underwent therapy.
The children spent overnight time with the father in December 2019.
The mother purchased a ticket for the father to attend Y’s end of year school performance. The father attended for a short time before leaving.
On five dates in February 2020 the children spent time with the father.
The father spent an evening with the children in March 2020.
As at early 2020 the father was still living with his brother at Town T. He described that there was an incident between he and his brother, and that his mother had jumped in as he “was about to punch the shit out of him.[5]” When questioned about this the father appeared somewhat coy, explaining both that his brother was cheeky, and also appearing to assert that a physical confrontation with his brother was acceptable conduct. This incident is not suggestive that the father’s volatility had come to an end.
[5] Exhibit M14.
In 2020 the father moved out from Town T to live with his parents and started to collect the children from school and walk them home. Such were the father’s mental health struggles that he was unable to commit to doing this on a regular day.
This led to his time with the children being somewhat sporadic.
The mother describes that the father’s time with the children was disrupted from about April 2020 due to COVID, the children having an early exposure at their school, and the risks associated with exposing the father’s parents to COVID.
In May 2020 the father messaged the mother telling her that she had to move out of the former family home in Suburb D straight away, and telling the mother not to call him as it was “too cruel.”
As at that time the father had weapons, which were stored in the Suburb D home until May 2020 when he removed the weapons from there.
In May 2020 the father messaged the mother about his upset that they would not have a romantic relationship again. He later messaged her, alleging that she had a male person in the home. It was unclear what his source of information was or whether the mother did have a male person in the house. That evening, he called her multiple times, including a call where he described her as a “slut”.
The father explained that his upset came partly from the mother having formed a new relationship, and partly from his experience, describing “I dealt with some incidents regarding children – the young children through work that were extremely distressing that fit into a scenario similar to this.” The father explained that this was a reference to trauma. The father then accepted that when he encounters circumstances that remind him of traumatic experiences in his work he tends to think of the “worst possible scenario that might flow from that.” He conceded that this makes him act over-protectively toward the children.

