Obando & Obando
[2024] FedCFamC1F 461
•10 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Obando & Obando [2024] FedCFamC1F 461
File number: SYC 924 of 2020 Judgment of: MCCLELLAND DCJ Date of judgment: 10 July 2024 Catchwords: FAMILY LAW – PARENTING – Best interests of the child – Where both children have autism spectrum disorder (“ASD”) and global developmental delay – Where the eldest child is 13 years old and has been diagnosed with ASD level 3 – Where the father does not accept that the youngest child has ASD level 2 – Both children require significant support to meet their neurodiverse needs – Where the children enjoy spending time with both parents – Where the youngest child has expressed a desire to spend more time with his father – Where the children share a close bond with each other – Where it would be inappropriate to separate the children – Consideration of the father’s capacity to provide for the children’s needs – Finding that the father engaged in family violence – Mother exposed to a pattern of coercive and controlling conduct which continued post-separation – Where the Family Report Writer opined that an order for equal shared parental responsibility would only be suitable if the Court does not find a risk of ongoing coercive and controlling behaviour – Presumption of equal shared parental responsibility rebutted – Where the father has spent irregular time with the children – Where the father deflects responsibility for two physical acts of violence which led to criminal charges – Parenting orders made substantially in accordance with those sought by the mother and Independent Children’s Lawyer – Children live with the mother – Mother granted sole parental responsibility – Increase in time with the father contingent on him not failing to see the children on three successive planned visits.
FAMILY LAW – PROPERTY – Application for an adjustment under s 79 of the Family Law Act 1975 (Cth) – Father’s earning capacity considerably greater than that of the mother – Where the mother is primary caregiver for the parties’ children – Mother cannot work full-time due to children’s special needs – Where mother is entitled to an adjustment of five per cent in respect to financial and non‑financial contributions and an additional 15 per cent in respect of future needs – Former matrimonial home transferred to the mother and the father to pay the outstanding mortgage.
Legislation: Evidence Act 1995 (Cth) ss 75, 76, 136, 140
Family Law Act 1975 (Cth) Pt VII, ss 4AB, 43, 60B, 60CA, 60CC, 60CG, 60I, 61DA, 65DAA, 75, 79
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.06
Road Transport (Vehicle Registration) Regulation 2017 (NSW) reg 38
Cases cited: A County Council v LW & Anor [2020] EWCOP 50
A v A (1998) FLC 92-800; [1998] FamCA 25
Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232
Armory v Delamirie (1722) 93 ER 664
B v H [2024] WASCA 46
Baranski & Baranski (2012) 259 FLR 122; [2012] FamCAFC 18
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Berry v CCL Secure Pty Ltd (2020) 271 CLR 151; [2020] HCA 27
Bevan & Bevan (2013) 49 Fam LR 387; [2013] FamCAFC 116
Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27
Bryant v Edenborn Pty Ltd (2020) 381 ALR 190; [2020] FCA 715
Carlson & Fluvium [2012] FamCA 32
Chea & Sok (No 2) [2023] FedCFamC1F 1052
Clauson and Clauson (1995) FLC 92-595
Clives and Clives (2008) FLC 93-385; [2008] FamCAFC 172
Cotton and Cotton (1983) FLC 91-330
Deiter & Deiter [2011] FamCAFC 82
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
Ferraro and Ferraro (1993) FLC 92-335; [1992] FamCA 64
Fields & Smith (2015) FLC 93-638; [2015] FamCAFC 57
Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Franklin & Franklin [2010] FamCAFC 131
G and C [2006] FamCA 994
Gibbs & Gibbs [2023] FedCFamC1A 37
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143; [2003] FamCA 395
Horrigan & Horrigan [2020] FamCAFC 25
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235
Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127
Kannis & Kannis (2003) FLC 93-135; [2002] FamCA 1150
Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46
Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27
Line and Line (1997) FLC 92-729; [1996] FamCA 145
Loddington & Derringford (No 2) [2008] FamCA 925
Lovine & Connor and Anor (2012) FLC 93-515; [2012] FamCAFC 168
M v M (1988) 166 CLR 69; [1998] HCA 68
Maine & Maine (2016) 56 Fam LR 500; [2016] FamCAFC 270
Mallet and Mallet (1984) 156 CLR 605; [1984] HCA 21
Martell & Martell (2023) 66 Fam LR 650; [2023] FedCFamC1A 71
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
N and S and the Separate Representative (1996) FLC 92-655; [1995] FamCA 139
Napier and Hepburn (2006) FLC 93-303; [2006] FamCA 1316
NHC & RCH (2004) FLC 93-204; [2004] FamCA 633
Nikolakis & Nikolakis [2010] FamCAFC 52
Norbis and Norbis (1986) 161 CLR 513; [1986] HCA 17
Pavlic & Pavlic (2023) 66 Fam LR 663; [2023] FedCFamC1A 54
Petruski & Balewa (2013) 49 Fam LR 116; [2013] FamCAFC 15
Re C and B (Children) (Care Order: Future Harm) [2001] 1 FLR 611
Re EF (Abduction: Hague Convention (Slovakia)) [2023] EWHC 505
Re H-N and Others (Children) (Allegations of Domestic Abuse) [2022] 1 WLR 2681
Re L (A child) (Contact: Domestic Violence) & Others [2001] FLR 260
Riddoch v Chiera [2020] WASC 114
Rolfe and Rolfe (1979) FLC 90-629; [1977] FamCA 106
Schaars v Schaars [2023] FedCFamC1F 12
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Stott & Holgar [2017] FamCAFC 152
T & T (2000) FLC 93-023; [2000] FamCA 314
TB v JB (Abduction: Grave Risk of Harm) (2001) 2 FLR 515
Teal & Teal [2010] FamCAFC 120
Townsend and Townsend (1995) FLC 92-569; [1994] FamCA 144
Trask & Westlake (2015) FLC 93-662; [2015] FamCAFC 160
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51
Van der Linden & Kordell [2010] FamCAFC 157
Wallis & Manning (2017) FLC 93-759; [2017] FamCAFC 14
Waters and Jurek (1995) FLC 92-635; [1995] FamCA 101
Zao & Lee [2019] FamCAFC 169
Zubcic & Zubcicand Anor (2019) FLC 93-918; [2019] FamCAFC 168
Australian Taxation Office, Income Tax: Who Should be Assessed to Interest on Bank Accounts? (TD 2017/11, 26 April 2017)
Chisholm, Richard, “Unacceptable Risk – A Comparison of the Family Law and Care jurisdictions” (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010)
Fogarty, John, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249
Division: Division 1 First Instance Number of paragraphs: 406 Date of last submissions: 7 June 2024 Date of hearing: 19 March 2024; 21–22 March 2024 Place: Sydney Counsel for the Applicant: Ms Hayward Solicitor for the Applicant: Taylor & Scott Lawyers Counsel for the Respondent: Mr Apostle Solicitor for the Respondent: Lonsdale & Associates Lawyers Counsel for the Independent Children’s Lawyer: Ms Webb Solicitor for the Independent Children’s Lawyer: Chidiac Legal Pty Ltd ORDERS
SYC 924 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR OBANDO
Applicant
AND: MS OBANDO
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
10 JULY 2024
THE COURT ORDERS THAT:
Parenting
1.All prior parenting orders be discharged.
Parental Responsibility
2.The respondent mother and wife in these proceedings, Ms Obando (“Ms Obando”) shall have sole parental responsibility for children X born in 2010 and Y born in 2012 (“the children”).
3.In executing sole parental responsibility, Ms Obando shall inform the applicant father and husband in these proceedings, Mr Obando (“Mr Obando”) in writing of any proposed decisions relating to the long-term care and welfare of the children including, but not limited to:
(a)Proposed decisions about which schools the children shall attend;
(b)Proposed decisions about surgery, treatment of chronic conditions, all treatment relating to the children’s autism spectrum disorder diagnosis, orthodontic treatment and other long term medical issues affecting the children;
(c)Ms Obando shall ensure that such notification is given to Mr Obando in writing and is given not less than 28 days before the final decision is made, except in the case of an emergency; and
(d)Ms Obando shall take into consideration any views expressed by Mr Obando in respect to such proposed decisions.
Live With and Spend Time Arrangements
4.The children shall live with the Ms Obando.
5.The children spend time with Mr Obando by agreement and if not agreed as follows:
(a)Commencing on the first weekend following the making of orders, for a period of 12 months, fortnightly each alternate Sunday from 9.00 am to 5.00 pm.
(b)Subject to Order 6, the children’s time with the father shall progress after 12 months, such that the children spend one day per week with the father on either a Saturday or Sunday, as agreed between the parties, but if not agreed, the children shall, after twelve months, spend time with Mr Obando each alternate Saturday from 9.00 am to 5.00 pm and on Sunday in the alternate weekend from 9.00 am to 5.00 pm.
6.In the event that Mr Obando fails to see the children on three (3) successive planned fortnightly visits pursuant to Order 5(a), Mr Obando’ time with the children shall not progress to once per week in accordance with Order 5(b).
7.Mr Obando spend time with the children as follows:
(a)Father’s Day from 9.00 am to 5.00 pm.
(b)Mr Obando’s birthday: on or near the first Sunday preceding the birthday from 9.00 am to 5.00 pm.
(c)Children’s birthday: on or near the first Sunday preceding the child’s birthday from 9.00 am to 5.00 pm noting that the children collectively spend time with the father on each of their respective birthdays.
(d)Christmas: the children to spend time with Mr Obando from 9.00 am to 1.00 pm in years ending in an even number and from 1.00 pm to 6.00 pm in years ending in an odd number.
(e)Public holidays: the children spend time with Mr Obando on public holidays that fall in school term 1, 2 & 3 from 9.00 am to 5.00 pm.
(f)Mr Obando’s time with the children is suspended if that time occurs on Mother’s Day.
Changeover
8.Unless agreed, changeover of the children is to occur at Ms Obando’s residence.
Communication
9.Unless otherwise agreed, the children shall have telephone/Facetime communication with Mr Obando each Tuesday and Thursday between 6.00 pm to 6.30 pm with Mr Obando to initiate such communication by calling Ms Obando’s telephone as advised and Ms Obando is to ensure that the children are made available to communicate with Mr Obando.
10.To facilitate Order 9, Ms Obando is to ensure the children have access to a working telephone or iPad.