The father did not dispute that between June and December 2020 he messaged the mother, on hundreds of occasions about the mother having men in her life. Again it is unclear how the father formed such a view. He referenced his disgust in relation to the mother, messaging the mother in highly demeaning terms.[6]
[6] Affidavit of the mother filed 13 October 2023, [135].
The mother described that in June 2020 the father offered to walk the children home from school. However, she describes the father acting in a hostile manner toward her in front of the children, for example saying to her that everyone would know how “disgusting” the mother was for “leaving such a sick man.”
Despite the father being available to the children only sporadically, his demand that the mother move from the home, and his expressed disgust of her, the mother continued to facilitate time between the children and the father.
The father collected the children from school on three dates in June 2020, and spent the day with them a few days later. The father spent time with the children on seven days and/or evenings in July 2020.
The children spent time with the father in August 2020.
In August 2020 a consultant psychiatrist, Dr W, provided a report to the father’s workers’ compensation lawyers, presumably directed to the father’s workplace-based claims.[7] The father was reported to have “described ongoing suicidal thoughts and said he tried to cope with the help of [medication] if experiencing intense urges.” Although in his oral evidence he denied that the reference to “intense urges” related to suicidal thoughts, this is the plain meaning of the report.
[7] Exhibit M4.
It may be taken that the father had been experiencing suicidal urges that were, at times, intense.
The children spent time with the father on two dates in August 2020.
The mother said that the father emailed her on 16 August 2020 saying that he was moving to Region Z and that he would sign over full custody to the mother.
The father, at about this time, harboured doubts as to whether X was his child. Without any notice to the mother, he administered DNA tests upon both children on two occasions, repeating the test because he had muddled the samples up. The tests involved cheek swabs being taken from both children.
He conceded that there were difficulties in having done this, that it was a horrible experience, but sheeted that horribleness to “having to do a DNA test on my daughter.” He then explained that he felt that he needed to do the DNA test because two individuals told him in early 2020 that X may not be his child. One of the people was his sister, who said that someone else had told her that X was not his child (and the father received a letter to that effect from the person). He then said that the other person was a close friend.
The father accepted that this was a poor decision on his part. However, his explanation as to why it was a “horrible” experience was one that involved a shift of responsibility from himself onto circumstances that meant “having to do” the test. It should not be thought that the father was subject to such a compulsion. X’s parentage did not remain in issue.
On 1 September 2020 the father and mother exchanged text messages.[8] The father accused the mother of hating him and leaving him due to his mental health, and that thoughts of the girls living with another man destroy him “inside”. The messages swing from the father expressing sorrow at his part in how the relationship ended, to rank blame of the mother. One of the messages asserted that the children had started to act differently with him, and that he was losing touch with them. He accepted that at this point he thought that the way that the girls spoke to him had changed, and that there was a loss of connection, although he denied that the children were withdrawing from him. Rather he felt like they were growing apart because he was not spending time with them.
[8] Exhibit M6.
The father accepted that in late 2020 he messaged the mother describing that he was holding a weapon. He claimed in his evidence that although he had messaged the mother in this manner, he had not actually been holding a weapon. He conceded, however, that he had taken a weapon out. He explained that he told the mother that he was holding the weapon to make her feel guilt.
At about the same time the father accepted that he had sent messages to the mother, saying that if he had his time again, he would rather commit suicide than face what they had gone through and how the mother had treated. He also expressed that he wished that he could erase her from his life for what she had done to him.
This conduct should be considered in the light of the description of suicidal urges by Dr W as set out above. It reinforces the seriousness of that assessment. It was not conduct likely to give any confidence as to the father’s stability in providing care to the children, and, as well as undoubtedly being a terrible experience for the father, constituted an act of serious emotional abuse upon the mother.
In September 2020 the children spent time with the father at his parents’ home, while on another date that month the father spent time with the mother and the children. A short time later, the children spent overnight time with the father. This constituted a significant progression in his time with the children.
Further messages in September included bitter abuse of the mother, including telling her not to contact him except in an emergency, and suggesting that she was having a man around at the home. The messages were implicitly critical. The father accepted that he should not have messaged the mother in this manner.[9]
[9] Exhibit M5; Exhibit M6.
The father also demanded that there be a fifty-fifty arrangement for the children. It was at this stage that the mother raised the prospect of facilitated handovers, as she said (not unreasonably) that she was afraid by reason of the father’s behaviour.
The father further messaged the mother in late September 2020 accepting that a previous demand for fifty-fifty time with the children was unreasonable. In the same message the father accused the mother of referring to that earlier demand as a tool to frustrate and trigger him after he had said that he was wrong.
In late 2020 Dr J recorded that the father struggled to be in the presence of the girls for more than brief periods, often needing support. The father accepted that this was the case around this time. Dr J also described to the father’s lawyers that the father was hospitalised in the context of a high-risk condition. The father said that this was a false statement by Dr J. At [172] of his trial affidavit the father said that while he has suffered passive suicidal ideation, he has never had a suicide plan, and that the ideations have not concerned any of his treatment team. In his oral evidence he maintained those statements. As noted, the father has not called any of his treating practitioners to support these contentions.
In late 2020, the father celebrated X’s birthday with the mother and Y and spent time with the children on a further ten occasions, including three single overnight occasions. The mother described that she received a call from the father each night to settle the girls who were crying and saying that they wanted to come home.
It may be observed that the mother was, at this stage, supporting and facilitating increasing time between the children and the father, in the face of ongoing abuse of her by the father in circumstances that would reasonably support her harbouring some fear of the father.
At exhibit M11, text exchanges between the parties of 13-15 October 2020 contained complaints by the father in relation to the mother having another man, asserting that he would sell the house she was then occupying, and that he would pursue a fifty-fifty arrangement for the children. It may be noted that the reference to a fifty-fifty arrangement comes in the context of the father having previously raised such, abandoned it, then criticised the mother for raising it with him as being the mother triggering him.
The messages were abusive and threatening.
In late 2020 the father messaged the mother, apologising for having been harsh in the past, and saying that if anything happened to the mother or to the girls that “words couldn’t explain the carnage and destruction that would follow.” The father did not accept that such comments might be frightening for the mother.
The messages continued to say that he would be pursuing having the girls 50 per cent of the time, and, stating that he had a high income, implicitly threatening that when “your child support payments stop think who will have custody of the girls.” He then described the mother as a “homeless, unemployed mother with a well recorded disregard for empathy and well documented cases where you’ve failed to keep the girls clean and tidy or see that they’re bathed at least once every day? You started this. I’m prepared and will finish it.” The messaging then continued with “I honestly wanted to be friends.” The father accepted that the mother may have found the messaging to be threatening and overbearing.
The messages may be considered to be bullying, overbearing, abusive and inconsistent, particularly given the father’s previous complaint that the mother had unfairly used his reference to 50-50 time against him as set out above.
Despite this ongoing abuse and the erratic demands the mother continued to facilitate the children’s time with the father.
The children spent overnight time with the father in November 2020.
The next occasion that the father and children spent time together, a trip in November 2020, appears to have been a turning point for the worse.
In the context of his ongoing abuse of the mother in relation to men, he spoke to the mother about his partner, Ms G coming on the trip. The mother messaged the father to say that the children were looking forward to spending time with him, and that having someone else there could ruin the experience and make it confusing. He accepted that the mother was upset at this prospect.
Despite this, the father attended the trip with the children, meeting with Ms G and her children. He described that they remained separate and although they all spent time together, no introductions were undertaken.
The mother says that on their return to her the children complained that the father had been busy talking to his girlfriend (who he had pretended not to know), and that the father asked them not to tell the mother about the woman. The mother says that the children expressed anger and said that they did not want to sleep at the father’s house anymore. The mother did not describe the manner of the children’s complaints, nor her responses to them.
Shortly after the children returned to the mother, the mother messaged the father in abusive terms about his having introduced the children to Ms G. She described herself as frustrated. She explained that she was furious because she felt like the father had not paid attention to the girls, that he pressured them to play with Ms G’s son, that he lied to the girls telling them that he did not know Ms G, and that he had told the girls not to tell the mother. She pointed out that the father had threatened her that he had to meet any future partner of hers prior to the children meeting him. This contrasted with his conduct in relation to the children and Ms G.
This was the last time that the children spent overnight time with the father. The mother denied that this was the point that relations between the children and the father went downhill, but that she considered that nights with the father were not “great” for the children and so she suggested that they pull back to afternoons and build it up slower.
From this point the mother asserted that the children were more resistant to time with the father. She says that it was at about this time that X started to experience panic attacks, rolling on the floor screaming, crying, hyperventilating and scratching her face in the days leading up to scheduled time with the father. The mother says that X would say that she did not want to go with the father. She further describes that X would refuse to put her school uniform on and go to school on days that she was due to see the father. The mother did not describe any response on her part to such asserted behaviour, nor, at that point, did she secure professional help for X.
In November 2020 the parties exchanged text messages in which the mother asserted that the children would be spending afternoon time with the father until they became more comfortable with him.[10] She said that the children did not want to stay overnight. The father’s response to this was abusive, including threatening that he was able to walk into the home occupied by the mother “now.” The mother, in part, complained that the father had spent the trip with his girlfriend, and told the children not to mention it. This is indicative that the trip was still prominent in the mother’s thinking. The father threatened to create a scene at the children’s school, and to attend and collect them there. The father accepted that his manner of messaging the mother was abusive.
[10] Exhibit M13.
It is unclear why the mother placed such emphasis on the father’s introduction of the children to Ms G.
The father continued to spend reasonably regular time with the children, albeit not overnight.
The father spent time with the children on seven occasions during December, including Christmas day. He saw them on four occasions during January.
An incident was raised in relation to the children’s time with the father on 2 February 2021. The mother says that X told her that the father had refused to leave the bathroom while she undressed, saying “I am your dad so I am allowed to look.” The mother did not disclose in her affidavit how the conversation started, and could not recall how she responded, although she describes that X returned from the father’s home saying that she did not want to go back there.
The mother, in her evidence said that she was not implying that the father’s conduct was sexual, but that it appeared controlling, was inappropriate, and there was a chance that it might have been. She said that she felt that she had to raise the incident with someone. The mother subsequently attended the GP for advice, and then took X to an appointment the GP. The mother was in the room with the GP when it was discussed with X.
During the consultation with the GP X responded “yes” to a screening question as to whether she would want harm to come to her father.
The father described that he walked in on X when she was undressed. He described being startled and said something to the effect that he had seen her before as her dad. The incident was not pursued as of significance during the hearing, despite the mother’s earlier concentration on the incident as indicative of abuse.
No conclusion should be reached that this incident is indicative of a sexual abuse risk. Rather it bears the hallmarks of an awkward, uncomfortable exchange on the father encountering an undressed X.
The mother says that in February 2021 X had a meltdown, screaming that she did not want to see the father, and saying that she did not understand why the mother was making her do so. The mother arranged for X to see a doctor (as referred to above).
The mother says that she was contacted in February by X’s teacher who said that X was refusing to go with the father. The mother says that X then started having nightmares about the father and refusing to get changed into her school uniform on days that she was due to see the father. The mother did not identify her responses to X’s behaviour.
The father spent time with the children on six occasions during February and then twice in March 2021.
During March the father reported to his psychologist Ms L that he had experienced feeling suicidal for a period of five days.
X’s teacher recommended seeing the school psychologist. Following seeing Dr BB (who she described as X’s psychologist) in March 2021 the mother proposed a further change in the time that the children spent with the father, proposing that they spend time with him each alternate weekend. Although the mother says that the children adjusted better to this arrangement, she described that the children continued to show severe anxiety in the days leading up to visits, crying often, appearing flat in mood and asking why they had to spend time with him. The mother says that the children would ask her to double check that the doors of the house were locked.
These responses were described in only general terms by the mother. The frequency, duration, or even which of the children behaved in a particular manner were not described other than generally. The mother’s response to the children was not described.
The father describes that in March 2021 he received a call from X where X said that she never wanted to see him again.
The mother says that X kept a diary of her feelings about seeing the father. In that diary she expressed that she hated the father.
In April 2021 the mother and children were at the coast for an Easter holiday. The father messaged the mother “You are not in [City P]! You’ve gone to Victoria and haven’t even told me...This is unacceptable and I don’t agree to let you leave.” The mother, reasonably, described feeling very controlled by the father as a result of this message.
The mother complained that the father’s partner, Ms G, sent her a number of messages asking for the father to spend more time with the children.
The mother says that in April 2021 the children returned from time with the father, saying that he had bought them journals and told them to draw pictures of having fun with the father and write about having a great day with him. The mother considered it likely that the father had done as described. She says that the children again said that they did not wish to spend time with the father anymore. The mother said that she did not recall how she reacted to this in terms of encouraging the children to spend time with the father.
The mother accepted that she was unable to say that each time the children have said something negative about the father that she has made the effort to say something to encourage their relationship with him. She did not give adequate evidence as to her responses to the children’s asserted behaviour in relation to the father.
In early 2021 an incident involving the father and mother, and then the mother and Ms G occurred at the mother’s home. The father attended at the mother and children’s home to collect the children. The mother says that the children refused to leave with him.
He says that the mother abused him, firstly in relation to his engagement of lawyers. He says that he went to leave and the mother yelled at him to take the girls, so he went back towards them. He says that the mother then shut the front door of the home, through which he asked if he was taking the girls. He again went to leave and says that the mother let the girls out and said that “the police will come and take you.” He says that the mother approached him and asked if he had said that she was a “facetious bitch”. When he said he had not, he alleges that she said that he had, and that he could not say that she was “psychologically traumatising them [the children]” and knocked his phone from his hand. He says that a neighbour then attended.
At the trial the father produced a recording of a part of the interaction between himself and the mother, explaining that he recorded the interaction as he did not feel safe. The children were both present during the recording.
The recording commenced with the mother walking toward the father across the front lawn of the home. At that point the children were with the father, and X appeared to be upset. The father was walking with the children back towards the mother, describing them to the mother as “crying children”. The mother appeared upset. She is recorded as saying that the father could not call her a “facetious bitch” or say that she was psychologically traumatising the children. The father appeared to respond that he had not called her a bitch. She then pushed the phone which fell onto the ground.