11.Other than for the purpose of complying with Order 9, communication between the parties shall occur as follows:
(a)The parties communicate with each other through the ‘Family Wizard App’;
(b)Each parent is responsible for payment of the Family Wizard App on their own device;
(c)In the event the Family Wizard App is not working, the parties communicate by text or email; and
(d)In the event of emergencies, the parties communicate directly by phone.
12.Both parties shall keep the other advised at all times of their residential address, email address and contact telephone number and shall advise the other party within 48 hours of any change to either their residential address or telephone number.
13.Each party be permitted to communicate directly with the children’s schools, sporting bodies, and medical practitioners to obtain any necessary information and/or documents about the children’s progress and this Order shall constitute sufficient authority for such communication.
14.Both parties shall keep the other advised of the health of the children including any serious illness, medication that may be prescribed from time to time, or hospitalisation of any of the children as soon as reasonably practicable and to allow the other party to visit the children if hospitalised.
15.If Ms Obando changes the children’s regular General Medical Practitioner, Ms Obando shall notify Mr Obando within seven (7) days of the new medical practitioner details including contact telephone number and address.
16.Ms Obando shall notify Mr Obando of any specialist medical appointments for the children and shall ensure that Mr Obando is provided with not less than 24 hours’ notice of such appointment being made for the children.
17.Mr Obando is entitled to attend the children’s specialist and occupational and speech therapy sessions provided that the following occur:
(a)Mr Obando gives Ms Obando five days’ notice of his intention to attend; and
(b)Ms Obando is to provide Mr Obando with the children’s appointment schedule and advise Mr Obando of any cancellations or changes to that schedule.
Other parenting orders
18.That each party is at liberty to attend events of the kind normally attended by parents at the children’s school and extra-curricular organisations notwithstanding the event may fall within the other parent’s time with the child.
19.In the event any dispute arises in regard to any aspect of the children’s care or either party seeks to change the orders, the parties will attend mediation organised by an organisation authorised to carry out mediation/ family dispute resolution in New South Wales.
Injunctions
20.Both parties are restrained by injunction from:
(a)Denigrating the other parent or members of the other parents’ family in the presence of hearing of the children, and the parents shall each do all acts and things reasonably necessary to prevent any other person doing so;
(b)Discussing these proceedings or any issues arising out of these proceedings with or within the hearing of the children or permitting any third party to do so;
(c)Making critical or derogatory remarks on social media, such as Facebook, X (formerly known as Twitter) or Instagram in relation to each other or referring in any way to the proceedings;
(d)Physically chastising the children; and
(e)Mr Obando is not to leave the children exclusively in the care of any other person without the express consent of Ms Obando.
Property
21.Within twenty-one (21) days of these orders, Mr Obando shall sign all deeds and instruments including all documents and do all acts and things necessary to transfer to Ms Obando in her sole name all his right title and interest in B Street, Suburb D in the state of New South Wales (“the B Street Property”) being all that land contained in folio identifier ….
22.Simultaneously with Order 21:
(a)Mr Obando do all acts and all things to pay the total amount owing of the registered mortgage Account No … in favour of the Commonwealth Bank encumbering the B Street Property (noting the current balance in mid 2024 is $152,704).
(b)On execution of Order 21 and 22(a), Mr Obando is released from all and any liability arising in relation to the B Street Property.
(c)Prior to the execution of Orders 21 and 22(a), neither Mr Obando nor Ms Obando shall increase the said sum repayable under the said mortgage.
(d)Both parties do all acts and all things to transfer the said liabilities into the sole name of Ms Obando or, if necessary to secure the Mr Obando’ release, the repayment of all loans or advances secured by that mortgage and discharge of those liabilities and Ms Obando apply for a new mortgage solely in her own name.
(e)Ms Obando is to indemnify Mr Obando with respect to all council and water rates or other expenses relating to or arising from the B Street Property on execution of Orders 21 and 22(a).
23.Ms Obando shall have the sole right to occupy the B Street Property and during such right of occupation Ms Obando shall be responsible for all mortgage payments, rates and outgoings of the property as they fall due up to and including the ‘due date’ or any date in which order 21 and 22(a) are executed.
24.Within twenty-one (21) days, Mr Obando is to pay to Ms Obando the sum of $40,985.
25.As otherwise provided by these Orders, the parties shall:
(a)retain all assets, and superannuation entitlements in their respective names; and
(b)be responsible for all liabilities in their respective names.
26.In default of the parties or either of them doing all acts and things and executing all such documents as are necessary to give effect to these orders, a Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute all such documents in the name of the party in default and all such acts and things necessary to give validity and operation to the said orders.
Costs
27.Within fourteen (14) days of the date of these orders, the parties are at liberty to file written submissions, of no more than three (3) pages, in respect to the question of costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Obando & Obando, which has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION
These are parenting and property proceedings between the applicant father, Mr Obando (“the father”) and the respondent mother, Ms Obando (“the mother”) in respect to their two children, X who is currently 13 years old and Y who is currently 12 years old. Both children have been diagnosed with autism spectrum disorder (“ASD”) level 3 and level 2 respectively.
I have determined that the children should live with the mother and to initially spend one day per fortnight with the father, with that time extending to once per week after 12 months. However, that transition is contingent on the father regularly spending time with the children and, specifically, not failing to see them on three successive planned visits.
In respect to the property aspect of the proceedings, I have determined that there should be a five per cent adjustment to the mother as a result of contribution factors. In so determining, I have considered the totality of the parties’ contributions which, in the case of the mother, have been made significantly more arduous as a result of her being the victim of a pattern of coercive and controlling conduct including specific incidents of physical violence. I have further determined that there should be an adjustment of 15 per cent in favour of the mother as a result of consideration of those matters set out in s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) including, in particular, the ongoing responsibility the mother has for caring for the parties’ children and the significant disparity in both the earnings and earning capacity of the parties.
BACKGROUND
The main focus of the final hearing was on the parenting aspects of this case, which is made more complex by the children’s high-level needs and allegations of family violence from both parties.
Helpfully, the parties agree upon the following joint chronology:
Date
Event
1969
Husband/Father born
1970
Wife/Mother born
2009
Parties marry
Aug 2010
Parties purchase B Street, Suburb C NSW (“Suburb C Property”) for $315,000
$15,000 was borrowed from the Mother’s sister, $15,000 first home owners grant and the remainder by way of mortgage through Commonwealth Bank
2010
X is born
2012
Y is born
2014
ADVO made for 12 months, by consent without admissions, for the protection of the Mother and the Husband pled guilty to common assault with no recorded conviction. The Father enters into Section 10(1) good behaviour bond for 12 months.
2016
Husband has accident and sustains a broken bone
2017
ADVO made for 12 months, by consent without admissions, for the protection of the Mother and children and Husband pled guilty to common assault. The Father enters into a Section 9(1) good behaviour bond for 12 months.
Jun 2017
Parties separate on final basis
Husband moves in with his parents and the wife and the children remain living in the Suburb C Property
2018
Wife commences paying the mortgage payments on the Suburb C Property at some time in 2018
Father commences payment of child support in June 2018.
21 Dec 2018 – 4 Jan 2019
Father spends time with the children supervised by D Contact Services
2020
Parties divorce
2021
Husband receives personal injury payment of $33,399
17 Jun 2022
Interim Orders made for Father to spend time with the children supervised by D Contact Services alternate Saturdays 2-5pm
25 Jun 2022-22 Jan 2023
Father spends time with the children supervised by D Contact Services
May/June 2023
Father visits Y in Hospital after the Mother informs him he has appendicitis. Parties agree that the Father spend time with the children each alternate Saturday from 12-4pm
Parties commence the Father spending time with the children with the Mother being present
Nov 2023
Parties move to the Father spending unsupervised time with the children for 3-4 hours a fortnight
In early 2024, the children spent unsupervised time with their father from 9.00 am to 5.00 pm, and that this was the first time the children progressed to spending extended hours with their father.[1]
[1] Transcript 22 March 2024, p.206 lines 1–5. See also, Case Outline Document of the mother filed 18 March 2024, page 4.
Additionally, the parties have agreed to the following facts:
1. The Husband was the primary income earner during the relationship.
2. The Wife has been the primary caregiver for the children since birth.
3.The parties did not own any real property at the commencement of the relationship.
4.Since separation the Wife and the children have remained living in the [Suburb C] property and the Husband has lived with his parents.
5.Neither parent has re-partnered and there are no other children except the Children subject to these proceedings.
6.[X] is currently aged 13 years […] old and is diagnosed with global developmental delay and Autism spectrum disorder level III. (ASD)
7.[X] is non-verbal, not yet toilet trained and requires assistance with the activities of daily living.
8. [X] attends [E School].
9.Both parties agree that [X] particularly needs constant supervision and there is a risk that he will abscond;
10.[Y] is currently 11 years […] old and diagnosed with ASD level II.
11.[Y] requires limited assistance with some activities of daily living. He attends [F School] with class room support.
12.Both children receive NDIS assistance and attend speech therapy, physiotherapy and occupational therapy.
(As per the original)
DOCUMENTS RELIED UPON
The father relied upon the following documents:
(a)Case Outline Document of the father filed 14 March 2024;
(b)Affidavit of the father filed 16 February 2024;
(c)Amended Initiating Application of the father filed 10 February 2022;
(d)Financial Statement of the father filed 16 February 2024;
(e)Notice of Risk filed by the father on 10 February 2022;
(f)Affidavits of Single Expert Mr G filed 13 March 2024 and 14 March 2024;
(g)Family Report of Ms H dated 10 August 2023; and
(h)Father’s Tender Bundle (tendered by consent subsequent to the conclusion of the proceedings, marked Exhibit N in the proceedings).
The mother relies upon the following documents:
(a)Amended Case Outline Document of the mother filed 18 March 2024;
(b)Further Amended Response of the mother filed 21 February 2024;
(c)Affidavit of the mother filed 21 February 2024;
(d)Financial Statement filed 27 February 2024;
(e)Notice of Risk filed 08 March 2022;
(f)Child Impact Report of Ms J dated 14 June 2022;
(g)Family Report of Ms H dated 10 August 2023;
(h)Affidavit of Single Expert Mr K filed 15 March 2024; and
(i)Mother’s Tender Bundles dated 22 February 2024 (Exhibit O in the proceedings) and 16 March 2024 (Exhibit P in the proceedings).