The father said that the precursor to the footage was an argument, and then the mother screaming at the father.
The mother’s account was that the father attended the home, referred to the mother as a “facetious bitch” and asserted, when the children did not want to go with him, that it was because the mother was “psychologically traumatising” them. The mother says that she was crying, shaking and feeling hysterical at this abuse, and that she went to take the children inside the home. The mother says that she approached to take the children and said that the father could not call her a “facetious bitch” and that the father raised his phone to her face. She said that she pushed it away and he accused her of breaking it.
The footage does not resolve who the instigator was. It demonstrates, however, that the parents approached each other and exposed the children to heightened conflict.
The father describes that he left in a distressed state without the children and shortly thereafter saw Ms G. He says that he did not tell Ms G what had occurred, but that she left and returned ten minutes later, and later that evening told him that the mother had said impolite things to her, and that she had reacted saying things to the mother that she should not have.
Ms G explained in her evidence that given the upset appearance of the father she went to the mother’s home to check that the children were ok. It should be noted that Ms G and the mother had not met at this stage, although Ms G had sent the mother multiple messages seeking to arrange further time between the father and the children. She described that she knocked on the door and tried to persuade the mother to let the children visit the father. She said that a neighbour approached the front door and that the mother started to cry. Ms G described that this may, or may not have been the mother “putting it on.” Ms G accepted that after the neighbour left there was a significant outburst, where Ms G was swearing. She said that she was not in control of what she was saying to the mother, although she asserted that she was able to control the volume. She did not think that the children heard the exchange, but accepted that if they did it would have been distressing for them. She accepted that it would have been distressing for the mother.
During the exchange the mother accused Ms G of stalking her, which the mother accepted was not deescalating. She accepted that she was firing back at Ms G.
The mother alleges that following this incident Y refused to sleep in her bedroom for at least six months out of fear that the father or Ms G would break into the home and take her. The mother said that she considered this as a normal response. She did not take Y to a psychologist to discuss it. She accepted that this was a weakness in her parenting. She accepted that she cannot have been too concerned about Y’s response. If this was Y’s reaction, then the mother’s response to it is difficult to understand.
Following this incident, the mother’s lawyers wrote to the father asking that Ms G not be present during the father’s time with the children.
On one occasion, when the father attended for an arranged time with the girls at McDonalds Ms G was already in attendance with her mother, proximate to where the father met with the mother and children. Ms G described that she attended the venue to be a support for the father given the allegations in relation to him. It was uncontroversial that Ms G was wearing glasses, a wig and face mask. It should be noted that Ms G has a health condition.
The mother alleges that Ms G video recorded the children, leaving them “incredibly traumatised” and not comfortable staying at their home for a number of weeks. When asked about this response, the Court Child Expect (“the CCE”) regarded this as an extreme reaction.
The mother says that in April 2021, X said that she never wanted to see the father or Ms G again.
Again, it is not clear what the mother did to support the children if this was indeed their response.
The mother describes that in April 2021 Y told her, following a lesson, that the father had attended the lesson and demanded that Y say “hello” to Ms G, and raised his voice at her when she resisted. The mother says that Y was crying when describing this to the mother. The mother described no comfort offered by her to Y.
The mother says that in May 2021 the father came to the house to collect the children. The mother says that she sent them out to the car, but they refused to go and the father sent them back in. The mother did not describe either what had led up to this, nor her encouragement of the children to go with the father. The mother asserted that this occurred on about half of the times that the children were to go with the father. She describes the children saying that they were recorded by the father, and that he had told them that they were being unfair to him and asking if the mother had told them to say this (presumably that they did not want to go). Again, the mother failed to describe the circumstances leading up to such refusals, or her response to the children following a refusal.
The father’s manner of engagement, and involvement of Ms G were not of a nature conducive to encouraging the children to spend time with him. At the same time there can be no confidence that the mother was, by this stage, actively encouraging and supporting the children in their relationship with the father.
In mid-2021 the father and Ms G began a period of cohabitation that ultimately ended in about late 2022. They remain in a relationship with no plans to recommence cohabitation.
Exhibit ICL2 contains notes authored by X that indicate a poor view of Ms G, although it is unclear how or why X wrote such notes. X appears to describe Ms G as stupid, horrible, dumb, idiot, weirdo and “the worst.”[11]
[11]Exhibit ICL2.
On 28 June 2021 the father commenced proceedings seeking, in general terms, an equal sharing of parental responsibility and a week about arrangement.
The father says that he saw the children on about nine occasions between April and September 2021.
The father says that in July 2021 X said to him that her psychologist said that she did not need to spend time with him.
The mother described that Y and X refused to go with the father in August 2021.
The mother described that the father returned the children early in September 2021 due to their level of distress.
On 30 September 2021 consent orders were entered into that provided for family therapy and for the father to spend time with the children each second Sunday afternoon.
The mother described that she caused the children to attend family therapy, but that the children complained that they did not like the therapist, and that she did not listen to them. Although they said that they would not see her again, the mother described that she continued to take them. She describes that the children were quiet and withdrawn after sessions with the therapist, and that after it had ended, they said that they did not want to see a psychologist again.
The mother says that for a number of months the children refused to leave with the father. Although the parties attempted to shorten the time so that the children merely spent time with the father at McDonalds, the mother says that the children would not tolerate her leaving them.
This continued through to June 2022, with the children and the mother attending the handovers, but with the mother not leaving until the children had said that they did not wish to go with the father. The mother accepted that on a number of occasions she has attended the changeover with the children under her arms, the children saying that they did not want to go, and the mother saying nothing. When asked about this approach by the mother, the Court Child Expert (CCE) who prepared the Child Impact and Family Reports accepted that this gave the children the power to choose whether or not to go, and to choose the relationship that they would have with the father. The CCE further considered that this was probably the opposite of encouraging the children to go with the father. The CCE considered that this was consistent with the mother not intending to encourage the children, or not having insight into what would encourage them or not being able, in that moment, to encourage them in their relationship with the father.
The mother accepted that by 2022 there had been a change in the manner in which the father communicated with her, illustrated by the lack of production of troubling text messages from this point onwards.
A Child Impact Report (“the CIR”) was prepared on 24 May 2022, following meeting with the parents, and with X and Y a few days earlier.
The CIR noted that despite orders for the children to spend weekly day time periods with the father they had recently been only meeting him at handover and then refusing to spend the time with him. The children then described a close and positive relationship with the mother, but with X (then aged 9) referring to the father as “[Mr Morishita]” at times and describing him as “yelly and mean.” X described being “very scared” of the father, that he might hurt them or “go crazy,” although she acknowledged that such had not happened in the past.
The children were both observed to be adamant that they did not wish to spend time with the father. X expressed that she wished to forget the paternal family, as they were “greedy and selfish” although she could not say why.
Each of the parties alleged then that the other had perpetrated family violence upon them, with the mother further alleging, in the context of the shower incident that the father presented a risk of sexual abuse.
Given the high degree of anxiety observed in the children regarding spending time with the father the CCE recommended engaging the children with a psychologist. While the mother said that this would be helpful for X, she considered that X, given the poor experience with family therapy, would be unlikely to attend, in which case the CCE recommended that the mother attend a psychologist to develop strategies to assist X.
The mother did not follow either of these recommendations.