The Independent Children’s Lawyer (“the ICL”) relied upon the following documents:
(a)Case Outline Document of ICL filed 15 March 2024;
(b)Family Report of Ms H dated 10 August 2023; and
(c)ICL’s Tender Bundle filed on 15 March 2024 (Exhibit Q in the proceedings).
PROPOSED ORDERS
The parties proposed orders are attached to this decision. The father’s proposed orders are marked Annexure “A”, the mother’s are marked as Annexure “B” and the ICL’s are marked as Annexure “C”.
The ICL’s Minute of Order, Annexure “C” in this judgment, was amended orally during the last day of the final hearing. No written copy of the ICL’s final orders were provided to this Court. For clarity, I have included relevant extracts from the transcript detailing the ICL’s oral amendment to their proposed Minute of Order below:
[COUNSEL FOR THE ICL:] If I can indicate to Your Honour that, over the luncheon adjournment, I’ve been instructed by the ICL that we ask for proposed Order 5 to be amended as follows.
[HIS HONOUR:] Just hang on. I will just pull it – i think I opened it this morning. 5(a) you wanted deleted, didn’t you?
[COUNSEL FOR THE ICL:] Not deleted. We just want to insert - - -
…
[COUNSEL FOR THE ICL:] - - - what should be a new – essentially, a new 5(a).
…
[COUNSEL FOR THE ICL:] So what we would be asking is that, given that the children have only spent time with their father for one extended period of 9 to 5 approximately a fortnight ago, we would like that period of time to be inserted in there and to continue for a period of three months each fortnight. So 9 to 5 each Sunday, each sorry. Each alternate Sunday for a period of three months.
[HIS HONOUR:] Okay. What did you think of my potentially unhelpful suggestion of making that – the progression conditional on the father – on the father’s ensuring that he’s available most weekends and, in the event of not being – most of the times, rather. And in the event of him not being available for three successive occasions, that the time doesn’t progress.
[COUNSEL FOR THE ICL:] We also had a discussion about that, and we feel that’s in the children’s best interest if there was some sort of caveat put in the orders to address that issue.
[HIS HONOUR:] Thanks. Thank you.
(Transcript 22 March 2024, p.257 line 17 to p.258 line 5)
The effect of the principle orders the parties respectively seek in respect to parenting are summarised below.
The father seeks orders that there be equal shared parental responsibility, there be provision for special occasions, communication, and other miscellaneous orders. The father also seeks that the children live with the mother, and that the children’s time with him increase on a gradual basis, as follows:
Term time
…
Stage 1
(a) From the date of the orders and for a period of one month, the Father shall spend time with the Children each Sunday from 9am until 5pm;
Stage 2
(b) From the conclusion of Stage 1 and for a period of three months, the Father shall spend time with the Children each Sunday from 9am until 7pm;
Stage 3
(c) From the conclusion of Stage 2 and for a period of three months, the Father shall spend time with the Children each alternate weekend from 6pm on Saturday until 6pm on Sunday;
Stage 4
(d) From the conclusion of Stage 3 and continuing the Father shall spend time with the Children each alternate weekend from 6pm on Saturday until the commencement of school (or 3pm if a non-school day) on the following Monday.
School Holidays
(e) During the Children's Term 1, 2 and 3 school holiday periods the Father shall spend time with the Children as follows, commencing Term 1 2025:
(i) In even-numbered years, from the conclusion of the last day of term for three consecutive nights until 6pm the next day; and
(ii) In odd-numbered years, from 6pm on the middle Saturday of that school holiday period for three consecutive nights until 6pm the next day.
(iii) During the Children’s Term 4 school holiday periods the Father shall spend time with the Children as follows, commencing Term 4 2024, each alternate weekend from 6pm on Friday until 6pm on Monday.
The mother seeks orders that she have sole parental responsibility and that the children live with her and spend time with the father by agreement, or if not agreed, each alternate Sunday from 9.00 am to 5.00 pm. The mother also seeks additional arrangements be made for special occasions and that there be ancillary orders regarding such matters as communication, changeover and non-denigration orders.
The ICL is supportive of sole parental responsibility being made in favour of the mother, however, concerns are raised by the ICL that the orders sought by the mother will not facilitate the establishment of a meaningful relationship between the children and their father. Therefore, the ICL proposed orally during submissions, amending their proposed minute of order annexed to this judgment, that for a period of three months, the children spend time with the father fortnightly each alternate Sunday from 9.00 am to 5.00 pm. The ICL proposed that after three months of the children spending fortnightly time with the father, time should progress to weekly alternating between Saturday and Sunday from 9.00 am to 5.00 pm. During submissions, the ICL said that the progression of time from fortnightly to weekly with the father should be conditional on attendance but did not specify exactly what condition that should be. Orders are also sought for the children to spend time with the father on Christmas Day from 10.00 am to 2.00 pm and on Father’s Day from 9.00 am to 5.00 pm. Any other time will be agreed upon by both parties. Additionally, the ICL proposes orders that provide for telephone/Facetime communication, sharing contact details, and parental involvement in health and education matters.
PARENTING – LEGAL PRINCIPLES
Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children.
On 6 May 2024, significant amendments to the Act commenced operation in respect to parenting. This case, however, is to be determined on the basis of the legislation applicable as at the date of the hearing.
At that time, s 60B of the Act set out the objects and principles of Pt VII. Section 60B(1) provided that the best interests of the children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provided that, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in either, abuse of the child or, family violence: s 61DA(2) of the Act.
Further, the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: s 61DA(4) of the Act. For reasons which I subsequently explain, I have formed the view that as a result of the history of family violence, an order for equal shared parental responsibility would not be in the children’s best interests.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the court must regard the best interests of the children as the paramount consideration. This is also repeated in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the court must consider in determining what is in the children’s best interests.
As at the date of the hearing, the Act provided that the primary considerations set out in s 60CC(2) of the Act involved determining the following:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b) of the Act).
In considering that first matter, I note that, in McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at [122], the Full Court said:
… No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
In Cotton and Cotton (1983) FLC 91-330 at 78,252, Nygh J noted that although it was desirable for a child to maintain a meaningful relationship with both parents:
[T]hat desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.
(Emphasis added)
The enquiry is “prospective” and requires the court to evaluate whether the child having a meaningful relationship with both parents, will be of advantage to the child in the future: McCall and Clark at [117] referring to Bennett J in G and C [2006] FamCA 994.
In Jurchenko & Foster (2014) FLC 93-598, the Court noted at [123] that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
In Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”), Cronin J held at [169] that:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
(Emphasis added)
In Loddington at [173], Cronin J further added that an assessment of the benefit to the child must be made according to “the peculiar facts of what the parents are offering”.
Issue of risk
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is “the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence”. The question that may be asked is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent.
In Stott & Holgar [2017] FamCAFC 152 (“Stott”) at [38], the Full Court accepted that, where unacceptable risk is alleged, the court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm. If a determination is made that such a risk exists, the court is then required to consider whether that unacceptable risk could be ameliorated: Stott at [41], citing Bennett and Bennett (1991) FLC 92-191 at 78,267.
The relevant principles in assessing whether a child would be exposed to an unacceptable risk of psychological and/or physical harm were recently considered by the Full Court in Isles & Nelissen (2022) FLC 94-092, who agreed with and adopted Austin J’s dissenting judgment in Fitzwater v Fitzwater (2019) 60 Fam LR 212 (“Fitzwater”) as being the correct statement of the law. In Fitzwater at [138]–[139], Austin J relevantly said that:
The assessment 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 … Risks of harm must be heeded even if they are improbable eventualities.
Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible … At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
(Emphasis in original) (Citations omitted)
In determining where that point in the continuum may be, Austin J also referred to the decision of Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 FLR 611 at [28] where her Ladyship stated that, “in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not”.
Thus, determining the issue of risk essentially involves applying a risk matrix, whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence. That is, there is an obligation on a trial judge to evaluate not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse, harmful or neglectful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: N and S and the Separate Representative (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier and Hepburn (2006) FLC 93-303 at [56], Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96]; see also Deiter & Deiter [2011] FamCAFC 82 at [54].
Additionally, the following guidance emerges from the authorities:
(a)It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A (1998) FLC 92-800 at 84,996, citing M v M (1988) 166 CLR 69 at 77.
(b)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148].
(c)The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at [68], endorsing and applying the principles set out in a paper prepared by the Honourable John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
(d)While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth) (“Evidence Act”), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”: The Honourable Richard Chisholm, “Unacceptable Risk – A Comparison of the Family Law and Care jurisdictions” (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010) 15.
Additional Considerations
Section 60CC(3) of the Act, as it applied at the date of the hearing, sets out a number of additional considerations to which the court is required to have regard. To assist the analysis, those considerations can conveniently be grouped under the following headings:
Issues relating to the children including their views, level of maturity, culture and relationships:
Sub-section (3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
Sub-section (3)(b): the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
Sub-section (3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child, and either of the child’s parents, and any other characteristics of the child that the court thinks relevant; and
Sub-section (3)(h): issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
Issues relating to the parents including decision making, time spent with children, obligations to maintain the child, attitude, capacity and exercise of responsibility:
Sub-section (3)(c): the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
Sub-section (3)(ca): the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
Sub-section (3)(f): the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
Sub-section (3)(i): the attitude to the child, and parental responsibilities, by each of the child’s parents.
Issues of family violence:
Sub-section (3)(j): any family violence involving a child or a member of the child’s family; and
Sub-section (3)(k): any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
Effect of change:
Sub-section (3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
Practical difficulty of implementation:
Sub-section (3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Avoiding further proceedings:
Sub-section (3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Other relevant matters:
Sub-section (3)(m): any other facts or circumstance the court considers relevant.
THE ISSUES: PARENTING
Parties’ submissions
Summary of the father’s parenting submissions
By way of summary, the father’s submissions in respect to the issue of parenting orders that I have considered to be relevant to the issues I am required to determine were as follows:
(a)The father acknowledges that he has two convictions for offences, to which he has pleaded guilty. While acknowledging the convictions, the father contends that he and the mother were under significant pressure at the time of the events that gave rise to the convictions. In particular, counsel for the father contends that the mother had the responsibility of caring for the two children with special needs, while the father bore the burden of being the financial provider.[2]
[2] Transcript 22 March 2024, p.269 lines 15–19.