The CCE advised that although the children were able to express their wishes, at their stage of development they were unlikely to understand the long-term implications. She considered that X’s view was linked to anxiety, and that ceasing contact with the father may increase X’s fear.
The CCE recommended, in the context of the children’s refusal, that the time with the father take place in a supervised environment such as E Family Services, on a fortnightly basis.
The father did not accept that X’s expression to the CCE was a true representation of X’s feelings towards him. Similarly, although the father accepted that X had written hostile things about him as contained in exhibit ICL3, including that the father is her enemy, that he is “dum”, “stupid”, an “idiot” and that “I absolutely hate [Mr Morishita]”, he did not accept that these represented how X truly feels about him. He did however accept that, as described by X, he had punched holes, yelled and that he had weapons stored at the house.
Consistent with the recommendations by the CCE, consent orders were made by a Judicial Registrar on 22 June 2022 that the children spend time with the father supervised by F Family Service Supported Contact Program (once the intake process had been undertaken).
In July 2022 Dr J stopped treating the father.
The father asserted that Dr J ceased seeing him due to a complaint made by the mother about something Dr J had written in a report. However, he also accepted that Dr J had written giving three other reasons, being the desirability of the father seeing a more local practitioner, that she had exhausted all of her treatment options, and a suggestion that the father see a Dr N in relation to a particular treatment.
Despite Dr J’s explanation, the father maintained that the mother was to blame for the cessation of treatment by Dr J.
The father says that Dr J provided a letter in support of the father’s access to weapons. The letter was not tendered.
At visits scheduled in July and in August 2022, facilitated through E Family Services, the children refused to transition to the father.
The visit at E Family Services in August 2022 lasted 28 minutes before X asked to return to the mother. The father accepted that the circumstances suggested that X was not comfortable. He accepted that while Y was engaging with him, X was not.
The last occasion that the children and father had face to face time was in September 2022. The father acknowledged that X was disengaged from him on this visit. He described that he gave her space, understanding that X was not in the mood to talk with him. The father thought that X’s response to him was influenced by the mother.
The E Family Services record from this visit indicated that X required some convincing to participate in the visit.
Although further attempts were made via E Family Services in September, on two dates in October, in November and in December 2022, the children refused on each occasion, leading to E Family Services discontinuing the service.
In early 2023 E Family Services wrote to the father terminating the service, on the basis that the children had declined the previous five visits, and that there had been a total of eight refusals by them.[12] The father accepted that the children had expressed their desire not to attend the visits but did not accept that this constituted their “genuine thought.”
[12] Exhibit ICL 4.
The mother accepted that the occasions when the father was due to spend time with the children, but the time did not happen, could have been “quite triggering” for the father. She accepted that despite this there were no incidents of abusive text messages or verbal or other violence on the part of the father.
The father commenced seeing another psychiatrist, Dr K in late 2022. He did not however consider that she would be helpful to him and so his engagement with her was brief.
A reporting letter from Dr K to the father’s general practitioner in late 2022, indicated diagnoses of mental health disorders and PTSD.[13] A suite of current medications were identified that the father was recommended to continue. Suicidal thoughts were noted, although neither intent nor plan was expressed. Hopelessness was noted. Despite this assessment the father did not consider that his mental health is poor.
[13] Exhibit M1.
Ms L wrote a report that appeared directed to the father’s workers’ compensation claim in early 2023.[14] She described that the father was diagnosed with PTSD and mental health disorders. She described that his “psychiatric conditions are chronic and fluctuate from moderate to severe.” She noted that there has never been a prolonged period of stabilisation. Further she described that the father experiences “recurrent intrusive memories of traumatic incidents”, has nightmares regarding such, and experiences psychological distress when exposed to cues that remind him of the traumas. When not doing well, the father “experiences dissociative symptoms and feels detached from others,” at which times he feels more irritable and his hypervigilance increases.
[14] Exhibit M3.
The father accepted that, as at early 2023 and at the time of trial, he experienced these symptoms.
A referral letter from the father’s general practitioner of early 2023, apparently directed to Dr K (although the father thought that it may have in fact been sent to another practitioner, but misdescribed as to Dr K), described the father as having “been diligently attending treatment, with involved lifestyle, psychological and pharmacological since (2017) without much benefit”.[15]
[15] Exhibit M2.
A Family Report was prepared on 28 April 2023 by the same CCE who had prepared the CIR. By this stage the children had not spent any time with the father since 11 September 2022, refusing to spend time with the father on subsequent occasions until late December 2022.
The family report was limited by the children’s refusal to take part in an observation session with the father.
X (then aged 10) again described a positive relationship with the mother, but that the father was “mean” and “scary,” expressing fear in relation to the visits at E Family Services, that he may yell at or hurt her, despite the father not having behaved in such a manner whilst at E Family Services. She reported memories of being chased by the father and of feeling scared. She further described having been recorded by the father, that he had attended the home and yelled at the mother, that he had attempted to break into the home previously, and that his girlfriend (Ms G) had attended the home and sworn at the mother. X asserted that she would be happier without any contact from the father, describing that she considered that “[Mr Morishita]” would be unable to change.
Y (then aged 8) also described the mother positively. She described her recent visits with the father as “ok”, parts “good’ and parts “scary” but that the children had ceased to attend as they had stopped enjoying it. She said that she would choose not to see the father, describing that she felt “scared and sad” when seeing him, despite also describing that previous visits at McDonalds had been “between scared and happy.” She could not identify why she was scared.
X cried at the prospect of an observation with the father. Y was open to one if the mother was present, an arrangement that was not appropriate given the dynamic between the parents. No observation with the father took place.
In evaluating the circumstances the CCE observed that the children had been exposed to the conflict between the parties, and that such exposure can have “significant and long lasting effects on children, including on their emotional and social development, and their relationships with both parents.”[16] She considered that X’s description of frightening situations involving the father would have been highly distressing, and appeared to have created ongoing anxiety for X in relation to risks posed by the father.
[16] Affidavit of the father filed 27 September 2023, [79].
The CCE noted that if the mother had been subjected to abusive and controlling behaviour by the father, such would raise concerns for her regarding the risks to the children, and that the mother would be benefitted by limiting her involvement with the father. If the children experienced the father as aggressive and volatile, such would make it difficult to trust that they are safe with him.
If, however, the father’s account of the mother as having perpetrated family violence, and having behaved in a controlling and manipulative manner was accepted, then the CCE considered that the mother’s parenting capacity was compromised and that it became particularly important for the children to be connected to other safe adults. However, the CCE considered that the description given by the father of the mother was at odds with the description given by the children of the mother as calm and emotionally supportive. The CCE identified that as the children become older and exercise autonomy, if the mother does behave in the claimed vindictive manner, then the children risk being exposed to such and suffering psychological harm, and at risk of fracturing of their relationship with their only (then) key adult.
If, however, the mother’s conduct was seen as responsive to the father behaving in an inconsistent, frightening and abusive manner, then such a response could be characterised as self-protection and protection of the children, but not necessarily representative of the manner of the mother’s dealing with the world in general.
The CCE considered that the parents have demonstrated no capacity for joint decision making. She placed a significance upon shielding the children from conflict between the parents.
The mother told the CCE that she considered that the father was a pathological liar, that he was playing down his mental health issues, and that he had lost touch with reality. Significantly, the CCE considered that this represented a highly negative view of the father, and one that would be difficult to conceal from the children. She considered that exposure to such a view potentially would have a corrosive effect upon the children’s mental health, and potentially erode their trust of, and sense of safety around the father.