(b)According to submissions made by counsel for the father, the Court would not find the existence of a coercive and controlling relationship because there are common features of relationships bearing the hallmarks of coercive controlling family violence, which do not present themselves in this case.[3] For example, it was contended that the mother has not made any allegations that the father has attempted to retain the children,[4] and that “fortunately” there were no allegations of forced sexual conduct raised in this case.[5] Given the lack of such allegations, counsel for the father contends that the family violence dynamic is not supported by evidence as there are no signs of coercive control, such as isolation from family or attempts to prevent the mother’s family from being involved.[6] Similarly, counsel for the father submitted that there are no allegations of physical abuse outside of what the father has pled guilty to,[7] or control over the mother, aside from the expectation that she tidy up the house according to his desires.[8]
[3] Transcript 22 March 2024, p. 269 lines 21-25.
[4] Transcript 22 March 2024, p.270 lines 11–16.
[5] Transcript 22 March 2024, p.270 lines 42–43.
[6] Transcript 22 March 2024, p.269 lines 21–28.
[7] Transcript 22 March 2024, p.270 lines 27–29.
[8] Transcript 22 March 2024, p.270 lines 23–37.
(c)The parties’ relationship was characterised by high conflict with the use of insulting and offensive words and although the Court may find that the father was, at times, “unhelpful to the mother … that is a very different finding to the suggestion that [the parties] have been in a coercive controlling family violence dynamic where [the father] was the primary perpetrator”.[9]
(d)Counsel for the father submitted that while there has been a focus on the “parties’ difficulties”,[10] the parties as at the date of hearing have made “significant advancements in their relationship”,[11] and the Court should conclude that the parents are capable of exercising equal shared parental responsibility.[12] In that respect, it was noted:
(i)Both parents told the family consultant that they are positive about their relationship moving forward.[13]
(ii)Both parents communicate regularly, both on the phone and at changeovers,[14] and have been able to make decisions regarding their time with the children, including discussing Y’s operation.[15]
(e)It was acknowledged that the mother has been the primary decision-maker for most of the children’s lives, but the Court should not create a situation where the father does not have the ability to participate in major decisions impacting upon the children.[16] In support of this submission, counsel contends that the father has “shown some commitment to his relationship with these children, particularly in the last 12 months or so”,[17] and that the mother has expressed no current fears of the father. Counsel referred to the mother’s affidavit evidence, where the mother indicated that the father has been communicating well and respectfully towards her.[18]
(f)The father “has capacity to attend to the children’s day-to-day needs in terms of practical things”,[19] and it would be in the best interests of the children if there were two parents who are capable of caring for them.[20] In addition, the father has been patient and kind and has engaged with the children’s needs, as he has progressed in spending more time with them.[21]
(g)In terms of the order proposed by the father, it was noted that the father has reduced his proposal in respect to the children spending time with him during school holidays to three nights and in so doing recognised the children’s long-term need for their mother.[22]
(h)If the Court is not inclined to make orders for the children to spend overnight time with the father, the father prefers the orders proposed by the ICL because weekly time would have the benefit of continuity and consistency. It was contended that such an arrangement also assists the mother in the social story work that she provides to the children each week and allows the children to become more familiar with the father.[23]
[9] Transcript 22 March 2024, p.271 lines 1–6.
[10] Transcript 22 March 2024, p.272 line 30.
[11] Transcript 22 March 2024, p.272 lines 32–33.
[12] Transcript 22 March 2024, p.272 lines 16–24.
[13] Transcript 22 March 2024, p.272 lines 34–36.
[14] Transcript 22 March 2024, p.273 lines 1–2.
[15] Transcript 22 March 2024, p.272 lines 43–45.
[16] Transcript 22 March 2024, p.273 lines 6–11.
[17] Transcript 22 March 2024, p.273 lines 13–14.
[18] Transcript 22 March 2024, p.273 lines 22–26.
[19] Transcript 22 March 2024, p.274 lines 21–22.
[20] Transcript 22 March 2024, p.274 lines 33–36.
[21] Transcript 22 March 2024, p.275 lines 42–46.
[22] Transcript 22 March 2024, p.274 lines 40–44.
[23] Transcript 22 March 2024, p.277 lines 26–34.
Summary of the mother’s parenting submissions
By way of summary, the mother’s submissions in respect to the issue of parenting orders that I have considered to be relevant to the issues I am required to determine were as follows:
(a)The father’s conduct should be viewed in the context of his expectation that the parties would conduct themselves in accordance with traditional roles where he was the primary income earner and the mother took care of the children and household.
(b)The father lacked appreciation of the demands that the children’s special needs placed upon the mother. For example, despite acknowledging that X was a poor sleeper and would wake up at all hours of the night, he continued to criticise the mother during cross-examination, alleging that she spent 24 hours a day on her computer.[24]
(c)The mother was struggling, “probably burnt out and not receiving adequate support that she needed in relation to the children and also in relation to the household”.[25]
(d)The father did not admit any culpability or responsibility for two acts of physical violence leading to criminal charges.[26] The father says that he regrets consenting to the apprehended domestic violence orders, notwithstanding he publicly admitted guilt in relation to the charge.[27] Instead, the father sought to deflect responsibility by contending “we are both at fault”.
(e)Counsel for the mother submitted that the Court would find that the father engaged in coercive and controlling behaviour towards the mother and that conduct continued post‑separation.[28]
(f)The father has spent irregular time with the children in the past and did not take the opportunity to spend time with them when the opportunity presented itself. The irregular time that the father spent with the children in the past raises a question about his genuineness in establishing and maintaining a meaningful relationship with the children.[29] This was highlighted through the following series of events:
(i)The father resumed telephone contact with the children in June 2018, he used the time as an opportunity to denigrate her, or he would ask the children questions that would imply that the mother was doing something wrong by them.[30]
(ii)There was a period of no calls from April 2019 to 5 January 2022.[31]
(iii)Supervised contact with the children commenced in December 2018. The father attended several visits but decided it was too costly, causing financial strain. Despite his concern about cost, the father spent approximately $15,000 on a trip to Country L in April 2019.[32]
(iv)The challenges associated with caring for the children with special needs are such that the father would not be able to cope with caring for the children during overnight visits. This is in circumstances where he has failed to take up the opportunity to be engaged in the children’s therapy.
[24] Transcript 22 March 2024 p.296 lines 11–30.
[25] Transcript 22 March 2024, p.296 lines 43–46.
[26] Transcript 22 March 2024, p.297 lines 7–9.
[27] Transcript 22 March 2024, p.297 lines 22–25.
[28] Transcript 22 March 2024, p.297 lines 32–33.
[29] Transcript 22 March 2024, p.303 lines 15–19.
[30] Transcript 22 March 2024, p.302 lines 12–17.
[31] Transcript 22 March 2024, p.302 lines 18–19.
[32] Transcript 22 March 2024, p.302 lines 20–28.
Summary of the ICL’s submissions
By way of summary, the submissions of the ICL were as follows:
(a)In oral submissions, the ICL amended their proposed minute by stating that the children should spend one day per fortnight with the father, but that progression for the children to spend one day per week with the father should not occur for a period of three months after the date of the orders.[33]
[33] Transcript 22 March 2024, p.257 lines 39–41.
(b)That the father’s progression of time to weekly should be dependent upon the father’s consistent availability most weekends.
(c)The ICL does not support an order for equal shared parental responsibility or overnight time for the children, in circumstances where:
(i)The father lacks a willingness to seek knowledge as to what is involved with caring for these children from treating doctors, therapists, and teachers.[34] It was submitted that the father’s lack of consistent contact with therapists and speech pathologists is a significant failure on his part.
(ii)If the mother is compelled to make the children available to spend overnight time with their father, they may become dysregulated, upset and distressed.[35] Counsel for the ICL submits that the father could not adequately meet the needs of the children, especially if they become distressed and dysregulated. It was contended that taking that risk cannot be justified, particularly where the ongoing implications for the children’s routines and welfare could be “catastrophic”.[36]
(iii)The mother’s evidence suggests that even during daytime visits, she has been required to settle X, who can become distressed.[37] That likelihood would be increased if he were to spend overnight time with the father.
(iv)The father’s experience with nighttime care, which is often a time when managing the children is difficult, is lacking.[38] The father has also not provided evidence of strategies for risk management within his home.[39]
(d)The ICL acknowledges that the children enjoy spending time with their father during the daytime.[40] The proposed orders with the children spending weekly time during the day rather than overnight with the father, would allow a meaningful relationship to develop, that would be “safe and loving”.[41]
(e)The evidence supports the fact that the mother would be encouraging the children’s time with the father and the development of regular weekly day time contact with the father could potentially alleviate some of the demands upon the mother in caring for the children with such significant special needs.[42]
[34] Transcript 22 March 2024, p.258 lines 24–38.
[35] Transcript 22 March 2024, p.259 lines 6–11.
[36] Transcript 22 March 2024, p.259 lines 15–17.
[37] Transcript 22 March 2024, p.259 lines 21–23.
[38] Transcript 22 March 2024, p.259 lines 23–25.
[39] Transcript 2 March 2024, p. 259 lines 46–47 to p.260 line 1.
[40] Transcript 22 March 2024, p.258 lines 31–33.
[41] Transcript 22 March 2024, p. 262 lines 35–36.
[42] Transcript 22 March 2024, p.262 lines 35–40.
For reasons which I set out in this judgment, I agree with and respectfully adopt the submissions of the ICL, and I make spend time orders substantially in the form proposed by the ICL. However, the progression for the children to spend weekly time with the father will be deferred for a period of 12 months after the date of making these orders rather than three months as proposed by the ICL. This is to provide an adequate period of time during which the father can demonstrate his commitment to spending regular time with the children.
Credit findings required to determine the issues
The Full Court has cautioned trial judges against making adverse findings in respect to a party’s credit in parenting proceedings. In that context, in Adamson & Adamson (2014) FLC 93-622, the Full Court at [90], agreeing with the decision of Kent J in Carlson & Fluvium [2012] FamCA 32, said:
It follows from [the observations of Kent J] that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to [by Kent J].
However, that guidance provided by the Full Court does not displace the court’s obligation to consider a number of matters to determine what orders are in the best interests of the children including, as set out in s 43(1)(ca) of the Act, a judicial officer’s statutory obligation to have regard to “the need to ensure protection from family violence”. In this case, the assessment of the credibility and reliability of the parties’ evidence is crucial in determining a central issue in these proceedings. That is, whether the father subjected the mother to a pattern of controlling and coercive conduct including perpetrating acts of physical violence on the mother.