(a)Inform the mother, in writing, of any decision to be taken at least 14 days before the decision is required.
(b)Invite the mother’s views regarding the decision to be made, to be provided in writing.
(c)Give proper consideration to the mother’s views; and
(d)Inform the mother, in writing, of the decision within 48 hours of it having been made.

3.The children shall live with the father.
4.Both parents are restrained from discussing the Orders of the Court with the children, or doing so in their presence, or allowing any person to do so, except to inform them that, for a time:
(a)The children are to live with the father.
(b)The children will be in regular contact with the mother; and
(c)The mother will be undertaking some support treatment.

5.The father is to bring the children to the Registry for the purpose of having a Child Court Expert undertake a general discussion with the children about their general living situation and the “spend-time-with” arrangements with the mother.
6.The children shall spend time with and communicate with their mother as follows:
(a)For a period of 1 month from the date of these Orders, the mother may call the children once per week, with the day and time to be agreed in writing between the parties, and the children may call the mother for a maximum of two additional times per week at their request, with such calls to be facilitated by the father.
(b)Following the expiry of the period set out in 6(a) above, for a period of 1 month, the mother may spend up to 6 hours with the children one day each weekend, with the day and time to be agreed in writing between the parties, by such time must be supervised by an independent person (or organisation) and a brief report is to be provided to the Independent Children’s Lawyer and the Court by the supervisor after each session.
(c)Following the expiry of the period set out in 6(b) above, for a period of 6 months, the children are to spend time with the mother one overnight each alternate weekend with the day and time to be agreed in writing between the parties.
(d)Following the expiry of period set out in 6(c) above, for a period of 3 months, the children are to spend each alternate weekend with the mother from after school Friday until 4:00pm on Sunday: and
(e)Following period set out in 6d. above the children are to spend each alternate weekend with the mother from after school Friday until before school Monday (or Tuesday when a public holiday occurs), and half of the school holidays.

7.The father shall arrange and facilitate, at his expense, therapeutic counselling and assistance for himself and the children to help them cope with the transition of the children into his care for such period of time as the counsellor recommends.
8.The mother shall arrange, at her expense, and participate in psychological counselling for herself of a period of no less than 12 months with sessions not less than once per fortnight or as recommended by the treating psychologist. Within 1 month of the date of these Orders the mother is to provide details regarding the relevant arrangements she has made to the Independent Children’s Lawyer and the Court.
13.Subject to 6e, the children spend time with the Father for one half of all gazetted school holiday periods, being the first half in odd-numbered years and in alternate years thereafter and the second half in even-numbered years and in alternate years thereafter; and that any provision for time that is inconsistent with school holiday time be suspended during gazetted school holiday periods.
14.That in all even-numbers years the children spend time with the father from 12 noon Christmas Eve until 12 noon Christmas Day and that the children spend time with the Mother from 12 noon Christmas Day until 12 noon Boxing Day.
15.That in all odd-numbered years the children spend time with the Mother from 12 noon Christmas Eve until 12 noon Christmas Day and the children spend time with the Father from 12 noon Christmas Day until 12 noon Boxing Day.
16.That the children spend time with the Father from 9:00am to 5:00pm on Father’s Day and that any provision for time under this order that is inconsistent with this paragraph be suspended to facilitate time under this paragraph.
17.That the children spend time with the Mother from 9:00am to 5:00pm on Mother’s Day and that any provision under this Order that is inconsistent with this paragraph be suspended to facilitate time under this paragraph.
18.That the children spend equal time with the Mother and the Father on the children’s birthdays; the Mother’s birthday; and the Father’s birthday at times to be agreed between the Mother and the Father and failing agreement the children shall spend time with the Father from 1:00pm until 7:00pm and with the Mother at all other times on those days; and any provision of time under this order that is inconsistent with this paragraph be suspended.
19.That unless otherwise agreed, the Mother shall be responsible for collecting the children from their school at the beginning of her time with the children and returning the children to their school at the commencement of the school day on the final day of her time with the children.
20.That unless otherwise agreed, the Father shall be responsible for collecting the children from their school at the beginning of this time with the children and returning the children to their school at the commencement of the school day on the final day of his time with the children.
21.That if the changeovers/handovers cannot occur at the children’s school, then the changeovers are to occur at the supervised changeover services at E Family Services.
26.That each party is hereby authorised to obtain from the children’s school all notices, letters, school reports and invitations to attend parent teacher interviews or other activities to which parents are invited.
27.That each party is hereby authorised to obtain from the children’s respective medical providers any medical records and that both parties are authorised to discuss the children’s medical issues with any treating practitioner.
28.That the parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
29.That for the purpose of communicating information between the parties the Mother and Father shall communicate by writing in a communication book that will remain with each child wherever they may be from time to time.
30.That the parties be restrained by injunction from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children.

In the alternative to 1 to 8 above:
31.The Parties have equal shared parental responsibility in relation to X, (“X”) born 2012, and Y, (“Y”) born 2014 (“the children”).
32.The children live with the mother.
33.The children spend time with the father from Friday after school to Wednesday before school every alternate weekend.

Property Orders
34.That the Suburb D property be sold.
35.That from the net proceeds from the sale of the Suburb D property, the Husband receives an amount that equals 65% and the Wife 35% calculated as follows:
(a)In accordance with the following formula: A = D (B+C) - E to the Husband
A = The amount from the net proceeds of sale the parties the Husband is to receive
B = The value of all other property in the parties’ names
C = The net proceeds of sale
D =The Percentage (%) the Husband is to receive NOTING that the Husband is seeking 65%
E = The value of the property the Husband has under his name and control, EXCLUDING his superannuation

(b)The balance to the Wife

36.That the Husband shall retain the following:
(a)Motor Vehicle 2
(b)Motor Vehicle 3
(c)The trailer
(d)Funds in his Bank accounts
(e)His superannuation benefits

37.That the Wife shall retain the following:
(a)Motor Vehicle 1
(b)Funds held in her Bank accounts

Respondent mother’s orders sought
Case outline document filed 26 October 2023 (as to property)
PROPERTY ORDERS
Sale of Property
12.Within 120 days of the date of these Orders (“the Due Date”), the parties do all such acts and things and sign all necessary documents to list the property known as C Street, Suburb D, Region B (“the Suburb D Property”) for sale.
13.For the purposes of Order 12 above:
(a)The parties place the Suburb D Property with an agent for sale to be agreed between the parties or in default of agreement with an agent ("the Agent") nominated by the President of the Real Estate Institute of Region B.
(b)The market value of the property be as agreed between the parties or failing such agreement as determined by a valuer nominated by the President of the Real Estate Institute of Region B, such determination to be paid for equally by the parties.
(c)If the Suburb D Property is not sold within three months of the Due Date or if the Suburb D Property is sold and the sale subsequently does not proceed to completion the parties do all things necessary to offer the Suburb D Property immediately for sale by public auction by the Agent, the reserve price being the market value determined in accordance with Order 13(b).
(d)The parties execute all documents requested by the Agent as auctioneers for the sale of the Suburb D Property by auction.
(e)The parties execute a contract of sale.
(f)The parties cooperate in every way with the Agent in relation to the auction of the Suburb D Property including making the keys available for an inspection of the Suburb D Property at times requested by the Agent and ensuring that the Suburb D property is in a clean and neat condition at the time of inspection by the prospective purchasers.
(g)If the Suburb D Property is not sold at the auction within 21 days thereafter the parties shall meet the market price and sell the Suburb D Property at the best price, then obtainable and as determined in accordance with Order 13(b).

14.That parties do all things necessary to cause the proceeds of the sale of the Suburb D Property to be distributed as follows:
(a)To pay all costs commissions and expenses of the sale.
(b)To pay the usual rates adjustment.
(c)To pay the amount required to repay the loans secured by way of mortgage against the Suburb D property.
(d)To pay the balance then remaining as follows:
a. If the balance is $657,136 or less, the balance to the Respondent.

15.If the balance is more than $657,136, the sum of $657,136 to the Respondent and the remaining balance over $657,136 to be divided as to 65% to the Respondent and 35% to the Applicant.
16.That the liberty be reserved to either party to apply to the Court on seven days' notice to the other with respect to the terms and conditions of the sale.
17.That from the date of these Orders until completion of the Suburb D sale:
(a)The Respondent have the sole right to occupy the Property.
(b)Neither party shall mortgage or otherwise offer the Property for security.

Superannuation Splitting Payment
18.That the Applicant is restrained from reducing the total amount of superannuation in his Superannuation Fund 1 interest to below $250,000 until such time as Order 20 has been implemented.
19.Orders 3-6 of the Orders dated 19 October 2022 ("superannuation flagging orders"), are hereby discharged.
20.That in accordance with section 90XT(l)(a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment within the meaning of Section 90XE of the Act becomes payable to or on behalf of MR MORISHITA from his interest in the Superannuation Fund 1 (“Superannuation Fund 1”), MS VARTARIAN is entitled to be paid by the Trustee of the Superannuation Fund 1, the S Corporation (“the Trustee”), the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $200,000 and that there be a corresponding reduction in the entitlement MR MORISHITA would have had but for this order.
21.The operative time for Order 20 be four business days after the service of a copy of the original final sealed Orders on the Trustee.
22.That Orders 20 and 21 bind the Trustee of the Superannuation Fund 1.
23.IT IS NOTED: The parties note that this Order, and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations 2001 which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.

Other Property Orders
24.That except as otherwise provided for in these Orders, the Applicant shall retain his right, title and interest, and be as against the Respondent, the sole, legal and beneficial owner of the following:
(a)His Motor Vehicle 2.
(b)His Motor Vehicle 3.
(c)The trailer.
(d)Any savings in his name.
(e)Any furniture and effects in his possession, custody or control.
(f)His superannuation benefits and entitlements held with Superannuation Fund 1.
(g)All other property currently in his possession, or control.

25.That except as otherwise provided for in these Orders, the Respondent shall retain her right, title and interest, and be as against the Applicant, the sole, legal and beneficial owner of the following:
(a)Her Motor Vehicle 1.
(b)Her entitlements with E Financial Services and Commsec.
(c)Any savings in her name.
(d)Any furniture and effects in her possession, custody or control.
(e)Her superannuation benefits and entitlements held with Superannuation Fund 1.
(f)All other property currently in her possession, or control.

26.Except as otherwise provided for in these Orders, the Applicant shall be solely responsible for and shall indemnify the Respondent in relation to all liabilities in his sole name.
27.Except as otherwise provided for in these Orders, the Respondent shall be responsible for and shall indemnify the Respondent in relation to all liabilities in her sole name.
28.That from the date of these Orders and unless otherwise specified in these Orders, except for the purposes of enforcing payment of monies due under these Orders:
(a)Each party be solely entitled to the exclusion of the other to all property (including choses in action) and personal possessions or items of furniture, personalty and/or chattels in the possession of such party at the date of these Orders;
(b)Money standing to the credit of the parties in any bank account shall remain the property of the party in whose name such bank account is held;
(c)Each party forego any other claims he or she may have to any superannuation interests or benefits belonging to or owned by the other;
(d)Insurance policies remain the sole property of the beneficiary named therein; and
(e)Each party be solely liable for and indemnify the other against any liability currently standing in their sole names or liability encumbering any item of property to which the party is entitled pursuant to these Orders.

Procedural Orders
29.That each party shall do all acts and things reasonably required by the other, including the signing or execution of all necessary documents, to give effect to the provision to these Orders within 14 days of written request to do so.
30.That if either party refuses, fails or neglects to sign or execute and return the document within 14 days of written request to do so pursuant to these Orders, then the Judicial Registrar, Deputy Registrar or any other Officer of the Registry of the Federal Circuit and Family Court of Australia is hereby appointed under Section 106A of the Family Law Act 1975 (Cth) to execute or sign such document on behalf of that party upon lodgement of such document and the filing of an Affidavit by the requesting party as to the neglect or refusal.

Independent Children's Lawyer’s orders sought
Parental Responsibility
1.The Respondent Mother is to have sole parental responsibility for the children X born 2012 and Y born 2014.
2.For the purpose of Order 1 above, the Mother is to:
(a)Notify the Father of any proposed long term decisions to be made in relation to the children by email not less than fourteen (14) days prior to making any long-term decisions;
(b)Within seven (7) days of receiving the Mother’s email referred to above in Order 2(a), the Father is to provide any views as to the proposed long term decision to be made;
(c)The Mother is to consider any views expressed by the Father in relation to her proposed decision; and
(d)Notify the Father in writing once she has made a final decision.