The mother gave her evidence in a clear, concise and thoughtful manner. She impressed as being focused on the best interests of the children. The credibility of her evidence was not diminished by cross examination, including an attempt by counsel for the father to establish that she had given false evidence regarding the sale price of a motor vehicle. I accept the mother to be a witness of truth and save that the mother conceded there were aspects of exaggeration in stating that the father “never” assisted her around the house I accept the entirety of her evidence, including that relating to the sale of the motor vehicle which she stated to be the sum of $1,000. That was in circumstances where the vehicle needed its engine replaced and was unregistered at the time of sale.
Comparatively the father was a poor historian. This is demonstrated, for instance, in the father’s assertions that he attended with the mother and the children on four or five therapy sessions with M Therapy (“M Therapy”).[43] When he was shown records from M Therapy that record the father attending on only one occasion being early in 2023, the father revised his evidence stating that he went on two or three occasions.[44] When I asked him when those additional occasions were, the father prevaricated, stated that he could not remember the dates, and then gave tangential evidence as to the convenient location of M Therapy and why it was “no problem” for him to attend.[45] I infer that the father gave that evidence to suggest that there was a link between the convenience of the location and the likelihood of him attending. In light of the father’s prevarication, I accept the mother’s evidence that the father attended M Therapy on only two occasions.[46]
[43] Transcript 19 March 2024, p.84 lines 35–40.
[44] Transcript 19 March 2024, p.85 lines 13–16.
[45] Transcript 19 March 2024, p.85 lines 20–24.
[46] Transcript 21 March 2024, pg.188 lines 24–28.
Of greater significance, is that I prefer the mother’s evidence in respect to occasions where I am satisfied that the father physically assaulted the mother resulting in him being charged and convicted, albeit, on the first occasion with no conviction recorded.
The first assault occurred in early 2014. When cross-examined about that event, the father’s account was as follows:
[THE FATHER:] We started arguing, and she – I was sitting down on the lounge, watching TV. She was standing in front of the TV. And she goes that, “You’re mother is a slut and your sister and all that.” And I go (foreign language spoken), and then I go to her, “You’re the – your mother is a slut and you’re the (foreign language spoken).” So she grabbed the kids’ water bottle and she just tossed it at me. So as I went – I put my hand up – put my leg up, it hit my leg. And I got up, and I grabbed her by the arm, and I told – I told her, “Ever – don’t do that again,” and I let her go, and I went upstairs.
(Transcript 19 March 2024, p.16 lines 26–33)
The reference in the transcript to “foreign language spoken”, was the father’s use of the word ‘[whore]. I sought clarification from the parties as to the meaning of that word and it was common ground that it was a Country N expression for “a whore or a slut or a prostitute”.[47]
[47] Transcript 19 March 2024, p.20 lines 32–34.
The father admitted calling the mother a whore but he contended he did so only after the mother said that in reference to his own mother.[48] Within a short space of time, the father gave contradictory evidence denying that he called the mother names such as “lazy slut and a whore”.[49]
[48] Transcript 19 March 2024, p.15 lines 41–45.
[49] Transcript 19 March 2024, p.20 lines 24–26.
In assessing the veracity of the father’s account of the incident in early 2014, the father admitted that he advised police on the day that “he stood up to the victim and held a clenched fist” and that he said he was going to hit her but he didn’t.[50] I note that the account provided by the father during cross-examination, to which I have earlier referred, made no reference to the father holding up a clenched fist to the mother.
[50] Transcript 19 March 2024, p.19 lines 1–7.
Despite admitting the accuracy of the notes taken by the police officers, the father denied that he told the police officers that “he grabbed her by the hair on the back of her head and pulled her towards him before letting her go”.[51] When that entry made by the police officers in their notes was pointed out to the father, he then withdrew to the perceived safe haven of a lapse in memory, stating that he could not remember.[52]
[51] Transcript 19 March 2024, p.19 lines 15–18.
[52] Transcript 19 March 2024, p.19 lines 22–23.
Finally, the father’s oral account of what transpired during the course of the proceedings before me was inconsistent with the fact that he pleaded guilty to the charge of common assault at the Local Court in Suburb O.
After carefully considering the evidence, I find the father’s testimony inconsistent. His retreat to the haven of poor memory and attempt to deflect responsibility for his guilty plea to his former lawyers, severely diminishes the weight I give to the father’s account of what I am satisfied was a physical assault perpetrated by the father on the mother in early 2014. I am satisfied of the accuracy of the mother’s account of the event, including the fact that the father called her a whore, that he held his fist up to her, and threatened consequences if she repeated her act of throwing something at him, and that the threat was made by the father at a time while he was holding the mother by her hair.
I also prefer the evidence of the mother in respect to a second assault that was occasioned to her in early 2017. The evidence about the father is consistent, in that both parties acknowledge that the mother approached the father to assist in getting Y ready for bed in circumstances where she wished to attend her local doctor to obtain painkilling medication for a medical condition.
At paragraph 24 of his affidavit filed 16 February 2024, the father stated that when he heard the mother coming up the stairs, he turned his phone on to record her and that “she kicked the door open and thrust[ed] [Y] in between us, saying to me words to the effect of ‘Wash and change him because I have a sore back. I’m going to see a doctor’.” At paragraph 25 of his affidavit filed 16 February 2024, the father stated that:
We then started to push and shove each other down the hallway and she accidentally tripped over some clutter. She called the police immediately and when the officers arrived, I was placed under arrest …
(Emphasis added)
In cross-examination, the father admitted that account as set out in paragraph 25 of his affidavit filed 16 February 2024 to be accurate.[53]
[53] Transcript 19 March 2024, p.26 lines 4–5.
When asked for an explanation as to why he was pushing a woman who was suffering from a medical condition, the father, once again, resiled from his clear and unequivocal evidence stating, “I wasn’t pushing her”.[54]
[54] Transcript 19 March 2024, p.26 line 14.
In fact, the father denied touching her at all, stating “as I went into touch her, she falls over”.[55] According to the father, the mother’s fall was due to the “clutter” rather than any action on his part.[56] To take it further, the father attempted to shift the blame onto the mother, stating “[i]f the house was clean, she would not fall over”.[57] Indeed, the father asserted that on the evening in question that led to him being charged with common assault he “didn’t do nothing [sic] wrong”.[58]
[55] Transcript 19 March 2024, p.26 lines 19–20.
[56] Transcript 19 March 2024, p.26 line 20.
[57] Transcript 19 March 2024, p.26 line 22.
[58] Transcript 19 March 2024, p.26 line 26.
Once again, the father blamed his then legal representatives for the fact that he pleaded guilty to, what were, from his point of view, apparently baseless charges. The following exchange between counsel for the mother and father is illuminating:
[COUNSEL FOR THE MOTHER:] And you would accept that at the time you entered your plea of guilty, you understood that that was a public admission of guilt in relation to the criminal offence for which you had been charged; that’s right, isn’t it?-
[THE FATHER:] –Well, I listened to my solicitor’s advice, so I pleaded guilty.
[COUNSEL FOR THE MOTHER:] Yes. Okay. See, sir, what you’re saying to the court is that you did nothing wrong back in 2014, but you pleaded guilty and you got a bond. You did nothing wrong in 2017. You pleaded guilty again to a [charge], and you received a […] good behaviour bond; that’s right, isn’t it?---
[THE FATHER:] Correct.
[COUNSEL FOR THE MOTHER:] So you’re in the business of pleading guilty to criminal offences that you say to this court you haven’t committed. Is that what you say to his Honour?
[THE FATHER:] ---I take advice from my solicitor. So whatever he says, I say.
(Transcript 19 March 2024, p.27 lines 19–31)
As a result of the inconsistencies in the father’s evidence and the fact that, at a time that was proximate to the events, he pleaded guilty to the respective charges, leads me to give little weight to the father’s denials that he physically assaulted the mother in early 2014 and early 2017.
Again, in the context of considering the parties’ evidence, I note that the father initially answered, in unequivocal terms, that he has not attended any men’s behaviour change programs, nor had he completed an anger management program.[59] When it was pointed out to the father that his attendance at such a program was a specific recommendation of the Family Report Writer (Family Report dated 10 August 2023, paragraph 67) the father, once again, changed his evidence stating “I think I did that program. I can’t remember”.[60]
[59] Transcript 19 March 2024, p.79 lines 17–20.
[60] Transcript 19 March 2024, p.81 lines 45–46.
I record that the manner and tone in which the father gave evidence, particularly on occasions where he resiled from clear statements that he had earlier made, was uncertain, disjointed and confused.
Comparatively, the mother was an impressive witness, and the veracity of her evidence was not diminished through the process of cross-examination. Her evidence was internally consistent and aligned with objective evidence. The mother responded to an attempt by counsel for the father to attack the mother’s credibility on the basis of an allegation she gave false evidence as to the sale price of a motor vehicle in a calm, dignified and direct manner. Her answers were consistent to advertisements placed in respect to the vehicle’s sale and also with the relevant statutory framework regarding the procedure for transferring an unregistered motor vehicle. I will expand upon her response when explaining how I have assessed the parties’ balance sheet.
In short, leaving aside elements of some exaggeration as to the lack of assistance, the father provided to her in the household, I accept the entirety of the mother’s evidence and, specifically, wherever there is inconsistency, I prefer the evidence of the mother to that of the father.
CONSIDERATION OF RELEVANT STATUTORY CRITERIA
The presumption of equal shared parental responsibility
As a result of the history of family violence, to which I subsequently refer, the presumption of equal shared parental responsibility set out in then operational s 61DA(1) of the Act does not apply: s 61DA(2)(b) of the Act.
The court is nonetheless empowered to make such an order if it considers that it is in the best interests of the child(ren): s 61DA(4) of the Act.
The mother seeks an order for sole parental responsibility, subject to orders prescribing an obligation to consult with the father before significant decisions are made impacting upon the long-term care and welfare of the children. The father seeks an order for equal shared parental responsibility, noting that the Family Report Writer opined that such an order would be appropriate unless the Court finds there is a risk of ongoing coercive controlling behaviour on the part of the father (Family Report dated 10 August 2023, paragraph 75).