Live with
3.The children are to live with the Mother.
4.For the purpose of Order 3 above, the Mother is permitted to relocate the children’s residence to Victoria no earlier than 20 December 2023.

Time and Communication
5.The children are to spend time with the Father in accordance with their wishes, or as otherwise agreed between the parents.
6.The children are to communicate with the Father in accordance with their wishes, or as otherwise agreed between the parents.
7.For the purpose of Orders 5 and 6 above, should either of the children express a wish to spend time with or communicate with the Father, the Mother is to facilitate such time and/or communication.
8.The Mother is to provide the Father with an address to which the Father may send the children cards and/or gifts for their birthdays and Christmas.

Information Sharing
9.The Mother is to provide the Father with an update by email as to the children’s circumstances once per month.
10.In the event that either child suffers an illness or medical emergency that requires immediate medical attention whilst in either parent’s care, that parent will as soon as practicable:
(a)Advise the other parent of the nature of the child’s condition including any diagnosis, treatment and prognosis;
(b)Advise the other parent of the full name and contact details for any health care practitioner or facility the child may attend upon for assessment or treatment;
(c)Authorise the health care practitioner or facility to contact the other parent in relation to the child’s diagnosis, treatment and prognosis and provide to the practitioner or facility with the other parent’s contact telephone number and email address to facilitate the same.

11.The Mother shall do all such things as are necessary to authorise the Father to receive a copy directly from the school the children attend, all information and documents (at the Father’s own expense) ordinarily made available to parents of children attending the school, including but not limited to school reports, newsletters, and photo order forms.
12.For the purposes of communication between the parents, the parents are to keep each other informed of their email addresses and mobile phone numbers and are to advise one another of any changes to these details within 48 hours of the change occurring.

Overseas Travel
13.Pursuant to s.65Y(2)(b) of the Family Law Act 1975, the Mother has leave to take the children outside of the Commonwealth of Australia provided that she gives notice to the Father of her intended departure and re-entry dates in writing no less than 28 days prior to departing Australia.

Passports
14.Pursuant to s.11(1)(b)(i) of the Australian Passports Act 2005, the Mother is permitted to apply for or renew a passport for the children, without the consent of the father.

Change of Name
15.The parents are to do all things and sign all documents as required by the Births, Deaths and Marriages Registry to change the children’s names as follows:
(a)X to X Morishita-Vartanian; and
(b)Y to Y Morishita-Vartanian.

16.For the purpose of Order 15 above:
(a)The Mother will provide to the Father’s solicitor a signed Change of Name form for each child within 14 days from the date of this order;
(b)The Father will sign the forms and return them to the Mother’s solicitor within 14 days from receipt of same, and
(c)The Mother will lodge the forms with the Registry office as soon as practicable thereafter.

17.The Mother will be responsible for the payment of any application fees associated with changing the children’s names.
18.In the event of non-compliance with Order 14 above, a Judicial Registrar may sign the necessary documents on either parent’s behalf pursuant to s.106A of the Family Law Act 1975 (Cth).

Restraints
19.Pursuant to s.68B of the Family Law Act 1975 (Cth) each parent is restrained from:
(a)denigrating the other parent, the other parent’s partner, or their extended family in the presence or hearing of the children and shall use their best endeavours to ensure that no other person does so either;
(b)discussing these court proceedings with or in the presence or hearing of the children and shall use their best endeavours to ensure that no other person does so either; and/or
(c)physically disciplining the children.

File number(s):	CAC 1369 of 2021
Judgment of:	GILL J
Date of judgment:	23 February 2024
Catchwords:	FAMILY LAW – PARENTING – Both parties seeking sole parental responsibility – Where the father has been diagnosed with PTSD and a major depressive disorder as a result of workplace-related injuries – Parenting capacity – Nature of the relationship between the father and the children – Whether the mother has undermined the relationship between the children and the father –Emotionally abusive conduct by the father directed to the mother – Where the father accepted that the children and the mother had experienced him as frightening at times – Children resistant to time with the father – Failure of supervised time – Where the parties do not have a working coparenting relationship – Sole parental responsibility – Children to live with the mother – No order for time with the father. FAMILY LAW – PROPERTY – Where the father has been declared totally and permanently incapacitated and is receiving various payments following his medical retirement – Characterisation of these payments – Impact of reduction in super balance on the father’s payments – Father’s payments do not allow him to accumulate superannuation – Consideration of present and future needs – Global division 55/45 in favour of the mother – Father resistant to splitting of his superannuation interest – Mother seeking splitting of superannuation at less than 55/45 – Balance of adjustment from current assets – Difference in characteristics between superannuation and current assets.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA, 65Y(2)(b); 90SF, 90SM & 90XT Family Law (Superannuation) Regulations 2001 (Cth) Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 21
Cases cited:	Archer v Comcare (2000) 101 FCR 30 Bevan & Bevan [1993] FamCA 95 Dickons & Dickons (2012) 50 Fam LR 244 Eastley & Eastley [2022] FedCFamC1A 101 Grier & Malphas (2016) 55 Fam LR 107 Isles & Nellisen [2022] FedCFamC1A 97 Marsden & Winch (No 3) [2007] FamCA 1364 Mazorski v Albright (2007) 37 Fam LR 518 Stanford v Stanford [2012] HCA 52 Trevi & Trevi [2018] FamCAFC 173 Welch & Abney [2016] FamCAFC 271
Division:	Division 1 First Instance
Number of paragraphs:	368
Date of hearing:	31 October 2023, 1-2 November 2023, 27-29 November 2023 and 1 February 2024
Place:	Canberra
Counsel for the Applicant:	Mr Haddock
Solicitor for the Applicant:	Gabbedy Milson Lee
Counsel for the Respondent:	Dr Behrens
Solicitor for the Respondent:	Neilan Stramandinoli Family Law
Counsel for the Independent Children's Lawyer:	Ms Yu
Solicitor for the Independent Children's Lawyer:	Infinity Legal

CAC 1369 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR MORISHITA Applicant
AND:	MS VARTANIAN Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	GILL J
DATE OF ORDER:	23 FEBRUARY 2024