For reasons which I subsequently explain, I am satisfied that the father has engaged in a pattern of coercive and controlling behaviour that includes instances of actual physical violence. I observed that pattern during the course of the hearing, when the father continued his denigration of the mother. On one occasion, he contended that, despite the heavy responsibilities that the mother bore in caring for two autistic children, “she was just on the computer 24 hours” of the day, and that unless she was cooking or putting the children to sleep, she was on her laptop “right through the whole night till the morning”.[61] Counsel for the mother sought clarification and the following interaction occurred:
[COUNSEL FOR THE MOTHER:] So these two children with very high special needs are effectively fending for themselves while [the mother] spends 24 hours of the day on her laptop enjoying herself. Is that what you say to this court?
[THE FATHER:] Correct
(Transcript 19 March 2024, p.22 lines 25–27)
[61] Transcript 19 March 2024, p.22 lines 12–23.
Further, the father attached to his affidavit filed 16 February 2024 photographs that depict a significant degree of mess and disorganisation in the former matrimonial home (Annexure “MO-2”). The mother was not challenged on her assertion that the mother was under considerable pressure at that time and that the photos were taken prior to the mother receiving assistance through the National Disability Insurance Scheme (“NDIS”). For reasons which I further explain, the father’s inclusion of that material in his affidavit illustrates a continued pattern of denigration of the mother.
Section 4AB(1) of the Act defines family violence as including coercive and controlling behaviour. Section 60CG(1)(b) of the Act directs me to ensure that the order I make in respect to parenting arrangements for the children “does not expose a person to an unacceptable risk of family violence”.
I accept the validity of the opinion expressed by the Family Report Writer at the final hearing where she stated that:
My social science knowledge tells me that certainly if there is a coercive controlling violence dynamic at play … that is not one that – that resolves after separation.
(Transcript 22 March 2024, p.241 lines 7–9)
Relevantly, in Re L (A child) (Contact: Domestic Violence) & Others [2001] FLR 260, Butler-Sloss LJ said at 272–273 that in parenting proceedings:
... the ability of the offending parent to recognise his past conduct, be aware of a need to change, and make genuine efforts to do so, will be likely to be an important consideration.
It is particularly relevant in this case that the father has failed to acknowledge that he has engaged in such conduct and consequently has failed to take steps to address it.
In circumstances where I have found such a coercive and controlling dynamic to be at play, an order requiring the mother to reach a consensus position with the father would, in my view, expose the mother to ongoing coercive and controlling behaviour. This would be contrary to my obligations pursuant to s 60CG of the Act, as such an order would not be in the best interests of the child. I am satisfied that the requirement for the mother to engage in ongoing consultations with the father would be stressful and potentially negatively impact upon her mental health and sense of well-being. This, in turn, would adversely impact the children.
In forming the view that the mother would be so exposed to ongoing coercive and controlling conduct, I note that the father showed no contrition in respect to the events that led to him being charged in both early 2014 and early 2017. Additionally, despite the fact that the father has been on notice since at least 2022 that the mother considered it to be important for the father to address his anger management issues before spending unsupervised time with the children,[62] he has failed to do so. Showing lack of insight when asked why he has not attended such programs despite being aware of the mother’s position, he stated “I don’t need to go”.[63] His statement to that effect is not ameliorated by the change in his evidence that, on reflection, perhaps he did attend such a course.
[62] Transcript 19 March 2024, p.79 lines 22–24.
[63] Transcript 19 March 2024, p.79 line 45.
In finding that the father has not attended a behaviour change course or an anger management course, it is to be noted that the father has attended an emotional regulation workshop titled “Emotional Regulation” on 8 June 2022 (father’s affidavit filed 16 February 2024, paragraph 64). It was an agreed position, that the reference to emotional regulation, in that context, was training to assist the children.[64] It is to be further noted that on 22 June 2022 and 20 July 2022, the father attended two more workshops titled “Positive Behaviour Support – Parts 1 and 2” (father’s affidavit filed 16 February 2024, paragraph 66). Again, the reference to ‘behaviour’ refers to the behaviour of children with autism, rather than the behaviour of the adult attending the course.
[64] Transcript 19 March 2024, p.132 lines 22–25.
The benefit to the children having a meaningful relationship with both parents
Both parents acknowledge that it is in the interests of the children to have a meaningful relationship with both parents.
The father contends that the prospect of the children having an ongoing, meaningful relationship with him would be enhanced if time with the children progresses to overnight time and three nights during school holidays.
Comparatively, the mother contends that she has encouraged the father to improve his relationship with the children and has attempted to facilitate the children having time with him, but according to her, the father has not embraced these opportunities.
In that respect, after the second ADVO of early 2017, I am satisfied that the father did not see the children for approximately 18 months. The chronology included in the father’s Case Outline filed 14 March 2024, lists several instances where the father’s solicitors requested that the mother facilitate the children spending time with him, both via electronic communication and in-person. The father acknowledged, however, that the mother remained prepared to facilitate the children spending time with him throughout that period, subject to the father agreeing for that time to be supervised. I am satisfied that the mother’s request for supervision of the children was entirely appropriate having regard to the children’s high needs, the limited involvement the father had in the children’s therapy, and the father’s history of poor emotional self-regulation. For reasons which I explain, I am satisfied that it is in the best interests of the children to continue to live with the mother who has been their primary carer and primary attachment figure since birth, and to spend regular time with their father.
In circumstances where both children have special needs which are profound in the case of the oldest child, I am not satisfied that it is in the children’s best interests to spend overnight time with their father. After considering the totality of the best interest considerations set out in s 60CC of the Act, I am satisfied that, with some adjustment, the orders proposed by the ICL will ensure the safety of the children, while facilitating the children having a meaningful relationship with both parents.
In circumstances where Y’s behaviour is less challenging than that of his older brother, I have considered the possibility of making orders for Y to spend overnight time with his father. However, I have determined that outcome would not be in the best interests of either of the children, having regard to the closeness of their bond as referred to in the unchallenged evidence of the mother’s affidavit filed 21 February 2024, paragraphs 41–43.
Issue of risk
The potential risk associated with the children spending overnight time with the father is a major issue in these proceedings. That issue needs to be considered in the context of the totality of the statutory check list of best interest considerations. Accordingly, I will discuss the issue of risk after referring to relevant evidence regarding the children’s special needs and the impact that the changes proposed by the father would have on the children.
Issues relating to the children – their views, level of maturity, culture and relationships:
The children’s neurodiverse needs
With varying degrees of severity, X and Y have both been assessed as having ASD, global development delay and sensory and behavioural issues. Both children have tactile sensitivity and can become irritated by certain materials or surfaces.
X has been assessed as having level 3 ASD, being the highest level of severity and Y has been assessed as having level 2 ASD, still requiring substantial support.
The criterion for ASD is set out in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-5”). That criterion, as set out in the DSM-5 (mother’s Tender Bundle, Exhibit O, pages 5–6) was received into evidence without objection. The DSM-5 highlights that a child with level 2 ASD requires substantial support, while a child with level 3 ASD requires “very” substantial support. In terms of social communication, the common traits of a person with level 3 ASD include:
Severe deficits in verbal and nonverbal social communication skills cause severe impairments in functioning, very limited initiation of social interactions, and minimal response to social overtures from others. For example, a person with few words of intelligible speech who rarely initiates interaction and, when he or she does, makes unusual approaches to meet needs only and responds to only very direct social approaches.
The behavioural characteristics of a person with level 3 ASD have been identified in the DSM‑5 as:
Inflexibility of behavior, extreme difficulty coping with change, or other restricted/repetitive behaviors markedly interfere with functioning in all spheres. Great distress/difficulty changing focus or action.
Have regard to the totality of the matters set out in s 79(4) of the Act to which I have referred, including sub-section (e), I am satisfied that there should be an adjustment of the parties’ property and superannuation such that the mother receives 70 per cent of the identified property pool. This will result in the mother being entitled to property and superannuation, such that she receives a total of 70 per cent of $1,047,750 being $733,425. Comparatively, the father will retain property and superannuation to the value of $314,325.
Excluding the former matrimonial home, the mother currently has property and superannuation in her possession together with addback totalling $117,440. This means that there needs to be a transfer of property to her, valued at $615,985.
I propose achieving that outcome by requiring the father to transfer his interest to the former matrimonial home to the mother. That property has a value $575,000. Accordingly, there will need to be additional $40,985 transferred to the mother over and above the mortgage liability on the former matrimonial home of $152,704.
I will therefore make orders that within 21 days of the date of these orders, the father:
(a)Transfer to the mother his interest in the former matrimonial home.
(b)Do all things necessary to pay the total amount owing in the registered mortgage Account No …00 recorded as at 7 June 2024 at $152,704.
(c)Pay to the mother, the sum of $40,985.
The parties shall otherwise be entitled to any other property and superannuation in their possession and they shall be responsible for any remaining liabilities in their name.
This outcome means that the mother will have the security of an unencumbered home in which she and the children can continue to live. She will also receive an additional sum of $40,985 to assist with day to day and future expenses for herself and the children. It provides a slight buffer in the event that the father does lose his employment and ceases to pay child support.
The father will be required to transfer his interest in the former matrimonial home to the mother. In addition, he will be required to pay the total amount of $152,704 in respect to the mortgage and $40,985 directly to the mother totalling $193,689. As at the date of commencement of the hearing, the father had funds in his bank accounts totalling $209,565. This gives him the capacity to comply with the orders without the requirement to borrow any additional funds.
He will be left with the motor vehicles that he owns, his superannuation of $263,350 and cash of $15,876. He will also have the security of his insurance policy of $95,209.
The father will not have ownership of real property, but he has the security of accommodation with his parents, an ongoing comfortable income and a reasonable superannuation entitlement for his retirement. He also has the benefit of a redundancy payment in the event that he may lose his employment in the building industry.
This outcome is, in my opinion, appropriate just and equitable in the circumstances of this case.
I certify that the preceding four hundred and six (406) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 10 July 2024
ANNEXURE A: FATHER’S PROPOSED ORDERS
Property
1.That within 42 days of the date of these Orders, the Husband do all acts and things and sign all documents necessary to transfer to the Wife, at the Wife's expense, all his right, title and interest in the property situate at and known as B Street, Suburb C in the State of New South Wales (Folio Identifier …) (“the former matrimonial home”).
2.That simultaneously with Order 1 herein, the Wife shall:
2.1Do all acts and things and sign all documents necessary to discharge the mortgage secured against the title of the former matrimonial home registered in favour of Commonwealth Bank of Australia (registered no. …) (“CBA Mortgage”) with the costs of same to be met by the Wife; and
2.2Pay the Husband the sum of $62,000 plus half of the Single Experts’ fees pursuant to Order 2 of 12 February 2024 and entire valuation fee for the Motor Vehicle 2 (“Capital Sum”) into his solicitors Taylor & Scott Lawyers' trust account BSB …, account no. …).
3.That in the event the Wife fails, refuses or neglects to comply with Order 2 herein, then the Parties shall forthwith do all acts and things and sign all documents necessary to cause the former matrimonial home to be placed on the market for sale by public auction in accordance with the following:
3.1The auction reserve price shall be agreed upon between the parties or failing agreement the Parties shall accept the listing agent’s recommendation as to same and give instructions to him/her accordingly.
3.2The Husband shall within 14 days propose three agents and three conveyancers/solicitors from which the Wife shall within 14 days of the Husband's proposal nominate one of each to be the agent and conveyancer/solicitor for the sale of the former matrimonial home and obtain and sign all necessary documents from them to enable the listing of the former matrimonial home and forward copies of same to the Husband.
3.3In the event the Wife fails, refuses or neglects to comply with 3.2 herein, the Husband shall have carriage of the sale of the former matrimonial home to the exclusion of the Wife as her trustee, and this order shall serve as an authority for any listing agent and/or conveyancer to accept the instructions and signature of the Husband in place of that of the Wife.
3.4In the event the bidding at the auction does not reach the reserve price the parties (or exclusively the Husband if appointed as trustee pursuant to Order 3.3) may negotiate with the highest bidder or any other interested person and effect a sale at a price which is not more than 5% below the reserve price.
3.5In the event the property passes in at auction and there is no exchange of contracts within three days of that auction, the parties (or exclusively the Husband if appointed as trustee pursuant to Order 3.3) shall do all acts and things and sign all documents necessary to forthwith list the property for sale by private treaty at a price recommended by the listing agent.
4.That pending the transfer or settlement of the sale of the former matrimonial home, as applicable, the Wife shall make all repayments on the CBA Mortgage (principal and interest) plus any and all outgoings, rates, levies, taxes, insurance premiums and any other expenses raised against or in association with the said property, as and when they fall due.
5.That on settlement of the sale of the former matrimonial home the proceeds of sale shall be paid in the following manner and priority:
5.1Firstly, in payment of listing agent’s commission and expenses and conveyancer's costs on the sale;
5.2Secondly, in adjustment of rates and levies on the property;
5.3Thirdly, in payment in discharge of the CBA Mortgage;
5.4Fourthly, in payment of the Capital Sum to the Husband together with interest on same from the date the Wife's default pursuant to Section 117B of the Act; and
5.5Fifthly, in payment of the balance to the Wife.
6.That, pursuant to Section 78 and as otherwise ordered to the contrary herein, the Wife is declared to be sole has no interest in the following as may be owned or held by the Wife:
6.1The Wife’s interests in any or all real estate;
6.2All shares, debentures, units, trusts, bank, building society or credit union accounts standing in the Wife’s sole name or in which she has an interest;
6.3The Wife’s motor vehicle;
6.4The Wife’s superannuation entitlements; and
6.5All other property and/or financial resources in the Wife’s name, possession or control.
7.That, pursuant to Section 78 and as otherwise ordered to the contrary herein, the Husband is declared to be sole owner and the Wife has no interest in the following as may be owned or held by the Husband:
7.1The Husband’s interests in any or all real estate;
7.2All shares, debentures, units, trusts, bank, building society or credit union accounts standing in the Husband’s sole name or in which she has an interest;
7.3The Husband’s motor vehicle;
7.4The Husband’s superannuation entitlements; and
7.5All other property and/or financial resources in the Husband’s name, possession or control.
8.That except as otherwise specifically provided for by these Orders and to the contrary:
8.1The Wife shall indemnify the Husband from and in respect of all actions, claims, suits and demands as may be made against the Husband in relation to all liabilities in the name of the Wife.
8.2The Husband shall indemnify the Wife from and in respect of all actions, claims, suits and demands as may be made against the Wife in relation to all liabilities in the name of the Husband.
9.That except as otherwise specified herein, the parties shall do all acts and things and sign all documents necessary to give effect to these Orders as soon as reasonably practicable.
10.That in the event the Wife or the Husband fails, refuses or neglects to sign any deed or instrument necessary to give effect to these Orders then a registrar of the Federal Circuit and Family Court of Australia at Sydney is appointed, pursuant to Section 106A of the Family Law Act 1975, to sign any deed or instrument necessary to give effect to these Orders instead of the party in default and the other party shall be at liberty to make an application for costs arising in respect of the default.
FATHER’S AMENDED MINUTE OF PARENTING ORDER
Marked “MFI-2” in the proceedings
Parental Responsibility
1.That the Parties shall have equal shared parental responsibility for the long-term care, welfare and development of the children:
X (“X”) born 2010; and
Y (“Y”) born 2012.
(collectively “the Children”)
Live with
2.That the Children shall live with the Mother.
Spend time with
Term time
3.That the Children shall spend time with the Father, during school term time, as follows:
Stage 1
(a)From the date of the orders and for a period of one month, the Father shall spend time with the Children each Sunday from 9am until 5pm;
Stage 2
(b)From the conclusion of Stage 1 and for a period of three months, the Father shall spend time with the Children each Sunday from 9am until 7pm;
Stage 3
(c)From the conclusion of Stage 2 and for a period of three months, the Father shall spend time with the Children each alternate weekend from 6pm on Saturday until 6pm on Sunday;
Stage 4
(d)From the conclusion of Stage 3 and continuing the Father shall spend time with the Children each alternate weekend from 6pm on Saturday until the commencement of school (or 3pm if a non-school day) on the following Monday.
School Holidays
(e)During the Children’s Term 1, 2 and 3 school holiday periods the Father shall spend time with the Children as follows, commencing Term 1 2025:
(i)In even-numbered years, from the conclusion of the last day of term for three consecutive nights until 6pm the next day; and
(ii)In odd-numbered years, from 6pm on the middle Saturday of that school holiday period for three consecutive nights until 6pm the next day.
(iii)During the Children’s Term 4 school holiday periods the Father shall spend time with the Children as follows, commencing Term 4 2024, each alternate weekend from 6pm on Friday until 6pm on Monday.
Special Occasions
4.That notwithstanding any other order to the contrary herein, the Children shall spend time with the Father on the following special occasions:
Father’s Day
(a)On Father’s Day from 9am until 8pm;
Father’s Birthday
(b)On the Father’s Birthday:
(i)If a non-school day from 9am until 8pm; or
(ii)From 5pm until 8pm if a school day;
Children’s Birthday
(c)On each of the Children's Birthday where they both shall move together to the Father and not individually:
(i)From 5pm until 8pm if a school day; or
(ii)If a non-school day, from 10am until 3pm;
Easter
(d)During Easter long weekend as follows:
(i)In odd-numbered years, from 10am on Good Friday until 6pm on Easter Saturday;
(ii)In even-numbered years, from 6pm on Easter Saturday until 6pm on Easter Monday.
Christmas
(e)During the Christmas period as follows:
(i)In odd-numbered years, from 6pm on Christmas Day until 6pm on Boxing Day.
(ii)In even-numbered years, from 6pm on Christmas Eve until 6pm on Christmas Day
Changeover
5.That for the purpose of facilitating changeover, the Father shall collect the Children from outside the Mother's residence at the commencement of his time with them and the Mother shall collect the Children at the conclusion of such time from outside of the Father’s residence, unless otherwise agreed in writing.
Communication
6.That the Father shall be at liberty of initiating communication with the Children by phone or video conferencing application on a number to be confirmed the Mother to the Father within two days from the date of the Orders, each alternate day between 6.30 – 7.30pm when the Children are not in his care and the Mother shall do all things necessary to ensure this order is given effect on her end.
7.That the Parties shall not hinder, prevent or discourage the Children from initiating communication with the other party at all reasonable times and, for the purposes of same, the Parties shall do all acts and things necessary to ensure their mobile telephones (until such time as the Children have their own mobile telephones) are able to facilitate communication with the other party.
Miscellaneous
8.That the Parties shall keep each other informed of any change to their residential addresses, landline numbers, mobile telephone numbers and personal email addresses within 24 hours of such change taking place.
9.That the Parties shall communicate and promptly respond to each other by phone, email or text message in a respectful and conciliatory manner as and when reasonably practicable or necessary and limit such communication to issues concerning the Children.
10.That each party shall ensure the other is advised promptly of any medical emergency or significant illness suffered by, or relating to, the Children including sufficient details to enable both parties to be consulted and fully advised regarding such illness or condition and any treatment.
11.That the Mother shall notify the Father as soon as practicable of any significant events occurring in the Children's lives including but not limited to parent/teacher interviews, sporting events, invitations received by or on behalf of the Children.
12.That the Parties, as and when requested, shall forthwith do all acts and things and sign all documents necessary to ensure each of them receives a copy of the Children's school reports, newsletters and other relevant notices issued by their school.
13.That neither party shall not denigrate the other party or anyone associated with that party in the presence or hearing of the Children, and shall forthwith remove them from any third party doing so.
14.That neither party shall discuss with the Children these proceedings, or changes to these orders, or permit any other person other than an Independent Children's Lawyer (if appointed) to do so.
15.That the Parties shall be at liberty to provide a copy of these Orders to any third party necessary to ensure compliance with these Orders or as required including but not limited to the Children's education and health care providers.
ANNEXURE B: MOTHER’S PROPOSED ORDERS
(As contained in the mother’s Amended Outline of Case Document filed 18 March 2024)
Property
Transfer of the former matrimonial Home
1.Within 21 days of these orders, the applicant husband shall sign all deeds and instruments including all documents and do all acts and things necessary to transfer to the respondent wife in her sole name all his right title and interest in B Street, Suburb C in the state of New South Wales (“the Suburb C Property”) being all that land contained in folio identifier …
2.Simultaneously with Order 1;
2.1.The Husband do all acts and all things to pay the total amount owing of the registered mortgage Account No …00 in favour of the Commonwealth Bank encumbering the Suburb C Property (noting the current balance at 29 February 2024 is $153.033)
2.2.On execution of Order 1 and 2.1, the applicant husband is released from all and any liability arising in relation to the Suburb C Property.
2.2.Prior to the execution of Orders 1 & 2.1, Neither the applicant nor the respondent shall increase the said sum repayable under the said mortgage in the interim and
2.3.Both parties do all acts and all things to transfer the said liabilities into the sole name of the respondent or, if necessary to secure the applicant’s release, the repayment of all loans or advances secured by that mortgage and discharge of those liabilities and the respondent apply for a new mortgage solely in her own name.
2.2.The respondent wife to indemnify the applicant with respect to all council and water rates or other expenses relating to or arising from the Suburb C Property on execution of order 1 & 2.1.
3.The respondent wife shall have the sole right to occupy the property and during such right of occupation the Respondent wife shall be responsible for all mortgage payments, rates and outgoings of the property as they fall due up to and including the ‘due date’ or any date in which order 1 & 2.1 are executed.
Superannuation Split
4.That the base amount of $ 148,457.80 is allocated, as required by s.90XT(1)(a) of the Family Law Act 1975, to the non-member spouse, Ms Obando out of the interest held by the member spouse Mr Obando.
5.That whenever a splitable payment within the meaning of Section 90XE of the Act becomes payable to or on behalf of Mr Obando from his interest in Superannuation Fund 1, the trustee shall pay, Ms Obando, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and make a corresponding reduction in the entitlement Mr Obando would have had but for these Orders.
5.1.That Order 6 has effect from the operative time
5.2.That the operative time is four days after service of these orders on the trustee.
5.3.That this Order binds the Trustee of the father’s superannuation account(s).
5.4.That the applicant is responsible for the service of this order upon the Trustee.
6.That, after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”), the respondent shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the respondents’ request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the applicant’s choosing in accordance with the SIS Regulations.
7.That the Court notes that the value of the non-member spouse interest is calculated in accordance with the SIS Regulations.
Husband’s assets
8.The applicant husband shall retain as against the respondent wife all his right title and interest in the following assets:
a)Personal possessions
b)Motor Vehicle 1
c)Motor Vehicle 3
d)Motor Vehicle 4
e)Boat & trailer
f)Monies standing to his credit with any bank account and or building society except for the provisions in accordance with order 4.
g)The husbands superannuation entitlements except for the provisions of order 5 in accordance with super splitting orders
h)Monies standing in the husband’s Redundancy Trust money.
Wife’s assets
9.The respondent wife shall retain as against the applicant husband all her right title and interest in the following assets:
a)Contents of the property B Street, Suburb C NSW
b)The wife’s Motor Vehicle 5
c)Monies standing to the credit of the wife in any bank account or building society;
d)The wife’s superannuation entitlements
Husband’s liabilities
10.The husband shall remain liable for and indemnify the wife from
a)His personal Taxation
b)His legal costs of these proceedings
c)Any other debt standing in his name
Wife’s liabilities
11.The wife shall remain liable for and indemnify the husband from
a)Her personal taxation;
b)Her legal costs of these proceedings.
c)Any debt standing in her name
General default
12.That in default of the parties or either of them doing all acts and things and executing all such documents as are necessary to give effect to these Orders, a Registrar of the Court be appointed pursuant to Section 106A to execute all such documents in the name of the party in default and all such acts and things necessary to give validity and operation to the said Orders.
Parenting
1.The mother to have sole parental responsibility regarding the children:
·X born in 2010 and
·Y born in 2012
2.In executing sole parental responsibility, the Mother shall inform the Father in writing of any proposed decisions relating to the long- term care and welfare of the children including, but not limited to:
2.1.Proposed decisions about which schools the children shall attend;
2.2.Proposed decisions about elective surgery, treatment of chronic conditions, all treatment relating to the children’s autism spectrum disorder diagnosis, orthodontic treatment and other long term medical issues affecting the children;
2.3.The mother shall ensure that such notification is given to the Father in writing and is given not less than 28 days before the final decision is made, except in the case of an emergency; and
2.4.takes into consideration any views expressed by the Respondent in respect to such proposed decisions.
3.The children live with the mother
4.The children spend time with the father by agreement and if not agreed as follows:
4.1.Each alternate Sunday from 9.00 am to 5.00pm
5.Special Occasions
The father spend time with the children as follows:
5.1.Father’s day from 9.00 am to 5.00pm
5.2.Father’s Birthday: On or near the first Sunday preceding the birthday from 9.00 am to 5.00pm
5.3.Children’s Birthday: On or near the first Sunday preceding the child’s birthday from 9.00 to 5.00 pm noting that the children collectively spend time with the father on each of their respective birthdays.
5.4.Christmas: The children to spend time with the father from 9.00 am to 1.00 pm in years ending in an even number and from 1.00pm to 6.00pm in years ending in an odd number.
5.5.Public Holidays: The children spend time with the Father on public holidays that fall in school term 1, 2 & 3 from 9.00 am to 5.00pm.
5.6.The father’s time with the children is suspended if that time occurs on Mother’s day.
Drop/ Pick up
6.Unless agreed, all drop/ pick- ups of the children to occur at the mother’s residence.
Communication
7.The father communicate with the children by phone every alternate day between 6.00pm and 7.00pm
7.1.The mother ensure the children have access to a working telephone or iPad.
7.2.The parties communication with each other to continue through the ‘Family Wizard App’ unless otherwise agreed.
7.3.Each parent is responsible for payment of the Family Wizard App on their own device.
7.4.In the event the Family Wizard App is not working, the parents are to communicate by text or email.
7.5.In the event of emergencies, the parents are to communicate directly by phone.
8.The father is entitled to attend any school functions to which parents are invited including, but not exclusive to, parent/ teacher meetings, school fetes, carnivals, excursions, sports events.
9.The father is entitled to download the children’s school app and be placed on the children’s school mailing list to obtain all school reports and any other relevant information routinely provided to parents.
10.The Father is entitled to communicate with the children’s medical specialists and therapists and obtain progress reports as and when they become available.
11.The Father is entitled to attend the children’s occupational & speech therapy sessions providing the father:
11.1.Gives the mother five- days’ notice of his intention to attend and:
11.2.The Mother to provide the Father with the children’s appointment schedule and advise the father of any cancellations or changes to that schedule.
12.In the event of any medical emergency requiring the children to attend hospital or a medical clinic while in either parent’s care, that parent will inform the other parent as soon as is feasibly possible of the nature of the emergency and where the child/ren have been taken.
13.The Father undertakes not to deviate from the children’s dietary needs without the express consent of the mother and:
13.1.The Mother to provide the father with a list of the children’s current preferred foods and keep the Father updated of any dietary changes for both children.
Injunctions
14.The Parties are restrained by injunction from:
14.1.Denigrating the other parent or members of the other parents family in the presence of hearing of the Children, and the Parties shall each do all acts and things reasonably necessary to prevent any other person doing so;
14.2.Discussing these proceedings or any issues arising out of these proceedings with or within the hearing of the Children or permitting any third party to do so; and
14.3.Making critical or derogatory remarks on social media, such as Facebook, Twitter Instagram in relation to each other or referring in any way to the proceedings.
14.4.Physically chastising the children.
14.5.The Father is not to leave the children exclusively in the care of any other person without the express consent of the mother.
15.In the event any dispute arises in regard to any aspect of the children’s care or either parties seeks to change the orders, the parties will attend mediation organized by an organization authorised to carry out mediation/ family dispute resolution in NSW.
16.The applicant pay the respondent’s costs incidental and on an indemnity basis in these proceedings.
17.The applicant husband to pay the respondent wife’s costs incidental to these proceedings.
ANNEXURE C: INDEPENDENT CHILDREN’S LAWYER PROPOSED ORDERS
(As stated in the ICL’s Minute of Order filed on 18 March 2024 without oral amendments made during proceedings)
1.All prior Parenting Orders be discharged.
2.The Respondent mother shall have sole parental responsibility for children X born in 2010 (aged 13 years), and Y born in 2012 (aged 11 years) (‘the children’).
3.Notwithstanding Order 2, prior to exercising parental responsibility the Respondent mother shall:
a.Notifying the Applicant father in writing 21 days prior to making decisions in relation to the children about long term issues including but not limited to the children’s education and health; and
b.The Applicant father shall provide his views, if any, to the Respondent mother in writing 7 days prior to that decision being made and the Respondent mother shall consider those views; and
c.Within 14 days of exercising parental responsibility pursuant to this Order the Respondent mother shall provide to the Applicant father written notice of her decision and actions.
4.The children shall live with the Respondent mother.
5.The children shall spend time with the Applicant father as follows: -
a.Commencing on the first weekend following the making of orders and for a period of two (2) months, for five (5) hours each week with such time to be spent at the paternal grandparent's home.
b.Following the completion of the time referred to in Order 5(a), each alternate Saturday commencing at 9:00am and concluding at 5:00pm and on Sunday in the alternate weekend commencing at 9:00am and concluding at 5:00pm.
c.On Christmas Day for a period of 4 hours commencing at 1 0:00am and concluding at 2:00pm.
d.On Father's Day, commencing at 9:00am and concluding at 5:00pm.
e.Such other time as agreed between the parties.
6.Unless otherwise agreed, the children shall have telephone/Facetime communication with the Applicant father each Tuesday and Thursday between 6:00pm - 6:30pm, with the Applicant father to initiate such communication by calling the Respondent mother's telephone as advised and the Respondent mother is to ensure that the children are made available to communicate with the Applicant father.
7.Both parties shall keep the other advised at all times of their residential address, email address and contact telephone number and shall advise the other party within 48 hours of any change to either their residential address or telephone number.
8.Each parent be permitted to communicate directly with the children's schools, sporting bodies, and medical practitioners to obtain any necessary information and/ or documents about the children's progress and this Order shall constitute sufficient authority for such communication.
9.Both parents shall keep the other advised of the health of the children including any serious illness, medication that may be prescribed from time to time, or hospitalisation of any of the children as soon as reasonably practicable and to allow the other parent to visit the children if hospitalised.
10.If the Respondent mother changes the children's regular General Medical Practitioner, the Respondent mother shall notify the Applicant father within 7 days of the new medical practitioner details including contact telephone number and address.
11.The Respondent mother shall notify the Applicant father of any specialist medical appointments for the children and shall ensure that the Applicant father is provided with not less than 24 hours’ notice of such appointment being made for the children and that each parent is at liberty to attend any specialist medical appointments for the children.
12.That each party is at liberty to attend events of the kind normally attended by parents at the children's school and extra-curricular organisations notwithstanding the event may fall within the other parent's time with the child.
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